Opinion
22CA19
12-17-2024
STATE OF OHIO, Plaintiff-Appellee, v. GINGER GONZ, Defendant-Appellant.
Paul Croushore, Cincinnati, Ohio, for Appellant. Jeffrey C. Marks, Ross County Prosecuting Attorney, Pamela C. Well, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
APPEARANCES:
Paul Croushore, Cincinnati, Ohio, for Appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, Pamela C. Well, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
Jason P. Smith, Presiding Judge
{¶1} Ginger A. Gonz, "Appellant," appeals the Judgment Entry of Sentence filed June 2, 2022 in the Ross County Court of Common Pleas. Upon a Ross County jury's finding of guilty to Corrupting Another With Drugs, R.C. 2925.02, a felony of the second degree, Appellant was sentenced to a minimum prison term of six years and a maximum prison term of nine years. On appeal, Appellant has raised three assignments of error. However, based upon our review of the evidence presented at trial, along with the record of proceedings, we find no merit to Appellant's assignments of error. Accordingly, we overrule all assignments of error and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On February 19, 2021, Appellant was indicted by the Ross County Grand Jury on one count of Corrupting Another with Drugs, a violation of R.C. 2925.02(A)(3). Appellant was eventually served with the indictment, arraigned, and entered a not guilty plea. The single-count indictment arose from circumstances occurring during the early morning hours of May 6, 2020.
{¶3} On May 6, 2020, Appellant had been visiting an acquaintance, Charlotte Emily Turner, at Turner's residence on Mulberry Street in Chillicothe. A passerby, Megan Jones, heard a commotion coming from Turner's residence. When Jones stopped to assist, she observed Turner with signs of drug overdose. Appellant informed Jones she had already called an ambulance.
{¶4} Officer Shane Simmons of the Chillicothe Police Department responded to the scene and administered Narcan to Turner, to no avail. Turner was pronounced dead.
{¶5} On May 20, 2020, Detective Derrick Wallace of the Chillicothe Police Department contacted Appellant for an interview, which was recorded. Appellant initially indicated to Detective Wallace that she found Turner unresponsive when she arrived at Turner's home. Later, when confronted with Facebook messages between Turner and herself, as well as a toxicology report containing analysis of the substances found in Turner's urine and blood, Appellant's explanation of the events changed. Appellant admitted to obtaining a "real white substance" and supplying it to Turner. Both Appellant and Turner engaged in use of the substance shortly before Turner died.
{¶6} Appellant proceeded to a jury trial occurring on May 3 and 4, 2022. The State of Ohio called as witnesses Tina Haas, Megan Jones, Beth Davis, Officer Simmons, Detective Wallace, Mark Gray, the Coroner's Investigator, and Dr. Ben Trotter, the Ross County Coroner. These witnesses' testimonies will be discussed further below. The trial court also admitted the State's 19 exhibits.
{¶7} Appellant was convicted. On May 31, 2022, the trial court imposed a six to nine-year indefinite prison sentence. This timely appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED DENYING THE DEFENSE RULE 29 MOTION MADE AND RENEWED WHERE THE EVIDENCE WAS INSUFFICIENT AND CONVICTION WAS MANIFESTLY UNJUST.
II. THE TRIAL COURT ERRED IN ALLOWING EXPERT TESTIMONY FROM THE CORONER'S INVESTIGATOR AND THE CORONER WITHOUT A C.V. OR EXPERT REPORT.
III. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE PUBLIC DEFENDER TO WITHDRAW AND REQUIRING MS. GONZ TO PAY FOR THE TRANSCRIPT IN THIS CASE WHERE SHE WAS INDIGENT AND THE COURT HAD APPOINTED COUNSEL.
ASSIGNMENT OF ERROR I
Standard of Review
{¶8} Under the first assignment of error, Appellant contends that the evidence presented at her trial did not demonstrate that she actually furnished a substance to Ms. Turner. Appellant discusses Crim.R. 29 and seemingly intermixes a discussion of the sufficiency of the evidence and the manifest weight of the evidence standards of review. While the Crim.R. 29 and "sufficiency of the evidence" standard of review are essentially the same, these are separate and distinct from the "manifest weight of the evidence" standard.
{¶9} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same standard as that used to review a sufficiency-of-the evidence claim. State v. Webb, 2023-Ohio-4050, ¶ 42 (4th Dist.); State v. Tenace, 2006-Ohio-2417, ¶ 37.
{¶10} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Therefore, "[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." Webb, supra, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4, and following Jackson v. Virginia, 443 U.S. 307 (1979).
{¶11} On the other hand, a manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett, 2012-Ohio-2372, ¶ 14 (12th Dist.). To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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. Webb, supra, at ¶ 44. In reviewing the evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in the best position to judge the credibility of witnesses and determine the weight to be given to the evidence. Webb, supra, at ¶ 43, citing State v. Reyes-Rosales, 2016-Ohio-3338, ¶ 17 (4th Dist.). Therefore, an appellate court will overturn a conviction due to the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶12} Further, although the legal concepts of sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively different, "[a] determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones, 2013-Ohio-150, ¶ 19 (12th Dist.); see also State v. Wickersham, 2015-Ohio-2756, ¶ 27 (4th Dist.). We will begin our analysis, therefore, by considering whether Appellant's conviction is against the manifest weight of the evidence.
Legal Analysis
{¶13} The jury found Appellant guilty of corrupting another with drugs in violation of R.C. 2925.02(A)(3). That statute provides "No person shall knowingly * * * [b]y 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 a person with drug dependency." R.C. 2925.02(A)(3). Specifically, Appellant argues that: (1) there is no evidence of the identity of the substance allegedly furnished; (2) there is no evidence that the unknown substance was illegal; and (3) there is no evidence that the unknown substance caused Turner serious physical harm or death. Based upon our review of the evidence presented at trial, testimony and exhibits, we find that the jury did not lose its way and create a manifest miscarriage of justice nor does the evidence weigh heavily against Appellant's conviction.
{¶14} At trial, the State presented the testimony of Tina Haas, Ms. Turner's mother. Ms. Haas testified that her daughter had struggled with addiction to pain medications after Turner's car accident at age 21. Turner had turned to street drugs when her doctor terminated her prescriptions. Ms. Haas testified that her daughter had been arrested several times and had attempted recovery through the Ross County Drug Court.
{¶15} Turner died on May 6, 2020. Beth Davis, a friend of Turner's, identified State's Exhibits 2-6, copies of Facebook messages between Turner and herself beginning on May 5, 2020 at 11:48 p.m. Davis testified that Turner asked for a few Percocets and Davis quoted a price of $40.00. Ultimately, the two were not able to come to a mutual arrangement. Davis denied going to Turner's house and providing her with any drugs between May 5 and 6, 2020.
{¶16} Megan Jones testified that she was walking on Mulberry Street in the early hours of May 6, 2020 when she heard someone screaming for help. Jones went inside Turner's house and saw Appellant screaming. Turner was in bed. Jones checked Turner's pulse and was unable to find it. Jones testified Turner was "cold kind of, she wasn't warm." Appellant advised Ms. Jones that she had already called for an ambulance. Jones stayed until EMS and law enforcement arrived. Jones testified on cross-examination that Turner's "color wasn't right," and that Turner was unresponsive. Jones assumed Turner had overdosed on drugs.
{¶17} Officer Shane Simmons testified he was dispatched to Turner's residence. When Simmons arrived, he found Turner lying on a bed, unresponsive, and he saw two other females there. Officer Simmons attempted to check Turner's pulse, without success. Officer Simmons administered one dose of Narcan, but it had no effect on Turner. Another officer performed CPR. Five minutes after Simmons arrived, EMS pronounced Turner dead.
{¶18} Officer Simmons testified about a conversation between Appellant and himself at the scene as follows:
[Appellant Gonz] stated that she talked to Ms. Turner on the phone at approximately 1:40 a.m., I believe, and Ms. Turner told her that her kid was at the babysitter's house and she would like for her to come over. Ms. Gonz stated that she had her daughter take her to the gas station and then she arrived at Ms. Turner's house and Ms. Turner was not answering the door. So she just walked inside. She stated when she walked inside she found Ms. Turner unresponsive on the bed.
{¶19} Simmons testified that he is trained as to signs and evidence of drug abuse. Simmons saw a white powdery substance on the nightstand, prescription bottles, and syringes. On cross-examination, Simmons could not recall if Turner's body was cool or warm; could not recall the look of her eyes; whether she had fluid around her mouth or nose; whether her airway was blocked; and whether vomiting had occurred. Simmons admitted that he didn't examine the prescription bottles and that he wasn't positive that he saw syringes. Officer Simmons notified Detective Derrick Wallace.
{¶20} Detective Wallace, with a 22-year career in law enforcement, testified that he had worked with the narcotics unit in Ross County from 2016-2020. When he arrived at Turner's residence, Turner had already been pronounced dead. Detective Wallace spoke with Appellant, who advised him that she had gone to visit Turner but upon arrival, there was no answer at Turner's door. Appellant further advised that when she opened Turner's door, she found Turner unresponsive on her bed.
{¶21} Detective Wallace found Turner's cell phone, some pill bottles, and her house keys. Wallace accessed Turner's cell phone and discovered a Facebook Messenger conversation with Beth Davis, in which Turner was seeking drugs. Wallace later found Facebook Messenger messages between Turner and Appellant in which Turner was again seeking drugs. Upon his inspection of both women's cell phones, the messages between Turner and Appellant "matched up." Detective Wallace testified that except for the conversation between Turner and Beth Davis, he did not find messages on Turner's phone to anyone else in which Turner was seeking drugs.
{¶22} Detective Wallace testified that he interviewed Appellant on May 20, 2020. During the interview, Appellant provided two versions of the story describing her interactions with Emily Turner on the evening of May 6, 2020. At this point, the prosecutor played the recorded interview for the jury.
{¶23} Appellant began by telling Detective Wallace that she was on her way to visit Turner around 1:15 a.m. on May 6, 2020. En route, Appellant contacted Turner to see if she "needed anything." Turner indicated she had food and drinks, so Appellant told her she would "be there in a little bit." When Appellant arrived at Turner's home "a good 20 minutes later," the door was unlocked.
{¶24} Appellant told Detective Wallace that when she went into the home, she began screaming and "I'm like I can't find her so I go in and I go into the bedroom and that's when I see her in the bedroom laying there." Appellant told Detective Wallace that when Turner and she had talked throughout the day "[Turner] said she had taken two ladders that night and some gabapentin."
According to the Center for Forensic Nursing Excellence International (CFNEI) website, an organization which partners with various groups communities, businesses, and governmental agencies to create solutions and services for professionals responding to the needs of populations affected by violence/trauma/ disaster, "Ladders" is "[s]treet, slang, or code word for the benzodiazepine Xanax." See https://www.cfnei.com/glossary/ladders, accessed July 12, 2024.
{¶25} During the interview, Detective Wallace told Appellant that Turner's toxicology report showed certain substances in Turner's body at the time of her death. Wallace then asked Appellant about her Facebook conversation with Turner earlier in the day when Turner had messaged "I'm bored. Can you get anything?" At this point, Appellant's description of the events changed from what she had initially told Officer Simmons at Turner's house the night she died, and from what she had told Detective Wallace earlier in the interview. The dialogue regarding the second version of events transpiring on May 6, 2020 continued as follows:
Wallace: What does that mean to you?
Appellant: Get anything - - I had got her weed before and I have got her dope before…I'm not going to lie about it. I have…..
Wallace: So can you get anything means the same thing it means - - we're in agreement on that?
Appellant: Yeah.
Wallace: She was looking for dope.
Appellant: Yeah….
Wallace: Okay. What was she looking for?
Appellant: At that time, I'm pretty sure she was looking for dope at that time. I already had weed. I already had weed for me to smoke so it wouldn't have been that. It would have been dope.
Wallace: What kind of dope though?
Appellant: Like boy, or heroin, or you know, Fentanyl, whatever.
Wallace: Okay. So when you say yeah, do you have anything with you at that time or you have- -
Appellant: No I can't. I can't get it for her.
{¶26} As the interview continued, Detective Wallace questioned Appellant about her message to Turner, "I'm coming though. Do you need anything before I come?" The discussion continued:
Appellant: Yeah. That was those- - what she had asked for before.
Wallace: Okay. Be about an hour or so. She says, yeah. About 30….
Wallace: Yeah. 30. So does that mean the same thing to you? She wants to spend 30 dollars?
Appellant: Yeah.
{¶27} Detective Wallace further inquired about a text that said "Okay. Do you just want me to walk in and I need to give her this money." Appellant explained that her daughter and her daughter's friends drove her to Turner's house. The recorded interview continued:
Wallace: So who do you need to give money to?
Appellant: It was the people that I was with that were in the car with me, but not my daughter. It wasn't my daughter. It was one of their- - her friends' peoples. I don't even know their name. I promise you. …
Wallace: So what do you mean by me giving them the money?
Appellant: Well, what I'm saying is I met them when I was out there. They rode with us into town because I was going to get the money for them and then that's when I went to give her the stuff and I said I have to give them the money which she still didn't answer the door then that's when I finally got ahold of her and she said the door was open, walk in.
Wallace: Okay. So back to it so we have this straight. So in the car your daughter is driving. You and then - -
Appellant: It was her and my youngest son and my oldest son and then two dudes that my - - they had
known, my kids known, and I don't know who they are, they're younger kids. I never asked them who it was I mean I just didn't. You know what I mean, I don't know them so may God or whatever - - so I was just trying to basically make me a little bit of money, you know what I mean - -.
Wallace: Yeah.
Appellant: - - on the side. I mean that's why I did it…..
Wallace: You didn't know these two guys?
Appellant: No, I didn't.
Wallace: Let me ask you this. Can you describe them for me? Did you know street names? Did you know anything?
Appellant: They didn't even really talk that much. They were black guys. I mean I can't really - -normal - - I don't know how - - you know what I mean, you can't really describe them. I don't know how they- -…They seemed younger. Yeah. They seemed like 17 around my son's age…And they didn't seem like they was from around here. Like I've never seen them before.
{¶28} Appellant continued, explaining that she had been at her daughter's house all day and helped her rearrange furniture. Appellant's daughter's boyfriend, "Fred," was there. "Somebody" dropped off two young men. Appellant wasn't sure if Fred even knew the two men because, on the way to Turner's house, "nobody talked" in the car. Wallace inquired:
Wallace: Did you tell Fred that you needed something?
Appellant: I told - - well actually I just anybody I need to get something for my friend - - for my friend, and they were like I can get it, you know what I'm saying. Then that's - - then a call got made. I don't know about who - - and you all know that stuff and then the boys ended up coming, talking to me, getting it…..
Wallace: So Fred heard you say that you needed something for a friend and then these guys showed up basically?
Appellant: Um hum…..
Wallace: You get to the house, she comes out, and brings you the money. You run out to the car, car pulls off, you and her go in.
Appellant: Yeah.
{¶29} Contrary to Appellant's earlier statements to Officer Simmons and Detective Wallace, that Turner's door was unlocked and that Appellant found Turner unresponsive on her bed, Appellant further explained the events surrounding Turner's death as follows:
And we was sitting there and we're talking and stuff and she's - - she's already kind of like tired kind of looking but she's like well get that out. She's like I only want a little bit of it, you know what I mean, and I'll share or whatever. I'm like okay. So she does a little bit of it and we're sitting there talking about this dude she has been talking about and Travis and stuff. She kind of went back like this a little bit, you know, kind of fell back and she did this kind of like (makes gurgling sound) a gurgle. I've heard of that
so I'm like Emily hey let's get up, you know. She's like you know I'm up, I'm up. I'm like, no you're not. You're falling asleep, you know, because that will mess them up. I'm like okay so I just sit there playing on my phone. She done it again. She fell back again and I could hear that noise again, so I hit her again, she was not up. She would open her eyes but she has one back down, you know what I mean. Well the third time I heard it, it was like (makes a gurgling sound). It was like that but it was a little bit longer. I said Emily and she wouldn't get up, she wouldn't. …
{¶30} Detective Wallace further questioned Appellant about the substance she provided Turner as follows:
Wallace: So you go in the house. What did - - and you know weights and measurements kind of like I do.
Appellant: It wasn't like that much….Maybe it - - like put it out like that, about that much.
Wallace: So you got $30 worth. What did it look like first off?
Appellant: It was white. It was a white color…..
Wallace: Pure white or was it a little dirty?
Appellant: It was white. It looked real white.
Wallace: Okay. Was it in a clear bag, foil, paper?
Appellant: I can't remember what I put it- - I think paper.
Wallace: Okay. So you go in, she said she just wants a little bit.
Appellant: Um-hum. And that's all it took. If I was aware she had all that other drugs in her system that night, I don't understand….
Wallace: So she started basically nodding out. How long after she used it?
Appellant: Ten minutes. I'd give her that. Because you know it was really fast…..
Wallace: And you still felt fine throughout the whole time?
Appellant: Yes….It seemed regular. Like regular. I didn't really get too high or nothing. I wasn't like nodding. I wasn't tired, none of that…..Like I said, she already had told me she was taking ladders and Gabapentin and had drank so it was just the combination of everything….
Wallace: So let me ask you this. So the stuff - - the wrappers and stuff that all this came in or the paper or whatever it was, what did you do with - - Did you clean all that up?
Appellant: The only thing - - I had it on a DVD player, DVD, and I poured it on there and I don't know what I did with the paper….It was on a DVD like you remember that DVD play [sic] and she had wiped it off and I think she had put it back on the mantle like by her bed on the mantle….
Wallace: Put what on the mantle?
Appellant: The DVD player. The video DVD case.
Wallace: So on a case and not the player?
Appellant: Yeah, that's what I meant. The case. I didn't mean the player….
Wallace: What I can tell you is we know you're not the source of this. Yeah, you're the middle man, made a couple dollars, get your own little high. Whatever, you know kind of like what you did with her, sit with her, you know she's probably going to give you some.
Appellant: Well, I was staying the night with her you know.
Wallace: Right. But it's going to take care of your addiction and- -
Appellant: Yeah. Yeah, exactly….
Wallace: Well...at some point you're going to have to stop.
Appellant: That's what my mom told me.
Wallace: Middle man - -
Appellant: My mom said - - that's what my mom said. She said you don't need the money that bad.
{¶31} On cross-examination, Wallace testified that he did not find any syringes at Turner's house and that he did not locate white powder on turner's nightstand. Wallace also acknowledged that there were messages on Turner's phone between Turner and other people besides Appellant. Wallace also admitted that he did not attempt to speak to any of the other persons who communicated with Turner during the 48 hours prior to her death. Wallace did testify that he was still trying to determine the identities of "Fred" and the two friends who provided Appellant the white substance she supplied to Turner. Wallace admitted that he did not subpoena any possibly pertinent phone records.
{¶32} Mark Gray testified that he was employed as a Death Investigator with the Ross County Coroner's Office. Gray's duties include reviewing evidence used in determining cause and manner of deaths. On May 6, 2020, Gray investigated Turner's death.
{¶33} Gray testified that when he arrived, Turner's body was in the front bedroom of her home, still warm. Gray's physical examination of Turner's body did not show signs of injury, blood, violence, or trauma. The coroner's office obtained samples of Turner's urine and blood and submitted the samples for testing. The prosecutor asked Gray about State's Exhibit 16, which Gray identified as the toxicology report showing a full analysis of the substances in Ms. Turner's body from the samples withdrawn on May 6, 2020. Investigator Gray read from the report, telling the jury that there were multiple substances found in Ms. Turner's body, including Gabapentin, benzodiazepines, methamphetamines, and Fentanyl.
The coroner's office also obtained samples of vitreous fluid. All samples were submitted to Axis Forensic Toxicology. The toxicology report indicates the samples were received on May 7, 2020 and the results were reported on May 19, 2020.
{¶34} Investigator Gray testified that his office does not order an autopsy in every case and does not in cases of compelling evidence of probable drug overdose. Gray testified as to the signs of drug overdose: lethargy or mental slowness; rapid pulse or slow pulse; sweating; constricted or dilated pupils; delayed response; unresponsiveness; and history of medication use. Due to the witness statements and evidence found, Turner's death was concluded to be a drug overdose. Gray did not order an autopsy of Ms. Turner's body. Investigator Gray prepared a report which he submitted to Dr. Ben Trotter, the Ross County Coroner, for his final determination of cause and manner of death.
{¶35} Gray also testified that he gathered information from the Ohio Automated Rx Reporting System (OARRS) to determine a history of prescribed medications, physicians' records, and toxicology reports. Gray obtained an OARRS report for Turner. According to the OARRS report, Turner was legally prescribed the Gabapentin and the benzodiazepines.
The OARRS is a tool to track the dispensing and personal furnishing of controlled prescription drugs to patients. See https://www.ohiopmp.gov. Accessed August 6, 2024.
{¶36} On cross-examination, Investigator Gray admitted that he did not personally interview witnesses. He gathered witness information from law enforcement. He also photographed Ms. Turner and the crime scene. Defense counsel questioned Gray about a photograph he had taken of Ms. Turner's eyes, Defendant's Exhibit A. Gray testified that the photograph showed that Turner's pupils were dilated, indicative of an overdose. Gray explained that the pupils normally dilate within the first hour of death, and he acknowledged that his photographs were taken about four hours after Turner's death.
{¶37} Also on cross-examination, defense counsel questioned Gray extensively about the toxicology report. The report was divided into sections. Investigator Gray testified that the first section contained analysis of Turner's mixed blood sample, and he repeated, as on direct examination, that the blood sample showed positive results which included Gabapentin, Fentanyl, and benzoylecgonine (a metabolite of cocaine). Defense counsel also elicited testimony that the urine sample included positive results for Methamphetamine, Fentanyl, Norfentanyl, Oxymorphone, and benzoylecgonines.
{¶38} Investigator Gray admitted that Norfentanyl did not appear in both tests, only in the urine test. He admitted that through his training, he has learned that urine holds material longer and that the blood results indicate more recent use. On redirect, Gray again pointed out that Fentanyl was found in Turner's blood.
{¶39} Dr. Ben Trotter testified that he is board-certified in emergency medicine, an emergency room physician, and the elected Ross County Coroner. As a coroner, Dr. Trotter determines the cause and manner of death and investigates wrongful or concerning deaths. Dr. Trotter explained that the cause of death is a medical condition which immediately caused death, while the manner of death is a determination of the type of death: accidental, suicide, homicide, natural death, or undetermined. When Dr. Trotter makes a determination, he or an investigator goes to the scene and investigates. Dr. Trotter also acknowledged autopsies aren't ordered in all cases. Dr. Trotter further explained that an OARRS report is mandated in Ohio. Prescribing physicians are required to report any reportable drugs, including narcotic, neuropathic, or sedative medications, to the national database. Also, physicians and providers in Ohio must review the OARRS report before they prescribe. Investigators also have access to the reports.
{¶40} Dr. Trotter testified that State's Exhibit 16 was a formal toxicology report specific to the death of Ms. Turner. Dr. Trotter testified that active substances are found in the blood. Dr. Trotter also read from the toxicology report, which listed positive for: Gabapentin, Aminoclonazepam, Clonazepam, Diazepam, Nordiazepam, Fentanyl, Cotinine, Benoylecgonine. He testified that benzodiazepines are the drugs listed ending in "pam." Dr. Trotter testified that several of the "pams" would be derivatives of the same medication found in the body. Dr. Trotter testified that just because drugs are listed separately did not necessarily mean each drug was derived from a separate source.
{¶41} Dr. Trotter testified that Fentanyl, an opioid, is used often in the emergency room for pain control. He testified that "half-life" references the time it takes to metabolize half the product that is ingested into the body. He explained that the half-life is different from the effective time. Dr. Trotter testified the half-life of Fentanyl is between two to four hours, which is how long half would be metabolized in the body. He also testified that the effective rate of intravenously injected Fentanyl is immediate, between 7 to 15 minutes.
{¶42} Dr. Trotter prepared State's Exhibit 17, the coroner's verdict, used to complete a death certificate. Dr. Trotter testified his verdict was based on a review of the crime scene, the photographs, the information collected from detectives, the OARRS report, and the toxicology report. Dr. Trotter testified the cause of Turner's death was "overdose from multiple illicit drugs" and the manner of death was "accidental." He explained that illicit drugs are those not obtained from a prescription or a provider. Dr. Trotter also identified State's Exhibit 18, the certified death certificate of Charlotte Emily Turner. The immediate cause of death is "overdose from illicit substances."
{¶43} Dr. Trotter testified that he has investigated overdose deaths many times and he has rarely seen an overdose death solely from benzodiazepines. He has never seen overdose solely from Gabapentin. Based on his experience, the most common substances used in overdose deaths are opioids or methamphetamines. Dr. Trotter also testified it is not uncommon to see a mixture of substances in overdose deaths.
{¶44} The parties stipulated that Heroin is a Schedule I controlled substance and that Fentanyl and Cocaine are Schedule II controlled substances. Additionally, the jury had the benefit of the following exhibits admitted at trial:
Exhibit 1 Photograph of Charlotte Emily Turner;
Exhibits 2-6 Photographs of Facebook messages between turner and Beth Davis;
Exhibits 7-15 Photographs of Facebook messages between turner and Appellant;
Exhibit 16 Toxicology Report - (stipulated as to authenticity);
Exhibit 17 Verdict of Death - (admitted over objection as to expert qualifications);
Exhibit 18 Death Certificate - (stipulated as to authenticity as a business record but not as to cause of death listed);
Exhibit 19 Video interview with Appellant Ginger Gonz.
{¶45} Appellant did not call any witnesses. In closing, defense counsel acknowledged that Appellant was not truthful "up front," but he characterized the events as a "bad situation" that Appellant was "drawn into" when she actually tried to get help for Turner. Defense counsel emphasized that the prosecutor only read "half" of the toxicology report; the prosecution did not offer into evidence the OARRS report which showed Turner's legal prescriptions; the prosecution did not offer into evidence the other phone calls on Turner's phone; there was no evidence to demonstrate which drugs may have been mixed together; there was no testimony as to the lethal levels of drugs found in Turner's samples; there was no evidence as to the combination which killed her; no testing was done on the white powder; no testing was performed on the vitreous fluid; there was no evidence of underlying health conditions presented.
{¶46} In summary, at trial, the State presented evidence that:
1. Turner was addicted to pain medications;
2. On May 5, 2020, Turner attempted, but was unable, to obtain Percocets from Beth Davis;
3. On May 6, 2020, Turner messaged Appellant saying, "I'm bored. Can you get anything?"
4. Appellant interpreted that Turner wanted to purchase "dope…boy, heroin, or…Fentanyl" and that Turner wanted to spend $30;
5. Turner told Appellant she had "Gabapentin and Ladders" and that she had been drinking earlier;
6. Appellant obtained a substance from her daughter's boyfriend Fred's two friends;
7. Appellant's daughter, Fred, and the two friends drove Appellant to Turner's house;
8. Appellant gave Turner $30 worth of a "real white" substance;
9. Turner started "nodding out…really fast" within ten minutes;
10.Three times Turner fell back and made gurgling sounds and on the third time "she wouldn't get up."
11. Megan Jones heard screaming, ran into Turner's home, and was unable to find Turner's pulse;
12. Officer Shane Simmons responded to the scene, found Turner unresponsive, and administered Narcan with no effect;
13. Turner was pronounced dead 5 minutes later;
14. At the scene, Appellant told Officer Simmons that she had found Turner unresponsive on the bed;
15. Detective Wallace accessed Turner's cell phone and found messages between Appellant and Turner, which matched with messages later found on Appellant's cell phone;
16. Investigator Mark Gray of the Ross County Coroner's Office investigated Turner's death, obtained samples of blood, urine, and vitreous fluid from Turner's body, and submitted the samples for testing;
17. The toxicology report showed that Turner's body held multiple substances including Gabapentin and benzodiazepines, which were prescribed, and THC cannaboid/marijuana, caffeine, methamphetamines, and Fentanyl;
18. Dr. Trotter prepared State's Exhibit 17, the coroner's verdict, in which he listed the cause of her death as "overdose from multiple illicit drugs," and listed the manner of death as "accidental";
19. Appellant gave a recorded interview on May 20, 2020 in which she first told Detective Wallace the same explanation that she first told Officer Simmons at the scene, that she found Turner's body unresponsive as soon as she arrived at Turner's home;
20.Appellant's explanation to Detective Wallace of her knowledge of how Turner died changed when she was confronted with the Facebook Messenger conversations between Turner and herself and Turner's toxicology report, and;
21.Appellant acted as a "middle man" to take care of her own addiction and make some money.
{¶47} The elements of an offense may be established by" 'direct evidence, circumstantial evidence, or both. Circumstantial and direct evidence are of equal evidentiary value.'" State v. Fannon, 2018-Ohio-5242, ¶ 100 (4th Dist.), quoting State v. Swain, 2002 WL 146204, *8 (4th Dist.). Circumstantial evidence is" '" '[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.'" '" State v. Shields, 2023-Ohio-2331,¶ 34 (4th Dist.) quoting State v. Dodson, 2019-0-1465, P 13 (4th Dist.), quoting State v. Nicely, 20 Ohio St.3d 144,150 (1988) quoting Black's Law Dictionary 221 (5th Ed. 1979). A defendant's convictions may be based on circumstantial evidence alone. See generally State v. Grube, 2013-Ohio-692, 987 N.E.2d 287, at ¶ 30, citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.3d 293 (1990).
{¶48} In this case, Appellant specifically argues that there is no evidence of the identity of the substance she allegedly furnished to Turner. She also argues that there is no evidence that the unknown substance was illegal. These arguments relate to Appellant's "knowledge" of the "real white" substance Appellant admitted in her recorded interview that she gave to Turner. These arguments are without merit because the State did not have to prove that Appellant knew she was furnishing Turner with a controlled substance that contained Fentanyl. See State v. Brown, 2018-Ohio-899, ¶ 28 (3d Dist.) (State did not have to prove that Brown knew he was furnishing the deceased with a controlled substance that contained Fentanyl), citing State v. Ward, 2017-Ohio-8518, ¶ 16 (3d Dist.) (State did not have to prove that defendant had actual knowledge that the heroin he sold contained Fentanyl). See also State v. Veley, 2017-Ohio-9064, ¶ 26 (6th Dist.) (holding "[i]t is also immaterial that it was not proven (though it was suggested) that appellant added the fentanyl to the heroin"); State v. Edmonds, 2017-Ohio-745, ¶ 39, 43 (8th Dist.) (holding that the evidence was sufficient where "the evidence demonstrated that [the defendant] sold [the victim] the drugs that caused his death").
{¶49} The Ohio Supreme Court has held that the word "knowingly" is an adverb which modifies the verb "sell" or "offer." Ward, supra. See State v. Patterson, 69 Ohio St.2d 445, 447 (1982), overruled in part on other grounds. In Patterson, the Supreme Court determined that "[i]t is clear on the face of the statute that a culpable mental state must exist with respect to the act of offering [or selling]." Id. "One's understanding of the nature of the substance does not necessarily determine whether he or she knowingly offered to sell a controlled substance." Id. Specifically, the Ohio Supreme Court held that "[w]e will not read the additional element of knowledge of the nature of the substance into R.C. 2925.03(A) * * *" Id. Ward further referenced Patterson at ¶ 16 as follows:
While Patterson was overruled on other grounds, the Supreme Court's interpretation of "knowingly" has been followed by appellate courts throughout Ohio. See e.g. State v. Stover, 2016-Ohio-1361, ¶ 14 (11th Dist.) (state was not required to prove beyond a reasonable doubt that the Appellant had knowledge he was selling heroin; rather the state was only required to prove beyond a reasonable doubt that Appellant knowingly sold or offered to sell a controlled substance); see also State v. Wyatt, 1994 WL 484083, *4 (4th Dist.) (the critical inquiry under the "knowingly" portion of the trafficking statute is whether Appellant "knowingly" made the offer, not whether he knew that the material was a controlled substance).
Triers of fact should consider the totality of the circumstances and decide whether, in a particular scenario, there is sufficient evidence to prove beyond a reasonable doubt that the accused has knowingly offered to sell a controlled substance. For example, the dialogue and course of conduct of the accused, as well as the nature of the goods transferred, may be relevant to this determination.Patterson, 69 Ohio St.2d 445, 447 (1982), overruled in part on other grounds.
{¶50} Based on the discussion contained in the Facebook Messenger messages between Appellant and Turner, State's Exhibits 7-15, as well as Appellant's recorded interview, Appellant's contention that (1) she didn't know the identity of the substance that she supplied to Turner, and (2) she didn't know the substance was illegal is not credible.
{¶51} From the content of the Facebook Messenger messages between Appellant and Turner, it may be inferred that Turner was looking to buy an illegal substance for $30. But this does not need to be inferred as appellant confirms in her recorded interview that she provided the "real white" substance after obtaining it from two unknown individuals, subsequent to Turner's request for, according to Appellant's interpretation, "dope, boy, heroin, or Fentanyl." Appellant also admits in the interview that she delivered $30 worth of the white substance to Turner.
{¶52} Appellant's third argument that there is no evidence that it was the unknown substance which caused Turner's serious physical harm and subsequent death is also untenable. R.C. 2925.02(A)(3), which is the statute under which Appellant was charged, reads, in its relevant part, as follows: [n]o person shall knowingly * * * furnish to another * * * a controlled substance, and thereby cause serious physical harm." (Emphasis added.) In State v. Brown, 2018-Ohio-899, the appellate court discussed a similar argument. The Brown court observed:
For convictions under R.C. 2925.02(A)(3), the State does not need to prove that the defendant knowingly intended to cause serious physical harm. Rather, the State must prove that the defendant knowingly furnished another with drugs and that serious physical harm resulted from this intentional act.Id. at ¶ 29. (Competent credible evidence existed as to each element in indicted charge of corrupting another with drugs even though toxicology expert could not pinpoint exact time of death except that it occurred shortly after Fentanyl was introduced into victim's system. Brown at ¶ 21.)
{¶53} At trial, the court admitted Turner's toxicology report into evidence, the results of which demonstrated that Turner had several illegal substances in her blood and urine, including Fentanyl. We have already concluded that Appellant knowingly furnished Turner with a white substance. Dr. Trotter and Investigator Gray opined that Turner's death was due to overdose from multiple illicit drugs. Appellant's own statements in the recorded interview describe Turner's quick demise, "within ten minutes" of ingesting the unknown white substance Appellant gave her. The argument that the evidence did not show that Appellant caused serious physical harm and death by her provision of the unknown white substance that Appellant admittedly purchased "off the street" from two unknown individuals is also without merit.
{¶54} Defense counsel also characterized the case as "an investigation where an assumption was made and the State wants you to go with it." Counsel argued that the jury impermissibly stacked inferences in order to find Appellant guilty of corrupting another with drugs. We disagree. We explained in Shields, supra:
"A trier of fact may not draw '[a]n inference based * * * entirely upon another inference, unsupported by any additional fact or another inference from other facts[.]'" " 'When an inference, which forms the basis of a conviction, is drawn solely from another inference and that inference is not supported by any additional facts or inferences drawn from other established facts, the conviction is improper.'" However, the rule against inference-stacking "is 'extremely limited' and does not prohibit drawing parallel inferences in combination with additional facts or drawing multiple, separate inferences from the same facts."(Citations omitted.) Shields at ¶ 35. See also State v. Howard, 2024-Ohio-1409 ¶¶ 41-42 (4th Dist.).
{¶55} In this case, the jury was not required to impermissibly stack inferences to find Appellant guilty. Jurors could draw multiple, separate inferences from the same set of facts. The Twelfth District, in State v. Wells, which held that the jury did not lose its way in finding Wells furnished a controlled substance to an individual who died as a result, summarized the pertinent case law succinctly as follows:
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.Wells, 2017-0-420 (12th Dist.) at ¶ 39. Based on the foregoing, we find that the jury did not lose its way and the evidence presented at Appellant's trial does not weigh heavily against Appellant's conviction for corrupting another with drugs. Consequently, Appellant's conviction is not against the manifest weight of the evidence.
{¶56} Furthermore, since we have found that Appellant's conviction is supported by the manifest weight of the evidence, this finding is also dispositive of the issue of the sufficiency of the evidence. Accordingly, Appellant's first assignment of error is without merit and is hereby overruled.
While Appellant includes a Crim.R. 29 reference in the argument contained in the first assignment of error, we note that this is actually only a passing reference. At trial, after the State rested, defense counsel was given the opportunity to make a Crim.R. 29 motion. Counsel instead moved to strike any expert testimony and any expert report because "he did not do anything personally with testing." After the defense rested, counsel renewed the prior Crim.R. 29 motion, arguing that the expert did not testify "with a reasonable degree of scientific or medical certainty of his findings," and asking that the expert testimony be excluded. The first argument is somewhat generally proffered under the second assignment of error. The second argument has not been renewed on appeal. In the Crim.R. 29 motion, counsel also argued that there was no proof of cause of death, which has been discussed above.
ASSIGNMENT OF ERROR II
{¶57} Appellant challenges the admission of testimony by the coroner's investigator, Mark Gray, and the coroner, Dr. Ben Trotter, "over objection" and without providing to counsel an "expert report or curriculum vitae." Appellant also contends that the toxicology reports were admitted into evidence but the OARRS report was not admitted. Appellant's continued argument that the State's case against her was built on inferences, and that these inferences are based on information not in evidence, may be summarized as follows:
The toxicology reports were admitted, but the State's case was that the unadmitted OARRS report and the toxicology report of the urine, subtracted from the toxicology report of the blood, demonstrated that Ms. Gonz must have furnished a mixture of Fentanyl and cocaine to Ms. Turner, resulting in her death. This should be held to constitute reversible error, as it piled conclusory statements on each other to reach an unsupported conclusion.
We have previously discussed the use of inferences and the manifest weight of the evidence presented at Appellant's trial. Ultimately, Appellant's second assignment of error challenges evidentiary rulings.
Standard of Review
{¶58}"' The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.'" State v. Hardin, 2010-Ohio-6304, ¶ 23 (4th Dist.), quoting State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. "An abuse of discretion involves more than an error of judgment or law; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable." State v. Voycik, 2009-Ohio-3669, ¶ 13 (4th Dist.), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, (1983). "In applying the abuse of discretion standard, we are not free to substitute our judgment for that of the trial court." State v. Burkhart, 2009-Ohio-1847, ¶ 19 (4th Dist.).
{¶59} The admission of testimony by a lay witness as to opinions or inferences rests within the sound discretion of the trial court and will not be reversed by the reviewing court absent a showing of an abuse of discretion. State v. Sibert, 98 Ohio App.3d 412, 426 (4th Dist. 1994). Furthermore, with regard to expert testimony, the Supreme Court of Ohio has observed:
Neither special education nor certification is necessary to confer expert status upon a witness. "The individual offered as an expert need not have complete knowledge of the field in question, as long as the knowledge he or she possesses will aid the trier of fact in performing its fact-finding function." State v. Hartman, 93 Ohio St.3d 274, 285; State v. Baston, 85 Ohio St.3d 418, 423. Pursuant to Evid.R. 104(A), the trial court determines whether a witness qualifies as an expert, and that determination will be overturned only for an abuse of discretion. Hartman, 93 Ohio St.3d at 285; State v. Williams, 4 Ohio St.3d 53, 58 (1983).State v. Thomas, 2002-Ohio-6624, ¶ 46; State v. Gillum, 2022-Ohio-2005 ¶ 37 (5th Dist.).
Legal Analysis
{¶60} Upon review of the briefs, we agree with the State's observation that Appellant's argument is "a bit difficult to follow." And, it is not our duty to construct an argument for Appellant. See Matter of S.M., 2023-Ohio-2686, ¶ 40 (4th Dist.). Because we construe this assignment of error as challenging the trial court's evidentiary rulings, we will begin by examining the testimony at trial and defense counsel's objections.
This is in part because the argument is framed very generally; Appellant does not make separate and specific arguments about Investigator Gray and Dr. Trotter. In addition, Appellant utilizes citations to cases which are inapposite to the facts and arguments herein.
Coroner's Investigator Mark Gray
{¶61} When Investigator Gray testified on direct examination, he was asked about his findings from a physical examination of Turner. Defense counsel immediately objected, stating that he had not been provided with a curriculum vitae or a report from Gray. The trial court overruled the objection, noting that Gray was a lay person and a paramedic. The court found that Gray's testimony regarding his observations is permissible under the Rules of Evidence.
{¶62} We agree with the trial court's ruling in this instance. The lay opinion testimony rule, Evid.R. 701, provides in pertinent part: "If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue." Evid.R. 701 limits the trial court's decision as to admissibility of lay witness opinion testimony in two ways. Sibert, supra, 98 Ohio App.3d 412, 426 (4th Dist. 1994). First, the witness must have firsthand knowledge of the subject of the testimony and the opinion must be one a rational person would form based on the observed facts. Id. Second, the opinion must assist the trier of fact in understanding the testimony of the witness or in determining a fact in issue. Id. When based on personal observations, a lay witness may testify about another's physical condition. Id. See also State v. Mathes, 2019-Ohio-3654, ¶ 58 (8th Dist.).
{¶63} In this case, Investigator Gray possessed firsthand knowledge of the physical appearance of Turner's body as he had observed her body at the crime scene. Furthermore, Gray's testimony assisted the jury in understanding his testimony as it related to suspected drug overdose. Trial counsel did not reassert this objection.
{¶64} Later in Gray's testimony, the prosecutor questioned him about the signs and symptoms of drug overdose. Defense counsel again objected, citing Crim.R. 16 and Evid. R. 702, 703, 704, and 705, noting that he had no resume or description of Gray's training and qualifications. The trial court sustained the objection and instructed the prosecutor to lay a foundation about Gray's qualifications.
{¶65} Thereafter, Investigator Gray testified that he was trained as a medical legal death investigator at St. Louis University School of Medicine and that he had received continuing education yearly through the Board of Medical Death investigators. Gray was also trained as a paramedic and firefighter at the Ohio Fire Academy, State Fire Marshall's Office. Gray had been certified as a firefighter and paramedic for 32 years. He had 29 years of experience with the Chillicothe Fire Department. Thereafter, Gray testified about the signs and symptoms of drug overdose and his specific findings regarding Emily Turner.
{¶66} Appellant's counsel did not renew the objection. Therefore, we review it only for plain error. Appellate courts take notice of plain error"' with the utmost caution, under exceptional circumstances and only to prevent a miscarriage of justice.'" State v. Mammone, 2014-Ohio-1942, ¶ 69, quoting State v. Long, 53 Ohio St.2d 91, (1978), paragraph three of the syllabus. Crim.R. 52(B). To prevail, Appellant must show that an error occurred, that the error was plain, and that but for the error, the outcome of the trial clearly would have been otherwise. See State v. Martin, 2024-Ohio-2334, ¶ 86 (4th Dist.), citing Mammone at ¶ 69.
{¶67} On appeal, Appellant cites Crim.R. 16(K); Evid.R. 702; State v. Lincoln, 2018-Ohio-1816 (4th Dist.); State v. Boston, 46 Ohio St.3d 108 (1989); and State v. Hall, 2019-Ohio-2985 (1st Dist.). Crim.R. 16 (K) provides:
When Appellant's objection was discussed at sidebar, Appellant cited Crim.R. 16(K) but did not actually argue it. In Appellant's brief, Appellant notes only that in Lincoln, this court held that "the trial court abused its discretion in allowing admission of the key lab report despite the State's failure to provide the defense with it." Lincoln involved failure to disclose a lab report which his counsel had learned of only one day prior to trial. Counsel argued that the lab report was crucial evidence and prejudiced Lincoln's defense. This court noted that Lincoln had not even known that a chemical analysis was conducted on a key piece of evidence, leaving Lincoln in the dark as to his trial strategy. This court held that a brief 90-minute lunch break was not a sufficient sanction for the prosecution's discovery violation and that the trial court should have either excluded the report or granted a meaningful continuance. Nothing in the case currently before us suggests that Appellant was unaware that Investigator Gray or Dr. Trotter would testify. And as we conclude below, Investigator Gray did not testify as an expert.
In Boston, supra, the Supreme Court of Ohio held that an "expert may not testify as to the expert's opinion of the veracity of the statements." 46 Ohio St.3d at 129. Herein, Appellant has not argued that either Investigator Gray or Dr. Trotter testified as to the veracity of any other witness at trial. In Hall, supra, the First District held that allowing a detective to confirm a doctor's opinion in that case constituted a violation of Crim.R. 16(K). Herein, Appellant has not made the argument that any of the investigating officers in this case were allowed to confirm Dr. Trotter's opinion. Thus, we are confused as to why Lincoln, Boston, and Hall have been referenced.
An expert witness for either side shall prepare a written report summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert's qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to
opposing counsel shall preclude the expert's testimony at trial.
{¶68} Evid.R. 702 provides in pertinent part:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony….
{¶69} Based on our review of the record, we cannot find that the trial court committed plain error by allowing Investigator Gray to testify about the signs and symptoms of drug overdose after the prosecutor laid a foundation of Gray's qualifications. Investigator Gray was a lay witness. Investigator Gray did not testify as an expert. Therefore, Crim.R. 16(K) and Evid. R. 702 relating to experts and expert testimony have no applicability to our discussion of Investigator Gray's testimony.
{¶70} As a lay witness, Gray had personal knowledge of the signs and symptoms as he was trained as a medical legal death investigator, and he had observed overdose victims many times during his experience as a firefighter. Gray testified that as a local firefighter, he regularly rode with EMS squads to overdose scenes for the purpose of administering life-sustaining treatment if possible. Gray testified he had been to several hundred overdose scenes and is familiar with the signs and symptoms of overdose. Investigator Gray personally observed Turner's physical condition and his testimony aided the trier of fact in understanding what signs and symptoms of overdose that Turner's body exhibited. As lay witness testimony, Gray's testimony was permissible.
{¶71} Furthermore, we note that on cross-examination, defense counsel questioned Investigator Gray extensively about the toxicology report. At the close of the State's case, defense counsel stipulated to the toxicology report. Neither the prosecution or the defense moved to admit the OARRS report.
{¶72} Having determined that Investigator Gray did not testify as an expert, we can find no abuse of discretion with regard to the investigator's testimony. Given that defense counsel did not object to Investigator Gray's testimony about the OARRS report and did, in fact, cross-examine Gray at length about the toxicology report, we find that any error with regard to his testimony would be invited error. Under the invited-error doctrine, a party is not entitled to take advantage of an error that he himself invited or induced the court to make. See State v. Jackson, 2016-Ohio-5488, ¶121; Matter of H.G., 2024-Ohio-212, ¶17.
{¶73} Based on the foregoing, we find no merit to Appellant's argument that the trial court abused its discretion in allowing Investigator Gray's testimony.
Coroner - Dr. Ben Trotter
{¶74} Again, Appellant's brief asserts that the trial court erred in allowing expert testimony from the coroner without an expert report or curriculum vitae. While an expert can properly render an opinion based on evidence admitted in court, Appellant argues that here such evidence is lacking due to the failure to admit the OARRS report or any expert report. We are compelled to agree with the State that this argument is baseless.
{¶75} During Dr. Trotter's direct testimony, he described the purpose and contents of the OARRS report. Thereafter, defense counsel asked to approach the bench and this discussion occurred:
Mr. Carter: Toxicology stipulated to. The investigator has already presented it and authenticated it. Now speaking to the Coroner Verdict, [Exhibit 17], I believe this calls for an expert opinion. That is an expert report. He has not been certified as an expert and he has listed no training as to his ability to do a medical examination. He has only testified to
position so I think under 702, 703, 704, and 705, I would raise an objection to his ability as an expert…
Ms. Charles: I think that statutorily he is granted the authority to find the cause and manner of death. In fact, it's "shall find the cause and manner of death for any suspicious death." I mean I can go back to him and kind of lay a foundation but I think that - - Ohio says that any board certified physician, no matter what it is, is able to be elected coroner.
The trial court noted that a certified licensed physician of two years is qualified to serve as county coroner and overruled the objection.
{¶76} Again, we find no abuse of discretion with the trial court's ruling. As the trial court generally observed, R.C. 313.02, Qualifications for Coroner provides:
No person shall be eligible to the office of coroner except a physician who has been licensed to practice as a physician in this state for a period of at least two years immediately preceding election or appointment as a coroner, and who is in good standing in the person's profession.
Furthermore, in Piskura v. Taser Intern Inc., 2013 WL 3967323, the United States District Court, Southern District of Ohio, *11, noted:
In Ohio, a coroner may testify as an expert witness to assist the jury in determining the cause of death. Vargo v. Travelers Ins. Co., 34 Ohio St.3d 27, 30 (1987), receded from on procedural grounds by
Perez v. Cleveland Cty. Coroner, 78 Ohio St.3d at 378, 678 N.E.2d 537 (1997). "Medical examiners may qualify as expert witnesses who may express opinions on matters within their scope of expertise." TASER Int'l, Inc. v. Kohler, Chief Med. Examr. of Summit Cty., 2009-Ohio-1519, ¶ 25 (9th Dist.).See also State v. McFeeture, 2015-Ohio-1814, ¶ 132 (8th Dist.); State v. Harrison, 1993 WL 293971, *2 (Citing Vargo, "It is not only proper for a coroner to give an opinion as to the cause of death, but such opinion is to be given great weight."). "As with the testimony of any expert witness, a proper foundation must be laid for the coroner's opinion testimony, and the opinion must have the proper evidentiary basis." Harrison, supra.
{¶77} At trial, Dr. Trotter testified that he is both board-certified in emergency medicine and the elected Ross County Coroner. Dr. Trotter testified that he or an investigator from the coroner's office goes to the scene and collects information. In this case, Investigator Gray investigated the crime scene at Turner's home.
{¶78} As coroner, Dr. Trotter determines the cause and manner of death and investigates wrongful or concerning deaths. He explained the difference between the cause of death, a medical condition which immediately caused death, and the manner of death, which is a determination of whether the death was by accident, suicide, homicide, natural causes, or undetermined. Dr. Trotter also reviews autopsy findings and forensic toxicology. Dr. Trotter explained that the purpose of an autopsy is to look for injury, trauma, or some other source as the cause of death. He admitted that in rare instances, the Ross County Coroner's Office has ordered an autopsy in a suspected overdose case.
{¶79} In this case, Dr. Trotter reviewed the investigator's report compiled by Investigator Gray and the toxicology report. Based on Dr. Trotter's medical background and experience, along with the proper foundation laid for his testimony, we find no abuse of discretion with the trial court's ruling that Dr. Trotter could provide opinions as to the cause and manner of Turner's death.
{¶80} The prosecutor also questioned Dr. Trotter about the toxicology report, State's Exhibit 16. When the prosecutor inquired as to where "active substances in the body would be found," defense counsel again objected, this time on the basis that Dr. Trotter was not a toxicologist. The objection was overruled.
{¶81} However, after counsel's objection that Dr. Trotter was not a toxicologist, as with Investigator Gray, counsel proceeded to vigorously cross-examine Dr. Trotter about the toxicology report. Dr. Trotter again testified that blood results would be considered active drugs in the system. Specifically, defense counsel took Dr. Trotter through Page Three of the toxicology report and had him read again the urine positives which included Fentanyl, Norfentanyl, Oxymorphone, and benzoylecgonine (cocaine metabolite). Dr. Trotter admitted there were differences between the positive results of the blood and urine. He acknowledged there was a Norfentanyl positive in Ms. Turner's urine sample, but not in the blood sample. He also explained that Norfentanyl is a derivative of Fentanyl.
{¶82} Dr. Trotter further testified that the "illicit substances" he determined to be the cause of death would have been Fentanyl and cocaine derivative. Dr. Trotter noted that the "Benzos" were prescribed to Turner, and these did not affect his determination. He further testified that the substances that Turner tested positive for can be lethal individually.
{¶83} Defense counsel further elicited testimony from Dr. Trotter that either the cocaine or the Fentanyl could have been the actual material that caused Turner's death. And, Dr. Turner admitted he was not able to pinpoint the exact material which caused her death, and that one or both of the substances could have caused her to die. Dr. Trotter testified that although an autopsy wasn't performed, in his opinion there were no other factors which could have contributed to Turner's death.
{¶84} Evid.R. 702(C) requires that an expert's testimony be based on "reliable scientific, technical, or other specialized information." See State v. Gillum, 2022-Ohio-2005, ¶ 47 (5th Dist.). The basis of opinion testimony by experts is provided for in Evid.R. 703. Id. at ¶ 47. The rule states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." Although not on point, we observe that in McFeeture, supra, the appellate court found no merit to the argument that the toxicology reports were inadmissible because the toxicologist who prepared them did not testify at trial. The court noted that the toxicology reports were completed by the coroner's office as part of the autopsy protocol and routine business of the coroner's office. Id. at ¶ 90. In McFeeture, the person who did testify was a medical examiner who, in that case, performed an autopsy and issued an autopsy report but did not prepare the toxicology report. In Stewart v. Nazir, 2010-Ohio-6346, ¶ 54 (2d Dist.), the court of appeals found no abuse of discretion where physician who was board-certified in anatomic and forensic pathology and who served as chief medical examiner for the Commonwealth of Kentucky for 20 years, but was not certified in toxicology, rendered opinions about cocaine metabolites that contradicted with opinions of a board-certified toxicologist. In State v. Auerswald, 2013-Ohio-742 (9th Dist.), the victim-wife died by acute intoxication by a type of alcohol typically found in antifreeze. No direct evidence showed how she ingested the substance but the defendant-husband was convicted of aggravated murder. A doctor who supervised her autopsy testified at trial that her manner of death was homicide. On appeal, the court held that the opinion of the doctor who directly supervised performance of her autopsy and completion of the autopsy report was based, at least in part, on facts or data that he directly perceived during the autopsy. "Based upon the foregoing, we see no obvious error in the admission of Dr. Felo's testimony regarding [the victim's] manner of death, even if it is based, in part, on Medina police reports not in evidence." Id. at ¶ 41.
{¶85} Based on our review, we cannot find that the trial court abused its discretion by allowing Dr. Trotter, though not a toxicologist, to testify about the toxicology report. Dr. Trotter had previously testified about his medical education and experience as a board-certified emergency room physician. He was the Ross County Coroner who had served as elected coroner for over three years and had been with the coroner's office nearly five years. He also testified about his experience with the use of Fentanyl for pain control through his employment as an emergency room physician. He was familiar with the effective rate of Fentanyl whether intravenously or intramuscularly injected. He testified he had investigated overdose deaths "many times."
{¶86} Although the OARRS report was not admitted into evidence, the toxicology report was admitted and its authenticity was stipulated by the parties. The report was prepared as part of the routine business of the coroner's office. Furthermore, in this case, defense counsel cross-examined Dr. Trotter at length about the findings of the toxicology report. Any error in admission of such testimony was invited. We find no merit to Appellant's second argument contained within.
{¶87} Based on the foregoing, Appellant's second assignment of error is hereby overruled.
Assignment of Error III
{¶88} Within the same assignment of error, Appellant asserts two separate contentions that: (1) the trial court erred in granting the Assistant Ohio Public Defender's Motion to Withdraw; and, (2) the trial court erred by improperly denying her Motion to Order Transcripts at State Expense. While appellate courts may combine assignments of error, the Appellate Rules require an appellant's brief to separately argue each assignment of error. See DCI Rentals, LLC v. Sammons, 2024-Ohio-1962, at fn. 2 (4th Dist.); App.R. 16(A)(7). See also App.R. 12(A)(2) (court may disregard an assignment of error if appellant fails to separately argue it). We thus would be within our discretion to disregard this second argument.
{¶89} However, as noted in Sammons, we prefer to decide cases on their merits rather than procedural technicalities. Barksdale v. Van's Auto Sales, Inc., 38 Ohio St.3d 127, 128 (1988) (noting that a "basic tenet of Ohio jurisprudence [is] that cases should be determined on their merits and not on mere procedural technicalities"). Therefore, we will consider both arguments.
Standard of Review
{¶90} This court reviews a trial court's decision on a motion to withdraw as counsel for an abuse of discretion. State v. Williams, 2003-Ohio-4396, ¶ 135. Likewise, the determination of whether a criminal defendant is indigent and, thus, in need of appointed counsel is a matter within the sound discretion of the trial court. See State v. Weaver, 38 Ohio St.3d 160, 161 (1988). The determination of the trial court in this regard will not be reversed on appeal absent an abuse of discretion. Id. The abuse of discretion standard of review has been set forth fully above.
Legal Analysis
{¶91} We begin with Appellant's argument that the trial court abused its discretion in granting the Assistant Ohio Public Defender's Motion to Withdraw. The Sixth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution guarantee the right to assistance of counsel in all criminal prosecutions that may result in jail sentences. State v. Kasler, 2013-Ohio-3850, ¶ 10 (4th Dist.); State v. Wellman, 37 Ohio St.2d 162, 171 (1974); citing Argersinger v. Hamlin, 407 U.S. 25 (1972). "The constitutionally protected right to the assistance of counsel is absolute [and] absent a knowing and intelligent waiver, no person may be imprisoned for any offense * * * unless he was represented by counsel at his trial." State v. Tymcio, 42 Ohio St.2d 39, 43 (1975); citing Argersinger at 37, and Gideon v. Wainwright, 372 U.S. 335 (1963). On June 24, 2022, the trial court granted Appellant's Motion for Appointment of Counsel on Appeal.
{¶92} Thereafter, on July 7, 2022, Attorney Croushore filed in this Court a Notice of Appearance as co-counsel. On July 11, 2022, the Assistant Ohio Public Defender filed a motion in this Court to withdraw as counsel. On July 25, 2022, this Court granted the assistant public defender's motion. Once again, Appellant's argument is difficult to follow.
{¶93} No less than six times, Appellant's opening brief sets forth the first portion of the third assignment of error as "[t]he trial court abused its discretion in allowing the public defender to withdraw…." Thereafter, Appellant concedes: "On July 11, 2022, the Public Defender moved this Court to withdraw. Ms. Gonz present counsel opposed but this Court granted the motion." Appellant's only argument is that the Ohio Public Defender, pursuant to Ohio Administrative Code 120-1-16, "does not get to withdraw from a case merely because it does not wish to have co-counsel."
{¶94} Given that this Court decided the motion to withdraw, in order to pursue this argument, Appellant should have filed an application to reconsider our decision under App.R. 26. As the argument is presented herein, this Court would be within its authority to summarily overrule this argument without further discussion. The test regarding whether to grant a motion for reconsideration under App.R. 26(A)(1)(a)" 'is whether the motion * * * calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by [the court] when it should have been.'" State v. Conner, 2020-Ohio-4310, ¶ 2 (8th Dist.), citation omitted, quoting Matthews v. Matthews, 5 Ohio App.3d 140, 143 (10th Dist. 1982).
{¶95} Even if Appellant's argument was properly presented, it would likely have been found meritless. Ohio Administrative Code 120-1-16(D), changes in a client's eligibility for services, provides:
If, at any point in a case, a public defender or appointed counsel discovers that private counsel has been retained on behalf of an indigent defendant, the public defender or appointed counsel shall inform the court. For purposes of reimbursement, an indigent defendant may not have a public defender or appointed counsel, and private counsel that has been retained on the defendant's behalf.
In this case, the Assistant Ohio Public Defender represented in both the Motion to Withdraw and the Response to Memorandum Contra to Ohio Public Defender's Motion to Withdraw that she had received notice from Attorney Croushore that he had been retained by Appellant's family. Further, the Assistant Public Defender represented that she had spoken with Appellant on July 8, 2022 and had confirmed Appellant's choice for appellate counsel. Under these circumstances, we would not likely find error in our decision to grant the motion to withdraw.
{¶96} We also borrow reasoning from R.C. 120.16(E), Powers of Representation by County Public Defenders, which provides:
Nothing in this section shall prevent a court from appointing counsel other than the county public defender or from allowing an indigent person to select the indigent person's own personal counsel to represent the indigent person. A court may also appoint counsel or allow an indigent person to select the indigent person's own personal counsel to assist the county public defender as co-counsel when the interests of justice so require.(Emphasis added). Nothing in this record suggests a complexity of appellate issues or other legitimate reason necessitating that Appellant be provided co-counsel. Therefore, it appears that the interests of justice would not likely require that co-counsel be provided.
{¶97} Based on the foregoing, Appellant's first argument under the third assignment of error is overruled.
{¶98} We next consider Appellant's argument that the trial court erred when it denied Appellant's Motion for Transcripts at State Expense. On June 15, 2022, Appellant's trial counsel requested that transcripts be provided at State expense. Initially, the trial court granted this motion. On September 23, 2022, after many delays in preparation, Attorney Croushore filed a Motion to Order Preparation of Transcript. Attorney Croushore argued that notwithstanding Appellant's parents' retention of him for her appeal, her parents' financial standing was not relevant to her entitlement as an indigent person.
{¶99} Courts have long recognized that an indigent defendant has a constitutional right to a transcript at public expense for an appeal. State v. Nagy, 2019-Ohio-3058, ¶ 28 (11th Dist.); see State ex rel. Copeland v. Judges of Court of Appeals of Third Appellate Dist., 67 Ohio St.2d 1, 5 (1981); Griffin v. Illinois, 351 U.S. 12, 19-20 (1956) (plurality opinion). See also State v. Arment, 2003-Ohio-4089, ¶ 38, quoting State v. Armstrong, 18 Ohio App.2d 249, 248 (7th Dist. 1969) ("An indigent defendant has a due process and equal protection right to a free transcript because '[d]estitute defendants must be afforded as adequate appellate review as defendants who have money to buy transcripts.' "). However, this right is subject to certain limitations. Pursuant to OAC 120-1-03 (E)(3)," [a] defendant who retains counsel but does not have sufficient funds to pay for… transcripts, and other related expenses should be declared indigent for those purposes." As noted in State v Mansfield, 2016-Ohio-8189, (2d Dist.).
It is entirely conceivable that a defendant may be indigent for one purpose, but not for another. For example, a defendant's resources may be drained by the expenditure of obtaining private counsel. Thus, while a defendant can afford private counsel, he or she may not be able to afford
other costs of the case such as an investigator or expert witnesses.Id. at ¶ 7. See also State v. Pasqualone, 1999 WL 262174, *4 (11th Dist.).
{¶100} In the opening brief, Appellant argues that when her family retained counsel, the trial court considered only this factor in denying the transcripts at State expense. Further, Appellant argues that the failure of the court reporter to prepare the transcripts in a timely fashion severely constrained her ability to litigate her appeal. Appellant requests that the matter be remanded with instructions that her family's money be returned.
{¶101} In the trial court's November 16, 2022 Order denying the motion to order transcripts at the State's expense, the trial court stated:
The Court would note that a completed financial affidavit has not been provided. Further, the Defendant's retained counsel, Mr. Croushore, has failed to outline any fees or deposits paid in this matter that might have been paid to cover the costs of the transcripts.
We find no abuse of discretion with regard to the trial court's ruling.
{¶102} Ohio Administrative Code 120-1-03(H), Standards of Indigence, provides that "[f]inancial eligibility standards shall be liberally interpreted…." OAC 120-1-03(F) provides that "[a] preliminary determination of indigence status shall not foreclose a redetermination of eligibility if new information becomes known or if changes in circumstance affect the defendant's financial status." At the time of Appellant's initial motion for transcripts filed by trial counsel, Appellant had appointed counsel. However, by the time of Appellant's September 23, 2022 motion, Appellant had retained counsel. Yet, Appellant had not completed an updated financial affidavit. The sparse affidavit attached to the September motion was simply the same June 15, 2022, time-stamped 11:02 a.m., financial affidavit attached to appointed trial counsel's initial motion for transcripts. Furthermore, while the September motion indicated that the court reporter was requesting a $1,950 deposit, nothing attached to the motion verified this cost.
Appellant's November 30, 2022 Amended Notice of Appeal attaches the trial court's November 16, 2022 Order denying the motion for transcripts at State expense. The amended notice also attaches an estimate of costs from the court reporter in the amount of $2,276. This estimate does not appear to have been before the trial court when it initially ruled. In the trial court's record, on top of the Amended Notice of Appeal, is a yellow post-it note which contains the following printing: "for CR case only- not appeals per atty. Croushore." On the amended notice, 21CR 066, the trial court case number, is encircled in blue ink. Are we to surmise that the Amended Notice of Appeal was to serve as some sort of dual pleading, and the motion for transcripts was actually to go before the trial court again with the estimate of costs?
{¶103} In this case, by the time Appellant's new counsel filed the September motion, Appellant's financial circumstances appeared, on the record, to have changed. Yet, Appellant did not provide an updated and fully completed financial affidavit. Based on the evidence before the trial court when ruling on the November 2022 motion, we cannot say that the trial court abused its discretion in denying the motion. Nor do we find that Appellant's ability to litigate her appeal has been prejudiced by the delays in preparing the transcript, which are well-documented in the appellate record. Based on the foregoing, we find no merit to Appellant's second argument herein. The third assignment of error is hereby overruled.
It appears that during the many months that Appellant requested extensions, the reasons set forth in the motions in support indicated that the court was severely understaffed; the only court reporter available was overwhelmed with the workload and unsure of how to proceed given Appellant's indigent status yet provision of retained counsel; and the court reporter also experienced personal illness.
{¶104} Within the third assignment of error, Appellant has requested that the matter be remanded with instructions for her family's money to be returned. Subsequent to the November 2022 motion, the record contains a document captioned: CLERK'S/AUDITOR'S TRANSCRIPT FEE FOR AN INDIGENT DEFENDANT. The document contains a "Judgment Entry and Declaration of Indigence" signed by the trial court. This entry states within:
A Financial Disclosure form (OPD-206R) for the Defendant/Party Represented is attached to this document. I hereby certify that the Defendant/Party Represented has been found indigent for purposes of receiving this transcript at government expense. IT IS THEREFORE ORDERED that the transcript fees be, and are hereby approved in the amount of $2,058. It is further ordered that the said amount be, and hereby is, certified by the Court to the County Auditor for Payment.
On July 26, 2023, the Ross County Clerk of Courts' docket entry in Appellant's criminal case reads: MOTION FOR RETURN OF TRANSCRIPT FUNDS FILED. In Appellant's Reply brief, it is represented that "[s]ince Ms. Gonz's initial brief the trial court apparently caused the court reporter who was paid for the transcript to refund most, but not all of the fee paid to her…the basis for the amount refunded, $1,820, is unknown."
{¶105} Based on these scant facts surrounding the requested refund of transcript fees to Appellant's family, we remand the matter to the trial court for proceedings consistent with this opinion. See Johnson v. Johnson, 2021-Ohio-16 ¶ 70 (2d Dist.) (Matter remanded, in part, for trial court to clarify its order regarding one party's responsibility for "all outstanding bills associated with the prior marital residence").
JUDGMENT AFFIRMED. CAUSE REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and CAUSE REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Costs to be assessed to Appellant. The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J., concur in Judgment and Opinion.
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.