State v. Daniels ( 2021 )

[Cite as State v. Daniels, 2021-Ohio-4142.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 21CA0025
:
DELANEY DANIELS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 19CR602
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 19, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES TODD W. BARSTOW
LICKING CO. PROSECUTOR 161 West Johnstown Rd., Ste. 204
PAULA M. SAWYERS Columbus, OH 43230
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No. 21CA0025 2
Delaney, J.
{¶1} Appellant Delaney Daniels appeals from the March 5, 2021 Judgment of
Conviction and Sentence of the Licking County Court of Common Pleas. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose around 10:00 p.m. on August 7, 2019, when appellant shot
and killed Matthew Helman while robbing him during a drug deal.
Sasha Diehl agrees to sell Brianna Lohr an ounce of meth
{¶3} In August 2019, Alexandra “Sasha” Diehl was struggling with an addiction
to methamphetamine. She and her boyfriend, Matthew Helman, had a child together and
sometimes sold drugs to make ends meet. Sasha found buyers among people she used
with, and Helman supplied the drugs and protection during the transaction. On August 7,
Sasha communicated with Brianna Lohr regarding the sale of an ounce of
methamphetamine for $450. Lohr insisted she had the cash to make the buy, but asked
Sasha to travel to Newark to complete the transaction.
{¶4} Unbeknownst to Sasha, Lohr and her boyfriend—appellant—had no
intention of paying Sasha for drugs. Instead, they intended to rob her, viewing her as an
easy target. Lohr provided appellant with a pink pistol which he stowed in his waistband
in anticipation of the robbery.
{¶5} Sasha and Lohr communicated via text message and phone calls to arrange
a location to meet, eventually settling upon the dead-end street of Elmwood in Newark.
Helman drove a silver Honda Civic with Sasha in the front passenger seat. Sasha
observed Lohr come out from between two houses, unexpectedly accompanied
Licking County, Case No. 21CA0025 3
by appellant. Sasha didn’t know appellant personally but knew him to associate with
Lohr.
{¶6} Lohr got into the back seat of the Civic behind Helman and appellant got
into the back seat behind Sasha. Sasha turned slightly to greet the two, but appellant
pointed a gun at Helman and said words to the effect of, “Give me everything you’ve got.”
At some point, appellant pointed the gun at Helman’s head. Helman, who was left-
handed, turned slightly to show appellant that he, too, had a gun. Sasha testified that as
soon as Helman showed appellant his gun, three shots were fired.
{¶7} Helman had not put the car in park and it moved forward, smashing into a
truck parked on the street. Sasha opened her door and was thrown out of the car. She
lay curled on the ground. Appellant got out of the car and stood over her with a gun,
again demanding “Give me everything you’ve got.” Sasha heard a clicking and snapping
sound, and appellant looked at the gun. Then he ran off.
{¶8} Sasha checked on Helman, thinking he may have been pistol-whipped.
She didn’t see any blood and didn’t realize he was shot until she tried to “wake him up”
to no avail. She became hysterical as she realized Helman could not be revived. At
some point, Sasha handed off a bag of meth to a bystander before police arrived.
{¶9} Lohr was also addicted to methamphetamine and was appellant’s girlfriend
at the time of these events. At trial, she acknowledged her truthful testimony was in
exchange for a plea deal with appellee, wherein Lohr would plead to involuntary
manslaughter, aggravated robbery, and a 3-year firearm specification, and would serve
a prison term of 18 years.
Licking County, Case No. 21CA0025 4
{¶10} Lohr testified to the plan to rob Sasha. The plan began when Sasha
reached out to her, offering to sell meth. Lohr and appellant intended to rob Sasha from
the beginning and had no money to pay for the meth. Lohr testified that she and appellant
encountered Jane Doe and Harold Hadnot on the night of the robbery before it occurred,
and told the two of their plans. The Civic was parked on Elmwood Street at the dead end,
and Lohr and appellant walked to the car. They got in; Lohr greeted Sasha; appellant
pulled the gun and told Helman to park the car. Lohr testified that she jumped out of the
car at that point and took off running, but heard two gunshots behind her as she ran.
{¶11} Lohr testified that appellant caught up to her at a “flophouse” on Mount
Vernon Road. Appellant now had two guns with him, and told her he took one from
Helman. Appellant told Lohr he got shot at, shot back, and took Helman’s gun. Lohr said
appellant shaved his face and changed clothes in an attempt to change his appearance,
and left the flophouse with Aaron Elliott.
{¶12} Lohr was located by police and interviewed on the night of the shooting.
She told police about the robbery and her role in it; then she was arrested and has
remained in jail since. Lohr testified appellant has contacted her from jail via calls and
letters, telling her to change her story to make it consistent with his, and threatening her
if she failed to do so.
Jane Doe encounters Lohr and appellant before and after the crimes
{¶13} In August 2019, Jane Doe also struggled with drug addiction. She lived on
Elmwood Avenue and knew Lohr. The day before this incident, Doe noticed Lohr at the
Mount Vernon flophouse, complaining that she was hungry but had no money.
Licking County, Case No. 21CA0025 5
{¶14} On August 7, 2019, Doe planned to walk back to the flophouse from where
she was staying on Elmwood. As she left, she encountered Harold Hadnot in the front
yard, on a bicycle. She and Hadnot spoke briefly when Lohr and appellant approached
them. Appellant asked Hadnot if he wanted to help them rob people at the end of the
street. Doe looked over and noticed a car parked on Elmwood. Hadnot asked whether
guns were involved and said he wanted no part of it, then rode off on his bicycle. Doe
continued walking in the direction of Mount Vernon, and appellant and Lohr continued
walking toward the car.
{¶15} Lohr and appellant had come from the same flophouse that was Doe’s
destination. Lohr told Doe “Gary” and several other people were there. As Doe walked in
that direction, she heard two gunshots and screaming from the direction of Elmwood.
Doe took off running to the flophouse. When she arrived, she banged on the door and
begged to be let in. “Gary” moved a large piece of wood he kept over the door to keep
people out and let Doe in.
{¶16} Lohr and appellant arrived at the flophouse shortly after Doe, and Gary let
them in as well. Doe described the two as “frantic,” and Lohr was crying. Doe said both
were holding guns, and one was pink. Appellant said to Gary, “I just shot a dude. I think
he’s slumped.” Doe understood “slumped” to mean dead. Appellant showed Gary a shell
in his hand, and said he tried to find them all but could only find one. Doe also heard
appellant say, “He was going to shoot me so I shot him.” Appellant and Lohr started
removing their clothes. Gary gave Doe and another woman present a few dollars and
told them to essentially get lost. Doe and the woman went to a nearby convenience store
and bought snacks.
Licking County, Case No. 21CA0025 6
{¶17} Doe gave a statement to law enforcement that night and told them what she
knew about events leading up to the robbery and its aftermath.
{¶18} Doe considered appellant a friend and still does. She has had two
conversations with appellant since August 7, 2019; one of those conversations also
included Aaron Elliott. Doe is afraid of Elliott. Doe testified that appellant tried to
persuade her to go to the police and change her statement, and Elliott threatened her if
she refused to do so.
{¶19} Defense trial counsel cross examined Doe about her recollection of
appellant’s statements at the flophouse. Doe unequivocally testified appellant said, “That
dude was going to shoot me, so I shot him.” She denied that appellant ever said, “Dude
shot at me.”
Investigation immediately points to Lohr and appellant
{¶20} Newark police were initially dispatched to an auto accident at the dead-end
of Elmwood, but the call changed to “shots fired.” Upon arrival at the scene, officers found
a crashed silver Honda Civic. The passenger door was open and a victim was seated in
the driver’s seat. A female, later identified as Sasha Diehl, screamed and cried on the
sidewalk, and bystanders milled around.
{¶21} Officers pulled the victim out of the vehicle and initially believed this was a
potential overdose because there were no visible injuries. Medics arrived and waited for
police to clear the scene. One officer noticed a gunshot through the roof of the car,
leading to suspicion that the victim was shot although no gunshot wound was immediately
apparent. Sasha identified the victim as Matthew Helman. Officers looked for a firearm
at the scene but didn’t find any.
Licking County, Case No. 21CA0025 7
{¶22} Sasha told police at the scene that she and Helman were there to meet Lohr
and appellant, whose name she didn’t know. An officer pulled up Lohr’s Facebook page
and found a photo of appellant, whom Sasha identified as the person who got into the car
with Lohr and shot Helman.
{¶23} Officers texted detectives and each other with pertinent descriptive
information on Lohr and appellant, including their names, descriptions, and known haunts.
Officer Bill Evans knew of several flophouses near the scene and advised K-9 units to
track those locations. Word came in that an officer may have spotted appellant near the
flophouse on Mount Vernon, so police headed in that direction.
{¶24} Police also contacted Jane Doe, who said she was hungry. Officers told
her she could eat while she gave a statement. Police obtained a statement from Sasha,
who said she was inside the car when appellant shot Helman.
{¶25} The Chief Deputy Coroner who supervised Helman’s autopsy testified that
a gunshot entrance wound was located on his right arm. Tracing the trajectory of the
bullet, it traveled through the victim’s right arm without striking bone, through the armpit,
came out the inside of his arm, and entered his chest. The bullet crossed Helman’s right
lung, collapsing it, and entered his aorta. The bullet then went through the victim’s left
lung and lodged in the muscle in the left side of his back, just under the shoulder blade,
without exiting the body. Helman’s manner of death was homicide; the cause of death
was the gunshot wound to the arm and chest, which caused Helman’s blood pressure to
cease. Helman died within minutes from a lack of blood to the brain.
{¶26} Appellant was apprehended the night of the shooting. The officer
transporting him to the jail first escorted appellant outside for a cigarette, and briefly turned
Licking County, Case No. 21CA0025 8
away to text another officer about the status of jail paperwork. When the officer turned
away, appellant took off running despite having bare feet and his hands cuffed behind
him. He was apprehended a short distance away and said to the officer, “You guys are
going to take my life away; I had to try.”
{¶27} Lohr’s pink pistol was never found. Appellant admitted to detectives that he
removed a shell casing and Helman’s gun from the scene; both of these items were found
at the Mount Vernon flophouse.
Indictment, trial, conviction, and sentence
{¶28} Appellant was charged by indictment as follows: one count of aggravated
murder pursuant to R.C. 2903.01(B), an unclassified felony [Count I]; one count of murder
pursuant to R.C. 2903.02(B), an unclassified felony [Count II]; one count of aggravated
robbery pursuant to R.C. 2911.01(A)(1), a felony of the first degree [Count III]; one count
of escape pursuant to R.C. 2921.34(A)(1), a felony of the second degree [Count IV]; one
count of having weapons under disability pursuant to R.C. 2923.13(A)(2), a felony of the
third degree [Count V]; one count of tampering with evidence pursuant to R.C.
2921.12(A)(1), a felony of the third degree [Count VI]. Counts I, II, and III were
accompanied by firearm specifications pursuant to R.C. 2941.145(A). The indictment
also contained a repeat-violent-offender (R.V.O.) specification pursuant to R.C.
2941.149(A).
{¶29} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Before trial, appellant waived his right to trial by jury upon Count V and the R.V.O.
specification; those matters were therefore decided by the trial court.
Licking County, Case No. 21CA0025 9
{¶30} Appellant was found guilty as charged. The trial court sentenced appellant
to an aggregate indefinite prison term of 40 years to life.
{¶31} Appellant now appeals from the trial court’s March 5, 2021 Judgment of
Conviction and Sentence.
{¶32} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶33} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO
CONSTITUTION BY FINDING HIM GUILTY OF AGGRAVATED MURDER; MURDER;
AGGRAVATED ROBBERY; TAMPERING WITH EVIDENCE; ESCAPE; AND HAVING
WEAPONS UNDER DISABILITY AS THOSE VERDICTS WERE NOT SUPPORTED BY
SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
{¶34} “II. THE TRIAL COURT SENTENCED APPELLANT TO AN INDEFINITE
TERM OF INCARCERATION PURSUANT TO A STATUTORY SCHEME THAT
VIOLATES APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.”
{¶35} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
BY SENTENCING HIM IN CONTRAVENTION OF OHIO’S SENTENCING STATUTES.”
Licking County, Case No. 21CA0025 10
ANALYSIS
I.
{¶36} In his first assignment of error, appellant asserts his convictions upon each
count are not supported by sufficient evidence and are against the manifest weight of the
evidence. We disagree.
{¶37} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. 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.”
{¶38} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
Licking County, Case No. 21CA0025 11
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶39} Although appellant frames this assignment of error as a challenge to all of
his convictions, his argument addresses only Count I, aggravated murder. Appellant was
convicted upon one count of aggravated murder pursuant to R.C. 2923.01(B), which
states in pertinent part: “No person shall purposely cause the death of another * * * while
committing or attempting to commit, or while fleeing immediately after committing or
attempting to commit, * * * aggravated robbery * * *.” Appellant claims appellee presented
insufficient evidence that he purposely caused Helman’s death. “A person acts purposely
when it is the person's specific intention to cause a certain result, or, when the gist of the
offense is a prohibition against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is the offender's specific intention to engage in conduct
of that nature.” R.C. 2901.22(A).
{¶40} Appellee presented evidence that appellant and Lohr intended to rob Sasha
and that Lohr provided appellant with a pistol for that express purpose. Once appellant
and Lohr entered the car, appellant pulled the gun almost immediately and told Sasha,
“Give me everything you’ve got.” When Helman showed his own gun, appellant fired at
least twice, striking Helman in the right arm.
{¶41} The trial court instructed the jury as follows:
* * * *.
Purposely. Purpose is an essential element of the offense of
aggravated murder.
Licking County, Case No. 21CA0025 12
A person acts purposely when it is his specific intention to
cause a certain result. It must be established in this case that at the
time in question, there was present in the mind of the defendant a
specific intention to cause the death of Matthew Helman.
Purpose is a decision of the mind to do an act with a conscious
objective of producing a specific result. To do an act purposely is to
do it intentionally and not accidentally.
Purpose and intent mean the same thing.
The purpose with which a person does an act is known only
to himself unless he expresses it to others or indicates it by his
conduct. The purpose with which a person does an act is determined
from the manner in which it is done, the means it used, and all the
other facts and circumstances in evidence.
If a wound is inflicted on a person with a deadly weapon in a
manner calculated to destroy life, the purpose to cause death may
be, but is not required to be, inferred from the use of the weapon.
The inference, if not made, is not conclusive.
* * * *.
T. 1196-1197.
{¶42} The jury could reasonably believe from the evidence presented that
appellant shot at Helman with the specific intention of killing him. This murder occurred
within the confined space of a vehicle. Appellant immediately pulled a gun on Helman
and his reaction to Helman’s brandishing of a gun was to shoot him. Appellant was later
Licking County, Case No. 21CA0025 13
overheard stating, “Dude was going to shoot me so I shot him,” thereby summarizing his
purposeful act. The jury could reasonably find appellant shot Helman with the conscious
objective of causing Helman’s death.
{¶43} In his brief, appellant misquotes the jury instruction in a consequential way.
He argues the trial court told the jury, “If you find that the defendant used a deadly weapon
against another in a manner calculated to destroy life….,” but the accurate instruction is,
“[i]f a wound is inflicted on a person with a deadly weapon in a manner calculated to
destroy life….” Id. Appellant argues the mere fact of **carrying a firearm for protection
during a drug deal*** doesn’t rise to the level of purposely intending to cause the victim’s
death. But the cited portion of the instruction emphasizes the key is the appellant’s act
of pulling the trigger, thereby inflicting the wound.
{¶44} Appellant implies that because Helman was shot in the arm, appellant didn’t
purposely intend to cause his death. Shooting someone in the arm inside a Honda Civic
does not leave room for speculation as to appellant’s purpose. The jury could reasonably
find he intended to kill Helman.
{¶45} Appellant directs us to our decision in State v. Grimes, 5th Dist. Richland
No. 2019CA0103, 2020-Ohio-4357, at ¶ 46, in which we addressed the element of
“purposely:”
* * * *. A person has knowledge of circumstances when he is
aware that such circumstances probably exist. R.C. 2901.22(B). It is
well-established that one may be presumed to intend results which
are the natural, reasonable, and probable consequences of his
voluntary actions. State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11Licking County, Case No. 21CA0025 14
(1951). Further, “it is not necessary that the accused be in a position
to foresee the precise consequence of his conduct, only that the
consequence be foreseeable in the sense that what actually
transpired was natural and logical in that it was within the scope of
the risk created by his conduct.” State v. Wilson, 5th Dist. Richland
No. 13CA39, 2014-Ohio-41, quoting State v. Losey, 23 Ohio App.3d
93, 491 N.E.2d 379 (10th Dist. 1995).
{¶46} We agree that Grimes is instructive, although in our reading it supports the
jury’s verdict that appellant acted purposely. Helman’s injuries and death are a
reasonably foreseeable result of appellant's actions. Grimes, supra at ¶ 47. Appellant
may not have foreseen the precise injuries the victims would sustain as a result of his
actions, but the injuries were within the scope of the risk created by his conduct. Id., citing
State v. Lett, 8th Dist. Cuyahoga No. 106973, 2019-Ohio-532.
{¶47} Based on the testimony and evidence in this case, we find any rational trier
of fact could have found the essential elements of R.C. 2903.01(B) proven beyond a
reasonable doubt. We find sufficient evidence exists to support appellant's convictions
and the convictions are not against the manifest weight of the evidence. Appellant's first
assignment of error is overruled.
II.
{¶48} Appellant’s second assignment of error challenges the constitutionality of
the Reagan Tokes Act, which codified hybrid indefinite prison terms for first- and second-
degree felonies. Appellant challenges the presumptive-release feature of the act, R.C.
2967.271, and advances several arguments, including it violates his constitutional
rights
Licking County, Case No. 21CA0025 15
to trial by jury and due process of law, and further violates the constitutional requirement
of separation of powers and equal protection. We disagree.
{¶49} We note appellant did not raise the constitutionality of R.C. 2967.271 before
the trial court and has not argued defense trial counsel was ineffective in failing to do so.
We addressed the concept of ripeness for review in regard to the Reagan Tokes Act
in State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227, appeal allowed,
160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1152:
The Ohio Supreme Court discussed the concept of ripeness
for review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82
Ohio St.3d 88, 1998-Ohio-366, 694 N.E.2d 459:
Ripeness “is peculiarly a question of timing.” Regional Rail
Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335,
357, 42 L.Ed.2d 320, 351. The ripeness doctrine is motivated in part
by the desire “to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements
over administrative policies * * *.” Abbott Laboratories v. Gardner
(1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681,
691. As one writer has observed:
The basic principle of ripeness may be derived from the
conclusion that ‘judicial machinery should be conserved for problems
which are real or present and imminent, not squandered on problems
which are abstract or hypothetical or remote.’ * * * [T]he prerequisite
of ripeness is a limitation on jurisdiction that is nevertheless basically
Licking County, Case No. 21CA0025 16
optimistic as regards the prospects of a day in court: the time for
judicial relief is simply not yet arrived, even though the alleged action
of the defendant foretells legal injury to the plaintiff. Comment,
Mootness and Ripeness: The Postman Always Rings Twice (1965),
65 Colum. L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460.
In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-
Ohio-171, the defendant argued because the Parole Board, pursuant
to R.C. 2967.28, could extend his sentence by up to an additional
five years for violation of post-release control, the statute was
unconstitutional. The Eighth District Court of Appeals concluded
because McCann was not currently the subject of such action by the
Parole Board, the issue was not yet ripe for review. Id. at ¶6.
Likewise, in the instant case, while R.C. 2967.271 allows the
DRC to rebut the presumption Appellant will be released after serving
his nine-year minimum sentence and potentially continue his
incarceration to a term not exceeding thirteen years, Appellant has
not yet been subject to such action by the DRC, and thus the
constitutional issue is not yet ripe for our review.
State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-
4227, supra, ¶ 8-11, appeal allowed, 160 Ohio St.3d 1507, 2020-
Ohio-6835, 159 N.E.3d 1152; see also, State v. Buckner, 5th Dist.
Muskingum Nos. CT2020-0023 & CT2020-0024, 2020-Ohio-7017;
State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501;
Licking County, Case No. 21CA0025 17
State v. Cochran, 5th Dist. Licking No. 2019 CA 00122, 2020-Ohio-
5329; State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-
Ohio-5013; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03
0009, 2020-Ohio-4230; State v. Kibler, 5th Dist. Muskingum No.
CT2020-0026, 2020-Ohio-4631.
{¶50} Appellant does not dispute he is not yet subject to the provisions of R.C.
2967.271. We therefore find here, as we did in Downard, that his constitutional challenge
is not yet ripe for review. State v. Williams, 5th Dist. Coshocton No. 2021CA0003, --
N.E.3d--, 2021-Ohio-3579, ¶ 19; State v. Chester, 5th Dist. Stark No. 2020CA00028,
2021-Ohio-918, ¶ 61, appeal not allowed, 163 Ohio St.3d 1495, 2021-Ohio-2270, 169
N.E.3d 1282.
{¶51} We find no error in the trial court's sentence. Appellant's second assignment
of error is overruled.
III.
{¶52} In his third assignment of error, appellant argues the trial court’s sentence
violates the principles and purposes of felony sentencing and does not comply with Ohio
sentencing statutes. We disagree.
{¶53} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
Licking County, Case No. 21CA0025 18
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28.
{¶54} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. “Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161
Ohio St. at 477, 120 N.E.2d 118.
{¶55} Appellant argues the trial court failed to comply with R.C. 2929.11
[overriding purposes of felony sentencing] and R.C. 2929.12 [factors to consider in felony
sentencing]. Recently, the Ohio Supreme Court addressed whether a sentence is
“contrary to law” under R.C. 2953.08(G)(2)(b) if an appellate court finds that the record
does not support a sentence with respect to R.C. 2929.11 and 2929.12. State v. Jones,
163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. A plurality of the Court in Jones
noted nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh
the evidence in the record and substitute its judgment for that of the trial court concerning
the sentence that best reflects compliance with R.C. 2929.11 and 2929.12. Id., ¶ 42.
Additionally, neither R.C. 2929.11 nor 2929.12 requires a trial court to make any specific
factual findings on the record. Id., ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-
Ohio-2669, 951 N.E.2d 381, ¶ 31.
{¶56} Turning to appellant's argument, we are foreclosed from weighing the
evidence and substituting our judgment for that of the trial court in determining whether
Licking County, Case No. 21CA0025 19
the sentence complies with R.C. 2929.11 and R.C. 2929.12. Nonetheless, the record
supports the trial court's decision to impose a prison term. Appellant was found guilty of
shooting and killing Helman, pointing a gun at and robbing Sasha, taking and hiding
evidence from the scene, fleeing from the scene, and running from officers while in
custody. Appellant also tried to intimidate and harass witnesses against him. He showed
a lack of remorse. Finally, at the time of the murder and related crimes, appellant was on
post-release control for aggravated robbery and was released from prison less than a
month prior. Appellant had numerous disciplinary actions during his prison stint, further
indicating a significant risk of recidivism.
{¶57} The record before us clearly and convincingly supports the sentence of the
trial court. Appellant has not pointed to any evidence that the trial court abused its
discretion and the sentence complies with the purposes and principles of felony
sentencing.
{¶58} Appellant's third assignment of error is therefore overruled.
Licking County, Case No. 21CA0025 20
CONCLUSION
{¶59} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J., and
Wise, John, J. concur; and
Gwin, P.J., concurs in part,
and dissents, in part.
Licking County, Case No. 21CA0025 21
Gwin, J., concurs in part; dissent in part.
{¶60} I concur in the majority’s disposition of Appellant’s First and Third
Assignments of Error.
{¶61} I respectfully dissent from the majority’s opinion concerning ripeness and
Appellant’s Second Assignment of Error for the reasons set forth in my dissenting opinion in
State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-Ohio-5501.
{¶62} I further note that the Ohio Supreme Court has accepted a certified conflict on
the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review on
direct appeal or only after the defendant has served the minimum term and been subject to
extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas No. L-19-
1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d
1505, 2020-Ohio-6913, 159 N.E.3d 1150(Table) The conflict cases are State v. Leet, 2d
Dist. Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist. Montgomery
No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-
Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837;
See also, State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227,
appeal accepted on Appellant’s Proposition of Law No. II, State v. Downard, 160 Ohio
St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1507 (Table)(Sua sponte, cause held for the
decision in 2020-1266, State v. Maddox). The Ohio Supreme Court heard oral arguments
on that case on June 29, 2021.