[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-18 : v. : Trial Court Case No. 2015-CR-643A : KRISTA NACOLE JONES : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 25th day of January, 2019.

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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office, Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 W. Second Street, Suite 830, Dayton, Ohio 45402 Attorney for Defendant-Appellant

............. -2-

HALL, J.

{¶ 1} Krista Nacole Jones appeals from her conviction and sentence on two counts

of discharging a firearm at or into a habitation, improper handling of a firearm in a motor

vehicle, having weapons while under disability, failure to comply with an order or signal

of a police officer, and a firearm specification.

{¶ 2} In her sole assignment of error, Jones contends the trial court erred in

disallowing a proposed jury instruction on the affirmative defense of duress.

{¶ 3} The record reflects that Jones’ convictions stemmed from her role as the

getaway driver in two shootings. At trial, the State presented evidence that Jones drove

her vehicle, a red SUV with temporary tags, to pick up two armed accomplices, Aaron

Roberts and Dennis Kennedy, on the night of September 22, 2015. The State’s theory

was that the two men planned to shoot up two houses in retaliation for a shooting that

had occurred on Kenton Avenue in Springfield.

{¶ 4} On the night in question, Jones drove Roberts and Kennedy to Lafayette

Avenue where she parked, and they exited her vehicle. The two men proceeded on foot

a block away to Pine Street, where they shot up a residence with assault rifles. They then

ran back to the SUV, and Jones drove away. A while later, Jones parked her SUV in the

vicinity of a residence on South Center Boulevard. Roberts and Kennedy exited the SUV

and shot up a residence on that street. The two men then returned to Jones’ vehicle, and

the trio drove away.

{¶ 5} Based on eyewitness reports of a red SUV with temporary tags being

involved in the shootings, police began looking for Jones’ vehicle. Police began following

her shortly after the second incident. As they pursued, Jones increased her speed, -3-

running stop signs and red lights. Police eventually punctured her tires with stop sticks,

and she began to slow down. Kennedy fled the SUV on foot, while Jones and Roberts

remained in the vehicle. Jones and Roberts were arrested after the vehicle stopped.

Kennedy also was captured and arrested. When she was removed from the SUV, Jones

did not appear to be upset and initially said nothing to police. She did not initially report

being threatened or held at gunpoint. After five or ten minutes, however, she did claim the

two men had kidnapped her. It seemed to the police like she was “just kind of making it

up off the top of her head.” (Trial Tr. Vol. 2 at 408). At the police station later that night,

Jones claimed she was sitting in a parking lot when two unknown men got into her car,

pointed a gun at her, and told her to drive. She admitted driving the two men around but

did not mention taking them to the vicinity of Pine Street or South Center Boulevard. (Trial

Tr. Vol. 3 at 476-478).

{¶ 6} Jones testified in her own defense at trial. She explained that a friend had

called her shortly after 10:00 p.m. to tell her about a house on Kenton Avenue being shot

up. She then received a call from Kennedy, who wanted her to come pick him up at a

house off of Columbus Avenue. (Trial Tr. Vol. 4 at 571). As soon as she pulled in the

driveway, Roberts and Kennedy came outside and entered her SUV. Jones described the

two men as “angry” and “frantic.” They told her to “go” and started assembling their rifles

in her car. (Id. at 573). They directed her to a street a block away from Pine Street, where

they had her stop. The two men then exited the SUV with their rifles. (Id. at 577). At that

point, Jones claimed she “didn’t know” what Roberts and Kennedy were going to do. (Id.).

She subsequently heard gunfire over on Pine Street and wondered to herself, “What in

the world are they doing?” (Id. at 578). When asked by defense counsel why she did not -4-

just drive away, Jones responded: “I just—I don’t know. I was nervous, and I’m like if I

just leave them here in the south side with these ARs in the middle of the street after they

just did all this, they’re just gonna be mad at me too. It’s not like they don’t know where I

live, you know.” (Id. at 578).

{¶ 7} Jones testified that after the two men returned to the SUV, they directed her

to a location on South Center Boulevard. Jones claimed that the men pointed their

weapons at her when she told them to get out of her car. (Id. at 580). She testified that

she was scared and did not feel like she could escape. (Id.). When she got to the location

on South Center Boulevard, the two men exited the SUV again and proceeded to fire

shots at the second house. Defense counsel again inquired about why Jones did not drive

away when Roberts and Kennedy left her vehicle. She responded that she did not think

about driving away because she was “nervous” and “scared.” (Id. at 581). With regard to

the ensuing police pursuit, Jones testified that the two men directed her not to stop and

that she was afraid. (Id. at 582). When asked whether she could have escaped or gotten

away from the situation that night, Jones responded: “Even if I would have gotten away

then, they would have eventually caught up with me later.” (Id. at 587).

{¶ 8} On cross examination, Jones admitted lying to police about not knowing

Roberts and Kennedy and about them accosting her at gunpoint in a parking lot. (Id. at

588). With regard to the Pine Street shooting, she testified that the two men told her to

pull over on Lafayette Avenue and to stay there when they exited the car. Roberts and

Kennedy then disappeared into the darkness and were gone. (Id. at 604). Jones did not

drive away and did not call 911 despite having her cell phone with her. (Id. at 605).

Instead, she sat and waited while hearing “lots” of gunshots. At that point, she knew that -5-

the two men had “shot somebody up.” (Id.). Despite the fact that the two men had left her

car and gone down an alley to the next block over on Pine Street, where they fired

approximately thirty rounds, Jones explained that she did not drive away because she

was “scared” Roberts and Kennedy would come “find [her] after the fact because [she]

left them there.” (Id. at 607). Jones also claimed not to have known whether she had

“time” to pull away. (Id.).

{¶ 9} With regard to the second shooting, Jones testified that she parked around

the corner from the house on South Center Boulevard. (Id. at 609-610, 612). Roberts and

Kennedy then went out of her sight to the side of a house somewhere behind her. (Id. at

612). For the first time on cross examination, Jones asserted that on this occasion she

actually did try to pull away but was blocked by another car. (Id. at 614). Once again,

however, Jones did not call 911 despite having her cell phone with her. (Id. at 616). As

for the police pursuit that followed, Jones testified that Roberts and Kennedy would not

allow her to pull over and stop. (Id. at 621). Upon being stopped by police, Jones

acknowledged that she never asked for help and lied about what had happened. (Id. at

625). On redirect examination, Jones claimed she did not know whether Roberts and

Kennedy could see her on either occasion after they exited her SUV. (Id. at 630).

{¶ 10} Following Jones’ testimony, defense counsel rested and asked for a jury

instruction on the affirmative defense of duress. (Id. at 632-633). Defense counsel

requested the instruction on all counts except for the charge of improperly discharging a

firearm at or into the habitation on Pine Street.1 (Id. at 637-638). After hearing argument

1 Defense counsel argued that Jones was not guilty on that count because she did not know what Roberts and Kennedy were going to do until after she heard the gunfire. Therefore, the affirmative defense of duress did not apply to that count because Jones -6-

on the issue, the trial court overruled Jones’ motion for a duress instruction. It reasoned:

* * * [T]he duress defense necessitates a sense of present imminent,

immediate death or serious bodily harm, that the threat must remain. The

force or coercion used must remain constant, controlling the actor’s will for

the entire time, and the actor cannot safely withdraw from the escape—or

withdraw by escape.

Based on the testimony that the Court heard from the Defendant, it

does not appear to the Court that there was a continuous threat; although,

it could be argued that her fear was continuous because of threat. But at

that point, it was for fear of future harm; and it does appear from her

testimony that she did have means of reasonable escape.

In fact, the testimony regarding the incidents that occurred, which

has not been denied by the Defense, is that these people were a good

distance away from the car, in one instance from one street to another

street, parallel streets, to perform the act. So there does appear to have

been an ability to safely withdraw or escape from the immediate threat.

(Id. at 639-640).

{¶ 11} “Requested jury instructions should ordinarily be given if they are correct

statements of law, if they are applicable to the facts in the case, and if reasonable minds

might reach the conclusion sought by the requested instruction. * * * An appellate court

reviews a trial court’s refusal to give a requested jury instruction for abuse of discretion.”

(Citations omitted) State v. Adams,

,

,

,

simply denied committing the offense at all. -7-

¶ 240. This court addressed the defense of duress in State v. Longstreth, 2d Dist.

Montgomery No. 24287,

, as follows:

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,

.

Id. at ¶ 12.

{¶ 12} For a duress defense to be viable, “[t]he force and harm threatened must

be in praesenti; fear of future harm is not a sound basis for the defense of duress.” State

v. Hackley, 2d Dist. Montgomery No. 11407,

, *5 (Aug. 15, 1990), citing

State v. Good,

,

(10th Dist. 1960); see also State

v. Simes, 8th Dist. Cuyahoga No. 103672,

(“Fear of future harm is

not sufficient to prove the affirmative defense of duress. * * * Appellant’s fear that Towns

would ‘make good’ on his threat at some undetermined time in the future is insufficient to -8-

support a duress instruction.”). “The Ohio Supreme Court has made clear that the defense

of duress is ‘strictly and extremely limited in application and will probably be effective in

very rare occasions.’ ” State v. Zhang, 6th Dist. Wood No. WD-15-018,

, quoting State v. Cross,

,

(1979).

{¶ 13} With the foregoing standards in mind, we see no abuse of discretion in the

trial court’s refusal to give a duress instruction. As relevant here, the key components of

the duress defense were a threat of imminent death or serious bodily harm and an inability

to safely withdraw from the threat. Based on Jones’ own testimony, the trial court

reasonably concluded that she had a means of withdrawing or escaping from the threat

posed by Roberts and Kennedy. At a minimum, Jones could have driven away after she

parked on Lafayette Avenue and the two men exited her car and began shooting a block

away on Pine Street. The record reflects that Roberts and Kennedy fired numerous shots

at the house on Pine Street. Although Jones did not know precisely where the two men

were at that time, she would have known that they were not in her immediate vicinity, that

they were shooting at something else, and that she did not then face an imminent threat

of death or serious physical harm. Even if Jones subjectively believed that she faced such

an imminent threat while the two men were engaged in an active shooting a block away

in the darkness, her belief was not “objectively reasonable based on the evidence.”2

Longstreth at ¶ 12. Therefore, the trial court correctly declined to give a duress instruction.

{¶ 14} We recognize that it is perhaps a closer question whether Jones could

2 In any event, Jones made clear that her primary fear after Roberts and Kennedy left her alone in her SUV was that they later would find and kill her if she drove away. But even a reasonable fear of future harm is insufficient to support the affirmative defense of duress. See, e.g., Hackley at *5. -9-

reasonably have withdrawn or escaped in the middle of the failure to comply offense once

the police began chasing her vehicle. Dennis Kennedy and Aaron Roberts were back in

her vehicle at that time. But during her testimony about the chase she did not contend

that they made any specific threats, or pointed a gun, or threatened to shoot her. “I ran

the stop signs and red lights because the men had guns in my car that was telling me to

do so.” (Tr. at 619). She admitted, however, that she was drunk at the time (Id. at 619),

and “the whole situation caused serious risk and harm to everybody involved.” (Id. at 620).

The chase went from Springfield to South Charleston. When she looked in her mirror, she

saw “a lot” of police cars following her. Not only had she failed to leave the criminal activity

when opportunities were previously available, she failed to simply stop with multiple police

cars behind her. Under these circumstances the trial court did not abuse its discretion by

not separately giving a duress instruction for the failure to comply offense.

{¶ 15} Jones’ assignment of error is overruled, and the judgment of the Clark

County Common Pleas Court is affirmed.

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DONOVAN, J. and TUCKER, J., concur.

Copies sent to:

Andrew P. Pickering Christopher C. Green Hon. Richard J. O’Neill