[Cite as State v. Luce, 2018-Ohio-4409.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. W. Scott Gwin, P.J.
         Plaintiff – Appellee                   Hon. William B. Hoffman, J.
                                                Hon. Patricia A. Delaney, J.
 -vs-
                                                Case No. 17-COA-037
 CHRISTOPHER D. LUCE

        Defendant – Appellant                   O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Ashland County Court of
                                                Common Pleas Case No. 17-CRI-025



 JUDGMENT:                                      Affirmed in part, Vacated in part, and
                                                Remanded

 DATE OF JUDGMENT ENTRY:                        October 31, 2018


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 CHRISTOPHER R. TUNNELL                         CHRISTINA I. REIHELD
 Ashland County Prosecuting Attorney            P.O. Box 532
 110 Cottage Street                             Danville, OH 43014
 Ashland, OH 44805
 Ashland County, Case No. 17-COA-037                                                       2



Hoffman, J.
       {¶1}   Defendant-appellant Christopher D. Luce appeals his convictions and

sentence entered by the Ashland County Court of Common Pleas, following a jury trial.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On March 9, 2017, the Ashland County Grand Jury indicted Appellant on

one count of involuntary manslaughter, in violation of R.C. 2903.04(A), a felony of the first

degree; one count of corrupting another with drugs, in violation of R.C. 2925.02(A)(3), a

felony of the second degree; two counts of aggravated trafficking in drugs, in violation of

R.C. 2925.03(A)(1) and (2), felonies of the fifth degree; two counts of aggravated

possession of drugs, in violation of R.C. 2925.11(A), felonies of the fifth degree; two

counts of possessing drug abuse instruments, in violation of R.C. 2925.12(A),

misdemeanors of the second degree; one count of illegal use or possession of drug

paraphernalia, in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree;

one count of illegal use or possession of marijuana drug paraphernalia, in violation of

R.C. 2925.141(C), a minor misdemeanor; and one count of possession of drugs, in

violation of R.C. 2925.11(A), a misdemeanor of the first degree.

       {¶3}   Appellant appeared before the trial court for arraignment on March 14,

2017, and entered a plea of not guilty to the Indictment. Prior to trial, Appellant filed a

motion to sever the charges in the Indictment, which the trial court denied via judgment

entry filed July 24, 2017. Appellant also filed a motion in limine, seeking to exclude at

trial evidence of any confessions made by his co-defendant, Danielle Luce, pursuant to

Bruton v. U.S., 391 U.S. 123 (1968).
 Ashland County, Case No. 17-COA-037                                                     3



        {¶4}    On August 1, 2017, Appellant appeared before the trial court, withdrew his

former plea of not guilty on Counts 9 (aggravated possession of drugs), 10 (possessing

drug abuse instruments), and 11 (possession of drugs), and entered a plea of guilty to

those charges. Following a Crim. R. 11 colloquy with Appellant, the trial court determined

Appellant was knowingly, intelligently and voluntarily entering the plea, accepted such,

and found him guilty of Counts 9, 10, and 11. The trial court did not rule on the motion in

limine prior to trial.

        {¶5}    The matter proceeded to trial on the remaining eight counts on August 1,

2017. Appellant and Danielle were tried together.

        {¶6}    Officers John Simmons and Brian Kunzen of the Ashland Police

Department were dispatched to 1311 Cleveland Avenue, Lot #9, on August 8, 2016.

Upon his arrival at the scene, Officer Kunzen encountered a woman by the name of

Harlina Bell, who told them Appellant had overdosed on heroin. Thereafter, the officers

approached the trailer and encountered a female, who was later identified as Appellant’s

wife, Danielle Luce. Officer Simmons testified Danielle “appeared that she had difficulty

comprehending and seemed like she was under the influence of a substance and wasn’t

comprehending anything, and she was unsteady on her feet.” Tr. Jury Trial, Day 1, Aug.

1, 2017, at 178. The officers proceeded to a back bedroom where they discovered

Appellant, who was unresponsive. An emergency squad arrived a short time later and

administered Narcan to Appellant. EMTs administered several doses of Narcan before

Appellant became alert.

        {¶7}    While the EMTs worked on Appellant, Officer Simmons spoke with Danielle.

Danielle admitted she had snorted heroin. She indicated she had purchased the heroin
 Ashland County, Case No. 17-COA-037                                                       4



at a BP gasoline station in Mansfield. At the time of the purchase, the heroin was in a

small plastic bag. According to Officer Simmons, Danielle stated the drug had a different

taste or effect. Danielle also told Officer Kunzen the heroin did not smell or taste right.

Danielle was transported to the Ashland County Police Department, and later taken to the

Ashland County Jail. Appellant was transported to the hospital.

       {¶8}   During a search of the trailer, officers found numerous items related to drug

use, including syringes, syringe caps, a crack pipe, tubes or “stems” for a crack pipe, two

metal spoons, white powder scraped into a line in the center of a glass tray, a marijuana

pipe, razor blades, a shoe lace, cotton balls, and a syringe filled with a brown liquid.

       {¶9}   Diane Harpster, Jeffrey Sanders’ mother, acknowledged her son had had

trouble with the law and had an addiction problem. The last time Harpster saw Sanders

was on August 7, 2016, but she had spoken with him between 5 and 6 p.m. the following

day. On August 9, 2016, Harpster texted Sanders to inform him her boyfriend’s mother

was in the hospital. When she did not hear from Sanders, Harpster called his cell phones,

left text messages on both phones, and messaged him through Facebook. Sanders did

not respond to any of her communications, which worried Harpster. Harpster asked her

daughter to check on Sanders because she could not leave work. Harpster’s daughter

went to Sanders’ residence and found him dead.            The Cuyahoga County Medical

Examiner’s Office ruled Sander’s death was the result of acute intoxication of Carfentanil.

       {¶10} Harpster testified Sanders lived at 1423 Cleveland Avenue, Lot #11.

Sanders did not have a driver’s license and his only means of transportation was his

bicycle. The bicycle was outside Sanders’ trailer on the day his body was discovered.
 Ashland County, Case No. 17-COA-037                                                   5



Harpster indicated Sanders had been clean for over 600 days and was proud of his

sobriety. Harpster denied Sanders’ use of intravenous drugs at any time.

      {¶11} Krystal Campbell, Sanders’ older sister, testified Harpster contacted her

around lunchtime on August 9, 2016, and asked her to check on Sanders. Campbell

agreed to check on her brother. Campbell and her boyfriend drove to Sanders’ residence.

Campbell knocked on the door of the trailer for several minutes. She tried the door and

found it was unlocked. She poked her head into the trailer and called Sanders’ name.

She entered the trailer and began to search for Sanders, continuing to call her brother’s

name. Campbell eventually found Sanders in the bathroom, slumped over the bathtub.

Sanders was unresponsive. Campbell’s boyfriend called 9-1-1.

      {¶12} Detective Brian Evans of the Ashland Police Department was dispatched to

1423 Cleveland Avenue, Lot #11, on August 9, 2016, in response to a possible overdose.

At the scene, Detective Evans spoke with members of Sanders’ family, photographed the

scene, and collected evidence. Detective Evans returned to the station at approximately

6 p.m. and learned of the overdose at Appellant’s residence the prior evening. Detective

Evans read the report of the incident and learned Appellant lived one block away from

Sanders. He then searched Danielle’s phone, which had been taken into evidence, and

found a number of text messages and phone calls between Danielle and Sanders, all

dated August 8, 2016. Thereafter, Detective Evans proceeded to the jail and questioned

Danielle.

      {¶13} Detective Evans testified Danielle told him she obtained the drugs from a

dealer named “Yellow” in Mansfield earlier in the day on August 8, 2016. Detective Evans

added Danielle said she snorted some of the drugs, but was afraid to use the remainder
 Ashland County, Case No. 17-COA-037                                                    6



because the drugs seemed different. Detective Evans testified Danielle recalled Sanders

came to the trailer and purchased the drugs which had been prepared for him when she

returned from Mansfield. Detective Evans stated Danielle told him Sanders gave her a

$20 bill, took the baggie of drugs, and left. Detective Evans added Danielle informed him

she subsequently called Sanders and told him not to use all of the drugs because of her

concern the drugs did not look right.

       {¶14} Detective Evans spoke with Appellant after he was released from the

hospital. Detective Evans testified Appellant stated he drove his roommate’s boyfriend’s

car to Mansfield and purchased a half gram from a dealer named “Yellow” with money he

received from his mother. In addition, Detective Evans noted Appellant indicated he

injected some of the drugs when he returned from Mansfield and that was the last he

remembered. Detective Evans added Appellant stated Sanders wanted to make a trade

for some drugs, but ultimately came to the trailer with $20. Detective Evans further

testified Appellant recalled the drugs were on a tray and he packaged an amount less

than $20 worth in a baggie for Sanders. The detective testified Appellant told him Sanders

arrived at Appellant’s trailer and left with the baggie of drugs.

       {¶15} Audio recordings of Detective Evans’ interviews with Danielle and Appellant

were played for the jury.

       {¶16} During her interview with Detective Evans, Danielle indicated Sanders

came to the trailer after she and Appellant returned from Mansfield. Sanders gave her a

$20 bill. A baggie of drugs was on a tray, ready for him. Sanders took the drugs and left.

During his interview with Detective Evans Appellant stated he spoke with Sanders that

day but was “not really sure” when Sanders “got his”. Appellant was “pretty sure” Sanders
 Ashland County, Case No. 17-COA-037                                                    7



“only got like a 20, if even a whole 20”. Appellant thought Sanders had $20 on him. When

asked about what Sanders’ “stuff” was in, Appellant stated he thought he “had a package

laid out with [Danielle’s] on the tray.” He added he “put it all back in” the baggie.

       {¶17} Detective Evans played three short videos retrieved from the surveillance

camera of Donna D’s restaurant. The three videos were taken on August 8, 2016.

Detective Evans acknowledged the timestamp on the video was inaccurate as the

surveillance system was not set for Eastern Standard Time. The first video depicts

Sanders, wearing a black shirt and dark jeans, riding his bicycle south past Donna D’s.

The second video shows Sanders turning east, traveling through the parking lot of the

Family Dollar Store towards Appellant’s trailer. The final video reveals Sanders biking in

a northwest direction, heading away from Appellant’s trailer and toward his own

residence. Sanders was wearing the same clothing in the video as he was wearing when

his body was found.

       {¶18} On cross-examination, Detective Evans indicated Danielle informed him

she and Appellant purchased something with the $20 Sanders gave them in exchange

for the drugs. Detective Evans reiterated Appellant told him the drugs were on a tray and

he had placed them in a baggie which he subsequently gave to Sanders.

       {¶19} Dr. Dale Thomae, the Ashland County Coroner, testified the Cuyahoga

County Coroner, Dr. Todd Barr, performed the autopsy. Dr. Barr noted Sanders was a

healthy, twenty-one year old male. The toxicology testing revealed a fentanyl analog in

Sander’s blood. Blood and urine samples were sent to a lab in Indianapolis to identify

the specific analog involved. Based upon the Cuyahoga County Coroner’s autopsy

report, Dr. Thomae issued a narrative report and summary as well as a death certificate.
 Ashland County, Case No. 17-COA-037                                                   8



The death certificate listed the cause of death as “sudden cardio path due to deep

ventricular arrhythmia and due to acute intoxication by Carfentanil.” Dr. Thomae stated

the estimated time of death was between 1:30 and 4:30 a.m. on August 9, 2016. Dr.

Thomae noted the Carfentanil was still in Sanders’ system, indicating recent usage of the

drug. Dr. Thomae explained an individual can overdose on a small amount of Carfentanil.

      {¶20} Jennifer Acurio, a forensic scientist with the Bureau of Criminal

Investigations, tested three items recovered from Appellant’s residence: a residue, brown

liquid found in a syringe, and a marijuana pipe. The testing revealed the residue and the

brown liquid were Carfentanil. The marijuana pipe contained a substance determined to

be marijuana.

      {¶21} After hearing all the evidence and deliberating, the jury found Appellant

guilty of Counts 1 – 8 of the Indictment.      The trial court ordered a pre-sentence

investigation. At sentencing, the trial court merged the involuntary manslaughter and

corrupting another with drugs charges. The state elected to have Appellant sentenced

on the involuntary manslaughter conviction. The trial court sentenced Appellant to an

aggregate term of imprisonment of ten years, advising Appellant the ten year prison term

for the involuntary manslaughter conviction was mandatory time.

      {¶22} It is from these convictions and sentence Appellant appeals, raising the

following assignments of error:



             I.   APPELLANT’S        CONVICTIONS         FOR      INVOLUNTARY

      MANSLAUGHTER, CORRUPTING ANOTHER WITH DRUGS, AND

      TRAFFICKING       IN DRUGS WERE           NOT    SUPPORTED        BY THE
 Ashland County, Case No. 17-COA-037                                                 9



      SUFFICIENCY OF THE EVIDENCE AND ARE AGAINST THE MANIFEST

      WEIGHT OF THE EVIDENCE.

             II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO (1)

      REQUEST A JURY INSTRUCTION PROHIBITING THE JURY FROM

      USING ANYTHING FROM THE STATEMENTS OF APPELLANT’S CO-

      DEFENDANT         AGAINST        HIM,       (2)   OBJECT      TO      THE

      MISCHARACTERIZATION OF TESTIMONY BY THE OFFICER WHO

      INTERVIEWED APPELLANT, AND (3) BRING TO THE COURT’S

      ATTENTION THAT A MANDATORY PRISON TERM WAS CONTRARY TO

      LAW ON THE INVOLUNTARY MANSLAUGHTER CONVICTION.

             III. THE TRIAL COURT ERRED BY FAILING TO MERGE

      APPELLANT’S AGGRAVATED TRAFFICKING IN DRUGS CONVICTION

      WITH THE CONVICTION FOR INVOLUNTARY MANSLAUGHTER AND

      CORRUPTING ANOTHER WITH DRUGS.

             IV. APPELLANT’S SENTENCE MUST BE REVERSED AS

      CONTRARY TO LAW AS NOTHING PERMITTED IMPOSITION OF A

      MANDATORY          PRISON       TERM        ON    THE      INVOLUNTARY

      MANSLAUGHTER CONVICTION.



                                              I

      {¶23} In his first assignment of error, Appellant challenges his convictions for

involuntary manslaughter, corrupting another with drugs, and trafficking in drugs as

against the manifest weight of the evidence, and based upon insufficient evidence.
 Ashland County, Case No. 17-COA-037                                                      10



       {¶24} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991). Therein, the Ohio Supreme Court held, “An appellate

court's function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. 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.” Id at paragraph two of the

syllabus.

       {¶25} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶26} “The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge

the credibility of the witnesses.
 Ashland County, Case No. 17-COA-037                                                      11



       {¶27} Appellant was convicted of involuntary manslaughter, in violation of R.C.

2903.04(A), which provides: “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.”

       {¶28} Appellant was also convicted of corrupting another with drugs, in violation

of R.C. 2925.02(A)(3), which reads: “No person shall knowingly * * * [b]y any means,

administer or furnish to another or induce or cause another to use a controlled substance,

and thereby cause serious physical harm to the other person, or cause the other person

to become drug dependent.”

       {¶29} The predicate offense for both involuntary manslaughter and corrupting

another with drugs was aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1),

which states: “[n]o person shall knowingly *** [s]ell or offer to sell a controlled substance

or a controlled substance analog.”

       {¶30} Appellant contends the evidence did not support he had anything to do with

the aggravated trafficking of drugs sale to Sanders.

       {¶31} The record reveals Appellant purchased $50 worth, a half of a gram, of what

he believed to be heroin from a dealer named “Yellow” in Mansfield. Appellant used some

of the drugs. Appellant placed a portion of the drugs back into the corner baggie in which

the drugs had originally been packaged. Appellant admitted he “eyed out” the drugs

rather than weighing an exact amount. He stated the amount Sanders purchased was

not “even a whole [$]20” worth. He placed the baggie of drugs on a tray.

       {¶32} Appellant spoke to Sanders that day and was aware Sanders planned to

purchase some of the drugs when Appellant returned from Mansfield. The fact Appellant
 Ashland County, Case No. 17-COA-037                                                       12



was not physically present when Sanders arrived at his residence does not negate his

actions in preparing the drugs for sale to Sanders. Appellant had sold drugs to Sanders

in the past. Appellant knew Sanders was coming over to purchase drugs.

       {¶33} Appellant further argues, “the evidence fails to support that Appellant’s

provision of a small amount of what he believed to be heroin to Sanders proximately

caused Sander’s [sic] death.” Brief of Appellant at 16.

       {¶34} Ohio courts have recognized “[t]he element of proximate cause is satisfied

where the defendant, ‘sets in motion a sequence of events that make the death of another

a direct proximate and reasonably inevitable consequence’.” State v. Feltner, 12th Dist.

Butler No. CA2008–01–009, 2008–Ohio–5212, ¶ 12, quoting State v. Lovelace, 137 Ohio

App.3d 206, 215 (1st Dist. 1999) (Internal quotations partially omitted). “It is not necessary

that the accused be in a position to foresee the precise consequence of his conduct; only

that the consequence be foreseeable in the sense that what actually transpired was

natural and logical in that it was within the scope of the risk created by his conduct.” State

v. Wells, 12th Dist. Warren No. CA2016-02-009, 2017-Ohio-420, ¶ 35, citing State v.

Losey, 23 Ohio App.3d 93, 96 (10th Dist. 1985). “The possibility of an 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.

       {¶35} Further, the Ohio Supreme Court has held, “[w]e will not read the additional

element of knowledge of the nature of the substance into R.C. 2925.03(A)(1), (5) or (7).”

State v. Patterson, 69 Ohio St.2d 445, 447, 432 N.E.2d 802 (1982), overruled in part on

other grounds. In other words, the state is only required to prove beyond a reasonable
 Ashland County, Case No. 17-COA-037                                                      13



doubt the accused knowingly sold or offered to sell a controlled substance. State v.

Stover, 11th Dist. Lake No. 2015–L–041, 2016–Ohio–1361, ¶ 14 (Emphasis added).

       {¶36} As set forth supra, Appellant spoke with Sanders earlier in the day and knew

Sanders wanted to purchase drugs from him. Appellant packaged approximately $20

worth of what he believed to be heroin for Sanders. Danielle informed Detective Evans

Sanders came to the residence and purchased the drugs with a $20 bill.

       {¶37} Jennifer Acurio, a forensic scientist from BCI, performed tests on some of

the evidence in this case. Acurio tested State's Exhibit 17, a sample of residue found in

the Luces' residence, and State's Exhibit 18, a brown liquid from a syringe from the Luces'

residence, both of which were found to contain Carfentanil. Dr. Todd Barr, the Cuyahoga

County Coroner, performed the autopsy of Sanders’ body. Dr. Barr testified Sanders was

a healthy twenty-one year old male. The toxicology testing showed there were indicators

of a “fentanyl analog” in his blood. Because the Cuyahoga County Coroner’s Office was

not equipped to reach a conclusion on the specifics of said analog, the necessary samples

were sent to AIT Laboratory in Indianapolis. The toxicology report from AIT indicated

Carfentanil was found in Sanders’ blood and urine.

       {¶38} Dr. Barr told the jury Carfentanil is an analog of fentanyl. Dr. Barr concluded

Sanders' cause of death was acute intoxication by Carfentanil. Dr. Barr noted any amount

of Carfentanil can be lethal. Dr. Thomae declared Sanders' cause of death to be from

“sudden cardiopath due to deep ventricular arrhythmia and due to acute intoxication by

Carfentanil.”

       {¶39} Upon our review of the record, we find any rational trier of fact, after viewing

the evidence in a light most favorable to the prosecution, could have found Appellant
 Ashland County, Case No. 17-COA-037                                                     14



knowingly furnished Sanders with the controlled substance and proximately caused

Sanders’ death as a direct result of selling the controlled substance to Sanders. We

further find the trier of fact clearly did not lose its way and create such a manifest

miscarriage of justice warranting the reversal of the judgment.

       {¶40} Appellant’s first assignment of error is overruled.

                                                II

       {¶41} In his second assignment of error, Appellant contends trial counsel was

ineffective for failing to request an instruction prohibiting the jury from using his co-

defendant’s    statements   against   him;   failing   to   object   to   Detective   Evans’

mischaracterization of statements made by Appellant to him; and failing to bring to the

trial court’s attention the imposition of a mandatory prison term was contrary to law.

       {¶42} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.
 Ashland County, Case No. 17-COA-037                                                        15



        {¶43} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d

673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court and the Ohio

Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 402 N.E.2d

1189.

        {¶44} Initially, Appellant asserts trial counsel was ineffective for failing to request

an instruction prohibiting the jury from using his co-defendant’s statements against him.

        {¶45} The trial court instructed the jury as follows:



               You must decide separately the question of guilt or innocence of

        each of the two Defendants. If you cannot agree to verdict on both

        Defendants but can as to one, render a verdict as to the one whose guilty

        [sic] or innocence that you do agree. You must separately consider the

        evidence applicable to each Defendant as though he or she is separately

        tried. And you must state your findings as to each Defendant uninfluenced

        by your verdict as to the other Defendant. Tr. at 777.



        {¶46} “[I]n a joint jury trial of two defendants, a defendant's Sixth Amendment right

to confrontation is violated when the confession of a non-testifying co-defendant is
 Ashland County, Case No. 17-COA-037                                                        16



admitted at their joint trial, even when the trial court carefully instructed the jury that the

confession could only be admitted against that co-defendant.” State v. Clayton, 12th Dist.

Warren No. CA2017-01-009, 2017-8538, citing Bruton, 391 U.S. at 126, 137, 88 S.Ct.

1620.

        {¶47} The audio recordings admitted at trial were redacted prior to trial to delete

any portions of Appellant’s interview in which he referenced Danielle and any portions of

Danielle’s interview in which she referenced Appellant. We have listened to the audio

recordings of Detective Evans’ interviews with Appellant and Danielle. Neither Appellant

nor Danielle mention the other in the portions of the interviews played for the jury. As

such, we find Bruton is not applicable and trial counsel was not ineffective for failing to

request such an instruction. This portion of Appellant’s second assignment of error is

overruled.

        {¶48} Appellant also maintains trial counsel was ineffective for failing to object to

Detective Evans’ mischaracterization of statements made by Appellant to him. Assuming,

arguendo, trial counsel was ineffective for failing to object to Detective Evans’

misstatements, we find Appellant is unable to demonstrate a reasonable probability, but

for this failure, the outcome of the trial would have been different. The jury heard Detective

Evans’ testimony as well as the audio recording of Appellant’s interview with the detective.

The jury could resolve any discrepancies between Detective Evans’ trial testimony

regarding Appellant’s statements, and the actual recorded statements of Appellant when

evaluating Detective Evans’ testimony.          Accordingly, we overrule this portion of

Appellant’s second assignment of error.
 Ashland County, Case No. 17-COA-037                                                       17



       {¶49} We now turn to Appellant’s assertion trial counsel was ineffective for failing

to bring to the trial court’s attention the imposition of a mandatory prison term was contrary

to law. In light of our disposition of Appellant’s fourth assignment of error, infra, and the

fact the state concedes this argument, we sustain this portion of Appellant’s second

assignment of error.

       {¶50} Appellant’s second assignment of error is overruled in part, and sustained

in part.

                                                 III

       {¶51} In his third assignment of error, Appellant argues the trial court erred in

failing to merge his conviction for aggravated trafficking in drugs with his convictions for

involuntary manslaughter and corrupting another with drugs. Appellant submits the three

offenses were committed by the same conduct, “the sale or transfer of drugs to Sanders”,

and with the same animus, “the intent to sell or transfer [C]arfentanil to Sanders, a felony”.

Brief of Appellant at p.24.

       {¶52} R.C. 2941.25 states:



              (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or

       information may contain counts for all such offenses, but the defendant may

       be convicted of only one.

              (B) Where the defendant's conduct constitutes two or more offenses

       of dissimilar import, or where his conduct results in two or more offenses of

       the same or similar kind committed separately or with a separate animus as
 Ashland County, Case No. 17-COA-037                                                      18



       to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.



       {¶53} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the

Ohio Supreme Court revised its allied-offense jurisprudence,

       {¶54} 1. In determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must evaluate three separate factors-the

conduct, the animus, and the import. Id. at para. 1 of syllabus.

       {¶55} 2. Two or more offenses of dissimilar import exist within the meaning of R.C.

2941.25(B) when the defendant's conduct constitutes offenses involving separate victims

or if the harm that results from each offense is separate and identifiable. Id. at para. 2 of

syllabus.

       {¶56} The Ruff Court further explained:

       {¶57} A trial court and the reviewing court on appeal when considering whether

there are allied offenses that merge into a single conviction under R.C. 2941.25(A) must

first take into account the conduct of the defendant. In other words, how were the offenses

committed? If any of the following is true, the offenses cannot merge and the defendant

may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in

import or significance - in other words, each offense caused separate, identifiable harm,

(2) the offenses were committed separately, and (3) the offenses were committed with

separate animus or motivation. Id. at ¶ 25.

       {¶58} An appellate court applies a de novo standard of review in reviewing a trial

court's R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482, 2012-
 Ashland County, Case No. 17-COA-037                                                     19



Ohio-5699, 983 N.E.2d 1245, ¶ 28. “The defendant bears the burden of establishing his

entitlement to the protection provided by R.C. 2941.25 against multiple punishments for

a single criminal act.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999

N.E.2d 661, ¶ 18.

       {¶59} Appellant was convicted of aggravated trafficking in drugs, in violation of in

violation of R.C. 2925.03(A)(1) and (2); involuntary manslaughter, in violation of R.C.

2903.04(A); and corrupting another with drugs, in violation of R.C. 2925.02(A)(3). Utilizing

the Ruff analysis, we find the offenses do not merge. Appellant committed aggravated

trafficking when he travelled to Mansfield, purchased drugs, then returned to Ashland and

prepared the drugs for sale to Sanders. Appellant committed the offense of corrupting

another with drugs when he subsequently sold the drugs to Sanders. We find the

offenses were committed separately in both time and location and were dissimilar in

import as each act caused separate, identifiable harm. There was a significant passage

of time which separated the events.

       {¶60} Accordingly, Appellant’s third assignment of error is overruled.

                                                IV

       {¶61} In his fourth assignment of error, Appellant asserts the trial court erred in

sentencing him to a mandatory ten-year term of imprisonment on the involuntary

manslaughter conviction. The state concedes the validity of Appellant's argument and

we agree.

       {¶62} Under certain circumstances, a prison term is mandatory for offenders

convicted of involuntary manslaughter in violation of R.C. 2903.04(A). For example, R.C.

2929.13(F)(4) requires a mandatory sentence for “[a] felony violation of [R.C.] 2903.04 *
 Ashland County, Case No. 17-COA-037                                                           20



* * if the section requires the imposition of a prison term.” R.C. 2903.04(D) requires a

mandatory prison term “if the felony * * * that the offender committed or attempted to

commit, that proximately resulted in the death of the other person * * * and that is the

basis of the offender's violation of division (A) * * * of this section was a violation of division

(A) or (B) of section 4511.19 of the Revised Code or of a substantially equivalent

municipal ordinance.” The underlying felony in this case is not R.C. 4511.19 or a

substantially equivalent municipal ordinance.

       {¶63} Additionally, R.C. 2929.13(F)(6) requires a mandatory prison term for an

offender convicted of a first- or second-degree felony when he or she previously was

convicted of or pleaded guilty to aggravated murder, murder, or any first- or second-

degree felony. Appellant herein had no prior aggravated murder, murder, or first- or

second-degree felony convictions.

       {¶64} Based upon the foregoing, we sustain Appellant’s fourth assignment of

error, vacate his sentence for involuntary manslaughter, and remand the matter to the

trial court for resentencing.
 Ashland County, Case No. 17-COA-037                                                  21



       {¶65} The judgment of the Ashland County Court of Common Pleas is affirmed in

part, vacated in part, and the matter remanded to the trial court for resentencing.




By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur
