STATE OF OHIO, Plaintiff-Appellee, v. DYLAN SHANE TOMPKINS, Defendant-Appellant.
CASE NO. CA2014-07-159
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
6/15/2015
[Cite as State v. Tompkins, 2015-Ohio-2316.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-08-1233
John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendant-appellant, Dylan Shane Tompkins, appeals his conviction in the Butler County Court of Common Pleas for felony murder and child endangering.
{¶ 2} Appellant was indicted in September 2013 on one count of felony murder in violation of
{¶ 3} Appellant appeals, raising one assignment of error:
{¶ 4} THE STATUTE UNDER WHICH THE APPELLANT WAS TRIED, CONVICTED AND SENTENCED IN THE INSTANT CASE, SECTION 2903.02(B) (MURDER) IS STRUCTURALLY DEFECTIVE AND UNCONSTITUTIONAL AND VIOLATES THE DUE PROCESS RIGHTS GRANTED UNDER BOTH THE U.S. AND OHIO CONSTITUTIONS IN THAT ATTEMPTS TO DO THE FOLLOWING: FIRST, DEFINE A CRIME BY THE USE OF NEGATIVES AS TO WHAT THE CRIME IS NOT, NOT WHAT THE CRIME PROPERLY DEFINED IS. SECOND, IT VIOLATES THE EQUAL PROTECTION CLAUSE BY GIVING PROSECUTORS UNDUE DISCRETION IN CHARGING SINCE MURDER UNDER 2903.02(B) AND INVOLUNTARY MANSLAUGHTER UNDER 2903.04 PROHIBIT IDENTICAL ACTIVITY AND SUBJECT OFFENDERS TO DIFFERENT PUNISHMENT AND FINALLY, THREE 2903(B) NEGATES THE REQUIREMENT THAT THE PROSECUTION PROVE NOT ONLY THE “ACTUS REUS” BUT ALSO THE ACTUAL “MENS REA” OF THE CRIME ALLEGED. [SIC]
{¶ 5} Appellant argues that
{¶ 6} We note that appellant failed to raise these arguments before the trial court. It is well-established that “the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.” State v. Awan, 22 Ohio St.3d 120, 122 (1986). Thus, the failure to raise the issue of the constitutionality of a statute or its application, which issue is apparent at the trial court level, constitutes a waiver of that issue and need not be heard for the first time on appeal. Id. at syllabus; State v. Myers, 12th Dist. Madison No. CA2012-12-027, 2014-Ohio-3384, ¶ 12.
{¶ 7} However, such waiver is discretionary, and an appellate court may review claims of defects affecting substantial rights, even if they were not brought to the attention of the trial court, under a plain error standard of review. In re M.D., 38 Ohio St.3d 149, 151 (1988); State v. Miller, 12th Dist. Clermont No. CA2011-04-028, 2012-Ohio-995, ¶ 39-40;
{¶ 8}
{¶ 9} Child endangering in violation of
{¶ 10} Appellant first argues the felony murder statute violates his due process rights because it relieves the state of proving a culpable mental state.
{¶ 11} Under
{¶ 12} Other Ohio appellate districts have similarly and consistently held that
{¶ 13} In the case at bar, the state presented evidence that appellant recklessly squeezed, struck, and shook the 13-month-old child, which caused a severe brain injury and eventually led to the child‘s death. Hence, the state satisfied the mens rea for murder under
{¶ 14} Appellant also argues the felony murder statute violates his equal protection rights because it gives prosecutors undue discretion in deciding whether to charge a
{¶ 15} This issue was addressed and aptly rejected by the Second Appellate District as follows:
A comparison of the felony murder statute,
R.C. 2903.02(B) , and the involuntary manslaughter statute,R.C. 2903.04(A) , reveals that they do not prohibit identical activity and require identical proof. Causing another‘s death as a proximate result of committing any felony, which is sufficient to prove involuntary manslaughter, is not always or necessarily sufficient to prove felony murder. In order to prove felony murder the State is required to prove more: that the underlying felony is an offense of violence, defined inR.C. 2901.01(A)(9) , that is a felony of the first or second degree, and not a violation ofR.C. 2903.03 or2903.04 .While proof of felony murder,
R.C. 2903.02(B) , would always and necessarily prove involuntary manslaughter,R.C. 2903.04(A) , the converse is not true. Proof of involuntary manslaughter is not sufficient to prove felony murder except in those particular cases where an additional requirement is met: the underlying felony is an offense of violence that is a felony of the first or second degree. Because felony murder requires proof of this additional requirement, Dixon‘s equal protection argument lacks merit. Felony murder carries a higher penalty than involuntary manslaughter because the harm involved in committing the underlying offense is greater; an offense of violence that is a felony of the first or second degree, versus any felony. Thus,R.C. 2903.02(B) bears a rational relationship to a legitimate governmental interest, protecting the safety of citizens.
(Emphasis sic.) State v. Dixon, 2d Dist. Montgomery No. 18582, 2002 WL 191582, *3 (Feb. 8, 2002).
{¶ 16} Subsequently, other Ohio appellate districts adopted the Second Appellate District‘s holding and analysis in addressing the issue. See State v. Jones, 8th Dist. Cuyahoga No. 80737, 2002-Ohio-6045; State v. Jennings, 10th Dist. Franklin Nos. 09AP-70 and 09AP-75, 2009-Ohio-6840; see also Collins, 2005-Ohio-1642; and State v. Reeds, 11th Dist. Lake No. 2007-L-120, 2008-Ohio-1781 (both holding that
{¶ 17} The Second Appellate District also found that “[t]he Equal Protection Clause is not violated simply because the defendant is convicted and sentenced under the statute carrying the greater penalty.” Dixon, 2002 WL 191582 at *3. “Rather, equal protection prohibits selective enforcement of criminal laws based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Id.; United States v. Batchelder, 442 U.S. 114, 123-124, 99 S.Ct. 2198 (1979) (when an act violates more than one criminal statute, the government may prosecute under either so long as it does not discriminate against any class of defendants). No such claim has been made by appellant in this case. The state‘s decision to charge appellant with felony murder rather than involuntary manslaughter, therefore, did not violate appellant‘s constitutional rights. Dixon at *3; Jennings at ¶ 94-95 (further finding that
{¶ 18} Finally, we note that contrary to appellant‘s assertion,
{¶ 19} Further, the felony murder statute adequately defines the offense as causing the death of another as the proximate result of committing a first or second degree offense of violence. This differentiates the statute from
{¶ 20} In light of all of the foregoing, appellant‘s assignment of error is overruled.
{¶ 21} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.