STATE OF OHIO, Plаintiff-Appellee, v. DANIEL J. FREETAGE, Defendant-Appellant.
CASE NO. 2020-P-0083
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
November 15, 2021
[Cite as State v. Freetage, 2021-Ohio-4050.]
JOHN J. EKLUND, J.
Criminal Appeal from the Court of Common Pleas Trial Court No. 2020 CR 00176. Judgment: Vacated in part, affirmed in part; remanded.
Thomas Rein, 820 W. Superior Avenue, Suite 800, Cleveland, OH 44113 (for Defendant-Appellant).
OPINION
JOHN J. EKLUND, J.
{¶1} Appellant, Daniel Freetage, appeаls his convictions of three counts of felonious assault in violation of
Substantive and Procedural History
{¶2} On February 10, 2020, an undercover detective was driving on State Route 14 when he saw Appellant‘s truck in an abandoned parking lot without license plates. The
{¶3} The detective asked Appellant what he was doing, and Appellant said he had picked up a freezer off the highway and stopped in the parking lot to look in the dumpster for scrap. The detective then asked Appellant where his license plates were. Appellant said he bought the car the night before and did not have the plates yet. The detective asked Appellant the same question three times. After the third time, Appellant turned away and returned to the window with a twelve-gauge sawed-off shotgun which he pointed at the detective. Appellant did not say anything, nor did he make any verbal threats.
{¶4} The detective ducked and drove to a safer area in the parking lot. Appellant exited the parking lot and the detective pursued him with his lights and sirens activated. During the pursuit, Appellant applied his brakes and reversed his car toward the detective. The closest Appellant came to the detective was 50 yards. The detective reversed backward to avoid a collision, driving eastbound on a westbound lane. Appellant sped forward and the pursuit сontinued.
{¶5} After resuming pursuit, Appellant once again applied his brakes, reversing toward the detective. The closest Appellant came to the detective was 30-40 yards. The detective avoided the Appellant. Appellant once again sped up and the detective lost pursuit.
{¶6} Later that day, the police discovered Appellant‘s name and current address. After arriving at the address, pоlice saw the truck, but Appellant was not there. Appellant‘s
{¶7} The next day, the friend called the police and said Appellant had left a shotgun on the kitchen table, which police did not see earlier because it was night-time and the house did not have working electricity. The police confiscated the gun.
{¶8} Appellant was indicted for 1) felonious assault with a firearm specification for pointing a shotgun at the detective in violation of
{¶9} At trial, a jury found Appellant guilty on six counts. Appellant was sentenced to imprisonment for 10 to 15 years for the first count of felonious assault and three years for the firearm specification; 10 years imprisonment for the second count of felonious assault; 10 years imprisonment for the third count of felonious assault; 24 months imprisonment for having weapons under disability; 12 months imprisonment for unlawful possession of dangerous ordnanсe, and 24 months imprisonment for failure to comply. The court ordered each sentence to be served concurrently, except the prison term imposed for the firearm specification to count one of felonious assault.
Law and Analysis
{¶11} “ASSIGNMENT OF ERROR 1: THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST APPELLANT.”
{¶12} “ASSIGNMENT OF ERROR 2: APPELLANT‘S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶13} “Sufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black‘s Law Dictionary (6 Ed.1990) 1433. See, also,
{¶14} “Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to
{¶15}
“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. Whеn 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) .
{¶16}
{¶17} For felonious assault, physical harm is injury that could be serious enough to cause the victim to seek medical treatment. State v. Bowden, 11th Dist. Ashtabula No. 2013-A-0040, 2014-Ohio-158, ¶ 33.
{¶18} Appellant first contends that the state failed to present sufficient evidence to convict him of felonious assault for pointing a shotgun at the detective under count one because pointing a gun alone does not show he knowingly attempted to cаuse physical harm. Appellant is correct.
{¶19} In State v. Brooks, 44 Ohio St. 3d 185, 542 N.E.2d 636 (1989), the Supreme Court of Ohio considered “whether the mere pointing of a deadly weapon, without more, is sufficient evidence of the offense felonious assault” under
{¶20} In Brooks, the defendant (who had a prior conviction of manslaughter) “became embroiled in a volatile argument” with a barmaid at a lounge during which he
{¶21} Here, there is no suggestion in the record that Appellant caused any physical harm to anyone in the parking lot. The only conduct in which he engaged, there and then, was pointing a deadly weapon at the detective. Brooks teaches that doing so is merely “an equivocal act as it relates to the accused‘s intentions” and, without more, is not “strongly corroborative of the actor‘s criminal purpose.” Therefore, it was not a “substantial step” sufficient to prove an attempt to cause physical harm “by use of that deadly weapon [in Brooks, a revolver; here, a sawed-off shotgun].” See, Brooks at 192.
{¶22} The state asserts that Appellant‘s subsequent acts (driving a truck in reverse at the detective) are additional circumstances which a reasonable jury could find are “strongly corrоborative of his criminal purpose” in the parking lot. We disagree for several reasons. First, Appellant‘s subsequent acts occurred under circumstances materially different from his deadly weapon-pointing. He was fleeing and being pursued by a law enforcement official. Nothing that had happened in the parking lot had risen to such a confrontational level. Second, his conduct involved an entirely differеnt instrumentality—a truck, not a firearm. Third, the acts occurred after the events in the parking lot. The concurrence in Brooks did suggest that a jury may be able “to find the
{¶23} Accordingly, we vacate the conviction of count one of felonious assault.
{¶24} Aрpellant next argues that the state failed to present sufficient evidence to convict him of felonious assault under Counts two and three for twice reversing his truck at the detective.
{¶25} Under
{¶26} Appellant contends the state did not present sufficient evidence that he knowingly attempted to cause physiсal harm to another by means of a deadly weapon when he reversed his truck toward the detective because the only evidence presented
{¶27} We affirm the decision of the Court of Common Pleas of Portаge County on counts two and three of felonious assault of Appellant‘s first assignment of error.
{¶28} Appellant also argues that the count two and three convictions are against the manifest weight of the evidence because he did not come close to the detective‘s vehicle. Weighing the evidence and the credibility of the testimony, we cannot so find. The detective‘s testimony that the Appellant applied his breaks and reversed toward the detective is credible enough to find the jury did not clearly lose its way and that no miscarriage of injustice occurred.
{¶29} We affirm the count two and three felonious assault convictions.
{¶31} Appellant‘s third assignment of error argues the indefinite prison sentencing that the Reagan Tokes Act (
{¶32} This court describes the Reagan Tokes Act as:
The Reagan Tokes Act went into effect in Ohio on March 22, 2019. The Act requires a sentencing court imposing a prison term under
R.C. 2929.14(A)(1)(a) or(2)(a) , on or after the effective date, to order a minimum prison term under that provision and a maximum prison term as determined byR.C. 2929.144(B) . The Act also sets forth a presumption that an offender “shall be released from service of the sentence on the expiration of the offender‘s minimum prison term or on the offender‘s presumptive earned early release date, whichever is earlier.”R.C. 2967.271(B) . The offender‘s presumptive earned early release date is determined underR.C. 2967.271(F) , which permits the sentencing court to reduce the minimum term under certain circumstances.R.C. 2967.271(A)(2) . The Department of Rehabilitation and Corrections (“DRC“) may rebut theR.C. 2967.271(B) prеsumption if it determines at a hearing that certain statutorily enumerated factors apply.R.C. 2967.271(C) . If the DRC rebuts the presumption, it may maintain the offender‘s incarceration after the expiration of the minimum prison term or presumptive earned early release date for a reasonable period of time, which “shall not exceed the offender‘s maximum prison term.”R.C. 2967.271(D)(1) .
State v. Ferguson, 11th Dist. Lake No. 2020-L-031, 2020-Ohio-5578, ¶ 8, appeal accepted, 162 Ohio St.3d 1410, 2021-Ohio-961, 165 N.E.3d 333.
{¶33} This court has concluded that constitutional challenges to the Reagan Tokes Act are not ripe for review “because it is uncertain whether the offender‘s release
{¶34} Perhaps in light of our precedents, Appellant failed to raise at trial the indefinite sentencing the Reagan Tokes Act imposes. “An appellate court will not consider any error which counsel for a party cоmplaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St. 2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. However, the appellate court may hear constitutional challenges for the first time on appeal if the court exercises discretion to do so only where there is рlain error and the rights and interests involved warrant it. State v. Weaver, 11th Dist. Trumbull No. 2013-T-0066, 2014-Ohio-1371, ¶ 12. When the court hears an appeal for plain error, it must presume the constitutionality of the statute at issue and will not invalidate it unless the challenger establishes that it is unconstitutional beyond a reasonable doubt. Ferguson, at ¶ 12.
{¶35} Here, since Appellant did not raise at trial the constitutionality of the indefinite sentencing that the Reagan Tokes Act imposes, we must only exercise discretion to hear the appeal if there is plain error. Presuming the constitutionality of the statute, Appellant failed to prove plain error that the Reagan Tokes Act is unconstitutional beyond a reasonable doubt. We decline to exercise discretion to hear the appeal.
{¶36} Appellant‘s third assignment of error is without merit.
{¶37} “ASSIGNMENT OF ERROR 4: THE TRIAL COURT ERRED WHEN IT FAILED TO IMPOSE POST-RELEASE CONTROL AT APPELLANT‘S SENTENCING.”
{¶39} “With
{¶40} “After July 11, 2006, when a judge fails to impose statutorily mandated post-release control,” the sentence is not vоid, but is instead subject to the correction procedure outlined in
{¶42} We remand to the court of common pleas for a hearing to provide the Appellant with notice of mandatory post-release control.
{¶43} Accordingly, we vacate the sentence on count one of felonious assault. We affirm counts two and three of felonious assault. Appellant‘s second assignment of error is without merit. Appellant‘s third assignment of error is without merit. Appellant‘s fourth assignment of error has merit. We remand to the trial court to 1) impоse an indefinite sentence on the appropriate count of felonious assault; and 2) provide Appellant with notice of mandatory post-release control, only.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.