State v. Costell

2021 Ohio 4363

• Court: Ohio Court of Appeals
• Decided: December 13, 2021
• Docket: 14-21-02
• Status: Published

Opinion

[Cite as State v. Costell, 2021-Ohio-4363.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO, CASE NO. 14-21-02 PLAINTIFF-APPELLEE,

v.

JON J. COSTELL, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2014-CR-0127

Judgment Affirmed

Date of Decision: December 13, 2021

APPEARANCES:

Addison M. Spriggs for Appellant

Samantha Hobbs for Appellee Case No. 14-21-02

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Jon J. Costell (“Costell”) appeals the judgment of

the Union County Court of Common Pleas, arguing that his petition for

postconviction relief was not barred by res judicata and that his petition set forth

substantive grounds for relief. For the reasons set forth below, the judgment of the

trial court is affirmed.

Facts and Procedural History

{¶2} On September 25, 2013, Costell called the police to his residence to

report that his wife, Debra L. Costell (“Debra”), was not breathing. Doc. 15. When

emergency services arrived at the residence, they pronounced Debra dead at the

scene. Doc. 15. April 13, Vol. II Tr. 213. Before her death, Debra had spent a

number of years as a paraplegic who was bedridden and under the care of Costell.

Doc. 15. Paul L. Slaughter (“Slaughter”), an investigator with the Union County

Coroner’s Office, visited Costell’s residence. April 13, Vol. II Tr. 246. After

examining the living area, Slaughter told Costell that he did not, at that time, see a

need for an autopsy to be performed on Debra. Id.

{¶3} However, several home healthcare workers, who had assisted Costell in

caring for Debra, reported that they had seen Costell behave abusively towards

Debra. April 13, Vol. II Tr. 250. These reports led Dr. David Applegate, who was

the Union County Coroner, to order an autopsy on Debra. Id. Slaughter then called

Costell to inform him that an autopsy had been ordered for Debra. Id. at 250-252.

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Slaughter stated that Costell was agitated; talked for thirty to forty minutes; insisted

that he had done nothing wrong; and said that there was no need for an autopsy. Id.

at 252, 254. Debra’s autopsy revealed that she died “as a result of an acute

intoxication by the combined effects of sertraline (more commonly known as

Zoloft) and tramadol.” Doc. 15.

{¶4} During the course of their investigation, the police determined that

Costell was the only person who had been with Debra in between September 23,

2015 and her death; that Debra was unable to retrieve the medication by herself; that

Costell “provided the medication to Debra”; and that Costell “did not mistakenly

give the wrong medication.” Doc. 15. Costell was subsequently charged with one

count of aggravated murder in violation of R.C. 2903.01(A); one count of failing to

provide for a functionally impaired person in violation of R.C. 2903.16(A); one

count of domestic violence in violation of R.C. 2919.25(B); and one count of

involuntary manslaughter in violation of R.C. 2903.04(A). Doc. 1.

{¶5} At trial, the State called several witnesses to testify about Debra’s cause

of death. Dr. Kenneth Gerston (“Dr. Gerston”), a deputy coroner in Franklin

County, testified that he performed Debra’s autopsy. April 15 Tr. 16. He testified

that Debra had no indication of liver disease or kidney disease. Id. at 25-26. Debra’s

heart was “slightly enlarged,” but he confirmed that there were no signs of a heart

attack. Id. at 30-31. Dr. Gerston noted that Debra’s lungs showed signs that she

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“had some emphysema.” Id. at 24. However, he could not determine Debra’s cause

of death from the anatomical findings in the autopsy. Id. at 27-28.

{¶6} Dr. Gerston testified that he then examined the contents of the

toxicology report. April 15 Tr. 27-28. He stated that this report indicated that Debra

had a “high level of Sertraline” and “a toxic to lethal level of tramadol” in her

system. Id. at 27-28. Based on these concentrations of drugs in her system, Dr.

Gerston then concluded that Debra’s cause of death was “acute intoxication by the

combined effects of Sertraline and Tramadol.” Id. at 28. He explained that “acute

mean[t] that [her death] * * * would occur within a short time, say hours.” Id. at

28.

{¶7} On cross-examination, Dr. Gerston stated that he did not receive copies

of all of Debra’s medical records at the time he conducted the autopsy because this

was an out of county death. April 15 Tr. 32. However, he was aware that Debra

was a “paraplegic, had diabetes, and was oxygen dependent.” Id. at 33. The

Defense also inquired into whether the level of drugs would be elevated if Debra’s

body was not metabolizing these substances properly. Id. at 36-37. Dr. Gerston

replied that there were no indications that Debra’s liver or kidneys were not

functioning properly or were not capable of metabolizing these substances. Id. He

further testified that the most “common cause” of these elevated concentrations of

Sertraline and Tramadol “would be an overdose.” Id. at 37.

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{¶8} When asked about the level of Tramadol found in Debra’s system, Dr.

Gerston stated that he was “not sure exactly what the actual—it varies from book to

book, but I believe this would be approximately two times the amount that you

would expect to find—more than two times.” April 15 Tr. 44. He stated that

Tramadol level alone could have been lethal but that “[i]t depends on the individual.

Some individuals react differently to it, depending on the length of time they’re

taking the drug.” Id. at 46. His concluded that these of levels Sertraline and

Tramadol caused Debra’s death. Id. at 28, 43.

{¶9} Dr. Laureen Marinetti (“Dr. Marinetti”), who worked for the

Montgomery County Coroner’s Office as the chief toxicology in the forensic

toxicology laboratory, reviewed the autopsy and toxicology reports for Debra. April

15 Tr. 47-48, 53. She testified that Debra’s level of Sertraline “was approximately

11 times higher than the high end of the range.” Id. at 57. The level of Tramadol

was “five times higher than what would be expected.” Id. at 58-59. Dr. Marinetti

stated that these levels of these drugs were not consistent with the prescribed

dosages. Id. at 61. She also confirmed that the presence of metabolites in Debra’s

system indicated that her liver was processing these drugs. Id. at 62.

{¶10} On cross-examination, Dr. Marinetti stated that she was not informed

that Debra had Wernicke-Korsakoff syndrome and that she did not account for this

condition in her analysis. April 15 Tr. 63. She also stated that she did not have all

of Debra’s medical records at the time she was reviewing the toxicology and autopsy

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reports. Id. The Defense informed Dr. Marinetti that Dr. Gerston had testified that

the level of Tramadol was twice as high as what he expected and that the Sertraline

was “slightly higher than normal.” Id. at 44-45, 65. In response, Dr. Marinetti stated

that the level of Sertraline was beyond the therapeutic range. Id. at 65. She also

confirmed that, based on the published ranges that she reviewed, the level of

Tramadol in Debra’s system was five times “the acceptable limit.” Id.

{¶11} On redirect examination, she testified that the concentrations of

Sertraline and Tramadol in Debra’s system were “toxic to lethal” and that the “side

effects being produced are going to be serious in nature, both on the brain and the

heart.” April 15 Tr. 67. She further testified that these concentrations of these drugs

“can have a toxic effect on a heart that is already enlarged.” Id. at 69. She affirmed

that these drugs were capable of causing Debra’s death. Id. After the State rested,

the Defense did not call any medical experts.

{¶12} After his trial, the jury found Costell guilty of all four charges. Doc.

110-112. On April 20, 2015, Costell was sentenced on one count of aggravated

murder and on one count of domestic violence.1 Doc. 115. On May 13, 2015,

Costell filed his direct appeal with this Court. Doc. 126. In his direct appeal, he

“submit[ted] a laundry list of 18 instances that he allege[d] demonstrate[d] that his

trial counsel was ineffective during trial.” State v. Costell, 3d Dist. Union No. 14-

1 The charges of failing to provide for a functionally impaired person and involuntary manslaughter were merged with the charge of aggravated murder at sentencing. Doc. 115.

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15-11, 2016-Ohio-3386, ¶ 145. On June 13, 2016, this Court released a decision

that affirmed the judgment of the trial court. Id.

{¶13} On August 9, 2016, Costell filed a petition for postconviction relief

(“petition”). Doc. 136. Attached to this petition were two reports that had been

authored by two different doctors. Doc. 136, Ex. A, B. The authors of these reports

stated that, in their opinions, Debra’s death was not caused by the combined effects

of Sertraline and Tramadol but by her other health conditions. Doc. 136, Ex. A, B.

On the basis of these opinions, Costell argued that his counsel was ineffective for

failing to file a Daubert challenge of the State’s medical experts; failing to consult

with experts; failing to investigate the medical evidence; and failing to present

expert testimony. Doc. 136. He asserted that these ineffective assistance of counsel

claims constituted substantive grounds for relief. Doc. 136.

{¶14} On January 12, 2021, the trial court reached a determination on this

petition. Doc. 154. The trial court found that Costell had not demonstrated that he

had been deprived of his right to the effective assistance of counsel and that these

claims were barred by res judicata. Doc. 154. Costell filed his notice of appeal on

February 5, 2021. Doc. 157. On appeal, he raises the following two assignments

of error:

First Assignment of Error

The trial court abused its discretion when it determined that res judicata bars consideration of Jon’s postconviction petition.

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Second Assignment of Error

The trial court abused its discretion by finding that no new credible evidence supported Jon’s postconviction grounds for relief.

For the sake of analytical clarity, we will evaluate Costell’s second assignment of

error before his first assignment of error.

{¶15} Costell argues that the two reports attached to his petition establish

that he was denied his right to the effective assistance of counsel and, therefore, set

forth substantive grounds for relief.

Legal Standard

{¶16} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.

Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10. “Postconviction

review is not a constitutional right, but is a collateral civil attack on a judgment that

is governed solely by R.C. 2953.21.” State v. Keith, 176 Ohio App.3d 260, 2008-

Ohio-741, 891 N.E.2d 1191, ¶ 24 (3d Dist.). “Any person convicted of a criminal

offense who claims that there was a denial or infringement on his rights to such a

degree as to render the judgment void or voidable may file a petition for post-

conviction relief.” State v. Gaddy, 3d Dist. Allen No. 1-20-41, 2021-Ohio-637, ¶ 6,

citing R.C. 2953.21(A)(1)(a)(i).

{¶17} In general, to be timely filed, a petition for postconviction relief must

be filed with the trial court “no later than three hundred sixty-five days after the date

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on which the trial transcript is filed in the court of appeals in the direct appeal of the

judgment of conviction * * *.” R.C. 2953.21(A)(2)(a).

The court shall consider a petition that is timely filed within the period specified in division (A)(2) of this section * * * even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A)(1)(a)(i), (ii), (iii), or (iv) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript. * * *

R.C. 2953.21(D). Thus, “[a] petitioner is not entitled to an evidentiary hearing

simply because he or she filed a petition for post-conviction relief.” State v. Bender,

3d Dist. Union No. 14-21-01, 2021-Ohio-1931, ¶ 7, citing State v. Lewis, 3d Dist.

Logan No. 8-19-08, 2019-Ohio-3031, ¶ 11.

{¶18} “A petition for post-conviction relief does not provide a petitioner a

second opportunity to litigate his conviction * * *.” State v. Cox, 5th Dist.

Muskingum No. CT2018-0075, 2019-Ohio-521, ¶ 11. Thus, “it is longstanding

Ohio law that ‘res judicata [is] a proper basis upon which to dismiss without hearing

an R.C. 2953.21 petition.’” State v. Artis, 3d Dist. Logan No. 8-21-12, 2021-Ohio-

2296, ¶ 14, quoting State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982).

Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process

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that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.

State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-5669, ¶ 13, quoting State

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

Generally, an issue which was or could have been raised on direct appeal is not appealable in a petition for postconviction relief, because it is barred by res judicata. State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67. If an ineffective assistance of counsel issue concerns a matter outside the record, however, the appellate court could not consider it on direct appeal because the court can only consider matters contained in the record. State v. Smith (1985), 17 Ohio St.3d 98, 101, fn. 1, 477 N.E.2d 1128. Although ineffective assistance of counsel ordinarily should be raised on direct appeal, therefore, res judicata does not bar a defendant from raising this issue in a petition for postconviction relief if the claim is based on evidence outside the record. This principle applies even when the issue of ineffective assistance of counsel was raised on direct appeal.

State v. Jones, 8th Dist. Cuyahoga No. 83601, 2004-Ohio-3868, ¶ 6. See State v.

Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, fn. 5.

Where ineffective assistance of counsel is alleged in a petition for postconviction relief, the defendant, in order to secure a hearing on his petition, must proffer evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney’s essential duties to his client but also that said violation was prejudicial to the defendant. State v. Jackson, [64 Ohio St.2d 107, 413 N.E.2d 819]; State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623 [(vacated in part on other grounds)]; see State v. Hester, [45 Ohio St.2d 71, 341 N.E.2d 304 (1976)]. Generally, the introduction in an R.C. 2953.21 petition of evidence dehors the record of ineffective assistance of counsel is sufficient, if not to mandate a hearing, at least to avoid dismissal on the basis of res judicata.

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Cole at 114. See State v. Hill, 10th Dist. Franklin No. 21AP-16, 2021-Ohio-3899,

¶ 15 (“To warrant an evidentiary hearing, the petitioner bears the initial burden of

providing evidence that demonstrates a cognizable claim of constitutional error.”).

{¶19} “Under Ohio law, ‘a properly licensed attorney is presumed to carry

out his duties in a competent manner.’” State v. Harvey, 3d Dist. Marion No. 9-19-

34, 2020-Ohio-329, ¶ 57, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993

WL 270995 (July 22, 1993). “For this reason, the appellant has the burden of

proving that he or she was denied the right to the effective assistance of counsel.”

State v. Cartlidge, 3d Dist. Seneca No. 13-19-44, 2020-Ohio-3615, ¶ 39. “In order

to prove an ineffective assistance of counsel claim, the appellant must carry the

burden of establishing (1) that his or her counsel’s performance was deficient and

(2) that this deficient performance prejudiced the defendant.” State v. McWay, 3d

Dist. Allen No. 1-17-14, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶20} In order to establish deficient performance, the appellant must

demonstrate that trial “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting

Strickland at 687. “[D]ebatable trial tactics do not establish ineffective assistance

of counsel.” State v. Queen, 3d Dist. Logan No. 8-19-41, 2020-Ohio-618, ¶ 14,

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quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶

101.

{¶21} In order to establish prejudice, “the defendant must show a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶

36, quoting State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.). If the

appellant does not establish one of these two prongs, the appellate court does not

need to consider the facts of the case under the other prong of the test. State v.

Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State v. Walker,

2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.).

{¶22} On appeal, we review a trial court’s decision to dispose of a petition

for postconviction relief without an evidentiary hearing for an abuse of discretion.

State v. Liles, 3d Dist. Allen No. 1-16-33, 2017-Ohio-240, ¶ 10, quoting State v.

Jeffers, 10th Dist. Franklin No. 10AP-1112, 2011-Ohio-3555, ¶ 23. “An abuse of

discretion is not merely an error of judgment.” State v. Sullivan, 2017-Ohio-8937,

102 N.E.3d 86, ¶ 20 (3d Dist.). “Rather, an abuse of discretion is present where the

trial court’s decision was arbitrary, unreasonable, or capricious.” State v. Kleman,

3d Dist. Hardin No. 6-19-01, 2019-Ohio-4404, ¶ 18, quoting Howton, supra, at ¶

23.

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Legal Analysis

{¶23} In this case, the transcript for Costell’s direct appeal was filed with

this Court on August 10, 2015. Doc. 134. Tr. 1. He then filed his petition for

postconviction relief on August 9, 2016. Doc. 136. Thus, while the trial court did

not issue a ruling on his petition until January 12, 2021, Costell did timely file his

petition. Doc. 154, 136. Based on the contents of his petition, Costell argues, on

appeal, that he was denied his right to the ineffective assistance of counsel because

his attorney failed to (1) “file a Daubert challenge” (2) “consult with experts,” (3)

“investigate the medical evidence,” and (4) “present exculpatory expert testimony.”

(Italics added.) Appellant’s Brief, 14. See Doc. 136.

{¶24} While ineffective assistance of counsel claims are generally to be

raised on direct appeal, Costell has attached two reports that were produced after his

trial by two alleged medical experts who examined Debra’s medical records and

autopsy reports. Doc. 136, Ex. A, B. See Jones, 2004-Ohio-3868, at ¶ 6. Since

these two reports were not in the record, Costell could not have raised arguments

based on their contents in his direct appeal. Thus, res judicata does not bar Costell’s

timely filed petition for postconviction relief. State v. Krzywkowski, 8th Dist.

Cuyahoga Nos. 83599, 83842, and 84056, 2004-Ohio-5966, ¶ 11-15.

{¶25} However, this does not mean that Costell has presented “substantive

grounds for relief which would warrant a hearing based upon the petition.” Jackson,

supra, at 110. In its judgment entry, the trial court considered the ineffective

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assistance of counsel claims that Costell raised in his petition and found these

arguments to be without merit. Doc. 154. We turn now to considering the four

ineffective assistance of counsel claims that Costell raised in his petition.

{¶26} First, Costell argues that his counsel was ineffective for failing to raise

a Daubert challenge. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 593-594, 113 S.Ct. 2786, 2797, 125 L.Ed.2d 469, 482-483 (1993).

In determining whether the opinion of an expert is reliable under Evid.R. 702(C), a trial court, acting as a gatekeeper, examines whether the expert’s conclusion is based on scientifically valid principles and methods.

State v. Wangler, 3d Dist. Allen No. 1-11-18, 2012-Ohio-4878, ¶ 59. “[I]n assessing

reliability, “[t]he focus * * * must [generally] be * * * on principles and

methodology, not on the conclusions that they generate.” Daubert, at 595.

{¶27} In this process, the Ohio Supreme Court has adopted the following

factors from the United States Supreme Court’s decision in Daubert:

(1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.

State v. Nemeth, 82 Ohio St.3d 202, 211, 1998-Ohio-376, 694 N.E.2d 1332, 1338-

1339 (1998), citing Daubert at 593-594. The Ohio Supreme Court noted that “none

of these factors is a determinative prerequisite to admissibility.” Id. at 1339.

{¶28} In his other three ineffective assistance of counsel claims, Costell

argues that defense counsel failed either to procure or introduce evidence at trial

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that would be beneficial to the Defense. In contrast, Costell asserts here that defense

counsel was ineffective for failing to raise a Daubert challenge that sought to

exclude the testimony of the State’s medical experts. As an initial matter, we note

that the “decision to raise a Daubert challenge falls within the rubric of trial strategy

* * *.” State v. Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981, ¶ 108.

{¶29} Further, the reports do not establish that the methods employed by the

State’s medical experts would have been found inadmissible under the Daubert

standard. Doc. 136, Ex. A, B. The reports do not contain information that

demonstrates that the State’s medical experts used techniques that have not been

tested; relied on methods that had not been subject to peer review; or that their

methodology was not generally accepted. See Nemeth, supra, at 211. These reports

provide no information that would substantiate the presence of any of these three

factors.

{¶30} As to the known or potential rate of error, the first report alleged that

a “[p]ostmortem redistribution [of drugs] can cause erroneous test results.” Doc.

136, Ex. A. This report cites a study that suggests “Sertraline likely undergoes

significant postmortem redistribution.” (Emphasis added.) Doc. 136, Ex. A.

Similarly, the report stated that Tramadol may have “a propensity for * * *

postmortem redistribution.” Doc. 136, Ex. A. The author of the second report also

bases his conclusions on the postmortem redistribution of drugs and identifies a

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paper that found that Sertraline undergoes a postmortem redistribution. Doc. 136,

Ex. B. However, the second report states the following about Tramadol:

There are no papers that I could find that demonstrate a difference in the antemortem level compared to the postmortem level for Tramadol. Again, that does not mean that it does not occur, only that no one has studied and published it.

***

I have not placed a prediction interval on the tramadol level because no data exists for me to calculate it. However, having calculated these types of prediction intervals for other drugs such as fentanyl and amphetamine, I expect if and when data does become available, it will plainly show an overlap of the prediction interval for her tramadol.

Doc. 136, Ex. B. While Costell has provided some information that arguably relates

to the fourth factor, this information is not definitive and is not, in the absence of

any evidence that would tend to establish the other three factors, sufficient to

demonstrate that a Daubert challenge would have been successful.

{¶31} Having reviewed the materials attached to his petition, we conclude

that Costell has not identified any grounds upon which a Daubert challenge would

have been successful. As such, he has not demonstrated that such a challenge would

have resulted in the exclusion of any testimony that was provided by the State’s

medical experts. See State v. Aboytes, 11th Dist. Lake No. 2020-L-001, 2020-Ohio-

6806, ¶ 168; State v. Parsley, 10th Dist. Franklin No. 09AP-612, 2010-Ohio-1689,

¶ 64. Thus, Costell has not established that he was denied his right to the effective

assistance of counsel with this argument.

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{¶32} Second, Costell asserts that his defense counsel “failed to consult with

appropriate experts.” Doc. 136. However, “[e]ffectiveness standards do not

mandate that counsel consult multiple experts until they find one who supports their

conclusion.” State v. Waddy, 2016-Ohio-4911, 68 N.E.3d 381, ¶ 53 (10th Dist.).

In fact, in many criminal cases trial counsel’s decision not to seek expert testimony ‘is unquestionably tactical because such an expert might uncover evidence that further inculpates the defendant.’ State v. Glover, [12th Dist.] Clermont App. No. CA2001-12-102, 2002-Ohio-6392, 2002 WL 31647905, at ¶ 95. “Further, even if the wisdom of such an approach is debatable, ‘debatable trial tactics’ do not constitute ineffective assistance of counsel.” Id., quoting State v. Clayton (1980), 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 402 N.E.2d 1189.

State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, 787 N.E.2d 691 (10th

Dist.), ¶ 90. See Krzywkowski, supra, at ¶ 22.

{¶33} We cannot discern from the record whether defense counsel did or did

not consult with experts before trial. In his petition, Costell asserts that defense

“counsel failed to consult with appropriate experts” and that this failure prevented

him from procuring evidence that was beneficial to the Defense. (Emphasis added.)

Doc. 136. However, defense counsel did not have a duty to consult with experts

until he found an opinion that was beneficial to the Defense. Waddy at ¶ 53. In this

argument, Costell has identified actions that fall squarely within the ambit of

debatable trial tactics. He has not established that defense counsel’s performance

was deficient. Accordingly, this argument is without merit.

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{¶34} Third, Costell argues that defense counsel failed to investigate the

medical evidence. Doc. 136. “As a general matter, trial ‘counsel has a duty to make

reasonable investigations * * *.’” State v. Berry, 3d Dist. Union No. 14-20-05,

2021-Ohio-1132, ¶ 127, quoting State v. Bradley, 42 Ohio St.3d 136, 146, 538

N.E.2d 373, 383 (1989). However, the “argument that further investigation would

have necessarily led to * * * retaining an expert witness is * * * vague and

speculative * * *.” State v. Salyers, 3d Dist. Allen No. 1-20-55, 2021-Ohio-2978, ¶

39.

{¶35} In this case, neither the record nor the reports attached to Costell’s

petition reveal any information about the scope or scrupulousness of defense

counsel’s investigation into the medical evidence presented at trial. The fact that

defense counsel did not consult with the authors of the reports attached to Costell’s

petition does not mean that defense counsel did not thoroughly and adequately

investigate the medical evidence that formed the basis of this case. “We ‘cannot

infer a defense failure to investigate from a silent record.’” State v. Hunter, 131

Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 65, quoting State v. Were, 118

Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 244.

{¶36} Further, as a part of this argument in his petition, Costell argued that

his defense counsel was ineffective for failing to call expert witnesses at trial. Doc.

136. However, “the failure to call an expert and instead rely on cross-examination

does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio

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St.3d 431, 437, 613 N.E.2d 225, 230 (1993). The trial court found that defense

“counsel did effectively question each of the witnesses presented by the State

regarding Debra’s levels of Sertraline and Tramadol.” Doc. 154. A review of the

record confirms that defense counsel vigorously cross-examined the State’s medical

experts regarding Debra’s cause of death. April 15 Tr. 32-39, 44-46, 64-66, 142-

145. See April 14 Vol. II Tr. 302-305. Thus, Costell has again identified a decision

that falls within the rubric of debatable trial tactics. Since this argument does not

establish deficient performance, it is without merit.

{¶37} Fourth, Costell argues that defense counsel “fail[ed] to present

exculpatory expert testimony” at trial. Appellant’s Brief, 14. Specifically, Costell

asserts that defense counsel failed to present the opinions contained in the reports

attached to his petition at trial. Doc. 136. However, in arguing that defense counsel

failed to present these opinions at trial, Costell is, in substance, only reasserting his

previous two arguments: (1) that defense counsel failed to consult with potential

medical experts until he found the two authors of these reports and (2) that defense

counsel then failed to call these two authors to offer their opinions at trial. Thus,

we have already determined that the substance of this fourth ineffective assistance

of counsel claim addresses decisions that fall within the ambit of trial strategy and

do not establish deficient performance. See Waddy, supra, at ¶ 53; Salyers, supra,

at ¶ 39; Were, supra, at ¶ 244; Nichols, supra, at 437.

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{¶38} Further, “Ohio case law clearly shows that alternate or supplementary

theories from expert witnesses, which are presented in postconviction proceedings,

are not sufficient to establish ineffective assistance of counsel * * *.” State v. Smith,

4th Dist. Ross No. 09CA3128, 2011-Ohio-664, ¶ 31. See State v. Combs, 100 Ohio

App.3d 90, 103, 652 N.E.2d 205 (1st Dist. 1994); State v. Cornwell, 7th Dist.

Mahoning No. 00-CA-217, 2002-Ohio-5177, ¶ 46; State v. Spaulding, 2018-Ohio-

3663, 119 N.E.3d 859, ¶ 81 (9th Dist.); State v. Campbell, 10th Dist. Franklin No.

03AP-147, 2003-Ohio-6305, ¶ 39.

{¶39} The reports attached to Costell’s petition contain opinions about

evidence that was available or presented at trial. Ex. 136, Ex. A, B. Further, defense

used his cross-examination of the State’s medical experts to suggest that they had

not appropriately accounted for Debra’s medical history in their analyses and that

Debra’s death was attributable to her other medical conditions. The opinions of the

authors of the two reports tracked with defense counsel’s theory of this case as their

opinions were also that Debra’s death was caused by her other health conditions.

These opinions would have only supplemented defense counsel’s theory of this case

and are, for this reason, insufficient to establish deficient performance.

{¶40} In conclusion, the trial court determined that the ineffective assistance

of counsel claims raised by Costell were without merit. Having examined each of

Costell’s arguments in light of the information contained in the reports attached to

his petition, we also conclude that Costell has not carried the burden of

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demonstrating that any of these alleged ineffective assistance of counsel claims.

Thus, the trial court did not abuse its discretion in disposing of his petition without

an evidentiary hearing. Costell’s second assignment of error is overruled.

{¶41} Costell argues that the trial court erred in stating that res judicata was

applicable to his petition for postconviction relief.

{¶42} Crim.R. 52(A) defines a harmless error as “[a]ny error, defect,

irregularity, or variance which does not affect substantial rights shall be

disregarded.” Crim.R. 52(A). “In most cases, in order to be viewed as ‘affecting

substantial rights,’ ‘the error must have been prejudicial.’” State v. Harris, 142 Ohio

St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36, quoting State v. Fisher, 99 Ohio

St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7. “Harmless error does not affect

the outcome of the case and, thus, does not warrant a judgment to be overturned or

set aside.” State v. Wilson, 3d Dist. Allen, No. 1-09-53, 2010-Ohio-2947, ¶ 26,

citing State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 7.

{¶43} Under the first assignment of error, we concluded that res judicata did

not bar consideration of the issues raised in Costell’s petition. While the trial court

stated that res judicata was applicable to Costell’s petition, the trial court, in fact,

considered the merits of Costell’s ineffective assistance of counsel claims and found

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his arguments to be without merit. Doc. 154. In this appeal, we reviewed the trial

court’s analysis and conducted our own review of Costell’s ineffective assistance of

counsel claims. We found the arguments that Costell raised in his petition to be

without merit. Thus, he cannot demonstrate that he was prejudiced by the trial court

stating, in its judgment entry, that res judicata was applicable to his petition. Any

error the trial court may have committed in making this statement is, therefore,

harmless error. As such, Costell’s first assignment of error is overruled.

Conclusion

{¶44} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Union County Court of Common Pleas is

affirmed.

ZIMMERMAN and SHAW, J.J., concur.

/hls

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