State v. Evans

[Cite as State v. Evans, 2023-Ohio-1879.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 22CA31
v. :
QUINTON EVANS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. : RELEASED 6/02/2023
___________________________________________________________________
APPEARANCES:
R. Jessica Manungo, Assistant State Public Defender, Office of the Ohio Public Defender,
Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant
Prosecuting Attorney, Chillicothe, Ohio, for appellee.
___________________________________________________________________
HESS, J.
{¶1} Quinton Evans appeals his conviction for possession of a deadly weapon while
under detention. For his first assignment of error, Evans contends that the trial court abused
its discretion when it overruled his objections to a state witness’s testimony. He argues that
the trial court improperly allowed the state to question an investigator about her experience
investigating possession of a deadly weapon cases that involved murders. He contends that
this confused and prejudiced the jury into thinking that a murder investigation had some
connection to his case. He also argues that it prejudiced the jury into thinking that the
sharpened metal scissor blade he possessed was a deadly weapon. We find that there was
no likelihood of jury confusion over whether Evans’s case involved murder. None of the
witnesses testified about a murder and the trial court gave curative jury instructions regarding
Ross App. No. 22CA31 2
this. The testimony about whether the investigator had experience in investigating deadly
weapon possession cases involving murder is precisely the type of probative and prejudicial
– but not unfairly prejudicial – testimony the evidence rules allow. The evidence makes it
more likely that the investigator knew what types of weapons were capable of inflicting death
– an element of the state’s case. We overrule Evans’s first assignment of error.
{¶2} In his second and third assignments of error, Evans contends that his
conviction for possession of a deadly weapon was not supported by sufficient evidence and
was against the manifest weight of the evidence. He argues that there was insufficient
evidence that he possessed a “deadly weapon” because his “small, encased half-scissors
that he had in his pocket did not qualify as a deadly weapon.” He argues that a deadly
weapon must be capable of inflicting death, but the broken half scissor was wrapped in
several pieces of cloth with only the blade tip exposed. Therefore, he argues, that as
wrapped, the sharpened metal half-scissor was not able to cut or stab anyone to death.
Similarly, he argues that his conviction was against the manifest weight of the evidence
because the state did not provide substantial evidence showing that the broken half scissor
wrapped in cloth could inflict death. We find that Evans’s conviction is supported by sufficient
evidence and is not against the manifest weight of the evidence. The state presented
sufficient evidence through the testimony of its witnesses and the admission of the weapon
to allow any rational trier of fact to find all the essential elements of the crime proven beyond
a reasonable doubt. And after reviewing the entire record, we find that the jury did not clearly
lose its way or create a miscarriage of justice such that reversal of the conviction is
necessary. We overrule his second and third assignments of error.
{¶3} Finally, Evans contends that the Reagan Tokes Act violates the Ohio and
Ross App. No. 22CA31 3
United States Constitutions, thus his sentence is contrary to law. He concedes he did not
challenge the constitutionality of the Reagan Tokes Act at the trial level and has waived it.
However, he asks us to review it under the plain error standard of review. We reject his
argument and find that the Reagan Tokes Law is constitutional. We overrule his fourth
assignment of error.
{¶4} We affirm the trial court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶5} In December 2021, a Ross County Grand Jury returned an indictment that
charged Evans with one count of possessing a deadly weapon while under detention, having
been convicted of rape in the Cuyahoga County Court of Common Pleas in 2019 and
subsequently incarcerated at the Ross Correctional Institution. The indictment stated that the
deadly weapon was a four-inch homemade shank and that his possession of it was in
violation of R.C. 2923.131, a second-degree felony. Evans entered a not guilty plea.
{¶6} The case proceeded to a jury trial which produced the following evidence.
Officer Gerald Webb, a correctional officer at the Ross Correctional Institution, testified that
he went to speak to Evans about the policy concerning religious materials. Officer Webb
testified that the prison mail room and the prison chaplain had previously explained the
procedures for obtaining religious material to Evans. But, Evans did not want to follow those
procedures and became very upset with Officer Webb when he attempted to explain them.
After Evans became irate, Officer Webb called in Officer Samuel Borland to assist him.
Officer Webb also placed Evans in handcuffs. Evans verbally threatened Officer Webb by
telling him that the handcuffs were not going to hold him and that he would come after Webb
after he got out of the cuffs.
Ross App. No. 22CA31 4
{¶7} Officer Samuel Borland testified that he worked at the prison as a correctional
officer and was called to take Evans to the captain’s office. On the walk to the captain’s office
Evans told Officer Borland that he had a knife in his pocket. Officer Borland told Evans that
he would get it from Evans when they reached the captain’s office. When they reached the
captain’s office, Evans told Officer Borland that the knife was in his left pants pocket and
Borland retrieved it. The state presented an object to Officer Borland at trial and asked him
to identify it. Officer Borland testified that it was the “shank” or “knife” that he removed from
Evans’s pants pocket. Borland described it as “a broken pair of safety scissors with a drop
point ground into it so it will penetrate the skin.” He explained that a drop point is “a flat tip on
a pair of safety scissors, this just brings it down to a sharp edge so it can penetrate into skin.”
Officer Borland testified that it was wrapped in a torn section of bed sheet to “give it a little
more girth and make it into a handle.” Officer Borland testified that the bed sheet “would
make it easier to use because it has something more substantial to grab onto.” When asked
on cross examination if the bed sheet would make it more difficult to penetrate, Borland
responded, “No.” Evans’s defense counsel pursued further:
Q. So looking at that wrapping and you held onto it tight with you [sic] hand, it
seems to be a thick wrapping; is that correct?
A. Yes.
Q. It’s not just like a single ply sheet over it?
A. No.
Q. And you can only see just the tip of that blade; is that correct?
A. Correct, yes.
Q. So you don’t believe though that that wrapping would hinder it entering any
further than that tip?
Ross App. No. 22CA31 5
A. No, Ma’am.
{¶8} Trooper Sherry Wells testified that she is employed as a state trooper with the
Ohio State Highway Patrol and works in the investigative unit that handles criminal
investigations on state owned or leased property, which includes the prisons in Ross County,
Ohio. Trooper Wells had been in law enforcement for 32 years and in the investigation unit
for 23 years. She performs investigations daily at the Ross Correctional Institution, which is
a detention facility for convicted felons. Trooper Wells testified that she was the investigator
handling the Evans investigation and she had reviewed the officers’ reports and inspected
the object found on Evans. She described it as “what is known by the prison terms as a shank
which is a homemade knife.” Trooper Wells described the object as “a pair of scissors, half
of a scissors. Instead of having the two handles, it’s been broken apart. So this is one handle
and blade, so one side of a pair of scissors. It has been altered and made into a point.” She
also explained that the cloth around it appeared to be a ripped bed sheet, torn into strips,
and wrapped to make a handle. The loops would be used to strap across the hand so that
the inmate would not lose it and could hang onto it. The metal is hard, sharpens well, and
does not bend easily. Trooper Wells testified, “It’s already rounded so all they have to do is
put the point to it so once it is gripped in the hand, it’s very easily made into a stabbing or a
cutting style shank. They can do either with this.”
{¶9} When asked about her experience investigating crimes at the Ross
Correctional Institution, Trooper Wells testified that she had spent approximately eight to ten
years investigating crimes there. Each year she investigates several cases involving inmates
in possession of deadly weapons, including deadly weapon possession cases involving
murder investigations:
Ross App. No. 22CA31 6
Q. Have any of the investigations involving possession of deadly weapon under
detention been murder investigations?
A. Yes.
[Defense Counsel]. Objection.
{¶10} Defense counsel argued that the question was irrelevant and prejudicial. The
trial court overruled the objection on the ground that the state could establish Trooper Wells’s
experience with instruments capable of inflicting death and gave the jury the following
clarifying instruction:
All right. Ladies and gentlemen, the objection is overruled. However, I am going
to instruct the jury that the questioning - - to be clear, [the prosecutor] is
questioning with regard to this witness’ experience in investigations and
weapons. However, there is no allegation that this defendant murdered or
harmed anyone and that is not what this case is about so I want to make a clear
distinction to that.
The prosecutor proceeded:
Q. Now Trooper Wells, throughout your career and based on your training and
experience, is the weapon that was found in the defendant’s possession on
June 1st of 2021 a deadly weapon?
A. Yes, Ma’am. It very easily is a deadly weapon in multiple forms.
Q. Is it capable of inflecting death?
A. Yes. Like I said, this can both stab and/or cut so it is a very dangerous
weapon because of the harshness - - the stiffness of the metal, that makes it
very likely that it could cause harm and death.
{¶11} Trooper Wells also testified that she obtained a certified copy of Evans’s 2019
rape conviction and interviewed Evans about the weapon. Evans admitted he possessed the
weapon, he described it to her, and he told her he purchased it with the end already
sharpened. Evans also admitted that he knew that he was not allowed to have a weapon in
the institution.
Ross App. No. 22CA31 7
{¶12} The jury found Evans guilty and the trial court sentenced him to a minimum
term of seven years with a maximum indefinite term of ten and a half years to be served
consecutive to the prison sentence Evans was currently serving for rape. Evans appealed.
II. ASSIGNMENTS OF ERROR
{¶13} Evans assigns four errors for review:
I. The trial court abused its discretion when it overruled defense
counsel’s objections to the state’s questions about murder
investigations and admitted unnecessary evidence to the
prejudice of Quinton Evans. R.C. 2923.131(B); Evid.R. 401, 402,
and 403; T.p. 81-83.
II. Quinton Evans’ conviction for possession of a deadly weapon
while under detention is not supported by sufficient evidence.
Fifth and Fourteenth Amendments to the United States
Constitution and Section 10, Article I of the Ohio Constitution.
R.C. 2923.131(B). (T.p. 83-84, 111; August 16, 2022 Judgment
Entry of Sentence.)
III. Quinton Evans’ conviction of possession of a deadly weapon
while under detention is against the manifest weight of the
evidence, in violation of the Due Process Clause of the Fifth and
Fourteenth Amendments to the United States Constitution and
Section 16, Article I of the Ohio Constitution. State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). R.C.
2923.131(B). (T.p. 83-84, 111; August 16, 2022 Judgment Entry
of Sentence.)
IV. Because the Reagan Tokes Act violates the Ohio and United
States Constitutions, Quinton Evans’ sentence is contrary to law.
R.C. 2953.08(G)(2); Sixth and Fourteenth Amendments of the
United States Constitution; Articles I, II, and III of the United
States Constitution; Article I, Section 5, 10 and 16 of the Ohio
Constitution; City of S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-
59, 503 N.E.2d 136 (1986).
III. LEGAL ANALYSIS
Ross App. No. 22CA31 8
A. Admission of Testimony about Murder Investigations
{¶14} Evans asserts that the trial court abused its discretion in allowing Trooper Wells
to testify about her involvement in possession of deadly weapon cases that involved murder
investigations in various correctional institutions. He contends that this testimony had no
relevance to his case and only inflamed and confused the jury. He argues that the trial court’s
curative instructions were not sufficient to address the prejudicial aspects of the testimony.
1. Standard of Review
{¶15} “The admission or exclusion of evidence generally rests within a trial court's
sound discretion.” State v. McCoy, 4th Dist. Pickaway No. 19CA1, 2020-Ohio-1083, ¶ 20.
“Thus, absent an abuse of discretion, an appellate court will not disturb a trial court's ruling
regarding the admissibility of evidence.” Id. An abuse of discretion is “an unreasonable,
arbitrary, or unconscionable use of discretion, or * * * a view or action that no conscientious
judge could honestly have taken.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894
N.E.2d 671, ¶ 23.
2. Evidentiary Analysis
{¶16} Generally, relevant evidence is admissible. “ ‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” Evid.R. 401. “Evidence which is not relevant is not admissible.” Evid.R. 402.
Relevant evidence is generally admissible. Evid.R. 402. However, Evid.R. 403(A) provides
that relevant evidence “is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
{¶17} Unfair prejudice is not damage to the defendant's case which “ ‘results from the
Ross App. No. 22CA31 9
legitimate probative force of the evidence; rather it refers to evidence which tends to suggest
decision on an improper basis.’ ” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 89, quoting United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986).
“[I]f the evidence arouses the jury's emotional sympathies, evokes a sense of horror, or
appeals to an instinct to punish, the evidence may be unfairly prejudicial. Usually, although
not always, unfairly prejudicial evidence appeals to the jury's emotions rather than
intellect.” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001),
quoting Weissenberger's Ohio Evidence, Section 403.3 (2000).
{¶18} Evid.R. 403(A) “manifests a definite bias in favor of the admission of relevant
evidence,” as “[t]he dangers associated with the potentially inflammatory nature of the
evidence must substantially outweigh its probative value before the court should reject its
admission.” (Emphasis sic.) State v. Irwin, 4th Dist. Hocking Nos. 03CA13 & 03CA14, 2004-
Ohio-1129, ¶ 22. “Thus, ‘[w]hen determining whether the relevance of evidence is
outweighed by its prejudicial effects, the evidence is viewed in a light most favorable to the
proponent, maximizing its probative value and minimizing any prejudicial effect to the party
opposing admission.’ ” McCoy, 4th Dist. Pickaway No. 19CA1, 2020-Ohio-1083, at ¶ 21,
quoting State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22; State v. Allen,
4th Dist. Ross No. 21CA3736, 2022-Ohio-1180, ¶ 21-24.
{¶19} Here, when the state questioned Trooper Wells about her experience in prison
investigations involving possession of a deadly weapon that involved murders, it was relevant
to her knowledge of the types of weapons that are capable of inflicting death. Because Wells
had been involved in multiple deadly weapon possession cases, including those that resulted
in death, she had prior experience that gave her knowledge about which weapons were
Ross App. No. 22CA31 10
capable of inflicting death, an element of the crime and relevant to the state’s case. Despite
Evans’s contentions, there was no danger of unfair prejudice because there was no basis for
any jury confusion. There was no testimony that Evans’s possession of the sharpened metal
scissor blade resulted in murder. Both correctional officers testified that, other than a verbal
threat to Officer Webb, Evans cooperated with them and did not use the weapon on them,
much less physically threaten them with it. The trial court’s curative instructions also
instructed the jury that the question was probative of Trooper Wells’s investigative
experience. He assured them there was no allegations that Evans murdered or harmed
anyone. “A jury is presumed to follow the instructions, including curative instructions, given it
by a trial judge.” State v. Ludwick, 4th Dist. Highland No. 22CA9, 2023-Ohio-1113, ¶ 20.
{¶20} Evans contends that the question was prejudicial because it “prejudiced the
jury into thinking that Mr. Evans indeed possessed a deadly weapon – a weapon that can
kill, a weapon that can cause death.” But this is not unfair prejudice, rather it is damage to
the defendant's case which results from the legitimate probative force of the evidence. State
v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 89. Not only did Trooper
Wells have decades of experience in investigating prison crimes, but she conducted multiple
yearly investigations into possession of deadly weapon cases, including some that resulted
in death. This gives her testimony that the weapon here was capable of inflicting death
“legitimate probative force.”
{¶21} We overrule Evans’s first assignment of error.
B. Sufficiency & Manifest Weight of the Evidence
{¶22} In his second and third assignments of error, Evans contends that his
conviction was not supported by sufficient evidence and was against the manifest weight of
Ross App. No. 22CA31 11
the evidence. He argues that “the small, encased half-scissors that he had in his pocket did
not qualify as a deadly weapon.” Evans acknowledges and cites a number of cases in which
sharpened toothbrushes, sharpened metal objects wrapped in cloth or athletic tape, and two
toothbrushes wrapped around a pencil were all considered deadly weapons. However, he
argues that the sharpened metal shank he possessed was only four inches in length and was
wrapped in cloth so that only the sharpened metal blade was exposed. He contends,
“Because only the flat or blunt tip of the blade was exposed, and the rest of the scissors was
securely wrapped in thick cloth, the wrapped-up scissors was not able to cut or stab anyone
to death.”
{¶23} Evans also contends his conviction was against the manifest weight of the
evidence because the state did not provide substantial evidence showing that the sharpened
metal scissor blade wrapped almost entirely in cloth was a deadly weapon. Even though the
officers testified about how the wrapped sharpened metal scissor blade could be used
effectively in multiple ways as a deadly weapon, Evans argues that “the state did not show
or prove that the mere flat tip of that blade could inflict or cause death * * * at no time did the
state demonstrate how this instrument * * * was sharp enough to cut or deeply penetrate the
skin and cause death.”
1. Standard of Review
a. Sufficiency
{¶24} “When a court reviews the record for sufficiency, ‘[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. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting
Ross App. No. 22CA31 12
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); State v.
Bennington, 2019-Ohio-4386, 148 N.E.3d 1, ¶ 11 (4th Dist.).
{¶25} An appellate court must construe the evidence in a “light most favorable to the
prosecution.” State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant,
67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). Further, “[t]he court must defer to the trier of
fact on questions of credibility and the weight assigned to the evidence.” State v. Dillard, 4th
Dist. Meigs No. 13CA9, 2014-Ohio-4974, ¶ 22, citing State v. Kirkland, 140 Ohio St.3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State v. Lodwick, 2018-Ohio-3710, 118 N.E.3d 948,
¶ 9 (4th Dist.). Thus, “a reviewing court is not to assess ‘whether the state’s evidence is to
be believed, but whether, if believed, the evidence against a defendant would support a
conviction.’” State v. Davis, 4th Dist. Ross No. 12CA3336, 2013-Ohio-1504, ¶ 12, quoting
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring).
Rather, a reviewing court will not overturn a conviction on a sufficiency of the evidence claim
unless reasonable minds could not reach the conclusion that the trier of fact did. State v.
Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d
460, 484, 739 N.E.2d 749 (2001).
b. Manifest Weight
{¶26} In determining whether a criminal conviction is against the manifest weight of
the evidence, we must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage
of justice that reversal of the conviction is necessary. State v. Thompkins, 78 Ohio St.3d 380,
Ross App. No. 22CA31 13
387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶ 119. To satisfy this test, the state must introduce substantial evidence on all
the elements of an offense, so that the jury can find guilt beyond a reasonable
doubt. See State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304, syllabus; State v. Harvey,
4th Dist. Washington No. 21CA3, 2022-Ohio-2319, ¶ 24. Because a trier of fact sees and
hears the witnesses, appellate courts will also afford substantial deference to a trier of fact's
credibility determinations. State v. Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 61 (4th
Dist.).
2. Elements of Possession of Deadly Weapon
{¶27} Possession of a deadly weapon is prohibited by R.C. 2923.131(B): “No person
under detention at a detention facility shall possess a deadly weapon.” Deadly weapon is
defined as “any instrument, device, or thing capable of inflicting death, and designed or
specially adapted for use as a weapon, or possessed, carried, or used as a weapon.” R.C.
2923.11(A). To convict Evans, the state would have to prove: (1) Evans was under detention
at a detention facility; (2) Evans possessed an object capable of inflicting death; and (3) the
object was either (a) designed or specially adapted for use as a weapon or (b) possessed,
carried or used as a weapon. State v. Gibson, 4th Dist. Ross No. 10CA3174, 2011-Ohio-
1651, ¶ 20. Evans contests the second element: that the weapon was capable of inflicting
death.
3. Analysis of Sufficiency and Manifest Weight of the Evidence
{¶28} Officer Borland testified that Evans referred to the weapon in his pocket as a
“knife” and Borland identified that the four-inch metal scissor blade, that had been modified
Ross App. No. 22CA31 14
to have a sharper endpoint and better grip, was the weapon that he removed from Evans’s
pants pocket. Officer Borland was explicitly asked by defense counsel whether the fact that
a portion of the blade was wrapped in bed sheets would affect its function and he testified
that it would make it easier to use because it provided a better grip and enabled better
penetration of the skin. Other courts have found that the size of the object does not prevent
its use as a deadly weapon. See State v. Montanaro, 5th Dist. Richland No. 21CA49, 2022-
Ohio-4343, ¶ 10 (half of a broken metal tweezer, sharpened to a point, was sufficient
evidence of a deadly weapon because “the small size of the item does not invalidate its use
as a deadly weapon because it is easy to conceal and inflict poking-type injuries to vital
organs”). Trooper Wells testified that the sharpened metal scissor blade was “very easily a
deadly weapon in multiple forms * * * this can both stab and/or cut so it is a very dangerous
weapon* * * the stiffness of the metal, that makes it very likely that it could cause harm or
death.”
{¶29} Finally, the weapon was admitted into evidence at trial and the jury was able to
see the four-inch metal sharpened scissor blade and its bed sheet grip. It is well within the
comprehension of a layperson and requires only common knowledge and experience to
understand whether a four-inch sharpened metal scissor blade is capable of inflicting death.
See generally Adkins v. Yamaha Motor Corp., U.S.A., 2014-Ohio-3747, 17 N.E.3d 654, ¶ 24
(4th Dist.) (specialized expert testimony is not necessary for matters that fall within the
common knowledge and experience of a layperson).
{¶30} We reject Evans’s contention that his conviction was not supported by sufficient
evidence. After viewing the evidence in a light most favorable to the prosecution, we conclude
that any rational trier of fact could have found the essential elements of possession of a
Ross App. No. 22CA31 15
deadly weapon proven beyond a reasonable doubt. Evans was under detention, was in
possession of the weapon, and it was adapted for use as a weapon because it was
sharpened and a grip added. These elements were not contested by him on appeal and were
proven beyond a reasonable doubt. As to the contested element, there was evidence that
the weapon was capable of inflicting death through the testimony of several officers and by
the admission of the object itself for the jury’s inspection. Any rational trier of fact could have
found that the sharpened metal scissor blade was capable of inflicting death.
{¶31} We also reject Evans’s contention that his conviction was against the manifest
weight of the evidence. After our review of the record, and after we consider the evidence
and testimony adduced at trial and all reasonable inferences therefrom, witness credibility,
and the conflicts in the evidence or lack thereof, we do not believe that the jury clearly lost
its way so as to create a manifest miscarriage of justice such that Evans’s conviction must
be reversed and a new trial ordered. Instead, we believe that the state adduced substantial
evidence at trial through the admission of the weapon and the uncontroverted witness
testimony of Officer Webb, Officer Borland, and Trooper Wells to prove all of the elements of
this offense beyond a reasonable doubt.
{¶32} We overrule Evans’s second and third assignments of error.
C. Regan Tokes Law
{¶33} For his fourth assignment of error, Evans contends that the trial court erred by
sentencing him under the Reagan Tokes Law because it is unconstitutional. He argues that
it violates his right to a jury trial, the separation of powers doctrine, and due process and
equal protection. Evans concedes that he did not challenge the constitutionality of the
Reagan Tokes Law at the trial level and has therefore forfeited all but plain error review.
Ross App. No. 22CA31 16
State v. Alexander, 2022-Ohio-1812, 190 N.E.3d 651, ¶ 52 (4th Dist.).
{¶34} We have rejected all three arguments multiple times in recent court decisions
and will not rehash the analysis again here as Evans does not address any of these decisions
or offer any reason for us to revisit them. In short, we reject his arguments that the Regan
Tokes Law violates the right to trial by jury, the separation of powers doctrine, or that it
violates due process and equal protection rights. E.g., State v. Holsinger, 4th Dist. Lawrence
No. 21CA20, 2022-Ohio-4092, ¶ 33-57; State v. Wells, 4th Dist. Washington No. 21CA16,
2022-Ohio-3793, ¶ 36-41; State v. Drennen, 4th Dist. Gallia No. 21CA10, 2022-Ohio-3413,
¶ 16-27; State v. Long, 4th Dist. Pickaway No. 20CA9, 2022-Ohio-3212, ¶ 8; State v.
Chapman, 2022-Ohio-2853, 195 N.E.3d 178, ¶ 70-78 (4th Dist.); Alexander at ¶ 44-61; State
v. Bontrager, 2022-Ohio-1367, 188 N.E.3d 607, ¶ 34-49 (4th Dist.).
{¶35} We note that the Reagan Tokes Law has been found constitutional by the
Second, Third, Fifth, Sixth, and Twelfth Districts and also by the Eighth District sitting en
banc. See, e.g., State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State
v. Hacker, 2020-Ohio-5048, 161 N.E.3d 112 (3d Dist.); State v. Ratliff, 5th Dist. Guernsey
No. 21CA16, 2022-Ohio-1372; State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682 (6th
Dist.); State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State v.
Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.).
{¶36} We overrule Evans’s fourth assignment of error.
IV. CONCLUSION
{¶37} We overrule Evans’s four assignments of error and affirm the trial court’s
judgment.
JUDGMENT AFFIRMED
.
Ross App. No. 22CA31 17
Ross App. No. 22CA31 18
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellant to pay 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 Ross County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted
by the trial court or this court, it is temporarily continued for a period not to exceed 60 days
upon the bail previously posted. The purpose of a continued stay is to allow appellant to file
with the Supreme Court of Ohio an application for a stay during the pendency of the
proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of
the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal
with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the
Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.