State v. Scott , 2022 Ohio 2768 ( 2022 )

[Cite as State v. Scott, 2022-Ohio-2768.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110744
v. :
JOHNATHON R. SCOTT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 11, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-650243-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry Sowul, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Johnathon R. Scott appeals his jury trial
convictions for multiple sexual offenses. We affirm.
I. Facts and Procedural History
On April 27, 2020, Scott was indicted on fourteen counts of sexual
offenses against minor Jane Doe over a six-year period. Each rape count alleged
that Scott purposefully compelled the victim to submit by force or threat of force:
Count 1: Rape, R.C. 2907.02(A)(1)(b), for fellatio on or about April 16,
2020, victim suffered serious physical harm, victim older
than 10 and younger than 13;
Count 2: Attempted rape, R.C. 2923.02/2907.02 (A)(1)(b), for digital
vaginal penetration on or about April 16, 2020;
Count 3: Rape, R.C. 2907.02(A)(1)(b), fellatio on or about August 23,
2014, to August 22, 2015, victim suffered serious physical
harm, victim was under the age of 10 at time of offense;
Count 4: Gross sexual imposition, R.C. 2907.05(A)(4), touched
vagina on or about August 23, 2014, to August 22, 2015;
Count 5: Rape, R.C.2907.02(A)(1)(b), fellatio on or about August 23,
2015, to August 22, 2016, victim was under the age of 10 at
time of offense;
Count 6: Gross sexual imposition, in violation of R.C. 2907.05 (A)(4),
touched vagina on or about August 23, 2015;
Count 7: Rape, in violation of R.C. 2907.02(A)(1)(b), fellatio on or
about August 23, 2016, to August 22, 2017, victim was under
the age of 10 at time of offense;
Count 8: Gross sexual imposition, R.C. 2907.05(A)(4), touched
vagina on or about August 23, 2016, to August 22, 2017;
Count 9: Rape, in violation of R.C.2907.02(A)(1)(b), fellatio on or
about August 23, 2017, to August 22, 2018, victim was under
the age of 10 at time of offense;
Count 10: Gross sexual imposition, in violation of R.C. 2907.05(A)(4),
touched vagina on or about August 23, 2017, to August 22,
2018;
Count 11: Rape, in violation of R.C. 2907.02(A)(1)(b), fellatio on or
about August 23, 2018, to March 21,2019, victim older than
10 and younger than 13;
Count 12: Gross sexual imposition, in violation of R.C. 2907.05(A)(4),
touched vagina on or about August 23, 2018, to March 21,
2019;
Count 13: Rape, in violation of R.C. 2907.02(A)(1)(b), fellatio on or
about August 23, 2019, to March 21, 2020, victim older than
10 and younger than 13; and
Count 14: Gross sexual imposition, R.C. 2907.05(A)(4), touched
vagina on or about August 23, 2019, to March 21, 2020.
Trial commenced on June 28, 2021. Over defense objections, the trial
court allowed the state to amend the indictment’s pursuant to Crim.R. 7(D):
Count 2: Attempted rape, R.C. 2923.02/2907.02 (A)(1)(b), for digital;
vaginal penetration on or about April 16, 2020, was amended
to delete serious physical harm;
Count 3: Rape, R.C. 2907.02(A)(1)(b), fellatio on or about August 23,
2014, to August 22, 2015, victim suffered serious physical
harm, victim was under the age of 10 at time of offense, was
amended to change the offense period to August 23, 2013, to
August 22, 2014, and digital penetration instead of fellatio;
Count 4: Gross sexual imposition, R.C. 2907.05(A)(4), touched vagina
on or about August 23, 2014, to August 22, 2015, was
amended to touched vagina or thigh; and
Count 9: Rape, in violation of R.C.2907.02(A)(1)(b), fellatio on or
about August 23, 2017, to August 22, 2018, victim was under
the age of 10 at time of offense, was amended to digital
penetration.
The state dismissed Counts 1, 6, 8, 12, and 14. (Tr. 556-564.)1 The
state rested. Scott moved for acquittal under Crim.R. 29 at the close of the state’s
1 The remaining counts were renumbered 1 through 9.
case for, “[r]remaining Counts 2, attempted rape and 3, and rape; Count 4, gross
sexual imposition; Count 5, rape; Count 7, rape; Count 9, rape; Count 10, gross
sexual imposition; Count 11, rape; Count 13, rape.” (Tr. 566.) The trial court granted
the motion on Counts 7, 11, and 13 for lack of specificity. The defense rested.
On July 8, 2021, the jury returned guilty verdicts as follows:
For the April 2020 encounter, renumbered Count 1 (originally
Count 2), attempted rape, R.C. 2923.02, 2907.02(A)(1)(b), a second-
degree felony, for digital vaginal penetration on or about April 16,
2020, and that Scott did purposely compel the victim, who was under
13 years of age, but ten years of age or older at the time of the offense,
to submit by threat of force;
For the August 23, 2014, to August 22, 2015 encounter for touching the
vagina or thigh, renumbered Count 3 (originally Count 4), gross sexual
imposition, R.C. 2907.05(A)(4), a third-degree felony, and the victim
was less than 13 years of age at the time of the offense;
For the August 23, 2015 to August 22, 2016 encounter, renumbered
Count 4 (originally Count 5) rape, R.C. 2907.02(A)(1)(b), a first-degree
felony, and that Scott did purposely compel the victim, who was under
ten years of age at the time of the offense by threat of force; and
For the August 23, 2017 to August 22, 2018 encounter, renumbered
Count 6 (originally Count 10), gross sexual imposition,
R.C. 2907.05(A)(4), a third-degree felony, and the victim was less than
13 years of age at the time of the offense.
Scott was found not guilty of Counts 2 and 5 (originally Counts 3 and 9), rape,
R.C. 2907.02(A)(1)(b).
The convictions did not merge because the offenses took place at
different times. On July 20, 2021, the trial court sentenced Scott to:
A prison sentence at the Lorain Correction Institution of life. Count 1
(F2): 8-12 years; Count 3 (F3): 5 years; Count 4 (F1): life with parole
eligibility in 25 years; Count 6 (F3): 5 years. The sentences in Counts 1,
3, and 6 are to run consecutive to each other, but concurrent to the
sentence in Count 4. The sentences in Counts 1 and 4 are mandatory
time. Defense counsel objects to the imposition of an indefinite
sentence in Count 1, pursuant to Reagan Tokes.
Journal entry No. 11795323, p. 1 (July 22, 2021). Scott was also informed of
mandatory postrelease control (“PRC”) and declared to be a Tier III sex offender for
Counts 1 and 4, and a Tier II sex offender for Counts 3 and 6.
Scott appeals.
II. Assignments of Error
Scott assigns two issues as error:
I. The trial court erred in entering a judgment of conviction that was
against the manifest weight of the evidence.
II. The trial court erred in imposing a maximum sentence on the count
of attempted rape in accordance with the Reagan Tokes Act.
III. Discussion
A. Manifest Weight
1. Standard of review
It is axiomatic that “‘A challenge to the manifest weight of the
evidence questions whether the state has met its burden of persuasion.’” In re D.C.,
8th Dist. Cuyahoga No. 102165, 2015-Ohio-4367, ¶ 13, quoting State v. Byrd, 8th
Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. “‘The weight-of-the-evidence
standard addresses the evidence’s effect of inducing belief.’” In re D.C. at ¶ 13,
quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 25, citing State v. Thompkins, 78 Ohio St.3d 386-387, 678 N.E.2d 54 (1997). In
contrast, a “sufficiency of the evidence” analysis “is a test of adequacy rather than
credibility or weight of the evidence., citing Thompkins at 386.”
Scott argues that the manifest weight standard is flawed and that it
“commingles the concepts of sufficiency and manifest weight” because a sufficiency
analysis “does not consider credibility but must view the state’s evidence in the most
favorable light — essentially assuming the state’s witnesses are credible.”
Appellant’s brief at p. 10. As a result, Scott poses, ““‘[i]n a manifest weight reversal,
“the appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s
resolution of the conflicting testimony.’”” (Emphasis added.) Id., quoting
Thompkins, supra at 387 (emphasis added.), quoting Tibbs v. Florida, 457 U.S. 31,
42, 102 S.Ct. 2211, 72 L.Ed.2 652 (1982). Therefore, Scott offers, “[a]n appellate
court will never disagree with the fact-finder’s resolution of the conflicting testimony
if it invariably defers to the fact-finder’s resolution of the conflicting testimony.”
Appellant’s brief at p. 10.
Scott urges the court to recognize that the “manifest weight concept
assumes that jurors and judges make mistakes, and that concept goes out the
window if in making the analysis the appellate [court] invariably defers to the
credibility determinations of jurors and judges.” Appellant’s brief at p. 11. However,
as Scott acknowledges, “the requirement that a [manifest weight] reversal be
reserved for cases where ‘the [fact finder] clearly lost its way and created a manifest
miscarriage of justice’ and ‘should be exercised only in the exceptional case in which
the evidence weighs heavily against the conviction’” is a more than adequate
safeguard to the general sanctity of the fact-finder’s verdict. Appellant’s brief at
p. 10-11, quoting Thompkins at 387.
This court’s analysis is governed by the quoted safeguard. We
therefore proceed accordingly.
2. Analysis
Scott’s manifest weight challenge is to the four convictions. The
elements are defined below.
R.C. 2907.02(A)(1)(b) that governs rape provided at the time:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender but
is living separate and apart from the offender, when any of the
following applies: * * *
(b) The other person is less than thirteen years of age, whether or
not the offender knows the age of the other person.
In addition,
“[s]exual conduct” means vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any instrument, apparatus, or other
object into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse.
R.C. 2907.01(A).
R.C. 2923.02(A) provides: “[n]o person, purposely or knowingly, and
when purpose or knowledge is sufficient culpability for the commission of an
offense, shall engage in conduct that, if successful, would constitute or result in the
offense.” Id.R.C. 2907.05(A)(4), gross sexual imposition, provides:
(A) No person shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender; or cause two or more other persons to
have sexual contact when any of the following applies: * * *
(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of
that person.
Id.Scott argues the state failed to prove beyond a reasonable doubt that
Scott committed the offenses. We disagree.
Jane Doe’s mother (“Mother”) testified that Doe is Mother’s only
child. Doe was 12 years of age at the time of trial, and was approximately four or five
years of age when Mother began dating Scott. Scott effectively resided with Mother
and Doe from 2014 to 2020.
Mother stated that, on August 16, 2020,2 Doe awakened Mother
around 4:00 a.m.:
Mother: When she woke me up, Mr. Scott was trying to keep her quiet.
And I asked her, I said, Baby, what’s wrong? I went over to
her and she said, Mommy, he has been touching me since I
was six years old and she broke down and cried.
State: When you say Mr. Scott was trying to keep her quiet, what do
you mean?
Mother: He was grabbing on her throat and pushing her against the
wall telling her to shut up. I grabbed him and I grabbed her.
I took her into her room and I asked her what’s going on, and
that’s when she told me.
2 Mother initially testified that the date of the confrontation was August 16, 2020,
but clarified during cross-examination that the incident occurred on April 16, 2020, and
not August.
(Tr. 334-335.)
Mother continued:
Mother: I asked [Doe] — I took [Doe] to her room by herself and I
asked her what was going on. That’s when she told me that
he was touching her and then I said we had to go, we had to
leave the home.
State: What do you do with that information at that point?
Mother: At that point I get my phone and my keys. I give my keys to
[Doe]. I tell her to go get into the car and lock the door and I
am coming.
State: Do you do anything in relation to Mr. Scott? Do you confront
him?
Mother: Yes, I confronted him and I said you were touching my baby?
State: What happened at that point?
Mother: And he told me no, she was lying, and he started crying.
(Tr. 335.)
Mother testified that Scott ran after her and Doe, but they were able
to make it to Mother’s car. Mother drove toward her sister’s home in Elyria, Ohio
and took Doe to the Cleveland Clinic in Lorain, Ohio. The clinic directed them to
The Nord Center where they remained for several hours and were joined by the
Cuyahoga Metropolitan Housing Authority (“CMHA”) police. Assisted by family
members, Mother and Doe picked up their belongings and moved. Mother did not
call police the moment she secured her phone from Scott because her focus was to
get Doe to safety.
Scott frequently cared for Doe while Mother was at work. Scott also
had a daughter close to Doe’s age and two sons who were a few years older than Doe.
The daughter frequently stayed at Mother’s house on weekends and the daughter
and Doe had a good relationship.
Denise Miller (“Miller”), a sexual assault nurse examiner (“SANE”)
with The Nord Center, examined Doe. Miller conducted a “[h]ead-to-toe
examination with a detailed genital exam.” (Tr. 376.) Swabs and photographs were
taken of the mouth, fingernails, vaginal and anal areas and Doe was examined for
cuts and bruises. Miller listed in her notes that Mother identified Scott as the
perpetrator. Doe informed Miller that she was vaginally and orally penetrated by
Scott’s fingers and penis. Doe said Scott used lotion for lubrication and put his hand
on her neck to hold her down. The physical examination did not reveal evidence of
the offense and indicated that “[e]verything is within normal limits.” (Tr. 397.)
Miller’s notes said there were no lacerations, bruising and the “hymen was within
normal limits.” (Tr. 400.)
Stephanie Moore (“Moore”), a sexual abuse intake social worker with
the Cuyahoga County Division of Children and Family Services (“CCDCFS”) testified
that the agency receives hotline referrals for medical and psychological services for
reported sexual assault victims. Moore responded to the hotline referral for Doe.
Moore explained that a case is deemed “substantiated” by agency
standards “when there is reason to believe that the incident took place due to access
to the perpetrator or different collateral or evidence that was brought in, and also
due to a child’s disclosure with detail.” (Tr. 446.) Moore concluded that Doe’s case
was substantiated. Moore did not request the SANE report but spoke with the
victim’s advocate and determined that no serious injury was reported and there was
no indication that Mother as caretaker posed a safety concern which was a primary
consideration. Moore referred the family for follow-up STD testing and mental-
health services.
Doe testified that her relationship with Scott changed when she was
five. Scott walked into her room and sat down beside her while they talked about
her field trip with her class. Scott touched her thigh and she told him to stop. The
trial court called for a recess because Doe testified that Scott returned to her room
shortly after she got into bed, removed her covers and underwear, and touched her
vagina that Doe referred to as her private area. Doe next felt “something trying to
force inside” her private area. Mother was at the store and Doe heard the door
unlock downstairs. Scott “rushed out of the room.” (Tr. 465.) Doe said she did not
tell Mother because Scott told her that “he was going to do something and he said if
I told my mom, he was going to beat me.” (Tr. 466.)
Doe stated that, “[t]he next time [Scott made her feel uncomfortable]
was when I was like around seven. It happened other times, but this one I’m going
to talk about is the one I remember.” (Tr. 467.) Doe said she was laying on a
mattress on the living room floor that was used by the family to watch television and
playing with her tablet. Scott put a “porn video” on the television, removed her
underwear and engaged in sexual contact. Afterward, Scott “tried to act like
everything was normal.” (Tr. 470.) Mother was at work. Doe did not tell Mother
for fear that Mother would not believe her.
The next encounter Doe described occurred when Doe was nine. Doe
returned from her grandmother’s home in Pennsylvania. Mother was not at home
when Doe arrived, and Scott was talking with Mother on the telephone. Scott
handed Doe the phone and Doe began to cry.
Doe: So I was crying and stuff and [Mother] was asking me why I was
crying and he was in the doorway and he just like, it was like he
didn’t want me to say anything. So I just told her I miss my
grandma and my cousins and she said, okay. I’m going to see
them soon.
State: How do you know that?
Doe: Because he made like faces and he was just like standing there.
And like he was like, don’t say anything, so I didn’t say anything.
(Tr. 474.)
After the telephone call, Scott instructed Doe to enter Mother’s
bedroom, remove her clothing while he removed his, and initiated sexual contact
with attempted penetration. Doe told him to stop but he continued. Afterward,
Scott told Doe to shower and “[t]ried to act like everything was normal again.”
(Tr. 475.)
The next encounter occurred in April 2020. Doe locked her bedroom
door, but Scott unlocked the door and entered the bedroom about 3:00 a.m. or 4:00
a.m. Scott told Doe to perform fellatio and exposed himself. Doe refused and told
Scott she was going to tell Mother and Scott responded, “we’ll see about that.”
(Tr. 477.) Doe entered the bathroom, locked the door and was crying but Scott was
able to unlock the door and told her to stop crying or her Mother would hear.
Doe continued,
Doe: So then he opened the door and he kind of like put his hand
around my neck and then he told me to stop crying. And then I
stopped crying and I was just thinking like I’m going to tell my
mom.
So I opened the door. He was standing in front of the doorway
and I told him, let me just see my mom and let me speak to her.
So he moved out of the way. He was walking towards the bed
and he was like on the right side of the bed. He was laying down.
And I was just like, I was shaking my mom.
State: Okay.
Doe: And then she woke up and she asked me like why was I crying?
* * * I told her that [Scott] had touched me. * * *
She looked at him and she started crying and she grabbed me
and we went to my room and he was just saying how — he was
just saying how I was lying and my mom, she wasn’t
understanding. So I told her and then she just grabbed her coat
and everything and then he was trying to stop us and he grabbed
my phone and my mom told him to give me back my phone and
he was just crying.
And then I was screaming, like, stop lying and tell the truth.
Don’t say I was lying. We just — we ran downstairs. He ran like
he was guarding the front door and he was just crying and just
kept on saying I was lying. I’m telling the truth. My mom and
me, we went out the back door. So we were running to the car
and I was already — it was snowing, so I ran to the car. I was in
the passenger’s seat. My mom, she was like, she unlocked the
door herself, but she was like — he was trying to stop her and he
was trying to open the door. And then she got in the car and she
turned the car on and we just left.
(Tr. 477-479.)
Doe’s testimony regarding the trip with Mother to Elyria, the hospital
and The Nord Center generally echoed Mother’s recount. Doe met with a detective
and a lady that interviewed her about what happened. Doe testified that there were
other encounters with Scott but that she talked about the ones that she remembered
well. Doe also said that Scott would frequently come into her room when Mother
was asleep or not at home and have Doe perform fellatio. During cross-examination,
Doe denied that the first time she said Scott played pornography during an
encounter was at trial and that she informed the advocate and other interviewers in
April 2020 of that fact.
Forensic scientist Hristina Lekova (“Lekova”) with the Cuyahoga
County Regional Forensic Science Laboratory testified to the results of the sexual
assault kit examination. Doe’s swabs revealed no seminal material and only Doe’s
DNA, except for a single fingernail swab which was negative for Scott’s DNA. Lekova
stated that it is possible for sexual contact to take place without leaving DNA
evidence. Lekova also explained that some individuals shed greater amounts of
detectable amounts of DNA epithelial cells than others.
Stacee Wright (“Det. Wright”) was employed by the CMHA police
department as a detective who specialized in sexual assault cases at the time of the
incident. The dispatch center received a call from Mother reporting the sexual
assault and that they were traveling to Elyria to Mother’s sister’s home. CMHA
learned that Mother and Doe were seeking medical treatment at The Nord Center.
Det. Wright met with them there and conducted a one-on-one meeting with Doe
after the SANE examination.
Det. Wright talked with the advocate, family members in Elyria and
Pennsylvania and contacted CCDCFS for information and regarding Scott’s
whereabouts. The CMHA detective team determined there was probable cause to
arrest Scott. Scott was mirandized and requested an attorney.
During a review of Det. Wright’s report, Doe informed the detective
that Scott attempted to vaginally penetrate her with his penis during the April 2020
encounter and not that he requested oral sex. Det. Wright also stated that all of the
evidence that was collected such as Doe’s bed linen was not sent for testing at the
determination of evidence technician Sgt. Kyle White. (Tr. 550.)
Scott cites the lack of physical evidence of the encounters and
inconsistencies in Doe’s statements to support the convictions. A review of the
record reveals that Doe described the encounters in detail and stated that there were
other encounters but the four described are the ones she remembered the most.
While the SANE examination and kit revealed no physical evidence of sexual activity
or Scott’s DNA, “a physical injury is not a condition precedent to a conviction for
rape; not all rape victims exhibit signs of physical injury.” State v. Leonard, 8th
Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 46. A victim’s testimony concerning
penetration need not be corroborated by the medical evidence. See State v. Nivens,
10th Dist. Franklin No. 95APA09-1236, 1996 Ohio App. LEXIS 2245, 6 (May 28,
1996) (even without corroborating medical evidence, a victim’s testimony that the
perpetrator placed his penis in her vagina constitutes penetration).
Also, “it is well-established that physical evidence is not required to
support a conviction for rape or gross sexual imposition against a manifest weight
challenge.” State v. Thomas, 2d Dist. Montgomery No. 27362, 2018-Ohio-4345,
¶ 25, citing State v. West, 10th Dist. Franklin No. 06AP-11, 2006-Ohio-6259, ¶ 18;
State v. Thomas, 2015-Ohio-5247, 54 N.E.3d 732, ¶ 31 (9th Dist.); State v. White,
3d Dist. Seneca No. 13-16-21, 2017-Ohio-1488, ¶ 54; State v. Williams, 2017-Ohio-
8898, 101 N.E.3d 547, ¶ 19 (1st Dist.).
“‘[T]he jury was free to believe, or disbelieve, any part of the
witnesses’ testimony, and a conviction is not against the manifest weight of the
evidence merely because the jury believed the prosecution’s testimony.’” (Citations
omitted.) Thomas, 2d Dist. Montgomery No. 27362, 2018-Ohio-4345, at ¶ 26,
quoting State v. Arega, 2012-Ohio-5774, 983 N.E.2d 863, ¶ 30 (10th Dist.).
Doe expressly testified that Scott threatened retaliation or
punishment if Doe told Mother. Further, as to the element of force, Scott resided
with Doe for approximately eight years. Though Scott was not Doe’s father, he
represented a father or parental figure or, at the very least, “a position of authority
and, therefore,” Scott can be convicted of raping Doe “‘with force pursuant to
R.C. 2907.02(A)(1)(b) * * * without evidence of express threat of harm or evidence
of significant physical restraint.’” State v. Milam, 8th Dist. Cuyahoga No. 86268,
2006-Ohio-4742, ¶ 11, quoting State v. Dye, 82 Ohio St.3d 323, 326, 695 N.E.2d 763(July 8, 1998).
It is well established that the elements of an offense may be proven by
direct evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d
86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness testifies about a
matter within the witness’s personal knowledge such that the trier of fact is not
required to draw an inference from the evidence to the proposition that it is offered
to establish.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047,
¶ 13. Circumstantial evidence, on the other hand, is evidence that requires “the
drawing of inferences that are reasonably permitted by the evidence.” Id. See also
State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37
(“circumstantial evidence is the proof of facts by direct evidence from which the trier
of fact may infer or derive by reasoning other facts in accordance with the common
experience of mankind.”).
Circumstantial and direct evidence are of equal evidentiary value.
State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12. “Although
there are obvious differences between direct and circumstantial evidence, those
differences are irrelevant to the probative value of the evidence.” Cassano at ¶ 13,
citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). In some
cases, circumstantial evidence may be “‘more certain, satisfying and persuasive than
direct evidence.’” State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), quoting
Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20(1960).
Weighing the evidence contained in the entire record and all
reasonable inferences, considering the credibility of witnesses and determining
whether in resolving conflicts in the evidence, we find that the judgment is not
against the manifest weight of the evidence. We cannot say that “the trial court
clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed and a new trial ordered.” State v. Bell, 8th Dist.
Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41.
The first assignment of error lacks merit.
B. Reagan Tokes Law
Scott argues that the trial court erred in imposing a maximum
sentence on the count of attempted rape in accordance with the Reagan Tokes Law.
Scott argues that the law violates the federal and state constitutional right to trial by
jury and the doctrine of separation-of-powers.
However, we need not dwell on the arguments presented. The Ohio
Supreme Court held in State v. Maddox, Slip Opinion No. 2022-Ohio-764, that
constitutional challenges to the Reagan Tokes Act are ripe for review. Based on the
authority established by this district’s en banc holding in State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges Scott advances against the
constitutional validity of the Reagan Tokes Act have been overruled. Id. at ¶ 17-54.
Scott’s assigned error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
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.
__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
CORNELIUS J. O’SULLIVAN, JR., J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of her analysis, see State v. Delvallie, 2022-Ohio-470, 185
N.E.3d 536 (8th Dist.). (Laster Mays, J., concurring in part and dissenting in part).