State v. Vogt

2018 Ohio 4457

• Court: Ohio Court of Appeals
• Decided: October 29, 2018
• Docket: 17CA17
• Status: Published

Opinion

[Cite as State v. Vogt, 2018-Ohio-4457.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : : Case No. 17CA17 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY RYAN VOGT, : : Defendant-Appellant. : Released: 10/29/18 _____________________________________________________________ APPEARANCES:

Angela Wilson Miller, Jupiter, Florida, for Appellant.

Kevin Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Ryan Vogt appeals the judgment of the Washington County

Common Pleas Court convicting him of two counts: involuntary

manslaughter and trafficking in drugs.

{¶2} Upon review of the record, we find no merit to Appellant’s

arguments herein. Accordingly, we overrule all assignments of error and

affirm the judgment of the trial court. Washington App. No. 17CA17 2

ASSIGNMENTS OF ERROR

I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION FOR INVOLUNTARY MANSLAUGHTER. THE RESULTING CONVICTION DEPRIVED APPELLANT VOGT OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

II. APPELLANT VOGT’S CONVICTIONS FOR INVOLUNTARY MANSLAUGHTER AND DRUG TRAFFICKING ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THIS DEPRIVED VOGT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

III. THE TRIAL COURT’S REFUSAL TO DISMISS THE CASE AGAINST VOGT VIOLATED HIS RIGHT AGAINST DOUBLE JEOPARDY AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STAES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO THE LESSER- INCLUDED OFFENSE OF RECKLESS HOMICIDE. ADDITIONALLY, APPELLANT VOGT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO REQUEST AN INSTRUCITON ON THE LESSER- INCLUDED OFFENSE OF RECKLESS HOMICIDE. FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS Washington App. No. 17CA17 3

OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 AND 16 OF THE OHIO CONSTITUTION.

FACTUAL AND PROCEDURAL BACKGROUND

{¶3} On May 31, 2016, Appellant was indicted by a Washington

County Grand Jury on two counts: (1) involuntary manslaughter, R.C.

2903.04(A)&(C); and (2) trafficking in drugs, R.C.

2925.03(A)(1)&(C)(6)(a). The indictment occurred subsequent to the

overdose death of Tyler Miller which occurred on January 16, 2016. Tyler

Miller was a young man who had just returned to Washington County after

being drug free while in rehabilitation for his heroin addiction. The

indictment alleges that shortly upon Tyler Miller’s return to his hometown,

Appellant sold him heroin.

{¶4} Appellant proceeded to a jury trial which commenced on

December 5, 2016. On the second day of trial, a discussion was held in

chambers regarding: (1) text messages which had not been provided to

defense counsel as part of pretrial discovery and which, the defense argued,

violated Crim.R. 16; and (2) the existence of a conflict of interest which had

arisen on the part of defense counsel as a result of the violation. After

discussion amongst the attorneys and the trial court, the trial court declared a

mistrial and rescheduled the trial for a date in January 2017. Washington App. No. 17CA17 4

{¶5} On January 12, 2017, Appellant filed a motion to dismiss both

counts of the indictment filed against him on the ground that his state and

federal constitutional rights against Double Jeopardy had been violated.

Appellant argued that the State had willfully flouted its responsibilities to

disclose evidence under the Ohio criminal rules. After the State filed a

responsive brief, the trial court denied Appellant’s motion to dismiss.

{¶6} Appellant again proceeded to trial on March 27, 2017. At trial,

the State’s first witness was Tyler’s father. John Miller testified he

discovered Tyler had a drug problem in March 2015. Tyler, who worked in

his family’s plumbing and electric business, was exhibiting erratic behavior.

After the drug problem was confronted, Tyler presented to L&P services for

outpatient treatment and attended NA meetings. He did not want to go to

inpatient rehabilitation.

{¶7} In the fall of 2015, Tyler overdosed. He was successfully

revived with Narcan and continued his outpatient drug counseling through

the fall of 2015. In early December 2015, Tyler acknowledged that he

needed inpatient rehab. Tyler went into Camden Clark for 5-6 days and then Washington App. No. 17CA17 5

went into Parkside drug and alcohol rehabilitation in Columbus for over a

month.1

{¶8} John Miller specifically testified Tyler’s cell phone and wallet

were in the Millers’ possession while he was at inpatient rehabilitation in

Columbus. Tyler also parked his truck at his parents’ house. While Tyler

was in rehab, his mother, Jill Miller, searched his wallet several times and

found no illegal drugs inside it.

{¶9} Tyler was discharged from Parkside on January 15, 2016, and his

parents and his girlfriend, Josie Schau, drove to Columbus to bring him

home. The group stopped in Zanesville to eat and arrived at the Millers’

home around 7:00 p.m. On the way home, Tyler was in good spirits, talking

about the future and even singing along with the radio. Tyler indicated he

wanted to become an addiction counselor so he could help others. John

Miller saw no indication his son was using any drug.

{¶10} Upon return to the Millers’ home, Tyler retrieved his wallet and

cell phone. His truck battery seemed to be dead, so Josie drove Tyler to his

residence in Beverly where he lived with his sister, Samantha Miller. John

Miller last saw his son alive between 7:00 and 8:00 p.m. on January 15,

2016.

1 Information regarding L&P Services, Camden Clark, and Parkside was not further developed in testimony. Washington App. No. 17CA17 6

{¶11} The next morning, January 16, 2016, John Miller texted Tyler

to see if he wanted to go hunting. Tyler did not reply. John Miller

proceeded to go hunting alone, and he returned home between 3:00 and 3:30

p.m. Since neither parent had heard from Tyler, John Miller went to

Samantha’s house and knocked on the door. When no one answered, Mr.

Miller opened the door and called out again. John Miller soon found Tyler

lying motionless with his wallet lying beside him and immediately called

911, but emergency personnel were never able to revive Tyler.

{¶12} After emergency personnel and law enforcement left the scene,

Jill Miller and Samantha were looking through Tyler’s wallet and found

something which looked like a small rock, wrapped in a piece of paper.

They immediately contacted law enforcement. John Miller concluded his

direct testimony acknowledging that Tyler had available funds, his regular

paycheck and a Christmas bonus, in his bank account when he returned from

rehabilitation.

{¶13} Josie Schau next testified that she and Tyler had been in a

relationship for 3 years at the time of his death. Josie discovered that Tyler

was using heroin only after he overdosed in the summer of 2015. Tyler had

never used heroin in her presence. Washington App. No. 17CA17 7

{¶14} Although Tyler did not have his cell phone with him at

Parkside, he called Josie regularly. While in rehab, Tyler’s mood changed

and he seemed happy again.

{¶15} Josie’s testimony correlated with John Miller’s. When Josie

accompanied the Millers to bring Tyler home, she also noticed he was in a

good mood and making plans for the future. Josie testified after driving

Tyler home, she stayed and visited Tyler and Samantha while Tyler cleaned

the receipts out of his wallet and played with his dog. When Samantha went

to bed, Tyler and Josie watched a movie together. During the entire time

Josie was with Tyler on January 15th, she never observed him using drugs.

{¶16} Josie left at 11:00 p.m. on January 15, 2016. At that time, Tyler

was still happy and thankful, reiterating that it had been a good decision to

go into rehab. When Josie reached her home, she texted Tyler to let him

know she had arrived safely. He texted her a brief reply and then texted her

later at 2:13 a.m. on January 16th. Josie did not receive Tyler’s last text

until morning. When she replied, he did not respond.

{¶17} Samantha Miller also testified to spending time with Tyler and

Josie on the evening of January 15th and to noticing his positive and upbeat

demeanor. Samantha went to bed between 9:00 and 10:00 p.m. When she

awoke on January 16th, Tyler’s door was shut. Samantha testified she could Washington App. No. 17CA17 8

hear his television and could hear him snoring. Samantha left for work

around 7:00 a.m. She received a call from her father later that afternoon that

Tyler had overdosed.

{¶18} When Samantha returned home, emergency medical personnel

and law enforcement were there. After they left, Samantha began cleaning

and searching for drugs. Samantha testified that she did not find any drugs

in the home. She also testified that she did not see any indication that Tyler

had used drugs when she was with him the previous evening.

{¶19} On cross-examination, Samantha testified she did not know

when Josie left, when Tyler went to sleep, or if he left during the night.

Samantha helped her mother search Tyler’s wallet after law enforcement

left. Within 30 minutes, the women found the substance which looked like a

small rock, wrapped in paper in Tyler’s wallet.

{¶20} The State’s next witness, Patrolman Aaron Perine of the

Beverly Police Department, testified he was dispatched to Tyler’s address on

January 16, 2016. There, John Miller advised Perine that his son was dead

in the bedroom. Perine found Tyler lying on his back in black shorts. Tyler

was cold, unresponsive, and a brown substance was draining from his nose.

Perine called for a squad and later, the coroner. Washington App. No. 17CA17 9

{¶21} Patrolman Perine identified and authenticated State’s Exhibits

A, B, and C, photographs of Tyler. Exhibit A showed Tyler lying on his

back. His wallet was on the right side, a notepad was underneath him, and a

half eaten bowl of ice cream was on his left side. He further testified upon

discovery, John Miller actually moved Tyler from his right side to his back.

Exhibit C showed a partial tin foil lying underneath Tyler, along with a cell

phone. Tyler’s cell phone and the foil were immediately collected as

evidence. After law enforcement released the scene and left the home, the

family called to report an unknown substance found inside the wallet. When

he returned to the scene and did a field test, the substance tested positive for

heroin.

{¶22} Patrolman Perine also identified and authenticated Exhibits D

and E. Exhibit D depicted the wrapper with a brown substance inside, and

the wallet. Exhibit E depicted the piece of tin foil with unknown particles,

found on the floor of the bedroom.

{¶23} On cross-examination, Patrolman Perine testified he had been

made aware that Tyler had an addiction. When he entered the bedroom and

noticed a substance oozing from Tyler’s nose, he immediately suspected an

overdose. Washington App. No. 17CA17 10

{¶24} Patrolman Perine testified he initially searched Tyler’s room

for anything which may have caused his death. Patrolman Perine didn’t

know how he missed the heroin in Tyler’s wallet, but he might have

overlooked it in one of the folds and had no reason to believe the heroin was

placed there after Tyler’s death.

{¶25} The next witness was Detective Scott Parks, a 20-year

employee of the Washington County Sheriff’s department. Detective Parks

testified he performs forensic recovery of data from electronic devices such

as cell phone and computers. Detective Parks had been trained and

performing forensic recovery since 2011.2 He testified he was asked to

examine Tyler Miller’s cell phone, a Samsung Galaxy S5, and later, two cell

phones belonging to Appellant. Appellant had an older “flip phone” and a

newer IPhone.

{¶26} Detective Parks explained his job entails downloading evidence

from a phone and supplying it to whomever the investigating officer is for

review. He reviewed information from Tyler Miller’s cell phone and from

Appellant’s IPhone. Detective Parks was able to narrow the information and

“parse out” a text conversation between Tyler Miller’s and Appellant’s

devices. He then passed the information along to Lieutenant Lockhart. 2 Parks testified at length about his training and certification through the Department of Homeland Security and through online schools. He is also the only person certified to teach electronic evidence in the police academy in southeast Ohio. Washington App. No. 17CA17 11

{¶27} Detective Parks identified and authenticated State’s Exhibit F, a

document entitled “Extraction Report,” which showed a text conversation

between Appellant and Miller, the “participants” listed on the extraction

report. The first text between the devices occurred on November 30, 2015 at

1:12 p.m. Parks also identified the last page of Exhibit F as being a log of

phone calls between the two devices. Tyler received a call from Appellant’s

phone on December 15, 2015 and another call on at 1:18 a.m. on January 16,

2016. There was no call activity between those dates.

{¶28} On cross-examination, Detective Parks testified he was a

member of the Drug Task Force and took part in many investigations

involving drugs. He admitted he initially had some difficulty breaking

through the secure passcode on Miller’s phone. He also testified that

Appellant’s phone was not set up to protect access to information. And, he

acknowledged that phone contacts are usually entered into a device by the

person who owns it, not the contact person.

{¶29} The second day of trial began with the testimony of Dr.

Matthew Juhascik, chief toxicologist at the Montgomery County Coroner’s

Office. Dr. Juhascik testified he prepared a report concerning the results of

toxicological tests on samples provided from Tyler Miller’s body. Samples

are obtained as part of the routine business of the Montgomery County Washington App. No. 17CA17 12

coroner’s office. The final toxicology report, dated March 10, 2016, was

prepared in the normal course of business of the coroner’s office.

{¶30} Dr. Juhascik testified an eight-panel screen tested positive for

opiates so a confirmation test was performed. The confirmation test

demonstrated a presence of morphine in the femoral blood at a level of 136

nanograms per milliliter. He explained that morphine is a metabolite of

heroin and that morphine is left in the body after the body processes heroin.

He testified the results of the toxicology report were consistent with a heroin

overdose.

{¶31} The next witness testifying was Dr. Robert Shott, a deputy

coroner and forensic pathologist with the Montgomery County Coroner’s

Office. He examined Tyler Miller’s body on January 17, 2016. Dr. Shott

also identified State’s Exhibit J, a copy of the autopsy report.

{¶32} Dr. Shott further testified that he requested the toxicological

exam performed from samples taken from Tyler Miller’s body. The Miami

Valley Regional Crime Lab Toxicology Division works with the

Montgomery County Coroner’s Office. The toxicology report is

incorporated into his autopsy report. Dr. Shott opined, to a reasonable

degree of medical certainty, that heroin intoxication was the cause of Tyler’s

death. Washington App. No. 17CA17 13

{¶33} On cross-examination, Dr. Shott testified he had no previous

history of Tyler having diabetes and therefore, this did not factor into his

testing. He also explained that heroin is broken down into the body as

morphine. He confirmed that the level of 136 nanograms of morphine was

enough to be the cause of death. Dr. Shott testified the 136 nanogram level

is consistent with other overdose deaths he has evaluated.

{¶34} On the third day of trial, defense counsel began by objecting to

admission of the extraction report from Appellant’s IPhone, Exhibit I

captioned “Vogt Phone.” He argued that the report included a number of

texts that were not provided to him. He acknowledged that, on the basis of

Crim.R. 16, he had objected to the information at the previous proceeding

which had ended in mistrial. The trial court overruled the objection.

{¶35} The last State’s witness was Detective Bryan Lockhart. During

his investigation, he focused upon the text communications between Tyler

Miller’s and Appellant’s cell phones. In Detective Lockhart’s opinion, the

conversations indicated a drug user and drug dealer relationship between

Tyler and Appellant. His testimony correlated with Detective Parks, and he

also identified the extraction reports.

{¶36} Detective Lockhart further testified that based on the text

message conversations, he determined to obtain a search warrant of Washington App. No. 17CA17 14

Appellant’s residence. During the execution of the warrant, Lockhart

interviewed Appellant. The interview, Exhibit K, was recorded and was

played for the jury.

{¶37} Throughout much of the interview, Appellant denied knowing

Tyler Miller. He advised Lockhart that “millions” of other people used his

cell phone. Appellant was unable or unwilling to give the identity of one

other person who may have used his phone. Toward the middle of the

interview, Appellant indicated he might have gone with another person,

Cory Forshey, who may have sold drugs to Tyler Miller. He testified Cory

Forshey was a childhood friend of his who had “turned into someone else.”

{¶38} At this point, the State moved to admit the following exhibits:

A-C, photographs of Tyler Miller’s body; D-paper wrapper with rock of

heroin; E-wrapper with tin foil; F-extraction report from Tyler Miller’s cell

phone; G-evidence from the Beverly Police Department; H-the Bureau of

Criminal Identification and Investigation (BCI) lab report; I-extraction

report from Appellant’s IPhone; J-coroner’s report; and K-Appellant’s

recorded interview. The State rested.

{¶39} Defense counsel made a Crim.R. 29 motion to dismiss Count 1,

involuntary manslaughter, arguing that the State had not met its burden that

Appellant knowingly caused Tyler’s death as a proximate result of Washington App. No. 17CA17 15

trafficking in drugs. He asserted there was no evidence of Appellant’s

culpable mental state except for, arguably, the weak evidence of text

messages. Counsel also pointed out an absence of other evidence indicating

Appellant engaged in drug trafficking. Finally, counsel suggested that

Tyler’s choice to use heroin was a significant intervening factor which

proximately caused his overdose. The trial court denied the motion.

{¶40} The jury returned a verdict of guilty on both counts and

Appellant was sentenced to a six-year prison sentence for count one and an

eleven-month prison sentence for count two, to be served concurrently, for

an aggregate prison term of six years.

{¶41} This timely appeal followed. As indicated above, additional

facts will be set forth below where necessary.

ASSIGNMENT OF ERROR THREE

{¶42} For ease of analysis, we begin with consideration of

Appellant’s third assignment of error.

STANDARD OF REVIEW

{¶43} “Appellate courts apply a de novo standard of review when

reviewing the denial of a motion to dismiss an indictment on the grounds of

double jeopardy.” State v. Johnson, 4th Dist. Ross No.16CA3579, 2017-

Ohio-7257, at ¶ 11, quoting State v. Anderson, 148 Ohio St.3d 74, 2016– Washington App. No. 17CA17 16

Ohio–5791, 68 N.E.3d 790, ¶ 20. But when the dismissal motion is based

on a challenge to a trial court's underlying declaration of a mistrial, we apply

an abuse of discretion standard of review to that part of our analysis. See

State v. Carter, 4th Dist. Adams No. 15CA1015, 2016–Ohio–5371, at ¶ 38,

citing United States v. Keane, 287 F.3d 229, 233–234 (1st Cir.2002); United

States v. Williamson, 656 Fed.Appx. 175, 180 (6th Cir.2016) (appellate court

reviews de novo a trial court's denial of a motion to dismiss based on double

jeopardy, but reviews the trial court's underlying decision to grant a mistrial

for abuse of discretion); State v. Gunnell, 132 Ohio St.3d 442, 2012–Ohio–

3236, 973 N.E.2d 243, ¶ 28–29 (applying an abuse of discretion standard of

review to a trial court's declaration of mistrial).

LEGAL ANALYSIS

{¶44} On January 12, 2017, Appellant filed a motion to dismiss the

indictment on the ground that further proceedings would violate his right

against double jeopardy as guaranteed by the Fifth Amendment of the U.S.

Constitution and Article 1 Section 10 of the Ohio Constitution. In

Appellant’s brief in support of his motion, Appellant set forth the procedural

history leading up to the mistrial. Appellant challenged the admission of

texts extracted from a separate analysis of his IPhone, asserting that the texts

were not admissible pursuant to Crim.R. 16. Crim.R. 16 (B)(1), discovery, Washington App. No. 17CA17 17

generally provides that upon receipt of a written demand for discovery by

the defendant, the prosecuting attorney shall provide copies or photographs

of any written or recorded statement by the defendant which is material to

the preparation of a defense, or is intended for use by the prosecuting

attorney as evidence at the trial.

{¶45} In chambers, the State acknowledged that the texts from

Appellant’s IPhone had not been provided because they had not been

intended for use at trial, except for possible rebuttal. However, defense

counsel’s opening statement indicated the defense strategy would be to shift

blame to another person, Cory Forshey, as a person who had access and who

may have used Appellant’s phone during the relevant time period.

Furthermore, it was indicated Appellant might take the stand to testify in this

manner. The texts at issue demonstrated a conversation between Appellant

and his girlfriend at the relevant times, which would also strongly suggest

that Appellant was in control of his cell phone at the same time a discussion

regarding the purchase of heroin by Tyler Miller was taking place.

{¶46} Based upon the above discussion in chambers, the State

indicated the texts at issue would now need to be utilized during the State’s

case in chief. Defense counsel asserted that the admission of the text

messages would create a conflict of interest for him as he represented Cory Washington App. No. 17CA17 18

Forshey in an unrelated matter in West Virginia. For the reasons which

follow, we agree with the trial court’s finding that a mistrial was necessary

and thus, did not abuse its discretion in ordering a mistrial. Further, we

agree with the trial court’s finding that the State’s failure to provide the

additional texts was not prosecutorial misconduct intentionally calculated to

create or invite a mistrial. Consequently, we find the trial court did not err

by denying Appellant’s motion to dismiss.

{¶47} “The Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution ensures that a state may not put a defendant in

jeopardy twice for the same offense.” Johnson, supra, at ¶ 13, quoting State

v. Gunnell, 132 Ohio St.3d 442, 2012–Ohio–3236, 973 N.E.2d 243, at ¶ 25,

citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056 (1969). The Double

Jeopardy Clause also “affords a criminal defendant a ‘valued right to have

his trial completed by a particular tribunal.’ ” Johnson, supra, quoting

Oregon v. Kennedy, 456 U.S. 667, 671–672, 102 S.Ct. 2083 (1982), quoting

Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834 (1949); Gunnell at ¶ 25.

The right attaches when a jury is impaneled and sworn, State v. Meade, 80

Ohio St.3d 419, 424, 687 N.E.2d 278 (1997), citing Crist v. Bretz, 437 U.S.

28, 35, 98 S.Ct. 2156 (1978); see also State v. Baranski, 173 Ohio App.3d

410, 2007–Ohio–4072, 878 N.E.2d 1058, ¶ 7. We apply the same analysis Washington App. No. 17CA17 19

to claims brought under the federal and Ohio Double Jeopardy Clauses

because we have recognized that “ ‘[t]he protections afforded by the two

Double Jeopardy Clauses are coextensive.’ ” State v. Anderson, ¶ 31,

quoting State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d

284, ¶ 14, quoting State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661,

780 N.E.2d 250, ¶ 7.

{¶48} In the present matter, after Appellant objected to the admission

of the texts and explained his possible conflict, the record indicates that after

discussion was had both on and off the record, the court declared a mistrial.

Appellant argues that the State’s action in failing to disclose the text

messages in violation of Crim.R. 16 forced or manipulated the court into the

position where a mistrial was necessary and was imposed upon him. The

record reflects defense counsel neither requested nor objected to the

declaration of mistrial.

{¶49} The Supreme Court of Ohio held in Anderson that “when a

mistrial was ‘instigated by prosecutorial misconduct designed to provoke

[the] mistrial,’ retrial is barred by double jeopardy.” Id. at ¶ 32, quoting

State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900 (1988), syllabus; see also

Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083 (1982) (double

jeopardy bars retrial if the prosecutor has engaged in misconduct intended to Washington App. No. 17CA17 20

“goad” the defense into moving for a mistrial); Green v. United States, 355

U.S. 184, 188, 78 S.Ct. 221 (1957) (“a prosecutor or judge [is prohibited]

from subjecting a defendant to a second prosecution by discontinuing the

trial when it appears that the jury might not convict”).

{¶50} This court has also noted that the prohibition against double

jeopardy precludes a second trial absent (1) a mistrial justified by a

“manifest necessity” or (2) consent to the mistrial by the defendant. Johnson,

supra, at ¶ 14, quoting Klein v. Leis, 548 F.3d 425, 431 (6th Cir.2008). “In

determining whether a ‘manifest necessity’ exists, Courts need not find an

absence of alternatives but only a ‘high degree’ of necessity.” Johnson,

supra, at 15, quoting Klein at 431. “What constitutes a ‘manifest necessity’

is left to the discretion of the courts, which must ‘exercise a sound discretion

on the subject [as] it is impossible to define all the circumstances, which

would render it proper to interfere.” Gunnell, 132 Ohio St.3d 442, 2012–

Ohio–3236, 973 N.E.2d 243, at ¶ 26, quoting United States v. Perez, 22 U.S.

(9 Wheat.) 579, 580 (1824).

{¶51} In Appellant’s case, while the State failed to provide the texts

during discovery, we do not find this omission was intentionally calculated

to invite a mistrial. The texts at issue were between Appellant and his

girlfriend and in preparing for trial, the prosecution would have likely been Washington App. No. 17CA17 21

focusing on the texts linking Appellant to Tyler Miller. Arguably, the

omission could have been negligence. In State v. Hodges, 7th Dist.

Mahoning No. 17MA0025, 2018-Ohio-447, the appellate court recently

noted at ¶ 18, that “[a] retrial is not barred on double jeopardy grounds

where the state's mere negligence, rather than intentional misconduct,

required the trial court to grant a mistrial on a defense motion. Hodges,

supra, citing State v. Wood, 114 Ohio App.3d 395, 400, 683 N.E.2d 354

(10th Dist.1996), citing United States v. Dinitz, 424 U.S. 600, 607,611, 96

S.Ct. 1075 (1976).

{¶52} More importantly, the State had no way of knowing Appellant’s

counsel represented Cory Forshey in an unrelated matter and hence, no way

of knowing that use of the texts would place Appellant’s counsel in the

position of having a conflict of interest. Instead, any possibility of a conflict

of interest would have been known to defense counsel when counsel was

provided with the recorded interview of the State’s response to discovery

which was filed June 8, 2016. In its response to discovery, the State

provided Appellant’s counsel with the recorded interview in which

Appellant attempts to shift any blame to his friend Cory Forshey. At this

point, counsel should have considered the possibility of a conflict of interest

in representing both defendants. Washington App. No. 17CA17 22

{¶53} The Hodges court also noted the state did not gain material

advantage from the mistrial itself. Id. at ¶ 24. Similarly, we do not see that

the State gained any material advantage from the mistrial. In fact, Appellant

was additionally armed with the text messages at issue and gained advantage

of time to further prepare his defense or to consider his alternatives.

{¶54} For the foregoing reasons, we find the trial court did not abuse

its discretion in declaring a mistrial. We find an absence of evidence

suggesting that the State engaged in intentional misconduct in order to

necessitate a mistrial. And, the journal entry denying Appellant’s motion to

dismiss stated the trial court’s reasoning as follows:

“The Court FINDS that the failure to provide the texts during discovery did not create the conflict of interest which resulted in the mistrial of this case as any conflict of interest which existed was known to Defendant long before the State’s revelation of the additional texts. The court further FINDS that the State’s failure to provide the additional texts was not misconduct intentionally calculated to create or invite mistrial.”

{¶55} While defense counsel did not request the mistrial, defense

counsel asserted that there was a “possible conflict of interest.” As set forth

above, what constitutes a manifest necessity is left to the discretion of the

trial court. While not explicitly finding a manifest necessity, the trial court

was obviously concerned about a possible conflict of interest as defense

counsel emphasized this argument. Washington App. No. 17CA17 23

{¶56} We conclude the court’s decision constituted an implicit finding

that the possible conflict of interest, as vigorously asserted by defense

counsel when arguing the alleged Crim.R. 16 violation, created a manifest

necessity for the mistrial. As such, the protection afforded by the

prohibition against double jeopardy did not attach. The trial court did not err

in denying Appellant’s motion to dismiss the indictment. We hereby

overrule Appellant’s third assignment of error.

ASSIGNMENTS OF ERROR ONE AND TWO

{¶57} Under assignment of error one, Appellant argues his conviction

for involuntary manslaughter is not supported by sufficient evidence. Under

assignment of error two, he argues his convictions for involuntary

manslaughter and drug trafficking are against the manifest weight of the

evidence. Because the matters are interrelated, we consider Appellant’s first

and second assignments of error jointly.

{¶58} 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 Washington App. No. 17CA17 24

miscarriage of justice that the conviction must be reversed. State v. Lamb,

4th Dist. Scioto No. 17CA3796, 2018-Ohio-1405, ¶ 19; State v. Thompkins,

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. The weight and

credibility of evidence are to be determined by the trier of fact. Lamb, supra,

at ¶ 20; State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1965, 15 N.E.3d

818, at ¶ 132. The trier of fact is free to believe all, part, or none of the

testimony of any witness, and we defer to the trier of fact on evidentiary

weight and credibility issues because it is in the best position to gauge the

witnesses' demeanor, gestures, and voice inflections, and to use these

observations to weigh their credibility. State v. Dillard, 4th Dist. Meigs No.

13CA9, 2014-Ohio-4974, at ¶ 28; citing State v. West, 4th Dist. Scioto No.

12CA3507, 2014-Ohio-1941, at ¶ 23.

1. Drug Trafficking

{¶59} In recent years, appellate courts in Ohio have considered

convictions for involuntary manslaughter involving drug overdose deaths,

predicated on a drug offense conviction. Here, Appellant’s conviction for

involuntary manslaughter was necessarily predicated upon trafficking in

heroin. Appellant contends the jury’s verdict that he knowingly trafficked in Washington App. No. 17CA17 25

drugs was based solely upon text messages which did not establish that he

sold or attempted to sell heroin.

{¶60} Appellant was convicted of drug trafficking in violation of R.C.

2925.03(A)(1). Thus, the State had to establish that Appellant knowingly

sold or offered to sell a controlled substance or a controlled substance

analog. A person acts “knowingly,” when, regardless of purpose, the person

is aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature. R.C. 2901.22(B). A person has knowledge

of circumstances when the person is aware that such circumstances probably

exist. Id. When knowledge of the existence of a particular fact is an element

of an offense, such knowledge is established if a person subjectively

believes that there is a high probability of its existence and fails to make

inquiry or acts with a conscious purpose to avoid learning the fact. Id. A

“controlled substance” means a drug, compound, mixture, preparation, or

substance included in schedule I, II, III, IV, or V, as defined in R.C.

3719.01(C) of the Revised Code.

{¶61} We agree that Appellant’s conviction for drug trafficking is

based largely upon the circumstantial text messages evidencing

communications between Tyler Miller and Appellant. However, we point

out that “a defendant may be convicted solely on the basis of circumstantial Washington App. No. 17CA17 26

evidence.” Luther, supra, at 19, quoting State v. Nicely, 39 Ohio St.3d 147,

151, 529 N.E.2d 1236 (1988). “Circumstantial evidence and direct evidence

inherently possess the same probative value.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. “Circumstantial

evidence is defined as ‘[t]estimony not based on actual personal knowledge

or observation of the facts in controversy, but of other facts from which

deductions are drawn, showing indirectly the facts sought to be proved.

* * *’ ” Nicely, 39 Ohio St.3d at 150, 529 N.E.2d 1236, quoting Black's Law

Dictionary (5 Ed.1979) 221.

{¶62} In State v. Kramer, 3rd Dist. Defiance No. 4-15-14, 2016-Ohio-

2984, the defendant was convicted of involuntary manslaughter after

allegedly selling heroin to the deceased, Matney, shortly before his death.

On appeal, Kramer argued his conviction was against the manifest weight of

the evidence, specifically that the jury improperly concluded that he

provided the heroin that led to Matney’s death. Kramer produced an alibi

witness, a female acquaintance who testified that Kramer was with her and

never left her presence during the relevant time period.

{¶63} The State presented a Defiance police officer, Campbell, who

testified that he looked through text messages on Matney’s cell phone. With

the aid of exhibits, Campbell testified to the calls and text messages between Washington App. No. 17CA17 27

Matney’s and Kramer’s cell phones between relevant dates. Campbell also

testified to contacts between Matney and the mother of his children.

Campbell testified that based on the nature of the text message exchanges

and his knowledge of “street language,” the evidence pointed to Kramer’s

trafficking in drugs. Another witness, Horan, an FBI special agent, testified

as to the location of Kramer’s cell phone at the relevant times.

{¶64} Kramer took the stand in his own defense and testified that he

never called Matney, Matney always contacted him. He admitted he had

sold drugs to Matney in the past, but on the relevant date, he was actually

trying to “put him off,” and hoping that Matney would just find another

supplier. The appellate court in Kramer affirmed the jury’s verdict that

Kramer’s trafficking in heroin proximately resulted in Matney’s death and

that the verdict was not against the manifest weight of the evidence.

{¶65} Kramer’s conviction was also based largely upon the

circumstantial evidence of text message conversations between Matney and

Kramer, introduced as evidence of a “user/seller” relationship. Here,

Detective Lockhart’s investigation and testimony focused on the text

conversations between Tyler’s cell phone and Appellant’s IPhone. In

Detective Lockhart’s opinion, the content of the conversations indicated

some type of illegal drug activity. Washington App. No. 17CA17 28

{¶66} Detective Lockhart identified Exhibit F, the extraction report,

which identified various text conversations.3 A conversation between the

two phones revealed a conversation on November 30, 2015 in which “price”

and “location” were discussed. Setting forth the conversations below, we

reference Tyler’s cell phone as “TP,” and Appellant’s IPhone as “AP.”

{¶67} Detective Lockhart also testified to a text exchange on

December 4, 2015. This exchange signified to him that Tyler was trying to

keep his addiction hidden from his girlfriend Josie, and correlated with her

trial testimony that she was unaware that Tyler used heroin. The extraction

report revealed as follows:

TP: Well I passed my girlfriend right in front of the IGA. So I kept driving lol but I’m coming back as soon as she texts me back.

AP: Ok.

TP: I’m sorry bro I just can’t let her see me. Lol I gotta avoid her at all costs.

{¶68} Detective Lockhart also testified to a conversation between the

users of the two phones which occurred on December 5, 2015. In his

opinion, the exchange was discussing how much Tyler wanted to purchase

and how long it would be until the parties met. Tyler’s desire to keep his

3 Detective Lockhart explained that, Exhibit F, a six-page document, showed text conversations on pages 1- 5, and contained a call log on page 7. He testified the document was not missing a page but was compiled as he had requested. Washington App. No. 17CA17 29

addiction from Josie was again evident. The following text conversation

occurred:

TP: Hey man I ain’t gonna to be able to get that. Sorry about that.”

AP: Ok man.

TP: Hey man I can’t come to town cause I’m with my girl. But I have a buddy that’s cool and lives in Marietta if you want to get rid of that half.

{¶69} Detective Lockhart also testified there was one more text

message on December 15, 2015 from Appellant’s phone, to which there was

no response. Lockhart opined the lack of response coincided with Tyler

being in rehab in Columbus and not having access to his cell phone.

{¶70} Finally, Detective Lockhart also testified to a conversation

which took place one month later on January 15, 2016 at 11:23 p.m., which

was approximately twenty minutes after Josie testified she left Tyler’s

residence. The exchange began with Tyler’s initiation, occurred as follows:

TP: Hey man what’s up?

AP: Yo.

TP: Sorry I haven’t got at you man. I’ve been in rehab since December 4th.

AP: It’s cool. Good for you man.

*** Washington App. No. 17CA17 30

TP: Yeah it was all good, just not really by choice ya feel me?

AP: I feel ya.

TP: I’m just kickin it.

AP: Like your hanging out or quitting the d?

{¶71} Lockhart testified from his time on the drug task force, “d” is

slang used in text messages between traffickers and users, commonly

meaning “heroin.” The exchange continued from Tyler’s phone:

TP: You still doing your thing?

AP: Yeah.

TP: Damn I wish my truck was running or I’d come in town tonight lol.

AP: You need something or trying to kick it or what?

AP: I just got my car back together the other day. Had to put a new axle up front.

TP: Damn, that sucks Bro. I was just thinking about picking up.

AP: Up what?

TP: Some of that d.

AP: I’m around. I’ll drop by for a little extra.

{¶72} Detective Lockhart testified the significance of Tyler stating his

truck wasn’t running was that it correlates with his father’s testimony that Washington App. No. 17CA17 31

his truck battery was dead. It also correlates with both John Miller’s and

Josie’s testimony that Josie drove Tyler from his parents’ home to his

residence in Beverly. Detective Lockhart further testified that “I’ll drop by

for a little extra,” in his experience, occurred when a drug dealer delivers to

the user and usually charges more money. Detective Lockhart also testified

about this exchange between the phones. Tyler texted to Appellant’s phone:

TP: And by the way, I got another question, lol. Do you shoot?

AP: It doesn’t matter, whatever is fine with me.

TP: Okay, well I’ll just go down, whenever you leave. And the only reason I was asking is because I didn’t know if you had an extra clean point?

{¶73} During Detective Lockhart’s testimony, he also testified about

conversations between the two in which topics of price, “rushes,” and

quality were discussed. Detective Lockhart testified that a “clean point”

meant a clean needle. In addition, he explained that heroin can be snorted

through the nose or taken intravenously. It appeared to him that Tyler was

trying to decide whether to use it intravenously or snort it.

{¶74} Detective Lockhart opined that, under the totality of the

circumstances, (1) knowing that Tyler had a heroin addiction; (2) looking at

the multiple days of contact between his phone and the one registered to

Appellant; and (3) seeing the overall content of the text discussions, the Washington App. No. 17CA17 32

relationship between the two young men was that of drug user and drug

dealer. Detective Lockhart testified after reviewing the information, he

determined to obtain a search warrant for Appellant’s residence. During the

execution of that warrant, Lockhart interviewed Appellant. The interview

was recorded and played for the jury.

{¶75} The transcript and interview reveal that, after explaining

Appellant’s Miranda Rights to him, Detective Lockhart told him that his

friend Tyler Miller had “passed away.” Appellant denied knowing Tyler

Miller and maintained he did not know Tyler throughout much of the

interview. After advising that Tyler had Appellant’s name and number

stored in his cell phone, Appellant explained that “Somebody could have

told [Tyler] that was me and my number, because you know, call me, it’s

my—my phone, and it’s not even their phone. * * * I’ve had that happen to

me a million times.”

{¶76} Detective Lockhart next inquired as to whom Appellant might

have let borrow or use his phone. Appellant stated “There’s a lot of people

that use my phone.” Throughout the entire interview, Appellant denied

knowing the names of any person who had used his phone. Washington App. No. 17CA17 33

{¶77} The trial transcript has indicated Appellant as “RV,” and

Lieutenant Lockhart as “LL.” The turning point of the interview appeared to

be at this exchange between Lockhart and Appellant:

RV: I don’t even know who Tyler Miller is, but you guys already got who’s responsible.

LL: Responsible for what?

***

RV: What you’re in my face about. Come on now. You’ve got whose responsible.

LL: Who’s that?

RV: Who I grew up with * * * and was friends with * * * turned into other people, and that’s not my fault, so.

LL: Are you saying you grew up with Tyler and he turned into someone else?

RV: No, I don’t know Tyler.

RV: Well, Cory wasn’t answering his phone, somehow Cory gave him my fucking number, so I ran Corey to go fucking do what he does, and then that’s all I fucking know.

LL: Okay. Cory (unintelligible).

*** Washington App. No. 17CA17 34

RV: I was chilling at my buddy’s house, Cory Forshey.

LL: Cory Forshey. Okay. Okay. Is that why the- - you arranged the price to be a little higher, because you said it wasn’t yours, he was coming over to you?

RV: No.

LL: Okay. So I’m saying, did Cory go with you, then? It’s Cory’s dope.

RV: Yeah, bro, it was- -

LL: Well, you said you wasn’t alone, so you guys took your- -you drove, but he rode with you.

RV: I think he drove.

{¶78} Detective Lockhart testified he was familiar with Cory Forshey

and believed he was involved in the sale of illegal drugs in Washington

County. He acknowledged that Tyler Miller had Cory Forshey’s name

stored under two numbers in his phone. However, importantly, Detective

Lockhart testified during the hours surrounding Tyler’s death, there were no

phone calls or texts between Tyler’s phone and Corey Forshey.

{¶79} Detective Lockhart identified Exhibit I, an analysis of

Appellant’s phone. He opined that Appellant was in possession of his phone

during the relevant time period. He explained that a text message Washington App. No. 17CA17 35

conversation on Appellant’s phone demonstrated he was texting back and

forth with his girlfriend Jessica Heilby.4 The analysis of Appellant’s phone

demonstrated that closely in time, whoever was in control of Appellant’s

phone was texting to Tyler Miller’s phone and Jessica’s phone. For

example, the text messages indicated Appellant was driving and he texted

his girlfriend “I just got to Cory’s. I’m about to work on my car.” Detective

Lockhart found this significant because Appellant’s phone sent a text to

Tyler’s phone about the same time that read: “Okay, let me know. I’m

about to work on my car.”

{¶80} Later on, during the relevant time period, Appellant texted to

his girlfriend: “Bout to Cory’s” and later, “Just chillin in Cory’s room.” To

Detective Lockhart, these texts indicated that during the late evening hours

of January 15th and the early morning hours of January 16th, Appellant was

operating his own phone. Detective Lockhart also pointed out that if Cory

Forshey were using Appellant’s cell phone, he would not be referring to

himself in the third person.

{¶81} On cross-examination, Detective Lockhart admitted that

although Cory Forshey was known to local law enforcement as a person

involved in drugs, Appellant was not known to law enforcement in that 4 Detective Lockhart testified he was able to verify Appellant’s girlfriend by reviewing a picture she sent to Appellant, her phone number, and comparing the information with her BMV photos and her Facebook page. Washington App. No. 17CA17 36

manner. He admitted that drug dealers tended to have their phones’ security

protected. He admitted it was “not a far stretch” that Appellant let other

people use his phone.

{¶82} Furthermore, Detective Lockhart acknowledged that it was

possible that Appellant did not want to identify any persons to whom he had

loaned his phone in order to keep a friend from getting into trouble. He also

acknowledged that no heroin, cash, “ledger,” or packaging was found at

Appellant’s residence when the search warrant was executed. And while

digital scales and half of a straw were found there, no drug residue was

found on them.

{¶83} Through Detective Lockhart’s cross-examination, defense

counsel was able to elicit testimony that it was possible that Tyler was a

diabetic and thus, he could have been discussing a needle with Appellant in

that context. Defense counsel also emphasized that Appellant’s girlfriend

and sister were the last people to see him alive. He also testified he was

unaware if Tyler had heroin in his room prior to leaving for rehab, which he

could have accessed easily upon his return. And, he testified there was no

acknowledgment on Tyler’s phone that he received any heroin from

Appellant during the relevant hours. Washington App. No. 17CA17 37

{¶84} Similar to the opinion in Kramer, after reviewing the entire

record, we conclude Appellant’s involuntary manslaughter conviction is not

against the manifest weight of the evidence. Weighing heavily in favor of

Appellant’s conviction are: (1) the cell phone communications between

Tyler Miller and Appellant’s cell phones, appearing to discuss a transaction

of heroin; and, the evidence indicating Appellant was in possession of his

cell phone at the relevant times. However, similar to Kramer, there are other

similarities.

{¶85} The Kramer court pointed out that Kramer’s credibility and

testimony were undermined. Kramer testified that Matney “always”

contacted him first, yet the cell phone records revealed he had called Matney

twice 6 days before his death. He was also unsure or mistaken about his

whereabouts or the whereabouts of his own cell phone. While Appellant,

unlike Kramer, has no prior criminal record, similarly, his credibility was a

key issue for the jury.

{¶86} We find the jury likely construed Appellant’s interview as

lacking in believability and inconsistent with the text messaging set forth in

the exhibits. As indicated above, Appellant repeatedly denied even knowing

Tyler Miller yet the text messaging exhibits revealed multiple conversations

between the phone numbers attributed to Appellant and Tyler Miller. The Washington App. No. 17CA17 38

jury likely found Appellant’s explanation in the interview that Corey

Forshey and “millions” had access to or used his phone lacking in credibility

when the text messaging revealed that Appellant, or whomever was in

control of his phone, was texting Tyler Miller and Appellant’s own

girlfriend almost simultaneously. Furthermore, the jury likely found the

subjects in the text conversations corroborated factually with Tyler’s father’s

and Tyler’s girlfriend’s trial testimony.

{¶87} Kramer argued there was no “eye-witness” testimony regarding

a sale of heroin. Similarly, Appellant argues no one saw him sell drugs or

even heard him speak of selling drugs in the past. However, as the court

noted in Kramer at 53: “[E]yewitness testimony was not required to convict

Kramer, and the jury was free to consider the absence of eyewitness

testimony in weighing the evidence. See State v. Huff, 4th Dist. Scioto No.

14CA3596, 2015–Ohio–5589, ¶ 47–48.”

{¶88} Appellant also points out the search warrant subsequently

executed at his home yielded no cash, baggies, drugs or paraphernalia

associated with drug trafficking. Kramer argued similarly that there was no

packaging papers located at his residence. The Kramer court also noted:

“[T]he State was not required to produce a bindle paper to support Kramer's Washington App. No. 17CA17 39

conviction, and the jury was again free to consider the absence of any

packaging in weighing the evidence.” Id. at 54.

{¶89} Finally, Appellant points out that Miller had overdosed in the

past; Cory Forshey was a dealer in the area and was listed in Miller’s phone

under two separate numbers; it is unknown if Miller had other drugs in his

possession; and there is a possibility that heroin that resulted in his death

came from an unknown source. However, “ ‘ “[w]hen conflicting evidence

is presented at trial, a conviction is not against the manifest weight of the

evidence simply because the jury believed the prosecution testimony.” ’ ”

State v. Luther, ¶ 18, quoting State v. Cooper, 170 Ohio App.3d 418, 2007-

Ohio-1186, 867 N.E.2d 493 (4th Dist.), ¶ 17, quoting State v. Mason, 9th

Dist. No. 21397, 2003-Ohio-5785, ¶ 17, quoting State v. Gilliam, 9th Dist.

No. 97CA006757, 1998 WL 487085 (Aug. 12, 1998); accord State v.

Chancey, 4th Dist. Washington No. 15CA17, 2015-Ohio-5585, ¶ 36, citing

State v. Wilson, 9th Dist. Lorain No. 12CA010263, 2014-Ohio-3182, ¶ 24,

citing State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189,

¶ 16. Moreover, a conviction is not against the manifest weight of the

evidence even if the “evidence is subject to different interpretations.” State

v. Adams, 2nd Dist. Greene Nos. 2013CA61, 2013–CA–62, 2014-Ohio-

3432, ¶ 24. Washington App. No. 17CA17 40

{¶90} Through opening statement and closing argument, Appellant’s

counsel emphasized an absence of any direct evidence against Appellant and

asserted the weakness of the circumstantial text messaging evidence against

him. Defense counsel urged an interpretation of the evidence which

suggested that Appellant’s old friend Cory Forshey, or some other person,

was in control of Appellant’s phone and transacted a drug deal with Tyler

Miller just hours before he died. The jury apparently believed the

prosecution’s interpretation of the evidence. For the reasons above, we do

not find this to be an exceptional case and we cannot conclude that the trier

of fact clearly lost its way and created such a manifest miscarriage of justice

such that the conviction must be reversed and a new trial ordered. We find

Appellant’s conviction for trafficking in drugs, based largely on the text

messaging evidence and recorded interview, is not against the manifest

weight of the evidence.

2. Involuntary Manslaughter

{¶91} Under Appellant’s second assignment of error, arguing his

involuntary manslaughter conviction is against the manifest weight of the

evidence, Appellant does not make new specific arguments but reiterates

that the verdict was based upon text messages and emphasizes the absence

of other evidence against him, as set forth above. Washington App. No. 17CA17 41

{¶92} Involuntary manslaughter, R.C. 2903.04(A), relevant in this

case, provides: “[n]o person shall cause the death of another * * * as a

proximate result of the offender's committing or attempting to commit a

felony.” State v. Grube, 2013-Ohio-692, 987 N.E.2d 287, (4th Dist.), at ¶ 39.

The culpable mental state of involuntary manslaughter is supplied by the

underlying offense. Id. State v. Johnson, 8th Dist. No. 94813, 2011-Ohio-

1919, at ¶ 54, citing State v. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681,

912 N.E.2d 133, motion for delayed appeal granted 123 Ohio St.3d 1505,

2009-Ohio-6210, 917 N.E.2d 809, cause dismissed 124 Ohio St.3d 1424,

2010-Ohio-20, 919 N.E.2d 748. In State v. Brown, 3rd Dist. Hancock No. 5-

17-19, 2018-Ohio-899, the appellate court explained:

“The ‘criminal intent of involuntary manslaughter is supplied by the criminal intent to do the underlying unlawful act of which the homicide is a consequence.’ State v. Potee, 2017– Ohio–2926, ––– N.E.3d ––––, ¶ 32 (12th Dist.). State v. Mansfield, 2016–Ohio–8189, 69 N.E.3d 767, ¶ 18 (2nd Dist.); State v. Grube, 2013–Ohio–692, 987 N.E.2d 287, ¶ 39 (4th Dist.); State v. Lutman, 6th Dist. Lucas No. L–97–1447, 1999 WL 435196, *6 (June 30, 1999); State v. Losey, 23 Ohio App.3d 93, 491 N.E.2d 379 (10th Dist.1985).”

{¶93} The appellate court in Brown recently considered his argument

that his involuntary manslaughter conviction, based on a predicate offense of

corrupting another with drugs, was not supported by sufficient evidence.

The appellate court simply concluded at ¶ 30: Washington App. No. 17CA17 42

“Since we have found Brown’s arguments against his conviction for corrupting another with drugs are without merit, his conviction for involuntary manslaughter has a properly supported predicate convictions and withstands the sufficiency of the evidence analysis.”

Likewise, Appellant’s conviction for trafficking with drugs is not against the

manifest weight of the evidence and thus, his conviction for involuntary

manslaughter has a properly supported predicate conviction. Thus, we find

no merit to Appellant’s second assignment of error.

{¶94} Similar to the abbreviated analysis in Brown, our decision in

State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, at ¶ 27,

allows for disposition of Appellant’s involuntary manslaughter conviction

sufficiency challenge in summary fashion. However, under Appellant’s first

assignment of error arguing the sufficiency of his involuntary manslaughter

conviction, Appellant makes a different and distinct argument. Appellant

asserts that, assuming he delivered heroin to Tyler Miller, he could not have

legally foreseen Miller’s death because he could not have known that the

effects of a small amount of heroin could be magnified due to Miller’s time

in the drug rehabilitation program. Appellant concludes that the evidence

against him is insufficient because:

1) He cannot be held responsible for the consequences that a reasonable person could not expect to follow from his conduct; and, Washington App. No. 17CA17 43

2) He cannot be held responsible in light of Dr. Shott’s testimony that it is possible that a person who had just been in rehab and was presumably drug-free could overdose more easily.

{¶95} When a court reviews a record for sufficiency, ‘[t]he 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.’ ” Lamb, ¶ 18,

quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d

930, ¶ 146; quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781 (1979). “The court must defer to the trier of fact on questions of

credibility and the weight assigned to the evidence.” State v. Dillard, 4th

Dist. Meigs No. 13CA9, 2014-Ohio-4974, at ¶ 22; citing State v. Kirkland,

140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.

{¶96} Our review of Ohio law demonstrates that Appellant herein is

not the first defendant to argue as to the “foreseeability” of a death occurring

as a result of a conviction for trafficking in drugs or corrupting another with

drugs. Generally, other courts have rejected this argument.

{¶97} In State v. Sabo, 3rd Dist. Union No. 14-09-33, 2010-Ohio-

1261, the defendant allegedly transported liquid methadone and other drugs

to Union County, Ohio, where he shared them with another individual who Washington App. No. 17CA17 44

later overdosed. Sabo was later convicted of involuntary manslaughter.

Sabo argued his conviction was not based on sufficient evidence and was

against the manifest weight of the evidence. In reviewing his appeal, the

appellate court noted at ¶ 25:

“This Court has previously cited to the 10th District's decision in State v. Losey, 23 Ohio App.3d 93, 94-95, 491 N.E.2d 379 (10th Dist. 1985), for guidance on the intention of the Legislature in its use of “proximate result” under R.C. 2903.04. See Shoemaker, 2006-Ohio-5159, at ¶ 65. In that decision, the 10th District stated as follows:

Under [R.C. 2903.04], defendant cannot be held responsible for consequences no reasonable person could expect to follow from his conduct; he will be held responsible for consequences which are direct, normal, and reasonably inevitable-as opposed to extraordinary or surprising-when viewed in the light of ordinary experience. In this sense, then, “proximate result” bears a resemblance to the concept of “proximate cause” in that defendant will be held responsible for those foreseeable consequences which are known to be, or should be known to be, within the scope of the risk created by his conduct. State v. Chambers, 53 Ohio App.2d 266, 373 N.E.2d 393 (9th Dist. 1977). Here, that means that death reasonably could be anticipated by an ordinarily prudent person as likely to result under these or similar circumstances. See State v. Nosis, 22 Ohio App.2d 16, 457 N.E.2d 414 (9th Dist. 1969). Losey, 23 Ohio App.3d at 95, 491 N.E.2d 379.”

{¶98} Sabo argued that there was insufficient evidence that his

aggravated trafficking of drugs proximately caused the victim’s death.

Specifically, he claimed that given the evidence presented at trial, only the

liquid methadone could be associated with him, and neither expert witness Washington App. No. 17CA17 45

could say which one of the five significant drugs found through testing

caused the victim’s death. Sabo concluded it was unforeseeable for him to

have known that the victim had toxic levels of other significant drugs in his

body when he administered the liquid methadone. The appellate court

disagreed, based on the evidence presented in Sabo’s case. Citing State v.

Baksi (Dec. 23, 1999), 11th Dist. No. 98-T-0123, at *16 and State v.

Grunden, 65 Ohio App.3d 777, 783-84, 585 N.E.2d 487 (3rd Dist. 1989),5

the Sabo court noted at ¶ 27:

“While Michael's death was the result of the effects of taking multiple drugs, and neither expert could pinpoint which exact drug caused Michael's death, we believe that a fatal consequence was within the foreseeable scope of risk created by Sabo's conduct in administering the liquid methadone when there was ample evidence regarding Michael's inebriated condition, the fact that he and Sabo had taken other substances together that night, and the fact that Sabo had even warned Michael about using the liquid methadone.”

{¶99} Other courts have addressed the foreseeability argument within

the context of a manifest weight of the evidence analysis. In State v. Wells,

12th Dist. Warren No. CA2016-02-009, 2017-Ohio-420, the decedent

traveled to Wells’ home to exchange his prescription for illegal drugs.

After obtaining “dope” and injecting himself, the victim immediately 5 The Baksi court found that there was sufficient evidence to support involuntary manslaughter conviction when evidence showed defendant prepared an extremely strong hit of heroin and gave the loaded syringe to another inmate who was known to abuse drugs. Grunden held that reasonable minds could have concluded at the close of the State's case that the infant's death was proximately caused by the defendant's conduct in leaving a gram of cocaine unattended on a coffee table, well within the reach and propensities of a thirteen- month-old child. Washington App. No. 17CA17 46

overdosed. Testing later revealed he had cocaine metabolites and fentanyl

in his system at the time of death. At trial, a forensic pathologist and

coroner testified that the level of fentanyl in his system caused him to stop

breathing. The appellate court found that given the evidence before it, the

jury did not lose its way in finding that Wells’ actions caused the overdose

death. The appellate court stated at ¶ 39:

“There is nothing extraordinary or surprising about the manner of [the victim’s] death in relation to appellant’s actions. Appellant provided drugs to a known drug abuser. The possibility of an overdose is a reasonably foreseeable consequence of providing a controlled substance to another. (Emphasis added). See, e.g., State v. Patterson, 11th Dist. Trumbull No. 2013–T–0062, 2015–Ohio–4423, ¶ 80–95; State v. Zusman, 11th Dist. Lake No. 2014–L–087, 2015–Ohio– 3218.”

{¶100} In State v. Veley, 6th Dist. Lucas No. L-16-1038, 2017-Ohio-

9064, Veley argued that the victim’s death in his case was not a “reasonably

inevitable” result of the alleged drug transaction between the deceased and

himself. Veley argued that the victim had purchased heroin over 100 times

from him and as such, his death from an overdose was not likely or

foreseeable. The Veley court observed at ¶ 25:

“Reviewing appellant's argument relating to the general foreseeability issue, we find that in the past decade Ohio courts have widely recognized that death by overdose of an illegal or illegally sold substance is a foreseeable result; inevitability has not been held to be the standard. For example, addressing foreseeability in a case where the defendant sold the deceased Washington App. No. 17CA17 47

heroin and fentanyl and was convicted of involuntary manslaughter, the court noted that “ ‘when the result varied from the harm intended or hazarded, it must be determined that the result achieved was not so extraordinary or surprising that it would be simply unfair to hold the defendant criminally responsible for something so unforeseeable.’ ” State v. Potee, 12th Dist. Clermont No, CA2016–06–045, 2017-Ohio-2926, ¶ 33, ––– N.E.3d ––––, quoting State v. Hall, 12th Dist. Preble No. CA2015-11-022, 2017-Ohio-879, ¶ 78. The court further stated that “a defendant will be held responsible for foreseeable consequences ‘which are known to be, or should be known to be, within the scope of the risk created by his conduct.’ ” Id., quoting Hall at ¶ 79. See State v. Patterson, 11th Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶ 91 (“The possibility of an overdose is a reasonably foreseeable consequence of the sale of heroin.”). Further, “ ‘for something to be foreseeable does not mean that it be actually envisioned.’ ” State v. Wells, 12th Dist. Warren No. CA2016-02-009, 2017-Ohio-420, ¶ 35, quoting State v. Lovelace, 137 Ohio App.3d 206, 219, 738 N.E.2d 418 (1st Dist.1999).”6

{¶101} The Fifth District, however, reached the conclusion that there

was insufficient evidence to convict a defendant of involuntary manslaughter

in State v. Kosto, 5th Dist. Licking No. 17CA54, 2018-Ohio-1925. There,

Baker, the decedent, overdosed. His toxicology report revealed he had

heroin, cocaine, and marijuana in his system. Law enforcement

investigators recovered some of Baker’s deleted cell phone texts which

showed text conversations between Kosto and Baker the day before he died.

6 The Veley court also noted that the suggestion that the ingestion of a fatal drug was an intervening act itself had been rejected. Id., at ¶ 28; State v. Baksim 11th Dist. Trumbull No. 98-T-0123, 1999 WL 12992927 (Dec. 23, 1999). Washington App. No. 17CA17 48

Kosto admitted he had deleted some of his texts because it looked like he

had provided Baker with heroin.

{¶102} Making a sufficiency argument on appeal, Kosto directed the

appellate court to Burrage v. United States, 571 U.S. 204, 134 S.Ct. 881,

892 (2014). There, the United States Supreme Court held that “* * * at least

where use of the drug distributed by the defendant is not an independently

sufficient cause of the victim's death or serious bodily injury, a defendant

cannot be liable under the penalty enhancement provision of 21 U.S.C. §

841(b)(1)(C) unless such use is a but-for cause of the death or injury.” Id. at

892.7 The Court stated: “The language Congress enacted requires death to

‘result from’ use of the unlawfully distributed drug, not from a combination

of factors to which drug use merely contributed.” Id. at 891.

{¶103} The Kosto court pointed out the State of Ohio was required to

prove under R.C. 2903.04(A) that the defendant had caused the death of

Baker as a proximate result of his committing or attempting to commit the

felony offense of corrupting another with drugs under R.C. 2925.02(A)(3).

7 Burrage involved the challenge of a penalty enhancement provision under 21 U.S.C. Sec. 841(b)(1)(C). The federal statute at issue imposed a 20–year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.” The United States Supreme Court in Burrage granted certiorari on two questions, the first of which was whether the defendant could be convicted under the “death results” provision when the use of the controlled substance was a “contributing cause” of the death. Id. at 886. The Court first determined that the federal statute in question imposes a requirement of “but-for causation.” Id. at 889–891. Although the Government proposed the argument that an act or omission should be considered a cause-in-fact if it was a “substantial” or “contributing” factor in producing a given result, this was rejected by the Court. Id. at 890. Washington App. No. 17CA17 49

The indictment and the bill of particulars both alleged that the cause of

Baker's death was based on the felony of corrupting another specifically

with heroin. However, the record in that case revealed that the theory was

not fully consistent with the forensic pathologist’s investigation.

{¶104} The pathologist specifically testified that “acute combined

drug effects” from “[u]sing heroin and cocaine” were the cause of Baker’s

death. The pathologist also could not opine on cross-examination that Baker

would have died from the heroin use in and of itself. In other words, there is

arguably a reasonable probability that but for the use of cocaine, the death

would not have occurred. Appellant was not charged with providing cocaine

to Baker, nor did the State pursue a theory that appellant did so. The Kosto

court concluded at ¶ 23: “[A]s in Burrage, “[n]o expert was prepared to say

that [the victim] would have died from the heroin use alone.”8

{¶105} Based on the above, we also reject Appellant’s foreseeability

argument. Other Ohio courts have consistently found that the possibility of

an overdose is a reasonably foreseeable consequence of providing a

8 The Kosto court further opined at ¶ 24:“We recognize that in Burrage, the United States Supreme Court was interpreting a penalty enhancement provision in a federal statute, not an Ohio criminal statute. However, this distinction does not dissuade us from applying the rationale of Burrage herein, and “* * * we cannot amend statutes to provide what we consider a more logical result.” State v. Link, 155 Ohio App.3d 585, 2003-Ohio-6798, 802 N.E.2d 680, ¶ 17, citing State v. Virasayachack (2000), 138 Ohio App.3d 570, 741 N.E.2d 943. Accordingly, upon review, we find insufficient evidence was presented for reasonable fact finders to conclude beyond a reasonable doubt that appellant was guilty of involuntary manslaughter as charged by the State.” Washington App. No. 17CA17 50

controlled substance to another. In this case, Appellant was indicted

specifically for trafficking in heroin.

{¶106} Dr. Juhascik, a toxicologist with the Montgomery County

Coroner’s Office, testified that the results in the toxicology report were

consistent with a heroin overdose. The report was given to Dr. Robert Shott,

the Montgomery County Coroner, who prepared an opinion as to Tyler’s

cause of death. Dr. Shott explained that 136 nanograms per milliliter found

in Tyler’s femoral blood was enough to be a fatal overdose, and he opined,

to a reasonable degree of medical certainty, that Tyler’s cause of death was

heroin intoxication.

{¶107} Not only is Appellant’s conviction for involuntary

manslaughter supported by sufficient evidence, based solely on the fact it is

a predicate offense, we also find any rational trier of fact could have found

all the elements of involuntary manslaughter proven beyond a reasonable

doubt. Thus, his conviction is also supported by sufficient evidence. As

such, we overrule Appellant’s first assignment of error and affirm the

judgment of the trial court.

ASSIGNMENT OF ERROR FOUR

{¶108} Appellant argues the trial court erred in failing to instruct the

jury as to the lesser-included offense of reckless homicide. Additionally, Washington App. No. 17CA17 51

Appellant contends that he was denied the effective assistance of counsel

when his attorney failed to request an instruction on reckless homicide.

Appellant raises two separate and significant arguments; however, we note

that he has failed to separately argue the assignments of error as required by

App.R. 16(A)(7). While App.R. 12(A)(2) provides authority to disregard

assignments of error on this basis, we may still address the assignments in

the interest of justice. State v. Matzinger, 81 N.E.3d 841, 2017-Ohio-324,

(4th Dist.) at ¶ 28; State v. Reye, 9th Dist. Lorain No. 15CA010770, 2016-

Ohio-3495, 2016 WL 3387769, ¶ 5. See also Comisford v. Erie Ins. Property

Cas. Co., 4th Dist. Gallia No. 10CA3, 2011-Ohio-1373, at ¶ 29. Because in

this case it appears to be a simple matter of form, we proceed to consider

both arguments.

{¶109} Our review of whether a jury instruction is warranted is de

novo. State v. Schwendeman, 4th Dist. Athens No. 17CA7, 2018-Ohio-240,

at ¶18; State v. Depew, 4th Dist. Ross No. 00CA2562, 2002-Ohio-6158, at

¶ 24 (“While a trial court has some discretion in the actual wording of an

instruction, the issue of whether an instruction is required presents a

question of law for de novo review.”) However, because Appellant failed to

request an instruction on reckless homicide, we review Appellant’s Washington App. No. 17CA17 52

argument hereunder a “plain-error” standard of review. Notice of plain error

under Crim.R. 52(B) is to be taken with the utmost of caution, under

exceptional circumstances and only to prevent a manifest miscarriage of

justice. State v. Grube, ¶ 34; See, e.g., State v. Barnes, 94 Ohio St.3d 21, 27,

759 N.E.2d 1240 (2002); State v. Hill, 92 Ohio St.3d 191, 196, 749 N.E.2d

274 (2001). Plain error should not be invoked unless it can be said that, but

for the error, the outcome of the trial would clearly have been otherwise.

See, e.g., State v. Jackson, 92 Ohio St.3d 436, 438, 751 N.E.2d 946 (2001);

State v. Sanders, 92 Ohio St.3d 245, 263, 750 N.E.2d 90 (2001).

1. Did the trial court commit plain error by failing to give a lesser included instruction on reckless homicide? 2. Did Appellant’s counsel render ineffective assistance by failing to request the lesser included offense instruction of reckless homicide?

{¶110} The question of whether a particular offense should be

submitted to the finder of fact as a lesser-included offense involves a two-

tiered analysis. State v. Deanda, 136 Ohio St.3d 118, 2013-Ohio-1722, 989

N.E.2d 986, at ¶ 6;9 State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974,

911 N.E.2d 889, ¶ 13. State v. Wilson, 4th Dist. Scioto No. 13CA3542,

2015-Ohio-2016, at ¶ 42. The first tier, also called the “statutory-elements

9 Deanda provides a comprehensive historical review of the lesser-offenses analysis. Washington App. No. 17CA17 53

step,” is a purely legal question, wherein we determine whether one offense

is generally a lesser-included offense of the charged offense. State v. Kidder,

32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). The second tier looks to

the evidence in a particular case and determines whether “ ‘a jury could

reasonably find the defendant not guilty of the charged offense, but could

convict the defendant of the lesser-included offense.’ ” Evans at ¶ 13,

quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865

N.E.2d 859, ¶ 11.

{¶111} In State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988),

paragraph three of the syllabus, the Supreme Court of Ohio held:

“An offense may be a lesser-included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.”

{¶112} The Deem statement of the rule remained the norm in Ohio for

20 years, until it was further reworded in Evans, supra; Deanda, supra, at

¶ 13. In Deanda, supra, the Supreme Court of Ohio explained:

“[T]he test does not require identical language to define the two offenses, but focuses upon whether the words used in the statute defining the greater offense will put the offender on notice that an indictment for that offense could also result in the prosecution of the lesser-included offense. Evans at ¶ 22. Thus, in order ‘to ensure that such implausible scenarios will not derail a proper lesser included offense analysis’ in the future, Washington App. No. 17CA17 54

we made one minor change in the phrasing of the second step of the statutory-elements test stated in Deem, by deleting the word ‘ever.’ Id. at ¶ 25. The second step now requires that ‘the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.’ Id. at paragraph two of the syllabus.”

{¶113} With this framework in mind, we now consider whether the

trial court should have given the jury a reckless homicide instruction as a

lesser-included offense of involuntary manslaughter. Our research has

yielded little guidance on whether, as a general premise, reckless homicide is

a lesser-included offense of involuntary manslaughter. Other appellate

districts have reached differing conclusions.

{¶114} In State v. Hipshire, 2nd Dist. Darke No. 2010-CA-07, 2011-

Ohio-3863, the defendant contended that the trial court erred in refusing to

instruct the jury on the lesser-included offense of reckless homicide. The

trial court instructed the jury on the elements of involuntary manslaughter,

but stated that it could find nothing to indicate that reckless homicide was a

lesser-included offense in terms of statutory interpretation or common law

decision. As in Appellant’s case herein, Hipshire was convicted of having

violated R.C. 2903.04(A), involuntary manslaughter, which does not specify

a culpable mental state, but the mental state “is supplied by the underlying

offense.” Id. at ¶ 28. See also State v. Carusone, 1st Dist. Hamilton No. C–

010681, 2003–Ohio–1018, ¶ 47. Washington App. No. 17CA17 55

{¶115} In Hipshire, the underlying felony offense for which Hipshire

was indicted was a violation of R.C. 2903.16(A), failing to provide for a

functionally impaired person, which required proof of the mental state of

“knowingly.” The appellate court held:

“Although Hipshire should have been more attentive to his wife's condition, there is evidence that she was not malnourished, that she did receive food and medication, and that some degree of care was given. A jury could reasonably conclude that Hipshire showed heedless indifference to the consequences and perversely disregarded a known risk that his conduct was likely to result in his wife's death, thus meriting the Reckless Homicide instruction. Accordingly, the trial court erred in refusing to instruct the jury on Reckless Homicide as a lesser-included offense.”

The Hipshire court ultimately concluded that the trial court based its

decision on incorrect legal grounds, not on factual conclusions relating to the

state of the evidence.10

{¶116} In Carusone, supra, the appellate court considered the

culpable mental states required for involuntary manslaughter and reckless

homicide and concluded that the mental states were inconsistent. However,

Carusone is distinguishable in that Carusone was involved in an altercation

with two victims (emphasis added). The court held at ¶ 50:

10 Hipshire held that the court's stated reason for refusing to give the instruction was based on unsound reasoning—an error of law—and in that respect, was an abuse of discretion. Id. at 41. See, e.g., AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.3d 597(1990). Washington App. No. 17CA17 56

“We hold, under the facts of this case, that Carusone could not have been found guilty of both involuntary manslaughter and reckless homicide. * * * The evidence did not reasonably support findings that Carusone acted both knowingly and recklessly * * *.”

{¶117} In State v. Patterson, 11th Dist. Trumbull No. 2013-T-0062,

2015-Ohio-4423, a case similar to ours, the defendant was convicted for

reckless homicide and corrupting another with drugs, along with other

felonies. In a dissenting opinion, Justice Wright opined at ¶ 117:

“Involuntary manslaughter can be committed without reckless homicide also being committed.”

{¶118} Assuming, as in Hipshire, there are occasions where reckless

homicide may fairly be considered a lesser-included offense of involuntary

manslaughter, here, we do not find the trial court’s failure to give a lesser-

included instruction was in error, let alone plain error. At trial, the defense

theory of the case was that there was an absence of evidence that Appellant

trafficked in drugs. Appellant’s involuntary manslaughter conviction is

contingent only upon proof of the underlying felony trafficking. Defense

counsel pointed out in closing that there was only circumstantial evidence of

texting between Tyler Miller’s phone and “whomever” was using

Appellant’s phone. Defense counsel emphasized Appellant’s lack of a

criminal record. Defense counsel’s closing argument emphasized that

Appellant’s friend, Cory Forshey, had access to Appellant’s cell phone, thus Washington App. No. 17CA17 57

attempting to plant the idea that Corey Forshey was the one trafficking in

drugs the night Tyler Miller overdosed.

{¶119} It appears defense counsel’s strategy was “all or nothing,” to

argue for a complete acquittal of both charges. It would have been

inconsistent for Appellant’s counsel to argue for complete acquittal while at

the same time, attempt to argue that Appellant “knew of a dangerous

situation,” yet “failed to use ordinary care” as set forth above in the

definition of “recklessness.” Generally, a failure to request a jury instruction

on a lesser-included offense is presumed to be a matter of trial strategy.

Wilson, supra, at ¶ 42. In this case, that Appellant’s trial counsel employed

this “all-or-nothing” strategy is a reasonable presumption.

{¶120} For the foregoing reasons, we find no plain error with regard

to the trial court’s failure to give a lesser-included offense jury instruction.

Related to the above argument, Appellant has also asserted he received

ineffective assistance of counsel due to his attorney’s failure to request a

lesser-included offense instruction. Given our finding that Appellant did not

request the instruction as a matter of reasonable trial strategy, similarly, we

find Appellant was not rendered the ineffective assistance of counsel with

regard to the lack of request for this instruction. Washington App. No. 17CA17 58

{¶121} Criminal defendants have a right to counsel, including a right

to the effective assistance from counsel. State v. Hill, 4th Dist. Athens No.

16CA3, 2018-Ohio-67, at ¶ 41. McMann v. Richardson, 397 U.S. 759, 770,

90 S.Ct. 1441 (1970); State v. Stout, 4th Dist. Gallia No. 07CA5, 2008-

Ohio-1366, at ¶ 21. To establish constitutionally ineffective assistance of

counsel, a defendant must show (1) that his counsel's performance was

deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904

(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In

order to show deficient performance, the defendant must prove that counsel's

performance fell below an objective level of reasonable representation. To

show prejudice, the defendant must show a reasonable probability that, but

for counsel's error, the result of the proceeding would have been different.”

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

¶ 95 (citations omitted). “Failure to establish either element is fatal to the

claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968,

¶ 14, 2008 WL 613116. Therefore, if one element is dispositive, a court

need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000- Washington App. No. 17CA17 59

Ohio-448, 721 N.E.2d 52, (stating that a defendant's failure to satisfy one of

the elements “negates a court's need to consider the other”).

{¶122} When considering whether trial counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.” Hill, supra, at ¶ 42, quoting Strickland at 689, 104

S.Ct. 2052. Thus, “the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound

trial strategy.” Id. “A properly licensed attorney is presumed to execute his

duties in an ethical and competent manner.” State v. Taylor, 4th Dist.

Washington No. 07CA11, 2008-Ohio-482, ¶ 10, quoting State v. Smith, 17

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).

{¶123} As cited above, “[T]actical or strategic trial decisions, even if

ultimately unsuccessful, do not generally constitute ineffective assistance of

counsel.” State v. Rizer, 4th Dist. Meigs No. 10CA3, 2011-Ohio-5702, at

¶ 37, quoting In re Wingo, 143 Ohio App.3d 652, 668, 2001–Ohio–2477,

758 N.E.2d 780, (4th Dist.), citing State v. Carter, 72 Ohio St.3d 545, 558,

1995–Ohio–104, 651 N.E.2d 965. The underlying conviction, trafficking in

drugs, was supported by circumstantial evidence which defense counsel

vigorously challenged. As such, we view counsel’s decision not to request Washington App. No. 17CA17 60

the lesser-included instruction on reckless homicide to be a reasonable trial

strategy and we do not find it to be deficient representation.

{¶124} For the foregoing reasons, we find no merit to Appellant’s

fourth assignment of error. It is hereby overruled. And, we affirm the

decision of the trial court.

JUDGMENT AFFIRMED. Washington App. No. 17CA17 61

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Harsha, J.: Concur in Judgment and Opinion.

For the Court,

BY: ___________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.