[Cite as State v. Stutler, 2019-Ohio-2120.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 2018CA00066
CHARLES D. STUTLER                              :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Stark County
                                                    Court of Common Pleas, Case No.
                                                    2017CR1253A


JUDGMENT:                                           Affirmed


DATE OF JUDGMENT ENTRY:                             May 28, 2019




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     ANTHONY KOUKOUTAS
Stark County Prosecutor                             116 Cleveland Avenue North, Ste. 808
BY: KATHLEEN TATARSKY                               Canton, OH 44702
110 Central Plaza South
Canton, OH 44702
Stark County, Case No. 2018CA00066                                                           2

Gwin, P.J.

       {¶1}   Appellant Charles D. Stutler [“Stutler”] appeals his convictions and

sentence after a jury trial in the Stark County Court of Common Pleas.

                                   Facts and Procedural History

       {¶2}   C.C. shared a home with her mother, R.C. and her grandmother. C.C. had

fashioned a living area for herself in the basement with a bed and a table. C.C. was a

heroin user. At first, she would snort it; later she would inject it with a syringe and needle.

       {¶3}   C.C. spent the night before she died with her mother, sister and her

boyfriend at a skilled games parlor. C.C. won $70.00. C.C. and her mother stayed out

all night and got back to their residence around 7:30 the next morning.

       {¶4}   At around 9:00 am, R.C., C.C.’s mother, went down the street to a

neighbor's to have the struts on her car replaced. While waiting at the neighbor's house

for the car to be repaired, she looked out and kept seeing C.C. go outside of her home.

R.C. thought, "She might be untangling the dogs or something."

       {¶5}   R.C. returned to the home around 1:15 that afternoon and noticed that C.C.

was high. C.C. was a known heroin user. She had overdosed on at least two previous

occasions and her mother had taken her to the hospital. C.C. used heroin almost every

day. That morning, C.C. asked her boyfriend, M.R. for a ride to meet up with K.C. and

Stutler for her "stuff.” However, her boyfriend refused to take her and left. He last talked

with C.C. around 5:00 pm that day.

       {¶6}   R.C. went to take a nap and around 7:35 pm., C.C. woke her up because

the basement was flooding. After dealing with that situation, R.C. went back to bed. C.C.

was logged into Facebook around 8:09 pm and liked one of her mother's posts.
Stark County, Case No. 2018CA00066                                                       3


         {¶7}   On March 31, 2017 about 8:26 pm, R.C. woke up from a nap and went down

to the basement to check on her daughter. R.C. opened the door to C.C.'s living area

and found her daughter laying on the floor next to a chair. She rolled her daughter over

and a needle fell out of her arm. C.C. vomited. R.C. felt her daughter's face and it was

just slightly warm; her arms, belly and legs were really warm. She felt a real light pulse.

She rubbed C.C.'s chest as she had done in the past, but got no response. She called

9-1-1.

         {¶8}   Deputy Jeffrey Leggett of the Stark County Sheriff's Department testified

that he responded to the 9-1-1 call for service at the home. Deputy Leggett testified that

upon his arrival, paramedics were already on the scene performing CPR and

administering Narcan to C.C.

         {¶9}   C.C. was eventually transported by ambulance to Mercy Medical Hospital.

The paramedics continued to work on her and kept up the CPR. They even tried an

intraosseous access, specifically an IV inserted into bone marrow, in order to administer

drugs to her in attempt to get her heart beating. Further attempts were made to revive

C.C. at the hospital; however, C.C. passed away. It was later determined that the cause

of death was the use of carfentanil.

         {¶10} After C.C.'s body was transported to the hospital, the responding Deputy

Sheriffs took photographs of the room and collected evidence. They found several

syringes including one on a table. A spoon with white residue was found on a wooden

cabinet.

         {¶11} Deputy Jarrod Blanc testified that the other deputies gave him some of the

evidence that they had collected and that he went to the hospital to speak with R.C.
Stark County, Case No. 2018CA00066                                                           4


Deputy Blanc learned that C.C. had been using her grandmother's cell phone. The phone

was taken into evidence and Deputy Blanc started looking through the text messages

that it contained in order to find any referencing or talking about narcotics trafficking.

He found a number of text messages from one specific cell phone that were indicative of

narcotics trafficking. Using social media, Deputy Blanc was able to link the phone number to

a cell phone that was registered to Stutler’s mother, but that Stutler had listed as his number

on his Facebook profile page.

       {¶12} Deputy Blanc obtained a search warrant to search the telephone number used

by Stutler and found other text messages between C.C. and Stutler, and between Stutler and

K.C. Shortly after C.C. death, Stutler changed the cell phone number. However, before he

shut off his cell phone number, Blanc retrieved a text message on April 2, 2017 from Stutler

to an unidentified number that read, “I'm just done with this dope game.”

       {¶13} On April 4, 2017, Deputy Blanc returned to the home. R.C. found a blue

powdery substance that had been hidden in C.C. basement room. The substance was later

identified as carfentanil.

       {¶14} K. C. and C.C. were friends for about five years. K.C. used heroin with C.C.

all the time. On March 31, 2017, K.C. lived with Stutler. K.C., C.C. and Stutler used drugs

together frequently. They would obtain money for the drugs by lying to relatives, from work

or in any way possible. They would pool their resources to purchase the drugs. 2T. at 411-

412. K.C. testified that Stutler went to purchase drugs for her before her shift on March 30,

2017. 2T. at 415. After hearing that C.C. had died, Stutler told K.C. that he and C.C. had

put their money together to buy drugs and he took the drugs to her that day. 2T. at 418 -

419.
Stark County, Case No. 2018CA00066                                                              5


         {¶15} C.C.'s body was transferred to the Stark County Coroner's Office where Frank

P. Miller, Stark County Deputy Coroner, performed an examination. He took photographs,

did preliminary urine testing, and took toxicology samples, fluid from the eyes and blood from

the femoral area. Dr. Miller sent the blood, urine and vitreous samples to Axis Forensics

Toxicology Laboratory for testing.

         {¶16} Kevin Shanks, a senior forensic toxicologist and other toxicologists in the

laboratory did testing of the samples sent by Dr. Miller. First, they did an initial screening for

cannabinoids, like THC, marijuana and opiates like morphine, codeine and hydrocodone.

Then, they did a second screening - a drugs of abuse panel - by mass spectrometry for 300

different   substances     including   heroin,    fentanyl,   barbiturates,    benzodiazepines,

antidepressants and antipsychotic drugs. Heroin metabolites and fentanyl are included in

the drugs of abuse panel; carfentanil is not. Then, they did a blood screening for alcohol.

         {¶17} THC and THC metabolites from marijuana use were found in C.C.'s blood

samples; fentanyl was not found in her blood stream. Morphine and norfentanyl were found

in C.C.'s urine samples.      Heroin metabolizes to morphine.         Fentanyl metabolizes to

norfentanyl. For urine testing, the results are reported as positive or negative and a specific

amount is not reported for the reason that urine is a waste product - any drug or metabolite

that is in the urine is no longer affecting the body. Because blood is actively circulating

through the body, blood testing can tell you what the body consumed within several hours to

a day. Shanks opined that because heroin and fentanyl were found in C.C.'s urine and not

her blood, she would have ingested the substance within one to four days, but not within 24

hours.
Stark County, Case No. 2018CA00066                                                        6


       {¶18} Axis was then asked to do additional testing for "designer opioids and fentanyl

analogues," including carfentanil. Carfentanil is a commercial veterinary medicine used to

sedate and immobilize large exotic animals such as rhinos or elephants. It is 10,000 times

more potent than morphine. It is not meant to be used in humans because of its potency.

Further tests performed at Axis found carfentanil in C.C.’s blood.

       {¶19} The jury found Stutler guilty of Involuntary Manslaughter and one count of

Aggravated Trafficking in Drugs. The underlying felony for the involuntary manslaughter

charge was the aggravated trafficking in drugs charge; the drug carfentanil.

       {¶20} Stutler was sentenced to ten years in prison on the involuntary manslaughter

conviction and eighteen months on the aggravated trafficking in drugs conviction. The

sentences were imposed concurrently for a total prison term of ten years.

                                       Assignments of Error

       {¶21} Stutler raises three assignments of error,

       {¶22} “I.   THE    APPELLANT       WAS     PREJUDICED         BY   PROSECUTORIAL

MISCONDUCT DURING VOIR DIRE.

       {¶23} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

APPELLANT’S MOTION FOR A MISTRIAL.

       {¶24} “III. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.
Stark County, Case No. 2018CA00066                                                                          7


                                                          I.

       {¶25} Stutler claims that prosecutorial misconduct occurred during the voir dire that

denied him his right to a fair trial. Specifically, Stutler argues that the prosecutor during voir

dire made a statement that did not accurately reflect the law,

                 So when the Judge tells you at the end of this trial, when she says, "If

       you believe that the State has proved that the Defendant supplied the drugs to

       the victim, the victim used those drugs voluntarily, the supply of those drugs

       caused her death, you must find the Defendant guilty," can everybody do that?

1T. at 961. The prosecutor was told by the trial court that she did not use the element of

“proximate cause.” 1T. at 96-97. Furthermore, during a break outside the hearing of the

jurors the following exchange took place,

                 "THE COURT:                       Here's the thing, Toni: This is what you did

       not say. The way the jury instructions read: “The Defendant caused the death

       of [C.C.] as a proximate result of committing or attempting to commit

       aggravated trafficking.”

                 "As a proximate result." That proximate result is the jury question. It is

       not sufficient that you say he committed aggravated trafficking and she died.

                 MS. SCHNELLINGER:                 No.

                 THE COURT:                        There has to be - -

                 MS. SCHNELLINGER:                 Right, but the trafficking has to cause the

       involuntary mans - - I'm sorry, Your Honor,



       1   For clarity sake, the transcript of the jury trial will be referred to by volume and page number as
“T.”
Stark County, Case No. 2018CA00066                                                           8


               THE COURT:                   Yeah. I get it. But you were taking it to a

       level of you were getting a commitment from them that if you prove the

       aggravated trafficking and she died, that there’s nothing in between that has to

       be proven, and it has to be a proximate result. And ‘proximate’ is huge. You

       are. - -

               MS. SCHNELLINGER:            I’m sorry. I - -

               THE COURT:                   - - making a leap that - -

               MS. SCHNELLINGER:            I thought what I was saying it made - - I will

       - - I can fix that. I thought what I was saying is that the aggravated trafficking,

       if that’s proven that he did that and he caused the death, that caused the death.

       That’s, that’s it. And that is it.

1T. at 102-103. Defense counsel objected and moved for a mistrial.

       STANDARD OF APPELLATE REVIEW – PROSECUTORIAL MISCONDUCT.

       {¶26} Allegations of prosecutorial misconduct implicate due process concerns, and

the touchstone of the analysis is the “‘fairness of the trial, not the culpability of the

prosecutor.’” State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, ¶ 92,

quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

               If any misconduct occurred, the court must consider the effect it had on

       the jury “in the context of the entire trial.” State v. Keenan, 66 Ohio St.3d 402,

       410, 613 N.E.2d 203 (1993). With regard to each allegation of misconduct, we

       must determine whether the conduct was “improper, and, if so, whether [it]

       prejudicially affected substantial rights of the defendant.” State v. Smith, 14

       Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[A] defendant's substantial rights
Stark County, Case No. 2018CA00066                                                       9


       cannot be prejudiced when the remaining evidence, standing alone, is so

       overwhelming that it constitutes defendant's guilt, and the outcome of the case

       would have been the same regardless of evidence admitted erroneously.”

       State v. Hicks, 194 Ohio App.3d 743, 2011-Ohio-3578, 957 N.E.2d 866, ¶ 30

       (8th Dist.2011), citing State v. Williams, 38 Ohio St.3d 346, 349–350, 528

       N.E.2d 910 (1988).

State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 109.

       {¶27}   Whether statements made by a prosecutor amount to misconduct and

whether such statements render a trial fundamentally unfair are mixed questions of law and

fact, which we review de novo. United States v. Carson, 560 F.3d 566, 574 (6th Cir. 2009

(citing United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999) (citing United States v.

Clark, 982 F.2d 965, 968 (6th Cir.1993)).

       ISSUE FOR APPEAL.

       A. Whether the state committed misconduct and if so did the misconduct

prejudicially affect Stutler’s substantial due process rights.

       {¶28} In State v. Shine-Johnson, the Court observed,

               “The prosecuting attorney does not instruct the jury on the law, the

       trial judge does.” State v. Palmer, 7th Dist. No. 89-B-28, 1996 WL 495576

       (Aug. 29, 1996). However, a prosecuting attorney should not mislead the

       jury by either misstating the law or the facts. State v. Crossty, 12th Dist.

       No. CA2008-03-070, 2009-Ohio-2800, 2009 WL 1655495, ¶ 45, citing State

       v. DePew, 38 Ohio St.3d 275, 288, 528 N.E.2d 542 (1988).
Stark County, Case No. 2018CA00066                                                       10


10th Dist. Franklin No. 17AP-194, 2018-Ohio-3347, ¶74.           In the case at bar, the

prosecutor’s questioning as previously noted was a misstatement of the law,

              “The term ‘proximate result’ in the involuntary manslaughter statute

       involves two concepts: causation and foreseeability.” State v. Hall, 12th

       Dist. Preble No. CA2015-11-022, 2017-Ohio-879, 2017 WL 957747, ¶ 71.

       In regards to causation, we have held that “[g]enerally, for a criminal

       defendant’s conduct to be the proximate cause of a certain result, it must

       first be determined that the conduct was the cause in fact of the result,

       meaning that the result would not have occurred ‘but for’ the conduct.” State

       v. Feltner, 12th Dist. Butler No. CA2008-01-009, 2008-Ohio-5212, 2008 WL

       4456973, ¶ 13. With respect to foreseeability, this court has held “when the

       result varied from the harm intended or hazarded, it must be determined

       that the result achieved was not so extraordinary or surprising that it would

       be simply unfair to hold the defendant criminally responsible for something

       so unforeseeable.” Hall at ¶ 78. Furthermore, a defendant will be held

       responsible for foreseeable consequences “which are known to be, or

       should be known to be, within the scope of the risk created by his conduct.”

       Id. at ¶ 79.

State v. Potee, 12th Dist. Clermont No. CA2016-06-045, 2017-Ohio-2926, ¶ 33. See also,

State v. Carpenter, 3rd Dist. Seneca No. 13-18-16, 2019-Ohio-58, ¶51-53(discussing

“cause” and “proximate cause”); State v. Luce, 5th Dist. Ashland No. 17 COA 040, 2018-

Ohio-3865, ¶29 (“we first note that “[i]t is not necessary that the accused be in a position

to foresee the precise consequence of his conduct; only that the consequence be
Stark County, Case No. 2018CA00066                                                       11


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).”).

       {¶29} Our review of the record in Stutler’s case establishes that the prosecutor’s

questioning was accidental and mistaken. We find no evidence that the prosecutor

intentionally misstated the law.

       {¶30} We further find that the trial judge issued thorough curative instructions that

included informing the jury that the court instructs on the law, not the attorneys. 1T. at

126-127.   Further, the trial court instructed the jury on the elements of involuntary

manslaughter including “proximate result” and “cause.” 1T. at 128.

       {¶31} Looking at the prosecutor’s statement in the larger context of the trial, we

find the prosecutor’s statement did not prejudicially affect Stutler’s substantial due

process rights.

       {¶32} Stutler was not denied his right to due process and fair trial under the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution and Article I,

Sections 10 and 16 of the Ohio Constitution.

       {¶33} Stutler’s First Assignment of Error is overruled.
Stark County, Case No. 2018CA00066                                                               12


                                                    II.

       {¶34} In his Second Assignment of Error, Stutler argues that the trial court abused

its discretion in failing to grant a mistrial based upon the inaccurate statement of law made

by the Prosecutor during voir dire as set forth in his First Assignment of Error.

       STANDARD OF APPELLATE REVIEW – MISTRIAL.

       {¶35} “Mistrials need to be declared only when the ends of justice so require and

a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1

(1991). The standard of review for evaluating a trial court's decision to grant or deny a

mistrial is abuse of discretion. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984).

In reviewing a claim that a mistrial should have been granted, the Ohio Supreme Court

has noted “[t]his court has instead adopted an approach which grants great deference to

the trial court's discretion in this area, in recognition of the fact that the trial judge is in the

best position to determine whether the situation in his courtroom warrants the declaration

of a mistrial.” State v. Shaffer, 5th Dist. Richland No. 2003-CA-0108, 2004-Ohio-3717,

¶18 quoting [State v.] Widner [68 Ohio St.2d 188, 429 N.E.2d 1065(1981)]. See, also,

Wade v. Hunter, 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93 L.Ed. 974(1949).

       {¶36} An abuse of discretion can be found where the reasons given by the court

for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or

where the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.
Stark County, Case No. 2018CA00066                                                           13


       ISSUE FOR APPEAL.

       A. Whether the trial court abused its discretion by denying Stutler’s motion for a

mistrial.

       {¶37} The trial court quickly corrected the alleged error in the prosecutor's voir

dire by not only giving a curative instruction telling the jury that the trial court is the sole

instructor on the law, but in reading the jury instruction regarding causation. The trial

court read the jury instruction again at the close of trial. The jury also had the jury

instructions in writing during deliberations.

       {¶38} “Juries are presumed to follow their instructions.” Zafiro v. United States

506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317(1993). “A presumption always exists

that the jury has followed the instructions given to it by the trial court,” Pang v. Minch, 53

Ohio St.3d 186, 187, 559 N.E.2d 1313(1990), at paragraph four of the syllabus, rehearing

denied, 54 Ohio St.3d 716, 562 N.E.2d 163.

       {¶39} As discussed in our disposition of Stutler’s First Assignment of Error, the

comments of the prosecutor did not prejudicially affect Stutler’s substantial due process

rights. Stutler was not denied his right to due process and fair trial under the Fifth, Sixth

and Fourteenth Amendments to the United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution.

       {¶40} The trial court did not abuse its discretion in denying Stutler's motion for a

mistrial.

       {¶41} Stutler’s Second Assignment of Error is overruled.
Stark County, Case No. 2018CA00066                                                       14


                                                III.

       {¶42} In his Third Assignment of Error, Stutler claims that his convictions for

involuntary manslaughter and aggravated trafficking in drugs were against the manifest

weight and sufficiency of the evidence. Specifically, Stutler argues, “There were no

witnesses who testified that they saw the Appellant engage in a drug transaction with

[C.C.]. In addition, there were no statements by the Appellant wherein he admitted to

giving drugs to [C.C.] except from [K.C.], an admitted liar.” Brief of Defendant-Appellant,

filed Dec. 10, 2018 at 10.

       STANDARD OF APPELLATE REVIEW.

       Sufficiency of the Evidence.

       {¶43} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

       {¶44} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry
Stark County, Case No. 2018CA00066                                                      15


is whether, after viewing the evidence in the 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.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio

St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency

we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if

believed, [the evidence] would convince the average mind of the defendant's guilt beyond

a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),

quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We

will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, 71 N.E.3d 180, ¶74.

       ISSUE FOR APPEAL

       A.    Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, “if believed, would convince the average mind of Stutler's guilt

on each element of the crimes beyond a reasonable doubt.”

       {¶45} Stutler was convicted of involuntary manslaughter, R.C. 2903.04(A), "No

person shall cause the death of another or the unlawful termination of another's

pregnancy as a proximate result of the offender's committing or attempting to commit a

felony.”    The culpable mental state of involuntary manslaughter is supplied by the

underlying offense. State v. Johnson, 8th Dist., Cuyahoga App. No. 94813, 2011-Ohio-

1919, 1154.
Stark County, Case No. 2018CA00066                                                          16


       {¶46} The predicate offense in this case was aggravated trafficking in drugs, in

violation of R.C. 2925.03(A)(1). This statute states that “[n]o person shall knowingly * * *

[s]ell or offer to sell a controlled substance or a controlled substance analog.”

       {¶47} R.C. 2901.22(B) states as follows, “A person acts knowingly, regardless of

purpose, when the person is aware that the person’s conduct will probably cause a certain

result or will probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When knowledge of

the existence of a particular fact is an element of an offense, such knowledge is

established if a person subjectively believes that there is a high probability of its existence

and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.”

       {¶48} As we noted in our disposition of Stutler’s First Assignment of Error,

              “The term ‘proximate result’ in the involuntary manslaughter statute

       involves two concepts: causation and foreseeability.” State v. Hall, 12th

       Dist. Preble No. CA2015-11-022, 2017-Ohio-879, 2017 WL 957747, ¶ 71.

       In regards to causation, we have held that “[g]enerally, for a criminal

       defendant’s conduct to be the proximate cause of a certain result, it must

       first be determined that the conduct was the cause in fact of the result,

       meaning that the result would not have occurred ‘but for’ the conduct.” State

       v. Feltner, 12th Dist. Butler No. CA2008-01-009, 2008-Ohio-5212, 2008 WL

       4456973, ¶ 13. With respect to foreseeability, this court has held “when the

       result varied from the harm intended or hazarded, it must be determined

       that the result achieved was not so extraordinary or surprising that it would

       be simply unfair to hold the defendant criminally responsible for something
Stark County, Case No. 2018CA00066                                                         17

       so unforeseeable.” Hall at ¶ 78. Furthermore, a defendant will be held

       responsible for foreseeable consequences “which are known to be, or

       should be known to be, within the scope of the risk created by his conduct.”

       Id. at ¶ 79.

State v. Potee, 12th Dist. Clermont No. CA2016-06-045, 2017-Ohio-2926, ¶ 33. See also,

State v. Carpenter, 3rd Dist. Seneca No. 13-18-16, 2019-Ohio-58, ¶51-53(discussing

“cause” and “proximate cause”); State v. Luce, 5th Dist. Ashland No. 17 COA 040, 2018-

Ohio-3865, ¶29 (“we first note that “[i]t 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).”).

       1. “Sell” or “offer to sell.”

       {¶49} For purposes of R.C. Chapter 2925, a sale is defined as follows: “‘Sale’

includes delivery, barter, exchange, transfer, or gift, or offer thereof, and each transaction

of those natures made by any person, whether as principal, proprietor, agent, servant, or

employee.” R.C. 2925.01(A) (incorporating definition found in R.C. 3719.01(AA)).

       {¶50} In the case at bar, C.C.'s boyfriend, M. R. testified that C.C. asked him to

give her a ride to meet up with K.C. and Stutler to get drugs. The state further presented

text messages indicating that C.C. asked Stutler to bring her drugs.

       {¶51} At 6:38 am, C.C. sent a text to Stutler, “You gotta call me ASAP...It's [C.C.]
Stark County, Case No. 2018CA00066                                                            18


         {¶52} At 9:46 am, C.C. sent a test to Stutler, “Grandma just woke me. I didn't

miss you, did I?”

         {¶53} At 9:47 am, Stutler sent a text to C.C., “I'm getting ready 2 leave. What do

you got?”

         {¶54} At 9:47am, C.C. sent a text to Stutler, “70.”

         {¶55} At 10:46 am Stutler sent a text to C.C., “I'm meeting him now 2 get it, then

I’ll be out.”

         {¶56} At 11:29 am, C.C. sent a text to Stutler, “Hello, were u — Hello, were u at?

U gonna text me or what?”

         {¶57} At 12:36, there was an eleven-second telephone call between Stutler and

C.C.

         {¶58} At 12:36 pm, Stutler sent a text to C.C., “On ur road.”

State’s Exhibit 11A-I; 3T. at 587-591. Stutler claims that the state did not prove that the

cell phone number in question was used by him to set up the drug transaction with C.C.

However, the state demonstrated from the testimony of Deputy Blanc and K.C. that the

cell phone number was registered to Stutler’s mother but used by Stutler.

         {¶59} After hearing that C.C. had died, Stutler told K.C. that he and C.C. had put their

money together to buy drugs and he took the drugs to her that day. 2T. at 418 - 419.

         {¶60} In State v. Mitchell, 5th Dist. No.2001CA00382, 2002–Ohio–6264, this court

noted:

                “... the Ohio Supreme Court has held that ‘R.C. 2925.03

         demonstrates a clear legislative intent to define commerce in controlled

         substances as criminal ... Consistent with this purpose, the General
Stark County, Case No. 2018CA00066                                                        19


       Assembly defined each of [the] stages of commerce in controlled

       substances as aggravated trafficking....’ State v. Scott (1982), 69 Ohio

       St.2d 439, 440–441, 432 N.E.2d 798. In State v. Scott, the Court held that

       by marketing a drug, an offender served as a link in the chain of supply. Id.

       Serving as a link in the chain of supply constituted an offer to sell. Id. From

       Scott, the Ohio Court of Appeals for the Eighth District noted that all links in

       the chain of supply are equally culpable. State v. Latina (1984), 13 Ohio

       App.3d 182, 187, 468 N.E.2d 1139.          Subsequently, the Ohio Court of

       Appeals for the Fourth District specifically held that a person who acts as a

       broker in a drug sale, acts as a link in the chain of supply and is guilty of

       ‘offering to sell’ drugs within the meaning of R.C. 2925.01.           State v.

       McDaniel (Nov. 9, 1993), Vinton App. No. CA487 (citing State v. Latina,

       supra, which relied upon State v. Scott, supra)”. Id. at ¶ 12, 432 N.E.2d

       798.

       {¶61} In the case at bar, there was evidence that Stutler acted, at the very least,

as a link in the chain of supply by offering to deliver a quantity of drugs to C.C.

       {¶62} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Stutler had committed the crime of Aggravated Trafficking.

       {¶63} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Aggravated Trafficking and, accordingly, there was sufficient

evidence to submit the charge to the jury and to support Stutler’s conviction.

       2. “Causation” and “foreseeability.”
Stark County, Case No. 2018CA00066                                                    20

     {¶64} In State v. Luce, this Court found,

            Furthermore, “* * * the word ‘knowingly’ is an adverb which modifies

     the verb ‘sell’ or ‘offer.’” State v. Ward, 3rd Dist. Crawford No. 3-17-02,

     2017-Ohio-8518, ¶ 15, citing State v. Patterson, 69 Ohio St.2d 445, 447,

     432 N.E.2d 802 (1982), overruled in part on other grounds. Ohio courts are

     thus not required to read into R.C. 2925.03(A) an additional element of

     knowledge of the nature of the substance. Id. In other words, the State is

     only required to prove beyond a reasonable doubt that the accused

     knowingly sold or offered to sell a controlled substance. Ward at ¶ 15, citing

     State v. Stover, 11th Dist. Lake No. 2015–L–041, 2016–Ohio–1361, ¶ 14

     (emphasis added).

            Thus, even if appellant “only” sought to sell heroin on this occasion

     and had no interest in supplying anyone with Carfentanil, she was still

     choosing to engage in the dangerous and illegal business of street-level

     trafficking in controlled substances. Before this Court takes the step of

     overturning a jury verdict on the basis of insufficient evidence, we must

     remind ourselves that our standard is based on the “rational trier of fact”

     standard set forth in Jenks, supra. Perhaps the General Assembly will

     further consider whether updates are needed in the Revised Code to more

     specifically address these types of tragic “drug within a drug” fatalities.

     However, as summarized above, upon review of the present record and

     transcript in a light most favorable to the prosecution, we find that
Stark County, Case No. 2018CA00066                                                          21


       reasonable jurors could have found appellant guilty beyond a reasonable

       doubt of the offense of involuntary manslaughter as charged.

5th Dist. Ashland No. 17 COA 040, 2018-Ohio-3865, ¶ 29-30.

       {¶65} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Stutler had committed the crime of Involuntary Manslaughter.

       {¶66} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Involuntary Manslaughter and, accordingly, there was

sufficient evidence to submit the charge to the jury and to support Stutler’s conviction.

       Manifest weight of the evidence.

       {¶67} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                            ***

               “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with
Stark County, Case No. 2018CA00066                                                           22


       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶68} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

       {¶69} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
Stark County, Case No. 2018CA00066                                                      23


1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

      ISSUE FOR APPEAL.

      B. Whether the jury court clearly lost their way and created such a manifest

miscarriage of justice that the convictions must be reversed and a new trial ordered.

      {¶70} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

      {¶71} In the case at bar, the jury heard the witnesses, viewed the evidence and

heard Stutler’s arguments and explanations about his actions. The jury observed K.C.
Stark County, Case No. 2018CA00066                                                      24


subject to cross-examination. Thus, a rational basis exists in the record for the jury’s

decision.

      {¶72} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Stutler’s convictions are not

against the sufficiency or the manifest weight of the evidence. To the contrary, the jury

appears to have fairly and impartially decided the matters before them. The jury heard

the witnesses, evaluated the evidence, and was convinced of Stutler’s guilt.

      {¶73} The jury neither lost their way nor created a miscarriage of justice in

convicting Stutler of Aggravated Trafficking and Involuntary Manslaughter.

      {¶74} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Stutler was convicted.

      {¶75} Stutler’s Third Assignment of Error is overruled.

      {¶76} The judgment of the Stark County Court of Common Pleas is affirmed.
