State v. Abdullah

[Cite as State v. Abdullah, 2022-Ohio-3977.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-051
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
RASHIED M. ABDULLAH,
Trial Court No. 2020 CR 000601
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Rashied M. Abdullah, appeals from his convictions
and sentence for Rape, Felonious Assault, and Kidnapping, following a jury trial in the
Lake County Court of Common Pleas. For the following reasons, we affirm the decision
of the lower court.
{¶2} On August 14, 2020, the Lake County Grand Jury issued an Indictment,
charging Abdullah with Rape (Count One), a felony of the first degree, in violation of R.C.
2907.02(A)(2); two counts of Felonious Assault (Counts Two and Three), felonies of the
second degree, in violation of R.C. 2903.11(A)(1) and (2); and three counts of Kidnapping
(Counts Four, Five, and Six), felonies of the first degree, in violation of R.C. 2905.01(A)(2),
(3), and (4).
{¶3} A jury trial was held on January 26-28, 2021. The following pertinent
testimony and evidence were presented:
{¶4} On June 26, 2020, T.W., a 17-year-old, was walking to various locations
near her home to fill out job applications. T.W. testified that, as she was walking, a man
unknown to her, later identified as Abdullah, pulled up in a vehicle and asked her name.
T.W. wanted to get to know him and accepted his offer for a ride home. He requested
her phone number and later sent her a text message asking to “chill.” T.W. agreed and
he picked her up. They went to a lake and walked around, sat together, and hugged. He
touched her buttocks and she asked him to stop, which he did. She subsequently asked
him to drive her home and he responded that he needed to pick something up from his
residence. He drove to a hotel and told T.W. that he was staying there because he travels
often. After Abdullah paid at the front desk, the two went to a hotel room.
{¶5} According to T.W., after entering the room, Abdullah went to the restroom,
exited with his shirt off, sat on the bed, and asked her to “come over.” She then requested
to go home. He began kissing her, she pulled away and said no, telling him she needed
to return home because she had snuck out. He became aggressive, grabbed her arm,
got on top of her and kissed her. She tried to push him off and said she did not want to
have sex. After she told him to get off of her multiple times, he punched her in the face.
She asked to leave again, he said no, and continued to punch her in the face.
{¶6} According to T.W., Abdullah then started to pull down her pants, she
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grabbed his hand, and he punched her in the face again. She testified that he “put his
fingers in me.” She explained that she was wearing her underwear at the time, and he
placed his hand inside the top of her underwear. He then exposed himself. She tried to
use the restroom and he jumped up and stopped her. She asked him to turn on the light
in an attempt to get him to walk away and then removed a box cutter from her purse. He
removed his clothes and asked her to get on top of him and she did so because he
ordered her to. He kissed her, and when she again said she did not want to have sex
with him and he should get a prostitute, he became mad, grabbed her by the neck and
punched her again. She then cut him on the neck with the box cutter, and they began
pushing each other. She ran to the door to leave but he kicked it with his foot, bit her on
the back and punched her in the face, causing her to fall and black out. During the
struggle, Abdullah grabbed her hand with the boxcutter and “made [her] cut [her]self on”
the thigh. After he bit her on the face, there was a struggle and she was able to get away.
T.W. found a guest at the hotel who called police. When police arrived, she told them
Abdullah had taken her from her house at gunpoint because she did not want her parents
to know she snuck out.
{¶7} On cross-examination, T.W. stated that she had been voluntarily hugging
Abdullah and was voluntarily at the hotel, although she believed they were just there for
him to pick up his clothing.
{¶8} Anthony DiDona, a Wickliffe Police Department Patrolman, responded to a
dispatch at the Quality/Econo Lodge, and saw the victim, who was wearing a towel
stained in blood and had a swollen forehead and cheeks and cuts on her body. She was
out of breath, stated “he just tried to rape me,” and described Abdullah. According to
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DiDona, T.W. told him she had encountered Abdullah earlier that day and he later
abducted her from her home at gunpoint. DiDona testified that T.W. described the events
in a manner similar to her testimony, including the denial of Abdullah’s physical advances
and the struggle within the hotel room. T.W. told DiDona that Abdullah inserted a finger
in her vagina. DiDona photographed her injuries at the hospital, which included bruising
and scrapes on her leg, chest, arms and shoulder, bite marks on her shoulder and cheek,
and swelling on her face. He testified that, by the way T.W. was acting, it appeared she
had been through a high stress event.
{¶9} Danielle Stoehr, a registered nurse, spoke with T.W. at the hospital.
According to her testimony, T.W. told her a version of events similar to her testimony,
which included Abdullah taking her to the hotel at gunpoint and her refusal to have sex.
Stoehr indicated that T.W. stated Abdullah had taken off her underwear and “put his
fingers in there.” Stoehr described T.W. as sad, upset, and tearful. After a physical
examination, she found no injury to T.W.’s vaginal area.
{¶10} Patrick Hengst, a former Wickliffe Police Department Lieutenant, spoke to
T.W. at the hospital to clarify whether she was taken at gunpoint, as he felt this fact was
inconsistent with the evidence and video from the hotel. She admitted that this statement
was untrue and that she snuck out of her house to meet with him. As to the assault, she
told him that he pulled her underwear down in order to rape her.
{¶11} Hengst testified that when Abdullah was subsequently arrested, Hengst
observed that he had cuts that were healing. He interviewed Abdullah and a video of the
interview was played for the jury. In that interview, Abdullah stated that T.W. pulled a
knife on him because he would not drive her home, that any activity between the two was
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consensual, and that he did not “remember if a finger or two may have slid in her vagina.”
{¶12} Dr. Karen Zavarella of the Lake County Crime Laboratory testified that DNA
from swabs taken from a bitemark, T.W.’s hand, inner thigh, and fingernails, and the
interior crotch area of her shorts were consistent with Abdullah’s DNA. The box cutter
contained DNA from both T.W. and Abdullah. Vaginal swabs contained too much female
DNA to identify any male DNA.
{¶13} During the trial, the State moved to dismiss Count Four as duplicative. At
the close of the State’s case, the defense moved for acquittal pursuant to Crim.R. 29,
which motion was denied.
{¶14} The jury found Abdullah guilty of Rape, Felonious Assault, and two Counts
of Kidnapping, as charged in the indictment. The verdict was memorialized in a February
1, 2021 Judgment Entry.
{¶15} A sentencing hearing was held on March 29, 2021, and the sentence was
memorialized in a Sentencing Entry. The court merged the counts of Felonious Assault
and the counts of Kidnapping. Defense counsel indicated this was Abdullah’s first sex
offense and that most of his prior convictions were for theft related offenses. T.W. stated
that this had “put [her] through a lot.” The State argued that consecutive sentences were
necessary and requested a sentence of at least twenty years in prison. The court stated
its consideration of the factors under R.C. 2929.11 and .12 and that the imposed sentence
was “a minimum of six years and a maximum of nine years” for the counts of Rape and
Felonious Assault and “a minimum of eight years and a maximum of twelve years” for
Kidnapping, the aggregate minimum was 20 years, and the aggregate maximum was 24
years. The court ordered all three sentences to be served consecutively. The court
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found, at the hearing and in its sentencing entry, that the consecutive sentences are
necessary to protect the public from future crime or punish the defendant, that they were
not disproportionate to the seriousness of his conduct and the danger posed to the public,
and the offenses were committed as part of a course of conduct and Abdullah’s history of
criminal conduct demonstrates consecutive sentences are necessary to protect the
public. In the sentencing entry, the court stated that the defendant “has been sentenced
to a minimum term on each qualifying count as detailed below” and included a chart which
stated the sentences for Rape and Felonious Assault as “6 years Minimum (Maximum 9
years)” and Kidnapping as “8 years Minimum (Maximum 12 years).” The entry also
stated: “Having imposed the minimum terms on Counts 1, 3, and 5, the Court further
sentences the defendant to an aggregate minimum term of 20 years and an aggregate
maximum term of 24 years.”1
{¶16} Abdullah timely appeals and raises the following assignments of error:
{¶17} “[1.] The trial court erred to the prejudice of the defendant-appellant when
it denied his motion for acquittal made pursuant to Crim.R. 29(A).
{¶18} “[2.] The trial court erred to the prejudice of the defendant-appellant when
1. Although not raised by the parties, we observe that the court stated both a minimum and maximum term
for all three offenses at the sentencing hearing and parenthetically in the entry. Pursuant to R.C.
2929.144(B)(2), if an offender is ordered to serve consecutive sentences for felonies, where at least one
felony is a qualifying offense, “the court shall add all of the minimum terms imposed on the offender under
division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or
second degree that are to be served consecutively and all of the definite terms of the felonies that are not
qualifying felonies * * *, and the maximum term shall be equal to the total of those terms so added by the
court plus fifty per cent of the longest minimum term or definite term for the most serious felony being
sentenced.” Here, although the trial court did mention maximum terms for each of the offenses, which were
qualifying offenses, it also correctly stated the minimum terms and added the three minimum terms to half
of the maximum for the most serious offense to arrive at the correct sentence, 20 to 24 years in prison. It
also indicated that it had “imposed the minimum terms on Counts 1, 3, and 5.” Since the prison term
ordered is consistent with R.C. 2929.144(B)(2), we find no reversible error as to the court’s sentence in
relation to this issue.
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it returned a verdict of guilty against the manifest weight of the evidence.
{¶19} “[3.] The trial court’s order of consecutive sentences for an aggregate
minimum of twenty years pursuant to 2929.14(C) was not supported by the record and is
contrary to law.
{¶20} “[4.] The defendant-appellant’s constitutional challenges to the
indeterminate prison sentence of twenty to twenty-four years that was ordered pursuant
to the ‘Reagan Tokes Act,’ aka Senate Bill 201, are ripe for review.
{¶21} “[5.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, must be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.
{¶22} “[6.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, must be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine
of separation of powers.
{¶23} “[7.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, violates his constitutional right to trial by jury as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the
Ohio Constitution.
{¶24} “[8.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, violates his constitutional rights to fair trial and due process as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I,
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Sections 5 & 10 of the Ohio Constitution.”
{¶25} In his first and second assignments of error, Abdullah argues that the lower
court erred in denying his motion for acquittal and that his convictions were against the
weight and sufficiency of the evidence, raising similar arguments alleging that there was
a lack of credible evidence supporting the crimes for which he was convicted. Since these
issues are interrelated, we will address them jointly.
{¶26} “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as
to whether each material element of a crime has been proved beyond a reasonable
doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. “Thus,
when an appellant makes a Crim.R. 29 motion, he or she is challenging the sufficiency of
the evidence introduced by the state.” (Citation omitted.) State v. Hastings, 11th Dist.
Portage No. 2020-P-0014, 2021-Ohio-662, ¶ 23. In reviewing the sufficiency of the
evidence, “[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.” 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).
{¶27} Whereas “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 State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence
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is more persuasive—the state’s or the defendant’s?” Id. An appellate court must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and 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.” (Citation omitted.) Thompkins at 387. “Since there must be
sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction is
supported by the weight of the evidence necessarily must include a finding of sufficiency.’”
(Citation omitted.) State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-
1842, ¶ 32.
{¶28} As an initial matter, we need not consider sufficiency or manifest weight
arguments as they relate to Counts 2 (Felonious Assault in violation of R.C.
2903.11(A)(1)) and 6 (Kidnapping in violation of R.C. 2905.01(A)(4))2, since these were
merged at sentencing. As this court has held, where allied offenses are merged and there
is sufficient evidence on the offense for which defendant is sentenced, errors relating to
sufficiency and weight of the evidence on the count that is merged are harmless and need
not be considered. State v. Mugrage, 11th Dist. Portage No. 2020-P-0066, 2021-Ohio-
4136, ¶ 133; State v. Whetstone, 11th Dist. Lake No. 2015-L-114, 2016-Ohio-6989, ¶ 26.
2. The State contends in its brief that renumbered Count 4 (original Count 5), Kidnapping in violation of
R.C. 2905.01(A)(3), was the offense that merged. However, this does not appear consistent with the court’s
statements at the sentencing hearing and in its sentencing entry. While the court renumbered the counts
one through five for the jury when original Count 4 was dismissed, in its sentencing entry, the chart of
offenses for which Abdullah was convicted retained the original numbers. The court stated at the hearing
and in the entry that “Counts 5 and 6 merge” and that the State elected to proceed on Count 5. It could
only have been referencing the counts as originally numbered, since Count 6 no longer existed when the
counts were renumbered. It further mentioned that for Count 5, inflicting serious physical harm was an
element, which relates to R.C. 2905.01(A)(3), original Count 5. Thus, although the State addresses only
the weight and sufficiency of the evidence as to original Count 6, we will address original Count 5,
Kidnapping for the purpose of inflicting harm, as this is consistent with the merger as stated by the trial
court.
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{¶29} To convict Abdullah of Rape, the State was required to prove, beyond a
reasonable doubt, that he did “engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force.” R.C.
2907.02(A)(2). Sexual conduct is defined as “vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;
and, without privilege to do so, the insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the vaginal or anal opening of another.”
R.C. 2907.01(A).
{¶30} As to sufficiency, Abdullah argues that there was “little to no evidence” to
support a finding that he penetrated the victim. Regarding manifest weight, he argues
that there was no physical evidence to corroborate the victim’s testimony and she lacked
credibility.
{¶31} We emphasize that there was evidence of penetration through the victim’s
testimony that he penetrated her with his fingers. Nurse Stoehr and Patrolman DiDona
also testified that the victim told them this occurred. This evidence supports the element
of sexual conduct as defined above and is sufficient to support a Rape conviction.
{¶32} As to the weight of the evidence, the lack of physical evidence does not
preclude a conviction where there is testimony demonstrating sexual conduct. State v.
Henderson, 11th Dist. Trumbull No. 2001-T-0047, 2002-Ohio-6715, ¶ 36 (the State may
prove that sexual conduct occurred “through either physical evidence and/or witness
testimony”); State v. Waskelis, 11th Dist. Portage No. 2011-P-0035, 2012-Ohio-3030, ¶
46, citing In re N.Z., 11th Dist. Lake Nos. 2010-L-023, et al., 2011-Ohio-6845, ¶
79 (“no physical evidence is required to corroborate a victim’s testimony in a rape case,
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and the sole testimony of the victim can support a conviction”). It is not unexpected that
there would be no sign of physical injury since the victim did not testify as to any injury
that occurred from the sexual conduct. Additionally, the lack of Abdullah’s DNA in T.W.’s
vaginal area was explained by Dr. Zavarella: “there was far too much female DNA to ever
elucidate or detect a male DNA profile,” and, due to the high concentration of female cells
in that area of the body, “the small amount of DNA left behind by any kind of digital
penetration is typically difficult to ever get * * * a DNA profile using standard means.”
{¶33} Further, as to the issues of credibility raised by Abdullah, particularly that
the victim lied about being abducted at gunpoint, we do not find these issues rise to the
level of removing the decision of credibility from the hands of the jurors. “Since the jury
is in the best position to assess credibility, we generally decline to second guess its
credibility determinations.” State v. Tiggett, 11th Dist. Trumbull No. 2018-T-0036, 2019-
Ohio-1715, ¶ 34. The fact that T.W. lied about being taken at gunpoint does not
necessarily mean the jury should or would find she was untruthful about the other parts
of her story, particularly where she provided a credible explanation for her dishonesty,
i.e., that she did not want her parents to know she snuck out, and where she immediately
told the truth when confronted. Other minor alleged inconsistencies in her story, such as
whether she felt safe when entering the hotel, did not bear on the conduct that later
occurred in the hotel room which gave rise to the convictions or render the convictions
unsupported by the weight of the evidence. See State v. Carswell, 6th Dist. Sandusky
No. S-20-001, 2021-Ohio-3379, ¶ 51 (where cross-examination “arguably revealed some
inconsistencies in [a witness’] testimony, the jury's resolution of factual and credibility
disputes in this case against appellant does not equate to a finding that the jury’s verdict
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was against the manifest weight of the evidence”). Her statements regarding whether her
underwear were on or off may have been inconsistent immediately after the event when
she was in a state of distress but she gave clear testimony that Abdullah reached into the
top of her underwear and the jurors were in the best position to evaluate whether this
detail impacted her credibility. Furthermore, the Assault and Kidnapping convictions were
corroborated by other evidence, such as her extensive physical injuries and the state of
the hotel room where the incident occurred, buttressing her credibility.
{¶34} In relation to Felonious Assault, Abdullah argues that there was insufficient
evidence to show he knowingly caused physical harm since biting and use of the
boxcutter occurred only after he was attacked by the victim and that the victim’s claims of
physical assault were not substantiated by the physical injuries. He reiterates these
arguments as to the manifest weight.
{¶35} To convict Abdullah of Felonious Assault for Count Three, the State was
required to prove that he knowingly “[c]ause[d] or attempt[ed] to cause physical harm to
another * * * by means of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(2).
{¶36} As to Abdullah’s claim that he bit the victim and/or cut her with the box
cutter only after he was attacked by her, this is rebutted by T.W.’s testimony. She testified
to using the box cutter only after she had been punched and attacked by Abdullah,
utilizing it to defend herself from his physical assault. She testified specifically that she
was bitten after she tried to escape the room. Under this version, while T.W. tried to exit
the room, Abdullah continued to physically harm her, which would rebut allegations that
his actions were justified to defend himself. While Abdullah’s statement to police
reiterated that he physically assaulted T.W. only to defend himself, this version of events
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contained inconsistencies, including the presence of blood on the bed although he stated
no assault occurred there, his failure to recall biting T.W. although she had bite marks
with his DNA on her body, and his fleeing of the scene and failure to seek immediate
medical treatment although he claims he acted in self-defense. “The choice between
credible witnesses and their conflicting testimony rests solely with the finder of fact and
an appellate court may not substitute its own judgment for that of the finder of fact.” State
v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). If the victim’s version of events
was believed, which was the case here, all of the elements of Felonious Assault were
supported by the evidence, as she testified not only to physical assault through punching
and bites, but also that Abdullah cut her with the box cutter, which caused wounds
requiring stitches.
{¶37} Abdullah’s argument that T.W.’s mouth and nose did not bleed despite her
claims that she was punched in the face, advanced to prove her untruthfulness, is
unavailing. Regardless of whether her face bled, there can be no legitimate dispute that
she suffered injuries, as she had various cuts and bruises all over her body and witnesses
indicated she had facial swelling.
{¶38} Finally, to convict Abdullah of Kidnapping, the State was required to prove
that he, “by force, threat, or deception, * * * remove[d] another from the place where the
other person is found or restrain[ed] the liberty of the other person * * * [t]o terrorize, or to
inflict serious physical harm on the victim.” R.C. 2905.01(A)(3).
{¶39} Abdullah argues that there was a lack of evidence to demonstrate that he
“acted with purpose to terrorize or inflict serious physical harm on T.W.” as she admitted
she went to the hotel room with him voluntarily.
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{¶40} In the present matter, while it is accurate that there is evidence showing
T.W. went to the hotel voluntarily, it also demonstrates he was deceptive in stating he
was going there to pick something up rather than to make inappropriate sexual advances.
Nonetheless, even presuming T.W. was in the room voluntarily, kidnapping can occur not
only by removing the victim to a certain place but also by restraining her liberty within that
place. Here, the evidence showed that T.W. attempted to leave the room but was
prevented from doing so by Abdullah through physical force, which is sufficient to support
the restraint of liberty element. See State v. Purvis, 9th Dist. Medina No. 05CA0053-M,
2006-Ohio-1555, ¶ 22-23 (preventing the victim from leaving the home constituted
kidnapping where the defendant restrained and beat her as part of a course of conduct).
Further, the evidence showed that, after preventing her from leaving, Abdullah continued
to assault her, demonstrating that she was restrained for the purpose of assaulting and
terrorizing her. As to issues raised regarding the victim’s credibility, this has been fully
addressed above.
{¶41} As noted above, the trial court’s sentencing entry indicates that the
conviction for Kidnapping for the purpose of sexual activity was merged, and thus,
consideration of this issue is not required. Nonetheless, we briefly observe that similar
arguments apply to the weight of the evidence here. The testimony, if found credible,
supported a contention that sexual activity occurred and that T.W. was restrained and
prevented from leaving due to Abdullah’s intent to attempt sexual activity with her. See
R.C. 2905.01(A)(4) (Kidnapping occurs when the liberty of a victim is restrained “[t]o
engage in sexual activity * * * with the victim against the victim’s will”).
{¶42} The first and second assignments of error are without merit.
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{¶43} In his third assignment of error, Abdullah argues that the imposition of
consecutive sentences was not supported by the record, emphasizing that he does not
have a history of committing sex-oriented offenses and the harm to the victim was not so
great that it prevented her from lying in relation to the allegations.
{¶44} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence * * * given by the sentencing court.” R.C.
2953.08(G)(2). “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * *
* [t]hat the record does not support the sentencing court’s findings under division * * *
(C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise contrary to law.” R.C.
2953.08(G)(2)(a) and (b).
{¶45} “Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1) that
consecutive sentences are ‘necessary to protect the public from future crime or to punish
the offender’; (2) that consecutive sentences are ‘not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public’; (3) ‘and * *
* also’ that one of the circumstances described in subdivision (a) to (c) is present.”
(Citation omitted.) State v. Claar, 11th Dist. Portage No. 2019-P-0091, 2020-Ohio-1330,
¶ 11. The applicable factors here, subdivisions (b) and (c), require findings that “[a]t least
two of the multiple offenses were committed as part of one or more courses of conduct”
which caused harm so great a single prison term would not reflect the seriousness of the
conduct or “[t]he offender’s history of criminal conduct demonstrates that consecutive
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sentences are necessary to protect the public from future crime by the offender.” To
impose consecutive terms, the court “is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶46} In relation to findings necessary to order consecutive sentences, this court
has explained that “the court of appeals * * * must clearly and convincingly find that the
record does not support the court’s findings,” a standard characterized as “extremely
deferential.” (Citation omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-
Ohio-8221, ¶ 23, quoting State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, et
al., 2013-Ohio-5759, ¶ 31; State v. Forsell, 11th Dist. Portage Nos. 2019-P-0116, et al.,
2020-Ohio-5381, ¶ 15. “[A]s long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29.
{¶47} As to the findings that consecutive sentences are necessary to protect the
public from future crime, Abdullah argues that he does not have a history of this type of
crime or an extensive criminal record. However, the Presentence Investigation Report
indicates that he has several convictions for misdemeanor theft offenses and multiple
felony convictions for Forgery, Attempted Aggravated Assault, Grand Theft, and Having
Weapons While Under Disability. His repeated criminal activity warrants a finding that
this sentence was necessary to protect the public from future crime. Further, the PSI
indicates that Abdullah had other pending Rape and Kidnapping charges in Cuyahoga
County at the time of sentencing.
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{¶48} The cases cited by Abdullah, wherein consecutive sentences were vacated,
are factually distinguishable. The defendant in State v. Hawley, 2020-Ohio-1270, 153
N.E.3d 714 (8th Dist.), had only misdemeanor convictions and had not been charged with
any sex offenses while the defendant in State v. Regalo, 8th Dist. Cuyahoga No. 108430,
2020-Ohio-917, had no criminal record at all. Here, the defendant’s history of felony
offenses as well as charges for sex offenses differentiates this case from the foregoing
and justified the sentence.
{¶49} Abdullah also argues that the finding regarding the level of harm caused
was not supported by the record, primarily emphasizing that T.W. lied about being held
at gunpoint, which demonstrated that the harm was “not so severe.” It is unclear how the
victim’s dishonesty about this fact, which she explained was due to her fear of getting in
trouble for sneaking out, demonstrated that the harm from the crimes was not severe.
She suffered a variety of physical injuries, including two bites and serious cuts on her
body as well as a swollen and bruised face. Testimony from several witnesses
demonstrated the distress she was in after the incident and her statement at the
sentencing hearing indicated she was “still hurt about what happened” and that Abdullah
“put [her] through a lot.” The conduct of raping her, threatening to kill her, and repeatedly
hitting her while disallowing her to leave the hotel room was serious and we cannot clearly
and convincingly determine this finding was unsupported by the record.
{¶50} The third assignment of error is without merit.
{¶51} In his fourth through eighth assignments of error, Abdullah challenges the
Reagan Tokes Act, arguing that indeterminate sentences raise constitutional concerns.
{¶52} The Reagan Tokes Act requires the sentencing court to order a minimum
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prison term for sentences under R.C. 2929.14(A)(1)(a) or (2)(a) and a maximum prison
term as determined by R.C. 2929.144(B). The Act includes a presumption that an
offender shall be released on the expiration of his minimum term or earned early release
date, but the Department of Rehabilitation and Corrections “may rebut the * *
* presumption if it determines at a hearing that certain statutorily enumerated factors
apply.” State v. Ferguson, 11th Dist. Lake No. 2020-L-031, 2020-Ohio-5578, ¶ 8. “If the
DRC rebuts the presumption, it may maintain the offender’s incarceration after the
expiration of the minimum prison term or presumptive earned early release date for a
reasonable period of time, which ‘shall not exceed the offender’s maximum prison term.’”
Id., citing R.C. 2967.271(D)(1).
{¶53} As to all challenges raised by Abdullah, we observe that “we are to presume
that [a] state statute is constitutional, and the burden is on the person challenging the
statute to prove otherwise beyond a reasonable doubt.” State v. Lowe, 112 Ohio St.3d
507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17.
{¶54} In his fourth assignment of error, Abdullah argues that the constitutional
issues are ripe for review.
{¶55} In State v. Maddox, __ Ohio St.3d __, 2022-Ohio-764, __ N.E. 3d __, the
Ohio Supreme Court recently held that the Reagan Tokes Law is ripe for review. In
Maddox, the Court held that a “challenge to the statute’s constitutionality is ripe for review
on direct appeal because (1) [appellant] has been sentenced under the statute, (2) no
further factual development is necessary for a court to analyze the challenge, and (3)
delaying review would result in duplicative litigation forcing [defendants] to endure
potential violations of their constitutional rights in order to challenge the law.” Id. at ¶ 11.
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Therefore, we hold that Abdullah’s challenge to the constitutionality of the Reagan Tokes
Law is ripe for review and will proceed to consideration of the merits of the remaining
assigned errors.
{¶56} Abdullah’s fourth assignment of error is with merit to the extent discussed
above.
{¶57} In Abdullah’s fifth assignment of error, he argues that R.C. 2967.271(C) is
void for vagueness and does not provide him with a sufficient understanding of what
conduct could result in the indeterminate portion of his sentence being invoked, citing in
support of his argument State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544 (8th Dist.),
which was vacated by the Eighth District sitting en banc in State v. Delvallie, 2022-Ohio-
470, 185 N.E.3d 536 (8th Dist.) (upholding the constitutionality of the Reagan Tokes Law).
{¶58} “‘[A] law will survive a void-for-vagueness challenge if it is written so that a
person of common intelligence is able to ascertain what conduct is prohibited, and if the
law provides sufficient standards to prevent arbitrary and discriminatory enforcement.’”
(Citations omitted.) Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633,
¶ 16. A tripartite analysis must be conducted to address a void for vagueness challenge:
the statute must provide “adequate notice and fair warning to persons of ordinary
intelligence so that they can conform their conduct to the dictates of the statute;” it cannot
permit arbitrary and discriminatory enforcement; and it cannot unreasonably hinder
fundamental constitutional freedoms. State v. Collier, 62 Ohio St.3d 267, 270, 581 N.E.2d
552 (1991). See also Perez v. Cleveland, 78 Ohio St.3d 376, 378, 678 N.E.2d 537 (1997)
(“when a statute is challenged under the due process doctrine of vagueness, a court must
determine whether the enactment (1) provides sufficient notice of its proscriptions and (2)
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contains reasonably clear guidelines to prevent official arbitrariness or discrimination in
its enforcement”).
{¶59} In State v. Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000), the Ohio
Supreme Court found a sex offender classification statute was not vague where it did not
prohibit specific conduct but established remedial registration and notification, since such
remedial measures “require less specificity to satisfy a void-for-vagueness challenge than
do criminal statutes.” Id. at 533. Applying this analysis, the Fifth District found that
postrelease control enactments were also not unconstitutionally vague, emphasizing that
they did not prohibit specific conduct. State v. Hopkins, 5th Dist. Stark Nos.
2000CA00053 and 2000CA000054, 2000 WL 1751286, *4 (Nov. 27, 2000).
{¶60} The foregoing is applicable to the Reagan Tokes Law. R.C. 2967.271(B)
establishes a rebuttable presumption that the offender shall be released upon the
expiration of the minimum prison term or early release date, whichever is earlier. Division
(C) provides a detailed description of means by which that presumption may be
overcome, including commission of institutional rule infractions, the offender’s security
level classification, and when the behavior while incarcerated demonstrates a continued
threat to society. As in Williams, R.C. 2967.271 does not prohibit any specific conduct.
Therefore, the statute requires less specificity than a typical criminal enactment.
{¶61} Further, Abdullah contends that Reagan Tokes is vague in that he is
unaware of what constitutes an “unprosecuted” violation or a lack of rehabilitation that
justifies rebutting the presumption of release. As he raises a similar argument in relation
to due process in the eighth assignment of error, this will be addressed below.
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{¶62} We observe, however, that, as the en banc panel in Delvallie explained, the
Reagan Tokes Law does not create a new prison rule infraction system; Ohio Adm.Code
5120-0-08 sets forth “an inmate’s rights and the procedures the Rules Infraction Board
are to follow in imposing any and all institutional infractions upon the inmates. See, e.g.,
Oko v. Lake Erie Corr. Inst., 11th Dist. Ashtabula No. 2010-A-0002, 2010-Ohio-2821,
2010 WL 2499702, ¶ 3 (overruling a constitutional challenge to the decision by the Rules
Infraction Board).” Delvallie, 2022-Ohio-470, at ¶ 86. An as applied challenge of an
infraction received under that Board would have to be raised through a separate writ upon
imposition of the infraction. Therefore, any challenges to the vagueness of the
enforcement of the Rules Infraction Board must be pursued through a writ of mandamus.
Id. at ¶ 87.
{¶63} Based on the foregoing, we conclude that the provisions in R.C. 2967.271
are not vague.
{¶64} The fifth assignment of error is without merit.
{¶65} In Abdullah’s sixth assignment of error, he argues that the Reagan Tokes
Law violates the separation of powers doctrine by giving the executive branch sentencing
authority and discretion.
{¶66} This argument has been consistently rejected by courts throughout this
state. State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36; State v.
Hacker, 2020-Ohio-5048, 161 N.E.3d 112, ¶ 22 (3d Dist.); State v. Bontrager, 2022-Ohio-
1367, 188 N.E.3d 607, ¶ 44 (4th Dist.); State v. Ratliff, 2022-Ohio-1372, 190 N.E.3d 684,
¶ 56 (5th Dist.); State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682, ¶ 7 (6th Dist.);
Delvallie, 2022-Ohio-470, at ¶ 38.
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{¶67} Abdullah cites the application of State ex rel. Bray v. Russell, 89 Ohio St.3d
132, 729 N.E.2d 359 (2000), in support of the argument that the Reagan Tokes Law
violates the separation of powers because it vests judicial power in the executive branch.
Bray addressed the constitutionality of R.C. 2967.11, which allowed the parole board to
punish a rule violation committed by the prisoner by extending the stated prison term. In
Bray, the Ohio Supreme Court held that R.C. 2967.11 was unconstitutional because the
parole board “act[ed] as judge, prosecutor, and jury” and its enactment intruded “well
beyond the defined role of the executive branch as set forth in our Constitution.” Id. at
135.
{¶68} Bray is inapplicable to the Reagan Tokes Act. R.C. 2967.11 authorized the
parole board to impose an additional prison term beyond the one the trial court imposed.
Under Reagan Tokes, the executive branch cannot impose additional time beyond the
maximum sentence imposed by the trial court at the time of sentencing. This situation is
more similar to that in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000), where
the court found Ohio’s postrelease control statute, R.C. 2967.27, to be constitutional since
the postrelease control terms are made part of the sentence imposed by the court and
the parole board’s discretionary power to impose postrelease control sanctions did not
impinge on the judiciary’s mandate to impose sentence. Id. at 512. In Reagan Tokes
sentences, the court imposes both presumptive minimum and possible maximum prison
terms in its sentence. Thereafter, the ODRC determines whether the offender’s conduct
warrants more than the minimum imposed but cannot exceed the judiciary’s maximum
imposed sentence. This procedure has been characterized as “not meaningfully distinct
from Ohio’s current parole system, in which offenders may be kept in prison following
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service of the minimum term for parole eligibility” and as “similar, if not identical, to the
executive branch’s authority to release offenders from sentences under Ohio’s parole
system for indefinite life sentences.” Delvallie, 2022-Ohio-470, at ¶ 24-25. Therefore,
Bray does “not compel the conclusion that the Reagan Tokes Law violates the separation
of powers doctrine.” Barnes at ¶ 36.
{¶69} The sixth assignment of error is without merit.
{¶70} In Abdullah’s seventh assignment of error, he argues that the Reagan
Tokes Law violates his right to a trial by jury since it allows the DRC to engage in fact-
finding analysis, which is the role of jurors, citing the vacated opinion in Delvallie.
{¶71} In the en banc Delvallie opinion, 2022-Ohio-470, the Eighth District found
that R.C. 2967.271(C) and (D) do not violate the right to a jury trial. It rejected its prior
determination and found that, while Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), prevents the trial court from imposing a sentence in excess
of the statutory maximum without the factual circumstances justifying the enhanced
sentence first being found by a jury beyond a reasonable doubt, R.C. 2967.271 statutorily
requires a court “to impose the minimum and maximum terms upon the offender being
found guilty of the qualifying felony offense – similar to an offender being sentenced to
life with the possibility of parole under the indefinite life sentencing structure.” Id. at ¶ 40.
Reagan Tokes does not authorize “a sentencing court, or the ODRC for that matter, to
impose a sentence beyond the maximum set forth in the sentencing statutes or to elevate
the minimum term beyond the ranges set forth in R.C. 2929.14(A)(1)(a) and (A)(2)(a).”
Id. at ¶ 41. Further, it emphasized that under Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711,
172 L.Ed.2d 517 (2009), a state court’s imposition of consecutive sentences did not
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violate the right to a jury trial because juries historically “played no role in” the decision to
impose consecutive or concurrent sentences and that “specification of the regime for
administering multiple sentences has long been considered the prerogative of state
legislatures.” Id. at ¶ 42, citing Ice at 168. Under Reagan Tokes, the court cannot impose
a term greater than the maximum as prohibited under Apprendi nor does it impose a
sentence longer than the minimum term prescribed by statute based on findings of facts
in addition to those considered by the jury.
{¶72} The seventh assignment of error is without merit.
{¶73} In his eighth assignment of error, Abdullah argues that Reagan Tokes
violates his right to due process. He contends that it violates his right to a fair trial as the
statute does not delineate his rights at the hearing and that there is a lack of proper notice
of what type of conduct would rebut the presumption of release.
{¶74} As noted above, the rights in the present matter have been compared to
those involving parole. The Ohio Supreme Court has held that a right to parole
consideration does not create a “liberty interest sufficient to establish a right to procedural
due process.” State ex rel. Blake v. Shoemaker, 4 Ohio St.3d 42, 446 N.E.2d 169 (1983).
“However, if state law entitles an inmate to release on parole, that entitlement is a liberty
interest that is not to be taken away without due process.” Ratliff, 2022-Ohio-1372, at ¶
20.
{¶75} While no Ohio appellate district has held that R.C. 2967.271(C) violates due
process, some districts have reached different conclusions regarding whether requiring a
prisoner to remain in prison beyond the rebuttable presumption of release is analogous
to parole eligibility or parole revocation proceedings involving a termination of liberty
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which would require an “informal hearing” to verify facts supporting revocation. Morrissey
v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
{¶76} The Twelfth and Sixth Districts have concluded that hearings conducted
under the Reagan Tokes Law are analogous to parole revocation proceedings. In State
v. Stenson, 190 N.E.3d 1240, 2022-Ohio-2072 (6th Dist.), the court found that “the
Reagan Tokes Law creates a liberty interest more akin to probation revocation decisions,”
emphasizing that a parole release/eligibility is more discretionary and subjective than
parole revocation. Id. at ¶ 31. See also State v. Guyton, 12th Dist. Butler No. CA2019-
12-203, 2020-Ohio-3837, ¶ 17 (“[t]he hearings conducted by the ODRC under R.C.
2967.271(C) are analogous to parole revocation proceedings, probation revocation
proceedings, and postrelease control violation hearings”).
{¶77} In contrast, the Second District has concluded that “requiring a defendant
to remain in prison beyond the presumptive minimum term is akin to the decision to grant
or deny parole” since “if [the offender] commits rule infractions or crimes while in prison,
he may be required to serve the entire sentence already imposed by the trial court.” State
v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.
{¶78} We find it premature to reach a conclusion as to whether parole revocation
or parole eligibility procedures most closely resemble the present matter. Abdullah does
not raise a challenge to the statute as applied; since he has not yet been subject to a
sentence beyond the minimum term, his challenge necessarily is facial in nature. See
Stenson at ¶ 31 (the “ODRC has not sought to extend [appellant’s] term beyond the
presumptive minimum sentence * * * [and his] challenge to the Reagan Tokes Law is
necessarily a facial challenge”). “A facial challenge to a statute is the most difficult to
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bring successfully because the challenger must establish that there exists no set of
circumstances under which the statute would be valid.” Harrold v. Collier, 107 Ohio St.3d
44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. “The fact that a statute might operate
unconstitutionally under some plausible set of circumstances is insufficient to render it
wholly invalid.” Id. “If a statute is unconstitutional on its face, the statute may not be
enforced under any circumstances.” Wymslo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-
Ohio-2187, 970 N.E.2d 898, ¶ 21.
{¶79} It has been held that “the Reagan Tokes Law may not be found to be
unconstitutional, on its face, as violating due process merely because the specific
procedures for invoking an additional period of incarceration are not set forth in the Law
itself.” State v. Williams, 6th Dist. Lucas No. L-21-1152, 2022-Ohio-2812, ¶ 22. “[T]he
legislature is not required to codify all rules and procedures under the statutory provision
but instead can defer to the executive agency’s establishment of its own rules or
procedures to safeguard constitutional concerns, which must be challenged through the
appropriate mechanisms.” Delvallie, 2022-Ohio-470, at ¶ 59. We do not find that, as a
facial challenge, there are no circumstances under which the statute can be enforced.
Stenson at ¶ 33 (“given that this is a facial challenge to the Law, it cannot be said at this
juncture that the Law ‘cannot be applied constitutionally in any circumstances’”).
{¶80} We find that Abdullah’s arguments relating to R.C. 2967.271(C) and the
procedural safeguards of the hearing to rebut his presumptive release constitute an as
applied challenge which is not yet ripe for review, because those aspects of the statute
have not been applied to him.
{¶81} Further, as to Abdullah’s arguments that he does not have notice of the type
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of inmate behavior that results in rebutting the presumption of release, we disagree.
There are various procedures set forth in the Ohio Administrative Code for inmate
conduct. The rules for inmate conduct are set forth in Ohio Adm. Code 5120-9-06 and
the disciplinary procedures for infractions are provided in Adm. Code 5120-9-08. The
procedures for placing an inmate in a restrictive housing assignment are set forth in Ohio
Adm. Code. 5120-9-10. These procedures provide notice and an opportunity to be heard
and demonstrate under what circumstances a violation may occur which could ultimately
be used to rebut the presumption of release. Accordingly, we determine that an inmate
is provided with advance notice under the Revised Code and the Ohio Administrative
Code of the behavior and conduct that may contribute to or could result in the ODRC
rebutting the presumption of release.
{¶82} The eighth assignment of error is without merit.
{¶83} For the foregoing reasons, Abdullah’s convictions and sentence for Rape,
Felonious Assault, and Kidnapping, in the Lake County Court of Common Pleas, are
affirmed. Costs to be taxed against appellant.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
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