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Date: 09-15-2020

Case Style:

STATE OF OHIO v. ROBERT JAMES CONANT

Case Number: 20CA1108

Judge: Michael Hess

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

Plaintiff's Attorney: David Kelley, Adams County Prosecutor, and Kris D. Blanton

Defendant's Attorney:


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{¶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-Ohio2072, 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 lesserincluded 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 selfincrimination, 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 felonysentencing 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

Outcome: 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.

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