State v. Allen , 2022 Ohio 4243 ( 2022 )

[Cite as State v. Allen, 2022-Ohio-4243.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-060
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
THOMAS G. ALLEN,
Trial Court No. 2020 CR 000662
Defendant-Appellant.
OPINION
Decided: November 28, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Thomas G. Allen, appeals from the judgment of conviction
entered by the Lake County Court of Common Pleas, after a jury trial, on one count of
aggravated burglary, one count of aggravated menacing, one count of tampering with
evidence, and one count of failure to comply with the order of a police officer as well as
several repeat violence offender specifications. We affirm.
{¶2} In July 2020, William Hale lived in Painesville Township, Ohio with his minor
nephew, J.H. (16 years old), a minor niece, S.H. (15 years old), and another, adult niece,
Kaylee Dowen (18 years old). Mr. Hale’s girlfriend, Laura Toth, and her minor daughter,
D.B. (14 years old), were frequent visitors to the home. On July 15, 2020, Mr. Hale had
various people over to his home, including Ms. Toth; her daughter; and appellant, Mr.
Hale’s cousin. The adults played poker and socialized, while Kaylee and the other kids
talked and engaged with their electronics. Eventually the visitors left, and the home’s
residents went to bed. The following day was apparently uneventful.
{¶3} In the early morning hours of July 17, 2020, however, at approximately 2:30
a.m., appellant arrived at the residence of his cousin. He entered the home without
knocking and encountered J. H. and D.B. in the kitchen. At the time, Mr. Hale was
upstairs sleeping, and J.H.’s two sisters were also in their bed on the first floor. Appellant
asked J.H. if he and Mr. Hale wished to smoke marijuana. J.H. declined but directed
appellant to the outdoors where J.H. ostensibly kept marijuana. Appellant left the home
for a short period but later returned and again re-entered. Appellant appeared agitated
and inquired why J.H. and D.B. were stalking him. He brandished a knife, pointed the
same at the two children, then chased J.H. up the stairs. Meanwhile, D.B. entered the
downstairs bedroom and Kaylee called 911.
{¶4} Mr. Hale was awoken by the commotion and retrieved a baseball bat. Mr.
Hale ultimately chased appellant from the home. Appellant fled the scene on his
motorcycle before police arrived. An officer spotted him, but appellant refused to stop.
Appellant eventually pulled over and he was arrested. The knife appellant brandished
was never located.
{¶5} Appellant was indicted on two counts of burglary, felonies of the second
degree, with repeat violent offender specifications; two counts of aggravated burglary,
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felonies of the first degree, with repeat violent offender specifications; two counts of
felonious assault, felonies of the second degree, with repeat violent offender
specifications; one count of aggravated menacing, a misdemeanor of the first degree;
one count of tampering with evidence, a felony of the third degree; and one count of failure
to comply with the order or signal of a police officer, a felony of the fourth degree. The
matter proceeded to a jury trial, where appellant was found guilty on both counts of
burglary; both counts of aggravated burglary; the aggravated menacing count; the
tampering with evidence count; and the failure to comply count. He was acquitted on
each count of felonious assault. Without objection, the trial court merged each burglary
and one aggravated burglary into the second aggravated burglary count for purposes of
sentencing. He was then sentenced to an indefinite prison term of a minimum of 11 years
and a maximum 16 and one-half years on the aggravated burglary count; 36 months on
the tampering with evidence count; 12 months on the failure to comply count; and 180
days in jail on the aggravated menacing count. The 12-month term for failure to comply
was ordered to run consecutively with the sentence for aggravated burglary. All other
terms were ordered to be served concurrently, for a total term of 12 years to 17 and one-
half years.
{¶6} Appellant appeals and assigns seven errors. His first two assignments of
error provide:
{¶7} “[1.] The trial court erred to the prejudice of the defendant-appellant when it
denied his motion for acquittal under Crim.R. 29(A).
{¶8} “[2.] The trial court erred to the prejudice of the defendant-appellant when
it returned a verdict of guilty against the manifest weight of the evidence.”
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{¶9} “[A] ‘sufficiency’ argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged
offense.” State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he
proper inquiry is, after viewing the evidence most favorably to the prosecution, whether
the jury could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th Dist.).
{¶10} In contrast, a “court reviewing the manifest weight observes the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of the
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 reversed and a new trial ordered.” State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994
WL 738452, *5 (Dec. 23, 1994).
{¶11} Appellant argues that the state failed to present sufficient, credible evidence
to support his convictions for aggravated burglary, aggravated menacing, and tampering
with evidence.1 In particular, appellant contends the state failed to establish (1) he
trespassed in the structure, (2) with the purpose to commit any criminal offense and (3)
that he inflicted, attempted to inflict, or threatened to inflict physical harm on another.
Each of the foregoing are necessary elements for his conviction on aggravated burglary.
Regarding the aggravated menacing conviction, appellant does not appear to directly
challenge the sufficiency of the state’s evidence; rather, he seems to argue that the
1. Appellant actually asserts that the jury erred in finding him guilty on each count on which it did not enter
a verdict of acquittal; because, however, the only entries that are reduced to a judgment of conviction are
final, we cannot address the validity of the verdicts on the merged counts. See, e.g., State v. White, 156
Ohio St.3d 536, 2019-Ohio-1215, ¶13 (“When valid, a judgment of conviction is a final order under R.C.
2505.02(B)”). That is, the counts which merged for purposes of sentencing are not convictions, not final
orders, and thus not within the scope of an appeal from the underlying judgment of conviction.
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witness testimony that he wielded a knife was not believable due to subtle, differing details
in each witness’ account. With respect to the tampering conviction, appellant asserts the
state failed to establish he ever possessed a knife and thus failed to adduce any evidence
that he discarded a knife.
{¶12} Appellant was convicted of aggravated burglary, in violation of R.C.
2911.11(A)(1), which provides, in relevant part: “No person, by force, stealth, or
deception, shall trespass in an occupied structure * * * when another person other than
an accomplice of the offender is present, with purpose to commit in the structure * * * any
criminal offense, if any of the following apply * * * [t]he offender inflicts, or attempts or
threatens to inflict physical harm on another[.]” Furthermore, criminal trespass is defined
in R.C. 2911.21(A)(1) and states that: [n]o person, without privilege to do so, shall * * *
[k]nowingly enter or remain on the land or premises of another[.]”
{¶13} Appellant first asserts the state failed to provide credible evidence that he
trespassed in the residence on the night of the incident. He contends he was a regular
visitor in his cousin’s home and thus was consensually permitted to enter. While he may
have been a visitor previously and admitted into the residence routinely, Mr. Hale testified
no one, let alone appellant, was permitted to walk into his home. To the contrary, Mr.
Hale stated appellant was never a resident of the home and no one, other than the
residents, were permitted to walk into the home. Mr. Hale noted that one of his nieces,
S.H., (who lives in the residence) has cerebral palsy and is “pretty friendly.” As such, out
of safety concerns, no one is permitted in the home without calling or knocking. Mr. Hale
claimed that anyone he associates with is aware of this rule. Mr. Hale further emphasized
his other niece, Kaylee, and nephew, J.H. (who also lived in the residence), were the only
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individuals (besides himself) with keys to the home. And J.H. testified that while appellant
had visited the residence in the past, he did so infrequently. The foregoing testimony
provided sufficient, credible evidence that appellant knowingly entered the premises of
Mr. Hale without privilege to do so. We therefore conclude there was credible evidence
to establish appellant was a trespasser on the morning of the incident beyond a
reasonable doubt.
{¶14} Moreover, testimony established that appellant, after exiting the residence
to apparently smoke marijuana, re-entered the kitchen where D.B. and J.H. were talking
and threatened them by pointing a knife in their direction. Testimony indicated that
appellant’s face was red, sweaty, and he appeared angry; moreover, according to D.B.,
she and J.H. were not concerned with what appellant was doing while he was outside.
Upon reentry, however, appellant accused the two kids of “watching” or “stalking” him.
{¶15} With this in mind, appellant was convicted of aggravated menacing, which
required proof that appellant knowingly caused another to believe he would cause serious
physical harm to his or her person. R.C. 2903.21. By re-entering the home as described
above, the jury could reasonably conclude appellant committed aggravated menacing by
knowingly causing both D.B. and J.H. to believe he would seriously injure them with the
knife. As such, the jury could also reasonably conclude appellant re-entered the home
with the purpose to commit aggravated menacing and, at the very least, through his
gesture(s) of pointing the knife in the children’s direction, threatened to inflict physical
harm on both D.B. and J.H. – the remaining elements of aggravated burglary.
{¶16} Appellant, however, contends that his conviction for aggravated burglary is
inconsistent with the jury’s acquittal for felonious assault. Felonious assault, as charged
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in the indictment, required the state to prove appellant knowingly caused or attempted to
cause physical harm to another by means of a deadly weapon. The conviction for
aggravated burglary only required appellant to enter the residence with the purpose to
commit a criminal offense. The jury could have reasonably concluded that appellant did
not knowingly cause or attempt to cause physical harm with the knife and, at the same
time, concluded that he did knowingly cause D.B. and J.H. to believe he would seriously
injure them. In other words, the jury could consistently conclude appellant was not guilty
of felonious assault, but still enter a verdict of guilty on the aggravated menacing charge,
which would be sufficient to meet the “with-purpose-to-commit-a-criminal-offense”
element of aggravated burglary.
{¶17} Appellant next argues the state failed to adduce sufficient, credible evidence
to prove his guilt on the tampering with evidence count. R.C. 2921.12(A)(1) provides, in
relevant part: “No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the following: * * * Alter,
destroy, conceal, or remove any * * * thing, with purpose to impair its value or availability
as evidence in such proceeding or investigation[.]”
{¶18} Appellant asserts the state’s witnesses were sufficiently inconsistent
regarding the appearance of the knife he purportedly wielded that the evidence failed to
support the conclusion he ever possessed the weapon. He additionally claims that even
if there was sufficient, credible evidence to support the conclusion that he possessed the
knife, there was nothing introduced to establish he discarded the object. Again, we do
not agree.
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{¶19} D.B. testified appellant brandished a knife and pointed it at both her and
J.H. and, in an irritated state, questioned why they were stalking him. J.H. testified,
without contradiction, to the same facts. Moreover, after D.B. fled to the downstairs
bedroom, Kaylee testified she observed appellant with a knife chasing J.H. up the stairs.
Although each individual had differing descriptions of the knife’s characteristics (D.B.
testified the blade was black; J.H. testified it had “camo” on it; and Kaylee stated it had a
black blade with a yellow handle), these minor discrepancies, in light of chaos and
commotion, do not render their testimony not credible. Moreover, Mr. Hale testified that
after he left his bed, he observed appellant with a knife; and, as appellant left on his
motorcycle, he was still in possession of the weapon. Considering the totality of the
evidence, the jury could reasonably conclude appellant possessed a knife while in the
residence and on the property during the incident. It could also reasonably conclude
appellant had the knife as he left the property and, in light of the fact it was not in his
possession when he was arrested, that he disposed or “removed” the weapon from his
person with the purpose to impair its evidentiary value.
{¶20} Given the foregoing, we conclude the state produced sufficient, credible
evidence to sustain appellant’s convictions for aggravated burglary, aggravated
menacing, and tampering with evidence.
{¶21} Appellant’s first and second assignments of error lack merit.
{¶22} Appellant’s third through seventh assignments of error provide:
{¶23} “[3.] The defendant-appellant’s constitutional challenges to the
indeterminate prison sentence of eleven to sixteen and one-half years on count five, that
was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, are ripe for review.
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{¶24} “[4.] The defendant-appellant’s indeterminate prison sentence of eleven to
sixteen and one-half years on count five that was ordered pursuant to the ‘Reagan Tokes
Act,’ AKA Senate Bill 201, must be reversed as the Reagan Tokes Act is unconstitutionally
void for vagueness.
{¶25} “[5.] The defendant-appellant’s indeterminate prison sentence of eleven to
sixteen and one-half years on count five that was ordered pursuant to the ‘Reagan Tokes
Act,’ AKA Senate Bill 201, must be reversed as the Reagan Tokes Act unconstitutionally
violates the doctrine of separation of powers.
{¶26} “[6.] The defendant-appellant’s indeterminate prison sentence of eleven to
sixteen and one-half years on count five that was ordered pursuant to the ‘Reagan Tokes
Act,’ AKA Senate Bill 201, violates his constitutional right to trial by jury as guaranteed by
the Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Section 5 of the Ohio Constitution.
{¶27} [7.] The defendant-appellant’s indeterminate prison sentence of eleven to
sixteen and one-half years on count five that was ordered pursuant to the ‘Reagan Tokes
Act,’ AKA Senate Bill 201, violates his constitutional rights to fair trial and due process as
guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 5 & 10 of the Ohio Constitution.”
{¶28} Although this court previously concluded the foregoing constitutional
challenges to the presumptive release provisions in the Reagan Tokes Act were not ripe
for review, See, e.g., State v. Lavean, 11th Dist. Lake No. 2020-L-045, 2021-Ohio-1456,
the Supreme Court of Ohio, in State v. Maddox ___ Ohio St.3d ___, 2022-Ohio-764,
determined the arguments are ripe. Id. at ¶11.
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{¶29} With this in mind, this court, in State v. Reffitt, 11th Dist. Lake No. 2021-L-
129, 2022-Ohio-3371, recently concluded the Regan Tokes Act (1) is not
unconstitutionally void for vagueness, Id. at ¶29-42; (2) does not unconstitutionally violate
the doctrine of separation of powers, Id. at ¶44-50; (3) does not violate a defendant’s right
to a trial by jury, Id. at ¶52-58; and (4) does not violate a defendant’s right to a fair trial
and due process. Id. at ¶60-72.
{¶30} Accordingly, while appellant’s third assignment of error has merit, it is
merely a gatekeeper for analyzing the remaining constitutional arguments. Appellant’s
constitutional arguments, however, lack merit. Assignments of error four through seven
are accordingly overruled.
{¶31} The judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
JOHN J. EKLUND, J.,
concur.
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