State v. Fluker , 2023 Ohio 1295 ( 2023 )

[Cite as State v. Fluker, 2023-Ohio-1295.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111678
v. :
CECIL FLUKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 20, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-665403-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eric Collins, Assistant Prosecuting
Attorney, for appellee.
Susan J. Moran, for appellant.
ANITA LASTER MAYS, A.J.:
Defendant-appellant Cecil Fluker (“Fluker”) appeals his bench trial
conviction and sentence for two counts of menacing by stalking in violation of
R.C. 2903.211(A)(1), fourth-degree felonies.
We affirm the trial court’s judgment.
I. Facts and Procedural History
Fluker was convicted of menacing by stalking D.W. (“Mother”) and
her family, more particularly daughter Jane Doe (“Doe”), who was 17 years of age at
the time of the indictments. Count 1 of Fluker’s indictment charged that on or about
August 1, 2021, to October 30, 2021:
Cecil Flucker [sic], by engaging in a pattern of conduct, did knowingly
cause [Mother] to believe that Cecil Flucker [sic] will cause physical
harm to [Mother] or a family member of Mother or cause mental
distress to [Mother] or a family member of [Mother’s]. Furthermore,
the offender made a threat of physical harm to or against the victim.
Count 2 of the indictment mirrored Count 1 except for the furthermore clause that
provided “the offender trespassed on the land or premises where the victim lives, is
employed, or attends school.”
The case was placed on the mental health docket and proceeded to a
bench trial that began on May 24, 2022. Mother and two members of the Cleveland
Police Department (“CPD”) testified for the state. Fluker testified in his defense.
Mother stated that in February 2020, Doe became very angry with
Mother, “busted” Mother’s windows, and left the residence. (Tr. 39.) Doe later
informed Mother that she was residing at the home of a woman named Belinda
Massey (“Massey”).
Mother said that Doe would sometimes return to the house “to eat,
get food, get money, you know, stuff like that. So I would make sure she was okay.
But I never knew the exact whereabouts of where she was because she wouldn’t tell
me.” (Tr. 40.) Doe would approach through the field that was adjacent to Mother’s
house. Mother suspected that “somebody dropped her off on the next street.”
(Tr. 40.) During calls with Doe, Mother often heard an unknown male speaking
loudly in the background. She learned that the male was Fluker in August or
September 2021.
Doe was away for over a year. Mother explained, to establish that Doe
was a member of the household during the relevant period, that Doe graduated from
high school in August or September 2021, “a couple of days * * * prior to her coming
back home.” (Tr. 42.) Mother said that Doe returned home because Fluker was
abusing her and that she observed fingerprints on Doe’s neck and face. Two to three
weeks after Doe’s return, Mother found Doe another place to stay because Mother
observed a male driving by the house and taking photographs of Mother and the
family. The male was driving a silver car that Doe said belonged to Fluker’s brother.
Mother contacted police but did not go to the station as the police advised.
The state introduced copies of several screen shots of threatening text
messages purportedly sent by Fluker to Doe who sent the screen shots to Mother.
The messages included threats to kill Doe and her family, burn the house down, and
have people shoot into the house if Doe did not return to him. Fluker’s cell phone
number is listed at the top of one of the screen shots.
Mother said Fluker knew Doe was staying with Mother and that
Fluker called Doe one night and said, “‘I’m in your house.’ When I got up to go [sic]
the stairs, he was going back out the window, upstairs window.” (Tr. 50.) Mother
said she did not see Fluker but heard sounds in the house and arrived downstairs in
time to see “the van that [Fluker] drives with ‘school transportation’ on it. It was
pulling off.”1 (Tr. 51.) Mother did not state whether Doe was at the residence at the
time.
On approximately September 12, 2021, Mother was standing on the
porch when she observed a tall male, who she later determined to be Fluker, walking
back and forth in front of the house. The male stopped and asked whether Mother
knew who “Mary” was and said Mary had taken a gun from him. Mother walked
into the house to get her phone to call Doe whose middle name was Mary. She
returned to see the male running through the adjacent field.
Mother testified that someone shot into the home later that day and
police were summoned. In addition to the report of a shot being fired, Mother
showed police a first-floor windowpane that had been broken two days earlier. Doe
was not home when the window was broken but Mother said that Doe texted Mother
that “[Fluker] was threatening to break the window. * * * You — all need to get out
of there.” (Tr. 60.)
Mother showed police the screen shots of text messages reportedly
sent to Doe by Fluker. Doe was not in the house the day of the September 12, 2021
incident, but she communicated with police by phone. Mother confirmed that the
only time Fluker came to the house and talked with her was on September 12, 2021,
when she was standing on the porch.
1 Fluker drove the van at the high school that Doe attended.
Mother called police whenever she saw Fluker’s van in the area and
said that additional threatening texts were sent to Doe after the September 12, 2021
incident. Mother did not think that Doe wanted to be involved with the investigation
and stated that Doe no longer resided with Mother and if Doe was with Fluker again
Doe would not tell Mother. Mother also said the family had relocated because she
did not feel safe.
CPD Officer Michael Deighan (“Officer Deighan”) responded to the
scene on September 12, 2021. Mother told Officer Deighan that
a male that was known to her who was, I believe, a teacher or
security — I can’t recall — but worked at * * * her daughter’s school —
texted her daughter, came over to the house and shot one round into
the house and sent her daughter a picture of him inside the house.
(Tr. 73.)
No bullet casing was recovered but Officer Deighan observed “a bullet
hole [that entered] through the north side of the house into the son’s room, and I do
believe it lodged in his back wall.” (Tr. 74.) A second bullet hole was not related to
the current complaint. Doe was not at the residence at the time the officer arrived,
but the officer talked with Doe telephonically to confirm the content and source of
the text message screenshots. The officer verified that the screenshots presented for
his review at trial were the ones he viewed at Mother’s home.
CPD Detective Sean Coleman (“Detective Coleman) talked with
Mother several times beginning a few days after the incident. Mother forwarded five
screen shots to Coleman. One of the screenshots contained a telephone number
publicly listed to Fluker.
Detective Coleman first interviewed Fluker during a recorded phone
call. Excerpts were played for the jury. Fluker admitted that he went to Mother’s
house around September 9th or September 12th and he knew Mother’s address.
Fluker did not take responsibility for breaking the window or the gunshot. The cell
phone that Fluker used to communicate with the detective was the same number
depicted in the text message screen shot. Fluker turned himself in a few weeks after
the interview.
Detective Coleman also monitored jail calls after Fluker’s arrest,
several of which were played for the jury. During the jail calls, Fluker mentioned
going to Mother’s house during the September 9th to September 12th, 2021 time
period, that a gun was kept at the house where he resided, and that he lived in the
city of Garfield Heights. Fluker also asked Doe what her “people” planned to do and
offered to pay for the broken window.
Detective Coleman confirmed that other than a bullet hole, there was
no ballistic evidence to indicate a shooting occurred contemporaneous to the report.
Detective Coleman was unable to speak directly with Doe, who stopped responding
to his texts and failed to show up for appointments. The state rested, and Fluker’s
Crim.R. 29 motion for judgment of acquittal was denied.
Fluker took the stand and corroborated that he has been in a
relationship with Doe. Fluker did not meet Doe at school but met her at East 152d
and St. Clair Avenue “at a bus stop beat up real bad. And I jumped out and said,
‘What is wrong with you? Where’s your parents, or who are you?’” (Tr. 113.) Doe
responded with a “bunch of lies” but gave Fluker her phone number. Fluker was not
driving the school vehicle at the time. Fluker did not know that Doe was 17 but
realized as time passed that Doe was young because she did “young things and
want[ed] to fight.” (Tr. 113-114.)
Fluker resided in Garfield Heights with Massey who had taken him in
because he was homeless. Doe later moved into the home and Fluker took care of
Doe. “[A]ll of us was trying to help each other.” (Tr. 115.) Fluker stated Doe had
been living at his house the entire time, was still living there at the time of trial, and
was “pregnant, like, right now again.” (Tr. 101.)
Fluker denied breaking the window, shooting into the house, and
sending the threatening text messages. Fluker said that he, Doe, and P (“P”), a
female acquaintance of Doe who lived near Doe’s school, were involved in a three-
way relationship. Fluker had an encounter with P without Doe, and P told him she
wanted a one-on-one relationship. Fluker refused, and P angrily responded that her
“peoples were coming.” (Tr. 102.) Fluker ran from P’s house and left some of his
belongings, including his phone. P connected Fluker’s cell phone to an internet
application that provided cell phone location tracking, camera views and access, and
the ability to send texts and make calls that appeared to come from Fluker’s phone.
Fluker said that P’s family members lived on Mother’s street and
reportedly sent photographs of Mother and the family and the threatening text
messages. Fluker explained that there was a lot of fighting and gunfire on Mother’s
street and that P and her friends often rode by Mother’s house and urged Doe to
come out to fight.
Fluker admitted that he talked with Mother the day that Mother was
standing on her porch:
I told her, your daughter stole some stuff. I think she stole a gun.
And she said, my daughter don’t steal.
I said, well, I’m the one taking care of your daughter. I’m just trying to
tell you, I’m not trying to hurt you.
(Tr. 108.)
Fluker clarified that the gun Doe took from the house was a bb gun
that appeared to be authentic and was kept at Fluker’s residence for security
purposes. Fluker also wanted Mother to know that he was not the one causing
trouble:
In my mind, because I do have mental issues — you get it. And I’ve
been through stuff before. So in my mind when I seen [sic] [Mother] I
wanted to tell her it’s not me, and I was trying to show her. And she
didn’t want to hear it. Like, she just looked at me like an older guy with
her young daughter. And I’ll kill you. Like, you know what I’m saying?
Like it was no trying to talk to her.
(Tr. 119.) Fluker said that Mother went into the house and returned with a real gun.
Fluker ran through the next-door field to the adjacent block. That was the only time
that Fluker encountered Mother.
Fluker accused Mother of attempting to run him off the road with her
children in the car and said the police told her to stop, though police testified there
were no reports of the event.2 Fluker confirmed that he called Detective Coleman
multiple times to say the allegations were not true and to turn himself in.
As to the jail calls, Fluker asked Doe what Mother was going to do
regarding the charges because Doe knew that Fluker was innocent and had tried to
tell her Mother. Fluker offered to pay for the window to let Mother know he was
trying to help her so Mother would feel secure that he was not the perpetrator.
Fluker added that he had recently had a nervous breakdown and was taking
medication.
The trial court found Fluker guilty on both counts and continued the
sentencing hearing due to Mother’s desire to attend. Mother failed to appear at the
June 6, 2022 sentencing. The state informed the trial court that Mother wanted a
restraining order against Fluker and that Mother had become alienated from Doe.
Defense counsel explained that Fluker’s mental health issues were
complicated by a traumatic brain injury and skull fracture suffered years earlier
when Fluker was accidentally shot in the head by a friend playing with a gun. Fluker
was “scared his mother would worry about [his] getting shot in the head” so he told
her that he jumped off a building. (Tr. 141).
Fluker admitted he had a history of making poor choices, particularly
with relationships, and had also been homeless, which impeded his ability to receive
proper mental health care. Fluker was tearful and apologetic about the situation
2 Detective Coleman did state that officers may have been dispatched in response
to a call but if no report was made there would be no record.
with Mother, to the prosecutor because he did not understand the prosecutor was
trying to help him, to his lawyer, and to his mother who was present at the hearing.
The trial court admonished Fluker for being involved in an
“inappropriate” relationship as a 44-year-old man that began when Doe was 17 and
was now 19 years of age at the time of trial:
I’m not — I’m not agreeing to that. You are a 44-year-old man. You’re
not — I’m not agreeing to this living situation. I don’t agree with it. So
where are you going to live? * * * And you’re not having — you’re not
going to be on my probation and have a relationship with a 19-year-old
girl. * * * That started when she was basically 17. * * * You are 44 years
old. * * * She’s a troubled girl, and you’re around young girls.
(Tr. 143-144.)
The trial court and defense counsel told Fluker that Doe was not good
for him and she was a troubled girl and that working around young girls with his
lack of boundaries and developmental issues was not good.
The trial court then admonished:
Court: It just burns me up. You’re not here on that kind of case, so I
can’t punish you like you are. But I can tell you this, I’m not
going to stand for it. If I put you on probation, you’re not
living with Belinda [Massey]. Period. And you’re not —
you’re not having these relationships.
Are you still driving that van?
Fluker: The van is broke[n]. I was working for the school.
Court: I know. You shouldn’t be working for the school. You don’t
know boundaries. Do you know what boundaries are? If you
don’t know when to stop your behavior. Your record is all
about that. Your record is all about you not knowing what the
boundaries are in personal relationships.
I think a lot of it is because of your developmental issues. I
get it. But you’re — you’re really — you are this close to being
charged with a rape of some girl you picked up in the van that
you were trying to do this. Depending on the age.
Maybe he should go to the CBCF. I don’t know.
***
You know what, I’m going to remand him for the CBCF. I’m
not comfortable with the situation. The living situation is
terrible.
***
Working around young girls with his lack of boundaries and
understanding that.
(Tr. 144-146.)
The trial court decided that Fluker “really needs programming on
boundaries and decision-making and appropriate relationships.” (Tr. 146.) Counsel
agreed to inquire about potential programs.
Court: Your fines, fees, and costs are waived. You’re going to be on
probation for two years starting at the CBCF. Failure to
comply with the terms and conditions of probation, you’re
facing 18 months on Count [1] and 18 months on Count [2]
for a total of 36 months in prison.
If you go to prison, you’re looking at up to two years of
postrelease control. If you violate, you go back to prison for
up to one half of the sentence that you were given, be charged
with a felony called escape. They can make your supervision
harder for you or longer.
(Tr. 146-147.)
Fluker became visibly shaken and unable to sit up. The trial court
summoned medical assistance. While waiting for their arrival, the trial court
reassured Fluker that he was not going to prison, that he would go to CBCF in
Cleveland where he could engage in programming, and that his children could visit.
The jail medical unit arrived and the hearing ended.
On July 8, 2022, another hearing was held. Fluker was housed in the
psychiatric exclusion jail unit and received medication. Fluker told the trial court
that the jail officers had threatened him and were trying to kill him. The trial court
informed Fluker that CBCF denied placement due to his mental health issues, but
the trial court could inquire again. Fluker was also advised that the Cincinnati
Volunteers of America could also provide services and if those options did not work
out, prison would be the remaining route. The trial court was not willing to release
him into the community unless he had different housing.
Fluker asked why people wanted him to be incarcerated. Defense
counsel responded that it was because his living situation was not appropriate. The
trial court clarified:
That’s not the only reason. Your record is terrible. If you really want
me to be harsh about it, your record is bad, more than bad, and the facts
of this case are disturbing, so I don’t think that a straight release into
the community is the appropriate thing. If you don’t like what I’m
doing, your other choice can be prison, but right now I’m willing to give
you probation with treatment.
(Tr. 168.)
The sentencing entry provides in part:
The court finds that a community control sanction will adequately
protect the public and will not demean the seriousness of the offense.
It is therefore ordered that the defendant is sentenced to two years of
community control on Count 1, Count 2, under the supervision of the
Adult Probation Department’s Mental Health/Developmental
Disabilities Unit with the following conditions: 1.) defendant to abide
by all rules and regulations of the probation department. 2.) report as
directed by probation officer. 3.) follow recommendations of treatment
team. 4.) attend all mental health appointments as scheduled. 5.) take
all medication as prescribed. 6.) attend programming as indicated in
case plan. 7.) defendant is ordered to pay a monthly supervision fee of
$20. 8.) random drug testing. 9.) conditions and terms of probation
are subject to modification by the probation officer and approval of the
court. * * *
Defendant is not to live with Belinda upon release from CBCF.
Probation ordered to find housing for defendant upon release from
CBCF and court must approve of defendant’s housing.
Journal entry No. 124355986, p. 1, 2 (June 1, 2022).
Fluker appeals.
II. Assignments of Error
Fluker presents three assignments of error:
I. The trial court erred in denying appellant’s motion for acquittal
pursuant to Crim.R. 29 when the state failed to submit sufficient
evidence of the crimes charged, denying the appellant due process.
II. Appellant’s convictions are against the manifest weight of the
evidence.
III. The trial court erred by imposing community control sanctions
which unnecessarily impinged on appellant’s liberty.
III. Discussion
A. Sufficiency and Manifest Weight
1. Standard of Review
“Because a Crim.R. 29 motion for acquittal questions the sufficiency
of the evidence, ‘[w]e apply the same standard of review to Crim.R. 29 motions as
we use in reviewing the sufficiency of the evidence.’” Fairview Park v. Peah, 8th
Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37, quoting State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
“Whether the evidence is legally sufficient to sustain a verdict is a
question of law.” Id. at ¶ 38, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). “Sufficiency is a test of adequacy.” Id. “We construe the evidence
in a light most favorable to the prosecution and determine whether a rational trier
of fact could have found the essential elements of the offense proven beyond a
reasonable doubt.” Id., citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus.
While sufficiency tests the adequacy of the evidence to support the
verdict as a matter of law, a manifest weight inquiry asks whose evidence is more
persuasive at inducing belief, “the state’s or the defendant’s?” State v. Ryan, 8th
Dist. Cuyahoga No. 108143, 2019-Ohio-5339, ¶ 21, citing State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “Although there may be legally
sufficient evidence to support a judgment, it may nevertheless be against the
manifest weight of the evidence.” Id., citing Thompkins at 387; State v. Johnson, 88
Ohio St.3d 95, 723 N.E.2d 1054 (2000).
We also recognize that the trial court and not a jury is serving as the
factfinder in our manifest-weight review of a bench trial verdict.
“Accordingly, to warrant reversal from a bench trial under a manifest
weight of the evidence claim, this court must review the entire record,
weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in
evidence, the trial court clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed, and a new
trial ordered.”
State v. Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25
(8th Dist.), quoting Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441,
863 N.E.2d 1125 (8th Dist.), citing Thompkins at 390. See also State v. Kessler, 8th
Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13. Only in the most “‘exceptional
cases in which the evidence weighs heavily against the conviction, should a
conviction be reversed as against the manifest weight of the evidence.’” Thompkins
at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
2. Analysis
Fluker argues that not only is the evidence insufficient to support the
elements of the convictions, but the evidence is not competent and credible. We
disagree.
Fluker was convicted of two counts of menacing by stalking under
R.C. 2903.211(A)(1) which provides in pertinent part:
(1) No person by engaging in a pattern of conduct shall knowingly cause
another person to believe that the offender will cause physical harm to
the other person or a family or household member of the other person
or cause mental distress to the other person or a family or household
member of the other person.
“‘Pattern of conduct’ means two or more actions or incidents closely related in time.”
R.C. 2903.211(D)(1). The second count adds that Fluker trespassed on the land or
premises where the victim lives, is employed, or attends school to commit the act.
R.C. 2903.211(D)(2) defines “mental distress” to mean any of the
following:
(a) Any mental illness or condition that involves some temporary
substantial incapacity;
(b) Any mental illness or condition that would normally require
psychiatric treatment, psychological treatment, or other mental health
services, whether or not any person requested or received psychiatric
treatment, psychological treatment, or other mental health services.
R.C. 2903.211(D)(11) defines a “family or house hold member” as any
of the following:
(a) Any of the following who is residing or has resided with the person
against whom the act prohibited in division (A)(1) of this section is
committed: * * *
(ii) A parent, a foster parent, or a child of the person, or another person
related by consanguinity or affinity to the person.
R.C. 2901.22(B) defines “knowingly”:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist.
In a bench trial under Ohio law, “the trial court is entitled to the
presumption of regularity, that is, the trial court is presumed to know and follow the
law in arriving at its judgment unless it affirmatively appears to the contrary.”
State v. Shropshire, 8th Dist. Cuyahoga No. 103808, 2016-Ohio-7224, ¶ 37, citing
State v. Eley, 77 Ohio St.3d 174, 180, 672 N.E.2d 640 (1996), citing State v. Post, 32
Ohio St.3d 380, 513 N.E.2d 754 (1987). “[I]n an appeal from a bench trial, we
presume that a trial court relies only on relevant, material, and competent evidence
in arriving at its judgment.” Id., citing id. at 180.
Mother provided testimony as well as exhibits of the threatening text
messages that contained threats to the safety of Mother and her family. Police
testified that Doe confirmed the source of the texts. Mother also testified that she
observed Fluker driving by the house to photograph the family. Both Mother and
Fluker testified that Fluker went to Mother’s house and spoke with Mother on or
about September 12, 2021, though their descriptions of the interaction differed.
The testimony and evidence further support that a first-floor window
had been broken and that Mother saw a tall male whom she later determined was
Fluker running from the house. Just a few days after the broken window and later
on the day that Fluker visited Mother, a bullet was fired into the house. Fluker
testified on his behalf, denied the allegations, and provided his explanation of the
events.
This court finds that, if believed, the evidence and testimony
submitted to the trial court would convince the average mind of Fluker’s guilt
beyond a reasonable doubt. Thus, we conclude that there was sufficient evidence to
convict Fluker of menacing by stalking.
As to the manifest weight of the evidence, “[d]eterminations of
credibility and weight of the testimony remain within the province of the trier of
fact.” State v. Newman, 8th Dist. Cuyahoga No. 109182, 2020-Ohio-5087, ¶ 27,
citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus. “[T]he factfinder may take note of the inconsistencies and resolve them
accordingly, ‘believ[ing] all, part or none of a witness’s testimony.’” Id., quoting
State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing
State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Coupled with the bench
trial presumption that the trial court knows and follows the law, this court finds that
the record does not support that this is the exceptional case where the evidence
weighs heavily against conviction.
The first and second assignments of error are overruled.
B. Community Control Sanctions
1. Standard of review
An appellate court reviews a trial court’s imposition of community-
control sanctions for an abuse of discretion. State v. Cintron, 8th Dist. Cuyahoga
No. 110600, 2022-Ohio-305, ¶ 18, citing State v. Talty, 103 Ohio St.3d 177, 2004-
Ohio-4888, 814 N.E.2d 1201, ¶ 10. An “abuse of discretion” occurs where “a court
exercise[s] its judgment, in an unwarranted way, in regard to a matter over which it
has discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-
3304, 187 N.E.3d 463, ¶ 35.
“[A] court will not be found to have abused its discretion in fashioning
a community-control sanction as long as the condition is reasonably related to the
probationary goals of doing justice, rehabilitating the offender, and insuring good
behavior.” State v. Chapman, 163 Ohio St.3d 290, 2020-Ohio-6730, 170 N.E.3d 6,
¶ 8, citing State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814 N.E.2d 1201,
¶ 12. “Further, a condition “‘cannot be overly broad so as to unnecessarily impinge
upon the probationer’s liberty.”’” Id., quoting id. at ¶ 13, quoting State v. Jones, 49
Ohio St.3d 51, 52, 550 N.E.2d 469 (1990).
2. Analysis
“R.C. 2929.15(A)(1) governs the authority of the trial court to impose
conditions of community control.” Talty at ¶ 10. The section provides that “the trial
court may impose one or more community sanctions, including residential,
nonresidential, and financial sanctions, and any other conditions that it considers
‘appropriate’.” Id. “The General Assembly has thus granted broad discretion to trial
courts in imposing community-control sanctions.” Id.The trial court informed Fluker that the options were CBCF, a similar
facility or prison and cited, among other factors, its disapproval of Fluker’s
relationship with then 19-year-old and expectant Doe, who resided at Massey’s
home. The sentencing entry does not specifically forbid the relationship or ban
contact with Doe, but states that Fluker is not to return to Massey’s home upon
release from CBCF. The entry also provided that the probation department is to find
housing for Fluker upon release and the trial court must approve the housing.
Fluker argues that the trial court improperly restricted Fluker from
continuing his relationship with a female over the age of 18 and does not meet the
test set forth in Jones, 49 Ohio St.3d at 52-53, 550 N.E.2d 469. The restriction,
states Fluker, impinges on his constitutional liberty interests.
“[A] trial court can impose community-control sanctions that limit
the offender’s fundamental rights, provided that such limitations further the
statutory goals of community control and are not overbroad.” State v. Chapman,
163 Ohio St.3d 290, 2020-Ohio-6730, 170 N.E.3d 6, ¶ 16. This is true “because
convicted criminals serving their sentences enjoy diminished liberty interests when
compared with the general population.” Id.Chapman declared that the three-part test in Jones applies to
determine whether the condition is reasonably related to the community control
goals.
A court must “consider whether the condition (1) is reasonably related
to rehabilitating the offender, (2) has some relationship to the crime of
which the offender was convicted, and (3) relates to conduct which is
criminal or reasonably related to future criminality and serves the
statutory ends of probation.” Jones, 49 Ohio St.3d at 53, 550 N.E.2d
469.
Chapman at ¶ 23.
Fluker’s sole focus on the trial court’s somewhat strenuous objection
to Fluker’s relationship with Doe is misplaced because the trial court’s sentence and
substantiation therefor must be considered in toto. The trial court explained that
what Fluker “really needs [is] programming on boundaries and decision-making
and appropriate relationships.” (Tr. 146.) “You don’t know boundaries. Do you
know what boundaries are? If you don’t know when to stop your behavior. Your
record is all about that. Your record is all about you not knowing what the
boundaries are in personal relationships.” (Tr. 145.) The trial court did not order
that Fluker have no contact with Doe but crafted a sentence that would allow him to
receive proper medication and counseling, assist him with decision-making and
help him to maintain appropriate boundaries while honing coping skills. The trial
court was also concerned with Fluker’s criminal history of violating protection
orders, domestic violence, and telecommunications harassment over the prior ten
years.
The record supports that the sentence meets the Jones elements.
CBCF was a reasonable alternative to imprisonment under the circumstances.
Fluker’s case was placed on the mental health docket due to his challenges. The trial
court formulated a sentence that would allow Fluker to receive the counseling and
medication that he needed to assist him with making reasonable decisions. The trial
court also directed that Fluker’s CBCF placement be supervised by the mental health
and development disabilities unit of the adult probation department. In crafting the
sentence, the trial court took into consideration Fluker’s history of similar criminal
behavior. Thus, CBCF placement allowed Fluker to receive counseling for
behavioral modification.
The trial court also explained to Fluker that in addition to his poor
reasoning:
Your record is terrible. If you really want me to be harsh about it, your
record is bad, more than bad, and the facts of this case are disturbing,
so I don’t think that a straight release into the community is the
appropriate thing. If you don’t like what I’m doing, your other choice
can be prison, but right now I’m willing to give you probation with
treatment.
(Tr. 168.)
The record supports that the trial court worked within its discretion
to craft a sentence that was reasonably related to Fluker’s convictions. This court
does not find that the nonstandard community-control conditions in this case
impinges on Fluker’s liberty interests. The trial court opined that Fluker should not
be directly released into the community without boundaries and counseling. We
reiterate that the trial court did not bar Fluker from contact with Doe. To the extent
Fluker complains that the condition that he not return to Belinda Massey’s home,
is not necessarily intrinsic to community control, that condition and the others “are
tailored to the rehabilitation of the offender,” and “are appropriately crafted to meet
a proper rehabilitative purpose.” Chapman, 163 Ohio St.3d 290, 2020-Ohio-6730,
170 N.E.3d 6, ¶ 18, 19.
The third assignment of error lacks merit.
IV. Conclusion
The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR