State v. Devoll , 2023 Ohio 3574 ( 2023 )

[Cite as State v. Devoll, 2023-Ohio-3574.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
-vs- :
:
DANNY E. DEVOLL : Case No. CT2023-0015
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2023-0002
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 2, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR P. BENNINGTON RICHARD D. HIXSON
27 North Fifth Street 3808 James Court
P.O. Box 189 Suite 2
Zanesville, OH 43701 Zanesville, OH 43701
Muskingum County, Case No. CT2023-0015 2
King, J.
{¶ 1} Defendant-Appellant Danny E. Devoll appeals the March 13, 2023
judgment of conviction and sentence of the Muskingum County Court of Common Pleas.
Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 25, 2022 Devoll and his child's mother, A.D. were driving to
pick up their son and grandson. Muskingum County Sheriff's Deputy Cory May spotted
the vehicle driven by Devoll and noted it displayed expired tags. May activated his
overhead lights to initiate a traffic stop. Instead of immediately stopping, Devoll continued
to drive for approximately three blocks after May had activated his overhead lights. Once
he did stop, Devoll got out of the car and started walking away. May ordered Devoll to
stop and Devoll complied. May then discovered there was an active domestic violence
civil protection order between Devoll and his passenger A.D.
{¶ 3} On January 4, 2023, the Muskingum County Grand Jury returned an
indictment charging Devoll with one count of violating a protection order with a prior
conviction for the same.
{¶ 4} Devoll pled not guilty to the offense and elected to proceed to a jury trial
which took place on March 9, 2023. The state called three witnesses including A.D,
Deputy May, and the clerk of the Muskingum County Common Pleas Court.
{¶ 5} A.D. testified she requested and received a domestic violence civil
protection order in September of 2021. She further stated that in early December of 2022
she and Devoll petitioned the court to remove the protection order and appeared before
the court for a hearing. She stated she was advised at the end of the hearing that the
Muskingum County, Case No. CT2023-0015 3
court would take the request under advisement and she would be notified of the court's
decision via regular mail. A.D. testified that between the hearing and the day she and
Devoll were pulled over, she had to move out of her apartment and was not permitted to
retrieve her mail. She and Devoll therefore operated under the assumption that the
protection order had been removed.
{¶ 6} After hearing the evidence and deliberating, the jury convicted Devoll as
charged. Devoll was subsequently sentenced to a 12-month prison term.
{¶ 7} Devoll filed an appeal and the matter is now before this court for
consideration, He raises two assignments of error as follow:
I
{¶ 8} "THE JURY’S VERDICT AND SUBSEQUENT CONVICTION OF
APPELLANT WAS BASED ON INSUFFICIENT EVIDENCE AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE."
II
{¶ 9} "APPELLANT’S SENTENCE WAS CONTRARY TO LAW, AS THE
MAXIMUM SENTENCE WAS IMPOSED WITHOUT ADEQUATE CONSIDERATION OF
THE PRINCIPLES AND PURPOSES OF FELONY SENTENCING UNDER R.C.
2929.11."
I
{¶ 10} In his first assignment of error, Devoll argues the state failed to prove he
recklessly violated the protection order. We disagree.
{¶ 11} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Muskingum County, Case No. CT2023-0015 4
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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."
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to
examine the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine "whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction." Martin at
175.
{¶ 12} Devoll was convicted of violation of a protection order pursuant to R.C.
2919.27(A)(1). That section provides in relevant part that no person shall recklessly
violate the terms of a protection order issued pursuant to R.C. 3113.31. Devoll argues he
did not act recklessly. R.C. 2901.22(C) defines the culpable mental state of reckless as:
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person's conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the
Muskingum County, Case No. CT2023-0015 5
consequences, the person disregards a substantial and unjustifiable
risk that such circumstances are likely to exist.
{¶ 13} A.D. testified she understood when she and Devoll left the December 2022
hearing that the domestic relations court had made no decision regarding their request to
lift the protection order, that it was still in effect when she left court that day, and that she
would be informed by mail of the court's decision. Transcript of trial (T.) 86- 87. She further
testified she was unable to receive her mail in December and she and Devoll therefore
simply assumed the protection order had been lifted. T. 86.
{¶ 14} We find A.D.'s testimony overwhelmingly proves Devoll acted recklessly.
We further find the jury did not lose its way in finding the same.
{¶ 15} The first assignment of error is overruled.
II
{¶ 16} In his final assignment of error, Devoll argues his 12-month sentence is
excessive because his conviction was the result of a mistake and he never had a willful
intention to violate the law. We disagree.
{¶ 17} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.
R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a
sentence and remand for resentencing where we clearly and convincingly find that either
the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
Muskingum County, Case No. CT2023-0015 6
{¶ 18} Clear and convincing evidence is that evidence "which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established."
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. "Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross, 161
Ohio St. at 477, 120 N.E.2d 118.
{¶ 19} The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences. See State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus.
However, the trial court must comply with all applicable rules and statutes, including R.C.
2929.11 and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1, ¶ 37. A sentence is not contrary to law when it is within the authorized statutory
range and the trial court states that it has considered the principles and purposes of
sentencing and the seriousness and recidivism factors. State v. Smith, 2nd Dist.
Montgomery No. 26307, 2016-Ohio-1269, ¶ 25.
{¶ 20} Before imposing sentence, the trial court noted this is Devoll's third felony
conviction for violating a protection order and that he had recently been released from
prison following the second such offense. T. 125-126. The trial court's sentencing entry
further indicates it considered the principles and purposes of sentencing pursuant to R.C.
2929.11 and the seriousness and recidivism factors pursuant to R.C. 2929.12 before
Muskingum County, Case No. CT2023-0015 7
imposing sentence. Devoll's 12-month sentence in within the authorized statutory range
for a fifth-degree felony and Devoll does not argue otherwise.
{¶ 21} Devoll's subjective intent in violating the protection order is not relevant to
an analysis of his sentence. The trial court complied with the applicable statutes and
imposed a sentence within the statutory range. Devoll has therefore not shown by clear
and convincing evidence that his sentence is not supported by the record or is contrary
to law.
{¶ 22} The final assignment of error is overruled.
{¶ 23} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By King, J.,
Gwin, P.J. and
Delaney, J. concur.