State v. TopeState v. Tope
CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant
OPINION
TUCKER, P.J.
I. Facts and Procedural History
{¶ 2} At 11:59 p.m. on July 17, 2017, the Xenia Greene Central Communications Center received a call for medical assistance from the residence of Mark Tope, Appellant‘s brother, on Stevenson Road in Xenia Township. See Trial Transcript, 229:17-229:24, 233:9-233:12 and 238:18-239:8, Feb. 11-13, 2019. The first of the emergency personnel to reach the scene was Deputy William Coe of the Greene County Sheriff‘s Department, who arrived at 12:04 a.m. Id. at 256:4-256:17. He had been informed en route that the caller reported a possible overdose and was attempting to resuscitate the victim. Id. at 256:15-256:21 and 260:12-260:22.
{¶ 3} When Deputy Coe entered the residence, he encountered Appellant‘s sister-in-law and brother-in-law, who did not know why he was there. Id. at 257:3-258:2. Appellant appeared moments later at the top of the stairway leading to the basement of
{¶ 4} Deputy Coe‘s first aid kit included an automated external defibrillator. Id. at 260:12-260:22. The deputy attached the device‘s electrode pads to Mark‘s chest, but the device reported that administration of electric shock was contraindicated. See id. at 261:2-262:25. At that point, paramedics arrived; the time was approximately 12:06 a.m. Id. at 261:19-261:25 and 315:4-315:6. The paramedics attempted to resuscitate Mark and administered Narcan, but without success.1 Id. at 315:12-323:24. At approximately 12:13 a.m., they notified their dispatchers that Mark had died. See id. at 323:25-325:15 and State‘s Exhibit 3.
{¶ 5} Afterward, Deputy Coe examined the basement and spoke with Appellant. Id. at 262:16-264:22, 266:12-269:6, 274:23-276:6, 688:3-689:6, 695:17-696:25 and State‘s Exhibit 4. Appellant admitted that he had purchased a material purported to be heroin at Mark‘s request, explaining that he gave Mark one dose contained in a gelatin capsule. See id. The deputy found an empty gelatin capsule, and the Bureau of Criminal Investigation later determined that the small amount of residue remaining in the capsule was heroin. Id. at 275:16-276:2, 506:21-507:10 and 511:12-512:20. No fingerprints were obtained, and Appellant told Deputy Coe that the other capsules had been flushed down a toilet. See id. at 280:1-280:10, 364:2-364:5 and 675:1-678:3. An autopsy revealed that Mark‘s cause of death was “acute intoxication by [c]arfentanil,
{¶ 6} On October 20, 2017, a Greene County grand jury indicted Appellant as follows: Count 1, involuntary manslaughter, a first-degree felony pursuant to
{¶ 7} Appellant was subsequently deemed competent to stand trial, and at his second trial, which began on February 11, 2019, he elected to represent himself. The jury found him guilty on Counts 1 through 3, and not guilty on Count 4. On February 28, 2019, the trial court sentenced Appellant to serve concurrent terms of four years in prison for the offense of involuntary manslaughter and 12 months for the offense of trafficking in heroin, with Appellant‘s conviction for possession of heroin being merged with his conviction for trafficking. Judgment Entry 1-4, Feb. 28, 2014. Appellant timely filed a notice of appeal to this court on March 25, 2019.
{¶ 8} For his first assignment of error, Appellant contends that:
APPELLANT‘S CONVICTION FOR INVOLUNTARY MANSLAUGHTER IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE GUILT BEYOND A REASONABLE DOUBT.
{¶ 9} Appellant posits that where a defendant is charged with trafficking in a certain controlled substance, the trafficking offense may not serve as the predicate offense for a charge of involuntary manslaughter unless the decedent‘s death was proximately caused by the same controlled substance. See Appellant‘s Brief 13-15. In reliance on this proposition, Appellant argues that the State did not produce sufficient evidence to prove him guilty of involuntary manslaughter because the State failed to produce any evidence that heroin was the proximate cause of his brother‘s death. Id. at 11-12.
{¶ 10} Sufficiency of the evidence “is the legal standard applied to determine whether * * * the evidence [in a given case] is [adequate] as a matter of law to support the * * * verdict.” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a challenge to a conviction based upon the sufficiency of the evidence, the ” ‘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., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 11} According to Appellant, this court “has previously [held] that a conviction for possession of a specific controlled substance requires proof that the drug involved * * *
{¶ 12} The eponymous appellant in Pendleton was convicted, among other things, of trafficking in a mixture that contained heroin and fentanyl. See Pendleton at ¶ 8-10. In that part of the opinion to which Appellant refers, we considered whether trafficking in a mixture of heroin and fentanyl should be treated as a single offense, as two offenses subject to merger pursuant to
{¶ 13} Moreover,
{¶ 14} To prove Appellant guilty of trafficking in heroin pursuant to
{¶ 15} Appellant based his defense on the theory that Mark Tope had died by suicide, having independently acquired carfentanil for that purpose. Id. at 675:15-676:16. In the narrative testimony he offered in lieu of a conventional direct examination,
{¶ 16} On cross-examination, the State asked Appellant why he did not immediately call 911, and Appellant answered that because Mark still had a pulse after losing consciousness, and because he “had revived [Mark‘s] breathing” with CPR, he thought that emergency assistance would not be necessary. See id. at 742:1-744:5. Appellant thereafter decided to call 911 “when [Mark] stopped breathing[,] and his pulse failed.” See id. at 743:19-744:15.
{¶ 18} When the paramedics reached Mark‘s house at approximately 12:06 a.m., however, they examined Mark and observed lividity, which suggested to them that Mark must have “been down for quite a while.” See Trial Transcript 315:4-315:6 and 319:16-322:9. Dr. Kevin Sharrett, the Greene County Coroner, testified that the paramedics’ observation of lividity established that Mark must have been dead for “at least 30 minutes” at that point, and his “best estimate” was that Mark had died “between 30 and 60 minutes prior to the [paramedics‘] arrival.” Id. at 558:8-561:11. He added that the use of CPR would have had no effect on the appearance of lividity.9 Id. at 575:1-575:16. Given that the paramedics examined Mark between 12:06 a.m. and 12:13 a.m., the import of Dr. Sharrett‘s testimony is that Mark died between 11:06 and 11:43 p.m.10 See id. at 324:24-
{¶ 19} Regardless of the exact time Appellant arrived at his brother‘s house, the evidence left the jury to decide which of two scenarios was the true explanation of Mark Tope‘s death: (1) Appellant‘s theory that Mark died by suicide after intentionally overdosing on carfentanil; or (2) the State‘s theory that the material with which Appellant provided Mark contained carfentanil. Appellant argued that the results of Mark‘s autopsy proved his theory because no heroin metabolites were found in Mark‘s blood, yet the empty gelatin capsule recovered by Deputy Coe tested positive only for heroin. See id. at 419:21-422:1 and 677:5-677:19; see also Appellant‘s Brief 13. As further proof, Appellant claimed that he consumed “four times the amount” of the same material that Mark consumed, but without suffering any adverse effects. See id. at 683:12-683:21 and 686:2-686:5. He also insisted that he could be confident that he had supplied Mark only with unadulterated heroin because his “connection” for purchasing the drug “had the real thing,” which he could confirm based on his previous experience using heroin supplied by that same person. See id. at 698:1-699:6 and 703:18-704:3.
{¶ 20} For its part, the State presented evidence showing that heroin is, or was at the relevant time, often mixed with other drugs such as fentanyl and carfentanil. See id. at 342:12-344:5, 466:11-469:1 and 514:13-515:2. Although no heroin metabolites were found in Mark‘s blood, the chief toxicologist for the Montgomery County Coroner testified
{¶ 21} Nevertheless, the State‘s evidence showed that even a trace amount of carfentanil would have been sufficient to cause Mark‘s death. The Greene County Coroner testified that “[t]here is no safe amount of [c]arfentanil,” and the Montgomery County Coroner described carfentanil as “an immensely powerful * * * product in a very small volume,” estimating it to be many times more potent than heroin.11 See id. at 455:17-456:11 and 576:12-577:11.
{¶ 22} Appellant concedes that the State proved him guilty of trafficking in heroin, and he admits that he provided his brother with a material that he believed to be heroin. Thus, with respect to the charge of involuntary manslaughter, the State had to prove that Mark Tope died as a proximate result of consuming the material he received from Appellant. The State‘s evidence was largely circumstantial, but circumstantial evidence “has the same probative value as direct evidence,” meaning that circumstantial evidence “is sufficient to sustain a conviction if [it] would convince the average [person] of the
{¶ 23} Appellant‘s testimony could have been sufficient to inspire reasonable doubt in the minds of the jurors, if the jurors had accepted his testimony as credible. Appellant, however, gave the jury several reasons to doubt his credibility. For instance, despite theorizing that Mark died by suicide, Appellant did not clarify what Mark‘s motive might have been, and although Deputy Coe and one of the paramedics testified that Appellant told them at the scene that Mark had never previously used heroin, Appellant claimed at trial that Mark had previously used heroin “maybe half a dozen times.” See Trial Transcript 268:12-268:20, 327:24-328:1 and 654:3-660:4. Appellant dismissed the contradictory testimony as perjury, though at one point during cross-examination, he appeared to contradict himself by stating that Mark had had no previous experience with heroin. Id. at 731:3-731:17 and 803:8-806:9. Attempting to account for the inconsistencies between his trial testimony and his earlier written statement, Appellant emphasized that he was an “addict” who “was under the influence of heroin at [the] time” he executed the statement, yet he also claimed to be “perfectly normal” and “lucid” while interacting with Deputy Coe and the paramedics that night. Id. at 683:7-683:25, 696:20-696:25, 700:4-700:17 and 758:18-760:12.
{¶ 24} Perhaps the most definitive source of doubt about the credibility of
{¶ 25} Viewing the evidence “in a light most favorable to the prosecution,” we find that the State presented sufficient evidence to prove beyond a reasonable doubt that Mark Tope died as a proximate result of consuming an illicit substance trafficked to him by Appellant. Smith, 80 Ohio St.3d at 113. Appellant‘s conviction for trafficking in heroin did not necessarily require proof that the substance itself was, in fact, heroin, nor did the absence of a detectible quantity of carfentanil in the heroin residue recovered from the empty gelatin capsule prove that the material with which Appellant provided Mark did not contain carfentanil. Although a significant portion of the State‘s evidence was thus circumstantial, such evidence is sufficient to support a conviction. Appellant‘s first assignment of error is overruled.
{¶ 26} For his second assignment of error, Appellant contends that:
THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING APPELLANT‘S MOTION TO DISMISS ON THE BASIS OF SPEEDY TRIAL GROUNDS.
{¶ 28} In “an appeal raising a speedy trial issue,” the standard of review “is to simply count the days as directed in
{¶ 29} Appellant maintains that the trial court had “no event [for which it could] properly extend [his] speedy trial time pursuant to
{¶ 30} On the State‘s motion, the trial court continued the date of Appellant‘s first trial from its original date of June 18, 2018, until August 20, 2018, which was 33 days more than the 270 days allowed by
III. Conclusion
{¶ 31} We find that the State presented sufficient evidence to support Appellant‘s conviction on the charge of involuntary manslaughter, regardless of the fact that a significant portion of the evidence was circumstantial. Furthermore, because we find that the trial court had a reasonable basis for continuing Appellant‘s first trial, we hold that the court did not abuse its discretion by sustaining the State‘s motion for a continuance. Therefore, Appellant‘s convictions are affirmed.
DONOVAN, J. and FROELICH, J., concur.
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Marcy Vonderwell
Charles M. Blue
Hon. Stephen Wolaver