State v. White , 2024 Ohio 5158 ( 2024 )

[Cite as State v. White, 2024-Ohio-5158.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2024-A-0045
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
MARVIN J. WHITE a.k.a.
MARVIN JACKSON WHITE, Trial Court No. 2019 CR 00703
Defendant-Appellant.
OPINION
Decided: October 28, 2024
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Mark Majer, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, OH 44109 (For Defendant-
Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Marvin White, appeals his convictions from the Ashtabula County
Court of Common Pleas. We heard Appellant’s first direct appeal in State v. White, 2023-
Ohio-4092 (11th Dist.) (“White I”). In that case, we affirmed his convictions in part,
reversed in part, and remanded, finding that Count 1, Involuntary Manslaughter with a
predicate offense of Corrupting Another with Drugs, a first-degree felony in violation of
R.C. 2903.04, was not supported by sufficient evidence. We ordered that Appellant be
sentenced on the previously merged Count 2, Involuntary Manslaughter with a predicate
offense of Trafficking in a Fentanyl-Related Compound, a first-degree felony in violation
of R.C. 2903.04. We also remanded for resentencing on Count 9, Trafficking in a
Fentanyl-Related Compound, a fourth-degree felony in violation of R.C. 2925.03(A)(2),
because the trial court had imposed a 36-month sentence where the maximum possible
sentence was 18-months. We affirmed Appellant’s convictions on the remaining counts.
{¶2} After resentencing, Appellant has raised three assignments of error arguing
that his conviction on Count 2 was not supported by sufficient evidence, was against the
manifest weight of the evidence, and that the record did not support the imposition of
consecutive sentences.
{¶3} Having reviewed the record and the applicable caselaw, Appellant's
assignments of error are without merit. His conviction on Count 2 was supported by
competent credible evidence that Appellant’s Trafficking in a Fentanyl-Related
Compound caused the death of another by overdose and that such a death was a
foreseeable consequence of Trafficking in Drugs. Further, the trial court made all
necessary findings to impose a consecutive sentence under R.C. 2929.14, the record
clearly and convincingly supported the trial court imposing consecutive sentences, and
Appellant’s sentence was not otherwise contrary to law.
{¶4} Therefore, we affirm the judgment of the Ashtabula County Court of
Common Pleas.
Substantive and Procedural History
{¶5} On January 29, 2020, Appellant was indicted on 11 Counts: Count 1:
Involuntary Manslaughter with a predicate offense of Corrupting Another with Drugs, a
first-degree felony in violation of R.C. 2903.04; Count 2: Involuntary Manslaughter with a
2
Case No. 2024-A-0045
predicate offense of Trafficking in a Fentanyl-Related Compound, a first-degree felony in
violation of R.C. 2903.04; Count 3: Corrupting Another with Drugs, a second-degree
felony in violation of R.C. 2925.02(A)(3); Count 4: Trafficking in a Fentanyl-Related
Compound; a fifth-degree felony in violation of R.C. 2925.03(A)(1); Count 5: Aggravated
Trafficking in Drugs, a fourth-degree felony in violation of R.C. 2925.03(A)(1); Count 6:
Trafficking in a Fentanyl-Related Compound, a fifth-degree felony in violation of R.C.
2925.03(A)(1); Count 7: Aggravated Trafficking in Drugs, a third-degree felony in violation
of R.C. 2925.03(A)(2); Count 8: Aggravated Possession of Drugs, a third-degree felony
in violation of R.C. 2925.11(A); Count 9: Trafficking in a Fentanyl-Related Compound, a
fourth-degree felony in violation of R.C. 2925.03(A)(2); Count 10: Possession of a
Fentanyl-Related Compound, a fifth-degree felony in violation of R.C. 2925.11(A); and
Count 11: Possessing Criminal Tools, a fifth-degree felony in violation of R.C. 2923.24(A).
{¶6} Appellant pled not guilty, and the matter proceeded to jury trial. In White I,
we set forth the following factual summary:
{¶8} Edgar Johnson testified that he lived on West 9th Street in Ashtabula,
Ohio. He said that on August 31, 2019, he lived at that residence with his
sister Thelma Paul and a friend, Travis Rockwell. Thelma was 58 years old,
disabled, and in chronic pain. Edgar knew Travis because he had dated
Travis’ mother, Danielle Rockwell.
{¶9} Edgar said that both he and Thelma were drug users. On August 31,
2019, Thelma was complaining her back was bothering her. Edgard tried to
take her to the hospital, but she refused. Someone from the energy
company came to the house and Edgar talked to him outside for
approximately two hours. When he came back inside, he found Thelma
lying on the bed not moving or breathing. Edgar called 911 and Thelma was
transported to the hospital where she was pronounced dead as the result
of an overdose. Edgar said that he knew of appellant but had never seen
him at the house on West 9th.
{¶10} Brandon Zukoski, a police officer with the Ashtabula City Police
Department, testified that he responded to the Ashtabula Medical Center
3
Case No. 2024-A-0045
for an overdose and saw Thelma. Zukoski recognized her but could not put
a name to the face. He continued his investigation by going to the 9th Street
residence. He went into Thelma's bedroom and noted a lot of clutter, drugs,
and drug paraphernalia such as “snort straws, razor blades, folded paper .
. . white powder residue, . . . two lines of suspected meth . . . [and] a fold
paper that had a brown packed powder on it.” He said that the drugs he
recovered were tested and found to be methamphetamine, heroin, and
carfentanil.
{¶11} Danielle Rockwell testified and said she knew appellant because he
was married into her husband's family and she also knew him as a drug
dealer. She said on August 31, 2019, her son Travis contacted her asking
for appellant's phone number. Danielle said Travis was using heroin at the
time and appellant was the person who supplied her with heroin when she
was using drugs. Danielle called appellant and told him Travis wanted to
talk to him. Appellant picked up Danielle in a maroon Cadillac and went to
Travis’ West 9th Street residence. Travis left $20.00 for the heroin on the
porch. Danielle said she left heroin on the porch then collected the money
and gave it to appellant.
{¶12} Danielle said she later learned of Thelma's passing and that a police
detective contacted her about the matter. She told the police about
appellant dealing drugs from his residence on East 17th Street. She said
she agreed to conduct a drug buy from appellant.
{¶13} On September 2, 2023, she arranged to meet appellant to buy heroin
and the investigators provided her with a recording device to capture the
transaction. Danielle went to appellant's house and purchased $20.00 worth
of heroin. However, although appellant gave Danielle the heroin, she forgot
to give him the $20.00.
{¶14} Danielle had been charged with Involuntary Manslaughter, Corrupting
Another with Drugs, Trafficking in a Fentanyl-Related Compound,
Aggravated Trafficking in Drugs, and Tampering with Evidence. She took a
plea deal to a reduced charge of Attempted Corrupting Another with Drugs
and Trafficking in Drugs with a sentence of 18 months prison in exchange
for her truthful testimony against appellant. She also admitted to having
prior forgery and theft convictions.
{¶15} Travis Rockwell testified that he lived at the West 9th Street residence
with Thelma and Edgar in August 2019. He said that on August 31, he called
his mom, Danielle, to help him buy heroin. Travis said he had recently
bought a new phone and no longer had appellant's number. He said that
appellant and his mom came to the house in a red Cadillac. Travis said he
went to the car to pick up the drugs and that he paid appellant $30.00 for
the heroin. Travis explained that Thelma contributed $20.00 to the drug
4
Case No. 2024-A-0045
purchase and he paid $10.00 toward the purchase. Earlier in the day, Travis
had texted Thelma asking for $20.00 to pay toward her share.
{¶16} Travis went back into the house and gave Thelma her share of the
heroin and he went into the bathroom and took the drugs. He said that he
used a needle to get high, while Thelma would snort the drugs. When he
came out of the bathroom, Thelma had already overdosed, and Edgar was
administering CPR.
{¶17} When the Ashtabula Police arrived, Travis provided a statement. He
was charged for his involvement and took a plea deal to Attempted
Corrupting Another with Drugs and Trafficking in Drugs with a
recommended sentence of 18 months in exchange for truthful testimony in
appellant's case. When pressed about whether he went out to the car to
take the drugs from appellant or if Danielle came up to the house to drop
them, Travis said he was unsure. However, he said that the drugs ultimately
came from appellant.
{¶18} Lieutenant Michael Palinkas, with the Ashtabula City Police
Department, and Detective Thomas Perry, previously of Ashtabula City
Police Department, testified as to their investigation of the case. Perry said
that on August 31, 2019, he interviewed Travis and Edgar about their
involvement in Thelma's death. He also spoke to Danielle via phone and
later in person on September 2. Perry arranged for Danielle to conduct the
controlled drug buy from appellant.
{¶19} On September 3, 2019, the Ashtabula Police executed a search
warrant at appellant's East 17th Street residence based on Danielle's
controlled drug buy. Appellant was stopped in his vehicle at the East 17th
Street address and found methamphetamine and $663.00 in currency. At
the residence, officers recovered suspected drugs later identified as heroin
on a water tank, three digital scales, two orange pills later identified as
Buprenorphine tablets, and multiple cell phones.
{¶20} Appellant agreed to give Palinkas a statement and gave consent for
officers to search his primary residence located at West 30th Street. When
officers arrived at the West 30th Street residence, appellant spoke to his
wife and told her that he had “done some very bad things.” Officers
recovered $3,000.00 and a handgun in a safe. Appellant had the key to the
safe on his key ring while appellant's wife did not have a key for the safe.
Officers found a total of 47 firearms.
{¶21} Dr. Luigino Apollonio, the chief toxicologist for the Cuyahoga County
Examiner's Office, testified that he performed toxicology testing on a
specimen of blood from Thelma. He performed a comprehensive toxicology
5
Case No. 2024-A-0045
screen and determined she had fentanyl, carfentanil, morphine, and
methamphetamine in her system.
{¶22} Dr. Pamela Lancaster, the Ashtabula County Coroner, determined
Thelma's death was as a result of accidental overdose of a combination of
fentanyl and carfentanil.
{¶23} Shay Smith, a forensic scientist at the Bureau of Criminal Investigation
(BCI), analyzed suspected drugs and found the samples to be
methamphetamine, a combination of heroin and carfentanil, and carfentanil.
All tested samples were under 0.1 gram.
{¶24} Erin Miller, a forensic scientist at BCI, analyzed suspected drugs and
found the samples to be 3.03 grams of methamphetamine, two
Buprenorphine tablets, and a 1.19 gram combination of heroin, fentanyl,
and carfentanil.
{¶25} The State rested and appellant called the following witnesses:
{¶26} Daniel Mulholland testified that he rents a house on East 17th Street
from appellant. On September 3, 2019, he said that he went to pay his
monthly rent to appellant and found him sitting on the couch unable to get
up and move around. He also said appellant owns a white Cadillac. He said
appellant owns a red vehicle, but that it was in the driveway and inoperable
at the time.
{¶27} Annette White, appellant's wife, said she was present when the officer
searched their West 30th Street residence. She said that “98 percent” of the
guns seized were hers and that she acquired them through an inheritance.
She said she had never seen appellant sell drugs from the house. However,
she said that she worked during the day and did not know specifically what
appellant did while she was at work. She also said she only went to the East
17th Street residence once a month.
{¶28} Jerry Henry, Thelma's son, testified that he lived at the West 9th Street
residence but moved out a few weeks before Thelma died. He said that he
had never seen appellant at the house and had never seen appellant sell
drugs to Danielle or Travis. However, he said he had only met appellant two
days ago. He also never saw anyone sell or give drugs at the residence. He
said that he did see Thelma, Danielle, and Travis using drugs at the house.
{¶29} Raymond Hall testified that he is friends with appellant and said that
most of the firearms in appellant's house belonged to his wife. He helped to
pick them up in the 1980s after Annette inherited them. Elizabeth Hall,
Raymond's wife, said she also went to help pick up Annette's firearms when
she inherited them. She said she had never seen appellant sell drugs.
6
Case No. 2024-A-0045
{¶30} Tiffany Noble testified that she worked for appellant at his antique
shop. She said that she had seen appellant selling drugs out of the antique
shop while she worked there. She said appellant also sold her cocaine and
heroin. Noble testified that appellant sold her a car for $3,000.00 in August
2019.
{¶31} Lester Johnson lived in the upstairs unit of the West 9th Street
residence in August 2019. Johnson is Thelma's brother. He said he has
known appellant for 25 years. Johnson said he was at home on August 31,
2019, but he did not see appellant come to the address.
{¶32} Andrew Sawan, a forensic scientist with BCI, testified that he
performed DNA analysis on a paper bindle and a plastic bag. He said both
items contained DNA profiles consistent with Thelma as well as DNA from
a male with an insufficient sample for comparison to a standard. The plastic
bag also contained DNA consistent with another unidentified female.
Danielle's DNA standard was not available for comparison.
{¶33} Appellant testified in his own defense. He said he is retired and
became addicted to opioids after receiving cancer treatment. He claimed he
was no longer using heroin in August 2019 but said he was still using
methamphetamine. He said that he was circumcised on August 29, 2019,
and was unable to walk and stayed in bed or on the couch. He said he could
not drive for four or five days. On August 31, he said he tried to get up a few
times but was unable to do so. When he tried, he said he ripped stitches.
{¶34} Appellant denied leaving the house on August 31 and denied seeing
Danielle or Travis. He denied knowing Thelma.
{¶35} Appellant denied ever selling drugs to Danielle or Travis. Appellant
said he owed Danielle and gave her the heroin when she conducted the
controlled buy. He said he was still unable to drive on September 2 during
the controlled drug buy and that someone drove him to the East 17th Street
address. He said he was driving on September 3 when he was arrested.
{¶36} He said the $3000.00 in the safe came from selling a car to Tiffany
and $500.00 of the $663.00 found on him when he was arrested came from
Daniel paying rent. He said that his red Cadillac was not operable on August
31, and he was driving a white Cadillac at the time.
White I at ¶ 8-36.
{¶7} The jury found Appellant not guilty on Count 7 and guilty as to the remaining
Counts. The trial court sentenced Appellant. Counts 1, 2, 3, and 4 were merged as allied
7
Case No. 2024-A-0045
offenses of similar import and the trial court sentenced Appellant on Count 1. Similarly,
Counts 9 and 10 were merged and the trial court sentenced Appellant on Count 9.
Therefore, Appellant was sentenced on Counts 1, 6, 8, 9, and 11. The trial court stated
that it considered the purposes and principles of felony sentencing under R.C. 2929.11
and R.C. 2929.12. The court concluded Appellant's conduct was more serious under R.C.
2929.12 because his crimes resulted in the death of another.
{¶8} On appeal in White I, Appellant argued that his conviction on Count 1 was
not supported by sufficient evidence and that the trial court erred by imposing a 36-month
sentence on Count 9 when the maximum possible sentence on that count was only 18
months. We agreed with these arguments in White I, holding that “there is insufficient
evidence to sustain appellant's conviction under Count 1 because the State failed to prove
the knowingly element of the predicate offense of Corrupting Another with Drugs.” Id. at
¶ 60. We also held that “the trial court incorrectly imposed a 36-month sentence on Count
9, which was contrary to law because Count 9 was a fourth-degree felony with a maximum
possible sentence of 18-months.” Id. at ¶ 73. We affirmed the remaining portions of
Appellant’s convictions and remanded to the trial court for the trial court to reimpose
sentence on Count 9 and to impose sentence on the previously merged Count 2.
{¶9} On May 3, 2024, the trial court sentenced appellant on Count 2, Involuntary
Manslaughter with a predicate offense of Trafficking in a Fentanyl-Related Compound, a
first-degree felony in violation of R.C. 2903.04. The trial court imposed a minimum definite
sentence of 11 years up to an indefinite term of 16 and one-half years. Count 4 merged
with Count 2. On Count 9, the trial court sentenced Appellant to 18 months. Count 10
8
Case No. 2024-A-0045
merged with Count 9. Together with the prior sentences imposed, Appellant’s total term
of incarceration was 17 and one-half years to 23 years.
{¶10} Appellant timely appealed raising three assignments of error.
Assignments of Error and Analysis
{¶11} We address Appellant’s first and second assignments of error together.
{¶12} Appellant’s first assignment of error states: “Appellant’s Convictions Were
Against the Manifest Weight of the Evidence.”
{¶13} Appellant’s second assignment of error states: “Appellant’s Convictions
Were Unsupported by Sufficient Evidence.”
{¶14} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,
386 (1997), citing Black's Law Dictionary (6 Ed.1990) 1433. The appellate court's
standard of review for sufficiency of evidence is to determine, after viewing the evidence
in a light most favorable to the prosecution, whether a rational trier of fact could find the
essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61
Ohio St.3d 259, 574 (1991), paragraph two of the syllabus.
{¶15} When evaluating the sufficiency of the evidence, we do not consider its
credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if
believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails
a review of the elements of the charged offense and a review of the State's evidence.
State v. Richardson, 2016-Ohio-8448, ¶ 13.
9
Case No. 2024-A-0045
{¶16} When evaluating the weight of the evidence, we review whether the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other indicated clearly that the party having the burden
of proof was entitled to a verdict in its favor, if, on weighing the evidence in their minds,
the greater amount of credible evidence sustained the issue which is to be established
before them. “Weight is not a question of mathematics but depends on its effect in
inducing belief.” Thompkins at 387. Whereas sufficiency relates to the evidence's
adequacy, weight of the evidence relates the evidence's persuasiveness. Id.{¶17} The trier of fact is the sole judge of the weight of the evidence and the
credibility of the witnesses. State v. Landingham, 2021-Ohio-4258, ¶ 22 (11th Dist.); State
v. Antill, 176 Ohio St. 61, 67 (1964). The trier of fact may believe or disbelieve any witness
in whole or in part, considering the demeanor of the witness and the manner in which a
witness testifies, the interest, if any, of the outcome of the case and the connection with
the prosecution or the defendant. Id. This Court, engaging in the limited weighing of the
evidence introduced at trial, is deferential to the weight and factual findings made by the
factfinder. State v. Brown, 2003-Ohio-7183, ¶ 52 (11th Dist.). The reviewing court
“determines whether . . . 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. The
discretionary power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio
App. 3d 172, 175 (1st Dist. 1983).
10
Case No. 2024-A-0045
{¶18} A finding that a judgment is supported by the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence. State v.
Arcaro, 2013-Ohio-1842, ¶ 32 (11th Dist.).
{¶19} In White I, we already determined that Appellant’s convictions under Counts
6, 8, 9, and 11 were supported by sufficient evidence and were not against the manifest
weight of the evidence. Id. at ¶ 70. Therefore, we only address Count 2, Involuntary
Manslaughter with a predicate offense of Trafficking in a Fentanyl-Related Compound, a
first-degree felony in violation of R.C. 2903.04.
{¶20} R.C. 2903.04(A), Involuntary Manslaughter, provides: “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.”
“Involuntary manslaughter is a crime of transferred intent.” State v. Leffel, 2019-Ohio-
1840, ¶ 17 (11th Dist.), citing Stanley v. Turner, 6 F.3d 399, 402 (6th Cir. 1993), citing
State v. Losey, 23 Ohio App.3d 93 (10th Dist. 1985). “Thus, the requisite culpable mental
state is the same as the culpable mental state of the underlying offense.” Id. Further, “[t]he
possibility of overdose is a reasonably foreseeable consequence of the sale of heroin.”
State v. Patterson, 2015-Ohio-4423, ¶ 91 (11th Dist.).
{¶21} Appellant's conviction for Involuntary Manslaughter has a predicate offense
of R.C. 2925.03(A)(1), Trafficking in a Fentanyl-Related Compound, which provides that
no person shall knowingly “[s]ell or offer to sell a controlled substance or a controlled
substance analog.”
11
Case No. 2024-A-0045
{¶22} A person acts “knowingly” when, regardless of purpose, “the person is
aware that the person's conduct will probably cause a certain result or will probably be of
a certain nature.” R.C. 2901.22(B).
{¶23} Appellant argues that the evidence does not support a conviction for
manslaughter on three bases: first, that the evidence at trial did not support the conclusion
that Appellant engaged in drug trafficking. Second, that the conviction for Involuntary
Manslaughter cannot be supported as a result of Trafficking in a Fentanyl-Related
Compound because the evidence did not support a “cause-in-fact” conclusion that it was
the specific drugs Appellant sold to Travis that caused Thelma’s death. Third, that “even
if” Appellant’s drugs caused Thelma’s death, her death was not a foreseeable
consequence of Appellant supplying the drugs, i.e. that Appellant could not foresee that
his sale of the drugs would cause Thelma’s death because he did not know that the drugs
he sold would be given to Thelma at all.
{¶24} As to the first argument, Appellant returns to arguments made in White I, to
wit, whether Appellant did indeed sell drugs to Travis. We rejected these arguments in
White I and do so again here. Id. at ¶ 59 (“Appellant certainly knew he was furnishing
drugs to Travis, but nothing more.”).
{¶25} Next, as to whether Appellant’s selling the drugs to Travis was the cause-
in-fact of Thelma’s death, under the Involuntary Manslaughter statute, “[g]enerally, for a
criminal defendant's conduct to be the proximate cause of a certain result, it must first be
determined that the conduct was the cause in fact of the result, meaning that the result
would not have occurred ‘but for’ the conduct.” State v. Feltner, 2008-Ohio-5212, ¶ 13
(12th Dist.). “Evidence of a defendant’s cause of death can be established through direct
12
Case No. 2024-A-0045
and circumstantial evidence tending to demonstrate to the finder of fact the cause of the
victim’s death.” State v. Klotz, 2024-Ohio-2864, ¶ 32 (11th Dist.), citing State v. Beaver,
119 Ohio App.3d 385, 393 (11th Dist. 1997).
{¶26} There was some evidence that Thelma had numerous small folds of paper
used for drugs that Appellant did not supply. Further, no one testified that they saw
Thelma take the specific drugs that Travis bought from Appellant and then gave to
Thelma. Appellant believes this lack of evidence is fatal to the State’s case.
{¶27} However, there was sufficient, specific evidence that Travis purchased
drugs from Appellant, that Thelma paid Travis $20.00 for a two-thirds share of the drug
purchase, and that Travis gave those drugs to Thelma immediately before she died as a
result of an overdose. The manifest weight of the evidence supports a conclusion that it
was the specific drugs that Appellant sold to Travis that caused Thelma’s overdose.
Therefore, Appellant’s Trafficking in a Fentanyl-Related Compound was the cause-in-fact
of Thelma’s death.
{¶28} Finally, we address whether Thelma’s death was a foreseeable
consequence of Appellant’s trafficking in drugs. In the context of Involuntary
Manslaughter, the term “‘proximate result’ bears a resemblance to the concept of
‘proximate cause’ in that defendant will be held responsible for those foreseeable
consequences which are known to be, or should be known to be, within the scope of the
risk created by his conduct.” State v. Losey, 23 Ohio App.3d 93, 95 (10th Dist. 1985);
State v. Gibson, 1997 WL 402352, *5 (11th Dist. June 27, 1997) (citing Losey).
{¶29} This Court has consistently held that “[t]he possibility of overdose is a
reasonably foreseeable consequence of the sale of heroin.” State v. Patterson, 2015-
13
Case No. 2024-A-0045
Ohio-4423, ¶ 91 (11th Dist.). Therefore, Thelma’s death was certainly a foreseeable
consequence of Appellant’s sale of a fentanyl-related compound. That the State did not
present evidence that Appellant’s sale of drugs had previously caused overdoses or other
deleterious effects is of no moment.
{¶30} Unlike an offense of Involuntary Manslaughter with a predicate offense of
Corrupting Another with Drugs as we addressed in White I, Count 2 as reviewed here
does not require the State to prove Appellant knowingly furnished the drugs to Thelma.
Rather, the State’s burden was to prove that Thelma used the drugs that Appellant
trafficked and that her overdose was caused by those drugs. The State did so, and
Appellant’s conviction on Count 2 was supported by competent, credible evidence.
{¶31} Accordingly, Appellant’s first and second assignments of error are without
merit.
{¶32} Appellant’s third assignment of error states: “Appellant’s Sentence is
Contrary to Law.”
{¶33} “There are three ways an appellant can challenge consecutive sentences
on appeal.” State v. Gibbs, 2022-Ohio-4792, ¶ 64 (11th Dist.). First, the appellant may
argue that the sentencing court failed to state the findings for consecutive sentences that
R.C. 2929.14(C)(4) requires. State v. Torres, 2003-Ohio-1878, ¶ 18 (11th Dist.); R.C.
2953.08(G)(1). Second, the appellant may argue that the record clearly and convincingly
does not support the findings the sentencing court made to justify consecutive sentences.
State v. Lewis, 2002-Ohio-3373, ¶ 7 (11th Dist.); R.C. 2953.08(G)(2)(a). Third, the
appellant may argue that his sentence is clearly and convincingly otherwise contrary to
law. R.C. 2953.08(G)(2)(b).
14
Case No. 2024-A-0045
{¶34} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under postrelease control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶35} In making its findings for consecutive sentences, the sentencing court is
required to engage in the analysis for consecutive sentencing and specify the statutory
criteria warranting its decision. State v. Bonnell, 2014-Ohio-3177, ¶ 26. While the
sentencing court is not required to state exact reasons supporting its findings, the record
must contain a clear basis upon which a reviewing court can determine that the
sentencing court's findings for imposing consecutive sentences are supported by the
record. Id. at ¶ 27-28.
{¶36} In White I, we concluded that the trial court had made the necessary findings
to impose consecutive sentences, and so conclude here. Id. at ¶ 78.
15
Case No. 2024-A-0045
{¶37} However, we declined to pass judgment on whether the record supported
the imposition of consecutive sentences because we were remanding the case for
resentencing and did not want to rule “absent a complete record on the issue we are
asked to decide.” Id. at ¶ 80. This issue is now properly before us.
{¶38} Appellant’s argument is that the record does not clearly and convincingly
support the findings the trial court made to justify imposing consecutive sentences
because he is a 71-year-old disabled Vietnam veteran with no prior felony convictions.
He maintains that the imposition of a consecutive sentence is the functional equivalent to
a life sentence, which is inappropriate in a case where there was no direct evidence that
he ever met the victim.
{¶39} We disagree. The record clearly and convincingly supports the trial court’s
findings imposing consecutive sentences. Appellant’s offenses took place over the course
of three separate days and represented a consistent engagement in criminal activity
surrounding trafficking in drugs. The evidence showed Appellant sold drugs from at least
three locations: an antique store he operated, the E. 17th Street residence, and via
delivery from his vehicle. His criminal activity resulted in the death of another through an
overdose. The offenses were committed as part of one or more courses of conduct, and
the harm caused was so great that no single prison term adequately reflects the
seriousness of the offender's conduct.
{¶40} Having independently reviewed the record, we find that the trial court did
not err in imposing consecutive sentences.
16
Case No. 2024-A-0045
{¶41} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed.
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
17
Case No. 2024-A-0045