State v. Nichols , 2020 Ohio 4362 ( 2020 )

[Cite as State v. Nichols, 2020-Ohio-4362.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Nos. 19AP-113
Plaintiff-Appellee, : (C.P.C. Nos. 18CR-2023)
and 19AP-116
v. : (C.P.C. No. 18CR-3359)
Andrew J. Nichols, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 8, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellee.
On brief: Blaise G. Baker, for appellant.
APPEALS from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Andrew J. Nichols, appeals from judgments of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to jury verdicts finding him guilty of involuntary manslaughter, corrupting others with
drugs, trafficking in drugs, tampering with evidence, and abuse of a corpse. For the
following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On April 27, 2018, in case No. 18CR-2023, appellant1 was indicted on one
count of tampering with evidence, in violation of R.C. 2921.12, a third-degree felony, and
one count of gross abuse of a corpse, in violation of R.C. 2927.01, a fifth-degree felony. The
1Appellant's wife, Angela Nichols, was also indicted for tampering with evidence and gross abuse of a corpse.
Her case is not the subject of this appeal.
Nos. 19AP-113 and 19AP-116 2
abuse of a corpse charge alleged appellant treated a human corpse in a way that would
outrage reasonable community sensibilities. The indictment alleged that each of the
foregoing offenses occurred on or about April 16, 2018. Appellant entered a not guilty plea
to the charges and requested a jury trial.
{¶ 3} Subsequently, on July 13, 2018, in case No. 18CR-3359, appellant was
indicted on one count of involuntary manslaughter, in violation of R.C. 2903.04, a first-
degree felony, one count of corrupting another with drugs, in violation of R.C. 2925.02, a
second-degree felony, and one count of trafficking in cocaine, in violation of R.C. 2925.03,
a fifth-degree felony. The involuntary manslaughter charge alleged appellant caused the
death of Hanna D. Geiger as a proximate result of committing the felony offense of
corrupting another with drugs and/or trafficking in cocaine. The corrupting another with
drugs count alleged appellant knowingly, by any means, administered or furnished cocaine
to Hanna Geiger and caused serious physical harm. The trafficking in cocaine count alleged
appellant sold or offered to sell cocaine. The indictment alleged that each of the foregoing
offenses occurred on or about April 16, 2018. Appellant entered a not guilty plea to the
charges and requested a jury trial.
{¶ 4} Without objection, the cases were consolidated for trial, and the dates of the
offenses were amended to reflect a time frame of March 7 through April 16, 2018. (Tr. at 4,
17-20, 390-96.) On January 18, 2019, the consolidated cases came on for trial by jury, at
which the following evidence was presented.
{¶ 5} At trial, Ashley Wilson testified she purchased the home at 1087 High Street
in Harrisburg, Ohio, in Franklin County in fall 2017, but she did not move in immediately
because tenants occupied the premises. (Tr. at 63-65.) The tenant in the downstairs part
of the house was occupied by Darlene Lash, who is the mother of appellant. (Tr. at 65.)
{¶ 6} On April 14, 2018, Wilson used the backyard of the premises to host a
birthday party for her son. (Tr. at 65-66.) At one point, Wilson saw appellant exit the
downstairs part of the house being rented by his mother, approach a white car that had
driven up, hand the driver some money, and receive a baggie from the man driving the car.
(Tr. at 66-67.)
{¶ 7} At this point, Wilson went to the house and knocked on the door, and Lash
answered. (Tr. at 67-68.) Wilson told Lash that appellant must vacate the premises within
Nos. 19AP-113 and 19AP-116 3
24 hours and that Wilson would be back to inspect the premises within 24 hours to ensure
appellant and his wife, who was also living there, had left. (Id.) Wilson subsequently gave
appellant and his wife an additional day to vacate the premises. (Tr. at 68-69.)
{¶ 8} On April 16, 2018, Wilson arrived at the premises to make her inspection and
Lash let her inside. (Tr. at 70.) Wilson went to the basement and noticed that it was empty
except for a black trash bag that had duct tape wrapped around it. (Tr. at 70-71.) Wilson
touched the odd-looking bag and felt what appeared to be a kneecap. (Tr. at 71.) Wilson
was shocked. (Id.) She took a picture of the bag, went upstairs, exited the house and called
911, telling police she thought there was a body in the basement. (Tr. at 71-72.) A sheriff's
deputy then came to the scene to meet her. (Tr. at 72.)
{¶ 9} Sheriff Deputy Terry Brown testified that he responded to 1087 High Street
to investigate the homeowner's concern about a possible body in the basement. (Tr. at 89.)
Brown found the trash bag, touched it, and determined it was "kind of heavy." (Tr. at 91.)
Upon cutting open the top of the bag with his knife, a person's head appeared. (Tr. at 91.)
At this point, Brown broadcast for assistance for "a 16, which is a DOA,2 a police term." (Tr.
at 91.) Subsequently, the scene was processed by Bryan White of the Bureau of Criminal
Investigation ("BCI") (Tr. at 97 et seq.); Amy Wanken of BCI (Tr .at 155 et seq.); and Jerry
Lanfear of BCI. (Tr. at 180 et seq.)
{¶ 10} It was subsequently determined that the body found in the basement was that
of Hanna D. Geiger, and at trial, the parties stipulated that "the identity of the 20-year-old
female found by police and medics at the scene located at 1087 High Street, Harrisburg,
Ohio, 43126, on April 16, 2018 and pronounced deceased by Pleasant Township Medic No.
231 is that of Hanna D. Geiger. " (Tr. at 200.)
{¶ 11} Detective Andrew Harper of the Franklin County Sheriff's Office testified that
he and Detective Jason Evans interviewed appellant on the evening of April 16, 2018 and
the early morning hours of April 17, 2018 after Hanna Geiger's body was discovered. (Tr.
at 284, 299, 305-06.) After being advised of his Miranda rights, appellant agreed to
continue speaking to detectives. (Tr. at 307-08.) The recording of the interview was played
at trial. In the recording, appellant admitted as follows.
2 "DOA" means dead on arrival. (Tr. at 91.)
Nos. 19AP-113 and 19AP-116 4
{¶ 12} Appellant and Hanna Geiger met while both were at Sun Behavioral in
Columbus during February 2018. (Tr. at 309-10.)3 On the evening of the day appellant was
released from Sun Behavioral, March 7, 2018, appellant contacted Hanna by telephone.
(Tr. at 310.) Hanna drove her Honda Civic over to the house where appellant was staying
with his mother that same night and asked appellant if he knew anyone from whom she
could get crack. (Tr. at 310, 315, 317.) Hanna appeared to be high and told him she had
been smoking crack since she got out of the hospital. (Tr. at 342-43.)
{¶ 13} Appellant used Hanna's phone to use Facebook Messenger to contact a
person named Don Turner and order an "eight-ball"4 of cocaine. (Tr. at 312, 341-42, 345.)
When Don brought the cocaine, appellant paid $200 for it and he and Hanna split it up.
(Tr. at 341-43.) At first, they were just smoking the cocaine, but appellant stated he liked to
"shoot it" too, and Hanna watched him as he was shooting up and then asked him to shoot
her with it. (Tr. at 310-11, 323-24.) Appellant stated he told her he would not do it to her,
that "I ain't going to turn you onto doing it because I wish [I] never did it the first time
myself." (Tr. at 310-11.) Appellant admitted later in the interview that shooting-up cocaine
"is a lot more intense." (Tr. at 325.) But Hanna continued asking him about it, and
eventually, despite his asking her to please not do it, she "ended up making the shot * * *
and then she did. And she just started seizing and (unintelligible), and I was trying to kind
of hold her on her side to keep her from choking." (Tr. at 311.) Appellant stated Hanna used
his rig5 to shoot up. (Tr. at 325.)
{¶ 14} Appellant stated Hanna began having ill effects almost immediately upon her
injecting herself in her right arm. (Tr. at 344-45.) Appellant stated it crossed his mind to
call for help, but it "happened so quick" and "she was gone." (Tr. at 311.) He further stated
he "just froze" and was "scared" and "didn't know what to do" and that he knew she had
died. (Tr. at 312-14.) Appellant then checked her pulse and, knowing she was dead, carried
her body to the basement. (Tr. at 314.)
3The parties stipulated appellant was released from Sun Behavioral on March 7, 2018 and Hanna Geiger was
released from Sun Behavioral on February 28, 2018. (Tr. at 201.)
4 An "eight-ball" is a term used when buying a drug and is an eighth of an ounce of the drug, which is
approximately three-and-one-half grams. (Tr. at 352.)
5 A "rig" is a syringe. (Tr. at 351.)
Nos. 19AP-113 and 19AP-116 5
{¶ 15} About one week later, appellant's wife, Angela Nichols, returned from
California where she had been in rehab and he told her about Hanna. (Tr. at 318.) It was
Angela who helped him wrap Geiger's body in trash bags. (Tr. at 321-22.) Appellant and
Angela drove Hanna's Honda Civic to a neighborhood near his grandmother's house on the
west side, and they threw Hanna's purse and cell phone into a trash can at a gas station in
Darbydale. (Tr. at 319-21.) They also threw the syringe that appellant and Hanna had used
on the night she died in the same trash can at the gas station. (Tr. at 325.)
{¶ 16} As noted previously, the parties stipulated that "the identity of the 20-year-
old-female found by police and medics at the scene located at 1087 High Street, Harrisburg,
Ohio, 43126, on April 16, 2018 and pronounced deceased by Pleasant Township Medic No.
231 is that of Hanna D. Geiger." (Tr. at 200.) The parties further stipulated that "[t]his is
the same individual that was examined at the Franklin County Coroner's office on April 17,
2018 by Tanner L. Bartholow, M.D. Dr. Bartholow completed a coroner's report and
autopsy report regarding this individual, which is marked as State's Exhibit F." (Tr. at 200.)
{¶ 17} The coroner determined that Hanna's death was caused by acute cocaine
toxicity. (State's Ex. F.) Dr. John Daniels, a deputy coroner/forensic pathologist in the
coroner's office, reviewed the coroner's report and autopsy report prepared by Dr.
Bartholow and testified that the toxicology report showed a very high level of cocaine
consistent with ingestion through injection. (Tr. at 202, 219, 226.) Dr. Daniels further
testified the toxicology report indicated that Hanna lived for several minutes, perhaps 10 to
15 minutes, while her body processed the cocaine, although she could have been
unconscious during that time. (Tr. at 222.) Hanna would not have died had she not
ingested the cocaine. (Tr. at 223.)
{¶ 18} After the jury had retired to commence deliberations, defense counsel moved
for a mistrial based on certain remarks made by the prosecutor during closing arguments
in rebuttal, the particulars of which are outlined in our discussion of the first assignment of
error. (Tr. at 451-52.) After listening to arguments from defense counsel and the
prosecutor, the trial court denied the motion. (Tr. at 453.)
{¶ 19} At the conclusion of trial, the jury found appellant guilty on all five counts in
the indictments. On February 25, 2019, the trial court issued two judgment entries
Nos. 19AP-113 and 19AP-116 6
consistent with the jury's verdict and imposed a sentence consisting of a mix of consecutive
and concurrent prison sentences totaling six years.
{¶ 20} This timely appeal followed.
II. Assignments of Error
{¶ 21} Appellant asserts the following three assignments of error for our review:
[I.] The trial court violated Defendant-Appellant's rights to
due process and a fair trial, and abused its discretion, when it
failed to declare a mistrial after the prosecutor's misconduct
during closing arguments.
[II.] The trial court erred when it entered judgment against
Defendant-Appellant when the evidence presented was
insufficient to establish that the acts of Defendant-Appellant
were the proximate cause of the Decedent's death and the
judgment was against the manifest weight of the evidence.
[III.] The trial court erred when it failed to merge all of
Defendant-Appellant's offenses.
III. Discussion
A. First Assignment of Error - Mistrial
{¶ 22} In his first assignment of error, appellant argues that the trial court abused
its discretion when it denied his motion for mistrial based on the prosecutor's alleged
misconduct during closing arguments. We disagree.
{¶ 23} An appellate court reviewing a trial court's decision on a motion for mistrial
defers to the judgment of the trial court, as it is in the best position to determine whether
circumstances warrant a mistrial. State v. Glover, 35 Ohio St. 3d 18, 19 (1988). Accordingly,
we review a trial court's decision on a motion for mistrial for an abuse of discretion.
Columbus v. Aleshire, 187 Ohio App. 3d 660, 2010-Ohio-2773, ¶ 42 (10th Dist.), citing State
v. Sage, 31 Ohio St. 3d 173, 182 (1987). The term abuse of discretion implies that the court's
attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St. 2d 151,
157 (1980). An abuse of discretion involves views or actions " 'that no conscientious judge,
acting intelligently, could honestly have taken.' " State v. Hancock, 108 Ohio St. 3d 57,
2006-Ohio-160, ¶ 130, quoting State ex rel. Wilms v. Blake, 144 Ohio St. 619, 624 (1945).
{¶ 24} " 'A mistrial should not be ordered in a criminal case merely because some
error or irregularity has intervened, unless the substantial rights of the accused or the
Nos. 19AP-113 and 19AP-116 7
prosecution are adversely affected.' " State v. Walburg, 10th Dist. No. 10AP-1087, 2011-
Ohio-4762, ¶ 52, quoting State v. Reynolds, 49 Ohio App. 3d 27, 33 (2d Dist.1988). Rather,
a trial court should only declare a mistrial when "the ends of justice so require and a fair
trial is no longer possible." State v. Franklin, 62 Ohio St. 3d 118, 127 (1991). In determining
whether a criminal defendant was deprived of a fair trial, an appellate court must determine
whether, absent the error or irregularity, "the jury would have found the [defendant] guilty
beyond a reasonable doubt." Aleshire at ¶ 42, citing State v. Maurer, 15 Ohio St. 3d 239,
267 (1984).
{¶ 25} As noted above, in this case, counsel for appellant moved for a mistrial based
on prosecutorial misconduct during closing argument. In the context of closing arguments,
the test for prosecutorial misconduct is "whether 'the remarks were improper and, if so,
whether they prejudicially affected substantial rights of the defendant.' " State v. Fudge,
10th Dist. No. 16AP-821, 2018-Ohio-601, ¶ 48, quoting State v. Smith, 14 Ohio St. 3d 13, 14
(1984). In determining whether allegedly improper remarks resulted in prejudice to the
defendant, a reviewing court must consider " '(1) the nature of the remarks, (2) whether an
objection was made by counsel, (3) whether corrective instructions were given by the court,
and (4) the strength of the evidence against the defendant.' " (Further quotations and
citations omitted.) Id. at ¶ 47, quoting Aleshire at ¶ 42. Furthermore, because isolated
instances of prosecutorial misconduct are deemed harmless, " ' "the closing argument must
be viewed in its entirety to determine whether the defendant has been prejudiced." ' " Id. at
¶ 48, quoting State v. Muhleka, 2d Dist. No. 19827, 2004-Ohio-1822, at ¶ 85, quoting State
v. Stevens, 2d Dist. No. 19572, 2003-Ohio-6249, ¶ 34.
{¶ 26} " '[P]rosecutors are entitled to considerable latitude in closing argument.' "
Fudge at ¶ 48, quoting Muhleka at ¶ 85, citing State v. Ballew, 76 Ohio St. 3d 244, 255
(1996). During closing argument, the prosecutor is free to comment on " 'what the evidence
has shown and what reasonable inferences may be drawn therefrom.' " (Further citations
omitted.) Id., quoting Muhleka at ¶ 85, citing State v. Lott, 51 Ohio St. 3d 160, 165 (1990).
The prosecutor is likewise free to "state his or her opinion if it is based on the evidence
presented at trial." State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-6266, ¶ 213.
{¶ 27} Furthermore, where a defendant has failed " 'to object to the prosecutor's
alleged misconduct, he waives all but plain error.' " Fudge at ¶ 49, quoting Wellston v.
Nos. 19AP-113 and 19AP-116 8
Horsley, 4th Dist. No. 05CA18, 2006-Ohio-4386, ¶ 22, citing Crim.R. 52; State v.
Hartman, 93 Ohio St. 3d 274, 294 (2001). 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.' " Id., quoting Wellston at ¶ 22. Furthermore, " '[p]lain
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.' " Id., quoting Wellston at ¶ 22.
{¶ 28} Moreover, where the trial court has instructed the jury the evidence did not
include opening statements or closing arguments of counsel or any other statement made
by counsel during trial, and that "opening statements and closing arguments are designed
to assist you but they are not evidence," it is presumed that "the jurors followed these
instructions and that the verdict was not, therefore, based on the content of the closing
arguments." Fudge at ¶ 52, citing State v. Thompson, 3d Dist. No. 7-16-10, 2017-Ohio-792,
¶ 26, citing Pang v. Minch, 53 Ohio St. 3d 186, 187 (1990).
{¶ 29} In this case, as noted previously, after the jury had retired to commence
deliberations, defense counsel moved for a mistrial based on the prosecutor's alleged
misconduct during closing arguments. Defense counsel specifically averred:
Your Honor, I try to be restrained during closing arguments,
but particularly when counsel in rebuttal makes statements, it
becomes even more difficult. But I would note my objection
and even move for a mistrial based upon comments that were
made on rebuttal. First of all, one comment was made to the
jurors that they, too, should be outraged. And that was made in
response to or during her explanation about the community
standards. But that's an invitation for this jury to decide this
case based upon emotion and not the facts or the law in this
case, which specifically they are told not to do. Another
objection I have is several times in her argument she stated that
it doesn't matter that Hanna injected herself. Well, so she is
asking the jury to again ignore the evidence. The jurors'
responsibility is to consider all of the evidence and the fact that
that particular comment or the other point of my presentation
that it is not in the jury instructions is still relevant to their
deliberations, both in terms of evaluating the evidence and
specifically in weighing whether or not the death was the
proximate cause of my client's conduct versus that of Hanna's
conduct. So for those reasons, we make our objections and we
would make our motion.
(Tr. at 451-52.)
Nos. 19AP-113 and 19AP-116 9
{¶ 30} After listening to arguments from both the prosecutor and defense counsel,
the trial court denied the motion for a mistrial, stating:
I instructed the jury prior to taking evidence and during my
instructions that closing statements of counsel are not evidence
and should not be considered by them as evidence. I will deny
your motion for a mistrial. I will note your objection.
(Tr. at 453.)
{¶ 31} A review of the record reveals that during rebuttal closing arguments, the
prosecutor stated to the jury, "[d]isturbing photographs, I hope they are disturbing to you.
They should be disturbing to you. They should be disturbing and y'all should be outraged."
(Tr. at 436.) Defense counsel did not object to the foregoing remarks at the time they were
made.
{¶ 32} The prosecutor also stated to the jury, "[t]he Judge has given you all of the
law on these jury instructions. Right? That is the law that you've got to follow. And not
one place in here will you find if Hanna Geiger, the victim, injected herself or because she
wanted the drugs, that that means he is not culpable. You won't find that in here." (Tr. at
439.) Defense counsel lodged a general objection to the foregoing statement,6 but the
objection was overruled by the trial court. (Tr. at 439.)
{¶ 33} The prosecutor continued rebuttal closing arguments and informed the jury,
"[a]gain, I never once said that she didn't inject herself. And you know, it doesn't matter.
At the end of the day it doesn't matter if she injected it, smoked it, ate it. He still provided
that cocaine to her." (Tr. at 443.) Defense counsel made no objection to the foregoing
remarks at the time the prosecutor made them.
{¶ 34} The prosecutor also stated to the jury, "[y]ou are here to judge the facts and
determine whether the State has proved beyond a reasonable doubt that the defendant,
Andrew Nichols -- not Hanna Geiger. She's not on trial here. She is the victim in this case."
(Tr. at 444.) Defense counsel objected to the prosecutor's use of the word "victim," but the
objection was overruled by the trial court. (Tr. at 444.)
6 It is unclear from the transcript to which part or parts of the statement counsel was specifically objecting;
however, appellant stated in his appellate brief that the objection was premised on the use of the word "victim"
in describing Hanna Geiger.
Nos. 19AP-113 and 19AP-116 10
{¶ 35} Continuing rebuttal closing argument, the prosecutor informed the jury,
"[y]ou have to decide this case. You follow the law, and it is did we prove our case beyond
a reasonable doubt. I submit to you we did. And now he just wants to blame the victim,
Hanna." (Tr. at 446.) Defense counsel again objected to the use of the word "victim" by the
prosecutor, but the objection was overruled by the trial court. (Tr. at 446-47.)
{¶ 36} Upon consideration, we find the trial court did not abuse its discretion in
refusing to grant appellant's motion for mistrial premised on the foregoing remarks made
by the prosecutor during rebuttal closing argument. First, regarding appellant's contention
that the prosecutor improperly invited the jury to decide the case based on emotion rather
than the facts of the case or the applicable law by stating to the jurors that they should be
"outraged" by what they saw in the photographs presented at trial, we reiterate that defense
counsel made no objection to this remark at the time it was made. Accordingly, he has
waived all but plain error on this point. Fudge at ¶ 49.
{¶ 37} Furthermore, we find no improper conduct on the part of the prosecutor in
commenting that the jurors should be outraged in viewing the photographs. This is so,
because "outrage" is an element of the offense of gross abuse of a corpse,7 one of the counts
with which appellant had been charged. When this comment is viewed in context with the
indictment, the jury instructions, and the prosecutor's earlier closing argument on this
point (Tr. at409-11), it is apparent that the comment was meant to reference the element of
outrage included in the offense. (Tr. at 409-11.) As the prosecutor had to prove this
element, it was not improper to urge the jury that they should be outraged by the
photographs they viewed because the photographs were direct evidence of the treatment of
Hanna Geiger's body by appellant. Put another way, this remark by the prosecutor was an
entirely fair one because it was based on " ' "what the evidence has shown and what
reasonable inferences may be drawn therefrom." ' " (Further citations omitted.) Fudge at
¶ 48, quoting Muhleka at ¶ 85, quoting Lott at 165. The jurors would have understood the
prosecutor's comment in this context and they would not have taken the prosecutor's
comment to be an invitation to abandon their responsibility to decide the case based on the
law and the facts and instead improperly decide the case based on emotion. There was no
7R.C. 2927.01(B) provides that "[n]o person, except as authorized by law, shall treat a human corpse in a way
that would outrage reasonable community sensibilities."
Nos. 19AP-113 and 19AP-116 11
misconduct on the part of the prosecutor in urging the jurors to be outraged by the
photographs of Hanna's body, and there was no error, plain or otherwise, on the part of the
trial court in denying the motion for mistrial on this basis.
{¶ 38} Next, we turn to appellant's complaint that the prosecutor improperly used
the word "victim" to describe Hanna Geiger three times during rebuttal closing argument.
As set forth above, defense counsel lodged an objection each time the prosecutor referred
to Hanna Geiger as a victim, and the trial court overruled each objection. In support of
appellant's argument that the prosecutor's use of the term "victim" during closing argument
substantially affected the jurors' impartiality in evaluating the evidence to the prejudice of
appellant, he cites to State v. Almedom, 10th Dist. No. 15AP-852, 2016-Ohio-1553, in which
this court determined, sua sponte, that defense counsel in that case had been ineffective by
failing to object to repeated references made by the trial judge to the child witnesses as
"victims."
{¶ 39} We find Almedom readily distinguishable from the instant matter. First and
foremost, in Almedom, the offending references to the witnesses as "victims" were made by
the trial judge, not the prosecutor. While a trial judge must remain detached and neutral
in any matter before the court, the prosecutor is not constrained by any such obligation of
neutrality. State v. Harper, 10th Dist. No. 01-AP-201, 2001-Ohio-8875. Secondly, in
Almedom, the improper references were made throughout the entire trial. Here, the
prosecutor's references to Hanna Geiger as a "victim" were made only during rebuttal
closing argument. As discussed above, during closing argument, the prosecutor is free to
comment on "what the evidence has shown and what reasonable inferences may be drawn
therefrom." (Internal quotations and citations omitted.) Fudge at ¶ 48. In our view, the
prosecutor's references to Hanna Geiger as a "victim" entailed fair comment on what the
evidence had shown and were not improper. Thus, there was no misconduct on the part of
the prosecutor in referring to Hanna Geiger as a victim, and there was no error on the part
of the trial court in denying the motion for mistrial on this basis.
{¶ 40} Finally, we address appellant's contention that, in referencing the court's
instructions to the jury, the prosecutor improperly asked the jury to disregard evidence by
stating it did not matter that Hanna Geiger injected herself with the cocaine for purposes
of determining whether appellant was culpable in Hanna's death. We reiterate that defense
Nos. 19AP-113 and 19AP-116 12
counsel made no objection to this remark at the time it was made.8 Accordingly, he has
waived all but plain error on this issue. Fudge at ¶ 49.
{¶ 41} Furthermore, we do not agree that the prosecutor engaged in misconduct by
asserting that for purposes of determining appellant's culpability in Hanna Geiger's death,
whether Hanna injected the narcotics herself was of no import. Instead, we find the
prosecutor was appropriately arguing the legal insignificance of this evidence as it
pertained to the jury's consideration of the involuntary manslaughter charge. This is so
because pursuant to the court's instructions, appellant was culpable in Hanna's death if the
jury found that appellant provided Hanna with the cocaine. Put another way, the fact that
Hanna injected herself would not negate appellant's culpability. Indeed, the prosecutor
conceded that Hanna injected herself in explaining why this fact did not negate appellant's
culpability or provide a legal defense to the charge of involuntary manslaughter. (Tr. at
439, 443.) In short, Hanna's act of self-injection "would not change the basic fact that the
victim took the drugs furnished by [the defendant] and died as a result." State v. Price, 8th
Dist. No. 107096, 2019-Ohio-1642, ¶ 89. The prosecutor did not improperly tell the jury
that it did not matter if Hanna injected herself, and there was no error, plain or otherwise,
on the part of the trial court in denying the motion for mistrial on this basis.
{¶ 42} Moreover, in considering all of appellants' assertions of alleged prosecutorial
misconduct during rebuttal closing argument, we observe the trial court instructed the jury
"[t]he evidence does not include the indictment or opening statements or closing
arguments of counsel. The opening statements and closing arguments of counsel are
designed to assist you. They are not evidence." (Jury Instr. at 2.) Thus, we presume that
the jurors followed these instructions and the verdict was not based on the content of the
closing arguments. Fudge at ¶ 52, citing at ¶ 26, citing Pang at 187.
{¶ 43} In short, appellant has failed to establish any prosecutorial misconduct
during closing arguments which resulted in appellant being deprived of a fair trial.
Therefore, the trial court did not abuse its discretion in denying appellant's motion for
8 As pointed out previously, at page 439 of the trial transcript, defense counsel lodged a general objection to
a statement made by the prosecutor that included a reference that it did not matter that Hanna Geiger injected
herself with the cocaine, but it is unclear from the transcript to what specifically he was objecting. This
statement also included a reference to Hanna being a "victim," and appellant stated in his appellate brief that
the objection was premised on the use of the word "victim" in describing Hanna Geiger.
Nos. 19AP-113 and 19AP-116 13
mistrial based on alleged prosecutorial misconduct, and appellant's first assignment of
error is overruled.
B. Second Assignment of Error – Sufficiency and Manifest Weight
of the Evidence
{¶ 44} In his second assignment of error, appellant argues his conviction of
involuntary manslaughter was not supported by sufficient evidence and was against the
manifest weight of the evidence. Specifically, appellant argues the evidence presented was
insufficient to establish that the acts of appellant were the proximate cause of Hanna
Geiger's death, and therefore the judgment as to this conviction was against the manifest
weight of the evidence. We find no merit to appellant's position.
{¶ 45} "Sufficiency of the evidence is a legal standard that tests whether the evidence
introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.
08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St. 3d 380, 386
(1997). Whether there is evidence legally sufficient to sustain a verdict is a question of law.
State v. Flood, 10th Dist. No. 18AP-206, 2019-Ohio-2524, ¶ 16, citing Thompkins at 386.
In reviewing a challenge to the sufficiency of the evidence, an appellate court must
determine "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." State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the
syllabus. In conducting a review of the sufficiency of the evidence, " 'an appellate court does
not engage in a determination of witness credibility; "rather, it essentially assumes the
state's witnesses testified truthfully and determines if that testimony satisfies each element
of the crime.' " Flood at ¶ 16, quoting State v. Bankston, 10th Dist. No. 08AP-668, 2009-
Ohio-754, ¶ 4; State v. Woodward, 10th Dist. No. 03AP-398, 2004-Ohio-4418, ¶ 16.
{¶ 46} In contrast, "[w]hile sufficiency of the evidence is a test of adequacy regarding
whether the evidence is legally sufficient to support the verdict as a matter of law, the
criminal manifest weight of the evidence standard addresses the evidence's effect of
inducing belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-
2202, ¶ 25, citing Thompkins at 386. "When a court of appeals reverses a judgment of a
trial court on the basis that the verdict is against the weight of the evidence, the appellate
court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the
Nos. 19AP-113 and 19AP-116 14
conflicting testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982).
" 'The court, reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.' " Id., quoting State v. Martin, 20
Ohio App. 3d 172, 175 (1st Dist.1983). This discretionary authority " 'should be exercised
only in the exceptional case in which the evidence weighs heavily against the conviction.' "
Id., quoting Martin at 175.
{¶ 47} Furthermore, " '[w]hile the jury may take note of inconsistencies and resolve
or discount them accordingly, * * * such inconsistences do not render defendant's
conviction against the manifest weight or sufficiency of the evidence.' " State v. Gullick,
10th Dist. No. 13AP-317, 2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th Dist. No.
95APA09-1236 (May 28, 1996). "A jury, as the finder of fact and the sole judge of the weight
of the evidence and the credibility of the witnesses, may believe or disbelieve all, part, or
none of a witness's testimony." Id., citing State v. Antill, 176 Ohio St. 61, 67 (1964). A
conviction is not against the manifest weight of the evidence because the jury believed the
state's version of events over the appellant's version. Id. at ¶ 11, citing State v. Houston,
10th Dist. No. 04AP-875, 2005-Ohio-4249, ¶ 38. A reviewing court must give great
deference to the jury's determination of witness credibility. Id., citing State v. Chandler,
10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 9.
{¶ 48} Appellant was convicted on one count of involuntary manslaughter, in
violation of R.C. 2903.04, by causing the death of Hanna Geiger as a proximate result of
committing the felony offense of corrupting another with drugs and/or trafficking in drugs
by selling or offering to sell cocaine. R.C. 2903.04 provides, in relevant part:
(A) No person shall cause the death of another or the unlawful
termination of another's pregnancy as a proximate result of the
offender's committing or attempting to commit a felony.
***
(C) Whoever violates this section is guilty of involuntary
manslaughter. Violation of division (A) of this section is a
felony of the first degree.
Nos. 19AP-113 and 19AP-116 15
{¶ 49} In State v. Losey, 23 Ohio App. 3d 93, 95 (10th Dist.1985), construing former
R.C. 2903.04, this court stated that for purposes of determining culpability for involuntary
manslaughter, " '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."
Id. at 95. Further, "[i]t is not necessary that the accused be in a position to foresee the
precise consequence of his conduct; only that the consequence be foreseeable in the sense
that what actually transpired was natural and logical in that it was within the scope of the
risk created by his conduct." Id. at 96. Thus, the issue of whether the evidence was
sufficient to support a finding that appellant's acts were the proximate cause of Hanna
Geiger's death is resolved by whether Hanna Geiger's death reasonably could be anticipated
by an ordinarily prudent person as likely to result based upon the facts and circumstances
of this case. State v. Platt, 10th Dist. No. 03AP-1148, 2005-Ohio-705, ¶ 33.
{¶ 50} Appellant argues that Hanna's death was not within the foreseeable scope of
risk created by his conduct when he provided her with the cocaine because he did not
administer the cocaine to her; he did not mix the shot for her; and he "had no prior
knowledge as to whether or not the decedent consumed a large mixture of drugs and was
inebriated prior to the consumption of the cocaine." (Appellant's Brief at 27.) Notably, the
latter assertion is wholly belied by appellant's own admission during his interview that
Hanna did not appear to be sober, appeared to be high when she arrived at the home the
night she died, and had told him she had been smoking crack since she left the hospital.
(Tr. at 342-43.)
{¶ 51} Even if appellant had not known she was high upon arrival, however, Hanna's
overdose death was within the foreseeable scope of risk created by appellant's act of giving
her the cocaine. We observe that over the past decade, Ohio courts have widely
acknowledged that the possibility of an overdose death is a reasonably foreseeable
consequence of providing a controlled substance to another person. See, e.g., State v. Sabo,
3d Dist. No. 14-09-33, 2010-Ohio-1261; State v. Vogt, 4th Dist. No. 17CA17, 2018-Ohio-
4457; State v. Veley, 6th Dist. No. L-16-1038, 2017-Ohio-9064, ¶ 25 (finding death need
not be actually envisioned to be foreseeable); State v. Wells, 12th Dist. No. CA2016-02-009,
2017-Ohio-420, ¶ 39 (finding "[t]here is nothing extraordinary or surprising about the
Nos. 19AP-113 and 19AP-116 16
manner of [decedent'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"). Upon consideration, we find
we are of like mind.
{¶ 52} Furthermore, although in his brief appellant specifically attempts to
distinguish Sabo from the facts of this case, the attempt wholly fails as the facts of the cases
bear much more in resemblance to each other than in difference. In both cases there was
evidence of decedent's inebriated condition, which appellant admitted in this case (Tr. at
342-43); that the decedent and appellant had taken other substances together, which
appellant admitted in stating he and Hanna were both smoking the cocaine initially (Tr. at
310); and that the defendant warned the decedent about using the illegal substance, which
appellant admitted in stating he told Hanna not to inject the cocaine (Tr. at 311.). Thus,
contrary to appellant's argument, under the facts of this case, a rational trier of fact could
readily have found that the prosecution proved beyond a reasonable doubt that appellant's
conduct was the proximate cause of Hanna's death. Therefore, the evidence was sufficient
to support a finding that this element of the crime was met. And, because there was no
conflicting testimony on this issue for the jury to resolve, appellant's conviction of
involuntary manslaughter was not against the manifest weight of the evidence.
{¶ 53} In sum, appellant has failed to demonstrate the evidence was insufficient or
that the jury clearly lost its way and created such a manifest miscarriage of justice that his
conviction on the involuntary manslaughter count must be reversed and a new trial
ordered. Because appellant's conviction was supported by sufficient evidence and was not
against the manifest weight of the evidence, his second assignment of error is overruled.
C. Third Assignment of Error – Merger
{¶ 54} In his third assignment of error, appellant argues all five of his criminal
convictions should have merged pursuant to R.C. 2941.25. We do not agree.
{¶ 55} In reviewing a trial court's determination of whether a defendant's offenses
should merge pursuant to R.C. 2941.25, otherwise known as the multiple counts statute, an
appellate court conducts its review de novo. Flood at ¶ 25, citing State v. S.S., 10th Dist.
No. 13AP-1060, 2014-Ohio-5352, ¶ 28, citing State v. Williams, 134 Ohio St. 3d 482, 2012-
Ohio-5699, ¶ 1. Thus, although we must apply the law to the facts of the individual case
Nos. 19AP-113 and 19AP-116 17
before us in making a legal determination as to whether R.C. 2941.25 allows multiple
convictions, " ' "[t]hat facts are involved in the analysis does not make the issue a question
of fact deserving of deference to a trial court." ' " Id., quoting S.S. at ¶ 28, quoting Williams
at ¶ 25.
{¶ 56} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
{¶ 57} " 'When the defendant's conduct constitutes a single offense, the defendant
may be convicted and punished only for that offense. When the conduct supports more
than one offense, however, a court must conduct an analysis of allied offenses of similar
import to determine whether the offenses merge or whether the defendant may be
convicted of separate offenses.' " Flood at ¶ 27, quoting State v. Ruff, 143 Ohio St. 3d 114,
2015-Ohio-995, ¶ 24.
{¶ 58} In determining whether two offenses are allied offenses that merge into a
single conviction, we " 'must evaluate three separate factors: the conduct, the animus, and
the import.' " Flood at ¶ 28, quoting State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-
3424, ¶ 42, citing Ruff at paragraph one of the syllabus. " 'If any of the following is true, the
offenses cannot merge and the defendant may be convicted and sentenced for multiple
offenses: (1) the offenses are dissimilar in import or significance—in other words, each
offense caused separate, identifiable harm, (2) the offenses were committed separately, and
(3) the offenses were committed with separate animus or motivation.' " Flood at ¶ 28,
quoting Ruff at ¶ 25. "Ultimately, if the harm resulting from each offense is separate and
identifiable, the offenses are of dissimilar import and do not merge." Id., citing Harris at ¶
42, citing Ruff at ¶ 25.
{¶ 59} Appellant argues the trial court erred in failing to merge all five offenses for
purposes of conviction and sentencing because they all emanate from his conduct of
Nos. 19AP-113 and 19AP-116 18
acquiring cocaine. This is not so. With respect to the offense of gross abuse of a corpse and
the offense of tampering with evidence, the conduct of appellant was wholly separate and
distinct both from each other and from the other three offenses. The tampering with
evidence charge arose from appellant disposing of Hanna's purse and car. The gross abuse
of a corpse charge arose from putting Hanna's body wrapped in trash bags in the basement
and leaving it there for over a month after she had died. These acts exist separately and
apart from the act of acquiring cocaine and should neither merge with each other nor with
any of the other three offenses pursuant to R.C. 2941.25.
{¶ 60} With respect to the remaining three offenses of trafficking in drugs,
corrupting another with drugs, and involuntary manslaughter, the offenses do not merge
because of the dissimilar import of the offenses. As argued by the state, the three offenses
clearly escalate in terms of import and the significance of the harm. Trafficking need not
involve any harm at all and is a fifth-degree felony. Corrupting another with drugs requires
serious harm and is a second-degree felony. Involuntary manslaughter requires death, the
most serious harm of all, and is a first-degree felony. The three offenses clearly require
differing degrees of harm.
{¶ 61} Further, we note that when the trial court conducted its analysis on the
merger issue, it specifically addressed why it would not be proper to merge the corrupting
another with drugs offense and the involuntary manslaughter offense as requested by
appellant. The trial court rightly concluded that the physical harm caused by the corrupting
with drugs was not Hanna's death; rather, it was the harm which occurred during the period
of time between Hanna's ingestion of the cocaine and her death, which the coroner's expert
testified could have been as long as 10 or 15 minutes. (Tr. at 222.) As urged by the state,
the different timing of the offenses serves to further solidify the fact that the offenses are
dissimilar in import.
{¶ 62} In sum, we find the five separate offenses for which appellant was convicted
have different import and significance of harm, and the trial court did not err when it
determined that none of them should merge for purposes of sentencing. Accordingly,
appellant's third assignment of error is overruled.
IV. Disposition
Nos. 19AP-113 and 19AP-116 19
{¶ 63} Having overruled appellant's three assignments of error, we affirm the
judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
BROWN and DORRIAN, JJ., concur.