State v. Chapman

2022 Ohio 2853

• Court: Ohio Court of Appeals
• Decided: August 17, 2022
• Docket: 21CA3742
• Status: Published

Opinion

[Cite as State v. Chapman, 2022-Ohio-2853.]

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

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA3742

v. :

SAMUEL CHAPMAN, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Max Hersch and Stephen Hardwick, Assistant State Public Defenders, Columbus, Ohio, for appellant.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:8-11-22 ABELE, J.

{¶1} This is an appeal from a Ross County Common Pleas

Court judgment of conviction and sentence. A jury found Samuel

Chapman, defendant below and appellant herein, guilty of four

offenses: (1) attempted murder, in violation of R.C. 2923.02;

(2) kidnapping, in violation of R.C. 2905.01; (3) grand theft,

in violation of R.C. 2913.02; and (4) tampering with evidence,

in violation of R.C. 2921.12. The trial court merged the grand-

theft and tampering-with-evidence offenses and sentenced 2 ROSS, 21CA3742

appellant to serve consecutive terms of imprisonment with a

minimum term of 21 years and maximum of 26 years.

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED STRUCTURAL ERROR WHEN IT EXCLUDED A PROSPECTIVE JUROR BECAUSE OF THE JUROR’S DISABILITY.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY NOT MERGING MR. CHAPMAN’S CONVICTIONS FOR ATTEMPTED MURDER AND KIDNAPPING.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED MR. CHAPMAN TO AN INDEFINITE SENTENCE UNDER THE UNCONSTITUTIONAL REAGAN TOKES LAW.”

{¶3} On April 1, 2020, Jennifer Lambert found Barbara

Martin bloodied and abandoned in an open field located

approximately ten feet from the side of a road. Martin told

Lambert that a man stabbed her and tried to drag her to a field.

Lambert called 9-1-1. After medical personnel and law

enforcement officers responded to the scene, officers identified

appellant as a suspect and apprehended him later that day.

{¶4} A Ross County Grand Jury subsequently returned an

indictment that charged appellant with attempted murder, 3 ROSS, 21CA3742

kidnapping, grand theft, and tampering with evidence. Appellant

entered not guilty pleas.

{¶5} On February 23 through 25, 2021, the trial court held

a jury trial. After the parties completed their opening

statements, the trial court noted, on the record and outside of

the jury’s presence, that an issue had arisen before jury

selection. When the court asked defense counsel if they wished

to add anything to the record, counsel responded affirmatively

and the court outlined what had occurred before jury selection

began:

The court sent out as a matter of record a set of jury questionnaires. We provide those questionnaires to counsel prior to a trial. We also give a list of all of the jurors [sic] names. One of the jurors that was listed on this month’s questionnaires was a juror by the name of [A.B.]. The Judge, I am very familiar with [A.B.]. He is the manager at Unioto for the basketball sports teams. He has Down’s Syndrome and when he was twenty-five years old or so he was still the manager of the basketball team. He works also at Kroger Grocery. He doesn’t recall my name whenever I see him out, but he always remembers that I am David’s dad and he will say, “Hello David’s Dad.” I believe his duty or his job there is a courtesy clerk is what they call him. Clearly, his questionnaire was filled out by his mother and he signed the questionnaire. So having said all of that it was my intention to leave him on this jury and allow it to go forward and allow him to go through the voir dire process. I had some very large concerns based upon my knowledge of him of whether he would be able to understand or comprehend what was going on and whether or not he would be so easily persuaded or swayed by others but that was only a concern I was going to address if the counsel decided to do so. However, his father came here today instead and with counsel in chambers 4 ROSS, 21CA3742

with me, his father appealed to the court that he not serve on the jury. He indicated that [A.B.]’s focus right now is the upcoming baseball season and nothing else. I indicated to him what the facts of the case were and the father indicated it would be not in [A.B.]’s interest to hear that sort of evidence or have that. With that in mind, I then said thank you and I indicated to counsel that I was going to excuse him from service. Mr. Marks did not object to that. Frankly, I don’t recall if the defense objected but I told them I would give them the opportunity to object if they wished to do so and certainly make a record of it. First, does counsel believe that is an accurate recitation of what happened this morning? Mr. Marks?

{¶6} The prosecutor stated that the court’s recitation was

accurate, and defense counsel agreed. Defense counsel then

clarified that they did not object in chambers because the court

had indicated that it would give defense counsel the chance to

object later.

{¶7} Defense counsel then objected on the record to the

trial court’s decision to exclude A.B. from jury service before

voir dire. Defense counsel suggested that the court’s decision

“was a bit premature” and that the voir-dire process would have

revealed whether A.B. is capable of being seated as a juror.

The court, however, noted defense counsel’s objection and stated

that it already “made the decision about it” and did not believe

it needed to overrule appellant’s objection. Thus, the court

proceeded with the trial. 5 ROSS, 21CA3742

{¶8} The state’s first witness, Angel Blevins, testified

that on April 1, 2020 she worked at a Valero gas station.

Blevins explained that Barbara Martin visited the store nearly

every day and she was familiar with Martin.1 During the early

morning hours of April 1, 2020, Martin entered the store. At

that time, a man also was inside the gas station. Blevins did

not know the man’s name, but she noticed him inside the store on

previous occasions. At trial, Blevins identified the man as

appellant.

{¶9} Blevins stated that, after Barbara Martin completed

her purchase, she exited the store, walked to her vehicle and

appellant followed. Martin returned to the store, and appellant

again followed. When Martin asked Blevins about giving

appellant a ride, Blevins said she did not see any issue with

giving appellant a ride. Martin and appellant then returned to

Martin’s vehicle and sat for a moment before leaving.2

{¶10} Jennifer Lambert testified that, on April 1, 2020

while driving on Stone Road, she heard a person scream and

observed Martin lying in a field about ten feet from the

1 Before trial, Martin passed away from causes unrelated to the charges filed against appellant. 2 During Blevins’ testimony, the state played store surveillance footage. Blevins stated that the video footage accurately depicted the sequence of events that occurred the morning of April 1, 2020. 6 ROSS, 21CA3742

roadway. Lambert noted that Martin was waving her hand, so she

stopped to see if she needed assistance. When Lambert

approached Martin, she noticed blood all over Martin’s hands and

that she held her hands by her neck. Martin repeated “that he

stabbed her.”

{¶11} Jennifer Lambert attempted to help Martin, and, as she

did, Martin turned and looked up the hill. When Lambert noticed

a gold Chevrolet vehicle approach, Martin told Lambert to run.

At that point, the vehicle’s driver stopped, opened the door,

exited and walked to the front of the car. Lambert said the

driver was so close she could have reached out and touched him.

{¶12} Jennifer Lambert further testified that Martin kept

telling Lambert to run and stated “he was going to kill me too.”

Lambert then yelled at the man and told him to return to the

vehicle and that she had called the police. Lambert explained

that the man “just kind of looked over at [Martin], shrugged his

shoulders like this, and got back in the car.” When the man

returned to the vehicle, he drove up the hill.

{¶13} Ross County Sheriff’s Deputy Mitchell Reffett

responded to the scene and found Martin, Lambert, and Jason

Jones (another person who stopped to help) present. Reffett

administered first aid and asked Martin what had happened.

Martin advised the deputy “that a guy had stabbed her, and that 7 ROSS, 21CA3742

she had fought him and he was trying to drag her into the field

that was located next to the road before he took off in the

car.” Reffett stated that he noticed a large quantity of blood

in the area and the field Martin described is “a marshy area,

like a pond, a wetland area.”

{¶14} The state presented additional witnesses to prove that

appellant is the individual who stabbed Martin. Lindsey White

stated that on April 1, 2020, appellant appeared at her house

and demanded that White let him inside to talk to White’s

boyfriend, Marshond. Although White told appellant that

Marshond was asleep, appellant nevertheless walked into the

house and went to the sink to wash his hands. Appellant then

asked White to wake up Marshond because appellant needed

clothes. White testified that appellant’s presence made her

nervous, so she sent a message to a neighbor, Cyndi Hickman,

that appellant was at her house and “something didn’t feel

right.”

{¶15} Lindsey White also stated that Marshond woke up and

her neighbor, Cyndi Hickman, arrived at the house. White

explained that she and Hickman left the house and drove to a

store to purchase some items and as they did, they observed “a

body getting picked up out [of] the ditch.” Shortly thereafter, 8 ROSS, 21CA3742

White and Hickman reported their suspicions about appellant to

law enforcement officers.

{¶16} Officers searched the area near White’s residence and

located Martin’s vehicle, a gold Chevrolet sedan, hidden in the

woods. Not long after, they spotted appellant running between

two strips of airfield at the Ross County Airport.

{¶17} Eventually, officers captured appellant and found a

knife in his possession. Appellant told one officer, Ross

County Sheriff’s Detective Stanley Addy, that “a lady attacked”

him with a knife. When Addy pointed out to appellant that

appellant carried a knife, he responded, “not that knife.” Addy

then advised appellant of his Miranda3 rights and appellant

retorted, “You have the right to shut the F up.”

{¶18} After the state presented its case, including several

items of physical evidence to link appellant to Martin’s

stabbing, appellant chose to testify in his defense. Appellant

explained that he spoke with Martin at the gas station about “a

ride home,” but denied he left the gas station in Martin’s

vehicle. Instead, appellant said he purchased heroin from a

person named Derek McCallister and he traded his coat with

McCallister in exchange for heroin. Appellant testified that he

3 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 9 ROSS, 21CA3742

then walked across the street “and went under the viaduct and

snorted a little bit of the heroin.” Afterward, appellant

visited a friend’s house and later met a “street walker” who

drove him to Stone Road.

{¶19} Appellant explained that once on Stone Road, he

visited Don Tilton’s residence but Tilton’s girlfriend, Angel,

“was flipping out.” Appellant indicated that Tilton and Angel

acted “weird” about appellant at their house, and Tilton

threatened him with a gun and Angel a butcher knife. Appellant

also testified that Tilton gave him a Timberwolf knife, the

knife officers found in his possession.

{¶20} Appellant claimed that he “vaguely” remembers contact

with law enforcement officers, but did recall running from

officers and did so because of previous negative interactions

with officers. Appellant also testified that he did not enter

Barbara Martin’s car at any point on April 1, 2020, did not

kidnap her, attempt to murder her, or harm her in any way.

Appellant claimed that, when Martin was in her vehicle at the

gas station, “someone” already was in Martin’s car.

{¶21} After hearing the evidence, the jury found appellant

guilty of attempted murder, kidnapping, grand theft, and

tampering with evidence. At sentencing, the trial court merged

the grand theft offense with the tampering offense and sentenced 10 ROSS, 21CA3742

appellant to serve (1) an indefinite 10-year prison term for

attempted murder, (2) an indefinite 10-year prison term for

kidnapping, and (3) a 12-month prison term for tampering with

evidence. The court further ordered that all of the sentences

be served consecutively to one another and ordered appellant be

sentenced to a minimum term of 21 years and a maximum term of 26

years. This appeal followed.

I

{¶22} In his first assignment of error, appellant asserts

that the trial court erred by excluding a prospective juror

based on the juror’s disability. Appellant contends that the

summary dismissal of the juror violated the Equal Protection

Clause and is a structural error that mandates a reversal of the

trial court’s judgment.

{¶23} Initially, we point out that appellant did not object

to the juror’s dismissal before the court decided to excuse the

juror. The record does not indicate, for example, that

appellant objected when the parties conferred in the judge’s

chambers when the judge considered the juror’s father’s plea to

excuse the juror. Moreover, appellant did not object when the

court indicated that it intended to excuse the prospective juror

due to the juror’s Down Syndrome and the juror’s father’s belief

that the juror could not cope with the demands of sitting on the 11 ROSS, 21CA3742

jury. Appellant also did not object at any point during voir

dire or prior to jury selection. Instead, appellant objected

after the jury had been seated. Thus, because appellant did not

request the trial court to allow defense counsel to voir dire

the juror, appellant did not object at a time when the court

could have corrected any error. Thus, under these

circumstances, we do not believe that appellant properly

preserved the alleged error. State v. McAlpin, ___ Ohio St.3d

___, 2022-Ohio-1567, ___ N.E.2d ___, ¶ 110 (defendant’s failure

“to object during voir dire to the state’s use of its challenges

* * * * forfeited his challenge absent a showing of plain

error”).

{¶24} Appellant claims, however, that he properly objected

and asserts that, because the trial court “did not instruct

[defense counsel] to object at the first opportunity,” “defense

counsel appropriately waited for the trial court to bring it

up.” Appellant notes that counsel did object on the record when

the court asked counsel whether they wished to object to the

court’s decision to dismiss the juror. The court pointed out on

the record that, while in chambers, the prosecutor did not

object, and the court did not “recall if the defense objected

but I told them I would give them the opportunity to object if

they wished to do so and certainly make a record of it.” 12 ROSS, 21CA3742

Defense counsel stated, however, that they did not object in

chambers in light of the court’s statement that it would give

them the chance to object on the record.

{¶25} Nevertheless, our review of the record reveals that

appellant did not object at a time when the trial court could

have corrected any error. By the time appellant objected, the

juror had been dismissed and the jury seated. Therefore, we

believe that appellant forfeited the right to raise this issue

on appeal. State v. Murphy, 91 Ohio St.3d 516, 524–25, 747

N.E.2d 765 (2001) (defendant forfeited right to argue court

erred by dismissing jurors without granting counsel opportunity

to voir dire jurors when defendant “did not request an

opportunity to voir dire either one”).

{¶26} We also observe that appellant did not argue, during

the trial court proceedings, that dismissing the juror violated

the Equal Protection Clause. It is well-settled that a party

may not raise for the first time on appeal new issues or legal

theories. Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43,

322 N.E.2d 629 (1975). Thus, a litigant who fails to raise an

argument before the trial court forfeits the right to raise that

issue on appeal. Independence v. Office of the Cuyahoga Cty.

Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶

30 (“an appellant generally may not raise an argument on appeal 13 ROSS, 21CA3742

that the appellant has not raised in the lower courts”); State

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

900, ¶ 21 (defendant forfeited constitutional challenge by

failing to raise it during trial court proceedings); Gibson v.

Meadow Gold Dairy, 88 Ohio St.3d 201, 204, 724 N.E.2d 787 (2000)

(party waived arguments for purposes of appeal when party failed

to raise those arguments during trial court proceedings); State

ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections, 65 Ohio

St.3d 175, 177, 602 N.E.2d 622 (1992) (appellant cannot “present

* * * new arguments for the first time on appeal”); accord State

ex rel. Jeffers v. Athens Cty. Commrs., 4th Dist. Athens No.

15CA27, 2016-Ohio-8119, 2016 WL 7230928, fn.3 (failure to raise

argument in trial court results in waiver of argument for

purposes of appeal); State v. Anderson, 4th Dist. Washington No.

15CA28, 2016-Ohio-2704, ¶ 24 (“arguments not presented in the

trial court are deemed to be waived and may not be raised for

the first time on appeal”).

{¶27} When a criminal defendant forfeits the right to assert

an error on appeal, an appellate court applies plain-error

review. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

N.E.3d 860, ¶ 21-22. Crim.R. 52(B) provides that “[p]lain

errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” 14 ROSS, 21CA3742

Crim.R. 52(B) thus permits a court to recognize plain error if

the party claiming error establishes (1) that “‘an error, i.e.,

a deviation from a legal rule’” occurred, (2) that the error is

a plain or “‘an “obvious” defect in the trial proceedings,’” and

(3) that this obvious error affected substantial rights, i.e.,

the error “‘must have affected the outcome of the trial.’” Id.

at ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240 (2002); accord United States v. Dominguez Benitez,

542 U.S. 74, 76, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)

(under plain-error review, defendant typically must establish

“‘reasonable probability that, but for the error,’ the outcome

of the proceeding would have been different”). For an error to

be “plain” or “obvious,” the error must be plain “under current

law” “at the time of appellate consideration.” Johnson v.

United States, 520 U.S. 461, 467, 468, 117 S.Ct. 1544, 137

L.Ed.2d 718 (1997); accord Henderson v. United States, 568 U.S.

266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013); Barnes, 94 Ohio

St.3d at 27, citing United States v. Olano, 507 U.S. 725, 734,

113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (for error to be plain,

it must be obvious error under current law); State v. G.C., 10th

Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶ 14. Moreover,

even when a defendant demonstrates that a plain error or defect

affected his substantial rights, the Ohio Supreme Court has 15 ROSS, 21CA3742

“‘admonish[ed] courts to notice plain error “with the utmost

caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.”’” Rogers at ¶ 23, quoting

Barnes, 94 Ohio St.3d at 27, quoting State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus; State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-

4034, 19 N.E.3d 900, ¶ 16 (“reversal must be necessary to

correct a manifest miscarriage of justice”). Consequently, an

appellate court has discretion to notice plain error but “is not

required to correct it.” Rogers at ¶ 23.

{¶28} After our review in the case sub judice, we do not

believe that any error – obvious or otherwise – occurred. The

plain-error doctrine, therefore, has no applicability to the

case at bar.

{¶29} “The Equal Protection Clause of the Fourteenth

Amendment commands that no State shall ‘deny to any person

within its jurisdiction the equal protection of the laws.’”

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct.

3249, 87 L.Ed.2d 313 (1985), quoting Plyler v. Doe, 457 U.S.

202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982); see also

Article I, Section 2, Ohio Constitution (“All political power is

inherent in the people. Government is instituted for their

equal protection and benefit.”). The Equal Protection Clause 16 ROSS, 21CA3742

“is essentially a direction that all persons similarly situated

should be treated alike.” Cleburne, 473 U.S. at 439; McCrone v.

Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d

1, 6 (Equal Protection Clause “require[s] that individuals be

treated in a manner similar to others in like circumstances”).

{¶30} The Equal Protection Clause does not, however, “forbid

the state from treating different classes of persons

differently.” Matter of Adoption of Y.E.F., 163 Ohio St.3d 521,

2020-Ohio-6785, 171 N.E.3d 302, ¶ 17, citing Eisenstadt v.

Baird, 405 U.S. 438, 446-447, 92 S.Ct. 1029, 31 L.Ed.2d 349

(1972), citing Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251,

30 L.Ed.2d 225 (1971).

But a classification must not be arbitrary; it “‘must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’” Reed at 76, 92 S.Ct. 251, quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).

Id.

{¶31} A court that is determining whether a particular

classification violates the Equal Protection Clause applies

“‘different levels of scrutiny to different types of

classifications.’” State v. Thompson, 95 Ohio St.3d 264, 2002-

Ohio-2124, 767 N.E.2d 251, ¶ 13, quoting Clark v. Jeter, 486

U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Under 17 ROSS, 21CA3742

rational-basis review, a classification must “be rationally

related to a legitimate government purpose.” Id., citing Clark

at 461, 108 S.Ct. 1910. Classifications that involve a suspect

class or that affect a fundamental constitutional right must “be

narrowly tailored to serve a compelling state interest.” Id.

{¶32} In the case at bar, appellant contends that the trial

court’s decision to excuse the juror before voir dire based upon

the juror’s disability violated the Equal Protection Clause. He

asserts that summarily dismissing a juror with a disability,

like Down Syndrome, before voir dire deprives that juror of the

equal protection of the law.

{¶33} First, we emphasize that “all persons, including the

disabled, have access to the courts and the opportunity to serve

on juries.” State v. Speer, 124 Ohio St.3d 564, 2010-Ohio-649,

925 N.E.2d 584, 2010 WL 756988, ¶ 20. “The duty of jury service

falls on all citizens, and, therefore, it is ‘vitally important

that the legal system open its doors to each person who desires

to serve on a jury.’” Rules of Superintendence for the Courts

of Ohio, Appendix B, Ohio Trial Court Jury Use and Management

Standards, Standard 1(A). Trial courts thus have an “obligation

* * * to reasonably accommodate the special needs of physically

handicapped jurors.” Commentary to Standard 1. 18 ROSS, 21CA3742

{¶34} R.C. 2313.14 applies when a court excuses a person

from jury service before voir dire.4 As relevant here, the

statute provides:

(A) Except as provided by section 2313.15 of the Revised Code, the court of common pleas or the commissioners of jurors shall not excuse a person who is liable to serve as a juror and who is drawn and notified, unless it is shown to the satisfaction of the judge or commissioners by either the juror or another person acquainted with the facts that one or more of the following applies: * * * * (4) The prospective juror has a mental or physical condition that causes the prospective juror to be incapable of performing jury service. The court or commissioners may require the prospective juror to provide the court with documentation from a physician licensed to practice medicine verifying that a mental or physical condition renders the prospective juror unfit for jury service for the remainder of the jury year.

{¶35} Here, appellant did not cite any Ohio cases that have

examined a trial court’s decision to dismiss a juror based upon

R.C. 2313.14(A)(4) using an equal-protection analysis. Rather,

appellant cites a Maryland Court of Appeals case that construed

4 Additionally, Standard 6 of the Rules of Superintendence for the Courts of Ohio, Appendix B, Ohio Trial Court Jury Use and Management Standards, provides as follows:

B. Eligible persons who are summoned may be excused from jury service only if: 1. Their ability to receive and evaluate information is so impaired that they are unable to perform their duties as jurors and they are excused for this reason by a judge; * * * * 19 ROSS, 21CA3742

a state statute regarding juror qualifications. Troutman v.

State, 466 Md. 237, 218 A.3d 265 (2019). In that case, the

court construed Maryland “statutes that govern jury service” to

preclude a trial court from “summarily excus[ing] for cause

prospective jurors with disabilities.”5 Id. at 261. The court

explained, “a trial court may excuse a prospective juror for

cause on a disability-related ground if no reasonable

accommodation is possible, and, at that particular trial, the

particular disability would prevent the prospective juror from

providing satisfactory jury service.” Id. at 261.

{¶36} In Troutman, before the trial began the trial court

excused four jurors with physical limitations that prevented or

impeded them from climbing the 25-step staircase to the

courtroom. Before excusing the jurors, the trial court

questioned each to confirm they would be unable to climb the

stairs. The defendant objected to the court’s decision to

excuse the jurors and, after his conviction, appealed.

5 In Troutman, the court recited the applicable statute as follows: “[A]n individual is not qualified for jury service if the individual * * * [h]as a disability that, as documented by a health care provider’s certification, prevents the individual from providing satisfactory jury service[.]” Id. at 241, quoting Md. Code Ann., Cts. & Jud. Proc. 8-103(b)(3) (1974, 2013 Repl. Vol., 2016 Supp.). [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶37} On appeal, the defendant argued, in part, that the

trial court erred by excusing the jurors without considering

whether reasonable accommodations could be made. The appellate

court, however, did not agree. In reaching its decision the

court held:

[A] trial court may not summarily excuse for cause prospective jurors with disabilities; instead, a trial court may excuse a prospective juror for cause on a disability-related ground if no reasonable accommodation is possible, and, at that particular trial, the particular disability would prevent the prospective juror from providing satisfactory jury service.

Id. at 242. The court further stated that a court that is

determining whether “to excuse for cause a prospective juror on

a disability-related ground * * * must engage in an

individualized, case- and disability-specific inquiry.” Id. at

264.

{¶38} Applying these principles to the facts, the Troutman

court concluded that the trial court did not abuse its

discretion by excusing “the four prospective jurors who

indicated that they were unable to use stairs.” Id. at 265.

The appellate court noted that the trial court individually

questioned each juror to determine whether they could ascend the

25-steps to reach the courtroom. Thus, the appellate court

rejected the argument that excusing the four prospective jurors

constituted an abuse of discretion. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶39} Appellant asserts that in the case sub judice the

trial court likewise should have questioned the excused juror to

ascertain whether his disability rendered him incapable of jury

service. Appellant has not, however, cited any Ohio decision

that adopted the Troutman court’s analysis as applied to R.C.

2313.14(A)(4). In fact, appellant’s proposed analysis would

conflict with the express statutory language contained in R.C.

2313.14(A)(4). Nothing in the Ohio statute requires a trial

court to conduct an in-depth, individualized assessment of a

prospective juror before dismissing them from service due to a

mental or physical condition. Furthermore, the statute does not

require trial courts to specifically question a prospective

juror before it excuses them from jury service under R.C.

2313.14(A)(4). Rather, the statute’s language plainly indicates

that “another person acquainted with the facts” (like the

juror’s father in the case at bar – or even the trial judge who

has personal knowledge of the juror) may satisfy the court that

a “prospective juror has a mental or physical condition that

causes the prospective juror to be incapable of performing jury

service.”

{¶40} We further note that the Ohio Supreme Court indicated

“that a juror’s discharge ‘on grounds of personal excuse’ is a

matter ‘between the court and the jurors, and with which the [Cite as State v. Chapman, 2022-Ohio-2853.]

parties can not, of right, interfere.’” State v. Murphy, 91

Ohio St.3d 516, 525, 747 N.E.2d 765 (2001), quoting Bond v.

State, 23 Ohio St. 349, 355, 1872 WL 78 (1872). Furthermore,

“[a] party has no right to have any particular juror on the

panel.” Id. Therefore, “‘[i]t is no ground for reversal of

judgment in a criminal case, that the court, before the day set

for trial, discharged some of the jurors in attendance on

grounds of personal excuse and upon their unsworn statements * *

*.’” State v. Clemons, 3d Dist. No. 1–86–36, 1988 WL37129, *6

(Mar. 30, 1998), quoting Bond at paragraph three of the

syllabus; accord State v. Nguyen, 4th Dist. Athens No. 12CA14,

2013-Ohio-3170, ¶ 95. Thus, the erroneous excusal of a juror

without voir dire typically constitutes harmless error. Id.;

State v. Van Wormer, 3rd Dist. Hardin No. 6-92-14, 1993 WL

360427, *2.

{¶41} In the case before us, we believe that the trial

court’s decision to excuse the juror before voir dire is a

matter “‘between the court and the juror[], and with which the

parties can not, of right, interfere.’” Murphy, 91 Ohio St.3d

at 525, quoting Bond, 23 Ohio St. at 355. Moreover, trial

courts have discretion to determine whether a prospective juror

should be disqualified for cause. State v. Thompson, 141 Ohio

St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 83. Thus, [Cite as State v. Chapman, 2022-Ohio-2853.]

reviewing courts will not reverse a trial court’s decision

regarding a challenge for cause unless the trial court abused

that discretion. E.g., Berk v. Matthews, 53 Ohio St.3d 161,

169, 559 N.E.2d 1301 (1990). “An abuse of discretion is more

than a mere error of law or judgment.” Thompson at ¶ 91; accord

State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d

208, ¶ 75. Instead, “‘[a] trial court abuses its discretion

when it makes a decision that is unreasonable, unconscionable,

or arbitrary.’” State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-

2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio

St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of

discretion includes a situation in which a trial court did not

engage in a “‘sound reasoning process.’” State v. Morris, 132

Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting

AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

Additionally, “[a]buse of discretion review is deferential and

does not permit an appellate court to simply substitute its

judgment for that of the trial court.” Darmond at ¶ 34.

{¶42} In the case sub judice, if the abuse of discretion

standard applies to a court’s decision to dismiss a juror under

R.C. 2313.14(A)(4) before voir dire, we do not believe that the

trial court abused its discretion. Here, the trial court [Cite as State v. Chapman, 2022-Ohio-2853.]

discussed its reasoning on the record and explained that the

prospective juror does not remember the judge’s name when the

judge sees him around town. Instead, the juror calls the judge,

“David’s Dad.” The judge indicated he is very familiar with the

juror and questioned the juror’s capability to be seated as a

juror in a criminal trial. Furthermore, the juror’s father

asked the court to excuse the juror from service because the

father did not believe that sitting on this jury would be in the

juror’s best interest. Consequently, we are unable to conclude

that the trial court’s excusing the juror before voir dire

constitutes an abuse of discretion.

{¶43} To the extent appellant believes that the R.C.

2313.14(A)(4) statutory procedure for excusing a prospective

juror from service violates the Equal Protection Clause, we

again point out that he did not raise this specific argument

before the trial court, nor present this argument in his

appellate brief. We therefore will not create this argument.

E.g., State v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-

4315, ¶ 43-44, quoting State v. Palmer, 9th Dist. Summit No.

28303, 2017-Ohio-2639, ¶ 33 (appellate court does not have a

duty to construct argument on an appellant’s behalf and will not

address “‘undeveloped arguments’”); McPherson v. Goodyear Tire &

Rubber Co., 9th Dist. Summit No. 21499, 2003-Ohio-7190, ¶ 31 [Cite as State v. Chapman, 2022-Ohio-2853.]

(appellate courts do not have duty to construct or develop

arguments to support a defendant’s assignment of error).

{¶44} We additionally note that the parties addressed the

applicability of State v. Speer, 124 Ohio St.3d 564, 2010-Ohio-

649, 925 N.E.2d 584, to the facts in the case sub judice. The

Speer court held:

In deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court. The right to a fair trial requires that all members of the jury have the ability to understand all of the evidence presented, to evaluate that evidence in a rational manner, to communicate effectively with other jurors during deliberations, and to comprehend the applicable legal principles as instructed by the court. An accommodation made to enable a physically impaired individual to serve as a juror must afford the accused a fair trial. A hearing impairment by itself does not render a prospective juror incompetent to serve on a jury, but when the accommodation afforded by the court fails to enable the juror to perceive and evaluate the evidence, the accused is deprived of a fair trial. To avoid such situations, a trial court must determine whether reasonable accommodations will enable an impaired juror to perceive and evaluate all relevant and material evidence, and when no such accommodation exists, the court must excuse the juror for cause.

Id. at paragraph one, two, and three of the syllabus. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶45} We agree with the state that Speer does not apply to

the case before us. In Speer, the defendant challenged for

cause a hearing-impaired juror, and the trial court overruled

the defendant’s challenge. The court indicated it would

accommodate the juror’s hearing impairment and allow the juror

“to sit where she could see the faces of the witnesses” and

asked the juror to inform the court “if she missed anything.”

Id. at ¶ 11. The court also permitted the juror “to read the

court reporter’s real-time transcription of the audio tape.”

{¶46} The Ohio Supreme Court determined that, despite the

trial court’s attempt to accommodate the juror’s hearing

impairment, the defendant did not receive a fair trial. The

court explained that any accommodation for a hearing-impaired

juror must “enable the juror to perceive and evaluate the

evidence.” Id. at ¶ 26. Otherwise, “an accused cannot receive

a fair trial.” Id. The supreme court thus indicated that trial

courts that review challenges for cause based upon a juror’s

hearing impairment must excuse the juror for cause when no

“reasonable accommodations will enable an impaired juror to

perceive and evaluate all relevant and material evidence.” Id. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶47} In Speer, the court considered the procedure that

trial courts should follow when evaluating challenges for cause

to a hearing-impaired juror, or to a juror with a physical

disability. The court did not, however, determine that this

same procedure applies when trial courts review whether to

excuse a prospective juror with Down Syndrome from service under

R.C. 2313.14(A)(4). For this reason, we find Speer inapposite.

{¶48} Consequently, we do not agree with appellant that the

trial court erred, plainly or otherwise, by dismissing the juror

before voir dire. R.C. 2313.14(A)(4) authorizes a trial court

to dismiss a juror upon being satisfied that the juror has a

mental or physical condition that caused the juror to be

incapable of performing jury service. Here, the trial court

obviously was satisfied, based upon the trial judge’s

familiarity with the prospective juror, as well as the juror’s

father’s statements, that the juror had a mental or physical

condition (i.e., Down Syndrome) that caused the juror to be

incapable of performing jury service. Therefore, because we do

not believe appellant has shown that the trial court erred by

choosing to excuse the juror before voir dire, we have not found

any error and appellant’s structural-error argument is without

merit. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶49} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶50} In his second assignment of error, appellant asserts

that the trial court erred by failing to merge his attempted

murder and kidnapping convictions.

{¶51} The Double Jeopardy Clauses of the Fifth Amendment to

the United States Constitution and Article I, Section 10 of the

Ohio Constitution, prohibit a criminal defendant from being

tried twice for the same offense. The Double Jeopardy Clause

prohibits successive prosecutions and multiple punishments for

the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-

995, 34 N.E.3d 892, ¶ 10.

{¶52} “R.C. 2941.25 codifies the protections of the Double

Jeopardy Clause.” State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, 922 N.E.2d 923, ¶ 23; accord State v. Miranda, 138 Ohio

St.3d 184, 2014-Ohio-451, 5 N.E.3d 603; State v. Washington, 137

Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 11. The

(A) Where the same conduct by [a] defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. [Cite as State v. Chapman, 2022-Ohio-2853.]

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶53} R.C. 2941.25(A) thus allows only a single conviction

when the same conduct constitutes “allied offenses of similar

import.” However, R.C. 2941.25(B) permits multiple convictions

when any of the following circumstances apply: (1) the

defendant’s conduct constitutes offenses of dissimilar import;

(2) the defendant’s conduct shows that the defendant committed

the offenses separately; or (3) the defendant’s conduct shows

that the defendant committed the offenses with separate animus.

Ruff at ¶ 13, citing State v. Moss, 69 Ohio St.2d 515, 519, 433

N.E.2d 181 (1982).

{¶54} Offenses are of dissimilar import “if they are not

alike in their significance and their resulting harm.” Id. at ¶

21. Additionally, “a defendant’s conduct that constitutes two or

more offenses against a single victim can support multiple

convictions if the harm that results from each offense is

separate and identifiable from the harm of the other offense.”

Id. at ¶ 26. Thus, “two or more offenses of dissimilar import

exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if [Cite as State v. Chapman, 2022-Ohio-2853.]

the harm that results from each offense is separate and

identifiable.” Id. at ¶ 23.

{¶55} When determining whether offenses are allied offenses

of similar import within the meaning of R.C. 2941.25, courts

must answer three essential questions: “(1) Were the offenses

dissimilar in import or significance? (2) Were they committed

separately? and (3) Were they committed with separate animus or

motivation? An affirmative answer to any of the above will

permit separate convictions.” State v. Earley, 145 Ohio St.3d

281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, citing Ruff at ¶ 31

and paragraphs one, two, and three of the syllabus.

Accordingly, courts must consider “[t]he conduct, the animus,

and the import.” Id.

{¶56} We further note that a defendant bears the burden to

establish that R.C. 2941.25 prohibits multiple punishments.

State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999

N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67,

514 N.E.2d 870 (1987). Additionally, appellate courts review a

trial court’s R.C. 2941.25 merger decision independently and

without deference to the trial court. State v. Williams, 134

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶57} After our review in the case at bar, we do not believe

that the trial court’s decision to decline to merge appellant’s

attempted murder and kidnapping convictions constitutes error.

Instead, we believe that the record supports a finding that each

of the offenses resulted in a separate and identifiable harm.

{¶58} Courts that are determining whether to merge a

kidnapping offense and another offense apply the following

guidelines established in State v. Logan, 60 Ohio St.2d 126,

135, 397 N.E.2d 1345 (1979):

(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.

Id. at syllabus; accord State v. Grate, 164 Ohio St.3d 9, 2020-

Ohio-5584, 172 N.E.3d 8, ¶ 108; State v. Jones, 4th Dist.

Hocking No. 20CA2, 2021-Ohio-2601, ¶ 30; State v. Thacker, 4th

Dist. Lawrence No. 18CA21, 2020-Ohio-4620, ¶ 125, appeal not

accepted, 161 Ohio St. 3d 1408, 2021-Ohio-106, 161 N.E.3d 687 [Cite as State v. Chapman, 2022-Ohio-2853.]

(all noting that Logan analysis still governs merger analysis

involving kidnapping and other related offenses).

{¶59} In Logan, the defendant was convicted of kidnapping

and rape, among other offenses. The evidence showed that the

defendant confronted the victim and offered her some pills, but

after the victim refused to accept the pills, the defendant

brandished a knife, held it to the victim’s throat, then forced

her into an alley. The defendant then walked the victim down

the alley, around a corner, down a flight of stairs, then raped

her at knifepoint.

{¶60} On appeal to the Ohio Supreme Court, the defendant

asserted that his kidnapping and rape convictions constituted

allied offenses of similar import and the trial court thus

should have merged the convictions. The supreme court agreed

and determined that “the restraint and movement of the victim

had no significance apart from facilitating the rape.” Id. at

135. The court additionally found that “[t]he detention was

brief, the movement was slight, and the victim was released

immediately following the commission of the rape.” Id. The

court thus concluded that the defendant did not have “a separate

animus to commit kidnapping.” Id. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶61} The court next considered whether “the victim, by such

limited asportation or restraint, was subjected to a substantial

increase in the risk of harm separate from that involved in the

underlying crime.” Id. The court determined that the facts

failed to show “that the asportation of the victim down the

alley to the place of rape presented a substantial increase in

the risk of harm separate from that involved in the rape.” Id.

Consequently, the court determined that the defendant’s

kidnapping and rape offenses are allied offenses of similar

import. The court further stated, however, that when “murder,

the taking of a hostage, or extortion is the underlying crime, a

kidnapping in facilitation thereof would generally constitute a

separately cognizable offense.” Id.; accord State v. Adams, 103

Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 90 (noting that

Logan held that “where murder is the underlying crime, a

kidnapping in facilitation thereof would generally constitute a

separately cognizable offense”).

{¶62} Twenty-five years after Logan, in Adams the Ohio

Supreme Court considered whether the defendant’s kidnapping and

rape offenses should merge. In that case, the defendant entered

a home, killed the homeowner, then raped and murdered the

homeowner’s 12-year-old daughter. A jury found the defendant [Cite as State v. Chapman, 2022-Ohio-2853.]

guilty of aggravated murder, aggravated burglary, kidnapping,

and rape.

{¶63} On appeal to the Ohio Supreme Court, the defendant

argued that the trial court erred by failing to merge his

kidnapping and rape convictions. The court agreed. The court

catalogued the kidnapping and aggravated murder cases in which

it previously had found that a separate animus existed:

In State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio- 2284, 787 N.E.2d 1185, at ¶ 135, the defendant lured the six-year-old victim into his apartment and kept her there long enough to show her some videos before raping and killing her. In State v. Hartman (2001), 93 Ohio St.3d 274, 280–281, 754 N.E.2d 1150, “the [d]efendant tied [the victim] to the bed, gagged her, stabbed her one hundred thirty-eight times, slit her throat, and strangled her to death.” In State v. Simko (1994), 71 Ohio St.3d 483, 489, 644 N.E.2d 345, the defendant “restrained and terrorized” the victim for approximately one-half hour before shooting her when she tried to escape. In State v. Hill (1992), 64 Ohio St.3d 313, 595 N.E.2d 884, the defendant forced the 12–year–old victim from a parking lot to a secluded, wooded area, where the victim was repeatedly beaten, raped, and then strangled and set on fire. See, also, State v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408 (kidnapping found when defendant and accomplice terrorized and held bar patrons at gunpoint for 20 to 30 minutes, preventing them from leaving); State v. Powell (1990), 49 Ohio St.3d 255, 261–262, 552 N.E.2d 191 (kidnapping upheld when defendant lured a child from her home to fourth floor of nearby building where he attempted to rape her and ultimately killed her by throwing her from the window).

Id. at ¶ 92.

{¶64} After reviewing the foregoing cases, the court

concluded that the record did not contain any evidence to show [Cite as State v. Chapman, 2022-Ohio-2853.]

that the defendant had moved the victim “to or from the bedroom

where she was killed or that he tied her up or restrained her in

any way other than what was necessary to rape and kill her.”

Id. at ¶ 93. The court also noted that the evidence failed to

show that the defendant subjected the victim to any “substantial

movement, prolonged restraint, or secretive confinement.” Id.

The court thus determined that the evidence failed to show that

the defendant committed the two offenses – kidnapping and rape –

with separate animus.

{¶65} In the case at bar, after our review of the record we

do not agree with appellant that he committed both the

kidnapping and attempted murder with the same animus. The facts

in Logan and Adams are not the same as the facts in the case

before us. In Logan and Adams, the defendant either did not

move the victim at all or any movement was slight. In the case

sub judice, however, the victim, found ten feet from the side of

the road, told one deputy that appellant stabbed her, that she

fought back, and that he then tried “to drag her” to the field.

Appellant, therefore, committed two separate acts: he stabbed

the victim, then transported the victim into a field and

attempted to drag her toward a pool of water. The state also

introduced a photograph of the area that depicts a large pool of

water, or, as Deputy Reffett described it, an area marshy and [Cite as State v. Chapman, 2022-Ohio-2853.]

like a wetland. Thus, we believe that the evidence adduced at

trial shows “substantial movement, prolonged restraint, or

secretive confinement.” Adams at ¶ 93; Logan, 60 Ohio St.2d at

135 (“Secret confinement, such as in an abandoned building or

nontrafficked area, without the showing of any substantial

asportation, may, in a given instance, also signify a separate

animus and support a conviction for kidnapping apart from the

commission of an underlying offense.”).

{¶66} Furthermore, the facts adduced at trial in the case at

bar show that dragging the victim into the field “presented a

substantial increase in the risk of harm separate from that

involved in the [attempted murder].” Logan, 60 Ohio St.2d at

135; see State v. DeWees, 2018-Ohio-1677, 111 N.E.3d 334, ¶ 40

(11th Dist.) (kidnapping committed separately from rape when

defendant forcibly dragged the victim “by the hair and neck,

from a public walkway where she was found to a place not visible

from that walkway for the purpose of raping her without

detection”); State v. Zanders, 8th Dist. Cuyahoga No. 99146,

2013-Ohio-3619, ¶ 29 (restraint and force used in “dragg[ing]

the victim by the back of her hair from a pay phone across the

street and then through an open field to a secluded ‘cubbyhole’

in the rear yard behind a building * * * was separate and

distinct from the force exercised during acts of the rape”). [Cite as State v. Chapman, 2022-Ohio-2853.]

Here, appellant substantially increased the risk of harm to the

victim when he abandoned her in a location where passing

motorists may have been unable to notice her presence. These

facts allowed the jury to infer that appellant attempted to

callously discard the victim in a location where she would not

be found in time for life-saving treatment.

{¶67} Consequently, we believe that appellant acted with the

intent to stab the victim and also with the intent to move the

victim to a location hidden from public view. Moving the victim

was not incidental to the stabbing. Instead, moving the victim

to a location away from the roadway, and dragging her toward a

field filled with water, substantially increased the risk that

the victim would not be found in a sufficient period of time to

administer life-saving emergency medical care. We therefore

believe that the evidence shows that appellant had a separate

animus as to each offense sufficient to support separate

convictions.

{¶68} We also point out that in both Adams and Logan, the

court stated that when “murder is the underlying crime, a

kidnapping in facilitation thereof would generally constitute a

separately cognizable offense” Adams at ¶ 90; Logan, 60 Ohio

St.2d at 135; see State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d

464 (1990) (kidnapping not incidental to murder when defendant [Cite as State v. Chapman, 2022-Ohio-2853.]

forced victim into van, drove away, and later murdered the

victim); State v. Reynolds, 80 Ohio St.3d 670, 687 N.E.2d 1358

(1998) (defendant acted with a separate animus in committing

murder and kidnapping when victim’s hands restrained “for a

period of time” before she was killed); State v. Luff, 85 Ohio

App.3d 785, 621 N.E.2d 493 (6th Dist.1993) (kidnapping and

aggravated murder dissimilar when victims led into barn and

restrained with duct tape before murder). Although the case at

bar involves the crime of attempted murder, not murder, we

nonetheless believe that this principle is also applicable to

crime of attempted murder. Appellant, therefore, may be

convicted of each offense.

{¶69} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶70} In his third assignment of error, appellant asserts

that his sentence, imposed under the Reagan Tokes Law, is

unconstitutional. In particular, appellant contends that the

sentencing provisions contained within the Reagan Tokes Law [Cite as State v. Chapman, 2022-Ohio-2853.]

violate (1) the separation-of-powers doctrine, (2) his right to

due process, and (3) his right to a jury trial.6

{¶71} We first point out that appellant did not raise these

particular arguments during the trial court proceedings. As we

noted earlier, parties may not raise new arguments on appeal.

Furthermore, the “[f]ailure to raise at the trial court level

the issue of the constitutionality of a statute or its

application, which is apparent at the time of trial, constitutes

a waiver of such issue and a deviation from this state’s orderly

procedure, and therefore need not be heard for the first time on

appeal.” State v. Awan, 22 Ohio St.3d 120 (1986), syllabus;

accord State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164

N.E.3d 294, ¶ 7. We may, however, consider forfeited

constitutional errors under a plain-error analysis. State v.

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

16, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880

N.E.2d 31, ¶ 377-378; State v. Alexander, 4th Dist. Adams No.

21CA1144, 2022-Ohio-1812, ¶ 52.

6 The constitutionality of the Reagan Tokes Law currently is pending before the Ohio Supreme Court. State v. Hacker, 166 Ohio St.3d 1462, 2022-Ohio-1104, 185 N.E.3d 94; State v. Simmons, 166 Ohio St.3d 1462, 2022-Ohio-1104, 185 N.E.3d 93. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶72} As we also indicated earlier, to establish plain error

a defendant must show that (1) an error occurred, (2) the error

was plain or obvious, (3) absent the error the outcome of the

proceeding would have been otherwise, and (4) reversal is

necessary to correct a manifest miscarriage of justice.

Quarterman at ¶ 16, citing State v. Davis, 127 Ohio St.3d 268,

2010-Ohio-5706, 939 N.E.2d 147, ¶ 29; Buttery at ¶ 7.

{¶73} Recently, we held that the Reagan Tokes Law does not

violate the separation-of-powers doctrine or a defendant’s right

to due process. State v. Alexander, 4th Dist. Adams No.

21CA1144, 2022-Ohio-1812; State v. Bontrager, 4th Dist. Adams

No. 21CA1139, 2022-Ohio-1367. We see no reason to depart from

these holdings. Moreover, many other appellate courts have

reached the same conclusion that the Reagan Tokes Law does not

violate the separation-of-powers doctrine or infringe on

defendants’ due process rights. E.g., State v. Bloodworth, 12th

Dist. Warren No. CA2021-08-073, 2022-Ohio-1899; State v. Burris,

5th Dist. Guernsey No. 21CA000021, 2022-Ohio-1481; State v.

Maddox, 6th Dist. Lucas No. L-19-1253, 2022-Ohio-1350; State v.

Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470; State

v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027;

State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547. [Cite as State v. Chapman, 2022-Ohio-2853.]

{¶74} Appellant further argues that the Reagan Tokes Law is

unconstitutional because it violates the United States and Ohio

constitutional provisions that guarantee criminal defendants the

right to a jury trial.7 Appellant contends that the sentencing

provisions permit the Ohio Department of Rehabilitation and

Correction (ODRC) to increase a defendant’s sentence based upon

fact-finding and that this fact-finding violates the principles

outlined in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002),

and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004). The principles set forth in these cases

generally prohibit increasing a defendant’s sentence beyond the

maximum term based upon facts that did not form part of the

jury’s verdict.

{¶75} Although our decision in Alexander did not consider

whether the Reagan Tokes Law violates a defendant’s

7 The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Article I, Section 5 of the Ohio Constitution states: “The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.” [Cite as State v. Chapman, 2022-Ohio-2853.]

constitutional right to a jury trial, several other courts have

considered the issue and have held that it does not. State v.

Leamman, 2nd Dist. Champaign No. 2021-CA-30, 2022-Ohio-2057, ¶

12; State v. Brazo, 5th Dist. Licking No. 2021 CA 0016, 2022-

Ohio-2066; State v. Thompson, 2nd Dist. Clark No. 2020-CA-60,

2021-Ohio-4027; State v. Rogers, 12th Dist. Butler No. CA2021-

02-010, 2021-Ohio-3282.

{¶76} In Thompson, the court adopted the Rogers court’s

analysis of the issue in its entirety, and we do the same.

In Apprendi, a jury convicted the defendant of a firearm crime that carried a maximum prison sentence of ten years. However, a judge subsequently sought to impose a longer sentence pursuant to a statute that authorized him to do so if he found, by a preponderance of the evidence, that the defendant had committed the crime with racial bias. Apprendi held this scheme unconstitutional: “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant. Apprendi at 490. Nor may a state evade this traditional restraint on the judicial power by simply calling the process of finding new facts and imposing a new punishment a judicial “sentencing enhancement.” Id. at 495. “[T]he relevant inquiry is one not of form, but of effect – does the required [judicial] finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494. “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis sic.) Blakely v. Washington, 542 U.S. 296, 303, 12[4] S.Ct. [2531, 159 L.Ed.2d 403] (2004). “In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the [Cite as State v. Chapman, 2022-Ohio-2853.]

maximum he may impose without any additional findings.” (Emphasis sic.) Id. at 303-304; State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050, 2014-Ohio-2340, ¶ 121. In Ring, a jury convicted the defendant of felony murder, a crime that carried a maximum sentence of life imprisonment. However, a state statute allowed the trial judge to impose the death penalty if he found, independent of the jury, at least one aggravating factor. Extending the rule of Apprendi to capital punishment, the United States Supreme Court found the sentencing scheme violative of the Sixth Amendment right to a jury trial because the required judicial finding of an aggravated circumstance exposed the defendant to greater punishment than authorized by the jury’s verdict. Ring, 536 U.S. at 609; State v. McKelton, 12th Dist. Butler No. CA2017-07-106, 2018-Ohio-1357, ¶ 8. The Reagan Tokes sentencing scheme is unlike those involved in Apprendi, Ring, and Blakely. Under the Reagan Tokes Law, the trial court imposes both a minimum and a maximum term, and the indefinite prison sentence must be included in the final entry of conviction. R.C. 2929.14 and 2929.144. The only sentencing discretion provided to the trial court lies with the length of the minimum term under R.C. 2929.14(A)(1)(a) and (A)(2)(a); the maximum term is determined based upon a mathematical formula as applied to the minimum term of imprisonment. The maximum prison term component of a Reagan Tokes indefinite sentence is therefore authorized by the jury’s guilty verdict and is not based upon factors not submitted to the jury. The defendant is not exposed to greater punishment than that authorized by the jury’s verdict. Once imposed by the trial court, the indefinite sentence is then implemented by ODRC. ODRC simply enforces the sentence imposed by the trial court and its review is limited to determining the offender’s release date. R.C. 2967.271 establishes a presumptive release date upon completion of the minimum term. Once the minimum term is served, ODRC may rebut the presumption of release under certain conditions and enforce the remainder of the maximum term already imposed by the trial court. R.C. 2967.271(B). However, “[t]hat codified process does not alter the fact that the trial court imposed a maximum term as calculated under R.C. 2929.144.” State [Cite as State v. Chapman, 2022-Ohio-2853.]

v. Gamble, 8th Dist. Cuyahoga No. 109613, 2021-Ohio- 1810, ¶ 35. In rebutting the presumption of release, ODRC “is not extending the defendant’s prison term or imposing its own sentence for violations that occur while the offender is serving the imposed term of imprisonment.” Id. at ¶ 7. In other words, ODRC does not “increase” a penalty based upon facts not found by a jury but merely administers the sentence already imposed by the trial court for conviction of an offense for which the offender has the right to a jury trial. In a concurring opinion in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, Judge Gwin rejected a challenge to the Reagan Tokes Law as violative of the right to a jury trial, reasoning that Under the Reagan Tokes Law, the judge imposes both a minimum and a maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, paragraphs 1 and 11. The Department of Rehabilitation and Correction (“DRC”) is not permitted to extend a sentence imposed by the trial court beyond the maximum sentence imposed by the trial court. Further, the facts which postpone an inmate’s release date are facts found as a result of prison disciplinary proceedings, not the underlying crime. To extend Wolfe’s argument to its logical end it would be necessary for the courts to invalidate punishment as a result of internal prison disciplinary proceedings entirely, or require all rule infractions to be tried before a jury. It is evident that Apprendi and its progeny have no application in a prison disciplinary setting where the DRC does not have the authority to extend the inmate’s sentence beyond the maximum sentence imposed by the trial judge. Id. at ¶ 61-62. [Cite as State v. Chapman, 2022-Ohio-2853.]

Unlike the sentencing scheme in Apprendi and Ring, there is “no discretion exercised by the trial court in imposing the maximum term” under the Reagan Tokes Law, and “nothing within any provision codified under the Reagan Tokes Law permits any branch of government to impose a sentence beyond the maximum term as defined under R.C. 2929.144.” Gamble, 2021-Ohio-1810 at ¶ 44. The Reagan Tokes Law therefore does not violate an offender’s constitutional rights to trial by jury. Id.; contra State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-1809[, opinion vacated on reh’g en banc, 8th Dist. No. 109315, 2022-Ohio-470, 185 N.E.3d 536, appeal allowed, 166 Ohio St.3d 1496, 2022-Ohio- 1485, 186 N.E.3d 830].

Rogers at ¶ 14-20.

{¶77} Consequently, based upon the foregoing analysis, we

likewise conclude that the Reagan Tokes Law does not violate the

constitutional right to a jury trial.

{¶78} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error and affirm the

JUDGMENT AFFIRMED. [Cite as State v. Chapman, 2022-Ohio-2853.]

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period.

The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:_________________________ Peter B. Abele, 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.