State v. CarpenterState v. Carpenter
- Reporters:
- , ,
- Before:
- Zimmerman, Shaw, Preston
Robert A. Miller for Appellant
Stephanie J. Kiser for Appellee
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Tyree L. Carpenter (“Carpenter“), appeals the April 27, 2018 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a series of drug-related events, including the overdose of Meredith Breech (“Breech“) and overdose death of Steffen Yarris (“Yarris“), that took place between August 2015 and April 2016 in Fostoria, Ohio. The city of Fostoria is situated at the convergence of Hancock, Seneca, and Wood Counties. However, the events at issue in this case transpired in only Hancock and Seneca Counties.
{¶3} On August 8, 2016, the Seneca County Grand Jury indicted Carpenter on thirteen counts, including: Counts One and Three of possession of heroin in violation of
{¶4} On August 30, 2016, under a superseding indictment, the Seneca County Grand Jury indicted Carpenter on three additional counts: Count Fourteen of aggravated trafficking in drugs in violation of
{¶5} On September 22, 2016, Carpenter filed a “motion to separate trials and to dismiss indictments.” (Doc. No. 26). The next day, Carpenter filed a motion to dismiss for improper venue. (Doc. No. 27). Further, on September 26, 2016, Carpenter filed a motion to suppress evidence. (Doc. No. 28).
{¶6} The State filed its memorandums in opposition to Carpenter‘s motions to separate trials and to dismiss the indictment on November 21, 2016 and filed its memorandum opposing Carpenter‘s motion to suppress on December 2, 2016. (Doc. Nos. 37, 38, 42). Ultimately, the trial court denied all of Carpenter‘s motions. (Doc. No. 57).
{¶7} The case proceeded to a jury trial on April 23-26, 2018. (Doc. No. 147).1 During the trial, the State filed a motion to dismiss Counts Six and Seven of the superseding indictment, which the trial court granted. (Doc. Nos. 145, 146).
{¶8} On April 26, 2017, the jury found Carpenter guilty of Counts One, Three, Four, Five, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, and Sixteen but not guilty of Count Two of the superseding indictment. (Doc. Nos. 147, 148). Further, the jury found that the currency and property identified under the specifications in Counts One, Eight, Nine, and Eleven, were subject to forfeiture,
{¶9} On April 26, 2018, the trial court sentenced Carpenter to 12 months in prison on Counts One, Three, Nine, Ten, and Thirteen, respectively, 8 years in prison on Count Five, 18 months in prison on Counts Eight and Twelve, respectively, 36 months in prison on Count Eleven, and 11 years in prison on Count Sixteen. (Doc. No. 151). The prison terms imposed by the trial court were ordered to be served consecutively for an aggregate sentence of 19 years and 132 months in prison. (Id.).2 The trial court filed its judgment entry of sentence on April 27, 2017. (Id.).
{¶10} Carpenter filed his notice of appeal on May 14, 2018. (Doc. No. 156). He raises three assignments of error for our review. For ease of our discussion, we will review Carpenter‘s second and third assignments of error together, followed by his first assignment of error.
Appellant‘s convictions were not supported by legally sufficient evidence.
Assignment of Error No. III
Appellant‘s convictions were against the manifest weight of the evidence.
{¶11} In his second and third assignments of error, Carpenter argues that his convictions are based on insufficient evidence and are against the manifest weight of the evidence. In particular, in his second assignment of error, he argues that the State presented insufficient evidence that: (1) he possessed heroin, cocaine, or criminal tools; (2) he “knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed any illegal narcotics“; (3) Breech suffered serious physical harm; and (4) he was “an independently sufficient cause of Yarris‘[s] death or serious physical harm.” (Appellant‘s Brief at 26-28). In his third assignment of error, he specifically argues that the weight of the evidence shows that: (1) he did not possess heroin as alleged in Counts One and Three of the superseding indictment; (2) he did not knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute any illegal narcotics; (3) he did not provide Beech with a substance which caused her serious physical harm; and (4) the heroin that he allegedly provided Yarris “in-and-of-itself” did not cause Yarris‘s death or serious physical harm. (Appellant‘s Brief at 33).
Standard of Review
{¶12} 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). Thus, we address each legal concept individually.
{¶13} “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 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[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, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.“), citing Thompkins at 386.
{¶14} 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 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.
Sufficiency of the Evidence Analysis
{¶15} We begin by addressing Carpenter‘s sufficiency-of-the-evidence argument as it relates to his possession-of-heroin, -cocaine, and -criminal-tools convictions, followed by his sufficiency-of-the-evidence argument as it relates to his trafficking convictions, then we will address his sufficiency-of-the-evidence argument as it relates to his corrupting-another-with-drugs convictions. Finally, we
{¶16} Carpenter was convicted of possessing drugs under
{¶17} Carpenter was also convicted of possessing-criminal-tools, which is codified under
{¶18} On appeal, Carpenter argues only that there is insufficient evidence that he possessed the heroin, cocaine, or criminal tools. Because it is the only element that Carpenter challenges on appeal, we will review the sufficiency of the evidence supporting only as to whether he possessed the heroin, cocaine, and criminal tools.
{¶19} “‘Possess’ or ‘possession’ means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance
{¶20} Carpenter challenges the sufficiency of the evidence as to his possession-of-heroin convictions under Counts One and Three of the superseding indictment, possession-of-cocaine conviction under Count Nine, and possession-of-criminal-tools conviction under Count Ten.3 Carpenter contends that his possession-of-heroin, -cocaine, and -criminal-tools convictions are based on insufficient evidence because the State failed to prove that he actually possessed those items. However, in his analysis, Carpenter ignores the doctrine of constructive possession. Indeed, “[p]ossession of drugs can be either actual or constructive.” State v. Bustamante, 3d Dist. Seneca Nos. 13-12-26 and 13-13-04, 2013-Ohio-4975, ¶ 25, citing State v. Cooper, 3d Dist. Marion No. 9-06-49, 2007-Ohio-4973, ¶ 2, citing State v. Wolery, 46 Ohio St.2d 316, 329 (1976) and State v. Haynes, 25 Ohio St.2d 264 (1971).
{¶21} “‘A person has “actual possession” of an item if the item is within his immediate physical possession.‘” Id., quoting State v. Williams, 4th Dist. Ross No.
{¶22} Viewing the evidence in a light most favorable to the prosecution, we conclude that Carpenter‘s possession-of-heroin, -cocaine, and -criminal-tools convictions under Counts One, Three, Nine, and Ten are supported by sufficient evidence. A rational trier of fact could have found that Carpenter had constructive possession of the heroin discovered on August 1 (Country Club Inn & Suites) and
{¶23} In our review of the record, the State presented sufficient evidence that Carpenter exercised dominion and control over the heroin discovered on August 1, 2015. The heroin, discovered in Carpenter‘s hotel room, was found in close proximity to Carpenter. State v. Townsend, 2d Dist. Montgomery No. 18670, 2001 WL 959186, *3 (Aug. 24, 2001) (“Although mere presence in the vicinity of drugs does not prove dominion and control, readily accessible drugs in close proximity to an accused may constitute sufficient circumstantial evidence to support a finding of constructive possession.“), citing State v. Scalf, 126 Ohio App.3d 614, 620 (8th Dist.1998). Carpenter was the only person found inside that hotel room at the time the heroin was discovered in plain sight on the floor of that room. See State v. Wilson, 8th Dist. Cuyahoga No. 102231, 2015-Ohio-4979, ¶ 32 (concluding that Wilson exercised constructive possession over drugs discovered in his hotel room because, in part, Wilson was found in the hotel room with the drugs); State v. Williams, 190 Ohio App.3d 645, 2010-Ohio-5259, ¶ 15 (10th Dist.) (“The cocaine
{¶24} Moreover, Carpenter exhibited some authority or control over the hotel room when he invited Officer Nate Elliott (“Officer Elliott“), formerly of the Fostoria Police Department, into the room and consented to it being searched by Officer Elliott. See Williams at ¶ 15 (noting that, because Williams “was the person who answered the door when the marshals knocked,” it suggested “that he had some authority over or control of the hotel room“). And, importantly, Carpenter never contested that the heroin belonged to him; rather, he informed Officer Elliott that he did not use drugs—an implication that he was aware that the bag on the floor contained drugs. See State v. Pierce, 3d Dist. Paulding No. 11-09-05, 2010-Ohio-478, ¶ 31 (concluding that Pierce exercised dominion and control over a vehicle, and consequently cocaine found in the vehicle, in part, because of “his knowledge of the contents of that vehicle, particularly the glove box“); Townsend at *3 (concluding that Townsend exercised dominion and control over cocaine, in part, because he “appeared to be ‘“conscious of the presence of the [cocaine].” ’ “),
{¶25} For these reasons, we conclude that a rational trier of fact could conclude beyond a reasonable doubt that Carpenter constructively possessed the heroin. Consequently, Carpenter‘s possession-of-heroin conviction under Count One is based on sufficient evidence.
{¶26} The State also presented sufficient evidence that Carpenter constructively possessed the heroin discovered on August 31, 2015. Officer Elliott informed the jury that he saw Carpenter outside of the residence located at 825 South Main Street, chased him around the residence, and eventually caught him as he was entering Apartment A. Similar to our discussion of Carpenter‘s heroin possession under Count One, Carpenter being found in proximity to Apartment A of 825 South Main Street (where the heroin was discovered) may not conclusively establish that he possessed the heroin discovered at that residence; rather, it is one fact that the State offered to prove that Carpenter constructively possessed the heroin found therein. See State v. Durr, 4th Dist. Scioto No. 11CA3411, 2012-Ohio-4691, ¶ 46 (noting that a defendant‘s “‘[m]ere presence in the vicinity of illegal drugs, coupled with another factor or factors probative of dominion or control over the contraband, may establish constructive possession‘“), quoting State v. Riggs, 4th Dist. Washington No. 98CA39, 1999 WL 727952, *5 (Sept. 13, 1999).
{¶27} In this case, in addition to Carpenter being in proximity of the South Main Street apartment where the heroin was discovered, the State also presented evidence that: (1) law enforcement was surveilling that location for evidence of drug trafficking; (2) law enforcement knew that Carpenter resided at the residence with Makyla La Salle Parker (“Parker“); and (3) law enforcement did not suspect that Parker was trafficking drugs. In addition, Officer Elliott informed the jury that he discovered narcotics on Jonathan Zickefoose (“Zickefoose“) subsequent to stopping Zickefoose after observing Zickefoose go to the South Main Street residence.
{¶28} Moreover, Officer Elliott described for the jury the vast amount of drug evidence that law enforcement discovered in the residence. (See State‘s Ex. 15). Compare Durr at ¶ 51 (“‘The presence of such a vast amount of drug evidence in the [house] supports an inference that [Durr] knew about the presence of the drugs and the he * * * exercised control over each of the items found.‘“), quoting Riggs at *5, citing State v. Soto, 8th Dist. Cuyahoga No. 57301, 1990 WL 145651 (Oct. 4, 1990). Considering the totality of that evidence, the jury could infer that Carpenter knew that there were controlled substances in the residence and that he was capable of exercising dominion and control over those substances, including the heroin. Durr at ¶ 51; State v. Miller, 9th Dist. Wayne No. 1911, 1984 WL 4736, *3 (Feb. 1, 1984) (rejecting Miller‘s sufficiency-of-the-evidence argument that the State failed
{¶29} As to Counts Nine and Ten, the State presented sufficient evidence that Carpenter possessed cocaine and criminal tools as alleged in the superseding indictment. Officer Elliott explicitly stated that law enforcement was certain that Carpenter was present and utilizing Room 14 of the Fostoria Motel prior to executing the October 15, 2015 search warrant of the room. Further, Breech testified that she obtained the heroin, which led to her overdose, at Room 14 of the Fostoria Motel from an individual known to her as TC—whom Breech identified in the courtroom as Carpenter. Breech testified that she contacted Carpenter at a phone number known to law enforcement as belonging to Carpenter.
{¶30} Moreover, similar to the vast amount of drug evidence discovered as a result of the August 31, 2015 search warrant, law enforcement discovered a vast amount of drug evidence in Room 14, including the cocaine and digital scale at issue pursuant to the October 15, 2015 search warrant. See Durr at ¶ 51. Officer Elliott described to the jury how drug traffickers utilize digital scales to weigh and traffic drugs and told the jury that drug residue was found on the digital scale. Thus, based
{¶31} Next, Carpenter challenges the sufficiency of the evidence supporting his trafficking convictions.5 Carpenter was convicted under
(A) No person shall knowingly do any of the following:
* * *
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.
A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.
{¶32} Carpenter argues only that there is insufficient evidence that “he knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed any illegal narcotics.” (Appellant‘s Brief at 26, 29). Thus, we will address only those two elements of the offense.
{¶33} We conclude that the State presented sufficient circumstantial evidence that Carpenter knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution or distributed the controlled substances at issue. “‘Circumstantial evidence has long been used to successfully support drug trafficking convictions.‘” State v. Delaney, 9th Dist. Summit No. 28663, 2018-Ohio-727, ¶ 11, quoting State v. Washington, 6th Dist. Ottawa No. OT-12-032, 2014-Ohio-1008, ¶ 36. “‘[T]he convergence of illegal drugs, drug paraphernalia (including baggies), and large sums of cash permit a reasonable inference that a person was preparing drugs for shipment.‘” Id., quoting State v. Fry, 9th Dist. Summit No. 23211, 2007-Ohio-3240, ¶ 50, and citing State v. Rutledge, 6th Dist. Lucas No. L-12-1043, 2013-Ohio-1482, ¶ 15 (collecting cases and stating that “numerous courts have determined that items such as plastic baggies, digital scales,
{¶34} First, Officer Elliott testified that the evidence discovered in Room 14 of the Fostoria Motel on October 15, 2015 is indicative of drug trafficking. He specifically described the drugs found in close proximity to the digital scale, the bindles of drugs that were packaged for sale, and the torn lottery paper, indicating that drugs had already left the premises.6 Compare id. at ¶ 12; Rutledge at ¶ 15; State v. Little, 9th Dist. Lorain No. 09CA009539, 2010-Ohio-101, ¶ 16.
{¶35} Next, similar to Officer Elliott‘s testimony regarding the October 15, 2015 search warrant, Detective Brandon Bell (“Detective Bell“) of the Fostoria Police Department described the drug evidence discovered through the execution of the April 2, 2016 search warrant as indicative of drug trafficking. Specifically, Detective Bell testified that the scene was indicative of drug trafficking based on the digital scale found in close proximity to drugs, the number of “pinch baggies“—used to package drugs—found, and the notebooks with squares torn out of them. Compare Delaney at ¶ 12; Rutledge at ¶ 15.
{¶36} Third, text messages were discovered in Yarris‘s phone (between Yarris and Carpenter) reflecting a conversation from April 1, 2016 appearing to
{¶37} Further, Mary Jane testified that she drove Yarris to his father‘s office, then drove him to Royal‘s Pizza, which is located at the intersection of Union and Elm Streets in Fostoria. She further testified that she waited in her vehicle on Union Street and watched Yarris walk toward Elm Street, eventually returning to the vehicle after five-to-ten minutes when Yarris requested Mary Jane immediately drive him to an Arby‘s restaurant—the location where he was found dead.
{¶38} As we noted from Detective Bell‘s testimony, drug-trafficking evidence was found at that location as a result of the search warrant executed on April 2, 2016. Based on that evidence, the jury could infer that Carpenter knowingly sold or offered to sell Yarris a controlled substance. Compare State v. Wilkinson, 8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 28, 32 (concluding that Wilkinson‘s trafficking conviction was based on sufficient evidence, in part, because “the state presented evidence of cryptic, short-worded text messages sent between Wilkinson and Marcus that would lead a reasonable person to infer that the subject matter pertained to the delivery of the parcel“).
{¶39} Viewing this evidence in a light most favorable to the State, Carpenter‘s trafficking convictions are based on sufficient evidence.
{¶40} Next, Carpenter argues that his corrupting-another-with-drugs convictions under Counts Five and Fifteen of the superseding indictment are based on insufficient evidence because the State presented insufficient evidence (1) that Breech suffered serious physical harm and (2) that the compound containing fentanyl that Carpenter sold Yarris independently caused Yarris to suffer serious physical harm.
(A) No person shall knowingly do any of the following:
* * *
(3) By any means, administer or furnish to another or induce or cause another to use a controlled substance, and thereby cause serious physical harm to the other person, or cause the other person to become drug dependent.
{¶42} We begin by addressing Carpenter‘s argument that there is insufficient evidence that Breech suffered serious physical harm. Because it is the only element that Carpenter challenges with respect to his conviction under Count Five, we will address only the serious-physical-harm element of the offense. “Serious physical harm” means “[a]ny physical harm that carries a substantial risk of death” and “[a]ny physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity.”
{¶43} The State presented sufficient evidence that Breech suffered serious physical harm—that is, it is undisputed that Breed suffered a non-lethal overdose. See State v. Johnson, 3d Dist. Crawford No. 3-10-14, 2010-Ohio-6064, ¶ 32 (concluding that Johnson‘s corrupting-another-with-drugs conviction was based on sufficient evidence because the State presented sufficient evidence that the victim
{¶44} Next, because it is necessary for the resolution of Carpenter‘s argument regarding his corrupting-another-with-drugs conviction under Count Fifteen, we must address Carpenter‘s sufficiency-of-the-evidence argument as to his involuntary-manslaughter conviction under Count Sixteen.
{¶46} The predicate-felony offense in this case is aggravated trafficking in drugs under
{¶48} In its decision in Burrage, the United States Supreme Court addressed a federal sentencing-enhancement statute, which imposes “a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when ‘death or serious bodily injury results from the use of such substance.‘” Id. at ¶ 20, quoting
{¶49} Here, we part ways with the Fifth District‘s application of the Supreme Court‘s holding in Burrage and reject Carpenter‘s argument that he cannot be convicted of involuntary manslaughter or corrupting another with drugs. First, the Supreme Court‘s interpretation of a federal statute is not binding on this court‘s interpretation of Ohio statutes; rather, those interpretations are merely persuasive authority in interpreting similar Ohio statutes. See State v. Phillips, 27 Ohio St.2d 294, 298 (1971); State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, ¶ 31. We are unpersuaded that the Supreme Court‘s holding in Burrage is applicable to this case. Not only is the federal statute at issue in Burrage different from Ohio‘s
{¶50} Foremost, the statute at issue in Burrage involved a sentencing-enhancement statute. See, e.g., State v. Christman, 160 Wash.App. 741, 751-752, 249 P.3d 680 (2011) (“These cases are unhelpful to our analysis, however, because they involve the distinguishable context of sentencing enhancements.“). See Kosto
{¶51} Next, it is well established that Ohio law generally defines “cause” in criminal cases identically to the definition of “proximate cause” in civil cases. See, e.g., State v. Emerson, 2d Dist. Darke Nos. 2015-CA-24 and 2016-CA-1, 2016-Ohio-8509, ¶ 24. See State v. Jacobs, 8th Dist. Cuyahoga No. 51693, 1987 WL 10047, *2 (Apr. 23, 1987) (“It is merely a matter of semantics that criminal cases are ‘cause’ and ‘result’ and civil cases use ‘proximate cause’ and ‘proximate result.’ They mean the same thing. In fact,
{¶52} There are several tests for actual causation, the most common of which is the “but for” test; however, there are circumstances under which the “but for” test is inapplicable and an act or omission can be considered a cause in fact if it was a “substantial” or “contributing” factor in producing the result. See Hall at ¶ 72-73; Emerson at ¶ 24; Burrage at 215; Christman at 755. See also State v. Wilson, 10th Dist. Franklin No. 03AP-592, 2004-Ohio-2838, ¶ 18 (“The injuries inflicted
{¶53} The second component of causation—the legal or “proximate” cause—refers to the foreseeability of the result. See Katz, Martin, & Macke, Baldwin‘s Ohio Practice, Criminal Law, Section 96:4 (3d Ed.2018). See also Hall
{¶54} We conclude that the Fifth District‘s decision in Kosto fails to address the standard of causation applied to crimes in Ohio. That is, the Fifth District failed
{¶55} First, when construing the evidence in a light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that the compound containing fentanyl (that Carpenter sold Yarris) caused Yarris to suffer serious physical harm. Compare State v. Johnson, 3d Dist. Crawford No. 3-10-14, 2010-Ohio-6064, ¶ 8 (rejecting Johnson‘s argument that his corrupting-another-with drugs conviction was based on insufficient evidence “because the State failed to demonstrate that the heroin was the direct cause of [the victim‘s] serious physical harm [since the victim] had multiple drugs in her system at the time of her overdose, and the medical expert witnesses would not definitely say the heroin caused the overdose“). Specifically, Carpenter‘s conduct in selling
{¶56} Moreover, it is generally accepted that “[t]he possibility of overdose is a reasonably foreseeable consequence of the sale of heroin.” State v. Patterson, 11th Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶ 91. See State v. Veley, 6th Dist. Lucas No. L-16-1038, 2017-Ohio-9064, ¶ 30; State v. Wells, 12th Dist. Warren No. CA2016-02-009, 2017-Ohio-420, ¶ 39, citing Patterson at ¶ 80-95 and State v. Zusman, 11th Dist. Lake No. 2014-L-087, 2015-Ohio-3218.
{¶57} Therefore, a rational trier of fact could have found that Carpenter created a substantial risk of death or a risk of some permanent incapacity by selling Yarris the compound containing fentanyl, and such act was a contributing cause of Yarris‘s death. Compare Emerson, 2016-Ohio-8509, at ¶ 25 (concluding that
{¶58} Second, the evidence that Carpenter caused Yarris‘s death is even more compelling based on the way in which the General Assembly drafted Ohio‘s involuntary-manslaughter statute. See, e.g., State v. Chambers, 53 Ohio App.2d 266, 269 (9th Dist.1977) (“We hold that a proper interpretation of the Ohio statute necessitates our finding that, in enacting
{¶59} Likewise, the trial court instructed the jury, without objection, with Ohio Jury Instruction 417.23 and 417.25 as follows:
Cause is an act which in a natural and continuous sequence directly produces the death and without which it would not have occurred.
Natural consequences. The defendant‘s responsibility is not limited to the immediate or most obvious result of the defendant‘s act. The defendant is also responsible for the natural and foreseeable results that follow in the ordinary course of events from the act.
Other causes not a defense. There may be one or more causes of an event. However, * * * [i]f a defendant‘s act was one cause then the existence of other causes is not a defense.
(Apr. 25, 2018 Tr., Vol. III, at 513). (See Doc. No. 136). See also Emerson, 2016-Ohio-8509, at ¶ 22.
{¶60} Accordingly, despite the evidence that Yarris‘s death was caused by the combined-drug toxicity of fentanyl and Xanex as the principle agents, we conclude that the State presented sufficient evidence that Carpenter caused Yarris‘s death as the proximate result of selling Yarris the compound containing fentanyl. See Emerson at ¶ 23 (stating that “we need not resolve whether Emerson‘s singular act was the only cause of any lethal combination of drugs in [the victim‘s] system“).
{¶61} Moreover, that Dr. Forney testified that Yarris‘s cause of death was caused by the combined-drug toxicity of fentanyl and Xanex as the principle agents does not negate that an ordinarily prudent person could reasonably anticipate that an overdose death is a likely result of selling substances containing fentanyl. See Sabo, 2010-Ohio-1261, at ¶ 27 (“While [the victim‘s] death was the result of the effects of taking multiple drugs, and neither expert could pinpoint which exact drug caused [the victim‘s] death, we believe that a fatal consequence was within the foreseeable scope of risk created by Sabo‘s conduct * * *.“); Patterson, 2015-Ohio- 4423, at ¶ 91. See also State v. Shoemaker, 3d Dist. Union No. 14-06-12, 2006-Ohio-5159, ¶ 68 (concluding that 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.“).
{¶62} Further, this court and other appellate jurisdictions in Ohio have rejected arguments contending that it was unforeseeable for the offender to have known that the victim had toxic levels of other significant drugs in their system when the offender provided the drug at issue. See, e.g., Sabo at ¶ 27; Vogt, 2018-Ohio-4457, at ¶ 105 (“Other Ohio courts have consistently found that the possibility of an overdose is a reasonably foreseeable consequence of providing a controlled substance to another.“); Wells, 2017-Ohio-420, at ¶ 39 (“There is nothing extraordinary or surprising about the manner of [the victim‘s] death in relation to appellant‘s actions. Appellant provided drugs to a known drug abuser. The possibility of an overdose is a reasonably foreseeable consequence of providing a controlled substance to another.“); Veley, 2017-Ohio-9064, ¶ 25, 30. See also State v. Luce, 5th Dist. Ashland No. 17 COA 040, 2018-Ohio-3865, ¶ 30 (rejecting Luce‘s argument that the victim‘s overdose-death from a compound containing Carfentanil that Luce provided the victim was not foreseeable since Luce “‘only’ sought to sell [the victim] heroin” because Luce “was still choosing to engage in the dangerous and illegal business of street-level trafficking in controlled substances“).
{¶64} Having concluded that Carpenter‘s possession-of-heroin, -cocaine, and -criminal-tools, trafficking, corrupting-another-with-drugs, and involuntary-manslaughter convictions are based on sufficient evidence, we next address Carpenter‘s arguments that his possession-of-heroin, -cocaine, and -criminal-tools, trafficking, corrupting-another-with-drugs, and involuntary-manslaughter convictions are against the manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76.
Manifest Weight of the Evidence Analysis
{¶65} The evidence we summarized in our sufficiency-of-the-evidence analyses supporting Carpenter‘s possession-of-heroin, -cocaine, and -criminal-tools, trafficking-in-drugs, corrupting-another-with-drugs, and involuntary-manslaughter convictions is weightier than the evidence against those convictions. First, regarding Carpenter‘s possession convictions, Carpenter makes many of the
{¶66} We conclude that the jury could reasonably infer from the evidence presented at trial that Carpenter exercised dominion and control over the heroin, cocaine, and criminal tools. “A jury can make reasonable inferences from the evidence.” State v. Knight, 10th Dist. Franklin No. 16AP-288, 2016-Ohio-8134, ¶ 26. “‘It is permissible for a jury to draw inferences from the facts presented to them.‘” Id., quoting State v. Sanders, 6th Dist. Lucas No. L-96-379, 1998 WL 78787, *3 (Feb. 13, 1998), citing State v. Palmer, 80 Ohio St.3d 543, 561 (1997). “‘The weight given to an inference is a question for the trier of fact and will not be
{¶67} Next, although Carpenter contends that his trafficking-in-drugs convictions under Counts Eight, Eleven, Twelve, and Fourteen are against the manifest weight of the evidence, his argument pertains to the sufficiency of the
{¶68} Turning to Carpenter’s corrupting-another-with-drugs and involuntary-manslaughter convictions, Carpenter challenges the weight of the
{¶69} In support of his argument (that his corrupting-another-with-drugs conviction under Count Five is against the manifest weight of the evidence), Carpenter argues that the evidence that Breech (1) was not administered Narcan; (2) “was lucid enough to sign a consent to search her phone”; and (3) “was merely observed for two hours and then discharged” “upon her admission to the hospital” weighs against the evidence that Breech suffered serious physical harm.8 That evidence does not outweigh the evidence we summarized in our sufficiency-of-the-evidence analysis that Breech suffered serious physical harm. Indeed, that evidence does little to negate Dr. Bruss’s expert-medical opinion that Breech’s overdose carried a substantial risk of death or involved some temporary, substantial incapacity. See Stewart, 2018-Ohio-2245, at ¶ 28. Therefore, we conclude that Carpenter’s corrupting-another-with drugs conviction under Count Five is not against the manifest weight of the evidence.
{¶71} Carpenter’s second and third assignments of error are overruled.
Assignment of Error No. I
The Trial Court erred in its rulings denying Appellant’s [1A] Motion to Separate Trials and to Dismiss Indictments, [1B] Motion to Dismiss for Improper Venue, and [1C] Motion to Suppress, which unfairly prejudiced the Appellant and denied the Appellant a fair trial.
Joinder
{¶73} Regarding his separate-trials argument, Carpenter argues that the trial erred by denying his motion to sever or dismiss the superseding indictment because he “was prejudiced by the joinder of offenses in the two indictments.” (Appellant’s Brief at 19).10 He contends that he was prejudiced because
the State of Ohio was able to present evidence of both weaker charges (Counts 1-3 and 8-10) and stronger charges (Counts 4-4 and 11-16) together and so, the joinder of these separate and distinct weaker and stronger evidentiary offenses unfairly prejudiced him.
(Id. at 20).
Standard of Review
{¶75} “Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to the witnesses.” State v. Schaim, 65 Ohio St.3d 51, 58 (1992). See also State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 169 (establishing that it is well settled that the law favors joinder). “But there are limits governing the charging of multiple offenses in the same indictment.” State v. Jeffries, 1st Dist. Hamilton No. C-170182, 2018-Ohio-2160, ¶ 49.
{¶76}
State v. Kennedy, 1st Dist. Hamilton No. C-120337, 2013-Ohio-4221, ¶ 23, quoting
{¶77} “Where joinder is not appropriate under
{¶78} “If similar offenses are properly joined pursuant to
{¶79} Generally, we review a trial court’s decision on a motion to sever under
{¶80} “However, a defendant’s failure to renew his or her
Analysis
{¶81} Carpenter’s offenses were not misjoined in contravention of
{¶83} Further, the evidence is direct and uncomplicated and, as we concluded in Carpenter’s second assignment of error, also sufficient to sustain each verdict of guilty by the jury. See State v. Torres, 66 Ohio St.2d 340, 344 (“The evidence in the instant case, however, not only was direct and uncomplicated as to each indictment, but it also was amply sufficient to sustain each verdict, whether or
{¶84} Moreover, the trial court specifically instructed the jury to “consider each count and the evidence applicable to each count separately, and [to] state [the] finding as to each count uninfluenced by [the] verdict as to the other count” because “each count in the indictment constitute [sic] a separate and distinct matter.” (Apr. 25, 2018 Tr., Vol. III, at 514). Compare Thomas at ¶ 24. See Torres at 343 (“We find no merit in this claim because the jury is believed capable of segregating the proof on multiple charges when the evidence as to each of the charges is uncomplicated.”).
Motion to Dismiss
{¶86} Next, Carpenter argues that the trial court erred by denying his motion to dismiss the superseding indictment based on improper venue. In particular, he contends that the trial court should have dismissed the indictment because he was prejudiced by “the admission of testimony and/or evidence at trial regarding Counts 1, 5, and 14-16 * * * since the alleged activity surrounding those counts occurred primarily in Hancock County.” (Appellant’s Brief at 21).
Standard of Review
{¶87} “A motion to dismiss charges in an indictment tests the sufficiency of the indictment, without regard to the quantity or quality of evidence that may be produced by either the State or the defendant.” State v. Balo, 3d Dist. Allen No. 1-10-48, 2011-Ohio-3341, ¶ 35, citing State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, ¶ 37 (8th Dist.). “A reviewing court must examine the face of the charging instrument to determine its sufficiency.” Id., citing State v. Egler, 3d Dist. Defiance No. 4-07-22, 2008-Ohio-4053, ¶ 14, State v. Desote, 3d Dist. Putnam Nos. 12-03-05 and 12-03-09, 2003-Ohio-6311, ¶ 8, and Eppinger at ¶ 37.
Analysis
{¶89} “‘Venue commonly refers to the appropriate place of trial for a criminal prosecution within a state.’” Potee, 2017-Ohio-2926, at ¶ 22, quoting State v. Stone, 12th Dist. Warren No. CA2007-11-132, 2008-Ohio-5671, ¶ 16, citing State v. Meridy, 12th Dist. Clermont No. CA2003-11-091, 2005-Ohio-241, ¶ 12. “‘While venue is not a material element of an offense, the State must prove venue beyond a reasonable doubt unless it is waived by the defendant.’” State v. Young, 9th Dist. Lorain No. 15CA010803, 2017-Ohio-1400, ¶ 13, quoting State v. Simpson, 9th Dist. Summit No. 21475, 2004-Ohio-602, ¶ 72. See also
{¶90} Under
[w]hen an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred.
State v. Armengau, 10th Dist. Franklin No. 14AP-679, 2017-Ohio-4452, ¶ 111, citing
{¶91} “Because venue is neither a jurisdictional nor a material element of a criminal offense, the indictment is only required to contain an allegation that the offense was committed within the jurisdiction of the court.” Armengau at ¶ 107, citing State v. Andrews, 148 Ohio App.3d 92, 95 (10th Dist.2002). “Even when multiple offenses are alleged in an indictment, an indictment is not rendered invalid where the ‘place has been stated once therein.’” Id., quoting State v. Williams, 53 Ohio App.3d 1 (10th Dist.1988), paragraph two of the syllabus.
“[B]ecause venue is a fact that must be proven beyond a reasonable doubt by the State, a pretrial motion challenging venue is not appropriate. A defendant may only challenge venue prior to trial if it
equates to an actual defect in the indictment, for example, if the indictment fails to allege venue.”
Young at ¶ 13, quoting State v. Reed, 9th Dist. Medina No. 07CA0026-M, 2008-Ohio-1880, ¶ 14. See also Simpson at ¶ 73.
If the indictment is not defective for failure to allege venue, “a defendant may only raise the issue of improper venue at trial via a
Crim.R. 29 motion for acquittal, and may later appeal that decision, like any jury determination of fact, based on either the sufficiency of the evidence or manifest weight.”
Young at ¶ 13 quoting Simpson at ¶ 74.
{¶92} On appeal, Carpenter does not challenge the sufficiency or the weight of the evidence supporting venue. Indeed, Carpenter failed to raise the issue of improper venue at trial through a
Motion to Suppress
{¶93} Third, Carpenter argues that the trial court erred by denying his motion to suppress evidence. Specifically, he argues that there was insufficient evidence of probable cause to issue the search warrants and that evidence of the illegal searches should be suppressed. This is another argument in which Carpenter failed to comply with the Rules of Appellate Procedure by presenting the reasons in support of his contention that the search warrants were issued without sufficient evidence of probable cause with citations to the authorities, statutes, and parts of the record on which he relies. See State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting
Standard of Review
{¶94} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
Analysis
{¶95} “The Fourth Amendment to the United States Constitution requires that warrants issue only ‘upon probable cause.’” State v. Gonzales, 3d Dist. Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18. “Probable cause ‘means less than evidence which would justify condemnation,’ so that only the ‘probability, and not a prima facie showing of criminal activity is the standard of probable cause.’” Id., quoting State v. George, 45 Ohio St.3d 325, 329 (1989). “To search for evidence of a crime there must ‘be a nexus * * * between the item to be seized and criminal behavior’ as well as ‘cause to believe that the evidence sought will aid in a particular apprehension or conviction.’” Id., quoting Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).
When determining “the sufficiency of probable cause in an affidavit submitted to support a search warrant, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him including “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’”
Id. at ¶ 19, quoting George at paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239 (1983).
A reviewing court should not conduct a de novo review of [the issuing authority’s] determination of probable cause. Rather, “the duty of a reviewing court is simply to ensure that the [issuing authority] had a substantial basis for concluding that probable cause existed,” according “great deference to the [issuing authority’s] determination of probable cause” and resolving “doubtful or marginal cases in this area * * * in favor of upholding the warrant.”
Id., quoting George at paragraph two of the syllabus.
{¶96} “In sum, on appeal, when we are reviewing the issuing [authority’s] determination of probable cause, the review is limited to ensuring that the [issuing authority] ‘had a substantial basis for concluding that probable cause existed.’” Id. at ¶ 19, quoting State v. Garza, 3d Dist. Henry No. 7-13-04, 2013-Ohio-5492, ¶ 19, citing George.
{¶97} On appeal, Carpenter challenges whether that the affidavits in support of the August 31, 2015, October 15, 2015, and April 2, 2016 search warrants were sufficient for the issuing judge to conclude that there was a substantial basis that probable cause existed. Contrary to Carpenter’s argument, the search-warrant
{¶98} Specifically, the affidavit used in supporting the issuance of the August 31, 2015 search warrant contains ample information related to law enforcement’s investigation of Carpenter for illegal-drug activity at 825 South Main Street, Apartment A, in Fostoria. (See State’s Suppr. Ex. 3). In particular, Officer Elliott attested that law enforcement received reports that Carpenter was distributing crack cocaine and heroin in Fostoria; that Carpenter resided at 825 South Main Street, Apartment A; and that crack cocaine and heroin were being sold from 825 South Main Street, Apartment A.
{¶99} Likewise, in addition to the information supporting the August 31, 2015 search warrant, Officer Elliott’s affidavit relative to the October 15, 2015 search warrant reflects law enforcement’s continued investigation of Carpenter for illegal-drug activity in Fostoria subsequent to the execution of the August 31, 2015 search warrant. (See State’s Suppr. Ex. 6). In particular, the affidavit contains a substantial amount of information that Carpenter was engaging in illegal-drug activity at Room 14 of the Fostoria Motel. Further, Officer Elliot’s affidavit sets forth that he observed Carpenter exiting Room 14 of the Fostoria Motel on October
{¶100} Finally, Detective Bell’s affidavit used to secure the April 2, 2016 search warrant reflects the drug-evidence discovered as part of the August 31 and October 15, 2015 search warrants as well as information related to law enforcement’s continued investigation of Carpenter for drug-related activity since the October 15, 2015 search-warrant execution. (See State’s Suppr. Ex. 9). Detective Bell specifically avers in his affidavit that reliable confidential informants purchased heroin from Carpenter at 415 1/2 North Main Street in Fostoria in January 2016; that Carpenter took up residence at 621 North Union Street in Fostoria after he was evicted from 415 1/2 North Main Street on February 4, 2016; that a confidential informant purchased heroin from Carpenter at 621 North Union Street; and that law enforcement suspected that Carpenter sold Yarris the heroin which led to Yarris’s overdose death.
{¶101} Based on the totality of the circumstances, we conclude that there is sufficient evidence in the affidavits for the issuing judge to conclude that there was a substantial basis that probable cause existed. Gonzales, 2014-Ohio-557, at ¶ 26. Therefore, the trial court did not err by denying Carpenter’s motion to suppress evidence.
{¶102} Finally, Carpenter argues that the cumulative effect of the trial courts errors denied him a fair trial.
Standard of Review
{¶103} “Under [the] doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial court error does not individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 222-224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “To find cumulative error, a court must first find multiple errors committed at trial and determine that there is a reasonable probability that the outcome below would have been different but for the combination of the harmless errors.” State v. Stober, 3d Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist. Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36.
Analysis
{¶104} Because we found no error as alleged by Carpenter in his first assignment of error, the doctrine of cumulative error does not apply. State v. Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110.
{¶105} Carpenter’s first assignment of error is overruled.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
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