State v. Henning

[Cite as State v. Henning, 

.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     WOOD COUNTY

State of Ohio                                          Court of Appeals No. WD-22-046

        Appellee                                       Trial Court No. CR20210159

v.

Heather Henning                                        DECISION AND JUDGMENT

        Appellant                                      Decided: August 18, 2023

                                                …

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold and Dexter L. Phillips, Assistant Prosecuting
        Attorneys, for appellee.

        Gene P. Murray, for appellant.

                                                …

        OSOWIK, J.

                                              Introduction

        {¶ 1} On June 16, 2021, the Wood County Grand Jury indicted Heather Henning,

appellant herein, on Three Counts: Count One, Involuntary Manslaughter, a felony of

the first degree, under R.C. 2903.04(A) and (D); Count Two, Corrupting Another with
Drugs, a felony of the second degree, under R.C. 2925.02(A)(3); Count Three, Trafficking

in a Fentanyl Related Compound, a felony of the fifth degree, under R.C. 2925.03(A)(l).

       {¶ 2} Following a jury trial, appellant was convicted on each count. The court

granted appellant’s motion to merge all three counts into Count One, Involuntary

Manslaughter, for purposes of sentencing. Appellant was then sentenced to serve a definite

minimum term of eight (8) years and a maximum indefinite term of twelve (12) years in

the Ohio Department of Rehabilitation and Corrections. She now appeals from that order.

For the following reasons, we affirm.

                                   Factual Background

       {¶ 3} The following facts were established at trial. At the outset, it was established

that appellant and the decedent, J.H. had been previously married, but were divorced at the

time of his death. Nevertheless, the couple had maintained an ongoing relationship

together. Their two minor children were in the custody of a friend of appellant.

       {¶ 4} On January 6, 2021, at approximately 5:00 p.m., Henning drove to

Toledo and sold some personal items for $180 in cash. At 5:49 p.m., J.H., the

decedent, texted appellant “Ok your [sic] on your way home right.” At 5:49 p.m.,

appellant responded, “I gotta get the dope n I will be.” At approximately 6:38 p.m.,

Henning used the cash to buy fentanyl in Toledo from a drug dealer. She then

returned to 326 Derby, Bowling Green, Wood County, Ohio, where J.H. was waiting

for her.




2.
      {¶ 5} Appellant furnished J.H. with the fentanyl she had just purchased in

Toledo. On January 7, 2021, at approximately 2:30 a.m., appellant injected J.H. with

fentanyl she purchased in Toledo. At 9:39 a.m., from the Derby residence, Henning

called 911, and indicated J.H. was unconscious and not breathing. She was told by

the dispatcher to perform CPR until emergency medical personnel arrived at the

residence.

      {¶ 6} The first to respond to the residence was Bowling Green Police Officer

Jason Broshious. He observed that J.H. was unconscious and not breathing. J.H.’s

body was grey in color and his lips were blue. J.H. did not have a pulse. Henning

was on the floor with J.H. attempting to perform CPR with one hand, and talking on

the phone with the other hand. There was nobody else in the Derby residence.

Broshious asked Henning if J.H. had overdosed on drugs. Appellant responded,

“No.” Consequently, Broshious did not consider administering Narcan to J.H.

Then, Broshious took over performing CPR on J.H., but could not reestablish a

pulse or breathing. Paramedics initiated resuscitation efforts and were able to

reestablish a pulse, however, J.H. remained unconscious. J.H.’s eye pupils

remained dilated and fixed.

      {¶ 7} Paramedics rushed J.H. to the Wood County Hospital and transferred

care. Neither paramedics nor Wood County Hospital administered fentanyl to J.H.

He never regained consciousness. Later the same day, at 3:35 p.m., at the Wood

County Hospital, J.H. was pronounced dead.


3.
       {¶ 8} The next day, on January 7, 2021, Deputy Lucas County Coroner, Dr.

Thomas Blomquist, MD, Ph.D., performed an autopsy of J.H. Based on the

autopsy and the toxicology report, Dr. Blomquist concluded that fentanyl toxicity

was the cause of J.H.’s death.

       {¶ 9} At trial, Dr. Blomquist explained that a lethal dose of fentanyl is five

(5) nanograms per milliliter. Dr. Blomquist further explained that J.H.’s blood

contained fentanyl in the amount of four hundred and sixty-three (463) nanograms

per milliliter. Dr. Blomquist testified, “So he was close to 100-fold more than what

you would anticipate, based on toxicology alone-what could kill someone.”

                                 Assignments of Error

       {¶ 10} Appellant presents three assignments of error for our review. Her first

assignment is stated as follows:

       ERROR #1: THE STATE’S KEY WITNESS HAS CUSTODY OF

       TWO MINOR CHILDREN OF DEFENDANT-APPELLANT, AND

       SAID WITNESS HAD WRITTEN A LITANY OF NOTES THAT

       PRE-EMPTIVELY INCIRIMINATED DEFENDANT-APPELLANT,

       AND THEN EMBELLISHED THOSE NOTES WITH HER BIASED

       TESTIMONY, IN ADDITION TO LIKEWISE PRE-EMPTIVELY

       AND VOLITIONALLY CONTACTING THE POLICE AND

       MAKING A RECORDED TELEPHONE CALL TO FURTHER

       INCRIMINATE THE DEFENDANT-APPELLANT, THEREBY


4.
       RESULTING IN HARMFUL AND REVERSIBLE PLAIN ERROR,

       AS BEING AGAINST PUBLIC POLICY FOR A STATE’S KEY

       WITNESS HAYING THE INCENTIVE AND ULTERIOR MOTIVE

       OF KEEPING CUSTODY OF DEFENDANT-APPELLANT’S TWO

       MINOR CHILDREN, UPON A CRIMINAL CONVICTION OF THAT

       DEFENDANT, AND THUS THEREBY DEPRIVING HER OF THE

       FUNDAMENTAL AND SUBSTANTIAL RIGHT TO DUE PROCESS

       OF LAW.

       {¶ 11} This assignment loosely contains a catalog of scattered errors purportedly

committed by the trial court encircling the testimony of one witness. The absence of

supportive caselaw makes analysis of this assignment a toilsome challenge for this court.

Nevertheless, we shall attempt to address this assignment by subdividing the claims of

appellant.

       {¶ 12} First, appellant takes exception to the use of notes by prosecution witness

Suzanne Saunders during her direct examination. Prior to empaneling a jury, the record

shows that there was substantial discussion concerning appellant’s objection to the

anticipated use of notes by this witness when she was to testify during the prosecution’s

case in chief. The state argued that the witness took detailed notes of her interactions

with appellant and that she should be permitted to refresh her recollection by the use of

her personal notes.




5.
       {¶ 13} It is apparent that the notes were disclosed to and reviewed by appellant

prior to Saunders’ testimony. Appellant maintained an objection to the use of these notes

on the basis that the manner and use of these notes were prejudicial and would impact the

jury. Counsel argued that the notes were so detailed that the jury would “have such an

impression of prejudice” against appellant. Other than this generalized objection,

appellant did not specify any aspect of any of the notes or the manner of their use that

would be prejudicial.

       {¶ 14} The court overruled appellant’s objection and ruled that the witness would

be allowed to reference these notes during her testimony in accordance to the rules of

evidence, if her memory would need to be refreshed.

       {¶ 15} During the direct examination of Saunders, the prosecution indicated that

she would be asked about particular dates. The prosecutor then stated “And if need be, if

you need your memory refreshed, you’re free to refer to your notes as needed, okay?”

       {¶ 16} The practice of “refreshing” a witness’s recollection by means of a writing

is prescribed by Evid.R. 612, which states in pertinent part “ … if a witness uses a

writing to refresh his memory for the purpose of testifying, either: (1) while testifying; or

(2) before testifying, if the court in its discretion determines it is necessary in the interests

of justice, an adverse party is entitled to have the writing produced at the hearing.” The

propriety of the form of the questions employed to establish this lack of present

recollection is largely within the discretion of the trial court. Dayton v. Combs, 

, 

 (2d Dist.1993).



6.
       {¶ 17} In this case, the manner and form in which the prosecution established

Saunders’ lack of recollection is a less than perfect foundation to enable the use of her

notes to refresh her memory. Regardless, it appears from the record that she was not

reading from her notes verbatim once her memory of the dates was refreshed. We note

that it is the testimony of Saunders that is the evidence that was considered by the jury.

The out-of-court statement was not placed before the jury and was never admitted into

evidence.

       {¶ 18} The writing used to refresh the witness’s recollection is not admitted into

evidence unless admission is requested by the adverse party, and in any event has no

substantive evidentiary significance. State v. Harris, 8th Dist. Cuyahoga No. 110982,

, quoting 

. Appellant did not move to have any of the

Saunders notes formally admitted into evidence. Saunders was subject to cross-

examination concerning her recollection of the interactions with appellant and the

accuracy of her “documentation.”

       {¶ 19} Accordingly, after an examination of the complete testimony of Saunders,

we conclude that the trial court did not abuse its discretion in permitting her to refer to

her personal notes when testifying to refresh her recollections.

       {¶ 20} The second segment of appellant’s first assignment of error focuses on the

two recorded telephone calls between Saunders and appellant. The first involved a

telephone conversation that occurred on January 8, 2021. The second recorded telephone

conversation occurred on January 11, 2021. That conversation took place at the Bowling



7.
Green Police Department. Both recorded conversations were admitted into evidence as

composite State Exhibit No. 10 (as well as audio thumb drive 10A), without objection

from appellant.

       {¶ 21} Appellant argues that during these conversations, she was “grief-stricken

and sad” and that the video that was played before the jury (Exhibit No. 10) appeared to

show that Saunders was presented a paper with questions seemingly prepared by the

police. However, Saunders was cross-examined on the circumstances of the telephone

calls and the preparation of questions by the police.

       {¶ 22} Appellant also contends that Saunders was “biased” and had an “ulterior”

motive of keeping custody of appellant’s two minor children. Counsel cross-examined

Saunders on this precise point. Saunders testified that it was, in fact, appellant that had

approached Saunders over “many years” to take custody of her two youngest children

because of her own (appellant’s) drug problem.

       {¶ 23} From the outset of the trial, it appears that counsel for appellant adopted a

deliberate strategy to argue that Saunders is a less than credible witness. For example, in

his opening statement to the jury, counsel for appellant advocated that Saunders wanted

to “document” for the purposes of keeping custody of these children. And again, when

counsel moved for acquittal pursuant to Criminal Rule 29(A) at the close of the state’s

case, counsel argued that Saunders was “discredited.”

       {¶ 24} Claims of bias and motive to testify are undeniably attacks on the

credibility of the witness, Saunders. We have repeatedly pointed out that an evaluation of



8.
witness credibility is not proper on review by this court, unless the reviewing court finds

that a reasonable juror could not find the testimony of the witness credible. State v.

Rance, 6th Dist. Lucas No. L-21-1234, 

, quoting State v. Dean, 6th

Dist. Lucas No. L-16-13012, 

. The fact that Saunders had

custody of appellant’s children (at appellant’s request) does not render her testimony

incredible. Credibility assessments regarding the testimony of witnesses are well within

the province of the jury. State v. McGowan, 10th Dist. Franklin No. 18AP-467, 2019-

Ohio-5319, ¶ 67.

       {¶ 25} While Henning contends that the “biased” testimony of Saunders should be

considered “plain error” she makes no argument to advance such an analysis and we, as

an appellate court, will not create an argument on her behalf. Accordingly, as appellant

failed to develop her plain error argument, we do not reach the merits of this assertion

and decline to address it. Simon v. Larreategui, 2d Dist. Miami No. 2021-CA-41, 2022-

Ohio-1881, ¶ 41, appeal not allowed, 

, 

, 

.

       {¶ 26} As a final branch of appellant’s first assignment of error, she pleads that

“There ought to be a public policy against this way to work to criminalize a parent” in the

recording of her telephone calls by Saunders. In support, Henning points to the language

of R.C. 2933.52(B)(4):

       (4) A person who is not a law enforcement officer and who intercepts a

       wire, oral, or electronic communication, if the person is a party to the



9.
       communication or if one of the parties to the communication has given the

       person prior consent to the interception, and if the communication is not

       intercepted for the purpose of committing a criminal offense or tortious act

       in violation of the laws or Constitution of the United States or this state or

       for the purpose of committing any other injurious act;

Appellant’s argument suggests that the telephone conversations with Saunders were

inculpatory. As such, appellant considers this evidence to be “injurious” under the terms

of the statute and hence, at least against the public policy of the statute.

       {¶ 27} The record fails to show that either the public policy argument or the

application of R.C. 2933.52(B)(4) was presented to the trial court below in any manner or

form. Appellant has brought these arguments for the first time in her appeal to this court.

A party may not change her theory of the case and present new arguments for the first

time on appeal. Tokles v. Black Swamp Customs, L.L.C., 6th Dist. Lucas No. L-14-1105,

, citing State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections, 

, 

 (1992). Arguments raised for the first time on appeal

will not be considered by an appellate court. Gardi v. Bd. of Edn., 8th Dist. Cuyahoga

No. 99414, 

, citing State ex rel. Quarto Mining Co. v. Foreman, 

, 

 (1997).

       {¶ 28} Appellant had adequate opportunity to raise these arguments before the

trial court but did not. We decline to review an issue raised for the first time on appeal.

Seyfried v. O’Brien, 

, 

, ¶ 12-14 (8th Dist.).



10.
      {¶ 29} For the forgoing reasons, we find appellant’s first assignment of error to be

without merit and found not well-taken.

      {¶ 30} Appellant’s second of assignment of error states:

      ERROR NO. 2: A STATE WITNESS'S EXTREMELY

      PEJORATIVE TESTIMONY ABOUT THE DEFENDANT-

      APPELLANT’S NEED TO MAINTAIN HER APPOINTMENT FOR

      METHADONE TREATMENT, WHEN CROSS-EXAMINATION

      ABOUT IT WAS NOT ALLOWED BY THE TRIAL COURT, WAS

      HARMFULLY PREJUDICIAL AND DENIED THE DEFENDANT-

      APPELLANT’S FUNDAMENTAL AND SUBSTANTIAL RIGHTS

      TO A FAIR JURY TRIAL AND TO DUE PROCESS OF LAW AND

      TO CONFRONTATION OF WITNESSES.

      {¶ 31} In this assignment, appellant contends the trial court erred when it denied

her the ability to cross-examine a police officer about the effects of methadone

treatment.

      {¶ 32} Officer Jason Broshious of the Bowling Green Police Department was

the first to respond to a medical emergency call at 326 Derby on January 7, 2021.

When the emergency personnel began to transport the decedent to the Wood County

Hospital, he testified “I asked Mrs. Henning if she had a ride to the hospital and she

said that she had her own car. She had to run to Toledo first to dose. I asked her what

that meant. And she said she needed to get methadone before they closed. So I



11.
advised her that what the fire department was trying to say was it was looking really

bad, that she probably needed to go to the hospital quickly. But she said she was going

to Toledo first.” Broshious further stated “I’ve been doing this 28 years and I’ve never

seen a spouse that didn’t want to either be in the ambulance with the spouse or hurry to

the hospital to be with them as soon as possible.”

      {¶ 33} On cross-examination, Officer Broshious was asked “Do you know what

methadone is?” Broshius responded “Yes.” “It’s a drug they give to heroin addicts to

compensate for the heroin drugs that they’re addicted to, so they don’t relapse.”

Counsel then asked the officer “Do you know what happens when a person doesn’t

have their methadone?” Before he could answer, the state interposed an objection,

based upon the competency of the witness that he is a law enforcement officer and not

a medical doctor or toxicologist. The trial court sustained the objection.

      {¶ 34} Appellant now argues that since Broshious answered affirmatively that

he knew what methadone was, he “opened the door to cross-examination questions

by the defense.” Henning claims that the inability to question the officer about

“what happens when a person doesn’t have their methadone” left the jury with

the “wrong impression” that she “couldn’t care less about” the decedent. The

objection to appellant’s question was sustained by the trial court based upon Evid.R.

602 which states:

      A witness may not testify to a matter unless evidence is introduced

      sufficient to support a finding that the witness has personal knowledge of



12.
       the matter. Evidence to prove personal knowledge may, but need not,

       consist of the witness’ own testimony. This rule is subject to the

       provisions of Rule 703, relating to opinion testimony by expert witnesses.

       {¶ 35} Appellant presents no argument concerning the application of Evid.R 602

to the question posed to officer Broshious. It was not established that Officer Broshious

had personal knowledge of the physiological effects of methadone. Nor was it

established that he was an expert witness that could be presented such a hypothetical

question. Therefore, the trial court properly sustained the objection to the question posed

to Officer Broshious.

       {¶ 36} Appellant also claims that the inability to cross-examine Broshious on the

effects of methadone dosing violates her Sixth Amendment right to confront the witness.

       {¶ 37} Appellant has no Sixth Amendment right to confront a witness with

irrelevant evidence. In re Michael, 

, 

 (2d

Dist.1997). The confrontation clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish. Delaware v. Fensterer, 

, 

, 

 (1985).

       {¶ 38} We review de novo evidentiary rulings that implicate the Confrontation

Clause. State v. Kamer, 6th Dist. Wood No. WD-20-084, 

,

citing State v. McKelton, 

, 

, 

.




13.
       {¶ 39} At the outset, we must therefore determine whether the statement by

Broshious is testimonial because the Confrontation Clause does not apply to

nontestimonial hearsay. State v. Siler, 

, 

, 

, citing Crawford v. Washington, 

, 

, 

 (2004). Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose of

the interrogation is to enable police assistance to meet an ongoing emergency. State v.

Siler, 

, 

, 

.

       {¶ 40} In this instance, Officer Broshious testified when he asked the appellant if

she had a ride to the hospital. Appellant responded “She had her own car. She had to

run to Toledo first to dose. I asked her what that meant. And she said she needed to

get methadone before they closed.”

       {¶ 41} These circumstances objectively establish that there was an ongoing

emergency, and that the primary purpose of the question to appellant was to assist

Henning herself. Appellant called 911 about J.H. being unresponsive. He was her

former spouse. She was performing CPR when the first responder arrived. EMS

personnel had struggled to get a faint pulse before placing him in the vehicle for transport

to Wood County Hospital.

       {¶ 42} Under these circumstances, appellant’s statements to Officer Broshious are

plainly nontestimonial and it could not reasonably be expected that those statements

would have been used in a later criminal proceeding. Id. at ¶ 30-31.



14.
       {¶ 43} Based upon these facts, appellant’s rights to confrontation and cross-

examination under the Sixth Amendment to the United States Constitution and under

Section 10, Article 1 of the Ohio Constitution are not implicated.

       {¶ 44} Accordingly, we find appellant’s second assignment of error not well-taken

and denied.

       {¶ 45} Appellant’s third assignment of error is stated:

       ERROR #3: THE REPEATED DENIAL OF THE TRIAL COURT TO

       ADMIT DEFENDANT- APPELLANT’S EXHIBIT A, AND TO ALSO

       DENY ANY CROSS EXAMINATION ABOUT SAME, WHICH

       CONTAINED EXCULPATORY EVIDENCE FAVORABLE TO THE

       DEFENDANT- APPELLANT, DID THEREBY DENY THE

       DEFENDANT- APPELLANT’S FUNDAMENTAL AND

       SUBSTANTIAL RIGHT TO CONFRONTATION OF WITNESSES AND

       ALSO VIOLATED THE DEFENDANT- APPELLANT’S

       FUNDAMENTAL AND SUBSTANTIAL RIGHTS TO A FAIR JURY

       TRIAL AND TO DUE PROCESS OF LAW.

       {¶ 46} At trial, the prosecution presented testimony of Sergeant Andrew Mulinix,

Jr. of the Bowling Green Police Department. Mulinix was an investigative detective in

this case. After executing a search warrant concerning appellant’s cell phone, a report

was prepared itemizing the text messages between the decedent and Henning.




15.
       {¶ 47} When Mulinix testified, the state only introduced two exhibits concerning

any cell phone records. State’s Exhibit 7 is extractions from Henning’s cell phone for the

period January 6, 2021, at 10:54 a.m. through January 6, 2021 at 7:12 p.m.. State’s

Exhibit 8 is from the period December 8, 2020, at 10:21 p.m. through December 11, 2020

at 8:29 p.m.. During cross-examination of Sergeant Mulinix, appellant moved to have

“Defense Exhibit A” introduced.

       {¶ 48} The prosecution objected to its admissibility because the prosecution

believed that the exhibit contained text messages from appellant. Hence, the state argued,

since they would be out of court statements of appellant, they would be inadmissible

hearsay and were not subject to any exception to the hearsay rule. “Hearsay” is a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted in the statement. Evid.R.

801(C). State v. Morris, 6th Dist. Lucas No. L-22-1025, 

.

       {¶ 49} Some statements are not considered to be hearsay under certain well-

defined circumstances. One of those occasions is set forth in Evid.R. 801(D)(2) which

states in relevant part:

       D) Statements That Are Not Hearsay. A statement is not hearsay if:

       (2) Admission by Party-Opponent. The statement is offered

       against a party and is (a) the party's own statement, in either an

       individual or a representative capacity, or (b) a statement of which

       the party has manifested an adoption or belief in its truth, or (c) a



16.
       statement by a person authorized by the party to make a statement

       concerning the subject, or (d) a statement by the party's agent or

       servant concerning a matter within the scope of the agency or

       employment, made during the existence of the relationship, or (e) a

       statement by a co-conspirator of a party during the course and in

       furtherance of the conspiracy upon independent proof of the

       conspiracy.

Therefore, for Henning’s text messages to the deceased to be considered non-hearsay

under Evid.R. 801(D)(2), the statement must be offered against the declarant and cannot

be in the declarant’s favor. See Staff Notes to Evid.R. 801(D)(2)(a).

       {¶ 50} Evid.R.801(D)(2) specifically prohibits the admission of such self-serving

statements. Appellant is precluded from introducing her own statement into evidence in

the manner presented at trial in this case. State v. Dunlap, 10th Dist. Franklin No. 03AP-

481, 

.

       {¶ 51} However, counsel for appellant argued before the trial court that the

entirety of “Defense Exhibit A” contained text messages from the deceased to appellant,

not from appellant to the deceased. Nevertheless, the trial court sustained the objection

and did not permit Defense Exhibit A to be admitted into evidence. That exhibit was

ultimately proffered and is included in this record. This extraction report contains 461

messages received by appellant from the decedent (“referred to as Daddy”) for the period

from February 19, 2020, at 3:05 p.m. until January 6, 2021, at 6:41 p.m..


17.
       {¶ 52} Remarkably, our review of the proffered “Defense Exhibit A” reveals that

there are no text messages originating from appellant. In fact, the entire report is a

redacted version of nothing but text messages from the decedent to appellant exclusively.

Each message is marked “incoming” from “Daddy” which is undisputed to be the

decedent. Thus, the trial court erred in ruling that “Defense Exhibit A” was inadmissible

because it contained statements of the appellant.

       {¶ 53} However, the admission of evidence lies within the broad discretion of the

trial court, and a reviewing court should not disturb evidentiary decisions in the absence

of an abuse of discretion that has created material prejudice. State v. Conway, 

, 

, 

, citing State v. Issa, 

, 

 (2001).

       {¶ 54} Having determined that the trial court erred in not allowing cross-

examination and admission of “Defense Exhibit A,” we must determine whether that

error was harmless. State v. Kryling, 6th Dist. Wood, No. WD-20-084, 

. Harmless error is any error, defect, irregularity, or variance which does not affect

substantial rights. State v. Kamer, 6th Dist. Wood, No. WD-20-084, 

; Crim.R. 52(B).

       {¶ 55} We note at trial, appellant made no objection to the admissibility of the text

messages from the deceased. In fact, it is her contention that all of the text messages

from the decedent be admitted into evidence so that the “untold rest of the story … the




18.
broader picture, the true picture, which the prosecutor did not want the jury to read about,

and more importantly, to know about.”

       {¶ 56} A close examination of the proffered exhibit reveals messages from the

decedent to appellant starting from February 19, 2020, nearly a year prior to the

decedent’s death. Those messages mostly involve statements concerning his activities of

the day such as “playing football,” “on my way,” “Arby’s,” “cut the grass.” In the

months and days prior to his demise, the texts do indicate a sense of desperation in urging

appellant to obtain more drugs for him because he was “throwing up” and “bring dope.”

       {¶ 57} There is no apparent beneficial value of these texts that would have any

bearing on appellant’s defense, despite her argument that the selective use of limited

relevant portions by the state somehow prevented the jury from considering “the rest of

the story” and thereby making it easier to obtain a conviction. Appellant has failed to

demonstrate how this error resulted in prejudice to her.

       {¶ 58} Henning claims that these texts contain “exculpatory evidence” favorable

to her and “pertinent” to her defense. Nevertheless, she fails to point to any specific

messages either individually or cumulatively that would be materially exculpatory and

critical to her defense. In arguments to the trial court and in closing to the jury, an

obvious theme of her defense was an inarticulate need to “tell the rest of the story”

through these text messages.

       {¶ 59} The exculpatory value of the decedent’s incoming text messages to

appellant are not immediately apparent. After review, there is nothing to indicate that



19.
these texts might be expected to play a significant role in her defense. California v.

Trombetta, 

, 

 (1984).

       {¶ 60} Appellant’s contention that the text messages from the deceased to

appellant contained in “Defense Exhibit A” are exculpatory and pertinent to her defense

are not supported by the proffered exhibit. Therefore, any possible error in the court’s

failure to permit cross-examination and admit the exhibit resulted in no prejudice to

appellant and was harmless. Bleicher v. Univ. of Cincinnati Coll. of Med., 

, 

 (10th Dist.1992)

       {¶ 61} Appellant further asserts that the trial court’s denial of cross-examination

of Sergeant Mulinix on “Defense Exhibit A” was a violation of her rights guaranteed

under the Confrontation Clause of the Sixth Amendment. Counsel argued to the trial

court that the texts would show that the deceased “was so domineering that he basically

would have done this to himself.”

       {¶ 62} Appellant has not indicated how cross-examination of Sergeant Mulinix on

the decedent’s texts would be permissible on the issue of whether the deceased had

injected himself with the lethal drugs. Certainly, the police officer would not have been

competent to render an opinion on the issue or on the issue of whether J.H. was

“domineering”. Further, the declarant in this instance was deceased and certainly

unavailable for cross-examination.

       {¶ 63} Appellant does not have an unfettered right to offer testimony that is

incompetent or otherwise inadmissible under standard rules of evidence. Taylor v.



20.
Illinois, 

, 

, 

 (1988). State v. Hale, 

, 

, 

.

       {¶ 64} Again, based upon these facts, appellant’s rights to confrontation and cross-

examination under the Sixth Amendment to the United States Constitution and under

Section 10, Article 1 of the Ohio Constitution are not implicated. As previously stated,

only testimonial evidence is subject to confrontation and cross-examination. There is no

reason to believe that the statements from the decedent were made by him with any

intention that they be used in future legal proceedings. The Confrontation Clause is not

implicated in the use of these text messages because they are not testimonial.

       {¶ 65} As part of her third assignment, appellant also claims that the trial court

infringed upon her rights to a fair trial and to due process of law. However, appellant

does not present any arguments in support of this proposition. The record also shows a

failure to raise these constitutional arguments before the trial court. In this instance,

Henning has not specified which section and how the Sixth and Fourteenth Amendments

to the United States Constitution and Article I Section 10 of the Ohio Constitution or any

other relevant sections have been violated. As stated previously, since appellant has

failed to develop this argument, we will not create an argument on her behalf. As such,

we need not address the fair trial and due process claims of her third assignment.

       {¶ 66} For the forgoing reasons, we find no merit in appellant’s third assignment

of error and find it not well-taken and denied.




21.
                                       Conclusion

       {¶ 67} The judgement of the Wood County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                       Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Thomas J. Osowik, J.                           ____________________________
                                                       JUDGE
Christine E. Mayle, J.
                                               ____________________________
Charles E. Sulek, J.                                   JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




22.