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State v. Potee

Court of Appeals of Ohio, Twelfth District, Clermont

May 22, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL C. POTEE, JR., Defendant-Appellant.

         CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2015-CR-00515

          D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, for plaintiff-appellee

          Joshua R. Crousey, for defendant-appellant

          OPINION

          RINGLAND, J.

         {¶ 1} Defendant-appellant, Michael C. Potee, appeals his convictions for one count of involuntary manslaughter, two counts of corrupting another with drugs, one count of trafficking in heroin, and one count of aggravated trafficking in fentanyl from the Clermont County Court of Common Pleas.

         {¶ 2} On September 22, 2015, the Clermont County Grand jury returned a five-count indictment for the above offenses. Prior to trial, the state amended the indictment and bill of particulars to permit the jury to find appellant guilty of complicity to commit any of the five offenses. The trial court allowed such amendment over appellant's objection. The trial revealed the following facts.

         {¶ 3} Rachel Joslin testified on the behalf of the state that on May 20, 2015, following a trip to the hospital, her husband, Jeremy Adkins, suggested the couple purchase $20 of heroin from appellant. The couple returned to their apartment in Clermont County, where Adkins called appellant sometime before noon to plan the purchase. Shortly after the telephone call with appellant, the two proceeded to drive to appellant's workplace in Hamilton County.

         {¶ 4} Appellant testified Adkins did contact him several times throughout the day because "he [needed] to get some heroin." Appellant "was actually waiting to buy some heroin [himself]" and "had contacted [his] drug dealer[, ]" so appellant "relayed that [information] to [Adkins]." From this conversation, Adkins decided to drive to appellant's work to obtain the heroin. Appellant provided Adkins directions and helped facilitate a heroin transaction between appellant's drug dealer and Adkins. Appellant testified Adkins would not likely have obtained heroin from appellant's dealer without his assistance.

         {¶ 5} Joslin's testimony conflicted with appellant's testimony regarding from whom the couple purchased the heroin. Joslin testified the couple pulled into the lot at the address provided by appellant next to a white work van. Appellant approached the couple's vehicle and conversed for a few minutes before exchanging a single bindle of heroin for $20. The couple proceeded to drive back to their apartment in Clermont County without making any stops. At 12:13 p.m., appellant sent a text message to Adkins' phone, stating "[l]et me know how you like that." Adkins responded two minutes later, stating "I will as soon as [I] get home in about 20 min[utes. Thanks.]" Appellant testified his last phone conversation with Adkins occurred when Adkins returned to his apartment in Clermont County and, at the time, appellant assumed Adkins was high on the drugs purchased from appellant's dealer.

         {¶ 6} Joslin testified that once the couple returned to their apartment, they split the heroin equally. Joslin described the color of the heroin as appearing to be a mixture of cream and white. On behalf of the state, Detective Ken Mullis of the Union Township Police Department testified that it is common for drug dealers to use a cutting agent to increase profits. With respect to heroin, fentanyl has become a common cutting agent and results in the substance appearing "between off-white and stony gray." Joslin further testified that the couple snorted the heroin and that they quickly felt the effects of the drugs. Adkins went to the bathroom and Joslin headed towards the front door to walk the family dog when she lost consciousness.

         {¶ 7} Appellant called Adkins at 3:39 p.m., and when he did not pick up, appellant sent him a text message, stating "[y]ou alive". Appellant testified he commonly uses the phrase and, to support this contention, the trial court admitted evidence of another text message asking one of appellant's friends if he was alive. Before 4:00 p.m., Adkins and Joslin's then 17-year-old son, Cain, returned home from high school. Cain testified that he had difficulty entering the apartment because Joslin's unconscious body blocked the front door. Cain observed Joslin struggling to breathe and making "gargling" sounds. Cain attempted to locate a phone and found his deceased father in the bathroom. Cain described Adkins as unconscious, not breathing, and extremely blue in the face. Cain retrieved Adkins' phone from the bathroom and called the police.

         {¶ 8} An emergency medical technician ("EMT") and a Union Township Police detective responded to Cain's emergency call. The EMT found Joslin breathing, but unconscious and unresponsive. The EMT determined Joslin was at risk of dying; therefore, he administered a dose of Narcan and revived her. The single dose did not bring Joslin to full consciousness; therefore, the EMT administered a second dose. While the EMT treated Joslin, the police detective located Adkins, deceased in the bathroom. A search of the residence produced one bindle that appeared to be heroin-related in the couple's bedroom. An ambulance transported Joslin to a nearby hospital. During the ambulance ride, Joslin disclosed she used heroin obtained from an acquaintance of her husband, whose number the police could find in her husband's phone.

         {¶ 9} The lead investigator, Detective Joshua Bail of the Miami Township Police Department, testified on behalf of the state that he conducted a series of interviews with Joslin. The first interview occurred at the hospital. Detective Bail testified Joslin disclosed to him that her husband purchased $20 of powder heroin from a man named Chris in a church parking lot in Hamilton County. Joslin stated she and her husband had been sober for years before making this purchase. She described the dealer as a white male in his thirties with tattoos on both arms who had a twin brother and lived in the Lakeshore Mobile Home Park in Goshen. She further disclosed this man drove a white work van. Detective Bail conducted a second interview with Joslin the next day where Joslin informed Detective Bail she had accidentally provided the wrong name for the heroin dealer. Joslin testified she was not altogether at the hospital and that she corrected herself during the second interview by providing Nick, Nicky, or Mickey as the name of the person who sold her husband heroin. Joslin further testified she had never met the dealer before the transaction, but knew of him as her husband's acquaintance. Detective Bail testified that another detective independent of this case administered a photo lineup where Joslin picked appellant with 95% confidence. During trial, Joslin identified appellant as the man who sold her husband heroin on the day in question.

         {¶ 10} From this information, Detective Bail obtained a search warrant for appellant's mobile home. Execution of the warrant on May 21, 2015 resulted in extensive drug paraphernalia including a great deal of uncapped needles, bottoms of aluminum cans, and plastic wrappings suggestive of drug activity. While at the mobile home, police called the number listed as "Nick Potee" in Adkins' phone and a mobile phone rang inside appellant's room. Police also located a white work van outside the mobile home. Detective Bail placed appellant under arrest at his residence and later that day conducted an interview. The state played a recording of this short interview at trial. During the interview, appellant informed the police that he temporarily resided at the mobile home, he owned the phone recovered from the residence, and that he is the only one who uses the phone.

         {¶ 11} On cross-examination of Detective Bail and Detective Mullis, defense counsel inquired whether the outcome of the search of appellant's mobile home was consistent with drug usage, as opposed to drug trafficking. Likewise, defense counsel made the same inquiry of the information obtained from appellant's phone. Due to this inquiry, the trial court later permitted questioning by the state during cross-examination of appellant regarding appellant's possession of $900 a few days prior to the date in question. In so doing, the trial court denied defense counsel's motion for mistrial based on admitting impermissible character evidence.

         {¶ 12} The Hamilton County Coroner's Office conducted an autopsy of Adkins' body. Hamilton County Chief Deputy Coroner, Dr. Karen Looman, testified the autopsy revealed Adkins died from acute combined heroin and fentanyl poisoning. She further stated overdosing on a mixture of heroin and fentanyl creates a substantial likelihood of death and that no other cause contributed to Adkins' death. Dr. Looman testified someone using heroin and fentanyl following an extended period of sobriety ...


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