State v. Carstaphen

[Cite as State v. Carstaphen, 2022-Ohio-3129.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110906
v. :
ANTONIO CARSTAPHEN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 8, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-650948-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl J. Mazzone, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Defendant-appellant Antonio Carstaphen brings this appeal
challenging his convictions and sentence for felonious assault, kidnapping, and
disrupting public services. After a thorough review of the applicable law and facts,
we affirm the judgment of the trial court.
I. Factual and Procedural History
This case arose from an incident that occurred on May 30 and 31, 2020,
in Garfield Heights, Ohio. There are two victims, female L.W. and male Roger Ortiz
(“Ortiz”).
On the night in question, Ortiz went to a house on Marvin Avenue with
a friend, “Brian.” Ortiz met L.W. at the house. Brian left after approximately 15
minutes. There was another individual present with Ortiz and L.W. This individual,
later identified as appellant, resided at the house. The three individuals — Ortiz,
L.W., and appellant — consumed gin. Ortiz and L.W. consumed crack.
At some point in the evening, appellant emerged from the kitchen
holding a knife and a hammer. He took Ortiz’s and L.W.’s cell phones. Appellant
began beating L.W. in the head with a hammer. Ortiz tried to intervene, but
appellant shoved him back down. Appellant forced Ortiz into a small bathroom.
When Ortiz attempted to exit the bathroom, appellant struck him 6-7 times causing
bruising to Ortiz’s head, neck, and shoulder. Eventually, appellant gave Ortiz his
phone back and let Ortiz leave the residence. Ortiz left around midnight on May 30.
He called 911 after returning home but was unable to provide an exact location of
the house. He recalled certain details about the location of the residence and passed
the information along to police.
Police were dispatched to Marvin Avenue on May 30, 2020, regarding
a hostage situation. They knocked on the door of the residence and attempted to
speak with the occupants. However, nobody answered the door, and officers did not
believe they had probable cause to forcibly enter the house.
L.W. was not permitted to leave with Ortiz. According to L.W.,
appellant sexually abused her after Ortiz left and kept her captive in the house.
Police were again dispatched to Marvin Avenue the following day,
May 31, 2020, regarding a call for a victim being held hostage. This time, when
police arrived on scene, they encountered L.W. on the front porch. Officers observed
that she “was visibly upset; shaking, crying; just looked very taken aback, very
alleviated in her stress that we were there, that we had arrived.” L.W. informed the
officers that she had been beaten, raped, and held captive in the house. She provided
a description of her attacker to police. She was transported to MetroHealth where a
rape kit was performed.
Officers patrolling the area located an individual matching the
description provided by L.W. approximately four houses away from the scene. They
approached this individual, and he gave police a fake name. Officers verified
appellant’s identity from his driver’s license, and he was taken into custody.
On June 8, 2020, appellant was charged in a ten-count indictment with
four counts of rape, two felonious assault counts, two kidnapping counts, one count
of disrupting public services, and an assault count. The victim of Counts 1-9 was
L.W. The victim of Count 10 (assault) was Ortiz.
A jury trial was held; however, appellant elected to try the sexually
violent predator, notice of prior conviction, and repeat violent offender
specifications to the bench.
L.W. did not testify at trial. The state presented the testimony of the
following witnesses: (1) Hristina Lekova, DNA analyst with Cuyahoga County
Regional Forensic Lab; (2) Ortiz; (3) Cleveland Police Patrol Officer Danielle
McNulty; (4) Cleveland Police Detective Joshua Johnson; (5) Cleveland Police
Patrol Officer Aric Pruitt-Humphreys; (6) Jennifer Jacobs, SANE nurse at
MetroHealth Medical Center; (7) Cleveland Police Detective Walter Emerick; (8)
Cleveland Police Dispatcher Michael Sanders; and (9) Cleveland Police Sex Crimes
Detective Cynthia Adkins. The defense did not call any witnesses at trial. The
relevant testimony of these witnesses will be outlined below in the analysis of
appellant’s assignments of error.
The jury returned its verdict, finding appellant not guilty on Counts 1,
2, 3, 4, 8, and 10. The jury found appellant guilty on Counts 5, 6, 7, and 9: two
counts of felonious assault, one count of kidnapping, and one count of disrupting
public services, respectively. The trial court found appellant guilty of the notice of
prior convictions and repeat violent offender specifications charged in Counts 5, 6,
and 7. The trial court ordered a presentence-investigation report and set the matter
for sentencing.
The trial court held a sentencing hearing where it determined that
Counts 5 and 6 (the two felonious assault counts) merged for sentencing purposes,
and the state elected to sentence appellant on Count 6. The trial court imposed an
indefinite prison sentence of 11 to 16.5 years on Count 7 (kidnapping), 8 years on
Count 6 (felonious assault), 1.5 years on Count 9 (disrupting public services), and 6
years on the repeat violent offender specification. The trial court ordered Counts 6,
7, and 9 to run concurrently with one another but consecutively to the 6-year
sentence on the repeat violent offender specification, for a total minimum prison
term of 17 years and a maximum prison term of 22.5 years.
Appellant then filed the instant appeal challenging the trial court’s
judgment. Appellant assigns five errors for our review:
I. The trial court erred in the admission of hearsay evidence and
testimonial statements, in violation of appellant’s right to confront his
accusers, as protected by the Sixth Amendment of the United States
Constitution
II. The trial court erred by failing to grant a judgment of acquittal,
pursuant to Crim.R. 29(A), on the charges, and thereafter entering a
judgment of conviction of those offenses as those charges were not
supported by sufficient evidence, in violation of appellant’s right to due
process, as guaranteed by the Fourteenth Amendment to the United
States Constitution.
III. Appellant’s convictions are against the manifest weight of the
evidence.
IV. The trial court erred by ordering appellant to serve a consecutive
sentence without making the appropriate findings required by R.C.
2929.14.
V. The trial court erred by imposing an indefinite prison sentence upon
appellant which is unconstitutional.
II. Law and Analysis
A. L.W.’s Out-of-Court Statements
In his first assignment of error, appellant argues that the trial court
erred by admitting the L.W.’s out-of-court statements to officers during trial.
Appellant contends that L.W.’s statements were testimonial in nature and
constituted inadmissible hearsay.
As noted above, L.W. did not testify at trial. L.W.’s out-of-court
statements were admitted through the testimony of the responding patrol officers
and investigating detective, as well as the introduction of body-camera footage that
recorded the L.W.’s statements.
As an initial matter, appellant does not specifically identify what
testimony was improperly admitted. App.R. 16(A)(7) requires appellant to support
his assignments of error and arguments with citation to the record below.
Appellant generally argues that the officers’ testimony about L.W.’s
statements “identifying appellant as the individual responsible for causing her
injuries” were testimonial in nature and should have been excluded under the
Confrontation Clause. Because the trial court admitted L.W.’s statements, appellant
argues that his constitutional right to confrontation was violated.
Appellant appears to challenge the testimony of the responding patrol
officers (McNulty, Pruitt-Humphreys, and Johnson (now a detective)), and the
testimony of Detective Adkins who interviewed L.W. on the phone. Appellant
argues that the testimony of these officers about L.W.’s out-of-court statements was
inadmissible because L.W.’s statements constitute hearsay and are testimonial in
nature.
The state, on the other hand, argues that L.W.’s out-of-court
statements describing what happened to her, how she was injured, who injured her,
and her description of the perpetrator were (1) admissible under the excited
utterance exception to the hearsay rule; and (2) nontestimonial in nature because
they were made to the responding officers for the purpose of enabling the officers to
respond to the emergency.
The Sixth Amendment to the United States Constitution provides in
relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right
* * * to be confronted with the witnesses against him [or her].” In Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States
Supreme Court held that the Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he [or she] was unavailable
to testify, and the defendant had had a prior opportunity for cross-examination.” Id.
at 53-54.
Thus, according to Crawford, the initial analysis to be made in
determining whether a defendant’s right to confrontation has been violated by the
admission of out-of-court statements that are not subject to cross-examination “is
not whether [the statements] are reliable but whether they are testimonial in
nature.” Toledo v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543,
¶ 13 (6th Dist.), citing Crawford at 61.
Crawford did not precisely define “testimonial,” but listed the
following examples: (1) ex parte in-court testimony or its functional equivalent such
as affidavits and prior testimony that the defendant was unable to cross-examine, or
pretrial statements that declarants would reasonably expect to be used in a
prosecution; (2) extrajudicial statements contained in formal testimonial materials
such as depositions, prior testimony, or confessions; and (3) statements made under
circumstances that would lead an objective witness to believe the statement would
be available for use at a later trial. Id.Later, in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006), the Supreme Court further considered the meaning of
“testimonial” and held that
[s]tatements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later prosecution.
Id. at 822.
To determine whether a statement is testimonial or nontestimonial,
we inquire “whether a reasonable person in the declarant’s position would anticipate
his [or her] statement being used against the accused in investigating and
prosecuting the [case].” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004);
see also State v. Stahl, 111 Ohio St.3d 186, 192, 2006-Ohio-5482, 855 N.E.2d 834,
paragraph two of the syllabus.
An ongoing emergency can exist after the original threat to the victim
has ceased to exist if there is a potential threat to police or the public, or the victim
is in need of emergency medical services. Michigan v. Bryant, 562 U.S. 344, 376,
131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). An ongoing emergency also may exist after
the actual threat to the victim has ceased if authorities must determine whether to
release the victim back into a potentially abusive environment. Ohio v. Clark, 576
U.S. 237, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015).
This court has held that separation of the victim and the assailant is
not dispositive of the determination of an ongoing emergency. See, e.g., Cleveland
v. Williams, 8th Dist. Cuyahoga No. 101588, 2015-Ohio-1739 (ongoing emergency
was still in progress even though the offender left the scene because the assault
occurred moments before the police responded and the victim was injured and in an
excited state); State v. Sanchez, 8th Dist. Cuyahoga Nos. 93569 and 93570, 2010-
Ohio-6153, ¶ 20 (domestic abuse victim’s statements to responding officers were not
testimonial even though the offender was not present at the scene because the abuse
occurred moments before the police response and that constituted an ongoing
emergency); State v. Steele, 8th Dist. Cuyahoga No. 91571, 2009-Ohio-4704(victim’s statements made to responding officers were nontestimonial in nature
because the officers’ questions were posed upon initial contact with the victim and
under circumstances for which an ongoing threat existed).
In the instant matter, the record reflects that the statements L.W.
made to the responding officers on the scene and at the hospital were not
testimonial. These statements were made to law enforcement in the course of
responding to an emergency situation. L.W. had just managed to notify authorities
after appellant had assaulted her with a hammer and held her captive in the Marvin
Avenue house for at least a day. Furthermore, when officers initially arrived on
scene, appellant was not present, and had not been apprehended. Until appellant
was taken into custody, an ongoing emergency existed requiring police response.
Although the statements were nontestimonial in nature and not
subject to the confines of the Confrontation Clause, we must nevertheless proceed
to determine their admissibility. Crawford, 541 U.S. at 68; State v. Braun, 8th Dist.
Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 117; State v. McCree, 8th Dist. Cuyahoga
No. 87951, 2007-Ohio-268, ¶ 57. A trial court has broad discretion regarding the
admission of evidence, including whether evidence constitutes hearsay and whether
it is admissible hearsay. Solon v. Woods, 8th Dist. Cuyahoga No. 100916, 2014-
Ohio-5425, ¶ 10. We therefore will not disturb a trial court’s decision regarding the
admissibility of hearsay evidence absent an abuse of discretion. Id., citing State v.
Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984).
“Hearsay” is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within
one of the exceptions to the rule against hearsay. Evid.R. 802, 803, 804; State v.
Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383 (1987). Statements constitute hearsay
only if they were offered to prove the truth of the matters asserted in those
statements. If those statements were offered for some other purpose, they are not
inadmissible hearsay. State v. Davis, 62 Ohio St.3d 326, 344, 581 N.E.2d 1362(1991).
Pursuant to Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d
597 (1980), an out-of-court statement may be admissible even if the declarant is
unavailable for cross-examination if we find that the statement falls “within a firmly
rooted hearsay exception” or bears adequate indicia of reliability. Id. at 66.
The victim’s statements to the responding officers were admissible
under the excited utterance hearsay exception. An excited utterance is defined as a
“statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” Evid.R. 803(2).
For an alleged excited utterance to be admissible, four prerequisites
must be satisfied: (1) a startling event producing a nervous excitement in the
declarant; (2) the statement must have been made while still under the stress of
excitement caused by the event; (3) the statement must relate to the startling event;
and (4) the declarant must have personally observed the startling event. State v.
Brown, 112 Ohio App.3d 583, 601, 679 N.E.2d 361 (12th Dist.1996).
In the instant matter, the record reflects that L.W.’s statements on
scene and at the hospital fall within the excited utterance exception to the hearsay
rule. The record reflects that she was still under the stress of excitement caused by
appellant’s conduct — assaulting her with a hammer and holding her captive for at
least a day. L.W.’s statements identifying appellant as the perpetrator were related
to the startling event — being beaten, held captive, and managing to escape and call
police.
To the extent that appellant argues that L.W. was no longer under the
excitement when she made statements to Detective Adkins during the phone
interview, conducted during the same week as the incident, appellant’s argument is
misplaced. Although the passage of time between the event and the declaration is
relevant, it is not dispositive of the issue. State v. Taylor, 66 Ohio St.3d 295, 303,
612 N.E.2d 316 (1993). The Supreme Court of Ohio has made clear that, to be an
excited utterance, the statement need not be strictly contemporaneous with the
startling event. State v. Duncan, 53 Ohio St.2d 215, 373 N.E.2d 1234 (1978),
paragraph one of the syllabus. “‘[E]ach case must be decided on its own
circumstances, since it is patently futile to attempt to formulate an inelastic rule
delimiting the time limits within which an oral utterance must be made in order that
it be termed a spontaneous exclamation.’” Taylor at id., quoting Duncan at 219-
220.
Rather, we consider whether the declarant is still under the stress of
the event or whether the statement was the result of reflective thought. Duncan at
id.; see also In re C.C., 8th Dist. Cuyahoga Nos. 88320 and 88321, 2007-Ohio-2226(finding an excited utterance even though 27 days passed between the event and the
statement); State v. Duke, 8th Dist. Cuyahoga No. 52604, 1988 Ohio App. LEXIS
3466 (Aug. 25, 1988) (finding an excited utterance when the statement was made
ten days following an incident).
Here, it is unclear exactly when the interview was conducted.
However, it is undisputed that the interview was conducted shortly after the incident
took place — not weeks or months later. Based on the gruesome circumstances in
this case — appellant assaulting L.W. with a hammer and holding her captive — it is
reasonable that L.W. was still under the stress of the event during the phone
interview with Detective Adkins.
For all of the foregoing reasons, appellant’s first assignment of error
is overruled. The trial court did not abuse its discretion in admitting L.W.’s out-of-
court statements at trial.
B. Crim.R. 29/Sufficiency of the Evidence
In his second assignment of error, appellant argues that his
convictions were not supported by sufficient evidence.
“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. Driggins, 8th
Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78
Ohio St.3d 380, 386, 678 N.E.2d 541. “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.” State v. Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, ¶ 17, citing
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
Appellant was convicted of felonious assault (Count 5) in violation of
R.C. 2903.11(A)(1), felonious assault (Count 6) in violation of R.C. 2903.11(A)(2),
kidnapping (Count 7) in violation of R.C. 2905.01(A)(2), and disrupting public
services (Count 9) in violation of R.C. 2909.04(A)(1).
In support of his sufficiency challenge, appellant initially attacks the
credibility of L.W., who did not testify at trial. Specifically, appellant suggests that
L.W.’s allegations to police were not credible because she failed to show up at trial.
Appellant further suggests that L.W. was not held captive at the house, but rather
willingly went to, and stayed at, the house where she consumed alcohol and crack.
Appellant’s arguments attacking L.W.’s credibility are misplaced.
They pertain to the manifest weight of the evidence, not the sufficiency of the
evidence.
Appellant further argues that the state failed to present sufficient
evidence of motive. Appellant’s argument is again misplaced.
Motive was not an essential element of the felonious assault,
kidnapping, and disrupting public services offenses for which appellant was
convicted. It has long been held that motive is not an element that needs to be
established in order to sustain a conviction. State v. Allen, 8th Dist. Cuyahoga No.
85530, 2005-Ohio-4813, ¶ 15, citing State v. Lancaster, 167 Ohio St. 391, 149 N.E.2d
157 (1958), paragraph two of the syllabus. Further, proof of motive does not
establish guilt. Where the state establishes a defendant’s guilt beyond a reasonable
doubt, it is immaterial what the motive may have been for the crime, or whether any
motive is shown. Id.Based on the foregoing analysis, appellant’s second assignment of
error is overruled. Appellant’s convictions were supported by sufficient evidence.
C. Manifest Weight
A manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion. State v.
Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When considering
an appellant’s claim that a conviction is against the manifest weight of the evidence,
the court of appeals sits as a “thirteenth juror” and may disagree “with the
factfinder’s resolution of * * * conflicting testimony.” Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72
L.Ed.2d 652 (1982). The reviewing court must examine the entire record, weigh the
evidence and all reasonable inferences, consider the witnesses’ credibility, and
determine 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.’” Id., quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
In support of his manifest weight challenge, appellant argues that
there is no evidence corroborating Ortiz’s testimony or L.W.’s allegations that
appellant caused her injuries. Appellant’s argument is unsupported by the record.
As noted above, in her statements to police at the scene and hospital,
L.W. identified appellant as her assailant and the individual that inflicted her
injuries.
Ortiz testified at trial that there was a black male at the house on
Marvin Avenue. This individual was later identified as appellant. According to
Ortiz, the black male was in the kitchen for a few minutes then he came out with a
hammer and a knife. The man took Ortiz’s cell phone and L.W.’s cell phone and
kept them for approximately one hour. Ortiz testified that this man beat on L.W.’s
head with the handle of a hammer.
The testimony of SANE nurse Jennifer Jacobs supported L.W.’s
allegations and Ortiz’s trial testimony. Jacobs testified that L.W. identified her
assailant as “Anthony” and indicated that the assailant was a friend. Jacobs
identified a photograph of the top of L.W.’s head. The photograph depicted dried
blood and linear marking. There was bruising on L.W.’s shoulder, chest, and legs.
These injuries are not consistent with the defense’s theory that appellant did not
kidnap L.W. and that she was at the house voluntarily. Finally, appellant’s conduct
at the time he was arrested was also inconsistent with the defense’s theory that he
was innocent. When officers approached appellant, he initially gave them a fake
name.
Appellant’s convictions are not against the manifest weight of the
evidence. The jury had sufficient evidence about the witnesses to assess the
credibility of their testimony. This is not the case in which the evidence weighs
heavily against appellant’s convictions. For all of these reasons, appellant’s third
assignment of error is overruled.
D. Consecutive Sentences
In his fourth assignment of error, appellant argues that the trial court
erred in imposing consecutive sentences.
To impose consecutive prison sentences, the court must make three
findings: first, the court must find that consecutive sentences are “necessary to
protect the public from future crime or to punish the offender.” R.C. 2929.14(C)(4).
Next, the court must find “that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses to the
public.” Id. Finally, the court must find that at least one of the following applies:
(a) The offender committed one or more of the multiple 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.
(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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
To make the requisite statutory findings, “‘the [trial] court must note
that it engaged in the analysis’ and that it ‘has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson,
6 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). The trial court must “incorporate its
findings into its sentencing entry.” Bonnell at ¶ 37. The trial court is not required
to make a “talismanic incantation of the words of the statute.” Id.R.C. 2953.08(G)(2), which guides our review of consecutive felony
sentences, “compels appellate courts to modify or vacate sentences if they find by
clear and convincing evidence that the record does not support any relevant findings
under * * * (C)(4) of section 2929.14[.]” State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 22; see also State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 28; State v. Roberts, 2017-Ohio-9014, 101 N.E.3d
1067, ¶ 10 (8th Dist.) (“[i]f the court made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we ‘clearly and
convincingly’ find that the record does not support the court’s findings,” quoting
R.C. 2953.08(G)(2)); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th
Dist.).
In this case, appellant concedes that the trial court made the requisite
findings at the sentencing hearing. In imposing consecutive sentences, the trial
court made the following findings in open court:
Pursuant to the factors involved for consecutive sentences, I’m going to
also impose a sentence with respect to the repeat violent offender
specification. First, I will note that consecutive sentences are necessary
to, first of all, punish this defendant and protect our society and are not
disproportionate to his acts in this matter. I’ll note that this crime was
committed while being supervised by the APA; that that factor, as well
as the factor of the harm that was occasioned upon the victim in this
case with a deadly weapon, a hammer, that the single term does not
adequately reflect the seriousness of that conduct. Again, certainly, his
extensive criminal history shows that consecutive terms are needed to
protect the public.
(Tr. 993-994.)
Appellant appears to argue that the trial court did not incorporate its
findings into the sentencing journal entry. Appellant’s argument is unsupported by
the record. The trial court’s sentencing journal entry provides, in relevant part,
The court imposes prison terms consecutively finding that consecutive
service of the prison term is necessary to protect the public from future
crime or to punish defendant; that the consecutive sentences are not
disproportionate to the seriousness of defendant’s conduct and to the
danger defendant poses to the public; and that, the defendant
committed one or more of the multiple offenses while the defendant
was awaiting trial or sentencing or was under a community control or
was under post-release control for a prior offense, or at least two of the
multiple offenses were committed in this case as part of one or more
courses of conduct, and the harm caused by said multiple offenses 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 defendant’s conduct, or defendant’s history of
criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by defendant.
Accordingly, the trial court complied with Bonnell by incorporating its
consecutive-sentence findings into the sentencing journal entry. Appellant’s fourth
assignment of error is overruled.
E. Reagan Tokes Law
In his fifth assignment of error, appellant argues that the trial court
erred by imposing an indefinite sentence under the Reagan Tokes Law because it is
unconstitutional. Specifically, appellant argues that Reagan Tokes violates the
separation-of-powers doctrine and due process.
This court has recently conducted en banc review of the
constitutionality of the Reagan Tokes Law. See State v. Delvallie, 2022-Ohio-470,
185 N.E.3d 356 (8th Dist.). In Delvallie, this court found “that the Reagan Tokes
Law, as defined under R.C. 2901.011, is not unconstitutional.” Delvallie at ¶ 17. This
court overruled the separation-of-powers and due process challenges presented by
appellant in this appeal to the constitutionality of the Reagan Tokes Law and,
consequently, we need not dwell on them.
Pursuant to Delvallie, appellant’s fifth assignment of error is
overruled. The trial court did not err in imposing an indefinite prison sentence for
appellant’s qualifying offenses.
III. Conclusion
The trial court did not err or abuse its discretion in admitting L.W.’s
out-of-court statements at trial. Appellant’s convictions were supported by
sufficient evidence and were not against the manifest weight of the evidence.
Finally, the trial court did not err in imposing consecutive sentences or imposing an
indefinite prison sentence pursuant to the Reagan Tokes Law.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of her analysis, see State v. Delvallie, 2022-Ohio-470, 185
N.E.3d 356 (8th Dist.).
Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes
and the concurring in part and dissenting in part opinion by Judge Anita Laster
Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.