State v. Chapman , 2023 Ohio 2108 ( 2023 )

[Cite as State v. Chapman, 2023-Ohio-2108.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2022-0067
:
CHAD CHAPMAN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2021-0596
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 23, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RON WELCH CHRIS BRIGDON
MUSKINGUM CO. PROSECUTOR 8138 Somerset Rd.
JOHN CONNOR DEVER Thornville, OH 43076
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702
Muskingum County, Case No. CT2022-0067 2
Delaney, J.
{¶1} Appellant Chad Chapman appeals from the August 29, 2022 Entry of the
Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant’s jury trial.
{¶3} Appellant is the former brother-in-law of John Doe, the victim in this case.
The two have known each other for several years. On September 23, 2021, appellant’s
ex-wife was in jail and appellant was staying at her house on Spruce Street in Zanesville,
taking care of her dogs.
Neighbor sees man beaten and calls 911
{¶4} Sometime after 11:00 p.m., a Neighbor near the house in Spruce Street was
awakened by yelling outside. Neighbor looked out her window and saw appellant, whom
she recognized, repeatedly hitting a man sitting on the sidewalk. The man “just sat there”
and did not hit appellant. Neighbor watched as the man got up, walked to a vehicle, and
attempted to get in. The man fell out of the car, flat into the street, striking the asphalt so
hard Neighbor could hear it. She didn’t know if he was still alive because he laid
completely still. Neighbor called 911 twice and police arrived within 5 minutes of the
second call. When asked on cross-examination about the “fight” she observed, Neighbor
maintained this was not a “fight;” appellant repeatedly struck the man but he didn’t fight
back.
{¶5} Ptl. Bragg of the Zanesville Police Department responded to Neighbor’s 911
call and found a white male laying in the street with blood on his face and shirt. The man
seemed intoxicated and told Bragg he fell down. Bragg suspected there was more to the
Muskingum County, Case No. CT2022-0067 3
story than a fall because the man appeared to be seriously injured. Bragg asked whether
the man was in a fight and he said he didn’t remember. An ambulance was called and
the man was transported to the hospital.
{¶6} As the ambulance left, appellant came out of his house and spoke to Bragg.
He said John Doe was at his house and became highly intoxicated; appellant told him not
to leave, but Doe insisted and he fell. Bragg noted appellant also appeared drunk. Bragg
was skeptical of appellant’s account and photographed the residence. He spoke to
Neighbor by telephone because she did not want to be identified and she told him what
she saw. Bragg went to the hospital to check John Doe’s condition and found him
unconscious. A doctor said he had a severe brain bleed.
{¶7} At trial the parties stipulated John Doe was diagnosed with a brain bleed
and that his blood alcohol content at the hospital was .206.
Appellant speaks to Doe’s Mother and friend
{¶8} Chris Zinn is a friend of John Doe’s Mother. Mother loaned Doe her car that
day to run errands. When he didn’t come home at night, Mother was worried. When she
woke up the next morning and the car was still missing, Mother asked Zinn to look for
Doe. Zinn called Doe’s phone twice and the second time, appellant answered. Appellant
told Zinn Doe’s car was at his house, and Zinn realized appellant had Doe’s cell phone
for some reason.
{¶9} Zinn and Mother went to appellant’s house, together, to look for Doe and to
retrieve the car keys and cell phone. Appellant let them in and said he and Doe fought
over a dog and Doe was presently in the hospital. Zinn asked why and appellant said “I
had to beat him down.” Appellant further stated he and Doe got into a fight; he dragged
Muskingum County, Case No. CT2022-0067 4
Doe out front and beat him “within an inch of his life;” Doe was unconscious when
appellant left him in the street; and Doe was likely in the hospital because an ambulance
came. Zinn and Mother collected Doe’s keys, wallet, and cell phone from appellant and
left for the hospital, where they found Doe beaten black and blue.
John Doe remembers little
{¶10} John Doe testified that around 11:00 p.m. on September 23, 2021, appellant
called and asked him to bring over some bread. Doe complied and he and appellant
started drinking beer. Doe remembered appellant shoving him inside the house, but
doesn’t remember anything else other than appellant beating him. Doe denied breaking
appellant’s phone, kicking a dog, and kicking down the door of the house. He denied
attacking appellant in any way and only recalled that he was beaten and woke up in the
hospital. When shown photos of two doors of the residence, both broken in, Doe said the
doors were broken before his sister went to jail and appellant had kicked in one of the
doors previously. Doe acknowledged he has a conviction for falsification.
Appellant’s testimony: self-defense
{¶11} Appellant was the sole defense witness. He denied asking John Doe to
bring bread to the residence and said Doe just showed up and started drinking appellant’s
beer. The two listened to music from appellant’s phone and shared a joint. Appellant
said Doe asked him for money and when appellant refused, Doe “flipped.” Appellant said
Doe tried to break his cell phone in half, kicked a dog, and threatened him. Appellant
testified Doe drug him outside the house and was “swinging on him.” Appellant said he
hit Doe a few times and then he “managed to shut the door and lock it.” T. 224. Appellant
further stated Doe landed several blows on him outside and he swung back only to defend
Muskingum County, Case No. CT2022-0067 5
himself, two or three times, “[l]ong enough for [him] to get away from [Doe].” T. 224. At
some point, Doe struck appellant in the ribs with a rock.
{¶12} According to appellant, Doe remained outside and he put his keys, wallet,
and cell phone on a table, hoping Doe would leave. Instead, Doe forced his way back in
by kicking in the back door. When shown a photo of the broken door jamb, appellant said
Doe was responsible for the damage that night.
{¶13} After Doe kicked the door in and re-entered the residence, appellant
testified, the two fought and Doe verbally threatened repeatedly to “kick his ass.”
Appellant stated he was only trying to get away from Doe, and Doe fell a few times out
back and a few times out front of the house. Appellant was able to get back in the house
after Doe fell in the front. When asked whether he called 911, appellant testified he
couldn’t because Doe broke his phone.
{¶14} Upon cross examination, when asked why he told Bragg Doe was
intoxicated and he told him not to leave, appellant said “Must have been mistaken.” T.
234. When asked why he changed his story when confronted with Neighbor’s statement
to police, appellant insisted he was simply defending himself from Doe. Further, appellant
testified Zinn lied about appellant’s admissions that he beat John Doe.
Indictment, trial, conviction and sentence
{¶15} Appellant was charged with one count of felonious assault pursuant to R.C.
2903.11(A)(1), a felony of the second degree. Appellant entered a plea of not guilty and
the matter proceeded to trial by jury. Appellant moved for judgments of acquittal at the
close of appellee’s evidence and at the close of all of the evidence; the motions were
Muskingum County, Case No. CT2022-0067 6
overruled. Appellant was found guilty as charged and the trial court sentenced him to an
indefinite prison term of 7 to 10.5 years.
{¶16} Appellant now appeals from the sentencing entry of the trial court.
{¶17} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶18} “THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH IN O.R.C. 2929.11 AND FACTORS TO BE
CONSIDERED IN O.R.C. 2929.12.”
ANALYSIS
{¶19} In his sole assignment of error, appellant argues he received a
disproportionate sentence in violation of R.C. 2929.11 and R.C. 2929.12.1 We disagree.
{¶20} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. Subsection
(G)(2) sets forth this court's standard of review:
(2) The court hearing an appeal under division (A), (B), or (C)
of this section shall review the record, including the findings
1
In one portion of the brief, appellant’s sole assignment of error is framed as, “The
proportionality of the sentence was inconsistent with the principles set forth in ORC
and factors to be considered in ORC 2929.12.” In the statement of the assignment of
error, the error is framed as follows: “Should this court reverse the trial court’s decision
to impose a seven year indefinite sentence on Count 1, felonious, because the
sentence was in contravention of the sentencing statutes R.C. 2929.11, R.C.
and a violation of the Appellant’s United States Constitution Sixth Amendment Right.”
(Sic).
Muskingum County, Case No. CT2022-0067 7
underlying the sentence or modification given by the sentencing
court.
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court for
resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶21} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶22} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
Muskingum County, Case No. CT2022-0067 8
within the permissible statutory range.’ ” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶23} There is no dispute that the trial court’s sentence is within the statutory
ranges for a felony of the second degree. R.C. 2929.14(A)(1)(2). Appellant argues his
sentence is unfairly disproportionate because he was originally offered community
control, he was “taxed” for trying the case, and John Doe’s testimony was not credible.
{¶24} He argues the proportionality of his sentence was inconsistent with the
principles set forth in R.C. 2929.11. R.C. 2929.11 governs the overriding purposes of
felony sentencing and states the following in pertinent part:
(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others, to punish the offender,
and to promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local
government resources. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the
public, or both.
Muskingum County, Case No. CT2022-0067 9
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate with
and not demeaning to the seriousness of the offender's conduct and
its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.
{¶25} R.C. 2929.12 governs factors to consider in felony sentencing and states
the following in pertinent part:
(A) Unless otherwise required by section 2929.13 or 2929.14
of the Revised Code, a court that imposes a sentence under this
chapter upon an offender for a felony has discretion to determine the
most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code. In
exercising that discretion, the court shall consider the factors set forth
in divisions (B) and (C) of this section relating to the seriousness of
the conduct, the factors provided in divisions (D) and (E) of this
section relating to the likelihood of the offender's recidivism, and the
factors set forth in division (F) of this section pertaining to the
offender's service in the armed forces of the United States and, in
addition, may consider any other factors that are relevant to
achieving those purposes and principles of sentencing.
{¶26} R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require
Muskingum County, Case No. CT2022-0067 10
the trial court to “use specific language or make specific findings on the record in order to
evince the requisite consideration of the applicable seriousness and recidivism factors.”
State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Therefore, although there
is a mandatory duty to “consider” the relevant statutory factors under R.C. 2929.11 and
2929.12, the sentencing court is not required to engage in any factual findings under said
statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17; State v.
Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. “The trial court has no
obligation to state reasons to support its findings, nor is it required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry.” State v. Webb, 5th Dist.
Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.
{¶27} As stated by the Supreme Court of Ohio, R.C. 2953.08(G)(2)(b) “does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” State
v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. “Nothing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at 42.
{¶28} The Supreme Court of Ohio recently clarified the Jones opinion as follows:
The narrow holding in Jones is that R.C. 2953.08(G)(2) does
not allow an appellate court to modify or vacate a sentence based on
its view that the sentence is not supported by the record under R.C.
2929.11 and 2929.12. See Jones at ¶¶ 31, 39. Nothing about that
Muskingum County, Case No. CT2022-0067 11
holding should be construed as prohibiting appellate review of a
sentence when the claim is that the sentence was imposed based on
impermissible considerations—i.e., considerations that fall outside
those that are contained in R.C. 2929.11 and 2929.12. Indeed, in
Jones, this court made clear that R.C. 2953.08(G)(2)(b) permits
appellate courts to reverse or modify sentencing decisions that are “
‘otherwise contrary to law.’ ” Jones at ¶ 32, quoting R.C.
2953.08(G)(2)(b). This court also recognized that “otherwise contrary
to law” means “ ‘in violation of statute or legal regulations at a given
time.’ ” Id. at ¶ 34, quoting Black's Law Dictionary 328 (6th Ed.1990).
Accordingly, when a trial court imposes a sentence based on factors
or considerations that are extraneous to those that are permitted by
R.C. 2929.11 and 2929.12, that sentence is contrary to law. Claims
that raise these types of issues are therefore reviewable.
State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198
N.E.3d 68, ¶ 22.
{¶29} Appellant argues appellee originally offered a term of community control
and his prior felony conviction was more than 20 years old; therefore, appellant argues,
appellee must have agreed that he was not a present threat to the community. Appellant
further implies that the resulting sentence is essentially a “jury tax” because he took the
case to trial.
{¶30} The record demonstrates the trial court received and reviewed the
presentence investigation report, and heard statements from the prosecutor, defense
Muskingum County, Case No. CT2022-0067 12
counsel, and appellant. The trial court reviewed appellant's criminal history. The trial court
made the following statements:
* * * *.
As you are well aware, the Court was here and heard the trial.
You were convicted at jury trial of the one count in this case, which
is felonious assault, a felony of the second degree.
Upon review of this [PSI], the Court would indicate that back
in ’99 you had a Class D felony over in Indiana, which they placed
you on 18 months in prison, one-year probation, 12 months of—or
suspended on the prison sentence. You were sent back to Ohio
where you were on community—yeah, community control at the time
of committing that for a vandalism charge and unauthorized use of a
motor vehicle. When you got back here, your probation—or
community control was revoked. You were sent to prison—back to
prison from here.
And your misdemeanor record is full of violation of temporary
protection order, violation of protection order, assault, domestic
violence that was dismissed, carrying a concealed weapon, served
time for fighting, possession, possession, possession, public intox,
all the way through.
And if I remember correctly, you’ve had 12 suspensions of
your driving record, most of those involving, I believe, under physical
control of influence, or something along those lines. (Sic).
Muskingum County, Case No. CT2022-0067 13
So all of a sudden you need help. It should have happened
about 20 years ago, or 15 years ago, or 10 years ago, or 16 years
ago. It didn’t. So here we are again.
The victim in this case suffered damage, and that damage,
besides the brain bleed and concussion and marks and scrapes, all
witnessed by a neighbor. When the officer arrived, he said that did
not happen from falling out of the vehicle. But the story from your
end kept changing. I think that was part of what the jury probably
considered, myself.
Therefore, in regards to the one count, the Court is going to
impose a seven-year sentence, with 22 days of credit applied
towards that sentence.
* * * *.
T. 7-8.
{¶31} In its sentencing entry, the trial court indicated it considered “the principles
and purposes of sentencing under Ohio Revised Code R.C. 2929.11 and its balance of
seriousness and recidivism factors under Ohio Revised Code R.C. 2929.12.” The trial
court sentenced appellant to a term within the statutory range and appellant has not
demonstrated that the trial court imposed the sentence “based on impermissible
considerations—i.e., considerations that fall outside those that are contained in R.C.
2929.11 and 2929.12.” State v. Cottrell, 5th Dist. Muskingum No. CT2022-0061, 2023-
Ohio-1391, ¶ 21, citing Bryant, supra.Muskingum County, Case No. CT2022-0067 14
{¶32} Appellant's sentence is neither excessive nor shocking. See, State v.
Cottrell, 5th Dist. Muskingum No. CT2022-0061, 2023-Ohio-1391. Further, a defendant
is guaranteed the right to a jury trial by the Sixth and Fourteenth Amendments to the
United States Constitution. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d
491 (1968). Implicit in the right to a jury trial is the proposition that a court cannot penalize
a defendant if he exercises that right. See, State v. Hanna, 5th Dist. Knox No.
01CA000019, 2002-Ohio-2512. Appellant implies the trial court’s sentence is a “jury tax”
because he took the case to trial after the offer of community control. The trial court's
comments supra do not indicate a desire to punish appellant for exercising his right to a
jury trial. Hanna, supra. Upon our review of the record, we find no support for appellant's
assertion that the sentence was imposed as a punishment for taking the matter to trial.
{¶33} We conclude the trial court did not commit error when it sentenced
appellant. Upon review, we find that the trial court's sentencing complies with applicable
rules and sentencing statutes. While appellant may disagree with the weight given to
these factors by the trial judge, his sentence was within the applicable statutory range
and therefore, we have no basis for concluding that it is contrary to law. State v. Elkins,
5th Dist. Knox No. 22CA000021, 2023-Ohio-1358, ¶ 22. R.C. 2953.08(G)(2)(b) does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12. State
v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39.
{¶34} The sole assignment of error is denied.
Muskingum County, Case No. CT2022-0067 15
CONCLUSION
{¶35} Appellant’s sole assignment of error is overruled and the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.