[Cite as State v. Longstreth,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24287

v. : T.C. NO. 10CR99

MATTHEW H. LONGSTRETH : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION

Rendered on the 15th day of April , 2011.

..........

TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant

..........

FROELICH, J.

{¶ 1} Matthew Longstreth appeals from a judgment of the Montgomery County

Court of Common Pleas, which found him guilty of escape and sentenced him to two years

in prison. 2

I

{¶ 2} The parties’ Joint Stipulation of Fact set forth the background of this case.

In March 2009, Longstreth was convicted of three counts of receiving stolen property in

violation of R.C. 2913.51(A); one count was a felony of the fifth degree and two counts were

misdemeanors of the first degree. He received an aggregate sentence of ten months in

prison and was approved for a transitional control program.

{¶ 3} In July 2009, Longstreth was placed on transitional control at the Dayton

Success for Life Center (“DSFL”), a halfway house in Dayton, Ohio. He obtained

employment at Wendy’s restaurant, but he subsequently terminated this employment.

{¶ 4} On November 19, 2009, Longstreth left DSFL to look for employment and he

did not return. As a result, on December 3, 2009, the Transitional Control Behavioral

Review Committee recommended that his transitional control be revoked.

{¶ 5} Longstreth was indicted for Escape in February 2010, and he waived his right

to a jury trial. A bench trial was held, at which the Joint Stipulation of Fact was offered into

evidence. (The trial itself was not transcribed for this court.) The Joint Stipulation of Fact

further stated:

{¶ 6} “If called to testify, Matthew Longstreth would testify that he had been

threatened with physical violence if he returned to the half-way house by other residents.

He would testify that this is the basis for his failure to return to the half[-]way house. Mr.

Longstreth was subsequently sanctioned for his failure to return to the half-way house and

the violation of his post-release control resulted in Mr. Longstreth being sent back to prison

on this violation.” 3

{¶ 7} Longstreth filed a post-trial memorandum in support of his position that he

had an affirmative defense – duress – for breaking detention, and therefore could not be

found guilty of the crime.

{¶ 8} The trial court rejected Longstreth’s affirmative defense of duress, reasoning:

“Because there is no evidence before the Court that Defendant communicated this ‘duress’

to his halfway house supervisor or anyone else, or was under the immediacy of the type of

legal duress addressed in the cases which he submitted, for the entire time of his absence, the

Court finds that this defense is not available to Defendant, and that he is GUILTY of the

offense of Escape as charged in the indictment.” He was sentenced accordingly.

{¶ 9} Longstreth raises one assignment of error on appeal.

II

{¶ 10} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT WHEN IT FAILED TO PROPERLY CONSIDER THE AFFIRMATIVE

DEFENSE OF DURESS.”

{¶ 11} Longstreth claims that the trial court failed to properly consider his

affirmative defense and that the trial court’s reasoning was “flawed” in two respects. First,

he asserts that case law regarding duress does not impose a requirement that he inform

anyone, including staff at the halfway house, of the alleged threats against him. Second, he

asserts that his mental state was only relevant at the time of the escape and that the

continuation of his fear thereafter was “immaterial;” thus, he claims that the trial court erred

in relying on the fact that his fear of impending physical harm had not continued throughout

the entirety of his absence from the facility. We interpret this argument as an assertion that 4

his conviction for escape was against the manifest weight of the evidence.

{¶ 12} In order to establish the defense of duress, the defendant must demonstrate

that he was compelled to commit the crime under threat, by another person, of imminent

death or serious bodily injury. State v. Lawson, Montgomery App. No. 22155,

, citing State v. Elijah (July 14, 2000), Montgomery App. No. 18034.

“The force used to compel the actor’s conduct must remain constant, controlling the will of

the unwilling actor during the entire time he commits the act, and must be of such a nature

that the actor cannot safely withdraw.”

citing State v. Getsy,

,

. Although the defendant must subjectively believe that he is being

threatened with imminent death or serious bodily harm if he does not commit the crime, that

belief must be objectively reasonable based on the evidence. Elijah, supra; State v. Doakes,

Montgomery App. No. 18811,

.

{¶ 13} In State v. Cross (1979),

, the Supreme Court of Ohio

recognized that, while a defense such as necessity or duress may provide justification for a

prison escape under certain circumstances, “rigid limitations on the viability of the defense

[must be in place] to insure that the rights and interests of society will not be impinged

upon” and to “prevent mass self-help releases.” Id. at 486. Cross did not set forth unique

elements for a defense of necessity or duress with respect to a prison escape, but it did

discuss several reasonable considerations in assessing the validity of such a claim: whether

there was “the sense of present, imminent, immediate and impending death, or serious bodily

injury” (as with any claim of necessity or duress); whether the inmate complained to the

authorities about the condition(s) prior to the escape; whether the inmate had the time or 5

means to resort to the legal system for redress; and whether the inmate turned himself in

immediately after fleeing the supposed intolerable or threatening conditions. Id. at 487-488.

The court emphasized that the defense of necessity or duress “is strictly and extremely

limited in application and will probably be effective in very rare occasions. It is a defense

and not a conjured afterthought.” Id. at 488.

{¶ 14} In light of Cross, the trial court reasonably considered the lack of any

evidence that Longstreth reported his “‘duress’” to the supervisor of the halfway house – or

anyone else – before or after his escape. It also reasonably considered his failure to turn

himself in to authorities during the weeks after his escape, when he was not under a present

and immediate threat. Longstreth’s assertion that his state of mind after he initially failed to

return to the halfway house was immaterial is without merit, because the definition of escape

encompasses the purposeful failure to return to detention following temporary leave for a

specific purpose or limited period. R.C. 2921.34(A). By Longstreth’s own stipulation, he

left the halfway house – presumably with permission – to look for work, and opted not to

return because of his fear of violence. His alleged reason for staying away over an extended

period of time and his failure to report his fear to authorities during this period were relevant

considerations.

{¶ 15} The trial court reasonably concluded that Longstreth’s claim that he had

escaped from DSFL under duress was not credible, and its finding Longstreth guilty of

escape was not against the manifest weight of the evidence.

{¶ 16} The assignment of error is overruled.

III 6

{¶ 17} The judgment of the trial court will be affirmed.

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GRADY, P.J. and BROGAN, J., concur.

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Timothy J. Cole Jay A. Adams Hon. Gregory F. Singer