State v. Powell , 177 Ohio App. 3d 825 ( 2008 )

{¶ 49} Powell's primary defense was based upon her claim that Officer Mayle was exaggerating the nature of her conduct in an attempt to deflect attention from his own incompetence in allowing Handa to escape. In other words, she claimed that she did not assist Handa's escape from detention in any purposeful way and that Mayle was lying; and that he used the lies to excuse his own failure to follow proper protocol, which led to Handa's escape. The trial court incorrectly interpreted Powell's strategy as an attempt to use an irregularity in obtaining or maintaining Handa's detention as an affirmative defense to the charge of complicity to escape. R.C. 2921.34(B) precludes using the presence of a legal irregularity in obtaining the detention of a suspect as a defense to a charge of escape (or complicity) if the detention is under a judicial order or in a detention facility. However, it does not preclude a defense that is based upon the sloppiness in protocol or improper procedure in maintaining the suspect in a secure environment. In other words, the "irregularity" protected by the statute is one based upon a legal flaw, like the lack of probable cause to believe the suspect committed a crime. See State v. Harkness (1991), 75 Ohio App.3d 7, 10, 598 N.E.2d 836. The statute does not insulate an officer's strategic failure to maintain physical custody of the suspect. State v. Davis (1992), 81 Ohio App.3d 706, 720-721, 612 N.E.2d 343.