STATE OF OHIO, PLAINTIFF-APPELLEE, v. GREGORY RICHARD, JR., DEFENDANT-APPELLANT.
CASE NO. 9-20-36
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
August 30, 2021
[Cite as State v. Richard, 2021-Ohio-2980.]
Appeal from Marion County Common Pleas Court Trial Court No. 18-CR-150 Judgment Affirmed
APPEARANCES:
William T. Cramer for Appellant
Nathan R. Heiser for Appellee
{1} Defendant-appellant, Gregory Richard, Jr. (“Richard“), appeals the September 23, 2020 judgment entry of sentence of the Marion 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 April 2016 overdose of Halee Hull (“Hull“) and the October 17, 2017 overdose death of Todd Thompson (“Thompson“) in Marion County.1 On April 5, 2018, the Marion County Grand Jury indicted Richard on Count One of trafficking in heroin in violation of
{3} On June 19, 2019, under a superseding indictment, the Marion County Grand Jury indicted Richard on an additional count of corrupting another with drugs in violation of
{4} On July 11, 2019, under a second superseding indictment, the Marion County Grand Jury indicted Richard on twenty-five counts: Count One of engaging in a pattern of corrupt activity in violation of
{5} On July 17, 2019, under a supplemental indictment, the Marion County Grand Jury indicted Richard on forfeiture specifications as to Counts One through Three and Five through Twenty-Five. (Doc. No. 108). Richard appeared for arraignment on July 22, 2019 and entered pleas of not guilty to the supplemental
{6} On July 23, 2019, Richard filed a motion to dismiss Counts Five through Thirteen and Counts Sixteen through Twenty-One, which the State opposed. (Doc. Nos. 129, 131, 132, 144). On July 26, 2019, the trial court granted Richard‘s motion to dismiss Counts Five through Thirteen and Counts Sixteen through Twenty-One of the second superseding indictment, and dismissed those counts. (Doc. No. 148). Also that day, Richard filed a motion for separate trials under
{7} On August 10, 2020, the State filed a motion to dismiss Counts One and Twenty-Five. (Doc. No. 392). (See also Aug. 14, 2020 Tr., Vol. IV, at 736). The next day, the trial court (by agreement of the parties) dismissed Counts One and Twenty-Five and amended the indictment as follows: Counts One, Four, and Six to trafficking in heroin in violation of
{8} Also on August 10, 2020, Richard filed a motion to dismiss the amended second superseding indictment alleging a violation of his speedy-trial rights, which the trial court denied. (Doc. No. 399); (Aug. 12, 2020 Tr., Vol. II, at 179). The case proceeded to a jury trial on August 11-17, 2020. (Doc. No. 448). On August 17, 2020, the jury found Richard guilty of Counts Four, Five, Eight, but not guilty of Counts One, Two, Three, Six, and Nine of the amended second superseding indictment. (Doc. Nos. 428, 429, 430, 431, 432, 433, 434, 435).
{9} On September 22, 2020, the trial court sentenced Richard to 11 months in prison on Count Four, 5 years in prison on Count Five, and 7 years in prison on Count Eight. (Doc. No. 458). The trial court ordered that Richard serve the terms imposed as to Counts Four and Five concurrently, and further ordered that those concurrent terms be served consecutively to the term imposed as to Count Eight, for a total aggregate sentence of 12 years in prison. (Id.).2 The trial court further ordered the currency identified in the forfeiture specifications forfeited. (Id.). (See also Sept. 22, 2020 Tr. at 19).
{10} Richard filed his notice of appeal on October 2, 2020. (Doc. No. 466). He raises five assignments of error for our review. For ease of our discussion, we
Assignment of Error No. I
Appellant‘s rights to a speedy trial under the Sixth Amendment and the Ohio Constitution were violated by post-indictment delay in regard to count seven, corrupting another with drugs.
{11} In his first assignment of error, Richard argues that the trial court erred by denying his motions to dismiss the second superseding indictment (and the amended superseding indictment) alleging a post-indictment delay because his constitutional right to a speedy trial was violated. In particular, Richard contends only that his corrupting-another-with-drugs charge under Count Eight “should be dismissed on speedy trial grounds” since “[t]he original indictment was filed in April 2018 and trial was not held until August 2020, a total of two years and four months,” and he was prejudiced by this delay.3 (Appellant‘s Brief at 12, 16).
Standard of Review
{12} “Appellate review of a trial court‘s decision on a motion to dismiss for a speedy-trial violation involves a mixed question of law and fact.” State v. Westerfield, 3d Dist. Crawford No. 3-17-15, 2018-Ohio-2139, ¶ 17, citing State v. James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, ¶ 23. See also State v. Johnson, 4th Dist. Scioto No. 16CA3733, 2016-Ohio-7036, ¶ 19 (“Furthermore, we review a decision interpreting the [Interstate Agreement on Detainers (“IAD“)] under a de novo standard of review.“). “Accordingly, a reviewing court must give due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence but will independently review whether the trial court correctly applied the law to the facts of the case.” State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 104, quoting State v. Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 20, citing State v. Masters, 172 Ohio App. 3d 666, 2007-Ohio-4229, ¶ 11 (3d Dist.). See also Westerfield at ¶ 17.
Analysis
{13} “An accused is guaranteed the constitutional right to a speedy trial pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and Ohio Constitution, Article I, Section 10.” State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 12, citing State v. Taylor, 98 Ohio St. 3d 27, 2002-Ohio-7017, ¶ 32. “Although ‘statutory and constitutional speedy trial [rights] are [generally] coextensive,’ the constitutional right, as embodied in the Ohio Constitution and the United States Constitution, ‘may be broader than the * * * statutory right’ in some circumstances.” State v. Wagner, 2d Dist. Miami No. 2020-CA-6, 2021-Ohio-1671, ¶ 14, quoting State v. Kadunc, 10th Dist. Franklin No. 15AP-920, 2016-Ohio-4637, ¶ 19.
{15} “However, prior to engaging in any balancing, ‘the court must make a threshold determination concerning the length of [the] delay.‘” Id. at ¶ 26, quoting Adams at ¶ 89. “““Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.““” (Emphasis sic.) Id., quoting State v. Hull, 110 Ohio St. 3d 183, 2006-Ohio-4252, ¶ 23, quoting Barker v. Wingo, 407 U.S. 514, 530 (1972). “A delay becomes presumptively prejudicial as it approaches one year in length.” Adams at ¶ 90, citing Doggett v. United States, 505 U.S. 647, 652 (1992), fn. 1.
{16} In this case, even if we assume without deciding that Richard‘s corrupting-another-with-drugs conviction under Count Eight “relate[s] back to the original April 2018 indictment for purposes of evaluating speedy trial,” Richard‘s constitutional right to a speedy trial was not violated. (Appellant‘s Brief at 11). See Adams at ¶ 84 (noting that “[a] later indictment is not subject to the speedy-trial
{17} Accordingly, we will address the next factor—the reason for the delay. “The inquiry into causation for the delay involves a sliding scale.” Irish at ¶ 31. ““Where the state purposefully causes a delay, hoping to gain some impermissible advantage at trial, this factor would weigh heavily against the state and in favor of dismissal.“” Id., quoting State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, ¶ 19, citing Doggett at 656. “In contrast, where the defendant caused or contributed to the delay, this factor would weigh significantly against
{18} Here, Richard argues that “a large portion of the delay is directly attributable to the State” because it “should not have taken three months” to serve him with the indictment and the warrant and because the State‘s “neglect resulted in another five months of delays” “after Richard filed his IAD motion.” (Appellant‘s Brief at 14). In other words, Richard challenges only the delay between the indictment and the time he arrived in Ohio to face trial. Accordingly, we will address only that period of delay under the second factor. In our review of the second factor, we cannot find any evidence in the record to suggest that the State intentionally caused that delay, even though the State concedes that it may have been negligent in causing some delay during that time period.
{20} Our review of the record reflects that Richard pleaded guilty in a federal case on June 12, 2018 and was sentenced to 21 months in federal prison on June 15, 2018. (Doc. No. 129, Exs. B, C). Thus, and contrary to Richard‘s argument on appeal, we cannot say that the record supports that the State willfully refused to take the appropriate steps to determine Richard‘s location between April and July 2018.
{21} Moreover, we cannot say that the State intentionally caused a delay by failing to respond to Richard‘s IAD motion. “Although codified at
{23} Under the prisoner-initiated procedure outlined in the statute, “a federal prisoner must be brought to trial within 180 days following the delivery of written notice to the appropriate trial court and prosecutor‘s office accompanied by” documentation outlined in Article III(a) of the IAD. (Emphasis added.) State v. Barrett, 191 Ohio App. 3d 245, 2010-Ohio-5139, ¶ 10 (8th Dist.), citing
{25} “[T]he one-hundred-eighty-day time period set forth in
{26} “Under the prosecutor-initiated procedure outlined in the statute, the receiving state has 120 days after the prisoner‘s arrival in the state to bring the prisoner to trial.” Black at ¶ 10, citing
{27} Under either procedure, the IAD requires dismissal of criminal charges in three circumstances: (1) “if a trial is not held in the receiving state ‘prior to the return of the prisoner to the original place of imprisonment‘“; (2) “if the receiving state fails to accept temporary custody of the prisoner after filing a detainer” or (3) “[i]f a prisoner is not brought to trial within the time periods proscribed by Articles III and IV” of the IAD. Black at ¶ 11, quoting
{28} To determine whether Article III or IV of the IAD are applicable to Richard‘s case, we must first determine whether the State lodged a detainer against Richard. See State v. Hornsby, 2d Dist. Montgomery No. 28322, 2020-Ohio-1526, ¶ 11. See also Johnson at ¶ 22. “Although the term ‘detainer’ is not defined in the IAD, the agreement, by its terms, makes the existence of a detainer a prerequisite to its applicability.” Wells, 94 Ohio App. 3d at 53, citing United States v. Mauro, 436 U.S. 340, 347-351 (1978). See also Johnson at ¶ 24 (“The provisions
Given the means employed in Article III to achieve the IAD‘s purpose, the detainer requirement of the IAD is simply to ensure that prison officials in a “sending state” have in fact received official notice of criminal charges pending in another state against an inmate; it is not intended to impose technical requirements regarding the form of that notice, as such technical requirements would frustrate the very purpose of the agreement by rendering it inapplicable in many cases where prison officials have in fact been notified that charges are pending in another state against one of their inmates.
{29} “Further, the history of the IAD reveals that both the drafters of the agreement and the United States Congress had broad and general understandings of what constituted a ‘detainer’ for purposes of the IAD.” Id. Generally, “a detainer is ‘a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when [the] release of the prisoner is imminent.‘” State v. Sanchez, 110 Ohio St. 3d 274, 2006-Ohio-4478, ¶ 19, quoting Carchman, 473 U.S. at 719. See also Black at ¶ 5. However, the United States Supreme Court (referring to the legislative history of the IAD) additionally noted that “detainer may be defined as a warrant filed against a person already in custody with the purpose of insuring that he will be available to the authority which has placed the detainer.” (Citation omitted.) Carchman at 727.
{31} In this case, Richard sent a written notice on January 3, 2019 to only the Marion County Clerk of Courts by ordinary mail.4 (See Doc. No. 9). Importantly, the record reflects that Richard did not send his notice to the Marion County Prosecutor‘s Office. And, because Richard did not send his notice to the Marion County Prosecutor‘s Office, he did not substantially comply with the requirements in the IAD. Accord Levy, 2004-Ohio-4489, at ¶ 32-35 (concluding that Levy did not substantially comply with the requirements in the IAD since Levy mailed his request to only the Cuyahoga County Common Pleas Court clerk‘s office by ordinary mail). Accordingly, Richard did not invoke the provisions of Article III of the IAD. Thus, the provisions of Article III are not applicable to Richard‘s case.
{33} Nevertheless, there is no evidence in the record reflecting that the indictment or the warrant were served on the federal prison at which Richard was incarcerated, and neither presented a request that Richard be held so that he could be transferred into custody in Ohio for trial on the charges against him in Marion County. Compare id. at ¶ 13 (“Additionally, neither the indictment nor the warrant were served on Branchville Correctional Facility, and neither presented a request that Hornsby be held there so that he could later be transferred into custody in Ohio for trial on the charge against him here.“). See also Wells, 94 Ohio App. 3d at 54. “Neither the indictment nor the warrant, therefore, could have functioned as a detainer, because both failed to convey the request that is the defining characteristic
{34} Furthermore, even though the State is under no obligation to lodge a detainer against a defendant who is incarcerated in another state, the State assumes some negligence in attempting to bring Richard to Ohio to face the charges in Marion County. (See Appellee‘s Brief at 8); Kopietz, 2019-Ohio-5277, ¶ 19. See also Black, 142 Ohio St. 3d 332, 2015-Ohio-53, at ¶ 9; Wells, 110 Ohio App. 3d at 281. Specifically, the State concedes that (notwithstanding our conclusion that Richard failed to substantially comply with the requirements of the IAD to invoke the provisions of Article III), the trial court ordered it on January 16, 2019 to respond to Richard‘s January 3, 2019 written notice, and that it failed to respond until April 2019. (Appellee‘s Brief at 8). (See also Doc. Nos. 10, 14).
{35} Nevertheless, instead of proceeding under the prosecutor-initiated provisions of the IAD, the State filed a writ of habeas corpus ad prosequendum on April 18, 2019 with the Federal Bureau of Prisons requesting Richard to be returned to the trial court for purposes of arraignment. (See Doc. Nos. 13, 14, 15). However, this court has previously held that a writ of habeas corpus ad prosequendum does not constitute a detainer as described by the IAD. See State v. Dye, 3d Dist. Crawford No. 3-92-47, 1993 WL 157728, *3-4 (May 14, 1993). See also Mauro, 436 U.S. 340, at syllabus.
{37} Next, under the third factor, we consider Richard‘s assertion of his right to a speedy trial. “““The third factor addresses the timeliness and frequency of the defendant‘s assertions of his speedy-trial right.““” Id. at ¶ 36, quoting State v. Rice, 1st Dist. Hamilton No. C-150191, 2015-Ohio-5481, ¶ 27, citing Barker, 407 U.S. at 529. Here, the record reflects that Richard knew of the charges (at the latest) on July 27, 2018, when he was personally served with a copy of the indictment. (See Doc. No. 8). Yet, Richard failed to assert his right to a speedy trial until January 3, 2019, when he filed his first (defective) written notice attempting to invoke the provisions of Article III of the IAD. Even if the State properly lodged a detainer against Richard (and assuming that Richard‘s written notice was not defective), there is a five-month gap in time for which Richard bears some responsibility. See Rice at ¶ 27, citing State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-4666, ¶ 31. Thus, we conclude that the third factor weighs in the State‘s favor.
{38} Finally, we consider the degree to which Richard was prejudiced by the delay. “In considering the prejudice suffered by a defendant, the Supreme Court of the United States has ‘held that the inquiring court should assess prejudice “in light of the interests the speedy trial right was designed to protect.““” Irish at ¶ 38,
{39} Here, Richard does not allege that his defense was impaired by the delay. Rather, he contends that “the prosecution‘s negligence deprived [him] of the opportunity for concurrent terms, caused him anxiety while waiting in federal prison, and resulted in additional oppressive incarceration after his federal prison term expired.” (Appellant‘s Brief at 16). As to Richard‘s oppressive-incarceration argument, we note that the first interest protected by the right a speedy trial considers only whether Richard was subject to oppressive pretrial incarceration. In
this case, Richard was incarcerated in federal prison in West Virginia during the preponderance of the timeframe relevant to Richard‘s speedy-trial claim. Consequently, Richard was not threatened with the prospect of oppressive pretrial incarceration since his liberty was already severely restrained. Accord Irish at ¶ 42.{¶40} Furthermore, Richard‘s argument that he suffered prejudice because the State‘s delay cost him the possibility to serve the Marion County sentence concurrently with his federal sentence is likewise specious. In general, “the theoretical and speculative loss of the opportunity for [a] defendant to serve the sentence on the pending charge concurrently with the sentence in another case’ is insufficient to constitute substantial prejudice to the defendant.” McCain at ¶ 19, quoting Rice at ¶ 32. See also Spencer at ¶ 37 (“Losing his opportunity to bargain for concurrent sentences is based upon speculation and is not sufficient to show prejudice; there is no constitutional or statutory right to be given concurrent sentences.“), citing State v. Jones, 4th Dist. Ross No. 95CA2128, 1996 WL 312469, *2 (June 4, 1996) and Rice at 32.
{¶41} Finally, we further reject Richard‘s contention that he endured “significant anxiety” from the delay. (Appellant‘s Brief at 15). Richard‘s “blanket statement, without more, that he suffered anxiety caused by the delay is insufficient to show the type of prejudice required for a violation of constitutional speedy-trial rights.” Hubbard, 2015-Ohio-646, at ¶ 23, citing State v. Glass, 10th Dist. Franklin No. 10AP-558, 2011-Ohio-6287, ¶ 26 and State v. Eicher, 8th Dist. Cuyahoga No. 89161, 2007-Ohio-6813, ¶ 33. Altogether, because we conclude that Richard did not show any actual prejudice, the fourth factor weighs heavily in favor of the State. See Irish at ¶ 46.
{¶42} In sum, even though the first and second factors weigh slightly in Richard‘s favor, we conclude that the third and fourth factors weigh more heavily in favor of the State, outbalancing the first and second factors. Thus, after carefully considering the factors, we conclude that the delay in this case does not violate Richard‘s constitutional right to a speedy trial. Therefore, Richard‘s first assignment of error is overruled.
Assignment of Error No. II
Appellant was unfairly prejudiced by the joinder for trial [sic] three separate incidents of alleged drug trafficking.
{¶43} In his second assignment of error, Richard argues that the trial court erred by denying his motion to sever the (later amended) second superseding indictment because he was unfairly prejudiced by joinder of the separate drug offenses for purposes of trial. Specifically, Richard argues that “by presenting all three incidents together, the prosecution was able to gain an unfair advantage from the cumulative effect of all three allegations.” (Appellant‘s Brief at 17). Further, Richard contends that the evidence related to the victims’ overdoses does not constitute admissible evidence for purposes of
Standard of Review
{¶44} “Issues of joinder and severance are generally reviewed under an abuse of discretion standard.” State v. Plott, 3d Dist. Seneca No. 13-15-39, 2017-Ohio-38, ¶ 52. An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶45} “However, a defendant‘s failure to renew his or her
Analysis
{¶46} “In general, the law favors joining multiple offenses in a single trial if the offenses charged ‘are of the same or similar character.‘” State v. Valentine, 5th Dist. Fairfield No. 18 CA 27, 2019-Ohio-2243, ¶ 43, quoting State v. Lott, 51 Ohio St.3d 160, 163 (1990), citing State v. Torres, 66 Ohio St.2d 340 (1981). “Two or more offenses may be charged in the same indictment if they are of ‘the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.‘” Id., quoting
{¶47} “Where joinder is not appropriate under
{¶48} “Nonetheless, if it appears that a criminal defendant would be prejudiced by such joinder, then the trial court is required to order separate trials.” Valentine at ¶ 44, citing
To prevail on a motion to sever, a defendant has the burden of demonstrating that “(1) his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant‘s right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.”
Plott, 2017-Ohio-38, at ¶ 55, quoting State v. Schaim, 65 Ohio St.3d 51, 59 (1992). “A defendant‘s claim of prejudice is negated when: (1) evidence of the other crimes would have been admissible as ‘other acts’ evidence under
{¶49} ““Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.““” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 56, quoting State v. May, 3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶ 69, quoting
{¶50} ““Under the second method, the “joinder” test, the state is merely required to show that evidence of each crime joined at trial is simple and direct.“” Valentine, 2019-Ohio-2243, at ¶ 47, quoting Lott 163. The Supreme Court of Ohio has unequivocally stated “that ‘when simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as ‘other acts’ under
{¶51} “Courts have held that evidence of multiple offenses is ‘simple and direct’ where, for example, the offenses involved different victims, different
{¶52} “If either the ‘other acts’ test or the ‘simple and direct’ test is met, a defendant cannot establish prejudice from the joinder.” Id. at ¶ 50. See also Lott at 163 (“Under the second method, the ‘joinder’ test, the state is not required to meet the stricter ‘other acts’ admissibility test, but is merely required to show that evidence of each crime joined at trial is simple and direct.“).
{¶53} Here, Richard‘s offenses were not misjoined in contravention of
{¶55} Moreover, the trial court cautioned the jury to consider each count, and the evidence applicable to each count, separately. (See Aug. 17, 2020 Tr., Vol. V, at 802); State v. Wilson, 5th Dist. No. 16-CAA-08-0035, 2017-Ohio-5724, ¶ 53 (““Courts have held that any prejudice that results from the joinder of offenses is minimized when a trial court cautions a jury before deliberations to consider each count, and the evidence applicable to each count separately, and to state its findings as to each count uninfluenced by its verdict on any other counts.““), quoting State v. Freeland, 4th Dist. Ross No. 12CA003352, 2015-Ohio-3410, ¶ 16. Accord Carpenter at ¶ 84. “[W]e presume that the jury followed the [trial] court‘s instructions.” Valentine at ¶ 57, citing State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 192. This presumption is bolstered by the jury‘s not-guilty
{¶56} Because it is dispositive, we need address only the trial court‘s determination that joinder was appropriate under the simple-and-direct test. Accord Valentine at ¶ 55 (“While the state argues that the cases could be tried together under either test, there is no reason for us to look to the more stringent “other acts” test because the evidence here was simple and straightforward.“). See also Shook at ¶ 28.
{¶57} For these reasons, Richard cannot demonstrate that there was an obvious defect in the proceedings or that the outcome of his trial would have been different. Accordingly, the trial court did not commit any error, let alone plain error, by denying Richard‘s motion for severance.
{¶58} Richard‘s second assignment of error is overruled.
Assignment of Error No. III
Appellant‘s state and federal constitutional rights to due process were violated because the conviction in count seven for corrupting another with drugs was not supported by sufficient evidence.
Assignment of Error No. IV
The weight of evidence does not support a conviction on count seven for corrupting another with drugs.
Standard of Review
{¶60} 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.
{¶61} “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,
{¶62} 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,
Sufficiency of the Evidence Analysis
{¶63} We begin by addressing Richard‘s sufficiency-of-the-evidence argument as it relates to his corrupting-another-with-drugs conviction under Count Eight. The offense of corrupting another with drugs is codified under
(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.
{¶64} Because it is the only element that Richard challenges on appeal, we will address only the furnish element of the offense. Although, the term “furnish” is not defined by the Revised Code, the term was defined for the jury to mean to “provide, supply, or give access to.” (Aug. 17, 2020 Tr., Vol. V, at 818). Accord State v. Patterson, 11th Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶ 86. In other words, our sister appellate districts have concluded that, to be guilty of
{¶65} In support of his sufficiency-of-the-evidence challenge, Richard argues that a rational trier of fact could not have found that he was involved in the drug transaction involving Thompson because “there was no evidence whatsoever that Richard ever provided Thompson with any drugs.” (Appellant‘s Brief at 20). The record belies Richard‘s argument. Indeed, viewing the evidence in a light most favorable to the prosecution, Richards‘s corrupting-another-with-drugs conviction under Count Eight is based on sufficient evidence.
{¶66} Importantly, the State may establish the elements of a crime with direct or circumstantial evidence. State v. Miller, 8th Dist. Cuyahoga No. 103591, 2016-Ohio-7606, ¶ 60, citing State v. Durr, 58 Ohio St.3d 86, 92 (1991). ““Circumstantial evidence’ is the ‘proof of facts by direct evidence from which the trier of fact may infer or derive by reasoning or other facts.“” State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 12, quoting State v. Wells, 12th Dist. Warren No. CA2006-02-029, 2007-Ohio-1362, ¶ 11, citing Griesheimer” cite=“2007-Ohio-837” pinpoint=“¶ 26” court=“Ohio Ct. App.” date=“2007“>State v. Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-Ohio-837, ¶ 26. Circumstantial evidence has no less probative value than direct evidence. Griesheimer at ¶ 26, citing Jenks at paragraph one of the syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court has long held that circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.“); Miller at ¶ 61 (stating that “circumstantial evidence alone is sufficient to support a conviction“), citing State v. Coleman, 8th Dist. Cuyahoga No. 102966, 2016-Ohio-297, ¶ 22. ““[A]ll that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt.“” Miller at 61, quoting Jenks at 272. ““““Circumstantial evidence is not only sufficient, but may also be more certain, satisfying, and persuasive than direct evidence.“““” Id., quoting State v. Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6 (1960).
{¶67} Accordingly, based on our review of the record, we conclude the State presented sufficient (circumstantial) evidence at trial that Richard knew that he gave Thompson access to heroin. Compare Price, 2019-Ohio-1642, at ¶ 51 (concluding that “[t]he state presented sufficient evidence that showed Price knew he was giving the victim access to heroin and fentanyl by selling it to [a third party]“). In
{¶68} Furthermore, the State presented surveillance-photo evidence corroborating that Richard and Thompson were at Stanley‘s apartment during the same time period. Specifically, State‘s Exhibits 36 and 48 depict Thompson arriving at Stanley‘s apartment at 6:07 p.m. and departing Stanley‘s apartment at 7:57 p.m., respectively. Likewise, State‘s Exhibit 43 and depicts Richard entering Stanley‘s apartment building at 7:34 p.m. and State‘s Exhibits 46 and 47 depict Richard departing the building at 7:44 p.m. (See State‘s Exs. 40-43, 45-47).
{¶70} Having concluded that Richard‘s corrupting-another-with-drugs conviction is based on sufficient evidence, we next address Richard‘s argument that his corrupting-another-with-drugs conviction under Count Eight is against the manifest weight of the evidence.
Manifest Weight of the Evidence
{¶71} Similar to his sufficiency-of-the-evidence argument, Richard argues that his corrupting-another-with-drugs conviction under Count Eight is against the manifest weight of the evidence because the trier of fact lost its way in concluding that he furnished Thompson heroin. In particular, Richard argues that the evidence
{¶72} In support of his argument (that his corrupting-another-with-drugs conviction under Count Eight is against the manifest weight of the evidence), Richard argues that evidence that (1) “Stanley‘s fingerprints were, literally, all over the drugs that Thompson ingested shortly before overdosing“; (2) “Stanley had been providing Thompson with drugs during the days leading up to the overdose“; and (3) “Stanley was unable to provide any evidence that Richard actually provided Thompson with any drugs or even talked about drugs with Thompson” weighs against the State‘s evidence that Richard furnished Thompson heroin. (Appellant‘s Brief at 21-22).
{¶73} However, based on our review of the record, we conclude that Richard‘s evidence does not outweigh the conclusion that he furnished Thompson heroin. Importantly, Richard overlooks the meaning of the term “furnish” as we addressed in our sufficiency-of-the-evidence analysis. Accordingly, the relevant inquiry is whether the weight of the evidence demonstrates that Richard knew that he gave Thompson access to heroin.
{¶74} Notwithstanding Stanley‘s weak credibility, the jury was able to infer from the totality of the evidence presented at trial that Richard furnished Thompson heroin. “A jury can make reasonable inferences from the evidence.” State v. Knight,
{¶75} Indeed, the jury did not consider Richard‘s evidence in a vacuum—rather, the jury weighed Richard‘s evidence suggesting that Stanley furnished Thompson heroin with the testimony of the State‘s witnesses and the surveillance-photo evidence. See State v. Campbell, 2d Dist. Montgomery No. 26575, 2016-Ohio-598, ¶ 13. Because the surveillance-photo evidence corroborates that Richard and Thompson were at Stanley‘s apartment during the same time period (and that same evidence demonstrates that Richard was at Stanley‘s apartment for only a brief time), it was permissible for the jury to infer a link between Richard and Thompson and to infer that a drug transaction occurred between the men. See State v. Wintermeyer, 10th Dist. Franklin No. 16AP-381, 2017-Ohio-5521, ¶ 26 (noting that
{¶76} Based on the evidence supporting the inference that Richard knew that he gave Thompson access to heroin, we cannot conclude that the jury clearly lost its way and created such a manifest miscarriage of justice that Richard‘s corrupting-another-with-drugs conviction under Count Eight must be reversed and a new trial ordered. Therefore, Richard‘s corrupting-another-with-drugs conviction under Count Eight is not against the manifest weight of the evidence.
{¶77} Richard‘s third and fourth assignments of error are overruled.
Assignment of Error No. V
The sentencing entry improperly imposed mandatory prison sentences because the prison sentences were not imposed as mandatory during the sentencing hearing.
{¶78} In his fifth assignment of error, Richard argues that the trial court erred by imposing mandatory prison terms in its sentencing entry as to his corrupting-another-with-drugs convictions when it “failed to impose mandatory prison terms at the sentencing hearing” as to those convictions. (Appellant‘s Brief at 22). Richard contends that “[t]his Court should order the trial court to correct the entry nunc pro tunc to reflect the non-mandatory prison terms that were actually imposed.” (Id.).
{¶79} Under
Analysis
{¶80} Under
{¶81} In this case, as second-degree felonies, Richard‘s corrupting-another-with-drugs convictions carry mandatory sanctions of two-years to eight-years of imprisonment.
{¶82} Richard‘s fifth assignment of error is overruled.
{¶83} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
/jlr