State v. Armstrong

[Cite as State v. Armstrong, 2016-Ohio-7841.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-P-0075
- vs - :
DERICK ARMSTRONG, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
00213D.
Judgment: Reversed and vacated.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Carolyn K. Mulligan, 9442 State Route 43, Streetsboro, OH 44241 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Derick Armstrong, appeals from the judgment of the Portage
County Court of Common Pleas convicting him, after a trial by jury, of corrupting
another with drugs, a felony of the second degree and aggravated possession of drugs,
a felony of the fifth degree. Appellant does not challenge the latter conviction; thus, at
issue is whether the conviction for corrupting another with drugs is supported by both
sufficient as well as the manifest weight of the evidence. For the reasons discussed in
this opinion, that conviction is reversed and vacated.
{¶2} Appellant met Mitchell White in a West Virginia jail in 2013. After their
release, the two would meet occasionally and party. On March 16, 2015, White advised
appellant he and his girlfriend, A.M., a minor, were traveling to Akron, Ohio so A.M.
could visit her grandmother. White asked if appellant was interested in riding along.
Appellant, who had an aunt, uncle, and cousins residing in Portage County, accepted
the invitation and viewed it as an opportunity to visit his relatives.
{¶3} White, with A.M., arrived to pick appellant up at approximately 11:00 p.m
that night. They drove through the night but, when they arrived in Akron, A.M.’s
grandmother did not answer her apartment door. The trio decided to find a hotel to drop
off their belongings, rest, and shower. They searched for places to stay and discovered
the Hiram Inn had an available room. Upon arrival, on March 17, 2015, White paid cash
for the room. White and A.M. eventually went shopping. Appellant, whose relatives
were at work, stayed behind and called an old friend, Travis Hammons, a.k.a. T-Ham.
{¶4} T-Ham arrived at the Inn and he and Appellant began smoking
methamphetamine (“meth”) and drinking beer together at the Inn. Later, White and
A.M. joined the two men in the room; according to appellant, neither White nor A.M.
smoked meth with him and T-Ham. Appellant speculated, however, that the two were
nevertheless injecting the drug because he had observed hypodermic needles with their
belongings and they would periodically “disappear into the bathroom and come out all
jacked up and shit.” Appellant consistently maintained he and T-Ham exclusively
smoked meth with one another and did not do so with either White or A.M. Appellant
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further insisted he did not provide any meth for White or A.M. to inject with their
needles.
{¶5} The group eventually went to two local bars and, at approximately 4:00
a.m. on March 18, 2015, the group traveled to a casino in Cleveland, Ohio. Upon their
arrival, White and T-Ham entered the casino. Neither appellant nor A.M., however,
possessed valid identification and, as a result, they returned to the vehicle. Appellant
ultimately fell asleep. At some point in the morning, appellant was awakened by A.M.
She was “hysterical, flipping out, saying she can’t find [the] guys and we need to go
back to the room ‘cause check out time is at 11.” When A.M. and appellant returned to
the Hiram Inn, “the drug task force and cops and stuff were sitting there just basically
waiting on us.”
{¶6} Ashley Andrews, the Hiram Inn desk clerk, arrived at work on the morning
of March 18, 2015, and noticed that the vehicle in which appellant, White, and A.M. had
arrived was not parked in the Inn’s lot. Check-out time passed and Andrews had
neither seen nor heard from any of the three individuals. Because the room was
booked for another party later that day, Andrews called the room and knocked on the
door, but received no response. When she entered the room, she “saw their stuff” and
called the Inn’s manager, Anita Stocz. Stocz entered the room and determined the
room was unoccupied; she noticed, however, the room was messy, with personal
belongings, including a TASER, scattered indiscriminately on the floor, bed, and
ottoman. She also noticed a smell with which she was “totally unfamiliar.” Given the
unusual circumstances, Stocz contacted the Hiram Police Chief who sent officers to the
Inn.
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{¶7} Stocz admitted officers into the room, where they discovered a firearm,
needles, tinfoil, burnt residue, and pills in plain view. The drug task force was
summoned and officers applied for a search warrant. The warrant was issued and,
among the items seized, were a box containing a large quantity of powdered meth
(approximately 16.16 grams), small plastic “bindle” bags, typically used in the sale of
meth, two digital scales, a hand gun, and a West Virginia back pack, containing a small
amount of meth ( approximately 0.21 grams) and 13 amphetamine pills.
{¶8} When appellant and A.M. approached the room, officers met and
questioned them. A.M. appeared under the influence of a drug of abuse and became
hostile with officers. She provided them with a false name and was generally
uncooperative. The officers eventually discovered A.M.’s actual identity and, as a
result, determined she was a 17-year-old minor. Officers also discovered a small
amount of meth in A.M.’s purse. Out of concern for her safety, she was taken to a
nearby medical facility where she was treated and screened for substances. The
results of the tests revealed A.M. tested positive for amphetamine, meth, methadone,
and opiates, including suboxone. According to the treating physician, A.M. disclosed
she had been shooting up meth for “that day as well as many days before” and that she
had ingested the suboxone “that day.”
{¶9} During his questioning, appellant was cooperative with officers and
acknowledged ownership of the West Virginia bag as well as its contents. He further
surrendered several Buprenorphine (suboxone) pills which were on his person.
Appellant vehemently maintained none of the remaining items seized from the room
belonged to him. Appellant also stated he was unaware A.M. was a juvenile. He
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admitted that, on their journey from West Virginia to Akron, he had a conversation with
White in which he noted that A.M. appeared rather young. Although White indicated
A.M. was not a minor, appellant pointed out the young female was his responsibility.
{¶10} Appellant consistently denied doing any meth with White or A.M. and
stated he did not provide either individual with drugs. He asserted he observed the two
disappear into the Inn’s bathroom and assumed they were shooting up given their
demeanor when they exited the room; appellant still maintained he did not witness the
couple shooting meth in his presence and denied knowledge of the large quantity of
meth, which was seized from a box found in the room.
{¶11} Appellant was indicted on one count of aggravated trafficking in drugs, a
felony of the first degree, in violation of R.C. 2925(A)(2) and (C)(1)(d) (meth, a Schedule
II controlled substance in an amount that equals or exceeds five times the bulk amount
but is less than 50 times the bulk amount); aggravated possession of drugs, a felony of
the second degree, in violation of R.C. 2925.11(A) and (C)(1)(c) (meth, a Schedule II
controlled substance in an amount that equals or exceeds five times the bulk amount
but is less than 50 times the bulk amount); possessing criminal tools, in violation of R.C.
2923.24(A) and (C), a felony of the fifth degree; corrupting another with drugs, a felony
of the second degree, in violation of R.C. 2925.02(A)(4)(c) (involving a Schedule I or II
controlled substance, to wit: meth); interference with custody, a felony of the fourth
degree, in violation of R.C. 2919.23(A)(1); endangering children, a misdemeanor of the
first degree, in violation of 2929.22; contributing to the delinquency or unruliness of a
child, a misdemeanor of the first degree, in violation of R.C. 2919.24(A)(1); and having
weapons while under disability, a felony of the third degree, in violation of R.C.
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2923.13(A)(4). Appellant entered a plea of not guilty and the matter proceeded to jury
trial. On August 20, 2015, the jury returned verdicts of guilty on a lesser degree of
aggravated possession of drugs, a felony of the fifth degree, finding appellant
possessed less than the bulk amount. It also returned a verdict of guilty on the charge
of corrupting another with drugs. Appellant was acquitted on all remaining counts.
{¶12} At the sentencing hearing, the trial court sentenced appellant to a term of
five years imprisonment on the corrupting-another-with-drugs charge and 11 months on
the aggravated-possession-of-drugs conviction. The court ordered appellant’s
sentences to be served concurrently. This appeal follows.
{¶13} Appellant’s assignment of error provides:
{¶14} “Defendant-appellant’s conviction for corrupting another with drugs is
based upon mere conjecture, not supported by sufficient evidence and against the
manifest weight of evidence when the state fails to produce any evidence as to three of
the elements of the crime.”
{¶15} A “sufficiency” argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.
State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper
inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury
could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062 ¶9, 901 N.E.2d 856 (11th
Dist.)
{¶16} In contrast, a court reviewing the manifest weight observes the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
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the witnesses and determines whether, in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-
082, 1994 Ohio App. LEXIS 5862, *14-*15 (Dec. 23, 1994).
{¶17} Appellant was indicted for corrupting another with drugs, pursuant to R.C.
2925.02(A)(4)(c). That statute provides: “No person shall knowingly do any of the
following: By any means * * * : Induce or cause a juvenile who is at least two years the
offender’s junior to commit a felony drug abuse offense, when the offender knows the
age of the juvenile or is reckless in that regard.” Appellant’s indictment charged him
with corrupting another with drugs under this subsection, but alleged, with particularity,
that appellant did:
{¶18} knowingly by any means induce or cause a juvenile, to wit: Jane
Doe, dob 6/27/99, who is at least two years [his] junior to commit a
felony drug abuse offense, involving a Schedule I or II controlled
substance, to wit: Methamphetamine, when the offender knows the
age of the juvenile or is reckless in that regard.
{¶19} While there was evidence that A.M. ingested suboxone earlier “that day,”
and there was evidence that appellant was the only individual in the group in
possession of suboxone, the indictment did not charge appellant in the alternative or
with an additional count of corrupting the juvenile with suboxone, a Schedule III
controlled substance. Even though the elements of the statute do not ostensibly require
a charging instrument to include the drug at issue, this particular indictment specified
what the state intended to prove; namely, that appellant corrupted A.M. with meth.
While this detail might ordinarily be resolved by a bill of particulars, the narrow nature of
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the allegation in the indictment precluded the state from attempting to prove the charge,
via this count, by recourse to evidence relating to appellant’s possession of suboxone.
{¶20} Every defendant has a due process right to notice of a specific charge.
State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶60 citing Cole v. Arkansas, 333
U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly
established than that notice of the specific charge, and a chance to be heard in a trial of
the issues raised by that charge, if desired, are among the constitutional rights of every
accused in a criminal proceeding in all courts, state or federal”). Here, the state never
alleged, or sought to amend the indictment to allege appellant corrupted another with
suboxone, a schedule III controlled substance. Given the specificity of the charging
instrument, the issue of whether appellant corrupted another with suboxone was not
before the jury. Accordingly, even if there was sufficient evidence to support a
conviction on a hypothetical charge specifying suboxone, appellant’s possession of that
drug cannot be considered in our analysis of whether the state met its burdens of
production and persuasion for the indicted charge of corrupting another with drugs, to
wit: meth.
{¶21} With this in mind, to obtain a valid conviction for corrupting another with
drugs, the state was required to prove, beyond a reasonable doubt, appellant (1)
knowingly induced the juvenile or caused the juvenile to use meth and (2) he either
knew she was a juvenile or was reckless in that regard. Given the nature of the
evidence, the jury was required to assume the meth injected by A.M. belonged to
appellant such that he knowingly induced or caused her to use it. Because the state
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failed to circumstantially establish this necessary predicate, the evidence is not
constitutionally adequate for a valid conviction.
{¶22} It is well-settled that “[c]ircumstantial evidence and direct evidence
inherently possess the same probative value * * *.” State v. Jenks, 61 Ohio St.3d 259(1991), paragraph one of the syllabus. “Circumstantial evidence has been defined as
testimony not grounded on actual personal knowledge or observation of the facts in
controversy, but of other facts from which inferences are drawn, showing indirectly the
facts sought to be established.” State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001 ,
2014-Ohio-4304, ¶22, citing State v. Nicely, 39 Ohio St.3d 147, 150 (1988). An
inference is “a conclusion which, by means of data founded upon common experience,
natural reason draws from facts which are proven.” State v. Nevius, 147 Ohio St. 263,
71 N.E.2d 258 (1947). It consequently follows that “when circumstantial evidence forms
the basis of a conviction, that evidence must prove collateral facts and circumstances,
from which the existence of a primary fact may be rationally inferred according to
common experience.” Windle, supra at ¶34.
{¶23} A conviction, however, may not be based upon the “stacking of
inferences.” Payne, supra, at ¶23. “When an inference, which forms the basis of a
conviction, is drawn solely from another inference and that inference is not supported by
any additional facts or inferences drawn from other established facts, the conviction is
improper.” Id. See also State v. Maynard, 10th Dist. Franklin No. 11AP-697, 2012-
Ohio-2946, ¶27. The rule against inference-stacking essentially forbids the drawing of
an inference from evidence, which is too uncertain or speculative or which raises merely
a possibility or conjecture. While reasonable inferences may be drawn from the facts
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and conditions established, they cannot be drawn from facts or conditions merely
assumed.
{¶24} The state produced evidence that A.M., a juvenile, had meth in her system
on March 18, 2018, and disclosed that she had been injecting meth on that day as well
as several days prior. It also established A.M. had a certain quantity of meth in her
purse when she encountered the police. Appellant testified he did not observe A.M.
injecting meth and he did not share any meth with her while he was with her. At trial, he
testified he deduced that A.M. was injecting meth with White on the night of March 17
and the early morning of March 18 inside a closed bathroom because they possessed
needles and they would exit the bathroom “all jacked up.” He testified neither he nor T-
Ham injected the drug.
{¶25} Appellant possessed a small amount of meth located in his West Virginia
bag. He admitted to possessing the amount found in the bag and conceded he smoked
it with his friend, T-Ham. Alternatively, a very large quantity of meth was found in a
closed box. The box was located, along with small baggies, during the search of the
room. Neither of these items were found inside appellant’s bag. Appellant was
charged with possession of this large quantity, as well as trafficking (based upon the
baggies), but the jury acquitted him of the trafficking charge as well as the charge
involving the greater quantity; he was found guilty only of possessing the small amount
found in his bag.
{¶26} The meth, upon which the charge of corrupting another with drugs was
based, could have issued from one of various uncertain sources: (1) the supply in
appellant’s possession; (2) the large quantity in the box; (3) A.M. herself; (4) an
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independent supply furnished by White (who was not present at the time of the arrest);
or (5) an unidentified individual from whom A.M. or White may have purchased drugs.
While it is possible that appellant’s supply could have been the source of the meth that
A.M. injected, given the evidence, it is equally possible the meth she injected came from
any of the other potential sources. Because there was no additional circumstantial
evidence to support the inference that appellant’s supply was the source, the conviction
is based upon an assumption; namely, that, despite appellant’s consistent denials,
appellant knowingly provided A.M. with the drug. In other words, the conviction was
premised upon impermissible inference-stacking.
{¶27} We acknowledge that the jury instructions simply tracked the language of
the corrupting-another-with-drugs statute and did not specifically advise the jury that the
charge itself was premised exclusively upon meth. In this regard, the jury may have
based its verdict upon its view that appellant corrupted A.M. with suboxone.
Unfortunately, we have no way of knowing which drug the jury based its verdict on.
And, as already noted, the issue of whether appellant provided, induced, or caused
A.M. to commit a felony drug offense with suboxone was not properly before the jury
because it was not charged in the indictment. Accordingly, even if the jury’s verdict was
based upon its conclusion that appellant corrupted A.M. with suboxone, that verdict
would be a nullity as it would represent a conviction on a fictional charge. In light of the
actual charges, we can only analyze the evidence as it relates to the meth.
{¶28} Assuming the jury premised its verdict upon appellant’s corruption of A.M.
with meth, that verdict is a product of speculation. Upon analysis, appellant’s conviction
could only be based on an inference which was dependent not upon an established
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fact, but upon another inferential assumption. Although reasonable inferences may be
drawn from evidence, it is the state’s burden to present evidence on each element of
the charged crime from which those inferences may be drawn. It must be borne in mind
that proof must be sufficient for the jury to find guilt beyond a reasonable doubt. Thus,
although the state need not exclude every reasonable theory of innocence to sustain a
conviction, we are loath to endorse inference-stacking as a means to upholding a
conviction. Because the state failed to establish, beyond a reasonable doubt, that
appellant knowingly induced or caused A.M. to use meth, the conviction is based upon
insufficient evidence.
{¶29} Appellant’s assignment of error has merit.
{¶30} For the reasons discussed in this opinion, the judgment convicting
appellant of corrupting another with drugs is hereby reversed and vacated.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.
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