State v. Jackson , 2021 Ohio 4619 ( 2021 )

[Cite as State v. Jackson, 2021-Ohio-4619.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-20-036
Appellee Trial Court No. 20 CR 211
v.
Jaleel H. Jackson DECISION AND JUDGMENT
Appellant Decided: December 29, 2021
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.
James H. Ellis, III, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from an October 9, 2020 judgment of the Sandusky County
Court of Common Pleas, denying appellant’s Crim.R. 29(A) motion for acquittal and
convicting appellant on one count of drug trafficking, in violation of R.C. 2925.03(A), a
felony of the fifth degree, and one count of corrupting another with drugs, in violation of
R.C. 2925.02(A), a felony of the second degree. Appellant was found not guilty on one
count of involuntary manslaughter, in violation of R.C. 2903.04(A), a felony of the first
degree.
{¶ 2} On October 14, 2020, appellant was sentenced to a one-year term of
incarceration on the drug trafficking conviction, and an indefinite term of incarceration,
ranging from a minimum term of six years to a maximum term of nine years, on the
corrupting another with drugs conviction, with the the sentences ordered to be served
concurrently. For the reasons set forth below, this court affirms the judgment of the trial
court.
{¶ 3} Appellant, Jaleel Jackson, sets forth the four (4) assignments of error:
A. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.
B. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR ACQUITTAL.
C. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
LAW TO SUPPORT A FINDING BEYOND A REASONABLE DOUBT
THAT APPELLANT WAS GUILTY OF TRAFFIC[K]ING IN DRUGS.
D. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
LAW TO SUPPORT A FINDING BEYOND A REASONABLE DOUBT
2.
THAT APPELLANT WAS GUILTY OF CORRUPTING ANOTHER
WITH DRUGS.
{¶ 4} The following undisputed facts are relevant to this appeal. On October 7,
2019, Jessica Kraus, a Fremont resident, texted appellant seeking to purchase drugs.
Appellant swiftly replied, confirming his interest in the transaction. The parties then
engaged in a series of text and social media electronic message exchanges, during which
the details of the pending drug sale were finalized.
{¶ 5} Shortly thereafter, the parties met and the drug sale was completed.
Subsequently, appellant texted Kraus, “I gave you the wrong bag.” (Emphasis added).
Kraus did not reply. In the interim, she had consumed the drugs and died from a massive
fentanyl overdose.
{¶ 6} On October 8, 2019, Kraus died in her residence from combined drug
toxicity, including fentanyl and cocaine. To put the magnitude of the overdose into
context, an examination of comparative levels of fentanyl is informative.
{¶ 7} A therapeutic dose of fentanyl is approximately one nanogram per milliliter
in the bloodstream. A fatal dose of fentanyl is considered to be approximately five
nanograms per milliliter in the bloodstream.
{¶ 8} By contrast, post-mortem testing found that Kraus had 38 nanograms of
fentanyl per milliliter in her bloodstream, an amount thirty-eight times greater than a
therapeutic level and eight times greater than a level considered to be fatal.
3.
{¶ 9} On February 21, 2020, appellant was indicted on one count of drug
trafficking, in violation of R.C. 2925.03(A), a felony of the fifth degree, one count of
corrupting another with drugs, in violation of R.C. 2925.02(A), a felony of the second
degree, and one count of involuntary manslaughter, in violation of R.C. 2903.04(A), a
felony of the first degree.
{¶ 10} On October 8, 2020, a two-day jury trial commenced. At trial, the state
presented detailed testimony from multiple law enforcement officers and related expert
witnesses similarly involved in the investigation of the fatal fentanyl overdose underlying
this case.
{¶ 11} The state’s witnesses included the sergeant in the Fremont Police
Department who first responded to the scene, two detectives with the Fremont Police
Department who joined the response at the scene and assisted in the investigation, the
BCI forensic scientist who tested and identified the substances recovered at the scene, the
BCI special agent in the cyber division who assisted in the electronic communications
aspects of the investigation, and the forensic pathologist who conducted the post-mortem
examination and tests performed to determine the various substance levels present in the
decedent.
{¶ 12} On October 9, 2020, pursuant to Crim.R. 29, appellant’s counsel motioned
the court for an acquittal on all counts. The motion was denied. Following jury
deliberations, appellant was acquitted on the count of involuntary manslaughter, and
convicted on the remaining counts of drug trafficking and corrupting another with drugs.
4.
{¶ 13} On October 14, 2020, appellant was sentenced to a one-year term of
incarceration on the drug trafficking conviction, along with an indefinite term of
incarceration, ranging from a minimum of six years to a maximum of nine years, on the
corrupting another with drugs conviction, with the sentences ordered to be served
concurrently. This appeal ensued.
{¶ 14} In the first assignment of error, appellant argues that he received ineffective
assistance of trial counsel. We do not concur.
{¶ 15} It is well-established that in order to demonstrate ineffective assistance of
counsel, one must satisfy a two-prong test. First, it must be shown that counsel’s
representation was deficient in some specific way, falling below an objective standard of
reasonableness. If the first prong is satisfied, then it must be shown that, but for the
demonstrated deficiency, the outcome of the case would have been different. Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 16} Appellate courts must be highly deferential and retain a strong presumption
that counsel’s conduct fell within the range of reasonable professional assistance when
reviewing claims of ineffective assistance of counsel. Id. At 689.
{¶ 17} In conjunction, a properly licensed attorney in Ohio is presumed
competent. State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Tactical,
strategic decisions do not constitute a meritorious basis of an ineffective assistance of
counsel claim. State v. Phillips, 74 Ohio St.3d 72, 656 N.E.2d 643 (1995).
5.
{¶ 18} Specifically, in support of the ineffective assistance of counsel claim,
appellant cites to trial counsel’s decision to decline to call David Scott (“Scott”), to
testify as a witness at trial. Scott was Kraus’s boyfriend and was present at the time of
her death.
{¶ 19} Appellant engages in multiple layers of speculation to ultimately suggest
that appellant would not have been convicted had Scott testified. Appellant implies,
without supporting evidence, that Scott, rather than appellant, furnished the fatal fentanyl
drugs to Kraus.
{¶ 20} The record of evidence is devoid of evidence in support of appellant’s
conjecture that Scott furnished the subject drugs or that that’s Scott testimony would have
been outcome determinative, rather than an acceptable strategical decision.
{¶ 21} Conversely, a series of specific electronic communications exchanged
between Kraus and appellant in the hours immediately preceding her fentanyl overdose
death, clearly reflecting appellant’s sale of drugs to Kraus and appellant’s subsequent
warning to Kraus that he had given her the “wrong bag”, plainly refutes appellant’s
insinuation regarding Scott.
{¶ 22} Accordingly, we find that appellant has failed to demonstrate that, but for
trial counsel’s tactical decision to not call Scott as a witness, the outcome of this case
would have been different. We find appellant’s first assignment of error not well-taken.
{¶ 23} Given that appellant’s remaining three assignments of error, disputing the
trial court’s denial of appellant’s Crim.R. 29 motion for acquittal and disputing the
6.
sufficiency of the evidence supporting the convictions, are all rooted in the common legal
premise that appellant’s convictions were not supported by sufficient evidence, we shall
address them simultaneously.
{¶ 24} It is well-established that, “A motion for acquittal under Crim.R. 29(A)
challenges the sufficiency of the evidence. State v. Brinkley, 105 Ohio St.3d 231, 2005-
Ohio-1507, 824 N.E.2d 959, ¶ 39.” State v. Shelby, 6th Dist. Wood No. WD-17-056, 135
N.E.3d 508, 2019-Ohio-1564, ¶ 17.
{¶ 25} Accordingly, the denial of a Crim.R. 29(A) motion for acquittal is
governed by the same standard as that which is utilized in determining whether a verdict
is supported by sufficient evidence. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-
2417, 847 N.E.2d 386, ¶ 37.
{¶ 26} Resolving a sufficiency of the evidence challenge requires our
consideration of whether, when the evidence is examined in the light most favorable to
the prosecution, a rational trier of fact could have found the elements of the crimes
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991). The appellate court must assess whether the evidence, if believed, would support
a conviction. Jenks at paragraph two of the syllabus.
{¶ 27} Appellant’s Crim.R. 29(A) motion for acquittal on all counts was denied.
He was subsequently convicted of one count of trafficking in drugs, in violation of R.C.
2925.03(A), a felony of the fifth degree, and one count of corrupting another with drugs,
in violation of R.C. 2925.02(A), a felony of the second degree.
7.
{¶ 28} As relates to the drug trafficking conviction, R.C. 2925.03(A)(1)(C)(9)
establishes that no person shall, “Sell or offer to sell a controlled substance or a
controlled substance analog; if the drug involved in the violation is a fentanyl-related
compound.”
{¶ 29} As relates to the corrupting another with drugs conviction, R.C.
2925.02(A)(3) establishes that no person shall, “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.”
{¶ 30} We shall now examine the sufficiency of the evidence supporting the
convictions on these two offenses. In the course of the jury trial, appellee called multiple
supporting law enforcement and related expert witnesses involved in the investigation of
this case.
{¶ 31} Testifying first at trial was Sergeant Kingsborough of the Fremont Police
Department. He testified that on October 9, 2019, he responded to a call regarding an un-
responsive female. Upon arrival at Kraus’s duplex residence, he found her unresponsive,
unclothed, on the floor, with drug paraphernalia and residue present, and accordingly
determined that she was suffering from a probable drug overdose.
{¶ 32} Kingsborough secured the scene with the assistance of another responding
officer. He then notified the chain of command that the circumstances observed at the
scene necessitated that an investigation into the matter should commence.
8.
{¶ 33} Testifying next was Detective Holskey of the Fremont Police Department.
Holskey. Holskey testified that he had successfully completed drug overdose
investigation training conducted by the Ohio Attorney General’s office. Accordingly,
Holskey reported to the scene upon learning of it, and assisted in the investigation.
{¶ 34} Holskey testified that when emergency medical responders arrived at the
scene, they determined that Kraus had expired. During Holskey’s examination of the
premises, he recovered an open baggie of drugs in the bathroom. In addition, he
recovered a sheet of notebook paper from the top of her bedroom dresser containing the
user names and passwords for Kraus’s online accounts. Holskey assisted the other
officers in processing the scene and gathering evidence.
{¶ 35} BCI forensic drug chemistry scientist Sarah Tipton next testified that the
above-referenced drug residue evidence that was recovered was lab tested and found to
contain remarkably high levels of fentanyl, consistent with the post-mortem level found
in Kraus, which exceeded the fatality threshold by a factor of 8. It also contained
tramadol, cocaine, heroin, and carfentanil.
{¶ 36} Detective Jason Kiddey of the Fremont Police Department next furnished
detailed testimony regarding the recovery of the electronic communications evidence
exchanged between appellant and Kraus just prior to the death, and pertinent to this
appeal.
{¶ 37} As one of the responding officers on the scene, Kiddey recovered the
decedent’s activated, unlocked mobile phone. Kiddey testified at length regarding the
9.
numerous text messages, and other social media exchanges, which had been exchanged
between Kraus and appellant in the hours preceding her death. The content of these
communications showed appellant’s sale of drugs to Kraus shortly preceding her fentanyl
overdose death.
{¶ 38} Approximately five hours before emergency responders were called to her
residence, Kraus texted appellant, “Bring me a 40 and 20.” Appellant texted back, “You
want a 40 and 20 wya [where you at]?”
{¶ 39} Shortly thereafter, Kraus texted appellant, “Here.” Appellant replied, “Out
back.” Several minutes later, after the exchange, appellant texted Kraus, “You sure it’s
[the payment for the drugs] on here[,] you say take it to any ATM?” Kraus replied,
“Yeah, it’s on there.” Appellant responded, “If this money [is] not on here you will never
get shit [drugs] again.”
{¶ 40} Approximately 20 minutes later, appellant messaged Kraus through
Facebook Messenger, “You knew there wasn’t none on that card. It do take a pin. That’s
cool. That 30 you got won’t get you anything else.”
{¶ 41} Appellant texted Kraus approximately four hours before emergency
responders were called to her residence, “I want to check the balance. What’s the last
four of your social? Yo, it says the card [is] not active yet. If the money [is] not on here,
you will never get shit again.”
{¶ 42} Appellant later texted Kraus, “I gave you the wrong bag [of drugs].” There
was no reply.
10.
{¶ 43} Dr. Jeffrey Hudson (“Hudson”), appellee’s forensic pathologist, next
testified. Hudson testified regarding his performance of the post-mortem examination of
Kraus and his compilation of findings and reports connected to same.
{¶ 44} Hudson testified that the testing he conducted on decedent’s blood and
urine reflected the presence of cocaine, tramadol, and a massive amount of fentanyl.
Hudson testified that the amount of fentanyl present in the decedent’s blood was at a
level of approximately eight times higher than the normal fentanyl fatality threshold.
{¶ 45} After appellee concluded the presentation of their case, counsel for
appellant made a Crim.R. 29(A) motion for acquittal. It was denied. The jury began
deliberations. Appellant was convicted on one count of drug trafficking, and one count
of corrupting another with drugs. Appellant was acquitted on the count of involuntary
manslaughter.
{¶ 46} In support of challenging the trial court’s denial of the motion for acquittal
and the sufficiency of the evidence in support of the convictions, appellant maintains that,
“These text messages were tortuously construed to create the inference that appellant sold
a controlled substance [to decedent].”
{¶ 47} We note that the above-quoted plain language of the numerous electronic
messages between appellant and Kraus, as well as the consistent timing of same in
relation to Kraus’s consumption of drugs and fentanyl overdose death, do not comport
with appellant’s position.
11.
{¶ 48} Without supporting evidence, appellant attempts to implicate Scott in the
crimes for which appellant has been convicted.
{¶ 49} We are not persuaded. On the contrary, the plain meaning of the numerous
electronic communications recovered from her devices, which occurred between
appellant and Kraus in the hours immediately preceding her fentanyl overdose death,
clearly support of a finding of appellant’s culpability for the crimes of which he was
convicted.
{¶ 50} The record contains unrefuted evidence that Kraus sought to purchase
illegal drugs from appellant, appellant furnished the drugs to Kraus, she consumed them,
and thereafter died of a massive fentanyl overdose.
{¶ 51} Accordingly, we find that when examining the evidence in this case in the
light most favorable to appellee, a rational trier of fact could have found that the state
proved via evidence which, if believed, established beyond a reasonable doubt that
appellant sold fentanyl to Kraus, the sale of the fentanyl induced her to use the fentanyl,
and that caused her serious physical harm, her fatal drug overdose, thereby constituting
the elements of drug trafficking and corrupting another with drugs.
{¶ 52} Wherefore, we find that the trial court properly denied appellant’s motion
to acquit, and relatedly, we further find that appellant’s convictions were supported by
sufficient evidence. Accordingly, appellant’s second, third, and fourth assignments of
error, are found not well-taken.
12.
{¶ 53} On consideration whereof, the judgment of the Sandusky County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, P.J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
13.