State v. Nelson , 2022 Ohio 4170 ( 2022 )

[Cite as State v. Nelson, 2022-Ohio-4170.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2021CA00112
:
TAHI ANTONIO NELSON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2020CR0921
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 22, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KYLE L. STONE D. COLEMAN BOND
STARK COUNTY PROSECUTOR 116 Cleveland Ave. NW
Canton, OH 44702
TIMOTHY E. YAHNER
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2021CA00112 2
Delaney, J.
{¶1} Defendant-Appellant Tahi Antonio Nelson appeals his September 20, 2021
conviction and sentence by the Stark County Court of Common Pleas. Plaintiff-Appellee
is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
Indictment
{¶2} On July 27, 2020, the Stark County Grand Jury indicted Defendant- Appellant
Tahi Antonio Nelson on one count of Murder, an unclassified felony in violation of R.C.
2903.02.(A)/(D) and R.C. 2929.02(B), with a firearm specification per R.C.
2941.145(A); and one count of Having a Weapon Under Disability, a third-degree felony
in violation of R.C. 2923.13(A)(2)(B).
{¶3} Nelson entered a plea of not guilty to the charges. He waived his right to a
jury trial on the second count.
Jury Trial
{¶4} A jury trial on the murder count began on September 7, 2021. The following
facts were adduced at trial.
The Relationship between the Victim and Nelson
{¶5} The victim in this case was R.R., a 42-year-old woman and mother of four
adult children. R.R.’s mother testified that R.R. had been in an off-and-on-again romantic
relationship with Nelson for approximately ten years. R.R. purchased her first home in
March of 2019, which was located on Coventry Boulevard in Canton, Ohio. R.R. lived
alone, but in late 2019, Nelson moved into the Coventry Boulevard home with R.R.
Stark County, Case No. 2021CA00112 3
R.R. and Nelson were at the Brick City Bar
{¶6} A security guard for the Brick City Bar testified that he saw R.R. and Nelson
at the bar on March 7, 2020. The security guard testified that weapons are not permitted
in the bar. Before patrons can enter the bar, the security guard searches them for
weapons.
{¶7} A female witness who knew both Nelson and R.R. testified that she saw
them together at the Brick City Bar in the late evening hours on March 7, 2020. The
witness observed that Nelson appeared to be drunk while at the bar, but not out of control.
Nelson’s ex-girlfriend was also at the bar, and it appeared to the witness that R.R. was
upset by her presence.
{¶8} Brick City Bar usually closes at 2:00 a.m. On March 7, 2020, daylight
savings time began at 2:00 a.m., moving the clocks forward to 3:00 a.m. Before the bar
closed, Nelson got into a verbal argument with a bar employee, after which bar security
asked Nelson to leave the bar. The female witness convinced Nelson to leave the bar and
she walked out of the bar with Nelson and R.R. Before they left the bar, R.R. paid her bar
bill with her credit card. The credit card receipt showed the time was 1:57 a.m. The female
witness saw R.R. and Nelson get into R.R.’s car, a Saturn Vue, with R.R. in the driver’s
seat and Nelson in the passenger’s seat.
R.R. Found Dead in Her Car
{¶9} Officer Robert Huber with the City of Canton Police Department was working
the midnight shift on March 7, 2020. At 3:23 a.m. on March 8, 2020, Officer Huber was
dispatched to the 2300 block of Harmont Avenue in Canton, Ohio. The 2300 block of
Harmont Avenue was approximately four to five minutes away from the Brick City Bar and
Stark County, Case No. 2021CA00112 4
a half-mile from Coventry Boulevard. A witness had called 911 after he found R.R.
slumped over the driver’s seat of her vehicle, which was stopped in the middle of Harmont
Avenue. The witness observed the body in the stopped vehicle between 3:15 and 3:23
a.m.
{¶10} Upon Officer Huber’s arrival to the scene, he observed a Saturn Vue sitting
directly in the northbound lane of the 2300 block of Harmont Avenue. The vehicle’s lights
were on, but the brake lights were not illuminated. All the vehicle’s doors were shut. Officer
Huber approached the driver’s side and the driver’s side door was locked. He walked
around the front of the car and saw a bullet hole in the front windshield. He approached
the passenger’s side door and found it was unlocked. He opened the passenger’s side
door and observed R.R. unconscious in the driver’s seat, with a large volume of blood
coming from the back of her head and pooling on the floorboard. Officer Huber checked
her vitals and determined she was not breathing and there was no movement in her chest.
{¶11} While looking inside the vehicle, Officer Huber noticed the vehicle was still
in drive, but the ignition was off, and the keys were in the ignition. The passenger’s seat
was reclined in a far back position. There was a green neon sock on the ground outside
the car and a matching green neon sock inside the car, leading Officer Huber to believe
that someone else had been in the passenger seat of the car and knocked the sock out
of the car. There was no space in the backseat of the car for someone to sit because it
was covered in personal items.
{¶12} Officer Huber then noticed a spent shell casing on the passenger floorboard
of the vehicle. The spent shell casing was collected as evidence. Upon examination, the
Stark County, Case No. 2021CA00112 5
spent shell casing found on the passenger floorboard was determined to be manufactured
by Aguila and .380 caliber.
{¶13} DNA swabs were taken from the vehicle and the car keys. Fingerprints were
also pulled from the interior of the car.
{¶14} The bullet hole in the windshield was examined and determined to have
been caused by a bullet shot from a firearm inside the vehicle.
Autopsy Evidence
{¶15} The Stark County Coroner determined R.R.’s cause of death was a
homicide. R.R. had been shot in the back of the head, with the bullet traveling through
her skull and brain, stopped by the sphenoid bone at the bottom of the base of her brain.
Because of R.R.’s hair, it could not be determined how far the muzzle was from R.R.’s
head when she was shot.
{¶16} The bullet was recovered and preserved as evidence.
Bullets and a Gun found at R.R.’s Home
{¶17} On March 8, 2020, detectives with the City of Canton Police Department
informed R.R.’s mother that R.R. had died. R.R.’s mother told the detectives that Nelson
was R.R.’s boyfriend. R.R.’s mother provided the detectives with a key to R.R.’s home
after they informed her they were going to get a search warrant for the home.
{¶18} The detectives obtained a search warrant for R.R.’s home and requested
SWAT assistance in executing the warrant. The detectives had attempted to contact
Nelson as a person of interest and could not locate him. When they entered the home,
the officers found it was very cluttered. They collected two cell phones as a result of the
Stark County, Case No. 2021CA00112 6
search but there wasn’t any useful evidence on the cell phones. The officers returned the
house keys to R.R.’s mother.
{¶19} R.R.’s mother took responsibility of R.R.’s home. R.R.’s children and
mother visited the home after R.R.’s death. On April 6, 2020, R.R.’s mother attempted to
clean her daughter’s house for the first time after her daughter’s death. While she was
cleaning R.R.’s bedroom, R.R.’s mother found a plastic bag on the ground, in the corner
of the room next to a dresser. She looked in the bag and found three boxes of bullets.
She put the bag back where she found it and called the police. The police came and
collected the plastic bag containing the three boxes of bullets.
{¶20} On April 12, 2020, R.R.’s mother and child were doing yardwork at R.R.’s
home. While R.R.’s mother was using an edger around a shed in the backyard, she
discovered a gun partially sticking out from under the shed. R.R.’s mother got a plastic
grocery bag and used the bag to pick up the gun. She placed the plastic bag containing
the gun in R.R.’s garage. Because it was Sunday, R.R.’s mother waited until Monday to
call the police to report the gun. The police came and collected the plastic bag and gun.
Analysis of the Gun and Bullets
{¶21} The bag containing three boxes of bullets found by R.R.’s mother in R.R.’s
bedroom was determined to contain .380 caliber bullets manufactured by Aguila.
{¶22} The gun found under the shed at R.R.’s home was determined to be a .380
caliber Jimenez semiautomatic firearm. It was tested and found to be operable. There
was a spent shell casing still inside the chamber of the gun, which was not properly
ejected from the weapon the last time it was fired. The gun contained a cartridge
Stark County, Case No. 2021CA00112 7
magazine with four live rounds, all .380 caliber. Two of the rounds were manufactured by
Aguila and the other two rounds were manufactured by TulAmmo.
{¶23} The .380 Jimenez firearm found under the shed was compared to the spent
shell casing located on the floor of R.R.’s vehicle. The spent shell casing was identified
as being manufactured by Aguila and .380 caliber. Larry Mackey with the Canton Stark
County Crime Laboratory opined to a reasonable degree of scientific certainty that the
spent shell casing recovered from the floorboard of R.R.’s vehicle was fired from the .380
Jimenez semiautomatic firearm recovered from under the shed of R.R.’s home. Mackey
also opined to a reasonable degree of scientific certainty that the bullet recovered from
R.R.’s brain was also fired from the .380 Jimenez firearm found under the shed of R.R.’s
home.
Nelson Found Hiding in a Shower
{¶24} The detectives attempted to contact Nelson by telephone, but they could
not reach him. R.R.’s mother said that Nelson did not contact her or attend R.R.’s funeral
services. On May 14, 2020, a Canton City police detective responded to a call at an
apartment regarding an unrelated female suspect. He searched the apartment upon
permission of the occupant and discovered Nelson in the bathroom shower, wearing
shorts and slides. The bathroom lights were off, the shower curtain was closed, and no
water was running.
DNA Analysis
{¶25} When R.R.’s body was discovered, the police swabbed the interior of R.R.’s
vehicle and car keys for DNA. The DNA standards for R.R., Nelson, and the Stark County
Coroner were obtained for testing. It was necessary to obtain the DNA standard for the
Stark County, Case No. 2021CA00112 8
Stark County Coroner because he touched the keys in the ignition of R.R.’s car. The car
keys were tested using a DNA analysis that showed a major profile matching R.R.’s
standard; however, there was more than one DNA profile observed. The Stark County
Coroner was excluded as being a major contributor. The testing showed there was male
DNA on the car keys, but the minor DNA data was not sufficient for comparison purposes.
The DNA analysis of the swab taken from the right interior door handle of R.R.’s vehicle
showed that R.R. was the major contributor.
{¶26} The .380 Jimenez firearm found at R.R.’s home was swabbed for DNA. In
choosing to swab the gun for DNA, this destroyed any latent fingerprints on the gun. R.R.’s
DNA was found on the sight of the .380 Jimenez firearm. Male DNA was found on the
gun, but Nelson could not be included or excluded as the donor of the sample recovered
because the material collected was insufficient for comparison.
Jury Verdict
{¶27} At the close of the State’s case, counsel for Nelson moved for acquittal
based on Crim.R. 29. The trial court denied the motion. Nelson then rested and renewed
his Crim.R. 29 motion, which the trial court denied.
{¶28} The jury returned its verdict, which found Nelson guilty of murder and the
accompanying firearm specification.
Sentencing Hearing
{¶29} The trial court held the sentencing hearing on September 15, 2021. Nelson
had waived his right to a jury trial as to Count Two, having a weapon under disability.
Considering the evidence presented at the trial, the trial court found Nelson guilty on
Count Two.
Stark County, Case No. 2021CA00112 9
{¶30} The trial court sentenced Nelson to 15 years to life in prison on Count One,
with an additional three years in prison for the firearm specification, to be served
consecutively to the sentence in Count One. The trial court next sentenced Nelson to 36
months in prison on Count Two, to be served consecutively to the sentences in Count
One and the firearm specification. In total, Nelson was sentenced to 21 years to life in
prison. The sentence was journalized via sentencing entry filed on September 20, 2021.
{¶31} It is from this conviction and sentence that Nelson now appeals.
ASSIGNMENTS OF ERROR
{¶32} Nelson raises three Assignments of Error:
{¶33} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED.
{¶34} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
{¶35} “III. APPELLANT’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTIONS [SIC] WERE VIOLATED
AS HE WAS DENIED APPELLATE REVIEW OF HIS SENTENCE UNDER R.C. 2953.08,
AS SUBSECTION (D)(3) UNCONSTITUTIONALLY PROHIBITS REVIEW OF A
SENTENCE IMPOSED FOR MURDER.”
Stark County, Case No. 2021CA00112 10
ANALYSIS
I. and II. Manifest Weight and Sufficiency of the Evidence
{¶36} In his first and second Assignments of Error, Nelson contends his
convictions were against the sufficiency and 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,
678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the
Stark County, Case No. 2021CA00112 11
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.{¶39} Nelson was convicted of murder in violation of R.C. 2903.02(A), which
states, “No person shall purposely cause the death of another or the unlawful termination
of another's pregnancy.” R.R.’s cause of death was a gunshot wound to the head. Based
on the manner of R.R.’s homicide, Nelson was also convicted of a firearm specification
under R.C. 2941.145(A) and having weapons while under disability, in violation of R.C.
2923.13(A)(2)(B).
{¶40} Nelson argues the State did not present any physical evidence or
eyewitness testimony linking him to the murder of R.R. The State presented only
circumstantial evidence to the jury and asked them to infer that Nelson committed the
murder of R.R. with the .380 Jimenez semiautomatic pistol.
{¶41} There was no DNA or fingerprint evidence connecting Nelson to the murder
of R.R. While the interior of R.R.’s vehicle and the .380 Jimenez firearm were swabbed
for DNA, there was insufficient material to include or exclude Nelson as a donor of the
DNA samples recovered. Male DNA was recovered from the vehicle but was not identified
as belonging to Nelson. The police were unable to test the .380 Jimenez for fingerprints
because they swabbed the weapon for DNA. R.R.’s vehicle was dusted for fingerprints,
but they were not usable.
{¶42} The evidence presented to the jury in this case was largely circumstantial.
It is well-settled that circumstantial evidence has the same probative value as direct
evidence. State v. Jenks, supra. In this case, the circumstantial evidence presented to
Stark County, Case No. 2021CA00112 12
the jury was sufficient to support the conviction of murder and the resulting conviction for
the firearm specification and having weapons while under disability.
{¶43} R.R.’s mother testified that R.R. and Nelson had been in relationship for ten
years. After R.R. purchased her home on Coventry Boulevard in 2019, Nelson was living
with her in the home. A bag containing three boxes of .380 caliber bullets were found in
R.R.’s bedroom. A .380 Jimenez semiautomatic firearm was found under the shed of
R.R.’s home.
{¶44} Two witnesses testified that they saw R.R. and Nelson together at the Brick
City Bar on March 7, 2020. A credit card receipt was presented that showed R.R. paid
her bar bill at 1:57 a.m. After Nelson was asked to leave the bar, a witness saw R.R. and
Nelson leave the Brick City Bar and get into R.R.’s vehicle. The witness saw that R.R.
was driving and Nelson was in the passenger seat.
{¶45} Eighteen to 26 minutes after R.R. paid her bill at the Brick City Bar, R.R.
was found dead in her vehicle between 3:15 a.m. and 3:23 a.m. on March 8, 2020.
Daylight Savings Time started at 2:00 a.m. on March 7, 2020. The vehicle was stopped
at the 2300 block of Harmont Avenue, which was approximately two miles or four to five
minutes from the Brick City Bar and half-mile from R.R.’s home on Coventry Boulevard.
The driver’s side door was locked, but the passenger side door was unlocked. The police
determined someone had been in the passenger seat of the vehicle because a green
sock was found inside the vehicle and the matching green sock was found outside the
passenger side of the vehicle. While Nelson was seen leaving the Brick City Bar with
R.R., Nelson could not be located directly after R.R.’s murder and was days later found
hiding in a bathroom shower.
Stark County, Case No. 2021CA00112 13
{¶46} The evidence established that one bullet was shot from the inside R.R.’s
vehicle and went through the windshield. A .380 caliber shell casing was found on the
passenger side floorboard of R.R.’s vehicle that was determined to have been fired from
the .380 Jimenez semiautomatic firearm found under the shed of R.R.’s home. The bullet
retrieved from R.R.’s body was determined to have been shot from the .380 Jimenez
semiautomatic firearm found under the shed of R.R.’s home. R.R.’s DNA was found on
the sight of the .380 Jimenez.
{¶47} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. The jury as the trier of fact was free to accept or reject any
and all of the evidence offered by the parties and assess the witness's credibility. “While
the trier of fact 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.” State v. Frye, 5th Dist. Richland No.
17CA5, 2017-Ohio-7733, 2017 WL 4176953, ¶ 47 quoting State v. Johnson, 5th Dist.
Stark No. 2014CA00189, 2015–Ohio–3113, 41 N.E.3d 104, ¶ 61, citing State v. Nivens,
10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). The jury need
not believe all of a witness' testimony, but may accept only portions of it as true. Id.{¶48} In this case, there was sufficient evidence to establish the elements of the
murder with a firearm specification and having weapons while under disability. We find
that this is not an “‘exceptional case in which the evidence weighs heavily against the
conviction.’” Thompkins, 78 Ohio St.3d at 387. Upon our review of the entire record in this
Stark County, Case No. 2021CA00112 14
matter, Nelson’s convictions were not against the sufficiency or the manifest weight of the
evidence.
{¶49} Nelson’s first and second Assignments of Error are overruled.
III. Appellate Sentence Review under R.C. 2953.08
{¶50} The jury convicted Nelson of violating R.C. 2903.02(A) and pursuant to R.C.
2903.02(A), “whoever violates [R.C. 2903.02(A)] is guilty of murder, and shall be punished
as provided in section 2929.02 of the Revised Code.” The trial court sentenced Nelson
pursuant to R.C. 2929.02(B)(1), which states, “[e]xcept as otherwise provided in division
(B)(2) or (3) of this section, whoever is convicted of or pleads guilty to murder in violation
of section 2903.02 of the Revised Code shall be imprisoned for an indefinite term of fifteen
years to life.”
{¶51} When reviewing felony sentences on appeal, this Court is statutorily limited
as to its consideration. R.C. 2953.08 governs appellate review of felony sentencing
guidelines. In this specific case where Nelson was convicted of murder, the relevant
statute as to appellate review states in pertinent part:
(A) In addition to any other right to appeal and except as provided in division
(D) of this section, a defendant who is convicted of or pleads guilty to a
felony may appeal as a matter of right the sentence imposed upon the
defendant on one of the following grounds:
***
(D)(3) A sentence imposed for aggravated murder or murder pursuant to
sections 2929.02 to 2929.06 of the Revised Code is not subject to review
under this section.
Stark County, Case No. 2021CA00112 15
{¶52} In his third Assignment of Error, Nelson contends his prison sentence is
unconstitutional because R.C. 2953.08(D)(3), which prohibits an intermediate level of
appellate review of sentences imposed for murder and aggravated murder, violates the
Eighth and Fourteenth Amendment to the United States Constitution. We note that at the
time of the authoring of this Opinion, the issue concerning the constitutionality of R.C.
2953.08(D)(3) is currently before the Ohio Supreme Court in State v. Grievous, 157 Ohio
St.3d 1502, 2019-Ohio-4768, 134 N.E.3d 1227 (discretionary appeal accepted). The
Supreme Court held oral arguments on December 7, 2021.
{¶53} This Court analyzed our statutory authority under R.C. 2953.08(D)(3) to
review a trial court’s imposition of a life sentence without parole for the offense of
aggravated murder in State v. Weaver, 2017-Ohio-4374, 93 N.E.3d 178 (5th Dist.), appeal
not allowed, 151 Ohio St.3d 1510, 2018-Ohio-365, 90 N.E.3d 950. We first held that we
were without statutory authority to review the sentence for aggravated murder:
The Eighth District Court of Appeals has cogently stated: “The General
Assembly's practice of treating sentencing for aggravated murder and
murder convictions differently from other felonies is longstanding.” State v.
Hollingsworth, 143 Ohio App.3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001).
Furthermore, “[t]here is no constitutional right to appellate review of a
criminal sentence, so ‘the only right to appeal is the one provided by
statute.’” State v. Campbell, 8th Dist. Cuyahoga No. 103982, 2016-Ohio-
7613, 2016 WL 6575297, ¶ 14, citing State v. Akins, 8th Dist. Cuyahoga No.
99478, 2013-Ohio-5023, 2013 WL 6021459, ¶ 11.
Stark County, Case No. 2021CA00112 16
The Ohio Supreme Court has concluded that the pertinent language of R.C.
2953.08(D), supra, is unambiguous. See State v. Porterfield, 106 Ohio St.3d
5, 829 N.E.2d 690, 2005-Ohio-3095, ¶ 17. Thus, “[the language] ‘[a]
sentence imposed for aggravated murder or murder pursuant to section
2929.02 to 2929.06 of the Revised Code is not subject to review under this
section’ clearly means what it says: such a sentence cannot be reviewed.”
Id. Likewise, in State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-
Ohio-1647, 2013 WL 1777258, an appeal of an aggravated murder
conviction, we reviewed the aforesaid statute and succinctly held as follows:
“Pursuant to R.C. 2953.08(D)(3) and case law interpreting this statute, this
Court is without statutory authority to review appellant's sentence on an
evidentiary basis.” Id. at ¶ 70.
(Footnote omitted). State v. Weaver, 2017-Ohio-4374, ¶ 18-19.
{¶54} We next held in Weaver that R.C. 2953.08(D)(3) did not violate the
defendant’s rights under the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. State v. Weaver, 2017-Ohio-4347, ¶ 20. In State v. Blair,
4th Dist. Athens No. 18CA24, 2019-Ohio-2768, ¶ 42, the Fourth District Court of Appeals
agreed with our conclusion that R.C. 2953.08(D)(3) survived the constitutional challenge
predicated upon the Equal Protection Clause of the United States Constitution. See also
State v. Burke, 2016-Ohio-8185, 69 N.E.3d 774 (2nd Dist.), State v. Wilson, 4th Dist. No.
16CA12, 2018-Ohio-2700; State v. Austin, 7th Dist. Mahoning No. 16 MA 0068, 2019-
Ohio-1185. The Seventh District noted in State v. Austin that “[b]oth the Second and
Fourth Districts concluded that the severity of the crimes of murder and aggravated
Stark County, Case No. 2021CA00112 17
murder provide a rational basis for the separate statutory scheme, and recognized that
‘[t]he General Assembly's practice of treating sentencing for aggravated murder and
murder convictions differently from other felonies is longstanding.’ State v. Hollingsworth,
143 Ohio App.3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001).” State v. Austin, 7th Dist.
Mahoning No. 16 MA 0068, 2019-Ohio-1185, ¶ 68. Pursuant to our decision in Weaver,
we find that R.C. 2953.08(D)(3) does not violate the Fourteenth Amendment.
{¶55} Nelson also contends that the Ohio and federal constitutional prohibitions
against cruel and unusual punishment under the Eighth Amendment mandate appellate
review of his sentence. Multiple appellate districts have determined that R.C.
2953.08(D)(3) is constitutional and does not constitute a violation of the Eighth
Amendment. State v. Grievous, 12th Dist. Butler No. CA2018-05-093, 2019-Ohio-1932;
State v. Gardner, 2022-Ohio-2725, 193 N.E.3d 1156 (12th Dist.); State v. Blair, 4th Dist.
Athens No. 18CA24, 2019-Ohio-2768; State v. Austin, 7th Dist. Mahoning No. 16 MA
0068, 2019-Ohio-1185; State v. Thomas, 11th Dist. Lake No. 2019-L-085, 2020-Ohio-
4635. We reach the same conclusion as our sister districts and find that the absence of
appellate review for Nelson’s sentence does not violate the Eighth Amendment.
{¶56} Nelson’s third Assignment of Error is overruled.
Stark County, Case No. 2021CA00112 18
CONCLUSION
{¶57} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.