State v. JacksonState v. Jackson
INTRODUCTION
{¶1} Nyketta Terrell identified Johnny Jackson as one of three men who stole electronic equipment from her apartment after smoking marijuana with her early one morning while her husband was working. This Court affirms because Mr. Jackson did not preserve his speedy trial argument for appeal, his convictions are not against the manifest weight of the evidence, there was sufficient evidence of flight to allow the trial court to instruct the jury on that issue, and Mr. Jackson has not demonstrated that it was plain error for the trial court to instruct thе jury that any verdict must be unanimous.
BACKGROUND
{¶2} Ms. Terrell testified that a knock at her door roused her from sleep near 8:00 a.m. on January 9, 2010. When she answered the door, she saw Wyatt Menges (an old friend) and two other men. Mr. Menges asked if he and the others could come inside and smoke a blunt with
{¶3} According to Ms. Terrell, twenty minutes after the men left her house, T.J. and Johnny knocked on her door and told her that T.J. had forgotten his cell phone. She said that she asked the men to wait outside the door and handed them her cell phone so that they could dial the missing phone while she turned to look around her couch. The next thing she knew, Johnny pulled a gun on her and told her to get down on the floor. He threatened to shoot her if she looked up, so she kept her facе to the floor while she listened to the sounds of other men coming in and out of her apartment stealing electronic equipment such as her television set, Nintendo Wii, PlayStation, and games. She said that Johnny kept his knee on her back and the gun to the back of her head while he ordered the other men around, giving directions about hоw to disassemble certain items. When they were finished, Johnny told her to get into a nearby closet and not to come out until after they were gone. She said she waited about twenty minutes before running outside in her pajamas to find a phone to call the police.
{¶4} Immediately after the crime, Ms. Terrell did not admit to police that she had first permitted the men to enter her apartment to smoke marijuana. But, after one of the officers told her that he smelled marijuana in her apartment, she admitted that she had shared a blunt with the
{¶5} Officеr Drake testified that, based on Ms. Terrell‘s description, he suspected the third man might have been the defendant, Johnny Jackson, because he matched the description Ms. Terrell had given and was known to associate with the other two suspects. Based on that suspicion, he created a photo array, and Ms. Terrell chоse the picture of Johnny Jackson without hesitation. Officer Jacob Webber testified that he went to Mr. Menges’ grandmother‘s house to serve a warrant for his arrest, but did not find Mr. Jackson there. He did, however, find T.J., along with Johnny Jackson‘s brother, Quentin Jackson. Officer Drake testified that he soon learned that Johnny Jackson had gone to Geоrgia. The evidence showed that authorities arrested Mr. Jackson in Strafford County, Georgia, on February 15, 2010.
{¶6} A jury found Mr. Jackson guilty of two counts of aggravated burglary, one count of aggravated robbery, one count of kidnapping, and multiple firearm specifications under Sections
SPEEDY TRIAL
{¶7} Mr. Jackson‘s second assignment of error is that his speedy trial rights were violated because he was tried a year after his arrest on these charges. He has specifically argued that he did not waive his speedy trial time knowingly and intelligently and he never waived it regarding the gun specifications that were added after he withdrew his guilty plea.
{¶8} “The right of an accused to a speedy trial is recognized by the Constitutions of both the United States and the State of Ohio.” State v. Pachay, 64 Ohio St. 2d 218, 219 (1980). There is also a statutory right to a speedy trial in Ohio. “Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is nоt brought to trial within the time required by sections
{¶9} Although the docket reflects that Mr. Jackson was tried more than a year after his arrest on the original indictment in this case, it also indicates a number of tolling events, including various motions and a successful withdrawal of a guilty plea. The ability of any court to compute the speedy trial time in this case would be hampered by the fact that multiple relevant documents are missing from the record. This Court cannot address the argument, however, because Mr. Jackson did not preserve this issue for appeal.
MANIFEST WEIGHT
{¶11} Mr. Jackson‘s first assignment of error is that his convictions are against the manifest weight of the evidence. If a defendant argues that his convictions are against the manifest weight of the evidence, this Court “must review the еntire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction[s] must be reversed and a new trial orderеd.” State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist. 1986).
{¶12} Mr. Jackson has argued that this was a case of mistaken identity. He has pointed to evidence that Ms. Terrell had never before met the man who held a gun on her that morning, none of Mr. Jackson‘s fingerprints were found at the scene, and no gun was ever located. Ms.
{¶13} According to Ms. Terrell‘s testimony, she spent an hour socializing with the three men just twenty minutes before they returned to commit the crime. She testified that she was “pretty sure” that the photo she chоse from the array depicted the man who held a gun on her that morning, and Officer Drake testified that she chose the picture without hesitation. The evidence showed that Ms. Terrell did not recall the third man‘s name until after she had returned home and calmed down after her interview at the police station. She testified that, in addition to recalling the name Johnny, she also later recalled that Mr. Menges used to talk about a young man named Johnny who was like a brother to him. Although she testified that she was “buzzing” after they shared the blunt, she said that she was still aware of her surroundings and she was no longer buzzing when the men returned. Officer Drake also testified that Ms. Terrell did not appear high when he arrived at the scene following her 911 call. Having reviewed the record, we conclude that the jury did not lose its way when it determined that Mr. Jackson was one of the three men who burglarized Ms. Terrell‘s home. Mr. Jackson‘s first assignment of error is overruled.
JURY INSTRUCTION REGARDING FLIGHT
{¶14} Mr. Jackson‘s third assignment of error is that the trial court incorrectly instructed the jury that еvidence of flight can be indicative of consciousness of guilt because there was no
{¶15} Evidence of an accused‘s flight is admissible as evidence of consciousness of guilt. State v. Williams, 79 Ohio St. 3d 1, 11 (1997). “In reviewing a record to ascertain the presence of sufficient evidence to suрport the giving of a[n] . . . instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction.” Feterle v. Huettner, 28 Ohio St. 2d 54, syllabus (1971). The Ohio Supreme Court has explained that the appropriate test for a court of appeals to apply to this question is “the same as that faced by a trial court called upon to decide a motion for a directed verdict.” Id. at 56.
{¶16} As seen in the booking photos from Georgia and Lorain County following his arrest and extradition to Ohio, Mr. Jackson‘s long hair may have been his most noticeable physical feature at the time of the alleged crime. Officer Drake testified that he had known Mr. Jackson before he became a suspect in this investigation and knew that Mr. Jackson usually wore his long hair “out pretty big” in an afro style, pulled back into a tie at the back of his neck, or braided into tight cornrows. By contrast, by the time of trial, Mr. Jackson‘s hair was cut short, “[a]bsolutely” altering his appearance. The timing of the hair cut, however, undercuts the State‘s argument. Evidence that Mr. Jackson cut his hair short sometime between being arrested and being tried is not evidence of flight because it does not constitute evidence of an attempt to avoid apprehension.
{¶18} In this case, there was sufficient evidence to allow a reasonable inference that Mr. Jackson left the state shortly after the crime in оrder to avoid apprehension. The jury instruction appropriately permitted, but did not require, the jury to draw the conclusion that Mr. Jackson‘s actions after the crime demonstrated a consciousness of guilt. His third assignment of error is overruled.
JURY INSTRUCTION REGARDING UNANIMOUS VERDICT
{¶19} Mr. Jackson‘s fourth assignment of error is that the trial court incorrectly instructed the jury that its verdiсt must be unanimous. He has argued that the instruction eliminated the possibility of a hung jury. The trial court told the jury that “whenever all 12, I repeat, all 12 jurors agree upon a verdict, you will sign that verdict in ink and advise the bailiff . . . . You as jurors must be unanimous as to your verdict on each count of the indictment and each specification.” Because Mr. Jackson did not object to the instruction at trial, for the purposes of appeal, he has forfeited any argument except that of plain error. State v. Lynn, 129 Ohio St. 3d 146, 2011-Ohio-2722, ¶ 12.
{¶21} The trial court‘s instruction correctly states the law.
CONCLUSION
{¶22} Mr. Jackson‘s first assignment of error is overruled because his convictions arе not against the manifest weight of the evidence. His second assignment of error is overruled
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State оf Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, J.
CONCUR.