Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court of Common
Pleas, Case No. 2016 CR 00656. Judgment: Reversed and
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
25 West Jefferson Street, Jefferson, OH 44047 (For
Michelle M. French, Law Offices of Michelle M. French, LLC,
28 West Jefferson Street, Jefferson, OH 44047 (For
CYNTHIA WESTCOTT RICE, J.
Appellant, Dale Thomas Sandercock, appeals from the judgment
of the Ashtabula County Court of Common Pleas, after a trial
by jury, convicting him of one count of failure to appear, in
violation of R.C. 2937.99(A), (B), a felony of the fourth
degree. We reverse and vacate appellant's conviction.
The following testimony was adduced at trial: Mr. Sandercock
was originally charged, in case number 2016 CR 426, with one
count of felonious assault, a felony of the second degree.
Counsel stipulated appellant was released on a personal
recognizance bond, and the case involved a felony charge.
Attorney Joseph Humpolick, an assistant public defender who
retired shortly before the underlying trial, was Mr.
Sandercock's attorney of record in the 2016 case.
Attorney Humpolick testified he met with Mr. Sandercock at
his office in Ashtabula on August 24, 2016. He further
testified he provided Mr. Sandercock with a document, which
he signed, outlining future hearing dates, including an
October 14, 2016 pretrial conference. Attorney Humpolick also
provided Mr. Sandercock with other documents relating to
discovery in the matter.
On October 13, 2016, a pretrial was held and Mr. Sandercock
did not attend the hearing. Attorney Humpolick subsequently
sent Mr. Sandercock a letter to notify him that he missed the
hearing and advised his client to turn himself in to
authorities. As a result of appellant's absence at the
October hearing, he was indicted on one count of failure to
The state rested following Attorney Humpolick's testimony
and Defense counsel moved for acquittal, pursuant to Crim.R.
29. Defense counsel argued the state failed to identify Mr.
Sandercock during its case-in-chief; counsel maintained there
was no evidence presented to actually tie the Dale Sandercock
on trial to the crime charged. Counsel further argued the
state failed to present sufficient evidence that Mr.
Sandercock acted recklessly in failing to appear. The trial
court overruled the motion without a rationale.
The defense's evidence included testimony of Rebecca
Sandercock, Mr. Sandercock's daughter-in-law, who
testified she and her husband live in Northfield, in Summit
County, Ohio. She stated Mr. Sandercock moved into their home
in August 2016. Rebecca drove Mr. Sandercock to his August
24, 2016 appointment with Attorney Humpolick and he returned
with a packet of papers after the meeting. Rebecca testified
Mr. Sandercock conveyed what he and Attorney Humpolick
discussed, including future court dates. According to
Rebecca, Mr. Sandercock indicated the first hearing might be
rescheduled and his attorney would contact him if the date
did not change. She testified Mr. Sandercock noted a November
21 hearing and a December 20 hearing on his calendar and
represented the case was important to him.
On October 31, 2017, Rebecca retrieved the mail and gave Mr.
Sandercock a letter from Attorney Humpolick that stated he
had missed a court date and a warrant had been issued for his
arrest. Mr. Sandercock's son, Rick Sandercock, testified
he drove his father to the jail early the next morning. Mr.
Sandercock turned himself in and Sergeant Donald Dietrich,
the Assistant Jail Administrator at the Ashtabula County
Sheriffs Department, testified Attorney Humpolick's
letter was part of Mr. Sandercock's property when he
Mr. Sandercock testified he has serious lung and heart
conditions and he is on a variety of medications. In August
2016, he had recently moved in with his son and
daughter-in-law and noted he had not unpacked most of his
belongings. He acknowledged meeting with Attorney Humpolick
in August 2016 for "quite some time" and received a
"stack of papers in an envelope." He further
recognized the gravity of failing to attend any of the
scheduled hearings. And, he testified, his absence from the
October hearing was not due to heedless indifference, but
that he was simply "sloppy about keeping track."
Upon receiving Attorney Humpolick's letter in late
October, he testified he called the attorney's office and
they advised him to "turn yourself in," which he
Upon conclusion of its deliberations, the jury found Mr.
Sandercock guilty of the offense. Counsel filed a written
motion for a pre-sentence investigation report, which the
court denied. Mr. Sandercock was subsequently sentenced to a
12-month term of imprisonment. He now appeals and assigns
three errors for this court's review. His first
assignment of error provides:
"The trial court erred to the prejudice of the defendant
by failing to grant his Rule 29 motion for acquittal;
furthermore, the jury's verdict was against the manifest
weight of the evidence."
We shall begin by addressing appellant's challenge to the
sufficiency of the evidence upon which his conviction was
premised. A "sufficiency" argument raises a
question of law as to whether the prosecution offered some
evidence concerning each element of the charged offense.
State v. Windle, 11th Dist. Lake No. 2010-L-0033,
2011-Ohio-4171, ¶25. "[T]he proper inquiry is,
after viewing the evidence most favorably to the prosecution,
whether the jury could have found the essential elements of