[Cite as State v. Boatright, 2017-Ohio-5794.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.    28101

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JEFFREY A. BOATRIGHT                                 COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2015 03 0731

                                  DECISION AND JOURNAL ENTRY

Dated: July 12, 2017



        CARR, Presiding Judge.

        {¶1}     Defendant-Appellant Jeffrey Boatright appeals the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     A few weeks after M.H., an adult, homosexual male, engaged in consensual,

unprotected anal and oral intercourse with Boatright, M.H. developed persistent flu-like

symptoms and went to an emergency room for treatment. Based upon his constellation of

symptoms, M.H. was tested for, and ultimately diagnosed with, HIV. Boatright was also HIV

positive; however, Boatright told M.H., prior to engaging in sexual conduct with M.H., that

Boatright was negative.

        {¶3}     Boatright was indicted on one count of felonious assault in violation of R.C.

2903.11(A)(1). Thereafter, a supplemental indictment was filed adding a charge of felonious

assault in violation of R.C. 2903.11(B)(1). That count alleged that Boatright knowingly engaged
                                                   2


in sexual conduct with M.H. without disclosing to him, prior to engaging in sexual conduct, that

Boatright had tested positive for HIV.

        {¶4}    Upon motion of the State, the first count, based upon R.C. 2903.11(A)(1), was

dismissed. The matter proceeded to a jury trial on count two, at which the primary issue was

whether Boatright knew, at the time he engaged in sexual conduct with M.H., that Boatright had

tested positive for HIV. The jury found Boatright guilty, and the trial court sentenced Boatright

to five years in prison.

        {¶5}    Boatright has appealed, raising seven assignments of error for our review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

        R.C. 2903.11(B)(1) IS UNCONSTITUTIONAL ON ITS FACE AND/OR AS
        APPLIED TO MR. BOATRIGHT IN THAT SAID STATUTE VIOLATES 1)
        THE EQUAL PROTECTION CLAUSE[S] OF THE UNITED STATES AND
        OHIO CONSTITUTIONS; 2) THE FREE SPEECH CLAUSES OF THE FIRST
        AMENDMENT AND SECTION 11, ARTICLE 1, OF THE OHIO
        CONSTITUTION; AND 3) PROHIBITIONS AGAINST DISCRIMINATION
        ON THE BASIS OF DISABILITY, ANY OF WHICH CONSTITUTES ERROR
        REQUIRING REVERSAL OF MR. BOATRIGHT’S CONVICTION.

        {¶6}    Boatright argues in his first assignment of error that R.C. 2903.11(B)(1) is

unconstitutional on its face and as applied.

        {¶7}    “Legislative enactments are afforded a strong presumption of constitutionality.”

State v. Smith, 9th Dist. Wayne No. 15AP0001, 2017-Ohio-359, ¶ 28, citing State v. Collier, 62

Ohio St.3d 267, 269 (1991). “[I]f at all possible, statutes must be construed in conformity with

the Ohio and United States Constitutions.” Collier at 269. “A party asserting that a statute is

unconstitutional must prove that the statute is unconstitutional beyond a reasonable doubt.”

Smith at ¶ 28. “‘The failure to challenge the constitutionality of a statute in the trial court forfeits
                                                  3


all but plain error on appeal, and the burden of demonstrating plain error is on the party asserting

it.’” Id., quoting State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 2.

       {¶8}    Boatright did not raise this issue in the trial court, and has thus, forfeited all but

plain error. See Smith at ¶ 28. While Boatright has mentioned plain error on appeal, he has

failed to develop a plain error argument. See App.R. 16(A)(7); see also M.H. v. J.P., 9th Dist.

Lorain Nos. 15CA010832, 15CA010833, 2017-Ohio-33, ¶ 10. We decline to create an argument

on his behalf and overrule his first assignment of error on that basis.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT DENIED MR. BOATRIGHT’S CRIMINAL RULE 29 MOTION FOR
       ACQUITTAL.

                                 ASSIGNMENT OF ERROR III

       MR. BOATRIGHT’S CONVICTION FOR FELONIOUS ASSAULT IS NOT
       SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE AND MUST BE
       REVERSED.

       {¶9}    Boatright argues in his second assignment of error that the trial court erred in

failing to grant his Crim.R. 29 motion. In his third assignment of error, he asserts that his

conviction was based upon insufficient evidence. Specifically, in both arguments, he asserts that

the State presented insufficient evidence to demonstrate that, prior to engaging in sexual conduct

with M.H., Boatright knew that he had tested positive for HIV. We will limit our analysis

accordingly.

       {¶10} Crim.R. 29(A) provides:

       The court on motion of a defendant or on its own motion, after the evidence on
       either side is closed, shall order the entry of a judgment of acquittal of one or
       more offenses charged in the indictment, information, or complaint, if the
       evidence is insufficient to sustain a conviction of such offense or offenses. The
       court may not reserve ruling on a motion for judgment of acquittal made at the
       close of the state’s case.
                                                 4


          {¶11} When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before

the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279

(1991).

          An appellate court's function when reviewing the sufficiency of the evidence to
          support a criminal conviction is to examine the evidence admitted at trial to
          determine whether such evidence, if believed, would convince the average mind
          of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is
          whether, after viewing the evidence in a light most favorable to the prosecution,
          any rational trier of fact could have found the essential elements of the crime
          proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

          {¶12} R.C. 2903.11(B)(1) states that, “[n]o person, with knowledge that the person has

tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall

knowingly * * * [e]ngage in sexual conduct with another person without disclosing that

knowledge to the other person prior to engaging in the sexual conduct[.]” “A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a

certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” Former R.C. 2901.22(B).

          {¶13} The record reflects that, prior to November 13, 2014, M.H. and Boatright were

just friends and would text each other often. Because M.H. was having problems with his

boyfriend and wanted to have “fun,” he contacted Boatright and went over to his house around

11 p.m. on November 13, 2014. The two had a few alcoholic drinks and watched TV. Boatright

then asked M.H. to give him a massage. M.H. declined because he knew Boatright had a

boyfriend. However, M.H. came to discover that Boatright and his boyfriend were having

problems.
                                                5


       {¶14} Shortly thereafter, M.H. left and went downtown, but, before long, returned to

Boatright’s house. Boatright began to make sexual advances and M.H. began to ask Boatright

about his sexual history. Boatright indicated that he last had sex with someone in September

2014, was tested for sexually transmitted diseases, including HIV, shortly thereafter, and that the

result “was negative.” After that discussion, the two engaged in unprotected, consensual anal

and oral intercourse; Boatright penetrated M.H. orally and anally.         Afterwards, M.H. went

home and the two never engaged in sex again.

       {¶15} M.H. testified that, prior to that night, M.H.’s last HIV test was the summer of

2013, and it was negative. Approximately a week and a half after M.H. and Boatright had sex,

M.H. began to develop flu-like symptoms. About a week after that, M.H. presented to an

emergency room as he was still suffering from flu-like symptoms. Based upon his history and

symptoms, doctors ordered an HIV test. Both the preliminary and confirmatory tests came back

positive for HIV.

       {¶16} M.H. contacted Boatright while M.H. was waiting for his test results and told

Boatright there was a possibility he gave M.H. HIV. Boatright again stated he was HIV negative

and said he was sorry M.H. had to go through the situation. After M.H. got his results, he again

spoke to Boatright. Boatright kept saying how sorry he was but never stated that he had been

deceptive about his HIV status. However, at the end of their conversation, M.H. testified that

Boatright stated, “I’m sorry, man. I lied.”

       {¶17} After M.H. received his test results, he kept stating that he did not want to live life

having HIV. In light of those statements, as a precaution, M.H. was admitted to a psychiatric

unit for observation.
                                                6


       {¶18} With respect to when Boatright had knowledge that he was infected with HIV, the

State presented witnesses who worked at CSL Plasma and Summit County Public Health

(“Health Department”). The testimony indicated that Boatright had been a plasma donor at CSL

Plasma since 2008.     The center manager of CSL Plasma, Joseph Jacko, testified that the

company screens blood for HIV, hepatitis, other sexually transmitted diseases, and drugs of

abuse. The initial testing is performed in Knoxville, Tennessee, and if the sample tests positive,

it is sent for a confirmatory test at a different laboratory in North Carolina. If the sample tests

positive for HIV, the donation associated with the sample would be destroyed and the state

health department would be notified. He indicated that donors were paid between $20 and $50

for donating.

       {¶19} He further testified that, prior to donation, donors have to complete a

questionnaire. Some of those questions are designed to identify donors who engage in “high risk

activities.” Donors who are determined to engage in high-risk activities are not allowed to

donate. For example, if a male donor indicates that he has had sex with other men, he is

disqualified from donating.

       {¶20} Boatright donated plasma on August 22, 2011, and August 25, 2011. As part of

the August 22, 2011 donation, Boatright indicated on the questionnaire that he was not in an

increased risk group, and that he had not had sex with another man.

       {¶21}    The August 22, 2011 donation tested positive for HIV in the preliminary test on

August 30, 2011, and that result was confirmed on September 2, 2011. CSL Plasma sent out a

certified letter to Boatright on September 2, 2011, but it was returned. Additionally, Boatright

was called on October 13, 2011, but there was no response.
                                                7


       {¶22} Leanne Beavers, the Assistant Director of Community Health with the Health

Department, testified that Boatright’s positive results were first entered into the Ohio Disease

Reporting System on September 15, 2011. She testified that any positive HIV test is reported to

the appropriate local health department. The Health Department’s records indicate that, with

respect to Boatright’s positive HIV results, one of the Health Department’s employees called

Boatright on September 2, 2011, but there was no response, and a letter was mailed to him

September 6, 2011. The letter, however, was returned indicating that there was no such address

on that street. The records further indicate that Boatright was twice scheduled to come into the

Health Department for an appointment, the purpose of which was to inform him of his HIV

diagnosis and link him to care, but he did not show up for either appointment. When the

employee attempted to reschedule again, the phone was not answered. After that, the case was

closed. Ms. Beavers indicated that the policy of the Health Department was that employees were

not allowed to give test results over the phone; instead, results had to be given to the individual

at a face-to-face meeting. She also indicated that, prior to the in-person visit, the patient would

only “know that there’s a problem” and the patient needs to be seen “face to face.”

       {¶23} On December 12, 2012, Boatright returned to CSL Plasma and was counseled

about his test results. Bonnie Chapman, who at the time was a registered nurse who worked for

CSL Plasma, testified that she counseled Boatright. Specifically, she testified that CSL Plasma’s

policy for counseling donors who tested positive for HIV was that the donor would be brought

into a room, the donor would be told about the positive HIV test, the person’s address would be

confirmed, he or she would be asked if the donor had engaged in sexual activity with any other

donors, he or she would be informed that the donor can no longer donate, and the person would

be told to go immediately to his or her health care provider for follow-up testing and care.
                                                8


Further, the donor would be given a form that states that the person tested positive for HIV and

provides other relevant information; that form does not include personal identifying information

for privacy reasons. That counseling session would be documented in an electronic record. Ms.

Chapman then testified about her counseling session with Boatright on December 12, 2012, and

the supporting electronic documentation. She confirmed that she told Boatright on December

12, 2012, that he was positive for HIV and gave him the appropriate form. Ms. Chapman

testified that, from her recollection, when she told Boatright he had tested positive for HIV, she

was expecting a reaction but did not get one. Instead, he said, “Okay; and he left.”

       {¶24} Based on the evidence discussed above, we conclude that the trial court did not

err in denying Boatright’s Crim.R. 29 motion, and also conclude that, when the evidence is

viewed in a light most favorable to the State, sufficient evidence was presented whereby a jury

could reasonably conclude that Boatright knew that he had tested positive for HIV prior to

engaging in sexual conduct with M.H. If believed, Ms. Chapman’s testimony evidences that

Boatright was told that he tested positive for HIV on December 12, 2012. Boatright engaged in

sexual conduct with M.H. in November 2014. Prior to engaging in sexual conduct with M.H.,

Boatright did not inform M.H. that Boatright had tested positive for HIV.

       {¶25} Boatright’s second and third assignments of error are overruled.

                                ASSIGNMENT OF ERROR IV

       MR. BOATRIGHT’S CONVICTION FOR FELONIOUS ASSAULT IS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE
       REVERSED.

       {¶26} Boatright argues in his fourth assignment of error that his conviction is against

the manifest weight of the evidence. Specifically, he maintains that, with respect to the issue of
                                                 9


his knowledge of the HIV test results, the defense testimony was more credible than the

testimony presented by the State.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must 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 the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶27} Boatright presented two witnesses in support of his case: himself and Frank Osco

with the Health Department.

       {¶28} Boatright testified that since 2008 he has either worked for, or volunteered at, the

Akron AIDS Collaborative. He stated that he was an outreach worker. His responsibilities

included counseling young people about the prevention and detection of HIV and also assisting

newly diagnosed HIV patients with receiving treatment and care. The organization would also

host community events to educate teenagers. Boatright testified that, once he started working

there, he was regularly tested for HIV.

       {¶29} Boatright testified that he began donating plasma in 2007 or 2008. He denied

doing it for the money, and instead testified that he did it because the plasma was used to make

medications. Boatright admitted to lying on the CSL Plasma questionnaire about his sexual

history. He said he did so because he wanted to help people and did not think that his sexual

orientation should prevent him from donating.

       {¶30} Following his donations in August 2011, Boatright averred that he never received

a letter or any phone call from the Health Department. When he returned to CSL Plasma on

December 12, 2012, to donate again, he admits he was informed that he was unable to donate

because of unsuitable test results. However, he maintained, that he was never told what the
                                                10


results were or why they were unsuitable. He believed that the unsuitable results could have

been for any number of reasons, including too much protein in his blood. He indicated that he

was never told by Ms. Chapman or anyone else at CSL Plasma that he was HIV positive, and he

never received a form or a copy of a test result stating he was HIV positive. Boatright also

testified that he never exhibited any symptoms typically associated with HIV since 2011. If he

had been informed that he was HIV positive in 2011 or 2012, Boatright stated that he would have

begun treatment at that time.

       {¶31} Boatright admitted during his testimony that his partner, whom he was dating at

the time he engaged in sexual conduct with M.H., tested positive for HIV in March 2013. The

parties also entered into a stipulation with respect to this fact. Boatright stated that, after he

learned of the diagnosis, the two men waited to have sex until after his boyfriend’s viral load was

undetectable and also used condoms. Boatright acknowledged that he lied to Mr. Osco when

Boatright told Mr. Osco that his partner was negative for HIV.

       {¶32} Boatright testified that he engaged in oral and anal intercourse with M.H. on

November 13, 2014. He stated that he did not use a condom because he thought he was HIV

negative. He acknowledged that he and M.H. discussed their respective HIV statuses that night.

A couple of weeks later, M.H. contacted Boatright and told him that he needed to see a doctor as

there was a possibility that he had HIV. After Boatright’s at-home HIV test came back positive,

he then went to the Health Department for testing.

       {¶33} Mr. Osco, a registered nurse with the Health Department, testified that in

December 2014, Boatright came to the Health Department and requested HIV testing because he

was informed that one of his sexual contacts was hospitalized with an HIV diagnosis, and

because the home test Boatright took thereafter was positive. Mr. Osco indicated that both
                                                 11


Boatright’s preliminary and confirmatory HIV tests were positive. Mr. Osco also discovered the

prior 2011 positive result while researching Boatright in the Ohio Disease Reporting System.

When Mr. Osco informed Boatright of the results in early 2015, Boatright became emotional and

seemed very sincere. Boatright told Mr. Osco that he had been in a relationship for two years

and the only other person he had sexual contact with was M.H. Boatright declined to name his

partner, but indicated that he had told the partner about the possibility Boatright had HIV and his

partner had thereafter tested negative. Mr. Osco testified that he informed Boatright of the prior

positive result, and Boatright maintained that he was never contacted by anyone about it.

       {¶34} After a thorough, independent review of the record, we conclude that the jury did

not lose its way in finding Boatright guilty of felonious assault. The jury was presented with two

competing views of the evidence. Ms. Chapman clearly testified that she informed Boatright in

2012 that he had tested positive for HIV. Boatright denied that he ever received that information

and averred that he had no knowledge he had tested positive for HIV prior to engaging in sexual

conduct with M.H. Boatright testified about his work in the community to prevent and educate

people about HIV and AIDS and about his knowledge of the importance of testing and receiving

prompt treatment. He also presented Mr. Osco’s testimony, which, if believed, could evidence

that Boatright was surprised by the HIV diagnosis in 2015. However, the jury also heard about

the multiple instances in which Boatright lied. He lied on the CSL Plasma questionnaires and to

Mr. Osco about Boatright’s partner’s HIV status. Additionally, M.H. testified that, following his

diagnosis, Boatright apologized for lying. “This Court has consistently held that the trier of fact

is in the best position to evaluate the credibility of witnesses and resolve factual disputes.” State

v. Bardos, 9th Dist. Medina No. 15CA0082-M, 2016-Ohio-8091, ¶ 16. While the State and

defense presented sharply contrasting stories at trial, this Court will not overturn the jury’s
                                                 12


verdict on a manifest weight of the evidence challenge merely because the trier of fact opted to

believe the testimony of a particular witness. Id. Under these circumstances, and in light of the

argument made on appeal, we cannot say that the trier of fact lost its way and committed a

manifest miscarriage of justice in finding Boatright guilty of felonious assault.

       {¶35} Boatright’s fourth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
       STRUCTURAL, REVERSIBLE AND/OR PLAIN ERROR BY FAILING TO
       FURNISH PROPER JURY INSTRUCTIONS.

       {¶36} Boatright argues in his fifth assignment of error that the trial court abused its

discretion and committed plain and/or structural error in failing to furnish proper jury

instructions. Specifically, Boatright appears to argue that the trial court should have used the

dictionary definition of “knowledge[,]” as opposed to the definition of knowledge contained

within the definition of “knowingly” in former R.C. 2901.22(B).1

       {¶37} “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.

Although trial courts enjoy broad discretion in fashioning jury instructions, they must present a

correct, pertinent statement of the law that is appropriate to the facts.” (Internal quotations and

citations omitted.)   State v. Jackson, 9th Dist. Summit No. 27739, 2017-Ohio-278, ¶ 23.

However, errors in jury instruction can be harmless. See State v. Penix, 9th Dist. Summit No.

23699, 2008-Ohio-1051, ¶ 29.




       1
        While Boatright mentions that the trial court should have instructed the jury that
knowledge was common enough that it did not require an instruction, he has not further
developed this argument, and we decline to develop an argument for him. See App.R. 16(A)(7).
                                                 13


       {¶38} R.C. 2903.11(B)(1) states that “[n]o person, with knowledge that the person has

tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall

knowingly * * * [e]ngage in sexual conduct with another person without disclosing that

knowledge to the other person prior to engaging in the sexual conduct[.]” Accordingly, both

“knowledge” and “knowingly” are elements of the offense.

       {¶39} At trial, defense counsel objected to the definition of knowledge proposed by the

trial court, which was based upon the portion of the definition of “knowingly” contained in

former R.C. 2901.22(B) that states “[a] person has knowledge of circumstances when he is aware

that such circumstances probably exist.” Defense counsel argued that inclusion of language

involving probability was inappropriate.      While the dictionary definition of the term was

discussed, it did not appear that, after hearing that definition, defense counsel supported giving

that definition either. After reading the dictionary definition, the trial court remarked that it was

unsure what that definition meant, and defense counsel commented that it “[m]eans that the

dictionary is written about as good as the law.” Then near the end of the discussion, defense

counsel stated that he didn’t think the term needed to be defined. Thus, while the record is clear

that defense counsel objected to the trial court’s proposed version, it does not appear that defense

counsel preserved an argument that the dictionary definition should have been given. Moreover,

we cannot say that the dictionary definition advocated by Boatright on appeal and considered by

the trial court at trial is clear given that it repeatedly uses the word knowledge in defining

knowledge.2



       2
         The dictionary definition as detailed by the trial court is as follows: “Knowledge. The
state or fact of knowing. Knowing is possessing knowledge, intelligence, or information.
Possessing knowledge, information, or understanding. Possessing knowledge, information. And
then knowledge is a state of mind.”
                                                14


       {¶40} Instead, the trial court instructed the jury on knowledge as follows:

       Since you cannot look into the mind of another, knowledge is determined from all
       the facts and circumstances in evidence. You’ll determine from these facts and
       circumstances whether there existed at the time in the mind of the Defendant an
       awareness of the probability that he had tested positive as a carrier of a virus that
       causes Acquired Immunodeficiency Syndrome[.]

       You will also determine from these facts and circumstances whether there existed
       at the time in the mind of the Defendant an awareness of the probability that he
       engaged in sexual conduct with [M.H.] without disclosing the knowledge that he
       had tested positive as a carrier of a virus that causes Acquired Immunodeficiency
       Syndrome * * * prior to engaging in such sexual conduct.

       {¶41} Given Boatright’s limited argument, we cannot say that the trial court committed

reversible error in giving the foregoing instruction.     Boatright has not pointed to any law

indicating the definition of knowledge contained within the definition of knowingly in former

R.C. 2901.22(B) was inappropriate to give under these circumstances or that the other related

language used by the trial court was erroneous. See State v. Kearns, 10th Dist. Franklin No.

15AP-244, 2016-Ohio-5941, ¶ 9, 20-28 (concluding, in a case involving disseminating matter

harmful to juveniles with knowledge of the material’s character or content, the appropriate

definition of knowledge was the one contained in the version of R.C. 2901.22(B) in effect at the

time of the offense); see also State v. Teamer, 82 Ohio St.3d 490, 492 (1998) (discussing that

“the element of knowledge” is determined from the facts and circumstances of the case and

involves an awareness of probability).

       {¶42} Based on the foregoing, Boatright’s fifth assignment of error is overruled.

                                ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
       REVERSIBLE ERROR AND/OR PLAIN ERROR WHEN IT SENTENCED
       MR. BOATRIGHT TO A FIVE (5) YEAR PRISON SENTENCE CONTRARY
       TO APPLICABLE SENTENCING STATUTES.
                                                  15


          {¶43} Boatright argues in his sixth assignment of error that the trial court committed

reversible error and/or plain error in sentencing Boatright to five years in prison contrary to the

purposes of felony sentencing as contained in R.C. 2929.11.

          {¶44} “In reviewing a felony sentence, ‘[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.’” State v. Howard, 9th Dist. Lorain No.

15CA010857, 2016-Ohio-7077, ¶ 5, quoting R.C. 2953.08(G)(2). “[A]n appellate court may

vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence that: (1) the record does not support the trial court’s findings under relevant statutes, or

(2) the sentence is otherwise contrary to law.” (Internal quotations omitted.) Howard at ¶ 5,

quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. “Clear and convincing

evidence is that which will produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.” (Internal quotations and citations omitted.) Howard at ¶ 5.

          {¶45} Boatright was convicted of violating R.C. 2903.11(B)(1), a felony of the second

degree.     See R.C. 2903.11(D)(1)(a).     Pursuant to R.C. 2929.14(A)(2), the trial court was

authorized to sentence Boatright to two, three, four, five, six, seven, or eight years in prison.

Thus, the trial court’s sentence of five years in prison fell within the statutorily authorized range.

          {¶46} To the extent Boatright argues that the trial court, nonetheless, committed

reversible error in sentencing Boatright to five years in prison, we conclude that we are unable to

fully evaluate his argument because the presentence investigation report, the statements by

Boatright’s friends, and the victim impact statement, which the trial court considered in

sentencing Boatright, have not been included in the record on appeal. “It is the appellant’s

responsibility to ensure that the record on appeal contains all matters necessary to allow this

Court to resolve the issues on appeal.” State v. Farnsworth, 9th Dist. Medina No. 15CA0038-M,
                                                 16


2016-Ohio-7919, ¶ 16, citing App.R. 9. “This Court has consistently held that, where the

appellant has failed to provide a complete record to facilitate appellate review, we are compelled

to presume regularity in the proceedings below and affirm the trial court’s judgment.”

Farnsworth at ¶ 16. In cases such as this where the presentence investigation report and other

documents are necessary to enable an appropriate review of the propriety of the sentence,

Boatright’s failure to ensure that the record includes those documents requires a presumption of

regularity in the sentencing proceedings. See id. In light of the incomplete record on appeal,

Boatright’s sixth assignment of error is overruled.

                                ASSIGNMENT OF ERROR VII

       MR. BOATRIGHT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

       {¶47} Boatright argues in his seventh assignment of error that he was denied the

effective assistance of trial counsel. Specifically, he argues that his trial counsel was ineffective

for failing to challenge the constitutionality of R.C. 2903.11(B)(1) and in failing to object to the

five year prison sentence.

       {¶48} “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668,

686 (1984). Thus, a two-prong test is necessary to examine such claims. First, Boatright must

show that counsel’s performance fell below an objective standard of reasonable representation.

State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland, 466 U.S. at 687. Second,

Boatright must demonstrate that he was prejudiced by the deficient performance by

demonstrating that, but for counsel’s errors, there is a reasonable probability that the results of

the trial would have been different. Keith at 534. An appellant’s failure to satisfy one prong of
                                                 17


the test negates a reviewing court’s need to consider the remaining prong. State v. Madrigal, 87

Ohio St.3d 378, 389 (2000).

          {¶49} We note that with respect to both claims of ineffective assistance, Boatright has

made only a very general, undeveloped argument. See App.R. 16(A)(7).

          {¶50} With respect to trial counsel’s failure to challenge the constitutionality of the

statute, we note that Boatright has not referred us to any case that has held R.C. 2903.11(B)(1) to

be unconstitutional, nor is this Court aware of any. Moreover, at least one district has concluded

the statute is constitutional. See State v. Batista¸1st Dist. Hamilton No. C-150341, 2016-Ohio-

2848 (concluding the statute did not violate the Equal Protection Clause or the First

Amendment). We also remain mindful that “[l]egislative enactments are afforded a strong

presumption of constitutionality.” Smith, 2017-Ohio-359, at ¶ 28, citing Collier, 62 Ohio St.3d

at 269. Given the foregoing, we cannot say that Boatright has demonstrated that his trial

counsel’s performance fell below an objective standard of reasonable representation. See Keith

at 534.

          {¶51} With respect to Boatright’s contention that his trial counsel was ineffective for

failing to object to the five year prison term, based on the limited record on appeal, we likewise

cannot determine that Boatright’s trial counsel’s representation was deficient. In the absence of

the complete record, we are required to presume regularity in the proceedings and affirm the trial

court’s judgment. See Farnsworth, 2016-Ohio-7919, at ¶ 16.

          {¶52} Accordingly, as Boatright has not demonstrated that his trial counsel’s

representation was deficient, Boatright has not demonstrated that he received ineffective

assistance of trial counsel. See Madrigal, 87 Ohio St.3d at 388-389.

          {¶53} Boatright’s seventh assignment of error is overruled.
                                                18


                                                III.

       {¶54} Boatright’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.
                                          19


APPEARANCES:

JAMES K. REED, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
