State v. AllenState v. Allen
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{1} Appellant, Thomas G. Allen, appeals from the judgment of conviction entered by the Lake County Court of Common Pleas, after a jury trial, on one count of aggravated burglary, one count of aggravated menacing, one count of tampering with evidence, and one count of failure to comply with the order of a police officer as well as several repeat violence offender specifications. We affirm.
{2} In July 2020, William Hale lived in Painesville Township, Ohio with his minor nephew, J.H. (16 years old), a minor niece, S.H. (15 years old), and another, adult niece,
{3} In the early morning hours of July 17, 2020, however, at approximately 2:30 a.m., appellant arrived at the residence of his cousin. He entered the home without knocking and encountered J. H. and D.B. in the kitchen. At the time, Mr. Hale was upstairs sleeping, and J.H.‘s two sisters were also in their bed on the first floor. Appellant asked J.H. if he and Mr. Hale wished to smoke marijuana. J.H. declined but directed appellant to the outdoors where J.H. ostensibly kept marijuana. Appellant left the home for a short period but later returned and again re-entered. Appellant appeared agitated and inquired why J.H. and D.B. were stalking him. He brandished a knife, pointed the same at the two children, then chased J.H. up the stairs. Meanwhile, D.B. entered the downstairs bedroom and Kaylee called 911.
{4} Mr. Hale was awoken by the commotion and retrieved a baseball bat. Mr. Hale ultimately chased appellant from the home. Appellant fled the scene on his motorcycle before police arrived. An officer spotted him, but appellant refused to stop. Appellant eventually pulled over and he was arrested. The knife appellant brandished was never located.
{5} Appellant was indicted on two counts of burglary, felonies of the second degree, with repeat violent offender specifications; two counts of aggravated burglary,
{6} Appellant appeals and assigns seven errors. His first two assignments of error provide:
{7} “[1.] The trial court erred to the prejudice of the defendant-appellant when it denied his motion for acquittal under
{8} “[2.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence.”
{10} In contrast, a “court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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 and a new trial ordered.” State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).
{11} Appellant argues that the state failed to present sufficient, credible evidence to support his convictions for aggravated burglary, aggravated menacing, and tampering with evidence.1 In particular, appellant contends the state failed to establish (1) he trespassed in the structure, (2) with the purpose to commit any criminal offense and (3) that he inflicted, attempted to inflict, or threatened to inflict physical harm on another. Each of the foregoing are necessary elements for his conviction on aggravated burglary. Regarding the aggravated menacing conviction, appellant does not appear to directly challenge the sufficiency of the state‘s evidence; rather, he seems to argue that the
{12} Appellant was convicted of aggravated burglary, in violation of
{13} Appellant first asserts the state failed to provide credible evidence that he trespassed in the residence on the night of the incident. He contends he was a regular visitor in his cousin‘s home and thus was consensually permitted to enter. While he may have been a visitor previously and admitted into the residence routinely, Mr. Hale testified no one, let alone appellant, was permitted to walk into his home. To the contrary, Mr. Hale stated appellant was never a resident of the home and no one, other than the residents, were permitted to walk into the home. Mr. Hale noted that one of his nieces, S.H., (who lives in the residence) has cerebral palsy and is “pretty friendly.” As such, out of safety concerns, no one is permitted in the home without calling or knocking. Mr. Hale claimed that anyone he associates with is aware of this rule. Mr. Hale further emphasized his other niece, Kaylee, and nephew, J.H. (who also lived in the residence), were the only
{14} Moreover, testimony established that appellant, after exiting the residence to apparently smoke marijuana, re-entered the kitchen where D.B. and J.H. were talking and threatened them by pointing a knife in their direction. Testimony indicated that appellant‘s face was red, sweaty, and he appeared angry; moreover, according to D.B., she and J.H. were not concerned with what appellant was doing while he was outside. Upon reentry, however, appellant accused the two kids of “watching” or “stalking” him.
{15} With this in mind, appellant was convicted of aggravated menacing, which required proof that appellant knowingly caused another to believe he would cause serious physical harm to his or her person.
{16} Appellant, however, contends that his conviction for aggravated burglary is inconsistent with the jury‘s acquittal for felonious assault. Felonious assault, as charged
{17} Appellant next argues the state failed to adduce sufficient, credible evidence to prove his guilt on the tampering with evidence count.
{18} Appellant asserts the state‘s witnesses were sufficiently inconsistent regarding the appearance of the knife he purportedly wielded that the evidence failed to support the conclusion he ever possessed the weapon. He additionally claims that even if there was sufficient, credible evidence to support the conclusion that he possessed the knife, there was nothing introduced to establish he discarded the object. Again, we do not agree.
{20} Given the foregoing, we conclude the state produced sufficient, credible evidence to sustain appellant‘s convictions for aggravated burglary, aggravated menacing, and tampering with evidence.
{21} Appellant‘s first and second assignments of error lack merit.
{22} Appellant‘s third through seventh assignments of error provide:
{23} “[3.] The defendant-appellant‘s constitutional challenges to the indeterminate prison sentence of eleven to sixteen and one-half years on count five, that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, are ripe for review.
{25} “[5.] The defendant-appellant‘s indeterminate prison sentence of eleven to sixteen and one-half years on count five that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, must be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine of separation of powers.
{26} “[6.] The defendant-appellant‘s indeterminate prison sentence of eleven to sixteen and one-half years on count five that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, violates his constitutional right to trial by jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and
{27} [7.] The defendant-appellant‘s indeterminate prison sentence of eleven to sixteen and one-half years on count five that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, violates his constitutional rights to fair trial and due process as guaranteed by the
{28} Although this court previously concluded the foregoing constitutional challenges to the presumptive release provisions in the Reagan Tokes Act were not ripe for review, See, e.g., State v. Lavean, 11th Dist. Lake No. 2020-L-045, 2021-Ohio-1456, the Supreme Court of Ohio, in State v. Maddox, ___ Ohio St.3d ___, 2022-Ohio-764, determined the arguments are ripe. Id. at ¶11.
{30} Accordingly, while appellant‘s third assignment of error has merit, it is merely a gatekeeper for analyzing the remaining constitutional arguments. Appellant‘s constitutional arguments, however, lack merit. Assignments of error four through seven are accordingly overruled.
{31} The judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
JOHN J. EKLUND, J.,
concur.