State v. Chapman , 2022 Ohio 2853 ( 2022 )

[Cite as State v. Chapman, 2022-Ohio-2853.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA3742
v. :
SAMUEL CHAPMAN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Max Hersch and Stephen Hardwick, Assistant State Public
Defenders, Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela
C. Wells, Ross County Assistant Prosecuting Attorney, for
appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-11-22
ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas
Court judgment of conviction and sentence. A jury found Samuel
Chapman, defendant below and appellant herein, guilty of four
offenses: (1) attempted murder, in violation of R.C. 2923.02;
(2) kidnapping, in violation of R.C. 2905.01; (3) grand theft,
in violation of R.C. 2913.02; and (4) tampering with evidence,
in violation of R.C. 2921.12. The trial court merged the grand-
theft and tampering-with-evidence offenses and sentenced
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appellant to serve consecutive terms of imprisonment with a
minimum term of 21 years and maximum of 26 years.
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED STRUCTURAL ERROR
WHEN IT EXCLUDED A PROSPECTIVE JUROR BECAUSE
OF THE JUROR’S DISABILITY.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY NOT MERGING MR.
CHAPMAN’S CONVICTIONS FOR ATTEMPTED MURDER
AND KIDNAPPING.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN
IT SENTENCED MR. CHAPMAN TO AN INDEFINITE
SENTENCE UNDER THE UNCONSTITUTIONAL REAGAN
TOKES LAW.”
{¶3} On April 1, 2020, Jennifer Lambert found Barbara
Martin bloodied and abandoned in an open field located
approximately ten feet from the side of a road. Martin told
Lambert that a man stabbed her and tried to drag her to a field.
Lambert called 9-1-1. After medical personnel and law
enforcement officers responded to the scene, officers identified
appellant as a suspect and apprehended him later that day.
{¶4} A Ross County Grand Jury subsequently returned an
indictment that charged appellant with attempted murder,
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kidnapping, grand theft, and tampering with evidence. Appellant
entered not guilty pleas.
{¶5} On February 23 through 25, 2021, the trial court held
a jury trial. After the parties completed their opening
statements, the trial court noted, on the record and outside of
the jury’s presence, that an issue had arisen before jury
selection. When the court asked defense counsel if they wished
to add anything to the record, counsel responded affirmatively
and the court outlined what had occurred before jury selection
began:
The court sent out as a matter of record a set of
jury questionnaires. We provide those questionnaires to
counsel prior to a trial. We also give a list of all of
the jurors [sic] names. One of the jurors that was
listed on this month’s questionnaires was a juror by the
name of [A.B.]. The Judge, I am very familiar with
[A.B.]. He is the manager at Unioto for the basketball
sports teams. He has Down’s Syndrome and when he was
twenty-five years old or so he was still the manager of
the basketball team. He works also at Kroger Grocery.
He doesn’t recall my name whenever I see him out, but he
always remembers that I am David’s dad and he will say,
“Hello David’s Dad.” I believe his duty or his job there
is a courtesy clerk is what they call him. Clearly, his
questionnaire was filled out by his mother and he signed
the questionnaire. So having said all of that it was my
intention to leave him on this jury and allow it to go
forward and allow him to go through the voir dire
process. I had some very large concerns based upon my
knowledge of him of whether he would be able to
understand or comprehend what was going on and whether
or not he would be so easily persuaded or swayed by
others but that was only a concern I was going to address
if the counsel decided to do so. However, his father
came here today instead and with counsel in chambers
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with me, his father appealed to the court that he not
serve on the jury. He indicated that [A.B.]’s focus
right now is the upcoming baseball season and nothing
else. I indicated to him what the facts of the case
were and the father indicated it would be not in [A.B.]’s
interest to hear that sort of evidence or have that.
With that in mind, I then said thank you and I indicated
to counsel that I was going to excuse him from service.
Mr. Marks did not object to that. Frankly, I don’t
recall if the defense objected but I told them I would
give them the opportunity to object if they wished to do
so and certainly make a record of it. First, does
counsel believe that is an accurate recitation of what
happened this morning? Mr. Marks?
{¶6} The prosecutor stated that the court’s recitation was
accurate, and defense counsel agreed. Defense counsel then
clarified that they did not object in chambers because the court
had indicated that it would give defense counsel the chance to
object later.
{¶7} Defense counsel then objected on the record to the
trial court’s decision to exclude A.B. from jury service before
voir dire. Defense counsel suggested that the court’s decision
“was a bit premature” and that the voir-dire process would have
revealed whether A.B. is capable of being seated as a juror.
The court, however, noted defense counsel’s objection and stated
that it already “made the decision about it” and did not believe
it needed to overrule appellant’s objection. Thus, the court
proceeded with the trial.
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{¶8} The state’s first witness, Angel Blevins, testified
that on April 1, 2020 she worked at a Valero gas station.
Blevins explained that Barbara Martin visited the store nearly
every day and she was familiar with Martin.1 During the early
morning hours of April 1, 2020, Martin entered the store. At
that time, a man also was inside the gas station. Blevins did
not know the man’s name, but she noticed him inside the store on
previous occasions. At trial, Blevins identified the man as
appellant.
{¶9} Blevins stated that, after Barbara Martin completed
her purchase, she exited the store, walked to her vehicle and
appellant followed. Martin returned to the store, and appellant
again followed. When Martin asked Blevins about giving
appellant a ride, Blevins said she did not see any issue with
giving appellant a ride. Martin and appellant then returned to
Martin’s vehicle and sat for a moment before leaving.2
{¶10} Jennifer Lambert testified that, on April 1, 2020
while driving on Stone Road, she heard a person scream and
observed Martin lying in a field about ten feet from the
1
Before trial, Martin passed away from causes unrelated to
the charges filed against appellant.
2
During Blevins’ testimony, the state played store
surveillance footage. Blevins stated that the video footage
accurately depicted the sequence of events that occurred the
morning of April 1, 2020.
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roadway. Lambert noted that Martin was waving her hand, so she
stopped to see if she needed assistance. When Lambert
approached Martin, she noticed blood all over Martin’s hands and
that she held her hands by her neck. Martin repeated “that he
stabbed her.”
{¶11} Jennifer Lambert attempted to help Martin, and, as she
did, Martin turned and looked up the hill. When Lambert noticed
a gold Chevrolet vehicle approach, Martin told Lambert to run.
At that point, the vehicle’s driver stopped, opened the door,
exited and walked to the front of the car. Lambert said the
driver was so close she could have reached out and touched him.
{¶12} Jennifer Lambert further testified that Martin kept
telling Lambert to run and stated “he was going to kill me too.”
Lambert then yelled at the man and told him to return to the
vehicle and that she had called the police. Lambert explained
that the man “just kind of looked over at [Martin], shrugged his
shoulders like this, and got back in the car.” When the man
returned to the vehicle, he drove up the hill.
{¶13} Ross County Sheriff’s Deputy Mitchell Reffett
responded to the scene and found Martin, Lambert, and Jason
Jones (another person who stopped to help) present. Reffett
administered first aid and asked Martin what had happened.
Martin advised the deputy “that a guy had stabbed her, and that
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she had fought him and he was trying to drag her into the field
that was located next to the road before he took off in the
car.” Reffett stated that he noticed a large quantity of blood
in the area and the field Martin described is “a marshy area,
like a pond, a wetland area.”
{¶14} The state presented additional witnesses to prove that
appellant is the individual who stabbed Martin. Lindsey White
stated that on April 1, 2020, appellant appeared at her house
and demanded that White let him inside to talk to White’s
boyfriend, Marshond. Although White told appellant that
Marshond was asleep, appellant nevertheless walked into the
house and went to the sink to wash his hands. Appellant then
asked White to wake up Marshond because appellant needed
clothes. White testified that appellant’s presence made her
nervous, so she sent a message to a neighbor, Cyndi Hickman,
that appellant was at her house and “something didn’t feel
right.”
{¶15} Lindsey White also stated that Marshond woke up and
her neighbor, Cyndi Hickman, arrived at the house. White
explained that she and Hickman left the house and drove to a
store to purchase some items and as they did, they observed “a
body getting picked up out [of] the ditch.” Shortly thereafter,
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White and Hickman reported their suspicions about appellant to
law enforcement officers.
{¶16} Officers searched the area near White’s residence and
located Martin’s vehicle, a gold Chevrolet sedan, hidden in the
woods. Not long after, they spotted appellant running between
two strips of airfield at the Ross County Airport.
{¶17} Eventually, officers captured appellant and found a
knife in his possession. Appellant told one officer, Ross
County Sheriff’s Detective Stanley Addy, that “a lady attacked”
him with a knife. When Addy pointed out to appellant that
appellant carried a knife, he responded, “not that knife.” Addy
then advised appellant of his Miranda3 rights and appellant
retorted, “You have the right to shut the F up.”
{¶18} After the state presented its case, including several
items of physical evidence to link appellant to Martin’s
stabbing, appellant chose to testify in his defense. Appellant
explained that he spoke with Martin at the gas station about “a
ride home,” but denied he left the gas station in Martin’s
vehicle. Instead, appellant said he purchased heroin from a
person named Derek McCallister and he traded his coat with
McCallister in exchange for heroin. Appellant testified that he
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
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then walked across the street “and went under the viaduct and
snorted a little bit of the heroin.” Afterward, appellant
visited a friend’s house and later met a “street walker” who
drove him to Stone Road.
{¶19} Appellant explained that once on Stone Road, he
visited Don Tilton’s residence but Tilton’s girlfriend, Angel,
“was flipping out.” Appellant indicated that Tilton and Angel
acted “weird” about appellant at their house, and Tilton
threatened him with a gun and Angel a butcher knife. Appellant
also testified that Tilton gave him a Timberwolf knife, the
knife officers found in his possession.
{¶20} Appellant claimed that he “vaguely” remembers contact
with law enforcement officers, but did recall running from
officers and did so because of previous negative interactions
with officers. Appellant also testified that he did not enter
Barbara Martin’s car at any point on April 1, 2020, did not
kidnap her, attempt to murder her, or harm her in any way.
Appellant claimed that, when Martin was in her vehicle at the
gas station, “someone” already was in Martin’s car.
{¶21} After hearing the evidence, the jury found appellant
guilty of attempted murder, kidnapping, grand theft, and
tampering with evidence. At sentencing, the trial court merged
the grand theft offense with the tampering offense and sentenced
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appellant to serve (1) an indefinite 10-year prison term for
attempted murder, (2) an indefinite 10-year prison term for
kidnapping, and (3) a 12-month prison term for tampering with
evidence. The court further ordered that all of the sentences
be served consecutively to one another and ordered appellant be
sentenced to a minimum term of 21 years and a maximum term of 26
years. This appeal followed.
I
{¶22} In his first assignment of error, appellant asserts
that the trial court erred by excluding a prospective juror
based on the juror’s disability. Appellant contends that the
summary dismissal of the juror violated the Equal Protection
Clause and is a structural error that mandates a reversal of the
trial court’s judgment.
{¶23} Initially, we point out that appellant did not object
to the juror’s dismissal before the court decided to excuse the
juror. The record does not indicate, for example, that
appellant objected when the parties conferred in the judge’s
chambers when the judge considered the juror’s father’s plea to
excuse the juror. Moreover, appellant did not object when the
court indicated that it intended to excuse the prospective juror
due to the juror’s Down Syndrome and the juror’s father’s belief
that the juror could not cope with the demands of sitting on the
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jury. Appellant also did not object at any point during voir
dire or prior to jury selection. Instead, appellant objected
after the jury had been seated. Thus, because appellant did not
request the trial court to allow defense counsel to voir dire
the juror, appellant did not object at a time when the court
could have corrected any error. Thus, under these
circumstances, we do not believe that appellant properly
preserved the alleged error. State v. McAlpin, ___ Ohio St.3d
___, 2022-Ohio-1567, ___ N.E.2d ___, ¶ 110 (defendant’s failure
“to object during voir dire to the state’s use of its challenges
* * * * forfeited his challenge absent a showing of plain
error”).
{¶24} Appellant claims, however, that he properly objected
and asserts that, because the trial court “did not instruct
[defense counsel] to object at the first opportunity,” “defense
counsel appropriately waited for the trial court to bring it
up.” Appellant notes that counsel did object on the record when
the court asked counsel whether they wished to object to the
court’s decision to dismiss the juror. The court pointed out on
the record that, while in chambers, the prosecutor did not
object, and the court did not “recall if the defense objected
but I told them I would give them the opportunity to object if
they wished to do so and certainly make a record of it.”
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Defense counsel stated, however, that they did not object in
chambers in light of the court’s statement that it would give
them the chance to object on the record.
{¶25} Nevertheless, our review of the record reveals that
appellant did not object at a time when the trial court could
have corrected any error. By the time appellant objected, the
juror had been dismissed and the jury seated. Therefore, we
believe that appellant forfeited the right to raise this issue
on appeal. State v. Murphy, 91 Ohio St.3d 516, 524–25, 747
N.E.2d 765 (2001) (defendant forfeited right to argue court
erred by dismissing jurors without granting counsel opportunity
to voir dire jurors when defendant “did not request an
opportunity to voir dire either one”).
{¶26} We also observe that appellant did not argue, during
the trial court proceedings, that dismissing the juror violated
the Equal Protection Clause. It is well-settled that a party
may not raise for the first time on appeal new issues or legal
theories. Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43,
322 N.E.2d 629 (1975). Thus, a litigant who fails to raise an
argument before the trial court forfeits the right to raise that
issue on appeal. Independence v. Office of the Cuyahoga Cty.
Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶
30 (“an appellant generally may not raise an argument on appeal
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that the appellant has not raised in the lower courts”); State
v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d
900, ¶ 21 (defendant forfeited constitutional challenge by
failing to raise it during trial court proceedings); Gibson v.
Meadow Gold Dairy, 88 Ohio St.3d 201, 204, 724 N.E.2d 787 (2000)
(party waived arguments for purposes of appeal when party failed
to raise those arguments during trial court proceedings); State
ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections, 65 Ohio
St.3d 175, 177, 602 N.E.2d 622 (1992) (appellant cannot “present
* * * new arguments for the first time on appeal”); accord State
ex rel. Jeffers v. Athens Cty. Commrs., 4th Dist. Athens No.
15CA27, 2016-Ohio-8119, 2016 WL 7230928, fn.3 (failure to raise
argument in trial court results in waiver of argument for
purposes of appeal); State v. Anderson, 4th Dist. Washington No.
15CA28, 2016-Ohio-2704, ¶ 24 (“arguments not presented in the
trial court are deemed to be waived and may not be raised for
the first time on appeal”).
{¶27} When a criminal defendant forfeits the right to assert
an error on appeal, an appellate court applies plain-error
review. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 21-22. Crim.R. 52(B) provides that “[p]lain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.”
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Crim.R. 52(B) thus permits a court to recognize plain error if
the party claiming error establishes (1) that “‘an error, i.e.,
a deviation from a legal rule’” occurred, (2) that the error is
a plain or “‘an “obvious” defect in the trial proceedings,’” and
(3) that this obvious error affected substantial rights, i.e.,
the error “‘must have affected the outcome of the trial.’” Id.
at ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002); accord United States v. Dominguez Benitez,
542 U.S. 74, 76, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)
(under plain-error review, defendant typically must establish
“‘reasonable probability that, but for the error,’ the outcome
of the proceeding would have been different”). For an error to
be “plain” or “obvious,” the error must be plain “under current
law” “at the time of appellate consideration.” Johnson v.
United States, 520 U.S. 461, 467, 468, 117 S.Ct. 1544, 137
L.Ed.2d 718 (1997); accord Henderson v. United States, 568 U.S.
266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013); Barnes, 94 Ohio
St.3d at 27, citing United States v. Olano, 507 U.S. 725, 734,
113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (for error to be plain,
it must be obvious error under current law); State v. G.C., 10th
Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶ 14. Moreover,
even when a defendant demonstrates that a plain error or defect
affected his substantial rights, the Ohio Supreme Court has
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“‘admonish[ed] courts to notice plain error “with the utmost
caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.”’” Rogers at ¶ 23, quoting
Barnes, 94 Ohio St.3d at 27, quoting State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus; State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-
4034, 19 N.E.3d 900, ¶ 16 (“reversal must be necessary to
correct a manifest miscarriage of justice”). Consequently, an
appellate court has discretion to notice plain error but “is not
required to correct it.” Rogers at ¶ 23.
{¶28} After our review in the case sub judice, we do not
believe that any error – obvious or otherwise – occurred. The
plain-error doctrine, therefore, has no applicability to the
case at bar.
{¶29} “The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any person
within its jurisdiction the equal protection of the laws.’”
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985), quoting Plyler v. Doe, 457 U.S.
202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982); see also
Article I, Section 2, Ohio Constitution (“All political power is
inherent in the people. Government is instituted for their
equal protection and benefit.”). The Equal Protection Clause
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“is essentially a direction that all persons similarly situated
should be treated alike.” Cleburne, 473 U.S. at 439; McCrone v.
Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d
1, 6 (Equal Protection Clause “require[s] that individuals be
treated in a manner similar to others in like circumstances”).
{¶30} The Equal Protection Clause does not, however, “forbid
the state from treating different classes of persons
differently.” Matter of Adoption of Y.E.F., 163 Ohio St.3d 521,
2020-Ohio-6785, 171 N.E.3d 302, ¶ 17, citing Eisenstadt v.
Baird, 405 U.S. 438, 446-447, 92 S.Ct. 1029, 31 L.Ed.2d 349(1972), citing Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251,
30 L.Ed.2d 225 (1971).
But a classification must not be arbitrary; it “‘must
rest upon some ground of difference having a fair and
substantial relation to the object of the legislation,
so that all persons similarly circumstanced shall be
treated alike.’” Reed at 76, 92 S.Ct. 251, quoting F.S.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40
S.Ct. 560, 64 L.Ed. 989 (1920).
Id.{¶31} A court that is determining whether a particular
classification violates the Equal Protection Clause applies
“‘different levels of scrutiny to different types of
classifications.’” State v. Thompson, 95 Ohio St.3d 264, 2002-
Ohio-2124, 767 N.E.2d 251, ¶ 13, quoting Clark v. Jeter, 486
U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Under
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rational-basis review, a classification must “be rationally
related to a legitimate government purpose.” Id., citing Clark
at 461, 108 S.Ct. 1910. Classifications that involve a suspect
class or that affect a fundamental constitutional right must “be
narrowly tailored to serve a compelling state interest.” Id.{¶32} In the case at bar, appellant contends that the trial
court’s decision to excuse the juror before voir dire based upon
the juror’s disability violated the Equal Protection Clause. He
asserts that summarily dismissing a juror with a disability,
like Down Syndrome, before voir dire deprives that juror of the
equal protection of the law.
{¶33} First, we emphasize that “all persons, including the
disabled, have access to the courts and the opportunity to serve
on juries.” State v. Speer, 124 Ohio St.3d 564, 2010-Ohio-649,
925 N.E.2d 584, 2010 WL 756988, ¶ 20. “The duty of jury service
falls on all citizens, and, therefore, it is ‘vitally important
that the legal system open its doors to each person who desires
to serve on a jury.’” Rules of Superintendence for the Courts
of Ohio, Appendix B, Ohio Trial Court Jury Use and Management
Standards, Standard 1(A). Trial courts thus have an “obligation
* * * to reasonably accommodate the special needs of physically
handicapped jurors.” Commentary to Standard 1.
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{¶34} R.C. 2313.14 applies when a court excuses a person
from jury service before voir dire.4 As relevant here, the
statute provides:
(A) Except as provided by section 2313.15 of the
Revised Code, the court of common pleas or the
commissioners of jurors shall not excuse a person who is
liable to serve as a juror and who is drawn and notified,
unless it is shown to the satisfaction of the judge or
commissioners by either the juror or another person
acquainted with the facts that one or more of the
following applies:
* * * *
(4) The prospective juror has a mental or physical
condition that causes the prospective juror to be
incapable of performing jury service. The court or
commissioners may require the prospective juror to
provide the court with documentation from a physician
licensed to practice medicine verifying that a mental or
physical condition renders the prospective juror unfit
for jury service for the remainder of the jury year.
{¶35} Here, appellant did not cite any Ohio cases that have
examined a trial court’s decision to dismiss a juror based upon
R.C. 2313.14(A)(4) using an equal-protection analysis. Rather,
appellant cites a Maryland Court of Appeals case that construed
4
Additionally, Standard 6 of the Rules of Superintendence
for the Courts of Ohio, Appendix B, Ohio Trial Court Jury Use
and Management Standards, provides as follows:
B. Eligible persons who are summoned may be excused
from jury service only if:
1. Their ability to receive and evaluate
information is so impaired that they are unable to
perform their duties as jurors and they are excused for
this reason by a judge;
* * * *
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a state statute regarding juror qualifications. Troutman v.
State, 466 Md. 237, 218 A.3d 265 (2019). In that case, the
court construed Maryland “statutes that govern jury service” to
preclude a trial court from “summarily excus[ing] for cause
prospective jurors with disabilities.”5 Id. at 261. The court
explained, “a trial court may excuse a prospective juror for
cause on a disability-related ground if no reasonable
accommodation is possible, and, at that particular trial, the
particular disability would prevent the prospective juror from
providing satisfactory jury service.” Id. at 261.
{¶36} In Troutman, before the trial began the trial court
excused four jurors with physical limitations that prevented or
impeded them from climbing the 25-step staircase to the
courtroom. Before excusing the jurors, the trial court
questioned each to confirm they would be unable to climb the
stairs. The defendant objected to the court’s decision to
excuse the jurors and, after his conviction, appealed.
5
In Troutman, the court recited the applicable statute as
follows: “[A]n individual is not qualified for jury service if
the individual * * * [h]as a disability that, as documented by a
health care provider’s certification, prevents the individual
from providing satisfactory jury service[.]” Id. at 241, quoting
Md. Code Ann., Cts. & Jud. Proc. 8-103(b)(3) (1974, 2013 Repl.
Vol., 2016 Supp.).
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶37} On appeal, the defendant argued, in part, that the
trial court erred by excusing the jurors without considering
whether reasonable accommodations could be made. The appellate
court, however, did not agree. In reaching its decision the
court held:
[A] trial court may not summarily excuse for cause
prospective jurors with disabilities; instead, a trial
court may excuse a prospective juror for cause on a
disability-related ground if no reasonable accommodation
is possible, and, at that particular trial, the
particular disability would prevent the prospective
juror from providing satisfactory jury service.
Id. at 242. The court further stated that a court that is
determining whether “to excuse for cause a prospective juror on
a disability-related ground * * * must engage in an
individualized, case- and disability-specific inquiry.” Id. at
264.
{¶38} Applying these principles to the facts, the Troutman
court concluded that the trial court did not abuse its
discretion by excusing “the four prospective jurors who
indicated that they were unable to use stairs.” Id. at 265.
The appellate court noted that the trial court individually
questioned each juror to determine whether they could ascend the
25-steps to reach the courtroom. Thus, the appellate court
rejected the argument that excusing the four prospective jurors
constituted an abuse of discretion.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶39} Appellant asserts that in the case sub judice the
trial court likewise should have questioned the excused juror to
ascertain whether his disability rendered him incapable of jury
service. Appellant has not, however, cited any Ohio decision
that adopted the Troutman court’s analysis as applied to R.C.
2313.14(A)(4). In fact, appellant’s proposed analysis would
conflict with the express statutory language contained in R.C.
2313.14(A)(4). Nothing in the Ohio statute requires a trial
court to conduct an in-depth, individualized assessment of a
prospective juror before dismissing them from service due to a
mental or physical condition. Furthermore, the statute does not
require trial courts to specifically question a prospective
juror before it excuses them from jury service under R.C.
2313.14(A)(4). Rather, the statute’s language plainly indicates
that “another person acquainted with the facts” (like the
juror’s father in the case at bar – or even the trial judge who
has personal knowledge of the juror) may satisfy the court that
a “prospective juror has a mental or physical condition that
causes the prospective juror to be incapable of performing jury
service.”
{¶40} We further note that the Ohio Supreme Court indicated
“that a juror’s discharge ‘on grounds of personal excuse’ is a
matter ‘between the court and the jurors, and with which the
[Cite as State v. Chapman, 2022-Ohio-2853.]
parties can not, of right, interfere.’” State v. Murphy, 91
Ohio St.3d 516, 525, 747 N.E.2d 765 (2001), quoting Bond v.
State, 23 Ohio St. 349, 355, 1872 WL 78 (1872). Furthermore,
“[a] party has no right to have any particular juror on the
panel.” Id. Therefore, “‘[i]t is no ground for reversal of
judgment in a criminal case, that the court, before the day set
for trial, discharged some of the jurors in attendance on
grounds of personal excuse and upon their unsworn statements * *
*.’” State v. Clemons, 3d Dist. No. 1–86–36, 1988 WL37129, *6
(Mar. 30, 1998), quoting Bond at paragraph three of the
syllabus; accord State v. Nguyen, 4th Dist. Athens No. 12CA14,
2013-Ohio-3170, ¶ 95. Thus, the erroneous excusal of a juror
without voir dire typically constitutes harmless error. Id.;
State v. Van Wormer, 3rd Dist. Hardin No. 6-92-14, 1993 WL
360427, *2.
{¶41} In the case before us, we believe that the trial
court’s decision to excuse the juror before voir dire is a
matter “‘between the court and the juror[], and with which the
parties can not, of right, interfere.’” Murphy, 91 Ohio St.3d
at 525, quoting Bond, 23 Ohio St. at 355. Moreover, trial
courts have discretion to determine whether a prospective juror
should be disqualified for cause. State v. Thompson, 141 Ohio
St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 83. Thus,
[Cite as State v. Chapman, 2022-Ohio-2853.]
reviewing courts will not reverse a trial court’s decision
regarding a challenge for cause unless the trial court abused
that discretion. E.g., Berk v. Matthews, 53 Ohio St.3d 161,
169, 559 N.E.2d 1301 (1990). “An abuse of discretion is more
than a mere error of law or judgment.” Thompson at ¶ 91; accord
State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d
208, ¶ 75. Instead, “‘[a] trial court abuses its discretion
when it makes a decision that is unreasonable, unconscionable,
or arbitrary.’” State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-
2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio
St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of
discretion includes a situation in which a trial court did not
engage in a “‘sound reasoning process.’” State v. Morris, 132
Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting
AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
Additionally, “[a]buse of discretion review is deferential and
does not permit an appellate court to simply substitute its
judgment for that of the trial court.” Darmond at ¶ 34.
{¶42} In the case sub judice, if the abuse of discretion
standard applies to a court’s decision to dismiss a juror under
R.C. 2313.14(A)(4) before voir dire, we do not believe that the
trial court abused its discretion. Here, the trial court
[Cite as State v. Chapman, 2022-Ohio-2853.]
discussed its reasoning on the record and explained that the
prospective juror does not remember the judge’s name when the
judge sees him around town. Instead, the juror calls the judge,
“David’s Dad.” The judge indicated he is very familiar with the
juror and questioned the juror’s capability to be seated as a
juror in a criminal trial. Furthermore, the juror’s father
asked the court to excuse the juror from service because the
father did not believe that sitting on this jury would be in the
juror’s best interest. Consequently, we are unable to conclude
that the trial court’s excusing the juror before voir dire
constitutes an abuse of discretion.
{¶43} To the extent appellant believes that the R.C.
2313.14(A)(4) statutory procedure for excusing a prospective
juror from service violates the Equal Protection Clause, we
again point out that he did not raise this specific argument
before the trial court, nor present this argument in his
appellate brief. We therefore will not create this argument.
E.g., State v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-
4315, ¶ 43-44, quoting State v. Palmer, 9th Dist. Summit No.
28303, 2017-Ohio-2639, ¶ 33 (appellate court does not have a
duty to construct argument on an appellant’s behalf and will not
address “‘undeveloped arguments’”); McPherson v. Goodyear Tire &
Rubber Co., 9th Dist. Summit No. 21499, 2003-Ohio-7190, ¶ 31
[Cite as State v. Chapman, 2022-Ohio-2853.]
(appellate courts do not have duty to construct or develop
arguments to support a defendant’s assignment of error).
{¶44} We additionally note that the parties addressed the
applicability of State v. Speer, 124 Ohio St.3d 564, 2010-Ohio-
649, 925 N.E.2d 584, to the facts in the case sub judice. The
Speer court held:
In deciding a challenge for cause to a prospective
juror on the basis of a physical impairment, the court
must determine, in light of the specific evidence to be
presented, whether any reasonable and effective
accommodation can be made to enable the juror to serve.
In making that determination, the court must balance the
public interest in equal access to jury service against
the right of the accused to a fair trial, the latter
being the predominant concern of the court.
The right to a fair trial requires that all members
of the jury have the ability to understand all of the
evidence presented, to evaluate that evidence in a
rational manner, to communicate effectively with other
jurors during deliberations, and to comprehend the
applicable legal principles as instructed by the court.
An accommodation made to enable a physically impaired
individual to serve as a juror must afford the accused
a fair trial.
A hearing impairment by itself does not render a
prospective juror incompetent to serve on a jury, but
when the accommodation afforded by the court fails to
enable the juror to perceive and evaluate the evidence,
the accused is deprived of a fair trial. To avoid such
situations, a trial court must determine whether
reasonable accommodations will enable an impaired juror
to perceive and evaluate all relevant and material
evidence, and when no such accommodation exists, the
court must excuse the juror for cause.
Id. at paragraph one, two, and three of the syllabus.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶45} We agree with the state that Speer does not apply to
the case before us. In Speer, the defendant challenged for
cause a hearing-impaired juror, and the trial court overruled
the defendant’s challenge. The court indicated it would
accommodate the juror’s hearing impairment and allow the juror
“to sit where she could see the faces of the witnesses” and
asked the juror to inform the court “if she missed anything.”
Id. at ¶ 11. The court also permitted the juror “to read the
court reporter’s real-time transcription of the audio tape.”
Id.
{¶46} The Ohio Supreme Court determined that, despite the
trial court’s attempt to accommodate the juror’s hearing
impairment, the defendant did not receive a fair trial. The
court explained that any accommodation for a hearing-impaired
juror must “enable the juror to perceive and evaluate the
evidence.” Id. at ¶ 26. Otherwise, “an accused cannot receive
a fair trial.” Id. The supreme court thus indicated that trial
courts that review challenges for cause based upon a juror’s
hearing impairment must excuse the juror for cause when no
“reasonable accommodations will enable an impaired juror to
perceive and evaluate all relevant and material evidence.” Id.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶47} In Speer, the court considered the procedure that
trial courts should follow when evaluating challenges for cause
to a hearing-impaired juror, or to a juror with a physical
disability. The court did not, however, determine that this
same procedure applies when trial courts review whether to
excuse a prospective juror with Down Syndrome from service under
R.C. 2313.14(A)(4). For this reason, we find Speer inapposite.
{¶48} Consequently, we do not agree with appellant that the
trial court erred, plainly or otherwise, by dismissing the juror
before voir dire. R.C. 2313.14(A)(4) authorizes a trial court
to dismiss a juror upon being satisfied that the juror has a
mental or physical condition that caused the juror to be
incapable of performing jury service. Here, the trial court
obviously was satisfied, based upon the trial judge’s
familiarity with the prospective juror, as well as the juror’s
father’s statements, that the juror had a mental or physical
condition (i.e., Down Syndrome) that caused the juror to be
incapable of performing jury service. Therefore, because we do
not believe appellant has shown that the trial court erred by
choosing to excuse the juror before voir dire, we have not found
any error and appellant’s structural-error argument is without
merit.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶49} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
{¶50} In his second assignment of error, appellant asserts
that the trial court erred by failing to merge his attempted
murder and kidnapping convictions.
{¶51} The Double Jeopardy Clauses of the Fifth Amendment to
the United States Constitution and Article I, Section 10 of the
Ohio Constitution, prohibit a criminal defendant from being
tried twice for the same offense. The Double Jeopardy Clause
prohibits successive prosecutions and multiple punishments for
the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-
995, 34 N.E.3d 892, ¶ 10.
{¶52} “R.C. 2941.25 codifies the protections of the Double
Jeopardy Clause.” State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, 922 N.E.2d 923, ¶ 23; accord State v. Miranda, 138 Ohio
St.3d 184, 2014-Ohio-451, 5 N.E.3d 603; State v. Washington, 137
Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 11. The
statute provides:
(A) Where the same conduct by [a] defendant can be
construed to constitute two or more allied offenses of
similar import, the indictment or information may
contain counts for all such offenses, but the defendant
may be convicted of only one.
[Cite as State v. Chapman, 2022-Ohio-2853.]
(B) Where the defendant’s conduct constitutes two
or more offenses of dissimilar import, or where his
conduct results in two or more offenses of the same or
similar kind committed separately or with a separate
animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant
may be convicted of all of them.
{¶53} R.C. 2941.25(A) thus allows only a single conviction
when the same conduct constitutes “allied offenses of similar
import.” However, R.C. 2941.25(B) permits multiple convictions
when any of the following circumstances apply: (1) the
defendant’s conduct constitutes offenses of dissimilar import;
(2) the defendant’s conduct shows that the defendant committed
the offenses separately; or (3) the defendant’s conduct shows
that the defendant committed the offenses with separate animus.
Ruff at ¶ 13, citing State v. Moss, 69 Ohio St.2d 515, 519, 433
N.E.2d 181 (1982).
{¶54} Offenses are of dissimilar import “if they are not
alike in their significance and their resulting harm.” Id. at ¶
21. Additionally, “a defendant’s conduct that constitutes two or
more offenses against a single victim can support multiple
convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense.”
Id. at ¶ 26. Thus, “two or more offenses of dissimilar import
exist within the meaning of R.C. 2941.25(B) when the defendant’s
conduct constitutes offenses involving separate victims or if
[Cite as State v. Chapman, 2022-Ohio-2853.]
the harm that results from each offense is separate and
identifiable.” Id. at ¶ 23.
{¶55} When determining whether offenses are allied offenses
of similar import within the meaning of R.C. 2941.25, courts
must answer three essential questions: “(1) Were the offenses
dissimilar in import or significance? (2) Were they committed
separately? and (3) Were they committed with separate animus or
motivation? An affirmative answer to any of the above will
permit separate convictions.” State v. Earley, 145 Ohio St.3d
281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, citing Ruff at ¶ 31
and paragraphs one, two, and three of the syllabus.
Accordingly, courts must consider “[t]he conduct, the animus,
and the import.” Id.{¶56} We further note that a defendant bears the burden to
establish that R.C. 2941.25 prohibits multiple punishments.
State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999
N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67,
514 N.E.2d 870 (1987). Additionally, appellate courts review a
trial court’s R.C. 2941.25 merger decision independently and
without deference to the trial court. State v. Williams, 134
Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶57} After our review in the case at bar, we do not believe
that the trial court’s decision to decline to merge appellant’s
attempted murder and kidnapping convictions constitutes error.
Instead, we believe that the record supports a finding that each
of the offenses resulted in a separate and identifiable harm.
{¶58} Courts that are determining whether to merge a
kidnapping offense and another offense apply the following
guidelines established in State v. Logan, 60 Ohio St.2d 126,
135, 397 N.E.2d 1345 (1979):
(a) Where the restraint or movement of the victim
is merely incidental to a separate underlying crime,
there exists no separate animus sufficient to sustain
separate convictions; however, where the restraint is
prolonged, the confinement is secretive, or the movement
is substantial so as to demonstrate a significance
independent of the other offense, there exists a
separate animus as to each offense sufficient to support
separate convictions;
(b) Where the asportation or restraint of the
victim subjects the victim to a substantial increase in
risk of harm separate and apart from that involved in
the underlying crime, there exists a separate animus as
to each offense sufficient to support separate
convictions.
Id. at syllabus; accord State v. Grate, 164 Ohio St.3d 9, 2020-
Ohio-5584, 172 N.E.3d 8, ¶ 108; State v. Jones, 4th Dist.
Hocking No. 20CA2, 2021-Ohio-2601, ¶ 30; State v. Thacker, 4th
Dist. Lawrence No. 18CA21, 2020-Ohio-4620, ¶ 125, appeal not
accepted, 161 Ohio St. 3d 1408, 2021-Ohio-106, 161 N.E.3d 687[Cite as State v. Chapman, 2022-Ohio-2853.]
(all noting that Logan analysis still governs merger analysis
involving kidnapping and other related offenses).
{¶59} In Logan, the defendant was convicted of kidnapping
and rape, among other offenses. The evidence showed that the
defendant confronted the victim and offered her some pills, but
after the victim refused to accept the pills, the defendant
brandished a knife, held it to the victim’s throat, then forced
her into an alley. The defendant then walked the victim down
the alley, around a corner, down a flight of stairs, then raped
her at knifepoint.
{¶60} On appeal to the Ohio Supreme Court, the defendant
asserted that his kidnapping and rape convictions constituted
allied offenses of similar import and the trial court thus
should have merged the convictions. The supreme court agreed
and determined that “the restraint and movement of the victim
had no significance apart from facilitating the rape.” Id. at
135. The court additionally found that “[t]he detention was
brief, the movement was slight, and the victim was released
immediately following the commission of the rape.” Id. The
court thus concluded that the defendant did not have “a separate
animus to commit kidnapping.” Id.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶61} The court next considered whether “the victim, by such
limited asportation or restraint, was subjected to a substantial
increase in the risk of harm separate from that involved in the
underlying crime.” Id. The court determined that the facts
failed to show “that the asportation of the victim down the
alley to the place of rape presented a substantial increase in
the risk of harm separate from that involved in the rape.” Id.Consequently, the court determined that the defendant’s
kidnapping and rape offenses are allied offenses of similar
import. The court further stated, however, that when “murder,
the taking of a hostage, or extortion is the underlying crime, a
kidnapping in facilitation thereof would generally constitute a
separately cognizable offense.” Id.; accord State v. Adams, 103
Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 90 (noting that
Logan held that “where murder is the underlying crime, a
kidnapping in facilitation thereof would generally constitute a
separately cognizable offense”).
{¶62} Twenty-five years after Logan, in Adams the Ohio
Supreme Court considered whether the defendant’s kidnapping and
rape offenses should merge. In that case, the defendant entered
a home, killed the homeowner, then raped and murdered the
homeowner’s 12-year-old daughter. A jury found the defendant
[Cite as State v. Chapman, 2022-Ohio-2853.]
guilty of aggravated murder, aggravated burglary, kidnapping,
and rape.
{¶63} On appeal to the Ohio Supreme Court, the defendant
argued that the trial court erred by failing to merge his
kidnapping and rape convictions. The court agreed. The court
catalogued the kidnapping and aggravated murder cases in which
it previously had found that a separate animus existed:
In State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-
2284, 787 N.E.2d 1185, at ¶ 135, the defendant lured the
six-year-old victim into his apartment and kept her
there long enough to show her some videos before raping
and killing her. In State v. Hartman (2001), 93 Ohio
St.3d 274, 280–281, 754 N.E.2d 1150, “the [d]efendant
tied [the victim] to the bed, gagged her, stabbed her
one hundred thirty-eight times, slit her throat, and
strangled her to death.” In State v. Simko (1994), 71
Ohio St.3d 483, 489, 644 N.E.2d 345, the defendant
“restrained and terrorized” the victim for approximately
one-half hour before shooting her when she tried to
escape. In State v. Hill (1992), 64 Ohio St.3d 313, 595
N.E.2d 884, the defendant forced the 12–year–old victim
from a parking lot to a secluded, wooded area, where the
victim was repeatedly beaten, raped, and then strangled
and set on fire. See, also, State v. Seiber, 56 Ohio
St.3d 4, 564 N.E.2d 408 (kidnapping found when defendant
and accomplice terrorized and held bar patrons at
gunpoint for 20 to 30 minutes, preventing them from
leaving); State v. Powell (1990), 49 Ohio St.3d 255,
261–262, 552 N.E.2d 191 (kidnapping upheld when
defendant lured a child from her home to fourth floor of
nearby building where he attempted to rape her and
ultimately killed her by throwing her from the window).
Id. at ¶ 92.
{¶64} After reviewing the foregoing cases, the court
concluded that the record did not contain any evidence to show
[Cite as State v. Chapman, 2022-Ohio-2853.]
that the defendant had moved the victim “to or from the bedroom
where she was killed or that he tied her up or restrained her in
any way other than what was necessary to rape and kill her.”
Id. at ¶ 93. The court also noted that the evidence failed to
show that the defendant subjected the victim to any “substantial
movement, prolonged restraint, or secretive confinement.” Id.
The court thus determined that the evidence failed to show that
the defendant committed the two offenses – kidnapping and rape –
with separate animus.
{¶65} In the case at bar, after our review of the record we
do not agree with appellant that he committed both the
kidnapping and attempted murder with the same animus. The facts
in Logan and Adams are not the same as the facts in the case
before us. In Logan and Adams, the defendant either did not
move the victim at all or any movement was slight. In the case
sub judice, however, the victim, found ten feet from the side of
the road, told one deputy that appellant stabbed her, that she
fought back, and that he then tried “to drag her” to the field.
Appellant, therefore, committed two separate acts: he stabbed
the victim, then transported the victim into a field and
attempted to drag her toward a pool of water. The state also
introduced a photograph of the area that depicts a large pool of
water, or, as Deputy Reffett described it, an area marshy and
[Cite as State v. Chapman, 2022-Ohio-2853.]
like a wetland. Thus, we believe that the evidence adduced at
trial shows “substantial movement, prolonged restraint, or
secretive confinement.” Adams at ¶ 93; Logan, 60 Ohio St.2d at
135 (“Secret confinement, such as in an abandoned building or
nontrafficked area, without the showing of any substantial
asportation, may, in a given instance, also signify a separate
animus and support a conviction for kidnapping apart from the
commission of an underlying offense.”).
{¶66} Furthermore, the facts adduced at trial in the case at
bar show that dragging the victim into the field “presented a
substantial increase in the risk of harm separate from that
involved in the [attempted murder].” Logan, 60 Ohio St.2d at
135; see State v. DeWees, 2018-Ohio-1677, 111 N.E.3d 334, ¶ 40
(11th Dist.) (kidnapping committed separately from rape when
defendant forcibly dragged the victim “by the hair and neck,
from a public walkway where she was found to a place not visible
from that walkway for the purpose of raping her without
detection”); State v. Zanders, 8th Dist. Cuyahoga No. 99146,
2013-Ohio-3619, ¶ 29 (restraint and force used in “dragg[ing]
the victim by the back of her hair from a pay phone across the
street and then through an open field to a secluded ‘cubbyhole’
in the rear yard behind a building * * * was separate and
distinct from the force exercised during acts of the rape”).
[Cite as State v. Chapman, 2022-Ohio-2853.]
Here, appellant substantially increased the risk of harm to the
victim when he abandoned her in a location where passing
motorists may have been unable to notice her presence. These
facts allowed the jury to infer that appellant attempted to
callously discard the victim in a location where she would not
be found in time for life-saving treatment.
{¶67} Consequently, we believe that appellant acted with the
intent to stab the victim and also with the intent to move the
victim to a location hidden from public view. Moving the victim
was not incidental to the stabbing. Instead, moving the victim
to a location away from the roadway, and dragging her toward a
field filled with water, substantially increased the risk that
the victim would not be found in a sufficient period of time to
administer life-saving emergency medical care. We therefore
believe that the evidence shows that appellant had a separate
animus as to each offense sufficient to support separate
convictions.
{¶68} We also point out that in both Adams and Logan, the
court stated that when “murder is the underlying crime, a
kidnapping in facilitation thereof would generally constitute a
separately cognizable offense” Adams at ¶ 90; Logan, 60 Ohio
St.2d at 135; see State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d
464 (1990) (kidnapping not incidental to murder when defendant
[Cite as State v. Chapman, 2022-Ohio-2853.]
forced victim into van, drove away, and later murdered the
victim); State v. Reynolds, 80 Ohio St.3d 670, 687 N.E.2d 1358(1998) (defendant acted with a separate animus in committing
murder and kidnapping when victim’s hands restrained “for a
period of time” before she was killed); State v. Luff, 85 Ohio
App.3d 785, 621 N.E.2d 493 (6th Dist.1993) (kidnapping and
aggravated murder dissimilar when victims led into barn and
restrained with duct tape before murder). Although the case at
bar involves the crime of attempted murder, not murder, we
nonetheless believe that this principle is also applicable to
crime of attempted murder. Appellant, therefore, may be
convicted of each offense.
{¶69} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶70} In his third assignment of error, appellant asserts
that his sentence, imposed under the Reagan Tokes Law, is
unconstitutional. In particular, appellant contends that the
sentencing provisions contained within the Reagan Tokes Law
[Cite as State v. Chapman, 2022-Ohio-2853.]
violate (1) the separation-of-powers doctrine, (2) his right to
due process, and (3) his right to a jury trial.6
{¶71} We first point out that appellant did not raise these
particular arguments during the trial court proceedings. As we
noted earlier, parties may not raise new arguments on appeal.
Furthermore, the “[f]ailure to raise at the trial court level
the issue of the constitutionality of a statute or its
application, which is apparent at the time of trial, constitutes
a waiver of such issue and a deviation from this state’s orderly
procedure, and therefore need not be heard for the first time on
appeal.” State v. Awan, 22 Ohio St.3d 120 (1986), syllabus;
accord State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164
N.E.3d 294, ¶ 7. We may, however, consider forfeited
constitutional errors under a plain-error analysis. State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶
16, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880
N.E.2d 31, ¶ 377-378; State v. Alexander, 4th Dist. Adams No.
21CA1144, 2022-Ohio-1812, ¶ 52.
6
The constitutionality of the Reagan Tokes Law currently is
pending before the Ohio Supreme Court. State v. Hacker, 166
Ohio St.3d 1462, 2022-Ohio-1104, 185 N.E.3d 94; State v.
Simmons, 166 Ohio St.3d 1462, 2022-Ohio-1104, 185 N.E.3d 93.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶72} As we also indicated earlier, to establish plain error
a defendant must show that (1) an error occurred, (2) the error
was plain or obvious, (3) absent the error the outcome of the
proceeding would have been otherwise, and (4) reversal is
necessary to correct a manifest miscarriage of justice.
Quarterman at ¶ 16, citing State v. Davis, 127 Ohio St.3d 268,
2010-Ohio-5706, 939 N.E.2d 147, ¶ 29; Buttery at ¶ 7.
{¶73} Recently, we held that the Reagan Tokes Law does not
violate the separation-of-powers doctrine or a defendant’s right
to due process. State v. Alexander, 4th Dist. Adams No.
21CA1144, 2022-Ohio-1812; State v. Bontrager, 4th Dist. Adams
No. 21CA1139, 2022-Ohio-1367. We see no reason to depart from
these holdings. Moreover, many other appellate courts have
reached the same conclusion that the Reagan Tokes Law does not
violate the separation-of-powers doctrine or infringe on
defendants’ due process rights. E.g., State v. Bloodworth, 12th
Dist. Warren No. CA2021-08-073, 2022-Ohio-1899; State v. Burris,
5th Dist. Guernsey No. 21CA000021, 2022-Ohio-1481; State v.
Maddox, 6th Dist. Lucas No. L-19-1253, 2022-Ohio-1350; State v.
Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470; State
v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027;
State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547.
[Cite as State v. Chapman, 2022-Ohio-2853.]
{¶74} Appellant further argues that the Reagan Tokes Law is
unconstitutional because it violates the United States and Ohio
constitutional provisions that guarantee criminal defendants the
right to a jury trial.7 Appellant contends that the sentencing
provisions permit the Ohio Department of Rehabilitation and
Correction (ODRC) to increase a defendant’s sentence based upon
fact-finding and that this fact-finding violates the principles
outlined in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348(2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002),
and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004). The principles set forth in these cases
generally prohibit increasing a defendant’s sentence beyond the
maximum term based upon facts that did not form part of the
jury’s verdict.
{¶75} Although our decision in Alexander did not consider
whether the Reagan Tokes Law violates a defendant’s
7
The Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial
jury.”
Article I, Section 5 of the Ohio Constitution states: “The
right of trial by jury shall be inviolate, except that, in civil
cases, laws may be passed to authorize the rendering of a
verdict by the concurrence of not less than three-fourths of the
jury.”
[Cite as State v. Chapman, 2022-Ohio-2853.]
constitutional right to a jury trial, several other courts have
considered the issue and have held that it does not. State v.
Leamman, 2nd Dist. Champaign No. 2021-CA-30, 2022-Ohio-2057, ¶
12; State v. Brazo, 5th Dist. Licking No. 2021 CA 0016, 2022-
Ohio-2066; State v. Thompson, 2nd Dist. Clark No. 2020-CA-60,
2021-Ohio-4027; State v. Rogers, 12th Dist. Butler No. CA2021-
02-010, 2021-Ohio-3282.
{¶76} In Thompson, the court adopted the Rogers court’s
analysis of the issue in its entirety, and we do the same.
In Apprendi, a jury convicted the defendant of a
firearm crime that carried a maximum prison sentence of
ten years. However, a judge subsequently sought to
impose a longer sentence pursuant to a statute that
authorized him to do so if he found, by a preponderance
of the evidence, that the defendant had committed the
crime with racial bias. Apprendi held this scheme
unconstitutional: “[A]ny fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt” or admitted by the defendant.
Apprendi at 490. Nor may a state evade this traditional
restraint on the judicial power by simply calling the
process of finding new facts and imposing a new
punishment a judicial “sentencing enhancement.” Id. at
495. “[T]he relevant inquiry is one not of form, but of
effect – does the required [judicial] finding expose the
defendant to a greater punishment than that authorized
by the jury’s guilty verdict?” Id. at 494.
“[T]he ‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or
admitted by the defendant.” (Emphasis sic.) Blakely v.
Washington, 542 U.S. 296, 303, 12[4] S.Ct. [2531, 159
L.Ed.2d 403] (2004). “In other words, the relevant
‘statutory maximum’ is not the maximum sentence a judge
may impose after finding additional facts, but the
[Cite as State v. Chapman, 2022-Ohio-2853.]
maximum he may impose without any additional findings.”
(Emphasis sic.) Id. at 303-304; State v. Setty, 12th
Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050,
2014-Ohio-2340, ¶ 121.
In Ring, a jury convicted the defendant of felony
murder, a crime that carried a maximum sentence of life
imprisonment. However, a state statute allowed the
trial judge to impose the death penalty if he found,
independent of the jury, at least one aggravating
factor. Extending the rule of Apprendi to capital
punishment, the United States Supreme Court found the
sentencing scheme violative of the Sixth Amendment right
to a jury trial because the required judicial finding of
an aggravated circumstance exposed the defendant to
greater punishment than authorized by the jury’s
verdict. Ring, 536 U.S. at 609; State v. McKelton, 12th
Dist. Butler No. CA2017-07-106, 2018-Ohio-1357, ¶ 8.
The Reagan Tokes sentencing scheme is unlike those
involved in Apprendi, Ring, and Blakely. Under the
Reagan Tokes Law, the trial court imposes both a minimum
and a maximum term, and the indefinite prison sentence
must be included in the final entry of conviction. R.C.
2929.14 and 2929.144. The only sentencing discretion
provided to the trial court lies with the length of the
minimum term under R.C. 2929.14(A)(1)(a) and (A)(2)(a);
the maximum term is determined based upon a mathematical
formula as applied to the minimum term of imprisonment.
The maximum prison term component of a Reagan Tokes
indefinite sentence is therefore authorized by the
jury’s guilty verdict and is not based upon factors not
submitted to the jury. The defendant is not exposed to
greater punishment than that authorized by the jury’s
verdict.
Once imposed by the trial court, the indefinite sentence
is then implemented by ODRC. ODRC simply enforces the
sentence imposed by the trial court and its review is
limited to determining the offender’s release date.
R.C. 2967.271 establishes a presumptive release date
upon completion of the minimum term. Once the minimum
term is served, ODRC may rebut the presumption of release
under certain conditions and enforce the remainder of
the maximum term already imposed by the trial court.
R.C. 2967.271(B). However, “[t]hat codified process
does not alter the fact that the trial court imposed a
maximum term as calculated under R.C. 2929.144.” State
[Cite as State v. Chapman, 2022-Ohio-2853.]
v. Gamble, 8th Dist. Cuyahoga No. 109613, 2021-Ohio-
1810, ¶ 35. In rebutting the presumption of release,
ODRC “is not extending the defendant’s prison term or
imposing its own sentence for violations that occur
while the offender is serving the imposed term of
imprisonment.” Id. at ¶ 7. In other words, ODRC does
not “increase” a penalty based upon facts not found by
a jury but merely administers the sentence already
imposed by the trial court for conviction of an offense
for which the offender has the right to a jury trial.
In a concurring opinion in State v. Wolfe, 5th Dist.
Licking No. 2020CA00021, 2020-Ohio-5501, Judge Gwin
rejected a challenge to the Reagan Tokes Law as violative
of the right to a jury trial, reasoning that
Under the Reagan Tokes Law, the judge
imposes both a minimum and a maximum sentence.
Judicial fact-finding is not required. In
Ohio, “trial courts have full discretion to
impose a prison sentence within the statutory
range and are no longer required to make
findings or give their reasons for imposing
maximum, consecutive, or more than the minimum
sentences.” State v. Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912, paragraphs 1 and 11. The
Department of Rehabilitation and Correction
(“DRC”) is not permitted to extend a sentence
imposed by the trial court beyond the maximum
sentence imposed by the trial court. Further,
the facts which postpone an inmate’s release
date are facts found as a result of prison
disciplinary proceedings, not the underlying
crime. To extend Wolfe’s argument to its
logical end it would be necessary for the
courts to invalidate punishment as a result of
internal prison disciplinary proceedings
entirely, or require all rule infractions to
be tried before a jury.
It is evident that Apprendi and its
progeny have no application in a prison
disciplinary setting where the DRC does not
have the authority to extend the inmate’s
sentence beyond the maximum sentence imposed
by the trial judge.
Id. at ¶ 61-62.
[Cite as State v. Chapman, 2022-Ohio-2853.]
Unlike the sentencing scheme in Apprendi and Ring,
there is “no discretion exercised by the trial court in
imposing the maximum term” under the Reagan Tokes Law,
and “nothing within any provision codified under the
Reagan Tokes Law permits any branch of government to
impose a sentence beyond the maximum term as defined
under R.C. 2929.144.” Gamble, 2021-Ohio-1810 at ¶ 44.
The Reagan Tokes Law therefore does not violate an
offender’s constitutional rights to trial by jury. Id.;
contra State v. Delvallie, 8th Dist. Cuyahoga No.
109315, 2021-Ohio-1809[, opinion vacated on reh’g en
banc, 8th Dist. No. 109315, 2022-Ohio-470, 185 N.E.3d
536, appeal allowed, 166 Ohio St.3d 1496, 2022-Ohio-
1485, 186 N.E.3d 830].
Rogers at ¶ 14-20.
{¶77} Consequently, based upon the foregoing analysis, we
likewise conclude that the Reagan Tokes Law does not violate the
constitutional right to a jury trial.
{¶78} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Chapman, 2022-Ohio-2853.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellant the 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 Ross County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.