State v. Daniels

[Cite as State v. Daniels, 2021-Ohio-4142.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 21CA0025
:
DELANEY DANIELS :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 19CR602

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 19, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM C. HAYES TODD W. BARSTOW
LICKING CO. PROSECUTOR 161 West Johnstown Rd., Ste. 204
PAULA M. SAWYERS Columbus, OH 43230
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No. 21CA0025 2

Delaney, J.

{¶1} Appellant Delaney Daniels appeals from the March 5, 2021 Judgment of

Conviction and Sentence of the Licking County Court of Common Pleas. Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose around 10:00 p.m. on August 7, 2019, when appellant shot

and killed Matthew Helman while robbing him during a drug deal.

Sasha Diehl agrees to sell Brianna Lohr an ounce of meth

{¶3} In August 2019, Alexandra “Sasha” Diehl was struggling with an addiction

to methamphetamine. She and her boyfriend, Matthew Helman, had a child together and

sometimes sold drugs to make ends meet. Sasha found buyers among people she used

with, and Helman supplied the drugs and protection during the transaction. On August 7,

Sasha communicated with Brianna Lohr regarding the sale of an ounce of

methamphetamine for $450. Lohr insisted she had the cash to make the buy, but asked

Sasha to travel to Newark to complete the transaction.

{¶4} Unbeknownst to Sasha, Lohr and her boyfriend—appellant—had no

intention of paying Sasha for drugs. Instead, they intended to rob her, viewing her as an

easy target. Lohr provided appellant with a pink pistol which he stowed in his waistband

in anticipation of the robbery.

{¶5} Sasha and Lohr communicated via text message and phone calls to arrange

a location to meet, eventually settling upon the dead-end street of Elmwood in Newark.

Helman drove a silver Honda Civic with Sasha in the front passenger seat. Sasha

observed Lohr come out from between two houses, unexpectedly accompanied
Licking County, Case No. 21CA0025 3

by appellant. Sasha didn’t know appellant personally but knew him to associate with

Lohr.

{¶6} Lohr got into the back seat of the Civic behind Helman and appellant got

into the back seat behind Sasha. Sasha turned slightly to greet the two, but appellant

pointed a gun at Helman and said words to the effect of, “Give me everything you’ve got.”

At some point, appellant pointed the gun at Helman’s head. Helman, who was left-

handed, turned slightly to show appellant that he, too, had a gun. Sasha testified that as

soon as Helman showed appellant his gun, three shots were fired.

{¶7} Helman had not put the car in park and it moved forward, smashing into a

truck parked on the street. Sasha opened her door and was thrown out of the car. She

lay curled on the ground. Appellant got out of the car and stood over her with a gun,

again demanding “Give me everything you’ve got.” Sasha heard a clicking and snapping

sound, and appellant looked at the gun. Then he ran off.

{¶8} Sasha checked on Helman, thinking he may have been pistol-whipped.

She didn’t see any blood and didn’t realize he was shot until she tried to “wake him up”

to no avail. She became hysterical as she realized Helman could not be revived. At

some point, Sasha handed off a bag of meth to a bystander before police arrived.

{¶9} Lohr was also addicted to methamphetamine and was appellant’s girlfriend

at the time of these events. At trial, she acknowledged her truthful testimony was in

exchange for a plea deal with appellee, wherein Lohr would plead to involuntary

manslaughter, aggravated robbery, and a 3-year firearm specification, and would serve

a prison term of 18 years.
Licking County, Case No. 21CA0025 4

{¶10} Lohr testified to the plan to rob Sasha. The plan began when Sasha

reached out to her, offering to sell meth. Lohr and appellant intended to rob Sasha from

the beginning and had no money to pay for the meth. Lohr testified that she and appellant

encountered Jane Doe and Harold Hadnot on the night of the robbery before it occurred,

and told the two of their plans. The Civic was parked on Elmwood Street at the dead end,

and Lohr and appellant walked to the car. They got in; Lohr greeted Sasha; appellant

pulled the gun and told Helman to park the car. Lohr testified that she jumped out of the

car at that point and took off running, but heard two gunshots behind her as she ran.

{¶11} Lohr testified that appellant caught up to her at a “flophouse” on Mount

Vernon Road. Appellant now had two guns with him, and told her he took one from

Helman. Appellant told Lohr he got shot at, shot back, and took Helman’s gun. Lohr said

appellant shaved his face and changed clothes in an attempt to change his appearance,

and left the flophouse with Aaron Elliott.

{¶12} Lohr was located by police and interviewed on the night of the shooting.

She told police about the robbery and her role in it; then she was arrested and has

remained in jail since. Lohr testified appellant has contacted her from jail via calls and

letters, telling her to change her story to make it consistent with his, and threatening her

if she failed to do so.

Jane Doe encounters Lohr and appellant before and after the crimes

{¶13} In August 2019, Jane Doe also struggled with drug addiction. She lived on

Elmwood Avenue and knew Lohr. The day before this incident, Doe noticed Lohr at the

Mount Vernon flophouse, complaining that she was hungry but had no money.
Licking County, Case No. 21CA0025 5

{¶14} On August 7, 2019, Doe planned to walk back to the flophouse from where

she was staying on Elmwood. As she left, she encountered Harold Hadnot in the front

yard, on a bicycle. She and Hadnot spoke briefly when Lohr and appellant approached

them. Appellant asked Hadnot if he wanted to help them rob people at the end of the

street. Doe looked over and noticed a car parked on Elmwood. Hadnot asked whether

guns were involved and said he wanted no part of it, then rode off on his bicycle. Doe

continued walking in the direction of Mount Vernon, and appellant and Lohr continued

walking toward the car.

{¶15} Lohr and appellant had come from the same flophouse that was Doe’s

destination. Lohr told Doe “Gary” and several other people were there. As Doe walked in

that direction, she heard two gunshots and screaming from the direction of Elmwood.

Doe took off running to the flophouse. When she arrived, she banged on the door and

begged to be let in. “Gary” moved a large piece of wood he kept over the door to keep

people out and let Doe in.

{¶16} Lohr and appellant arrived at the flophouse shortly after Doe, and Gary let

them in as well. Doe described the two as “frantic,” and Lohr was crying. Doe said both

were holding guns, and one was pink. Appellant said to Gary, “I just shot a dude. I think

he’s slumped.” Doe understood “slumped” to mean dead. Appellant showed Gary a shell

in his hand, and said he tried to find them all but could only find one. Doe also heard

appellant say, “He was going to shoot me so I shot him.” Appellant and Lohr started

removing their clothes. Gary gave Doe and another woman present a few dollars and

told them to essentially get lost. Doe and the woman went to a nearby convenience store

and bought snacks.
Licking County, Case No. 21CA0025 6

{¶17} Doe gave a statement to law enforcement that night and told them what she

knew about events leading up to the robbery and its aftermath.

{¶18} Doe considered appellant a friend and still does. She has had two

conversations with appellant since August 7, 2019; one of those conversations also

included Aaron Elliott. Doe is afraid of Elliott. Doe testified that appellant tried to

persuade her to go to the police and change her statement, and Elliott threatened her if

she refused to do so.

{¶19} Defense trial counsel cross examined Doe about her recollection of

appellant’s statements at the flophouse. Doe unequivocally testified appellant said, “That

dude was going to shoot me, so I shot him.” She denied that appellant ever said, “Dude

shot at me.”

Investigation immediately points to Lohr and appellant

{¶20} Newark police were initially dispatched to an auto accident at the dead-end

of Elmwood, but the call changed to “shots fired.” Upon arrival at the scene, officers found

a crashed silver Honda Civic. The passenger door was open and a victim was seated in

the driver’s seat. A female, later identified as Sasha Diehl, screamed and cried on the

sidewalk, and bystanders milled around.

{¶21} Officers pulled the victim out of the vehicle and initially believed this was a

potential overdose because there were no visible injuries. Medics arrived and waited for

police to clear the scene. One officer noticed a gunshot through the roof of the car,

leading to suspicion that the victim was shot although no gunshot wound was immediately

apparent. Sasha identified the victim as Matthew Helman. Officers looked for a firearm

at the scene but didn’t find any.
Licking County, Case No. 21CA0025 7

{¶22} Sasha told police at the scene that she and Helman were there to meet Lohr

and appellant, whose name she didn’t know. An officer pulled up Lohr’s Facebook page

and found a photo of appellant, whom Sasha identified as the person who got into the car

with Lohr and shot Helman.

{¶23} Officers texted detectives and each other with pertinent descriptive

information on Lohr and appellant, including their names, descriptions, and known haunts.

Officer Bill Evans knew of several flophouses near the scene and advised K-9 units to

track those locations. Word came in that an officer may have spotted appellant near the

flophouse on Mount Vernon, so police headed in that direction.

{¶24} Police also contacted Jane Doe, who said she was hungry. Officers told

her she could eat while she gave a statement. Police obtained a statement from Sasha,

who said she was inside the car when appellant shot Helman.

{¶25} The Chief Deputy Coroner who supervised Helman’s autopsy testified that

a gunshot entrance wound was located on his right arm. Tracing the trajectory of the

bullet, it traveled through the victim’s right arm without striking bone, through the armpit,

came out the inside of his arm, and entered his chest. The bullet crossed Helman’s right

lung, collapsing it, and entered his aorta. The bullet then went through the victim’s left

lung and lodged in the muscle in the left side of his back, just under the shoulder blade,

without exiting the body. Helman’s manner of death was homicide; the cause of death

was the gunshot wound to the arm and chest, which caused Helman’s blood pressure to

cease. Helman died within minutes from a lack of blood to the brain.

{¶26} Appellant was apprehended the night of the shooting. The officer

transporting him to the jail first escorted appellant outside for a cigarette, and briefly turned
Licking County, Case No. 21CA0025 8

away to text another officer about the status of jail paperwork. When the officer turned

away, appellant took off running despite having bare feet and his hands cuffed behind

him. He was apprehended a short distance away and said to the officer, “You guys are

going to take my life away; I had to try.”

{¶27} Lohr’s pink pistol was never found. Appellant admitted to detectives that he

removed a shell casing and Helman’s gun from the scene; both of these items were found

at the Mount Vernon flophouse.

Indictment, trial, conviction, and sentence

{¶28} Appellant was charged by indictment as follows: one count of aggravated

murder pursuant to R.C. 2903.01(B), an unclassified felony [Count I]; one count of murder

pursuant to R.C. 2903.02(B), an unclassified felony [Count II]; one count of aggravated

robbery pursuant to R.C. 2911.01(A)(1), a felony of the first degree [Count III]; one count

of escape pursuant to R.C. 2921.34(A)(1), a felony of the second degree [Count IV]; one

count of having weapons under disability pursuant to R.C. 2923.13(A)(2), a felony of the

third degree [Count V]; one count of tampering with evidence pursuant to R.C.

2921.12(A)(1), a felony of the third degree [Count VI]. Counts I, II, and III were

accompanied by firearm specifications pursuant to R.C. 2941.145(A). The indictment

also contained a repeat-violent-offender (R.V.O.) specification pursuant to R.C.

2941.149(A).

{¶29} Appellant entered pleas of not guilty and the matter proceeded to trial by

jury. Before trial, appellant waived his right to trial by jury upon Count V and the R.V.O.

specification; those matters were therefore decided by the trial court.
Licking County, Case No. 21CA0025 9

{¶30} Appellant was found guilty as charged. The trial court sentenced appellant

to an aggregate indefinite prison term of 40 years to life.

{¶31} Appellant now appeals from the trial court’s March 5, 2021 Judgment of

Conviction and Sentence.

{¶32} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶33} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE

PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO

CONSTITUTION BY FINDING HIM GUILTY OF AGGRAVATED MURDER; MURDER;

AGGRAVATED ROBBERY; TAMPERING WITH EVIDENCE; ESCAPE; AND HAVING

WEAPONS UNDER DISABILITY AS THOSE VERDICTS WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

{¶34} “II. THE TRIAL COURT SENTENCED APPELLANT TO AN INDEFINITE

TERM OF INCARCERATION PURSUANT TO A STATUTORY SCHEME THAT

VIOLATES APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS

GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.”

{¶35} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY SENTENCING HIM IN CONTRAVENTION OF OHIO’S SENTENCING STATUTES.”
Licking County, Case No. 21CA0025 10

ANALYSIS

I.

{¶36} In his first assignment of error, appellant asserts his convictions upon each

count are not supported by sufficient evidence and are against the manifest weight of the

evidence. We disagree.

{¶37} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. 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.”

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

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering
Licking County, Case No. 21CA0025 11

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶39} Although appellant frames this assignment of error as a challenge to all of

his convictions, his argument addresses only Count I, aggravated murder. Appellant was

convicted upon one count of aggravated murder pursuant to R.C. 2923.01(B), which

states in pertinent part: “No person shall purposely cause the death of another * * * while

committing or attempting to commit, or while fleeing immediately after committing or

attempting to commit, * * * aggravated robbery * * *.” Appellant claims appellee presented

insufficient evidence that he purposely caused Helman’s death. “A person acts purposely

when it is the person's specific intention to cause a certain result, or, when the gist of the

offense is a prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is the offender's specific intention to engage in conduct

of that nature.” R.C. 2901.22(A).

{¶40} Appellee presented evidence that appellant and Lohr intended to rob Sasha

and that Lohr provided appellant with a pistol for that express purpose. Once appellant

and Lohr entered the car, appellant pulled the gun almost immediately and told Sasha,

“Give me everything you’ve got.” When Helman showed his own gun, appellant fired at

least twice, striking Helman in the right arm.

{¶41} The trial court instructed the jury as follows:

* * * *.

Purposely. Purpose is an essential element of the offense of

aggravated murder.
Licking County, Case No. 21CA0025 12

A person acts purposely when it is his specific intention to

cause a certain result. It must be established in this case that at the

time in question, there was present in the mind of the defendant a

specific intention to cause the death of Matthew Helman.

Purpose is a decision of the mind to do an act with a conscious

objective of producing a specific result. To do an act purposely is to

do it intentionally and not accidentally.

Purpose and intent mean the same thing.

The purpose with which a person does an act is known only

to himself unless he expresses it to others or indicates it by his

conduct. The purpose with which a person does an act is determined

from the manner in which it is done, the means it used, and all the

other facts and circumstances in evidence.

If a wound is inflicted on a person with a deadly weapon in a

manner calculated to destroy life, the purpose to cause death may

be, but is not required to be, inferred from the use of the weapon.

The inference, if not made, is not conclusive.

* * * *.

T. 1196-1197.

{¶42} The jury could reasonably believe from the evidence presented that

appellant shot at Helman with the specific intention of killing him. This murder occurred

within the confined space of a vehicle. Appellant immediately pulled a gun on Helman

and his reaction to Helman’s brandishing of a gun was to shoot him. Appellant was later
Licking County, Case No. 21CA0025 13

overheard stating, “Dude was going to shoot me so I shot him,” thereby summarizing his

purposeful act. The jury could reasonably find appellant shot Helman with the conscious

objective of causing Helman’s death.

{¶43} In his brief, appellant misquotes the jury instruction in a consequential way.

He argues the trial court told the jury, “If you find that the defendant used a deadly weapon

against another in a manner calculated to destroy life….,” but the accurate instruction is,

“[i]f a wound is inflicted on a person with a deadly weapon in a manner calculated to

destroy life….” Id. Appellant argues the mere fact of **carrying a firearm for protection

during a drug deal*** doesn’t rise to the level of purposely intending to cause the victim’s

death. But the cited portion of the instruction emphasizes the key is the appellant’s act

of pulling the trigger, thereby inflicting the wound.

{¶44} Appellant implies that because Helman was shot in the arm, appellant didn’t

purposely intend to cause his death. Shooting someone in the arm inside a Honda Civic

does not leave room for speculation as to appellant’s purpose. The jury could reasonably

find he intended to kill Helman.

{¶45} Appellant directs us to our decision in State v. Grimes, 5th Dist. Richland

No. 2019CA0103, 2020-Ohio-4357, at ¶ 46, in which we addressed the element of

“purposely:”

* * * *. A person has knowledge of circumstances when he is

aware that such circumstances probably exist. R.C. 2901.22(B). It is

well-established that one may be presumed to intend results which

are the natural, reasonable, and probable consequences of his

voluntary actions. State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11
Licking County, Case No. 21CA0025 14

(1951). Further, “it is not necessary that the accused be in a position

to foresee the precise consequence of his conduct, only that the

consequence be foreseeable in the sense that what actually

transpired was natural and logical in that it was within the scope of

the risk created by his conduct.” State v. Wilson, 5th Dist. Richland

No. 13CA39, 2014-Ohio-41, quoting State v. Losey, 23 Ohio App.3d

93, 491 N.E.2d 379 (10th Dist. 1995).

{¶46} We agree that Grimes is instructive, although in our reading it supports the

jury’s verdict that appellant acted purposely. Helman’s injuries and death are a

reasonably foreseeable result of appellant's actions. Grimes, supra at ¶ 47. Appellant

may not have foreseen the precise injuries the victims would sustain as a result of his

actions, but the injuries were within the scope of the risk created by his conduct. Id., citing

State v. Lett, 8th Dist. Cuyahoga No. 106973, 2019-Ohio-532.

{¶47} Based on the testimony and evidence in this case, we find any rational trier

of fact could have found the essential elements of R.C. 2903.01(B) proven beyond a

reasonable doubt. We find sufficient evidence exists to support appellant's convictions

and the convictions are not against the manifest weight of the evidence. Appellant's first

assignment of error is overruled.

II.

{¶48} Appellant’s second assignment of error challenges the constitutionality of

the Reagan Tokes Act, which codified hybrid indefinite prison terms for first- and second-

degree felonies. Appellant challenges the presumptive-release feature of the act, R.C.

2967.271, and advances several arguments, including it violates his constitutional

rights
Licking County, Case No. 21CA0025 15

to trial by jury and due process of law, and further violates the constitutional requirement

of separation of powers and equal protection. We disagree.

{¶49} We note appellant did not raise the constitutionality of R.C. 2967.271 before

the trial court and has not argued defense trial counsel was ineffective in failing to do so.

We addressed the concept of ripeness for review in regard to the Reagan Tokes Act

in State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227, appeal allowed,

160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1152:

The Ohio Supreme Court discussed the concept of ripeness

for review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82

Ohio St.3d 88, 1998-Ohio-366, 694 N.E.2d 459:

Ripeness “is peculiarly a question of timing.” Regional Rail

Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335,

357, 42 L.Ed.2d 320, 351. The ripeness doctrine is motivated in part

by the desire “to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements

over administrative policies * * *.” Abbott Laboratories v. Gardner

(1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681,

691. As one writer has observed:

The basic principle of ripeness may be derived from the

conclusion that ‘judicial machinery should be conserved for problems

which are real or present and imminent, not squandered on problems

which are abstract or hypothetical or remote.’ * * * [T]he prerequisite

of ripeness is a limitation on jurisdiction that is nevertheless basically
Licking County, Case No. 21CA0025 16

optimistic as regards the prospects of a day in court: the time for

judicial relief is simply not yet arrived, even though the alleged action

of the defendant foretells legal injury to the plaintiff. Comment,

Mootness and Ripeness: The Postman Always Rings Twice (1965),

65 Colum. L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460.

In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-

Ohio-171, the defendant argued because the Parole Board, pursuant

to R.C. 2967.28, could extend his sentence by up to an additional

five years for violation of post-release control, the statute was

unconstitutional. The Eighth District Court of Appeals concluded

because McCann was not currently the subject of such action by the

Parole Board, the issue was not yet ripe for review. Id. at ¶6.

Likewise, in the instant case, while R.C. 2967.271 allows the

DRC to rebut the presumption Appellant will be released after serving

his nine-year minimum sentence and potentially continue his

incarceration to a term not exceeding thirteen years, Appellant has

not yet been subject to such action by the DRC, and thus the

constitutional issue is not yet ripe for our review.

State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-

4227, supra, ¶ 8-11, appeal allowed, 160 Ohio St.3d 1507, 2020-

Ohio-6835, 159 N.E.3d 1152; see also, State v. Buckner, 5th Dist.

Muskingum Nos. CT2020-0023 & CT2020-0024, 2020-Ohio-7017;

State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501;
Licking County, Case No. 21CA0025 17

State v. Cochran, 5th Dist. Licking No. 2019 CA 00122, 2020-Ohio-

5329; State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-

Ohio-5013; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03

0009, 2020-Ohio-4230; State v. Kibler, 5th Dist. Muskingum No.

CT2020-0026, 2020-Ohio-4631.

{¶50} Appellant does not dispute he is not yet subject to the provisions of R.C.

2967.271. We therefore find here, as we did in Downard, that his constitutional challenge

is not yet ripe for review. State v. Williams, 5th Dist. Coshocton No. 2021CA0003, --

N.E.3d--, 2021-Ohio-3579, ¶ 19; State v. Chester, 5th Dist. Stark No. 2020CA00028,

2021-Ohio-918, ¶ 61, appeal not allowed, 163 Ohio St.3d 1495, 2021-Ohio-2270, 169

N.E.3d 1282.

{¶51} We find no error in the trial court's sentence. Appellant's second assignment

of error is overruled.

III.

{¶52} In his third assignment of error, appellant argues the trial court’s sentence

violates the principles and purposes of felony sentencing and does not comply with Ohio

sentencing statutes. We disagree.

{¶53} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
Licking County, Case No. 21CA0025 18

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28.

{¶54} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477, 120 N.E.2d 118.

{¶55} Appellant argues the trial court failed to comply with R.C. 2929.11

[overriding purposes of felony sentencing] and R.C. 2929.12 [factors to consider in felony

sentencing]. Recently, the Ohio Supreme Court addressed whether a sentence is

“contrary to law” under R.C. 2953.08(G)(2)(b) if an appellate court finds that the record

does not support a sentence with respect to R.C. 2929.11 and 2929.12. State v. Jones,

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. A plurality of the Court in Jones

noted nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh

the evidence in the record and substitute its judgment for that of the trial court concerning

the sentence that best reflects compliance with R.C. 2929.11 and 2929.12. Id., ¶ 42.

Additionally, neither R.C. 2929.11 nor 2929.12 requires a trial court to make any specific

factual findings on the record. Id., ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-

Ohio-2669, 951 N.E.2d 381, ¶ 31.

{¶56} Turning to appellant's argument, we are foreclosed from weighing the

evidence and substituting our judgment for that of the trial court in determining whether
Licking County, Case No. 21CA0025 19

the sentence complies with R.C. 2929.11 and R.C. 2929.12. Nonetheless, the record

supports the trial court's decision to impose a prison term. Appellant was found guilty of

shooting and killing Helman, pointing a gun at and robbing Sasha, taking and hiding

evidence from the scene, fleeing from the scene, and running from officers while in

custody. Appellant also tried to intimidate and harass witnesses against him. He showed

a lack of remorse. Finally, at the time of the murder and related crimes, appellant was on

post-release control for aggravated robbery and was released from prison less than a

month prior. Appellant had numerous disciplinary actions during his prison stint, further

indicating a significant risk of recidivism.

{¶57} The record before us clearly and convincingly supports the sentence of the

trial court. Appellant has not pointed to any evidence that the trial court abused its

discretion and the sentence complies with the purposes and principles of felony

sentencing.

{¶58} Appellant's third assignment of error is therefore overruled.
Licking County, Case No. 21CA0025 20

CONCLUSION

{¶59} Appellant’s three assignments of error are overruled and the judgment of

the Licking County Court of Common Pleas is affirmed.

By: Delaney, J., and

Wise, John, J. concur; and

Gwin, P.J., concurs in part,
and dissents, in part.
Licking County, Case No. 21CA0025 21

Gwin, J., concurs in part; dissent in part.

{¶60} I concur in the majority’s disposition of Appellant’s First and Third

Assignments of Error.

{¶61} I respectfully dissent from the majority’s opinion concerning ripeness and

Appellant’s Second Assignment of Error for the reasons set forth in my dissenting opinion in

State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-Ohio-5501.

{¶62} I further note that the Ohio Supreme Court has accepted a certified conflict on

the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review on

direct appeal or only after the defendant has served the minimum term and been subject to

extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas No. L-19-

1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d

1505, 2020-Ohio-6913, 159 N.E.3d 1150(Table) The conflict cases are State v. Leet, 2d

Dist. Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist. Montgomery

No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-

Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837;

See also, State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227,

appeal accepted on Appellant’s Proposition of Law No. II, State v. Downard, 160 Ohio

St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1507 (Table)(Sua sponte, cause held for the

decision in 2020-1266, State v. Maddox). The Ohio Supreme Court heard oral arguments

on that case on June 29, 2021.