[Cite as State v. Patterson,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO : OPINION

Plaintiff-Appellee/ : Cross-Appellant, CASE NO. 2013-T-0062 : - vs - : JAMES LAMAR PATTERSON, : Defendant-Appellant/ Cross-Appellee. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 12 CR 519.

Judgment: Affirmed in part, reversed in part, and remanded.

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee/Cross-Appellant).

Louis M. DeFabio, 4822 Market Street, Suite 220, Youngstown, OH 44512 (For Defendant-Appellant/Cross-Appellee).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant/cross-appellee, James Lamar Patterson (aka

“Fresh”), appeals his convictions and sentencing for various counts of Reckless

Homicide, Corrupting Another with Drugs, Trafficking in Heroin, and Tampering with

Evidence. Plaintiff-appellee/cross-appellant, the State of Ohio, cross-appeals the lower court’s decision to merge certain Trafficking counts at the time of sentencing. Patterson

received an aggregate prison sentence of twenty years. The issues before this court

are whether the alleged failure to conduct a formal arraignment on a superseding

indictment requires the dismissal of the charges; whether it is error not to sever charges

for trial where the charges are based on separate drug transactions; whether Drug

Trafficking, Corrupting Another with Drugs, and Reckless Homicide are allied offenses

where the sale of heroin to a juvenile results in her death; whether convictions for

Involuntary Manslaughter, Reckless Homicide, and Corrupting Another with Drugs are

supported by sufficient/the manifest weight of the evidence, based on testimony that the

defendant sold drugs which a third person administered to the victim resulting in the

victim’s death; whether a trial court may increase a particular sentence in order to

maintain the length of the aggregate sentence after merger; and whether separate

counts of Trafficking may be supported where the defendant has sold a portion of heroin

but retained another portion for subsequent sale. For the following reasons, we affirm

Patterson’s convictions and sentence, except with respect to Trafficking in Heroin

(Counts 5 and 6) which the trial court erroneously merged. The case is remanded for

further proceedings consistent with this opinion.

{¶2} On September 5, 2012, the Trumbull County Grand Jury issued an

Indictment, charging Patterson with the following: Involuntary Manslaughter (Count 1), a

felony of the first degree in violation of R.C. 2903.04(A) and (C); Corrupting Another

with Drugs (Count 2), a felony of the second degree in violation of R.C. 2925.02(A)(3)

and (C)(1); Corrupting Another with Drugs (Count 3), a felony of the second degree in

violation of R.C. 2925.02(A)(4) and (C)(1); Trafficking in Heroin (Count 4), a felony of

2 the fourth degree in violation of R.C. 2925.03(A)(1) and (C)(6)(b); Trafficking in Heroin

with a Specification of Forfeiture (Count 5), a felony of the third degree in violation of

R.C. 2925.03(A)(1) and (C)(6)(c), 2941.1417(A), 2981.02(A)(2) and/or (3)(a), and

2981.04; Trafficking in Heroin with a Specification of Forfeiture (Count 6), a felony of the

first degree in violation of R.C. 2925.03(A)(2) and (C)(6)(e), 2941.1417(A),

2981.02(A)(2) and/or (3)(a), and 2981.04; Possession of Cocaine with a Specification of

Forfeiture (Count 7), a felony of the fifth degree in violation of R.C. 2925.11(A) and

(C)(4)(a), 2941.1417(A), 2981.02(A)(2) and/or (3)(a), and 2981.04; and Tampering with

Evidence (Count 8), a felony of the third degree in violation of R.C. 2921.12(A)(1) and

(B).

{¶3} Counts 1 through 4 of the Indictment alleged that, on April 6, 2012,

Patterson sold heroin in Girard, Ohio, and that the heroin was ultimately used by a

seventeen-year-old girl named Christine Sheesley who died as a result of her ingestion

of the heroin. Counts 5 through 8 of the Indictment alleged that, on May 24, 2012,

Patterson made a drug sale to a police informant during a controlled buy in Girard,

Ohio, and that Patterson possessed various drugs and attempted to hide or conceal

those drugs during his arrest.

{¶4} On October 29, 2012, Patterson was arraigned and entered a plea of Not

Guilty.

{¶5} On January 15, 2013, the Trumbull County Grand Jury issued a

Superseding Indictment. The Superseding Indictment was identical to the original

Indictment except in the following respects: The Specification of Forfeiture in Counts 5,

6, and 7 of the original Indictment identified the subject property as “a vehicle.” In the

3 Superseding Indictment, the subject property was identified as “a vehicle, one 1999

Ford Expedition, VIN 1FMPU18L9XLA53467.” Additionally, the Superseding Indictment

added the following language to Count 6 (Trafficking in Heroin) of the original

Indictment: “and the amount of the drug involved equals or exceeds ten grams but is

less than fifty grams of Heroin, and the offense was committed in the vicinity of a

juvenile, date of birth 04/22/95, * * *.”

{¶6} On January 29, 2013, the trial court’s docket noted that an

arraignment/pre-trial hearing was scheduled for February 14, 2013.

{¶7} On February 14, 2013, the trial court’s docket noted: “set final pre trial[,]

waiver of speedy trial for an additional 30 days and sets a trial date for [5]/13/13.”

{¶8} On May 10, 2013, Patterson filed a Motion to Sever Charges, seeking to

have Counts 1 through 4 tried separately from Counts 5 through 8.

{¶9} On May 13, 2013, Patterson filed a Motion to Dismiss, on the grounds that

he “was never arraigned on the superseding indictment.”

{¶10} A jury trial on the charges against Patterson commenced on May 13, and

concluded on May 15, 2013. At the beginning of trial, the trial court denied Patterson’s

Motions to Sever Charges and to Dismiss. The following witnesses testified on behalf

of the State:

{¶11} Judy Sheesley testified that she was the mother of Christine Sheesley,

born on April 6, 1995. On April 6, 2012, Judy Sheesley had dinner with her daughter to

celebrate her birthday. Christine Sheesley received a gift of sixty dollars in cash.

{¶12} Captain John Norman of the Girard Police Department testified that, on

the morning of April 7, 2012, he responded to a dispatch regarding an unresponsive

4 female in an apartment at 502 Park Avenue in Girard, Ohio. At the scene, Norman

discovered Sheesley’s lifeless body, Tyler Stevens (who called the police), and Alexis

(Lexi) Hugel. After Sheesley’s body was removed, Norman questioned Stevens and

Hugel at the police station. Stevens and Hugel were interviewed several times and

initially gave conflicting accounts of events. As a result of the interview, Norman began

a search for a person known as Fresh, later identified as James Patterson.

{¶13} Steve Perch, the toxicologist for the Summit County Medical Examiner’s

Office, analyzed samples of Sheesley’s blood and urine. In Sheesley’s blood Perch

found morphine present in an amount less than the reportable level of 25 nanograms

per milliliter. In Sheesley’s urine Perch noted the presence of morphine and 6-

monoacetylmorphine.

{¶14} Perch explained that morphine (diacetylmorphine) in the blood

metabolizes in less than ten minutes into a compound known as 6-

monoacetylmorphine. Within fifteen to twenty minutes, the 6-monoacetylmorphine

breaks down into morphine. Within a few hours, all trace of heroin may be eliminated

from a person’s blood. A similar process of metabolization occurs in urine, but at a

slower rate. The primary metabolite, 6-monoacetylmorphine, is peculiar to heroin and

would not be present if Sheesley had ingested morphine sulfate or other forms of

morphine.

{¶15} Perch was unable to offer an opinion as to when Sheesley ingested heroin

or how much she ingested, but testified to a reasonable degree of scientific certainty

that she had ingested heroin.

5 {¶16} Dr. Humphrey Donald Germaniuk, the coroner and medical examiner for

Trumbull County, conducted an autopsy on Sheesley and determined her cause of

death to be “acute heroin intoxication combined with acute pulmonary pneumonia.” Dr.

Germaniuk noted the presence of moderate edema/congestion in the lungs and mild

cerebral edema, both of which are consistent with the ingestion of a lethal amount of

heroin. Dr. Germaniuk also explained that the sudden onset of pneumonia occurs from

the depression of the respiratory system, an effect of heroin ingestion, which allows

secretions to enter the lungs. The source of the secretions was unidentified, but they

may have come from Sheesley’s own bodily fluids (saliva, mucus, et cetera) or an

external source, such as water being poured on her face.

{¶17} Alexis Hugel, seventeen-years-old at the time and a friend of Sheesley’s,

accompanied her on the evening of April 6, 2012. After having dinner with Sheesley’s

family, they went to Tyler Stevens’ apartment in the early evening. Sheesley had

decided to do heroin that night. After a phone call from Stevens, Fresh/Patterson

arrived at the apartment. Patterson remained by the door while “Christine got out

money and handed it to Tyler and Tyler handed it to Fresh.” In return, “Fresh gave

Tyler something.” During the transaction, neither Sheesley nor Hugel spoke with

Patterson. After about fifteen minutes, Patterson departed.

{¶18} Hugel left the apartment before Stevens and Sheesley ingested the

heroin. When she returned, Sheesley was “passed out” and “slumped down over [a

recliner] chair” in the front room. Stevens was “nervous” and “moving around a lot.”

Sheesley was moved to the bedroom where they tried to awaken her. Sheesley was

making “gurgling noises” and a sound like “muffled” crying. Around midnight, Patterson

6 returned to the apartment. “He said that she needed rest, and that if she didn’t wake up

to put her in a cold shower.” Patterson remained about a half of an hour in the

apartment before departing again. Hugel fell asleep. While she slept, Stevens dragged

Sheesley back into the front room.

{¶19} When Hugel was first interviewed by the police, she did not mention that

heroin was involved to avoid getting in trouble.

{¶20} Tyler Stevens, eighteen-years-old at the time, lived at the Park Avenue

apartment with his father. Stevens had known Patterson for about three years. On

April 6, 2012, Stevens arranged to buy fifty dollars worth of heroin from Patterson for

Sheesley. Stevens called Patterson after Sheesley and Hugel arrived at his apartment.

Patterson “walked in the door” and “started talking for a minute.” Sheesley remained

seated near the door. According to Stevens: Patterson “goes to hand me the heroin, I

said, ‘No, Christine, she has the money. Hand it to her.’” Patterson set the heroin down

on a table and Sheesley handed him a fifty dollar bill.

{¶21} After Patterson and Hugel departed, Stevens injected himself with heroin,

and then Sheesley. Stevens passed out. When he awoke, he found Sheesley passed

out in the recliner. Later, after Hugel came back, Stevens became concerned and tried

to awaken Sheesley. He “put water on her,” “shook her,” and “smacked her a few

times.” Stevens called Patterson and asked him “to come back to smoke a blunt.”

Patterson “looked at her and said she would be all right.”

{¶22} The following morning, Stevens called the police. At the time, he believed

Sheesley was still alive because he heard “the rattles.”

7 {¶23} Stevens admitted that he lied to the police about using heroin during his

initial interview. Stevens also threw away the phone he had used to call Patterson in

Mill Creek Park and had his father dispose of the needle he used to inject Sheesley.

{¶24} As a result of Sheesley’s death, Stevens pled guilty to Involuntary

Manslaughter, Corrupting Another with Drugs, Trafficking in Heroin, and Permitting Drug

Abuse. In exchange for his testimony against Patterson, the State agreed to

recommend a five-year prison sentence for all charges.

{¶25} Officer John Freeman of the Girard Police Department testified that he

was made aware of Patterson by Captain Norman. Freeman arranged for a confidential

informant, named Theodore Thomas aka Riggs, to set up a controlled buy of heroin

from Patterson.

{¶26} The controlled buy occurred on May 24, 2012, at JP’s Car Wash located

at 605 Trumbull Avenue, in Girard. Freeman observed a blue Ford Expedition enter

one of the wash bays and Thomas approach the vehicle. At this point, police officers

moved on the car wash to effect an arrest. There were three persons in the vehicle:

Patterson in the driver’s seat; Aaron Profanchik in the passenger’s seat; and Keairra

Price in the rear seat. Patterson did not comply with Freeman’s command to show his

hands. Instead, he “was making a lot of furtive movements” and “appeared that he was

either grabbing for something or attempting to conceal something around his person.”

Freeman recovered two bags of heroin from the vehicle and two-hundred and seventy-

four dollars in cash from Patterson.

{¶27} Aaron Profanchik was a passenger in Patterson’s vehicle at the time of

arrest. At the car wash, Profanchik observed a “white dude” handing Patterson money.

8 Next, Profanchik heard Patterson say, “the police is on us,” looked up, and saw the

police approaching with guns drawn and ordering Patterson to “freeze.” Patterson

screamed, “here, Moochie” (Price’s nickname), and began taking things from his pants

and throwing them into the back seat. A police officer then tasered Patterson.

{¶28} Keairra Price is Profanchik’s girlfriend and was seventeen-years-old at the

time of the controlled buy. She observed the white man approach and give Patterson

money. When the police appeared, Patterson “threw stuff in the back seat,” which Price

picked up and put inside her pants. Price surrendered “the stuff” to the police after

being removed from the vehicle.

{¶29} Theodore Thomas is a “professional confidential informant” for the Girard

Police Department. At Officer Freeman’s request, he arranged to buy about two-

hundred and forty dollars worth of heroin from Patterson. At the car wash, he gave

Patterson the money and received heroin in a “plastic baggie” with “the corner tied up.”

At the approach of the police, Thomas ran from the wash bay.

{¶30} Detective Greg Manente works for the Girard Police Department and is

assigned to the Northern Ohio United States Marshalls Task Force. Manente testified

that a typical street buy of heroin involves less than a gram, which is worth “roughly”

one-hundred and forty to one-hundred and sixty dollars. For an individual to be in

possession of ten or more grams of heroin is an indication that the individual is

trafficking.

{¶31} Manente observed the controlled buy on May 24, 2012: “The driver looked

at me and immediately turned into the back seat with his hands out of my view.”

9 Manente tasered the driver of the vehicle and recovered narcotics from the female in

the back seat.

{¶32} Shervone Bufford, a forensic scientist with the Ohio Bureau of Criminal

Identification and Investigation, analyzed the narcotics seized during the controlled buy.

She identified the substance recovered from Thomas as 0.5 grams of heroin, the

substances recovered from the vehicle as 1.1 grams of heroin and 2.7 grams of

cocaine, and the substance recovered from Price as 10.1 grams of heroin.

{¶33} Detective Scott Strain, a juvenile detective and school resource officer

with the Girard Police Department, conducted interviews with Stevens and Hugel and

participated in the controlled buy resulting in Patterson’s arrest.

{¶34} At the close of the State’s case, Patterson moved for acquittal pursuant to

Criminal Rule 29(A). The court denied the motion. Thereafter, Patterson successfully

motioned the court to include a jury instruction on Reckless Homicide as a lesser

included offense of Involuntary Manslaughter.

{¶35} On May 16, 2013, the jury returned the following verdicts: not guilty of

Involuntary Manslaughter (Count 1), but guilty of the lesser included offense of Reckless

Homicide, a felony of the third degree in violation of R.C. 2903.041(A) and (B); guilty of

Corrupting Another with Drugs (Count 2); guilty of Corrupting Another with Drugs (Count

3); guilty of Trafficking in Heroin (Count 4); guilty of Trafficking in Heroin (Count 5);

guilty of Trafficking in Heroin (Count 6); not guilty of Possession of Cocaine (Count 7);

and guilty of Tampering with Evidence (Count 8). On motion of the State, the

Specifications of Forfeiture were dismissed.

10 {¶36} On May 23, 2013, a sentencing hearing was held. Before imposing

sentence, the trial court merged Counts 2 and 3 (Corrupting Another with Drugs), with

the State electing to proceed on Count 3, and Counts 5 and 6 (Trafficking in Heroin),

with the State electing to proceed on Count 6. The court ordered Patterson to serve a

prison sentence of thirty-six months on Count 1 (Reckless Homicide), seven years

mandatory on Count 3 consecutive to Count 1, eighteen months on Count 4 (Trafficking

in Heroin) to run concurrent with Count 1, seven years mandatory on Count 6 to run

consecutive to Count 3, and thirty-six months on Count 8 (Tampering with Evidence) to

run consecutive to Count 6, for an aggregate prison term of twenty years, of which

fourteen years are mandatory. The court further ordered Patterson to pay a mandatory

fine of $15,000 with respect to Count 3, suspended his driver’s license for a period of

five years, and advised him of post-release control.

{¶37} On May 31, 2013, the trial court issued its written Entry on Sentence,

which failed to include the prison sentence for Count 4.

{¶38} On June 7, 2013, Patterson filed his Notice of Appeal.

{¶39} On June 17, 2013, the State filed its Notice of Cross-Appeal.

{¶40} On August 23, 2013, the trial court issued a Nunc pro Tunc Entry on

Sentence, including the prison sentence for Count 4.

{¶41} On appeal, Patterson raises the following assignments of error:

{¶42} “[1.] The trial court failed to formally arraign the Appellant on the

Super[s]eding Indictment and Appellant raised this issue prior to trial pursuant to a

Motion To Dismiss, however, that motion was denied by the trial court. The trial court

11 erred in overruling said motion and, therefore, Appellant’s convictions must be

reversed.”

{¶43} “[2.] The trial court erred in refusing to sever Counts 1 through 4 from

Counts 5 through 8 for trial. The two (2) sets of crimes occurred on two (2) separate

dates. The evidence relating to each charge was not simple and direct and evidence

relating to one (1) set of charges would not have been admissible, as “Other Acts”

evidence, at the trial of the second set of charges.”

{¶44} “[3.] With respect to Counts 1 through 4, the Appellant committed a single

act, with a single state of mind and, therefore, the offenses were committed by the same

conduct. As such, the offenses were allied offenses of similar import and should have

merged for purposes of sentencing. The trial court erred in refusing to merge the

sentences for said offenses.”

{¶45} “[4.] The trial court erred in overruling the Appellant’s Crim.R. 29 motion as

to the Involuntary Manslaughter charge (Count 1) and the Corrupting Another With

Drugs charges (Counts 2 and 3) as there was insufficient evidence to allow the charges

to be presented to the jury. Further, the jury’s verdicts of Guilty as to Counts 2 and 3

[and] the lesser included offense of Reckless Homicide was not supported by sufficient

evidence and was against the manifest weight of the evidence.”

{¶46} “[5.] The trial court erred and abused its discretion by increasing the

Appellant’s sentence on Count 8 from two (2) years to three (3) years at the conclusion

of the sentencing hearing.”

{¶47} The State raises the following assignment of error on cross-appeal:

12 {¶48} “[1.] The trial court erred in merging Counts 5 and 6 for sentencing

purposes when they are not allied offenses of similar import.”

{¶49} In Patterson’s first assignment of error, he contends that the charges

against him in the Superseding Indictment should have been dismissed as he was

never formally arraigned on those charges.

{¶50} The arraignment of a defendant “shall be conducted in open court, and

shall consist of reading the indictment, information or complaint to the defendant, or

stating to the defendant the substance of the charge, and calling on the defendant to

plead thereto.” Crim.R. 10(A). “When a defendant not represented by counsel is

brought before a court and called upon to plead, the judge or magistrate shall cause the

defendant to be informed and shall determine that the defendant understands,” inter

alia, that he “has a right to retain counsel even if the defendant intends to plead guilty,

and has a right to a reasonable continuance in the proceedings to secure counsel,” and

that he “has a right to counsel, and the right to a reasonable continuance in the

proceeding to secure counsel, and, * * * the right to have counsel assigned without cost

if the defendant is unable to employ counsel.” Crim.R. 10(C)(1) and (2).

{¶51} “In Ohio, the general rule is that arraignment under the criminal rules is not

necessary when the defendant knows what he or she is accused of and is able to

adequately defend himself or herself.” Lewis v. Akron Mun. Court, N.D.Ohio No. 05: 09

CV 1418,

, 11 (May 4, 2011), citing Hamilton v. Brown,

,

(12th Dist. 1981). “Vacating convictions for lack

of formal arraignment proceedings is predicated on the existence of possible prejudice.

* * * The interests presumptively at issue are the right to know of the charges and the

13 right to adequately prepare a defense, rights which might be prejudiced by the lack of

formal charge and entry of plea until the beginning of trial proceedings.” (Citation

omitted.)

; State v. Gates, 11th Dist. Portage No. 2011-P-0001, 2011-

Ohio-5711, ¶ 8 (the purpose of the arraignment is “to advise the accused of his

constitutional rights and to inform him of the nature of the charge against him”) (citation

omitted).

{¶52} Patterson claims he “was prejudiced due to the failure to inform him of his

rights to counsel * * *[;] had the Appellant been advised of his rights to counsel at his

arraignment (which would have been several months prior to trial), he would have

understood, then, that he had a right to seek other counsel or, if he could not afford

other counsel, that he could seek appointed counsel.” Appellant’s brief at 9-10.

{¶53} Assuming, arguendo, that Patterson was not formally arraigned on the

Superseding Indictment,1 we find no prejudice. The record before this court

demonstrates that Patterson was both aware of and exercising his right to counsel

irrespective of arraignment under the Superseding Indictment. On October 29, 2012,

Patterson was formally arraigned under the original Indictment, which was substantially

similar to the Superseding Indictment. As a result of the prior arraignment, Patterson

would have been aware of the nature of the charges against him and his constitutional

rights. Subsequent to the original arraignment, Patterson retained counsel who

represented him at the February 14, 2013 arraignment/pre-trial. On this date,

. The trial court scheduled Patterson for arraignment/pre-trial on the Superseding Indictment on February 14, 2013. A pre-trial was held on that date, at which Patterson waived his right to a speedy trial, but the court’s docket does not indicate whether there was a reading of the Indictment in open court. On November 20, 2013, during the course of the appeal, counsel for Patterson advised this court that a transcript of the February 14, 2013 arraignment/pre-trial had been requested, but not prepared.

14 executed a Waiver of Speedy Trial rights, which document was signed by both

Patterson and his counsel. As Patterson had legal representation at this time, the trial

court was not required under the Criminal Rules to advise him of his Sixth Amendment

rights. Crim.R. 10(C). Patterson’s subsequent dissatisfaction with trial counsel was in

no way connected with the failure to formally arraign him under the Superseding

Indictment. In the absence of any colorable claim of prejudice arising from the

arraignment procedure in this case, Patterson’s argument must be rejected.

{¶54} The first assignment of error is without merit.

{¶55} Under the second assignment of error, Patterson argues that the trial court

erred by denying his Motion to Sever Charges.2

{¶56} “Two or more offenses may be charged in the same indictment,

information or complaint in a separate count for each offense if the offenses charged,

whether felonies or misdemeanors or both, are of the same or similar character, or are

based on the same act or transaction, or are based on two or more acts or transactions

connected together or constituting parts of a common scheme or plan, or are part of a

course of criminal conduct.” Crim.R. 8(A).

{¶57} In the present case, the two sets of charges, Counts 1 through 4 and

Counts 5 through 8, are of a similar character (both being drug transactions) and are

connected inasmuch as the controlled buy arose out of the investigation of Sheesley’s

death.

2. Patterson’s Motion to Sever Charges was untimely filed on May 10, 2013, three days before trial commenced. Crim.R. 12(D) (“[a]ll pretrial motions * * * shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier”); Crim.R. 12(C)(5) (“[t]he following must be raised before trial * * * [r]equests for severance of charges or defendants under Crim. R. 14”). The failure to file a timely motion for severance is sufficient reason for its denial. State v. Bell, 3rd Dist. Seneca No. 13-12-39,

.

15 {¶58} “If it appears that a defendant or the state is prejudiced by a joinder of

offenses or of defendants in an indictment, information, or complaint, or by such joinder

for trial together of indictments, informations or complaints, the court shall order an

election or separate trial of counts, grant a severance of defendants, or provide such

other relief as justice requires.” Crim.R. 14.

{¶59} “To prevail on his claim that the trial court erred in denying his motion to

sever, the defendant has the burden of demonstrating three facts. He must affirmatively

demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to

sever he provided the trial court with sufficient information so that it could weigh the

considerations favoring joinder against the defendant’s right to a fair trial, and (3) that

given the information provided to the court, it abused its discretion in refusing to

separate the charges for trial.” State v. Schaim,

,

(1992); State v. Torres,

,

(1981), syllabus.

{¶60} “When a defendant claims that he was prejudiced by the joinder of

multiple offenses, a court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed, and (2) if not, whether the

evidence of each crime is simple and distinct.”

“Thus, when simple and direct

evidence exists, an accused is not prejudiced by joinder regardless of the

nonadmissibility of evidence of these crimes as ‘other acts’ under Evid.R. 404(B).”

State v. Lott,

,

(1990).

{¶61} Patterson claims that the joinder in the present case was prejudicial in that

the events of the May 24, 2012 controlled buy constituted “other acts” evidence which

tended “to show that Appellant was a drug trafficker and should be convicted in the sale

16 of drugs to Mr. Stevens and the death of Ms. Sheesley on that basis alone.” Patterson

further claims the testimony regarding the controlled buy bolstered Stevens’ and Hugel’s

credibility which “was significantly called into question given their conflicting testimony

and their inconsistent and untruthful prior statements.” Appellant’s brief at 14-15.

{¶62} We find no prejudice resulting from the joinder of charges in the present

case and that the evidence of each crime was simple and direct. Patterson’s

involvement in the controlled buy was firmly established by the testimony of police

officers and the passengers in Patterson’s vehicle. His involvement in Sheesley’s death

was established by the testimony of Stevens and Hugel. With respect to Stevens’

testimony, there was no possibility of misidentification. Stevens testified that he had

known Patterson for several years and deliberately contacted him to obtain heroin on

Sheesley’s behalf. If Stevens’ identification were to be discredited, the jury would have

to conclude that he intentionally lied about the source of the heroin. The corroboration

of Stevens’ testimony by Hugel’s identification was much more significant than

Patterson’s subsequent involvement in the controlled buy. Hugel, unlike Stevens, was

not charged in connection with Sheesley’s death and so received no consideration for

her testimony. Hugel did not use heroin and did not like Stevens. She observed

Patterson on two occasions during the night of April 6, during the course of which she

spoke with him and he introduced himself as “Fresh.” Patterson’s involvement in the

controlled buy had little corroborative value as to whether Stevens was intentionally

lying to implicate Patterson in Sheesley’s death. Torres,

,

(joinder was not improper where the evidence “was amply sufficient to

sustain each verdict, whether or not the indictments were tried together”).

17 {¶63} Moreover, the testimony regarding the events of April 6, 2012, and May

24, 2012, was simple and direct. The two incidents involved different witnesses,

occurred at different locations, and were separated in time by over a month and a half.

Courts have regularly held that joinder in such circumstances is not improper, even

when the different sets of charges are drug related. State v. Harris, 8th Dist. Cuyahoga

Nos. 98183 and 98184,

(“the jury could reasonably separate the

evidence as to each charge” where “the offenses in each case pertained to drug-related

activity in the appellant’s home, at which the police executed search warrants on two

separate occasions”); State v. Cassell, 10th Dist. Franklin Nos. 08AP-1093 and 08AP-

1094,

, ¶ 59 (“[a]lthough both incidents involved Jones and appellant,

the incidents took place six months apart, at separate locations”); State v. Wilkins, 12th

Dist. Clinton No. CA2007-03-007,

(rejecting the argument that

“the cumulatory effect of evidence made it more likely that a jury would find * * * [the

appellant] was guilty of the more serious crimes, though those crimes are based

allegedly on ambiguous evidence,” where the evidence supporting various trafficking

convictions was simple, direct, and legally sufficient).

{¶64} The second assignment of error is without merit.

{¶65} In the third assignment of error, Patterson contends the trial court erred by

not merging Counts 1 through 4 as allied offenses of similar import.

{¶66} Ohio’s multiple counts statute or allied offenses of similar import statute

provides:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the

18 indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in two or

more offenses of the same or similar kind committed separately or

with a separate animus as to each, the indictment or information

may contain counts for all such offenses, and the defendant may be

convicted of all of them.

R.C. 2941.25; State v. Ruff,

,

,

,

paragraph three of the syllabus (“a defendant whose conduct supports multiple offenses

may be convicted of all the offenses if any one of the following is true: (1) the conduct

constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were

committed separately, or (3) the conduct shows that the offenses were committed with

separate animus”).

{¶67} “In determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the

conduct, the animus, and the import.”

at paragraph one of the syllabus. “Two or

more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the

defendant’s conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.”

at paragraph two of the

syllabus.

{¶68} The Ohio Supreme Court has recognized that an allied offenses inquiry

“must focus on the defendant’s conduct to determine whether one or more of the

19 convictions may result because an offense may be committed in a variety of ways and

the offenses committed may have different import.” Id. at ¶ 30. The Supreme Court

rejected a “bright-line rule” applicable in every situation: “this analysis may be

sometimes difficult to perform and may result in varying results for the same set of

offenses in different cases,” which results “are permissible, given that the statute

instructs courts to examine a defendant’s conduct—an inherently subjective

determination.” Id. at ¶ 32, citing State v. Johnson,

, 2010-Ohio-

6314,

, ¶ 52 (plurality opinion per Brown, C.J.).

{¶69} The trial court is not required to merge the offenses until after the jury has

returned its verdicts. “Allied offenses of similar import do not merge until sentencing,

since a conviction consists of verdict and sentence.” State v. McGuire,

,

(1997); Johnson at ¶ 47 (“[u]nder R.C. 2941.25, the court

must determine prior to sentencing whether the offenses were committed by the same

conduct”).

{¶70} “An appellate court should apply a de novo standard of review in reviewing

a trial court’s R.C. 2941.25 merger determination.” State v. Williams,

,

,

.

{¶71} In the present case, the trial court merged Counts 2 and 3, Corrupting

Another with Drugs, and the State elected to proceed on Count 3. Accordingly, we will

begin our analysis by comparing Corrupting Another with Drugs with Count 4,

Trafficking in Heroin, as charged in the Superseding Indictment. To commit Corrupting

Another with Drugs, the offender must “[f]urnish or administer a controlled substance to

a juvenile who is at least two years the offender’s junior, when the offender knows the

20 age of the juvenile or is reckless in that regard.” R.C. 2925.02(A)(4)(a). To commit

Trafficking in Heroin, the offender must “[s]ell or offer to sell a controlled substance * * *

in the vicinity of a juvenile.” R.C. 2925.03(A)(1) and (C)(6)(b). Under the facts of this

case, the offenses of Trafficking and Corrupting Another with Drugs caused separate,

identifiable harm, and so were of dissimilar import, and the offenses were committed

with a separate animus or motivation.

{¶72} The offense of Trafficking involved two persons, Stevens and Sheesley.

Stevens contacted Patterson and arranged the sale. When Patterson arrived at the

apartment, it became evident that the purchase was being made on behalf of Sheesley.

Patterson’s conduct with respect to Stevens was necessarily different than to Sheesley.

It was no longer a matter of selling heroin to Stevens, but selling heroin to Stevens for

the purpose of furnishing the drug to Sheesley. Compare State v. Simmons, 7th Dist.

Jefferson No. 06 JE 4,

(recognizing, pre-Johnson, that

Trafficking and Corrupting Another with Drugs are not always committed by the same

conduct: “inducing or causing a juvenile to commit a felony drug abuse offense does not

require any sale or offer to sell”). The harm (import) from the sale of heroin to an adult

(Stevens) is distinct from the harm (import) from the sale of heroin to a juvenile

(Sheesley). That such a distinction was contemplated by the legislature is evidenced by

the enhanced penalties prescribed when Trafficking and Corrupting Another with Drugs

involve a juvenile.

{¶73} Consistent with the determination that the two offenses were of dissimilar

import, they were motivated by a distinct state of mind/animus. As noted by the State:

21 “[b]y corrupting, as opposed to trafficking, [Patterson’s] motivation changes from one of

profit to one addicting a minor to a dangerous drug.” Appellee’s brief at 21.

{¶74} We will now analyze the act of selling/furnishing heroin to a juvenile with

Count 1, Reckless Homicide. To commit Reckless Homicide, the offender must

“recklessly cause the death of another.” R.C. 2903.041. The State had predicated the

original charge, Involuntary Manslaughter, on the commission of either Trafficking in

Heroin or Corrupting Another with Drugs as predicate offenses. The jury convicted

Patterson of Reckless Homicide as a lesser included offense of Involuntary

Manslaughter. It follows that it is at least possible to base a conviction for Reckless

Homicide on conduct constituting Corrupting Another with Drugs/Trafficking in Heroin.

{¶75} Patterson’s conviction for Reckless Homicide is evidenced by distinct

conduct and animus. By acquitting Patterson of Involuntary Manslaughter, predicated

on the underlying charges of Corrupting Another with Drugs/Trafficking in Heroin, the

jury necessarily considered Patterson’s conduct outside of the predicate offenses in

finding him guilty of Reckless Homicide.3 After the sale of the heroin, Stevens,

concerned about Sheesley’s failure to regain consciousness, called Patterson back to

the apartment. According to both Stevens and Hugel, Patterson gave assurances that

Sheesley would be fine, and so dissuaded them from seeking medical attention for

Sheesley and contributed to her death. Patterson’s return to the apartment after the

sale of the heroin was completed constituted additional conduct with a separate animus,

3. To commit the offense of Involuntary Manslaughter, the offender must “cause the death of another * * * as a proximate result of the offender’s committing * * * a felony.” R.C. 2903.04(A). The jury found Patterson guilty of both predicate felonies – Corrupting Another with Drugs and Trafficking in Heroin – but acquitted him of the Manslaughter charge. Therefore, the jury must have determined that Sheesley’s death was not the proximate result of the conduct constituting Corrupting Another with Drugs/Trafficking in Heroin.

22 thus preventing the Reckless Homicide charge from merging with the Corrupting

Another with Drugs and Trafficking in Heroin charges. State v. Jones, 11th Dist.

Trumbull No. 92-T-4764,

, 11 (Dec. 17, 1993) (actions,

when separated by time and/or distance, may constitute distinct criminal acts); State v.

Estes, 12th Dist. Preble No. CA2013-04-001,

(Abuse of a Corpse

and Arson charges did not merge where the offender doused the victim’s body with

gasoline, left the scene, and later returned to light it on fire).

{¶76} Patterson maintains that the Ohio Supreme Court’s holding in Johnson,

,

,

, precludes the conclusion that

the counts should not merge based on Patterson’s conduct after returning to Stevens’

apartment. In Johnson, the defendant was convicted of Felony Murder, based upon the

predicate offense of Child Endangering, and Child Endangering. Id. at ¶ 53. The

evidence was that Johnson was engaged in beating the child-victim, but was interrupted

by the intervention of the victim’s mother. After the mother’s departure, Johnson

continued the beating which resulted in the victim’s death. Id. at ¶ 54. The State

argued that there were “two separate incidents of abuse, separated by time and brief

intervention by Milton’s mother.” The Supreme Court “decline[d] the invitation * * * to

parse Johnson’s conduct into a blow-by-blow in order to sustain multiple convictions for

the second beating,” and found that “[t]his beating was a discrete act that resulted in the

simultaneous commission of allied offenses, child abuse and felony murder.” Id. at ¶

56.

{¶77} Johnson is factually distinguishable. Patterson’s conduct on the night of

April 6, 2012, did not constitute a “discrete act.” Patterson’s initial presence at Stevens’

23 apartment was for the sole purpose of selling the heroin. That action was completed

and Patterson departed. Patterson’s return to the apartment several hours later was

occasioned by Stevens’ anxiety over Sheesley’s failure to regain consciousness. Unlike

Johnson, Patterson did not return to resume a course of action already begun during

the first appearance. Patterson’s return may have been a consequence of the earlier

sale of heroin, but it was not a continuation of that sale.

{¶78} Johnson is also distinguishable because, in that case, the defendant’s

Felony Murder conviction was predicated upon Child Endangering, i.e., the act of Child

Endangering was an essential element in the crime of Felony Murder. As noted above,

Patterson’s conviction was for Reckless Homicide which was not predicated upon the

Trafficking charge. Thus, the jury was free to consider whether Patterson’s conduct as

a whole that evening, not merely the sale of the heroin, contributed to Sheesley’s death.

{¶79} The third assignment of error is without merit.

{¶80} In the fourth assignment of error, Patterson argues there was insufficient

evidence to submit the Involuntary Manslaughter and two Corrupting Another with

Drugs charges to the jury, and that his Reckless Homicide and Corrupting Another with

Drugs convictions were against the manifest weight of the evidence.

{¶81} The manifest weight of the evidence and the sufficiency of the evidence

are distinct legal concepts. State v. Elmore,

,

,

. With respect to the sufficiency of the evidence, “[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.” State v. Jenks,

,

(1991),

24 paragraph two of the syllabus, following Jackson v. Virginia,

,

,

(1979).

{¶82} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson,

,

,

, ¶ 25, citing State v. Thompkins,

,

(1997). “In other words, a reviewing court

asks whose evidence is more persuasive -- the state’s or the defendant’s?”

An

appellate court considering whether a verdict is against the manifest weight of the

evidence must consider all the evidence in the record, the reasonable inferences, the

credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.”

, quoting State v. Martin,

,

(1st Dist. 1983).

{¶83} In order to convict Patterson of Involuntary Manslaughter, the State was

required to prove, beyond a reasonable doubt, that he “cause[d] the death of another * *

* as a proximate result of the offender’s committing or attempting to commit a felony.”

R.C. 2903.04(A). For the lesser included offense of Reckless Homicide, the State was

required to prove that he “recklessly cause[d] the death of another.” R.C. 2903.041(A).

“A person acts recklessly when, with heedless indifference to the consequences, the

person disregards a substantial and unjustifiable risk that the person’s conduct is likely

to cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C).

25 {¶84} In order to convict Patterson of Corrupting Another with Drugs, the State

was required to prove, beyond a reasonable doubt, that he “knowingly * * * [b]y any

means, administer[ed] or furnish[ed] to another * * * a controlled substance, and thereby

cause[d] serious physical harm to the other person” (Count 2), and “[b]y any means * * *

[f]urnish[ed] or administer[ed] a controlled substance to a juvenile who is at least two

years the offender’s junior, when the offender knows the age of the juvenile or is

reckless in that regard” (Count 3). R.C. 2925.02(A)(3) and (4)(a).

{¶85} With respect to the Corrupting Another with Drugs charges, Patterson

maintains that there was insufficient evidence that he “administer[ed] or furnish[ed]” a

controlled substance to Sheesley, since the evidence only demonstrated that the drug

transaction occurred between Patterson and Stevens. We disagree.

{¶86} “Furnished,” as defined for the jury, meant “provided, supplied or gave

access to.” It does not matter if the heroin was sold or delivered directly to Stevens,

provided that the sale gave Sheesley access to it. According to Hugel’s testimony,

Sheesley gave the money to Stevens who gave it to Patterson. According to Stevens’

testimony, he told Patterson that Sheesley was purchasing the heroin. Accepting either

witness’ version of events (in a light most favorable to the State), there was sufficient

evidence that Patterson knew he was giving Sheesley access to heroin by the sale to or

through Stevens. State v. Schwab, 4th Dist. Athens No. 12CA39,

(testimony that the appellant “kept his medications in a kitchen cabinet, to which anyone

in the home had access” was sufficient evidence of furnishing drugs to another); State

v. Hardison, 9th Dist. Summit No. 23050,

(testimony that

26 appellant hid drugs in a minor’s dresser drawer was sufficient evidence of furnishing

drugs to another).

{¶87} With respect to Corrupting Another with Drugs (Count 3), Patterson

maintains that there was insufficient evidence that he recklessly, i.e., “with heedless

indifference to the consequences, * * * perversely disregard[ed] a known risk that such

circumstances are likely to exist,” furnished a controlled substance to a juvenile two

years his junior. Former R.C. 2901.22(C); R.C. 2907.01(I) (“‘[j]uvenile’ means an

unmarried person under the age of eighteen”). We disagree.

{¶88} Stevens testified that he was eighteen years old on the date of Sheesley’s

death and that he had known Patterson for several years. It is reasonable to infer that

Patterson would be aware of Stevens’ approximate age and that his friends would be of

a similar age. Moreover, the jury was able to view Hugel, who was present and of the

same age as Sheesley, and pictures of Sheesley, both alive and deceased. Thus, the

jury could determine based on the appearance of the persons present at Stevens’

apartment whether Patterson acted recklessly as to Sheesley’s age.

{¶89} With respect to Involuntary Manslaughter, Patterson maintains that there

was insufficient evidence that Sheesley’s death was the proximate result of the sale of

heroin. “It is impossible to suggest that Appellant could have foreseen as a

consequence of his drug sale to Mr. Stevens that Stevens would, subsequently, inject

Ms. Sheesley with heroin and that she would, subsequently, die as a result of said

injection.” Appellant’s brief at 14-15. We disagree.

{¶90} There are several cases upholding convictions for Involuntary

Manslaughter predicated on drug trafficking and/or possession. State v. Shoemaker,

27 3rd Dist. Union No. 14-06-12,

(“Justin’s death, resulting from a

morphine overdose, could have reasonably been anticipated by an ordinarily prudent

person as likely to result from Shoemaker’s trafficking in morphine”); State v. Baksi,

11th Dist. Trumbull No. 98-T-0123,

, 44 (Dec. 23, 1999)

(“appellant prepared an extremely strong hit of heroin and * * * he subsequently gave

the loaded syringe to another inmate who was known to abuse drugs”); State v.

Grunden,

,

(3rd Dist. 1989) (“reasonable

minds could readily have concluded at the close of the state’s case that the infant’s

death was proximately caused by the defendant’s conduct in leaving a gram of cocaine

unattended on a coffee table”).

{¶91} Patterson counters that these cases are distinguishable (at least

Shoemaker and Baksi) in that the offenders personally administered and/or furnished

the drugs to the decedents. We find the distinction to be immaterial as to whether the

deaths proximately resulted from the offenders’ drug activity. The possibility of

overdose is a reasonably foreseeable consequence of the sale of heroin.

{¶92} In the present case, the evidence showed that Patterson sold heroin that

he knew was being purchased with Sheesley’s money and so he could reasonably

assume that she would use the heroin. Several hours later, Patterson was contacted by

Stevens who was becoming agitated by Sheesley’s failure to regain consciousness.

Fully aware that the heroin he sold caused her to be in that state, Patterson failed to

seek medical attention or have such attention sought on her behalf. The failure to do so

resulted in her death from acute pneumonia. Based on the foregoing evidence, there

28 was sufficient evidence to support Patterson’s convictions, and those convictions were

not against the manifest weight of the evidence.

{¶93} The dissent would reverse the conviction for Reckless Homicide on the

grounds that the State failed to introduce evidence that Sheesley would have survived

had medical attention been sought. Such a conclusion, however, could be reasonably

inferred from the testimony of Dr. Germaniuk, who described the conditions leading to

the onset of acute pneumonia. According to Dr. Germaniuk’s testimony, the cause of

the pneumonia was the entry of secretions into the lungs resulting from Sheesley’s

depressed respiratory system. It does not require expert testimony to infer that the

longer Sheesley remained in a catatonic state, the greater the likelihood that pneumonia

would develop.

{¶94} The dissent also fails to appreciate that Patterson’s conviction for

Reckless Homicide does not merely rest on his furnishing the heroin to Sheesley, but

his subsequent advice to Stevens and Hugel that Sheesley would be “all right” and

needed rest, rather than medical attention. While every incidence of heroin use may

“not [be] substantially likely to cause death” (infra at ¶137), the failure to seek medical

attention for one already in a heroin-induced coma is evidence of a substantial and

unjustifiable risk that such conduct is likely to, and in this case did, result in death.

{¶95} The fourth assignment of error is without merit.

{¶96} In the fifth assignment of error, Patterson argues the trial court erred by

increasing his sentence for Tampering with Evidence from two to three years, after

realizing that a four-year sentence could not be imposed for Reckless Homicide, being a

29 third-degree felony. R.C. 2929.14(A)(3)(b) (maximum prison sentence for third-degree

felony is thirty-six months).

{¶97} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing

court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence

is otherwise contrary to law.” R.C. 2953.08(G)(2); State v. Belew,

,

,

.

{¶98} The overriding purposes of felony sentencing in Ohio “are to protect the

public from future crime by the offender * * * and to punish the offender.” R.C.

2929.11(A). “A sentence imposed for a felony shall be reasonably calculated to achieve

the two overriding purposes of felony sentencing set forth in division (A) of this section,

commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.11(B).

{¶99} It is well-recognized that a sentencing court “has discretion to determine

the most effective way to comply with the purposes and principles of sentencing.” R.C.

2929.12(A). The Ohio Supreme Court has described a sentencing court’s discretion as

“full discretion to impose a prison sentence within the statutory range.” State v. Mathis,

,

,

, paragraph three of the syllabus; State

30 v. Ries, 11th Dist. Portage No. 2008-P-0064,

(“[s]uch discretion is

plenary”). “[T]he trial court is not obligated, in the exercise of its discretion, to give any

particular weight or consideration to any sentencing factor.” State v. Holin,

,

,

(11th Dist.).

{¶100} At the sentencing hearing, the trial court orally pronounced a forty-eight

month sentence for Reckless Homicide and a twenty-four month sentence for

Tampering with Evidence. After being advised that the maximum possible sentence for

Reckless Homicide was thirty-six months, the court acknowledged “some typos in my

sentencing notes” and that it would “make an amendment.” The court stated the

sentences for Reckless Homicide and Tampering with Evidence would both be thirty-six

months, which maintained the aggregate sentence as “the same total of 20 years.”

{¶101} Patterson contends that it was improper for the trial court to increase the

prison term for Tampering with Evidence in order to maintain an aggregate sentence of

twenty years: “such a decision must still be based upon a trial court’s consideration of

the factors set forth in the sentencing statutes and not based upon a whim or desire that

a total sentence be of a certain length.” Appellant’s brief at 26.

{¶102} With respect to sentencing for multiple offenses, the Ohio Supreme Court

has held that “the judge lacks the authority to consider the offenses as a group and to

impose only an omnibus sentence for the group of offenses.” State v. Saxon,

,

,

, ¶ 9. “Instead of considering multiple

offenses as a whole and imposing one, overarching sentence to encompass the entirety

of the offenses as in the federal sentencing regime, a judge sentencing a defendant

pursuant to Ohio law must consider each offense individually and impose a separate

31 sentence for each offense.”

(rejecting what has been referred to as the “sentencing-

package doctrine”).

{¶103} Relying on these pronouncements in Saxon, several courts of appeals

have held that it is error for a trial court to lengthen particular individual sentences in

order to maintain a consistent aggregate sentence. State v. Edwards, 6th Dist. Wood

No. WD-13-037,

, ¶ 12 (“where the trial court has expressly referred

without elaboration to the exact same set of findings and factors in both sentencings, we

are not convinced that the record in support of the resentence to a higher prison term is

sufficient”) (citation omitted); State v. Quinones, 8th Dist. Cuyahoga No. 97054, 2012-

Ohio-1939, ¶ 10 (the trial court erred “[b]y increasing the length of the remaining rape

count to effectuate its original intent to have him serve five years”); State v. Bradley, 2nd

Dist. Champaign No. 06CA31,

(“[t]he trial court erred when it

imposed harsher sentences in order to serve the purposes and principles of sentencing

with respect to the aggregate of the four separate offenses the court imposed”).

{¶104} These cases are distinguishable from the present case. In the cases

cited, the trial courts imposed the lengthier prison sentence for a particular offense on

remand. In other words, the sentences in those cases had become final and were

subsequently reversed on appeal. In resentencing, the courts re-imposed the same

aggregate sentence by enhancing particular individual sentences without providing a

valid explanation for the enhancements. Edwards at ¶ 13; Quinones at ¶ 11.

{¶105} In the present case, the trial court adjusted Patterson’s sentence, as it

explained, based on “some mistakes in my own notes.” As noted by the State, the

adjustment occurred before the sentencing hearing had concluded or a written entry

32 was journalized. “[A]ny oral pronouncements by [the court are] subject to revision

before journalization,” inasmuch as a “court of record speaks only through its journal

and not by oral pronouncement or mere written minute or memorandum.” (Citation

omitted.) State ex rel. Marshall v. Glavas,

,

,

. Given that “oral pronouncements by a trial court judge are subject to

revision before journalization[,] * * * [c]ourts may increase sentences when the sentence

does not constitute a final order.” State v. Fought, 6th Dist. Lucas No. L-10-1348, 2011-

Ohio-4047, ¶ 13; State v. Singfield, 9th Dist. Summit No. 24576,

, ¶ 22

(citation omitted).

{¶106} Accordingly, we find no abuse of discretion in the trial court’s adjustment

of Patterson’s sentence for Tampering with Evidence upon the discovery of the

erroneous sentence for Reckless Homicide.

{¶107} The fifth assignment of error is without merit.

{¶108} In the State’s sole assignment of error on cross-appeal, it contends that

the trial court erred in merging Counts 5 and 6 (Trafficking in Heroin), with the State

electing to proceed on Count 6. We agree.

{¶109} In Count 5, the jury found Patterson guilty of Trafficking in Heroin in an

amount that “equals or exceeds one gram but less than five grams.” Specification #1 to

Count Five of the Indictment. Count 5 was based on the heroin sold to and recovered

from the confidential informant. R.C. 2925.03(A)(1) (“[n]o person shall knowingly * * *

[s]ell * * * a controlled substance”). In Count 6, the jury found Patterson guilty of

Trafficking in Heroin in an amount that “equals or exceeds five grams but less than ten

grams.” Specification #1 to Count Six of the Indictment.” Count 6 was based on the

33 heroin recovered from the vehicle Patterson was operating. R.C. 2925.03(A)(2) (“[n]o

person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance”).

{¶110} Applying the analysis set forth above under Patterson’s third assignment

of error, we find the two counts of Trafficking in Heroin were motivated by a different

animus and were based on different conduct and physical evidence. A certain amount

of heroin was sold to Thomas, and a certain amount of heroin, prepared for distribution,

was retained for subsequent sale to other persons. Thus, it was error for the trial court

to merge the two counts. State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-

Ohio-885, ¶ 21 (convictions under R.C. 2925.03(A)(1) and (2) did not merge, where

“Lewis sold less than five grams of crack cocaine to an undercover agent, left the

scene, and when stopped by law enforcement, discarded other crack cocaine rocks,

and a bag of crack cocaine rocks was found near him after he was tackled”).

{¶111} The State’s sole assignment of error on cross-appeal is with merit.

{¶112} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas is affirmed in part and reversed in part. This case is remanded for

resentencing with instructions for the trial court to impose sentence for Count 5

(Trafficking in Heroin). In all other respects, Patterson’s convictions and sentence are

affirmed. Costs to be taxed against the appellant.

THOMAS R. WRIGHT, J., concurs in part and dissents in part with a Concurring/Dissenting Opinion,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a Concurring/Dissenting Opinion.

34 ______________________________________

THOMAS R. WRIGHT, J., concurs in part and dissents in part with a Concurring/Dissenting Opinion.

{¶113} I concur with the majority’s disposition of Patterson’s first, second, and fifth

assignments, as well as the state’s cross-appeal. I dissent, however, on the third and

fourth assignments.

{¶114} Regarding appellant’s third assignment of error, counts three and four

merge as allied offenses of similar import. R.C. 2941.25(A). Although the trial court

made a dual-motive finding, we owe no deference as merger issues are questions of

pure law that are reviewed de novo. State v. Williams,

, 2012-Ohio-

5699, ¶1.

{¶115} In Johnson, the court strongly cautioned appellate courts from over

analyzing a defendant’s conduct in order to avoid merger. Specifically, it found that two

separate beatings, divided only by a brief break, did not warrant the imposition of the

two distinct offenses of child abuse and felony murder. State v. Johnson,

,

,

, ¶56. In finding that the child abuse and

felony murder charges merged, the court expressly refused “to parse Johnson’s conduct

into a blow-by-blow [analysis] in order to sustain multiple convictions for the second

beating.”

Although Johnson addressed conduct, the same applies to animus.

Absent evidence clearly showing that a defendant had dual motives while performing a

single act, courts should not surmise such.

35 {¶116} Turning to the fourth assignment, the majority operates under the

misconception that reckless homicide is a lesser included offense of involuntary

manslaughter when it clearly is not. “An offense may be considered a lesser included

offense of another when (1) one offense carries a greater penalty than the other; (2) the

greater offense cannot be committed without the lesser included offense also being

committed; and (3) some element of the greater offense is not required to prove the

commission of the lesser offense.” State v. Evans,

, 2009-Ohio-

2974,

.

{¶117} Involuntary manslaughter requires proof that an offender caused the death

of another as a proximate result of the offender committing a felony, R.C. 2903.04(A),

while reckless homicide requires proof that the offender recklessly caused the death of

another, regardless of whether the reckless conduct constitutes a felony. R.C.

2903.041(A). Involuntary manslaughter can be committed without reckless homicide

also being committed. Accordingly, although defense counsel requested the reckless

homicide instruction, it should not have been given.4

{¶118} As the state did not charge reckless homicide and since it is not a lesser

included offense of involuntary manslaughter, appellant’s recklessness, if any, and

whether such caused Sheesley’s death were not the issues being tried. If, then, as, the

majority concludes, the state carried its burden, it did so coincidentally and fortuitously.

{¶119} There is one act and one omission that arguably support the reckless

homicide conviction, specifically, the heroin sale and Patterson’s failure to secure

medical attention.

4. Defense counsel requested a reckless homicide instruction after the close of evidence.

36 {¶120} Viewed through the reckless homicide prism as opposed to involuntary

manslaughter, the state was required to prove beyond a reasonable doubt that

Patterson recklessly caused Sheesley’s death. R.C. 2903.041(A); R.C. 2901.05(A).

“Cause” is defined as “an act or failure to act which in a natural and continuous

sequence directly produces the (death) * * *, and without which [the death] would not

have occurred.” Section 417.23 Ohio Jury Instruction (2015).

{¶121} Unlike involuntary manslaughter, which adopts the culpable mental state

of the underlying criminal offense, a reckless homicide charge requires proof beyond a

reasonable doubt that Patterson recklessly caused Sheesley’s death. R.C. 2903.04;

Stanley v. Turner,

,

.

{¶122} “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the

person’s conduct is likely to cause a certain result or is likely to be of a certain nature.”

(Emphasis added.) R.C. 2901.22(C).

{¶123} Risk is defined as a “significant possibility, as contrasted with a remote

possibility, that a certain result may occur or that certain circumstances may exist.”

R.C. 2901.01(A)(7). Whereas a “‘[s]ubstantial risk’ means a strong possibility, as

contrasted with a remote or significant possibility, that a certain result may occur or that

certain circumstances may exist.” R.C. 2901.01(A)(8).

{¶124} The drafters of R.C. 2901.22, defining “Culpable mental states” based the

definition of reckless on the analysis in Roszman v. Sammett,

,

(1970).5 R.C. 2901.22 Committee Comment to H 511 (1974).

. The Roszman court used the term “wanton misconduct” in place of recklessness.

37 outlines the requisite proof needed to establish “recklessness” as requiring evidence

that a defendant “shows all absence of care or an absolute perverse indifference to the

safety of others, knowing of a dangerous situation, yet failing to use ordinary care to

avoid injury to others.” (Emphasis added.)

. “Such perversity on the part of the

[defendant] must be found to be under such circumstances and existing conditions that

the party doing the act, or failing to act, must be conscious from his knowledge of such

surrounding circumstances and existing conditions that his conduct will, in all

probability, result in injury.” (Citation omitted.)

.

{¶125} “The State must prove, beyond a reasonable doubt, therefore, that the

defendant had a subjective realization of a substantial and unjustifiable risk and a

conscious decision to ignore it.” State v. Theriault, 1993 Conn. Super LEXIS 3056, 10

(Oct. 7, 1993) (holding in part that the defendant’s sale of heroin was insufficient to

support her conviction for reckless homicide), citing State v. Jupin,

,

(1992).

{¶126} In State v. Peck,

,

,

,

the court reversed Peck’s conviction of reckless homicide since there was insufficient

evidence establishing that Peck recklessly caused the death of a driver of a passing car.

Peck was a tow truck operator who failed to realize that the tow truck he was operating

had an underrated snatch block attached for the heavy tow in issue. Peck did not

realize that the snatch block would fail. The snatch block broke and was catapulted into

the windshield of an unsuspecting motorist. The evidence did not prove that Peck knew

of the risk associated with his conduct, i.e., he was unaware that he was using the

38 wrong equipment that ultimately resulted in the accident and the death of a passing

driver, and as such, it did not support his conviction for reckless homicide.

.

{¶127} Peck explained that the defendant’s “mere failure to perceive or avoid a

risk, because of a lack of due care, does not constitute reckless conduct.”

at 29

citing Columbus v. Akins, 10th Dist. Franklin No. 83AP-977,

(Sept. 27, 1984). Instead, one who acts recklessly “is aware of the risk and

disregards it; [whereas,] the negligent actor is not aware of the risk but should have

been aware of it.”

at 30 citing Wharton’s Criminal Law, 15th Ed., Section 27, at 170

(Emphasis sic). In assessing whether a defendant acts recklessly, a court must “assess

the defendant’s knowledge of the specific risk created by the defendant’s conduct, not

the defendant’s knowledge of the general risk inherent in the activity, in determining

criminal liability for reckless homicide. Otherwise, there could be criminal liability for

even negligent conduct whenever the defendant is aware that he is engaged in an

inherently dangerous activity.” (Emphasis added.) (Citation omitted.) Id. at 31.

{¶128} “While heroin is a truly dangerous drug, it is also an accepted fact that the

injection of heroin into the body does not generally cause death in the normal heroin

transaction.” Napier v. State,

,

(June 28, 1977) (holding that the sale of heroin in that case supported the murder

conviction based on the defendant’s knowledge of the potency and high quality of the

heroin; he knew another friend had nearly overdosed on the same batch; and since the

defendant had asked his friends to “test” the heroin to aid him in cutting the heroin for

sale.)

39 {¶129} In Lofthouse v. Commonwealth,

(Ky. 2000), the Supreme

Court of Kentucky reversed the defendant’s reckless homicide conviction that arose

from supplying heroin and cocaine to his friend. Joseph Lofthouse arrived at the home

of Jerry Buford with cocaine and heroin that he obtained from his regular drug dealer.

The two initially drank beer and ingested cocaine together. Hours later they drank more

beer and decided to try the heroin as suggested by the dealer as “something new.”

Buford ultimately died as a result of his lethal ingestion of cocaine, ethanol, and

morphine. Lofthouse was convicted by a jury of two counts of trafficking in a controlled

substance and reckless homicide.

.

{¶130} The court of appeals affirmed his convictions, but the Kentucky Supreme

Court disagreed with his reckless homicide conviction based on the lack of evidence. It

explained: “the Commonwealth needed to prove not only the toxic qualities of cocaine

and heroin, but also that a layperson, such as [Lofthouse], should have reasonably

known that there was a substantial risk that the amount of cocaine and heroin ingested

by Buford would result in his death. That is especially true where, as here, [Lofthouse]

did not directly cause the victim’s death, but only furnished the means by which the

victim caused his own death.”

.

{¶131} The Supreme Judicial Court in Commonwealth v. Catalina,

(July 3, 1990), found that the facts surrounding the defendant’s sale of heroin in that

case were sufficient to support the indictment for manslaughter based on defendant’s

reckless conduct.6 However, the defendant in Catalina was fully aware of the high

potency of the type of heroin that he was selling at the time; he warned the victim of its

6. The Supreme Judicial Court did not consider whether there was sufficient evidence to support the conviction. Instead, it was considering an appeal from a motion to dismiss the defendant’s indictment.

40 high potency; he knew that the victim had overdosed before; and he knew this type of

heroin had nearly caused another’s death.

.

{¶132} Further, in People v. Cruciani,

(1975), New York’s highest

court affirmed the defendant’s manslaughter conviction based on reckless conduct in

injecting a narcotic in the victim’s arm. The court agreed with the jury’s decision

because the defendant admittedly injected the victim with heroin when she was already

“completely bombed out” on depressants and could neither fully walk nor talk.

Thus,

there was sufficient evidence that the defendant was aware and consciously

disregarded a substantial and unjustifiable risk that the victim was highly susceptible to

overdose in light of her condition at the time the defendant injected the heroin. Thus, he

recklessly caused her death.

{¶133} In Commonwealth v. Bowden,

,

(1973), the

Pennsylvania Supreme Court agreed that the defendant’s second-degree murder

charge was improper because it was founded on his injection of heroin into his friend

who later died from an adverse reaction. The two men were addicts. The court held

that the defendant had not committed an act of gross recklessness because he injected

the victim with a dose of heroin that was usually tolerable for an addict, and the medical

testimony supported that the amount of heroin ingested would not normally cause death

in an addict. It explained, “the injection of heroin into the body does not generally cause

death. Unfortunately, there are thousands of individuals who use or abuse heroin daily.

* * * ‘While there has recently been a substantial increase in deaths from narcotics, the

proportion of such deaths to the number of times narcotics are currently being used by

addicts and for legal medical treatment is not nearly great enough to justify an

41 assumption by a person facilitating the injection of a narcotic drug by a user that the

latter is thereby running a substantial and unjustified risk that death will result from that

injection.’”

, quoting People v. Pinckney,

(App.Div. 1972). Thus, and based on the facts before it, “Bowden could not [have]

‘reasonably anticipate[d] that death * * * was likely to result.” Id. at 285; see also State

v. Dixon,

,

(1973) (holding that the sole act of selling heroin

does not support a second-degree murder charge when the drugs were ingested out of

the presence of the seller.)

{¶134} There was insufficient evidence to support Patterson’s reckless homicide

conviction based on his sale of heroin. The question of legally sufficient evidence is a

matter of law, requiring an appellate court to “‘view the evidence in a light most

favorable to the prosecution, [and determine] whether any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.’”

State v. Peck,

,

,

, quoting

State v. Jenks,

,

paragraph two of the syllabus

(1991).

{¶135} In concluding that the sale of heroin could be sufficient to rise to the level

of recklessness, the majority simply assesses the general risks inherent in the activity of

heroin dealing. This is problematic because it essentially substitutes a negligence

standard for the applicable recklessness standard, thereby impermissibly lowering the

state’s burden of production.

{¶136} As indicated above, to rise to the level of recklessness, a court must

analyze a defendant’s knowledge of the specific risks created by his or her conduct.

42 {¶137} Although heroin use is dangerous, it is not substantially likely to cause

death. Accordingly, absent additional circumstances previously discussed, but not

present in our case, Patterson, in selling heroin, did not disregard a substantial and

unjustifiable risk. Therefore, the heroin sale does not support a reckless homicide

conviction.

{¶138} The majority also concludes that the reckless homicide conviction is

supported by Patterson’s failure to seek medical help. As discussed by the majority,

Sheesley had ingested heroin and, as a result, was in a catatonic state for hours before

Patterson was informed. Moreover, Dr. Germaniuk testified that Sheesley died as a

result of acute pneumonia caused by the heroin use. Although Patterson knew that

Sheesley was unconscious, there is no evidence to suggest that he was aware that

Sheesley had acute pneumonia. This condition was only revealed as a result of the

autopsy.

{¶139} Patterson could not, therefore, consciously disregard the risk of

Sheesley’s progressing pneumonia without some foreknowledge of that condition.

Without this necessary subjective scienter element, the existence of Sheesley’s

developing pneumonia has no bearing on Patterson’s failure to seek medical attention.

{¶140} Further, even assuming it was reckless for Patterson not to seek medical

attention in light of the circumstances, there was no evidence that his omission caused

or likely caused Sheesley’s death.

{¶141} When Patterson arrived at the apartment for the second time, Sheesley

had already been in an unconscious state for several hours. From a medical

standpoint, there is no evidence, whatsoever, as to the progression of her pneumonia at

43 that time and what, if anything, could have been done to save her. Accordingly, there is

insufficient evidence on causation as no reasonable juror could conclude that

Patterson’s failure to act caused Sheesley’s death. Whether this was a situation where

prompt medical attention would have made a difference is speculative.

{¶142} Based on the foregoing, there is insufficient evidence to support

Patterson’s reckless homicide conviction and it should be vacated. As to all other

issues, I concur.

______________________________________

COLLEEN MARY O’TOOLE, J., concurs in part, and dissents in part, with a Concurring and Dissenting Opinion.

{¶143} I concur with the majority’s well-reasoned disposition of Mr. Patterson’s

assignments of error. I respectfully dissent regarding its disposition of the state’s

assignment of error on cross-appeal. I agree with the learned trial court that Counts 5

and 6, both for trafficking in heroin, and arising from the controlled buy, properly merge.

{¶144} The majority cites to the Twelfth District’s opinion in Lewis, supra, to

support its conclusion that the two counts should not merge. The facts set forth in

Lewis are minimal, to say the least, but are distinguishable from those presented here.

Appellant in Lewis sold crack to an undercover officer in a controlled buy, from a car.

Id. at ¶19. Thereafter, the car was stopped by police, and appellant fled, dropping crack

as he ran. Id. Thus, Lewis presents a situation in which there were two, distinct,

instances wherein drugs were discovered, separated by time and place.

44 {¶145} In this case, Mr. Patterson sold heroin to the confidential agent; police

began to close in on his car; and Mr. Patterson tossed his remaining drugs into the

backseat, to his companion’s girlfriend. Practically speaking, it was one swift event –

resulting in two counts of trafficking. In

the defendant was beating a

child; stopped when the boy’s mother entered the room; then resumed the beating when

she left. Id. at ¶54. The state obtained convictions for child abuse, and felony murder.

Id. at ¶56. Defendant contended the crimes should merge, a conclusion with which the

trial court and the First District disagreed. Id. at ¶3-5. The Supreme Court of Ohio

found merit in defendant’s contention. Relevantly, it stated, “We decline the invitation of

the state to parse Johnson’s conduct into a blow-by-blow in order to sustain multiple

convictions for the second beating. This beating was a discrete act that resulted in the

simultaneous commission of allied offenses, child abuse and felony murder.” Id. at ¶56.

The conduct forming the basis of the two counts merged by the trial court in this case is

even less divisible than that in Johnson. By reversing the trial court’s decision to merge

Counts 5 and 6, we are engaging in the parsing of conduct disapproved by the Johnson

court.

{¶146} I would affirm the judgment of the trial court in all respects.

45