from Union County Common Pleas Court Trial Court No.
Boggs for Appellant
W. Phillips for Appellee
Defendant-appellant, LaToya Mitchell ("Mitchell"),
brings this appeal from the January 29, 2019, judgment of the
Union County Common Pleas Court sentencing her to 10 years
and 10 months in prison after Mitchell was convicted by a
jury of Involuntary Manslaughter in violation of R.C.
2903.04(A), a felony of the first degree, Trafficking in
Cocaine in violation of R.C. 2925.03(A)(1), a felony of the
fifth degree, and Trafficking Heroin in violation of R.C.
2925.03(A)(1), a felony of the fifth degree. On appeal,
Mitchell argues that there was insufficient evidence
presented to support her convictions, that her convictions
were against the manifest weight of the evidence, that the
trial court erred in providing a supplemental jury
instruction in response to a juror's question, that the
trial court erred by failing to voir dire a juror
when the juror was "physically upset" during
deliberations, that the trial court erred in denying
Mitchell's request for new counsel on the morning of
trial, and that the cumulative errors in this trial
On April 12, 2018, Mitchell was indicted for Involuntary
Manslaughter in violation of R.C. 2903.04(A), a first degree
felony, Trafficking in Cocaine in violation of R.C.
2925.03(A)(1), a fifth degree felony, Trafficking in Heroin
in violation of R.C. 2925.03(A)(1), a fifth degree felony,
and Aggravated Trafficking in Drugs in violation of R.C.
2925.03(A)(1), a fourth degree felony. It was alleged that
Mitchell sold heroin and crack-cocaine on or about November
16, 2016, and that the drugs were ingested by Sydney Allmon,
resulting in Sydney's death. The Aggravated Trafficking
in Drugs charge alleged that Mitchell knowingly sold or
offered to sell a "Schedule II" substance,
specifically carfentanil. Mitchell pled not guilty to the
The matter proceeded to a jury trial on October 25-26, 2018.
Before the jury was selected, the State
"nolled" the Aggravated Trafficking in
Drugs charge, indicating that "as it relates to Fentanyl
or carfentanil which there was a trace of that * * * I
don't think there's sufficient evidence to show that
she knowingly sold that drug." (Oct. 25, 28, Tr. at 6).
The State proceeded to trial on the remaining three charges.
Testimony at trial revealed that Sydney Allmon struggled with
addiction and met Brandon Redd in a rehabilitation center in
Florida. Sydney and Brandon began dating, but were removed
from a sober living facility in Florida after they both
relapsed. The couple returned to Ohio approximately three
days before Sydney's death.
On November 15, 2016, the day before Sydney's death,
between 12:00 p.m. and 1:15 p.m., Brandon was in contact with
a drug dealer named "Chop" and he was separately in
contact with Mitchell-Chop's sister. Brandon acquired
drugs from Chop at that time, not from Mitchell, then Brandon
indicated that he and Sydney were out of money.
In order to get money, Sydney contacted a gentleman's
club called Siren's to work a shift there. Sydney's
shift was scheduled to begin at 7:00 p.m. on November 15,
2016. Brandon dropped off Sydney at work and he indicated
that she used heroin before her shift. Sydney arrived at
Siren's shortly after 7:00 p.m. and went to work.
During her shift, at 9:59 p.m., Brandon messaged Sydney and
asked her how much money she had made. Sydney responded,
"like 80 i think ill [sic] count in a sec."
(State's Ex. 26). Brandon picked up Sydney from work
around 2:30 a.m. on November 16, 2016. The two attempted to
contact various drug dealers that they knew in order to
acquire drugs. Sydney tried to call "YC Moore" to
ask if she could stop by. Moore was one of her "main
source[s] of supply," but no contact was made. (Oct. 25,
2018, Tr. at 178).
At the time, Brandon was unable to make calls on his phone as
his mother had shut off the calling feature in the previous
hours; however, he could still send text messages and send
messages through Facebook.
At 2:38 a.m. Sydney and Brandon attempted to contact
"Chop" on Sydney's phone. Although Chop had
sold drugs to Brandon the prior afternoon, Brandon indicated
that they were out of drugs. Using Sydney's phone,
Brandon identified himself to Chop and told Chop he was
trying to acquire drugs. Chop responded to get ahold of him
in the morning.
When their initial efforts attempting to contact dealers were
unsuccessful, Brandon contacted Mitchell and asked if it was
too late to "come thru [sic]." Brandon knew
Mitchell through Chop, and had seen her before when he was
making drug transactions with Chop, but Brandon had never
purchased drugs from Mitchell. Mitchell asked Brandon what he
wanted, and Brandon responded $60 worth of "boy"
and $40 worth of "hard." (Oct. 25, 2018, Tr. at
231). Testimony indicated that "boy" represented
heroin and "hard" represented crack-cocaine.
Brandon later changed his request for drugs from Mitchell to
$60 of "boy" and $30 of "hard."
Sydney and Brandon drove to Delaware, Ohio, where Mitchell
lived. At 3:32 a.m., there was a 58 second call to Mitchell
from Sydney's phone. Brandon indicated that he talked to
Mitchell on the phone and she told him where to park. Brandon
then met with Mitchell and purchased the drugs while Sydney
waited in the car in a nearby parking lot.
At 3:36 a.m., Brandon sent Mitchell a message from his own
phone stating that he was "out back" at
Mitchell's residence. At 3:41 a.m., Mitchell responded
that she was coming but had to redo her work because Brandon
changed the amounts. At 3:42 a.m. Brandon sent Sydney a
message saying he was about to head back to the vehicle, and
Sydney responded, "hurry, i'm so sketched since
we're the only car here." After Brandon returned to
the car, Sydney and Brandon returned to Brandon's
mother's house in Marysville where they used drugs.
Shortly after 2 p.m. on November 16, 2016, Brandon called
9-1-1. He indicated that when he tried to wake up Sydney, she
was cold and unresponsive. Emergency responders came to the
scene and Sydney was pronounced dead at 2:46 p.m. An autopsy
revealed, to a reasonable degree of medical and scientific
certainty, that Sydney died of "Acute intoxication by
the combined effects of cocaine and morphine (probably from
heroin)." (State's Ex. 48). A toxicologist
indicated that Sydney had ingested the cocaine and heroin
within hours of her death.
Brandon gave law enforcement officers permission to search
the area around Sydney's body. Among Sydney's things
were a crack pipe, scissors, a "kit" with
"q-tips," and a shoelace. (Oct. 25, 2018, Tr. at
165). An officer testified that a shoelace was regularly used
to "tie off a vein for injections. (Id. at
166). Inside Brandon's bookbag were "two small Zip
lock baggies containing small amounts of a white powdery
substance." (Id. at 186). The residue in the
baggies was tested and one bag was found to contain heroin
with trace amounts of carfentanil, while the other bag was
found to contain Cocaine. (Id. at 216-217).
Brandon affirmatively identified Mitchell at trial as the
individual who sold the heroin and crack-cocaine to him,
which he shared with Sydney. Brandon testified that he had
been convicted of Involuntary Manslaughter for sharing the
drugs with Sydney that resulted in her death. He testified
that he made a deal with the State for a favorable sentencing
recommendation to testify against Mitchell.
To corroborate Brandon's testimony regarding Mitchell as
the source of the heroin and crack-cocaine, the State
introduced text messages with Mitchell that were linked to a
phone she was using to set up the drug transaction. A
detective built a timeline through text messages, Facebook
messages, and calls to track the activity of Sydney and
Brandon over the last day of Sydney's life. Testimony was
also introduced that based on cell tower tracking, the
messages regarding the drug transaction were coming from the
area of Mitchell's residence in Delaware. Ultimately the
jury returned guilty verdicts for all three counts against
On January 29, 2019, the matter proceeded to sentencing.
Mitchell was ordered to serve 9 years in prison on the
Involuntary Manslaughter conviction, 11 months in prison on
the Trafficking in Cocaine conviction, and 11 months in
prison on the Trafficking in Heroin conviction. All of the
sentences were ordered to be served consecutively for an
aggregate prison term of 10 years and 10 months. A judgment
entry memorializing the sentence was filed that same day. It
is from this judgment that Mitchell appeals, asserting the
following assignments of error for our review.
of Error No. 1
jury lost its way when reviewing the evidence, resulting in a
verdict that is against the manifest weight of the evidence
and the sufficiency of the evidence.
of Error No. 2
trial court erred when it supplemented the jury instructions
after the instructions had been approved by appellee and
appellant's counsel and read to the jury and appellant
was further prejudiced when her attorney failed to object to
the supplemental instruction.
of Error No. 3
trial court erred when it failed to conduct an inquiry with
Juror #8 to determine if the juror was able to perform her
duties after it was reported she was hysterical and
physically upset when the jury went back to
of Error No. 4
trial court erred when it overruled appellant's motion
for new counsel without first determining the status of the
attorney/client relationship by inquiring of appellant the
basis for the motion.
of Error No. 5
was denied a fair trial as a result of the cumulative errors
that occurred throughout the trial.
Assignment of Error
In Mitchell's first assignment of error, she argues that
there was insufficient evidence presented to convict her of
Involuntary Manslaughter and that her conviction was against
the manifest weight of the evidence. Specifically she argues
that the State failed to prove the charge of Involuntary
Manslaughter beyond a reasonable doubt. She argues that
Brandon Redd's involvement in this matter was an
intervening factor, breaking the chain of causation required
to prove Involuntary Manslaughter.
Whether there is legally sufficient evidence to sustain a
verdict is a question of law. State v. Thompkins, 78
Ohio St.3d 380, 386 (1997). Sufficiency is a test of
adequacy. Id. When an appellate court reviews a
record upon a sufficiency challenge," 'the relevant
inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt.'" State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77,
quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus.
In reviewing whether a verdict was against the manifest
weight of the evidence, the appellate court sits as a
"thirteenth juror" and examines the conflicting
testimony. Thompkins at 387. In doing so, this Court
must review the entire record, weigh the evidence and all of
the reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in the
evidence, the factfinder "clearly lost its way and
created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered."
Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility
of the witnesses. State v. DeHass, 10 Ohio St.2d
230, 231 (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, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
In this case, Mitchell was convicted of Involuntary
Manslaughter in violation of R.C. 2903.04(A), which reads
"No person shall cause the death of another or the
unlawful termination of another's pregnancy as a
proximate result of the offender's committing or
attempting to commit a felony."
"The term 'proximate result' in the
[I]nvoluntary [M]anslaughter statute involves two concepts:
causation and foreseeability." State v. Hall,
12th Dist. Preble No. CA2015-11-022, 2017-Ohio-879, ¶
71, citing State v. Feltner, 12th Dist. Butler No.
CA2008-01-009, 2008-Ohio-5212, ¶ 13. "Generally,
for a criminal defendant's conduct to be the proximate
cause of a certain result, it must first be determined that
the conduct was the cause in fact of the result, meaning that
the result would not have occurred 'but for' the
conduct." Id.; see also State v. Carpenter, 3d
Dist. Seneca No. 13-18-16, 2019-Ohio-58 (providing a thorough
discussion of proximate result and causation). While
"but for" causation is used in the vast majority of
cases, there are circumstances where that analysis is
inapplicable because, as a matter of law, there can be more
than one proximate cause of an injury. State v.
Hall, 12th Dist. Preble No. CA2015-11-022,
2017-Ohio-879, ¶ 72, citing Strother v.
Hutchinson, 67 Ohio St.2d 282, 287 (1981); Taylor v.
Webster, 12 Ohio St.2d 53, 56 (1967), see also State
v. Dunham, 5th Dist. Richland No. 13CA26,
2014-Ohio-1042, ¶ 48.
"The second component of causation-the legal or
"proximate" cause-refers to the foreseeability of
the result." State v. Carpenter, 3d Dist.
Seneca No. 13-18-16, 2019-Ohio-58, ¶ 53, citing Katz,
Martin, & Macke, Baldwin's Ohio Practice,
Criminal Law, Section 96:4 (3d Ed.2018). A"
'defendant will be held responsible for those foreseeable
consequences which are known to be, or should be known to be,
within the scope of risk created by his conduct.'"
State v. Sabo, 3d Dist. Union No. 14-09-33,
2010-Ohio-1261, ¶ 25, quoting State v. Losey,
23 Ohio App.3d 93, 95 (10th Dist. 1985). It is generally
accepted that "[t]he possibility of overdose is a
reasonably foreseeable consequence of the sale of
heroin." State v. Patterson, 11th Dist.
Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶ 91;
Carpenter at ¶56.
In order to convict Mitchell of Involuntary Manslaughter at
trial, the State presented the testimony of 11 witnesses. The
testimony clearly established that Brandon and Sydney were in
a relationship, that they struggled with addiction, and that
they had recently returned to Ohio after being removed from a
sober living facility due to relapsing. The testimony also
established that in order to get money on November 15, 2016,
Sydney worked a shift at Siren's gentleman's club,
and that after her shift Brandon picked her up. At that time,
after 2 a.m., Brandon contacted a dealer known as
"Chop" in an attempt to acquire drugs, but
"Chop" said to come by in the morning. Brandon and
Sydney attempted to contact another dealer without success,
then Brandon made contact with Mitchell and arranged to
ultimately buy $60 in heroin and $30 of crack-cocaine.
Brandon and Sydney went to Delaware and a call was made to
Mitchell's phone from Sydney's phone lasting nearly a
minute. Brandon went to Mitchell's residence and
purchased the drugs from her as they had agreed via text
messages. Brandon and Sydney used some of the drugs that
night in Marysville, then Brandon went to sleep. When Brandon
later attempted to wake Sydney, she was cold and
unresponsive. She died of an overdose.
On appeal, Mitchell argues that Brandon actually supplied the
drugs that caused Sydney's death. Mitchell contends that
Brandon had, in fact, already admitted his culpability in
Sydney's death and that both Brandon and Mitchell could
not be charged with Involuntary Manslaughter of Sydney,
particularly here where Mitchell did not sell drugs directly
to Sydney or ever meet with Sydney.
Contrary to Mitchell's arguments, the jury was presented
with essentially uncontroverted testimony that Mitchell sold
crack-cocaine and heroin-with trace amounts of carfentanil-to
Brandon. Even to the extent that Mitchell contested the issue
of the sale, cell mapping data and cell phone records
supported Brandon's direct testimony. Moreover, the jury
was presented with information that a minute-long call was
made from Sydney's phone to Mitchell's phone shortly
before the transaction. Based on this, it would be reasonable
for a jury to infer that Mitchell was aware of Sydney's
presence with Brandon or that Mitchell had spoken with Sydney
that evening. Thus while Mitchell argues that she had no
direct connection to Sydney, the phone records show
Furthermore, there is no indication that Brandon did anything
to alter the drugs that were purchased from Mitchell and then
consumed by Sydney shortly thereafter. In fact, Brandon
testified that by the time Sydney went to work at Siren's
they were out of drugs. A reasonable jury could find based on
the evidence presented that Mitchell provided the drugs that
caused Sydney's death, which were purchased with
Sydney's money from her shift at Siren's.
While Mitchell argues that both Brandon and Mitchell could
not have been charged with Involuntary Manslaughter, case
authority establishes that there may be more than one
proximate cause for an Involuntary Manslaughter. State v.
Hall, 12th Dist. Preble No. CA2015-11-022,
2017-Ohio-879, ¶ 72, citing Strother v.
Hutchinson, 67 Ohio St.2d 282, 287 (1981). Importantly,
however, Brandon's conviction is not before this Court,
only Mitchell's, and the evidence supports that Mitchell
supplied the drugs that proximately resulted in Sydney
Allmon's death. Thus, but-for Mitchell trafficking in
drugs the death would not have happened.
When dealing with addicts and narcotics, particularly heroin
and carfentanil, Ohio Courts have found that "overdose
is a reasonably foreseeable consequence of the sale of
heroin." Carpenter, supra, at ¶ 76.
Notably, the State even presented some testimony to explain
differing tolerance levels and that because Sydney had been
sober for a period before this several-day binge ...