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State v. Mitchell

Court of Appeals of Ohio, Third District, Union

December 16, 2019


          Appeal from Union County Common Pleas Court Trial Court No. 2018-CR-0084

          Alison Boggs for Appellant

          David W. Phillips for Appellee


          SHAW, J.

         {¶1} 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 prejudiced her.


         {¶2} 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 charges.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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).

         {¶8} 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.

         {¶9} 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.

         {¶10} 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."

         {¶11} 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.

         {¶12} 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.

         {¶13} 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)."[1] (State's Ex. 48). A toxicologist indicated that Sydney had ingested the cocaine and heroin within hours of her death.

         {¶14} 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).

         {¶15} 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.

         {¶16} 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 Mitchell.

         {¶17} 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.

         Assignment of Error No. 1

         The 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.

         Assignment of Error No. 2

         The 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.

         Assignment of Error No. 3

         The 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 deliberate.

         Assignment of Error No. 4

         The 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.

         Assignment of Error No. 5

         Appellant was denied a fair trial as a result of the cumulative errors that occurred throughout the trial.

         First Assignment of Error

         {¶18} 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.[2]

         Standard of Review

         {¶19} 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.

         {¶20} 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." Id.

         {¶21} 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.


         {¶22} 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."[3]

         {¶23} "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.

         {¶24} "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.

         {¶25} 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.

         {¶26} 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.

         {¶27} 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.

         {¶28} 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 otherwise.

         {¶29} 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.

         {¶30} 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.

         {¶31} 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 ΒΆ 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 ...

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