State v. Thompson

[Cite as State v. Thompson, 2021-Ohio-2979.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-20-35
v.
JERMAIL N. THOMPSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 2019 CR 0115
Judgment Affirmed
Date of Decision: August 30, 2021
APPEARANCES:
Thomas A. Gjostein for Appellant
Nathan R. Heiser for Appellee
Case No. 9-20-35
MILLER, J.
{¶1} Defendant-appellant, Jermail N. Thompson, appeals the September 15,
2020 judgment of sentence of the Marion County Court of Common Pleas. For the
reasons that follow, we affirm.
I. Facts and Procedural History
{¶2} On October 25, 2018, Logan Good was found in his bedroom dead from
an apparent drug overdose. During a search of Good’s bedroom, law enforcement
officers located Good’s wallet. Officers searched the wallet, where they discovered
a baggie containing a “tannish/peach” substance. Good’s cell phone was also
located during the search of his bedroom. Law enforcement officers accessed
Good’s cell phone and examined the text message history. Of particular note was a
series of text messages between Good and Thompson from the early morning hours
of October 25, 2018, in which Good and Thompson appeared to talk about an
exchange of drugs and money. Relying on these text messages, law enforcement
officers obtained a warrant to search Thompson’s residence. During a search of
Thompson’s bedroom, officers located a baggie that, like the baggie found in
Good’s wallet, contained a “tannish/peach” substance. Subsequent testing revealed
the substance found in Good’s wallet and the substance found in Thompson’s
bedroom both contained fentanyl. An autopsy later determined Good died from an
overdose of fentanyl.
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{¶3} On April 4, 2019, the Marion County Grand Jury indicted Thompson
on two counts: Count One of involuntary manslaughter in violation of R.C.
2903.04(A), a first-degree felony, and Count Two of aggravated possession of drugs
in violation of R.C. 2925.11(A), a fifth-degree felony. On April 8, 2019, Thompson
appeared for arraignment and pleaded not guilty to the counts in the indictment.
{¶4} On September 18, 2019, the Marion County Grand Jury issued a three-
count superseding indictment. Counts One and Two of the original indictment were
preserved, and Thompson was additionally charged with Count Three of corrupting
another with drugs in violation of R.C. 2925.02(A)(3), a second-degree felony. On
September 23, 2019, Thompson appeared for arraignment and pleaded not guilty to
the counts in the superseding indictment.
{¶5} A jury trial was held on July 14-17, 2020. On July 17, 2020, the jury
found Thompson guilty as charged in the superseding indictment.
{¶6} Thompson’s sentencing hearing was held on September 14, 2020. At
the hearing, the trial court determined that Count One, involuntary manslaughter,
and Count Two, aggravated possession of drugs, would merge for purposes of
sentencing. The State elected to have the trial court sentence Thompson for the
involuntary-manslaughter offense. It was further determined that Count Three,
corrupting another with drugs, would not merge with the other offenses for purposes
of sentencing. Thereafter, the trial court sentenced Thompson to a term of eight
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years in prison for involuntary manslaughter and a mandatory term of eight years in
prison for corrupting another with drugs. The trial court ordered Thompson to serve
these terms concurrently. The trial court filed its judgment entry of sentence on
September 15, 2020.
{¶7} On October 1, 2020, Thompson timely filed a notice of appeal. He
raises two assignments of error for our review.
II. Assignments of Error
1. The appellant had his rights to due process of law violated
under Article 1, Section 10 of the Ohio Constitution and the Sixth
Amendment of the United States Constitution, in being compelled
to stand trial when trial counsel was rendered ineffective for
failing to file a motion to suppress the search of appellant’s
residence and to suppress or exclude by motion in limine his
statements, as well as, for having the appellant testify given the
State’s complete lack of evidence against him. [Tr. Vol. I. 214].
2. Appellant’s conviction was not supported by the sufficiency
of the evidence in violation of the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution and Article I,
Sections 1 & 16 of the Ohio Constitution and the conviction was
also against the manifest weight of the evidence. [Tr. Overall].
III. Discussion
A. First Assignment of Error: Did Thompson receive ineffective assistance
of counsel?
{¶8} In his first assignment of error, Thompson argues he was denied his
right to the effective assistance of counsel as provided for by the United States
Constitution and by the Ohio Constitution. Thompson contends his trial counsel
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was ineffective in five respects: (1) Thompson’s trial counsel was ineffective for
failing to file a motion to suppress the evidence seized during the search of
Thompson’s home; (2) Thompson’s trial counsel was ineffective for failing to file
a motion to suppress recordings of statements Thompson made to law enforcement
officers during interviews on October 25 and October 29, 2018; (3) Thompson’s
trial counsel was ineffective for failing to file a motion in limine to bar introduction
of these same recordings at trial; (4) Thompson’s trial counsel was ineffective for
calling Thompson and another person, Nicole Cooper, as witnesses; and (5)
Thompson’s trial counsel was ineffective for conceding during closing statements
that Thompson committed the offense of aggravated possession of drugs.
i. Ineffective-Assistance-of-Counsel Standard
{¶9} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
counsel’s performance was deficient or unreasonable under the circumstances; and
(2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d
303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052(1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
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representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the
errors complained of must amount to a substantial violation of counsel’s essential
duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
{¶10} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
ii. Motion to Suppress Evidence Seized Pursuant to the Search Warrant
{¶11} Thompson first argues his trial counsel was ineffective for failing to
file a motion to suppress the evidence seized during the search of his residence.
Thompson maintains the warrant authorizing the search of his home was invalid
because it was based on an affidavit that contained “very thin evidence.”
{¶12} However, we are unable to consider this facet of Thompson’s
ineffective-assistance argument because the supposedly deficient search-warrant
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affidavit is not part of the record on appeal. “A claim of ineffective assistance of
counsel in a direct appeal must be established by the evidence in the record.” State
v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, ¶ 78. “When an
allegation of ineffective assistance of counsel is based upon material that is not part
of the record, the merits of the argument cannot be addressed.” State v. Barnett, 7th
Dist. Jefferson No. 06-JE-23, 2008-Ohio-1546, ¶ 130. Without the search-warrant
affidavit, we are unable to determine whether it set forth sufficient facts to support
a finding of probable cause to search Thompson’s residence. Consequently, we are
unable to determine whether Thompson’s trial counsel performed deficiently by
failing to pursue a meritorious suppression motion, and we must presume regularity
in the proceedings below with respect to the evidence seized from Thompson’s
house. State v. Ash, 7th Dist. Monroe No. 16 MO 0002, 2018-Ohio-1139, ¶ 30-31;
see State v. Davidson, 11th Dist. Portage No. 2005-P-0038, 2006-Ohio-1458, ¶ 31
(declining to consider a claim that trial counsel was ineffective for failing to file
suppression motion based on defects in search-warrant affidavit, where affidavit
was not made part of the record); State v. Castile, 6th Dist. Erie No. E-02-012, 2005-
Ohio-41, ¶ 60 (same).
iii. Motion to Suppress Recordings and Motion in Limine
{¶13} Thompson next argues his trial counsel was ineffective for failing to
file a motion to suppress the recordings of interviews he gave to law enforcement
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officers on October 25 and October 29, 2018. Specifically, Thompson maintains
that his trial counsel should have moved to suppress these recordings because law
enforcement officers did not administer the warnings required by Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, prior to conducting the interviews. Thompson
also contends his trial counsel should have at least filed a motion in limine to
exclude the recordings from trial because the recordings were unfairly prejudicial.
{¶14} “The failure to file a motion is not per se ineffective assistance of
counsel.” State v. Costell, 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 161.
To sustain a claim of ineffective assistance of counsel based on counsel’s failure to
file a particular motion, the defendant must first specify the basis for the motion that
counsel supposedly should have filed. See State v. Phelps, 5th Dist. Delaware Nos.
18 CAA 02 0016 and 18 CAA 02 0017, 2018-Ohio-4738, ¶ 13. Then, the
“‘defendant must show that the motion had a reasonable probability of success.’”
State v. Dahms, 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 101, quoting
State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 11; Phelps
at ¶ 13. If the defendant fails to demonstrate that there is a reasonable probability
that the proposed motion would have been granted, counsel is presumed to have
been effective since the filing of the motion would have been a “futile act,” which
the law does not require counsel to undertake. State v. Leu, 6th Dist. Lucas No. L-
17-1265, 2019-Ohio-3404, ¶ 47; State v. Cottrell, 4th Dist. Ross Nos. 11CA3241
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and 11CA3242, 2012-Ohio-4583, ¶ 20. Additionally, even if the defendant
succeeds in establishing a reasonable probability of success on the proposed motion,
he still “must further show that there is a reasonable probability that the outcome
[of the trial] would have been different if the motion had been granted * * *.” State
v. Blanton, 4th Dist. Adams Nos. 19CA1096 and 19CA1097, 2020-Ohio-7018, ¶
50, appeal allowed, 162 Ohio St.3d 1444, 2021-Ohio-1398; Phelps at ¶ 13.
a. Motion to Suppress Based on Lack of Miranda Warnings
{¶15} The first motion Thompson claims his trial counsel should have filed
is a motion to suppress the recordings of his October 25 and October 29, 2018
interviews with law enforcement officers. Thompson maintains that, if his trial
counsel had properly filed a motion to suppress, these recordings would have been
subject to suppression because he was not given Miranda warnings prior to
participating in the interviews. Thus, to ascertain whether Thompson’s trial counsel
was ineffective for failing to file a motion to suppress the recordings, we must first
determine whether Thompson has demonstrated a sufficient likelihood of success
on his proposed suppression motion.
{¶16} “Police officers are not required to administer Miranda warnings to
every person whom they question.” In re A.M., 3d Dist. Marion No. 9-20-23, 2021-
Ohio-432, ¶ 28. “Only custodial interrogation triggers the need for Miranda
warnings.” (Emphasis sic.) State v. Biros, 78 Ohio St.3d 426, 440 (1997).
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“‘[C]ustody’ is a term of art that specifies circumstances that are thought generally
to present a serious danger of coercion.” Howes v. Fields, 565 U.S. 499, 508-509,
132 S.Ct. 1181 (2012). “In order to determine whether a person is in custody for
purposes of receiving Miranda warnings, courts must first inquire into the
circumstances surrounding the questioning and, second, given those circumstances,
determine whether a reasonable person would have felt that he or she was not at
liberty to terminate the interview and leave.” State v. Hoffner, 102 Ohio St.3d 358,
2004-Ohio-3430, ¶ 27. “Once the factual circumstances surrounding the
interrogation are reconstructed, the court must apply an objective test to resolve ‘the
ultimate inquiry’ of whether there was a ‘“formal arrest or restraint on freedom of
movement” of the degree associated with a formal arrest.’” Id., quoting California
v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517 (1983), quoting Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711 (1977).
{¶17} “In resolving ‘the ultimate inquiry’ courts must consider the totality of
the circumstances surrounding the questioning.” In re R.S., 3d Dist. Paulding No.
11-13-10, 2014-Ohio-3543, ¶ 17. In determining whether a reasonable person in
the interviewee’s position would have felt free to terminate the interview and leave,
the following factors are relevant: (1) the location of the questioning; (2) the
duration of the questioning; (3) statements made during the interview; (4) the
presence or absence of physical restraints during the questioning; and (5) whether
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the interviewee was released at the end of the questioning. Howes at 509. Courts
have also considered factors such as whether the interviewee had access to a cell
phone during the interview, “whether an officer [was] armed and display[ed] [a]
weapon in a threatening fashion,” and whether the interviewee went voluntarily to
the police station for the interview. State v. Soto, 9th Dist. Lorain No. 16CA011024,
2017-Ohio-4348, ¶ 11. Because this part of Thompson’s ineffective-assistance-of-
counsel claim can be fully disposed of by resolving the “ultimate inquiry,” we focus
on determining whether Thompson was in custody during the October 25 and
October 29, 2018 interviews.
{¶18} We start with the interview Thompson gave to law enforcement
officers on October 25, 2018, a few hours after Good’s body was discovered. The
recording of the October 25, 2018 interview contains only audio, but from our
review of the recording and the testimony at trial, we discern the interview was
conducted in a hallway near the kitchen of Buffalo Wild Wings, the restaurant where
Thompson was working.
{¶19} In the recording, which is approximately 12 minutes long, the
interviewing officers inform Thompson of Good’s death and ask Thompson a
number of non-accusatory and largely open-ended questions. In response to these
questions, Thompson makes several incriminating remarks. Most significantly,
Thompson states that, earlier in the day, he had been in possession of a substance
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he believed to be drugs and that Good might have taken the substance from him.
Thompson tells the interviewing officers that Good came to his house that morning
looking for cocaine, but he did not have any cocaine to give Good. Thompson states
that, after Good entered the house, Good noticed a baggie in his bedroom and asked
what was inside of the baggie. Thompson says that he told Good that he did not
know what was inside of the baggie and that Good should not touch it. Thompson
explains to the interviewing officers that he found the baggie a few days earlier and
that, when he found it, he believed it contained crack cocaine, though he was not
certain of its contents. Thompson says that while he did not see Good take the
baggie, he noticed later in the day that the baggie was missing. Thompson opines
that Good likely took the baggie with him when he left.
{¶20} As the interview draws to a close, the interviewing officers repeatedly
express their appreciation for Thompson’s cooperation. Thompson provides the
officers with his phone number and home address and states that if they wished to
talk to him again, he would be at home all day the following day. The interview
concludes with the interviewing officers telling Thompson that they would “get out
of his hair” so he could return to work.
{¶21} After reviewing the recording and the trial testimony relating to the
October 25, 2018 interview, we conclude Thompson was not in custody during this
meeting with officers. In determining whether Thompson was in custody during the
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interview, we must consider the totality of the circumstances surrounding the
questioning. Here, the short duration of the interview (approximately 12 minutes),
the favorable location of the interview (a private spot within Thompson’s place of
employment versus a police-controlled environment), the nonconfrontational nature
of the questioning, the absence of evidence that Thompson was placed in restraints
during the interview, and Thompson’s immediate return to work following the
interview all militate against concluding that Thompson was in custody. We are
confident a reasonable person in Thompson’s position would have felt free to
terminate the interview and, in Thompson’s case, return to work.
{¶22} Next, we consider the interview Thompson gave to law enforcement
officers on October 29, 2018. Although not clearly reflected in the recording of the
October 29, 2018 interview, we learn from trial testimony that Thompson went
voluntarily to the police station for the interview and that officers drove him home
upon its conclusion. We also learn Thompson was not arrested until March 2019.
{¶23} Unlike the recording of Thompson’s first interview, the recording of
the October 29, 2018 interview contains both audio and video. In the recording,
Thompson is seen entering an interview room in the basement of the Marion Police
Department accompanied by plainclothes officers. Thompson is not handcuffed,
and he is not restrained at any point during the interview. The interviewing officers’
service weapons are never conspicuously displayed. Furthermore, at the beginning
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of the interview, the officers assure Thompson he would not be going to jail that
day, that he could terminate the interview at any time, and that, should he choose to
end the interview, they would take him home. The interviewing officers repeat
some of these assurances at various times throughout the interview.
{¶24} The interview, which lasts approximately 57 minutes, is more
contentious than the October 25, 2018 interview. The interviewing officers employ
a sharper, less sympathetic tone, and their questioning is more insistent and
argumentative, including occasional bouts of yelling and strident accusations that
Thompson is lying. However, despite the somewhat disputatious tenor of the
interview, the officers’ interviewing tactics fall far short of harassment or coercion.
{¶25} The October 29, 2018 interview covers much of the same ground as
the October 25, 2018 interview. Thompson’s answers to the interviewing officers’
questions are frequently inconsistent with each other and with statements he made
during the October 25, 2018 interview. Nonetheless, many of Thompson’s core
admissions and claims are unchanged. Thompson reiterates his claim that Good
came to his house on the morning of October 25, 2018, looking for cocaine.
Thompson repeats his earlier admission that he possessed some sort of substance on
the morning of October 25, 2018, and he reaffirms his earlier statement that he did
not know what the substance was. Thompson again states that Good inquired about
the substance, that he told Good that he did not know what the substance was, and
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that he told Good to stay away from the substance. Thompson persistently
maintains that he did not sell or give Good any of the substance, instead insisting
that Good took the substance without his knowledge or permission. Ultimately,
Thompson concedes the substance that caused Good’s death came from his house.
{¶26} After reviewing the recording of the October 29, 2018 interview and
the trial testimony, we conclude that Thompson was not in custody during the
October 29, 2018 interview. Again, we are mindful that in determining whether
Thompson was in custody during the interview, we must consider the totality of the
circumstances surrounding the questioning.
{¶27} It is true that, unlike the October 25, 2018 interview, the October 29,
2018 interview took place inside the decidedly police-dominated environment of a
police station. However, “[t]he fact that a suspect is interviewed at a police station
does not, unto itself, require officers to issue Miranda warnings.” State v. Brunson,
11th Dist. Portage No. 2016-P-0004, 2016-Ohio-8519, ¶ 16. Weighed against the
remaining circumstances, the location of the October 29, 2018 interview is relatively
insignificant. At approximately 57 minutes, the interview was still fairly short in
duration. The officers’ questioning, though sterner and more antagonistic than their
earlier questioning, was nevertheless devoid of abusive or threatening language and
peppered with reminders that Thompson could terminate the interview at any time
and go home. Thompson was not physically restrained during the interview, and he
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was released at the end of the questioning. In fact, Thompson was not arrested until
several months after the October 29, 2018 interview. Moreover, during the
questioning, the interviewing officers did not display their weapons in a threatening
fashion. Finally, and of particular importance, Thompson went voluntarily to the
police station for questioning and the officers drove him home afterwards. Thus,
the totality of the circumstances suggests that a reasonable person in Thompson’s
position would have felt at liberty to end the interview at any time and leave.
{¶28} In sum, we conclude Thompson was not in custody during either the
October 25, 2018 interview or the October 29, 2018 interview. Because Thompson
was not in custody during either interview, the interviews did not constitute
custodial interrogations and the interviewing officers were not required to
administer Miranda warnings prior to questioning Thompson. As a result, a motion
to suppress the recordings of these interviews based on the interviewing officers’
failure to administer Miranda warnings would not have had a reasonable probability
of success. Because such a motion likely would not have succeeded, we conclude
that Thompson’s trial counsel did not perform deficiently by failing to file one. As
a result, this component of Thompson’s ineffective-assistance-of-counsel claim
fails.
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b. Motion in Limine Based on Unfair Prejudice
{¶29} The second motion that Thompson claims his trial counsel should have
filed is a motion in limine. Thompson argues his trial counsel “could have made a
simple motion in limine at trial to exclude the [recordings] under [Evid.R. 403] as
prejudicial, because these statements would, and in fact did, prejudice [his]
defense.” Thompson’s argument is without merit.
{¶30} Thompson maintains the recordings would have been excludable
under Evid.R. 403 because they were prejudicial to his defense. However, Evid.R.
403, specifically Evid.R. 403(A), does not allow for the exclusion of evidence
simply because that evidence is prejudicial to the defendant’s case. Instead, Evid.R.
403(A) requires the exclusion of evidence only when “its probative value is
substantially outweighed by the danger of unfair prejudice * * *.” (Emphasis
added.). As the Supreme Court of Ohio has observed,
it is fair to say that all relevant evidence is prejudicial. That is,
evidence that tends to disprove a party’s rendition of the facts
necessarily harms that party’s case. Accordingly, the rules of
evidence do not attempt to bar all prejudicial evidence—to do so
would make reaching any result extremely difficult. Rather, only
evidence that is unfairly prejudicial is excludable.
(Emphasis sic.) State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 23. In this
case, the recordings were prejudicial to Thompson’s defense inasmuch as they
implicated Thompson in criminal activity, but “‘[i]ncriminating’ does not equal
‘unfair prejudice’ under Evid.R. 403(A).” State v. Swiergosz, 197 Ohio App.3d 40,
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2012-Ohio-830, ¶ 26. Because Thompson has not argued, much less established,
that the recordings’ probative value was substantially outweighed by the danger of
unfair prejudice, Thompson has failed to demonstrate a reasonable probability of
success on the proposed motion in limine. Consequently, this component of
Thompson’s ineffective-assistance-of-counsel claim fails as well.
iv. Witness Testimony
{¶31} Thompson also argues his trial counsel was ineffective for calling him
and his friend, Nicole Cooper, as witnesses. Thompson’s first claim is that trial
counsel’s decision to offer his testimony was unreasonable because “[b]y testifying,
[Thompson] connected himself to the drugs and prejudiced himself confirming
other points of the State’s case, which were questionable as well.” Second,
Thompson contends his trial counsel was ineffective in calling Cooper as a witness
because Cooper “confirmed that drugs were on [his] premises and in [his]
bedroom.” According to Thompson, this testimony was prejudicial because “[p]rior
to [Cooper’s] testimony, the only link [between him] and the drugs came from a
search warrant” that should have been the subject of a motion to suppress.
a. Thompson’s Testimony
{¶32} We deal first with the claim that Thompson’s trial counsel was
ineffective for deciding to have Thompson testify at trial. At the outset, we note
that while Thompson maintains that it was his trial counsel who decided to put him
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on the witness stand, this is not exactly accurate. “A criminal defendant has the
right to testify in his defense at trial.” State v. Ruggles, 12th Dist. Warren Nos.
CA2019-05-038, CA2019-05-044, CA2019-05-045 and CA2019-05-046, 2020-
Ohio-2886, ¶ 73, citing Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704(1987). However,
[a]lthough often framed as a right to testify, it is more properly framed
as a right to choose whether to testify. The “choice” concept reflects
the competing considerations that make up this right; while the Fifth
Amendment gives the accused the right to remain silent, courts have
recognized that the accused also has the absolute right to break his
silence and to testify. This right to choose is personal as well as
fundamental, and the defendant must make this decision himself.
(Citations omitted.) United States v. Ly, 646 F.3d 1307, 1313 (11th Cir.2011).
“[T]he ultimate decision of whether a defendant will testify on his own behalf is the
defendant’s.” State v. McKay, 11th Dist. Ashtabula No. 2001-A-0008, 2002-Ohio-
3960, ¶ 44. Indeed, counsel acts at his peril by disregarding the defendant’s decision
to testify:
[I]f defense counsel refuse[s] to accept the defendant’s decision to
testify and [does] not call him to the stand, counsel * * * act[s]
unethically to prevent the defendant from exercising his fundamental
constitutional right to testify. * * * Under such circumstances,
defense counsel has not acted “‘within the range of competence
demanded of attorneys in criminal cases,’” and the defendant clearly
has not received reasonably effective assistance of counsel.
(Citations omitted.) United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.1992).
See United States v. Mullins, 315 F.3d 449, 453 (5th Cir.2002) (“[I]t cannot be
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permissible trial strategy, regardless of its merits otherwise, for counsel to override
the ultimate decision of a defendant to testify contrary to his advice.”). As ultimate
responsibility for the decision whether to testify belongs with the defendant and not
with counsel, the fact that the defendant was called to testify, taken alone, generally
will not support a claim of ineffective assistance of counsel. See Hesser v. United
States, M.D.Fla. Nos. 2:16-cv-632-FtM-29CM and 2:11-CR-83-FTM-29CM, 2019
WL 2717271, *5 (June 28, 2019) (recognizing the “well established law that the
choice as to whether to testify or not is up to a defendant” and concluding that
because “it was petitioner’s decision to testify, not counsel’s, * * * there was no
ineffective assistance in calling petitioner as a witness”); State v. Winstead, 1st Dist.
Hamilton No. C-080092, 2009-Ohio-973, ¶ 16; McKay at ¶ 43-44.
{¶33} Yet, a defendant is not completely precluded from bringing an
ineffective-assistance claim relating to the fact that he was called to testify at trial.
“In cases where a defendant is represented by counsel, counsel is responsible for
providing the advice needed to render the defendant’s decision of whether to testify
knowing and intelligent.” Ly at 1313, citing Teague at 1533. “Defense counsel
bears the primary responsibility for advising the defendant of his right to testify or
not to testify, the strategic implications of each choice, and that it is ultimately for
the defendant himself to decide.” Teague at 1533. Thus, depending on the
circumstances, if counsel gave the defendant erroneous, misleading, or incomplete
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advice concerning the defendant’s right to testify, his right not to testify, and the
potential advantages and risks of each choice, the defendant might be able to
demonstrate that counsel performed deficiently.1 See id. at 1534 (explaining that
counsel’s failure to inform a defendant of his right to testify constitutes neglect of a
“vital professional responsibility”). Moreover, a claim alleging that counsel
overrode the defendant’s decision not to testify and “forced the defendant to testify
is analyzed under the two-pronged Strickland standard.” Singleton v. United States,
134 F.Supp.3d 807, 812 (D.Del.2015), citing Palmer v. Hendricks, 592 F.3d 386,
398-399 (3d Cir.2010) and Sexton v. French, 163 F.3d 874, 882 (4th Cir.1998).
{¶34} However, in this case, there is nothing in the record indicating
Thompson did not want to testify and that trial counsel overrode his decision. Nor
is there anything in the record suggesting that Thompson’s trial counsel did not
adequately advise Thompson of his rights or of the strategic implications of
Thompson’s decision whether to testify. Though it appears that Thompson’s trial
counsel did not advise him on the record concerning these matters, this is not
particularly surprising as “[i]t is a normal practice for lawyers to advise their clients
in private, rather than on the record.” State v. Bays, 87 Ohio St.3d 15, 27 (1999).
Because we are unable to review the content of the advice Thompson’s trial counsel
gave to Thompson, we cannot determine whether Thompson’s trial counsel’s
1
Of course, to sustain a claim of ineffective assistance of counsel, the defendant would still need to
demonstrate prejudice.
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performance was deficient in this respect. See State v. Seibert, 6th Dist. Wood No.
WD-02-017, 2003-Ohio-3107, ¶ 12-13 (rejecting as unreviewable defendant’s
argument that counsel was ineffective for failing to advise him of his right not to
testify at trial where counsel’s advice, if given, was not put on the record).
{¶35} Furthermore, we observe that the trial court engaged in two colloquies
with Thompson wherein the trial court informed Thompson that he had a right to
testify or not to testify, that the jury could not consider his silence for any reason
should he choose not to testify, and that the decision whether to testify was his to
make after consultation with counsel. (July 14-17, 2020 Tr. at 674, 682-683).
Thompson’s counsel stated he was satisfied with the trial court’s explanation of
Thompson’s rights, and Thompson indicated he understood his rights and that it was
his decision to testify. (July 14-17, 2020 Tr. at 674, 682-683). In light of these
circumstances, Thompson has failed to demonstrate that he received ineffective
assistance of counsel with regard to his trial testimony.
b. Cooper’s Testimony
{¶36} Thompson’s argument that his trial counsel was ineffective for calling
Cooper as a witness fares no better. “[C]ounsel’s decisions concerning which
witnesses to call at trial fall within the realm of trial strategy and tactics and
generally will not constitute ineffective assistance of counsel.” State v. Smith, 115
Ohio App.3d 419, 426 (3d Dist.1996). “Trial strategy is only deficient if it is
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‘outside the realm of legitimate trial strategy so as “to make ordinary counsel
scoff.”’” In re R.M., 7th Dist. Harrison No. 19 HA 0007, 2019-Ohio-5251, ¶ 47,
quoting State v. Taylor, 5th Dist. Richland No. 2005-CA-0112, 2006-Ohio-4064, ¶
34. Here, Thompson has neither argued nor established that his trial counsel’s
decision to call Cooper as a witness was so far outside the range of legitimate trial
strategy as to be nonsensical. Consequently, Thompson has not demonstrated that
his trial counsel was ineffective in choosing to call Cooper as a witness.
v. Closing Statements
{¶37} Finally, Thompson argues he received ineffective assistance of
counsel because his trial counsel, while presenting closing statements, asked the
jury to return a guilty verdict on the aggravated-possession-of-drugs charge. During
his closing statements, Thompson’s trial counsel made the following comments:
I’m going to do something very unusual and ask you to find
[Thompson] guilty of the charge of aggravated possession of drugs.
And that may seem unusual to you, a defense attorney asking us to
find his client guilty. I’m not going to sit here and insult your
intelligence and say, “Oh, the drugs found at [Thompson’s residence],
[Thompson] is not responsible for those.” I would be insulting your
intelligence, wouldn’t I? I’m not going to do that. All right?
The State has proven its case beyond a reasonable doubt as to that
charge alone.
(July 14-17, 2020 Tr. at 761). Thompson contends his trial counsel’s decision to
concede guilt on the aggravated-possession-of-drugs charge “changed the course
and result of the trial.” We disagree.
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{¶38} “According to the Ohio Supreme Court, ‘[c]oncessions of guilt, in any
form, are among the most troublesome actions a defense counsel can make during
representation of a defendant.’” State v. Villani, 12th Dist. Butler No. CA2018-04-
080, 2019-Ohio-1831, ¶ 37, quoting State v. Goodwin, 84 Ohio St.3d 331, 336
(1999). “Nonetheless, concessions do not constitute ineffectiveness per se.” Id.“[C]oncessions of guilt must be analyzed on a case-by-case basis, considering ‘[a]ll
of the facts, circumstances, and evidence.’” Id., quoting Goodwin at 338. “When
defense counsel concedes his client’s guilt to a charge in an effort to enhance
credibility by being candid and realistic with the jury, such a decision may be
construed as tactical or strategic and, therefore, does not constitute ineffective
assistance of counsel.” State v. Simpson, 2d Dist. Montgomery No. 19797, 2004-
Ohio-669, ¶ 24, citing Goodwin at 338-339.
{¶39} After reviewing the entirety of Thompson’s trial counsel’s closing
statements, as well as the evidence in the record, we cannot conclude that
Thompson’s trial counsel was ineffective for admitting Thompson’s guilt to the
charge of aggravated possession of drugs. Thompson’s trial counsel’s decision to
partially concede Thompson’s guilt was clearly strategic. Based on Thompson’s
trial counsel’s cross-examination of the State’s witnesses, the presentation of
Thompson’s own case, and the rest of the closing statements, in which Thompson’s
trial counsel insisted that there was no evidence definitively connecting Thompson
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to the fentanyl that caused Good’s death, it is evident that Thompson’s defense was
not premised on casting doubt on whether he himself possessed fentanyl. Instead,
Thompson’s defense was based on countering the State’s proof that he knowingly
furnished fentanyl to Good. By admitting that Thompson possessed drugs,
Thompson’s trial counsel attempted to direct the jury’s focus to what Thompson’s
trial counsel believed to be the weakest elements of the State’s case. See State v.
Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 60; State v. Scott, 101 Ohio St.3d
31, 2004-Ohio-10, ¶ 60. Moreover, the admission may have been beneficial in
bolstering the credibility of Thompson’s defense to the jury, i.e., because Thompson
is being forthcoming by admitting that he possessed drugs, he should be believed
when he says that he did not give drugs to Good or allow Good to take them. See
Villani at ¶ 38; Simpson at ¶ 24-25. Ultimately, while Thompson’s trial counsel’s
strategy may not have yielded the hoped-for results, Thompson has not
demonstrated that the strategy was unreasonable under the circumstances.
{¶40} Thompson’s first assignment of error is overruled.
B. Second Assignment of Error: Are Thompson’s convictions supported by
sufficient evidence and does the evidence weigh in favor of Thompson’s
convictions?
{¶41} In his second assignment of error, Thompson argues his convictions
are not supported by sufficient evidence and are otherwise against the manifest
weight of the evidence.
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i. Standards for Sufficiency-of-the-Evidence and Manifest-Weight Review
{¶42} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Accordingly, we address each legal concept individually.
{¶43} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33.
{¶44} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of
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witnesses and determine[] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
ii. Thompson’s Offenses
{¶45} Thompson was found guilty of three offenses: involuntary
manslaughter, aggravated possession of drugs, and corrupting another with drugs.
The most serious of these offenses, involuntary manslaughter, is codified at R.C.
2903.04, which provides, in relevant part, that “[n]o person shall cause the death of
another * * * as a proximate result of the offender’s committing or attempting to
commit a felony.” R.C. 2903.04(A). “The culpable mental state of involuntary
manslaughter is supplied by the underlying offense.” State v. Johnson, 8th Dist.
Cuyahoga No. 94813, 2011-Ohio-1919, ¶ 54.
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{¶46} The predicate felony for Thompson’s involuntary-manslaughter
charge was aggravated possession of drugs.2 The offense of aggravated possession
of drugs is codified at R.C. 2925.11, which provides, in relevant part, that “[n]o
person shall knowingly obtain, possess, or use a controlled substance or a controlled
substance analog.” R.C. 2925.11(A). Consequently, the culpable mental state for
aggravated possession of drugs, and for involuntary manslaughter in this instance,
is “knowingly.” “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. A person has knowledge of circumstances when the
person is aware that such circumstances probably exist.” R.C. 2901.22(B).
Therefore, to sustain Thompson’s involuntary-manslaughter conviction, the State
was required to prove that Thompson caused Good’s death as the proximate result
of knowingly possessing, obtaining, or using a controlled substance or controlled
substance analog.
{¶47} Thompson was also convicted of corrupting another with drugs. The
offense of corrupting another with drugs is codified at R.C. 2925.02, which
provides, in relevant part, that “[n]o person shall knowingly * * * [b]y any means,
administer or furnish to another or induce or cause another to use a controlled
2
Although the aggravated-possession-of-drugs offense merged with the involuntary-manslaughter offense at
sentencing, in determining whether Thompson’s involuntary-manslaughter conviction is supported by the
evidence, we must necessarily consider whether the evidence supports the jury’s finding that Thompson
committed the offense of aggravated possession of drugs.
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substance, and thereby cause serious physical harm to the other person, or cause the
other person to become drug dependent.” R.C. 2925.02(A)(3). Like aggravated
possession of drugs, the culpable mental state for corrupting another with drugs is
“knowingly,” which we defined above. “Furnish” means “‘to supply, provide, or
equip, for accomplishment of a particular purpose.’” State v. Price, 8th Dist.
Cuyahoga No. 107096, 2019-Ohio-1642, ¶ 49, quoting Black’s Law Dictionary 466
(6th Ed.1991).
iii. Sufficiency of the Evidence
{¶48} Thompson first suggests his involuntary-manslaughter conviction is
not supported by sufficient evidence because the State failed to prove that he
committed the predicate offense of aggravated possession of drugs. In support of
this claim, Thompson observes that “no DNA analysis was conducted to link the
baggie of drugs found in [Thompson’s] bedroom to [him].”
{¶49} Although Thompson is correct that the baggie of drugs found in his
bedroom was not tested for the presence of his DNA, his argument does not account
for the ample evidence presented by the State connecting him to the drugs found in
his bedroom. During his interviews with law enforcement officers on October 25
and October 29, 2018, Thompson repeatedly admitted that he was in possession of
some type of substance on the morning of October 25, 2018. Although Thompson
claimed in the interviews that he did not know what the substance was, he expressed
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his belief that the substance was probably some variety of illegal drug. Furthermore,
during the October 29, 2018 interview, Thompson described where he stored the
substance while it was in his possession. During the search of Thompson’s bedroom
on October 25, 2018, a baggie containing an unknown substance was found in a
location consistent with Thompson’s description, and subsequent testing revealed
that this substance contained fentanyl. Thus, viewing the evidence in a light most
favorable to the State, any reasonable trier of fact could find beyond a reasonable
doubt that Thompson committed the offense of aggravated possession of drugs.
{¶50} Thompson also maintains his involuntary-manslaughter conviction is
not supported by sufficient evidence because “the State was never able to prove that
[he] actually furnished or made any drugs available to the victim.” While
Thompson frames this argument as challenging the sufficiency of the evidence
supporting his involuntary-manslaughter conviction, we observe that the State was
not required to prove that Thompson furnished or made drugs available to Good in
order to obtain a conviction for involuntary manslaughter. The offense of corrupting
another with drugs, which requires proof that the defendant furnished the victim
with a controlled substance, was not the predicate offense for Thompson’s
involuntary-manslaughter charge. The predicate offense for Thompson’s
involuntary-manslaughter charge was aggravated possession of drugs, which does
not require proof that the defendant furnished the victim with a controlled substance.
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Accordingly, we address Thompson’s argument as it relates to a challenge to the
sufficiency of the evidence supporting his corrupting-another-with-drugs
conviction.
{¶51} Thompson contends the State did not present sufficient evidence that
he furnished Good with drugs because “[t]estimony was admitted that [he] was
likely unconscious when [Good] came to his residence on October 25, 2018 * * *.”
He also argues that “no evidence existed connecting the drugs found in the victim’s
wallet to [him], and certainly no DNA match existed.” Yet, Thompson again
ignores the State’s considerable evidence supporting a finding that he furnished
drugs to Good.
{¶52} First, in both of his interviews with law enforcement officers,
Thompson recounted the conversation he had with Good on the morning of October
25, 2018, after Good asked about the drugs in Thompson’s bedroom. Therefore,
construing the evidence in a light most favorable to the State, the evidence supports
that Thompson was at least semi-conscious when Good came to his house on the
morning of October 25, 2018. However, regardless of Thompson’s level of
consciousness when Good came to his house on the morning of October 25, 2018,
the State presented sufficient evidence that Thompson and Good had prearranged
for Good to obtain drugs from Thompson. At trial, the State presented the following
series of text messages between Thompson and Good:
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[Good]: What happened to u being up lol
[Good]: U going to have a dub at 830
[Thompson]: Yep. I was Out like a Blown out light
[Good]: K
[Good]: See u then
[Thompson]: OK
All of these text messages were sent and received between 1:13 a.m. and 1:41 a.m.
on October 25, 2018. In addition, the State presented testimony from a law
enforcement officer that, in his experience, a “dub” refers to $20 worth of
“[t]ypically heroin, but anything.” (July 14-17, 2020 Tr. at 508-509). Another law
enforcement officer testified that, based on his experience, Good’s text messages to
Thompson represented an attempt by Good to obtain drugs. (July 14-17, 2020 Tr.
at 638). Accordingly, even if Thompson was unconscious when Good came to his
house, the evidence, when viewed in a light most favorable to the State, supports
that Thompson had previously agreed to make $20 worth of drugs available for
Good when Good arrived on the morning of October 25, 2018.
{¶53} Finally, the State presented sufficient evidence for the jury to find that
Thompson did in fact furnish Good with a controlled substance. Specifically, the
State presented evidence that the substance found in Good’s wallet was similar to
the substance seized from Thompson’s bedroom in that both substances were
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“tannish/peach” in color and contained fentanyl. Given these similarities, the jury
could reasonably infer that Thompson was the source of the substance found in
Good’s wallet.
{¶54} Contrary to Thompson’s assertion, this inference is not negated by the
apparent absence of his DNA on the baggie that was found inside of Good’s wallet.
While it is true that Good was identified as the major contributor of a DNA mixture
discovered on the baggie and that Thompson was “excluded from the interpretable
data,” this does not necessarily mean that Thompson’s DNA was not on the baggie.
The State’s DNA report indicated that the DNA mixture discovered on the baggie
included additional data that was “not interpretable.” The State’s expert witness in
DNA analysis explained that this signified that “there is additional DNA data, but it
is so low that it is uninterpretable,” meaning that she “wouldn’t be able to include
or exclude anyone from that additional data.” (July 14-17, 2020 Tr. at 655). She
further testified that she could not include or exclude Thompson as a contributor to
the DNA mixture. (July 14-17, 2020 Tr. at 655, 662). It is thus possible that
Thompson interacted with the baggie found in Good’s wallet and that he deposited
his DNA thereon, though in an amount insufficient to make a positive identification.
Therefore, viewing the evidence in a light most favorable to the State, any
reasonable trier of fact could find beyond a reasonable doubt that Thompson
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furnished Good with a controlled substance as required to sustain a conviction for
corrupting another with drugs.
{¶55} In sum, viewing the evidence in a light most favorable to the State,
any rational trier of fact could have found the essential elements of involuntary
manslaughter and corrupting another with drugs proven beyond a reasonable doubt.
Accordingly, we conclude that Thompson’s involuntary-manslaughter and
corrupting-another-with-drugs convictions are supported by sufficient evidence.
iv. Manifest Weight of the Evidence
{¶56} Thompson separately argues that his convictions are against the
manifest weight of the evidence. However, in making his manifest-weight
argument, Thompson simply rehashes claims he made in his first assignment of
error. Thompson again claims his trial counsel was “ineffective for failing to file
and argue motions to suppress,” that his trial counsel erred by “[c]alling [him] to
testify as well as [Cooper],” and that “[a]dmitting to [the] possession charge on
closing argument was likely the final link in the destruction of any defense * * *.”
He maintains it was these supposed missteps by counsel that “caused the jury to lose
its way.” These are not proper manifest-weight arguments, and in similar
circumstances, we have refused to construct, and then analyze, a manifest-weight
argument on behalf of the defendant. See State v. Laws, 3d Dist. Allen No. 1-20-
10, 2021-Ohio-166, ¶ 32 (declining to construct and then resolve a manifest-weight
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argument where defendant’s manifest-weight argument was nothing more than a
restatement of his earlier sufficiency-of-the-evidence argument).
{¶57} Nevertheless, we have little difficulty concluding that Thompson’s
convictions are not against the manifest weight of the evidence. As discussed
throughout this opinion, there is overwhelming evidence that on October 25, 2018,
Thompson possessed a substance containing fentanyl. By his own statements,
Thompson confirmed that Good was aware of the drugs. There is also substantial
evidence supporting that on the morning of October 25, 2018, Good obtained some
of the substance and used it after leaving Thompson’s house. While Thompson
claimed he did not sell or give the substance to Good or make the substance
available to him, “[a] verdict is not against the manifest weight of the evidence
because the finder of fact chose to believe the State’s [evidence] rather than the
defendant’s version of the events.” State v. Martinez, 9th Dist. Wayne No.
12CA0054, 2013-Ohio-3189, ¶ 16. Finally, it is undisputed Good overdosed on
fentanyl and later died as a result. Thus, Thompson’s involuntary-manslaughter and
corrupting-another-with-drugs convictions are not against the manifest weight of
the evidence.
{¶58} Thompson’s second assignment of error is overruled.
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IV. Conclusion
{¶59} For the foregoing reasons, Thompson’s assignments of error are
overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Marion County Court
of Common Pleas.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/jlr
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