State v. Mills

200 N.E.3d 716

STATE of Ohio, Plaintiff-Appellee,

v.Kenneth V. MILLS, Defendant-Appellant.

No. 110893

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Released and Journalized: November 10, 2022

David Yost, Ohio Attorney General and Special Prosecutor for Cuyahoga County, Matthew E. Meyer, Linda Majeska Powers, Cleveland, and Daniel Kasaris, Assistant Attorneys General, for appellee.

Flowers & Grube, Louis E. Grube, and Paul W. Flowers ; Kevin M. Spellacy, Cleveland, and Erin E. Hanson, for appellant.

JOURNAL ENTRY AND OPINION

CORNELIUS J. O'SULLIVAN, JR., J.:

{¶ 1} Defendant-appellant, Kenneth Mills, appeals his misdemeanor convictions after a jury convicted him of two counts of falsification and two counts of dereliction of duty. On appeal, he challenges the sufficiency of the evidence, the trial court's admission of evidence of inmate deaths, the jury instructions, and the consecutive nature of his sentence. After a thorough review of the record and the law, we reverse and remand for a new trial, finding that the trial court erred when it allowed into evidence a photograph of a dying inmate and testimony about inmate deaths at the Cuyahoga County jail.

I. Procedural History and Facts

{¶ 2} In October 2019, appellant was charged in a five-count indictment with the following: Count 1: tampering with records, a third-degree felony, in violation of R.C. 2913.42(A)(1) and (B)(4) ; Count 2: falsification, a first-degree misdemeanor, in violation of R.C. 2921.13 (A)(1) ; Count 3: falsification, a first-degree misdemeanor, in violation of R.C. 2921.13(A)(3) ; Count 4: dereliction of duty, a second-degree misdemeanor, in violation of R.C. 2921.44(C)(2) ; and Count 5: dereliction of duty, a second-degree misdemeanor, in violation of R.C. 2921.44(C)(5).

{¶ 3} In August 2021, the matter proceeded to a jury trial where over the course of three weeks, the jurors heard testimony from 30 witnesses and over 250 exhibits were admitted into evidence. The jury returned a verdict of not guilty as to the sole felony count in the indictment, Count 1, and guilty verdicts on the remaining counts. The trial court merged Count 2 into Count 3, and Count 4 into Count 5 and sentenced appellant to a consecutive nine-month jail sentence.

{¶ 4} In November 2009 (effective January 1, 2011), Cuyahoga County voters approved a charter amendment creating a county council and county executive; Cuyahoga County became one of two out of 88 counties in Ohio not governed by a three-member commission. Following implementation of the county's charter amendment, many formerly elected positions became appointed positions, including that of county sheriff. Armond Budish ("Budish") was elected county executive for a term commencing in January 2015. At the start of his term, Budish directed every department to cut costs by ten percent and decided to regionalize the jails by accepting municipal prisoners into county custody.

{¶ 5} In early 2015, Budish appointed Clifford Pinkney ("Pinkney" or "Sheriff Pinkney") to the position of Cuyahoga County Sheriff. Shortly thereafter, in February 2015, Budish appointed appellant to a newly created position titled "Director of Regional Corrections." Appellant was to report to Chief Deputy Sheriff George Taylor, who reported to Pinkney.

{¶ 6} Appellant was hired with the mandate to regionalize the county jail.¹ Budish explained appellant's appointment in a press release:

As Regional Director of Corrections, Mills will oversee emerging collaborations and potential consolidations with jails county-wide. He will also direct the operations of the Sheriff's Department County Jail after a long-term transition with the current, part-time County Jail Wardens. The Regional Director of Corrections position will become a self-sustaining position, with its salary offset over time by the revenue generated from jail regionalization. As Regional Director of Corrections, Mills will also ensure compliance with departmental policy and standards and assist with developing and managing the budget, among other responsibilities.

{¶ 7} Victor McArthur, former associate warden at the jail, testified that "[j]ail regionalization is when one jail, like the county jail, becomes the hub for all of the jails and all of the jails feed into county jail so inmates are processed one time instead of in every jail that they visit." Part of this plan, known as the "Cleveland Project," was designed to be a revenue generating plan where the county would house inmates from the city of Cleveland at the county jail for a daily fee of $99 per inmate.

{¶ 8} Appellant had a military background; he served in the Coast Guard. After retiring from the Coast Guard, he was hired by the county as director of public safety. As the director of public safety, appellant was the head of a medium-sized department that included 9-1-1 operators, a witness-victim program, and county emergency preparedness. Appellant did not, however, have any experience in corrections or law enforcement. Philip Angelo, who was a special assistant with the Cuyahoga County Sheriff's Office, testified that he was involved in appellant's interview process and reviewed his resume. According to Angelo, it "did not seem" like appellant had the training or qualifications to run a large jail, and Angelo ended up not recommending him for the position of regional director. Sheriff Pinkney also testified that he would not have hired appellant because he did not have law enforcement or correctional experience.

{¶ 9} On paper, the director of regional corrections reported to the sheriff, who in turn reported to the executive. Although appellant was to report to the sheriff, the testimony reveals that appellant considered himself the sole overseer of the county's jails.

{¶ 10} It is undisputed that there have been ongoing problems with the county jail that predate appellant's employment. Two major issues central to this case were overcrowding and staffing. The county jail's capacity is approximately 1,765 inmates. Kochevar, appellant's predecessor, testified that the county jail has been overcrowded "[f]orever." Joel Commins ("Commins"), who has been employed as a jail inspector for the Ohio Department of Rehabilitation and Correction's Bureau of Adult Detention since 1998, has never "found the capacity to be under 1765." Former Cuyahoga County Jail Warden Eric Ivey testified that overcrowding and staffing had been issues "since I started back in 1990."

{¶ 11} The reasons for staffing issues were multi-faceted. Problems with staffing corrections officers were the result of high turnover and, in later years, a substantial number of call-offs every shift; Commins testified as many as 30-60 corrections officers would call off every shift. When a corrections officer called off his or her shift, the corrections officer still on duty would be made to work an additional four hours of overtime, which would lead that officer to call off his or her next shift. Cuyahoga County Deputy Inspector General Sicily Woods testified that turnover for corrections officers under appellant's leadership increased 118 percent between 2015 and 2018. She also testified that corrections officers made $15 per hour, one of the lowest paid hourly wages for corrections officers in the state of Ohio.

{¶ 12} The short staffing led to the practice of "red zoning," which, according to FBI Special Agent Daniel Eyer, is the locking down of inmates within their cells, at times for up to 20 hours a day. In these instances, one corrections officer would be responsible for supervising two to four housing pods, or as many as 192 inmates, instead of the 48 inmates in one pod that would be assigned to that officer under ideal operating conditions. According to the agent, "the forced lockdown of inmates into their cells had increased significantly after [appellant] had taken over."

{¶ 13} The staffing issues were not limited to corrections officers. Multiple witnesses testified that the jail never had enough nurses on staff. Earl Leiken, Cuyahoga County Chief of Staff from 2018-2019, testified that Margaret Keenan, director of the Cuyahoga County Office of Budget and Management ("OBM"), emailed him to request an increase in wages for nursing staff. Keenan explained that a nurse would make $28 per hour at the jail while the "industry standard" was $38 per hour. When the county hired temporary nurses to fill the gaps in the nursing staff, those nurses made the industry standard, which caused a "morale issue" among the permanent nursing staff. MetroHealth Hospital Executive Vice President of Administration and Chief of Staff Jane Platten explained at a May 22, 2018, Cuyahoga County Council Public Safety Committee Meeting that while MetroHealth staffed most of the medical positions at the county jail, the county alone controlled the staffing of nurses.

{¶ 14} Dr. Thomas Tallman was the county jail's medical director pursuant to a medical services contract between the county and MetroHealth. He testified that he "constantly worked with [human resources]" in an effort to hire more nurses and raised the issue at monthly staff meetings.

{¶ 15} In late 2015 and early 2016, an issue arose with the provision of medical care to inmates at the county-run Euclid satellite jail. Dr. Tallman testified that the facility, which currently did not have medical staff, required a full-time nurse. Appellant told him that the current budget could not accommodate this change and corrections officers could do medical screenings, even though they were not trained to do so.

{¶ 16} On March 14, 2017, Dr. Tallman filled out a personnel request form for two full-time nurses at the Euclid jail, explaining that the additional staffing was

mission critical based on the Regional Director of Corrections’ request to maintain full inmate capacity at said facility. Furthermore, there have been several inmates identified with serious medical needs that were not immediately evaluated upon arrival to

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