STATE OF OHIO v. TYLER PASKINS
Case No. 2021 CA 00033
COURT OF APPEALS, FAIRFIELD COUNTY, OHIO, FIFTH APPELLATE DISTRICT
November 10, 2022
[Cite as State v. Paskins, 2022-Ohio-4024.]
JUDGES: Hon. Earle E. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County Court of Common Pleas, Case No. 2020 CR 0603
JUDGMENT: Affirmed and Remanded
DATE OF JUDGMENT ENTRY: November 10, 2022
APPEARANCES:
For Plaintiff-Appellee: CHRISTOPHER A. REAMER, Fairfield County Prosecutor‘s Office, 239 West Main Street, Suite 101, Lancaster, OH 43130
For Defendant-Appellant: BRIAN A. SMITH, 123 South Miller Road, Ste. 250, Fairlawn, OH 44333
{¶1} Defendant-appellant Tyler Paskins [“Paskins”] appeals his conviction and sentence after a jury trial in the Fairfield County Court of Common Pleas.
Facts and Procedural History
{¶2} On December 17, 2020, the Fairfield County grand jury issued a twо-count indictment finding probable cause that Paskins committed the offenses of Robbery, in violation of
{¶3} Michael Pound was homeless in November 2020 and had stayed multiple times at a residence located at 220 Washington Avenue in Lancaster, Ohio. The residence was rented by James Villers and frequented by multiple individuals. Pound had twenty years of drug addiction as well as criminal convictions attributed to his ongoing addiction.
{¶4} Sometime during the evening of November 25, 2020, approximately one hour before the events at Villers’s residence took place, Pound was “dope sick” when he was approached on the street by Brandon Reed and Chuck Boystel. 2T. at
{¶5} Later, Reed was working with Paskins on installing a camera system on the front porch of Villers home. Pound and his
Inconsistent Verdicts
{¶64} Paskins next argues the finding by the jury that Paskins was not guilty of Felonious Assault is inconsistent with the jury finding Paskins guilty of Complicity in the Commission of the Offense of Felonious Assault.
{¶65} R.C. 2923.03(F) states “A charge of complicity may be stated in terms of this section, or in terms of the principal offense.”
{¶66} “The Supremе Court of Ohio clarified Ohio’s position on the issue of complicity in State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040(1976), vacated in part on other grounds sub nom, Perryman v. Ohio, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156(1978). The court unequivocally approved of the practice of charging a jury regarding aiding and abetting even if the defendant was charged in the indictment as a principal.
{¶67} Thus, it can be said that “complicity” is necessarily included in an indictment. In other words, since a jury can be instructed on the indicted offense and alternatively instructed in terms of complicity notwithstanding the fact that the indictment reads in terms of only the principal offense, the complicity allegation is inherent in the indictment. See, State v. Christiаn, 184 Ohio App.3d 1, 2009-Ohio-4811, 919 N.E.2d 271(7th Dist.), ¶31; 34.
{¶68} In State v. Gapen, the Ohio Supreme Court observed,
First, “[i]nconsistent verdicts on different counts of a multi-count indictment do not justify overturning a verdict * * *.” State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030, citing United States v. Powell (1984), 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461; see, also, State v. Mapes (1985), 19 Ohio St.3d 108, 112–113, 19 OBR 318, 484 N.E.2d 140. As we stated in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, paragraph two of the syllabus, “The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count.” Thus, inconsistency of sentencing verdicts on
104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138.
{¶69} In the case at bar, the jury’s verdicts are not inconsistent. While the same underlying conduct resulted in each of the counts, each count had distinct elements unrelated to the other offense. The Indictment was charged in terms of the principal
{¶70} Though inconsistency can indicate confusion or doubt on the part of jurors, it can also indicate compromise or mercy. State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218, ¶ 16 (10th Dist.).
{¶72} We find that this is not an “‘exceptional case in which the evidence weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon the foregoing and the entire record in this matter we find Paskins conviction is not against the sufficiency or the manifest weight of the evidence. The jury neither lost their way nor created a miscarriage of justice in сonvicting Paskins of the offense.
{¶73} Paskins Second Assignment of Error is overruled.
III.
{¶74} In his Third Assignment of Error, Paskins contends that the trial court violated his substantial rights because the judge did not declare a mistrial based upon juror misconduct. Specifically, trial counsel reported that, while in the restroom during a break in the trial, he overheard two jurors discussing the case.
Standard of Appellate Review
{¶75} In State v. Hessler, 90 Ohio St.3d 108, 115-116, 734 N.E.2d 1237, 1247(2000) the Ohio Supreme Court set forth our standard of review when juror misconduct is alleged:
As a reviewing court, we show deference to the trial judge, who sees and hears the events and thus is in a better position to accurately evaluate the situation and determine the appropriate scope of inquiry. State v. Huertas (1990), 51 Ohio St.3d 22, 29, 553 N.E.2d 1058, 1067; United States v. Ramos (C.A.5, 1995), 71 F.3d 1150, 1153-1154. Therefore, we employ an abuse-of-discretion standard and will not reverse the trial court unless it has handled the alleged juror misconduct or ruled upon the post-trial motion in an ‘unreasonable, arbitrary, or unconscionable manner‘. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149.
90 Ohio St.3d 115-116, 734 N.E.2d 1237, 1247; State v. McMillen, 5th Dist. Stark No. 2008-CA-0122, 2009-Ohio-210, ¶ 124-125.
Issue for Appellate Review: Whether the trial court abused its discretion by denying Paskins’s motion for a mistrial.
{¶76} During a break in the trial, defense counsel apparently walked into a public restroom and overheard what he deemed an inappropriate communication between two jurors. The court agreed to engage in a voir dire of juror numbers 56 and 58 who were apparently the two jurors in the restroom.
{¶77} Under examination by the trial court Juror 56 conceded he posed a question about who else the jury might hear from today to Juror number 58 while inside the bathroom. 3T. at 479. Juror 56 also related that one time while testimony was being presented, Juror number 58 asked him a question to clarify something that had been said during court. 3T. at 480, 481. Juror 56 went on to explain that he had not formed any opinion on guilt or innocence of the defendant. He assured the court that he would
follow the court‘s instructions not to discuss the case until deliberations began. Finally, he assured the court that no discussions of substance
{¶78} The court and counsel then questioned Juror number 58. Juror 58 essentially testified that although Juror 56 may have attempted to speak with him in the restroom, Juror 58 was washing his hands and really did not hear what was said. 3T. at 492, 493. When asked about additional alleged conversations between jurors, Juror 58 stated that he took the trial court‘s admonishment not to discuss the case very seriously and was not engaged in any type of conversation about the case. He further related he had not heard other jurors having substantive discussions about the case. 3T. at 495.
{¶79} The trial court inquired of the jury array as a group to determine if any juror had formed an opinion regarding the guilt or innocence of the accused based upon discussions that should not have taken place. The court further inquired whether any discussion had occurred that impacted their ability to be fair and impartial. 3T. at 500, 501. No juror raised their hand in response to the trial court‘s inquiry. 3T. at 501. The trial court further admonished the jurors that despite their natural curiosity about the direction of the trial they should not voice their inquiries to any other juror. Id.
{¶80} Paskins’s motion for a mistrial was overruled by the trial court. 3T. at 502.
{¶81} The jury is obligated to decide a case solely оn the evidence, and any communication or contact outside the courtroom or jury room about the matter at trial between a juror and another person, and any independent inquiry or experiment by a
juror concerning the evidence or the law, constitutes juror misconduct. State v. Taylor, 73 Ohio App.3d 827, 831, 598 N.E.2d 818(1991). Further, when a juror refuses to consider the evidence or forms an opinion as to guilt or innocence before all the evidence is presented, such activity constitutes misconduct. Id. However, the United States Supreme Court has recognized:
[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.... [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to deсide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.
Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78(1982); United States v. Olano, 507 U.S. 725, 738, 113 S.Ct. 1770, 1780, 123 L.Ed.2d 508(1993); State v. McMillen, 5th Dist. Stark No. 2008-CA-00122, 2009-Ohio-210, ¶ 122.
{¶82} The trial court [is] entitled to believe or disbelieve all or part of the [jurors’] statements * * *” in determining whether there was juror misconduct. State v. Morris, 9th Dist. Summit No. 25519, 2011-Ohio-6594, 2011 WL 6740752, ¶ 32. See also State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus (“[T]he credibility of the witnеsses are primarily for the trier of the facts.”). Further, the trial judge is in the best position to ascertain the nature of the alleged jury misconduct and to fashion
the appropriate remedy if the conduct did occur. State v. Wharton, 9th Dist. Summit No. 23300, 2007-Ohio-1817, ¶ 25.
{¶84} Paskins Third Assignment of Error is overruled.
IV.
{¶85} In the case at bar, the trial сourt ordered that Paskins’ sentence in this case be served consecutively to his sentence in Fairfield County Court of Common Pleas, Case Number 2021 CR 0118. In his Fourth Assignment of Error, Paskins challenges the imposition of the consecutive terms of imprisonment on the ground that the trial court failed to make the findings required by
{¶86} Paskins concedes the trial court made the necessary findings on the record during the sentencing hearing; however, he argues the trial courts failure to select sрecifically which of the final three factors under 2929.14 (C)(4)(a) (b) or (c) and incorporate that factor verbatim into the sentencing entry renders the judgment entry contrary to law.
Standard of Appellate Review
{¶87} A court reviewing a criminal sentence is required by
{¶88} We review felony sentences using the standard of review set forth in
R.C. 2929.14 (C)(4) Consecutive Sentences
{¶89} In order for a trial court to impose consecutive sentences the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. The court must also find that consecutivе sentences are not disproportionate to the offender’s conduct and to the danger the offender poses to the public. Finally, the court must make at least one of three additional findings, which include that (a) the offender committed one or more of the offenses while awaiting trial or sentencing, while under a sanction imposed under
of the offenses committed as part of any of the courses of conduct would adequately reflect the seriousness of the offender’s
{¶90} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
Issue for Appellate Review: Whether the trial court properly imposed consecutive sentences in Paskins’s case.
{¶91}
(A) Except as provided in division (B) of this section, division (C) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution.
Emphasis added. The presumption created in
{¶92} In State v. Bates, the Ohio Supreme Court ruled the trial court may impose a prison sentence to be served consecutively to a prison sentence imposed on the same offender by another Ohio court. 118 Ohio St.3d 174, 2008-Ohio-1983, 881 N.E.2d 328, ¶19. To overcome the presumption that sentences run concurrently and impose consecutive sentences in an unrelated case, the trial court must comply with
{¶93} In the case at bar, the trial court’s sentencing entry reads as follows,
The sentence imposed in this case is to run consecutive to Fairfield County Case 21 CR 118.
The Court found that pursuant to R.C. §2929.14(C)(4), consecutive sentences arc necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. The Court further found that one or more of the factors in R.C. §2929.14(C)(4)(a), (b), or (c) was present and, as such, that сonsecutive sentences were appropriate.
Emphasis added.
{¶94} Recently, the Ohio Supreme Court reviewed a case relevant to the one at bar. In State v. Leegrand, the state appealed asking the Court to hold that a sentencing entry need not recite the exact statutory language as long as the entry conveys that the
trial court imposed the statutorily required sentence. Slip Op. 2022-Ohio-3623(Oct. 13, 2022), ¶4. In that case,
[T]he issue before [the Court] is the portion of the sentencing entry for Leegrand’s murder conviction, which states that he was sentenced to “LIFE
IN PRISON WITH ELIGIBILITY OF PAROLE AFTER 15 YEARS.” (Capitalization sic.) Leegrand appealed that sentence, arguing that the sentence was “improper and incorrect” under R.C. 2929.02(B)(1) , which states that the penalty for murder shall be “an indefinite term of fifteen years to life.” The Eighth District Court of Appeals affirmed Leegrand’s convictions. The court of appeals concluded, however, that the trial court’s sentencing language regarding the murder count was dissimilar enough from the language ofR.C. 2929.02(B)(1) to necessitate vacation of that sentence and a remand to the trial court for resentencing.
Id. ¶3. The Ohio Supreme Court ruled the trial court’s failure to use the specific language of the sentencing statute in its sentencing entry is not error when the entry conveys exactly the same meaning as the statutory language. Of relevance to the case at bar is the Court’s further observation,
Our decision leaves other aspects of the court of appeals’ judgment unaffected, including its affirmance of Leegrand’s convictions and its remand order to the trial court to “correct the portion of its sentencing entry via nunc pro tunc to include the findings required by
R.C. 2929.14(C)(4) when ordering Leegrand’s sentence in this case to run consecutively to his sentence in CR-16-608028,” 2020-Ohio-3179, ¶ 90.
Slip Op. 2022-Ohio-3623, ¶10. Thus, it does not appear that this Court may correct a trial court’s error in failing to include the findings required by
A trial court’s inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court.
Bonnell does not state that a reviewing court may look to the record to supply the terms missing from the trial court’s sentencing entry; rather, the trial court must correct the omission by nunc pro tunc entry.
{¶96} At the sentencing hearing it is clear, and the parties agree, that the trial court made the findings under
{¶97} Accordingly, Paskins Fourth Assignment of Error is sustained to the extent that we remand this case to the trial court for the sole purpose of issuing a nunc pro tunc entry that includes the additional finding under
V.
{¶98} In his Fifth Assignment of Error, Paskins contends his sentence is contrary to law because he was sentenced to a “mandatory” sentence where it was not authorized under
Standard of Appellate Review
{¶99} We review felony sentences using the standard of review set forth in
Issue for Appellate Review: Whether the trial court properly imposed a mandatory sentence
{¶100}
Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under sections 2929.02 to 2929.06, section 2929.14, section 2929.142, or section 2971.03 of the Revised Code and … shall not reduce the term or terms pursuant to section 2929.20, section 2967.19, section 2967.193, or any other provision of Chapter 2967. or Chapter 5120. of the Revised Code for any of the following offenses:
* * *
(4) A felony violation of section 2903.04, 2903.06, 2903.08, 2903.11, 2903.12, 2903.13, 2905.32, 2907.07, 2921.321, or 2923.132 of the Revised Code if the section requires the imposition of a prison term;
* * *
(6) Any offense that is a first or second degree felony and that is not set forth in division (F)(1), (2), (3), or (4) of this section, if the offender previously was convicted of or pleaded guilty to aggravated murder, murder, any first or second degree felony, or an offense under an existing or former law of this state, another state, or the United States that is or was substantially equivalent to one of those offenses;
* * *
Emphasis added.
{¶101} Paskins was convicted of complicity to felonious assault, a felony of the seсond degree in violation of
{¶102} Therefore, although a prison sentence is “presumed” for a felonious assault, the presumption is rebuttable. Accordingly, a prison sentence is not required for purposes of
{¶103}
{¶104} Therefore, under
{¶105} Paskins Fifth Assignment of Error is overruled.
VI.
{¶106} In his Sixth Assignment of Error, Paskins contends the Reagan Tokes Act is unconstitutional. Specifically, he argues the Reagan Tokes Act violates his constitutional right to trial by jury and due process of law, and further violates the constitutional requirement of separation of powers.
{¶107} For the reasons stated in my dissenting opinion in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, we find the Reagan Tokеs Law does not violate an appellant’s constitutional rights to trial by jury and due process of law, and
does not violate the constitutional requirement of separation of powers. We hereby adopt the dissenting opinion in Wolfe as the opinion of this Court. In so holding, we also note the sentencing law has been found constitutional by the Second, Third, and Twelfth Districts, and by the Eighth District sitting en banc. See e.g., State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4154; State v. Hacker, 3rd Dist. Logan No. 8-20-01, 2020-Ohio-5048; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470.
{¶108} Paskins Sixth Assignment of Error is overruled.
{¶109} For the foregoing reasons the judgment of the Fairfield County Court of Common Pleas is affirmed.
{¶110} In accordance with State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, we remand this case and order the trial court to correct the portion of its sentencing entry via a nunc pro tunc sentencing entry to include the findings required by