State v. Walker

[Cite as State v. Walker, 2021-Ohio-2037.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109328
v. :
DETTRICK WALKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 17, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-633490-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Blaise D. Thomas and Tasha Forchione,
Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
SEAN C. GALLAGHER, J.:
Dettrick Walker appeals his conviction for felonious assault, along
with an attendant three-year gun specification, stemming from his mortally
shooting Victor Maar, Jr., with an illegally possessed handgun during an altercation
in Maar’s home. The trial court sentenced Walker to an eight-year term of
imprisonment to be served following the three-year term of imprisonment on a
firearm specification. For the following reasons, we affirm.
Walker, 18 years old at the time of the shooting, was in a relationship
with Courtney Sprachmann, who was then 41 years old and who is also a
codefendant. That relationship began three years earlier. Sprachmann moved into
a property owned by Maar, having no other home available. Maar’s extended family
also lived at the property. Maar renovated homes for a living and hired Sprachmann
sporadically. Maar prohibited Walker from being on any of his properties because
Maar believed Walker had assaulted Sprachmann in the past based on visible
injuries Sprachmann had sustained.
On the day of the killing, Walker visited Sprachmann. Sprachmann
and Walker were upstairs while the rest of the family was on the first floor watching
football. Maar joined the family. Maar, aware of Walker’s presence, eventually went
upstairs to confront the couple and to tell Walker to leave the premises. Maar
verbally confronted Walker, and the two began pushing each other, although the
extent of the altercation is unclear because the rest of the family only heard the
scuffle. Walker testified that he was punched several times in the face. Unsuccessful
with getting Walker to leave, Maar returned to the living room.
While Maar was at the foot of the stairs entering the living room, he
was heard telling everyone that Walker “had to go” or words to that effect. Walker
approached Maar from behind and, according to the witnesses, began shooting
immediately while descending the stairs with a backpack slung on his shoulder.
Maar’s blood was spattered on the wall going up the stairs. Walker continued to
shoot as Maar was on the ground. In all, five shots were fired, all of which hit Maar.
After Maar was shot, Maar’s father grabbed for and tackled Walker into the fireplace.
Walker freed himself from the scuffle and fled the scene.
The medical examiner in part corroborated the eyewitness testimony
that Maar’s back was to Walker at some point during the shooting. The fatal gunshot
was inflicted from behind, entering Maar’s back and exiting his chest, piercing the
aorta, the largest blood vessel in the body. Maar’s death would have been within
minutes, but Maar would have collapsed within seconds. Also, according to the
medical examiner, there were no offensive wounds on Maar’s hands or fists,
indicating that Maar did not appear to punch anybody, although there is no dispute
that Walker had marks on his face and body and lost some blood during the
altercation. The extent of Walker’s injuries was limited to a cut on his lip and some
scratches or other cut marks on his arm and back. Walker did not seek medical
attention, and four days after the altercation there were no visible signs of injury to
Walker’s face.
Walker presented a different version of events. Although Walker
never testified to being aware of Maar’s prior instances of aggressive conduct, the
trial court permitted the defense to delve into that area through the state’s witnesses
offering evidence of the victim’s past conduct, over the state’s objection. Compare
State v. Barnes, 94 Ohio St.3d 21, 21, 759 N.E.2d 1240 (2002) (a defendant cannot
introduce evidence of specific instances of a victim’s conduct to prove self-defense).
According to Walker’s trial testimony, Maar accosted him in the second-story
bedroom and hurled racially charged invectives while beating Walker with punches
and kicks. The ensuing “nonstop assault” carried the two from room to room
upstairs and caused them to careen into objects in the bedroom (the wall, the couch,
and the dressers, which had a glass item among other objects sitting on them) and
then to “tumble” down the stairs into the first-floor living room area where Maar’s
father held Walker to facilitate Maar’s attack. As the state points out, crime-scene
photos revealed no evidence of a prolonged physical altercation having occurred —
the rooms were not in any disarray, and none of the objects on the dressers were
dislodged.
After being tossed into the fireplace in the living room by Maar and
his father, Walker pulled a loaded firearm from his backpack, which had been
loosely hung on his right shoulder during the entire episode with the handgun
contained in an open pocket on the outside of the backpack. According to Walker,
the backpack was at his feet when Maar entered the bedroom, but Walker was able
to pick up the bag and sling it around one shoulder right before Maar threw the first
punch.
Walker then claims that after retrieving the firearm from the
backpack, he released the trigger safety and fired five shots as Maar charged toward
him, but that he stopped shooting once Maar fell to the floor — contradicting the
state’s evidence that Walker continued to fire the weapon while Maar was lying on
the ground and the fatal shot went through Maar’s back. Although Walker claims to
have shot all five rounds from the fireplace area, the investigation revealed a bullet
defect in the wall above the fireplace, which would have been behind Walker if he
fired his weapon from the fireplace area as he testified. Walker concedes he did not
provide Maar any opportunity to cease the assault. Walker then fled the scene,
tossing the firearm into an undisclosed dumpster near Maar’s property.
At trial, Walker testified that he was given the handgun by a friend,
avoiding the implications of R.C. 2923.211(B) (“No person under twenty-one years
of age shall purchase or attempt to purchase a handgun.”). However, Walker did
not, and could not under R.C. 2923.125(D)(1)(b), due to his age, possess a concealed
handgun license such that he would have been permitted to conceal the loaded
handgun in his backpack. Walker claimed to have illegally carried the weapon for
safety, testifying to living in a high-crime neighborhood with his mother. Walker’s
mother disagreed with that characterization of their West 140th Street
neighborhood, pitting Walker’s credibility against that of his mother.
The jury acquitted Walker of both murder counts, but found him
guilty of felonious assault along with an attendant three-year firearm specification.
The trial court imposed the maximum sentence of eight years in prison, to be served
following the three-year term imposed on the firearm specification. This appeal
timely followed in which Walker advances five assignments of error.
I. Self-Defense
In the first, third, and fourth assignments of error, Walker claims his
conviction is either based on insufficient evidence or is against the weight of the
evidence. All three of those claimed errors, however, rely on accepting Walker’s
testimony over that of the state’s witnesses and will be treated accordingly. In
reviewing a sufficiency challenge, “‘[t]he 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.” (Emphasis added.) State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because Walker’s argument focuses on his
credibility as contrasted against the state’s evidence, his claims are more
appropriately considered under the weight-of-the evidence standard.
A claim that a verdict is against the weight of the evidence involves a
separate and distinct test that is much broader than the test for sufficiency. State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In
contrast to sufficiency of the evidence, “[w]eight of the evidence concerns the
inclination of the greater amount of credible evidence.” State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of the evidence is a test
of adequacy as to whether the evidence is legally sufficient to support a verdict as a
matter of law, * * * weight of the evidence addresses the evidence’s effect of inducing
belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing
court must consider all the evidence in the record, the reasonable inferences, and
the credibility of the witnesses to 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.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st
Dist.1983). “‘The discretionary power to grant a new trial should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
Self-defense claims are generally an issue of credibility. If evidence
presented at trial tends to support the conclusion “that the defendant used force
against another in self-defense or in defense of another, the state must prove beyond
a reasonable doubt that the defendant did not use the force in self-defense or defense
of another.” State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-4976,
¶ 49, citing R.C. 2901.05(B)(1). However, in light of the cumulative nature of the
self-defense elements, the state need only disprove one of the elements of self-
defense beyond a reasonable doubt at trial to sustain its burden at trial. Id., citing
State v. Petway, 11th Dist. Lake No. 2019-L-124, 2020-Ohio-3848, ¶ 55, and State
v. Carney, 10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, ¶ 31.
In order to establish the inapplicability of self-defense, the state must
demonstrate (1) that the defendant was at fault in creating the situation giving rise
to the affray; (2) that the defendant lacked a bona fide belief that he was in imminent
danger of death or great bodily harm or that another means of escape from such
danger existed negating the need for the use of deadly force; or (3) that the
defendant violated a duty to retreat or avoid the danger. State v. Jacinto, 2020-
Ohio-3722, 155 N.E.3d 1056, ¶ 46 (8th Dist.); see also State v. Thompson, 141 Ohio
St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 258, quoting Barnes, 94 Ohio St.3d
at 24, 759 N.E.2d 1240; see also State v. Williams, 1st Dist. Hamilton No. C 190380,
2020-Ohio-5245, ¶ 11, quoting State v. Salaam, 2015-Ohio-4552, 47 N.E.3d 495,
¶ 15 (1st Dist.), and State v. Browner, 1st Dist. Hamilton No. C-100247, 2010 Ohio
App. LEXIS 5260, ¶ 8 (Dec. 15, 2010). With respect to the duty-to-retreat element,
Walker did not invoke R.C. 2901.09. Under what is colloquially known as the Castle
Doctrine as it existed before April 6, 2021, “a person is presumed to have acted in
self-defense when attempting to expel or expelling another from their home who is
unlawfully present.” State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, 959
N.E.2d 1097, ¶ 25 (8th Dist.). The doctrine obviates the “duty to retreat” element of
self-defense. Id. Although the recently enacted version of R.C. 2901.09 expanded
the defense to include any area where the defendant is lawfully entitled to be and
the defense is no longer limited to one’s residence, that version is not applicable to
the current case based on the date of enactment. Although Walker and the state
discuss Walker’s status as a trespasser or invitee at great length, Walker’s status is
irrelevant in light of the failure to raise the Castle Doctrine or the recent
amendments to that statutory section in this case. There is no dispute that Walker
had a duty to retreat.
Nevertheless, self-defense is not absolute. There are “‘limitations to
the application of self-defense,’ and the defense ‘is not available unless’ there is
evidence demonstrating ‘that the force used to repel the danger was not more than
the situation reasonably demanded.’” State v. Zafar, 10th Dist. Franklin No. 19AP-
255, 2020-Ohio-3341, ¶ 52-53, quoting State v. Johnson, 6th Dist. Lucas No. L-08-
1325, 2009-Ohio-3500, ¶ 12. It has therefore been concluded that “‘the force used
to defend must be objectively necessary and reasonable under the facts and
circumstances of the case and in view of the danger apprehended.’” Id., quoting
Johnson and Martin v. Cent. Ohio Transit Auth., 70 Ohio App.3d 83, 93, 590 N.E.2d
411 (10th Dist.1990). Self-defense is not justified when an offender uses “a greater
degree of force than is necessary under all the circumstances.” Id., citing Johnson
and State v. McLeod, 82 Ohio App. 155, 157, 80 N.E.2d 699 (9th Dist.1948).
In Zafar, for example, the defendant was a clerk at a convenience
store who entered what started as a verbal altercation with the victim over a 50-cent
surcharge for using a debit card. Id. at ¶ 19. The defendant testified that the victim
threatened to kill him, and when another store clerk approached the victim, the
victim began punching the other clerk. Id. at ¶ 21. At that point, the defendant began
hitting the victim with an aluminum baseball bat, prevented him from leaving the
store, and continued attacking despite the fact that the victim was subdued on the
floor. Id. at ¶ 6-9. Even if the initial altercation placed the defendant in fear of his
life based on the victim’s threats, it was concluded that attacking the victim with the
deadly weapon while he offered little to no resistance exceeded the force necessary
to removing the danger. Id. at ¶ 53. Thus, the amount of force used must coincide
with the danger posed.
In this case, the evidence is conflicting as to how Walker shot Maar.
According to Walker, he fired the weapon from the fireplace area only as Maar was
charging at him after both had tumbled down the stairs while the assault was
ongoing. According to the witnesses, and in part the medical examiner’s and
investigative evidence, Walker shot Maar from behind as Walker descended the
stairs shortly after Maar had returned to the first-floor area during a break in the
physical altercation. What is undisputed, however, is that although Maar initiated
the altercation, no one in the house was otherwise armed and Walker did not sustain
extensive injuries from Maar’s attack.
Essentially, Walker is asking this court to believe his version of events
over the eyewitnesses and the state’s forensic evidence. “[A] conviction is not
against the manifest weight of the evidence because the trier of fact believed the
state’s version of events over the defendant’s version.” State v. Lipkins, 2017-Ohio-
4085, 92 N.E.3d 82, ¶ 39 (10th Dist.), citing State v. Gale, 10th Dist. Franklin No.
05AP-708, 2006-Ohio-1523, ¶ 19.
Here, there is ample evidence that Walker fatally shot Maar while his
back was to Walker and at a time when Walker was not in danger from any assault.
If the state’s evidence is believed, and Walker provides no credible basis to discount
such evidence, Walker was not being assaulted and could have remained upstairs
and called for police assistance to report the assault with one of the three mobile
phones that he and Sprachmann had available at the time. Since Walker was armed,
nothing prevented him from taking a defensive stand upstairs while the danger
subsided. Instead, Walker voluntarily approached Maar and began shooting.
Generally, a defendant, having willingly advanced toward a volatile situation cannot
rely on the affirmative defense of self-defense. State v. Sekic, 8th Dist. Cuyahoga
No. 95633, 2011-Ohio-3978, ¶ 15.
In effect, Walker escalated the altercation by voluntarily advancing
and using a deadly weapon in a situation in which the objective evidence does not
conclusively establish that Walker was being beaten to the point that his life was
endangered. State v. Kendricks, 10th Dist. Franklin Nos. 10AP-114 and 10AP-115,
2010-Ohio-6041, ¶ 41. Even if Walker was privileged to defend himself from the
initial attack, he exceeded the force necessary to repel the attack by using a deadly
weapon against an unarmed man during a break in the altercation. The jury was
free to consider such conduct in weighing the evidence. Id. Further, Walker fired
several times and only one shot turned out to be deadly. The order in which the
bullets struck Maar is unknown, but shooting multiple times, including when Maar
was on the ground and no longer continuing the alleged attack, could also be
considered as exceeding the force necessary to repel the bare-handed attack. See,
e.g., State v. Viney, 4th Dist. Ross No. 1762, 1992 Ohio App. LEXIS 2404, 9 (May 5,
1992) (the jury was free to consider the several stab wounds as being in excess of
what was necessary to repel the attack); see also State v. Garrett, 9th Dist. Summit
No. 28638, 2018-Ohio-1368, ¶ 16 (the jury could reasonably accept the state’s
version of the conflicting evidence that the defendant did not act in self-defense).
A conviction will be reversed as being against the manifest weight of
the evidence only in the most “‘exceptional case in which the evidence weighs heavily
against the conviction.’” Id., quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, and Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Walker
claims that his version of events is more credible than the state’s; however, Walker’s
testimony is at odds with the forensic evidence that demonstrates Maar’s being shot
in the back and while on the ground. Walker provided no explanation for how Maar
could have been shot in that manner throughout his testimony, which
unambiguously provided that Walker only shot as Maar charged Walker. Further,
his claim as to the extent of the struggle, being tossed around rooms and into objects
in Sprachmann’s room, was not corroborated by the crime-scene photos that
depicted no damage to any items on dressers that the men collided with or any other
signs of disarray. In short, his version of the events is not inherently more credible
than the evidence offered by the state. See, e.g., State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524, 960 N.E.2d 955, ¶ 128 (defendant failed to demonstrate that the
state’s evidence was inherently unreliable, and therefore, the conviction was not
against the weight of the evidence). This is not that exceptional case warranting
appellate intervention.
II. Inconsistency in the Verdict
On this point, however, Walker claims that the jury must necessarily
be presumed to have concluded that he acted in self-defense since Walker was
acquitted of murder, and therefore, the felonious assault conviction should be
reversed. According to Walker, the acquittal of the murder charges necessarily
proves that the jury believed that Walker acted in self-defense, and therefore, that
conclusion should have transferred to the separate felonious assault charge. The
state, on the other hand, maintains that the jury could have acquitted based on its
conclusion that the state failed to present evidence substantiating the elements of
murder. We need not consider either argument because speculation as to the jury’s
thought process is not permissible. State v. Pruett, 8th Dist. Cuyahoga No. 78094,
2001 Ohio App. LEXIS 1705, 4 (Apr. 12, 2001), citing State v. Lovejoy, 79 Ohio St.3d
440, 444-445, 683 N.E.2d 1112 (1997). “‘Courts have always resisted inquiring into
a jury’s thought processes * * *; through this deference the jury brings to the criminal
process, in addition to the collective judgment of the community, an element of
needed finality.’” Lovejoy at 445, quoting United States v. Powell, 469 U.S. 57, 66-
67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).
Walker is essentially claiming that the finding of guilt on the felonious
assault charge is inconsistent with the acquittal on the murder charges. State v.
Daws, 2d Dist. Montgomery No. 18686, 2001-Ohio-1549. It has long been held that
“‘consistency in the verdict is not necessary.’” State v. Gardner, 118 Ohio St.3d 420,
2008-Ohio-2787, 889 N.E.2d 995, ¶ 81-82, quoting Powell at 62, and Dunn v.
United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Each count of
an indictment is considered a separate indictment. Id. It is possible “that the [trier
of fact], convinced of guilt, properly reached its conclusion on the compound
offense, and then through mistake, compromise, or lenity, arrived at an inconsistent
conclusion on the remaining offenses.” Id., citing Powell.
Thus, even if the jury’s verdict as between the separate counts of the
indictment were considered to be inconsistent, that does not constitute reversible
error. We find no merit to Walker’s argument.
III. Ineffective Assistance of Counsel
In the second assignment of error, Walker claims that his trial counsel
rendered ineffective assistance by failing to submit a separate verdict form on self-
defense. According to Walker, the jury must have mistakenly applied the self-
defense instruction only to the murder charges and not the felonious assault charge
based on the verdict, and the jury form would have revealed this mistake.
“Reversal of a conviction for ineffective assistance of counsel requires
that the defendant show, first, that counsel’s performance was deficient and second,
that the deficient performance prejudiced the defendant so as to deprive the
defendant of a fair trial.” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140
N.E.3d 616, ¶ 391, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). However, even if the error is obvious, it must have
affected substantial rights, and the Ohio Supreme Court has “‘interpreted this aspect
of the rule to mean that the trial court’s error must have affected the outcome of the
trial.’” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,
quoting Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. Along these lines, a
defendant is “required to demonstrate a reasonable probability that the error
resulted in prejudice * * *.” Id., citing United States v. Dominguez Benitez, 542 U.S.
74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
Walker has not presented any authority in support of his claim that
trial counsel must present verdict forms when self-defense is raised. State v. Jones,
8th Dist. Cuyahoga No. 108371, 2020-Ohio-3367, ¶ 99. In Jones, this argument was
rejected for this very reason. Id. Importantly, Walker does not claim any error with
respect to the jury instructions, which unambiguously instructed the jurors that the
self-defense claim applied to each and every count. Tr. 1272:16-23 (“if you find that
the State failed to prove, beyond a reasonable doubt, that self-defense does not apply
you must find the defendant not guilty of the offense or offenses charged according
to your findings.” (Emphasis added.)). The jury is presumed to have followed the
court’s instructions. State v. Graham, Slip Opinion No. 2020-Ohio-6700, ¶ 135,
citing State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). As a result,
Walker has failed to demonstrate that the result of the trial would have been
different, and the second assignment of error is overruled.
We do note, however, that the standard jury instruction for self-
defense is in need of updating to reflect the current law that places the burden on
the state to disprove self-defense. Traditionally, the elements of self-defense were
considered cumulative — the defendant must prove each element in order to avail
himself of the defense. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772
N.E.2d 81, ¶ 73. The standard instruction provides the self-defense instruction in
the conjunctive to reflect the cumulative nature of the defense. See, e.g., OJI CR
421.19. Under R.C. 2901.05, the state now bears the burden of disproving self-
defense if appropriately raised, but that burden is limited to disproving any one
element. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, at ¶ 46 (8th Dist.); State v.
Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 49-50. In light of the
burden shifting to the state, the instruction should clarify the difference between the
state’s and the defendant’s respective burden. That clarification was lacking in this
case. In response to a question from the jury during trial, the trial court indicated
that the state must disprove all three elements based on both parties agreeing to the
state of the law. This concession by the state was in error. Although the state need
only disprove one element, in order to be entitled to a self-defense verdict, there
must be evidence satisfying all elements of self-defense in order for the defendant to
prevail. Moving forward, courts and parties should be aware of this distinction. In
this case, however, the jury found Walker guilty of felonious assault, so any error
with respect to the instruction from the state’s perspective is beyond the scope of
this appeal.
IV. Sentencing
Finally, in the fifth assignment of error, Walker claims that his
sentence imposed on the felony of the second degree, felonious assault, is not
supported by the record. We are statutorily precluded from considering that
argument.
In order to appeal the imposed sentence, a defendant must first
demonstrate that the sentence is reviewable under one of the provisions of R.C.
2953.08(A). State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 10 (“A defendant’s right to appeal a sentence is based on specific grounds
stated in R.C. 2953.08(A).”). The sentence in this case is an eight-year sentence on
the underlying second-degree felony offense, the maximum possible sentence.
Under R.C. 2953.08(A)(1), a maximum sentence imposed on an individual count
can be challenged in the direct appeal.
Notwithstanding, Walker contends that the Ohio Supreme Court
recognized an offender’s ability to challenge a sentence imposed solely after
consideration of the factors under R.C. 2929.11 and 2929.12 under R.C. 2953.08(G),
that is, that a sentence may be reversed if the sentencing factors are not clearly and
convincingly supported by the record. At one time, Ohio law indeed reflected this
deferential review. State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d
431, ¶ 10, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 23. In Marcum, the Ohio Supreme Court noted that “it is fully consistent for
appellate courts to review those sentences that are imposed solely after
consideration of the factors in R.C. 2929.11 and 2929.12 under” the deferential
standard of review provided under R.C. 2953.08(G). Id. at ¶ 23.
Under a more recent pronouncement, however, the Ohio Supreme
Court’s conclusion in Marcum was deemed dicta. Generally, dicta may be relied
upon as persuasive authority. Browne v. Artex Oil Co., 158 Ohio St.3d 398, 2019-
Ohio-4809, 144 N.E.3d 378, ¶ 27. But in this particular case, the Ohio Supreme
Court deemed it reversible error to rely on Marcum for the proposition that an
appellate court may review whether the record clearly and convincingly supports the
sentencing factors and consideration under R.C. 2929.11 and 2929.12. State v.
Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 27. “R.C. 2929.11 and 2929.12 are not
among the statutory provisions listed in R.C. 2953.08(G)(2)(a) and [o]nly R.C.
2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.” Id.
at ¶ 28. Accordingly, under R.C. 2953.08(G)(2), an appellate court may reverse or
modify a sentence only if the appellate court clearly and convincingly finds that the
record does not support the findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e)
or (C)(4), or 2929.20(I), or if the sentence is contrary to law. R.C. 2953.08(G) “does
not provide a basis for an appellate court to modify or vacate a sentence based on its
view that the sentence is not supported by the record under R.C. 2929.11 and
2929.12.” Jones, at ¶ 39.
Even though R.C. 2929.14(A) permits appellate review of an
individual sentence imposed solely following consideration of R.C. 2929.11 and
2929.12, we have no basis to reverse the sentence because none of the relevant
findings under R.C. 2953.08(G) were necessary to that particular sentence. And
further, there is no argument in this case that the sentence is contrary to law.
Regardless of this omission, we note that a “sentence is contrary to law if it falls
outside the statutory range for the offense or if the sentencing court fails to consider
the purposes and principles of sentencing set forth in R.C. 2929.11 and the
sentencing factors in R.C. 2929.12.” State v. Pate, 8th Dist. Cuyahoga No. 109758,
2021-Ohio-1089, ¶ 3, citing State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-
Ohio-5926, ¶ 58. Walker concedes that his sentence is not outside the statutory
range and the trial court expressly considered the sentencing factors as required by
law. The fifth and final assigned error is overruled.
We affirm.
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
conviction 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.
__________________________
SEAN C. GALLAGHER, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MARY J. BOYLE, A.J., CONCURS IN JUDGMENT ONLY