State v. Wilson , 2010 Ohio 2294 ( 2010 )

[Cite as State v. Wilson, 2010-Ohio-2294.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-09-64
PLAINTIFF-APPELLEE,
v.
DESMOND J. WILSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2009 0286
Judgment Affirmed
Date of Decision: May 24, 2010
APPEARANCES:
Destiny R. Slaughterbeck, Appellant
Samuel D. Patry, for Appellee
Case No. 1-09-64
Rogers, J.
{¶1} Defendant-Appellant, Desmond Wilson, appeals from the judgment
of the Court of Common Pleas of Allen County convicting him of one count of
discharging a firearm into an occupied structure, one count of felonious assault
with a firearm specification, and one count of having weapons while under
disability, and sentencing him to a twenty-year prison term. On appeal, Wilson
argues that the trial court abused its discretion in instructing the jury on
consciousness of guilt where there was insufficient evidence to support the
instruction. Based on the following, we affirm the judgment of the trial court.
{¶2} In October 2009, the Allen County Grand Jury indicted Wilson on
Count One: discharging a firearm into an occupied structure in violation of R.C.
2923.161(A)(1), a felony of the second degree; Count Two: felonious assault in
violation of R.C. 2903.11(A)(2), a felony of the second degree, with a firearm
specification pursuant to R.C. 2941.145(A); and, Count Three: having weapons
while under disability, a felony of the third degree. The indictment arose from an
incident during which Wilson fired several shots at Brenda Brown in retaliation
for her son’s testimony in Wilson’s brother’s bank robbery trial. Subsequently,
Wilson entered a plea of not guilty to all counts in the indictment.
{¶3} In November 2009, the case proceeded to trial, at which Patrolman
George Caldwell testified that, on September 3, 2009, he received an order to
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serve an arrest warrant on Wilson based on his involvement in the Brown
shooting; that, when he arrived at Wilson’s residence, Wilson was sitting on the
porch; that he informed Wilson he was under arrest, and Wilson began to run
away; that he said to Wilson, “stop-police”, several times as he ran (trial tr., p.
123); that, at no point did he inform Wilson of the basis for his arrest or show him
the arrest warrant; that, after he apprehended Wilson, and while he walked Wilson
back to the police cruiser, Wilson stated, “I didn’t shoot at nothing” (id.); that this
statement was unsolicited; and, that Wilson’s arrest warrant was also for charges
unrelated to the Brown shooting, including obstructing official business and
failure to appear.
{¶4} Subsequently, the State rested its case and requested a consciousness
of guilt jury instruction, to which Wilson objected, arguing that insufficient
evidence was presented to warrant the instruction and that the instruction would
prejudice his case. The trial court granted the State’s request for the jury
instruction and instructed the jury, in pertinent part, as follows:
Now, testimony has been admitted indicating that the defendant
resisted arrest. You are instructed that defendant’s running
alone does not raise a presumption of guilt, but it may tend to
indicate the defendant’s consciousness or awareness of guilt. If
you find that the facts do not support that the defendant resisted
arrest, or if you find that some other motive prompted the
defendant’s conduct, or if you are unable to decide what the
defendant’s motivation was, then you should not consider this
evidence for any purpose. However, if you find that the facts
support that the defendant engaged in such conduct, and if you
decide the defendant was motivated by a consciousness or an
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awareness of guilt, you may, but are not required to, consider
that evidence in deciding whether the defendant is guilty of the
crimes charged. You alone will determine what weight, if any, to
give to this evidence.
(Id. at 173-174).
{¶5} Subsequently, the jury convicted Wilson on all three counts in the
indictment, including the firearm specification in Count Two. The trial court
immediately proceeded to sentencing, ordering Wilson to serve a six-year prison
term on Count One, a six-year prison term on Count Two, with an additional
three-year prison term for the firearm specification, and a five-year prison term on
Count Three, all to be served consecutively to each other, for a total twenty-year
prison term.
{¶6} It is from his conviction and sentence that Wilson appeals,
presenting the following assignment of error for our review.
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
INSTRUCTED THE JURY ON CONSCIOUSNESS OF GUILT.
{¶7} In his sole assignment of error, Wilson argues that the trial court
erred in instructing the jury on consciousness of guilt. Specifically, he contends
that insufficient evidence was presented at trial to warrant such an instruction. We
disagree.
{¶8} A trial court’s decision to give a jury instruction is within its
discretion, and we will not reverse such a decision absent an abuse of that
discretion. State v. Lightner, 3d Dist. No. 6-09-02, 2009-Ohio-4443, ¶11, citing
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State v. Guster (1981), 66 Ohio St.2d 266, 271. An abuse of discretion connotes
more than an error of law or judgment and implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. State v. Nagle (2000), 11th Dist. No.
99-L-089, 2000 WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219. When applying an abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. Id.{¶9} ‘“It is to-day universally conceded that the fact of an accused’s
flight, escape from custody, resistance to arrest, concealment, assumption of a
false name, and related conduct, are admissible as evidence of consciousness of
guilt, and thus of guilt itself.’” State v. Eaton (1969), 19 Ohio St.2d 145, 160,
reversed in part on other grounds as stated by Eaton v. Ohio (1972), 408 U.S. 935,
quoting 2 Wigmore, Evidence (3 Ed.), 111, Section 276. Accordingly, a jury
instruction on consciousness of guilt based upon the flight of the accused is
appropriate when supported by sufficient evidence in the record. See State v.
Jeffries, 182 Ohio App.3d 459, 2009-Ohio-2440, ¶80, citing State v. Davilla, 9th
Dist. No. 03CA008413, 2004-Ohio-4448, ¶12. This Court has previously found a
consciousness of guilt instruction to be proper where a defendant boarded up his
back door and hid in a crawl space when the police came to his home to execute a
search warrant, State v. McCullough, 3d Dist. No. 12-07-09, 2008-Ohio-3055;
and, where a defendant ran and hid in between some apartment buildings when he
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saw a police cruiser searching the area in response to a dispatch call about shots
being fired, State v. Ingram, 3d Dist. No. 1-08-53, 2009-Ohio-1302.
{¶10} Here, Patrolman Caldwell testified that Wilson took off running
when he approached Wilson’s residence and informed Wilson that he was under
arrest; that Wilson ran despite not being informed of the reason for the arrest; that
he never told Wilson the basis for the arrest warrant; that the warrant was also
based upon charges unrelated to the Brown shooting, including obstructing official
business and failure to appear; and, that, as he was walking Wilson to the patrol
car, Wilson made the unsolicited statement that he “didn’t shoot at nothing.”
(Trial Tr., p. 123). Although Wilson argues that his flight could have been due to
his knowledge of other bases for the arrest warrant, and that he could have made
the statement about the shooting because he lives in close proximity to Brown’s
residence and was aware of the shooting, these arguments only serve to
demonstrate reasons the jury could find that his flight was not evidence of
consciousness of guilt, not that a consciousness of guilt instruction was
unwarranted. There was clearly sufficient evidence to allow a reasonable
inference that Wilson’s flight, coupled with his subsequent comment to Patrolman
Caldwell, indicated a consciousness of guilt such that a jury instruction on the
issue was not an abuse of discretion by the trial court. We also note that the trial
court’s consciousness of guilt jury instruction mirrored the instruction as set forth
in Ohio Jury Instructions (2009), Section CR 409.13(1), was clearly neutral in its
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effect, and only permitted, not required, the jury to draw the conclusion that
Wilson displayed a consciousness of guilt by fleeing the police.
{¶11} Accordingly, we overrule Wilson’s assignment of error.
{¶12} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., and PRESTON, J., concur.
/jnc
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