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State v. Duncan

Court of Appeals of Ohio, Seventh District, Noble

December 22, 2017


         Criminal Appeal from the Court of Common Pleas of Noble County, Ohio Case No. 216-2047

          For Plaintiff-Appellee: Atty. Kelly A. Riddle

          For Defendant-Appellant: Atty. Jacob T. Will

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb


          WAITE, J.

         {¶1} 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.

         Procedural and Factual History

         {¶2} 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.

         {¶3} 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 particular call.

(Tr., p. 54.)

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 ...

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