[Cite as State v. Chafin,

.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2019 CA 00014 JASON CHAFIN : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County Court of Common Pleas, Case No. 2018CR377

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 20, 2019

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

KYLE WITT ANDREW SANDERSON Fairfield County Prosecutor Burkett & Sanderson, Inc. 239 West Main Street, Ste. 101 738 East Main Street Lancaster, OH 43130 Lancaster, OH 43130 Fairfield County, Case No. 2019 CA 00014 2

Gwin, P.J.

{¶1} Defendant-appellant Jason Chafin [“Chafin”] appeals his conviction and

sentence after a bench trial in the Fairfield County Court of Common Pleas.

Facts and Procedural History

{¶2} On June 10, 2018, 15-year-old L.L. went to work in the morning at a

Lancaster, Ohio restaurant. L.L. had a disagreement with her supervisor and left work.

L.L. could not reach her family and had no ride home. As L.L. walked home a Jimmy

John’s delivery driver, whom she did not know, offered her a ride. The delivery driver,

Chafin, told L.L. he had to make a delivery prior to dropping her off near her home. L.L.

agreed and got into Chafin’s red Honda automobile.

{¶3} As Chafin and L.L. rode toward the delivery drop off, Chafin told her his

name was Jason, asked how old she was, and inquired if anyone knew that she was

walking home alone. After making the delivery in the Dominion Homes subdivision, L.L.

recognized that Chafin was driving in the opposite direction from which they had entered

the subdivision. L.L. became fearful. After Chafin pulled away from the delivery location

and the car was in motion, Chafin asked L.L. if she "liked to flirt.” Chafin told L.L. that she

was pretty. After telling L.L. she was pretty, Chafin firmly grasped L.L.'s hand causing

her to jerk her hand away to break his grip. (1T. at 103-1051). L. L. demanded that Chafin

stop and pulled her hand away from his hand. (1T. 102, 106). When Chafin made no

attempt to stop, L.L. jumped from the car. (1T. 106, 107). L.L. suffered scratches to the

palms of her hand when she caught herself after the jump. L.L. testified that the car never

slowed down even after she jumped from the car. (1T. 114). In fact, L.L. testified that the

For clarity the Bench Trial that took place on March 11 and 12, 2019 will be referred to by Volume 1

and page number as “1T.” or “2T.” Fairfield County, Case No. 2019 CA 00014 3

car sped off after she had jumped. (1T. at 115). L.L. recalled that she had observed a

car seat, stickers and items affiliated with Jimmy John’s on Chafin and displayed on the

car. (1T. 114).

{¶4} Tracy Wentz, a resident of a subdivision built by Dominion Homes known

as "River Valley Highlands,” had contact with a neighbor of hers that is hard of hearing.

The neighbor brought L.L. over to Wentz's residence due to the communication

difficulties. Wentz observed that L.L. had been sobbing and was breathing heavily. L.L.

explained she had taken a ride from a delivery driver who had offered to give her a ride

home. Instead, during a delivery in Wentz's neighborhood, the driver had touched L.L.

and said things to her that caused L.L. to flee his car. Wentz sat with L.L. on her porch

until L.L.'s father arrived to pick her up.

{¶5} L.L.'s father, C. S. arrived at Wentz's home. Earlier that day C.S. had

dropped L.L. off to work in the morning. When C.S. picked up L.L., he learned that a male

Jimmy John’s delivery driver had scared his daughter and she jumped from the car. C.S.

immediately drove to the Jimmy John’s location where he asked about the delivery driver

and waited in front of the store. C.S., who is a large man, admitted he was angry but

never saw any male delivery driver pulled into the location while he waited for police. The

demeanor of C.S. caused the employees of Jimmy John’s to call 9-1-1.

{¶6} Breanna Richardson was the Jimmy John’s assistant manager on duty on

June 10, 2018 and was working with Chafin. Richardson encountered C.S. who arrived

at the store and made a threat to the delivery driver in the red car. Richardson called

both Lori Wood and Chafin after C.S. arrived. Lori Wood is Chafin’s mother. Jimmy

John’s also employed her on the date of the incident. Richardson told Chafin to park out Fairfield County, Case No. 2019 CA 00014 4

back when he arrived and to call her so she could let him in the back of the Jimmy John’s.

Chafin inquired what was wrong and Richardson told him, "Don't worry about it.”

Richardson also called Wood and told her to come in to work early as she would need a

driver and that the problem had something to do with Chafin. Richardson did not recall

telling Wood any details regarding the allegations in her phone call to Wood. Richardson

did not tell Chafin to remove or alter his Jimmy John’s work uniform or to park his car in

a different location.

{¶7} Valerie Gould was the general manager of the Jimmy John’s restaurant and

was involved in the process of hiring Chafin. During the hiring process, Gould ensured

that Chafin knew he must wear Jimmy John’s approved hat and shirt during working hours

and that his delivery vehicle was required to display the Jimmy John’s sign. The Jimmy

John’s driver policy banned drivers from picking up any passenger. Gould confirmed that

Jimmy John’s employs an order tracking system and that during the shift of Chafin on

June 10, 2018 he made two separate deliveries to a location of 2602 Two Ridge Avenue

in the Dominion Homes subdivision. Gould explained that Chafin remained employed

with Jimmy John’s after June 10, 2018 and had explained the situation to her as a

"misunderstanding."

{¶8} Lori Wood, Chafin’s mother, confirmed that she had received a phone call

from Richardson on June 10, 2018. Wood confirmed she, her son Chafin, and a daughter

were all employed at Jimmy John’s. Wood also confirmed that on the date of alleged

offense Chafin had told her not to worry because he had, "done nothing wrong.” (1T.

208). Wood was also questioned if she had any later conversations with her son about

the events during a recorded call with Detective Underwood. Specifically, within the call Fairfield County, Case No. 2019 CA 00014 5

Wood reported Chafin told her, "He said he had offered her a ride. He told her that he

had to make a delivery. She said that was fine. He made his deliver. He was on his way

out of the housing complex and she said she didn't feel comfortable. And he said to give

him a minute. He was pulling over to let her out and she tried to get out. And he didn't

want her to get hurt, so he tried to stop her from jumping out right before he stopped. And

she got out and he came back — he went on about his — went back to the store, got his

delivery. He made his delivery to the mall, and then I called him and stopped him from

going to Crestview.” (1T. 223-224). Although the context of the question from Detective

Underwood was, "Did you talk with Jason again?” Wood asserted at trial she had

received some of the information from another son, Kelly, who is a Morgan County

Sherriff’s deputy. (1T. at 243).

{¶9} On June 10, 2018 at approximately 12:21 p.m., Officer David Thompson of

the Lancaster Police Department responded to a dispatch for the Jimmy John’s restaurant

at 1804 Memorial Drive. He contacted L.L. and her father outside in front of the store.

Officer Thompson learned that L.L. was alleging something had occurred between her

and a male Jimmy John’s delivery driver. Officer Thompson observed that L.L. was visibly

shaken and had a slight injury to her hand. Officer Thompson entered the Jimmy John's

storefront looking for a male employee but seeing no males made contact with two female

employees. Officer Thompson learned that C.S. had previously entered the Jimmy John’s

and as a result, the female employees had called the male delivery driver on duty to return

to the store.

{¶10} When back up officers arrived, Officer Thompson walked behind the store

to see if he could locate the delivery vehicle described; but did not see the vehicle. Officer Fairfield County, Case No. 2019 CA 00014 6

Thompson later found that the male delivery driver, Chafin, had returned and contacted

him in the rear Jimmy John’s parking lot. Upon Officer Thompson's initial contact, Chafin

was found sitting in a black Jeep not fitting the description of the delivery vehicle and not

wearing any clothing identifying him as a Jimmy John’s employee.

{¶11} Officer Thompson later located Chafin's red Honda Civic parked in the back

lot of a Burger King restaurant in close proximity to the Jimmy John’s restaurant.

Thompson noted numerous things about the interior of the red Civic that matched the

description of the vehicle given by L.L. such as a distinctive sticker and a baby seat.

Although Officer Thompson did not initially know of any familial connections at the Jimmy

John’s, he was able to later determine that Chafin's mother and sister were also employed

at Jimmy John’s and had spoken with Chafin as he sat in the black Jeep behind Jimmy

John’s. Officer Thompson would later arrange to have the red Honda Civic towed and

was surprised to find that the red Honda had been moved from behind the nearby Burger

King to the back lot of Jimmy John’s. Chafin's mother, Lori Wood had possession of the

car keys. Police had not requested that anyone move the vehicle. The red Honda was

impounded with all contents left inside. Officer Thompson additionally canvassed nearby

locations of other potential witnesses and obtained the morning delivery receipts made

from Jimmy John’s.

{¶12} After the police identified Chafin as the delivery driver, he remained with

Officer Andrew Bennett, the second officer responding to the scene. Officer Bennett

learned from Jimmy John’s staff that Chafin was sitting in the parking lot behind the

restaurant. Officer Bennett was wearing an AXON body camera that captured much of Fairfield County, Case No. 2019 CA 00014 7

his conversation and interaction with Chafin. (1T. 296). Officer Bennett’s interactions

with Chafin were played during trial and made part of the record as State's Exhibit 11.

{¶13} During the video clip, Chafin can be observed sitting in a black Jeep and is

wearing nothing identifying him as a Jimmy John’s delivery driver. Chafin, who appears

upset and agitated, states several times that he had not picked up anyone in his delivery

car that day. Specifically, Chafin makes statements on the video such as: "I don't know

this person"; "I've never met this person."; 'Nothing happened."; "I will be countersuing.";

"It's one word against another. I've prosecuted several cases myself"; "There is no

evidence.” and, "There's no way to prove it. It's one against another."

{¶14} At around eight minutes into the video clip, Chafin's mother, Lori Wood

approaches Chafin and Officer Bennett. Wood inquires of Officer Bennett if the witness

(L.L.) has identified Chafin or his car. Officer Bennett responds he does not have that

level of information, to which, Chafin responds, "Nothing happened."

{¶15} Chafin never suggests that LL. was ever inside his vehicle. The closest

Chafin came to acknowledging he gave anyone a ride on June 10, 2018 is in the form of

a hypothetical he poses to Officer Bennett. Chafin asks, "Hypothetically, say I did give

her a ride it's still one person's word against another. There is no proof of anything that

happened so it's just going to get laughed the (expletive) out of court."

{¶16} Detective Bryan Underwood was the assigned follow-up detective for the

Chafin investigation. At the time for trial, he had been promoted to a sergeant's position.

(2T. 314). In addition to directing other investigative activities, Underwood checked

businesses near the subdivision for surveillance video. Underwood had been on the

scene at the Jimmy John’s restaurant on June 10, 2018 and had observed Chafin's Jimmy Fairfield County, Case No. 2019 CA 00014 8

John’s work clothing inside the red Civic. (2T. 322) (Exhibits 2A - 21). Detective

Underwood noted in his brief conversation with Chafin at the Jimmy John’s location on

June 10, 2018, Chafin asserted nothing had occurred. (2T. 324-325). Chafin later made

an utterance that he did not believe it to be against the law to give someone a ride.

Detective Underwood had Chafin photographed in the clothing he was found to be

wearing upon his initial officer contact. (2T. 328-329). Detective Underwood also met

with L.L. at the Lancaster Police station and photographed injuries on her hands. Several

days later L.L. would accompany Detective Underwood and the two would re-trace the

route L.L. asserted Chafin had taken inside the subdivision. (2T. 334,335). L.L. was able

to locate the point in the subdivision where she jumped from the car near two large rocks.

(2T. 345).

{¶17} Detective Underwood estimated the point where L.L. had left the vehicle to

be approximately 100 feet past the last stop sign. (2T. 347). Detective Underwood further

noted that no exits existed at the back (North) side of the neighborhood, which was the

direction that Chafin was traveling when L.L. jumped out. (2T. 353,354). However, the

following exchange occurred during the bench trial,

THE COURT: Okay. And then another follow-up question.

Can you exit onto Columbus Street by turning left there on

Winterbrook, as the Defendant has claimed to have done?

SERGEANT UNDERWOOD: You can; however, you must go -- you

must travel northbound onto Winterbrook Street clear to the very back of

the complex and then make a right. And, Your Honor, I do not have a

roadway name for you. But then that would continue on around to bring you Fairfield County, Case No. 2019 CA 00014 9

back around. There's a large circle. I think it's Green Meadows. That's the

large kind of circle that if you go around it, it'll weave back out.

THE COURT: Okay.

2T. at 347-348.

{¶18} At the conclusion of the evidence, the trial court convicted Chafin of the

lesser-included offense of Attempted Abduction in violation of R.C. 2923.02(A), a felony

of the fourth degree. The court found the evidence supported that Chafin had taken a

substantial step in committing the offense of Abduction.

{¶19} On April 1, 2019, Chafin was sentenced to five-year term of community

control sanctions with a local sanction of 60 days to be served in the county jail. The trial

court reserved an 18-month prison term in the event Chafin committed a violation

sufficient for the trial court to impose a prison term.

Assignment of Error

{¶20} Chafin raises one Assignment of Error,

{¶21} “I. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

OBTAINED WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO ESTABLISH

EACH AND EVERY ELEMENT OF THE OFFENSE IN QUESTION.”

Law and Analysis

{¶22} In his sole assignment of error, Chafin argues there is simply no evidence

that Chafin, at any time, exerted any force over L.L. or in any way threatened her in order

to restrain her liberty. [Appellant’s Brief at 6].

STANDARD OF APPELLATE REVIEW. Fairfield County, Case No. 2019 CA 00014 10

Sufficiency of the Evidence.

{¶23} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States,

,

,

(2013); Hurst v. Florida,

,

(2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker,

,

,

, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson,

,

,

, ¶13.

{¶24} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks,

,

(1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney,

,

,

. Thus, “on review for evidentiary sufficiency

we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if

believed, [the evidence] would convince the average mind of the defendant's guilt beyond

a reasonable doubt.’” State v. Murphy,

,

(2001),

quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We

will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could Fairfield County, Case No. 2019 CA 00014 11

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer,

,

,

, ¶ 94, quoting State v. Dennis,

,

(1997); State v. Montgomery,

, 2016-Ohio-

5487,

.

ISSUE FOR APPEAL

{¶25} A. Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, if believed, would convince the average mind of Chafin's guilt

on each element of the crime of Attempted Abduction beyond a reasonable doubt.

{¶26} Chafin was conviction of attempted abduction. R.C. 2905.02, Abduction,

states,

(A) No person, without privilege to do so, shall knowingly do any of

the following:

(1) By force or threat, remove another from the place where the other

person is found;

(2) By force or threat, restrain the liberty of another person under

circumstances that create a risk of physical harm to the victim or place the

other person in fear;

(3) Hold another in a condition of involuntary servitude.

(B) No person, with a sexual motivation, shall violate division (A) of

this section.

{¶27} R.C. 2093.02 defines “Attempt” as follows,

(A) No person, purposely or knowingly, and when purpose or

knowledge is sufficient culpability for the commission of an offense, shall Fairfield County, Case No. 2019 CA 00014 12

engage in conduct that, if successful, would constitute or result in the

offense.

(B) It is no defense to a charge under this section that, in retrospect,

commission of the offense that was the object of the attempt was either

factually or legally impossible under the attendant circumstances, if that

offense could have been committed had the attendant circumstances been

as the actor believed them to be.

(C) No person who is convicted of committing a specific offense, of

complicity in the commission of an offense, or of conspiracy to commit an

offense shall be convicted of an attempt to commit the same offense in

violation of this section.

(D) It is an affirmative defense to a charge under this section that the

actor abandoned the actor's effort to commit the offense or otherwise

prevented its commission, under circumstances manifesting a complete

and voluntary renunciation of the actor's criminal purpose.

{¶28} The Ohio Supreme Court has held that a criminal attempt occurs when the

offender commits an act constituting a substantial step towards the commission of an

offense. State v. Woods,

,

(1976), paragraph one of

the syllabus, overruled in part by State v. Downs (1977),

,

; See also, State v. Ashbrook, 5th Dist. No.2004-CA-00109,

,

reversed on other grounds and remanded for re-sentencing pursuant to State v. Foster,

,

; In re: Ohio Criminal Sentencing Statutes Cases,

,

. In defining substantial step, the Woods’ Court indicated Fairfield County, Case No. 2019 CA 00014 13

that the act need not be the last proximate act prior to the commission of the offense.

. However, the act "must be strongly corroborative of

the actor's criminal purpose.”

at paragraph one of the syllabus. This test “properly

directs attention to overt acts of the defendant which convincingly demonstrate a firm

purpose to commit a crime, while allowing police intervention, based upon observation of

such incriminating conduct, in order to prevent the crime when the criminal intent

becomes apparent.”

,

. In other words, a substantive

crime would have been committed had it not been interrupted.

{¶29} R.C. 2923.02(D) provides that: "[i]t is an affirmative defense to a charge

under this section that the actor abandoned his effort to commit the offense or otherwise

prevented its commission, under circumstances manifesting a complete and voluntary

renunciation of his criminal purpose." However, the abandonment must be "complete"

and "voluntary" in order to exculpate a defendant. Where one abandons an attempted

crime because he fears detection or realizes that he cannot complete the crime, the

"abandonment" is neither "complete" nor "voluntary.” Woods, at

.

{¶30} Precisely what conduct will be held to be a substantial step must be

determined by evaluating the facts and circumstances of each particular case. State v.

Group,

,

,

, 996.

{¶31} The intent with which an act is committed may be inferred from the act itself

and the surrounding circumstances, including acts and statements of a defendant. State

v. Garner,

,

,

; State v. Wallen,

,

(5th. Dist. 1969). Fairfield County, Case No. 2019 CA 00014 14

{¶32} If there is any substantial evidence to support the decision of the trial court,

we must affirm such decision. In re Tilton,

, 577,

(1954).

We are not permitted to substitute our judgment for that of the trial court, even if we were

disposed to do so. Trickey v. Trickey,

, 14,

(1952).

{¶33} In finding Chafin had commit a substantial step toward the commission of

the crime of abducting, the trial court noted as follows,

So you've got these comments. The Defendant has this

impressionable 15-year old. Holly smokes, when you look at the personality

of the 15-year old, she is extremely backward, extremely backward,

extremely impressionable, and extremely vulnerable. She is socially

awkward. And for a person to make advances on someone like that makes

him even more so of a predator type.

The other thing that the Court sees is that the Defendant could have

easily left Two Ridge after his delivery and made a right-hand turn. As I look

at State's Exhibit 15, he could have turned east on Two Ridge. And instead

of going north at the very next turn, he could have gone south, which would

have taken him into a central loop for direct exit onto North Columbus

Street. And as a pizza delivery person that's been engaged -- or subs,

delivery of subs for the last four months, he should have strong knowledge

of this particular area. Instead, he turned left instead of right, and this took

him even further away from taking this victim back to where she wanted to

go.

*** Fairfield County, Case No. 2019 CA 00014 15

This Court is going to find an attempt to commit abduction under the

circumstances. The Court believes that there was a substantial act in

furtherance of an abduction.

The substantiality of the act is confirmed by the Defendant -- sorry -

- the complaining witness' young age, her vulnerability, the Defendant's

advances, verbal advances upon the 15-year old, the fact that he was

moving in a direction going against her desired direction.

The complaining witness had given him the privilege only to deliver

this one take-out order, delivery order, and the Defendant, by going in the

wrong direction and by making an advance, both verbally and even

physically by attempting to touch the complaining witness' hand, that this

was an attempt to abduct.

So the Court is finding that the Defendant, in Fairfield County, on or

about June 10th, 2018, going beyond the privilege that was afforded him,

did attempt, by force or threat -- mostly by force -- to restrain the liberty of

[L.L.], under circumstances that did create a risk of physical harm to her.

She felt that she needed to jump out of a moving vehicle. He injured her

left hand. And this also caused her to be in fear that something bad was

coming around the corner. She was leaving the vehicle in order to minimize

the potentialities of evil that might be forthcoming.

2T. at 426-429.

{¶34} In a case involving the element of “force” with respect to the crime of

robbery, this Court has observed, Fairfield County, Case No. 2019 CA 00014 16

The use of force element is satisfied “if the fear of the alleged victim

was of such a nature as in reason and common experience is likely to

induce a person to part with property against his will and temporarily

suspend his power to exercise his will by virtue of the influence of the terror

impressed.” State v. Davis (1983),

,

. The

test for force is objective and relies on the totality of the circumstances.

State v. Habtemariam (1995),

,

. A

victim’s fear of harm must be objectively reasonable under the

circumstances. State v. Bush (1997),

,

{¶35} After review of the record in this case as set forth above, and viewing the

totality of the circumstances, we find that the evidence supports a finding under the

objective test that L.L.’s fear of harm was objectively reasonable.

{¶36} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Chafin had committed the crime of Attempted Abduction.

{¶37} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Attempted Abduction and, accordingly, there was sufficient

evidence to support Chafin’s conviction.

{¶38} Chafin’s sole assignment of error is overruled. Fairfield County, Case No. 2019 CA 00014 17

{¶39} The judgment of the Fairfield Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur