State v. Mallory

[Cite as State v. Mallory, 2022-Ohio-3667.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111115
v. :
DEVON L. MALLORY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: October 13, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652296-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anna Faraglia, Assistant Prosecuting
Attorney, for appellee.
Buckeye Law Office and P. Andrew Baker, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Devon L. Mallory (“Mallory”), appeals from his
convictions and sentence following a bifurcated trial. He raises the following
assignments of error for review:
1. The trial court erred when it convicted defendant-appellant for
felony domestic violence when the conviction was not supported by
sufficient evidence and must be modified to a misdemeanor domestic
violence conviction.
2. The trial court erred when it convicted defendant-appellant of child
endangering under R.C. 2929.22(A) as the conviction was not
supported by sufficient evidence.
3. The trial court erred when it improperly convicted defendant-
appellant of involuntary manslaughter when a conviction was not
supported by sufficient evidence.
4. The trial court erred when it convicted defendant-appellant under
R.C. 2929.22(A), domestic violence as a felony, and involuntary
manslaughter, when the facts were against the manifest weight of the
evidence.
5. The trial court erred when it improperly convicted defendant-
appellant on Counts 5, 6, and 7 as he did not receive effective assistance
of counsel.
6. The trial court erred when it improperly imposed postrelease control
and this term must be modified.
7. The trial court erred when it imposed a sentence pursuant to the
Reagan Tokes Law.
After careful review of the record and relevant case law, we affirm in
part, reverse in part, and remand for further proceedings before the trial court.
I. Procedural and Factual History
In September 2020, Mallory was named in a seven-count indictment,
charging him with aggravated murder in violation of R.C. 2903.01(C) (Count 1);
murder in violation of R.C. 2903.02(B) (Count 2); felonious assault in violation of
R.C. 2903.11(A)(1), with a specification pursuant to R.C. 2941.1426(A) alleging that
the victim suffered permanent disabling harm as a result of the offense and the
victim was under ten years of age at the time of the offense (Count 3); endangering
children in violation of R.C. 2919.22(B)(1), with a furthermore specification that the
violation resulted in serious physical harm to the victim (Count 4); involuntary
manslaughter in violation of R.C. 2903.04(A) (Count 5); endangering children in
violation of R.C. 2929.22(A), with a furthermore specification that the violation
resulted in serious physical harm to the victim (Count 6); and domestic violence in
violation of R.C. 2919.25(A), with a furthermore specification that the offender
previously pleaded guilty to or has been convicted of assault against a family or
household member (Count 7). The indictment stemmed from allegations that
Mallory caused the death of the minor victim, S.E. (d.o.b. 01/08/2019), on July 25,
2020.
Mallory pleaded not guilty to the indictment, and the matter proceeded
to a jury trial on Counts 1-6. Mallory voluntarily waived his right to a jury trial on
Count 7 and elected to have the domestic violence charge tried before the bench. As
pertinent to this appeal, the following facts were adduced at trial.
On July 19, 2020, Christina Rosa (“Mother”) moved into the home of
her then boyfriend, Mallory, with her two minor daughters, S.E. and Su.E. Mother
and her daughters lived in the home with Mallory, Mallory’s three-year old son,
J.M., and Mallory’s teenaged brother, T.W. Mother testified that S.E. slept on a
toddler bed that was located in the master bedroom where Mother and Mallory also
slept. Su.E. slept in a nearby bedroom that also served as the children’s toy room.
On the morning of July 25, 2020, Mother woke up early to get ready for
work. As part of her morning routine, Mother changed S.E.’s diaper, gave her a kiss,
and tucked her back into bed. Mother then left for work at approximately 7:00 a.m.
Throughout that day, Mother called Mallory on several occasions to see how Mallory
and the children were doing. Mother testified that she last called Mallory at
approximately 4:50 p.m. Mother summarized this conversation with Mallory as
follows:
I asked him like, hey, how’s the kids, do you or the kids need anything
before I clock out of work? He told me, no, we don’t need nothing, and
the conversation kept going on until like me having to clock out. It
lasted more than just a couple of minutes.
He did tell me like, hey, I have a question for you. The odd question
was does [S.E.] hum in her sleep, and I told him what do you mean by
humming in her sleep? That doesn’t make sense to me. He said, well,
she took a nap, she has been taking a nap for a while. And I’m like is
she looking red in her face, and I’m like normally because she does
cover her face. You should take [the blanket] off. She will be — like the
redness will come down. He told me he did take it off, but she wasn’t
responding.
***
After a couple of times of me telling him to grab her, because you
grabbing a child will wake her up or just call her name. She wasn’t
responding. I told him call 911, just hang up on me, and I ran out of
work and was on my way.
(Tr. 411-412.)
Mallory called 911 at approximately 5:23 p.m. The eight-minute 911 call
was played for the jury in its entirety. (Tr. 370.) During the 911 call, Mallory
informed the 911 operator that he learned from his son that S.E. fell on a toy while
she was playing with the other children. (Tr. 372-373.)
Emergency medical services arrived at the home at approximately 5:31
p.m. and discovered S.E. unresponsive in an upstairs bedroom. Matthew Kalas
(“Kalas”), a firefighter and paramedic employed by the city of Euclid, testified that
S.E. had a “golf ball size hematoma to the left side of her forehead and a smaller
hematoma to the right side as well.” (Tr. 242.) According to Kalas, the adult male
present at the scene expressed that S.E. was “playing and tripped on a toy and hit
her forehead on the floor.” (Tr. 242.) Kalas further testified that another “EMS
member on the scene was told by an additional child that [S.E.] fell off the bed and
hit her head.” (Tr. 242.)
Patrolman Samuel J. Thirion (“Officer Thirion”) of the city of Euclid
Police Department testified that he responded to Mallory’s home after receiving a
dispatch for “an 18-month-old female who was breathing and unresponsive.” (Tr.
266.) Officer Thirion testified that when he arrived at the scene, S.E. was quickly
removed from the home by the EMS first responders for further emergency care.
Officer Thirion stated that he remained at the scene and separately spoke with
Mallory, J.M., and Su.E. According to Officer Thirion, Mallory reported that S.E.
had tripped over a Nerf gun and hit her head on the floor. Officer Thirion testified
that Mallory was “just very flat, not very emotional.” (Tr. 273.) In turn, J.M. and
Su.E. stated that S.E. “fell off the bed.” (Tr. 274.)
S.E. was transported to University Hospitals Rainbow Babies and
Children’s Hospital at approximately 5:50 p.m. Once at the hospital, doctors
determined that S.E. sustained a significant brain bleed, leading to a subdural
hematoma causing a midline shift of the brain. Due to her extensive injuries, Dr.
Krystal Tomei (“Dr. Tomei”) attempted a hemicraniectomy to relieve pressure on
S.E.’s brain. The procedure required surgeons to remove a portion of S.E.’s skull to
allow the brain room to swell and to evacuate the blood clot. Dr. Tomei confirmed
that time was of the essence because “as time goes by, the situation becomes worse
and worse unless you can hope to relieve the pressure.” (Tr. 619.) Despite the
emergency efforts of the surgeons, however, S.E. succumbed to her injuries and died
on July 31, 2020.
Mother testified that while S.E. was being treated in the hospital, she
contacted Mallory in an effort to determine the cause of S.E.’s injuries. According
to Mother, Mallory stated
that [S.E.] fell off the bed jumping — when [Su.E.] and [J.M.] were
playing on the bed, [S.E.] jumped off the bed and hit her head on the
Nerf gun.
(Tr. 415.) Subsequently, however, Mother began to press Mallory for the truth
because “it wasn’t making sense * * * especially when the doctors tell you whatever
the reason that was given at the beginning, that cannot cause her injuries, so I’m
confused.” (Tr. 421.) Mother testified that Mallory initially maintained that S.E.
“fell off the bed,” but later stated that “she fell in the shower.” (Tr. 421.) Following
this conversation, Mother blocked Mallory’s phone number and did not engage in
further conversations with him.
Mallory’s younger brother, T.W. testified on behalf of the state. He
testified that he was in the home with Mallory and the young children until he left
to play basketball at approximately 4:00 p.m. T.W. stated that at the time he went
upstairs to tell Mallory that he was leaving, S.E. was with Mallory and was “just
playing on the bed laughing.” (Tr. 346.) When T.W. came home at approximately
5:30 p.m., he learned that S.E. had been injured. T.W. testified that he asked
Mallory what had happened and Mallory responded “that [S.E.] — they was all
upstairs playing on the bed and she hit her head on top of a Nerf gun.” (Tr. 349.)
Detective Jennifer Kroczak (“Det. Kroczak”) of the city of Euclid Police
Department, testified that she was assigned to investigate the circumstances of S.E.’s
injuries. In the course of her investigation, Det. Kroczak reviewed Mallory’s 911 call,
took photographs of the pertinent rooms inside Mallory’s home, collected the toy
that was alleged to have caused S.E.’s injuries, obtained written statements from the
firefighters and paramedics who provided emergency care inside Mallory’s home,
spoke with various members of the medical staff at University Hospitals, and
conducted multiple interviews with Mallory and Mother.
Det. Kroczak testified that her initial conversations with Mother and
Mallory occurred while S.E. was receiving medical care. During these conversations,
Mother expressed that she was at her place of employment at the time S.E. was
injured but had communicated with Mallory on several occasions throughout the
day. In turn, Mallory confirmed that he was in the home at the time S.E. was injured.
Det. Kroczak testified, however, that Mallory provided inconsistent statements
concerning the cause of S.E.’s injuries. She explained as follows:
There were versions provided that the child slipped and fell on the toy
or that she fell off the bed and hit the toy. The differences were not
major, but I was not getting the same consistent version repeatedly.
(Tr. 633.)
On July 27, 2020, Mallory was voluntarily transported to the police
station to make a written statement. In the statement, Mallory indicated that he
heard a boom at approximately 4:30 or 4:45 p.m. and then discovered S.E. on the
floor. Once the statement was completed, Mallory was free to leave the station.
On July 28, 2020, Det. Kroczak spoke with S.E.’s treating physician,
Dr. Lolita McDavid, who opined that the magnitude of S.E.’s brain injuries were “not
consistent with the explanation provided for injury.” (Tr. 644.) In light of this
information, Det. Kroczak accompanied Jessica Lecastre (“Lecastre”), a special
investigator employed by the Cuyahoga County Division of Children and Family
Services, to Mallory’s home for additional questioning on July 29, 2020. Lecastre
testified that the purpose of the home visit was to follow up on a referral made to the
agency concerning a near fatality of a child.
According to Lecastre, Mallory reported that he allowed S.E. to play
with older children in their playroom at approximately 4:45 p.m. Mallory later
heard a “bump in the room.” When he went into the playroom to check on the
children, he picked S.E. up and noticed that she had a mark on her head. Mallory
then took S.E. to his bedroom and placed her on his bed. When Mallory came back
into the bedroom after using the bathroom, he found S.E. “unresponsive laying
down with a blanket over her face.” (Tr. 465.) Mallory informed Lecastre that the
other children told him that S.E. had “fell on a Nerf gun off of the bed.” (Tr. 465.)
Det. Kroczak testified that while she was in Mallory’s home on July 29,
2020, she was permitted to take additional photographs of the children’s bedrooms.
In pertinent part, Det. Kroczak provided context for the photographs she took of the
bed located inside the children’s playroom “where the fall was alleged to have
occurred from one of [Mallory]’s versions of the story.” (Tr. 650.) Det. Kroczak
testified that the distance between the top of the mattress and the ground was no
higher than her knee.
Det. Kroczak testified that the demeanor of her investigation shifted
once she was notified of S.E.’s death on July 30, 2020. Det. Kroczak testified that
once the manner and cause of death was confirmed following S.E.’s autopsy, Mallory
was brought into the police department for additional questioning on August 5,
2020. Pertinent portions of the recorded interviews were played for the jury.
During the interview, Mallory discussed the events leading to S.E.’s injuries,
including his own interactions with the child. At the conclusion of the interview,
Mallory was notified that he was being booked in county jail.
On August 7, 2020, Mallory contacted Det. Kroczak and expressed
that he wished to discuss the circumstances of S.E.’s injuries further. On this
occasion, Mallory continuously expressed that he loved S.E. like she was his own
and that he did not do anything to hurt her. He denied all insinuations that he was
unable to control S.E. or otherwise hurt her because she was being inconsolable.
Mallory reiterated that he heard S.E. fall while playing with the other children and
that she had a knot on her head. However, he further suggested that S.E. may have
subsequently hit her head on a side table while they were playing peekaboo on his
bed. Finally, when asked why he did not immediately contact 911 once he realized
S.E. was unresponsive, Mallory stated that he was concerned that he could not
answer questions posed by the 911 operator, such as S.E.’s “last name and stuff like
that.” State’s exhibit No. 148.
Dr. Joseph Felo (“Dr. Felo”) of the Cuyahoga County Medical
Examiner’s Office testified that he performed S.E.’s autopsy and generated a report
that summarized his findings and conclusions. Dr. Felo testified that S.E. had a
number of observable, external injuries, including a large bruise on the right side of
her scalp, as well as scattered bruising on her face, torso, left arm, right hip, knees,
and back. Dr. Felo stated that the medical examiners also observed a number of
internal injuries, including “overwhelming damage to the brain.” (Tr. 705.)
Specifically, the autopsy revealed bleeding on the surface of the brain, dead brain
tissue, brain tissue in the spinal cord, blood in the cervical nerve roots, bilateral
retinal hemorrhages, secondary hemorrhages in the spinal cord, and infections in
the lungs. When presented with images of S.E.’s spinal cord, Dr. Felo explained that
her spinal cord was red “because there is blood that has extended from around the
right side of her brain and just gone down the spinal cord[.]” (Tr. 603.) Dr. Felo
opined that the injuries sustained to the spinal cord area “indicate that there was
some sort of a whiplash or a forward and backwards rotation of the head on the spine
tearing the brain — tearing the tissues off the spinal cord.” (Tr. 704.)
Based on his participation in S.E.’s autopsy, Dr. Felo concluded to a
degree of reasonable medical certainty that S.E.’s cause of death was “anoxic
encephalopathy, cerebral edema and cerebral necrosis that is due to a subdural
hematoma that is due to blunt injuries of head, torso, and extremities.” (Tr. 710.)
Dr. Felo explained as follows:
Anoxic encephalopathy means the brain is starved of oxygen, and the
brain is starved of oxygen because of swelling in the brain, and that is
what cerebral edema is, swelling in the brain, and a combination of
those two results in tissue death of the brain, and that is cerebral
necrosis. All of that happened because she had bleeding on the surface
of the brain, and that is what the subdural hematoma is. That’s
bleeding on the surface of the brain. What caused that bleeding on the
brain is blunt trauma to her head.
***
Blunt trauma is anything that the head came in contact with which was
a solid instrument or object with enough force to leave a mark, and in
her case it was a bruise, bruises on her face, but most importantly the
bruise on the side of her right scalp and that bruising with enough force
cause the internal bleeding on the surface of [her] brain.
(Tr. 710-711.) Given the nature and extent of her injuries, Dr. Felo classified S.E.’s
manner of death as a homicide.
Dr. Joshua Friedman (“Dr. Friedman”) testified that he is a board-
certified pediatrician and is currently employed by MetroHealth Medical Center as
a child advocacy provider. Based on his experience and expertise in the field of
pediatric medicine, Dr. Friedman was asked by the Cuyahoga County Division of
Child and Family Services to render a conclusion as to the nature and extent of S.E.’s
injuries. Based on his review of S.E.’s medical records, Dr. Friedman rendered the
ultimate conclusion that S.E. “passed away from injuries she sustained during
abusive head trauma.” (Tr. 521.) Dr. Friedman explained that the phrase “abusive
head trauma” represents “injuries inside a child’s head that have been caused by
trauma that cannot be explained by any other mechanism than someone harming
the child.” (Tr. 521.) In support of his opinion that S.E.’s injuries were sustained as
a result of abuse and not an accident, Dr. Friedman noted, among other impressions,
that the extent of the tears in S.E.’s brain would have required “significant forces”
and could not be caused by “common forces,” such as “things that children get from
their play or routine accidents of short distance falls.” (Tr. 539.) Rather, such tears
“occur in things like motor vehicle accidents, significant multistory falls, and other
very forceful situations.” (Tr. 539-540.) Similarly, Dr. Friedman testified that the
nature of damage caused to S.E.’s retinal membranes are typically “described in
serious crush injuries, they’re described in motor vehicle accidents, and they’re
described in abusive head trauma. When children are handled with such significant
forces, it was caused by someone who meant to harm them.” (Tr. 543.) Accordingly,
Dr. Friedman opined to a reasonable degree of medical certainty “that the injury
[S.E.] suffered was a non-accidental trauma.” (Tr. 548.)
At the conclusion of the jury trial, Mallory was found guilty of
involuntary manslaughter and endangering children as charged in Counts 5 and 6
of the indictment. However, Mallory was found not guilty of aggravated murder and
felonious assault as charged in Counts 1 and 3 of the indictment. In addition, the
jury was unable to reach a decision of guilt or no guilt as to the murder and
endangering children offenses charged in Counts 2 and 4 of the indictment. Once
the jury was discharged, the trial court found Mallory guilty of domestic violence as
charged in Count 7 of the indictment, stating:
The court finds beyond a reasonable doubt that Mr. Mallory is guilty of
domestic violence in Count 7 as charged, that he did knowingly cause
physical harm to [S.E.], a family or household member, and,
furthermore, that he previously pled guilty on or about February 7,
2020, in the Court of Common Pleas of Cuyahoga County case number
19-644206 to felonious assault and domestic violence.
(Emphasis added.) (Tr. 870.)
Prior to sentencing, Mallory agreed to enter into a negotiated plea
agreement with the state in an effort to resolve Counts 2 and 4 of the indictment.
Under the terms of the plea agreement, Mallory agreed to plead guilty to
endangering children as charged in Count 4 of the indictment. Mallory further
agreed to a sentence of four years on Count 4, to run consecutive to an agreed-upon
sentence of 11 years on Count 5, involuntary manslaughter. (Tr. 872-873.) In
exchange for his plea, the state agreed to dismiss Count 2 of the indictment.
Following a Crim.R. 11 colloquy, the trial court accepted Mallory’s plea and found
him guilty of endangering children, a felony of the second degree.
At sentencing, the trial court imposed the agreed-upon four-year
prison term on the endangering children offense charged in Count 4 of the
indictment, an 11 to 16.5-year prison term on the involuntary manslaughter offense
charged in Count 5 of the indictment, a three-year prison term on the endangering
children offense charged in Count 6 of the indictment, and an 18-month prison term
on the domestic violence offense charged in Count 7 of the indictment. The
sentences imposed in Counts 4 and 5 were ordered to run consecutively to each
other. The remaining prison terms were ordered to run concurrently.
Mallory now appeals from his convictions and sentence.
II. Law and Analysis
A. Sufficiency of the Evidence
In his first, second, and third assignments of error, Mallory argues the
evidence was insufficient to support his convictions for domestic violence,
endangering children, and involuntary manslaughter.
A sufficiency challenge requires a court to determine whether the state
has met its burden of production at trial and to consider not the credibility of the
evidence but whether, if credible, the evidence presented would sustain a conviction.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). 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. Jenks, 61 Ohio St.3d 259, 273,
574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979).
“‘Proof of guilt may be made by circumstantial evidence, real
evidence, and direct evidence, or any combination of the three, and all three have
equal probative value.’” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 35
(8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060,
¶ 18. Although circumstantial evidence and direct evidence have obvious
differences, those differences are irrelevant to the probative value of the evidence,
and circumstantial evidence carries the same weight as direct evidence. Id., citing
State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Further,
circumstantial evidence is not only sufficient, “‘“but may also be more certain,
satisfying, and persuasive than direct evidence.’”” Id. at ¶ 36, quoting State v.
Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, quoting Michalic v.
Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
With this standard in mind, we separately address Mallory’s
convictions for domestic violence, endangering children, and involuntary
manslaughter.
1. Domestic Violence
In this case, Mallory was convicted of domestic violence in violation
of R.C. 2919.25(A), which provides that “[n]o person shall knowingly cause or
attempt to cause physical harm to a family or household member.”
Generally, a violation of R.C. 2919.25(A) is a misdemeanor of the first
degree. R.C. 2919.25(D)(2). In this case, however, Mallory’s domestic violence
conviction contained a furthermore specification that elevated his conviction to a
felony of the fourth degree pursuant to R.C. 2919.25(D). Pertinent to this appeal,
R.C. 2919.25(D)(3) provides that a violation of R.C. 2919.25(A) or (B) is a felony of
the fourth degree
if the offender previously has pleaded guilty to or been convicted of
domestic violence, a violation of an existing or former ordinance
or law of this or any other state or the United States that is
substantially similar to domestic violence, a violation of section
2903.14 [negligent assault], 2909.06 [criminal damaging], 2909.07
[criminal mischief], 2911.12 [burglary], 2911.211 [aggravated
trespass], or 2919.22 [endangering children] of the Revised Code if
the victim of the violation was a family or household member at the
time of the violation, a violation of an existing or former municipal
ordinance or law of this or any other state or the United States that
is substantially similar to any of those sections if the victim of the
violation was a family or household member at the time of the
commission of the violation, or any offense of violence if the victim
of the offense was a family or household member at the time of the
commission of the offense[.]
(Emphasis added.) R.C. 2919.25(D)(3). It is well settled that “[w]hen a prior
conviction elevates a misdemeanor to a felony, ‘the prior conviction is an essential
element of the crime, and [it] must be proved by the state.’” State v. Tate, 138 Ohio
St.3d 139, 2014-Ohio-44, 4 N.E.3d 1016, ¶ 17, quoting State v. Allen, 29 Ohio St.3d
53, 506 N.E.2d 199 (1987).
On appeal, Mallory does not dispute that the state presented sufficient
evidence to support his conviction under R.C. 2919.25(A). However, Mallory argues
that the state failed to present sufficient evidence to warrant the enhancement of the
domestic violence conviction to a felony of the fourth degree. Mallory acknowledges
that the state introduced the journal entry of his prior conviction for assault in
Cuyahoga C.P. No. CR-19-664206-A. However, he contends that the journal entry
did not specify that the victim in the case was a family or household member.
Mallory therefore maintains that his domestic violence conviction must be modified
to a misdemeanor of the first degree.
In contrast, the state maintains that the enhancement of the
conviction was warranted because the offense of assault is “substantially similar” to
the offense of domestic violence. Thus, the state contends that because defense
counsel did not object to the court’s finding of guilt, “all parties were under the
impression that Mallory’s previous conviction was to be a substantially similar
offense in accordance with R.C. 2919.25.”
Our duty when construing a statute is to determine and give effect to
the intent of the General Assembly as expressed in the language it enacted. Griffith
v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18; Fisher
v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. “When
the statutory language is plain and unambiguous, and conveys a clear and definite
meaning, we must rely on what the General Assembly has said.” Jones v. Action
Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12,
citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d
1057 (2000).
“Where a statute defines terms used therein, such definition controls
in the application of the statute * * *.” Good Samaritan Hosp. of Dayton v.
Porterfield, 29 Ohio St.2d 25, 30, 278 N.E.2d 26 (1972), citing Terteling Bros., Inc.
v. Glander, 151 Ohio St. 236, 85 N.E.2d 379 (1949), and Woman’s Internatl.
Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271, 267 N.E.2d 781 (1971).
Terms that are undefined in a statute are accorded their common, everyday
meaning. See R.C. 1.42.
With respect to the state’s position on appeal, the term “substantially
similar” is not defined by the Ohio Revised Code. In an effort to assess the ordinary
meaning of the term “substantially similar” as applied in R.C. 2919.25, the Second
District has noted that the term is “close to ‘substantially equivalent.’” State v.
Karns, 2d Dist. Greene No. 2020-CA-35, 2021-Ohio-1836, ¶ 31. Generally, the term
“substantially equivalent” is defined as “‘“being largely but not wholly that which is
specified.”’” State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870,
¶ 28, quoting Swan Creek Twp. v. Wylie & Sons Landscaping, 168 Ohio App.3d
206, 2006-Ohio-584, 859 N.E.2d 566, ¶ 28 (6th Dist.), quoting Merriam Webster’s
Collegiate Dictionary 1174 (10th Ed.1996). “‘Substantially’ is the operative word.”
Id.After careful consideration, we find no merit to the state’s contention
that the offense of assault, as defined by R.C. 2903.13, is substantially similar to the
offense of domestic violence such as to warrant the enhancement of the degree of
Mallory’s domestic violence conviction in this case. There is no dispute that the
offenses of domestic violence and assault each require the state to prove that the
defendant knowingly caused or attempted to cause physical harm to another. The
offenses are identical in this regard. However, it is equally well established that the
involvement of a “family or household member” is an essential element of the
offense of domestic violence. The defendant’s relationship with the victim is the
substantial aspect of a domestic violence conviction. This distinction between the
offenses of assault and domestic violence is critical and precludes any determination
that the offenses are substantially similar or equivalent for the purposes of
enhancement under R.C. 2919.25(D)(3). To accept the state’s position would greatly
increase the scope of R.C. 2919.25(D)(3)-(4), and would be inconsistent with the
statute’s clear intent to penalize those offenders who have a history of committing
specified criminal acts against family or household members.
Our conclusion is further supported by language of R.C.
2919.25(D)(3), which specifically addresses the manner in which a prior assault
conviction could elevate a violation of R.C. 2919.25(A) to a felony offense. As stated,
the statute provides that the enhancement in the degree of the offense is also
warranted if “the offender previously has pleaded guilty to or been convicted of * * *
any offense of violence if the victim of the offense was a family or household member
at the time of the commission of the offense[.]” As applicable in this case, R.C.
2901.01(A)(9)(a) defines assault as an offense of violence for purposes of the Ohio
Revised Code. It therefore follows that an offender’s prior assault conviction can
only be used to elevate a violation of R.C. 2919.25(A) to a felony of the fourth degree
pursuant to R.C. 2919.25(D)(3) where the victim of the prior offense was “a family
or household member at the time of the commission of the offense.”
Based on the foregoing, we agree with Mallory that in order to elevate
his domestic violence conviction to a felony of the fourth degree pursuant to R.C.
2919.25(D)(3), the state was required to prove that his prior assault conviction was
committed against a family or household member. In this case, the state attempted
to satisfy its burden of proof by submitting State’s exhibit No. 152, a journal entry
reflecting Mallory’s prior conviction for assault in Cuyahoga C.P. No. CR-19-
644206-A. The journal entry provides, in pertinent part:
On a former day of court the defendant plead[ed] guilty to assault
2903.13(A) M1 as amended in Count(s) 1 of the indictment.
Count(s) 2 was/were nolled.1
At the time the journal entry was admitted, there was no stipulation
on the record as to who the victim was in Case No. CR-19-644206-A. This court has
previously held that if, for instance, a defendant had previously been convicted of
domestic violence then their stipulation to being the defendant in a previous case is
sufficient evidence to enhance an offense under this statute. State v. Williams, 8th
Dist. Cuyahoga No. 84040, 2004-Ohio-6418. “That logic does not extend to the
present situation. The identity of the defendant was not the only fact at issue; the
relationship to the victim was an essential element that must be proved.” State v.
Sanders, 8th Dist. Cuyahoga No. 107253, 2019-Ohio-1524.
Under these circumstances, we find this case to be analogous to those
presented in State v. Crenshaw, 8th Dist. Cuyahoga No. 108830, 2020-Ohio-4922.
In Crenshaw, the defendant was convicted of endangering children in violation of
R.C. 2919.22(B)(1), a second-degree felony; endangering children in violation of
1 Contrary to the clear language of the journal entry in Case No. CR-19-644206-
A., the trial court in this case perpetuated the mischaracterization of Mallory’s former plea
by stating that the furthermore clause attached to Count 7 was proven where Mallory
“previously pled guilty on or about February 7, 2020, in the Court of Common Pleas of
Cuyahoga County case number 19-644206 to felonious assault and domestic violence.”
(Tr. 870.) Contrary to the court’s statement, the journal entry reflects that the felonious
assault offense (Count 1) was amended to the offense of assault and the domestic violence
offense (Count 2) was dismissed.
R.C. 2919.22(A), a third-degree felony; and domestic violence in violation of R.C.
2919.25(A), a first-degree misdemeanor. As to the domestic violence conviction, the
defendant was further convicted of a “furthermore clause” that stated:
FURTHERMORE, the offender previously had pleaded guilty to or
been convicted of Aggravated Assault on or about December 19, 2017,
in the Court of Common Pleas, Cuyahoga County, Ohio, Case No. CR17-
620327.
On appeal, the defendant argued that the trial court erred in elevating
her domestic violence conviction to a felony of the fourth degree because the state
failed to establish that her prior aggravated assault conviction was an enhancing
offense. Specifically, the defendant maintained that the state did not submit any
evidence to establish that her aggravated assault conviction victimized a family or
household member. This court found merit to the defendant’s argument, noting
that although the defendant stipulated that she was the defendant in the aggravated
assault case, there was nothing in the record to support the state’s assertion that it
was understood that her prior conviction was committed against her husband. Id.
at ¶ 75-81. In finding the state failed to provide sufficient evidence to prove that the
defendant’s conviction should be enhanced pursuant to R.C. 2919.25(D)(3), this
court explained as follows:
Here, we cannot simply take the state’s word in an appellate brief that
Crenshaw perpetrated her aggravated assault against her family
member. It may have been the intention of Crenshaw and her attorney
to stipulate to that fact but we cannot rely on conjecture when it comes
to proving an essential element of the crime.
There is nothing in this record that indicates that the victim of the
aggravated assault was a family member. Crenshaw did not stipulate
to that fact. As a result, we cannot find that the enhancing offense was
proven.
Id. at ¶ 82-83.
As in Crenshaw, there is nothing before this court to conclude that
Mallory’s prior assault conviction was committed against a family or household
member. The journal entry submitted in support of the furthermore clause attached
to Count 7 is silent on this matter and we may not presume the identity of the victim
in the absence of credible evidence or a stipulation by the parties. Thus, although
Mallory concedes that there was sufficient evidence supporting his domestic
violence conviction, we find there was insufficient evidence to warrant the
enhancement of the offense to a felony of the fourth degree pursuant to R.C.
2919.25(D)(3). Mallory’s conviction for domestic violence must be modified to
reflect the lesser degree on which conviction was appropriate, i.e., a misdemeanor
of the first degree. See State v. Easterling, 2d Dist. Green No. 2018-CA-33, 2019-
Ohio-2470, ¶ 73.
Mallory’s first assignment of error is sustained.
2. Endangering Children
In this case, Mallory was convicted of endangering children in
violation of R.C. 2919.22(A). He further pleaded guilty to an additional count of
endangering children in violation of R.C. 2919.22(B)(1). R.C. 2919.22 provides, in
pertinent part:
(A) No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen
years of age * * *, shall create a substantial risk to the health or safety
of the child, by violating a duty of care, protection, or support. * * *
(B) No person shall do any of the following to a child under eighteen
years of age or a mentally or physically handicapped child under
twenty-one years of age:
(1) Abuse the child[.]
To support a conviction for child endangering under R.C. 2919.22(A),
there must be sufficient evidence that the defendant (1) recklessly (2) created a
substantial risk to the health or safety of one or more children (3) by violating a duty
of care, protection or support. Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31 N.E.3d
695, ¶ 25 (8th Dist.). Pursuant to R.C. 2901.22(C), “[a] person acts recklessly when,
with heedless indifference to the consequences, he [or she] perversely disregards a
known risk that his [or her] conduct is likely to cause a certain result, or is likely to
be of a certain nature.” “Substantial risk” is defined as a “strong possibility, as
contrasted with a remote or significant possibility, that a certain result may occur or
that certain circumstances may exist.” R.C. 2901.01(A)(8).
In distinguishing the neglect form of child endangering set forth in
R.C. 2919.22(A) from the abuse form of the offense set forth in R.C. 2919.22(B)(1)
and (2), the Ohio Supreme Court explained that “neglect is characterized by acts of
omission rather than acts of commission” and abuse is characterized by
“[a]ffirmative acts of torture, abuse, and excessive acts of corporal punishment or
disciplinary measures.” State v. Kamel, 12 Ohio St.3d 306, 309, 466 N.E.2d 860(1984). “[A]n inexcusable failure to act in discharge of one’s duty to protect a child
where such failure to act results in a substantial risk to the child’s health or safety is
an offense under R.C. 2919.22(A).” Id. See also State v. Stewart, 5th Dist. Stark No.
2007-CA-00068, 2007-Ohio-6177, ¶ 59, citing State v. Sammons, 58 Ohio St.2d
460, 391 N.E.2d 713 (1979), and Kamel. (“R.C. 2919.22(A) is aimed at preventing
acts of omission or neglect when the breach results in a substantial risk to the health
or safety of a child.”)
Because he accepted guilt by entering a guilty plea, Mallory cannot
challenge the evidence supporting his conviction pursuant to R.C. 2919.22(B)(1)
(Count 4). Thus, Mallory focuses on his conviction pursuant to R.C. 2919.22(A)
(Count 6), arguing that the state failed to introduce any evidence concerning an act
of omission as required under R.C. 2919.22(B)(1). Mallory states that the
prosecution “presented no evidence showing [he] failed to properly act after the
accident.”
In contrast, the state argues there was sufficient evidence introduced
at trial for a reasonable juror to conclude that Mallory created a substantial risk to
the health and safety of the victim by engaging in neglectful behavior on the day of
this incident. The state contends that even if Mallory’s version of the events were to
be believed, his statements demonstrated that he breached his duty of care,
protection, and support by (1) failing to supervise S.E. at the time she was playing in
a separate room, (2) leaving S.E. alone after she sustained her injuries, and (3)
speaking with Mother rather than calling for emergency assistance.
After careful review of the record, we agree with Mallory’s assertion
that the state presented no evidence to suggest that, if S.E.’s injuries were the result
of an accident, Mallory breached his duty of care to S.E. by failing to adequately
supervise the children under his care. Throughout the pendency of trial, the state
rejected any suggestion that S.E. was injured as a result of an accident by presenting
ample evidence that her injuries required significant forces that could only be caused
by someone who intended to cause serious physical harm. With that said, however,
evidence tending to show that Mallory physically abused the minor victim does not
preclude a finding that Mallory also committed acts of omission thereafter.
In this case, S.E. sustained a number of readily apparent injuries to
her head and body, including a “golf ball size hematoma to the left side of her
forehead and a smaller hematoma to the right side as well.” The critical nature of
S.E.’s injuries were obvious. She was unresponsive, making strange noises, and in
need of immediate emergency care. Rather than seeking timely medical care,
however, Mallory unjustifiably disregarded a known risk to S.E.’s health by leaving
her alone in a bedroom and failing to contact 911 until he was instructed to do so by
his girlfriend — approximately 30 minutes into their phone conversation. Because
of Mallory’s delay, S.E. was not transported to the hospital until 5:50 p.m. — which
Dr. Friedman estimated was several hours after the blunt-force trauma was initially
inflicted. (Tr. 537.) By that time, however, S.E. had already sustained significant
swelling in her brain due to bleeding on the surface of her brain. The progressive
nature of S.E.’s injuries at the time she arrived at the hospital left the treating
physicians with limited options and necessitated an emergency hemicraniectomy.
As noted by Dr. Tomei, time was of the essence.
Under the foregoing circumstances, we find a reasonable juror could
conclude that Mallory, who was acting in loco parentis of the 18-month-old child,
recklessly created a substantial risk to the health or safety of the child when he failed
to timely seek medical attention for the victim child. See State v. Boyd, 8th Dist.
Cuyahoga No. 108552, 2020-Ohio-3450, ¶ 27. Accordingly, we find sufficient
evidence supported Mallory’s endangering children conviction pursuant to R.C.
2919.22(A).
Mallory’s second assignment of error is overruled.
3. Involuntary Manslaughter
Mallory was convicted of involuntary manslaughter in violation of
R.C. 2903.04(A), a felony of the first degree. The statute provides that “[n]o person
shall cause the death of another * * * as a proximate result of the offender’s
committing or attempting to commit a felony.” The term “proximate result” used in
R.C. 2903.04 mandates that a person will be criminally responsible for causing the
death of another only where the consequences of his conduct are direct, normal, and
reasonably inevitable when viewed in the light of ordinary experience. State v.
Sabatine, 64 Ohio App.3d 556, 560, 582 N.E.2d 34 (8th Dist.1989), citing State v.
Losey, 23 Ohio App.3d 93, 95, 491 N.E.2d 379 (10th Dist.1985), and State v.
Chambers, 53 Ohio App.2d 266, 272, 373 N.E.2d 393 (9th Dist.1977).
In this case, Count 5 of the indictment alleged that S.E.’s death was the
proximate result of Mallory committing or attempting to commit the felony offense
of endangering children in violation of R.C. 2919.22(A) “and/or” domestic violence
in violation of R.C. 2919.25.
Consistent with his previous arguments, Mallory contends that
because the predicate-felony convictions of endangering children (Count 6) and
domestic violence (Count 7) are not supported by sufficient evidence, this court is
required to find insufficient evidence supporting his involuntary manslaughter
conviction. Alternatively, Mallory contends that “even if one of the two predicates
in this case is determined by this court to serve as sufficient evidence to support the
manslaughter charge, if the other is not the conviction must be vacated.” Mallory
states that where, as here, alternative-predicate offenses underlie the offense of
involuntary manslaughter, the state is required to prove each alternative means
beyond a reasonable doubt. In support of his position, Mallory relies on the Ohio
Supreme Court’s decisions in State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-
2787, 889 N.E.2d 995, and State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,
45 N.E.3d 127.
In Gardner, the plurality opinion of the Ohio Supreme Court stated,
“[a]lthough Crim.R. 31(A)2 requires juror unanimity on each element of the crime,
jurors need not agree to a single way by which an element is satisfied.” Id. at ¶ 38,
citing Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d
985 (1999). Regarding the alternative predicate offenses alleged to have supported
2 Crim.R. 31(A) provides that a criminal “verdict shall be unanimous. It shall be
in writing, signed by all jurors concurring therein, and returned by the jury to the judge
in open court.”
Mallory’s involuntary manslaughter conviction in this case, Gardner clarified its
holding as follows:
In determining whether the state has impermissibly interfered with a
defendant’s Crim.R. 31(A) right to juror unanimity and the due process
right to require that the state prove each element of the offense beyond
a reasonable doubt, the critical inquiry is whether the case involves
“alternative means” or “multiple acts.”
“‘“In an alternative means case, where a single offense may be
committed in more than one way, there must be jury unanimity as to
guilt for the single crime charged. Unanimity is not required, however,
as to the means by which the crime was committed so long as
substantial evidence supports each alternative means. In reviewing an
alternative means case, the court must determine whether a rational
trier of fact could have found each means of committing the crime
proved beyond a reasonable doubt.’”“
(Emphasis added.) Id. at ¶ 48-49, quoting State v. Jones, 96 Hawai’i 161, 170, 29
P.3d 351 (2001), quoting State v. Timley, 255 Kan. 286, 289-290, 875 P.2d 242(1994), quoting State v. Kitchen, 110 Wash.2d 403, 410, 756 P.2d 105 (1988).
Although Gardner was a plurality opinion, the Ohio Supreme Court’s
subsequent decision in Adams makes it clear that the court still adheres to the juror
unanimity rule stated in Gardner. See State v. McKinney, 8th Dist. Cuyahoga No.
106377, 2019-Ohio-1118, ¶ 31. In Adams, the court was asked to address whether
there was sufficient evidence supporting the defendant’s capital specification
pursuant to R.C. 2929.04(A)(7). The court noted that “the sole aggravating
circumstance in [the defendant’s] case was framed in terms of alternative means: a
single crime (aggravated murder) that might have been committed in any of four
ways (murder in the course of rape, kidnapping, aggravated robbery, or aggravated
burglary).” Id., 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 273.
Consistent with Gardner, the court stated as follows:
To find that the R.C. 2929.04(A)(7) specification has been proved when
more than one predicate offense is alleged, the jury must unanimously
find beyond a reasonable doubt that the defendant committed
aggravated murder during the course of one or more of the alleged
predicate offenses, but the jury need not unanimously agree on which
predicate offense was committed.
In a case such as this one, jury unanimity is not required as to the
means underlying the capital specification so long as substantial
evidence supports each alternative means.
Id. at ¶ 273-274, citing Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d
995, at ¶ 49. Although Adams involved the review of the evidence supporting a
capital specification, it summarized its application of Gardner as follows:
The state assumed the burden of producing sufficient evidence as to
each of the alternative means of the R.C. 2929.04(A)(7) specification
here, given the way the omnibus capital specification was presented to
the jury. Accordingly, the principles we apply can be stated as follows:
In an appeal of a death sentence based on an R.C. 2929.04(A)(7)
specification when more than one predicate offense is alleged but the
jury has not made a finding as to which predicate offense was
committed, a reviewing court must determine under R.C. 2929.05(A)
whether there is sufficient evidence to support each of the alternative
predicate-offense theories. The appellate court must determine
whether a rational trier of fact could have found each means of
committing the crime of aggravated murder in the course of the alleged
R.C. 2929.04(A)(7) predicate offenses proved beyond a reasonable
doubt. When an appellate court reviews the sufficiency of the evidence
pursuant to R.C. 2929.05(A) as to the R.C. 2929.04(A)(7) aggravating
circumstance in an aggravated-murder case in which more than one
predicate offense is alleged but the jury has not made a finding as to
which predicate offense was committed, and the appellate court
determines that the state proved some but not all of the alleged
predicate offenses that could establish the aggravating circumstance,
the evidence is, as a matter of law, insufficient to support a death
sentence and the death sentence must be vacated.
Id. at ¶ 275.
Applying its standard to the facts before it, the Adams Court
determined that although the state presented sufficient evidence to establish the
predicate offenses of rape, kidnapping, and aggravated robbery, there was
insufficient evidence supporting the predicate offense of aggravated burglary. Thus,
the court concluded that it was
compelled to hold that the state’s success in proving some of the
alternative means cannot make up for its failure to prove all the
suggested means by which Adams may have committed the
aggravating circumstance. Gardner, 118 Ohio St. 3d 420, 2008-Ohio-
2787, 889 N.E.2d 995, at ¶ 49. Because the state failed to produce
sufficient evidence to prove all elements of aggravated burglary, we find
insufficient evidence to support the finding on the R.C. 2929.04(A)(7)
capital specification.
Id. at ¶ 288. Accordingly, the Adams Court vacated the defendant’s sentence of
death and remanded the case to the trial court for a new sentencing hearing.
In reaffirming the principle that “each possibility in an alternative-
means case must be supported by sufficient evidence,” Adams declined to abandon
the holding of Gardner in favor of the rule adopted by the United States Supreme
Court in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).
In explaining its position, the lead opinion stated, in relevant part:
Griffin held that in federal prosecutions, a general verdict based on
alternative means will be sustained if the evidence warrants a guilty
verdict on one theory of guilt, even if there is insufficient evidence of
guilt as to an alternative theory. Id. at 56-57. Griffin was premised on
a dubious assumption of juror infallibility: the jury will always
disregard an unproven theory and convict only on the proven theory.
The Griffin assumption defies experience and common sense. As the
Supreme Judicial Court of Massachusetts explained, “[i]f the premise
of the Supreme Court’s position were correct, a jury would never return
a guilty verdict when the evidence was insufficient to warrant that
verdict, and we know that is not so.” Commonwealth v. Plunkett, 422
Mass. 634, 640, 664 N.E.2d 833 (1996). When the Supreme Court of
California adopted Griffin with modifications, one justice who did not
accept the court’s reasoning thoroughly dissected Griffin:
First, the premise of jury “infallibility” is unsupported. Jurors may be
“well equipped” to determine pure questions of fact. But their expertise
does not extend to mixed questions of law and fact—which include the
sufficiency of the evidence. Second, the premise of jury “infallibility” is
subversive. If it obtained, we would be compelled to dismiss at the very
threshold each and every insufficient-evidence claim raised against any
verdict of guilt. For we would then be required to conclude that if the
evidence had indeed been lacking, the jury would necessarily have
discerned the deficiency and could not possibly have rendered a guilty
verdict. Thus, the bare fact of the verdict would establish the
sufficiency of the evidence as a matter of law.
People v. Guiton, 4 Cal.4th 1116, 1132-1133, 17 Cal.Rptr.2d 365, 847
P.2d 45 (1993) (Mosk, J., concurring in judgment only). This illogical
result is precisely what the separate opinion of Justice O’Donnell urges
this court to adopt.
Id. at ¶ 291-292.
In accordance with the directives of Gardner and Adams, the first
question we must answer is whether sufficient evidence supported each of the two
alternative means submitted to the jury in relation to the offense of involuntary
manslaughter. Here, the jury was instructed to convict Mallory of involuntary
manslaughter in violation of R.C. 2903.04(A) if it found “[Mallory] did cause the
death of [S.E.] and such death was the proximate result of [Mallory] committing or
attempting to commit the felony offense of endangering children and/or domestic
violence.”3 (Tr. 804.) As previously stated, we find sufficient evidence existed to
support the predicate-felony offense of child endangering pursuant to R.C.
2919.22(A). However, because there was insufficient evidence supporting the
furthermore clause attached to the domestic violence offense charged in Count 7 of
the indictment, the evidence was insufficient to enhance Mallory’s domestic violence
conviction from a misdemeanor to a felony of the fourth degree. Under these
circumstances, the jury could not have found that S.E.’s cause of death was the
proximate result of Mallory committing or attempting to commit the felony offense
of domestic violence.
Based on the foregoing, we find the state failed to produce sufficient
evidence to prove the alternative means offense of felony domestic violence. With
that said, however, we find no merit to Mallory’s contention that his involuntary
manslaughter conviction must be vacated on sufficiency grounds — thereby
warranting the attachment of double jeopardy. To the contrary, we find the
evidence, when viewed in a light most favorable to the state, would permit a
reasonable trier of fact to conclude that Mallory caused the death of S.E. as a
proximate result of his commission of the felony offense of endangering children.
Accordingly, the evidence, including the permissible inferences to be drawn
therefrom, was sufficient to sustain Mallory’s conviction for a violation of R.C.
2903.04(A). See State v. Rawson, 10th Dist. Franklin No. 14AP-1023, 2016-Ohio-
3 Contrary to the state’s assertion on appeal, the fact that the domestic violence
offense charged in Count 7 of the indictment was tried to the bench does not mean that
“there were no predicate, alternative theories before [the jury].”
1403 (reversing for new trial for failure to prove each alternative means by sufficient
evidence but finding sufficient evidence supported base offense for the purposes of
double jeopardy); State v. Hinzman, 8th Dist. Cuyahoga No. 92767, 2010-Ohio-771,
¶ 37 (reversing for new trial for failure to prove each alternative means by sufficient
evidence).
In declining to overturn the involuntary manslaughter conviction on
sufficiency grounds, we note that Mallory has provided no case law to suggest that
Gardner and Adams mandate the conclusion that where the state fails to prove each
of the alternative means supporting a base offense beyond a reasonable doubt, a
reviewing court is bound to find the base offense is not supported by sufficient
evidence. The analysis set forth in Gardner was limited to an assessment of
“whether jurors must agree unanimously as to which criminal offense a defendant
intended to commit during a burglary.” Gardner, 118 Ohio St. 3d 420, 2008-Ohio-
2787 at ¶ 37, 889 N.E.2d 995. In fact, Ohio courts have expressly recognized that
“[t]he Supreme Court’s ruling in Gardner is based on Crim.R. 31(A), rather than
constitutional due process considerations.” Rawson, 10th Dist. Franklin No. 14AP-
1023, 2016-Ohio-1403, ¶ 21, citing Gardner at ¶ 35 (“[T]his opinion will proceed on
the understanding that unanimity in a juror verdict in state courts is not protected
by the federal Constitution.”). In turn, Adams concerned the sufficiency of the
evidence supporting the defendant’s capital specification. Although the court
declined to consider the sufficiency of the defendant’s underlying aggravated-
murder conviction because the defendant did not raise the issue within his appeal,
we will not presume the court would have vacated the defendant’s conviction on
sufficiency grounds had the issue been before the court.
Accordingly, although Mallory labels this assignment of error as a
challenge to the sufficiency of the evidence, we find Mallory’s citations to Gardner
and Adams, as well as the arguments presented herein, are more akin to a Crim.R.
31(A) challenge. See Orr v. Hayes, 7th Dist. Mahoning No. 02 CA 27, 2002-Ohio-
7441, 7 (courts look at the content of the document to determine its nature; not titles
or labels). The distinction between an argument relating to the presentation of
legally insufficient evidence and one pertaining to a violation of Crim.R. 31 is
significant in this case, because Mallory did not object to the unanimity of his verdict
or the contents of the court’s jury instructions on the alternative means offenses. In
the absence of a timely objection, our review is limited to plain error.
To constitute plain error, there must be (1) an error, i.e., a deviation
from a legal rule; (2) that is plain or obvious; and (3) that affected substantial rights,
i.e., affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-
Ohio-68, 759 N.E.2d 1240. “‘Notice of plain error under Crim.R. 52(B) is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.’” State v. Mallory, 8th Dist. Cuyahoga No. 106052,
2018-Ohio-1846, ¶ 17, quoting State v. Long, 53 Ohio St.2d 91, 93, 372 N.E.2d 804(1978), paragraph two of the syllabus. The “extremely high burden” of
demonstrating plain error is on the defendant. State v. Chapman, 8th Dist.
Cuyahoga No. 107375, 2019-Ohio-1452, ¶ 20.
Although Mallory relies extensively on the holdings of Gardner and
Adams, he has not asserted that the violation of Crim.R. 31 amounted to plain error.
Under such circumstances, this court has no obligation to fashion a plain error
argument on Mallory’s behalf and then evaluate our own construction. See, e.g.,
O’Donnell v. N.E. Ohio Neighborhood Health Servs., 8th Dist. Cuyahoga No.
108541, 2020-Ohio-1609, ¶ 87 (“We need not, sua sponte, consider a claim of plain
error that the appellant has not argued on appeal.”), citing Katie L. v. Dennis M., 9th
Dist. Medina No. 15CA0010-M, 2016-Ohio-338, ¶ 5 (noting that appellate court
would not “engage in an analysis of plain error if an appellant fails to argue plain
error on appeal”); Coleman v. Coleman, 9th Dist. Summit No. 27592, 2015-Ohio-
2500, ¶ 9 (declining to sua sponte “fashion” a plain error argument “and then
address it”).
Nevertheless, viewing the record in its entirety, we find no plain error.
As previously stated, the jury in this case found Mallory not guilty of aggravated
murder and felonious assault as charged in Counts 1 and 3 of the indictment. The
jury was also unable to reach a decision of guilt or no guilt as to the murder and
endangering children (abuse) offenses charged in Counts 2 and 4 of the indictment.
Similar to the alternative means offense of domestic violence, the foregoing offenses
each related to allegations that Mallory committed affirmative acts of abuse against
the victim that resulted in physical harm or death. Given the implications of the
jury’s assessment of Counts 1-4 of the indictment, it logically follows that the jury
found Mallory guilty of involuntary manslaughter based on the predicate offense of
endangering children, which required a finding of neglect rather than a finding of
abuse. Given the overwhelming evidence supporting the predicate offense of
involuntary manslaughter, we are unable to conclude that this is the exceptional case
where notice of plain error is necessary to avoid a manifest miscarriage of justice.
Based on the foregoing, we find sufficient evidence supports Mallory’s
involuntary manslaughter conviction. We further conclude that, despite the
violation of Crim.R. 31, Mallory has failed to demonstrate plain error.
Mallory’s third assignment of error is overruled.
B. Manifest Weight of the Evidence
In his fourth assignment of error, Mallory argues his domestic
violence, endangering children, and involuntary manslaughter convictions are
against the manifest weight of the evidence.
In reviewing a challenge to the manifest weight of the evidence
supporting a conviction, a reviewing court “‘weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines 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.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “When
considering [a defendant’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, quoting Tibbs v.
Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). A conviction should
be reversed as against the manifest weight of the evidence only in the most
“exceptional case in which the evidence weighs heavily against the conviction.” Id.Within this assigned error, Mallory broadly reiterates the sufficiency
of the evidence arguments previously addressed, stating, in relevant part:
With respect to child endangering, there was no proof that [Mallory]
committed any specific act of omission necessary to show a failure to
care for S.E. and no separate physical harm to upgrade that act to a
felony if there had been an omission. With respect to domestic
violence, there was no evidence that the prior assault predicate
involved a family or household member. With respect to involuntary
manslaughter, since neither predicate was sustained by proof, the
conviction was against the manifest weight of the evidence.
In the absence of a specific challenge to the credibility of the witnesses
or the weight to be afforded to their testimony, we are unable to conclude that
Mallory’s convictions are against the manifest weight of the evidence. In this case,
the circumstances surrounding S.E.’s death were exhaustively addressed at trial and
the state presented ample evidence concerning Mallory’s actions on the day of the
incident, his role in S.E.’s injuries, the severity of S.E.’s internal and external
injuries, and medical implications associated with the delay in S.E.’s emergency
treatment. Defense counsel thoroughly cross-examined the state’s witnesses
concerning their opinions relating to the manner and cause of death, and the trier
of fact was provided with all pertinent information concerning Mallory’s contention
that S.E. died as a result of a tragic accident. Viewing the record in its entirety, we
find no basis to conclude that the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the convictions must be reversed and a new trial
ordered.
Mallory’s fourth assignment of error is overruled.
C. Ineffective Assistance of Counsel
In his fifth assignment of error, Mallory argues defense counsel
rendered ineffective assistance of counsel by failing to set forth specific arguments
during his Crim.R. 29 motion for acquittal “as to child endangering (that the
omission element necessary for conviction was not met), felony domestic violence
(no proof of the predicate), and involuntary manslaughter (no proof of both
predicates).” Reframed, Mallory contends that had defense counsel articulated the
arguments posed in his first, second, and third assignments of error, he would not
have been convicted of endangering children, felony domestic violence, or
involuntary manslaughter.
Our review of counsel’s performance is highly deferential. State v.
Korecky, 8th Dist. Cuyahoga No. 108328, 2020-Ohio-797, ¶ 20, citing Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we
presume licensed attorneys are competent, the party claiming ineffective assistance
of counsel bears the burden of proving that counsel was ineffective. Id., citing State
v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985).
“To gain reversal on a claim of ineffective assistance of counsel, a
defendant must show that (1) his ‘counsel’s performance was deficient,’ and (2) ‘the
deficient performance prejudiced the defense.’” State v. Fisher, 8th Dist. Cuyahoga
No. 108494, 2020-Ohio-670, ¶ 18, quoting Strickland at 687. “The first prong of
Strickland’s test requires the defendant to show ‘that counsel’s representation fell
below an objective standard of reasonableness.’” Id., quoting Strickland at 688.
“Strickland’s second prong requires the defendant to show ‘a reasonable probability
that but for counsel’s errors, the proceeding’s result would have been different.’” Id.,quoting State v. Winters, 8th Dist. Cuyahoga No. 102871, 2016-Ohio-928, ¶ 25.
That is, the second prong requires a determination as to whether the defense was
prejudiced by counsel’s ineffectiveness. State v. Beasley, 153 Ohio St.3d 497, 2018-
Ohio-493, 108 N.E.3d 1028, ¶ 140, citing Strickland at 687.
“While ‘[t]he right to counsel is the right to the effective assistance of
counsel,’ ‘trial strategy or tactical decisions cannot form the basis for a claim of
ineffective counsel.’” Fisher at ¶ 19, quoting Strickland at 686, citing McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
In this case, defense counsel moved the court to dismiss all charges
against Mallory at the conclusion of the state’s case pursuant to Crim.R. 29. Counsel
argued, in pertinent part:
We would ask the court to grant that Rule 29 motion as to all the counts,
and I will start out with the State obviously has not, despite calling
numerous witnesses, some of them experts, been able to tell the fact-
finders in this case exactly what caused the injury to [S.E.] that
eventually led to her death.
Clearly there is a lack of evidence of any sort showing exactly what
happened. As a result, Your Honor, there is no way the jury can find
beyond a reasonable doubt that any of the diverse theories that the state
has set forth in its six-count indictment is provable beyond a reasonable
doubt, and we would argue at this point even viewing in the light most
favorable to the state of Ohio there is insufficient evidence.
(Tr. 774.) Counsel then set forth detailed arguments concerning the inadequacy of
the evidence supporting the aggravated murder charge. Counsel asserted that S.E.’s
death was the result of a tragic accident and that there was “no direct or
circumstantial evidence that Mr. Mallory had any specific intent to cause the death
of [S.E.].” (Tr. 775.) Defense counsel subsequently renewed his request for an
acquittal after the defense rested. (Tr. 778.)
After careful consideration, we are unable to conclude that counsel
was deficient for broadly attacking the state’s theory concerning Mallory’s role in the
events leading to S.E.’s death. In this case, the predominant issue before the jury
was whether S.E.’s injuries were sustained during an accidental fall or whether they
were directly caused by Mallory. In this regard, defense counsel made the strategic
decision to reiterate Mallory’s position that S.E. died as a result of an unforeseen
accident. Counsel further made the tactical decision to focus his specific arguments
on the aggravated murder charge, which counsel maintained would prejudicially
invoke the juror’s sympathy if it were permitted to go before the jury. We decline to
second-guess counsel’s strategic decisions, which ultimately proved successful on a
number of serious charges set forth in the indictment.
Moreover, we find Mallory has failed to establish the requisite level of
prejudice to support a finding of ineffective assistance of counsel. At the time the
Crim.R. 29 motion was posed in this case, the domestic violence offense had yet to
be presented to the bench. Thus, it would have been premature to raise issues
concerning the alleged deficiencies in the journal entry introduced in an effort to
satisfy R.C. 2919.25(D)(3). Furthermore, consistent with our resolution of the
second and third assignments of error, we find the state presented sufficient
evidence to withstand a Crim.R. 29 motion on the endangering children and
involuntary manslaughter offenses.
Mallory’s fifth assignment of error is overruled.
D. Postrelease Control
In his sixth assignment of error, Mallory argues the trial court erred
when it improperly imposed a mandatory five-year period of postrelease control on
his involuntary manslaughter conviction. Mallory contends that “[u]nder R.C.
2967.28(B)(2), the proper period of postrelease control is a term of a minimum of
two years and a maximum of five years.”
Because a trial court has a statutory duty to provide notice of
postrelease control at the sentencing hearing, any sentence imposed without proper
notice of postrelease control is contrary to law. State v. Grimes, 151 Ohio St.3d 19,
2017-Ohio-2927, 85 N.E.3d 700, ¶ 8, citing State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085, 817 N.E.2d 864, ¶ 23 (both overruled on other grounds by State
v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248).
A statutorily compliant imposition of postrelease control requires that
the trial court advise the defendant of three things at the sentencing hearing and in
the sentencing entry: “(1) whether postrelease control is discretionary or mandatory,
(2) the duration of the postrelease control period, and (3) a statement to the effect
that the Adult Parole Authority will administer the postrelease control pursuant to
R.C. 2967.28 and that any violation by the offender of the conditions of postrelease
control will subject the offender to the consequences set forth in that statute.” Id. at
¶ 1. “[A]ny error in the exercise of [the court’s] jurisdiction in imposing postrelease
control renders the court’s judgment voidable, permitting the sentence to be set
aside if the error [is] successfully challenged on direct appeal.” Harper at ¶ 4.
Relevant to this appeal, sections R.C. 2967.28(B) and (C) of the
postrelease control statute were amended by 2021 H.B. 110, Section 101.01, effective
September 30, 2021. Pursuant to the version of R.C. 2967.28(B)(2) in effect at the
time of Mallory’s sentencing hearing on November 19, 2021, a defendant convicted
of a felony of the first degree that is not a felony sex offense is subject to a period of
postrelease control of “up to five years, but not less than two years.” Under the
former version of the statute, however, a defendant convicted of a felony of the first
degree or a felony sex offense was subject to a mandatory five-year period of
postrelease control. See former R.C. 2967.28(B)(1).
In this case, Mallory argues that the trial court erred by failing to
afford him “the benefit of the reduced postrelease control sentence” on his first-
degree felony conviction for involuntary manslaughter. In contrast, the state
contends that Mallory “is subject to the original version of the statute” because
“there is no provision in R.C. 2967.28(B)(2) making the amendments retroactive to
acts occurring before the effective date.”
Whether the trial court erred in failing to apply the amended version
of R.C. 2967.28(B) at the time of sentencing in this matter is a legal issue we review
de novo. State v. Pitts, 2020-Ohio-5494, 163 N.E.3d 1169, ¶ 9 (1st Dist.), citing State
v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8.
It is well settled in Ohio that “when the General Assembly reenacts,
amends, or repeals a criminal statute, the substantive provisions of the former law
apply to all pending prosecutions, but the defendants receive the benefit of a reduced
‘penalty, forfeiture, or punishment’ in the statute as amended, unless the General
Assembly expresses another intent.” State v. Solomon, 2012-Ohio-5755, 983 N.E.2d
872, ¶ 16 (1st Dist.), citing R.C. 1.58, and State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d
634 (1998). This principle arises from R.C. 1.58, which provides as follows:
(A) The reenactment, amendment, or repeal of a statute does not,
except as provided in division (B) of this section:
(1) Affect the prior operation of the statute or any action taken
thereunder;
(2) Affect any validation, cure, right, privilege, obligation, or
liability previously acquired, accrued, or incurred thereunder;
(3) Affect any violation thereof or penalty, forfeiture, or
punishment incurred in respect thereto, prior to the amendment
or repeal;
(4) Affect any investigation, proceeding, or remedy in respect of
any such privilege, obligation, liability, penalty, forfeiture, or
punishment, and the investigation, proceeding, or remedy may
be instituted, continued, or enforced, and the penalty, forfeiture,
or punishment imposed, as if the statute had not been repealed
or amended.
(B) If the penalty, forfeiture, or punishment for any offense is reduced
by a reenactment or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the
statute as amended.
Thus, “if a statute is amended and becomes effective while the
defendant’s case is pending in the trial court, then its applicability to the defendant’s
case is guided by R.C. 1.58.” State v. Stiltner, 4th Dist. Scioto No. 19CA3882, 2021-
Ohio-959, citing State v. Kaplowitz, 100 Ohio St.3d 205, 2003-Ohio-5602, 797
N.E.2d 977, ¶ 8.
In accordance with the foregoing, the applicable inquiry in this case is
whether the amendment reflected in R.C. 2967.28(B)(2) reduces “the penalty,
forfeiture, or punishment” for Mallory’s first-degree felony conviction. This requires
that we ascertain the meaning of the terms “penalty, forfeiture, or punishment,”
which have not been defined by the General Assembly.
As previously discussed, when interpreting a statute, we give plain
and ordinary meaning to all the words and phrases in the statute and give effect to
all parts of the statutory scheme. See State v. Singer, 50 Ohio St.2d 103, 108, 362
N.E.2d 1216 (1977); United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369, 372, 643
N.E.2d 1129 (1994). Generally, the term “penalty” means “the punishment inflicted
by a law for its violation. The term is most applied to a pecuniary punishment.’” In
re Lange’s Estate, 164 Ohio St. 500, 505, 132 N.E.2d 96 (1956). Black’s Law
Dictionary indicates that the word, “penalty,” is “[a]n elastic term with many
different shades of meaning,” but it typically “involves the idea of punishment,
corporeal or pecuniary, or civil or criminal, although its meaning is generally
confined to pecuniary punishment.” Black’s Law Dictionary 1133 (6th Ed. 1990);
State v. Solomon, 2012-Ohio-5755, 983 N.E.2d 872, ¶ 38 (1st Dist.). “Forfeiture” is
“[a] comprehensive term which means a divestiture of specific property without
compensation,” and it includes the “[l]oss of some right or property as a penalty for
some illegal act.” Black’s at 650; Solomon at ¶ 39; State v. Whitaker, 111 Ohio
App.3d 608, 615, 676 N.E.2d 1189 (6th Dist.1996), quoting Webster’s Third New
International Dictionary (1986) 891, (defining “‘[f]orfeiture’ * * * as ‘the loss of
property or money on account of one’s breach of [a] * * * legal obligation’”). Finally,
the term “punishment” means “[a]ny fine, penalty, or confinement inflicted upon a
person by the authority of the law and the judgment and sentence of a court, for
some crime or offense committed by him * * *.” Black’s at 1234; Solomon at ¶ 40.
After careful review of pertinent case law, we find the imposition of
postrelease control constitutes a penalty, forfeiture, or punishment as contemplated
under R.C. 1.58(B). As acknowledged by the Ohio Supreme Court in State v. Bates,
167 Ohio St.3d 197, 2022-Ohio-475, 190 N.E.3d 610:
At its core, postrelease control is a sanction; it is an additional term of
supervision after an offender’s release from prison that imposes certain
restrictions on the offender and, if violated, it allows the APA to impose
conditions and consequences, including prison time, upon the
offender. See R.C. 2967.01(N). Postrelease control is “aimed at
behavior modification in the attempt to reintegrate the offender safely
into the community.” Woods v. Telb, 89 Ohio St.3d 504, 512, 733
N.E.2d 1103 (2000); see also State v. Martello, 97 Ohio St.3d 398,
2002-Ohio-6661, 780 N.E.2d 250, ¶ 16. In essence, postrelease control
is a continued restraint on an offender’s liberty after he or she serves
the initial prison sentence. See Watkins v. Collins, 111 Ohio St.3d 425,
2006-Ohio-5082, 857 N.E.2d 78, ¶ 52; see also Hernandez v. Kelly,
108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 31, superseded
by statute as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-
Ohio-6434, 920 N.E.2d 958.
Id. at ¶ 21; see also State v. Martello, 97 Ohio St.3d 398, 402 (“post-release control
is part of the original judicially imposed sentence.”). Consequently, we believe that
R.C. 1.58(B) applies and allows Mallory to seek the benefit of the amendment to R.C.
2967.28(B), which has reduced the duration of the postrelease control sanction
applicable to a felony of the first degree that is not a felony sex offense.
Based on the foregoing, we reverse the trial court’s application of
former R.C. 2967.28(B)(1), and vacate the designated term of postrelease control.
See State v. Gray, 8th Dist. Cuyahoga No. 110963, 2022-Ohio-939, ¶ 14 (finding the
trial court erred by failing to apply the amendments to R.C. 2967.28 where the
defendant was sentenced after the effective date of 2021 H.B. 110, Section 101.01.).
Upon remand in this case, the trial court is required to include postrelease control
as part of Mallory’s sentence for the statutorily required period of “up to five years,
but not less than two years” pursuant to R.C. 2967.28(B)(2), and the court must
provide the required advisements and incorporate those advisements into the
sentencing entry.
Mallory’s sixth assignment of error is sustained.
D. Reagan Tokes Law
In his seventh assignment of error, Mallory argues the trial court
erred in sentencing him under the Reagan Tokes Law, which became effective March
22, 2019. He contends the Reagan Tokes Law is unconstitutional “insofar as it
violates the separation of powers clause by delegating sentencing to the executive
branch of government and insofar as it violates the liberty interest of a defendant by
failing to provide for meaningful protections against the violation of that interest.”
As acknowledged by Mallory on appeal, the question of whether the
Reagan Tokes Law is constitutional was decided in this court’s en banc opinion in
State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). There, this court
found “that the Reagan Tokes Law, as defined under R.C. 2901.011, is not
unconstitutional,” and reaffirmed the principles established in State v. Gamble,
2021-Ohio-1810, 173 N.E.3d 132 (8th Dist.); State v. Simmons, 2021-Ohio-939, 169
N.E.3d 728 (8th Dist.); and State v. Wilburn, 2021-Ohio-578, 168 N.E.3d 873 (8th
Dist.). See Delvallie at ¶ 17. Because Mallory does not advance any novel argument
left unaddressed by the Delvallie decision, we find the constitutional challenges
presented in this appeal are overruled.4
Mallory’s seventh assignment of error is overruled.
III. Conclusion
Based on the foregoing, we affirm Mallory’s convictions for
endangering children (Counts 4 and 6), involuntary manslaughter (Count 5), and
domestic violence (Count 7). However, because the furthermore specification
attached to the domestic violence offense was not supported by sufficient evidence,
4 Neither party has raised any issues as to the imposed sentence and, therefore, any
determination as to the validity of the sentence is beyond the scope of this direct appeal.
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27.
the domestic violence conviction must be modified to a misdemeanor of the first
degree. On remand, the trial court shall resentence Mallory on the domestic
violence offense to conform to the sentencing statutes governing misdemeanor
offenses. In addition, we vacate the specified term of postrelease control imposed
as part of Mallory’s sentence and remand for a resentencing hearing limited to the
proper imposition of postrelease control under R.C. 2967.28(B), as amended by
2021 Ohio H.B. 110, Section 101.01, effective September 30, 2021.
Judgment affirmed in part, reversed in part, and remanded to the
trial court for further proceedings.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCURS
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.
Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes
(dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part)
in Delvallie and would have found the Reagan Tokes Law unconstitutional.