State v. Richard , 2021 Ohio 2980 ( 2021 )

[Cite as State v. Richard, 2021-Ohio-2980.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-20-36
v.
GREGORY RICHARD, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 18-CR-150
Judgment Affirmed
Date of Decision: August 30, 2021
APPEARANCES:
William T. Cramer for Appellant
Nathan R. Heiser for Appellee
Case No. 9-20-36
ZIMMERMAN, J.
{¶1} Defendant-appellant, Gregory Richard, Jr. (“Richard”), appeals the
September 23, 2020 judgment entry of sentence of the Marion County Court of
Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a series of drug-related events, including the April
2016 overdose of Halee Hull (“Hull”) and the October 17, 2017 overdose death of
Todd Thompson (“Thompson”) in Marion County.1 On April 5, 2018, the Marion
County Grand Jury indicted Richard on Count One of trafficking in heroin in
violation of R.C. 2925.03(A)(1), (C)(6), a fifth-degree felony, and Count Two of
involuntary manslaughter in violation of R.C. 2903.04(A), a first-degree felony.
(Doc. No. 1). However, because he was incarcerated in federal prison on another
case, he did not appear for arraignment in Marion County until June 17, 2019. (Doc.
No. 19). When he appeared for arraignment, he entered pleas of not guilty to the
indictment. (Id.).
{¶3} On June 19, 2019, under a superseding indictment, the Marion County
Grand Jury indicted Richard on an additional count of corrupting another with drugs
in violation of R.C. 2925.02(A)(3), a second-degree felony. (Doc. No. 21). The
superseding indictment also included a forfeiture specification as to the corrupting-
another-with-drugs count and the trafficking-in-heroin count. (Id.). On June 24,
1
Richard was also charged in this case in relation to the October 2015 overdose death of Carol Heenan;
however, the jury found Richard not guilty of those charges.
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2019, Richard appeared for arraignment and entered pleas of not guilty to the new
indictment. (Doc. No. 32).
{¶4} On July 11, 2019, under a second superseding indictment, the Marion
County Grand Jury indicted Richard on twenty-five counts: Count One of engaging
in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a first-degree
felony; Counts Two, Five through Fourteen, Sixteen through Twenty, and Twenty-
Two of trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6), fifth-degree
felonies; Counts Three, Fifteen, and Twenty-Three of corrupting another with drugs
in violation of R.C. 2925.02(A)(3), second-degree felonies; Counts Four and
Twenty-Four of involuntary manslaughter in violation of R.C. 2903.04(A), first-
degree felonies; Count Twenty-One of trafficking in heroin in violation of R.C.
2925.03(A)(2), (C)(6), a fourth-degree felony; and Count Twenty-Five alleging that
Richard was previously convicted of a federal-drug offense. (Doc. No. 65). Richard
appeared for arraignment on July 15, 2019 and entered pleas of not guilty to the
second superseding indictment. (Doc. No. 102).
{¶5} On July 17, 2019, under a supplemental indictment, the Marion County
Grand Jury indicted Richard on forfeiture specifications as to Counts One through
Three and Five through Twenty-Five. (Doc. No. 108). Richard appeared for
arraignment on July 22, 2019 and entered pleas of not guilty to the supplemental
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indictment. (Doc. No. 127). Also that day, Richard filed motions to dismiss the
second superseding indictment. (Doc. Nos. 120, 121).
{¶6} On July 23, 2019, Richard filed a motion to dismiss Counts Five
through Thirteen and Counts Sixteen through Twenty-One, which the State
opposed. (Doc. Nos. 129, 131, 132, 144). On July 26, 2019, the trial court granted
Richard’s motion to dismiss Counts Five through Thirteen and Counts Sixteen
through Twenty-One of the second superseding indictment, and dismissed those
counts. (Doc. No. 148). Also that day, Richard filed a motion for separate trials
under Crim.R. 14, which the State opposed. (Doc. Nos. 136, 137). After a hearing
on July 29, 2019, the trial court denied Richard’s motion to dismiss the second
superseding indictment and Richard’s motion to separate trials that same day. (Doc.
Nos. 154, 155, 156).
{¶7} On August 10, 2020, the State filed a motion to dismiss Counts One and
Twenty-Five. (Doc. No. 392). (See also Aug. 14, 2020 Tr., Vol. IV, at 736). The
next day, the trial court (by agreement of the parties) dismissed Counts One and
Twenty-Five and amended the indictment as follows: Counts One, Four, and Six to
trafficking in heroin in violation of R.C. 2925.03(A)(2), (C)(6), fifth-degree
felonies; Counts Two, Five, and Eight to corrupting another with drugs in violation
of R.C. 2925.02(A)(3), second-degree felonies; and Counts Three and Nine to
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involuntary manslaughter in violation of R.C. 2903.04(A), first-degree felonies.
(Doc. No. 402).
{¶8} Also on August 10, 2020, Richard filed a motion to dismiss the
amended second superseding indictment alleging a violation of his speedy-trial
rights, which the trial court denied. (Doc. No. 399); (Aug. 12, 2020 Tr., Vol. II, at
179). The case proceeded to a jury trial on August 11-17, 2020. (Doc. No. 448).
On August 17, 2020, the jury found Richard guilty of Counts Four, Five, Eight, but
not guilty of Counts One, Two, Three, Six, and Nine of the amended second
superseding indictment. (Doc. Nos. 428, 429, 430, 431, 432, 433, 434, 435).
{¶9} On September 22, 2020, the trial court sentenced Richard to 11 months
in prison on Count Four, 5 years in prison on Count Five, and 7 years in prison on
Count Eight. (Doc. No. 458). The trial court ordered that Richard serve the terms
imposed as to Counts Four and Five concurrently, and further ordered that those
concurrent terms be served consecutively to the term imposed as to Count Eight, for
a total aggregate sentence of 12 years in prison. (Id.).2 The trial court further
ordered the currency identified in the forfeiture specifications forfeited. (Id.). (See
also Sept. 22, 2020 Tr. at 19).
{¶10} Richard filed his notice of appeal on October 2, 2020. (Doc. No. 466).
He raises five assignments of error for our review. For ease of our discussion, we
2
The trial court filed its judgment entry of sentence on September 23, 2020. (Doc. No. 458).
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will review Richard’s first and second assignments of error, followed by his third
and fourth assignments of error together, then his fifth assignment of error.
Assignment of Error No. I
Appellant’s rights to a speedy trial under the Sixth Amendment
and the Ohio Constitution were violated by post-indictment delay
in regard to count seven, corrupting another with drugs.
{¶11} In his first assignment of error, Richard argues that the trial court erred
by denying his motions to dismiss the second superseding indictment (and the
amended superseding indictment) alleging a post-indictment delay because his
constitutional right to a speedy trial was violated. In particular, Richard contends
only that his corrupting-another-with-drugs charge under Count Eight “should be
dismissed on speedy trial grounds” since “[t]he original indictment was filed in
April 2018 and trial was not held until August 2020, a total of two years and four
months,” and he was prejudiced by this delay.3 (Appellant’s Brief at 12, 16).
Standard of Review
{¶12} “Appellate review of a trial court’s decision on a motion to dismiss for
a speedy-trial violation involves a mixed question of law and fact.” State v.
Westerfield, 3d Dist. Crawford No. 3-17-15, 2018-Ohio-2139, ¶ 17, citing State v.
James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, ¶ 23. See also State v.
3
In his brief, Richard alleges that his corrupting-another-with drugs conviction under Count Seven should be
dismissed on speedy-trial grounds; however, “there’s no Count [Seven]” in this case. (Aug. 17, 2020 Tr.,
Vol. V, at 794). (See also Aug. 14, 2020 Tr., Vol. IV, at 735-736). Because there is no Count Seven in this
case, we are assuming that Richard is alleging a speedy-trial violation as to Count Eight.
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Johnson, 4th Dist. Scioto No. 16CA3733, 2016-Ohio-7036, ¶ 19 (“Furthermore, we
review a decision interpreting the [Interstate Agreement on Detainers (“IAD”)]
under a de novo standard of review.”). “‘Accordingly, a reviewing court must give
due deference to the trial court’s findings of fact if they are supported by competent,
credible evidence but will independently review whether the trial court correctly
applied the law to the facts of the case.’” State v. Gartrell, 3d Dist. Marion No. 9-
14-02, 2014-Ohio-5203, ¶ 104, quoting State v. Hansen, 3d Dist. Seneca No. 13-12-
42, 2013-Ohio-1735, ¶ 20, citing State v. Masters, 172 Ohio App.3d 666, 2007-
Ohio-4229, ¶ 11 (3d Dist.). See also Westerfield at ¶ 17.
Analysis
{¶13} “An accused is guaranteed the constitutional right to a speedy trial
pursuant to the Sixth and Fourteenth Amendments of the United States Constitution
and Ohio Constitution, Article I, Section 10.” State v. Ferguson, 10th Dist. Franklin
No. 16AP-307, 2016-Ohio-8537, ¶ 12, citing State v. Taylor, 98 Ohio St.3d 27,
2002-Ohio-7017, ¶ 32. “Although ‘statutory and constitutional speedy trial [rights]
are [generally] coextensive,’ the constitutional right, as embodied in the Ohio
Constitution and the United States Constitution, ‘may be broader than the * * *
statutory right’ in some circumstances.” State v. Wagner, 2d Dist. Miami No. 2020-
CA-6, 2021-Ohio-1671, ¶ 14, quoting State v. Kadunc, 10th Dist. Franklin No.
15AP-920, 2016-Ohio-4637, ¶ 19.
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{¶14} “‘To determine whether a defendant has been deprived of [their]
constitutional speedy-trial rights, a court must balance four factors: (1) the length
of the delay, (2) the reason for the delay, (3) the defendant’s assertion of a speedy-
trial right, and (4) the prejudice to the defendant.’” State v. Irish, 3d Dist. Mercer
No. 10-18-13, 2019-Ohio-2765, ¶ 25, quoting State v. Adams, 144 Ohio St.3d 429,
2015-Ohio-3954, ¶ 88.
{¶15} “However, prior to engaging in any balancing, ‘the court must make a
threshold determination concerning the length of [the] delay.’” Id. at ¶ 26, quoting
Adams at ¶ 89. “‘“Until there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that go into the balance.”’”
(Emphasis sic.) Id., quoting State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶
23, quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 (1972). “A delay
becomes presumptively prejudicial as it approaches one year in length.” Adams at
¶ 90, citing Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686 (1992), fn.
1.
{¶16} In this case, even if we assume without deciding that Richard’s
corrupting-another-with-drugs conviction under Count Eight “relate[s] back to the
original April 2018 indictment for purposes of evaluating speedy trial,” Richard’s
constitutional right to a speedy trial was not violated. (Appellant’s Brief at 11). See
Adams at ¶ 84 (noting that “[a] later indictment is not subject to the speedy-trial
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timetable of an earlier indictment or arrest ‘when additional criminal charges arise
from facts different from the original charges, or the state did not know of these
facts at the time of the initial indictment’ or earlier arrest”), quoting State v. Baker,
78 Ohio St.3d 108, 110 (1997). Here, the delay from the issuance of the indictment
until Richard was brought to trial was approximately 28 months (April 5, 2018 to
August 11, 2020). This delay weighs in favor of Richard and is long enough to be
deemed “presumptively prejudicial,” which necessitates consideration of the
second, third, and fourth factors to determine whether he was deprived of his
constitutional speedy-trial rights. See Wagner at ¶ 25, citing Barker at 530 and
Adams at ¶ 88. Nevertheless, while the 28-month delay exceeded the one-year
prescription, the first factor’s weight is negligible (for reasons more fully explained
below) since it did not result in a significant infringement on Richard’s liberty. See
State v. Triplett, 78 Ohio St.3d 566, 569 (1997).
{¶17} Accordingly, we will address the next factor—the reason for the delay.
“The inquiry into causation for the delay involves a sliding scale.” Irish at ¶ 31.
“‘Where the state purposefully causes a delay, hoping to gain some impermissible
advantage at trial, this factor would weigh heavily against the state and in favor of
dismissal.’” Id., quoting State v. Hubbard, 12th Dist. Butler No. CA2014-03-063,
2015-Ohio-646, ¶ 19, citing Doggett at 656. “In contrast, where the defendant
caused or contributed to the delay, this factor would weigh significantly against
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him.” Id. “Finally, ‘[a] more neutral reason such as negligence or overcrowded
courts should be weighted less heavily but nevertheless should be considered * * *
.’” Id., quoting Barker at 531. “‘“Between diligent prosecution and bad-faith delay,
official negligence in bringing an accused to trial occupies the middle ground.”’”
Id., quoting Hubbard at ¶ 19, quoting Doggett at 656-657. “‘“Although negligence
is obviously to be weighed more lightly than a deliberate intent to harm the
accused’s defense, it still falls on the wrong side of the divide between acceptable
and unacceptable reasons for delaying a criminal prosecution once it has begun.”’”
Id., quoting Hubbard at ¶ 19, quoting Doggett at 657.
{¶18} Here, Richard argues that “a large portion of the delay is directly
attributable to the State” because it “should not have taken three months” to serve
him with the indictment and the warrant and because the State’s “neglect resulted
in another five months of delays” “after Richard filed his IAD motion.”
(Appellant’s Brief at 14). In other words, Richard challenges only the delay between
the indictment and the time he arrived in Ohio to face trial. Accordingly, we will
address only that period of delay under the second factor. In our review of the
second factor, we cannot find any evidence in the record to suggest that the State
intentionally caused that delay, even though the State concedes that it may have
been negligent in causing some delay during that time period.
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{¶19} Indeed, our review of the record in this case reveals that a warrant for
Richard’s arrest was returned on April 6, 2018—the day after the indictment was
issued in this case—with instructions for personal or residential service on Richard
at 308 Carner Avenue in Marion or at the Multi-County Jail in Marion. (Doc. Nos.
2, 3). Yet, after attempting to personally serve Richard, the warrant was returned
on June 28, 2018 indicating that Richard did “not live at [that] address.” (Doc. No.
6). Nevertheless, a second warrant was issued on July 17, 2018 with instructions
for personal or residential service on Richard at a federal prison in West Virginia.
(Doc. No. 7). Thereafter, personal service on Richard was perfected at the federal
prison on July 27, 2018. (Doc. No. 8).
{¶20} Our review of the record reflects that Richard pleaded guilty in a
federal case on June 12, 2018 and was sentenced to 21 months in federal prison on
June 15, 2018. (Doc. No. 129, Exs. B, C). Thus, and contrary to Richard’s argument
on appeal, we cannot say that the record supports that the State willfully refused to
take the appropriate steps to determine Richard’s location between April and July
2018.
{¶21} Moreover, we cannot say that the State intentionally caused a delay by
failing to respond to Richard’s IAD motion. “Although codified at R.C. 2963.30,
the IAD is ‘a congressionally sanctioned interstate compact * * * and thus is a
federal law subject to federal construction.’” State v. Wells, 94 Ohio App.3d 48, 52
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(10th Dist.1994), quoting Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401(1985), and citing Cuyler v. Adams, 449 U.S. 433, 436-442, 101 S.Ct. 703 (1981).
{¶22} “The IAD outlines two procedures by which a prisoner against whom
a detainer has been lodged may be transferred to the temporary custody of another
state for disposition of charges pending there.” (Emphasis added.) State v. Black,
142 Ohio St.3d 332, 2015-Ohio-513, ¶ 8. “‘One of these procedures may be invoked
by the prisoner; the other by the prosecuting attorney of the receiving State.’” Id.,quoting State. Cuyler, 449 U.S. 433, 444, 101 S.Ct. 703 (1981).
{¶23} Under the prisoner-initiated procedure outlined in the statute, “a
federal prisoner must be brought to trial within 180 days following the delivery of
written notice to the appropriate trial court and prosecutor’s office accompanied by”
documentation outlined in Article III(a) of the IAD. (Emphasis added.) State v.
Barrett, 191 Ohio App.3d 245, 2010-Ohio-5139, ¶ 10 (8th Dist.), citing R.C.
2963.30, Article III(a). Specifically, “Article III(b) requires the prisoner to send
written notice requesting final disposition to the ‘warden, commissioner of
corrections or other official having custody of him.’” Id., quoting R.C. 2963.30,
Article III(b). This official is then required to forward the written notice and the
accompanying documentation “to the appropriate prosecuting official and court by
registered or certified mail, return receipt requested.” (Emphasis added.) R.C.
2963.30, Article III(b).
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{¶24} Although this official “must promptly inform the prisoner of any
detainer as well as the prisoner’s rights in making a request for final disposition,”
there is no duty under the IAD “on the part of the state to promptly notify prisoners
of pending indictments.” (Emphasis added.) Black at ¶ 9; State v. Wells, 110 Ohio
App.3d 275, 281 (10th Dist.1996). See also State v. Kopietz, 6th Dist. Lucas No. L-
19-1037, 2019-Ohio-5277, ¶ 19 (declining “to impose an implied obligation on the
state to file a detainer upon a defendant who is in custody of another state”).
{¶25} “[T]he one-hundred-eighty-day time period set forth in R.C. 2963.30
* * * begins to run when a prisoner substantially complies with the requirements of
the statute set forth in Article III(a) and (b) thereof.” State v. Mourey, 64 Ohio St.3d
482, 485 (1992). “‘“Substantial compliance” requires the defendant to do
“everything that could be reasonably expected.”’ Barrett, 191 Ohio App.3d 245,
2010-Ohio-5139, at ¶ 11, quoting State v. Quinones, 168 Ohio App.3d 425, 2006-
Ohio-4096, ¶ 17 (8th Dist.), quoting State v. Ferguson, 41 Ohio App.3d 306, 311
(10th Dist.1987).
{¶26} “Under the prosecutor-initiated procedure outlined in the statute, the
receiving state has 120 days after the prisoner’s arrival in the state to bring the
prisoner to trial.” Black at ¶ 10, citing R.C. 2963.30, Article IV(c). Specifically,
“[a]rticle IV applies when the prosecution files the detainer.” State v. Levy, 8th Dist.
Cuyahoga No. 83114, 2004-Ohio-4489, ¶ 36. See also Black at ¶ 10 (“To initiate
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the procedure, the prosecuting official in the receiving state must make a written
request for temporary custody to the ‘appropriate authorities of the state in which
the prisoner is incarcerated.’”), quoting R.C. 2963.30, Article IV(a). “When the
prosecution files the detainer, the speedy trial begins to run after the inmate is
returned to the requesting state.” Levy at ¶ 36.
{¶27} Under either procedure, the IAD requires dismissal of criminal
charges in three circumstances: (1) “if a trial is not held in the receiving state ‘prior
to the return of the prisoner to the original place of imprisonment’”; (2) “if the
receiving state fails to accept temporary custody of the prisoner after filing a
detainer” or (3) “[i]f a prisoner is not brought to trial within the time periods
proscribed by Articles III and IV” of the IAD. Black at ¶ 11, quoting R.C. 2963.30,
Article III(d), and citing Article IV(e); Johnson, 2016-Ohio-7036, at ¶ 35.
{¶28} To determine whether Article III or IV of the IAD are applicable to
Richard’s case, we must first determine whether the State lodged a detainer against
Richard. See State v. Hornsby, 2d Dist. Montgomery No. 28322, 2020-Ohio-1526,
¶ 11. See also Johnson at ¶ 22. “Although the term ‘detainer’ is not defined in the
IAD, the agreement, by its terms, makes the existence of a detainer a prerequisite to
its applicability.” Wells, 94 Ohio App.3d at 53, citing United States v. Mauro, 436
U.S. 340, 347-351, 98 S.Ct. 1834 (1978). See also Johnson at ¶ 24 (“The provisions
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of the IAD are triggered when a prosecutor files a detainer with the institution
currently holding the prisoner.”).
Given the means employed in Article III to achieve the IAD’s
purpose, the detainer requirement of the IAD is simply to ensure that
prison officials in a “sending state” have in fact received official
notice of criminal charges pending in another state against an inmate;
it is not intended to impose technical requirements regarding the form
of that notice, as such technical requirements would frustrate the very
purpose of the agreement by rendering it inapplicable in many cases
where prison officials have in fact been notified that charges are
pending in another state against one of their inmates.
Wells at 53.
{¶29} “Further, the history of the IAD reveals that both the drafters of the
agreement and the United States Congress had broad and general understandings of
what constituted a ‘detainer’ for purposes of the IAD.” Id. Generally, “a detainer
is ‘a request filed by a criminal justice agency with the institution in which a prisoner
is incarcerated, asking the institution either to hold the prisoner for the agency or to
notify the agency when [the] release of the prisoner is imminent.’” State v. Sanchez,
110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 19, quoting Carchman, 473 U.S. at 719.
See also Black at ¶ 5. However, the United States Supreme Court (referring to the
legislative history of the IAD) additionally noted that “detainer may be defined as a
warrant filed against a person already in custody with the purpose of insuring that
he will be available to the authority which has placed the detainer.” (Citation
omitted.) Carchman at 727.
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{¶30} Even if we construe the definition of a detainer in the most liberal
sense in relation to the indictment against Richard or the warrant for his arrest, none
of the provisions under Article III or IV of the IAD are applicable to Richard’s case.
First, assuming without deciding that a detainer was properly placed against Richard
in this case (to ultimately determine whether the State intentionally caused a delay),
the provisions of Article III are inapplicable to Richard’s case because Richard
failed to follow the necessary steps to substantially comply with the requirements
of Article III to invoke the right to be brought to trial within 180 days.
{¶31} In this case, Richard sent a written notice on January 3, 2019 to only
the Marion County Clerk of Courts by ordinary mail.4 (See Doc. No. 9).
Importantly, the record reflects that Richard did not send his notice to the Marion
County Prosecutor’s Office. And, because Richard did not send his notice to the
Marion County Prosecutor’s Office, he did not substantially comply with the
requirements in the IAD. Accord Levy, 2004-Ohio-4489, at ¶ 32-35 (concluding
that Levy did not substantially comply with the requirements in the IAD since Levy
mailed his request to only the Cuyahoga County Common Pleas Court clerk’s office
by ordinary mail). Accordingly, Richard did not invoke the provisions of Article
III of the IAD. Thus, the provisions of Article III are not applicable to Richard’s
case.
4
Richard sent a second written notice on April 25, 2019 to only the Marion County Clerk of Courts by
ordinary mail. (Doc. No. 16).
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{¶32} Consequently, since Richard failed to invoke Article III of the IAD,
Article IV applies to his case (assuming without deciding that a detainer was
properly placed). Accord Levy at ¶ 36 (“Accordingly, we conclude Levy failed to
invoke Article III(a) or (b); therefore, Article IV applies.”). Moreover, since
Richard was not transferred from custody in West Virginia to custody in Ohio, the
State’s time to try him never began to run.5 Accord Hornsby, 2020-Ohio-1526, at ¶
12 (concluding that “Hornsby did not demonstrate that dismissal was appropriate
under Article IV [since] the State’s time to try him never began to run, because he
was not transferred from custody in Indiana into custody in Ohio”).
{¶33} Nevertheless, there is no evidence in the record reflecting that the
indictment or the warrant were served on the federal prison at which Richard was
incarcerated, and neither presented a request that Richard be held so that he could
be transferred into custody in Ohio for trial on the charges against him in Marion
County. Compare id. at ¶ 13 (“Additionally, neither the indictment nor the warrant
were served on Branchville Correctional Facility, and neither presented a request
that Hornsby be held there so that he could later be transferred into custody in Ohio
for trial on the charge against him here.”). See also Wells, 94 Ohio App.3d at 54.
“Neither the indictment nor the warrant, therefore, could have functioned as a
detainer, because both failed to convey the request that is the defining characteristic
5
Even though Richard asserts that he was brought to Ohio on June 17, 2019 under a detainer, this court
cannot find any evidence in the record reflecting that assertion. (See Appellant’s Brief at 1).
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of a detainer.” Hornsby at ¶ 13, citing State v. Smith, 4th Dist. Ross No. 18CA3627,
2018-Ohio-5020, ¶ 30.
{¶34} Furthermore, even though the State is under no obligation to lodge a
detainer against a defendant who is incarcerated in another state, the State assumes
some negligence in attempting to bring Richard to Ohio to face the charges in
Marion County. (See Appellee’s Brief at 8); Kopietz, 2019-Ohio-5277, ¶ 19. See
also Black, 142 Ohio St.3d 332, 2015-Ohio-53, at ¶ 9; Wells, 110 Ohio App.3d at
281. Specifically, the State concedes that (notwithstanding our conclusion that
Richard failed to substantially comply with the requirements of the IAD to invoke
the provisions of Article III), the trial court ordered it on January 16, 2019 to respond
to Richard’s January 3, 2019 written notice, and that it failed to respond until April
2019. (Appellee’s Brief at 8). (See also Doc. Nos. 10, 14).
{¶35} Nevertheless, instead of proceeding under the prosecutor-initiated
provisions of the IAD, the State filed a writ of habeas corpus ad prosequendum on
April 18, 2019 with the Federal Bureau of Prisons requesting Richard to be returned
to the trial court for purposes of arraignment. (See Doc. Nos. 13, 14, 15). However,
this court has previously held that a writ of habeas corpus ad prosequendum does
not constitute a detainer as described by the IAD. See State v. Dye, 3d Dist.
Crawford No. 3-92-47, 1993 WL 157728, *3-4 (May 14, 1993). See also Mauro,
436 U.S. 340, at syllabus.
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{¶36} Therefore, based on the State’s concession of some minor
prosecutorial negligence, we conclude that such weighs in Richards’ favor, if only
somewhat, under the second factor. See Irish, 2019-Ohio-2765, at ¶ 35.
{¶37} Next, under the third factor, we consider Richard’s assertion of his
right to a speedy trial. “‘The third factor addresses the timeliness and frequency of
the defendant’s assertions of his speedy-trial right.’” Id. at ¶ 36, quoting State v.
Rice, 1st Dist. Hamilton No. C-150191, 2015-Ohio-5481, ¶ 27, citing Barker, 407
U.S. at 529. Here, the record reflects that Richard knew of the charges (at the latest)
on July 27, 2018, when he was personally served with a copy of the indictment.
(See Doc. No. 8). Yet, Richard failed to assert his right to a speedy trial until January
3, 2019, when he filed his first (defective) written notice attempting to invoke the
provisions of Article III of the IAD. Even if the State properly lodged a detainer
against Richard (and assuming that Richard’s written notice was not defective),
there is a five-month gap in time for which Richard bears some responsibility. See
Rice at ¶ 27, citing State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-
4666, ¶ 31. Thus, we conclude that the third factor weighs in the State’s favor.
{¶38} Finally, we consider the degree to which Richard was prejudiced by
the delay. “In considering the prejudice suffered by a defendant, the Supreme Court
of the United States has ‘held that the inquiring court should assess prejudice “in
light of the interests the speedy trial right was designed to protect.”’” Irish at ¶ 38,
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quoting State v. McCain, 9th Dist. Wayne No. 15AP0055, 2016-Ohio-4992, ¶ 18,
quoting Barker at 532. The speedy-trial right was designed to “‘[1] to prevent
oppressive pretrial incarceration; [2] to minimize anxiety and concern of the
accused; and [3] to limit the possibility that the defense will be impaired.” State v.
Spencer, 4th Dist. Scioto No. 15CA3718, 2017-Ohio-456, ¶ 36, quoting Barker at
532. “‘“Of these forms of prejudice, ‘the most serious is the last, because the
inability of a defendant adequately to prepare his case skews the fairness of the
entire system.’”’” Irish at ¶ 38, quoting State v. Stevens, 3d Dist. Logan No. 8-14-
09, 2014-Ohio-4875, ¶ 19, quoting Doggett, 505 U.S. at 654, quoting Barker at 532.
“‘Impairment of one’s defense is also the most difficult form of prejudice to prove
“because time’s erosion of exculpatory evidence and testimony ‘can rarely be
shown.’”’” Id., quoting Stevens at ¶ 19, quoting Doggett at 655, quoting Barker at
532.
{¶39} Here, Richard does not allege that his defense was impaired by the
delay. Rather, he contends that “the prosecution’s negligence deprived [him] of the
opportunity for concurrent terms, caused him anxiety while waiting in federal
prison, and resulted in additional oppressive incarceration after his federal prison
term expired.” (Appellant’s Brief at 16). As to Richard’s oppressive-incarceration
argument, we note that the first interest protected by the right a speedy trial
considers only whether Richard was subject to oppressive pretrial incarceration. In
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this case, Richard was incarcerated in federal prison in West Virginia during the
preponderance of the timeframe relevant to Richard’s speedy-trial claim.
Consequently, Richard was not threatened with the prospect of oppressive pretrial
incarceration since his liberty was already severely restrained. Accord Irish at ¶ 42.
{¶40} Furthermore, Richard’s argument that he suffered prejudice because
the State’s delay cost him the possibility to serve the Marion County sentence
concurrently with his federal sentence is likewise specious. In general, “‘the
theoretical and speculative loss of the opportunity for [a] defendant to serve the
sentence on the pending charge concurrently with the sentence in another case’ is
insufficient to constitute substantial prejudice to the defendant.” McCain at ¶ 19,
quoting Rice at ¶ 32. See also Spencer at ¶ 37 (“Losing his opportunity to bargain
for concurrent sentences is based upon speculation and is not sufficient to show
prejudice; there is no constitutional or statutory right to be given concurrent
sentences.”), citing State v. Jones, 4th Dist. Ross No. 95CA2128, 1996 WL 312469,
*2 (June 4, 1996) and Rice at ¶ 32.
{¶41} Finally, we further reject Richard’s contention that he endured
“significant anxiety” from the delay. (Appellant’s Brief at 15). Richard’s “blanket
statement, without more, that he suffered anxiety caused by the delay is insufficient
to show the type of prejudice required for a violation of constitutional speedy-trial
rights.” Hubbard, 2015-Ohio-646, at ¶ 23, citing State v. Glass, 10th Dist. Franklin
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No. 10AP-558, 2011-Ohio-6287, ¶ 26 and State v. Eicher, 8th Dist. Cuyahoga No.
89161, 2007-Ohio-6813, ¶ 33. Altogether, because we conclude that Richard did
not show any actual prejudice, the fourth factor weighs heavily in favor of the State.
See Irish at ¶ 46.
{¶42} In sum, even though the first and second factors weigh slightly in
Richard’s favor, we conclude that the third and fourth factors weigh more heavily
in favor of the State, outbalancing the first and second factors. Thus, after carefully
considering the factors, we conclude that the delay in this case does not violate
Richard’s constitutional right to a speedy trial. Therefore, Richard’s first
assignment of error is overruled.
Assignment of Error No. II
Appellant was unfairly prejudiced by the joinder for trial [sic]
three separate incidents of alleged drug trafficking.
{¶43} In his second assignment of error, Richard argues that the trial court
erred by denying his motion to sever the (later amended) second superseding
indictment because he was unfairly prejudiced by joinder of the separate drug
offenses for purposes of trial. Specifically, Richard argues that “by presenting all
three incidents together, the prosecution was able to gain an unfair advantage from
the cumulative effect of all three allegations.” (Appellant’s Brief at 17). Further,
Richard contends that the evidence related to the victims’ overdoses does not
constitute admissible evidence for purposes of Evid.R. 404(B)—that is, Richard
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argues that those “facts are not sufficiently similar to provide any behavioral
fingerprint that could be used to identify Richard as the supplier.” (Id. at 17-18).
Standard of Review
{¶44} “Issues of joinder and severance are generally reviewed under an
abuse of discretion standard.” State v. Plott, 3d Dist. Seneca No. 13-15-39, 2017-
Ohio-38, ¶ 52. An abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶45} “However, a defendant’s failure to renew his or her Crim.R. 14 motion
for severance at the close of the State’s case or at the close of all evidence waives
all but plain error on appeal.” State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-
Ohio-3524, ¶ 82. See also State v. Muller, 3d Dist. Defiance No. 4-11-09, 2012-
Ohio-3530, ¶ 34; State v. Kelly, 5th Dist. Delaware No. 17 CAA 04 0023, 2018-
Ohio-378 ¶ 63. “To demonstrate plain error, the defendant must demonstrate that
the trial court deviated from a legal rule, the error was an obvious defect in the
proceeding, and the error affected a substantial right.” Howard at ¶ 83, citing State
v. Barnes, 94 Ohio St.3d 21, 27 (2002). “The defendant must also demonstrate that
the outcome of his trial would clearly have been different but for the trial court’s
errors.” Id., citing State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v.
Moreland, 50 Ohio St.3d 58, 62 (1990). “We recognize plain error ‘“with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage
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of justice.”’” Id., quoting State v. Landrum, 53 Ohio St.3d 107, 110 (1990), quoting
State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
Analysis
{¶46} “In general, the law favors joining multiple offenses in a single trial if
the offenses charged ‘are of the same or similar character.’” State v. Valentine, 5th
Dist. Fairfield No. 18 CA 27, 2019-Ohio-2243, ¶ 43, quoting State v. Lott, 51 Ohio
St.3d 160, 163 (1990), citing State v. Torres, 66 Ohio St.2d 340 (1981). “Two or
more offenses may be charged in the same indictment if they are of ‘the same or
similar character, or are based on the same act or transaction, or are based on two or
more acts or transactions connected together or constituting parts of a common
scheme or plan, or are part of a course of criminal conduct.’” Id., quoting Crim.R.
8(A).
{¶47} “Where joinder is not appropriate under Crim.R. 8(A) because the
offenses do not meet at least one of the four joinder requirements, the trial court
should grant a motion to sever, even in the absence of prejudice.” Id. at ¶ 24.
“Whether charges were misjoined in a single indictment in contravention of Crim.R.
8(A) is an issue of law that this court reviews de novo.” State v. Jeffries, 1st Dist.
Hamilton C-170182, 2018-Ohio-2160, ¶ 51, citing State v. Kennedy, 1st Dist.
Hamilton C-120337, 2013-Ohio-4221, ¶ 24. “De novo review is independent,
without deference to the lower court’s decision.” State v. Hudson, 3d Dist. Marion
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No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of
Ohio, 64 Ohio St.3d 145, 147 (1992).
{¶48} “Nonetheless, if it appears that a criminal defendant would be
prejudiced by such joinder, then the trial court is required to order separate trials.”
Valentine at ¶ 44, citing Crim.R. 14.
To prevail on a motion to sever, a defendant has the burden of
demonstrating that “(1) his rights were prejudiced, (2) that at the time
of the motion to sever he provided the trial court with sufficient
information so that it could weigh the considerations favoring joinder
against the defendant’s right to a fair trial, and (3) that given the
information provided to the court, it abused its discretion in refusing
to separate the charges for trial.”
Plott, 2017-Ohio-38, at ¶ 55, quoting State v. Schaim, 65 Ohio St.3d 51, 59 (1992).
“A defendant’s claim of prejudice is negated when: (1) evidence of the other crimes
would have been admissible as ‘other acts’ evidence under Evid.R. 404(B) or (2)
the evidence of each crime joined at trial is simple and direct.” State v. Ahmed, 8th
Dist. Cuyahoga No. 84220, 2005-Ohio-2999, ¶ 22, citing Lott at 163, Schaim at 59,
and State v. Franklin, 62 Ohio St.3d 118, 122 (1991).
{¶49} “‘Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action
in conformity therewith.”’” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-
1787, ¶ 56, quoting State v. May, 3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶
69, quoting Evid.R. 404(B). “‘However, there are exceptions to the general rule:
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“It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”’” Bagley at ¶ 56, quoting May at ¶ 69, quoting Evid.R. 404(B). See also
R.C. 2945.59. “‘The list of acceptable reasons for admitting testimony of prior bad
acts into evidence is non-exhaustive.’” Bagley at ¶ 56, quoting State v. Persohn,
7th Dist. Columbiana No. 11 CO 37, 2012-Ohio-6091, ¶ 23.
{¶50} “‘Under the second method, the “joinder” test, the state is merely
required to show that evidence of each crime joined at trial is simple and direct.’”
Valentine, 2019-Ohio-2243, at ¶ 47, quoting Lott 163. The Supreme Court of Ohio
has unequivocally stated “that ‘when simple and direct evidence exists, an accused
is not prejudiced by joinder regardless of the nonadmissibility of evidence of these
crimes as ‘other acts’ under Evid.R. 404(B).” Id., quoting Lott at 163. “Evidence
is ‘simple and direct’ if (1) the jury is capable of readily separating the proof
required for each offense, (2) the evidence is unlikely to confuse jurors, (3) the
evidence is straightforward, and (4) there is little danger that the jury would
‘improperly consider testimony on one offense as corroborative of the other.’”
(Citations omitted.) Id. at ¶ 48, quoting State v. Wright, 4th Dist. Jackson No.
16CA3, 2017-Ohio-8702, ¶ 52.
{¶51} “Courts have held that evidence of multiple offenses is ‘simple and
direct’ where, for example, the offenses involved different victims, different
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incidents or factual scenarios, and different witnesses.” Id. at ¶ 49, citing State v.
Dantzler, 10th Dist. Franklin Nos. 14AP-907 and 14AP-908, 2015-Ohio-3641, ¶ 23
(concluding that the defendant was not prejudiced by the joinder because “[t]he
evidence relating to each incident was simple and direct: the incidents occurred
separately, involved different victims, and different eyewitnesses independently
identified defendant as the shooter at each incident”) and State v. Lewis, 6th Dist.
Lucas Nos. L-09-1224 and L-09-1225, 2010-Ohio-4202, ¶ 33 (“Ohio appellate
courts routinely find no prejudicial joinder where the evidence is presented in an
orderly fashion as to the separate offenses or victims without significant overlap or
conflation of proof.”).
{¶52} “If either the ‘other acts’ test or the ‘simple and direct’ test is met, a
defendant cannot establish prejudice from the joinder.” Id. at ¶ 50. See also Lott at
163 (“Under the second method, the ‘joinder’ test, the state is not required to meet
the stricter ‘other acts’ admissibility test, but is merely required to show that
evidence of each crime joined at trial is simple and direct.”).
{¶53} Here, Richard’s offenses were not misjoined in contravention of
Crim.R. 8(A) as alleged. The offenses at issue in this case are part of a common
scheme or plan. That is, the various acts at issue constituted a part of a common
scheme or plan related to the sale of drugs. Accord State v. Carpenter, 3d Dist.
Seneca No. 13-18-16, 2019-Ohio-58, ¶ 81.
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{¶54} Turning to whether Richard was prejudiced by the joinder of the
offenses, the record reveals (and Richard’ concedes on appeal) that he failed to
renew his Crim.R. 14 motion for severance at the close of the State’s case or at the
close of all evidence. (See Appellant’s Brief at 19). Consequently, Richard waived
all but plain error on appeal and Richard failed to demonstrate plain error in his
argument. The evidence in the record of each crime is simple and direct, involving
trafficking in drugs on certain days, corrupting multiple individuals with drugs on
certain days, and causing the deaths of individuals as the proximate result of
trafficking in drugs. See Carpenter at ¶ 82.
{¶55} Moreover, the trial court cautioned the jury to consider each count,
and the evidence applicable to each count, separately. (See Aug. 17, 2020 Tr., Vol.
V, at 802); State v. Wilson, 5th Dist. No. 16-CAA-08-0035, 2017-Ohio-5724, ¶ 53
(“‘Courts have held that any prejudice that results from the joinder of offenses is
minimized when a trial court cautions a jury before deliberations to consider each
count, and the evidence applicable to each count separately, and to state its findings
as to each count uninfluenced by its verdict on any other counts.’”), quoting State
v. Freeland, 4th Dist. Ross No. 12CA003352, 2015-Ohio-3410, ¶ 16. Accord
Carpenter at ¶ 84. “[W]e presume that the jury followed the [trial] court’s
instructions.” Valentine at ¶ 57, citing State v. Thompson, 141 Ohio St.3d 254,
2014-Ohio-4751, ¶ 192. This presumption is bolstered by the jury’s not-guilty
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findings as to five of the counts that it considered. See State v. Shook, 3d Dist.
Logan No. 8-14-01, 2014-Ohio-3987, ¶ 28 (concluding that “[t]he result of the trial
seems to suggest that the testimony was simple and direct as the jury acquitted
Shook on one of the counts”).
{¶56} Because it is dispositive, we need address only the trial court’s
determination that joinder was appropriate under the simple-and-direct test. Accord
Valentine at ¶ 55 (“While the state argues that the cases could be tried together under
either test, there is no reason for us to look to the more stringent “other acts” test
because the evidence here was simple and straightforward.”). See also Shook at ¶
28.
{¶57} For these reasons, Richard cannot demonstrate that there was an
obvious defect in the proceedings or that the outcome of his trial would have been
different. Accordingly, the trial court did not commit any error, let alone plain error,
by denying Richard’s motion for severance.
{¶58} Richard’s second assignment of error is overruled.
Assignment of Error No. III
Appellant’s state and federal constitutional rights to due process
were violated because the conviction in count seven for corrupting
another with drugs was not supported by sufficient evidence.
Assignment of Error No. IV
The weight of evidence does not support a conviction on count
seven for corrupting another with drugs.
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{¶59} In his third and fourth assignments of error, Richard argues that his
that his corrupting-another-with-drugs conviction under Count Eight is based on
insufficient evidence and is against the manifest weight of the evidence. In
particular, in his third assignment of error, Richard argues that the State presented
insufficient evidence that his corrupting-another-with-drugs conviction under Count
Eight is based on insufficient evidence because the State presented insufficient
evidence that he “furnished Thompson with the heroin that caused his overdose * *
* .” (Emphasis added.) (Appellant’s Brief at 20). In his fourth assignment of error,
he specifically argues that the weight of the evidence shows that Aaron “Stanley”
[(“Stanley”) w]as the drug supplier, not Richard * * * .” (Id. at 22).
Standard of Review
{¶60} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Thus, we address each legal concept individually.
{¶61} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
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“[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.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
{¶62} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
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“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence Analysis
{¶63} We begin by addressing Richard’s sufficiency-of-the-evidence
argument as it relates to his corrupting-another-with-drugs conviction under Count
Eight. The offense of corrupting another with drugs is codified under R.C. 2925.02
and provides, in relevant part:
(A) No person shall knowingly do any of the following:
***
(3) By any means, administer or furnish to another or induce or
cause another to use a controlled substance, and thereby cause serious
physical harm to the other person, or cause the other person to become
drug dependent.
R.C. 2925.02(A)(3).
{¶64} Because it is the only element that Richard challenges on appeal, we
will address only the furnish element of the offense. Although, the term “furnish”
is not defined by the Revised Code, the term was defined for the jury to mean to
“provide, supply, or give access to.” (Aug. 17, 2020 Tr., Vol. V, at 818). Accord
State v. Patterson, 11th Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶ 86.
In other words, our sister appellate districts have concluded that, to be guilty of
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corrupting another with drugs (by furnishing a controlled substance), it is of no
consequence whether the controlled substance is sold or delivered directly to a
victim, provided that the sale gave the victim access to the controlled substance.
See State v. Price, 8th Dist. No. 107096, 2019-Ohio-1642, ¶ 51; Patterson at ¶ 86
(“It does not matter if the heroin was sold or delivered directly to [a third party],
provided that the sale gave [the victim] access to it.”).
{¶65} In support of his sufficiency-of-the-evidence challenge, Richard
argues that a rational trier of fact could not have found that he was involved in the
drug transaction involving Thompson because “there was no evidence whatsoever
that Richard ever provided Thompson with any drugs.” (Appellant’s Brief at 20).
The record belies Richard’s argument. Indeed, viewing the evidence in a light most
favorable to the prosecution, Richards’s corrupting-another-with-drugs conviction
under Count Eight is based on sufficient evidence.
{¶66} Importantly, the State may establish the elements of a crime with
direct or circumstantial evidence. State v. Miller, 8th Dist. Cuyahoga No. 103591,
2016-Ohio-7606, ¶ 60, citing State v. Durr, 58 Ohio St.3d 86, 92 (1991).
“‘Circumstantial evidence’ is the ‘proof of facts by direct evidence from which the
trier of fact may infer or derive by reasoning or other facts.’” State v. Lawwill, 12th
Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 12, quoting State v. Wells,
12th Dist. Warren No. CA2006-02-029, 2007-Ohio-1362, ¶ 11, citing State v.
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Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-Ohio-837, ¶ 26.
Circumstantial evidence has no less probative value than direct evidence.
Griesheimer at ¶ 26, citing Jenks at paragraph one of the syllabus. See also State v.
Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court has long held that
circumstantial evidence is sufficient to sustain a conviction if that evidence would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.”);
Miller at ¶ 61 (stating that “circumstantial evidence alone is sufficient to support a
conviction”), citing State v. Coleman, 8th Dist. Cuyahoga No. 102966, 2016-Ohio-
297, ¶ 22. “‘[A]ll that is required of the jury is that it weigh all of the evidence,
direct and circumstantial, against the standard of proof beyond a reasonable doubt.’”
Miller at ¶ 61, quoting Jenks at 272. “‘“Circumstantial evidence is not only
sufficient, but may also be more certain, satisfying, and persuasive than direct
evidence.”’” Id., quoting State v. Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-
Ohio-6078, ¶ 9, quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81
S.Ct. 6 (1960).
{¶67} Accordingly, based on our review of the record, we conclude the State
presented sufficient (circumstantial) evidence at trial that Richard knew that he gave
Thompson access to heroin. Compare Price, 2019-Ohio-1642, at ¶ 51 (concluding
that “[t]he state presented sufficient evidence that showed Price knew he was giving
the victim access to heroin and fentanyl by selling it to [a third party]”). In
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particular, at trial, the State presented the testimony of Stanley, who testified that he
contacted Richard on October 17, 2017 to “acquire heroin” and to “make an
introduction” between Richard and Thompson. (Aug. 14, 2020 Tr., Vol. IV, at 586-
587). See Price at ¶ 50, citing Patterson at ¶ 86, State v. Potee, 12th Dist. Clermont
No. CA2016-06-045, 2017-Ohio-2926, ¶ 31, and State v. Jones, 5th Dist. Licking
No. 05 CA 59, 2006-Ohio-916, ¶ 46. He clarified that “[w]henever [he] spoke to
Mr. Richard, [he] was calling to acquire heroin” and “that’s what [he] was wanting
then.” (Aug. 14, 2020 Tr., Vol. IV, at 586). Stanley further testified that Richard
appeared at his apartment later that evening and that he introduced Richard to
Thompson. (Id. at 595, 605). After introducing the two men, Stanley “bowed out
and went to the restroom” for “a few minutes.” (Id. at 605-606). Thereafter,
“Richard said he had to leave.” (Id. at 606).
{¶68} Furthermore, the State presented surveillance-photo evidence
corroborating that Richard and Thompson were at Stanley’s apartment during the
same time period. Specifically, State’s Exhibits 36 and 48 depict Thompson
arriving at Stanley’s apartment at 6:07 p.m. and departing Stanley’s apartment at
7:57 p.m., respectively. Likewise, State’s Exhibit 43 and depicts Richard entering
Stanley’s apartment building at 7:34 p.m. and State’s Exhibits 46 and 47 depict
Richard departing the building at 7:44 p.m. (See State’s Exs. 40-43, 45-47).
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{¶69} The State also presented evidence that Thompson was found
unconscious on the floor his bedroom by his parents at approximately 10:00 p.m.
on October 17, 2017. (Aug. 13, 2020 Tr., Vol. III, at 520, 533). According to
Cobern Thompson (“Cobern”), Thompson’s father, “a needle [was] laying on the
floor” next to Thompson. (Id. at 521). Cobern further testified that Thompson left
the residence that evening at approximately 5:45 p.m. and returned at approximately
8:00 p.m. (Id. at 521-522). Thompson later died as a result of “[a]cute heroin
toxicity.” (Aug. 12, 2020 Tr., Vol. II, at 314). (See also State’s Ex. 33). Based on
the totality of this evidence, we conclude that a rational trier of fact could have found
that Richard furnished Thompson heroin. Consequently, Richard’s corrupting-
another-with-drugs conviction under Count Eight is based on sufficient evidence.
{¶70} Having concluded that Richard’s corrupting-another-with-drugs
conviction is based on sufficient evidence, we next address Richard’s argument that
his corrupting-another-with-drugs conviction under Count Eight is against the
manifest weight of the evidence.
Manifest Weight of the Evidence
{¶71} Similar to his sufficiency-of-the-evidence argument, Richard argues
that his corrupting-another-with-drugs conviction under Count Eight is against the
manifest weight of the evidence because the trier of fact lost its way in concluding
that he furnished Thompson heroin. In particular, Richard argues that the evidence
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identifying him as the person who furnished Thompson heroin is outweighed by the
evidence that Stanley was the person who furnished Thompson heroin.
{¶72} In support of his argument (that his corrupting-another-with-drugs
conviction under Count Eight is against the manifest weight of the evidence),
Richard argues that evidence that (1) “Stanley’s fingerprints were, literally, all over
the drugs that Thompson ingested shortly before overdosing”; (2) “Stanley had been
providing Thompson with drugs during the days leading up to the overdose”; and
(3) “Stanley was unable to provide any evidence that Richard actually provided
Thompson with any drugs or even talked about drugs with Thompson” weighs
against the State’s evidence that Richard furnished Thompson heroin. (Appellant’s
Brief at 21-22).
{¶73} However, based on our review of the record, we conclude that
Richard’s evidence does not outweigh the conclusion that he furnished Thompson
heroin. Importantly, Richard overlooks the meaning of the term “furnish” as we
addressed in our sufficiency-of-the-evidence analysis. Accordingly, the relevant
inquiry is whether the weight of the evidence demonstrates that Richard knew that
he gave Thompson access to heroin.
{¶74} Notwithstanding Stanley’s weak credibility, the jury was able to infer
from the totality of the evidence presented at trial that Richard furnished Thompson
heroin. “A jury can make reasonable inferences from the evidence.” State v. Knight,
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10th Dist. Franklin No. 16AP-288, 2016-Ohio-8134, ¶ 26. “‘It is permissible for a
jury to draw inferences from the facts presented to them.’” Id., quoting State v.
Sanders, 6th Dist. Lucas No. L-96-379, 1998 WL 78787, *3 (Feb. 13, 1998), citing
State v. Palmer, 80 Ohio St.3d 543, 561 (1997). “‘The weight given to an inference
is a question for the trier of fact and will not be disturbed unless it is such that
reasonable minds could not reach such a conclusion.’” Id., quoting Sanders at *3,
citing Palmer at paragraph four of the syllabus. Based on our discussion of the
sufficiency-of-the-evidence supporting that Richard furnished Thompson heroin,
the jury could infer that Richard knew that he gave Thompson access to heroin.
{¶75} Indeed, the jury did not consider Richard’s evidence in a vacuum—
rather, the jury weighed Richard’s evidence suggesting that Stanley furnished
Thompson heroin with the testimony of the State’s witnesses and the surveillance-
photo evidence. See State v. Campbell, 2d Dist. Montgomery No. 26575, 2016-
Ohio-598, ¶ 13. Because the surveillance-photo evidence corroborates that Richard
and Thompson were at Stanley’s apartment during the same time period (and that
same evidence demonstrates that Richard was at Stanley’s apartment for only a brief
time), it was permissible for the jury to infer a link between Richard and Thompson
and to infer that a drug transaction occurred between the men. See State v.
Wintermeyer, 10th Dist. Franklin No. 16AP-381, 2017-Ohio-5521, ¶ 26 (noting that
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a brief visit to a residence without can be indicative of the consummation of a drug
transaction”).
{¶76} Based on the evidence supporting the inference that Richard knew that
he gave Thompson access to heroin, we cannot conclude that the jury clearly lost its
way and created such a manifest miscarriage of justice that Richard’s corrupting-
another-with-drugs conviction under Count Eight must be reversed and a new trial
ordered. Therefore, Richard’s corrupting-another-with-drugs conviction under
Count Eight is not against the manifest weight of the evidence.
{¶77} Richard’s third and fourth assignments of error are overruled.
Assignment of Error No. V
The sentencing entry improperly imposed mandatory prison
sentences because the prison sentences were not imposed as
mandatory during the sentencing hearing.
{¶78} In his fifth assignment of error, Richard argues that the trial court erred
by imposing mandatory prison terms in its sentencing entry as to his corrupting-
another-with-drugs convictions when it “failed to impose mandatory prison terms
at the sentencing hearing” as to those convictions. (Appellant’s Brief at 22).
Richard contends that “[t]his Court should order the trial court to correct the entry
nunc pro tunc to reflect the non-mandatory prison terms that were actually
imposed.” (Id.).
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Case No. 9-20-36
Standard of Review
{¶79} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Analysis
{¶80} Under R.C. 2929.19(B)(2)(a), “if the sentencing court determines at
the sentencing hearing that a prison term is necessary or required, the court shall *
* * [i]mpose a stated prison term and, if the court imposes a mandatory prison term,
notify the offender that the prison term is a mandatory prison term.” “The trial court
is also required by R.C. 2929.19(B)(2)(b) to include this information in the
sentencing entry.” State v. Stevens, 9th Dist. Summit No. 29131, 2019-Ohio-2808,
¶ 10. “However, R.C. 2929.19(B)(7) further provides that ‘[t]he failure of the court
to notify the offender that a prison term is a mandatory prison term * * * or to include
in the sentencing entry any information required by [R.C. 2929.19(B)(2)(b)] does
not affect the validity of the imposed sentence or sentences.’” Id., quoting R.C.
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Case No. 9-20-36
2929.9(B)(7). See also State v. Dyer, 6th Dist. Lucas No. L-17-1258, 2019-Ohio-
1558, ¶ 17, citing State v. Vancleve, 12th Dist. Clermont No. CA2016-06-039, 2016-
Ohio-7546, ¶ 18.
{¶81} In this case, as second-degree felonies, Richard’s corrupting-another-
with-drugs convictions carry mandatory sanctions of two-years to eight-years of
imprisonment. R.C. 2925.02(C)(1)(a) (instructing that “the court shall impose as a
mandatory prison term a second degree felony mandatory prison term”);
2929.13(F)(5); 2929.14(A)(2)(b). Because the trial court sentenced Richard to five
years in prison as to Count Five and seven years in prison as to Count Eight, the
trial court’s sentences fall within the statutory ranges. See State v. Maggette, 3d
Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31. Thus, even though the trial court
did not inform Richard at sentencing that his prison terms were mandatory,
Richard’s sentence is not contrary to law. Accord Dyer at ¶ 17. See also State v.
Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, ¶ 17-19.
{¶82} Richard’s fifth assignment of error is overruled.
{¶83} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
/jlr
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