State v. Conant

[Cite as State v. Conant, 2020-Ohio-4319.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY

STATE OF OHIO, : Case No. 20CA1108

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
ROBERT JAMES CONANT, :

Defendant-Appellant. : RELEASED 8/27/2020
______________________________________________________________________
APPEARANCES:

Brian T. Goldberg, Cincinnati, Ohio, for appellant.

David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County Assistant
Prosecutor, West Union, Ohio, for appellee.
______________________________________________________________________
Hess, J.

{¶1} Robert Conant appeals his conviction, following a jury trial, for felonious

assault. Conant contends that the trial court erred when it refused to instruct the jury on

assault as a lesser included offense of felonious assault. However, after viewing the

evidence in a light most favorable to Conant, we conclude the jury could not reasonably

find him not guilty of felonious assault but guilty of assault. Therefore, the trial court did

not abuse its discretion when it refused to give the requested instruction.

{¶2} Conant also asserts his conviction is not supported by sufficient evidence

and is against the manifest weight of the evidence. However, 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 the crime proven beyond a

reasonable doubt, and after weighing the evidence and all reasonable inferences,
Adams App. No. 20CA1108 2

considering the credibility of the witnesses after according the requisite deference to the

jury’s determinations, we conclude that in resolving evidentiary conflicts, the jury did not

clearly lose its way or create a manifest miscarriage of justice so that we must reverse

its verdict. Therefore, we reject Conant’s argument.

{¶3} Next, Conant claims that he received ineffective assistance of counsel

because trial counsel did not request dismissal or further questioning of a juror who felt

Conant should have to testify and because counsel allowed improper testimony about

his prior bad acts. However, the juror did not express a belief that conflicted with

Conant’s Fifth Amendment right against self-incrimination, and the complained of

testimony did not violate Evid.R. 404(B). Therefore, counsel’s performance regarding

those matters was not deficient.

{¶4} Conant also contends that the trial court erred when it sentenced him

under the Reagan Tokes Law because it is unconstitutional. However, Conant did not

challenge the constitutionality of the Reagan Tokes Law at the trial level, so he has

forfeited all but plain error review as to this issue. Conant does not argue plain error,

and we decline to sua sponte conduct a plain error analysis.

{¶5} Finally, Conant asserts that the trial court erred when it imposed both a

prison term and a no-contact order, which is a community-control sanction. Because a

trial court generally lacks authority to impose a prison term and community-control

sanction for the same felony offense and no express exception applies in this case, we

agree. Accordingly, we vacate the no-contact order and remand for the trial court to

issue a corrected sentencing entry that removes reference to that order. We affirm the

trial court’s judgment in all other respects.
Adams App. No. 20CA1108 3

I. FACTS AND PROCEDURAL HISTORY

{¶6} The Adams County grand jury indicted Conant on one count of felonious

assault in violation of R.C. 2903.11(A)(1), a second-degree felony. He pleaded not

guilty and the matter proceeded to a jury trial.

{¶7} Ashley McAfee testified that she and Conant had been engaged and had

lived together for several years in a two-bedroom apartment. For a couple of weeks

prior to October 29, 2019, the couple had been sleeping in different bedrooms because

Conant had accused McAfee of cheating on him, and they had been arguing. On

October 29, 2019, she went into the bedroom Conant had been sleeping in to get some

clothes to get ready for an appointment. Conant accused her of getting ready to cheat

on him, followed her into the other bedroom, accused her of cheating on him with

“everybody in Adams County,” told her he wanted oral sex, exposed his penis, and

started to come towards her. McAfee threatened to cut his penis off, and Conant

grabbed her by the hair, pulled her off the bed, grabbed her throat, and started to choke

her, “pushing downwards with his body weight and squeezing.” McAfee testified that

this “wasn’t painful,” but “it was scary.” She could not breathe and “ended up blacking

out losing consciousness.” When she started to “come to,” “light, color, and objects

were becoming visible again,” her head “felt weird” as if it had been hanging “upside

down for very long,” and her arms and legs were shaking, which reminded her of a

seizure. Conant was no longer “over top” of her and choking her; he was standing near

her shins, staring at her. She grabbed her phone but Conant jerked it out of her hand.

She screamed for help and for someone to call 9-1-1. Conant got behind her and

squeezed her throat with one hand and used his other hand to cover her mouth and at
Adams App. No. 20CA1108 4

times smack her mouth and face. When he stopped, she tried to leave the apartment

but he would not let her. Eventually, Conant returned her phone and left the apartment

when she called 9-1-1.

{¶8} McAfee testified that Chief William Newland came to the scene,

photographed injuries on her neck, and “called for a squad.” McAfee testified that she

had a small cut on her hand from the incident but was not sure how she got it and did

not recall trying to fight Conant off. Paramedics took her blood pressure and pulse and

recommended that she go to the hospital to get checked out, but she refused because

she “just wanted to be alone” at home. She did go a few days later. McAfee admitted

that she had prior convictions for falsification in 2014 and theft in 2008.

{¶9} Chief Newland of the Peebles Police Department testified that when he

arrived on the scene, McAfee was crying, shaking, and seemed to “grasp for breath to

be able to talk to” him. His body camera recorded McAfee telling him that Conant had

“choked [her] out” and that she “blacked out.” Chief Newland testified that he

photographed injuries to McAfee’s neck and called paramedics to assess her. Later

that day, he photographed a red mark on Conant’s right forearm and scratch marks on

the left side of his neck. Chief Newland testified that the neck injuries appeared to be

fresh, and McAfee testified that Conant did not have any marks on his neck or arms

before the altercation.

{¶10} Dr. Maura Manning testified that McAfee came to the Adams County

Regional Medical Center on October 31, 2019, to have injuries from an assault

evaluated. McAfee “had significant neck pain” and “some markings on her neck * * *

that she wanted addressed.” McAfee had a linear bruise on the right side of her neck
Adams App. No. 20CA1108 5

that was about four centimeters long, a linear bruise on the left side of her neck that was

about three and a half centimeters long, and other smaller areas of bruising on her

neck. Dr. Manning testified that “there was definitely injury that would be consistent with

muscular strain in the back of the neck” and that McAfee’s injuries were consistent with

having been strangled. Dr. Manning’s notes from the hospital visit state that McAfee

“denie[d] loss of consciousness”; however, Dr. Manning testified that McAfee “was

concerned because she * * * had an altered mental status and altered level of

consciousness at one point during the assault and she wanted to be assessed for that.”

Dr. Manning testified that there is no medical test that will reveal whether someone who

was strangled lost consciousness and that a loss of consciousness due to strangulation

can occur with very little visible injury. She also testified that McAfee could have been

incapacitated even if she did not lose consciousness. Dr. Manning testified that when a

person is being manually strangled, it can take three or four minutes before the person’s

oxygen saturation drops enough for the person to lose consciousness. Even if pressure

is removed right before the person passes out, it “takes a while [sic] for your oxygen

saturation to improve enough to be alert and oriented times three,” meaning the person

is “alive and functioning * * * as they should be.”

{¶11} Jason Hayslip, jail administrator for the Adams County Sheriff’s Office,

testified that jail inmates have a personal pin number for making phone calls, and on

November 1, 2019, the jail communications system recorded a call associated with

Conant’s pin number that was between a male and a female. On the recording, the

male asks whether anyone has talked to “Ashley.” The female responds, “Not that I

know of, I haven’t talk to anybody.” The male says, “Well fucking ask them, tell, tell
Adams App. No. 20CA1108 6

them to ask if she’s even going to show up. That’s what I need to know. And if so if

she’s subpoenaed to, fucking just say that she don’t remember nothing, or something,

fuck I don’t know.” Hayslip identified the male speaker as Conant but could not identify

the female speaker.

{¶12} The trial court denied Conant’s request for a jury instruction on assault as

a lesser included offense of felonious assault, and the jury found Conant guilty as

charged. The trial court sentenced him to a minimum prison term of five years and a

maximum prison term of seven and a half years. The court also ordered Conant to

have no contact with McAfee.

II. ASSIGNMENTS OF ERROR

{¶13} Conant assigns the following errors for our review:

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CONANT BY
OVERRULING THE REQUEST FOR AN INSTRUCTION ON THE
LESSER INCLUDED OFFENSE OF ASSAULT

SECOND ASSIGNMENT OF ERROR

THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN
APPELLANT’S CONVICTIONS

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT’S
SIXTH AMENDMENT RIGHTS BY ENTERING JUDGEMENT [sic] OF
CONVICTION AFTER A TRIAL AT WHICH APPELLANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL FOR HER [sic] DEFENSE

FOURTH ASSIGNMENT OF ERROR

THE REAGAN TOKES ACT, AS ENACTED BY THE OHIO LEGISLATOR
[sic] IS UNCONSTITIONAL, AND THE TRIAL COURT ERRED BY
SENTENCING MR. CONANT UNDER THAT ACT
Adams App. No. 20CA1108 7

FIFTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CONANT BY
SENTENCING HIM TO PRISON FOR A TERM OF INCARCERATION,
AND ISSUING A NO-CONTACT ORDER.

III. JURY INSTRUCTIONS

{¶14} In the first assignment of error, Conant contends that the trial court erred

when it refused to instruct the jury on assault under R.C. 2903.13(A). The parties agree

that assault is a lesser included offense of felonious assault under R.C. 2903.11(A)(1),

and Conant asserts that the jury reasonably could have found that McAfee suffered

physical harm, warranting an assault conviction, but that the physical harm was not

serious as required for a felonious assault conviction because she “suffered a brief loss

of consciousness but did not seek treatment at the scene” and “[n]one of the injuries

appear to be permanent.” Conant acknowledges that other Ohio appellate courts have

held that being choked to the point of unconsciousness is serious physical harm but

urges us to reject that precedent and follow the dissenting opinion in State v. Mushrush,

135 Ohio App.3d 99, 733 N.E.2d 252 (1st Dist.1999).

{¶15} “When the indictment * * * charges an offense, including different degrees,

or if other offenses are included within the offense charged, the jury may find the

defendant not guilty of the degree charged but guilty of an inferior degree thereof or

lesser included offense.” R.C. 2945.74; See also Crim.R. 31(C). “The question of

whether a particular offense should be submitted to the finder of fact as a lesser

included offense involves a two-tiered analysis.” State v. Deanda, 136 Ohio St.3d 18,

2013-Ohio-1722, 989 N.E.2d 986, ¶ 6.
Adams App. No. 20CA1108 8

{¶16} “The first tier, also called the ‘statutory-elements step,’ is a purely legal

question, wherein we determine whether one offense is generally a lesser included

offense of the charged offense.” Id., quoting State v. Kidder, 32 Ohio St.3d 279, 281,

513 N.E.2d 311 (1987). In making this determination,

a court shall consider whether one offense carries a greater penalty than
the other, whether some element of the greater offense is not required to
prove commission of the lesser offense, and whether the greater offense
as statutorily defined cannot be committed without the lesser offense as
statutorily defined also being committed.

State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, paragraph two of

the syllabus, clarifying State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988).

{¶17} “The second tier looks to the evidence in a particular case and determines

whether ‘ “a jury could reasonably find the defendant not guilty of the charged offense,

but could convict the defendant of the lesser included offense.” ’ ” Deanda at ¶ 6,

quoting Evans at ¶ 13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-

2072, 865 N.E.2d 859, ¶ 11. “The trial court has discretion in determining whether the

record contains sufficient evidentiary support to warrant a jury instruction on the lesser-

included offense, and we will not reverse that determination absent an abuse of

discretion.” State v. Blanton, 4th Dist. Adams No. 16CA1035, 2018-Ohio-1278, ¶ 64.

“An abuse of discretion * * * implies that the court’s attitude is arbitrary, unreasonable,

or unconscionable.” Id. Although “the discretion of the trial judge play[s] a role in

whether lesser-included-offense instructions are appropriate * * * the evidence is

crucial[.]” State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 21.

“ ‘[T]he trial court must view the evidence in the light most favorable to the defendant.’ ”

Id., quoting State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶
Adams App. No. 20CA1108 9

37. “The trial court must give an instruction on a lesser included offense if under any

reasonable view of the evidence it is possible for the trier of fact to find the defendant

not guilty of the greater offense and guilty of the lesser offense.” Id. at ¶ 34.

{¶18} R.C. 2903.11(A)(1) states: “No person shall knowingly * * * [c]ause

serious physical harm to another * * *.” R.C. 2903.13(A) states: “No person shall

knowingly cause or attempt to cause physical harm to another * * *.” “ ‘Physical harm to

persons’ means any injury, illness, or other physiological impairment, regardless of its

gravity or duration.” R.C. 2901.01(A)(3). “Serious physical harm to persons” includes

“[a]ny physical harm * * * that involves some temporary, substantial incapacity[.]” R.C.

2901.01(A)(5)(c).

{¶19} We agree with the parties that assault under R.C. 2903.13(A) is a lesser

included offense of felonious assault under R.C. 2903.11(A)(1). State v. Nipper, 12th

Dist. Butler No. CA2002-06-135, 2003-Ohio-4449, ¶ 24. Felonious assault carries a

greater penalty than assault. See R.C. 2903.11(D)(1)(a) (felonious assault is generally

a second-degree felony); R.C. 2929.14(A)(2)(a) (second-degree felony committed on or

after March 22, 2019, subject to minimum prison term of two years); R.C. 2903.13(C)(1)

(assault is generally a first-degree misdemeanor); R.C. 2929.24(A)(1) (first-degree

misdemeanor subject to jail term not to exceed 180 days). An element of felonious

assault, i.e., the physical harm must be serious, is not required to prove assault, and

felonious assault as statutorily defined cannot be committed without assault as

statutorily defined also being committed.

{¶20} However, viewing the evidence in a light most favorable to Conant, the

jury could not reasonably find him not guilty of felonious assault but guilty of assault.
Adams App. No. 20CA1108 10

McAfee testified that Conant choked her to the point that she lost consciousness, and

we agree with our sister districts that a brief loss of consciousness is a temporary,

substantial incapacity and is therefore serious physical harm. See State v. Craig, 1st

Dist. Hamilton No. C-160816, 2020-Ohio-3103, ¶ 29; State v. Booker, 2d Dist.

Montgomery No. 22990, 2009-Ohio-1039, ¶ 16; State v. Redman, 3d Dist. Allen No. 1-

15-54, 2016-Ohio-860, ¶ 26; State v. Waugaman, 5th Dist. Richland No. 18CA18, 2019-

Ohio-1102, ¶ 29; State v. Wimpey, 6th Dist. Lucas No. L-18-1262, 2019-Ohio-4823, ¶

23; State v. Buchanan, 8th Dist. Cuyahoga No. 105706, 2018-Ohio-1086, ¶ 25; State v.

Sales, 9th Dist. Summit No. 25036, 2011-Ohio-2505, ¶ 19; State v. Petty, 10th Dist.

Franklin Nos. 11AP-716 & 11AP-766, 2012-Ohio-2989, ¶ 34; State v. Church, 12th Dist.

Butler No. CA2011-04-070, 2012-Ohio-3877, ¶ 18.

{¶21} We decline to adopt the position of the dissent in Mushrush. In that case,

the defendant set off a mace canister in a school auditorium during a talent show, and a

woman had a seizure and “went into convulsions.” Mushrush, 135 Ohio App.3d at 104,

733 N.E.2d 252 (lead opinion). The defendant pleaded guilty to felonious assault of the

woman, assault of another individual, and three counts of inducing panic. Id. at 104-

105. For purposes of sentencing, the trial court found that the defendant’s conduct was

more serious than conduct normally constituting the offense of inducing panic, in part

because he caused serious physical harm to the woman. Id. at 108. One member of

the appellate court panel agreed because the woman “suffered choking and

unconsciousness as a direct result of the defendant’s actions,” and “[b]eing choked ‘to

the point of unconsciousness constitutes serious physical harm * * * as it cause[s] [the

victim] to be in a state of temporary, substantial incapacity.’ ” (Second and third
Adams App. No. 20CA1108 11

alterations in Mushrush.) Id., quoting State v. Czajka, 101 Ohio App.3d 564, 574, 656

N.E.2d 9 (8th Dist.1995). Even though the defendant had pleaded guilty to felonious

assault, the dissenting jurist opined that he did not commit that crime, that “[n]o

argument can be seriously advanced that the harm to [the woman], unfortunate though

it was, fits any of the” statutory categories of serious physical harm, and that Czajka

was “wrongly decided.” Id. at 115-116 (Painter, J., dissenting). We do not find these

conclusory assertions persuasive.

{¶22} McAfee’s testimony that Conant choked her to the point that she lost

consciousness is consistent with her statement to Chief Newland immediately after the

incident and is supported by photographic evidence of the bruises on her neck and Dr.

Manning’s testimony that the injuries were consistent with strangulation, which could

have caused a loss of consciousness with very little visible injury. Although Dr.

Manning’s notes provide some evidence that McAfee experienced a change in

consciousness short of a loss of consciousness when she was being strangled, Dr.

Manning testified that McAfee reported “an altered mental status and altered level of

consciousness” and explained that McAfee could have been incapacitated even if she

did not lose consciousness. In describing the effects of the strangulation, McAfee could

not account for a period of time during which Conant stopped choking her and changed

positions and testified that she suffered temporary vision loss, that her head felt weird,

and that her arms and legs were shaking. Given this evidence, the jury could not

reasonably find that the harm McAfee suffered was not serious. The trial court did not

abuse its discretion when it refused to instruct the jury on assault. Accordingly, we

overrule the first assignment of error.
Adams App. No. 20CA1108 12

IV. SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE

{¶23} In the second assignment of error, Conant contends that his conviction is

not supported by sufficient evidence and is against the manifest weight of the evidence.

He asserts that the “only evidence” that he committed the offense is McAfee’s testimony

because he “did not make any admissions and no independent witnesses testified.”

Conant also asserts that the evidence does not show McAfee suffered serious physical

harm because “[t]he most significant harm that [she] suffered was the temporary loss of

consciousness.”

{¶24} “When a court reviews a 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.’ ” (Alteration in Maxwell.) State v. Maxwell, 139 Ohio St.3d 12,

2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting 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). “A sufficiency assignment of error

challenges the legal adequacy of the state’s prima facie case, not its rational

persuasiveness.” State v. Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395, ¶

13. “That limited review does not intrude on the jury’s role ‘to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.’ ” Musacchio v. United States, ___ U.S. ___, 136 S.Ct. 709, 715, 193

L.Ed.2d 639 (2016), quoting Jackson at 319.

{¶25} In determining whether a conviction is against the manifest weight of the

evidence, an appellate court
Adams App. No. 20CA1108 13

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. In order 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.

Although a court of appeals may determine that a judgment of a
trial court is sustained by sufficient evidence, that court may nevertheless
conclude that the judgment is against the weight of the evidence.
However, we are reminded that generally, it is the role of the jury to
determine the weight and credibility of evidence. “ ‘A jury, sitting as the
trier of fact, is free to believe all, part or none of the testimony of any
witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams
No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist.
Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact
on these evidentiary weight and credibility issues because it is in the best
position to gauge the witnesses’ demeanor, gestures, and voice
inflections, and to use these observations to weigh their credibility.

(Citations omitted.) Anderson at ¶ 14-15.

{¶26} The state introduced evidence from which any rational trier of fact could

have found the essential elements of felonious assault proven beyond a reasonable

doubt, and in resolving conflicts in the evidence, the jury did not clearly lose its way and

create such a manifest miscarriage of justice that reversal of the conviction is

necessary. The state introduced evidence that Conant strangled McAfee to the point

that she suffered temporary, substantial incapacity. The jury was free to believe

McAfee’s testimony even though no one else witnessed the attack and Conant did not

confess. Conant’s effort to influence McAfee’s testimony provides some evidence of his

guilt, and again, McAfee’s testimony is supported by photographic evidence of the

bruises on her neck and Dr. Manning’s testimony that the injuries were consistent with

strangulation, which could have caused a loss of consciousness with very little visible

injury and could have caused incapacity without a loss of consciousness. Because
Adams App. No. 20CA1108 14

sufficient evidence supports the felonious assault conviction and it is not against the

manifest weight of the evidence, we overrule the second assignment of error.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

{¶27} In the third assignment of error, Conant contends that the trial court

violated his Sixth Amendment rights when it entered a judgment of conviction after a

trial at which he received ineffective assistance of counsel.

{¶28} To prevail on an ineffective assistance claim, a defendant must show: “(1)

deficient performance by counsel, i.e., performance falling below an objective standard

of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but

for counsel’s errors, the proceeding’s result would have been different.” State v. Short,

129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Failure to satisfy either part of the test is fatal to the claim. See Strickland at 697. The

defendant “has the burden of proof because in Ohio, a properly licensed attorney is

presumed competent.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 62. We “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’ ” Strickland at 689, quoting Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158, 100 L.E. 83 (1955).

A. Juror Issue

{¶29} Conant contends that trial counsel was ineffective for not asking the court

to dismiss a juror who felt that he should have to testify in violation of his Fifth
Adams App. No. 20CA1108 15

Amendment right against self-incrimination or asking the court to question her outside

the presence of the other jurors to ensure she could be fair and impartial. Conant

directs our attention to the following exchange, which occurred prior to jury

deliberations, after the court asked whether the jurors had any questions:

UNKNOWN FEMALE: Is there any way, I mean, I don’t think I’m allowed
for a while [sic], but could James say something? He’s not said anything
the whole time we’ve been here, and I didn’t know that’s the reason I’m
asking.

COURT: Well um, certainly he’s consulted with his counsel, but I return
you, uh, to the fact that [sic].

UNKNOWN FEMALE: [inaudible]

COURT: Um, yeah, it is not necessary that the defendant take the
witness stand in his own defense.

UNKNOWN FEMALE: Okay.

COURT: Uh, the defendant has a constitutional right. What most of us
know as the Fifth Amendment right not to testify. The fact that he did not
testify must not, I repeat, must not be considered for any purpose.

UNKNOWN FEMALE: Okay. Well it wasn’t I was just trying to figure
voices out [sic].

COURT: Okay. I see what you’re saying.

UNKNOWN FEMALE: Okay.

COURT: You’ll have to rely upon the testimony and the weight that you
may give that testimony good or bad.

UNKNOWN FEMALE: Okay.

{¶30} Although the unknown female does appear to be a juror, counsel’s failure

to move for further questioning of or dismissal of her was not ineffective assistance.

The juror explained that she had asked whether Conant could “say something,”
Adams App. No. 20CA1108 16

because she was “trying to figure voices out.” When her statements are considered in

context with the evidence introduced at trial, which included the recording of the jail call,

it is apparent that the juror wanted to know if she could hear Conant’s voice to compare

it to the male voice which Hayslip identified as Conant’s voice. The juror did not

express a belief that Conant should have to testify or that his failure to do so could or

should be considered as evidence against him. When the court reiterated its prior

instruction that Conant’s decision to not testify “must not be considered for any

purpose,” the juror expressed that she understood, stating, “Okay.” Because the juror

did not express a belief that was inconsistent with Conant’s right against self-

incrimination, a request for her dismissal or further questioning on the basis that she

had would have been futile. “ ‘ The law does not require counsel to take a futile act’ * *

*.” State v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 24, quoting

State v. Cottrell, 4th Dist. Ross Nos. 11CA3241 & 11CA3242, 2012-Ohio-4583, ¶ 20.

Accordingly, counsel’s performance with regard to this matter was not deficient.

B. Other Acts Evidence

{¶31} Conant contends that trial counsel rendered ineffective assistance by

allowing testimony about his prior bad acts in violation of Evid.R. 404(B). Conant

asserts that trial counsel did not object when McAfee testified that she was sleeping in a

different bedroom than Conant “[b]ecause the abuse kept getting worse, the fighting,

arguing,” and counsel did not move to strike this testimony. Conant also asserts that on

cross-examination, trial counsel asked McAfee about fighting with him in the days

leading up to the incident, asked whether the relationship had been violent in the past,

and was cautioned during a sidebar that “he was close to opening doors that might
Adams App. No. 20CA1108 17

allow certain evidence to be used against Mr. Conant.” Conant asserts that evidence of

his prior bad acts was prejudicial because the strength of the other evidence against

him “was minimal.”

{¶32} “The trial court has broad discretion in the admission or exclusion of

evidence[.]” State v. Fannon, 2018-Ohio-5242, 117 N.E.3d 10, ¶ 65 (4th Dist.).

“Generally, all relevant evidence is admissible.” State v. Clay, 4th Dist. Lawrence No.

11CA23, 2013-Ohio-4649, ¶ 34, citing Evid.R. 402. However, Evid.R. 404(B) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. * * *

“The listed exceptions within Evid.R. 404(B) are not exclusive, and ‘other acts’ evidence

not fitting within the enumerated categories may be admissible so long as the evidence

is admitted for any proper purpose other than proving the defendant’s propensity to act

in * * * conformity with a particular trait of his [or her] character.” State v. Wilkins, 10th

Dist. Franklin No. 18AP-797 & 18AP-798, 2020-Ohio-3428, ¶ 24.

{¶33} McAfee’s testimony did not violate Evid.R. 404(B). On direct examination,

when McAfee testified that she was sleeping in a different bedroom “[b]ecause the

abuse kept getting worse, the fighting, arguing,” she did not testify that Conant had

physically attacked her. On cross-examination, McAfee testified that a couple of weeks

before the incident in question, she and Conant had an argument about him going to

see his sister get taken off of life support. She also testified that they were sleeping in

different bedrooms “[b]ecause of the arguing and him accusing me of cheating on him.”

Again, she did not testify that Conant had physically attacked her. Although defense
Adams App. No. 20CA1108 18

counsel inquired about whether the relationship had been violent in the past, counsel

withdrew the question before McAfee answered it.

{¶34} McAfee did not testify about other acts of violence Conant committed

which might have led the jury to improperly conclude that he had a violent character

which he acted in conformity with on October 29, 2019. Evidence that in the weeks

leading up to the felonious assault, the couple had argued about family matters and

alleged infidelity and had stopped sharing a bedroom does not show that Conant had a

violent character but rather was background information that explained the status of the

relationship between Conant and McAfee and circumstances leading up to the felonious

assault. “Background information is admissible to give the jury the setting of the case.”

State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 32. Because

McAfee’s testimony did not violate Evid.R. 404(B), defense counsel’s performance was

not deficient, and we overrule the third assignment of error.

VI. REAGAN TOKES LAW

{¶35} In the fourth assignment of error, Conant contends that the trial court erred

when it sentenced him pursuant to the Reagan Tokes Law because it is

unconstitutional.

{¶36} The Reagan Tokes Law requires that a court imposing a prison term

under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second degree felony committed on

or after March 22, 2019, impose a minimum prison term under that provision and a

maximum prison term determined under R.C. 2929.144(B). R.C. 2929.144(C). There is

a presumption that the offender “shall be released from service of the sentence on the

expiration of the offender’s minimum prison term or on the offender’s presumptive
Adams App. No. 20CA1108 19

earned early release date, whichever is earlier.” R.C. 2967.271(B). A presumptive

earned early release date is a date determined under procedures described in R.C.

2967.271(F) which allow the sentencing court to reduce the minimum prison term under

certain circumstances. R.C. 2967.271(A)(2). The Department of Rehabilitation and

Correction (“DRC”) may rebut the presumption if it determines at a hearing that one or

more statutorily numerated factors applies. R.C. 2967.271(C). If DRC rebuts the

presumption, it may maintain the offender’s incarceration after the expiration of the

minimum prison term or presumptive earned early release date for a reasonable period

of time, determined and specified by DRC, that “shall not exceed the offender’s

maximum prison term.” R.C. 2967.271(D)(1).

{¶37} Conant maintains that the Reagan Tokes Law violates the separation of

powers doctrine and due process because R.C. 2967.271(C)(1) allows DRC to extend a

prison sentence if it determines, among other things, that the offender committed an

unprosecuted violation of the law. He asserts that this is “the same scheme” that

existed under former R.C. 2967.11, which allowed the parole board to extend an

offender’s stated prison term if it determined the offender committed a criminal offense

while incarcerated. Conant argues that in State ex rel. Bray v. Russell, 89 Ohio St.3d

132, 729 N.E.2d 359 (2000), the Supreme Court of Ohio held former R.C. 2967.11

violated the separation of powers doctrine because trying, convicting, and sentencing

inmates for crimes committed while incarcerated is not an exercise of executive power.

He also argues that due process requires that the decision to restrict an individual’s

freedom be made by a judge, relying on White v. Konteh, 11th Dist. Trumbull No. 99-T-
Adams App. No. 20CA1108 20

0020, 1999 WL 587976 (Mar. 23, 1999), which held that former R.C. 2967.11 violated

due process.

{¶38} The state maintains that Conant lacks standing to challenge the

constitutionality of the Reagan Tokes Law because he has not been injured by its

allegedly unconstitutional provision as DRC has not maintained his incarceration

beyond his minimum prison term. Alternatively, the state argues that the law is

distinguishable from former R.C. 2967.11. The state asserts that under former R.C.

2967.11, the parole board could extend an offender’s sentence beyond the prison term

imposed by the sentencing court whereas under the Reagan Tokes Law, the court

imposes the minimum and maximum sentence, and DRC only decides when the

defendant will be released from prison within that time range. The state maintains that

this is “no different than parole; and the powers of parole have been vested in the

Executive and upheld for a very long time.”

{¶39} The constitutionality of a statute presents a question of law we review de

novo. Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.).

However, “ ‘the question of the constitutionality of a statute must generally be raised at

the first opportunity and, in a criminal prosecution, this means in the trial court.’ ” State

v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting

State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). “We may review the

trial court decision for plain error, but we require a showing that but for a plain or

obvious error, the outcome of the proceeding would have been otherwise, and reversal

must be necessary to correct a manifest miscarriage of justice.” (Citation omitted.) Id. at

¶ 16. “The burden of demonstrating plain error is on the party asserting it.” Id. The
Adams App. No. 20CA1108 21

Supreme Court of Ohio has also “stated that a forfeited constitutional challenge to a

statute is subject to review ‘where the rights and interests involved may warrant it.’ ” Id.,

quoting In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

{¶40} Conant did not assert a constitutional challenge to the Reagan Tokes Law

at the trial level and has therefore forfeited all but plain error. Conant has not argued

plain error on appeal, and we decline to construct a plain error argument on his behalf,

particularly when R.C. 2967.271(C)(1) has not been and might never be applied to him,

and he has not responded to the state’s standing argument. See generally State v.

Steers, 4th Dist. Washington No. 11CA33, 2013-Ohio-3266, ¶ 20 (declining to sua

sponte review an assignment of error using a plain error analysis). Accordingly, we

overrule the fourth assignment of error.

VII. NO-CONTACT ORDER

{¶41} In the fifth assignment of error, Conant contends that the trial court erred

by imposing a prison term and a no-contact order, which is a community-control

sanction, for the same offense, relying on State v. Anderson, 143 Ohio St.3d 173, 2015-

Ohio-2089, 35 N.E.3d 512. The trial court acknowledged that the no-contact order

conflicted with Supreme Court of Ohio precedent and created an “appealable issue” but

imposed the order anyway because DRC had started to give inmates tablets with

communication abilities. The state urges us to affirm the no-contact order because

DRC has “blurred the lines between prison sentences and community control

sanctions.”

{¶42} When reviewing felony sentences appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d
Adams App. No. 20CA1108 22

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 7. R.C. 2953.08(G)(2) provides that “[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion”; rather, the appellate court may increase, reduce, or modify the sentence or

vacate it and remand for resentencing if the court clearly and convincingly finds either:

(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

“The defendant bears the burden of establishing by clear and convincing evidence that

the sentence is either contrary to law or not supported by the record.” State v. Culbreth,

4th Dist. Highland No. 18CA8, 2019-Ohio-138, ¶ 19. Clear and convincing evidence is

that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as
is required “beyond a reasonable doubt” in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established.

Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus.

{¶43} In Anderson, the Supreme Court of Ohio considered whether a trial court

has the authority to impose a prison term and a no-contact order with the victim for the

same felony offense. Anderson at ¶ 1. The Supreme Court explained that a trial court

may only impose a sentence that is provided for by statute, that “Ohio courts have

recognized that a no-contact order is a community-control sanction,” and that the felony-

sentencing statutes “reflect that the General Assembly intended prison terms and

community-control sanctions to be alternative sanctions” for a felony offense. Id. at ¶

12, 17, 28. The Supreme Court held that “as a general rule, when a prison term and
Adams App. No. 20CA1108 23

community control are possible sentences for a particular felony offense, absent an

express exception, the court must impose either a prison term or a community-control

sanction or sanctions.” Id. at ¶ 31. Therefore, “[a] trial court cannot impose a prison

term and a no-contact order for the same felony offense.” Id. at ¶ 1.

{¶44} The trial court’s decision to impose a no-contact order in addition to

Conant’s prison term was contrary to law. “Trial courts and intermediate courts of

appeals are bound by and must follow decisions of the Ohio Supreme Court.” State v.

Cox, 4th Dist. Adams No. 02CA751, 2003-Ohio-1935, ¶ 12. Pursuant to Anderson, trial

courts lack authority to impose a prison term and community-control sanction for the

same felony offense unless an express exception applies. No exception has been

identified in this case. Accordingly, we sustain the fifth assignment of error, vacate the

no-contact order, and remand for the trial court to issue a corrected sentencing entry

that removes reference to that order.

VIII. CONCLUSION

{¶45} We overrule the first, second, third, and fourth assignments of error and

sustain the fifth assignment of error. Accordingly, we affirm the trial court’s judgment in

part, vacate it in part, and remand for further proceedings consistent with this opinion.

JUDGMENT AFFIRMED IN PART
AND VACATED IN PART.
CAUSE REMANDED.
Adams App. No. 20CA1108 24

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART AND VACATED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Adams
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 sixty 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 proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five 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 sixty days, the stay will terminate as
of the date of such dismissal.

A certified copy of this entry shall constitute the 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.