State v. Thompson

[Cite as State v. Thompson, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                               CASE NO. 9-20-35

       v.

JERMAIL N. THOMPSON,                                     OPINION

       DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2019 CR 0115

                                     Judgment Affirmed

                            Date of Decision: August 30, 2021




APPEARANCES:

        Thomas A. Gjostein for Appellant

        Nathan R. Heiser for Appellee
Case No. 9-20-35


MILLER, J.

      {¶1} Defendant-appellant, Jermail N. Thompson, appeals the September 15,

2020 judgment of sentence of the Marion County Court of Common Pleas. For the

reasons that follow, we affirm.

                        I.   Facts and Procedural History

      {¶2} On October 25, 2018, Logan Good was found in his bedroom dead from

an apparent drug overdose. During a search of Good’s bedroom, law enforcement

officers located Good’s wallet. Officers searched the wallet, where they discovered

a baggie containing a “tannish/peach” substance. Good’s cell phone was also

located during the search of his bedroom. Law enforcement officers accessed

Good’s cell phone and examined the text message history. Of particular note was a

series of text messages between Good and Thompson from the early morning hours

of October 25, 2018, in which Good and Thompson appeared to talk about an

exchange of drugs and money. Relying on these text messages, law enforcement

officers obtained a warrant to search Thompson’s residence. During a search of

Thompson’s bedroom, officers located a baggie that, like the baggie found in

Good’s wallet, contained a “tannish/peach” substance. Subsequent testing revealed

the substance found in Good’s wallet and the substance found in Thompson’s

bedroom both contained fentanyl. An autopsy later determined Good died from an

overdose of fentanyl.


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      {¶3} On April 4, 2019, the Marion County Grand Jury indicted Thompson

on two counts: Count One of involuntary manslaughter in violation of R.C.

2903.04(A), a first-degree felony, and Count Two of aggravated possession of drugs

in violation of R.C. 2925.11(A), a fifth-degree felony. On April 8, 2019, Thompson

appeared for arraignment and pleaded not guilty to the counts in the indictment.

      {¶4} On September 18, 2019, the Marion County Grand Jury issued a three-

count superseding indictment. Counts One and Two of the original indictment were

preserved, and Thompson was additionally charged with Count Three of corrupting

another with drugs in violation of R.C. 2925.02(A)(3), a second-degree felony. On

September 23, 2019, Thompson appeared for arraignment and pleaded not guilty to

the counts in the superseding indictment.

      {¶5} A jury trial was held on July 14-17, 2020. On July 17, 2020, the jury

found Thompson guilty as charged in the superseding indictment.

      {¶6} Thompson’s sentencing hearing was held on September 14, 2020. At

the hearing, the trial court determined that Count One, involuntary manslaughter,

and Count Two, aggravated possession of drugs, would merge for purposes of

sentencing. The State elected to have the trial court sentence Thompson for the

involuntary-manslaughter offense. It was further determined that Count Three,

corrupting another with drugs, would not merge with the other offenses for purposes

of sentencing. Thereafter, the trial court sentenced Thompson to a term of eight


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years in prison for involuntary manslaughter and a mandatory term of eight years in

prison for corrupting another with drugs. The trial court ordered Thompson to serve

these terms concurrently. The trial court filed its judgment entry of sentence on

September 15, 2020.

      {¶7} On October 1, 2020, Thompson timely filed a notice of appeal. He

raises two assignments of error for our review.

                            II. Assignments of Error

      1. The appellant had his rights to due process of law violated
      under Article 1, Section 10 of the Ohio Constitution and the Sixth
      Amendment of the United States Constitution, in being compelled
      to stand trial when trial counsel was rendered ineffective for
      failing to file a motion to suppress the search of appellant’s
      residence and to suppress or exclude by motion in limine his
      statements, as well as, for having the appellant testify given the
      State’s complete lack of evidence against him. [Tr. Vol. I. 214].

      2. Appellant’s conviction was not supported by the sufficiency
      of the evidence in violation of the Due Process Clause of the
      Fourteenth Amendment to the U.S. Constitution and Article I,
      Sections 1 & 16 of the Ohio Constitution and the conviction was
      also against the manifest weight of the evidence. [Tr. Overall].

                                 III. Discussion

A.    First Assignment of Error: Did Thompson receive ineffective assistance
of counsel?

      {¶8} In his first assignment of error, Thompson argues he was denied his

right to the effective assistance of counsel as provided for by the United States

Constitution and by the Ohio Constitution. Thompson contends his trial counsel


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was ineffective in five respects: (1) Thompson’s trial counsel was ineffective for

failing to file a motion to suppress the evidence seized during the search of

Thompson’s home; (2) Thompson’s trial counsel was ineffective for failing to file

a motion to suppress recordings of statements Thompson made to law enforcement

officers during interviews on October 25 and October 29, 2018; (3) Thompson’s

trial counsel was ineffective for failing to file a motion in limine to bar introduction

of these same recordings at trial; (4) Thompson’s trial counsel was ineffective for

calling Thompson and another person, Nicole Cooper, as witnesses; and (5)

Thompson’s trial counsel was ineffective for conceding during closing statements

that Thompson committed the offense of aggravated possession of drugs.

i. Ineffective-Assistance-of-Counsel Standard

       {¶9} “In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.” State

v. Evick, 12th Dist. Clinton No. CA2019-05-010, 

.                 A

defendant asserting a claim of ineffective assistance of counsel must establish: (1)

counsel’s performance was deficient or unreasonable under the circumstances; and

(2) the deficient performance prejudiced the defendant. State v. Kole, 

 (2001), citing Strickland v. Washington, 

, 

(1984). In order to show counsel’s conduct was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent


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representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment. 

. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie, 

 (1998).

Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Frazier, 

 (1991). Rather, the

errors complained of must amount to a substantial violation of counsel’s essential

duties to his client. See State v. Bradley, 

 (1989).

       {¶10} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” 

, quoting 

. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’” 

 quoting

.

ii. Motion to Suppress Evidence Seized Pursuant to the Search Warrant

       {¶11} Thompson first argues his trial counsel was ineffective for failing to

file a motion to suppress the evidence seized during the search of his residence.

Thompson maintains the warrant authorizing the search of his home was invalid

because it was based on an affidavit that contained “very thin evidence.”

       {¶12} However, we are unable to consider this facet of Thompson’s

ineffective-assistance argument because the supposedly deficient search-warrant


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affidavit is not part of the record on appeal. “A claim of ineffective assistance of

counsel in a direct appeal must be established by the evidence in the record.” State

v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 

. “When an

allegation of ineffective assistance of counsel is based upon material that is not part

of the record, the merits of the argument cannot be addressed.” State v. Barnett, 7th

Dist. Jefferson No. 06-JE-23, 

. Without the search-warrant

affidavit, we are unable to determine whether it set forth sufficient facts to support

a finding of probable cause to search Thompson’s residence. Consequently, we are

unable to determine whether Thompson’s trial counsel performed deficiently by

failing to pursue a meritorious suppression motion, and we must presume regularity

in the proceedings below with respect to the evidence seized from Thompson’s

house. State v. Ash, 7th Dist. Monroe No. 16 MO 0002, 

;

see State v. Davidson, 11th Dist. Portage No. 2005-P-0038, 

(declining to consider a claim that trial counsel was ineffective for failing to file

suppression motion based on defects in search-warrant affidavit, where affidavit

was not made part of the record); State v. Castile, 6th Dist. Erie No. E-02-012, 2005-

Ohio-41, ¶ 60 (same).

iii. Motion to Suppress Recordings and Motion in Limine

       {¶13} Thompson next argues his trial counsel was ineffective for failing to

file a motion to suppress the recordings of interviews he gave to law enforcement


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officers on October 25 and October 29, 2018. Specifically, Thompson maintains

that his trial counsel should have moved to suppress these recordings because law

enforcement officers did not administer the warnings required by Miranda v.

Arizona, 

, 

, prior to conducting the interviews. Thompson

also contends his trial counsel should have at least filed a motion in limine to

exclude the recordings from trial because the recordings were unfairly prejudicial.

       {¶14} “The failure to file a motion is not per se ineffective assistance of

counsel.” State v. Costell, 3d Dist. Union No. 14-15-11, 

.

To sustain a claim of ineffective assistance of counsel based on counsel’s failure to

file a particular motion, the defendant must first specify the basis for the motion that

counsel supposedly should have filed. See State v. Phelps, 5th Dist. Delaware Nos.

18 CAA 02 0016 and 18 CAA 02 0017, 

.                     Then, the

“‘defendant must show that the motion had a reasonable probability of success.’”

State v. Dahms, 3d Dist. Seneca No. 13-16-16, 

, quoting

State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 

; Phelps

at ¶ 13. If the defendant fails to demonstrate that there is a reasonable probability

that the proposed motion would have been granted, counsel is presumed to have

been effective since the filing of the motion would have been a “futile act,” which

the law does not require counsel to undertake. State v. Leu, 6th Dist. Lucas No. L-

17-1265, 

; State v. Cottrell, 4th Dist. Ross Nos. 11CA3241


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and 11CA3242, 

.            Additionally, even if the defendant

succeeds in establishing a reasonable probability of success on the proposed motion,

he still “must further show that there is a reasonable probability that the outcome

[of the trial] would have been different if the motion had been granted ….” State

v. Blanton, 4th Dist. Adams Nos. 19CA1096 and 19CA1097, 

, ¶

50, appeal allowed, 

, 

; Phelps at ¶ 13.

a. Motion to Suppress Based on Lack of Miranda Warnings

       {¶15} The first motion Thompson claims his trial counsel should have filed

is a motion to suppress the recordings of his October 25 and October 29, 2018

interviews with law enforcement officers. Thompson maintains that, if his trial

counsel had properly filed a motion to suppress, these recordings would have been

subject to suppression because he was not given Miranda warnings prior to

participating in the interviews. Thus, to ascertain whether Thompson’s trial counsel

was ineffective for failing to file a motion to suppress the recordings, we must first

determine whether Thompson has demonstrated a sufficient likelihood of success

on his proposed suppression motion.

       {¶16} “Police officers are not required to administer Miranda warnings to

every person whom they question.” In re A.M., 3d Dist. Marion No. 9-20-23, 2021-

Ohio-432, ¶ 28. “Only custodial interrogation triggers the need for Miranda

warnings.”    (Emphasis sic.) State v. Biros, 

 (1997).


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“‘[C]ustody’ is a term of art that specifies circumstances that are thought generally

to present a serious danger of coercion.” Howes v. Fields, 

,

 (2012). “In order to determine whether a person is in custody for

purposes of receiving Miranda warnings, courts must first inquire into the

circumstances surrounding the questioning and, second, given those circumstances,

determine whether a reasonable person would have felt that he or she was not at

liberty to terminate the interview and leave.” State v. Hoffner, 

,

, ¶ 27.         “Once the factual circumstances surrounding the

interrogation are reconstructed, the court must apply an objective test to resolve ‘the

ultimate inquiry’ of whether there was a ‘“formal arrest or restraint on freedom of

movement” of the degree associated with a formal arrest.’” 

 quoting California

v. Beheler, 

, 

 (1983), quoting Oregon v.

Mathiason, 

, 

 (1977).

       {¶17} “In resolving ‘the ultimate inquiry’ courts must consider the totality of

the circumstances surrounding the questioning.” In re R.S., 3d Dist. Paulding No.

11-13-10, 

. In determining whether a reasonable person in

the interviewee’s position would have felt free to terminate the interview and leave,

the following factors are relevant: (1) the location of the questioning; (2) the

duration of the questioning; (3) statements made during the interview; (4) the

presence or absence of physical restraints during the questioning; and (5) whether


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the interviewee was released at the end of the questioning. 

. Courts

have also considered factors such as whether the interviewee had access to a cell

phone during the interview, “whether an officer [was] armed and display[ed] [a]

weapon in a threatening fashion,” and whether the interviewee went voluntarily to

the police station for the interview. State v. Soto, 9th Dist. Lorain No. 16CA011024,

. Because this part of Thompson’s ineffective-assistance-of-

counsel claim can be fully disposed of by resolving the “ultimate inquiry,” we focus

on determining whether Thompson was in custody during the October 25 and

October 29, 2018 interviews.

       {¶18} We start with the interview Thompson gave to law enforcement

officers on October 25, 2018, a few hours after Good’s body was discovered. The

recording of the October 25, 2018 interview contains only audio, but from our

review of the recording and the testimony at trial, we discern the interview was

conducted in a hallway near the kitchen of Buffalo Wild Wings, the restaurant where

Thompson was working.

       {¶19} In the recording, which is approximately 12 minutes long, the

interviewing officers inform Thompson of Good’s death and ask Thompson a

number of non-accusatory and largely open-ended questions. In response to these

questions, Thompson makes several incriminating remarks. Most significantly,

Thompson states that, earlier in the day, he had been in possession of a substance


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he believed to be drugs and that Good might have taken the substance from him.

Thompson tells the interviewing officers that Good came to his house that morning

looking for cocaine, but he did not have any cocaine to give Good. Thompson states

that, after Good entered the house, Good noticed a baggie in his bedroom and asked

what was inside of the baggie. Thompson says that he told Good that he did not

know what was inside of the baggie and that Good should not touch it. Thompson

explains to the interviewing officers that he found the baggie a few days earlier and

that, when he found it, he believed it contained crack cocaine, though he was not

certain of its contents. Thompson says that while he did not see Good take the

baggie, he noticed later in the day that the baggie was missing. Thompson opines

that Good likely took the baggie with him when he left.

       {¶20} As the interview draws to a close, the interviewing officers repeatedly

express their appreciation for Thompson’s cooperation. Thompson provides the

officers with his phone number and home address and states that if they wished to

talk to him again, he would be at home all day the following day. The interview

concludes with the interviewing officers telling Thompson that they would “get out

of his hair” so he could return to work.

       {¶21} After reviewing the recording and the trial testimony relating to the

October 25, 2018 interview, we conclude Thompson was not in custody during this

meeting with officers. In determining whether Thompson was in custody during the


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interview, we must consider the totality of the circumstances surrounding the

questioning. Here, the short duration of the interview (approximately 12 minutes),

the favorable location of the interview (a private spot within Thompson’s place of

employment versus a police-controlled environment), the nonconfrontational nature

of the questioning, the absence of evidence that Thompson was placed in restraints

during the interview, and Thompson’s immediate return to work following the

interview all militate against concluding that Thompson was in custody. We are

confident a reasonable person in Thompson’s position would have felt free to

terminate the interview and, in Thompson’s case, return to work.

       {¶22} Next, we consider the interview Thompson gave to law enforcement

officers on October 29, 2018. Although not clearly reflected in the recording of the

October 29, 2018 interview, we learn from trial testimony that Thompson went

voluntarily to the police station for the interview and that officers drove him home

upon its conclusion. We also learn Thompson was not arrested until March 2019.

       {¶23} Unlike the recording of Thompson’s first interview, the recording of

the October 29, 2018 interview contains both audio and video. In the recording,

Thompson is seen entering an interview room in the basement of the Marion Police

Department accompanied by plainclothes officers. Thompson is not handcuffed,

and he is not restrained at any point during the interview. The interviewing officers’

service weapons are never conspicuously displayed. Furthermore, at the beginning


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of the interview, the officers assure Thompson he would not be going to jail that

day, that he could terminate the interview at any time, and that, should he choose to

end the interview, they would take him home. The interviewing officers repeat

some of these assurances at various times throughout the interview.

       {¶24} The interview, which lasts approximately 57 minutes, is more

contentious than the October 25, 2018 interview. The interviewing officers employ

a sharper, less sympathetic tone, and their questioning is more insistent and

argumentative, including occasional bouts of yelling and strident accusations that

Thompson is lying. However, despite the somewhat disputatious tenor of the

interview, the officers’ interviewing tactics fall far short of harassment or coercion.

       {¶25} The October 29, 2018 interview covers much of the same ground as

the October 25, 2018 interview. Thompson’s answers to the interviewing officers’

questions are frequently inconsistent with each other and with statements he made

during the October 25, 2018 interview. Nonetheless, many of Thompson’s core

admissions and claims are unchanged. Thompson reiterates his claim that Good

came to his house on the morning of October 25, 2018, looking for cocaine.

Thompson repeats his earlier admission that he possessed some sort of substance on

the morning of October 25, 2018, and he reaffirms his earlier statement that he did

not know what the substance was. Thompson again states that Good inquired about

the substance, that he told Good that he did not know what the substance was, and


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Case No. 9-20-35


that he told Good to stay away from the substance.           Thompson persistently

maintains that he did not sell or give Good any of the substance, instead insisting

that Good took the substance without his knowledge or permission. Ultimately,

Thompson concedes the substance that caused Good’s death came from his house.

       {¶26} After reviewing the recording of the October 29, 2018 interview and

the trial testimony, we conclude that Thompson was not in custody during the

October 29, 2018 interview. Again, we are mindful that in determining whether

Thompson was in custody during the interview, we must consider the totality of the

circumstances surrounding the questioning.

       {¶27} It is true that, unlike the October 25, 2018 interview, the October 29,

2018 interview took place inside the decidedly police-dominated environment of a

police station. However, “[t]he fact that a suspect is interviewed at a police station

does not, unto itself, require officers to issue Miranda warnings.” State v. Brunson,

11th Dist. Portage No. 2016-P-0004, 

. Weighed against the

remaining circumstances, the location of the October 29, 2018 interview is relatively

insignificant. At approximately 57 minutes, the interview was still fairly short in

duration. The officers’ questioning, though sterner and more antagonistic than their

earlier questioning, was nevertheless devoid of abusive or threatening language and

peppered with reminders that Thompson could terminate the interview at any time

and go home. Thompson was not physically restrained during the interview, and he


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was released at the end of the questioning. In fact, Thompson was not arrested until

several months after the October 29, 2018 interview.          Moreover, during the

questioning, the interviewing officers did not display their weapons in a threatening

fashion. Finally, and of particular importance, Thompson went voluntarily to the

police station for questioning and the officers drove him home afterwards. Thus,

the totality of the circumstances suggests that a reasonable person in Thompson’s

position would have felt at liberty to end the interview at any time and leave.

         {¶28} In sum, we conclude Thompson was not in custody during either the

October 25, 2018 interview or the October 29, 2018 interview. Because Thompson

was not in custody during either interview, the interviews did not constitute

custodial interrogations and the interviewing officers were not required to

administer Miranda warnings prior to questioning Thompson. As a result, a motion

to suppress the recordings of these interviews based on the interviewing officers’

failure to administer Miranda warnings would not have had a reasonable probability

of success. Because such a motion likely would not have succeeded, we conclude

that Thompson’s trial counsel did not perform deficiently by failing to file one. As

a result, this component of Thompson’s ineffective-assistance-of-counsel claim

fails.




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b. Motion in Limine Based on Unfair Prejudice

       {¶29} The second motion that Thompson claims his trial counsel should have

filed is a motion in limine. Thompson argues his trial counsel “could have made a

simple motion in limine at trial to exclude the [recordings] under [Evid.R. 403] as

prejudicial, because these statements would, and in fact did, prejudice [his]

defense.” Thompson’s argument is without merit.

       {¶30} Thompson maintains the recordings would have been excludable

under Evid.R. 403 because they were prejudicial to his defense. However, Evid.R.

403, specifically Evid.R. 403(A), does not allow for the exclusion of evidence

simply because that evidence is prejudicial to the defendant’s case. Instead, Evid.R.

403(A) requires the exclusion of evidence only when “its probative value is

substantially outweighed by the danger of unfair prejudice ….” (Emphasis

added.). As the Supreme Court of Ohio has observed,

       it is fair to say that all relevant evidence is prejudicial. That is,
       evidence that tends to disprove a party’s rendition of the facts
       necessarily harms that party’s case. Accordingly, the rules of
       evidence do not attempt to bar all prejudicial evidence—to do so
       would make reaching any result extremely difficult. Rather, only
       evidence that is unfairly prejudicial is excludable.

(Emphasis sic.) State v. Crotts, 

, 

, ¶ 23. In this

case, the recordings were prejudicial to Thompson’s defense inasmuch as they

implicated Thompson in criminal activity, but “‘[i]ncriminating’ does not equal

‘unfair prejudice’ under Evid.R. 403(A).” State v. Swiergosz, 

,

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Case No. 9-20-35

, ¶ 26. Because Thompson has not argued, much less established,

that the recordings’ probative value was substantially outweighed by the danger of

unfair prejudice, Thompson has failed to demonstrate a reasonable probability of

success on the proposed motion in limine. Consequently, this component of

Thompson’s ineffective-assistance-of-counsel claim fails as well.

iv. Witness Testimony

       {¶31} Thompson also argues his trial counsel was ineffective for calling him

and his friend, Nicole Cooper, as witnesses. Thompson’s first claim is that trial

counsel’s decision to offer his testimony was unreasonable because “[b]y testifying,

[Thompson] connected himself to the drugs and prejudiced himself confirming

other points of the State’s case, which were questionable as well.”          Second,

Thompson contends his trial counsel was ineffective in calling Cooper as a witness

because Cooper “confirmed that drugs were on [his] premises and in [his]

bedroom.” According to Thompson, this testimony was prejudicial because “[p]rior

to [Cooper’s] testimony, the only link [between him] and the drugs came from a

search warrant” that should have been the subject of a motion to suppress.

a. Thompson’s Testimony

       {¶32} We deal first with the claim that Thompson’s trial counsel was

ineffective for deciding to have Thompson testify at trial. At the outset, we note

that while Thompson maintains that it was his trial counsel who decided to put him


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on the witness stand, this is not exactly accurate. “A criminal defendant has the

right to testify in his defense at trial.” State v. Ruggles, 12th Dist. Warren Nos.

CA2019-05-038, CA2019-05-044, CA2019-05-045 and CA2019-05-046, 2020-

Ohio-2886, ¶ 73, citing Rock v. Arkansas, 

, 

(1987). However,

        [a]lthough often framed as a right to testify, it is more properly framed
        as a right to choose whether to testify. The “choice” concept reflects
        the competing considerations that make up this right; while the Fifth
        Amendment gives the accused the right to remain silent, courts have
        recognized that the accused also has the absolute right to break his
        silence and to testify. This right to choose is personal as well as
        fundamental, and the defendant must make this decision himself.

(Citations omitted.) United States v. Ly, 

 (11th Cir.2011).

“[T]he ultimate decision of whether a defendant will testify on his own behalf is the

defendant’s.” State v. McKay, 11th Dist. Ashtabula No. 2001-A-0008, 2002-Ohio-

3960, ¶ 44. Indeed, counsel acts at his peril by disregarding the defendant’s decision

to testify:

        [I]f defense counsel refuse[s] to accept the defendant’s decision to
        testify and [does] not call him to the stand, counsel … act[s]
        unethically to prevent the defendant from exercising his fundamental
        constitutional right to testify. … Under such circumstances,
        defense counsel has not acted “‘within the range of competence
        demanded of attorneys in criminal cases,’” and the defendant clearly
        has not received reasonably effective assistance of counsel.

(Citations omitted.) United States v. Teague, 

 (11th Cir.1992).

See United States v. Mullins, 

 (5th Cir.2002) (“[I]t cannot be


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permissible trial strategy, regardless of its merits otherwise, for counsel to override

the ultimate decision of a defendant to testify contrary to his advice.”). As ultimate

responsibility for the decision whether to testify belongs with the defendant and not

with counsel, the fact that the defendant was called to testify, taken alone, generally

will not support a claim of ineffective assistance of counsel. See Hesser v. United

States, M.D.Fla. Nos. 2:16-cv-632-FtM-29CM and 2:11-CR-83-FTM-29CM, 

, *5 (June 28, 2019) (recognizing the “well established law that the

choice as to whether to testify or not is up to a defendant” and concluding that

because “it was petitioner’s decision to testify, not counsel’s, … there was no

ineffective assistance in calling petitioner as a witness”); State v. Winstead, 1st Dist.

Hamilton No. C-080092, 

; McKay at ¶ 43-44.

       {¶33} Yet, a defendant is not completely precluded from bringing an

ineffective-assistance claim relating to the fact that he was called to testify at trial.

“In cases where a defendant is represented by counsel, counsel is responsible for

providing the advice needed to render the defendant’s decision of whether to testify

knowing and intelligent.” Ly at 1313, citing 

. “Defense counsel

bears the primary responsibility for advising the defendant of his right to testify or

not to testify, the strategic implications of each choice, and that it is ultimately for

the defendant himself to decide.” 

. Thus, depending on the

circumstances, if counsel gave the defendant erroneous, misleading, or incomplete


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advice concerning the defendant’s right to testify, his right not to testify, and the

potential advantages and risks of each choice, the defendant might be able to

demonstrate that counsel performed deficiently.1 See 

 (explaining that

counsel’s failure to inform a defendant of his right to testify constitutes neglect of a

“vital professional responsibility”).           Moreover, a claim alleging that counsel

overrode the defendant’s decision not to testify and “forced the defendant to testify

is analyzed under the two-pronged Strickland standard.” Singleton v. United States,

 (D.Del.2015), citing Palmer v. Hendricks, 

 (3d Cir.2010) and Sexton v. French, 

 (4th Cir.1998).

        {¶34} However, in this case, there is nothing in the record indicating

Thompson did not want to testify and that trial counsel overrode his decision. Nor

is there anything in the record suggesting that Thompson’s trial counsel did not

adequately advise Thompson of his rights or of the strategic implications of

Thompson’s decision whether to testify. Though it appears that Thompson’s trial

counsel did not advise him on the record concerning these matters, this is not

particularly surprising as “[i]t is a normal practice for lawyers to advise their clients

in private, rather than on the record.” State v. Bays, 

 (1999).

Because we are unable to review the content of the advice Thompson’s trial counsel

gave to Thompson, we cannot determine whether Thompson’s trial counsel’s


1
  Of course, to sustain a claim of ineffective assistance of counsel, the defendant would still need to
demonstrate prejudice.

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Case No. 9-20-35


performance was deficient in this respect. See State v. Seibert, 6th Dist. Wood No.

WD-02-017, 

, ¶ 12-13 (rejecting as unreviewable defendant’s

argument that counsel was ineffective for failing to advise him of his right not to

testify at trial where counsel’s advice, if given, was not put on the record).

       {¶35} Furthermore, we observe that the trial court engaged in two colloquies

with Thompson wherein the trial court informed Thompson that he had a right to

testify or not to testify, that the jury could not consider his silence for any reason

should he choose not to testify, and that the decision whether to testify was his to

make after consultation with counsel. (July 14-17, 2020 Tr. at 674, 682-683).

Thompson’s counsel stated he was satisfied with the trial court’s explanation of

Thompson’s rights, and Thompson indicated he understood his rights and that it was

his decision to testify. (July 14-17, 2020 Tr. at 674, 682-683). In light of these

circumstances, Thompson has failed to demonstrate that he received ineffective

assistance of counsel with regard to his trial testimony.

b. Cooper’s Testimony

       {¶36} Thompson’s argument that his trial counsel was ineffective for calling

Cooper as a witness fares no better. “[C]ounsel’s decisions concerning which

witnesses to call at trial fall within the realm of trial strategy and tactics and

generally will not constitute ineffective assistance of counsel.” State v. Smith, 

 (3d Dist.1996). “Trial strategy is only deficient if it is


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Case No. 9-20-35


‘outside the realm of legitimate trial strategy so as “to make ordinary counsel

scoff.”’” In re R.M., 7th Dist. Harrison No. 19 HA 0007, 

,

quoting State v. Taylor, 5th Dist. Richland No. 2005-CA-0112, 

. Here, Thompson has neither argued nor established that his trial counsel’s

decision to call Cooper as a witness was so far outside the range of legitimate trial

strategy as to be nonsensical. Consequently, Thompson has not demonstrated that

his trial counsel was ineffective in choosing to call Cooper as a witness.

v. Closing Statements

       {¶37} Finally, Thompson argues he received ineffective assistance of

counsel because his trial counsel, while presenting closing statements, asked the

jury to return a guilty verdict on the aggravated-possession-of-drugs charge. During

his closing statements, Thompson’s trial counsel made the following comments:

       I’m going to do something very unusual and ask you to find
       [Thompson] guilty of the charge of aggravated possession of drugs.
       And that may seem unusual to you, a defense attorney asking us to
       find his client guilty. I’m not going to sit here and insult your
       intelligence and say, “Oh, the drugs found at [Thompson’s residence],
       [Thompson] is not responsible for those.” I would be insulting your
       intelligence, wouldn’t I? I’m not going to do that. All right?

       The State has proven its case beyond a reasonable doubt as to that
       charge alone.

(July 14-17, 2020 Tr. at 761). Thompson contends his trial counsel’s decision to

concede guilt on the aggravated-possession-of-drugs charge “changed the course

and result of the trial.” We disagree.

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Case No. 9-20-35


       {¶38} “According to the Ohio Supreme Court, ‘[c]oncessions of guilt, in any

form, are among the most troublesome actions a defense counsel can make during

representation of a defendant.’” State v. Villani, 12th Dist. Butler No. CA2018-04-

080, 

, quoting State v. Goodwin, 

(1999). “Nonetheless, concessions do not constitute ineffectiveness per se.” 

“[C]oncessions of guilt must be analyzed on a case-by-case basis, considering ‘[a]ll

of the facts, circumstances, and evidence.’” 

 quoting 

. “When

defense counsel concedes his client’s guilt to a charge in an effort to enhance

credibility by being candid and realistic with the jury, such a decision may be

construed as tactical or strategic and, therefore, does not constitute ineffective

assistance of counsel.” State v. Simpson, 2d Dist. Montgomery No. 19797, 2004-

Ohio-669, ¶ 24, citing 

.

       {¶39} After reviewing the entirety of Thompson’s trial counsel’s closing

statements, as well as the evidence in the record, we cannot conclude that

Thompson’s trial counsel was ineffective for admitting Thompson’s guilt to the

charge of aggravated possession of drugs. Thompson’s trial counsel’s decision to

partially concede Thompson’s guilt was clearly strategic. Based on Thompson’s

trial counsel’s cross-examination of the State’s witnesses, the presentation of

Thompson’s own case, and the rest of the closing statements, in which Thompson’s

trial counsel insisted that there was no evidence definitively connecting Thompson


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Case No. 9-20-35


to the fentanyl that caused Good’s death, it is evident that Thompson’s defense was

not premised on casting doubt on whether he himself possessed fentanyl. Instead,

Thompson’s defense was based on countering the State’s proof that he knowingly

furnished fentanyl to Good.      By admitting that Thompson possessed drugs,

Thompson’s trial counsel attempted to direct the jury’s focus to what Thompson’s

trial counsel believed to be the weakest elements of the State’s case. See State v.

Elmore, 

, 

, ¶ 60; State v. Scott, 

, 

, ¶ 60. Moreover, the admission may have been beneficial in

bolstering the credibility of Thompson’s defense to the jury, i.e., because Thompson

is being forthcoming by admitting that he possessed drugs, he should be believed

when he says that he did not give drugs to Good or allow Good to take them. See

Villani at ¶ 38; Simpson at ¶ 24-25. Ultimately, while Thompson’s trial counsel’s

strategy may not have yielded the hoped-for results, Thompson has not

demonstrated that the strategy was unreasonable under the circumstances.

      {¶40} Thompson’s first assignment of error is overruled.

B. Second Assignment of Error: Are Thompson’s convictions supported by
sufficient evidence and does the evidence weigh in favor of Thompson’s
convictions?

      {¶41} In his second assignment of error, Thompson argues his convictions

are not supported by sufficient evidence and are otherwise against the manifest

weight of the evidence.


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Case No. 9-20-35


i. Standards for Sufficiency-of-the-Evidence and Manifest-Weight Review

       {¶42} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 

(1997). Accordingly, we address each legal concept individually.

       {¶43} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 

 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 

 (1997).

Consequently, “[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.” 

 “In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor

assess the credibility of witnesses, as both are functions reserved for the trier of

fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-

4775, ¶ 33.

       {¶44} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of


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Case No. 9-20-35


witnesses and determine[] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” 

,

quoting State v. Martin, 

 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

 (1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 

, quoting State v.

Hunter, 

, 

.

ii. Thompson’s Offenses

       {¶45} Thompson was found guilty of three offenses:                 involuntary

manslaughter, aggravated possession of drugs, and corrupting another with drugs.

The most serious of these offenses, involuntary manslaughter, is codified at R.C.

2903.04, which provides, in relevant part, that “[n]o person shall cause the death of

another … as a proximate result of the offender’s committing or attempting to

commit a felony.” R.C. 2903.04(A). “The culpable mental state of involuntary

manslaughter is supplied by the underlying offense.” State v. Johnson, 8th Dist.

Cuyahoga No. 94813, 

.


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Case No. 9-20-35


        {¶46} The predicate felony for Thompson’s involuntary-manslaughter

charge was aggravated possession of drugs.2 The offense of aggravated possession

of drugs is codified at R.C. 2925.11, which provides, in relevant part, that “[n]o

person shall knowingly obtain, possess, or use a controlled substance or a controlled

substance analog.” R.C. 2925.11(A). Consequently, the culpable mental state for

aggravated possession of drugs, and for involuntary manslaughter in this instance,

is “knowingly.” “A person acts knowingly, regardless of purpose, when the person

is aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances when the

person is aware that such circumstances probably exist.”                         R.C. 2901.22(B).

Therefore, to sustain Thompson’s involuntary-manslaughter conviction, the State

was required to prove that Thompson caused Good’s death as the proximate result

of knowingly possessing, obtaining, or using a controlled substance or controlled

substance analog.

        {¶47} Thompson was also convicted of corrupting another with drugs. The

offense of corrupting another with drugs is codified at R.C. 2925.02, which

provides, in relevant part, that “[n]o person shall knowingly … [b]y any means,

administer or furnish to another or induce or cause another to use a controlled


2
 Although the aggravated-possession-of-drugs offense merged with the involuntary-manslaughter offense at
sentencing, in determining whether Thompson’s involuntary-manslaughter conviction is supported by the
evidence, we must necessarily consider whether the evidence supports the jury’s finding that Thompson
committed the offense of aggravated possession of drugs.

                                                 -28-
Case No. 9-20-35


substance, and thereby cause serious physical harm to the other person, or cause the

other person to become drug dependent.” R.C. 2925.02(A)(3). Like aggravated

possession of drugs, the culpable mental state for corrupting another with drugs is

“knowingly,” which we defined above. “Furnish” means “‘to supply, provide, or

equip, for accomplishment of a particular purpose.’” State v. Price, 8th Dist.

Cuyahoga No. 107096, 

, quoting Black’s Law Dictionary 466

(6th Ed.1991).

iii. Sufficiency of the Evidence

       {¶48} Thompson first suggests his involuntary-manslaughter conviction is

not supported by sufficient evidence because the State failed to prove that he

committed the predicate offense of aggravated possession of drugs. In support of

this claim, Thompson observes that “no DNA analysis was conducted to link the

baggie of drugs found in [Thompson’s] bedroom to [him].”

       {¶49} Although Thompson is correct that the baggie of drugs found in his

bedroom was not tested for the presence of his DNA, his argument does not account

for the ample evidence presented by the State connecting him to the drugs found in

his bedroom. During his interviews with law enforcement officers on October 25

and October 29, 2018, Thompson repeatedly admitted that he was in possession of

some type of substance on the morning of October 25, 2018. Although Thompson

claimed in the interviews that he did not know what the substance was, he expressed


                                       -29-
Case No. 9-20-35


his belief that the substance was probably some variety of illegal drug. Furthermore,

during the October 29, 2018 interview, Thompson described where he stored the

substance while it was in his possession. During the search of Thompson’s bedroom

on October 25, 2018, a baggie containing an unknown substance was found in a

location consistent with Thompson’s description, and subsequent testing revealed

that this substance contained fentanyl. Thus, viewing the evidence in a light most

favorable to the State, any reasonable trier of fact could find beyond a reasonable

doubt that Thompson committed the offense of aggravated possession of drugs.

       {¶50} Thompson also maintains his involuntary-manslaughter conviction is

not supported by sufficient evidence because “the State was never able to prove that

[he] actually furnished or made any drugs available to the victim.”            While

Thompson frames this argument as challenging the sufficiency of the evidence

supporting his involuntary-manslaughter conviction, we observe that the State was

not required to prove that Thompson furnished or made drugs available to Good in

order to obtain a conviction for involuntary manslaughter. The offense of corrupting

another with drugs, which requires proof that the defendant furnished the victim

with a controlled substance, was not the predicate offense for Thompson’s

involuntary-manslaughter charge.        The predicate offense for Thompson’s

involuntary-manslaughter charge was aggravated possession of drugs, which does

not require proof that the defendant furnished the victim with a controlled substance.


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Case No. 9-20-35


Accordingly, we address Thompson’s argument as it relates to a challenge to the

sufficiency of the evidence supporting his corrupting-another-with-drugs

conviction.

       {¶51} Thompson contends the State did not present sufficient evidence that

he furnished Good with drugs because “[t]estimony was admitted that [he] was

likely unconscious when [Good] came to his residence on October 25, 2018 ….”

He also argues that “no evidence existed connecting the drugs found in the victim’s

wallet to [him], and certainly no DNA match existed.” Yet, Thompson again

ignores the State’s considerable evidence supporting a finding that he furnished

drugs to Good.

       {¶52} First, in both of his interviews with law enforcement officers,

Thompson recounted the conversation he had with Good on the morning of October

25, 2018, after Good asked about the drugs in Thompson’s bedroom. Therefore,

construing the evidence in a light most favorable to the State, the evidence supports

that Thompson was at least semi-conscious when Good came to his house on the

morning of October 25, 2018.       However, regardless of Thompson’s level of

consciousness when Good came to his house on the morning of October 25, 2018,

the State presented sufficient evidence that Thompson and Good had prearranged

for Good to obtain drugs from Thompson. At trial, the State presented the following

series of text messages between Thompson and Good:


                                        -31-
Case No. 9-20-35


       [Good]:       What happened to u being up lol

       [Good]:       U going to have a dub at 830

       [Thompson]: Yep. I was Out like a Blown out light

       [Good]:       K

       [Good]:       See u then

       [Thompson]: OK

All of these text messages were sent and received between 1:13 a.m. and 1:41 a.m.

on October 25, 2018. In addition, the State presented testimony from a law

enforcement officer that, in his experience, a “dub” refers to $20 worth of

“[t]ypically heroin, but anything.” (July 14-17, 2020 Tr. at 508-509). Another law

enforcement officer testified that, based on his experience, Good’s text messages to

Thompson represented an attempt by Good to obtain drugs. (July 14-17, 2020 Tr.

at 638). Accordingly, even if Thompson was unconscious when Good came to his

house, the evidence, when viewed in a light most favorable to the State, supports

that Thompson had previously agreed to make $20 worth of drugs available for

Good when Good arrived on the morning of October 25, 2018.

       {¶53} Finally, the State presented sufficient evidence for the jury to find that

Thompson did in fact furnish Good with a controlled substance. Specifically, the

State presented evidence that the substance found in Good’s wallet was similar to

the substance seized from Thompson’s bedroom in that both substances were


                                         -32-
Case No. 9-20-35


“tannish/peach” in color and contained fentanyl. Given these similarities, the jury

could reasonably infer that Thompson was the source of the substance found in

Good’s wallet.

       {¶54} Contrary to Thompson’s assertion, this inference is not negated by the

apparent absence of his DNA on the baggie that was found inside of Good’s wallet.

While it is true that Good was identified as the major contributor of a DNA mixture

discovered on the baggie and that Thompson was “excluded from the interpretable

data,” this does not necessarily mean that Thompson’s DNA was not on the baggie.

The State’s DNA report indicated that the DNA mixture discovered on the baggie

included additional data that was “not interpretable.” The State’s expert witness in

DNA analysis explained that this signified that “there is additional DNA data, but it

is so low that it is uninterpretable,” meaning that she “wouldn’t be able to include

or exclude anyone from that additional data.” (July 14-17, 2020 Tr. at 655). She

further testified that she could not include or exclude Thompson as a contributor to

the DNA mixture. (July 14-17, 2020 Tr. at 655, 662). It is thus possible that

Thompson interacted with the baggie found in Good’s wallet and that he deposited

his DNA thereon, though in an amount insufficient to make a positive identification.

Therefore, viewing the evidence in a light most favorable to the State, any

reasonable trier of fact could find beyond a reasonable doubt that Thompson




                                        -33-
Case No. 9-20-35


furnished Good with a controlled substance as required to sustain a conviction for

corrupting another with drugs.

       {¶55} In sum, viewing the evidence in a light most favorable to the State,

any rational trier of fact could have found the essential elements of involuntary

manslaughter and corrupting another with drugs proven beyond a reasonable doubt.

Accordingly, we conclude that Thompson’s involuntary-manslaughter and

corrupting-another-with-drugs convictions are supported by sufficient evidence.

iv. Manifest Weight of the Evidence

       {¶56} Thompson separately argues that his convictions are against the

manifest weight of the evidence.       However, in making his manifest-weight

argument, Thompson simply rehashes claims he made in his first assignment of

error. Thompson again claims his trial counsel was “ineffective for failing to file

and argue motions to suppress,” that his trial counsel erred by “[c]alling [him] to

testify as well as [Cooper],” and that “[a]dmitting to [the] possession charge on

closing argument was likely the final link in the destruction of any defense ….”

He maintains it was these supposed missteps by counsel that “caused the jury to lose

its way.”   These are not proper manifest-weight arguments, and in similar

circumstances, we have refused to construct, and then analyze, a manifest-weight

argument on behalf of the defendant. See State v. Laws, 3d Dist. Allen No. 1-20-

10, 

 (declining to construct and then resolve a manifest-weight


                                       -34-
Case No. 9-20-35


argument where defendant’s manifest-weight argument was nothing more than a

restatement of his earlier sufficiency-of-the-evidence argument).

      {¶57} Nevertheless, we have little difficulty concluding that Thompson’s

convictions are not against the manifest weight of the evidence. As discussed

throughout this opinion, there is overwhelming evidence that on October 25, 2018,

Thompson possessed a substance containing fentanyl. By his own statements,

Thompson confirmed that Good was aware of the drugs. There is also substantial

evidence supporting that on the morning of October 25, 2018, Good obtained some

of the substance and used it after leaving Thompson’s house. While Thompson

claimed he did not sell or give the substance to Good or make the substance

available to him, “[a] verdict is not against the manifest weight of the evidence

because the finder of fact chose to believe the State’s [evidence] rather than the

defendant’s version of the events.”     State v. Martinez, 9th Dist. Wayne No.

12CA0054, 

. Finally, it is undisputed Good overdosed on

fentanyl and later died as a result. Thus, Thompson’s involuntary-manslaughter and

corrupting-another-with-drugs convictions are not against the manifest weight of

the evidence.

      {¶58} Thompson’s second assignment of error is overruled.




                                       -35-
Case No. 9-20-35


                                 IV. Conclusion

       {¶59} For the foregoing reasons, Thompson’s assignments of error are

overruled.   Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Marion County Court

of Common Pleas.

                                                              Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr




                                      -36-