 [Cite as State v. O'Cull, 2018-Ohio-4459.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              HIGHLAND COUNTY

 STATE OF OHIO,                  :
                                 :   Case No. 17CA6
      Plaintiff-Appellee,        :
                                 :
      vs.                        :   DECISION AND JUDGMENT
                                 :   ENTRY
 TRACEY O'CULL,                  :
                                 :
      Defendant-Appellant.       :   Released: 10/29/18
_____________________________________________________________
                           APPEARANCES:

 Timothy Young, Ohio State Public Defender, and Nikki Trautman
 Baszynski, Assistant Ohio State Public Defender, Columbus, Ohio, for
 Appellant.

 Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
 Appellee.
 _____________________________________________________________

 McFarland, J.

         {¶1} This is an appeal from a Highland County Court of Common

 Pleas judgment entry convicting Appellant, Tracey O'Cull, of one count of

 corrupting another with drugs (fentanyl), a second-degree felony in violation

 of R.C. 2925.02(A)(3), and sentencing her to a maximum prison term of

 eight years. Because we find no merit to Appellant's sole assignment of

 error, it is overruled and the judgment and sentence imposed by the trial

 court is affirmed.
Highland App. No. 17CA6                                                       2

                                   FACTS

      {¶2} Appellant, Tracey O'Cull, was indicted on one count of first-

degree felony involuntary manslaughter and one count of second-degree

felony corrupting another with drugs in connection with the death of

Benjamin Hahn, the victim herein, who was found dead on December 19,

2015. The State alleged that the victim (who had a history of drug use and

who had recently been released from a rehabilitation program) contacted

several individuals, including Appellant, on December 18, 2015 seeking

heroin. The State further alleged that later that night, Appellant drove to the

victim's residence and sold drugs to him. Appellant's mother found him

unresponsive the next morning, with a syringe, empty capsules, a metal

spoon and a cell phone. Text messages between the victim and Appellant

indicated Appellant texted the victim that she was in his driveway shortly

before his death occurred. Later toxicology testing revealed that Appellant

had fentanyl in his system when he died, and a pathology report indicated

the victim died from fentanyl intoxication.

      {¶3} The matter proceeded to a jury trial which resulted in a hung

jury on the manslaughter count and a conviction on the corrupting another

with drugs count. The trial court ordered a pre-sentence investigation and

ultimately sentenced Appellant to an eight-year maximum term of
Highland App. No. 17CA6                                                        3

imprisonment. It is from this conviction and sentence that Appellant now

brings her timely appeal, setting forth a single assignment of error for our

review.

                        ASSIGNMENT OF ERROR

"I.   THE RECORD DOES NOT CLEARLY AND CONVINCINGLY
      SUPPORT TRACEY O'CULL'S SENTENCE."

      {¶4} In her sole assignment of error, Appellant contends that the

record does not support her maximum, eight-year sentence. More

specifically, Appellant contends that the trial court's sentence was based

upon findings not supported by the record, as well as findings that

misinterpret statutory factors, and that her sentence must be vacated as a

result. The State contends that the record clearly and convincingly supports

Appellant's sentence.

      {¶5} When reviewing felony sentences, appellate courts must apply

the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23. Under R.C.

2953.08(G)(2), “[t]he appellate court's standard for review is not whether the

sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2)

provides that an appellate court may increase, reduce, modify, or vacate and

remand a challenged felony sentence if the court clearly and convincingly

finds either:
Highland App. No. 17CA6                                                          4

      "(a) That the record does not support the sentencing court's
      findings under division (B) or (D) of section 2929.13, division
      (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
      2929.20 of the Revised Code, whichever, if any, is relevant;
      (b) That the sentence is otherwise contrary to law."

      {¶6} Although R.C. 2953.08(G)(2)(a) does not mention R.C. 2929.11

and 2929.12, the Supreme Court of Ohio has determined that the same

standard of review applies to those statutes. Marcum at ¶ 23 (although

“some sentences do not require the findings that R.C. 2953.08(G)(2)(a)

specifically addresses[,] * * * it is fully consistent for appellate courts to

review those sentences that are imposed solely after consideration of the

factors in R.C. 2929.11 and 2929.12 under a standard that is equally

deferential to the sentencing court”); State v. Butcher, 4th Dist. Athens No.

15CA33, 2017-Ohio-1544, ¶ 84. Consequently, “an appellate court may

vacate or modify any sentence that is not clearly and convincingly contrary

to law only if the appellate court finds by clear and convincing evidence that

the record does not support the sentence.” Marcum at ¶ 23; Butcher at ¶ 84.

      {¶7} “Once the trial court considers R.C. 2929.11 and 2929.12, the

burden is on the defendant to demonstrate by clear and convincing evidence

that the record does not support his sentence.” State v. Akins-Daniels, 8th

Dist. Cuyahoga No. 103817, 2016-Ohio-7048, ¶ 9; State v. O'Neill, 3rd Dist.

Allen No. 1-09-27, 2009-Ohio-6156, fn. 1. “Clear and convincing evidence
Highland App. No. 17CA6                                                           5

is ‘that measure or degree of proof which is more than a mere

“preponderance of the evidence,” but not to the extent of such certainty as is

required “beyond a reasonable doubt” in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the

facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123 Ohio

St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18; quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

      {¶8} We initially conclude that Appellant's sentence is not clearly and

convincingly contrary to law. The trial court imposed an eight-year term of

imprisonment. While an eight-year term does constitute a maximum

sentence for a second-degree felony offense, it is within the statutory range

for the offense. Further, Appellant does not argue that her sentence is

contrary to law, but rather that the record does not clearly and convincingly

support her sentence.

      {¶9} In particular, Appellant contends significant findings made by

the trial court that justified the maximum sentence are not supported by the

record. Appellant argues the trial court made two findings indicating her

conduct was more serious than conduct normally constituting the offense,

which were not supported by the record: 1) that the victim's death was
Highland App. No. 17CA6                                                         6

exacerbated by his addiction; and 2) that the relationship between the victim

and Appellant facilitated the offense. The record indicates the trial court

found as follows regarding these factors:

      "Now, in looking at this and going through the analysis that I
      would do in any case, I've looked at the factors that are set forth
      in 2929.11 thru .14, I'll go through and say this: It is true that
      the victim facilitated the offense by voluntarily using the drugs.
      In terms of committing the offense, the offender expected to
      cause physical harm, I think, yes, I think addiction is physical
      harm, obviously it's killing people.

      And so any time a seller of heroin or Fentanyl gives drugs to
      someone, I think there can be an expectation that there could be
      an overdose.

      I'll find under 2929.12 there is an aggravating factor, in that the
      physical injury suffered by the victim due to the offender's
      conduct was exacerbated because of his physical and mental
      condition, specifically I find that addiction is a mental
      condition; and actually with heroin it is a physical addiction.
      So, therefore, uh, you know, the injury again when people sell
      dope to each other, particularly opiates, that's an awareness, it's
      just so overwhelmingly prevalent, as counsel had indicated, that
      the people in this world, they know that, and they understand
      that.

      And obviously the victim's relationship with the offender
      facilitated the offense, because he apparently knew he could get
      drugs from her, and called her by her first name. And from text
      messages it's clear that they had some sort of pre-existing
      relationship, friends, dealer/buyer, I don't know, but it's clear
      that there was a relationship there."

      {¶10} With respect to the trial court's finding that Appellant's

relationship with the victim facilitated the offense, Appellant contends that
Highland App. No. 17CA6                                                         7

the trial court's interpretation of the word facilitation "would essentially

render the factor meaningless and arbitrary." She argues that the legislature

sought to impose harsher punishment on individuals "who exploited their

victim's trust or dependence[,] not individuals who merely knew their

victims." A similar argument was made in State v. Sari, 11th Dist. Lake No.

2016–L–109, 2017-Ohio-2933. Sari was indicted for one count of illegally

conveying drugs into a detention facility and two counts of corrupting

another with drugs. Id. at ¶ 3. Sari entered into a plea agreement on all

counts and stipulated that the evidence would have shown that she and two

other individuals (one of which was Martin, who was also confined in jail at

the same time as Sari) entered into a plan to bring drugs into the detention

facility when Sari was returning after being released on medical furlough. Id.

at ¶ 6. The plan succeeded by Sari concealing heroin in her vagina and

distributing it to several others in the detention center once she returned,

including Martin and another individual, Ellis. Id. The next day, Martin was

found unresponsive in her cell and had to be revived with Narcan, and Ellis

was found dead in her cell. Id.

      {¶11} On appeal, Sari argued that the trial court incorrectly analyzed

the factor involving whether her relationship with the victim facilitated the

offense. Id. at ¶ 23. Sari argued that her relationship with the victims did not
Highland App. No. 17CA6                                                            8

facilitate the offense, and “that if we were to find this factor ‘is triggered

under these circumstances, then virtually every distribution of drugs to a

friend would invoke this factor.’ ” Id. The State argued, in part, “that the

victims would never have received the drugs from Ms. Sari had they not had

a relationship with her[.]” Id. The Eleventh District noted in Sari as follows

with regard to the definition of the word facilitate:

      "To facilitate means to make easier. The American Heritage
      Dictionary (2 Ed.1985) 484. In order to have the relationship
      facilitate the offense, the defendant must have used his
      relationship with the victim to help commit the offense. In other
      words, the defendant must have used the relationship to allow
      him to commit the offense in a manner which he could not have
      accomplished without the relationship. State v. Manley, 3d Dist.
      Allen No. 1–11–04, 2011–Ohio–5082, ¶ 20, citing State v.
      McDade, 6th Dist. Ottawa Nos. OT–06–001, OT–06–004,
      2007–Ohio–749, ¶ 54." Id.

The Sari court ultimately found, based upon the evidence before it, that the

factor could be argued either way, noting that Sari's relationship with

Martin, in particular, made it easier for her obtain the heroin she later

distributed into the jail. Id. at ¶ 24. The court did not further analyze Sari's

relationship with the other victim, noting that even if the determination had

been made in error, it was harmless considering the other seriousness and

recidivism factors present, which included the fact that Sari's conduct was

part of organized criminal activity and resulted in serious physical harm. Id.

at ¶ 24-26.
Highland App. No. 17CA6                                                            9

      {¶12} Much like the Sari court, we conclude this particular factor can

be argued either way. Here, however, Appellant's argument on appeal is

belied by her counsel's arguments made at the sentencing hearing itself.

Appellant's counsel argued at the sentencing hearing that the victim

facilitated the offense, and that Appellant "had no special relationship of

trust with Ben, other than the relationship that the drug culture itself creates

between users who come together for the purpose of finding drugs, sharing

drugs, using drugs, and getting high." Appellant's counsel further referenced

the "bizarre drug culture happening right now." It appears, at the present

time, that a trust relationship between drug dealers and drug buyers does

exist, and we conclude that the relationship does facilitate drug offenses.

With the technology currently available which permits law enforcement to

recover and review text communications, trust is implicit with every text

message that is sent between a buyer and seller. Putting something into a

written text message or any other traceable writing indicates a certain level

of trust that the buyer or seller is not cooperating with law enforcement, is

not acting as part of a controlled buy, and would not use that written

communication against the sender. In fact, the text messages between the

victim and Appellant leading up to the drug sale were introduced as
Highland App. No. 17CA6                                                       10

evidence in this case. As such, we find the trial court appropriately

considered and analyzed this sentencing factor.

      {¶13} Appellant next argues that the trial court improperly found that

the victim's death was exacerbated by his addiction. The trial court actually

found that "[t]he physical or mental injury suffered by the victim of the

offense due to the conduct of the offender was exacerbated because of the

physical or mental condition or age of the victim." Appellant argues that

while the victim's addiction can be characterized as a mental or physical

condition, it did not "exacerbate" the harm caused, but rather the victim's

death was caused by the fentanyl present in the drugs he used. She further

argues that the victim's "overdose was not made worse because of his

addiction; instead, Ben's addiction was the reason he procured the drugs in

the first place." Appellant also argues that the victim's addiction mitigated

in her favor, which the trial court so found by noting the victim had "induced

or facilitated" the offense.

      {¶14} A review of the record indicates the trial court properly

considered the fact that the victim facilitated the offense by voluntarily using

drugs. Nevertheless, the trial court found that the injury, in this case death,

of the victim, due to the conduct of Appellant, was exacerbated because of

the mental or physical condition (drug addiction) of the victim. The record
Highland App. No. 17CA6                                                      11

here shows that Appellant had a history of drug addiction but had recently

been released from a rehabilitation program. Further, the text messages

between Appellant and the victim indicate the victim was seeking heroin.

However, Appellant sold the victim what ended up being a lethal does of

fentanyl.

      {¶15} The State's theory at trial, based on the text messages between

Appellant and the victim, text messages between the victim and another

friend, and the medical evidence, was that Appellant took an initial dose of

the drug he was provided, and that when he did not get an immediate result,

as he would with heroin, he took another dose, which ultimately resulted in

his death. It is unknown if the victim realized he was taking fentanyl, which

he did not ask to purchase, rather than heroin, a drug which he had a history

of using. In this regard, we cannot conclude that the trial court improperly

found that the victim's death, due to the conduct of Appellant, was

exacerbated by the victim's physical and mental condition of drug addiction.

Further, we conclude that even if the trial court's determination does not

properly interpret the word "exacerbate," as argued by Appellant, as in Sari,

we conclude such error is harmless considering the other seriousness and

recidivism factors supported by the record.
Highland App. No. 17CA6                                                       12

      {¶16} Next, Appellant contends the trial court's rejection of

mitigating factors was not supported by the record. In support of this

argument Appellant contends the trial court refused to find two mitigating

factors that were supported by the record: 1) that Appellant acted under

strong provocation, and 2) that Appellant did not expect to cause physical

harm to the victim. Appellant contends her own drug addiction provoked

her to sell drugs to the victim, and argues that her drug addiction was

illustrated in the pre-sentence investigation report. She argues the trial court

refused to acknowledge her addiction, but instead focused on the fact that

her two most recent offenses were trafficking, not possession, charges. The

State contends Appellant made a choice to drive to the victim's home to sell

him drugs, and that there is nothing in the record to suggest the victim

threatened her or forced her to sell him drugs.

      {¶17} The only mitigating factor found by the trial court was that

"[t]he victim induced or facilitated the offense." The trial court did not find,

as argued by Appellant, that Appellant acted under strong provocation in

committing the offense. As noted by Appellant, the trial court noted at the

sentencing hearing that Appellant's most recent offenses involved drug

trafficking, as opposed to possession, which would indicate that addiction

was a motivation. Further, the pre-sentence investigation report does
Highland App. No. 17CA6                                                       13

contain information provided by Appellant indicating she was using drugs in

2015, the year the present offense occurred. The trial court specifically

noted it had reviewed the pre-sentence investigation report in making its

determinations. Thus, it appears the trial court considered the information

suggesting Appellant suffered from drug addiction, but it nevertheless did

not assign that information great weight.

      {¶18} In State v. Yost, 4th Dist. Meigs No. 17CA10, 2018-Ohio-

2719, ¶ 3, an argument was made that the trial court improperly balanced

and weighed the seriousness and recidivism factors in imposing a maximum

sentence. This Court reasoned, in response to that argument, as follows:

      “Although other factors cited by Yost's counsel at the
      sentencing hearing supported a finding that the offense was less
      serious or that she would be less likely to commit a future
      crime, see R.C. 2929.12(C) and (E), the trial court did not need
      to—as Yost appears to implicitly claim—assign equal weight to
      each applicable factor. Instead, precedent refutes any contention
      that each statutory or other relevant factor is entitled to equal or
      a certain weight in the balancing process. See State v. Graham,
      4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, ¶ 25,
      rejecting the argument that because each of the statutory
      sentencing factors are mandatory, each is entitled to equal
      weight on balance, citing State v. Bailey, 4th Dist. Highland No.
      11CA7, 2011-Ohio-6526, ¶ 34, quoting State v. Arnett, 88 Ohio
      St.3d 208, 215, 724 N.E.2d 793 (2000) (“in considering the
      factors set forth in R.C. 2929.12, the trial court has ‘the
      discretion to determine the weight to assign a particular
      statutory factor’ ”).” Yost at ¶ 19.
Highland App. No. 17CA6                                                         14

Here, the trial court considered all of the evidence before it, including the

information contained in the pre-sentence investigation and Appellant's more

recent trafficking offenses, and ultimately determined that Appellant's

alleged drug addiction did not mitigate against her conduct in selling the

victim a legal dose of fentanyl. We cannot conclude that the trial court

failed to properly consider or analyze this seriousness or recidivism factor,

or that this determination was contrary to law based upon the record before

us.

      {¶19} Finally, we find Appellant's argument that the trial court failed

to determine that Appellant did not expect to cause physical harm to the

victim to be a mitigating factor to be disingenuous. The trial court made

several statements at the sentencing hearing regarding Appellant's role in the

death of the victim. For instance, the following comments were made:

      "In terms of committing the offense, the offender expected to
      cause physical harm, I think, yes, I think addiction is physical
      harm, obviously it's killing people. And so any time a seller of
      heroin or Fentanyl gives drugs to someone, I think there can be
      an expectation that there could be an overdose.
      ***
      So, therefore, uh, you know, the injury again when people sell
      dope to each other, particularly opiates, that's an awareness, it's
      just so overwhelmingly prevalent, as counsel has indicated, that
      the people in this world, they know that, and they understand
      that.
      ***
      And the Court will further find that in committing the offense,
      as far as the expectation to cause physical harm, again, as I said,
Highland App. No. 17CA6                                                           15

       getting high is part of the physical harm because it speeds the
       addiction, which is clearly physical harm."

       {¶20} Appellant argues that "[t]he problem with the trial court's

interpretation of this statutory factor is that it reads into it a 'should have

known' component that is unsupported by the plain language." Appellant

contends that "[t]he statute does not exclude from consideration those

individuals who should have known their actions could cause harm. Instead,

the statute directs courts to consider that the offender may not have expected

the harm to result and because of that, her conduct may be less serious than

conduct normally constituting the offense."

       {¶21} Regardless of how Appellant describes it, Appellant knew

harm could, or was likely to result, from her conduct. Further, with regard

to an assertion that her conduct may be less serious than conduct normally

constituting the offense, Appellant corrupted another with drugs to the extent

it resulted in his death. While her conduct may not have caused an initial

addiction, it fed an addiction and resulted in the near immediate death of the

victim. Therefore, we find no error in the trial court's failure to determine,

as a mitigating factor, that Appellant did not cause, or expect to cause, harm

to any person or property. See State v. Sari, supra, at ¶ 28 ("* * * because

Ms. Sari did in fact cause physical harm to persons and because the

contention that she did not expect to cause physical harm is belied by the act
Highland App. No. 17CA6                                                       16

of providing someone with heroin, a drug that has recently caused the death

of countless individuals in this area. These arguments are not well taken.").

       {¶22} Further, and as noted in Yost, the trial court made additional

determinations in support of its issuance of a maximum sentence, including

that Appellant, at the time of the offense, had previously served a prison

sentence, that the victim suffered serious physical harm, that Appellant had

not responded favorably to sanctions previously imposed for criminal

convictions, and that Appellant showed no genuine remorse for the offense.

All of these factors weighed against imposition of a shorter sentence, and the

trial court was entitled to place additional weight on these factors.

Therefore, we overrule Appellant's sole assignment of error.

       {¶23} In our view, Appellant has not established that her eight-year

prison sentence is clearly and convincingly not supported by the record. As

such, her sole assignment of error is overruled and we affirm the judgment

of the trial court.

                                                 JUDGMENT AFFIRMED.
Highland App. No. 17CA6                                                        17

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment Only.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
