State v. Bryant ( 2022 )

[Cite as State v. Bryant, 2022-Ohio-3669.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 111206 and 111522
v. :
EDWONTE BRYANT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: October 13, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-646608-A and CR-21-658077-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN T. GALLAGHER, J.:
In this consolidated appeal, defendant-appellant, Edwonte Bryant
(“Bryant”), appeals from his convictions and sentence. He raises the following
assignments of error for review:
1. Bryant’s convictions were not supported by sufficient evidence and
the trial court erred by denying his motion for acquittal.
2. The convictions were against the manifest weight of the evidence.
3. The trial court erred by imposing an indefinite sentence pursuant to
the Reagan Tokes Act because it is unconstitutional, and the sentences
imposed are contrary to law.
After careful review of the record and relevant case law, we affirm in
part, reverse in part, and remand for further proceedings consistent with this
opinion.
I. Procedural and Factual History
On December 12, 2019, Bryant was named in a five-count indictment
in Cuyahoga C.P. No. CR-19-646608-A. The indictment charged him with
aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year
firearm specifications (Count 1); robbery in violation of R.C. 2911.02(A)(2), with
one- and three-year firearm specifications (Count 2); failure to comply in violation
of R.C. 2921.331(B) (Count 3); having weapons while under disability in violation of
R.C. 2923.13(A)(2), with forfeiture specifications (Count 4); and carrying a
concealed weapon in violation of R.C. 2923.12(A)(2), with a forfeiture specification
(Count 5).
On October 28, 2020, Bryant retracted his former plea of not guilty and
pleaded guilty to aggravated robbery, with a one-year firearm specification as
amended in Count 1 of the indictment; failure to comply as charged in Count 3 of
the indictment; and having weapons while under disability as charged in Count 4 of
the indictment. The remaining counts were nolled.
On November 17, 2020, Bryant was sentenced to a one-year term of
imprisonment on the firearm specification attached to Count 1, to run prior and
consecutive to a minimum three-year term of imprisonment on the underlying
aggravated robbery offense. The trial court further sentenced Bryant to a nine-
month term of imprisonment on the failure to comply offense, to run consecutive to
Count 1, and a one-year term of imprisonment on the having weapons while under
disability offense, to run concurrently with Counts 1 and 3. Pertinent to this appeal,
the trial court summarized Bryant’s sentence as follows:
So this is a Reagan Tokes S.B. 201 case. You’re going to have to serve
the one-year prior to and consecutive to the minimum stated term. The
minimum stated term is three years and nine months with a maximum
term of five years and three months. That’s a total stated prison term
of four years, nine months; six years, three months.
(Tr. 30.)
On March 30, 2021, Bryant was named in an eight-count indictment in
Cuyahoga C.P. No. CR-20-658077-A. The indictment charged Bryant with rape in
violation of R.C. 2907.02(A)(1)(b), with a sexually violent predator specification and
a furthermore clause that the defendant “purposely compelled the victim, who was
under ten years of age at the commission of the offense, to submit by force or threat
of force” (Count 1); kidnapping in violation of R.C. 2905.01(A)(4), with sexual
motivation and sexually-violent-predator specifications (Count 2); gross sexual
imposition in violation of R.C. 2907.05(A)(4), with a sexually-violent-predator
specification (Count 3); kidnapping in violation of R.C. 2905.01(A)(4), with sexual
motivation and sexually-violent-predator specifications (Count 4); rape in violation
of R.C. 2907.02(A)(1)(b), with a sexually-violent-predator specification and a
furthermore clause that the defendant “purposely compelled the victim, who was
under ten years of age at the commission of the offense, to submit by force or threat
of force” (Count 5); gross sexual imposition in violation of R.C. 2907.05(A)(4), with
a sexually-violent-predator specification (Count 6); gross sexual imposition in
violation of R.C. 2907.05(A)(4), with a sexually-violent-predator specification
(Count 7); and gross sexual imposition in violation of R.C. 2907.05(A)(4), with a
sexually-violent-predator specification (Count 8).
Counts 1 and 2 of the indictment alleged that Bryant sexually assaulted
the victim, D.M. (d.o.b. 03/29/2003), between January 1, 2011, and December 31,
2011. Counts 3 and 4 of the indictment alleged that Bryant sexually assaulted the
victim, J.M. (d.o.b. 10/23/2004), between January 1, 2011, and December 31, 2011.
Finally, Counts 5, 6, 7, and 8 of the indictment alleged that Bryant sexually assaulted
the victim, C.W. (d.o.b. 10/24/2000), between January 1, 2008, and October 25,
2011.
On November 1, 2021, the matter proceeded to a bench trial, where the
following facts were adduced.
On behalf of the state, Michael Bokmiller (“Bokmiller”), of the
Cuyahoga County Division of Child and Family Services (“CCDCFS”), testified that
in February 2019, he was assigned to investigate allegations of sexual abuse
involving the minor child, J.M. Bokmiller specified that the circumstances that
prompted his investigation pertained to a rape allegation that is unrelated to this
case. In the course of his investigation into this unrelated matter, Bokmiller
questioned J.M. about her sexual history and whether she had ever been sexually
assaulted in the past. At that time, J.M. revealed that when she was approximately
six years old her “cousin’s half-brother,” later identified as Bryant, “put his private
part on her privates.” (Tr. 130.) Upon further inquiry, Bokmiller confirmed that
Bryant had access to J.M. during the pertinent time period. Accordingly, Bokmiller
reported J.M.’s allegation to the Cleveland Police Department.
Detective Richard Tusing (“Det. Tusing”), of the Cleveland Police
Department, testified that in March 2019, he was assigned to investigate allegations
of sexual abuse involving J.M. and her older sister, D.M. In the course of his
investigation, Det. Tusing separately interviewed D.M., J.M., and their mother, A.W.
Det. Tusing confirmed that D.M. and J.M. each disclosed instances of sexual assault
committed by Bryant. Based on the information gathered from A.W., Det. Tusing
was able to narrow the date of the alleged instances of sexual abuse to a weekend in
May 2011. Det. Tusing testified that A.W. was confident that D.M. and J.M.’s only
exposure to Bryant was during a weekend they spent at their aunt’s home while A.W.
recovered from a recent hospitalization.
Det. Tusing testified that he also learned from A.W. that her niece,
C.W., had also reported being sexually abused by Bryant when she was a child. He
explained as follows:
When I spoke with [A.W.] on the phone, she had informed me that
there was another family member who had disclosed to her that she
had been molested by the same individual.
(Tr. 186-187.) In light of this information, Det. Tusing separately interviewed C.W.,
and documented her allegations against Bryant. Det. Tusing then collected all
pertinent medical and counseling records and presented the case to the grand jury
for indictment.
At trial, D.M., then 18 years old, testified that when she was
approximately eight years old, she and her younger sister, J.M., visited the home of
their cousin, Renaja, in the summer of 2011. D.M. stated that Bryant lived in the
same home as Renaja and was present at the time of the visit. D.M. explained that
Bryant was Renaja’s half-sibling and was not her blood relative. D.M. summarized
her interaction with Bryant on the day of the visit as follows:
It was me and my sister and we came from church and then he [Bryant]
was there and he asked if we want to play a game. I said yeah. And
then he took me to a room and he put a cover over my head and then
that’s when he put his penis in me and I said, “I don’t want to play no
more,” so he stopped.
(Tr. 58.) When asked if she could recall specific details of the incident, D.M. stated
that she remembered that she was wearing “a white shirt and a pink skirt with white
polka dots on it.” (Tr. 60.) D.M. explained that she remembered her outfit because
Bryant asked to adjust her skirt before he covered her face with a blanket. D.M. then
clarified that Bryant “put his penis” in her vagina while she was laying on a bed. (Tr.
61.) D.M. stated that she immediately told Bryant that he was hurting her and that
she did not want to play the game anymore. According to D.M., Bryant then left the
bedroom and went into the living room.
As a result of the incident, D.M. did not “go back over Renaja’s when
[Bryant] was there.” (Tr. 63.) However, D.M. conceded that she did not tell anyone
about Bryant’s conduct at the time it occurred. D.M. explained her inaction as
follows:
I really didn’t know * * * like, what was going on because I was so young,
but then as I got older and started thinking, I found out what happened.
(Tr. 62.) Thus, D.M. confirmed that she did not disclose the incident to her mother
or the police until 2019.
On cross-examination, D.M. was unable to recall whether the incident
occurred during the beginning or end of the summer of 2011. However, D.M. was
confident that it occurred at some point during the summer “because it was hot.”
(Tr. 64.) D.M. also reiterated her testimony that Bryant asked her to play a game,
and took her into a nearby bedroom where he proceeded to cover her face with a
blanket, remove her skirt, and put his penis in her vagina. D.M. conceded, however,
that she never saw Bryant’s penis and only felt something penetrate her.
Regarding D.M.’s delayed disclosure of the incident to the authorities,
D.M. explained that she decided to tell her mother about the incident after she
learned that her younger sister, J.M., had reported instances of sexual abuse to a
CCDCFS employee. Thereafter, D.M. went to the police and made a formal
statement. D.M. confirmed that she asked Det. Tusing how an investigation could
proceed in the absence of physical evidence or an eyewitness. She also conceded
that she asked Det. Tusing, “I’m not saying that I’m lying, but what if I was?” (Tr.
74.) D.M. later explained that she posed the foregoing questions because she was
concerned with whether the police could do anything because the incident “was so
long ago.” (Tr. 83.) D.M. restated that she was not “lying on the witness stand,” and
that Bryant did, in fact, “stick his penis in [her] vagina.” (Tr. 84.)
Defense counsel further questioned D.M. at length about her past
behavior, including instances when D.M. had reported to her mother in “2009 or
2010” that she had seen faces “with no features on them.” (Tr. 76.) On a separate
occasion when she was seven or eight-years old, D.M. told her mother that she “saw
a good witch that would tell [her] to do or say things.” (Tr. 77.) D.M. testified that
she saw a doctor about her visions and was prescribed a medicine. D.M. did not
remember the name of the medicine she was prescribed, but confirmed that she only
took the medication a “couple times” because she “didn’t like the way it made [her]
feel.” (Tr. 79.)
J.M. was 17-years old at the time of trial. J.M. identified Bryant in court
and stated that she was familiar with him through her cousin, Renaja. J.M. testified
that when she was six or seven years old, she and her older sister, D.M., visited Renaja
at her home located in Cleveland, Ohio. J.M. recalled watching television with her
sister in the living room. At some point, D.M. left the living room and walked into
another room. When D.M. returned to the living room, she told J.M. that Bryant
wanted to “play a game” with her in the bedroom. She described the incident as
follows:
Me and my sister went to [Bryant’s] house and we was sitting on the
couch and I remember seeing [D.M.] get up [and], like, go somewhere
and come back to the couch where I was sitting at and then that’s when
she told me, like, [Bryant] want to play a game or something like that,
and I went in the room and then [D.M.] didn’t tell me exactly, she just
said a game, so I didn’t think nothing of it — and I went in there and I
remember laying down with a pillowcase on my head and then him
rubbing his private on mine.
(Tr. 92-93.) When asked for further details, D.M. testified that once Bryant led her
into the bedroom, he put a bin against the bedroom door “so that nobody [would]
come in there,” and had D.M. lay down on a futon. (Tr. 95.) Thereafter, Bryant “put
a pillowcase on [D.M.’s] head and lifted up [her] skirt.” (Tr. 95.) Bryant then rubbed
his penis on “the skin of [D.M.’s] vagina.” (Tr. 96.) D.M. testified that when she felt
Bryant touch her private area, she expressed that she “did not want to play this game
anymore.” (Tr. 96.) D.M. testified that she returned to the living room but did not
tell anyone about what Bryant had done to her in the bedroom. D.M. stated that she
first disclosed the incident while speaking with a counselor in 2019. Thereafter,
D.M. spoke to her mother about the incident, and CCDCFS and the police were
contacted.
On cross-examination, J.M. stated that she believed the incident
involving Bryant occurred in the winter of 2010 or 2011, because she “remember[ed]
it being cold outside.” (Tr. 100.) J.M. could not recall whether she told the
investigating detectives about Bryant placing bins in front of his bedroom door
before the incident took place. However, she maintained that she consistently
disclosed to her counselor, her mother, the prosecutor, and the investigating
detectives that Bryant rubbed his penis on her vagina. J.M. was questioned at length
about her delayed disclosure of the incident. J.M. explained that she began speaking
to a counselor to address behavioral concerns and issues relating to her relationship
with her mother. J.M. testified that she disclosed Bryant’s actions while speaking to
a counselor about an unrelated incident of sexual abuse.
C.W. was 21 years old at the time of trial. C.W. testified that she is
cousins with D.M., J.M., and Renaja. C.W. testified that she was close with Renaja
when they were younger and would often spend the night at her home. C.W. stated
that when she was approximately six years old, Bryant began molesting her when
she slept over. (Tr. 160.) According to C.W., Bryant first started touching her
inappropriately while she was asleep in Renaja’s bedroom. She explained that she
would wake up with her pants down and Bryant touching various parts of her body,
including her “thighs, vagina, and butt.” (Tr. 161.) C.W. clarified that Bryant would
touch her with either his penis or his hand and would leave the bedroom once she
woke up.
In addition to the instances occurring during sleepovers at Renaja’s
house, C.W. testified that Bryant inappropriately touched her in her own home when
she was in the fourth grade. She described this incident as follows:
We were playing hide and seek. I went to hide in the closet. He came
after me and he pulled my pants down and put his penis against, like,
the back of my thigh, my lower butt area.
(Tr. 164.)
C.W. estimated that the abuse occurred from the time she was six years
old until her “early teenage years.” (Tr. 163.) Thus, C.W confirmed that between the
years of 2006 and 2011 or 2012, Bryant had touched her inappropriately on
“multiple occasions.” (Tr. 163.) C.W. testified that she did not speak to anyone
about the sexual abuse until she disclosed the incidents to her aunt, A.W., when she
was 18 years old. She explained that she felt comfortable disclosing the sexual abuse
at that time because she was older and “had a better support system.” (Tr. 169.)
After A.W. contacted the police, C.W. agreed to meet with Det. Tusing and a victim
advocate.
At the close of the state’s case-in-chief, the trial court granted Bryant’s
Crim.R. 29 motion for acquittal as it pertained to Count 5 of the indictment. (Tr.
208-209.) The motion was denied as to the remaining counts.
At the conclusion of trial, Bryant was found guilty of sexual battery, a
lesser-included offense of rape (Count 1); and four counts of gross sexual imposition
(Counts 3, 6, 7, and 8). The court further found Bryant guilty of the sexually-violent-
predator specifications attached to Counts 1, 3, 6, 7, and 8. Bryant was found not
guilty of each kidnapping offense (Counts 2 and 4).
On December 16, 2021, the trial court imposed an aggregate prison
term of five years in Case No. CR-20-658077-A, to run concurrently with the prison
term imposed in Case No. CR-19-646608-A. The court further found Bryant to be a
Tier III sex offender on Count 1, and a Tier II sex offender on Counts 3, 6, 7, and 8.
The sentence was journalized in an entry dated December 18, 2021.
On December 21, 2021, the trial court held a hearing to clarify the
sentence “in regard to [Case No. CR-19]-646608-A.” At the onset of the hearing, the
prosecutor made the following statement on the record:
In regard to Case 646608, the defendant was sentenced to a term of
incarceration for a one-year firearm specification as well as nine
months on a failure to comply count as well. By operation of law, those
have to be run consecutive to each other, first of all, and the gun spec
has to be served first and the sentence in this case would have to run
consecutive to that portion of his sentence in 646608.
So, at this time, it is the State’s understanding that effectively the five-
year prison sentence has to be run consecutive to that portion of the
sentence, making his total time of incarceration six years and nine
months.
(Tr. 249-250.)
Upon noting defense counsel’s objection to the resentencing hearing,
the court stated, in pertinent part:
All right. So to be clear; in Case 658077, I sentenced you to a total of
five years. Count 1 was five years on sexual battery, a felony of the
second degree; Count 3 was gross sexual imposition, a felony of the
third degree, I sentenced you to 36 months to be concurrent to Count
1; Count 6 was gross sexual imposition, a felony of the third degree, I
sentenced you to 36 months concurrent; Count 5 was gross sexual
imposition, a felony of the third degree, and I sentenced you to 36
months concurrent to all those counts; and Count 8, gross sexual
imposition, a felony of the third degree, I sentenced you to 36 months
to run concurrent to all other counts. That’s a total of five years.
Now, in regard to Case 646608, it is true that you plead[ed] guilty to a
one-year firearm specification, that would need to be run prior to and
consecutive to the underlying sentence, and you also plead[ed] guilty
to failure to comply, a felony of the third degree. That also needs to be
run concurrent [sic]. So, in essence, as the assistant county prosecutor,
* * *, relayed for the record, you will be serving a total of six years and
nine months.
You also do need, and this was all said on the record prior, to register
as a Tier III sex offender.
(Tr. 250-251.)
On January 4, 2022, the trial court issued a nunc pro tunc journal
entry in Case No. CR-20-658077-A, clarifying that the aggregate prison term
imposed in Case Nos. CR-19-646608-A and CR-20-658077-A “is 6 years, 9 months.”
Bryant now appeals from his convictions and sentence.
II. Law and Analysis
A Sufficiency of the Evidence
In his first assignment of error, Bryant argues the trial court erred in
denying his Crim.R. 29 motion for acquittal when the state produced insufficient
evidence as a matter of law to support his convictions in Case No. CR-20-658077-A.
Bryant contends that “the lack of evidence, significant inconsistencies, and
indication that the allegations were likely fabricated, merited a dismissal of all
charges pursuant to Crim.R. 29.”
Pursuant to Crim.R. 29(A), a court “shall order the entry of the
judgment of acquittal of one or more offenses * * * if the evidence is
insufficient to sustain a conviction of such offense or offenses.”
Because a Crim.R. 29 motion questions the sufficiency of the evidence,
“[w]e apply the same standard of review to Crim.R. 29 motions as we
use in reviewing the sufficiency of the evidence.”
Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37,
quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
When assessing a challenge to the sufficiency of the evidence, a
reviewing court examines the evidence admitted at trial and determines whether
such evidence, if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. “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.” Id. A reviewing court is not to assess “whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678
N.E.2d 541 (1997).
Relevant to this appeal, it is well settled that “physical evidence is not
required to establish a defendant’s guilt beyond a reasonable doubt.” State v. Lopez,
8th Dist. Cuyahoga No. 94312, 2011-Ohio-182, ¶ 62. Circumstantial and direct
evidence “possess the same probative value.” Jenks at 272. Thus, “witness
testimony alone is sufficient to convict someone of a crime.” State v. Bradley, 8th
Dist. Cuyahoga No. 108983, 2020-Ohio-3460, ¶ 34, citing State v. Rudd, 8th Dist.
Cuyahoga No. 102754, 2016-Ohio-106, ¶ 37 (“eyewitness identification alone is
sufficient to support a conviction — even where discrepancies exist — so long as a
reasonable juror could find the eyewitness testimony to be credible”).
1. Venue
Preliminarily, Bryant contends the state failed to sufficiently establish
the venue of the offenses, arguing that “no one identified the location of the incidents
other than to say it was somewhere in Cleveland.” We disagree.
Venue is not a material element of any crime, but is a fact that must
be proven beyond a reasonable doubt. State v. Headley, 6 Ohio St.3d 475, 477, 453
N.E.2d 716 (1983). It is “not essential that the venue of the crime be proven in
express terms, provided it be established by all the facts and circumstances in the
case, beyond a reasonable doubt, that the crime was committed in the county and
state as alleged in the indictment.” State v. Hampton, 134 Ohio St.3d 447, 2012-
Ohio-5688, 983 N.E.2d 324, ¶ 19, quoting State v. Dickerson, 77 Ohio St. 34, 82 N.E.
969 (1907), paragraph one of the syllabus.
In this case, the evidence conclusively established that the alleged
instances of sexual abuse committed against D.M., J.M., and C.W., either occurred
in Bryant’s home or in C.W.’s home. At trial, D.M., J.M., and C.W. each testified that
Bryant’s home was located within Cleveland, Ohio. (Tr. 59, 92, 157.) C.W. further
confirmed that she lived in Cuyahoga County, Ohio at the time Bryant
inappropriately touched her in her home. (Tr. 163.) Under these circumstances, we
find the evidence was sufficient to establish that the alleged offenses occurred in
Cuyahoga County, Ohio.
2. Sexual Battery
With respect to D.M., Bryant was convicted of sexual battery in
violation of R.C. 2907.03(A)(1) (Count 1). Sexual battery by coercion under R.C.
2907.03(A)(1) is the lesser-included offense of rape. State v. Johnson, 112 Ohio St.
3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 268. Sexual battery requires proof
that the offender engaged in “sexual conduct” with another who is not his spouse by
“knowingly coerc[ing] the other person to submit by any means that would prevent
resistance by a person of ordinary resolution.” R.C. 2907.03(A)(1).; State v. Parker,
8th Dist. Cuyahoga No. 110563, 2022-Ohio-377, ¶ 15.
R.C. 2901.22(B) provides that “[a] person acts knowingly, regardless
of purpose, when the person is aware that the person’s conduct will probably cause
a certain result or will probably be of a certain nature.” Further, “[a] person has
knowledge of circumstances when the person is aware that such circumstances
probably exist.” Id.Pursuant to R.C. 2907.01(A), the term “sexual conduct” includes the
following:
vaginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of
the body or any instrument, apparatus, or other object into the vaginal
or anal opening of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
The Revised Code does not define “coercion” or “ordinary resolution.”
When the General Assembly does not define a word or phrase, that word or phrase
is given its ordinary meaning. State v. Taylor, 8th Dist. Cuyahoga N0. 78383, 2001
Ohio App. LEXIS 2513, 8 (June 7, 2001). “As used in the context of R.C.
2907.03(A)(1), resolution means a firmness of purpose [and] an ability to resist
coercion.” Id. As provided by the commentary to R.C. 2907.03, sexual conduct by
coercion is broader than sexual conduct by force, does not require proof of force,
and “‘necessarily includes all uses of force.’” State v. Ford, 8th Dist. Cuyahoga No.
107541, 2019-Ohio-2570, ¶ 21, quoting State v. Wilkins, 64 Ohio St.2d 382, 386, 415
N.E.2d 303 (1980).
The Ohio Supreme Court has defined “coercion” to include “‘a
compulsion brought about by moral force or in some other manner with or without
physical force,’” and has explained that it is an “‘essential characteristic of coercion’”
that “‘force, threat of force, strong persuasion or domination by another, necessitous
circumstances, or some combination of those, has overcome the mind or volition of
the [victim] so that [s]he acted other than [s]he ordinarily would have acted in the
absence of those influences.’” Ford at ¶ 22, quoting State v. Woods, 48 Ohio St.2d
127, 137, 357 N.E.2d 1059 (1976). The Ohio Supreme Court has also recognized that
“[f]orce need not be overt and physically brutal, but can be subtle and
psychological.” State v. Eskridge, 38 Ohio St.3d 56, 58, 526 N.E.2d 304 (1988).
Ohio courts have further described the definition of coercion as
follows:
“Coercion for purposes of sexual battery has been defined as ‘to compel
by pressure.’ See In re Jordan, 9th Dist. Lorain No. 01CA007804, 2001
Ohio App. LEXIS 4013 (Sept. 12, 2001). Webster’s Third New
International Dictionary (1993) defines ‘to coerce’ in relevant part as
‘to restrain, control, or dominate, nullifying the individual will or
desire,’ ‘to compel to an act by force, threat, or other pressure,’ and ‘to
bring about * * * by force, threat, or other pressure.’ Id. at 439. Black’s
Law Dictionary (5th Ed.1979), in turn, states that coercion ‘may be
actual, direct, or positive, as where physical force is used to compel [an]
act against one’s will, or implied, legal, or constructive, as where one
party is constrained by subjugation to [an]other to do what his free will
would refuse.’ Id. at 234.”
State v. Watters, 8th Dist. Cuyahoga No. 110697, 2022-Ohio-1670, ¶ 20, quoting
Ford at ¶ 23; see also In re J.A.S., 12th Dist. Warren No. CA2007-04-046, 2007-
Ohio-6746.
In this case, D.M. testified that in the summer of 2011, she and her
younger sister, J.M., went to their cousin’s home one afternoon after church. D.M.
stated that she was with her sister and their cousin, Renaja, in the living room when
Bryant convinced her to follow him into a nearby bedroom to play. Once inside the
bedroom, Bryant, then 16 or 17 years old, instructed D.M., then eight-years old, to
lay on the bed. Under the false pretense that they were playing a game, Bryant
placed a blanket over D.M.’s face so that she could not see what he was doing. Bryant
then, without warning, penetrated D.M.’s vagina with his penis. D.M. immediately
asked Bryant to stop, stating that he was hurting her.
Viewing this evidence in a light most favorable to the prosecution, we
find there was sufficient evidence to permit the trier of fact to convict Bryant of
sexual battery. In this case, the record demonstrates that Bryant knowingly
compelled D.M. to endure sexual conduct by means so fundamentally inappropriate
that D.M. did not fully comprehend what had occurred until she was old enough to
understand the nature of Bryant’s actions. Bryant took unconscionable advantage
of D.M.’s innocence, and used a combination of factors, including deceit,
manipulation, and subtle force, to place D.M. in a vulnerable and defenseless
position. Specifically, Bryant nullified D.M.’s individual will by misleading her into
thinking that she was playing a game with Bryant at the time he led her into a
bedroom, covered her face with a blanket, and moved her skirt to engage in vaginal
intercourse with the eight-year old victim. Under these circumstances, we find
D.M.’s testimony, if believed, demonstrates that Bryant coerced her to submit to
sexual conduct by means that would cause a person of ordinary resolution to submit
to acts that her free will might otherwise resist. See State v. Franklin, 9th Dist.
Summit No. 29071, 2019-Ohio-1513, ¶ 20 (“R.C. 2907.03 was enacted with the
purpose to ‘forbid sexual conduct with a person other than the offender’s spouse in
a variety of situations where the offender takes unconscionable advantage of the
victim[.]’”), quoting Legislative Service Commission 1973 comment to R.C. 2907.03.
3. Gross Sexual Imposition
Bryant was further convicted of gross sexual imposition in violation of
R.C. 2907.05(A)(4) (Counts 3, 6, 7, and 8). The statute provides, in relevant part:
(A) No person shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender * * * when any of the following applies:
***
(4) The other person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of that person.
R.C. 2907.01(B) defines “sexual contact” as “any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock,
pubic region, or, if the person is a female, a breast, for the purpose of sexually
arousing or gratifying either person.” The Ohio Revised Code does not define
“sexual arousal” or sexual “gratification.” However, R.C. 2907.01(B)
“‘contemplate[s] any touching of the described areas which a reasonable person
would perceive as sexually stimulating or gratifying.’” State v. Tate, 8th Dist.
Cuyahoga No. 98221, 2013-Ohio-370, ¶ 18, quoting State v. Astley, 36 Ohio App.3d
247, 250, 523 N.E.2d 322 (10th Dist.1987); see also In re Anderson, 116 Ohio App.3d
441, 443, 688 N.E.2d 545 (12th Dist.1996).
In determining whether sexual contact occurred, the trier of fact may
infer from the evidence presented at trial whether the defendant’s
contact with the areas of the body outlined in R.C. 2907.01 was for the
purpose of sexual arousal or gratification. Tate; State v. Cobb, 81 Ohio
App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991). The purpose of the
contact may be inferred from the type, nature, and circumstances of the
contact. Tate at ¶ 20, citing [State v. Meredith, 12th Dist. Warren No.
CA2004-06-062, 2005-Ohio-2664]; see also Ohio v. Coleman, 8th
Dist. Cuyahoga No. 102291, 2015-Ohio-4491, ¶ 7 (finding that purpose
may also be inferred from the defendant’s conduct as well as his or her
personality). Accordingly, “[i]f the trier of fact determines that the
defendant was motivated by desires of sexual arousal or gratification,
and that the contact occurred, then the trier of fact may conclude that
the object of the defendant’s motivation was achieved.” Cobb at 185.
State v. Fears, 8th Dist. Cuyahoga No. 104868, 2017-Ohio-6978, ¶ 65.
In this case, Count 3 of the indictment stemmed from allegations that
Bryant “touched [J.M.]’s vagina with his penis” when J.M. was under the age of 13.
At trial, J.M. testified that when she was approximately six or seven years old, she
followed Bryant into his bedroom “to play a game or something like that.” (Tr. 92-
93.) Once inside the bedroom, Bryant barricaded his door to prevent anyone from
entering and had J.M. lay down on a futon. Bryant then covered J.M.’s face with a
pillowcase, removed her underwear, and rubbed his penis on J.M.’s vagina. J.M.
testified that Bryant touched her for approximately two minutes before she stated
that she did not want to play the game anymore.
Regarding C.W., Counts 6, 7, and 8 of the indictment stemmed from
allegations that Bryant inappropriately touched C.W. on separate occasions when
she was under the age of 13, to wit: (1) touching her vagina, (2) touching her leg with
his penis, and (3) touching her buttocks or thigh. At trial, C.W. testified that she was
repeatedly molested by Bryant when she was between the ages of six years old and
an early teenager. C.W. testified that the majority of the sexual abuse occurred while
she was sleeping in a bed located within Bryant’s home. C.W. explained that she
would often wake up in the midst of the assault and discover that Bryant had
removed her pants and underwear and was touching her buttocks, vagina, or thighs,
with either his hands or his penis. The sexual abuse was not limited to sleepovers at
Bryant’s home. On a separate occasion, C.W. was playing hide and seek with her
friends in her home when Bryant encountered her while she was hiding inside a
closet. C.W. testified that Bryant removed her pants and underwear and pressed his
penis against her lower buttocks.
Viewing the evidence in a light most favorable to the prosecution, we
conclude that a rational trier of fact could find that Bryant engaged in “sexual
contact” when he rubbed J.M.’s vagina with his penis, and touched C.W.’s thighs,
buttocks, and vagina with his hands and/or penis. There is no dispute that the
victims’ thighs, genitals, and buttocks constitutes “erogenous zones” under R.C.
2907.01(B). Furthermore, the manner and circumstances of Bryant’s contact with
each victim, including the secrecy in which Bryant touched their erogenous zones
with both his hands and penis, was sufficient to allow the trial court to infer that
Bryant’s touching of the victim was motivated by desires of sexual gratification. See
Fears, 8th Dist. Cuyahoga No. 104868, 2017-Ohio-6978, at ¶ 68, citing Tate, 8th
Dist. Cuyahoga No. 98221, 2013-Ohio-370, at ¶ 23, and In re Anderson, 116 Ohio
App.3d at 443, 688 N.E.2d 545. Finally, we find sufficient evidence supports the
state’s allegations that the victims were not the spouse of Bryant and were under the
age of 13 at the time of each offense. As stated, J.M. consistently testified that she
was six or seven years old at the time Bryant lured her into his bedroom and
inappropriately touched her in a sexual manner. Similarly, C.W. testified that
Bryant began molesting her during sleepovers at his home when she was six years
old. She further testified that the incident occurring inside a closet at her home took
place when she was in the fourth grade — or nine or ten years old. (Tr. 166.)
Accordingly, we find Bryant’s convictions for gross sexual imposition were
supported by sufficient evidence.
Bryant’s first assignment of error is overruled.
B. Manifest Weight of the Evidence
In his second assignment of error, Bryant argues his convictions in
Case No. CR-20-658077-A are against the manifest weight of the evidence.
In contrast to a sufficiency argument, a manifest weight challenge
questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12, citing Thompkins, 78 Ohio St.3d at
390, 678 N.E.2d 541 (1997). When considering an appellant’s claim that a
conviction is against the manifest weight of the evidence, the appellate court
functions as a “thirteenth juror” and may disagree “with the factfinder’s resolution
of * * * conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S.
31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court examines the
entire record, weighs the evidence and all reasonable inferences that may be drawn
therefrom, considers the witnesses’ credibility and determines whether, in resolving
conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the
“‘exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
Demeanor evidence is invaluable in assessing a witness’s credibility,
yet it is totally lost in transmission to the court of appeals. “Because the trier of fact
sees and hears the witnesses and is particularly competent to decide ‘whether, and
to what extent, to credit the testimony of particular witnesses,’ we must afford
substantial deference to its determinations of credibility.” Barberton v. Jenney, 126
Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting State v. Lawson, 2d
Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709, 4 (Aug. 22, 1997).
Although we have the discretionary power of a “thirteenth juror” to grant a new trial,
that power “‘should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.’” Thompkins at 547, quoting Martin at 175.
In addition, a trier of fact is free to believe all, some or none of the
testimony of each witness testifying at trial. State v. Jones, 8th Dist. Cuyahoga No.
108371, 2020-Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649,
2019-Ohio-528, ¶ 100. Thus, a conviction is not against the manifest weight of the
evidence “solely because the jury heard inconsistent or contradictory testimony.”
State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 72, citing State v.
Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38; State v. Nitsche,
2016-Ohio-3170, 66 N.E.3d 135, ¶ 45 (8th Dist.) (“A defendant is not entitled to
reversal on manifest weight grounds merely because certain aspects of a witness’s
testimony are not credible or were inconsistent or contradictory.”); see also State v.
Mann, 10th Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37 (‘“While the jury
may take note of the inconsistencies and resolve or discount them accordingly, * * *
such inconsistencies do not render defendant’s conviction against the manifest
weight or sufficiency of the evidence.”’), quoting State v. Nivens, 10th Dist. Franklin
No. 95APA09-1236, 1996 Ohio App. LEXIS 2245, 7 (May 28, 1996).
Finally, we note that “[a] conviction may rest solely on the testimony
of a single witness, if believed, and there is no requirement that a witness’ testimony
be corroborated to be believed.” See, e.g., State v. Flores-Santiago, 8th Dist.
Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 38; State v. Black, 2019-Ohio-4977, 149
N.E.3d 1132, ¶ 43 (8th Dist.); State v. Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 84
(4th Dist.).
On appeal, Bryant repeatedly references the nature of the delayed
disclosures in this case and unfairly speculates that the victims, who were relatives,
“clearly discussed their stories and coordinated the facts.” Bryant further contends
that the testimony of D.M., J.M., and C.W. contained significant inconsistencies that
“call the credibility of the witnesses into serious question.” In support of his
position, Bryant states that D.M. testified that the incident occurred in the summer
of 2011, while J.M. recalled the incident occurring during the winter. Bryant
submits that this conflicting testimony coupled with J.M.’s questions to Det. Tusing
about the lack of physical evidence “should give this court great pause in affirming
these convictions.”
Finally, Bryant contends that evidence relating to the victims’ past
behavior conclusively demonstrates that their allegations of abuse lack credibility.
Specifically, Bryant suggests that D.M.’s memory must be scrutinized due to her
reports of speaking with a witch and seeing people with no facial features during the
pertinent time period. Bryant similarly cites to J.M.’s admissions that she had
behavioral issues in the past and would not be surprised if her records indicated that
she was previously untruthful with her counselors. Bryant summarizes his position
as follows:
It is possible that the difficulties and circumstances the women were
experiencing in their lives (that were totally unrelated to [Bryant])
contributed to the women making these accusations against [Bryant]
10 years later. While respecting the circumstances of mental health, it
must be considered that the delayed disclosures against [Bryant] are
grounded in suggestion and imagination rather than reality. Given
these emotional and mental health factors, that were confirmed by the
woman’s testimony, the state needed some disinterested party or
evidence to corroborate these serious charges against [Bryant] to
support the convictions. There is no physical evidence supporting the
allegations. The weight of the evidence, when each charge is considered
separately, weighs against conviction and Bryant’s convictions should
be reversed and remanded for a new trial.
After careful review of the record in its entirety, we find Bryant’s
sexual battery and gross-sexual imposition convictions are not against the manifest
weight of the evidence. In this case, each victim was thoroughly questioned about
the alleged instances of abuse and the circumstances that caused them to refrain
from disclosing the incidents to an authority figure. Each victim was further cross-
examined about perceived inconsistencies in their testimonies and forced to
acknowledge pertinent aspects of their childhood, including behavioral- and
mental-health concerns, in an attempt to impeach their credibility or otherwise
suggest that the victim’s coordinated their testimony. Thus, the trier of fact was
presented with all relevant facts and was in the best position to weight the victims’
individual testimony. As stated, the trier of fact was free to believe all, some, or none
of the testimony of each witness testifying at trial. In this regard, we find D.M., J.M.,
and C.W. each provided consistent, credible accounts of their personal experiences
with Bryant and the specific sexual acts he engaged in with them against their will.
Bryant’s pattern of conduct and his manipulation of each victim for his own sexual
gratification is readily apparent on this record. Weighing the evidence and all
reasonable inferences that may be drawn therefore, we cannot say this is the
exceptional case where the trier of fact lost its way and created such a manifest
injustice that Bryant’s convictions must be reversed, and a new trial ordered.
Bryant’s second assignment of error is overruled.
C. Reagan Tokes Law
In his third assignment of error, Bryant argues the trial court erred by
imposing an indefinite sentence in Case No. CR-19-646608-A pursuant to the
Reagan Tokes Law. He contends the Reagan Tokes Law is unconstitutional because
it violates the state and federal constitutional provisions for separation of powers,
due process, and equal protection.
Alternatively, Bryant argues the trial court did not properly impose
the indefinite portion of the Reagan Tokes sentence in Case No. CR-19-646608-A.
He contends “the court’s explanation regarding the total sentence was confusing and
inaccurate because it was done in terms of an aggregate sentence rather than with
regard to the specific count to which the indefinite sentence applied.”
Finally, Bryant argues the trial court erred when it reconvened after
imposing the sentence in Case No. CR-20-658077-A, to clarify that Bryant would be
serving a total sentence in both cases of six years and nine months.
We address each of the foregoing arguments separately for the ease of
discussion.
1. Constitutionality of the Reagan Tokes Law
Preliminarily, we find no merit to the constitutional challenges raised
within this assigned error. The question of whether the Reagan Tokes Law is
constitutional was decided in this court’s en banc opinion in State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.). There, this court found “that the Reagan
Tokes Law, as defined under R.C. 2901.011, is not unconstitutional,” and reaffirmed
the principles established in State v. Gamble, 2021-Ohio-1810, 173 N.E.3d 132 (8th
Dist.); State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.); and State v.
Wilburn, 2021-Ohio-578, 168 N.E.3d 873 (8th Dist.). See Delvallie at ¶ 17. Because
Bryant does not advance any novel argument left unaddressed by the Delvallie
decision, we find the constitutional challenges presented in this appeal are without
merit.
2. Application of the Reagan Tokes Law
R.C. 2953.08 “specifically and comprehensively defines the
parameters and standards — including the standard of review — for felony-
sentencing appeals.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 21. Under R.C. 2953.08(G)(2), an appellate court “may increase,
reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand
the matter * * * for resentencing” if it “clearly and convincingly finds either of the
following”:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)
of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
“A sentence is contrary to law if it falls outside the statutory range for
the offense or if the sentencing court fails to consider the purposes and principles of
sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.”
State v. Angel, 8th Dist. Cuyahoga No. 110456, 2022-Ohio-72, ¶ 8, citing State v.
Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.
On appeal, Bryant suggests that the trial court’s application of the
Reagan Tokes Law in Case No. CR-19-646608-A was contrary to law because the
trial court failed to clearly state the minimum and maximum prison term applicable
to his qualifying felony offense pursuant to R.C. 2929.14 and 2929.144(B). We
disagree.
The General Assembly enacted the Reagan Tokes Law in Am.Sub.S.B.
No. 201, which went into effect on March 22, 2019. The Reagan Tokes Law applies
to “qualifying felonies,” which are felonies “of the first or second degree committed
on or after March 22, 2019.” R.C. 2929.144(A). When a prison sentence is imposed
on such a “qualifying felony,” the statute requires the trial court to impose an
indefinite prison term with a stated minimum term and a calculated maximum
term. R.C. 2929.14(A)(1)(a); R.C. 2929.14(A)(2)(a); R.C. 2929.144.
“Under Ohio law, a sentencing court ‘must consider each offense
individually and impose a separate sentence for each offense.’” State v. Monroe, 2d
Dist. Clark No. 2018-CA-124, 2020-Ohio-597, ¶ 47, quoting State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9 (rejecting a sentence packaging
approach to sentencing). “A sentencing court thus ‘lacks the authority to consider
the offenses as a group and to impose only an omnibus sentence for the group of
offenses.’” State v. Smith, 2d Dist. Montgomery No. 28265, 2019-Ohio-5015, ¶ 66,
quoting Saxon at ¶ 9.
Consistent with this approach, when imposing a prison sentence
under the Reagan Tokes Law, the trial court first must select, for each offense, a
stated minimum term from the appropriate statutory range for either a first- or
second-degree felony, unless a specific penalty applies. R.C. 2929.14(A)(1)(a); R.C.
2929.14(A)(2)(a). For felonies that do not fall within the Reagan Tokes Law, the
trial court imposes a definite prison term from the appropriate statutory range.
Next, after determining whether to impose concurrent or consecutive sentences, the
trial court must calculate the maximum term using the methodology provided in
R.C. 2929.144(B).
As previously discussed, in Case No. CR-19-646608-A, Bryant
pleaded guilty to aggravated robbery, a felony of the first degree; failure to comply,
a felony of the third degree; and having weapons while under disability, a felony of
the third degree. Consistent with the foregoing, the trial court was required to
impose a definite sentence on the nonqualifying third-degree felony offenses in
accordance with the sentencing structure outlined by R.C. 2929.14(A)(3). In turn,
because Bryant was convicted of a qualifying first-degree felony offense, the trial
court was required to impose a sentence in accordance with the sentencing structure
outlined in R.C. 2929.14(A)(1)(a). The statute provides, in pertinent part:
For a felony of the first degree committed on or after the effective date
of this amendment, the prison term shall be an indefinite prison term
with a stated minimum term selected by the court of three, four, five,
six, seven, eight, nine, ten, or eleven years and a maximum term that is
determined pursuant to section 2929.144 of the Revised Code * * *.
Contrary to Bryant’s suggestion on appeal, the record reflects that the
trial court carefully considered the applicable sentencing ranges for each qualifying
and nonqualifying offense pursuant to R.C. 2929.14(A), and separately imposed a
term of imprisonment on each count. The court summarized the individual
sentences as follows:
[O]n Count 1, I sentence you to one-year gun specification that needs
to be served prior and consecutive to the underlying felony. On the
aggravated robbery, I sentence you to three years. On the failure to
comply, that has to be served consecutive to the other prison term, I
sentence you to nine months. Having weapons under disability, I
sentence you to nine months and that needs to be served concurrent to
the rest of the sentence.
(Tr. 29-30.)
Because the trial court ordered “some or all of the prison terms
imposed” to be served consecutively, the calculation of the applicable maximum
term is governed by R.C. 2929.144(B)(2). To determine the maximum term under
that provision, the trial court must first “add all of the minimum terms imposed on
the offender * * * for a qualifying felony * * * and all of the definite terms of the
felonies that are not qualifying felonies * * * that are to be served consecutively.”
R.C. 2929.144(B)(2). The maximum term equals the sum of those prison terms
“plus fifty per cent of the longest minimum term or definite term for the most serious
felony being sentenced.” Id.We further note that because Bryant was sentenced to a one-year term
of imprisonment on the firearm specification attached to Count 1, the trial court was
required to comply with R.C. 2929.14(C)(1)(a). In relevant part, the statute provides
that a mandatory prison term imposed on a firearm specification must be served
“consecutively to and prior to any prison term imposed for the underlying felony
* * *, and consecutively to any other prison term or mandatory prison term
previously or subsequently imposed upon the offender.”
Applying the foregoing statutory provisions to the circumstances of
this case, the trial court summarized Bryant’s sentence and its application of the
Reagan Tokes Law as follows:
So this is a Reagan Tokes Senate Bill 201 case. Let me explain. You’re
going to have to serve the one-year [firearm specification] prior and
consecutive to the minimum stated term. The minimum stated term is
three years and nine months with a maximum term of five years and
three months.
(Tr. 30.)
After careful review of the record in Case No. CR-19-646608-A, we
find the trial court adequately complied with the requirements of the Reagan Tokes
Law. Pursuant to R.C. 2929.14(A)(1)(a), the trial court imposed a minimum selected
term of three years on the qualifying first-degree felony offense of aggravated
robbery. The trial court further imposed definitive prison terms that fell within the
applicable sentencing range on the nonqualifying felony offenses of failure to
comply and having weapons while under disability. Because the trial court ordered
the sentence imposed on the aggravated robbery conviction to run consecutive to
the sentence imposed on the failure to comply conviction, the trial court then added
the minimum selected term of three years with the definite term of nine months, for
an aggregate minimum term of three years and nine months in prison. To calculate
the maximum term pursuant to R.C. 2929.144(B)(2), the court added fifty percent
of the longest minimum term for the most serious felony offense, or 18 months, to
the aggregate minimum term, for an indefinite prison term of three years, nine
months to five years, three months. Finally, the trial court correctly ordered the one-
year firearm specification attached to the aggravated robbery conviction to run prior
and consecutive to the sentence imposed on the underlying felony offense. R.C.
2929.19(C)(1)(a); R.C. 2929.144(B)(4). Under these circumstances, we are unable
to conclude that the sentence imposed in Case No. CR-19-646608-A is contrary to
law.
To the extent Bryant suggests the court’s summarization of his
sentence was “confusing,” we reiterate that when imposing prison terms in
accordance with the Reagan Tokes Law, trial courts are encouraged “to draft the
sentencing entry according to the express dictates of the relevant statutory scheme
and adhere to the statutory language therein.” See State v. Scott, 8th Dist. Cuyahoga
No. 109689, 2022-Ohio-1486, ¶ 30 (S. Gallagher, A.J., concurring). “The goal is to
clearly articulate the intended sentence in a manner that avoids the need to interpret
the sentence and to use the language of the statutory sentencing scheme instead of
colloquially understood phrases that potentially conflict with statutory language.”
Id. at ¶ 32.
Finally, we are obligated to note that the sentencing journal entry in
Case No. CR-19-646608-A does not reflect the sentence imposed by the trial court
during the sentencing hearing. Contrary to the court’s statement that the one-year
firearm specification was to run prior and consecutive to an aggregate minimum
term of three years and nine months, and a maximum term of five years and three
months, the sentencing journal entry provides as follows:
The trial court imposes a prison term of 1 year(s) on the firearm
specification(s) to be served prior to and consecutive with a minimum
prison term of 4 year(s), 9 month(s) and a maximum prison term of 6
year(s), 4 month(s) on the underlying offense(s).
On remand, the trial court is ordered to issue a nun pro tunc journal
entry to adequately reflect the sentence imposed at the time of sentencing.
3. Calculation of Aggregate Sentences in Case Nos.
CR-19-646608-A and CR-20-658077-A
On December 21, 2021, the trial court held a hearing to clarify that by
running the aggregate sentence imposed in Case No. CR-20-658077-A concurrently
to the aggregate sentence imposed in Case No. CR-19-646608-A, Bryant would be
required to serve “a total of six years and nine months” in prison. (Tr. 251.) The
trial court explained that sentences imposed on the one-year firearm specification
and failure to comply offense in Case No. CR-19-646608-A, were required to run
prior and consecutive to the five-year prison term imposed in CR-20-658077-A, as
a matter of law.
On appeal, Bryant argues a total sentence of six years and nine months
is inconsistent with the court’s decision to run the five-year sentence imposed in
Case No. CR-20-658077-A concurrently with the sentence imposed in Case No. CR-
19-646608-A. For the reasons that follow, we find merit to Bryant’s position.
Regarding the one-year firearm specification attached to the
aggravated robbery offense in Case No. CR-19-646608-A, it is well settled that the
sentence for a firearm specification must be served consecutively to and prior to the
sentence that is imposed for the underlying felony. R.C. 2929.14(C)(1)(a); State v.
Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, ¶ 8. R.C.
2929.14(C)(1)(a) also states that a sentence for a firearm specification must be
served “consecutively to any other prison term or mandatory prison term previously
or subsequently imposed upon the offender.” Thus, as a matter of law, the one-year
firearm specification imposed in Case No. CR-19-646608-A was required to run
consecutively to the aggregate sentence imposed in Case No. CR-20-658077-A. The
express language of R.C. 2929.14(C)(1)(a) therefore supports the trial court’s
clarifying statement during the December 21, 2021 hearing that Bryant would have
to serve the one-year sentence imposed on the firearm specification in Case No. CR-
19-646608-A before the aggregate sentence imposed in Case No. 20-658077-A
could commence. See State v. Kibble, 8th Dist. Cuyahoga No. 104173, 2016-Ohio-
8573, ¶ 8; State v. Owens, 5th Dist. Richland No. 09CA128, 2010-Ohio-6004, ¶ 13;
State ex rel. Gilbert v. Gansheimer, 11th Dist. Ashtabula No. 2011-A-0600, 2011-
Ohio-5599, ¶ 12.
With respect to Bryant’s failure to comply conviction, R.C.
2921.331(D) required him to “serve the prison term consecutively to any other
prison term or mandatory prison term imposed upon the offender.” Ohio courts
have recognized that
[t]he language of R.C. 2921.331(D) requires a sentence for failure to
comply to be served consecutively to any other sentence. The statute
does not limit itself to sentences imposed at the time of the failure-to-
comply conviction. Any potential ambiguity in R.C. 2921.331(D) is
clarified by R.C. 2929.14(C)(3), which provides: “If a prison term is
imposed for * * * a felony violation of division (B) of section 2921.331
of the Revised Code, the offender shall serve that prison term
consecutively to any other prison term or mandatory prison term
previously or subsequently imposed upon the offender.”
State v. Rose, 2d Dist. Champaign No. 2020-CA-28, 2021-Ohio-2859, ¶ 5; see also
State v. White, 2d Dist. Montgomery No. 28338, 2020-Ohio-5544, ¶ 67; R.C.
2921.331(D); State v. McComb, 2d Dist. Champaign No. 2015-CA-17, 2016-Ohio-
606, ¶ 5, 13-14; State v. Smith, 8th Dist. Cuyahoga No. 108379, 2020-Ohio-914, ¶ 10;
State v. Cover, 8th Dist. Cuyahoga No. 109959, 2021-Ohio-1303, ¶ 6. Thus, the
mandates of R.C. 2921.331(D) further supported the court’s clarifying statements on
December 21, 2021, that the nine-month prison term imposed on the failure to
comply offense in Case No. CR-19-646608-A was required, by operation of law, to
run consecutively to the sentences imposed in Case No. CR-20-658077-A.
Consistent with the foregoing, this court acknowledges that the
clarifying statements made by the trial court on December 21, 2021, conform with
the express language of the applicable sentencing statutes. With that said, however,
the record demonstrates that the trial court did not comply with R.C.
2929.14(C)(1)(a) or 2921.331(D) at the time it imposed Bryant’s sentence in Case
No. CR-20-658077-A and ordered the aggregate five-year prison term to run
“concurrently” with the sentence imposed in Case Nos. CR-19-646608-A. Both the
sentencing transcript and the sentencing journal entry are silent concerning the
sentencing implications of the firearm specification and failure to comply conviction
in Bryant’s prior case Under these circumstances, we find the trial court’s attempt
to clarify Bryant’s sentence on December 21, 2021, amounted to an attempt to
correct or modify Bryant’s sentence in Case No. CR-20-658077-A.
Prior to 2020, the trial court’s alteration of Bryant’s sentence in this
case would have been appropriate based on the well-settled principle that courts
retain continuing jurisdiction to correct a void sentence or to correct clerical errors
in judgments. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795,
856 N.E.2d 263, ¶ 19. See, e.g., State v. Wells, 11th Dist. Ashtabula No. 2013-A-
0014, 2013-Ohio-5821, ¶ 32 (“[B]ecause the trial court failed to apply R.C.
2921.331(D), [the defendant’s] original sentence was void. Once this error became
apparent to the trial court at the resentencing hearing, the trial court was obligated
to correct it.”).
In this case, however, the concurrent sentence originally imposed in
Case No. CR-20-658077-A was not “void” as that term is currently defined. In State
v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, the Supreme
Court of Ohio realigned its precedent with the traditional understanding of what
constitutes a void judgment. Harper at ¶ 4; Henderson at ¶ 34. “Based on Harper
and Henderson, the current void-sentence jurisprudence of the Ohio Supreme Court
is clear: if the sentencing court has subject-matter jurisdiction over the case and
personal jurisdiction over the defendant, any sentencing error renders the sentence
voidable, not void.” State v. Stansell, 8th Dist. Cuyahoga No. 109023, 2021-Ohio-
2036, ¶ 11 (en banc). If a sentencing error renders the defendant’s sentence
voidable, the error must be challenged on direct appeal, or the sentence will be
subject to res judicata. Harper at ¶ 43. It similarly follows that if a sentencing error
renders the defendant’s sentence voidable, the trial court no longer retains
continuing jurisdiction to correct the sentencing error. See State v. Sailor, 8th Dist.
Cuyahoga No. 109459, 2021-Ohio-2277 ¶ 20 (“The trial court lacked jurisdiction to
modify the final sentence because there was no other basis cited to invoke the trial
court’s continuing jurisdiction over the final entry of conviction.”); State v. Merritt,
1st Dist. Hamilton No. C-200351, 2021-Ohio-3122, ¶ 12 (“Nor could the court have
granted relief under its jurisdiction to correct a void sentence, because the alleged
sentencing errors would not have rendered Merritt’s sentences void.”).
In this case, there is no dispute that the trial court had both subject-
matter jurisdiction over Bryant’s case and personal jurisdiction over him. R.C.
2931.03; Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8
Accordingly, trial court’s decision to run the sentences imposed in each case
concurrently, and its failure to comply with R.C. 2929.14(C)(1)(a) and 2921.331(D)
when originally imposing the sentence in Case No. CR-20-658077-A, rendered the
sentence voidable, not void.
Rather than pursuing a direct appeal to address the trial court’s
sentencing error, the state urged the trial court to reconvene and “clarify” that
Bryant would have to serve portions of his sentence in Case No. CR-19-646608-A
before his sentence in Case No. CR-20-658077-A could commence. As previously
stated, however, we reject the assertion that the court’s actions on December 21,
2021, amounted to a clarification of the previously imposed sentence. To the
contrary, the court’s attempt to retroactively enforce the consecutive-sentence
requirements of R.C. 2929.14(C)(1)(a) and 2921.331(D) conflicted, significantly,
with the trial court’s statement during the original sentencing hearing that the
entirety of the sentence imposed in Case No. CR-20-658077-A would run
concurrently with the sentences imposed in Case No. CR-19-646608-A.
Because the trial court lacked jurisdiction to correct the voidable
sentencing error, we find the court’s imposition of an aggregate prison term of “six
years and nine months” is a nullity. Furthermore, because the state invited the
nullity and has not challenged the trial court’s failure to comply with R.C.
2929.14(C)(1)(a) and 2921.331(D) at the time of the original sentencing hearing on
direct appeal, we are inclined to vacate the January 4, 2022 sentencing journal
entry, and order the trial court to reinstate the sentence journalized on December
18, 2021.
Bryant’s third assignment of error is overruled in part and sustained
in part.
Judgment affirmed in part and reversed in part. On remand, the trial
court is ordered to issue a nunc pro tunc journal entry to adequately reflect the
sentence imposed at the time of sentencing in Case No. CR-19-646608-A. In
addition, the trial court is ordered to vacate the nunc pro tunc journal entry issued
in Case No. CR-20-658077-A, and reinstate the original sentencing journal entry.
It is ordered that appellee and appellant share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.