State v. Brown , 2018 Ohio 899 ( 2018 )

[Cite as State v. Brown, 2018-Ohio-899.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
CASE NO. 5-17-19
PLAINTIFF-APPELLEE,
v.
NATHAN S. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2016-CR-335
Judgment Affirmed
Date of Decision: March 12, 2018
APPEARANCES:
Ronald L. Frey for Appellant
Steven M. Powell for Appellee
Case No. 5-17-19
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Nathan S. Brown (“Brown”) appeals the
judgment of the Hancock County Court of Common Pleas, alleging (1) that his
convictions were not supported by sufficient evidence; (2) that his convictions were
against the manifest weight of the evidence; (3) that the State violated his Fifth
Amendment rights by failing to preserve evidence; and (4) that he was denied his
right to the effective assistance of counsel as guaranteed by the Sixth Amendment.
For the reasons set forth below, the judgment of the lower court is affirmed.
Facts and Procedural History
{¶2} Jarrod T. Barger (“Jarrod”) lived in Findlay, Ohio with his brother,
Michael Barger (“Michael”), and worked at a nearby Outback Steakhouse
(“Outback”) with Brown. Tr. 249, 350. On January 10, 2016, Brown was working
at Outback, and Jarrod, who had the day off from work, was at home. Ex. 33A. Tr.
331, 342. Through text messages and phone calls, Jarrod and Brown were in contact
with each other throughout the day. Ex. 33A. Tr. 331, 469. While the text messages
did not mention any controlled substances by name, these texts contained several
references to “white stuff,” “points,” and “injections.” Ex. 33A. Tr. 489, 491-492,
496. At trial, Officer Fred Smith testified that these terms referenced cocaine and
heroin. Tr. 489, 491-492. The text messages indicate that Brown coordinated a
transaction with Jarrod in the afternoon and later arranged a meeting with Jarrod
late in the evening near Outback. Ex. 33A. Michael later testified at trial that he
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saw Jarrod leaving the house at around 10:30 P.M. as he (Michael) was going
upstairs to bed. Tr. 334. Michael further testified that this was the last time that he
saw Jarrod alive. Tr. 335.
{¶3} On January 11, 2016, Michael was preparing to go to work and saw
that the light was on in Jarrod’s room. Tr. 336. Michael entered the room to turn
the light off and saw Jarrod “slouched over” on the floor. Tr. 336. Michael called
911 after he determined that Jarrod was unresponsive. Tr. 336. The paramedics
arrived shortly thereafter and pronounced Jarrod dead at 7:43 A.M. Tr. 313. The
police investigating the scene discovered a hypodermic needle next to Jarrod and
several other implements that are often associated with the administration of heroin.
Tr. 385-386, 388-389. The police also found a folded piece of paper that contained
roughly one-tenth of a gram of a powdery substance. Tr. 392, 573. Ex. 16, 17. This
powdery substance was later tested and was found to contain a mixture of fentanyl
and heroin. Tr. 575. Ex. 34, 36. An autopsy was performed on Jarrod, which
determined that Jarrod died of a lethal dose of fentanyl. Tr. 510. Ex. 35.
{¶4} Jarrod’s phone was on his bed when Michael entered Jarrod’s room
on the morning of January 11, 2016. Tr. 341. Ex. 5, 18, 19, 33A. During their
investigation, the police discovered the text messages between Jarrod and Brown.
Tr. 456-457. Brown was listed as “Naythan Brown” in Jarrod’s contact list. Tr.
478. Ex. 33A. The police then questioned Brown. Tr. 468. During this interview,
Brown admitted that he texted with Jarrod on January 10, 2016. Tr. 468-469. On
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December 13, 2016, Brown was charged with one count of corrupting another with
drugs in violation of R.C. 2925.02(A)(3) and one count of involuntary manslaughter
in violation of R.C. 2903.04(A). Doc. 1.
{¶5} The trial commenced on March 29, 2017. Doc. 104. The State called
Jarrod’s mother and sister as witnesses to identify a picture of Jarrod and discuss his
history of substance abuse. Tr. 230, 262. Defense counsel did not cross examine
either of these witnesses. Tr. 251, 273. The Defense challenged the admission of
the text messages between Brown and Jarrod, arguing that the State could not
authenticate the communications. Tr. 277, 296. The trial court, however,
determined that the messages had been properly authenticated and admitted this
evidence. Tr. 306, 472-473. The State then questioned Detective Fred Smith about
the content of the text messages and the process by which the police obtained these
communications. Tr. 456, 489. Detective Rodney Smith testified about the
parameters that were established for the search of the phone. Tr. 442. The police
downloaded the text messages, contact files, and phone logs from Jarrod’s phone,
but did not retain all of the contents of the phone. Tr. 442-444.
{¶6} The jury found Brown guilty of both criminal counts on March 29,
2017. Doc. 53, 54. The trial court entered its sentencing order on June 12, 2017.
Doc. 66. Brown filed his notice of appeal on July 5, 2017. Doc. 90. In this appeal,
he raises the following assignments of error:
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First Assignment of Error
The trial court erred when it denied Mr. Brown’s motion for
judgment of acquittal pursuant to Crim.R. 29(A). The State of
Ohio failed to introduce sufficient evidence to sustain the
convictions in this case.
Second Assignment of Error
The convictions are against the manifest weight of the evidence.
Third Assignment of Error
Mr. Brown’s right to due process, as guaranteed by the Fifth
Amendment to the Constitution of the United States of America
and made applicable to the states by and through the Fourteenth
Amendment to the Constitution of the United States of America,
was violated when the State failed to preserve Mr. Jarrod
Barger’s cellular telephone.
Fourth Assignment of Error
Mr. Brown was denied his fundamental right to effective
assistance of counsel as guaranteed by the Sixth Amendment to
the Constitution of the United States of America and made
applicable to the states by and through the Fourteenth
Amendment to the Constitution of the United States of America.
For the sake of analytical clarity, we will consider appellant’s second assignment of
error first. We will then consider his first, third, and fourth assignments of error.
Second Assignment of Error
{¶7} In the second assignment of error, appellant argues that his
convictions are against the manifest weight of the evidence. First, appellant argues
that the State did not establish that Brown furnished Jarrod with fentanyl. Second,
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appellant argues that any evidence that the State did provide suggesting that Brown
provided Jarrod with fentanyl was contradicted by other evidence.
Legal Standard
{¶8} When “deciding whether a conviction is against the manifest weight
of the evidence, an appellate court determines whether the state has appropriately
carried its burden of persuasion.” State v. Blanton, 121 Ohio App. 3d 162, 169, 699
N.E.2d 136 (3d Dist.1997). “Unlike our review of the sufficiency of the evidence,
an appellate court’s function when reviewing the weight of the evidence is to
determine whether the greater amount of credible evidence supports the verdict.”
State v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). “In a manifest weight
analysis, ‘the appellate court sits as a ‘thirteenth juror’ * * *.’” State v. Davis, 3d
Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State v. Thompkins, 78
Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997).
On appeal, courts “must review the entire record, weigh the
evidence and all of the reasonable inferences, consider the
credibility of witnesses, and determine whether in resolving
conflicts in the evidence, the factfinder ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’”
Brentlinger, supra, at ¶ 36, quoting Thompkins at 387.
{¶9} “A reviewing court must, however, allow the trier of fact appropriate
discretion on matters relating to the weight of the evidence and the credibility of the
witnesses.” State v. Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 38,
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quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “Only
in exceptional cases, where the evidence ‘weighs heavily against the conviction,’
should an appellate court overturn the trial court's judgment.” State v. Little, 2016-
Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131 Ohio St. 3d
67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶10} In this case, Brown was convicted of corrupting another with drugs in
violation of R.C. 2925.02(A)(3). Thus, the State had to establish that Brown (1)
knowingly (2) by any means, furnished to another (3) a controlled substance (4) and
thereby caused serious physical harm to that person. R.C. 2925.02(A)(3). “A
person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain
nature.” R.C. 2901.22(B). A controlled substance is “a drug, compound, mixture,
preparation, or substance included in schedule I, II, III, IV, or V.” R.C. 3719.01(C).
See R.C. 2925.01(A), R.C. 3719.41. The offense of corrupting another with drugs
is a felony of the second degree. R.C. 2925.02(C)(1)(a).
{¶11} For a conviction of involuntary manslaughter, under R.C. 2903.04(A),
the State had to establish that Brown (1) caused the death of another (2) as a
proximate result (3) of the offender’s committing a felony. R.C. 2903.04(A). The
“criminal intent of involuntary manslaughter is supplied by the criminal intent to do
the underlying unlawful act of which the homicide is a consequence.” State v.
Potee, 2017-Ohio-2926, --- N.E.3d ---, ¶ 32 (12th Dist.). State v. Mansfield, 2016-
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Ohio-8189, 69 N.E.3d 767, ¶ 18 (2d Dist.); State v. Grube, 2013-Ohio-692, 987
N.E.2d 287, ¶ 39 (4th Dist.); State v. Lutman, 6th Dist. Lucas No. L-97-1447, 1999
WL 435196, *6 (June 30, 1999); State v. Losey, 23 Ohio App. 3d 93, 491 N.E.2d
379 (10th Dist.1985). Under R.C. 2903.04, the
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. Here, that
means that death reasonably could be anticipated by an
ordinarily prudent person as likely to result under these or
similar circumstances.
(Citations omitted.) State v. Shoemaker, 3d Dist. Union No. 14-06-12, 2006-Ohio-
5159, ¶ 65 (holding the victim’s “death, resulting from a morphine overdose, could
have reasonably been anticipated by an ordinarily prudent person as likely to result
from Shoemaker’s trafficking in morphine.”), quoting Losey at 94-95.
Legal Analysis
{¶12} At trial, Jarrod’s brother testified that he discovered Jarrod on the
morning of January 11, 2016. Tr. 357-358. Shortly thereafter, when the police
arrived at Jarrod’s house on January 11, 2016, the police observed Jarrod on his
back, lying next to his bed in his room. Tr. 358, 386-387. Jarrod had a hypodermic
needle next to his body. Tr. 339, 385-386. On the dresser, the police found a Q-tip,
syringe caps, a lighter, and a spoon with drug residue on it. Tr. 388-389. Ex. 11,
12. Deputy Thomas L. Miller (“Deputy Miller”) of the Hancock County Sheriff’s
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Office testified that these were items frequently used in the administration of heroin.
Tr. 388-392.
{¶13} Miller discovered a piece of brown paper on the dresser that contained
a brown, powdery substance. Tr. 391-392. Kelsey Degen (“Degen”), a forensic
scientist at the Ohio Bureau of Criminal Investigations, tested this substance on
March 31, 2016. Tr. 563. Degen testified that this substance weighed one tenth of
a gram and was composed of heroin and fentanyl. Tr. 573, 575. Ex. 34, 36. Dr.
Mark Fox (“Dr. Fox”), the county coroner, testified that fentanyl is being added to
heroin, which is leading to overdose deaths. Tr. 318. He then testified that he has
also seen overdose deaths after fentanyl was used by itself. Tr. 318. Dr. Fox
identified Jarrod’s death certificate during his testimony, which showed that Jarrod
was pronounced dead at 7:43 A.M. on January 11, 2016. Tr. 313-314. Ex. 34.
{¶14} The police also discovered Suboxone on Jarrod’s dresser. Tr. 390,
396. Ex. 12. Jarrod’s brother and sister testified that Jarrod had been prescribed
Suboxone to help with his heroin addiction. Tr. 265, 329. Dr. Robert Fortney (“Dr.
Fortney”), a toxicologist at the Lucas County Coroner’s Office, testified that
Suboxone contains Buprenorphine and Naloxone. Tr. 552. Neither Buprenorphine
nor Naloxone was listed in the toxicology report as being present in Jarrod’s system.
Ex. 35. Dr. Fortney testified that these drugs would have been detected by the tests
that he performed. Tr. 552. He also testified that Suboxone does not contain
morphine. Tr. 551. The record does not indicate that any other drugs were found
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in Jarrod’s room, though marijuana paraphernalia was discovered “tucked away” in
a plastic container on the other side of Jarrod’s bed. Tr. 383, 396-397.
{¶15} During their investigation, the police discovered Jarrod’s phone on his
bed. Tr. 242, 267, 384-385. At trial, the phone was identified by his mother, sister,
brother, and Deputy Tom Miller of the Hancock County Sheriff’s Office. Tr. 244,
267, 344, 385. Michael testified that he had seen his brother texting from this phone
throughout the day on January 10, 2016. Tr. 332. After examining the contents of
the phone, the police discovered that Jarrod had been in contact with a person listed
as “Naythan Brown” in Jarrod’s phone’s contact list. Tr. 246-247, 332, 478.
{¶16} Officer Fred Smith testified that he then interviewed Brown, who
admitted that he had spoken with Jarrod on the night of January 10, 2016 and had
texted with him that day. Tr. 468. Brown was also able to recite the first few digits
of Jarrod’s phone number. Tr. 469. At trial, the text messages were identified by
Officer Fred Smith. Tr. 475-476.
Time Type From To Duration of Call/Content of Text
12:40 Text Brown Jarrod My bad I crashed
P.M.
12:48 Text Jarrod Brown It’s all good brotha
P.M.
12:48 Text Brown Jarrod Been at work since 11 just got my phone on
P.M. trying to make a run when I get on break soon
12:52 Text Jarrod Brown Well where u gettin it from
P.M.
12:53 Text Brown Jarrod Dude from yesterday unless drizzy has ima try
P.M. him
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12:55 Text Jarrod Brown Ok well as long as it’s good s--- I’m diwn
P.M.
12:56 Text Brown Jarrod Either ones dank lol
P.M.
12:56 Text Brown Jarrod Ima have to hurry tho whenever I get break
P.M. what u thinking?
12:56 Text Jarrod Brown Well yeah but that same dude had diff stuff 2
P.M. days n a row
12:58 Text Jarrod Brown I’ll take 80 my n--
P.M.
12:58 Text Brown Jarrod I think the first was cuz its all be had left and
P.M. alright soon as I hit break I’ll b with ya
12:59 Text Jarrod Brown Ok. And I don’t have the cash all I got is my
P.M. card. Is that cool bro?
1:04 Text Brown Jarrod Idk when I’m getting break I’m not gunna ask
P.M. u to ride n snow to get it I’ll make Ben take me
1:06 Text Jarrod Brown I was gonna say in will if I absolutely need to
P.M.
1:07 Text Jarrod Brown But I’d really appreciate that
P.M.
1:08 Text Brown Jarrod That’s up to u I’m tryna find when I get break
P.M. now…drizzy good
1:11 Text Jarrod Brown Well if you would do it for me I’d rather do that
P.M. bit like if I’m forced to go then I will. And f---
yeah! About time
1:11 Text Jarrod Brown Do you have any cigs?
P.M.
1:13 Text Brown Jarrod Nooe
P.M.
1:13 Text Jarrod Brown Well if u buy me a pack I’ll buy u a pack too
P.M.
1:17 Text Brown Jarrod Say what
P.M.
1:18 Text Jarrod Brown If u buy me a pack with my card I’ll also buy u
P.M. a pack
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1:22 Text Brown Jarrod Ooo I gotcha now…yeah I can do that brotha
P.M.
1:27 Text Jarrod Brown Ight well shell doesn’t carry my brand of cigs.
P.M. Do you know where u gotta meet drizz? The
econo?
1:28 Text Jarrod Brown Cause I want camel Turkish Royals but I’ll
P.M. settle for L&Ms Turkish blends if I have to
1:29 Text Brown Jarrod I’m not sure where he is yrt
P.M.
1:30 Text Jarrod Brown Ok well I guess depending on where he’s at, try
P.M. n stop by something along the way. If shells
the only place on the way then so be it
1:37 Text Brown Jarrod Heard that i m getting notice when I go to break
P.M. I’ll let you know asap
1:39 Text Jarrod Brown Ight brotha sounds good
P.M.
2:04 Text Brown Jarrod Break now u home
P.M.
2:04 Text Jarrod Brown Yeasir
P.M.
2:07 Call Brown Jarrod 1 Minute, 13 Seconds
P.M.
2:32 Text Jarrod Brown What’s up bra
P.M.
2:36 Call Brown Jarrod 1 Minute, 13 Seconds
P.M.
2:39 Text Brown Jarrod That was fat an no cut at all I’m kinda testing
P.M. Ben to see if he f---- around it was all tucked n
the cigg
2:40 Text Jarrod Brown Ok he should be here soon if he not f----- with
P.M. it
2:40 Text Brown Jarrod Exactly
P.M.
3:44 Text Brown Jarrod I think I almost like the white stuff better
P.M.
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3:54 Text Jarrod Brown Really? I’m not sure how I feel about it yet.
P.M. But ingot digis last night and I’m prolly gonna
weigh this n see what’s up $
4:00 Text Brown Jarrod Yeah I had to bust mine out to splt it down
P.M.
4:11 Text Jarrod Brown Yeah it just seemed a lil small than normal. I
P.M. could be wrong tho so that’s why imma weigh
it
5:48 Text Brown Jarrod That s--- said .39 when it left my hands…so u
P.M. did some then weighed it or what?
6:04 Text Brown Jarrod He swears he didn’t touch it
P.M.
6:07 Text Jarrod Brown Yeah bro. Bit im tellingy you it was only a point
P.M. point and a half that I did first
6:08 Text Jarrod Brown Anymore and I’d be on the floor unconsious
P.M.
6:09 Text Brown Jarrod So the tooth fairy came in and nabbed it up huh
P.M.
6:09 Text Brown Jarrod So what was it total then with what u did and
P.M. what was left cuz I said something to him and
he got all defensive….how long did it take for
him to get to u
6:11 Text Jarrod Brown Prolly .23 total and it took him like 5 mins.
P.M.
6:14 Text Brown Jarrod Hmmmm…how was it packaged
P.M.
6:14 Text Jarrod Brown It seemed like it took him a lil longer than usual.
P.M. And normally I can get like 4 to 5 shots out it
but now I’m lucky I’m gonna get 4
6:14 Text Brown Jarrod Sry I’m trying to figure this out man I’m rather
P.M. pissed
6:15 Text Jarrod Brown Lucky in gonna get 3**** sorry a little f----- up
P.M. can’t rype
6:17 Text Jarrod Brown It was in a black paper wrapped in my receipt
P.M. in my cig cellophane under my debit csr!%
6:18 Text Brown Jarrod Gunna get what? Ok well hmmn wtf
P.M.
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6:22 Text Jarrod Brown I’m lucky I’m gonna get 3 shots out of the thing
P.M.
7:34 Text Brown Jarrod O I hear ya buddy I’m sorry seriously I’m
P.M. ripping him a new a--
Ex. 33A.
{¶17} After the prosecution introduced this segment of the text messages,
Detective Fred Smith testified that he believed “white stuff” referred to cocaine and
that “points” refers to a quantity of drugs. Tr. 489, 491-492. In his experience,
“points” was generally used as the measure of heroin as this is the drug that is sold
in an amount that small. Tr. 491. He then testified that the number of shots
referenced by Jarrod referred to the “usage dose that he’s going to use as far as an
injection * * *.” Tr. 493.
{¶18} He also testified that the “80” in this series of text messages referred
to a sum of cash. Tr. 483. Jarrod’s mother testified at trial that she knew about
Jarrod’s drug addiction. To help him, she would monitor his bank account and
would watch for withdrawals of forty or eighty dollars because these were the
amounts that he would withdraw if he wanted to purchase drugs. Tr. 249-250.
Further, Detective Fred Smith testified that the Econo Lodge was a location in
Findlay that was known for drug trafficking. Tr. 488. The rest of the text messages
read as follows:
7:35 Text Jarrod Brown If worse comes to worse can u get me more?
P.M. Today is literally my last f----- day I swear to
god
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8:04 Text Brown Jarrod Whe. Brotha I’m bout off work
P.M.
8:07 Text Jarrod Brown Whenever convenient for you
P.M.
8:15 Text Brown Jarrod I’ll bet with you soon buddy
P.M.
8:25 Text Jarrod Brown Ok sweet
P.M.
8:46 Text Jarrod Brown So what’s up buddy
P.M.
8:50 Text Brown Jarrod Just got off work
P.M.
8:51 Call Brown Jarrod 1 Minute, 13 Seconds
P.M.
8:55 Call Brown Jarrod 0 Minutes, 15 Seconds
P.M.
9:07 Call Brown Jarrod 0 Minutes, 19 Seconds
P.M.
9:18 Text Brown Jarrod We had to stop I f----- ralphed all over
P.M.
*** *** *** *** ***
9:21 Text Brown Jarrod I keep puking all over..I feel bad and I nodded
P.M. out at work my boss pulled me aside like
whats up
9:30 Text Jarrod Brown I kno u told me already bro. When u gonna be
P.M. back
9:35 Text Jarrod Brown ?
P.M.
9:36 Text Brown Jarrod Soon I’m sorry man
P.M.
9:42 Call Jarrod Brown N/A
P.M.
9:42 Text Jarrod Brown How soon?
P.M.
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9:45 Text Brown Jarrod Ten mins
P.M.
9:51 Text Brown Jarrod These scales are f----- up dude
P.M.
*** *** *** *** ***
9:56 Text Brown Jarrod I’m leaving….I watched my buddy weigh up
P.M. the .7 I needed and this is telling me a half g
just f--- it whatecer
*** *** *** *** ***
10:01 Text Jarrod Brown I’ll b outside. Where is u
P.M.
10:04 Call Jarrod Brown 1 Minute, 15 Seconds
P.M.
10:07 Call Jarrod Brown 0 Minutes, 29 Seconds
P.M.
10:08 Text Jarrod Brown Txt me when ur by outback
P.M.
10:18 Text Jarrod Brown ???
P.M.
10:21 Text Brown Jarrod On way dude I’m.so f------ pissed off
P.M.
10:21 Call Jarrod Brown 0 Minutes, 41 Seconds
P.M.
10:32 Text Brown Jarrod Passing g outbsck
P.M.
10:33 Text Jarrod Brown Ok cook I’ll b down at the spot
P.M.
10:33 Call Jarrod Brown 0 Minutes, 21 Seconds
P.M.
10:48 Text Brown Jarrod I’m sry brotha…I’m so stressed out trying to
P.M. make sure i take care of everyone and not f---
anyone over and end up dicking myself..think
im just too high
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10:53 Text Brown Jarrod I keep saying sorry to everyone and Ben ran
P.M. out of gas..just fell like a f----- dumba--
Ex. 33A. As this segment of the text messages was introduced at trial, Detective
Fred Smith testified that “a G is what they refer to for a gram.” Tr. 496.
{¶19} Michael testified at trial that he was home “all day.” Tr. 332. He also
testified that his house, where he and Jarrod lived at the time of Jarrod’s death, was
in close proximity to Outback. Tr. 324. He also testified that Jarrod did not have a
driver’s license and was “hanging out at the house” during the day on January 10,
2016. Tr. 332. He testified that Jarrod would occasionally step outside into the
garage to smoke a cigarette because the terms of their lease prohibited smoking
inside the house. Tr. 333. He also said that Jarrod “had his cell phone on him at all
times. * * * [W]hen I would see him out in the garage texting he would just be
smoking a cigarette or texting.” Tr. 332-333. Michael then testified that he did not
see anyone else come inside his house on January 10, 2016. Tr. 342. Michael
testified that Jarrod left the house around “10:30-ish” P.M.1 Tr. 334. Michael
observed Jarrod “putting on his shoes, he had his coat on, he was putting on his
shoes about to exit the garage door to go inside the garage and that was the last time
I saw him.” Tr. 334.
1
On January 11, 2016, Michael told the police that he believed he went to bed at 11:00 P.M. on the night of
January 10, 2016. Tr. 347. At trial, Michael stated that he usually went to bed in between 10:00 and 10:30
P.M. Tr. 334. He testified that he saw Jarrod after he (Michael) got up to get a glass of water. Tr. 334. He
also testified that he was unsure as to what time he went to bed on the night of January 10, 2016. Tr. 334.
Since he usually went to bed around 10:00 P.M., he thought that he saw Jarrod leaving the house at around
10:30 P.M. Tr. 334.
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{¶20} Later at trial, Dr. Fortney testified that Jarrod had cocaine, morphine,
and fentanyl in his system at the time of his death. Tr. 535-536, 537, 540. Ex. 35.
However, the cocaine was not in Jarrod’s blood, indicating to Dr. Fortney that Jarrod
used cocaine at some point on the day of his death; that he was not under the
influence of cocaine at the time of his death; and that “[t]he cocaine was not used
near the time of his death.” Tr. 540. Further, the level of morphine in Jarrod’s
system was relatively low and was not the cause of death. Tr. 537. The morphine
that was present in Jarrod’s system was consistent with heroin use and indicated that
Jarrod had used either heroin or morphine within several hours of his death. Tr.
537-538. Ex. 35. However, Dr. Fortney could not, based upon the results of these
tests, conclude with medical certainty whether Jarrod had taken heroin or morphine.
Tr. 538.
{¶21} The toxicology report indicated that Jarrod had eighteen nanograms
of fentanyl per milliliter of his blood. Tr. 519, 547-548. At trial, Dr. Fortney
testified that a level of five nanograms of fentanyl per milliliter of blood was fatal
and that therapeutic range of fentanyl use was between one or two nanograms of
fentanyl per milliliter of blood. Tr. 547-548. Based on the results in this report, he
determined that the cause of death was the fentanyl, stating that “but for the fentanyl
there would be no death.” Tr. 550. Dr. Fortney further testified that “the cause of
death is respiratory depression but what caused the respiratory depression [was] the
fentanyl.” Tr. 547. Dr. Fortney could not pinpoint the exact time of death, but he
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was able to conclude that death occurred shortly after Jarrod introduced the fentanyl
into his system. Tr. 549. He also testified that fentanyl is a Schedule II drug under
Ohio law. Tr. 543.
{¶22} Following our decision in State v. Kramer, 3d Dist. Defiance No. 4-
15-14, 2016-Ohio-2984, we conclude that neither of Brown’s convictions are
against the manifest weight of the evidence. We find that competent, credible
evidence exists as to all elements of each indicted charge. We do not find evidence
in the record that indicates the jurors lost their way and made a decision that
constitutes a manifest miscarriage of justice. The facts of this case do not present
one of the exceptional circumstances in which a reversal of the jury’s verdict is
warranted. Kramer at ¶ 56, citing State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-
Ohio-5233, ¶ 9. For these reasons, appellant’s second assignment of error is
overruled.
First Assignment of Error
{¶23} In the first assignment of error, appellant asserts that the trial court
erred by denying his Crim.R. 29 motion, arguing his convictions were based on
insufficient evidence. First, appellant claims that the State failed to establish that
Brown knowingly furnished Jarrod with fentanyl or that Brown knowingly caused
physical harm to Jarrod. Second, appellant argues that his conviction for
involuntary manslaughter should be reversed since the predicate crime—his
conviction for corrupting another with drugs—was based on insufficient evidence.
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In addressing appellant’s second assignment of error, we determined that the State
presented evidence that substantiates each element of Brown’s convictions. Rather
than repeat this evidence, we will reincorporate these previous evidentiary findings
and will then address the arguments that are particular to appellant’s first assignment
of error.
Legal Standard
{¶24} Crim.R. 29 reads, in its relevant part, as follows:
(A) Motion for Judgment of Acquittal. The court on motion of a
defendant or on its own motion, after the evidence on either side
is closed, shall order the entry of a judgment of acquittal of one or
more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of
such offense or offenses.
Crim.R. 29(A). “An appellate court reviews a denial of a Crim.R. 29 motion for
judgment of acquittal using the same standard that is used to review a sufficiency of
the evidence claim. Sullivan at ¶ 11, quoting State v. Carter, 72 Ohio St. 3d 545,
553, 651 N.E.2d 965 (1995).
{¶25} “A challenge to the sufficiency of the evidence supporting a
conviction requires a court to determine whether the state has met its burden of
production at trial.” State v. Brentlinger, 2017-Ohio-2588, --- N.E.3d ---, ¶ 21 (3d
Dist.), quoting In re Swift, 8th Dist. Cuyahoga No. 79610, 2002 WL 451226, 3
(March 21, 2002). “The sufficiency of the evidence analysis addresses the question
of whether adequate evidence was produced for the case to be considered by the
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trier of fact and, thus, whether the evidence was “legally sufficient to support the
verdict * * *.” State v. Campbell, 3d Dist. Allen No. 1-17-23, 2017-Ohio-9251, ¶
13, quoting State v. Worthington, 3d Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶
12.
{¶26} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Pierce, 3d Dist.
Seneca No. 13-16-36, 2017-Ohio-4223, ¶ 6, quoting State v. Jenks, 61 Ohio St. 3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds, State v. Smith, 80 Ohio St. 3d 89, 684
N.E.2d 668 (1997), fn. 4.
{¶27} “This analysis does not attempt to ‘resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.’” Davis, supra, at ¶ 13, quoting State v. Eckard, 3d Dist. Marion No. 9-15-45,
2016-Ohio-5174, ¶ 9. Thus, sufficiency of the evidence is a question of law and a
“test of adequacy rather than credibility or weight of the evidence.” State v. Berry,
3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. The standard for sufficiency
of the evidence
is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that
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the essential elements of the crime were proven beyond a
reasonable doubt.
Plott, supra, at ¶ 62.
Corrupting Another with Drugs Legal Analysis
{¶28} We begin this analysis by reincorporating the evidence discussed
under the first assignment of error. In this case, appellant argues that the State failed
to prove that he “knowingly furnished Fentanyl to [Jarrod].” (Emphasis added.)
Appellant’s Brief, 11. Under R.C. 2925.02(A)(3), however, the statute only requires
that the State establish that Brown “knowingly * * * furnished” Jarrod with a
“controlled substance.” (Emphasis added.) R.C. 2925.02(A)(3). Thus, the State
did not have to prove that Brown knew he was furnishing Jarrod with a controlled
substance that contained fentanyl. State v. Edmonds, 8th Dist. Cuyahoga No.
104528, 2017-Ohio-745, ¶ 39, 43; (holding that the evidence was sufficient where
“the evidence demonstrated that [the defendant] sold [the victim] the drugs that
caused his death.”); State v. Wells, 12th Dist. Warren No. CA2016-02-009, 2017-
Ohio-420, ¶ 39. See State v. Ward, 3d Dist. Crawford No. 13-17-02, 2017-Ohio-
8518, ¶ 15, (holding that the State had to establish that the defendant knowingly sold
a controlled substance in order to be convicted under R.C. 2925.03(A)(1) and did
not have to prove that the defendant “had actual knowledge that the heroin he sold
contained fentanyl.”), citing State v. Patterson, 69 Ohio St. 2d 445, 447, 432 N.E.2d
802 (1982), overruled in part on other grounds. State v. Veley, 6th Dist. Lucas No.
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L-16-1038, 2017-Ohio-9064, ¶ 26 (holding “[i]t is also immaterial that it was not
proven (though it was suggested) that appellant added the fentanyl to the heroin.”);
Potee, supra, at ¶ 30 (holding the sufficiency analysis for convictions under R.C.
2925.02(A)(3) and R.C. 2925.03(A)(1) “does not contemplate whether appellant
knew the type and amount of the [controlled] substance.”). Based on applicable
case law, we find that this particular argument is without merit.
{¶29} The appellant also argues that the State did not establish that “Brown
knowingly caused serious physical harm.” Appellant’s Brief, 16. If Brown had
been charged under R.C. 2925.02(A)(2), this argument might have merit. R.C.
2925.02(A)(2) reads, in its relevant part, as follows: “[n]o person shall knowingly *
* * furnish to another * * * a controlled substance with purpose to cause serious
physical harm to the other person.” (Emphasis added.) R.C. 2925.02(A)(2).
However, R.C. 2925.02(A)(3), which is the statute under which Brown was charged,
reads, in its relevant part, as follows: [n]o person shall knowingly * * * furnish to
another * * * a controlled substance, and thereby cause serious physical harm.”
(Emphasis added.) R.C. 2925.02(A)(3). Thus, for convictions under R.C.
2925.02(A)(3), the State does not need to prove that the defendant knowingly
intended to cause serious physical harm. Rather, the State must prove that the
defendant knowingly furnished another with drugs and that serious physical harm
resulted from this intentional act. See State v. Rutherford, Darby, Jones, 9th Dist.
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Summit Nos. 9521, 9522, and 9523, 1981 WL 3883, *10 (February 25, 1981). For
this reason, this argument is without merit.
Involuntary Manslaughter
{¶30} In this case, Brown’s conviction for corrupting another with drugs is
the predicate offense for his conviction of involuntary manslaughter. In this
assignment of error, appellant challenged his involuntary manslaughter conviction
on the grounds that its predicate conviction was not supported by sufficient
evidence. Since we have found that Brown’s arguments against his conviction for
corrupting another with drugs are without merit, his conviction for involuntary
manslaughter has a properly supported predicate conviction and withstands the
sufficiency of the evidence analysis. After reviewing the record in a light most
favorable to the prosecution, we find that Brown’s convictions were based upon
sufficient evidence. For this reason, his first assignment of error is overruled.
Third Assignment of Error
{¶31} In his third assignment of error, appellant challenges the decision of
the police to not download all of the data on Jarrod’s cell phone as part of their
investigation. In so doing, appellant claims that the police failed to preserve
material exculpatory evidence in violation of Brown’s due process rights.
Alternatively, appellant asserts that the police, in failing to download all of the
contents of Jarrod’s phone, failed to preserve potentially useful evidence.
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Legal Standard
{¶32} The State has a duty to preserve and disclose material evidence that is
favorable to the Defense. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963). See Crim.R. 16(A).
However, the state has no duty to gather such exculpatory
evidence. Rather, when the state has failed to gather exculpatory
evidence or to fully investigate the allegations, the defendant may
either investigate the charge and collect the evidence himself, if
such evidence is available, or he may point out the deficiencies in
the state’s investigation at trial.
(Citations omitted.) State v. Farris, 2d Dist. Clark No. Civ.A.2003 CA 77, 2004-
Ohio-5980, ¶ 20. The State’s failure to preserve evidence constitutes a due process
violation in two main situations. State v. Cahill, 3d Dist. Shelby No. 17-01-19,
2002-Ohio-4459, ¶ 13.
{¶33} First, a due process violation exists where the State fails to preserve
material exculpatory evidence. State v. Geeslin, 116 Ohio St. 3d 252, 2007-Ohio-
5239, 878 N.E.2d 1, ¶ 7, citing State v. Johnston, 39 Ohio St. 3d 48, 529 N.E.2d 898
(1988).
Evidence is constitutionally material when it possesses ‘an
exculpatory value that was apparent before the evidence was
destroyed, and [is] of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.’
State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74,
quoting California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413
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(1984). The appellant need not establish that the State acted with bad faith in its
failure to preserve material exculpatory evidence. State v. Parsons, 2017-Ohio-
1315, 88 N.E.3d 624, ¶ 79, citing Trombetta at 489. “The defendant bears the
burden to show that the evidence was materially exculpatory.” Powell at ¶ 74.
{¶34} Second, a due process violation exists where the State fails to preserve
potentially useful evidence in bad faith. Powell at ¶ 77, citing Arizona v.
Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). “[P]otentially
useful evidence is evidence that if subjected to tests, the results of which, might
have exonerated the defendant.” Parsons at ¶ 80, quoting State v. Frasure, 11th
Dist. Ashtabula No. 2007-A-0033, 2008-Ohio-1504, ¶ 6. However, “unless a
criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law.”
Powell at ¶ 76. “Bad faith implies more than bad judgment or negligence, rather
‘[i]t imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of
a known duty through some ulterior motive or ill will partaking of the nature of
fraud.’” Parsons at ¶ 80, quoting Powell at ¶ 81.
Material Exculpatory Evidence Analysis
{¶35} On March 28, 2017, the State submitted an additional discovery
disclosure. Doc. 51. This document had a phone examination report that showed
that the State had downloaded all of the text messages, contacts, notes, multimedia
messages, images, and phone logs that were on Jarrod’s phone. Doc. 51. This report
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Case No. 5-17-19
also showed that Jarrod’s e-mail communications and web browsing history were
not downloaded as part of the police investigation. Doc. 51. At trial, only a small
subset of this data—the text messages, phone logs, and contact information from
January 10-11, 2016—was admitted into evidence. Ex. 33A.
{¶36} On appeal, appellant argues that the phone was material to guilt and
that all of the cell phone’s content should have been preserved. However, appellant
does not demonstrate how the web browsing history and e-mail communications
had an apparent exculpatory value at the time of this download. The fact that some
of the contents of the phone—the text messages, phone logs, and contact lists—
were material to guilt or punishment does not establish that all of the contents of the
phone were material to guilt or punishment. Moreover, appellant has failed to
establish that the contents that were not downloaded were exculpatory.
{¶37} Since appellant has not demonstrated on appeal how the web
browsing history and e-mail communications had an apparent value as material
exculpatory evidence, the assertion that the web browsing history and e-mail
communications on Jarrod’s cell phone were material exculpatory evidence is
speculative. State v. Brown, 2017-Ohio-8416, --- N.E.3d ---, ¶ 53 (2d Dist.) (holding
“it is wholly speculative to assume that the part of the tapes not copied by the police
showed any potentially exculpatory evidence.”). Thus, appellant has not carried the
burden of establishing that the State failed to preserve material exculpatory evidence
and, therefore, has not established that a due process violation occurred.
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Potentially Useful Evidence Analysis
{¶38} At trial, Detective Rodney Smith testified as to the parameters of the
police investigation into Jarrod’s cell phone. Tr. 443, 445-446. The police stayed
within these parameters and downloaded the information from the cell phone that
was determined to be within scope of this investigation. Tr. 457-458. Doc. 51. The
State then returned the cell phone to Jarrod’s family. Tr. 457-458. On appeal,
appellant fails to identify facts in the record that show the State acted in bad faith
during this process. Rather, appellant merely asserts that the State acted in bad faith.
Thus, appellant has failed to carry the burden of establishing that the State acted in
bad faith and of establishing that a due process violation occurred. For these
reasons, appellant’s third assignment of error is overruled.
Fourth Assignment of Error
{¶39} In his fourth assignment of error, appellant argues that his trial counsel
committed two errors that denied him his right to the effective assistance of counsel.
First, appellant argues that Brown’s trial counsel failed to file a motion that would
preserve all of the contents of Jarrod’s phone; failed to request access to Jarrod’s
phone; and failed to file a motion to dismiss after discovering the police did not
preserve all of the contents of Jarrod’s phone. Second, appellant argues that his trial
counsel failed to cross examine several of the State’s witnesses and failed to use
cross examination to present an alternate theory of this case.
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Case No. 5-17-19
Legal Standard
{¶40} “In Strickland v. Washington, the Supreme Court of the United States
established a two-prong test for determining whether a criminal defendant was
denied the effective assistance of counsel.” Davis, supra, at ¶ 35, citing Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984). Under the first prong of the Strickland test,
the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.
State v. Calhoun, 86 Ohio St. 3d 279, 289, 714 N.E.3d 905 (1999), quoting
Strickland at 687. “In order to show deficient performance, the defendant must
prove that counsel’s performance fell below an objective level of reasonable
representation.” State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 848
N.E.2d 810, ¶ 95. “Debatable strategic and tactical decisions may not form the basis
of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a
better strategy had been available.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d
775, ¶ 56, citing State v. Cook, 65 Ohio St. 3d 516, 524, 605 N.E.2d 70 (1992). “A
reviewing court may not second-guess decisions of counsel which can be considered
matters of trial strategy.” Conley at ¶ 56, citing State v. Smith, 17 Ohio St. 3d 98,
477 N.E.2d 1128 (1985).
{¶41} To satisfy the second prong of the Strickland test,
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the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Calhoun at 289, quoting Strickland at 687. “To show prejudice, the defendant must
show a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.” State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d
343, ¶ 13 (3d Dist.), quoting Conway at ¶ 95. Appellate courts examine the record
to determine “whether the accused, under all the circumstances, * * * had a fair trial
and substantial justice was done.” State v. Rodriquez, 3d Dist. Defiance No. 4-16-
16, 2017-Ohio-1318, ¶ 9, quoting State v. Hester, 45 Ohio St. 2d 71, 341 N.E.2d 304
(1976), paragraph four of the syllabus.
{¶42} “Under Ohio law, ‘a properly licensed attorney is presumed to carry
out his duties in a competent manner.’” State v. Howton, 3d Dist. Allen No. 1-16-
35, 2017-Ohio-4349, ¶ 34, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993
WL 270995 (July 22, 1993). For this reason, the petitioner has the burden of proving
that counsel was ineffective at trial. Id. “The failure to prove either 1) a substantial
violation or 2) prejudice caused by the violation makes it unnecessary for a court to
consider the other prong of the test.” Walker at ¶ 20, citing State v. Anaya, 191 Ohio
App.3d 602, 2010-Ohio-6045, 947 N.E.2d 212, ¶ 25.
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Case No. 5-17-19
Legal Analysis
{¶43} We will first address the argument that the decision of trial counsel
not to address the preservation of all of the contents of Jarrod’s cell phone. In this
case, the Defense’s trial strategy was to challenge the admission of the text
messages, raising an authentication issue at trial. Tr. 277, 290, 296, 306, 472-473,
582-583. Doc. 47. The decision not to file a motion to preserve evidence is a matter
of trial strategy. State v. Lupardus, 4th Dist. Washington No. 08CA31, 2008-Ohio-
5960, ¶ 26-28. Further, under the third assignment of error, appellant failed to
demonstrate (1) that the contents of Jarrod’s phone that the State did not preserve
constituted material exculpatory evidence or (2) that the State acted in bad faith in
not preserving this potentially useful evidence. Id. at ¶ 29. Thus, the appellant
cannot demonstrate how the outcome of the trial would have been different had his
trial counsel chosen a different strategy.
{¶44} We now turn to the trial counsel’s cross examination of the State’s
witnesses. The decision of the trial counsel not to cross examine the mother and
sister of the victim was a tactical decision. “The extent and scope of cross-
examination clearly fall within the ambit of trial strategy, and debatable trial tactics
do not establish ineffective assistance of counsel.” State v. Leonard, 104 Ohio St. 3d
54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 146. Further, appellant has not
demonstrated how the decision of his trial counsel not to cross-examine several of
the State’s witnesses prejudiced him in a manner that deprived him of a fair trial.
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State v. Otte, 74 Ohio St. 3d 555, 565, 660 N.E.2d 711, 721 (1996) (holding “[t]rial
counsel need not cross-examine every witness; indeed, doing so can backfire.”).
State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 216-217.
{¶45} We now consider the allegation that trial counsel failed to present an
alternative theory as to the source of the fentanyl during cross-examination. We
note that appellant does not, on appeal, present what alternative theory should have
been presented by trial counsel. State v. Howard, 8th Dist. Cuyahoga No. 97695,
2012-Ohio-3459, ¶ 28-29. In the absence of evidence substantiating an alternate
theory, appellant has not carried the burden of establishing how the outcome of his
trial could have been different. After examining the record, we find that trial
counsel’s decision fell within what can be considered reasonable trial strategy. State
v. Brown, 38 Ohio St. 3d 305, 319, 528 N.E.2d 523 (1988) (holding “[i]t is also
recognized that a defendant is not deprived of effective assistance of counsel when
counsel chooses, for strategical reasons, not to pursue every possible trial tactic.”).
See State v. Smith, 4th Dist. Ross No. 09CA3128, 2011-Ohio-664, ¶ 30.
{¶46} In each of the alleged deficiencies that he points to on appeal,
appellant has failed to establish that the outcome of his trial would have changed
had his trial counsel acted differently. Thus, the appellant has not carried the burden
of establishing an ineffective assistance of counsel claim. For this reason, the
appellant’s fourth assignment of error is overruled.
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Conclusion
{¶47} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Hancock County Court of Common Pleas
is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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