State v. Noble , 2021 Ohio 1062 ( 2021 )

[Cite as State v. Noble, 2021-Ohio-1062.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2020-L-079
- vs - : 2020-L-080
BRANDON L. NOBLE, :
Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas.
Case Nos. 2017 CR 000705 & 2020 CR 000139.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor; Teri R. Daniel and Taylor Marie Iacobacci,
Assistant Prosecutors, 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).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Brandon L. Noble (“Mr. Noble”), appeals from two judgments of
the Lake County Court of Common Pleas. The first imposed a three-year prison term on
a 2017 burglary offense after finding him not amenable to community control sanctions.
The second sentenced him in a 2020 case for carrying a concealed weapon, having
weapons while under disability, and attempted murder after Mr. Noble was found guilty of
shooting the victim, Rodney Hipps (“Mr. Hipps”), in the lower abdomen.
{¶2} Mr. Noble raises six assignments of error on appeal, contending that: (1)
the state failed to produce sufficient evidence to establish all elements of the offenses
charged beyond a reasonable doubt; (2) his convictions are against the manifest weight
of the evidence; (3), (4), & (5) his indeterminate prison sentence of 10 to 15 years for
attempted murder imposed pursuant to the Reagan Tokes Act (“the Act”) must be
reversed because the Act is unconstitutional, violating the doctrine of separation of
powers, his right to trial by jury, and his rights to a fair trial and due process. (6) Lastly,
he contends the trial court erred by imposing consecutive sentences because its findings
pursuant to R.C. 2929.14(C) are not supported by the record and are contrary to law.
{¶3} A review of the record and pertinent caselaw reveals Mr. Noble’s
assignments of error are without merit. There was more than sufficient evidence to
support Mr. Noble’s convictions, i.e., that he used a gun, a deadly weapon, to shoot the
victim at close range while under community control sanctions for a prior conviction.
Moreover, the manifest weight of the evidence weighs heavily in support of his
convictions. We decline to address Mr. Noble’s third, fourth, and fifth assignments of
error attacking the constitutionality of the Act for the first time on appeal because Mr.
Noble failed to challenge its constitutionality before the trial court and failed to raise plain
error on appeal. Lastly, Mr. Noble’s consecutive sentences are supported by the record
and not contrary to law.
{¶4} The judgments of the Lake County Court of Commons Pleas are affirmed.
Substantive and Procedural History
{¶5} The instant case concerns two separate convictions from 2017 (the “theft
case”) and 2020 (the “shooting case”).
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Case No. 17-CR-000705 - The “Theft Case”
{¶6} In 2017, Mr. Noble was convicted of burglary, a second-degree felony, in
violation of R.C. 2911.12(A)(2), and sentenced to a four-year term of community control
with sanctions and conditions.
{¶7} Five months after his sentence was imposed, the state filed a motion to
terminate Mr. Noble’s community control because he failed to report to his probation
officer and tested positive for marijuana. Mr. Noble pleaded guilty to the charge of
violating the terms of his community control. The court continued his community control
and imposed new sanctions/conditions, including 60 days in the Lake County jail and
completion of the Northeast Ohio Community Alternative Program (“NEOCAP”).
{¶8} Several months later, the state filed a second motion to terminate Mr.
Noble’s community control sanctions because he failed to complete the NEOCAP
program. Mr. Noble pleaded guilty to violating the terms of his community control. The
court continued his community control sanctions and further imposed new
sanctions/conditions, including five days in jail, an additional 30 days in jail in order to
participate in the Transitional Day Reporting Program (“TDRP”), and further, upon his
release from jail, completion of a program with Beacon Health. The court later suspended
the 30-day jail/TDRP upon the recommendation of the Lake County Adult Probation Office
because Mr. Noble had secured housing and employment.
{¶9} The state filed a third motion to terminate community control sanctions after
Mr. Noble again tested positive for marijuana and failed to report to his probation officer
every week. After Mr. Noble pleaded guilty to the charge of violating the terms of his
community control, the court continued his community control and imposed further
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sanctions/conditions, including one day in jail and successful completion of the Beacon
Health program.
{¶10} The state filed a fourth motion to terminate community control sanctions
after Mr. Noble failed to appear for his weekly reporting to his probation officer. After he
was indicted in the shooting case, the second case in the instant appeal, the state filed a
supplement to its motion due to Mr. Noble’s additional community control sanction
violations, i.e., violating local, state, and federal law; failing to report police contact with
his probation officer; and using a firearm.
{¶11} Mr. Noble pleaded guilty to the charges of violating the terms of his
community control. After finding that he is no longer amenable to community control
sanctions and that prison is consistent with the purposes and principles of sentencing,
the court sentenced Mr. Noble to a three-year term of imprisonment, with 470 days of
time served, to be served consecutively to the 16 to 21-year prison term imposed in the
shooting case.
Case No. 20-CR-000139 - The “Shooting Case”
{¶12} In March of 2020, Mr. Noble was indicted on six counts in a separate case:
Count 1: carrying concealed weapons, a fourth-degree felony, in violation of R.C.
2923.12(A)(2); Count 2: carrying concealed weapons, a fourth-degree felony, in violation
of R.C. 2923.12(A)(2); Count 3: having weapons while under disability, a third-degree
felony, in violation of R.C. 2923.13(A)(2); Count 4: felonious assault, a second-degree
felony, in violation of R.C. 2903.11(A)(2), with firearm and repeat violent offender
specifications pursuant to R.C. 2941.145 and R.C. 2941.149, respectively; Count 5:
felonious assault, a second-degree felony, in violation of R.C. 2911.12(A)(2), with firearm
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and repeat violent offender specifications pursuant to R.C. 2941.145 and R.C. 2941.149;
and Count 6: attempted murder, a first-degree felony, in violation of R.C. 2903.02(A) and
R.C. 2923.02, with firearm and repeat violent offender specifications pursuant to R.C.
2941.145 and R.C. 2941.149.
The Trial
{¶13} The state presented evidence and testimony of eight witnesses during a
one-day bench trial that reconstructed the shooting and the events surrounding it.
{¶14} Lieutenant Diana Cichon (“Lt. Cichon”) from the Lake County Sheriff’s Office
was the dispatcher on the night of the incident, October 12, 2019. She testified as to the
911 call reporting a shooting at 547 Lawnview Avenue in the city of Painesville. Later
testimony at trial indicated that Fatima Pina (“Fatima”) lives at the residence with her
children and the children’s father. Her parents and her sister, Cynthia Pina (“Ms. Pina”),
who is also the mother of Mr. Noble’s children, live two houses down from Fatima at 567
Lawnview Avenue. Mr. Noble and his father live at the other end of the street.
{¶15} Patrolman Dallas McCloud (“Ptl. McCloud”) from the Painesville Police
Department responded to the scene. As he was approaching the 547 Lawnview Avenue
residence, he saw a blue Buick Regal parked in the driveway and a black male lying on
the ground next to the vehicle. The victim, who was later identified as Mr. Hipps, was in
pain and screaming while holding the right side of his abdomen. After the DVD recording
from Ptl. McCloud’s dashcam of the incident was played for the court, he testified that he
lifted up Mr. Hipps’s shirt, looking for the bullet wound to apply pressure. The wound was
consistent with a 9-millimeter bullet. Near the left rear tire of the vehicle, approximately
“a foot and a half away,” Ptl. McCloud observed a shell casing that was later identified as
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a 9-millimeter casing. Once Mr. Hipps was in the ambulance, Ptl. McCloud and the other
officer began checking the area for any weapons or more possible bullet casings. The
“canvas search” for witnesses and evidence revealed no other firearms, weapons, or
ammunition.
{¶16} Ms. Pina testified that she has known Mr. Noble for approximately nine
years. In 2018, she started a relationship with Mr. Hipps. Ms. Pina stated that Mr. Noble
never had an issue with her dating Mr. Hipps, except he did not want their children around
him. Shortly before the shooting on the day of the incident, Ms. Pina had been shopping
at Family Dollar with Fatima. As they were returning home, Ms. Pina saw Mr. Hipps’s car
in Fatima’s driveway. She beeped her car horn at Mr. Hipps and turned into her own
driveway. Fatima retrieved her items from Ms. Pina’s vehicle and walked to her house
down the street. Ms. Pina went into the house and gave her children some toys she had
purchased. She was in the middle of the living room inside the house when she heard a
gunshot. After making sure her children were safe, she began walking towards Fatima’s
house. She saw Fatima coming out of her house, their neighbor, Cherisse Ferguson
(“Ms. Ferguson”), walking down the street, and Mr. Hipps “squatting” on the ground. He
was cursing and in pain. She did not see Mr. Noble or anyone besides Mr. Hipps. Both
Ms. Ferguson and Ms. Pina called 911. It appeared to her that Mr. Hipps was trying to
leave before the police arrived on the scene.
{¶17} Fatima testified that she was cooking hotdogs for her children when she
heard a loud bang and Mr. Hipps yelling. She put down the hotdog buns in her hand,
grabbed her kids, and threw them on the couch. She told them to “sit down, calm down”
and opened the door to go outside. She observed Mr. Hipps trying to “get his phone out
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to call his baby momma [the mother of his children]. Give me the phone, I’ll talk to her.
What happened, what happened? He’s like I just got shot, I got just [sic] shot.”
{¶18} Vernell Durham (“Mr. Durham”), Mr. Noble’s acquaintance, was with him on
the day of the incident at Mr. Noble’s father’s house, along with his now-wife, Hannah
Durham (“Mrs. Durham”). Mr. Noble, Mr. and Mrs. Durham, and one of the Durhams’ two
young children sat in Mr. Durham’s car. Mr. Durham was “smoking weed,” which he
estimated took a “long period of time cause I probably smoked three or four blunts.”
{¶19} They pulled out of the driveway to go grocery shopping. As they drove down
the street, Mr. Noble told Mr. Durham to drop him off at Ms. Pina’s house. Mr. Durham
continued driving, then Mr. Noble yelled to stop the car. Mr. Noble jumped out of the car,
and Mr. Durham pulled over and parked. Mr. Durham jumped out of his car because
“there was a lot of people outside so I just seen a lot of people, I thought there was going
to be like a fight or something so I jumped out.”
{¶20} Mr. Durham saw Mr. Hipps “talking to people. He was kicking it. He was
doing a whole bunch of unnecessary stuff.” Mr. Durham was talking to Mrs. Durham when
they both heard a shot. After the shot, everyone “out on the street ran and disbursed into
cars and houses and all that.” Mr. Noble returned to the car, and Mr. Durham headed to
the freeway. Mr. Noble told Mr. Durham that he “can’t believe that happened, can’t
believe that happened and I was just like what’s going on? He didn’t say nothing after
that. I don’t know what’s going on but I’m going to drop you off.” He drove “somewhere
in Euclid” and dropped off Mr. Noble. Mr. Durham never saw anyone that day with a gun.
{¶21} Mrs. Durham, who was in Mr. Durham’s vehicle during the shooting, testified
that she observed Mr. Noble walking back to the car with nothing in his hands after she
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heard the gunshot. When Mr. Noble reached the car, he “said come on, let’s go.” Mrs.
Durham heard him say, “Why did I just shoot him over some pu**y.”
{¶22} Mr. Hipps testified that he began dating Ms. Pina in late 2018. He had
several verbal altercations with Mr. Noble in the past. In one such incident, Mr. Noble
found Ms. Pina sitting with Mr. Hipps in Mr. Hipps’s car. Ms. Pina attempted to stop an
altercation between the two of them. Words were exchanged, and Mr. Hipps left when
he saw they were “not about to fight.” They had a second similar exchange where Mr.
Noble approached Ms. Pina and Mr. Hipps, which ended with Mr. Hipps driving away.
{¶23} On the day of the incident, Mr. Hipps was parked in Fatima’s driveway,
waiting for Ms. Pina to return home. In his rearview mirror, Mr. Hipps observed a car stop
in the middle of the street, and Mr. Noble “hopped out.” Mr. Hipps got out of his vehicle
and started walking towards Mr. Noble. Mr. Noble was saying “[t]he same things as
before you can’t pull up here, get the f**k up out of here, I told you not to come over, you
know what I’m saying same shit basically.”
{¶24} Mr. Hipps responded, “I don’t got to get nowhere. I don’t got to get the f**k
out of here, I’m like I’m here for Cynthia and then he was like who Cynthia, next thing I
know I’m shot. I’m pointing cause I swear I see her coming down the street, he turn
around, he look at me and shoot, like it was quick.” Mr. Hipps did not see a gun when
Mr. Noble was walking, but he “did see his hand inside his jacket like he was touching
something but I didn’t know.” He also did not know if Mr. Noble was holding the gun in
his left or right hand.
{¶25} Mr. Hipps was shot on the right side of his stomach, close to his pelvis, from
a distance of five to six feet. The bullet severed a nerve, causing intense pain and
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permanent damage in Mr. Hipps’s leg. After the police arrived, emergency medical
service (“EMS”) personnel took him to Tri-Point Hospital. He was then air lifted to Metro
Health on the west side of Cleveland. Mr. Hipps underwent abdominal surgery, where
his appendix and part of his colon were removed.
{¶26} Officer William J. Sickles (“Officer Sickles”) of the Painesville Police
Department investigated the incident. He interviewed Mr. Hipps while he was in the
hospital. Mr. Hipps identified Mr. Noble as the shooter. Officer Sickles, along with his
partner, performed a “canvas search” of the neighborhood, where they spoke to people
to identify any witnesses to the incident. Ms. Ferguson, the neighbor who approached
Mr. Hipps after the shooting, told him that she did not observe the incident.
{¶27} A warrant was issued for Mr. Noble, and he was arrested several months
later in January 2020. The firearm used in this incident was never recovered.
{¶28} After the state rested, Mr. Noble made a Crim.R. 29 sufficiency of the
evidence motion, which the trial court denied.
{¶29} The following day, the trial court found Mr. Noble guilty on all six counts and
set the matter for a sentencing hearing.
Sentencing Hearing
{¶30} At the sentencing hearing, the trial court found that: Count 2 (carrying a
concealed weapon) merged with Count 1 (carrying a concealed weapon); Count 3 (having
a weapon while under disability) did not merge with any other counts; and Count 4
(felonious assault) and Count 5 (felonious assault) merged with Count 6 (attempted
murder with firearm and repeat violent offender specifications).
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{¶31} The court sentenced Mr. Noble to an 18-month term of imprisonment on
Count 1, to be served concurrently to a 36-month term of imprisonment on Count 3. A
mandatory three-year term of imprisonment was imposed on the firearm specification
attached to Count 6, to be served prior to and consecutive to an indefinite term of
imprisonment of 10 to 15 years on Count 6. The three-year mandatory term of the firearm
specification and the indefinite term of 10 to 15 years on Count 6 were ordered to be
served consecutively to the concurrent terms of Count 1 and Count 3, for a total prison
term of 16 to 21 years.
{¶32} The court further found that Mr. Noble’s three-year term of imprisonment in
the previous case will run consecutive to the terms imposed in the shooting case.
{¶33} As for consecutive sentences, the court found, pursuant to R.C.
2929.14(C)(4) and R.C. 2929.19(B)(2)(b), that consecutive sentences are necessary to
protect the public from future crime and/or to punish Mr. Noble; that they are not
disproportionate to his conduct and the danger he poses to the public; and that he
committed one or more of the multiple offenses while under a sanction pursuant to R.C.
2929.16, 2929.17, or 2929.18.
{¶34} Mr. Noble now appeals, raising six assignments of error:
{¶35} “[1.] The trial court erred to the prejudice of the defendant-appellant when
it denied his motion for acquittal made pursuant to Crim.R. 29(A).
{¶36} “[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.
{¶37} “[3.] The defendant-appellant’s indeterminate prison sentence of ten to
fifteen years on count six, which was ordered pursuant to the “Reagan Tokes Act,” aka
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Senate Bill 201, must be reversed as the Reagan Tokes Act unconstitutionally violates
the doctrine of separation of powers.
{¶38} “[4.] The defendant-appellant’s indeterminate prison sentence of ten to
fifteen years on count six, which 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.
{¶39} “[5.] The defendant-appellant’s indeterminate prison sentence of ten to
fifteen years on count six, which 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.
{¶40} “[6.] The trial court erred by sentencing the defendant-appellant to
individual, consecutive prison terms as the trial court’s findings with respect to R.C.
2929.14 were unsupported by the record and thus, contrary to law.”
Sufficiency of the Evidence
{¶41} In his first assignment of error, Mr. Noble contends the trial court erred in
denying his Crim.R. 29 motion for judgment of acquittal because the state failed to provide
sufficient evidence to establish beyond a reasonable doubt all of the elements of the
offenses charged. Specifically, he argues that no one saw him with a gun, and there is
little evidence, if any, that he was responsible for causing that harm. Assuming arguendo,
that he was the shooter, there was insufficient evidence to establish the elements of
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attempted murder, i.e. there was no evidence that by shooting Mr. Hipps in the lower
abdomen, he was, in fact, trying to kill him.
{¶42} Crim.R. 29(A) states that a trial court “shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment * * * if the evidence is
insufficient to sustain a conviction of such offense or offenses.” A motion for acquittal
under Crim.R. 29(A) is governed by the same standard as the one for determining
whether a verdict is supported by sufficient evidence. State v. Tenace, 109 Ohio St.3d
255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶43} “‘“Sufficiency” is a term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th
Ed.1990). “In essence, sufficiency is a test of adequacy.” Id.{¶44} “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.” State v. Jenks, 61 Ohio St.3d 259, 547
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.{¶45} Mr. Noble was convicted of carrying a concealed weapon, having a weapon
while under a disability, and attempted murder.
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{¶46} Pursuant to R.C. 2923.12(A)(2), carrying concealed weapons, no person
shall knowingly carry or have, concealed on the person’s person, or concealed ready at
hand, a handgun.
{¶47} Pursuant to R.C. 2923.13(A)(2), having weapons while under disability,
unless relieved from disability under operation of law or legal process, no person shall
knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he
person is under indictment for or has been convicted of any felony offense of violence[.]
{¶48} Pursuant to R.C. 2923.02 and R.C. 2903.02(A), attempted murder, no
person shall engage in conduct that, if successful, would purposely cause the death of
another.
{¶49} Although there were no eyewitnesses, including the victim, who saw a gun
and the gun was never recovered, there was Mr. Hipps’s testimony identifying Mr. Noble
as the shooter and sufficient circumstantial evidence to support his convictions, i.e., that
he used a gun, a deadly weapon, to shoot Mr. Hipps at close range while under
community control sanctions for a prior conviction.
{¶50} Circumstantial evidence has the same probative value as direct evidence.
See Jenks at 272. Circumstantial evidence can be used to demonstrate an offender’s
purpose or intent. State v. Martin, 8th Dist. Cuyahoga No. 91276, 2009-Ohio-3282, ¶ 23.
The determination of whether an offender had the specific intent to kill is made upon
consideration of the facts and circumstances surrounding the crime. State v. Barrow, 8th
Dist. Cuyahoga No. 101356, 2015-Ohio-525, ¶ 16. The relevant factors to consider in
making this determination include the nature of the instrument used and the lethality of
the instrument. Id.13
{¶51} Our review of the evidence indicates the state introduced more than
sufficient evidence to support Mr. Noble’s convictions: Mr. Hipps identified Mr. Noble as
the shooter and testified that Mr. Noble shot him from five to six feet away, and that there
was evidence of their tumultuous history that involved several verbal confrontations.
Further, both Mr. and Mrs. Durham testified to Mr. Noble’s actions both prior to and after
the incident, including statements Mr. Noble made once he returned to their vehicle. All
of the witnesses placed Mr. Noble at the scene of the shooting whether before, during,
and/or after the incident.
{¶52} As for Mr. Noble’s intent to cause Mr. Hipps’s death, the specific intent to
kill may be reasonably inferred from the facts that Mr. Noble shot him at close range, i.e.,
five to six feet, and that a firearm is an inherently dangerous instrument, the use of which
is likely to produce death, coupled with relevant circumstantial evidence. State v. Searles,
8th Dist. Cuyahoga No. 96549, 2011-Ohio-6275, ¶ 11. “[P]ersons are presumed to have
intended the natural, reasonable and probable consequences of their voluntary acts.”
State v. Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995). “The act of pointing a
firearm and firing it in the direction of another human being is an act with death as a
natural and probable consequence.” State v. Brown, 8th Dist. Cuyahoga No. 68761, 1996
WL 86627, *6 (Feb. 29, 1996). See State v. Lucas, 2020-Ohio-1602, 154 N.E.3d 262, ¶
71 (8th Dist.).
{¶53} Mr. Noble’s first assignment of error is without merit.
Manifest Weight of the Evidence
{¶54} In his second assignment of error, Mr. Noble contends his convictions are
against the manifest weight of the evidence because the greater weight of the testimony
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suggests that he did not have a gun or a weapon of any kind on the day of the incident.
Mr. Noble further argues that even assuming, arguendo, that he shot Mr. Hipps, the
manifest weight of the evidence does not support the finding that he was attempting to
kill him because he only shot him once in the lower abdomen.
{¶55} “[W]eight of the evidence addresses the evidence’s effect of inducing
belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
“In other words, a reviewing court asks whose evidence is more persuasive—the state’s
or the defendant’s?” Id.{¶56} “‘The court, reviewing 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 [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).
{¶57} “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”
Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1979).
“‘The discretionary power to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin at
175.
{¶58} As we just reviewed in Mr. Noble’s sufficiency of the evidence argument,
the use of a deadly weapon, even when just fired once, is enough to find a purpose to kill.
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Lucas at ¶ 71. The court found the testimony of Ms. Pina and Fatima credible and that
they did not observe the shooting since they were inside their respective residences at
the time. The testimony of Mr. and Mrs. Durham placed Mr. Noble on Lawnview Avenue
at the time the shooting occurred. Mr. Noble exited the vehicle and then returned several
minutes later, whereupon he stated, “Why did I shoot him over some p***y.” The court
also found Mr. Hipps’s testimony credible. Mr. Hipps identified Mr. Noble as the person
who shot him and testified that Mr. Noble shot him at close range. There is no question
that Mr. Hipps was shot with a gun and suffered serious harm.
{¶59} In regard to the issue of the credibility of the witnesses who provided the
circumstantial evidence in this case, “the credibility of the witnesses [is] primarily for the
trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph
one of the syllabus. “The choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not substitute its
own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489
N.E.2d 277 (1986). A fact finder is free to believe all, some, or none of the testimony of
each witness appearing before it. State v. Fetty, 11th Dist. Portage No. 2011-P-0091,
2012-Ohio-6127, ¶ 58.
{¶60} Further, “‘[w]hen reviewing a judgment under a manifest-weight-of-the-
evidence standard, a court has an obligation to presume that the findings of the trier of
fact are correct. * * * This presumption arises because the [fact-finder] had an opportunity
to view the witnesses and observe their demeanor in weighing the credibility of the
witnesses.’” Id. at ¶ 59, quoting State v. Reeves, 11th Dist. Trumbull No. 2006-T-0099,
2007-Ohio-4765, ¶ 14.
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{¶61} Given the totality of the circumstances, the evidence more than supports
the verdict, and there is no indication that the trial court so lost its way and created such
a manifest miscarriage of justice that a new trial must be ordered. Thompkins at 387.
{¶62} Mr. Noble’s second assignment of error is without merit.
The Reagan Tokes Act
{¶63} In his third, fourth, and fifth assignments of error, Mr. Noble attacks the
constitutionality of the Reagan Tokes Act, aka Senate Bill 201, arguing that it violates the
doctrine of separation of powers, his right to trial by jury, and his rights to a fair trial and
due process.
{¶64} The Reagan Tokes Act (the “Act”) went into effect in Ohio on March 22,
2019. R.C. 2901.011. The Act requires a sentencing court imposing a prison term under
R.C. 2929.14(A)(1)(a) or (2)(a), on or after the effective date, to order a minimum prison
term under that provision and a maximum prison term as determined by R.C.
2929.144(B). The Act also sets forth a presumption that an offender “shall be released
from service of the sentence on the expiration of the offender’s minimum prison term or
on the offender’s presumptive earned early release date, whichever is earlier.” R.C.
2967.271(B). The offender’s presumptive earned early release date is determined under
R.C. 2967.271(F), which permits the sentencing court to reduce the minimum term under
certain circumstances. R.C. 2967.271(A)(2). The Department of Rehabilitation and
Corrections (“DRC”) may rebut the R.C. 2967.271(B) presumption if it determines at a
hearing that certain statutorily enumerated factors apply. R.C. 2967.271(C). If the DRC
rebuts the presumption, it may maintain the offender’s incarceration after the expiration
of the minimum prison term or presumptive earned early release date for a reasonable
17
period of time, which “shall not exceed the offender’s maximum prison term.” R.C.
2967.271(D)(1).
{¶65} Mr. Noble’s prison term falls within the sentencing category of R.C.
2929.144(B)(2). That provision specifies that, where an offender is being sentenced for
more than one felony, if one or more of the felonies is a qualifying felony of the first or
second degree, and some or all of the prison terms imposed are to be served
consecutively, the maximum prison term shall be equal to the sum of the consecutive
minimum and definite terms, plus 50 percent of the longest minimum or definite term for
the most serious felony being sentenced.
{¶66} Here, the trial court sentenced Mr. Noble to ten years minimum for his most
serious qualifying felony, Count 6, attempted murder, a first-degree felony, and a definite
term of three years for the firearm specification to run consecutive to concurrent terms of
18 months and 36 months for Count 1 and Count 3, respectively. Thus, under the
circumstances of this case, Mr. Noble faces a minimum term of 16 years to a maximum
term of 16 years plus 50 percent of the ten-year term, or a total of 21 years.
{¶67} It is a well-established rule that “‘an appellate court will not consider any
error which counsel for a party complaining of the trial court’s judgment could have called
but did not call to the trial court’s attention at a time when such error could have been
avoided or corrected by the trial court.’” Awan at 122, quoting State v. Childs, 14 Ohio
St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus; see State v. Cargile,
123 Ohio St.3d 343, 2009-Ohio-4939, 916 N.E.2d 775, ¶ 15. In other words, “the question
of the constitutionality of a statute must generally be raised at the first opportunity and, in
a criminal prosecution, this means in the trial court.” Awan at 122.
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{¶68} The waiver doctrine in Awan, however, is discretionary. Even where waiver
is clear, constitutional challenges to the application of statutes may be heard for the first
time on appeal, if the court exercises its discretion to do so, “in specific cases of plain
error or where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d
149, 527 N.E.2d 286 (1988), syllabus; see also State v. Weaver, 11th Dist. Trumbull No.
2013-T-0066, 2014-Ohio-1371, ¶ 12 (noting that “several appellate districts have
reviewed constitutionality issues under a plain error standard despite clear waiver of
constitutional issues below”).
{¶69} Still, a court may review a trial court’s judgment for plain error; however, this
requires an appealing party to demonstrate that, but for plain or obvious error, the
outcome of the proceeding would have been otherwise and a reversal is necessary to
correct a manifest injustice. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,
19 N.E.3d 900, ¶ 16. The burden of establishing plain error is on the party asserting it.
Id. Further, this court must presume the constitutionality of a statute. Klein v. Leis, 99
Ohio St.3d 537, 2003-Ohio-4779, 79 N.E.2d 633, ¶ 4. As such, legislation “will not be
invalidated unless the challenger establishes that it is unconstitutional beyond a
reasonable doubt.” Arnold v. Cleveland, 67 Ohio St.3d 35, 38-39, 616 N.E.2d 163 (1993).
See State v. Johnson, 11th Dist. Lake No. 2020-L-051, 2020-Ohio-6807, ¶ 11-13.
{¶70} Mr. Noble, however, does not assert the alleged constitutional infirmities are
plain error, and, in light of the presumption of constitutionality, we decline to sua sponte
fashion such an argument and evaluate our own construction. See App.R. 16(A)(7)
(requiring briefs to have “[a]n argument containing the contentions of the appellant with
respect to each assignment of error * * * with citations to the authorities * * * on which
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appellant relies”); State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶
40 (appellate court declined to address constitutionality of Reagan Tokes Law where
appellant did not object and did not argue plain error on appeal); In re J.A., 9th Dist. Lorain
No. 15CA010794, 2016-Ohio-871, ¶ 4-5 (appellate court declined to advance a plain-
error argument on behalf of an appellant challenging constitutional issue on appeal for
the first time). See State v. Ferguson, 11th Dist. Lake No. 2020-L-031, 2020-Ohio-5578,
¶ 13; Johnson at ¶ 14; State v. Stanley, 11th Dist. Lake 2020-L-065, 2021-Ohio-108, ¶
15.
{¶71} Mr. Noble’s third, fourth, and fifth assignments of error are without merit.
Consecutive Sentences
{¶72} In his sixth and final assignment of error, Mr. Noble submits the trial court
erred in sentencing him to consecutive prison terms since the trial court’s findings
pursuant to R.C. 2929.14(C)(4) were unsupported by the record and, thus, contrary to
law. More specifically, he contends the trial court erred in finding that he committed
multiple offenses and that his convictions in this case were part of one course of conduct.
He claims the trial court further erred by ordering his three-year prison sentence in the
theft case to be served consecutively to his convictions in the shooting case.
{¶73} The standard of review for the imposition of consecutive prison terms is
governed by the clearly and convincingly standard set forth in R.C. 2953.08(G)(2). See
State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16. R.C.
2929.41(A) provides, in pertinent part: “Except as provided in * * * division (C) of section
2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served
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concurrently with any other prison term, jail term, or sentence of imprisonment imposed
by a court of this state * * *.”
{¶74} Pursuant to R.C. 2929.14(C)(4), a trial court may order multiple prison terms
for convictions of multiple offenses to be served consecutively if the court finds that
“consecutive service is necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public * * *.” The trial
court must also find that one of the following statutory factors applies:
{¶75} “(a) The offender committed one or more of the multiples offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶76} “(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender’s conduct.
{¶77} “(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.” R.C. 2929.14(C)(4)(a)-(c).
{¶78} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
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and incorporate its findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶79} Otherwise, the imposition of consecutive sentences is contrary to law. See
id. The trial court is not required “to give a talismanic incantation of the words of the
statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.” Id.{¶80} As to consecutive sentences imposed at the sentencing hearing, the court
found they were necessary to protect the public, were not disproportionate to the
seriousness of the offense, and, given his history of criminal conduct, were necessary to
protect the public from future crime.
{¶81} Thus, it is clear the necessary findings are in the record and incorporated
into the sentencing entry and that the trial court’s imposition of consecutive sentences is
not contrary to law. The trial court specifically found: Mr. Noble committed one or more
offenses while under a sanction imposed pursuant to R.C. 2929.16, R.C. 2929.17, or R.C.
2929.18 of the Revised Code; committed at least two multiple offenses as part of one or
more courses of conduct, i.e., attempted murder, carrying a concealed weapon, and
having a weapon while under disability; and that his history of criminal conduct indicates
consecutive sentences are necessary to protect the public from future crime pursuant to
R.C. 2929.14(C)(4).
{¶82} Mr. Noble suggests that it is “unnecessary” that the theft case be served
consecutively to terms imposed in the shooting case since the shooting case was the
basis for his community control violations. The record in the theft case, however, reveals
the probation violation that centered on the shooting case was the fourth time Mr. Noble
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pleaded guilty to community control violations, which also included drug use, failing to
keep appointments with his probation officer, and failing to complete court ordered
programs. The court continued his community control sanctions three times. On the
fourth violation, the trial court found Mr. Noble was no longer amenable to community
control sanctions and imposed the three-year term. In addition, Mr. Noble has a criminal
history which includes both juvenile adjudications and adult convictions.
{¶83} We do not clearly and convincingly find that the trial court erred in imposing
consecutive sentences pursuant to R.C. 2929.14(C)(4) or that it is contrary to law.
{¶84} Mr. Noble’s sixth assignment of error is without merit.
{¶85} The judgments of the Lake County Court of Common Pleas are affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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