[Cite as State v. Lerch, 2013-Ohio-5305.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26684

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
HEATHER M. LERCH                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 12 03 0632 (D)

                                 DECISION AND JOURNAL ENTRY

Dated: December 4, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Heather Lerch, appeals from her convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                 I

        {¶2}     Shortly before 11:00 p.m. on February 26, 2012, police and paramedics received a

call from 552 Saint Leger Street, indicating that a child there was not breathing. Paramedics

took the child, Patrick Lerch, to Akron Children’s Hospital, where he was pronounced dead.

Patrick had bruises, abrasions, burns, and needle puncture marks to his body at the time of his

death. An autopsy later revealed that he died from methamphetamine poisoning after having

ingested a large amount of the drug. A search of the Saint Leger Street house uncovered

numerous components of methamphetamine production.

        {¶3}     A grand jury indicted Lerch on two counts of illegal manufacturing of

methamphetamine, two counts of illegal assembly or possession of chemicals for the
                                                   2


manufacturing of methamphetamine, two counts of aggravated possession of methamphetamine,

two counts of illegal use or possession of drug paraphernalia, three counts of child endangering,

one count of complicity to commit child endangering, four counts of involuntary manslaughter,

one count of felony murder, and one count of complicity to commit felony murder. Lerch sought

to suppress the statements she had made to the police solely on the basis that she had not been

Mirandized. The court held a hearing on Lerch’s motion to suppress and ultimately denied it.

The matter was then set for trial.

         {¶4}   The State dismissed six counts before trial, and the court acquitted Lerch of two

counts at the close of the State’s case. The remaining ten counts were given to the jury, and the

jury found Lerch not guilty of four counts. The jury found Lerch guilty of the six following

counts: (1) child endangering, in violation of R.C. 2919.22(B)(1); (2) felony murder, in violation

of R.C. 2903.02(B), with child endangering (R.C. 2919.22(B)(1)) as its predicate offense; (3)

child endangering, in violation of R.C. 2919.22(A); (4) involuntary manslaughter, in violation of

R.C. 2903.04(A), with child endangering (R.C. 2919.22(A)) as its predicate offense; (5) child

endangering, in violation of R.C. 2919.22(B)(6); and (6) involuntary manslaughter, in violation

of R.C. 2903.04(A), with child endangering (R.C. 2919.22.(B)(6)) as its predicate offense. The

trial court sentenced Lerch to a total of 22 years to life in prison.

         {¶5}   Lerch now appeals from her convictions and raises four assignments of error for

our review. For ease of analysis, we rearrange and consolidate several of the assignments of

error.
                                                3


                                                II

                              Assignment of Error Number Three

       LERCH’S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL
       COURT’S DENIAL OF HER MOTION TO SUPPRESS HER UN-
       MIRANDIZED STATEMENTS TO POLICE DENIED HER A FAIR TRIAL.

       {¶6}    In her third assignment of error, Lerch argues that the court erred by denying her

motion to suppress the statements she made to the police during several interviews. Specifically,

she argues that her statements were elicited in violation of her Miranda rights and given

involuntarily. We disagree.

       {¶7}    The Ohio Supreme Court has held that:

       [a]ppellate review of a motion to suppress presents a mixed question of law and
       fact. When considering a motion to suppress, the trial court assumes the role of
       trier of fact and is therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366
       (1992). Consequently, an appellate court must accept the trial court’s findings of
       fact if they are supported by competent, credible evidence. State v. Fanning, 1
       Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then
       independently determine, without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard. State v. McNamara, 124
       Ohio App.3d 706 (4th Dist.1997).

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Accord State v. Hobbs, 133 Ohio

St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied). Accordingly, this Court reviews the trial

court’s factual findings for competent, credible evidence and considers the court’s legal

conclusions de novo. State v. Conley, 9th Dist. Lorain No. 08CA009454, 2009-Ohio-910, ¶ 6,

citing Burnside at ¶ 8.

       {¶8}    “Pursuant to the Fifth Amendment of the United States Constitution, no person

shall be compelled to be a witness against himself.” North Ridgeville v. Hummel, 9th Dist.

Lorain No. 04CA008513, 2005-Ohio-595, ¶ 27. “When a suspect is questioned in a custodial

setting, the Fifth Amendment requires that he receive Miranda warnings to protect against
                                                 4


compelled self-incrimination.” State v. Wesson, Slip Opinion No. 2013-Ohio-4575, ¶ 34, citing

Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). “Custody” for purposes of entitlement to

Miranda rights exists only where there is a “‘restraint on freedom of movement’ of the degree

associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983), quoting

Oregon v. Mathiason, 429 U.S. 492, 495 (1977). “Whether a suspect is in custody depends on

the facts and circumstances of each case.” State v. Butler, 9th Dist. Summit No. 23786, 2008-

Ohio-781, ¶ 27, quoting State v. Dunn, 9th Dist. Lorain No. 04CA008549, 2005-Ohio-1270, ¶

24. “Relevant factors include the location of the questioning, its duration, statements made

during the interview, the presence or absence of physical restraints during the questioning, and

the release of the interviewee at the end of the questioning.” (Internal citations omitted.) Howes

v. Fields, ___ U.S. ___, 132 S.Ct. 1181, 1189 (2012). The test is “whether, under the totality of

the circumstances, a reasonable person would have believed that he was not free to leave.”

Butler at ¶ 27, quoting Dunn at ¶ 24.

       {¶9}    The trial court issued a detailed entry denying Lerch’s motion to suppress. Lerch

has not specifically challenged any of the trial court’s factual findings. Instead, she challenges

the legal conclusions the court reached based upon its findings. Having reviewed the record, we

accept the trial court’s factual findings, as they are based on competent, credible evidence.

       {¶10} Detective Gary Shadie, a member of the Akron Police Department’s Juvenile

Bureau, interviewed Lerch a total of three times, but never Mirandized her. The first interview

took place at Akron Children’s hospital shortly after Lerch learned that Patrick had died and the

following two interviews took place at the police station. The first police station interview

occurred before Detective Shadie interviewed Lerch’s boyfriend and the second occurred after he

interviewed her boyfriend. Detective Shadie conducted all three of Lerch’s interviews in his
                                                5


plain clothes and without his firearm. He also told Lerch before he began interviewing her at the

police station that she was free to go and that she did not have to answer any of his questions.

Lerch never told Detective Shadie that she did not want to answer his questions and never asked

him if she could leave.

          {¶11} Detective Shadie’s purpose for speaking with Lerch was to gain basic information

about Patrick, including any medical issues he might have had, and to figure out where Patrick

was and who he was with at the time of his injuries. Although the trial court did not indicate that

it relied upon the following facts in reaching its determination, it is noteworthy that Detective

Shadie’s first interview with Lerch lasted approximately 30 minutes and took place in the

presence of a clergy member from the hospital and an investigator from the Summit County

Medical Examiner’s Office. After the first interview concluded, Lerch walked outside to smoke

with her boyfriend, Randy Legg. Detective Shadie then approached the two and asked if they

would be willing to come to the police station for further questioning. Both Lurch and Randy

agreed.

          {¶12} Lerch accepted a ride to the police station from Officer Sean Taylor because she

did not have a car with her at the hospital. After Lerch arrived at the police station, she was

taken to one of the interview rooms in the Juvenile Bureau. Detective Shadie then momentarily

left the room. Because the interview room was equipped with video recording equipment, Lerch

was recorded in Detective Shadie’s absence as well as after he returned. The video recording

depicts Lerch speaking to someone off screen in Detective Shadie’s absence and asking if she

can leave the room due to her claustrophobia. The individual replies “no.” The person who told

Lerch “no” was never identified, but the parties stipulated that it had to be a member of law

enforcement. Even so, Lerch never asked Detective Shadie if she could leave. When Detective
                                                6


Shadie came back to the interview room, Lerch again indicated that she was claustrophobic, and

Detective Shadie agreed to leave the interview room door open.

       {¶13} The table in the interview room had handcuffs welded to it, but Lerch was never

placed in the handcuffs or otherwise restrained during Detective Shadie’s interviews. Lerch was

able to keep her cell phone with her at all times and even received a text message at some point

during Detective Shadie’s interview. She was given a restroom break when she asked, as well as

a cigarette break for which she left the building. Detective Shadie left Lerch at several points,

including when she took her breaks, because he went to interview Randy.

       {¶14} Officer Taylor accompanied Lerch when she took her cigarette break and

remained close to her at the police station. He did so “to provide support and as normal police

protocol.” Having spoken with Detective Shadie, Officer Taylor understood that Lerch was not

under arrest and was free to go at any time. Lerch never expressed to either Officer Taylor or

Detective Shadie that she wanted to leave or that she no longer wanted to answer questions.

Although the court did not say that it relied upon the following facts in its ruling, the record

reflects that Detective Shadie’s two interviews with Lerch at the station collectively lasted no

longer than one hour in length, including the time that Lerch took a restroom break.

       {¶15} Having reviewed the record, we agree with the trial court’s conclusion that Lerch

was not in custody on any of the three occasions when Detective Shadie interviewed her. Each

of the interviews was brief in duration, Lerch was never physically restrained, and Detective

Shadie specifically told Lerch that she was not under arrest and that she could leave at any time

if she did not wish to speak with him. See Howes, ___ U.S. ___, 132 S.Ct. at 1189. See also

State v. Tellington, 9th Dist. Summit No. 22187, 2005-Ohio-470, ¶ 12. The interview at the

hospital took place in the presence of other people, including a clergy member.           At the
                                                 7


conclusion of that interview, Lerch left the room of her own accord and later, when asked,

agreed to come to the police station for further questioning. The fact that Lerch was taken to the

police station for questioning by way of a marked cruiser is not, in and of itself, evidence that she

was in custody. See State v. McCrary, 2d Dist. Montgomery No. 18885, 2002 WL 125760 (Feb.

1, 2002). The evidence was such that she had ridden to the hospital in the ambulance and needed

transportation.

       {¶16} Lerch was never restrained at the police station. Although the interview room

was equipped with handcuffs, there is no evidence that Detective Shadie ever threatened to use

them on her. See Howes, ___ U.S. ___, 132 S.Ct. at 1189. Detective Shadie was dressed in

plain clothes the entire time he was with Lerch and was not wearing a firearm. Lerch kept her

personal items with her, including her cell phone, at all times and even received a text message at

one point.    See State v. Carter, 3d Dist. Allen No. 1-10-01, 2010-Ohio-5189, ¶ 19-26.

Additionally, she was given various breaks, including a restroom break and a cigarette break.

Although Officer Taylor accompanied Lerch on her cigarette break and remained close to her

while she was at the police station, there was evidence that he did so because she was very upset

and there was a concern over her smoking outside by herself at that time of night.

       {¶17} There is no evidence that Lerch ever asked Detective Shadie to stop questioning

her. While Lerch asked an unidentified member of law enforcement at the police station if she

could leave the interview room, the reason she gave for her request was that she was

claustrophobic.   Lerch addressed her claustrophobia again with Detective Shadie when he

entered the interview room, and he responded by agreeing to leave the interview room door

open. There is no evidence that Lerch was dissatisfied with his response or ever asked to leave

the police station itself. See Carter at ¶ 25. Under the totality of the circumstances, we must
                                                  8


conclude that a reasonable person in Lerch’s position would have felt free to leave. Butler,

2008-Ohio-781, at ¶ 27, quoting Dunn, 2005-Ohio-1270, at ¶ 24. Thus, no Miranda warning

was required.

          {¶18} Lerch also argues that her statements to the police were involuntary. “Even when

Miranda warnings are not required, the Due Process Clause of the Fourteenth Amendment

requires the exclusion of [inculpatory statements] that are involuntarily given by an accused.”

State v. Antoline, 9th Dist. Lorain No. 02CA008100, 2003-Ohio-1130, ¶ 21. Accord State v.

Chase, 55 Ohio St.2d 237, 246 (1978) (“[T]he question of whether the accused’s statements were

in fact voluntary is separate from the question of compliance with Miranda.”). An inculpatory

statement cannot be said to be voluntary if, under the circumstances surrounding its procurement,

the defendant’s “will was overborne.” Id. at 247, quoting Lynumn v. Illinois, 372 U.S. 528, 534

(1963).

          In determining whether [an inculpatory statement] was voluntary, the court
          considers the totality of the circumstances, including the defendant’s ‘age,
          mentality, and prior criminal experience * * *[;] the length, intensity, and
          frequency of interrogation; the existence of physical deprivation or mistreatment;
          and the existence of threat or inducement.

State v. Grunder, 9th Dist. Medina No. 04CA0071-M, 2005-Ohio-2145, ¶ 9, quoting State v.

Edwards, 49 Ohio St.2d 31 (1976), paragraph two of the syllabus, vacated on other grounds, 438

U.S. 911 (1978). “Absent evidence that a defendant’s will was overborne and that his capacity

for self-determination was critically impaired because of coercive police conduct, the decision of

a suspect to waive his right to Fifth Amendment privilege against self-incrimination is

considered voluntary.” State v. Wooden, 9th Dist. Summit No. 23992, 2008-Ohio-3629, ¶ 7.

          {¶19} As the trial court noted, Lerch did not have any prior contact with the criminal

justice system, and Detective Shadie was well-trained in interview techniques aimed at earning
                                                  9


the trust of the suspect. There also was evidence that Lerch was only about 20 years old and was

very upset when Detective Shadie spoke with her. Nevertheless, the interviews Detective Shadie

conducted with Lerch were short in duration and geared toward information-gathering. Lerch

was only interviewed at the police station for a total of an hour, but was given both a bathroom

break and a cigarette break. Detective Shadie also left the interview room door open at Lerch’s

request to make her more comfortable. Further, he specifically told Lerch that she was not under

arrest and did not have to answer any of his questions. There was no evidence that Lerch was

deprived of anything or mistreated in any way. Moreover, there was no evidence that she was

threatened or induced. Having reviewed the record, we cannot conclude that the trial court erred

by rejecting Lerch’s argument that her statements were obtained by coercion.

       {¶20} The trial court did not err by denying Lerch’s motion to suppress. Therefore,

Lerch’s third assignment of error is overruled.

                                Assignment of Error Number One

       LERCH’S CONVICTIONS MUST BE REVERSED BECAUSE THE KEY
       EVIDENCE THAT SUPPORTED THOSE CONVICTIONS WAS GATHERED
       BY POLICE WITHOUT A SEARCH WARRANT IN VIOLATION OF
       LERCH’S RIGHTS UNDER THE UNITED STATES AND OHIO
       CONSTITUTIONS.

                                Assignment of Error Number Two

       LERCH’S CONVICTIONS MUST BE REVERSED BECAUSE SHE WAS
       DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED TO
       HER BY THE SIXTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION.

       {¶21} In her first assignment of error, Lerch argues that her convictions must be

reversed because they are premised on evidence the police obtained during a warrantless search,

in violation of her Fourth Amendment rights. Lerch acknowledges that her trial counsel never

raised the foregoing argument in a motion to suppress, but asks this Court to review her
                                                  10


argument for plain error. In her second assignment of error, Lerch argues that her trial counsel

was ineffective because he did not seek to suppress the warrantless search.

       {¶22} If a defendant fails to seek the suppression of certain evidence, she forfeits any

objection to the admissibility of that evidence and limits herself to a claim of plain error on

appeal. State v. Taylor, 9th Dist. Summit No. 22882, 2006-Ohio-2041, ¶ 17. Accord State v.

Strehl, 9th Dist. Medina No. 10CA0063-M, 2012-Ohio-119, ¶ 16.

       To correct a plain error, all of the following elements must apply: “First, there
       must be an error, i.e., a deviation from the legal rule. * * * Second, the error must
       be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an
       ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected
       ‘substantial rights[ ]’ [to the extent that it] * * * affected the outcome of the trial.”

State v. Hardges, 9th Dist. Summit No. 24175, 2008-Ohio-5567, ¶ 9, quoting State v. Barnes, 94

Ohio St.3d 21, 27 (2002).       “Courts are to notice plain error ‘only to prevent a manifest

miscarriage of justice.’” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16, quoting

State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

       {¶23} Officers Sean Taylor and Joseph Horak were the first officers to arrive at the Saint

Leger Street house after the 911 call. Paramedics from the Akron Fire Department were already

on scene when they arrived. Officer Horak testified that Officer Taylor left the scene in the

ambulance, but that he remained behind. His reasons for doing so were “to make sure that * *

*there [were] no other victims,” to make sure no possible witnesses or suspects left, and to “hold

the scene” until a higher-ranking officer arrived. Officer Horak spoke to Randy Legg and his

mother, Tonia, outside and asked them for their social security numbers as well as Patrick’s

personal information. Because that information was inside the house, Officer Horak, Randy, and

Tonia all went inside.
                                                11


        {¶24} Once he was inside, Officer Horak asked Randy and Tonia if anyone else was in

the house. Randy and Tonia indicated that Randy’s brother, Ronnie, was sleeping upstairs.

Randy took Officer Horak upstairs to find his brother and, at some point while they were

upstairs, showed Officer Horak the bedroom and crib in which Patrick allegedly had slept.

Officer Horak testified that the house was very dark inside and that he had to use his flashlight to

see. Officer Horak found Ronnie lying on the floor in his room, fully clothed, and had Ronnie

come down to the living room. The room in which Officer Horak found Ronnie also had a crib

inside of it.

        {¶25} After Ronnie came downstairs and Officer Horak had another look at the upstairs

bedroom where Patrick had supposedly been sleeping, he was informed that there was another

individual in the house. Specifically, he was told that Tonia’s boyfriend, Roger Jarvis, was

sleeping in the back bedroom on the first floor. Officer Horak then went to the back bedroom

and asked Tonia’s boyfriend to come to the living room with everyone else.

        {¶26} At some unspecified point while Officer Horak was inside the house, other

officers were arriving. Officer Horak testified that he spoke with Sergeant Kelly after Randy,

Ronnie, Tonia, and Jarvis were seated in the living room. Officer Horak told Sergeant Kelly that

he was concerned because, since entering the house, he had discovered at least two additional

people were in it and he had not had the opportunity to check the house “to see if anybody [was]

hiding” or if “anybody else [was] injured.” Sergeant Kelly then told Officer Horak to “check the

whole house.”

        {¶27} Officer Horak rechecked the rooms upstairs, crawled into the attic to make sure

no one was hiding, and then headed down to the basement. He testified that the basement was

dark because there were not any lights and that he had to use his flashlight to see. Officer Horak
                                                12


stated that he was looking through the basement “to make sure that nobody [was] hiding and

there [were not] any other victims.” He stated that he was looking for people “big or small,

because of the nature of the call.” He specified: “It was a baby call, so I didn’t know – I had

never met these people. I [did not] know how many kids they have, I didn’t know [if] they had

kids. * * * I [did not] know who lived there or who visited.”

       {¶28} While looking through the basement, Officer Horak observed a large wooden

trunk and opened it. When he opened the trunk, he observed bottles with tubing and became

concerned that the items were related to methamphetamine production. Officer Horak finished

checking the basement for people and returned upstairs. He informed his sergeants what he had

found and awaited further instructions. At some point before he left the house, Sergeant Kelly

asked Officer Horak to have Tonia sign a consent to search form for a thorough search of the

house. Officer Horak explained that his preliminary search was limited to looking for people and

was not a detailed search. He specified that he did not open drawers or look through the

cupboards in the house when he walked through it. Officer Horak estimated that he had been

inside the house for 30 to 45 minutes when he found the bottles and tubing inside the trunk in the

basement.

       {¶29} Apart from the fact that he had been dispatched to the house regarding a baby

who was not breathing, Officer Horak testified that several observations he made while inside

the house caused him concern. He testified that the house was very dark and that “there [were]

probably only two working light bulbs in [it].” He described the condition of the house as

“deplorable” and stated that, when he looked inside the crib where Patrick had supposedly been

sleeping, he only observed a plate of chicken wings sitting on the mattress. Further, Officer

Horak found it strange that the members of the household did not immediately disclose how
                                               13


many people were in the house. He also found it strange that there were at least two people in

the house who had retreated to various bedrooms to sleep, despite having knowledge that the

paramedics and police were on their way.

       {¶30} We conclude that the trial court did not commit plain error by admitting the

evidence the police found at the Saint Leger Street house. The evidence was such that Officer

Horak conducted a protective sweep of the house and opened the large wooden trunk he found

pursuant to the emergency aid exception. See State v. Martin, 9th Dist. Summit No. 25452,

2011-Ohio-2379, ¶ 11-22 (search of padlocked room in basement upheld where officer was

conducting a protective sweep and also had an “interest in checking the enclosure for victims”).

See also State v. Baker, 9th Dist. Summit No. 23713, 2009-Ohio-2340, ¶ 6, quoting State v.

Gooden, 9th Dist. Summit No. 23764, 2008-Ohio-178, ¶ 6 (emergency aid exception defined).

“The need to protect or preserve life or avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency.” Brigham City, Utah v. Stuart, 547 U.S. 398,

403 (2006), quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978). Further, “[o]fficers do not

need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid

exception.” (Internal Quotations omitted.) State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008,

¶ 19. So long as the circumstances, when viewed objectively, can be said to justify the officer’s

actions, the search is reasonable under the Fourth Amendment. Id.

       {¶31} Officer Horak responded to an emergency at the house involving a 17 month old

baby. Although the paramedics removed a victim from the house prior to his arrival, Officer

Horak testified that he did not know if there were additional victims in the house. There were

two cribs upstairs and, before his search, Officer Horak became aware that Randy and Tonia had

failed to tell him how many individuals were present in the house. He also became aware that
                                                 14


Ronnie and Jarvis had gone to their respective bedrooms to sleep after having learned that

Patrick was not breathing and the paramedics were on their way. Moreover, Officer Horak

observed deplorable conditions in the home, including a plate of food in the baby’s crib, garbage

strewn throughout the home, and exceedingly poor lighting conditions. The trunk that Officer

Horak found in the basement was large and could have concealed a child inside it, unlike the

drawers and cabinets that Officer Horak left closed while conducting his search. Given the

particular facts and circumstances that exist in this case, we cannot conclude that Lerch has

demonstrated plain error with regard to Officer Horak’s search of the home and his opening of

the trunk he found in the basement. Moreover, because the bottles and tubing in the trunk gave

Officer Horak probable cause to suspect illegal drug activity was occurring in the house, Lerch

has not shown that a valid basis existed to challenge the subsequent, in depth search of the house

that took place. Lerch’s first assignment of error is overruled.

       {¶32} Lerch also argues that her trial counsel was ineffective for failing to file a motion

to suppress the evidence obtained from the Saint Leger Street house. A successful ineffective

assistance claim requires proof that: (1) counsel’s performance was deficient to the extent that

“counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment” and (2) “the deficient performance prejudiced the defense.”                Strickland v.

Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, Lerch must prove that “there

exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different.” State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the

syllabus.

       {¶33} Lerch cannot demonstrate prejudice as a result of her counsel’s failure to file a

motion to suppress the evidence found at the Saint Leger Street house. As discussed below, the
                                                15


evidence at trial was that Patrick died of methamphetamine poisoning after having ingested a

large amount of the drug. The cause of Patrick’s death, therefore, was evidence that Patrick was

exposed to methamphetamine. That evidence stands separate and apart from the evidence that

the police discovered at the house. Lerch has not shown that, had her counsel sought to suppress

the evidence taken from the house, the result of her trial would have been different.            Id.

Consequently, her ineffective assistance of counsel argument lacks merit and her second

assignment of error is overruled.

                                Assignment of Error Number Four

       LERCH’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE, AND MUST BE REVERSED.

       {¶34} In her fourth assignment of error, Lerch argues that her convictions are against the

manifest weight of the evidence. We disagree.

       {¶35} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of 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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further, when reversing a

conviction on the basis that the conviction was against the manifest weight of the evidence, the

appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the

conflicting testimony. Id. Therefore, this Court’s “discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily against
                                                16


the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at

340.

       {¶36} Lerch was convicted of three different types of child endangering with each child

endangering conviction serving as the predicate offense for either a felony murder or involuntary

manslaughter conviction.     For sake of clarity, we set forth the elements of each child

endangering count in conjunction with that count’s attendant murder or manslaughter count.

       {¶37} R.C. 2919.22(B)(1) provides that no person shall abuse any child under 18 years

of age. If serious physical harm to the child results from the abuse, then the violation of R.C.

2919.22(B)(1) is a felony of the second degree. R.C. 2919.22(E)(2)(d). R.C. 2903.02(B), Ohio’s

felony murder statute, prohibits any person from causing the death of another “as a proximate

result of the offender’s committing or attempting to commit an offense of violence that is a

felony of the first or second degree.” Child endangering, pursuant to R.C. 2919.22(B)(1), is an

offense of violence. R.C. 2901.01(A)(9)(a). Lerch was charged with child endangering, in

violation of R.C. 2919.22(B)(1), and felony murder as a result of conduct she engaged in from

February 12, 2012, through February 26, 2012.

       {¶38} R.C. 2919.22(A) provides that “[n]o person, who is the parent * * * of a child

under eighteen years of age * * *, shall create a substantial risk to the health or safety of the

child, by violating a duty of care, protection, or support.” If serious physical harm to the child

results, then a violation of R.C. 2919.22(A) is a felony of the third degree.                R.C.

2919.22(E)(2)(c). Further, if the commission of the felony child endangering causes the death of

the child involved, the offender is guilty of involuntary manslaughter. R.C. 2903.04(A), (C).

Lerch was charged with child endangering, in violation of R.C. 2919.22(A), and involuntary
                                                17


manslaughter as a result of conduct she engaged in from September 10, 2010, through February

26, 2012.

       {¶39} R.C. 2919.22(B)(6) forbids any person from allowing a child under 18 years of

age “to be on the same parcel of real property and within one hundred feet of * * * any act in

violation of section 2925.04 or 2925.041 of the Revised Code when the person knows that the act

is occurring.”   R.C. 2925.04 and 2925.041 govern the illegal manufacturing of controlled

substances and the illegal assembly of chemicals used to manufacture those substances. If

serious physical harm to the child results from a violation of R.C. 2919.22(B)(6), then the

violation is a felony of the second degree. R.C. 2919.22(E)(3). If the commission of the felony

child endangering causes the death of the child involved, the offender is guilty of involuntary

manslaughter. R.C. 2903.04(A), (C). Lerch was charged with child endangering, in violation of

R.C. 2919.22(B)(6), and involuntary manslaughter as a result of conduct she engaged in from

February 12, 2012, through February 26, 2012.

       {¶40} Detectives Michael Fox and David Hayes responded to the Saint Leger Street

house as part of the crime scene unit and documented the scene. Detective Fox documented old

food on plates throughout the house, dirty dishes piled in the kitchen, and numerous items and

trash strewn throughout the house. He also testified that it was apparent that drug activity was

occurring at the house. Detective Fox found used coffee filters that later tested positive for

methamphetamine taped next to the furnace in the basement to dry and also found bottles that

had been used to cook methamphetamine strewn in the backyard. Detective Hayes testified that

there was hardly any lighting in the house and the basement was pitch black. He further testified

that the windows to the house were covered and there “was just a mix of kids’ toys and garbage

everywhere.”
                                                18


       {¶41} Officer David Crockett, a member of the Clandestine Laboratory Enforcement

Team, responded to the Saint Leger Street house as well.           Officer Crockett testified that

manufacturing methamphetamine is highly dangerous and that the components used to make it

are both poisonous and flammable. He testified that most of the homes where methamphetamine

is being manufactured have covered up windows to both prevent people from seeing in and to

reduce the smell associated with the manufacturing. Additionally, Officer Crockett testified that

people who use methamphetamine display very obvious symptoms of use, including that they

“appear jittery or antsy [and] can’t stop moving around.”

       {¶42} Officer Crockett stated that he found numerous components of methamphetamine

in the Saint Leger Street house, including items in the kitchen, upstairs bedroom closet, upstairs

bathroom, basement, backyard, and garage. In the basement alone, Officer Crockett found: (1)

the trunk full of bottles and tubing; (2) twisted up coffee filters, which he explained are used in

the manufacturing process; (3) wet coffee filters that had been hung to dry; (4) lighters and light

bulbs, which he explained can be used to smoke methamphetamine; (5) a razor blade with white

residue on it; and (6) a straw with residue on it. The twisted up coffee filters, light bulbs, razor

blade, and straw were all found sitting on the coffee room table in the basement.

       {¶43} During her first and second interviews with Detective Shadie, Lerch told

Detective Shadie that Patrick had been with her all day on the day he died and had simply

stopped breathing after she put him to bed. Lerch elaborated that she had cooked for Patrick all

day, bathed him, repeatedly changed his diaper, and took him to bed around 10:30 p.m. Lerch

further elaborated that Patrick had difficulty falling asleep, so she held him, kissed him, allowed

him to hold onto her finger, and rocked him on her chest until he fell asleep. Lerch stated that

she then placed Patrick in the crib, left the room, and came back to check on him fifteen to
                                                19


twenty minutes later. Lerch told Detective Shadie that she placed a hand on Patrick’s chest to

see if he was breathing as well as a finger under his nose to test for breath. Lerch indicated that

Patrick was still warm, but not breathing. She told Detective Shadie that she then carried Patrick

down to the living room and performed CPR until the paramedics arrived. Lerch denied that

anyone in the house used illegal drugs. She further denied that Patrick had ever been in the

basement. When Detective Shadie asked Lerch if she knew what was in the basement, Lerch

replied “spiders.”

       {¶44} Dr. Nicholas Reinhart testified that he treated Patrick at Akron Children’s

Hospital when he arrived by ambulance. Dr. Reinhart indicated that resuscitative efforts ended

quickly because it became clear that Patrick would not respond to them. Dr. Reinhart specified

that Patrick already showed signs of rigor mortis and livor mortis when he was brought to the

hospital.

       {¶45} Dr. Lisa Kohler, the chief medical examiner for Summit County, testified

regarding Patrick’s autopsy. Dr. Kohler testified that Patrick had numerous bruises, contusions,

and abrasions to his body, including his face, the back of his head, his spine, and his arms and

legs. Dr. Kohler also observed burn injures to Patrick’s ear, scalp, and eyebrow areas, and

needle puncture injuries to his feet.     Dr. Kohler testified that Patrick’s injuries were not

consistent with therapeutic treatment and that they appeared to have been inflicted recently,

although how recently she could not say. Dr. Kohler gave Patrick a failure to thrive designation

as well, as his growth percentiles had dropped below the acceptable amount. Dr. Kohler testified

that Patrick ultimately died as a result of methamphetamine toxicity after having ingested a large

amount of the drug. She further opined that, based on the results of the examination, Patrick had

been dead several hours before arriving at Akron Children’s Hospital.
                                                20


       {¶46} Kimberly Clark, whose husband was Lerch’s relative, testified that she and her

husband agreed to take Lerch and Patrick into their home several months before Patrick’s death

because they learned Lerch and Patrick had been living at a homeless shelter. Clark testified

that, during Lerch’s stay at her home, she frequently had to remind Lerch to feed Patrick and

change his diaper. Moreover, although Clark told Lerch to keep Patrick away from one of the

family dogs, she testified that Lerch did not do so and the dog later bit Patrick. Clark stated that

Patrick saw the doctor several times while Lerch lived at her home, but that Clark always made

the appointments on Lerch’s behalf and drove her and Patrick to the doctor’s office. Clark

indicated that the situation worsened when Lerch met Randy Legg in January 2012.

       {¶47} Towards the end of January 2012, Lerch took Patrick to Randy’s house for the

weekend. Clark testified that when Lerch brought Patrick back to her home his voice was hoarse

and he had a black eye. Lerch told Clark that Patrick’s voice was hoarse because he had been

playing a lot and his eye was bruised because he had fallen on a toy. Clark recommended that

Lerch take Patrick to the doctor, however, when he also started having white diarrhea. Clark and

Lerch took Patrick to the doctor on February 1, 2012. The hospital records from the February 1st

visit indicate that Patrick was suffering from vomiting and white diarrhea, but that his

development was appropriate for a boy his age and that he was otherwise healthy. The records

from the visit also indicate, however, that Lerch was to bring Patrick for a follow-up visit in a

week. There was no evidence that Lerch ever brought Patrick for a follow-up visit.

       {¶48} On February 11, 2012, Lerch told Clark that she intended to have Patrick spend

the night with her at Randy’s house again. Clark indicated that Lerch would not be welcome

back at her home if she chose to take Patrick to Randy’s house again. Lerch nonetheless decided

to take Patrick there. As a result, Clark had Lerch remove her personal items from her home and
                                                 21


ended their shared living arrangement. Clark also contacted Children’s Services to report what

she believed was an unsafe living environment for Patrick.

       {¶49} Heather Murphy, a social worker for Summit County Children’s Services,

conducted a home visit at the Saint Leger Street house on February 16, 2012, after Clark reported

a possible safety issue there. Murphy testified that she walked through the house while she was

there, but not the basement, as Lerch told her that Patrick never went in the basement. Murphy

indicated that the kitchen was clean when she visited and that she did not observe anything

during her visit that gave her reason to think Patrick should be removed from the home. Murphy

confirmed, however, that she had scheduled her home visit with Lerch beforehand such that

Lerch was aware she was coming. She also confirmed that, when she visited the house, it did not

look the way that it looked in the pictures that the police took when they searched it.

       {¶50} Allen Kostra testified that he was present at the Saint Leger Street house on the

weekend Patrick died. Kostra admitted that he was an addict and had come to the house several

times during February 2012 to smoke methamphetamine with Ronnie Legg. According to

Kostra, Lerch was aware that he and Ronnie smoked methamphetamine in the basement and

smoked marijuana all over the house, as she had observed them smoking both. Kostra also

confirmed that Patrick was at the house when he and Ronnie were using the drugs.

       {¶51} Kostra testified that he and Ronnie smoked methamphetamine the entire weekend

on the weekend that Patrick died and that, much of the time, Patrick was in the basement with

them. According to Kostra, Lerch left Patrick in Ronnie’s care the day before he died so that she

could go to the mall. On the day Patrick died, Patrick was downstairs almost the entire day.

Kostra stated that Lerch came down once or twice to check on Patrick, but never tried to remove

him from the basement. While Patrick was in the basement, Kostra observed Ronnie hit him and
                                               22


throw him. He also observed Ronnie shove a coffee filter in Patrick’s mouth at one point

because he was crying. Kostra testified that Patrick was acting strangely that night and seemed

to be having trouble breathing, so he told Lerch. Lerch, however, did nothing.

       {¶52} Even later that evening, Kostra testified that Lerch came downstairs to borrow his

food stamp card so that she could go to Circle K. Kostra indicated that Patrick was still in the

basement at that point because Ronnie had put him on a mattress in the corner. Detective Shadie

testified that, during the course of the investigation, he obtained the surveillance footage from

Circle K. Lerch appears on the surveillance footage at 10:16 p.m. Detective Shadie confirmed

that the 911 call regarding Patrick came in at 10:47 p.m., and the hospital records indicate that

Patrick arrived at Akron Children’s Hospital for treatment at 11:17 p.m. As previously set forth,

the evidence was that Patrick had been dead for several hours before he was brought to the

hospital.

       {¶53} In her third interview with Detective Shadie, Lerch admitted that Patrick had been

in the basement all day. Lerch claimed that she lied about Patrick’s whereabouts because, before

the paramedics arrived, Ronnie told her that she would “go down with him” if she told the truth.

Lerch also claimed that she tried to see Patrick several times on the day that he died, but that

Ronnie would prevent her from coming down into the basement. According to Lerch, she did

not realize that Ronnie and Kostra were smoking methamphetamine in the basement. Lerch

stated that she did not know what was happening in the basement because it was her preference

not to be down there. Lerch also stated that, while she knew methamphetamine had been made

at the Saint Leger Street house, she thought the last time it had been cooked was about a month

before Patrick died.
                                               23


       {¶54} Having reviewed the record, we must conclude that Lerch’s convictions are not

against the manifest weight of the evidence. There was evidence that Patrick incurred injuries

several weeks before his death after Lerch took him to the Saint Leger Street house, but that she

continued to take him there. Various components of methamphetamine production were strewn

throughout the house, which was both filthy and dark, and there was testimony that Kostra and

Ronnie were actively smoking methamphetamine on the weekend Patrick died.              Detective

Crockett testified that methamphetamine users display obvious symptoms, and Kostra testified

that Lerch was aware he and Ronnie were high while Patrick was with them. Lerch, however,

initially denied having any knowledge that drugs were being used in the house, and instead, gave

Detective Shadie an elaborate version of the events prior to Patrick’s death. That version of

events included Lerch carefully taking care of Patrick, kissing him and letting him hold onto her

finger, and rocking him to sleep before she placed him safely in his crib for the night. Even

when Lerch later admitted that she had lied, she claimed that she had done so because Ronnie

prevented her from reaching her son.

       {¶55} Patrick suffered numerous injuries before his death, including bruises, abrasions,

burns, and needle punctures. He finally died of a methamphetamine overdose in the pitch black

basement that Lerch herself did not want to spend time in. The evidence showed that he had

been dead for several hours before Lerch decided to check on him. Given all the evidence before

us, we conclude that this is not the exceptional case where the jury clearly lost its way by

convicting Lerch of three counts of child endangering, two counts of involuntary manslaughter,

and one count of felony murder. Lerch’s fourth assignment of error is overruled.
                                                24


                                                III

       {¶56} Lerch’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT



MOORE, P. J.
CARR, J.
CONCUR.
                                       25


APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
