Court of Appeals of Ohio, Seventh District, Noble
Appeal from the Court of Common Pleas of Noble County, Ohio
Case No. 216-2047
Plaintiff-Appellee: Atty. Kelly A. Riddle
Defendant-Appellant: Atty. Jacob T. Will
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol
Appellant Anthony D. Duncan appeals from his felony
conviction entered in the Noble County Court of Common Pleas.
He raises a number of issues, including the admissibility of
recorded telephone calls between Appellant and one of his
visitors, the trial court's decision to overrule his
request to wear civilian attire in the court, and the weight
of the evidence. For the foregoing reasons, the judgment of
the trial court is affirmed.
and Factual History
On October 9, 2015, Carl Alexander, a mailroom employee at
the Noble County Correctional Institution ("NCCI")
charged with scanning and reviewing all incoming mail for
offenders, discovered two envelopes addressed to inmate Chod
Clark and bearing his inmate number. These had Suboxone
affixed under the stamps. Alexander notified his supervisor
and the envelopes were photographed and secured in a vault.
Jared McGilton, an institutional investigator at NCCI, began
an investigation of the incident and notified Trooper Shawn
Allar, who was assigned to NCCI, who also began an
investigation. Trooper Allar turned the envelopes over to
Robin Ladd at the Ohio Bureau of Criminal Investigations who
examined the envelopes and found eight partial fingerprints.
She matched the fingerprints to Crystal Anderson, aka Seresun
("Crystal"). Ladd reported this information to
Trooper Allar who in turn relayed it to McGilton, who entered
Crystal's name into the NCCI database. Crystal's name
came up as one of Appellant's registered visitors.
McGilton also accessed Appellant's prison email account
and Appellant's home address. It was revealed that
Appellant shared a home address with Crystal. The email
account contained this email sent to Crystal from Appellant:
"His name is Chod Clark, 715-178, have your friend write
him he's a cool guy. I think she will like him but I love
you so much and miss you too, love you." (Tr., p. 59.)
Based on this information, McGilton spoke with Appellant
about the drugs found on Clark's pieces of mail.
Appellant denied all involvement.
McGilton was also able to utilize the NCCI database to
retrieve outgoing phone calls made by Appellant to Crystal.
There were approximately twenty telephone conversations
reviewed by Trooper Allar. Pursuant to NCCI rules, each call
could last no more than fifteen minutes. Some were only five
minutes in duration. The calls began with the inmate
identifying himself by name before the call could be accepted
by the recipient. Trooper Allar testified at trial that he
reviewed the phone calls and then spoke with Appellant for
approximately "60 seconds, 2 minutes." (Tr., p.
52.) Trooper Allar testified that he recognized
Appellant's voice as the same voice identified as
"Tony" in the telephone calls. (Tr., pp. 52, 54.)
As there were technical difficulties in playing the recorded
calls in court, Trooper Allar read from a transcript of the
calls, all made to the same telephone number. This number was
given to NCCI by Crystal when she applied to be
Appellant's visitor. Trooper Allar read transcripts of
five of the telephone calls, all of which consisted of the
caller identifying himself as "Tony." Each
telephone call involved the same topic: the caller asking the
listener about picking up stamps and writing a letter. While
all of the calls are made to Crystal's telephone number,
the recipient never identified herself by name during the
calls. Reading one transcript Trooper Allar stated:
On October 2nd, 2015, 09:24 hours inmate Anthony
Duncan calls Crystal Seresun, identifies himself as Tony with
the prompted recording. Mr. Duncan says, "you was
supposed to get those stamps and shit today". Ms.
Seresun says, "I'm getting up". Mr. Duncan
says, "mom said they sell those envelopes at the post
office, so did your girl write that letter". Ms.
Seresun, "I told her to last night". Mr. Duncan,
"you're dragging your feet". Crystal "she
is writing it right now, she's writing it and I'll
look it over, I told her not to put her name or mine".
Mr. Duncan, "shut up, shut up, shut up, put something on
the". Ms. Seresun, "I told her to make up a
name". Mr. Duncan, "listen it's a pen pal
thing, did you get that". Ms. Seresun, "I got
everything except". Mr. Duncan, "alright, alright,
go get the things and get to the post office, get what I tell
you". And that is the end of the transcription for that
(Tr., p. 54.)
Trooper Allar read four more transcripts into the record. All
were follow up calls which occurred prior to the discovery of
the drugs in the mailroom and all were from "Tony"
and purportedly made to Crystal. Crystal failed to appear at
trial after being subpoenaed and was not interviewed by
anyone involved in the investigation prior to charges being
filed against Appellant.
Trooper Allar completed his investigation and written report.
He testified at trial that he had the opportunity to speak
with Appellant but did not conduct an interview.
On May 25, 2016, the Noble County Grand Jury indicted
Appellant on one count of complicity (illegal conveyance of
prohibited items onto the grounds of a detention facility),
in violation of R.C. 2923.03(A)(1), a felony of the third
degree. On June 30, 2016, Appellant pleaded not guilty and
counsel was appointed. On November 14, 2016, Appellant filed
a motion for trial clothing. In a judgment entry dated
November 15, 2016, the trial court granted Appellant's
motion permitting him to wear "prison blues." The
matter proceeded to a jury trial on November 21, 2016. The
jury found Appellant guilty and the trial court sentenced ...