source: Caselaw Access Project

license: Public Domain

text:
    Lilian HAIRSTON, etc., Appellant, v. LIBERTY BEHAVIORAL MANAGEMENT CORPORATION et al., Respondents.
    Motion No. 2018-181
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    IGS REALTY CO., L.P., Respondent, v. James H. BRADY, Appellant.
    2018-83
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cuadrado v. New York City Tr. Auth., 14 N.Y.3d 748, 898 N.Y.S.2d 80, 925 N.E.2d 83 [2010] [lv dismissed] ).


text:
    In the MATTER OF LACEE L., etc.
    Stephanie L., Appellant; v. Administration for Children's Services, Respondent,
    Dekodia L., Respondent.
    2018-380
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for poor person relief granted.


text:
    In the Matter of Marek HYRA, Appellant, v. Thomas J. JACOBELLIS, etc., et al., Respondents.
    Court of Appeals of New York.
    Decided April 26, 2018
    Appeal dismissed without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The PEOPLE etc., Respondent, v. Lionel CHRISTIAN, Appellant.
    Motion No: 2018-85
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for leave to appeal dismissed upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5602 ; CPL 450.90 ).


text:
    Dawn MOSBY, Appellant, v. Matthew G. PARILLA, etc., Respondent.
    Motion No: 2018-184
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for reargument of motion for leave to appeal denied [see 30 N.Y.3d 1083, 69 N.Y.S.3d 850, 92 N.E.3d 1240 (2018) ].


text:
    In the MATTER OF LEAH VV. et al., etc.
    Sullivan County Department of Family Services, Respondent; v. Theresa WW., Appellant.
    Motion No: 2018-183
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the MATTER OF Matthew Joseph MANN, an Attorney.
    Attorney Grievance Committee for the Third Judicial Department, Respondent; v. Matthew Joseph Mann, Appellant.
    Court of Appeals of New York.
    Decided April 26, 2018
    Appeal dismissed without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The PEOPLE etc., Appellant, v. Brian HAKES, Respondent.
    Motion No. 2018-351
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion by New York State Defenders Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    The PEOPLE etc., Respondent, v. Rong HE, Appellant.
    Motion No: 2018-403
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for assignment of counsel granted and Paul Skip Laisure, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of the PEOPLE etc., Appellant, v. Conrado JUAREZ, Defendant.
    Frances Robles, Nonparty Respondent.
    2018-361
    Court of Appeals of New York.
    April 26, 2018
    Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. The brief must be submitted in digital format within seven days.


text:
    The PEOPLE etc., Respondent, v. Alexis SANCHEZ, Appellant.
    Motion No: 2018-402
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for assignment of counsel granted and Richard Wojszwilo, Esq., 11 Park Place, Suite 903, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The PEOPLE etc., Respondent, v. Charles D. STRAUSS, Appellant.
    Motion No: 2018-376
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The PEOPLE etc., Respondent, v. Agape A. TOWNS, Appellant.
    2018-375
    Court of Appeals of New York.
    April 26, 2018
    Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, NY 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The PEOPLE etc., Respondent, v. Omar XOCHIMITL, Appellant.
    2018-425
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion by Make the Road New York et al. for leave to file a submission amici curiae on the appeal herein granted and the proposed submission is accepted as filed. The submission must be submitted in digital format within seven days.


text:
    In the Matter of Sitara SALEEM, Appellant, v. Waqar Ahmed CHAUDHRY, Respondent.
    (And Another Proceeding)
    Motion No.: 2018-203
    Court of Appeals of New York.
    Decided April 26, 2018
    Motion for leave to appeal dismissed upon the ground that no motion for leave to appeal lies from an Appellate Division order dismissing an appeal from a decision (see CPLR 5602 ).


text:
    QUEENS BRANCH OF the BHUVANESHWAR MANDIR, INC., et al., Respondents, v. Jagraine SHERMAN, et al., Appellants.
    Court of Appeals of New York.
    Decided April 26, 2018
    Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The PEOPLE etc. EX REL. Robert JONES, Appellant, v. William LEE, etc., Respondent.
    Court of Appeals of New York.
    April 26, 2018
    Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    John ABBOTT, etc., Respondent, v. Monica JOHNSON, et al., Defendants,
    YBG Construction of N.Y., LLC et al., Appellants,
    Fox United, Inc., Respondent.
    Motion No: 2018-115
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed so much of the Supreme Court order as denied the motion of YBG Construction of N.Y., LLC and Bushwick Realty II, LLC for summary judgment dismissing the complaint insofar as asserted against them, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Maher ABDELQADER, Respondent, v. Anwar ABDELQADER, et al., Appellants.
    2018-148
    Court of Appeals of New York.
    May 1, 2018
    Motion, insofar as Anwar Abdelqader seeks leave to appeal from so much of the Appellate Division order as affirmed the April 2016 Supreme Court order granting the CPLR 5206(e) petition insofar as asserted against him, denied; motion, insofar as made by Mayson Zaben and Nashat Abdelqader for leave to appeal from that portion of the Appellate Division order that dismissed their appeals from the April 2016 Supreme Court order denying the CPLR 5206(e) petition as against them and granting the petition insofar as asserted against Anwar Abdelqader, dismissed upon the ground that, as to that portion of the order, they are not parties aggrieved (see CPLR 5511 ); motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order do not finally determine the proceeding within the meaning of the Constitution.


text:
    Joseph ADAMO, et al., Appellants, v. CITY OF ALBANY, Respondent.
    Motion No: 2018-157
    Court of Appeals of New York.
    Decided May 1, 2018
    On the Court's own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601 ).
    Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements.


text:
    Jo-Louise BAKER, Respondent, v. John A. LISCONISH, Respondent,
    Santo Heating and Air Conditioning, Inc., Appellant.
    Motion No: 2018-216
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Larell FOWLER, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents.
    Motion No: 2018-200
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Fred HUTZENLAUB, Appellant, v. Donald VENETTOZZI etc., et al., Respondents.
    2018-235
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for reconsideration of this Court's January 9, 2018 dismissal order denied [see 30 N.Y.3d 1047, 69 N.Y.S.3d 575, 92 N.E.3d 798 (2018) ].


text:
    The PEOPLE etc. EX REL. Michael J. HILL, Appellant, v. NIAGARA COUNTY DISTRICT ATTORNEY, Respondent.
    2018-309
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for leave to appeal dismissed upon the ground that no appeal lies from an order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602 ).
    Motion for poor person relief dismissed as academic.


text:
    In the MATTER OF Alex H. PIERRE, etc., an Attorney.
    Attorney Grievance Committee for the First Judicial Department, Respondent; v. Alex H. Pierre, Appellant.
    Motion No: 2018-265
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for leave to appeal dismissed upon the ground that it is untimely (see CPLR 5513[b] ). Motion for poor person relief etc. dismissed as academic.


author: Judge Fahey took no part.

text:
    In the Matter of G. Steven PIGEON, Appellant, v. Donald F. CERIO, Jr., etc. et al., Respondents.
    2018-253
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.
   Judge Fahey took no part.


text:
    Saphyre REDFORD, also known as Crystal Biton, Appellant, v. Wilmer Hill GRIER, Respondent.
    Motion No. 2018-214
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for leave to appeal dismissed upon the ground that this Court does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b][7]; CPLR 5602[a] ).


author: Judge Feinman took no part.

text:
    RISK CONTROL ASSOCIATES INSURANCE GROUP, Appellant, v. MALOOF, LEBOWITZ, CONNAHAN & OLESKE, P.C., et al., Respondents.
    2018-241
    Court of Appeals of New York.
    May 1, 2018
    Motion for reargument of motion for leave to appeal denied [see 30 N.Y.3d 1056, 69 N.Y.S.3d 585, 92 N.E.3d 808 (2018) ].
   Judge Feinman took no part.


text:
    In the Matter of Kathy RUMPLE et al., Respondents, v. Aaron POWELL, Appellant.
    Motion No. 2018-308
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.
    Motion for poor person relief dismissed as academic.


text:
    Joseph A.F. SADOWSKI, Appellant, v. David W. HARMON, Respondent;
    Wendy K. Cardali, Nonparty-Respondent.
    Motion No: 2018-233
    Court of Appeals of New York.
    Decided May 1, 2018
    Motion for reargument denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic. Motion for ancillary relief dismissed upon the ground that this Court does not have jurisdiction to entertain it (see NY Const, art VI, § 3 ).


text:
    In the Matter of NONHUMAN RIGHTS PROJECT, INC., ON BEHALF OF TOMMY, Appellant, v. Patrick C. LAVERY, et al., Respondents.
    In the Matter of Nonhuman Rights Project, Inc., on Behalf of Kiko, Appellant, v. Carmen Presti et al., Respondents.
    Motion No. 2018-268
    Court of Appeals of New York.
    Decided May 8, 2018
    Elizabeth S. Stein, New Hyde Park, for appellant.
    Patrick C. Lavery, respondent pro se.
    Center for Constitutional Rights, New York City (Rachel A. Meeropol of counsel), for Center for Constitutional Rights, amicus curiae.
    Mary Jean Mezzina, Baldwin, for Kristin Andrews and others, amici curiae.
    Spencer Lo, Brooklyn, for Justin Marceau and others, amici curiae.
    Spencer Lo, Brooklyn, for Laurence H. Tribe, amicus curiae.
    OPINION OF THE COURT
   MEMORANDUM.

Motion for leave to appeal denied.

Concur: Chief Judge DIFIORE and Judges RIVERA, FAHEY, GARCIA and WILSON, Judge FAHEY in an opinion. Judges STEIN and FEINMAN taking no part.

FAHEY J. (concurring).

The inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas is on display in this matter.

In these habeas corpus proceedings brought by petitioner Nonhuman Rights Project on behalf of Tommy and Kiko, two captive chimpanzees, petitioner seeks leave to appeal from an order of the Appellate Division, First Department affirming two judgments of Supreme Court declining to sign orders to show cause to grant the chimpanzees habeas relief. The adult chimpanzees, according to the habeas petition, have been confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area, respectively.

If this Court were to grant petitioner leave to appeal, I would be most likely to vote to affirm pursuant to CPLR 7003(b) (Successive petitions for writ). Accordingly, I concur in the Court's decision to deny leave.

However, I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner's claims. The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing?

"A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his [or her] behalf ... may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance" ( CPLR § 7002[a] ). The lower courts in this appeal and related cases, in deciding that habeas corpus is unavailable to challenge the legality of the chimpanzees' confinement, rely in the first instance on dictionary definitions. The habeas corpus statute does not define "person," but dictionaries instruct us that the meaning of the word extends to any "entity ... that is recognized by law as having most of the rights and duties of a human being" (Black's Law Dictionary [10th ed 2014], person [3]; see also e.g. Oxford English Dictionary, http://www.oed.com [last accessed May 4, 2018], person [7] ["An individual ... or corporate body ... recognized by the law as having certain rights and duties"] ).

The Appellate Division then reasoned that chimpanzees are not persons because they lack "the capacity or ability ... to bear legal duties, or to be held legally accountable for their actions" ( Matter of Nonhuman Rights Project, Inc. v. Lavery , 152 A.D.3d 73, 78, 54 N.Y.S.3d 392 [1st Dept. 2017] ; see also People ex rel. Nonhuman Rights Project, Inc. v. Lavery , 124 A.D.3d 148, 152, 998 N.Y.S.2d 248 [3d Dept. 2014], lv denied 26 N.Y.3d 902, 2015 WL 5125518 [2015] [stating that chimpanzees "cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions"] ). Petitioner and amici law professors Laurence H. Tribe, Justin Marceau, and Samuel Wiseman question this assumption. Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one's infant child (see People ex rel. Wehle v. Weissenbach , 60 N.Y. 385 [1875] ) or a parent suffering from dementia (see e.g. Matter of Brevorka ex rel. Wittle v. Schuse , 227 A.D.2d 969, 643 N.Y.S.2d 861 [4th Dept. 1996] ). In short, being a "moral agent" who can freely choose to act as morality requires is not a necessary condition of being a "moral patient" who can be wronged and may have the right to redress wrongs (see generally Tom Regan, The Case for Animal Rights 151-156 [2d ed 2004] ).

The Appellate Division's conclusion that a chimpanzee cannot be considered a "person" and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species (see Nonhuman Rights Project, Inc. , 152 A.D.3d at 78, 54 N.Y.S.3d 392 [stating that petitioner's argument "that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights... ignores the fact that these are still human beings, members of the human community"] ). I agree with the principle that all human beings possess intrinsic dignity and value, and have, in the United States (and territory completely controlled thereby), the constitutional privilege of habeas corpus, regardless of whether they are United States citizens (see Boumediene v. Bush , 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 [2008] ), but, in elevating our species, we should not lower the status of other highly intelligent species.

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-Awareness and self-Control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by self-Initiating intentional, adequately informed actions, free of controlling influences (see Tom L. Beauchamp, Victoria Wobber, Autonomy in chimpanzees , 35 Theoretical Medicine and Bioethics 117 [2014]; see generally Jane Goodall, The Chimpanzees of Gombe: Patterns of Behavior 15-42 [1986] ).

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect (see generally Regan, The Case for Animal Rights 248-250).

The Appellate Division's approach to these proceedings is mistaken in another respect. Petitioner seeks the transfers of the chimpanzees to a primate sanctuary, rather than the wild. The Appellate Division held that habeas relief was properly denied, because petitioner "does not challenge the legality of the chimpanzees' detention, but merely seeks their transfer to a different facility" (Nonhuman Rights Project, Inc. , 152 A.D.3d at 79, 54 N.Y.S.3d 392; see also Matter of Nonhuman Rights Project, Inc. v. Presti , 124 A.D.3d 1334, 1335, 999 N.Y.S.2d 652 [4th Dept. 2015], lv denied 26 N.Y.3d 901, 2015 WL 5125507 [2015] ). Notably, the Appellate Division erred in this matter, by misreading the case it relied on, which instead stands for the proposition that habeas corpus can be used to seek a transfer to "an institution separate and different in nature from the ... facility to which petitioner had been committed," as opposed to a transfer "within the facility" ( People ex rel. Dawson v. Smith , 69 N.Y.2d 689, 691, 512 N.Y.S.2d 19, 504 N.E.2d 386 [1986] ). The chimpanzees' predicament is analogous to the former situation, not the latter.

The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a "person" or relegated to the category of a "thing" amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be treated as a simple either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.

In the interval since we first denied leave to the Nonhuman Rights Project (see 26 N.Y.3d 901, 2015 WL 5125507 [2015] ; 26 N.Y.3d 902, 2015 WL 5125518 [2015] ), I have struggled with whether this was the right decision. Although I concur in the Court's decision to deny leave to appeal now, I continue to question whether the Court was right to deny leave in the first instance. The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a "person," there is no doubt that it is not merely a thing.


author: GARCIA, J. (dissenting).

text:
    In the Matter of MARINE HOLDINGS, LLC, LLC, Doing Business as Marine Terrace Associates, LLC, et al., Respondents, v. NEW YORK CITY COMMISSION ON HUMAN RIGHTS, Appellant, et al., Respondent.
    No. 45
    Court of Appeals of New York.
    Decided May 8, 2018
    Zachary W. Carter, Corporation Counsel, New York City (MacKenzie Fillow, Richard Dearing and Devin Slack of counsel), for appellant.
    Herrick Feinstein LLP, New York City (Avery S. Mehlman, Jonathan L. Adler and Scott C. Ross of counsel), for respondents.
    Jeanette Zelhof, Mobilization for Justice, Inc., New York City (Leah Goodridge of counsel), for Mobilization for Justice, Inc., and others, amici curiae.
    Disability Rights New York, Albany (Simeon Goldman and Sara Liss of counsel), for Disability Rights New York, amicus curiae.
    Cuti Hecker Wang LLP, New York City (Mariann Meier Wang of counsel), for Cuti Hecker Wang LLP and others, amici curiae.
    OPINION OF THE COURT
   MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

In this proceeding pursuant to Administrative Code of the City of New York § 8-123 and CPLR article 78, petitioners challenge a determination of the New York City Commission on Human Rights ordering them to install a wheelchair-accessible entrance to an apartment by converting a window into a doorway and installing a ramp (see Administrative Code of the City of New York § 8-107[15][a] ). The issue we must resolve is whether the Commission's conclusion that petitioners failed to meet their burden of proving undue hardship is "supported by substantial evidence on the record considered as a whole" (Administrative Code of the City of New York § 8-123[e]; see also CPLR 7803[4] [article 78 proceeding may raise the question "whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence"] ).

Petitioners claim that the requested accommodation would cause undue hardship in the conduct of their business (see NYC Administrative Code § 8-102[18] ) because it would be structurally infeasible. Contrary to petitioners' contention, the question before the Court is not whether "there is substantial evidence ... that the requested accommodation is structurally infeasible." Rather, it is the Commission's determination to which we must apply the "substantial evidence" standard of review. In light of the Commission's ruling in favor of respondents and because petitioners have the burden of demonstrating undue hardship (see id. ), the issue is whether there is substantial evidence to support the Commission's conclusion that petitioners failed to carry that burden.

"Quite often there is substantial evidence on both sides" of an issue disputed before an administrative agency ( Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 500, 922 N.Y.S.2d 249, 947 N.E.2d 140 [2011] ), and the substantial evidence test "demands only that a given inference is reasonable and plausible, not necessarily the most probable" ( id. at 499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [internal quotation marks and citation omitted] ). Applying this standard, "[c]ourts may not weigh the evidence or reject [a] determination where the evidence is conflicting and room for choice exists" ( Matter of State Div. of Human Rights (Granelle), 70 N.Y.2d 100, 106, 517 N.Y.S.2d 715, 510 N.E.2d 799 [1987] ). Instead, "when a rational basis for the conclusion adopted by the [agency] is found, the judicial function is exhausted. The question, thus, is not whether [the reviewing court] find[s] the proof ... convincing, but whether the [agency] could do so" ( id. [citations omitted] ).

The Commission considered evidence presented at the hearing that petitioners had carried out a window-to-door conversion elsewhere in petitioners' residential complex, similar to that proposed as a feasible reasonable accommodation by an architect retained by petitioners and by an architect who testified for respondents. No evidence was presented that this prior window-to-door conversion had imposed any hardship on petitioners, and substantial evidence supports the determination that petitioners did not prove that the proposed conversion would require alterations significantly different from the previous one. The Commission could rationally conclude that petitioners failed to carry their burden of proving that the proposed accommodation would cause undue hardship in the conduct of their business.

To the extent reviewable, we conclude that the Commission's determination should not otherwise be disturbed.

GARCIA, J. (dissenting).

Petitioners proved that the requested accommodation-converting a window to a door and installing a ramp-would create an undue hardship. Nothing in the record-certainly no "substantial evidence"-supports the New York City Commission on Human Rights' conclusion to the contrary. Accordingly, I dissent and would affirm the order of the Appellate Division.

Petitioners' tenant is unable to enter or leave her apartment without being carried. She asked petitioners to install a wheelchair-accessible entrance to her unit, and contacted the Commission. Two Commission employees-not engineers-visited the property and, after seeing a window-to-door conversion at petitioners' management office, located in a separate building in the same apartment complex, suggested that a similar accommodation could be made for the tenant. The Commission informed petitioners after this visit that the tenant was entitled to a disability accommodation under the City Human Rights Law (Administrative Code of the City of New York § 8-101 et seq. ).

Petitioners then hired an architect, who performed a feasibility study that concluded that the construction required to implement this solution would be "quite involved" but "technically feasible." After the tenant filed a formal complaint, petitioners hired a structural engineer to examine the Commission's proposed accommodation. The structural engineer found that the accommodation would cause a "slew of structural issues" and that the building might need to be evacuated.

The Commission then issued a probable cause determination that petitioners had discriminated against the tenant by failing to provide a reasonable accommodation for her disability. A hearing was held before an ALJ, at which petitioners and the Commission presented witnesses and exhibits. Petitioners' structural engineer testified, explaining the complex installation process for the proposed ramp and the issues that would result. He also described how the ramp in the neighboring building differed from that proposed for the tenant's apartment because the other building had a crawl space instead of a basement, because the distance between the proposed door and sidewalk was shorter, and because there were gas lines below the tenant's apartment. The Commission relied on the opinion of its architect, on the feasibility study conducted by petitioners' architect, and on the fact of the prior accommodation at the management office building. The Commission's architect submitted a letter stating that a "preliminary visual analysis" demonstrated that the modification appeared feasible and that the structural engineer's report on behalf of petitioners was "slightly alarmist." He drafted this opinion before visiting the site, but did not alter it after an inspection. Evidence at the hearing showed that the Commission's investigator was involved in the drafting of the architect's opinion and required him to insert the sentence stating that the accommodation "appear[ed] feasible at this time based on our preliminary visual analysis."

Following the hearing, the ALJ issued a report and recommendation finding that petitioners "did not discriminate against [the tenant] by their failure to provide the [proposed accommodation], because it would create an undue hardship to do so." In the ALJ's thorough opinion, she reviewed the qualifications of the experts, the time they spent on examining the accommodation, and the materials they relied on in coming to their determinations. She fully credited the structural engineer's report and testimony on petitioners' behalf and noted that the Commission did not present the testimony of a structural engineer. She found that only petitioners' expert was qualified to assess the structural feasibility and that the Commission's inspection was cursory. With respect to the prior accommodation at the management office, she noted that there was an "utter absence of evidence on how that modification was performed," and that "[t]he supposition and speculation offered by the Commission are not evidence." Accordingly, she found that petitioners had met their burden of showing that the accommodation would pose an undue hardship.

The Commission, now in the role of decision-making authority, issued a decision and order rejecting the ALJ's report and recommendation and finding that petitioners did not prove undue hardship. The Commission held that the ALJ, "[d]espite her explicit recognition of [petitioners'] burden under the Code, and despite acknowledging [the appropriate] binding precedent, ... clearly applied a burden-shifting analysis" and improperly held that the Commission's evidence "did not effectively contradict" petitioners' expert. After using this basis to reject the ALJ's findings, the Commission found that "the expert witnesses, including [petitioners'] expert, and the architect that [petitioners] hired specifically to provide [a] feasibility report agreed that the window-to-door conversion and ramp installation could be done " (emphasis added). Next, the Commission found that petitioners "failed to rebut the inference that [the tenant's] building could be modified in the same manner as the management building." Although petitioners' structural engineer had presented evidence of significant differences between the tenant's building and the management office building, the Commission determined that the expert's "observations concerning the layout of the gas and electric lines beneath the management office are simply irrelevant and of no value whatever, especially in light of [petitioners'] burden to prove undue hardship." Accordingly, the Commission held that "[v]iewing the record in light of [petitioners'] affirmative and unchanging burden to prove undue hardship, as we must under the express terms of the Code, the Commission finds that [petitioners] failed to carry that burden ... [and that] the evidence in the record does not establish undue hardship." As a result, the Commission ruled that petitioners had discriminated against the tenant and were required to make the proposed modification. The Commission also imposed a "civil penalty" of $125,000.

In response, petitioners brought this proceeding challenging the Commission's determination as arbitrary and capricious, an abuse of discretion, and affected by errors of law. Supreme Court denied the petition in part, concluding that the Commission's "determination that [petitioners] did not establish the affirmative defense of undue hardship based upon structural infeasibility is supported by substantial evidence in the record." Supreme Court noted that

"[the structural engineer] testified that the proposed construction would require evacuation of the Politis apartment, as well as the adjacent apartment and two apartments above the Politises, for approximately three months. In addition, he stated that the proposed construction would require that the gas lines to the building, which provide heat, hot water and cooking gas, to be shut off. Petitioners, however, presented no evidence of ... how such a project would impact their business of renting and managing an apartment complex " (emphasis added).

The Appellate Division reversed, insofar as appealed from by petitioners, holding that the petition "should have been granted in its entirety" because "the record did not contain any substantial evidence rebutting the petitioners' showing that it would be structurally infeasible to install a handicapped accessible entrance to [the tenant's] apartment." ( 137 A.D.3d 1284, 1286, 28 N.Y.S.3d 711 [2d Dept. 2016] ).

The Commission argues to this Court that the Appellate Division applied the "wrong standard"-forcing the Commission to "rebut" evidence when it has no such burden. It is clear, however, that despite the choice of words, the Appellate Division meant only that petitioner had met its initial burden of proving undue hardship and that no substantial evidence in the record contradicted this showing. I believe the Appellate Division was correct.

The Administrative Code of the City of New York requires that landlords make reasonable accommodations for tenants with disabilities (see Administrative Code of the City of New York § 8-107[15] ). A "reasonable accommodation" is one that "shall not cause undue hardship in the conduct of the covered entity's business. The covered entity shall have the burden of proving undue hardship" (id. § 8-102[18] ). The Commission has broad and virtually unfettered power with respect to enforcement of the City Human Rights Law, including the authority to impose civil penalties (see Administrative Code of the City of New York § 8-127), issue subpoenas (see id. § 8-105[5][a] ), and impose criminal penalties (see id. § 8-129). Indeed, its already formidable statutory powers are to be "construed liberally for the accomplishment of the uniquely broad" purposes of the statute. (id. § 8-130 [a] ).

A party aggrieved by a final order of the Commission can obtain judicial review, but the Commission's determination is ''conclusive if supported by substantial evidence on the record considered as a whole" (id. § 8-123[e]; see CPLR 7803[4] ). "[S]ubstantial evidence" exists "when the proof is so substantial that from it an inference of the existence of the fact found may be drawn reasonably" ( 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 179, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] [internal quotation marks omitted] ). "A court reviewing the substantiality of the evidence upon which an administrative agency has acted exercises a genuine judicial function and does not confirm a determination simply because it was made by such an agency" ( id. at 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ).

The record demonstrates that the Appellate Division properly held that the Commission's decision was not supported by substantial evidence and that the majority's holding to the contrary is incorrect. The Commission relied on two points in rejecting the ALJ's determination and deciding that the position it advocated for in the earlier proceeding was in fact correct: first, that the experts agreed that the window-to-door conversion and ramp installation "could be done;" and second, because the management building was successfully modified in this manner, and is constructed of the same material as the tenant's building, the same conversion in the tenant's building is structurally feasible. Relying on these conclusions, the Commission found petitioners would not suffer undue hardship by providing the requested accommodation.

As to the first basis for its finding, the Commission applied an improper standard-namely, whether the accommodation "could be done." The correct inquiry is not whether the work is theoretically possible. An accommodation need not be physically impossible to cause an undue hardship, because most accommodations are theoretically possible-indeed, it is "possible" for petitioners to construct an entirely new building to accommodate the tenant. Instead, the reasonable accommodation standard requires an examination of whether the accommodation will "cause undue hardship in the conduct of the covered entity's business" ( N.Y.C Admin Code § 8-102[18] ). That all experts agreed that the work "could be done" is in no way dispositive. When the proper standard is applied, it is evident that petitioners' business, that of providing housing to its tenants, will suffer an undue hardship from this accommodation, as there is a possibility that neighbors will be displaced, that neighboring apartments will be harmed, that the building may be structurally degraded, and that gas lines could be ruptured. The Commission has conceded that such disruptions, if they were to occur, would "probably" satisfy the petitioner's burden of demonstrating undue hardship.

With respect to the Commission's second basis for its finding, the majority concludes that "substantial evidence supports the determination that petitioners did not prove that the proposed conversion would require alterations significantly different from the previous" renovation (majority mem. at 1047, 76 N.Y.S.3d at 512, 100 N.E.3d at 851). The record does not support that conclusion. As an initial matter, a modification may be "structurally feasible" and still constitute an undue hardship. If evacuation and the other drastic steps that the structural engineer testified to were necessary to make the renovation structurally feasible, then it would still constitute an undue burden. To the extent the Commission was implying that modification of the other building meant that this accommodation could be done without creating undue hardship, the only structural engineer who testified, who was specifically found to be more credible than the Commission's architect by the ALJ-a credibility determination which the Commission itself accepted-found a "slew of structural issues" with the proposed accommodation. The structural engineer testified that (1) the building was made out of weak material; (2) removing one block from the wall could cause the collapse of others; (3) the work in the tenant's building would be complex and dangerous because of gas lines beneath the tenant's apartment; (4) all pieces of the relevant wall served a structural purpose; and (5) neighbors above and to the side of the tenant's apartment would need to be evacuated. In comparison, the Commission's evidence was for the most part speculative, conclusory, or otherwise qualified by the important caveat that a structural engineer would need to be consulted to assess the structural feasibility of the proposed accommodation.

Whatever petitioners' burden may be with respect to the inference that the same accommodation could be made in tenant's building without undue hardship, petitioners' structural engineer met any such burden when he testified to differences in the two work sites, including the width of the windows, the lack of gas lines below the management office, and the length of the necessary ramp. In response to this evidence, the Commission deemed the structural engineer's "observations concerning the layout of the gas and electric lines beneath the management office... simply irrelevant and of no value whatever, especially in light of [petitioners'] burden to prove undue hardship." But these observations were directly relevant to the differences between the two buildings and therefore to meeting petitioners' burden. The Commission's summary rejection of this evidence is irrational.

Judicial review of the Commission's determination is certainly limited, but is not meaningless, especially given the Commission's broad enforcement powers. "[I]n [the] final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably-probatively and logically" ( 300 Gramatan Ave. Assocs., 45 N.Y.2d at 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). Petitioners here submitted substantial evidence that the accommodation would cause an undue hardship. No substantial evidence calls this proof into question. The Commission rejected an unfavorable ruling made by a neutral factfinder on the premise that the wrong standard was applied by the ALJ, and in turn applied a clearly erroneous "could be done" standard of its own, effectively making it impossible for petitioners to overcome its "burden" of demonstrating undue hardship. Affirming the Commission's determination makes clear that no accommodation, no matter how difficult, costly, and disruptive, will constitute an undue hardship. I dissent.

Order reversed, with costs, and judgment of Supreme Court, Queens County, reinstated, in a memorandum.

Chief Judge DiFiore and Judges Stein, Fahey and Wilson concur; Judge Garcia dissents and votes to affirm in an opinion in which Judge Feinman concurs. Judge Rivera took no part.

      The investigator was neither a structural engineer nor an architect; he held a degree in sociology.

      The majority's statement that petitioners' architect proposed this conversion as a "feasible reasonable accommodation" is incorrect (majority mem. at 1047, 76 N.Y.S.3d at 512, 100 N.E.3d at 851). Petitioners' architect testified that he used "feasible" in his report only to respond to the "specific question" asked, namely "is there a place to build a ramp, ... and is there a place where we can get into the apartment," and deferred to the expertise of a structural engineer for the other issues.

      These differences explain why "[n]o evidence was presented that this prior window-to-door conversion had imposed any hardship on petitioners" (majority mem. at 1047, 76 N.Y.S.3d at 512, 100 N.E.3d at 851). Petitioners do not assert that the prior conversion imposed an undue hardship; instead their position is that because of the differences between the two buildings, the conversion in the tenant's building is more structurally complex and will impose an undue hardship.


author: SEAN C. GALLAGHER, J.:

text:
    Blake A. DICKSON, Plaintiff-Appellant v. Pamela L. GORSKI, Defendant-Appellee
    No. 105779
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: November 16, 2017
    Blake A. Dickson, Danielle Chaffin, The Dickson Firm, L.L.C., Enterprise Place, Suite 420, 3401 Enterprise Parkway, Cleveland, Ohio 44122, ATTORNEYS FOR APPELLANT
    Monica A. Sansalone, Matthew Norman, Gallagher Sharp L.L.P., Buckley Building, Sixth Floor, 1501 Euclid Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., Keough, A.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Blake Dickson appeals the judgment entered on the pleadings in favor of Pamela Gorski. The allegations in the complaint stem from Gorski's performance of duties as guardian ad litem in Dickson's domestic relations case, Cuyahoga C.P. No. DR-13-348970 ("divorce case"). The trial court accordingly held that Gorski was entitled to absolute immunity from the claims asserted in the separate proceeding. We affirm.

{¶ 2} Gorski was appointed by the domestic relations court to serve as a guardian ad litem during Dickson's divorce proceedings. At the conclusion of the divorce case, Gorski was awarded fees totaling around $33,000 for services rendered. Dickson was responsible for half. After obtaining a judgment lien against Dickson, Gorski initiated proceedings to collect on the judgment. Dickson then filed a motion for relief from judgment in the divorce case, which is the subject of another appeal pending in 8th Dist. Cuyahoga No. 105318. In this action, Dickson claims Gorski was negligent in performing her obligations as the guardian ad litem and committed fraud through requesting excessive fees for services not rendered.

{¶ 3} Gorski answered the complaint and filed a motion for judgment on the pleadings under Civ.R. 12(C), claiming that she is entitled to absolute immunity in the separate action for any actions arising from her service as the guardian ad litem. The trial court agreed and entered judgment in favor of Gorski upon all claims. Dickson appealed.

{¶ 4} In the sole assignment of error, Dickson claims the trial court erred by applying the doctrine of absolute immunity in this case. Essentially, he seeks an exception allowing for a factual, case-by-case inquiry into whether a guardian ad litem is entitled to assert immunity for actions arising from her performance of the duties associated with the appointment.

{¶ 5} We review a ruling on a motion for judgment on the pleadings de novo. Thornton v. Cleveland , 176 Ohio App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 3 (8th Dist.). Motions for judgment on the pleadings are governed by Civ.R. 12(C), which states: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." "In order to be entitled to a dismissal under Civ.R. 12(C), it must appear beyond doubt that [the nonmovant] can prove no set of facts warranting the requested relief, after construing all material factual allegations in the complaint and all reasonable inferences therefrom in [the nonmovant's] favor." State ex rel. Toledo v. Lucas Cty. Bd. of Elections , 95 Ohio St.3d 73, 74, 2002-Ohio-1383, 765 N.E.2d 854.

{¶ 6} Absolute immunity, as a complete defense to the claims advanced in a complaint, can be raised on motion to dismiss or judgment on the pleadings. Pisani v. Pisani , 8th Dist. Cuyahoga No. 72136, 1997 WL 767452, *1-2, 1997 Ohio App. LEXIS 5549, *4 (Dec. 11, 1997) ; Dolan v. Kronenberg , 8th Dist. Cuyahoga No. 76054, 1999 WL 528202, *2, 1999 Ohio App. LEXIS 3387, *7 (July 22, 1999). "The existence of immunity as a defense in a civil action is a purely legal issue, properly determined by a trial court prior to trial." Rolfe v. Giusto , 8th Dist. Cuyahoga No. 87831, 2007-Ohio-78, 2007 WL 64687, ¶ 9, citing Kronenberg and Goad v. Cuyahoga Cty. Bd. of Commrs. , 79 Ohio App.3d 521, 524, 607 N.E.2d 878 (8th Dist.1992).

{¶ 7} The law is not in dispute. A guardian ad litem is entitled to absolute immunity against a collateral attack on her performance of the duties as a matter of law. For example, in Giusto , summary judgment in favor of the guardian ad litem was affirmed, with the court recognizing that a guardian ad litem enjoys absolute immunity from tort actions arising out of service as guardian ad litem. Giusto at ¶ 10 ; Lisboa v. Lisboa , 8th Dist. Cuyahoga No. 95673, 2011-Ohio-351, 2011 WL 319956, ¶ 21. Similarly, in Penn v. McMonagle , 60 Ohio App.3d 149, 152, 573 N.E.2d 1234 (6th Dist.1990), the Sixth Appellate District agreed, noting that a guardian ad litem acts in a quasi-judicial function and is entitled to the same immunity afforded to the judiciary when the allegations stem from the performance of the duties attendant to the appointment. Id. , citing Wilson v. Neu , 12 Ohio St.3d 102, 465 N.E.2d 854 (1984) ; see also Kellogg v. Daulton , 10th Dist. Franklin No. 06AP-106, 2006-Ohio-4115, 2006 WL 2301664, ¶ 8 ; Williams v. Barrick , 10th Dist. Franklin No. 08AP-133, 2008-Ohio-4592, 2008 WL 4174146, ¶ 12. Ohio is not alone in recognizing that a guardian ad litem is entitled to absolute immunity for actions arising out of the performance of her duties. Dahl v. Dahl , 744 F.3d 623, 630 (10th Cir.2014), citing Cleavinger v. Saxner , 474 U.S. 193, 199, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) ; Cok v. Cosentino , 876 F.2d 1, 3 (1st Cir.1989) ; Gardner ex rel. Gardner v. Parson , 874 F.2d 131, 146 (3d Cir.1989) ; Fleming v. Asbill , 42 F.3d 886, 889 (4th Cir.1994) ; Kurzawa v. Mueller , 732 F.2d 1456, 1458 (6th Cir.1984) ; Cooney v. Rossiter , 583 F.3d 967, 970 (7th Cir.2009) ; McCuen v. Polk Cty., Iowa , 893 F.2d 172, 174 (8th Cir.1990) ; Wideman v. Colorado , 409 Fed.Appx. 184, 186 (10th Cir.2010).

{¶ 8} Despite the well-settled authority to the contrary, Dickson claims that a guardian ad litem's immunity should not be absolute because if that is the case,

a [guardian ad litem] is free to charge whatever hourly rate she chooses (despite a Local Rule mandating otherwise), sage [sic] is free to grossly and falsely inflate the number of hours that she spent on the case, she is free to bill for work she did not do, she is free to knowingly act contrary to the best interests of the children and she is free to take a bribe from a party for a favorable report. And the party against whom she is acting not only has no recourse for her fraudulent, tortious, criminal actions, but they have to pay her at whatever rate she chooses, for however many hours she claims she worked, even if she did not work those hours, with no ability to challenge that bill or investigate whether the work was done.

The applicability of the absolute immunity doctrine is not pinned to the severity of the party's alleged misconduct. We reiterate, "the existence of immunity as a defense in a civil action is a purely legal issue, properly determined by a trial court prior to trial." Giusto at ¶ 9, citing Kronenberg and Goad . We cannot create the rule Dickson desires; such a proposition would defeat the purpose of providing guardians ad litem with absolute immunity in the first place. "A guardian ad litem must also be able to function without the worry of possible later harassment and intimidation from dissatisfied parents. * * * A failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings." Penn at 152, 573 N.E.2d 1234, quoting Mueller .

{¶ 9} Instead, whether absolute immunity applies is a question of law with the only inquiry focusing on from where the allegations arose. If the alleged misconduct stems from the guardian ad litem's performance under the court appointment, which is readily apparent from reviewing the allegations in the complaint, the guardian ad litem is entitled to absolute immunity as a matter of law. On this point, there is no factual dispute. Dickson does not challenge the conclusion that the allegations in the underlying complaint stem from Gorski's performance as the guardian ad litem in the divorce action-the complaint is entirely based on her fulfillment of the court-appointed role.

{¶ 10} We acknowledge that parties in a divorce action are vulnerable and in certain situations may need to challenge the guardian ad litem's action. Absolute immunity does not give a guardian ad litem impunity to misbehave, as Dickson fears. A guardian ad litem's conduct, including issues related to the billing, may be timely challenged in the case in which she was appointed and monitored by the trial court. Absolute immunity simply precludes parties from collaterally attacking the guardian ad litem in another venue for any acts or omissions arising from the performance of her duties as a guardian ad litem.

{¶ 11} As a matter of law, absolute immunity precludes Dickson from advancing his separate action, which is based on allegations of misconduct arising from Gorski's performance of her duties as the guardian ad litem in the divorce case. Dickson's sole assignment of error is overruled. We affirm.

KATHLEEN ANN KEOUGH, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR


author: FRANK D. CELEBREZZE, JR., J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Johnnie PIERCE, Defendant-Appellant
    No. 105389
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: November 16, 2017
    Paul A. Mancino, Jr., Mancino Mancino & Mancino, 75 Public Square Building, Suite 1016, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Andrea N. Isabella, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., Keough, A.J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Johnnie Pierce ("Pierce"), brings this appeal challenging his convictions and the trial court's sentence for escape and two counts of harassment by inmate. Specifically, Pierce argues that (1) he should have been convicted of fifth-degree felony escape because the jury verdict form did not indicate that the most serious offense for which he was under detention was a felony of the third, fourth, or fifth degree; (2) his due process rights were violated when the trial court denied defense counsel's Batson challenge and failed to provide an intoxication instruction to the jury; and (3) his harassment by inmate convictions were not supported by sufficient evidence. After a thorough review of the record and law, this court affirms in part, modifies in part, and remands for further proceedings consistent with this opinion.

I. Factual and Procedural History

{¶ 2} On June 12, 2015, Cleveland Police Officers responded to radio call for males fighting near the intersection of Prospect Avenue and East 4th Street. Upon arrival at the scene, officers encountered Pierce, who appeared to be intoxicated, disheveled, and confrontational. Pierce was standing in the vicinity of a broken chair and a broken glass window. When the officers approached Pierce, he made obscene and threatening remarks. The decision was made to detain Pierce based on the officers' belief that he had been involved in the fight and his proximity to the broken chair and glass window. Pierce was detained for vandalism and disorderly conduct while intoxicated.

{¶ 3} Pierce began vomiting and urinating in the backseat of the police car. The officers became concerned that Pierce was highly intoxicated or experiencing an overdose, and decided to take him to St. Vincent Charity Hospital for treatment.

{¶ 4} After Pierce was treated, the officers transported him from the hospital to the police car in a wheelchair. Pierce suddenly jumped out of the chair and attempted to flee the area on foot. The officers eventually caught up to Pierce and brought him to the ground. Pierce continued to fight the officers, attempting to strike them with his elbows and feet. Furthermore, he attempted to bite the officers and began spitting at them. Pierce received additional medical treatment for the injuries that he sustained during the altercation with the officers.

{¶ 5} In Cuyahoga C.P. No. CR-15-596666-A, the Cuyahoga County Grand Jury returned a seven-count indictment charging Pierce with felonious assault, a first-degree felony in violation of R.C. 2903.11(A)(1) with a furthermore specification alleging that the victim was a peace officer; vandalism, a fifth-degree felony in violation of R.C. 2909.05(B)(1)(b) ; escape, a third-degree felony in violation of R.C. 2921.34(A)(1) ; assault, a fourth-degree felony in violation of R.C. 2903.13(A) with a furthermore specification alleging that the victim was a peace officer; two counts of harassment by inmate, fifth-degree felonies in violation of R.C. 2921.38(B) ; and resisting arrest, a second-degree misdemeanor in violation of R.C. 2921.33(A). Pierce was arraigned on July 30, 2015. He pled not guilty to the indictment.

{¶ 6} A jury trial commenced on October 17, 2016. Cleveland Police Officers Justen Davis, Aaron Petitt, and Christopher Hoover testified on behalf of the state. At the close of the state's evidence, defense counsel moved for a Crim.R. 29 judgment of acquittal. The trial court granted defense counsel's motion on the vandalism offense charged in Count 2; the court denied the motion on all other counts. The defense rested after calling one witness, and renewed the Crim.R. 29 motion, which the trial court denied.

{¶ 7} On October 21, 2016, the jury found Pierce not guilty on the felonious assault, assault, and resisting arrest counts. The jury found Pierce guilty on the escape count and both counts of harassment by inmate. On October 26, 2016, the trial court referred Pierce to the probation department for a presentence investigation report and set the matter for sentencing.

{¶ 8} The trial court held a sentencing hearing on December 20, 2016. The trial court imposed a prison sentence of two years on the escape count and one year on each of the harassment by inmate counts. The trial court ordered the counts to run concurrently.

{¶ 9} On January 20, 2017, Pierce filed the instant appeal challenging his convictions and the trial court's sentence. He assigns four errors for review:

I. [Pierce] was denied due process of law when he was sentenced for a felony of the third degree when there was no determination by the jury as to what the underlying offense was for the offense of escape.
II. [Pierce] was denied due process of law when the court failed to state [Pierce's] Batson challenge.
III. Defense was denied due process of law when the court, on its own, did not instruct the jury on intoxication.
IV. [Pierce] was denied due process of law when he was convicted of harassment by an inmate.

II. Law and Analysis

A. Verdict Form

{¶ 10} In his first assignment of error, Pierce challenges his conviction for third-degree felony escape. Specifically, Pierce argues that the jury verdict form omitted the required finding under R.C. 2921.34(C)(2)(b) that makes the offense a third-degree felony. As such, he argues that he could only be convicted of fifth-degree felony escape.

{¶ 11} Pierce was charged with escape in violation of R.C. 2921.34(A)(1), which provides, in relevant part, that "[n]o person, knowing the person is under detention, * * * or being reckless in that regard, shall purposely break or attempt to break the detention[.]" Pursuant to R.C. 2921.34(C)(2), the degree of the offense of escape is determined by the most serious offense for which the offender was under detention at the time of the offense. Escape is a felony of the second degree "when the most serious offense for which the person was under detention * * * is aggravated murder, murder, or a felony of the first or second degree[.]" Escape is a felony of the third degree "when the most serious offense for which the person was under detention * * * is a felony of the third, fourth, or fifth degree or an unclassified felony[.]" Escape is a felony of the fifth degree when "[t]he most serious offense for which the person was under detention is a misdemeanor."

{¶ 12} Count 3 alleged that Pierce "did, knowing [he was] under detention, * * * purposely break or attempt to break the detention, * * * and [the] offense for which [Pierce] was under detention * * * was a felony of the third, fourth, or fifth degree[.]" This language elevated the escape offense from a fifth-degree felony to a third-degree felony.

{¶ 13} The trial court instructed the jury on the offense-enhancing language:

Before you can find [Pierce] guilty of escape, you must find beyond a reasonable doubt that one or about the 12th day of June, 2015, in Cuyahoga County, Ohio, [Pierce] did, knowing he was under detention, * * * purposely break or attempt to break the detention, * * * and the offense for which [Pierce] was under detention was a felony of the third, fourth, or fifth degree, or unclassified felony.

(Tr. 580.) However, the verdict form on which the jury found Pierce guilty did not include a degree for the escape offense nor the aggravating element that elevated the offense from a fifth-to a third-degree felony. The verdict form on which the jury found Pierce guilty provided, in relevant part: "We the jury in this case, * * * do find [Pierce] guilty of escape, in violation of 2921.34(A)(1) of the Ohio Revised Code as charged in Count Three of this indictment." (Tr. 648-649.)

{¶ 14} R.C. 2945.75(A) provides:

When the presence of one or more additional elements makes an offense one of more serious degree: * * * (2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.

{¶ 15} In the instant matter, Pierce argues that the jury did not find that the most serious offense for which he was under detention was a felony of the third, fourth, or fifth degree. Pierce contends that the jury merely found that he was guilty of escape as charged in the indictment.

{¶ 16} In support of his argument, Pierce directs this court to State v. Pelfrey , 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. In Pelfrey , the Ohio Supreme Court held that "[p]ursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to justify convicting a defendant of a greater degree of a criminal offense." Id. at syllabus. If the verdict form fails to state either the degree of the offense or state that an additional element is present, R.C. 2945.75(A)(2) provides that "a guilty verdict constitutes a finding of guilty of the least degree of the offense charged." Pelfrey at ¶ 13.

{¶ 17} The state, on the other hand, directs this court to State v. Eafford , 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891. In Eafford , the Ohio Supreme Court "reversed this court for strictly applying Pelfrey to a challenge of a jury verdict form under R.C. 2945.75(A), and found that the alleged defect in the jury verdict was not plain error based on other circumstances during the proceedings." State v. Kilbane , 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, 2014 WL 1327963, ¶ 17. The court looked beyond the jury verdict form and considered the whole record. Although the jury verdict form did not state the degree of the drug possession offense or the aggravating circumstance, the court held that the alleged defect in the jury verdict form did not constitute plain error because (1) the indictment charged the defendant with possessing cocaine, (2) the verdict form reflected a finding of guilty as charged in the indictment, (3) the evidence presented at trial only related to possession of cocaine, and (4) the trial court instructed the jury that it could not find the defendant guilty of drug possession unless it found the drug involved to be cocaine. Eafford at ¶ 17.

{¶ 18} In the instant matter, the state argues that the additional element-that Pierce committed the escape offense while the most serious offense for which he was under detention was a felony of the third, fourth, or fifth degree-was alleged in the indictment and the jury verdict form reflected a finding of guilty "as charged in Count Three of [the] indictment." Furthermore, the state contends that the evidence presented at trial established that Pierce had been detained for vandalism, a fifth-degree felony, at the time he committed the escape offense. Officer Davis testified that Pierce was detained for vandalizing the apartment door's glass window, a fifth-degree felony. (Tr. 292, 304.) Finally, the state emphasizes that the trial court instructed the jury that it could not find Pierce guilty of escape unless it found that he committed the offense while under detention for a third-, fourth-, or fifth-degree felony.

{¶ 19} The state does not address the effect of the Ohio Supreme Court's most recent pronouncement on the issue of compliance with R.C. 2945.75(A)(2) in State v. McDonald , 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374. In McDonald , the court made clear that "in cases involving offenses for which the addition of an element or elements can elevate the offense to a more serious degree, the verdict form itself is the only relevant thing to consider in determining whether the dictates of R.C. 2945.75 have been followed." (Emphasis added.) Id. at ¶ 17, citing Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶ 14. The court emphasized that "we look only to the verdict form signed by the jury to determine whether, pursuant to R.C. 2945.75, [the defendant] was properly convicted of a third-degree felony." (Emphasis added.) McDonald at ¶ 18. The court further explained,

"[t]he express requirement of [ R.C. 2945.75(A)(2) ] cannot be fulfilled by demonstrating additional circumstances, such as that the verdict incorporates the language of the indictment, or by presenting evidence to show the presence of the aggravated element at trial or incorporation of the indictment into the verdict form[.]"

Id. at ¶ 17, quoting Pelfrey at ¶ 14.

{¶ 20} This court has recognized that Pelfrey , Eafford , and McDonald provide "conflicting guidance" regarding the application of R.C. 2945.75(A)(2). Kilbane , 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, 2014 WL 1327963, at ¶ 17. In Kilbane , this court attempted to reconcile the three holdings. This court applied the strict compliance analysis from Pelfrey and McDonald , and concluded that the jury verdict forms contain "a statement of the additional element to justify convicting Kilbane of the greater degree of the offense" and " 'further findings' that expressly required the jury to find that the aggravating element was present." Id. at ¶ 15-16. Furthermore, this court applied the plain error analysis from Eafford , and concluded that even if the jury verdict forms were defective, they did not constitute plain error. Id. at ¶ 19.

{¶ 21} In the instant matter, the jury verdict form fails under a strict compliance analysis. The jury verdict form did not state the degree of the escape offense, nor did it state the most serious offense for which Pierce was under detention when he committed the escape offense.

{¶ 22} After reviewing the record, we find this case to be distinguishable from Eafford .

The charge in Eafford , possession of cocaine, did not involve any additional elements that elevated the level of the offense. The verdict form described the offense as "possession of drugs," but the only drug involved was cocaine. Therefore, possession of cocaine was necessarily what the jury found the defendant guilty of.

State v. Melton , 2013-Ohio-257, 984 N.E.2d 1112, ¶ 31 (8th Dist.).

{¶ 23} Here, the escape charge involved an additional element-that Pierce committed the offense while under detention for a third-, fourth-, or fifth-degree felony-that elevated the level of the offense from a fifth-degree felony to a third-degree felony. Furthermore, as noted above, Pierce had been detained for multiple offenses at the time he committed the escape offense.

{¶ 24} Based on the foregoing analysis, we find the mandates of McDonald and Pelfrey to be controlling. As such, we consider only the verdict form itself in determining whether there was compliance with R.C. 2945.75. Pelfrey , 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶ 14 ; McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 17. It is evident that the dictates of the statute were not followed. The jury verdict form did not state the degree of the escape offense, nor did it state the most serious offense for which Pierce was under detention when he committed the escape offense.

{¶ 25} Accordingly, Pierce's conviction for escape should be reduced to a fifth-degree felony in order to conform to the jury's verdict form. Pierce's first assignment of error is sustained.

B. Batson Challenge

{¶ 26} In his second assignment of error, Pierce, who is African American, argues that his constitutional rights were violated when the trial court allowed the state to peremptorily excuse prospective Juror 6 over defense counsel's Batson objection. We disagree.

{¶ 27} In Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court limited the prosecution's discretion in the use of peremptory challenges during jury selection. The court held that purposeful discrimination in the use of peremptory challenges to exclude members of a minority group violates the Equal Protection Clause of the United States Constitution. Id. at 89, 106 S.Ct. 1712.

{¶ 28} The court developed a three-part test for trial courts to apply when adjudicating a Batson challenge:

First, a defendant must make a prima facie case that the prosecutor is engaged in racial discrimination. Id. at 96-97, 106 S.Ct. 1712. Second, if the defendant satisfies that burden, the prosecutor must provide a racially neutral explanation for the challenge. Id. at 97-98, 106 S.Ct. 1712. Finally, the court must decide, based on all the circumstances, whether the defendant has proved purposeful racial discrimination. Id. at 98, 106 S.Ct. 1712. In doing so, the court must consider the circumstances of the challenge and assess the plausibility of the prosecutor's explanation in order to determine whether it is merely pretextual.

State v. Johnson , 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 21, citing Miller-El v. Cockrell , 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; State v. Frazier , 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65.

"A trial court's finding of no discriminatory intent will not be reversed on appeal unless clearly erroneous." State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 64, citing State v. Frazier , 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 64. This deferential standard arises from the fact that step three of the Batson inquiry turns largely on the evaluation of credibility by the trial court. See State v. Herring , 94 Ohio St.3d 246, 257, 2002-Ohio-796, 762 N.E.2d 940, citing Batson , 476 U.S. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69.

State v. Murray , 8th Dist. Cuyahoga No. 102779, 2016-Ohio-107, 2016 WL 193497, ¶ 22.

{¶ 29} In the instant matter, following the state's use of its first peremptory challenge to remove prospective Juror 6, defense counsel raised a Batson challenge, explaining, "I'm suggesting that this was a preemptive strike based on race. This young lady was a woman of color. My client is a person of color, and I believe that it is no longer necessary to show a pattern where there is no rational basis for excluding a juror, and I don't see that there was a rational basis for excluding this juror number 6." (Tr. 170.)

{¶ 30} The trial court noted that it was unclear whether prospective Juror 6 was African or Latin American. Nevertheless, the trial court reviewed the three-part test set forth in Batson with the parties and provided the state with an opportunity to respond.

{¶ 31} In response to defense counsel's Batson challenge, the prosecutor noted that he was also a person of color and that there were still "numerous persons of color" on the jury. (Tr. 170.) The prosecutor argued that defense counsel failed to make a prima facie case that the state engaged in racial discrimination based on the fact that both the parties and the trial court were unable to determine the nationality or race of prospective Juror 6. The prosecutor opined that prospective Juror 6 was Hispanic rather than African American.

{¶ 32} The trial court inquired as to whether the state had a race-neutral reason for removing the juror. The prosecutor provided the following reasons for excusing prospective Juror 6:

There are a number of reasons. One of the reasons is that during the state's initial questioning of the panel, juror number 6 would not make eye contact with the State of Ohio.
Additionally, during the court's examination of the witness, the State of Ohio noted that juror number 6 did not like to make eye contact with the court, and was, in general, just not involved in the process and showed a demeanor that she did not want to be present or participate.
Further, your Honor, on the State of Ohio's questioning during the voir dire, juror number 6 did indicate that both of her parents were in jail at some point on drug charges.
And so when juror number 6 elucidated those facts, it kind of clarified for the State of Ohio the feeling of mistrust there was that the State of Ohio was getting from her.

(Tr. 174-175.)

{¶ 33} The trial court rejected defense counsel's Batson challenge based on the prosecution's explanation of its basis for excusing prospective Juror 6. The trial court noted on the record that the juror who replaced prospective Juror 6 was also an African American female.

{¶ 34} Pierce appears to argue that the state failed to provide a race-neutral explanation to exclude prospective Juror 6. Furthermore, Pierce emphasizes that although prospective Juror 6's parents had been charged with drug-related offenses in the past, she indicated that her parents' experiences would not affect her ability to be fair to the prosecution or the defense. (Tr. 75.)

{¶ 35} After reviewing the record, we cannot say that the trial court's denial of defense counsel's Batson challenge was clearly erroneous. After defense counsel objected to the state's removal of prospective Juror 6, the trial court thoroughly reviewed the Batson three-part test and gave the prosecution an opportunity to provide its reasons for excusing the juror. The prosecutor provided permissible race-neutral justifications for exercising its peremptory challenge. In denying defense counsel's Batson challenge, the trial court evidently concluded that Pierce failed to prove purposeful racial discrimination. Accordingly, we defer to the trial court's resolution of defense counsel's Batson challenge.

{¶ 36} Pierce's second assignment of error is overruled.

C. Intoxication Jury Instruction

{¶ 37} In his third assignment of error, Pierce argues that his due process rights were violated when the trial court did not sua sponte provide the jury with an instruction on intoxication.

{¶ 38} A "trial court has discretion to determine whether the evidence is sufficient to require a jury instruction on intoxication." State v. Nields , 93 Ohio St.3d 6, 22, 752 N.E.2d 859 (2001), citing State v. Wolons , 44 Ohio St.3d 64, 541 N.E.2d 443 (1989). "Although an appellate court normally reviews alleged errors in jury instructions for an abuse of discretion, when a defendant does not request a specific jury instruction and fails to object to the jury instructions as given, he waives all but plain error."

State v. Robinson , 8th Dist. Cuyahoga No. 102766, 2016-Ohio-808, 2016 WL 860249, ¶ 9, citing State v. Edgerson , 8th Dist. Cuyahoga No. 101283, 2015-Ohio-593, 2015 WL 758992, ¶ 15.

{¶ 39} Pursuant to Crim.R. 52(B), appellate courts may notice a plain error affecting a substantial right even though it was not brought to the attention of the trial court. An error only rises to the level of plain error if but for the error, the outcome of the proceedings would have been different. State v. Harrison , 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61 ; State v. Long , 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long at id.

{¶ 40} Pierce argues that the trial court should have provided an instruction on intoxication to the jury based on the officers' testimony that Pierce was intoxicated. Pierce acknowledges that voluntary intoxication is not a defense to the crimes with which he was charged. However, he asserts that the jury should have been instructed on intoxication pursuant to R.C. 2901.21(E), governing criminal liability and culpability, which provides, in relevant part, that "[e]vidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged."

{¶ 41} This court has held that a defendant may not receive a jury instruction when the instruction is inconsistent with the theory of the defense. State v. Rose , 8th Dist. Cuyahoga No. 89457, 2008-Ohio-1263, 2008 WL 740563, ¶ 18, citing State v. King , 20 Ohio App.3d 62, 64, 484 N.E.2d 234 (1st Dist.1984), and State v. Catlin , 56 Ohio App.3d 75, 79, 564 N.E.2d 750 (2d Dist.1990).

{¶ 42} In the instant matter, defense counsel's theory at trial was that Pierce was not under arrest when he was taken to the hospital for treatment, and thus, he could not have committed the offense of escape. At no point did the defense argue or suggest that Pierce was intoxicated to the point that he was physically incapable of committing the felonious assault, vandalism, escape, assault, harassment by inmate, and resisting arrest offenses with which he was charged.

{¶ 43} Furthermore, we cannot say that the record contains sufficient evidentiary support to warrant a jury instruction on intoxication. It is undisputed that Pierce was intoxicated on the night in question. Although Pierce told the officers that he needed a wheelchair when he was leaving the hospital, Officer Petitt testified that Pierce "had walked [into the hospital] on his own free will, unassisted. (Tr. 346.) Officer Davis testified that he was "in awe" and "taken aback" by the high rate of speed at which Pierce was running from the officers. (Tr. 296-297.)

{¶ 44} Based on the foregoing analysis, we cannot say that the trial court committed plain error by failing to provide the jury with an instruction on intoxication. Accordingly, Pierce's third assignment of error is overruled.

D. Sufficiency

{¶ 45} Although the caption of Pierce's fourth assignment of error alleges a due process violation, it is evident that he is raising a challenge to the sufficiency of the evidence supporting his convictions for harassment by inmate.

{¶ 46} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a 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. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶ 47} Pierce was convicted of harassment by inmate in violation of R.C. 2921.38(B), which provides,

[n]o person, with intent to harass, annoy, threaten, or alarm a law enforcement officer, shall cause or attempt to cause the law enforcement officer to come into contact with blood, semen, urine, feces, or another bodily substance by throwing the bodily substance at the law enforcement officer, by expelling the bodily substance upon the law enforcement officer, or in any other manner.

{¶ 48} In support of his sufficiency challenge, Pierce argues that there was no evidence that he intended to harass, annoy, threaten, or alarm the officers. He appears to suggest that the transfer of blood was accidental or incidental rather than deliberate. Furthermore, Pierce argues that the state failed to prove that the blood on Officers Petitt and Hoover belonged to him.

{¶ 49} The record reflects that the state presented sufficient evidence to support Pierce's convictions. First, Officer Davis testified that Pierce was spitting at the officers. (Tr. 301.) Officer Davis asserted that Pierce had blood in his mouth. Officer Davis testified that Officer Hoover "was spitted [sic] upon; bodily contamination." (Tr. 303.) As a result of Pierce's conduct, officers placed a spit bag on Pierce.

{¶ 50} Second, Officer Petitt testified that Pierce "began to bite and spit at both Officer Hoover and I." (Tr. 355.) Officer Petitt explained, "[w]hen we were able to gain control of [Pierce's] hands, he then turned and started biting at us, and spitting saliva and blood and anything else he could do to try to hit us or hurt us." (Tr. 356.) Officer Petitt stated that Pierce "spat several times," and that Pierce was spitting purposefully. He testified that blood came from Pierce's mouth. Officer Petitt asserted that he was contacted by Pierce's spit and blood. Officers placed a spit mask on Pierce.

{¶ 51} Third, Officer Hoover testified that a spit mask was placed on Pierce because he was spitting on him and Officer Petitt. Officer Hoover confirmed that he was hit by Pierce's spit, and that the spit got on his uniform.

{¶ 52} The testimony of Officers Davis, Petitt, and Hoover, if believed, is sufficient to establish that Pierce caused the officers to come into contact with his blood by expelling the spit and blood in his mouth upon the officers. Accordingly, Pierce's convictions for harassment by an inmate are supported by sufficient evidence.

{¶ 53} Pierce's fourth assignment of error is overruled.

III. Conclusion

{¶ 54} After thoroughly reviewing the record, we find that the jury's verdict form for the escape offense failed to comply with R.C. 2945.75 because it did not state the degree of the offense nor state that an aggravating element was found. Thus, we reduce Pierce's escape conviction to a fifth-degree felony. The trial court's sentence for third-degree felony escape is vacated, and the matter is remanded to the trial court for the limited purpose of resentencing Pierce on the fifth-degree felony escape conviction.

{¶ 55} We affirm the trial court's judgment in all other respects. We cannot say that the trial court's ruling denying defense counsel's Batson challenge was clearly erroneous. The trial court did not commit plain error by failing to provide the jury with an intoxication instruction. Pierce's convictions for harassment by inmate are supported by sufficient evidence.

{¶ 56} Judgment affirmed in part, modified in part, and remanded to the lower court for further proceedings consistent with this opinion.

KATHLEEN ANN KEOUGH, A.J., and SEAN C. GALLAGHER, J., CONCUR

      Prospective Juror 6's nationality and race are unclear from the record. Defense counsel suggested that she is African American; the trial court opined that she is Latin American; and the prosecutor opined that she is Hispanic.