State v. Leonard

2024 Ohio 2817

• Court: Ohio Court of Appeals
• Decided: July 26, 2024
• Docket: C-230589
• Status: Published

Opinion

[Cite as State v. Leonard, 2024-Ohio-2817.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230589 TRIAL NO. B-2203839 Plaintiff-Appellee, : O P I N I O N. vs. :

BLAKE LEONARD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: July 26, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Schuh & Goldberg, LLP, and Brian T. Goldberg, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge.

{¶1} Defendant-appellant Blake Leonard appeals the judgment of the

Hamilton County Court of Common Pleas convicting him of rape. In three

assignments of error, he argues that the indictment and bill of particulars were too

vague to enable him to adequately prepare a defense; he contests the sufficiency and

weight of the evidence underlying his conviction; and he argues that the trial court

failed to comply with the sentencing requirements contained in R.C. 2929.19(B)(2)(c).

We agree with Leonard that his sentence is contrary to law, because the trial court

failed to inform him of all the statutorily-required sentencing notifications.

Accordingly, we remand this matter for the limited purpose of permitting the trial

court to provide the sentencing notifications required under the Reagan Tokes Law.

We affirm the trial court’s judgment in all other respects.

Factual and Procedural Background

{¶2} Leonard was indicted for one count of rape in violation of R.C.

2907.02(A)(2), a first-degree felony, and the indictment stated that the offense

occurred on or about December 15, 2021. Leonard then opted to proceed to a bench

trial. At trial, the state presented the testimony of the victim and Lieutenant Kevin

Corbett of the Loveland Police Department.

{¶3} The victim testified that she had been dating Leonard since 2019, and

they had consensual sex over several hundred times during their relationship. She

explained that sometimes Leonard would cover her mouth with his hand, or she would

cover his mouth with her hand to keep each other quiet so family members would not

hear them.

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{¶4} She testified on cross-examination that she remembered that the rape

had occurred shortly before her birthday, which was December 2. The victim

explained that the rape occurred when Leonard had been spending the night at her

home. Prior to going to sleep, Leonard had asked the victim to have sex and she said

no. Approximately one and a half hours later, the victim awoke to Leonard on top of

her engaging in vaginal intercourse. The victim immediately said “no” and “stop.” He

then covered her mouth with his hand. She tried to push him off but was unable to do

so.

{¶5} Lieutenant Corbett testified that the victim reported the crime in August

2022, approximately nine months after it had occurred. In his investigation, he

separately interviewed the victim and Leonard and obtained a search warrant for

Leonard’s cell phone. On both Leonard’s phone and the victim’s phone, there were

numerous text messages, beginning around the middle of December 2021, where

Leonard confesses to raping the victim and asks for her forgiveness.

{¶6} Corbett testified that during the interview with Leonard, Leonard

admitted to raping the victim, who was his girlfriend at the time. Corbett informed

Leonard that the victim was unsure of the exact date of the rape, but Corbett testified

that Leonard had agreed that the rape occurred between November 2021 and

December 2021.

{¶7} Leonard initially told Corbett that he had a disorder called “sexsomina”

and did not realize that he had raped the victim, but by the end of the interview,

Leonard stated that he did not have that disorder. Leonard also expressed regret over

raping the victim and told Corbett that the rape was a result of his pornography

addiction.

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{¶8} The defense presented the testimony of Zachary Waddell who has

known Leonard for ten years. Waddell testified that he was also friends with the

victim, and the victim often drove him to work in exchange for cash. Waddell testified

that in March of 2022, while the victim was driving him home, she told him that as

long as Leonard allowed her to keep using his credit card on her Apple Pay, she would

not press charges for the rape.

{¶9} The trial court found Leonard guilty of one count of rape and sentenced

him to an indefinite prison term of four-to-six years. During the sentencing hearing,

the trial court gave an abbreviated version of the notifications required under the

Regan Tokes Law.

Vagueness of Indictment

{¶10} In his first assignment of error, Leonard asserts that the indictment and

bill of particulars were too vague to enable him to prepare a defense and because of

the vagueness of the indictment, Leonard was convicted of a crime that was never

presented to the grand jury.

{¶11} Because Leonard failed to object below or move to dismiss the

indictment, he has waived all but plain error. Crim.R. 52(B). “To establish plain error,

a defendant must show that (1) there was an error or deviation from a legal rule, (2)

the error was plain and obvious, and (3) the error affected the outcome of the trial.

State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 26, citing

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶12} Leonard argues that the incorrect date listed in the indictment and the

bill of particulars prejudiced his ability to present a meaningful defense at trial. But

“[w]here the exact date and time of an offense are not material elements of a crime nor

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essential to the validity of a conviction, the failure to prove such is of no consequence

and it is sufficient to prove that the alleged offense occurred at or about the time

charged.” State v. Ibrahim, 8th Dist. Cuyahoga No. 102114, 2015-Ohio-3345, ¶ 32,

citing State v. Madden, 15 Ohio App.3d 130, 131, 472 N.E.2d 1126 (12th Dist.1984).

With respect to the offense of rape, the precise date that it occurred is not an essential

element of the crime. State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985);

In re N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-35 and 2010-L-041, 2011-Ohio-

6845, ¶ 53 (“[T]he specific date of sexual conduct is not an element of rape as defined

in R.C. 2907.02(A)(2).”). Further, an indictment is not invalid for stating the time of

the offense imperfectly. See R.C. 2941.08(C).

{¶13} Here, Leonard has not met the plain-error standard. First, there was no

deviation from a legal rule because the indictment and bill of particulars were valid

even with an imperfect date of the crime. Second, the inclusion of an imprecise date

was not an obvious error because Leonard agreed that the rape had occurred between

November 2021 and December 2021. Third, there is no evidence in the record that the

lack of a specific date deprived him of preparing a defense. Although Leonard argues

that he could have filed an alibi defense if he had known the exact date, that argument

is speculative at best.

{¶14} Because Leonard has not demonstrated that but for the imprecise date

in the indictment the outcome of the trial would have been different, we overrule his

first assignment of error.

Sufficiency and Weight of the Evidence

{¶15} In his second assignment, Leonard challenges the sufficiency and

weight of the evidence supporting his conviction.

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In a challenge to the sufficiency of the evidence, the question is whether

after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of

the crime beyond a reasonable doubt. In reviewing a challenge to the

weight of the evidence, we sit as a ‘thirteenth juror.’ We must review

the entire record, weigh the evidence, consider the credibility of the

witnesses, and determine whether the trier of fact clearly lost its way

and created a manifest miscarriage of justice.

(Citations omitted.) State v. Baxter, 1st Dist. Hamilton No. C-180575, 2019-Ohio-

4855, ¶ 7.

{¶16} To find Leonard guilty of rape in violation of R.C. 2907.02(A)(2), the

state had to prove that Leonard purposely engaged in vaginal intercourse with the

victim by compelling her to submit by force or threat of force.

{¶17} Viewing the evidence in a light most favorable to the state, we hold that

there was sufficient evidence to support Leonard’s conviction. The victim testified that

despite telling Leonard she did not want to have sex, she awoke later in the night to

Leonard on top of her engaging in vaginal intercourse. She said “no” and told him to

“stop” but Leonard just covered her mouth with his hand. She then tried to push him

off, but she was unable to do so.

{¶18} With respect to the weight of the evidence, we cannot say that the trial

court lost its way and created a manifest miscarriage of justice by finding Leonard

guilty of rape given his confession to police and the numerous text messages on his

phone asking the victim to forgive him for raping her.

{¶19} The second assignment of error is overruled.

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Sentencing Notifications

{¶20} In his third and final assignment, Leonard argues that his indefinite

sentence is contrary to law because the trial court failed to properly inform him of the

R.C. 2929.19(B)(2)(c) notifications at the sentencing hearing. These notifications

involve details about the indefinite-sentencing scheme contained in the Reagan Tokes

Law. The state acknowledges that the trial court did not fully comply with the statute

but argues that the simplified form of the notifications given by the trial court was

sufficient. We are unpersuaded.

{¶21} A trial court must advise a defendant of all five notifications set forth in

R.C. 2929.19(B)(2)(c) at the sentencing hearing. State v. Jackson, 1st Dist. Hamilton

No. C-200332, 2022-Ohio-3449, ¶ 20. The failure to advise the defendant of any of

the five notifications constitutes an error, and a remand is necessary for the limited

purpose of permitting the sentencing court to provide the mandatory notifications.

{¶22} In State v. Greene, 1st Dist. Hamilton No. C-220160, 2022-Ohio-4536,

¶ 7, we noted that “these notifications include the salient features of the Regan Tokes

Law—one of the chief purposes of which is to encourage good behavior by inmates in

prison.” The notifications include:

(i) [t]hat it is rebuttably presumed that the offender will be released

from service of the sentence on the expiration of the minimum

prison term imposed as part of the sentence * * *;

(ii) [t]hat the department of rehabilitation and correction may rebut

the presumption * * * if, at a hearing * * * the department makes

specified determinations regarding the offender’s conduct while

confined, the offender’s rehabilitation, the offender’s threat to

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society, the offender’s restrictive housing, if any, while confined,

and the offender’s security classification;

(iii) [t]hat if * * * the department at the hearing makes the specified

determinations and rebuts the presumption, the department

may maintain the offender’s incarceration after the expiration of

that minimum term * * *;

(iv) [t]hat the department may make the specified determinations

and maintain the offender’s incarceration * * * more than one

time;

(v) [t]hat if the offender has not been released prior to the expiration

of the offender’s maximum prison term imposed as part of the

sentence, the offender must be released upon the expiration of

that term.

R.C. 2929.19(B)(2)(c)(i)-(v).

{¶23} Here, the trial court did not fully comply with the required notifications.

Instead, the trial court gave a simplified form of the notifications:

The Ohio Department of Corrections is going to determine whether or

not you serve any time above the four years. There is a rebuttable

presumption that you’ll be released after the four-year period; however,

they may rebut this presumption. You’ll have a hearing before that

happens. But at the end of the day, it’s the Ohio Department of

Corrections that will determine whether or not you serve any time over

those four years, up to six years in the Ohio Department of Corrections.

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{¶24} The court’s notification did not inform Leonard of the circumstances

that would cause the Ohio Department of Rehabilitation and Correction (“ODRC”) to

extend his sentence above the minimum. See R.C. 2929.19(B)(2)(c)(ii). Given that

one of the main purposes of the notifications is to encourage good behavior while in

prison, it is pertinent for a defendant to understand that the ODRC could increase a

defendant’s sentence above the minimum based on the defendant’s conduct in prison,

the defendant’s rehabilitation, the defendant’s threat to society, the defendant’s

classification or whether defendant was placed in restrictive housing in prison. The

court’s notification also failed to inform Leonard that the ODRC could extend his

sentence more than once, see R.C. 2929.19(B)(2)(c)(iv). Accordingly, we hold that the

trial court did not comply with the required notifications under R.C. 2929.19(B)(2)(c).

{¶25} Therefore, we sustain Leonard’s third assignment of error and remand

this cause for the trial court to comply with R.C. 2929.19(B)(2)(c).

Conclusion

{¶26} Based on the foregoing, we reverse the trial court’s judgment in part and

remand this matter for the limited purpose of permitting the sentencing court to

provide the mandatory notifications as required by R.C. 2929.19(B)(2)(c). We affirm

the court’s judgment in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

ZAYAS, P.J., and CROUSE, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.