State v. RadabaughState v. Radabaugh
Christopher Bazeley for Appellant
Morgan S. Fish for Appellee
{¶1} Defendant-Appellant, Hayden Radabaugh (“Radabaugh“), appeals from the December 21, 2023 judgment entry of the Hardin County Court of Common Pleas, following a jury trial. For the reasons that follow, we affirm in part and reverse in part. Specifically, we vacate the imposition of court-appointed-counsel fees, remand this matter to the trial court with instructions to resentence Appellant on the aggravated robbery conviction, and affirm the trial court‘s judgment in all other respects. We reject Radabaugh‘s challenges to the trial court‘s decisions to call three witnesses as court‘s witnesses, admit various crime scene photographs, and impose a fine and restitution, as well as his ineffective assistance of counsel claim and challenges to his convictions.
I. FACTS AND PROCEDURAL HISTORY
A. Indictment and Pretrial Motion Regarding Court‘s Witnesses
{¶2} This case arose from the death of Robert Mays, Jr. (“Mays“) on July 7, 2021. On October 20, 2022, Radabaugh was indicted on seven counts:
- (1) Aggravated Murder pursuant to
R.C. 2903.01(A) , with a specification pursuant toR.C. 2941.145(A) ; - (2) Aggravated Murder pursuant to
R.C. 2903.01(B) , with a specification pursuant toR.C. 2941.145(A) ; - (3) Aggravated Robbery pursuant to
R.C. 2911.01(A)(1) , with a specification pursuant toR.C. 2941.145(A) ; - (4) Aggravated Robbery pursuant to
R.C. 2911.01(A)(3) , with a specification pursuant toR.C. 2941.145(A) ; - (5) Having Weapons While Under Disability pursuant to
R.C. 2923.13(A)(2) ; - (6) Improperly Handling Firearms in a Motor Vehicle pursuant to
R.C. 2923.16(B) ; and - (7) Tampering with Evidence pursuant to
R.C. 2921.12(A)(1) .
{¶3} On December 7, 2022, in response to Radabaugh‘s demand for a Bill of Particulars, the State made the following allegations:
[O]n or about July 7th 2021, the defendant . . . openly discussed with Valerie Lewis, Andrew Wells, and Dane Honaker, in his mother‘s boyfriend‘s Kia motor vehicle the robbing and murder of Robert B Mays. . . .
The parties picked up Robert Mays in Findlay, Ohio with the story of needing him to assist in carrying out prearranged drug deals. . . .
[At] Radabaugh‘s prearranged signal that the criminal activities were to start[,] Andrew Wells utilizing a loaded 9 mm Tauris and force made Robert Mays get out of [the] rear seat on the driver‘s side onto CR 265. . . . While Hayden Radabaugh was out of the car on CR 265[,] Valerie Lewis handed him th[r]ough the driver side window the upfront loaded stored Smith & Wesson AR 22 cal semiautomatic firearm. Hayden Radabaugh then shot Robert Mays with more than 10 rounds with the AR 22 killing him in the process. The parties got back in the Kia [and] drove southwest . . .
Enroute discussion was had in the motor vehicle on getting their stories straight and the disposing of the firearms at Valerie Lewis‘s dad‘s house. Valerie was to go into the residence to distract her father while [Radabaugh], Dane and Andrew Wells hide the firearms in the tore-down building debris on Valerie Lewis‘s father‘s property. This hiding action did take place as planned. . . .
Robert Mays had his money, illegal drugs and jewelry taken from him pursuant [to] the robbery. . . .
(Bill of Particulars).
{¶4} On May 12, 2023, the State filed a motion asking that Andrew Wells (“Wells“), Valerie Lewis (“Lewis“), and Dane Honaker (“Honaker“) be witnesses called by the court at trial, pursuant to
B. Trial
{¶5} The case eventually proceeded to a jury trial, which took place from November 1 through November 9, 2023. In addition to Wells, Lewis, and Honaker, 20 other witnesses testified and the court admitted over 200 exhibits during the course of the trial. Among the evidence was the following.
{¶6} Jordan Schmidt (“Schmidt“) testified he was with Wells, Honaker, and Radabaugh the night before Mays’ death. They talked about wanting to commit a robbery and, according to Schmidt, Radabaugh led that conversation. Mays’ name was one of those that came up in discussing potential targets for the robbery.
{¶7} Honaker testified that Radabaugh informed Mays by text message that they would pick him up, under the guise that Mays would be helping with a drug transaction. According to Wells, Lewis, and Honaker, Radabaugh drove the four of them in a black car to pick up Mays. On the way, they discussed plans for committing the robbery. They also discussed killing Mays, with Honaker testifying that Radabaugh said he (Radabaugh) was going to do the killing. Lewis hid an assault rifle in the front passenger seat while Radabaugh drove and Honaker and Wells rode in the back.
{¶8} They picked up Mays, who was wearing a jeweled necklace and had a bag with marijuana and cash. After stopping at a Circle K store (where a surveillance camera took a picture of Radabaugh in a distinctive, two-tone coat), they drove out of town and through a rural area. At Radabaugh‘s predetermined signal, he pulled the car over and Wells successfully forced Mays out of the rear door on the driver‘s side at gunpoint. Radabaugh obtained the assault rifle from Lewis. Mays asked, “What did I do,” and Radabaugh responded by shooting him. Mays dropped to the ground and never got up. When asked how many rounds
{¶9} Wells, Lewis, and Honaker each testified that Radabaugh shot Mays and that no one else fired a weapon. They left Mays’ body and cell phone on the road where Radabaugh had killed him, but they had Mays’ necklace, bag, marijuana, and cash in the car. Radabaugh drove them away, and they decided to go to Lewis‘s father‘s house to hide the guns. Honaker testified that “the plan was, heat is on, bury the guns, come back for them later when things cooled down.” (Id. at 1161). Lewis‘s father testified that his daughter came to his house, with Radabaugh, during the evening hours of July 7, 2021 and stayed for about an hour.
{¶10} While Lewis purposely kept her father distracted and occupied in the house, Wells, Honaker, and Radabaugh took the guns—along with some of the clothes they were wearing, such as Radabaugh‘s distinctive coat—to the back of the property and hid them in a pile in the ground under a large piece of metal and other debris. According to Wells, they hid some of their clothes because they were worried about getting caught, knowing they wore those clothes earlier in town and could have been recorded on camera wearing them. Special Agent David Hammond of the Ohio Bureau of Criminal Investigation testified that a two-color coat, a black sweatshirt, and an assault rifle were later found at the property under a piece of
{¶11} According to Honaker, he, Wells, and Radabaugh split up Mays’ marijuana and money, with each getting some of it. Lewis likewise testified they divided up the money, and both Lewis and Wells testified that Wells took the necklace and marijuana with him after Mays’ death. Wells testified he had given some of the money to Radabaugh and Honaker to spend at a festival a few nights after Mays’ death.
{¶12} Both after the State rested its case and the Defense rested its case, Radabaugh‘s counsel made a
C. Sentencing
{¶13} On December 19, 2023, the trial court held a sentencing hearing. The trial court found that Counts 1 and 2 were allied offenses subject to merger; Counts 3 and 4 were allied offenses subject to merger; and Counts 5 and 6 were allied offenses subject to merger. Of those pairs of counts, the State chose to proceed to sentencing on Counts 1, 4, and 5.
{¶14} The trial court sentenced Radabaugh to the following terms of imprisonment: life in prison without the possibility of parole for Count 1
II. ASSIGNMENTS OF ERROR
{¶15} Radabaugh raises seven assignments of error for our review:
First Assignment of Error
The two counts of aggravated robbery in the indictment were duplicitous and the convictions must be vacated.
Second Assignment of Error
The trial court plainly erred when it granted the State‘s motion to call three witnesses as court witnesses pursuant to
Radabaugh‘s defense was prejudiced by ineffective assistance of counsel.
Fourth Assignment of Error
Radabaugh‘s convictions for aggravated robbery and tampering with evidence are not supported by legally sufficient evidence.
Fifth Assignment of Error
The trial court plainly erred when it admitted gruesome photographs of the crime scene.
Sixth Assignment of Error
The trial court failed to properly advise Radabaugh of his rights under the Regan Tokes Act as required by
Seventh Assignment of Error
The trial court‘s imposition of a fine, appointed counsel fees, and restitution are contrary to law and against its own finding that he lacks the ability to pay.
III. DISCUSSION
{¶16} We address the assignments of error out of order in a manner that facilitates our analysis.
A. First Assignment of Error
{¶17} In the first assignment of error, Radabaugh argues that the two aggravated robbery counts in the Indictment (Counts 3 and 4) were duplicative. He more specifically complains that the Indictment, Bill of Particulars, and jury
1. Standard of Review
{¶18} Radabaugh concedes that we review this issue under a plain-error standard because he never raised it with the trial court. See also State v. Noling, 2002-Ohio-7044, ¶¶ 60-62;
2. Applicable Law
{¶19} “Duplicity in an indictment is the joinder of two or more separate offenses in a single count.” Parker v. Maxwell, 174 Ohio St. 471, 471 (1963);
{¶20} Aggravated robbery under
(A) No person, in attempting or committing a theft offense, as defined in [
R.C. 2913.01 ], or in fleeing immediately after the attempt or offense, shall do any of the following:(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;
. . .
(3) Inflict, or attempt to inflict, serious physical harm on another.
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
. . .
(4) By threat;
(5) By intimidation.
3. Analysis
{¶21} The language in the Indictment for the two counts of aggravated robbery correctly tracks the language of the aggravated robbery statute. See Horner, 2010-Ohio-3830, at ¶ 45. Also, as set forth above, the Bill of Particulars identified both the property owner (Mays) and property he was deprived of pursuant to the robbery.
{¶22} Radabaugh has not established plain error. As an initial matter, we disagree with Radabaugh‘s suggestion that the two counts were duplicative when comparing one to the other. Such a comparison does not fit with a duplicity argument given that duplicity in an indictment is “the joinder of two or more separate offenses in a single count.” (Emphasis added.) Parker, 174 Ohio St. at 471. Moreover, the two counts alleged a violation of different provisions of the aggravated robbery statute, namely
{¶23} Next, Radabaugh argues there is duplicity within each of the two counts. He complains the State never identified which stolen item was the basis of either aggravated robbery offense, thereby creating the potential for different items to be the subject of the theft-offense element of the aggravated robbery. (Appellant‘s Brief at 4). According to Radabaugh, this created a jury unanimity problem in that different jurors could have found him guilty based upon the theft of different items or combinations of those items. (Id. at 5).
{¶24} While it is true that, pursuant to
{¶25} “Although
Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement—a disagreement about means—would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.
{¶26} “[T]he identity of the personal property stolen from [the victim] is not an element of the offense of aggravated robbery.” State v. Moten, 2012-Ohio-6046, ¶ 34 (2d Dist.) (affirming conviction despite bill of particulars identifying a wallet as the stolen item where evidence did not show a wallet was stolen but did show victim‘s watch was stolen). Instead, the jury had to unanimously conclude that the State had proven, beyond a reasonable doubt, that “a theft offense” was attempted or committed.
{¶27} We are also mindful that, in addition to principal offender instructions, the trial court‘s final instructions to the jury included an instruction on complicity for the aggravated robbery and other charges. (Trial Tr. at 1581-83). This provided another method for finding the element of attempting or committing a theft offense satisfied with respect to any of the items. See
{¶28} In support of his argument, Radabaugh primarily relies on State v. Ward, 2011-Ohio-518 (9th Dist.). Ward involved a situation where the defendant was charged with one count of aggravated robbery, yet as the prosecutor admitted in opening statements—the defendant had committed two robberies with multiple victims. Ward, 2011-Ohio-518, at ¶ 4, 9-11, 13. Unlike Ward, Radabaugh complains the multiple items taken from Mays created multiple potential theft offenses underlying the aggravated robbery, i.e., multiple ways in which an element of the aggravated robbery offense could be satisfied. Thus, Ward is clearly
{¶29} Radabaugh‘s first assignment of error is overruled.
B. Fourth Assignment of Error
{¶30} In the fourth assignment of error, Radabaugh asserts that his convictions for both aggravated robbery and tampering with evidence were not supported by legally-sufficient evidence and were against the manifest weight of the evidence.2
1. Standard of Review
{¶31} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Dent, 2020-Ohio-6670, ¶ 15. Thus, our review is de novo. Id. A sufficiency challenge disputes whether a party met its burden of production at trial. State v. Messenger, 2022-Ohio-4562, ¶ 26. “In a sufficiency-of-the-evidence inquiry, the question is whether the evidence presented, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” Dent at ¶ 15, citing State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Thus, “[i]n
{¶32} On the other hand, the “manifest-weight-of-the-evidence standard of review applies to the state‘s burden of persuasion.” Messenger at ¶ 26. “[W]e review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that we must reverse the conviction and order a new trial.” State v. Wilks, 2018-Ohio-1562, ¶ 168. Yet, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524, ¶ 119. To reverse a judgment from a jury trial on the weight of the evidence, all three appellate judges must concur.
2. Applicable Law and Analysis
a. Aggravated robbery
{¶33} The aggravated robbery statute and associated legal principles concerning that offense are set forth above in our discussion of the first assignment of error. Given that Radabaugh was convicted of Count 4, our analysis centers on
{¶34} Radabaugh‘s argument focuses on an alleged lack of evidence that Radabaugh stole Mays’ necklace or anticipated that someone else would steal it. Thus, the argument relates to only one of the items stolen from Mays and is based on Radabaugh‘s duplicity and juror unanimity concerns. However, as explained in our discussion of the first assignment of error, the State was not required to prove that Radabaugh stole one item in particular. The jury was charged with determining whether the State had proven, beyond a reasonable doubt, that Radabaugh “inflict[ed], or attempt[ed] to inflict, serious physical harm on” Mays “in attempting or committing a theft offense ... or in fleeing immediately after the attempt or offense.”
{¶35} Moreover, “if the evidence supports the verdict under one factual alternative, we need not reverse the conviction simply because the evidence is insufficient to support another.” State v. Frunza, 2003-Ohio-4809, ¶ 7, 9-10 (8th Dist.) (rejecting sufficiency and weight of the evidence arguments for robbery conviction where the evidence was insufficient to sustain the charged offense based on one act of the defendant that did not rise to the level of physical harm, but the
{¶36} The evidence at trial demonstrated that Radabaugh inflicted “serious physical harm on” Mays. All three of Radabaugh‘s co-conspirators testified that Radabaugh shot Mays multiple times, causing his death. E.g., State v. Bishop, 2007-Ohio-6197, ¶ 11, 60-61 (8th Dist.) (defendant inflicted serious physical harm upon victim by shooting him in the leg and then in the temple at close range, an act that killed the victim).
{¶37} Additionally, the evidence demonstrated that Radabaugh shot Mays “in attempting or committing a theft offense.”
the essential elements of aggravated robbery under
b. Tampering with evidence
{¶38} Tampering with evidence under
{¶39} Radabaugh‘s argument concerning the tampering with evidence conviction focuses on an alleged lack of evidence that Radabaugh wiped
{¶40} Therefore, we reject Radabaugh‘s arguments that his convictions for aggravated robbery and tampering with evidence were not supported by legally-sufficient evidence and were against the manifest weight of the evidence.
{¶41} Radabaugh‘s fourth assignment of error is overruled.
C. Second Assignment of Error
{¶42} In the second assignment of error, Radabaugh argues that the trial court plainly erred in granting the State‘s (unopposed) motion to allow Wells, Lewis, and Honaker to be called as court‘s witnesses pursuant to
1. Standard of Review
{¶43} As with the first assignment of error, Radabaugh concedes that we review this issue under a plain-error standard because he did not raise it with the trial court. See also State v. Wesley, 2002-Ohio-4429, ¶ 7 (8th Dist.). That standard is set forth above in our discussion of the first assignment of error.
2. Applicable Law
{¶44}
{¶45} “‘The purpose of calling a witness as a court‘s witness is to allow for a proper determination in a case where a witness is reluctant or unwilling to testify‘” or “‘there is some indication that the witness‘s trial testimony will contradict a prior statement made to police.‘” Nurein at ¶ 16, quoting State v. Baskin, 2019-Ohio-2071, ¶ 39 (3d Dist.). Additionally, “‘[a] witness whose appearance is important to the proper determination of the case, but who appears to be favorable to the other party, is a principal candidate for application of
{¶46} When the court calls a witness, a party does not need to satisfy the surprise and affirmative-damage requirements of
3. Analysis
{¶47} As eyewitnesses to many of the relevant events, the testimony of Wells, Lewis, and Honaker certainly would be beneficial to ascertaining the truth of
{¶48} There also was some indication the three witnesses were reluctant to testify. (See, e.g., Apr. 6, 2023 Tr. at 14-15; Motion). In fact, at the trial, Honaker initially refused to take the oath to testify and said, “I‘m just not testifying.” (Trial Tr. at 1108-1109). All three witnesses were alleged accomplices to Radabaugh in committing the crimes, and the prosecution informed the trial court before it had
{¶49} Radabaugh‘s second assignment of error is overruled.
D. Third Assignment of Error
{¶50} In the third assignment of error, Radabaugh claims he was prejudiced by ineffective assistance of counsel. He submits two instances of alleged failures by his trial counsel. First, he complains his trial counsel did not object to the State‘s motion to allow Wells, Lewis, and Honaker to be called as court‘s witnesses—the motion we addressed in the second assignment of error. Second, his trial counsel did not file a pretrial motion to suppress his statement to law enforcement that “we bought an ounce and we dropped [Mays] off at the corner.” (Trial Tr. at 1074-1075).
{¶51} To establish ineffective assistance of counsel, the appellant “must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Tench, 2018-Ohio-5205, ¶ 264. Reversal of a conviction or sentence based upon ineffective assistance of counsel requires satisfying this two-pronged test, and the failure to make either showing is fatal to the claim. State v. Conway, 2006-Ohio-2815, ¶ 165, 168.
{¶52} Regarding the first requirement, “[i]n order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment.” State v. Houston, 2010-Ohio-6070, ¶ 35 (3d Dist.), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance.” Id., citing State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343 (1998). “Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance.” Id. at ¶ 36, citing State v. Carter, 72 Ohio St.3d 545, 558, 1995-Ohio-104 (1995). “Rather, the errors complained of must amount to a substantial violation of
{¶53} Regarding the second requirement, “[p]rejudice results when ‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” Houston at ¶ 36, quoting State v. Bradley, 42 Ohio St.3d 136, 142 (1989). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
2. Analysis
{¶54} First, regarding his trial counsel‘s failure to object to the State‘s motion asking the court to call several witnesses, Radabaugh has “failed to demonstrate that his trial counsel was deficient for failing to file a response or that such a response would have been successful.” Beaver, 2014-Ohio-4995, at ¶ 58, 64 (3d Dist.) (no ineffective assistance of counsel where counsel failed to object to the State‘s motion requesting a witness be declared a court‘s witness). As we determined in Radabaugh‘s second assignment of error, the trial court did not err in granting the State‘s motion declaring Wells, Lewis, and Honaker to each be a court‘s
{¶55} We also disagree with Radabaugh‘s assertion that “[the] failure to object here cannot be considered sound trial strategy.” (Appellant‘s Brief at 12). Deciding not to use resources in opposing a motion when opposition was likely futile—particularly in a case of this scope—does not strike us as deficient performance by counsel or a substantial violation of counsel‘s essential duties to her client. See State v. Schwirzinski, 2010-Ohio-5512, ¶ 66 (6th Dist.) (trial counsel was not deficient where objections “likely would have been futile”). While Radabaugh insists his trial counsel “could have at least credibly argued that the motion, made five months before trial, was premature” (Reply Brief at 4), he has not shown it would have made any difference if the trial court made its ruling on the motion closer to the time the witnesses testified during the trial.
{¶56} Next, regarding his trial counsel‘s failure to file a pretrial motion to suppress, Radabaugh has not shown that he suffered prejudice from admission of his statement that “we bought an ounce and we dropped [Mays] off at the corner.” (Trial Tr. at 1074-1075). Other evidence clearly established that Radabaugh had
{¶57} Radabaugh‘s third assignment of error is overruled.
E. Fifth Assignment of Error
{¶58} In the fifth assignment of error, Radabaugh contends that the trial court plainly erred in admitting gruesome photos of the crime scene. He argues that the State “offered several photographs of the crime scene that were gruesome, prejudicial, and unnecessary,” serving “no purpose other than to inflame the jury” given that other evidence showed Mays died from gunshot wounds. (Appellant‘s Brief at 18). The State responds that the photos show the extent of the injuries May suffered and the intentionality with which Radabaugh shot him—which bear on elements the State needed to prove for its aggravated murder charges.
{¶59} Whether to permit the introduction or admission of photographs is left to the sound discretion of the trial court. State v. Ream, 2013-Ohio-4319, ¶ 101 (3d Dist.); State v. Motley, 2023-Ohio-1811, ¶ 49 (8th Dist.); see also
2. Applicable Law
{¶60} “[A] trial court may reject an otherwise admissible photograph which, because of its inflammatory nature, creates a danger of prejudicial impact that substantially outweighs the probative value of the photograph as evidence.” State v. Morales, 32 Ohio St.3d 252, 257 (1987); see also
{¶61} Given that Radabaugh was convicted of Count 1, our analysis centers on that count of aggravated murder, which charged a violation of
{¶62} Intent to kill may be proven by direct testimony or “‘deduced from all the surrounding circumstances, including the instrument used to produce death, its tendency to destroy life if designed for that purpose, and the manner of inflicting a fatal wound.‘” State v. Stallings, 89 Ohio St.3d 280, 290, 2000-Ohio-164 (2000), quoting State v. Robinson, 161 Ohio St. 213 (1954), paragraph five of the syllabus. For example, evidence at trial indicating the victim sustained defensive wounds and a fractured nose and died from multiple gunshot wounds—including being shot through her face—would support a finding that the defendant acted purposely in causing the victim‘s death. State v. Pinyerd, 2024-Ohio-2521, ¶ 52 (3d Dist.). Thus, where the State has the burden of proving the killing was done “purposely” and with “prior calculation and design,” photographic evidence of the injuries sustained by the victim, the cause of the victim‘s death, and the proximity of the shooting are all probative of the defendant‘s purpose and design to cause the victim‘s death. Jackson at ¶ 7, 11 (no error where trial court admitted eleven crime scene photos, despite argument by the defendant convicted of aggravated murder that the images were gruesome and inflamed the jury‘s passion).
{¶63} Radabaugh does not specify which photos he believes are gruesome, but he does specifically address Exhibits 85 and 88 in his brief. Exhibit 85 portrays part of Mays’ right side, showing some of the wounds to his chest and face, with his right arm covered by a shirt. Exhibit 88 is a close-up of Mays’ left hand with blood on it and a potential injury to the left palm.
{¶64} Radabaugh has not established plain error by the trial court in allowing these particular photos or any of the crime scene photos (i.e., Exhibits 83 through 100) to be admitted. Special Agent Hammond of the Ohio Bureau of Criminal Investigation testified that all of the photographs from where Mays was killed fairly and accurately depicted what he saw when he arrived to process the scene on July 7, 2021. Special Agent Hammond explained that crime scene photos showed wounds to Mays’ body (including multiple wounds to his chest and torso), as well as the rainy weather conditions, placards indicating where different pieces of evidence were found, and the general area where Mays’ body was found—on a two-lane road surrounded by dense woods.
{¶65} Some of the crime scene photographs were not gruesome. Regarding the others, “although gruesome, [the photographs] were probative of [Radabaugh‘s] intent and the manner and circumstances of” Mays’ death. Trimble, 2009-Ohio-2961, at ¶ 134 (upholding admission of “close-up photograph showing the gunshot
{¶66} The crime scene photos illustrated the testimony of the paramedic and law enforcement officers who discovered Mays’ body, and they portrayed the crime scene and condition of the body. See State v. Nields, 93 Ohio St.3d 6, 26, 2001-Ohio-1291 (2001) (demonstrating probative value of crime scene photos). They also illustrated their testimony of the victim‘s injuries and helped to prove the killer‘s intent. Id. (rejecting claim that defendant was unfairly prejudiced by the admission of several crime scene photos that defendant argued were gruesome and cumulative); see also Trimble, 2009-Ohio-2961, at ¶ 136. We find no error in their admission, let alone error that would support plain-error relief.
{¶67} Radabaugh‘s fifth assignment of error is overruled.
{¶68} In the sixth assignment of error, Radabaugh asserts that the trial court failed to notify him at the sentencing hearing of the items set forth in
{¶69} When required to provide such notifications, a sentence is contrary to law if the trial court fails to comply with
{¶70} Because the trial court found consecutive sentencing was necessary, the court imposed a life sentence for the aggravated murder and additional sentences
{¶71} Having searched the sentencing transcript, we agree with the parties that the trial court did not fulfill the requirements of the statute by notifying Radabaugh of all the information set forth in
{¶72} Radabaugh‘s sixth assignment of error is sustained.
G. Seventh Assignment of Error
{¶73} In the seventh assignment of error, Radabaugh challenges three financial items ordered by the trial court: (1) payment of the $20,000 fine; (2) assessment of court-appointed-counsel fees; and (3) payment of $7,482.24 in restitution. Radabaugh specifically challenges them pursuant to
1. Fine for Aggravated Murder
{¶74} Radabaugh contends the $20,000 fine is contrary to law and asks that it be vacated because the trial court did not consider his ability to pay when it imposed the fine, as required by
In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of . . . a felony may appeal as a matter of right the sentence imposed upon the defendant on one of the following grounds: . . . (4) The sentence is contrary to law.
(Emphasis added.)
{¶75} Here, an exception in division (D) of the statute applies to preclude our review of the fine. The fine is part of “[a] sentence imposed for aggravated murder” pursuant to
2. Court-Appointed-Counsel Fees
{¶76} Next, Radabaugh maintains that requiring him to pay court-appointed-counsel fees was contrary to law because the trial court never inquired of his ability to pay, despite his argument at sentencing that he lacked the ability. Radabaugh contends the trial court‘s decision also conflicted with its own finding that he lacks the ability to pay.
{¶78} “[T]he trial court in a criminal case has the authority to impose court-appointed-counsel fees upon a defendant.” State v. Taylor, 2020-Ohio-6786, ¶ 24. Pursuant to statute, appointed counsel shall be paid “by the county the compensation and expenses that the trial court approves.”
The fees and expenses approved by the court under this section shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay.
{¶79} Moreover, the assessment of court-appointed-counsel fees is not part of a defendant‘s sentence. Id. at ¶ 35, 37. Therefore, we do not review the issue under
{¶80} As an initial matter, the trial court did not specify “an amount that [Radabaugh] reasonably can be expected to pay.”
{¶81} While recognizing that a trial court is not required to make explicit findings as a prerequisite to assessing appointed-counsel fees, and setting aside whether the trial court here actually did make an inquiry about Radabaugh‘s means to pay such fees, the trial court abused its discretion in finding that Radabaugh has, or reasonably may be expected to have, the means to pay all court-appointed-counsel fees.
{¶82} At the sentencing hearing on December 19, 2023, the State asserted that Radabaugh “was working as a security guard,” “had income,” and “still could buy his own dope.” (Dec. 19, 2023 Tr. at 18-19). However, Radabaugh‘s counsel pointed out that Radabaugh had been incarcerated since 2021, initially on an unrelated crime. Moreover, on November 22, 2022, the trial court had found Radabaugh was indigent and appointed counsel for him. His defense counsel further explained at the sentencing hearing that Radabaugh “has no income at this point in time” and “has no income moving forward.” (Id. at 30).
{¶84} Additionally, the trial court explained at the sentencing hearing that “[a]ny and all payments will be applied to restitution one half and the remaining one
{¶85} Therefore, we vacate the imposition of court-appointed-attorney fees. See State v. Miller, 2002-Ohio-853, 2002 WL 313380, *2-3 (6th Dist. Mar. 1, 2002) (finding insufficient evidence in the record to establish appellant would reasonably be expected to have the means to pay for the expense of his court-appointed counsel and vacating the requirement that he pay that expense); State v. Patterson, 2024-Ohio-2198, ¶ 15-18 (6th Dist.) (evidence in the record was insufficient to impose the court-appointed-counsel fees—and therefore vacating them—where, although appellant was only 22 years old and sentenced to 18 months in prison, he had a lengthy criminal record, had been incarcerated for three years, had no verified employment history, and had not completed high school).
3. Restitution
{¶86} Radabaugh similarly contends that ordering him to pay restitution was contrary to law because the trial court never inquired of his ability to pay and he had argued at the sentencing hearing that he lacked the ability. At the sentencing hearing, the trial court “note[d] that restitution under the Ohio Constitution is mandatory.” (Dec. 19, 2023 Tr. at 49).
{¶87} Radabaugh‘s contention fails. Pursuant to
{¶88} Marsy‘s Law became effective on February 5, 2018 and expanded the rights afforded to victims of crimes. Oliver at ¶ 57. In relevant part, it provides:
(A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused: . . .
(7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim; . . .
. . .
(D) As used in this section, ‘victim’ means a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act. The term ‘victim’ does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.
(E) All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.
{¶89} Radabaugh‘s seventh assignment of error is overruled, in part, and sustained, in part.
IV. CONCLUSION
{¶90} For the foregoing reasons, Radabaugh‘s first, second, third, fourth, and fifth assignments of error are overruled; Radabaugh‘s sixth assignment of error is sustained; and Radabaugh‘s seventh assignment of error is overruled in part and
Judgment Affirmed, in part, and Reversed, in part.
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlm