[Cite as State v. Newcomb,
2024-Ohio-805.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
: Case No. 21CA18
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
JAMES V. NEWCOMB, :
: RELEASED: 02/27/2024
Defendant-Appellant. :
APPEARANCES:
Jonathan T. Tyack and Madison Mackay, The Tyack Law Firm, Co., L.P.A.,
Columbus, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Steven K.
Nord, Assistant Lawrence County Prosecutor, Ironton, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal from a Lawrence County Court of Common Pleas
judgment of conviction in which the jury found appellant, James V. Newcomb,
guilty of assault, felonious assault, and theft. The trial court imposed an
aggregate minimum prison term of four years and a maximum prison term of six
years. Newcomb challenges his felonious assault and theft convictions on
several grounds.
{¶2} First, Newcomb argues the jury lost its way in finding his co-
defendant Shannon Clark credible and convicting Newcomb of theft. We
disagree. The evidence at trial established that Newcomb smacked the drone’s
remote control from Steve Hindi’s hand and it fell on the ground. Newcomb then
picked up the drone’s remote control and smashed it against his mailbox. At this
Lawrence App. No. 21CA18 2
point, while the drone was in the air, it started flying everywhere. After Newcomb
physically assaulted Hindi and threatened him to either leave or die, Hindi left the
area without his drone and without the remote control. Clark testified that later
he saw the drone and the remote control in Newcomb’s firepit where they were
burnt. We defer to the jury’s assessment of Clark’s credibility as it was in the
best position to gauge his demeanor, gestures, and voice inflictions, and hold
that Newcomb’s theft conviction was supported by the manifest weight of the
evidence.
{¶3} Second, Newcomb argues the trial court abused its discretion when it
instructed the jury in Counts One, Three and Four of complicity. Newcomb’s
claim mainly focuses on Count Three, theft, and argues that there was no
evidence that supported the claim Newcomb was complicit in the theft of the
drone. We first note, as is well-established, that a defendant is on notice that the
jury may be instructed on complicity even if the defendant is charged as a
principal offender. Further, the evidence established Newcomb committed the
theft of the drone as a principal offender as well as a complicit. Newcomb
smashed and destroyed Hindi’s drone’s remote control, physically assaulted
Hindi with the help of Clark, and then Newcomb threatened Hindi to leave or die.
Hindi left without his drone or remote control. Contrary to Newcomb’s argument,
Clark was found to be credible by the jury and he testified that Newcomb picked
up the remote control from the ground and that the drone was in Newcomb’s
firepit before it was lit by someone else. Thus, the trial court properly instructed
the jury on complicity.
Lawrence App. No. 21CA18 3
{¶4} Third, Newcomb argues the trial court erred when it denied his
Crim.R. 29 motion for acquittal as to Count Three, theft. He contends there was
insufficient evidence to convict him of the theft of the drone. His claim lacks
merit. We previously under the first assignment of error found that Newcomb’s
theft conviction was supported by the manifest weight of the evidence. This
conclusion is dispositive of a sufficiency of the evidence challenge. We thus,
uphold Newcomb’s theft conviction.
{¶5} Fourth, Newcomb argues the trial court erred when it admitted
hearsay evidence identifying the Chevy tan truck that struck Adam Fahnestock’s
SUV as belonging to Newcomb’s wife. During his direct examination, Detective
Sergeant Aaron Bollinger testified that as part of his investigation, he ran the
Chevy tan truck’s VIN number using a national database and determined it
belonged to Newcomb’s wife. Newcomb claims the admission violated the rules
of evidence and the Confrontation Clause of the Sixth Amendment. Newcomb
did not raise the Confrontation Clause violation at trial, thus, we will not address
it. As for the hearsay violation argument, we find the admission of the testimony
was harmless as it was cumulative to other testimony previously admitted at trial
that identified Newcomb as the driver of the Chevy tan truck.
{¶6} Finally, Newcomb argues his indefinite sentence under the Reagan
Tokes Law violates the separation-of-powers doctrine, his right to a jury trial, his
right to due process, and violates double jeopardy. The first three challenges
have recently been rejected by the Supreme Court of Ohio in State v. Hacker, __
Ohio St.3d __ , 2023-Ohio-2535, __ N.E.3d __. As a court bound to follow the
Lawrence App. No. 21CA18 4
Supreme Court of Ohio, we reject Newcomb’s first three challenges. As to his
double jeopardy claim, we similarly reject it since Newcomb is not facing retrial
under the Reagan Tokes Law sentencing scheme, and he is being punished only
once for the felonious assault conviction.
FACTS AND PROCEDURAL BACKGROUND
{¶7} Steve Hindi is the founder and president of SHARK (“Showing
Animals Respect and Kindness”). On January 3, 2021, Hindi, and two of his
SHARK colleagues, Adam Fahnestock and Michael Kobliska, drove to Lawrence
County, Ohio, to investigate a claim that cockfighting was occurring in that area.
They came prepared with investigatory equipment, including handheld
camcorders, body cameras, walkie-talkies, and drones. They had two rental
vehicles, a blue and a white SUV.
{¶8} At approximately 9:40 a.m., Hindi drove the blue SUV to Newcomb’s
property, where cockfighting was suspected to be occurring. Fahnestock was in
the passenger seat. Both Hindi and Fahnestock were wearing body cameras
and Fahnestock was also recording with the use of a camcorder. Hindi parked
the SUV before reaching the gate. Hindi on foot approached the open gate
leading to Newcomb’s house in which Shannon Clark and Scott Aldridge were
standing at each side of the gate. Hindi asked if there was a church service or a
special event as many vehicles could be seen on the property. This is when
Clark inquired who Hindi was and why was he there. Hindi did not respond to
these questions but when Clark asked him to step back behind the gate, Hindi
complied and began to walk back towards the blue SUV. Clark then closed the
Lawrence App. No. 21CA18 5
gate.
{¶9} Hindi went to the trunk of the blue SUV and informed Fahnestock to
keep an eye on Clark and Aldridge, and if there is any movement to move over to
the driver’s side and drive off. While Fahnestock was keeping a lookout, and
transferred over to the driver seat, Hindi was setting up a drone. As soon as
Hindi flew the drone up, you can hear a gentleman telling him to set it back down,
and then from Fahnestock’s camcorder, you see Newcomb, who was radioed in
by Aldridge, open the gate and start heading toward Hindi. From Hindi’s camera
in his ballcap and Fahnestock’s camcorder and body camera, Newcomb is seen
striking Hindi’s hand causing the drone’s remote control to fall to the ground.
Newcomb then picks up the remote control and smashes it on his mailbox. The
altercation continues with Newcomb rushing toward Hindi and trying to kick him.
Newcomb even attempted to break the driver-side window of the blue SUV by
slamming the remote control on the window.
{¶10} This is when Hindi told Fahnestock to drive off. From the side mirror
of the blue SUV, as recorded by Fahnestock’s camcorder, you can see
Newcomb body slam Hindi against the car. Hindi fell down and from his ballcap
camera you hear him scream as he is kicked by Newcomb and Clark. Hindi in
his testimony elaborated that Newcomb and Clark beat him with the use of their
fists, legs, and struck him on the back of the head with an object. The screams
you hear in the video, Hindi explained, were from the kicks to the ribs. Because
of this physical assault, Hindi suffered a broken rib, laceration to the back of the
head, separation in his back, and several bumps and bruises. As Hindi was on
Lawrence App. No. 21CA18 6
the ground, you hear Newcomb tell him “last chance, leave or die.”
{¶11} Hindi got up and began walking away from Newcomb’s property and
towards the street. Clark followed him for a short period. As Hindi was walking,
he looked down at his vest, and as his ballcap camera was still recording, you
can see both of his body cameras were missing and blood can be seen on the
vest. Hindi testified that he was assaulted a second time by Newcomb. After
walking for a distance, Hindi saw a parked semi-truck driver and asked if he had
cell service to contact authorities. While conversing with the semi-truck driver,
Newcomb approached driving a tan truck. After Newcomb saw Hindi, he
stopped, and assaulted Hindi again using his fist and legs. Hindi was able to
obtain the tan truck’s license plate number before Newcomb left. After this
second assault, Hindi decided to go into the woods and hide until he could reach
one of his colleagues to pick him up.
{¶12} Newcomb’s assault continued with him now targeting Fahnestock.
After driving off, Fahnestock drove around trying to find Kobliska. He was not
able to find him so he kept driving before stopping and getting out a walkie-talkie
from the trunk. As soon as he got the walkie-talkie, Hindi was reaching out
asking for Fahnestock to pick him up. Fahnestock told Hindi he thinks he is
being followed, and at that point, Hindi told him to just keep driving and get out of
here. Fahnestock continued to drive and he mentions that he is still being
followed. Fahnestock’s comments are recorded through his body camera that
has been continuously recording. Around 11 a.m., Fahnestock speeds up and
shortly thereafter you see his body jerk and hear a bump. After the sixth bump,
Lawrence App. No. 21CA18 7
Fahnestock loses control and crosses the lane and ends up in a deep ditch.
{¶13} From the body camera, a tan truck is seen driving off as Fahnestock
is in the ditch and his body is sideways. As part of the investigation, Detective
Sergeant Aaron Bollinger obtained a homeowner’s security surveillance video
that had recorded the accident. As described by Detective Sergeant Bollinger,
the Chevy tan truck did a pit maneuver on Fahnestock’s vehicle in which the
truck hit the SUV on the corner causing it to spin out of control. The video also
showed Clark and another passenger exit the truck with the truck driving off.
{¶14} Fahnestock was sore for a week, had discomfort in his neck, both
arms, down his legs, and had some scrapes and cuts. Because of the accident,
Fahnestock received chiropractic treatment.
{¶15} As a result of his conduct on January 3, 2021, Newcomb was
charged with four offenses: Count One, felonious assault with Hindi as the victim;
Count Two, felonious assault with Fahnestock as the victim; Count Three, theft
as a fifth-degree felony for the theft of the drone; and Count Four, tampering with
evidence. Newcomb pleaded not guilty and the matter proceeded to a two-day
jury trial. The jury found Newcomb guilty of the lesser offense of assault in Count
One, guilty as charged of felonious assault in Count Two, guilty of theft as
charged in Count Three, and not guilty of tampering with evidence.
{¶16} The trial court imposed 180 days in jail for the assault conviction, a
minimum prison term of 4 years and maximum prison term of 6 years for the
felonious assault conviction, and 12 months in prison for the theft offense. The
trial court ordered the sentences to be served concurrently. It is from this
Lawrence App. No. 21CA18 8
judgment of conviction entry that Newcomb appeals.
ASSIGNMENTS OF ERROR
I. DEFENDANT’S CONVICTIONS FOR FELONIOUS ASSAULT
(COUNT II) AND THEFT (COUNT III) WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE’S
MOTION TO AMEND THE INDICTMENT AND PRESENTED A
COMPLICITY JURY INSTRUCTION FOR AIDING AND ABETTING
AS TO COUNT III (THEFT).
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
MOTIONS FOR ACQUITTAL UNDER CRIM. R. 29(A) & (C) AS
THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A
CONVICTION AS TO COUNT III (THEFT).
IV. THE TRIAL COURT ERRED BY ADMITTING THE HEARSAY
TESTIMONY OF DET. BOLLINGER.
V. MR. NEWCOMB’S INDEFINITE SENTENCE UNDER THE
REAGAN TOKES ACT VIOLATES HIS CONSTITUTIONAL
RIGHTS UNDER THE OHIO CONSTITUTION AND THE U.S.
CONSTITUTION.
ASSIGNMENT OF ERROR I
{¶17} In the first assignment of error, Newcomb argues the state failed to
present any evidence that he withheld or disposed of the drone.1 According to
Newcomb, the evidence was conflicting, where Steve Hindi and Shannon Clark
presented contradictory testimony with regard to the drone. Hindi testified that
the drone was still in the air, but Clark testified that Newcomb got the drone down
but did not explain how that was done. The state had the alternate theory that
destroying the remote deprived Hindi of the drone. But the state failed to present
1
Newcomb withdrew his challenge to Count Two, felonious assault, after submitting the brief and
confirmed the withdrawal of the challenge to that count at oral argument. Accordingly, we will solely
address the theft conviction under the first assignment of error.
Lawrence App. No. 21CA18 9
any evidence regarding the effect of the remote control’s incapacity on the drone.
Due to inconsistent testimony, Newcomb asserts the theft conviction cannot
stand as it is not supported by the manifest weight of the evidence.
{¶18} The state disagrees and maintains that Newcomb smashed the
remote control and because of that action, the drone remained hovering over
Newcomb’s property until the battery died and Hindi could not retrieve the drone
as he was assaulted and chased away. There was thus direct evidence and
additional circumstantial evidence that Newcomb deprived Hindi of being able to
retrieve the drone. There was also direct evidence from Clark of the fate of the
drone being burnt in the firepit at Newcomb’s property. The state asserts that the
jury did not lose its way in finding Clark’s testimony credible and there was
evidence of the value of the lost drone of more than $2,500.
Law and Analysis
{¶19} In determining whether a criminal conviction is against the manifest
weight of the evidence, an appellate court reviews the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction
must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541
(1997), citing State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st
Dist.1983). “Judgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed by a reviewing court
Lawrence App. No. 21CA18 10
as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley
Const. Co.,
54 Ohio St.2d 279,
376 N.E.2d 578 (1978), syllabus.
Circumstantial evidence and direct evidence inherently
possess the same probative value and therefore should be subjected
to the same standard of proof. When the state relies on
circumstantial evidence to prove an essential element of the offense
charged, there is no need for such evidence to be irreconcilable with
any reasonable theory of innocence in order to support a conviction.
State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph one of the
syllabus.
{¶20} The weight and credibility of evidence are to be determined by the
trier of fact. State v. Kirkland, 140 Ohio St.3d 73,
2014-Ohio-1966,
15 N.E.3d
818, ¶ 132. The trier of fact “is free to believe all, part or none of the testimony of
any witness,” and 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.” State v. Dillard, 4th Dist. Meigs No. 13CA9, 2014-Ohio-
4974, ¶ 28, citing State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-
1941, ¶ 23.
{¶21} In addition, “[a] verdict is not against the manifest weight of the
evidence because the finder of fact chose to believe the State’s witnesses.”
State v. Chancey, 4th Dist. Washington No. 15CA17, 2015-Ohio-5585, ¶ 36,
citing State v. Wilson, 9th Dist. Lorain No. 12CA010263,
2014-Ohio-3182, ¶ 24,
citing State v. Martinez, 9th Dist. Wayne No. 12CA0054,
2013-Ohio-3189, ¶ 16.
Moreover, “ ‘[w]hile the jury may take note of inconsistencies and resolve or
discount them accordingly, … such inconsistences (sic.) do not render
Lawrence App. No. 21CA18 11
defendant’s conviction against the manifest weight or sufficiency of the evidence.’
” State v. Corson, 4th Dist. Pickaway No. 15CA4,
2015-Ohio-5332, ¶ 31, quoting
State v. Proby, 10th Dist. Franklin No.15AP-1067,
2015-Ohio-3364, ¶ 42, citing
State v. Gullick, 10th Dist. Franklin No. 13AP-317,
2014-Ohio-1642, ¶ 10.
{¶22} In the matter at bar, the state alleged Newcomb committed theft by
taking control of Hindi’s drone and destroying it, thus, depriving Hindi from
recovering the drone. To prove Newcomb committed theft, the state was
required to prove that he “with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or
services in any of the following ways: (1) Without the consent of the owner or
person authorized to give consent[.]” R.C. 2913.02(A)(1). “A person acts
purposely when it is the person’s specific intention to cause a certain result, or,
when the gist of the offense is a prohibition against conduct of a certain nature,
regardless of what the offender intends to accomplish thereby, it is the offender’s
specific intention to engage in conduct of that nature.” R.C. 2901.22(A). Deprive
means to do any of the following:
(1) Withhold property of another permanently, or for a period
that appropriates a substantial portion of its value or use, or with
purpose to restore it only upon payment of a reward or other
consideration;
(2) Dispose of property so as to make it unlikely that the owner
will recover it;
(3) Accept, use, or appropriate money, property, or services,
with purpose not to give proper consideration in return for the money,
property, or services, and without reasonable justification or excuse
for not giving proper consideration.
R.C. 2913.01(C).
Lawrence App. No. 21CA18 12
A person acts knowingly, regardless of purpose, when the
person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature. A person has
knowledge of circumstances when the person is aware that such
circumstances probably exist. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is
established if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
R.C. 2901.22(B).
{¶23} We previously additionally defined:
“Obtain” means “just what it says, to get, to secure possession
of.” State v. Healy (1951), 156 Ohio St. 229, 239,
102 N.E.2d 233,
quoting Tingue v. State (1914), 90 Ohio St. 368,
108 N.E. 222. And
“control” means: “1. To exercise power or influence over. 2. To
regulate or govern. 3. To have a controlling interest in.” Black’s Law
Dictionary (2nd Pocket Edition 2001) 143.
State v. Dobbins, 4th Dist. Washington No. 11CA6, 2011-Ohio-6777, ¶ 12.
{¶24} Applying the theft statutory provision and the definitions as outlined
above, we find that the jury did not lose its way by convicting Newcomb of theft.
There was direct evidence that Newcomb snatched the drone’s remote control
from Hindi’s hand, smashed it against the mailbox, and then dropped it on the
ground away from Hindi. Thus, Newcomb knowingly exerted control over the
drone’s remote control, and consequently the drone. Moreover, Newcomb after
physically assaulting Hindi, threatened him to leave or die; therefore, not
permitting Hindi to retrieve the broken remote control or the drone.
{¶25} There was additional evidence as to the fate of the drone directly
from Newcomb, in which during his interview with Detective Sergeant Bollinger,
Newcomb stated that after smashing the remote control against the mailbox, the
drone went everywhere. Even though Newcomb claimed he did not know where
Lawrence App. No. 21CA18 13
the drone ended up, Clark testified that he observed the drone and the remote
control in Newcomb’s firepit before the firepit was started. The jury, as the trier of
fact, found Clark’s testimony to be credible and we defer to the jury’s credibility
determination.
{¶26} Finally, the value to replace the drone, the remote control, and the
memory card that was inside the drone, is approximately $2,500. This amount is
above the minimum threshold to support the theft offense as a fifth-degree
felony. See R.C. 2913.02(B)(2) (for fifth-degree felony, the value must be more
than $1,000 and less than $7,500.)
{¶27} Accordingly, we hold that the manifest weight of the evidence
supports Newcomb’s theft conviction and overrule his first assignment of error.
ASSIGNMENT OF ERROR II
{¶28} In the second assignment of error, Newcomb argues the trial court
erred when it overruled his objection and granted the state’s request to include
complicity instructions as to Counts One, Three, and Four. Newcomb maintains
the trial court’s decision was an abuse of discretion because the evidence did not
support such an instruction. According to Newcomb, the only evidence in
support of the instruction came from the co-defendant Shannon Clark, and
moreover, as to Count Three, there was no evidence to support the conviction as
an aider or abettor.
{¶29} In support of his argument, Newcomb attacks Clark’s credibility and
inconsistent testimony citing the following points. Clark for the first time at trial
testified that he witnessed individuals burning the drone and cameras on
Lawrence App. No. 21CA18 14
Newcomb’s property. But yet, Clark could not recall who had the drone’s remote
control. Clark could not identify who placed the drone and cameras in the firepit
and he did not get close enough to the firepit to see the objects. Clark could not
definitively testify that Newcomb burnt or aided in the burning of the objects.
Thus, the instructions were improperly given to the jury.
{¶30} The state disagrees and asserts that the trial court did not abuse its
discretion in granting its request because there was evidence that Newcomb
participated in the burning of the drone. The weighing of Clark’s credibility was
left to the trier of fact and Clark testified that he observed the drone in the firepit
and Newcomb at the firepit.
Law and Analysis
{¶31} We find no abuse of discretion by the trial court in instructing the
jury of complicity. “A charge of complicity may be stated in terms of this section,
or in terms of the principal offense.” R.C. 2923.03(F). The Supreme Court of
Ohio made it clear that R.C. 2923.03(F) “adequately notifies defendants that the
jury may be instructed on complicity, even when the charge is drawn in terms of
the principal offense.” State v. Hand, 107 Ohio St.3d 378,
2006-Ohio-18,
840
N.E.2d 151, ¶ 181.
{¶32} We previously summarized the trial court’s duty to provide the jury
with full and complete instructions:
A trial court generally has broad discretion in deciding how to
fashion jury instructions. State v. Hamilton, 4th Dist. Scioto No.
09CA3330, 2011-Ohio-2783,
2011 WL 2397088, ¶ 69. However, “a
trial court must fully and completely give the jury all instructions which
are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d
Lawrence App. No. 21CA18 15
206, 553 N.E.2d 640 (1990), paragraph two of the syllabus.
“Additionally, a trial court may not omit a requested instruction, if
such instruction is ‘a correct, pertinent statement of the law and [is]
appropriate to the facts ….’ ” Hamilton at ¶ 69, quoting State v.
Lessin, 67 Ohio St.3d 487, 493,
620 N.E.2d 72 (1993). “When
reviewing a trial court’s jury instructions, the proper standard of
review for an appellate court is whether the trial court’s refusal to give
a requested jury instruction constituted an abuse of discretion under
the facts and circumstances of the case.” State v. Ellis, 5th Dist.
Fairfield No. 02 CA 96, 2004-Ohio-610,
2004 WL 251809, ¶ 19.
State v. Jones, 4th Dist. Ross No. 16CA3574,
2018-Ohio-239, ¶ 10.
{¶33} “An abuse of discretion connotes more than a mere error of
judgment; it implies that the court’s attitude is arbitrary, unreasonable, or
unconscionable.” State v. Ables, 4th Dist. Pickaway No. 11CA22, 2012-Ohio-
3377, ¶ 9, citing State v. Adams, 62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980).
{¶34} Complicity is defined as:
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of
section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the
offense.
R.C. 2923.03(A).
{¶35} In the matter at bar, the trial court instructed the jury as follows:
The state of Ohio presented a theory that the defendant acted
in complicity with the principal offender in the commission of
felonious assault in Count 1, theft in Count 3, and tampering with
evidence in Count 4. A person who is complicit with another in the
commission of a criminal offense is regarded as guilty as if - - guilty
as if he personally performed every act constituting the offense. This
is true even if he did not personally perform every act constituting the
offense, or was not physically present at the time the offense was
committed.
Lawrence App. No. 21CA18 16
Before you can find the defendant guilty of complicity in the
commission of a felonious assault in Count 1, theft in Count 3, and
tampering with evidence in Count 4, you must find beyond a
reasonable doubt that on or about the third day of January, 2021, in
Lawrence County, Ohio, the defendant aided or abetted another in
executing the offenses identified in Counts 1, 3 and 4.
Aided or abetted. Before you can find the defendant guilty of
complicity by aiding and abetting, you must find beyond a reasonable
doubt that the defendant supported, assisted, encouraged,
cooperated with, advised, solicited, procured or incited the principal
offender in the commission of the offense and that the defendant
shared the criminal intent of the principal offender. Such intent may
be inferred from the circumstances surrounding the offense,
including but not limited to presence, companionship, and conduct
before and after the offense was committed. The mere presence of
the defendant at the scene of the offense is not sufficient to prove in
and of itself that the defendant was an aider or abetter (Sic.).
{¶36} Newcomb does not challenge the language used by the trial court in
instructing the jury, but rather that complicity was not supported by the evidence.
We begin by first noting that although Newcomb in his assignment of error
indicates he is challenging the instructions as to Counts One, Three and Four, he
was found not guilty of tampering with evidence, Count Four, and in his brief,
Newcomb attacks solely the theft offense, Count Three. Accordingly, we will
focus our analysis on Count Three, the theft of the drone.
“When the evidence adduced at trial could reasonably be
found to have proven the defendant guilty as an aider and abettor, a
jury instruction by the trial court on that subject is proper.” State v.
Perryman (1976), 49 Ohio St.2d 14,
358 N.E.2d 1040, paragraph five
of the syllabus, vacated in part on other grounds by Perryman v. Ohio
(1978), 438 U.S. 911,
98 S.Ct. 3136,
57 L.Ed.2d 1156. “To support
a conviction for complicity by aiding and abetting pursuant to R.C.
2923.03(A)(2), the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or
incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may
be inferred from the circumstances surrounding the crime.” State v.
Johnson (2001), 93 Ohio St.3d 240,
2001-Ohio-1336,
754 N.E.2d
796, at the syllabus.
Lawrence App. No. 21CA18 17
State v. Dyer, 4th Dist. Scioto No. 07CA3163,
2008-Ohio-2711, ¶ 19.
{¶37} As we previously stated, “circumstantial evidence and direct
evidence inherently possess the same probative value.” Jenks, 61 Ohio St.3d
259,
574 N.E.2d 492 (1991), paragraph one of the syllabus. The evidence
adduced here is that Newcomb was acting as a principal offender in depriving
Hindi of the drone and also as a complicit. Newcomb knowingly and purposefully
smacked the drone’s remote control from Hindi’s hand. Further, Newcomb
picked up the remote control and smashed it against his mailbox at which point
he saw the drone just go everywhere. Newcomb and Clark then physically
assaulted Hindi and Newcomb threatened Hindi “last chance, leave or die here.”
{¶38} Moreover, after Hindi left, it was Newcomb who picked up the two
body cameras that fell out of Hindi’s vest. The same cameras that Clark testified
he saw with the drone in Newcomb’s firepit. Newcomb, Aldridge and Clark were
the only three present when Hindi was assaulted and the remote control was
destroyed while the drone was in the air. Out of those three, only Newcomb’s
property was being investigated for cockfighting, and Newcomb testified to
observing the drone after he smashed the remote control. This evidence viewed
together with the evidence that the firepit was on Newcomb’s property and his
wife was adding paper and lit it, demonstrates Newcomb encouraged and
assisted in permanently depriving Hindi from retrieving the drone and the remote
control.
Lawrence App. No. 21CA18 18
{¶39} Based on the evidence presented in the case, we do not find the
trial court acted irrationally, arbitrarily, or unreasonably in instructing the jury on
complicity. We therefore, overrule Newcomb’s second assignment of error.
ASSIGNMENT OF ERROR III
{¶40} In the third assignment of error, Newcomb argues the trial court
erred in denying his Crim.R. 29 motion for acquittal as to Count Three, theft,
because the state failed to present evidence that Newcomb obtained or exerted
control over the drone. Newcomb maintains that the state presented
contradictory testimony and theories that the theft occurred because Newcomb
smashed the remote control, but that also Newcomb grounded the drone and
destroyed it. Further, he argues that even if we find that the state established
Newcomb exerted control over the remote control, the value of which is less than
$1,000, he did not obtain or exert control over the actual drone. Thus, the state
failed to demonstrate an element of the offense to warrant a conviction of theft as
a fifth-degree felony. Newcomb again attacks Clark’s testimony as being
inconsistent and not credible since he did not witness who placed the drone and
cameras in the firepit. Finally, Newcomb asserts there was no evidence he aided
or abetted anyone in procuring and placing the drone in the firepit. (Brief page
15).
{¶41} The state disagrees and reiterates its arguments presented in the
first assignment of error. According to the state, there was testimony from Hindi
that Newcomb took the remote control and smashed it, then assaulted him and
chased him away from the property in which he could not retrieve the drone. The
Lawrence App. No. 21CA18 19
state further maintains that there was also evidence that Newcomb burnt the
drone, and there was evidence that the drone’s value was $2,500.
Law and Analysis
{¶42} “A motion for acquittal may be granted only when, construing the
evidence most strongly in favor of the state, the evidence is insufficient to sustain
a conviction.” State v. Grate, 164 Ohio St.3d 9,
2020-Ohio-5584,
172 N.E.3d 8, ¶
146. When reviewing whether the evidence is sufficient to sustain a conviction,
the focus is on the adequacy of the evidence. See State v. Sims, 4th Dist.
Athens No. 21CA15,
2023-Ohio-1179, ¶ 115. Thus, “[t]he standard of review is
whether, after viewing the probative evidence and inferences reasonably drawn
therefrom in the light most favorable to the prosecution, any rational trier of fact
could have found all the essential elements of the offense beyond a reasonable
doubt.”
Id.
{¶43} Under this assignment of error, Newcomb again solely challenges
his theft conviction. A finding that a conviction is supported by the manifest
weight of the evidence is “also dispositive of the issue of sufficiency.” State v.
Sims, 4th Dist. Athens No. 21CA15, 2023-Ohio-1179, ¶ 120, citing State v.
Waller, 4th Dist. Adams No. 17CA1044,
2018-Ohio-2014, ¶ 30. Accordingly, as
we previously have sustained Newcomb’s theft conviction under the first
assignment of error, we similarly sustain his conviction here and overrule his third
assignment of error.
ASSIGNMENT OF ERROR IV
Lawrence App. No. 21CA18 20
{¶44} Under the fourth assignment of error, Newcomb presents several
arguments challenging the admission of Detective Sergeant Bollinger’s testimony
identifying the Chevy tan truck as belonging to Newcomb’s wife through its VIN
number. The detective obtained the information through a national data base.
Newcomb argues the state failed to present a certified copy of either the national
database or the state of Ohio database to certify the detective’s VIN number
record search. Newcomb claims the hearsay evidence was admitted for the truth
of the matter asserted, in which it was presented to establish Newcomb was the
driver since the Chevy truck belonged to his wife. The state did not present any
exception to Evid.R. 802 that would have allowed the testimony to be admitted
for the truth of the matter asserted. The testimony was not presented due to
unavailability of a witness, Evid.R. 803 or as a public record, Evid.R. 804.
{¶45} According to Newcomb, the admission of this hearsay evidence was
not harmless evidence because the only other evidence linking Newcomb to the
truck was the not credible testimony of co-defendant Clark. The video and photo
evidence established Clark was in the truck and his testimony identifying
Newcomb as the driver only came about after he was offered a deal by the state.
Therefore, “there exists reasonable possibility that the identification of the vehicle
belonging to Defendant, through Det. Bollinger’s hearsay testimony, contributed
to his conviction for Count II-Felonious Assault.” Newcomb concludes that the
testimony was improperly admitted in violation of the rules of evidence and
constitutionally in violation of the Confrontation Clause.
Lawrence App. No. 21CA18 21
{¶46} The state disagrees and asserts that Clark testified as to the
ownership of the truck during trial and that it was Newcomb who was driving the
truck at the time of the assault. This testimony was prior to Detective Sergeant
Bollinger’s testimony, so the detective’s testimony was cumulative. Moreover, in
response to an objection, the detective replied that the VIN number was run
because the Chevy truck was missing a license plate, so it was conducted as
part of the investigation. The detective was also instructed not to repeat what he
was told by others, and to only limit his testimony to his personal knowledge.
The state therefore maintains that the detective’s testimony was properly
admitted and if not, it was harmless error.
Law and Analysis
{¶47} We begin by outlining the line of questioning and answers presented
at trial in the matter at bar. Detective Sergeant Bollinger was the state’s final
witness. During his testimony, the following occurred:
A. With that Deputy Mullins had actually ran the VIN number because
it did not have a license plate.
Mr. Tyack: Objection.
The Court: Basis?
Mr. Tyack: Hearsay. (Boldface added)
The Court: Was that part of the investigation that you
conducted or independently verified?
The witness: Absolutely.
The Court: Okay. Then I’m going to allow you to respond to
the question - - to the State of your personal knowledge based on
your investigation, but not repeating what anybody else said or for
the use of proving the truth of the matter asserted in that statement.
The witness: Yes, sir.
The Court: Can you reask (sic.) based on that admonition from
the court?
Mr. Nord: Yes.
By Mr. Nord:
Lawrence App. No. 21CA18 22
Q. As part of your investigation with respect to this matter and the
incidents which we’ve been discussing the next day - - or the entire
yesterday and all day today, was there an investigation done with
respect to the tan truck that was - - you indicated was at the
residence of - - or not at the residence, but at the barn of the property
owner that leased to Mr. Clark?
A. Yes.
Q. What was done with respect to that?
A. The VIN number - -
Mr. Tyack: Objection. Hearsay. (Boldface added)
The Court: Reask (sic.).
By Mr. Nord:
Q. As part of your investigation with respect to this matter and the
incidents as alleged, did you obtain the VIN number of the vehicle?
A. I did.
Q. What else did you do with respect to your investigation concerning
the tan truck?
A. The VIN number was on the radio log of the sheriff’s office.
Q. Okay.
A. As being read from that property.
Q. Okay.
A. And then I verified that the VIN number belongs to Rebecca
Newcomb, with a driver’s license - - or with a license plate number
of HIL1286.
Q. What’s the - - if anything, what’s the significance of the license
plate number?
A. Because in the original report with Sergeant Easterling, it had
quoted that the license plate number was HIL286. So it was one
number off.
Q. One number off?
A. Yes.
Q. Okay. You’ve got access to or State’s Exhibit No. 6 up there I
believe.
A. Yes, sir.
Q. Have you seen that photograph before?
A. I have. This is what was provided to me.
Q. So that was provided to you as part of your investigation?
A. Yes, it was.
Q. And as part of your investigation you obtained the VIN number?
A. Yes. This is the vehicle that had the VIN number that was
registered to Rebecca Newcomb, which is Mr. James Newcomb’s -
-
Mr. Tyack: Objection. Hearsay. (Boldface added)
The Court: Overruled. I think it’s been established that it’s
been conducted through his investigation to verify that information.
You may continue.
Lawrence App. No. 21CA18 23
The witness: Mr. James Newcomb’s wife.
By Mr. Nord:
Q. Oaky. What did you do to determine the VIN number, who the
vehicle belonged to?
A. Well, I mean, everything we do is, you know, through national
databases. The national crime database is where it was originally
ran. I also ran it through - - it’s a system called OHLEG, it’s done and
developed and everything held by the attorney general’s office here
in the state of Ohio.
Q. Okay. And through that investigation, is that how you learned who
the vehicle belonged to?
A. Absolutely.
{¶48} As the record demonstrates, Newcomb raises for the first time on
appeal an objection to the detective’s testimony based on the Confrontation
Clause, in which at trial he solely objected based on hearsay. “Generally, a
defendant who fails to raise a Confrontation Clause issue during the trial court
proceedings forfeits the right to present it for the first time on appeal.” State v.
Russell, 4th Dist. Ross No. 21CA3750, 2022-Ohio-1746, ¶ 90. Thus, objecting
on one ground does not preserve additional objections not mentioned at trial.
Id.
Therefore, we will solely address Newcomb’s hearsay claim.
{¶49} Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted in the statement.” Evid.R. 801(C). A “statement” is defined as
“(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.” Evid.R. 801(A). And a “declarant” is “a
person who makes a statement.” Evid.R. 801(B).
Hearsay is not admissible except as otherwise provided by
the Constitution of the United States, by the Constitution of the State
of Ohio, by statute enacted by the General Assembly not in conflict
with a rule of the Supreme Court of Ohio, by these rules, or by other
rules prescribed by the Supreme Court of Ohio.
Lawrence App. No. 21CA18 24
Evid.R. 802.
{¶50} Generally, “[t]he admission or exclusion of relevant evidence rests
within the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173,
51 N.E.2d 343 (1987), paragraph two of the syllabus. Accordingly, “we review a
trial court’s hearsay rulings for an abuse of discretion.” State v. McKelton,
148
Ohio St.3d 261,
2016-Ohio-5735,
70 N.E.3d 508, ¶ 97. An abuse of discretion “is
more than a mere error of law or judgment; it implies that a trial court’s decision
was unreasonable, arbitrary or unconscionable.” State v. Martin,
151 Ohio St.3d
470,
2017-Ohio-7556,
90 N.E.3d 857, ¶ 27, citing Blakemore v. Blakemore,
5
Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
Testimony to explain police conduct is admissible as
nonhearsay if it satisfies three criteria: (1) the conduct to be
explained is relevant, equivocal, and contemporaneous with the
statements, (2) the probative value of the statements is not
substantially outweighed by the danger of unfair prejudice, and (3)
the statements do not connect the accused with the crime charged.
State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493,
108 N.E.3d 1028, ¶ 172,
citing State v. Ricks,
136 Ohio St.3d 356,
2013-Ohio-3712,
995 N.E.2d 1181, ¶
27.
{¶51} On January 3, 2021, Fahnestock was struck with a tan truck driven
by Newcomb. The same tan truck was seen earlier by Hindi when Hindi was
assaulted a second time by Newcomb. During this assault, Hindi was able to
obtain the license plate number of the truck, which he recorded as HIL286, and
on that same day, January 3rd, Hindi provided Sergeant Todd Easterling with the
license plate number. Then on January 6th, Clark’s landlord, who also resides
on the same property as Clark, contacted the Sheriff’s department and reported a
Lawrence App. No. 21CA18 25
Chevy tan truck was randomly parked on his property. Deputy Mullins went to
the property and took a photo of the truck, which was admitted as State’s Exhibit
6. The Chevy tan truck did not have a license plate, and so the VIN number of
the truck was recorded, and Deputy Mullins ran the VIN number in the national
database.
{¶52} Detective Sergeant Bollinger testified that he is responsible for
reviewing all deputies’ reports relating to a case to determine whether additional
investigation is required. He, thus, reviewed the January 3rd and 6th reports,
and then on January 8th, Detective Sergeant Bolling himself went to Clark’s
property to check on the Chevy tan truck, but the truck was no longer there.
Detective Sergeant Bollinger then obtained the VIN number through the radio log
at the Sheriff’s office from January 6th and verified the VIN number as belonging
to a Chevy truck registered to Newcomb’s wife that had a license plate number of
HIL1286, which is one number off from the license plate number provided earlier
by Hindi.
{¶53} As outlined above, Detective Sergeant Bollinger took several steps
to identify the Chevy tan truck’s owner. The first of which was to obtain the VIN
number of the Chevy truck, which he got from the sheriff’s radio log. The log was
not admitted as an exhibit at trial. The VIN number in the log was not written
down by Detective Sergeant Bollinger, so he was not the declarant. Detective
Sergeant Bollinger then ran the VIN number through the Ohio Law Enforcement
Gateway (“OLEG”) database system, which identified the owner of the Chevy
truck as belonging to Rebecca Newcomb, and further, that the truck’s license
Lawrence App. No. 21CA18 26
plate number was HIL1286. This information was admitted for the truth of the
matter asserted to connect Newcomb to the felonious assault crime in Count
Two. The state did not submit any evidence regarding the OLEG database or
argue that the database was reliable and can be accessed as a public record.
We therefore hold that the testimony was hearsay and did not meet any
exception to explain the detective’s police conduct.
{¶54} We, nonetheless, overrule Newcomb’s assignment of error because
even though the admission of Detective Sergeant Bollinger’s identification of the
Chevy tan truck as belonging to Newcomb’s wife was erroneous, the admission
was harmless as it was cumulative to other evidence admitted at trial. See State
v. Williams, 38 Ohio St.3d 346, 350,
528 N.E.2d 910 (1988) (admission of
hearsay that was cumulative to other admitted evidence constitutes harmless
error.) Harmless error is “[a]ny error, defect, irregularity, or variance which does
not affect substantial rights shall be disregarded.” Crim.R. 52(A).
{¶55} Hindi testified that Newcomb was in a tan truck when he exited and
assaulted Hindi a second time. A tan truck rammed Fahnestock’s SUV several
times before Fahnestock lost control of the SUV and ended up sideways in a
ditch. The tan truck stopped after striking Fahnestock and two passengers
exited. One of the passengers was Clark, who also confirmed that Newcomb
was the driver of the tan truck, later identified as a Chevy truck.
{¶56} Clark testified that approximately 30 minutes after Hindi left
Newcomb’s property, Newcomb got into the driver seat of the Chevy tan truck
with Clark and another male getting into the front passenger seats. Clark was in
Lawrence App. No. 21CA18 27
the truck when Newcomb rammed the back of Fahnestock’s SUV several times.
Clark said after Fahnestock flipped into the ditch, he told Newcomb to let him out.
Newcomb then stopped the truck and both Clark and the other passenger exited.
The next time Clark saw the truck was that evening when his landlord, who lives
on the same property as Clark, asked Clark whose Chevy truck was parked in
front of the barn. Clark recognized the truck as that belonging to Newcomb and
the one Clark was a passenger in just hours earlier. It was the same truck that
rammed into Fahnestock’s SUV and the same truck as depicted in the photo in
State’s Exhibit 6. Clark stated that this Chevy truck is registered in Rebecca
Newcomb’s name, Newcomb’s wife, but that James Newcomb is the one who
drives it regularly.
{¶57} Wherefore, there is cumulative evidence demonstrating Newcomb
was the driver of the Chevy tan truck when he struck Fahnestock’s SUV,
irrespective of Detective Sergeant Bollinger’s testimony regarding the trucks VIN
number. Accordingly, we overrule Newcomb’s fourth assignment of error.
ASSIGNMENT OF ERROR V
{¶58} Before sentencing, Newcomb filed a motion arguing the Reagan
Tokes Law (“ACT”) was unconstitutional on its face. He presented four
arguments. First, Newcomb claimed the ACT violates the separation-of-powers
doctrine in which the executive branch, the Department of Rehabilitation and
Corrections (“DRC”), can extend his sentence beyond the minimum prison term
that was imposed by the judiciary branch. Second, Newcomb asserted the ACT
Lawrence App. No. 21CA18 28
violates his right to a jury trial since his sentence can be increased beyond the
minimum sentence imposed at the disposition hearing.
{¶59} Third, Newcomb contended the ACT violates his right to due
process in which the presumption of release upon serving the minimum sentence
creates a protected liberty interest. That liberty interest is violated where the
hearing under the ACT is not conducted by the sentencing judge, the hearing has
no structure, and the ACT fails to notify a defendant of what conduct triggers an
increase in the prison sentence. Finally, Newcomb argued the ACT violates
double jeopardy claiming he is being sentenced twice for the same offense.
{¶60} At sentencing, Newcomb informed the trial court of his motion but
then stated that the trial court does not have jurisdiction to decide the issue due
to precedent from this court holding the issue was not ripe until he served his
minimum prison term. Newcomb now raises the same four constitutional right
violations under this assignment of error. He further states that since his
sentence, the Supreme Court has determined that the issue is ripe for review and
requests that we find the ACT unconstitutional.
{¶61} The state agrees that the issue is ripe for review but disagrees that
the ACT is unconstitutional. The state asserts that the DRC does not extend a
defendant’s sentence beyond that imposed by the trial court. A defendant’s
maximum sentence is the sentence imposed by the trial court and the DRC
cannot extend a defendant’s prison term beyond the maximum sentence.
Accordingly, the state maintains that the ACT is constitutional.
Law and Analysis
Lawrence App. No. 21CA18 29
{¶62} The trial court did not rule on Newcomb’s motion that the ACT was
unconstitutional following our precedent at the time in which we held that the
issue was not ripe for review until a defendant serves his minimum prison term.
See State v. Walker, 4th Dist. Washington No. 20CA24, 2021-Ohio-2693, ¶ 20
(“the constitutionality of Reagan-Tokes sentencing is not yet ripe because on
direct appeal an appellant has yet to serve his or her minimum prison term, which
is the first instance in which the department of corrections could take any action
that affects the length of appellant’s incarceration.”) Since Newcomb’s
sentencing, however, the Supreme Court of Ohio in State v. Maddox held that “a
criminal defendant’s challenge to the constitutionality of R.C. 2967.271 is ripe for
review on the defendant’s direct appeal of his or her conviction and prison
sentence.”
168 Ohio St. 3d 292,
2022-Ohio-764,
198 N.E.3d 797, ¶ 22.
{¶63} Generally, we remand issues to the trial court that were not
addressed by the court, but in this case, we do not. This is because we conduct
a de novo review of constitutional challenges to a statute. See State v. Rister,
4th Dist. Lawrence No. 21CA17, 2023-Ohio-1284, ¶ 14.
{¶64} In State v. Hacker the Supreme Court addressed three similar facial
constitutional challenges to the ACT: separation-of-powers doctrine, right to a
jury trial, and procedural due process. __ Ohio St.3d __ , 2023-Ohio-2535, __
N.E.3d __ , ¶ 1. The Supreme Court outlined the application of the ACT which
provides for an indefinite sentence for first-degree and second-degree felony
offenders in which life imprisonment is not an available sentence. Id. at ¶ 7. The
indefinite sentence has a minimum prison term and a maximum prison term that
Lawrence App. No. 21CA18 30
are imposed at disposition by the trial court. Id. The ACT presumes that a
defendant will be released after completing the minimum prison term, but that
presumption can be rebutted by the DRC. Id. at ¶ 9.
{¶65} In rejecting the claim that the ACT violates the separation-of-powers
doctrine, the Supreme Court held:
Once the trial court imposes minimum and maximum prison
terms under R.C. 2929.14(A)(1)(a) or (2)(a), the sentence for the
offender has been set. “[D]efendants who have been sentenced
under the Reagan Tokes Law have received the entirety of their
sentences and the sentences have been journalized.” State v.
Maddox, 168 Ohio St.3d 292,
2022-Ohio-764,
198 N.E.3d 797, ¶ 16.
If the DRC determines that the presumption of release has been
rebutted, it may maintain the offender’s incarceration—but only
within the bounds set by the trial court. It does not impede the court’s
exercise of its judicial powers.
… Should the DRC determine that the presumption of
release is rebutted as the result of an offender’s behavior during his
incarceration, the additional time that the offender may have to serve
is limited by the sentence that has already been imposed by the trial
court. R.C. 2967.271(D).
…
We conclude that allowing the DRC to rebut the presumption
of release for disciplinary reasons does not exceed the power given
to the executive branch and does not interfere with the trial court’s
discretion when sentencing an offender. Therefore, we hold that the
Reagan Tokes Law does not violate the separation-of-powers
doctrine.
Id. at ¶ 16, 23, 25.
{¶66} The Supreme Court also rejected the argument that the ACT
violates a defendant’s right to a jury trial holding:
But here, the “prescribed range of penalties” is determined
upon the return of a guilty verdict—or, as in the cases before us,
when the offender pleads guilty to the charged offenses. Once an
offender is found guilty of an eligible offense, the trial court has the
discretion to sentence him to any minimum sentence within the
appropriate range. R.C. 2929.14(A)(1)(a) and (2)(a). And the
maximum sentence is calculated based on that minimum
Lawrence App. No. 21CA18 31
sentence. Id.; R.C. 2929.144(B)(1). Because no determination by
the DRC regarding Simmons’s behavior while in prison will change
the range of penalties prescribed by the legislature and imposed by
the trial court, the right to a jury trial is not implicated.
Hacker, __ Ohio St.3d __ , 2023-Ohio-2535, __ N.E.3d __ , at ¶ 28.
{¶67} With regard to the procedural due process challenge, the Supreme
Court first held that the presumption of release upon serving the minimum prison
term “creates an interest that entitles offenders to due-process protection.” Id. at
¶ 36. Accordingly, due process requires a hearing before an offender is deprived
of that right. Id. at ¶ 37. And the “Reagan Tokes Law provides the offender with
a hearing before his incarceration is maintained. So, it does not, by its terms,
deprive an offender of ‘notice and an opportunity to be heard … at a meaningful
time and in a meaningful manner,’ Hochhausler, 76 Ohio St.3d 455 at 459,
668
N.E.2d 457.” Id. at ¶ 39.
{¶68} Pursuant to the Supreme Court’s decision in Hacker, which we are
bound to follow, we overrule Newcomb’s arguments that the ACT violates the
separation-of-powers doctrine, his right to a jury trial, and his right to due
process.
{¶69} Newcomb additionally argues that the Act violates his right against
double jeopardy claiming he is being punished twice for the same offense. We
overrule this argument as well. The Double Jeopardy Clause protects against
three abuses: (1) “a second prosecution for the same offense after acquittal,” (2)
“a second prosecution for the same offense after conviction,” and (3) “multiple
punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711,
Lawrence App. No. 21CA18 32
717,
89 S.Ct. 2072,
23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama
v. Smith,
490 U.S. 794,
109 S.Ct. 2201,
104 L.Ed.2d 865 (1989).
{¶70} We find persuasive a decision by the Third District Court of Appeals
that concluded the first two double jeopardy protections are not implicated under
the ACT. In State v. Harrison, the Third District held:
application of the Reagan Tokes law does not constitute double
jeopardy under the law. Double jeopardy prohibits one from being
retried for the same offense. State v. Mutter, 150 Ohio St.3d 429,
2017-Ohio-2928,
82 N.E.3d 1141. The decision whether an inmate
serves more than the minimum sentence is not a retrial of the original
offense, but is based upon subsequent behavior. The sentence may
not be extended more than the maximum sentence originally
imposed by the trial court. Thus the double jeopardy clause of the
constitution is not implicated in this matter.
3d Dist. Logan No. 8-22-05, 2022-Ohio-2537, ¶ 25, appeal allowed,
168 Ohio St.
3d 1470,
2022-Ohio-4380,
199 N.E.3d 543, ¶ 25, and appeal dismissed as
improvidently allowed sub nom. In re Cases Held for State v. Hacker & State,
2023-Ohio-3863, ¶ 25.
{¶71} The third protection under the double jeopardy clause is the
protection against multiple punishments. Contrary to Newcomb’s argument, the
ACT’s indefinite sentence scheme does not violate this protection. “The Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution
affords protections against the imposition of multiple criminal punishments for the
same offense.” State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459,
38
N.E.3d 860, ¶ 16, citing Hudson v. United States,
522 U.S. 93, 99,
118 S.Ct. 488,
139 L.Ed.2d 450 (1997). The prohibition against multiple punishments is codified
in R.C. 2941.25, which relates to allied offenses.
{¶72} In the case at bar, Newcomb does not claim that his felonious
assault conviction involving Fahnestock as the victim is an allied offense to his
Lawrence App. No. 21CA18 33
assault or theft convictions. Newcomb received one indefinite prison sentence
for his felonious assault conviction. The rebuttal presumption of serving more
than the minimum prison term will be based on new behaviors that Newcomb
commits while in prison, and not based on his conduct in committing felonious
assault. See R.C. 2967.271(C). Moreover, once Newcomb serves the maximum
prison term of six years that was imposed by the trial court at sentencing, he
must be released from prison.
{¶73} Accordingly, we find that the ACT does not violate the separation-of-
powers doctrine, double jeopardy, Newcomb’s right to a jury trial, and his right to
due process. We therefore overrule his fifth assignment of error.
CONCLUSION
{¶74} Having overruled Newcomb’s five assignments of error, we affirm
the trial court’s judgment entry of conviction.
JUDGMENT AFFIRMED.
Lawrence App. No. 21CA18 34
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, 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.
