[Cite as State v. Armstrong, 2016-Ohio-7841.]




                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2015-P-0075
        - vs -                                  :

DERICK ARMSTRONG,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
00213D.

Judgment: Reversed and vacated.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Carolyn K. Mulligan, 9442 State Route 43, Streetsboro, OH 44241 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Derick Armstrong, appeals from the judgment of the Portage

County Court of Common Pleas convicting him, after a trial by jury, of corrupting

another with drugs, a felony of the second degree and aggravated possession of drugs,

a felony of the fifth degree. Appellant does not challenge the latter conviction; thus, at

issue is whether the conviction for corrupting another with drugs is supported by both
sufficient as well as the manifest weight of the evidence. For the reasons discussed in

this opinion, that conviction is reversed and vacated.

       {¶2}   Appellant met Mitchell White in a West Virginia jail in 2013. After their

release, the two would meet occasionally and party. On March 16, 2015, White advised

appellant he and his girlfriend, A.M., a minor, were traveling to Akron, Ohio so A.M.

could visit her grandmother. White asked if appellant was interested in riding along.

Appellant, who had an aunt, uncle, and cousins residing in Portage County, accepted

the invitation and viewed it as an opportunity to visit his relatives.

       {¶3}   White, with A.M., arrived to pick appellant up at approximately 11:00 p.m

that night.   They drove through the night but, when they arrived in Akron, A.M.’s

grandmother did not answer her apartment door. The trio decided to find a hotel to drop

off their belongings, rest, and shower. They searched for places to stay and discovered

the Hiram Inn had an available room. Upon arrival, on March 17, 2015, White paid cash

for the room. White and A.M. eventually went shopping. Appellant, whose relatives

were at work, stayed behind and called an old friend, Travis Hammons, a.k.a. T-Ham.

       {¶4}   T-Ham arrived at the Inn and he and Appellant began smoking

methamphetamine (“meth”) and drinking beer together at the Inn. Later, White and

A.M. joined the two men in the room; according to appellant, neither White nor A.M.

smoked meth with him and T-Ham. Appellant speculated, however, that the two were

nevertheless injecting the drug because he had observed hypodermic needles with their

belongings and they would periodically “disappear into the bathroom and come out all

jacked up and shit.”      Appellant consistently maintained he and T-Ham exclusively

smoked meth with one another and did not do so with either White or A.M. Appellant




                                              2
further insisted he did not provide any meth for White or A.M. to inject with their

needles.

       {¶5}   The group eventually went to two local bars and, at approximately 4:00

a.m. on March 18, 2015, the group traveled to a casino in Cleveland, Ohio. Upon their

arrival, White and T-Ham entered the casino. Neither appellant nor A.M., however,

possessed valid identification and, as a result, they returned to the vehicle. Appellant

ultimately fell asleep. At some point in the morning, appellant was awakened by A.M.

She was “hysterical, flipping out, saying she can’t find [the] guys and we need to go

back to the room ‘cause check out time is at 11.” When A.M. and appellant returned to

the Hiram Inn, “the drug task force and cops and stuff were sitting there just basically

waiting on us.”

       {¶6}   Ashley Andrews, the Hiram Inn desk clerk, arrived at work on the morning

of March 18, 2015, and noticed that the vehicle in which appellant, White, and A.M. had

arrived was not parked in the Inn’s lot.    Check-out time passed and Andrews had

neither seen nor heard from any of the three individuals.      Because the room was

booked for another party later that day, Andrews called the room and knocked on the

door, but received no response. When she entered the room, she “saw their stuff” and

called the Inn’s manager, Anita Stocz. Stocz entered the room and determined the

room was unoccupied; she noticed, however, the room was messy, with personal

belongings, including a TASER, scattered indiscriminately on the floor, bed, and

ottoman. She also noticed a smell with which she was “totally unfamiliar.” Given the

unusual circumstances, Stocz contacted the Hiram Police Chief who sent officers to the

Inn.




                                           3
      {¶7}   Stocz admitted officers into the room, where they discovered a firearm,

needles, tinfoil, burnt residue, and pills in plain view.   The drug task force was

summoned and officers applied for a search warrant. The warrant was issued and,

among the items seized, were a box containing a large quantity of powdered meth

(approximately 16.16 grams), small plastic “bindle” bags, typically used in the sale of

meth, two digital scales, a hand gun, and a West Virginia back pack, containing a small

amount of meth ( approximately 0.21 grams) and 13 amphetamine pills.

      {¶8}   When appellant and A.M. approached the room, officers met and

questioned them. A.M. appeared under the influence of a drug of abuse and became

hostile with officers. She provided them with a false name and was generally

uncooperative.   The officers eventually discovered A.M.’s actual identity and, as a

result, determined she was a 17-year-old minor.      Officers also discovered a small

amount of meth in A.M.’s purse. Out of concern for her safety, she was taken to a

nearby medical facility where she was treated and screened for substances.         The

results of the tests revealed A.M. tested positive for amphetamine, meth, methadone,

and opiates, including suboxone. According to the treating physician, A.M. disclosed

she had been shooting up meth for “that day as well as many days before” and that she

had ingested the suboxone “that day.”

      {¶9}   During his questioning, appellant was cooperative with officers and

acknowledged ownership of the West Virginia bag as well as its contents. He further

surrendered several Buprenorphine (suboxone) pills which were on his person.

Appellant vehemently maintained none of the remaining items seized from the room

belonged to him. Appellant also stated he was unaware A.M. was a juvenile. He




                                          4
admitted that, on their journey from West Virginia to Akron, he had a conversation with

White in which he noted that A.M. appeared rather young. Although White indicated

A.M. was not a minor, appellant pointed out the young female was his responsibility.

       {¶10} Appellant consistently denied doing any meth with White or A.M. and

stated he did not provide either individual with drugs. He asserted he observed the two

disappear into the Inn’s bathroom and assumed they were shooting up given their

demeanor when they exited the room; appellant still maintained he did not witness the

couple shooting meth in his presence and denied knowledge of the large quantity of

meth, which was seized from a box found in the room.

       {¶11} Appellant was indicted on one count of aggravated trafficking in drugs, a

felony of the first degree, in violation of R.C. 2925(A)(2) and (C)(1)(d) (meth, a Schedule

II controlled substance in an amount that equals or exceeds five times the bulk amount

but is less than 50 times the bulk amount); aggravated possession of drugs, a felony of

the second degree, in violation of R.C. 2925.11(A) and (C)(1)(c) (meth, a Schedule II

controlled substance in an amount that equals or exceeds five times the bulk amount

but is less than 50 times the bulk amount); possessing criminal tools, in violation of R.C.

2923.24(A) and (C), a felony of the fifth degree; corrupting another with drugs, a felony

of the second degree, in violation of R.C. 2925.02(A)(4)(c) (involving a Schedule I or II

controlled substance, to wit: meth); interference with custody, a felony of the fourth

degree, in violation of R.C. 2919.23(A)(1); endangering children, a misdemeanor of the

first degree, in violation of 2929.22; contributing to the delinquency or unruliness of a

child, a misdemeanor of the first degree, in violation of R.C. 2919.24(A)(1); and having

weapons while under disability, a felony of the third degree, in violation of R.C.




                                            5
2923.13(A)(4). Appellant entered a plea of not guilty and the matter proceeded to jury

trial.   On August 20, 2015, the jury returned verdicts of guilty on a lesser degree of

aggravated possession of drugs, a felony of the fifth degree, finding appellant

possessed less than the bulk amount. It also returned a verdict of guilty on the charge

of corrupting another with drugs. Appellant was acquitted on all remaining counts.

         {¶12} At the sentencing hearing, the trial court sentenced appellant to a term of

five years imprisonment on the corrupting-another-with-drugs charge and 11 months on

the aggravated-possession-of-drugs conviction.          The court ordered appellant’s

sentences to be served concurrently. This appeal follows.

         {¶13} Appellant’s assignment of error provides:

         {¶14} “Defendant-appellant’s conviction for corrupting another with drugs is

based upon mere conjecture, not supported by sufficient evidence and against the

manifest weight of evidence when the state fails to produce any evidence as to three of

the elements of the crime.”

         {¶15} A “sufficiency” argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged offense.

State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper

inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury

could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062 ¶9, 901 N.E.2d 856 (11th

Dist.)

         {¶16} In contrast, a court reviewing the manifest weight observes the entire

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




                                             6
the witnesses and determines whether, in resolving conflicts in the 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. Schlee, 11th Dist. Lake No. 93-L-

082, 1994 Ohio App. LEXIS 5862, *14-*15 (Dec. 23, 1994).

       {¶17} Appellant was indicted for corrupting another with drugs, pursuant to R.C.

2925.02(A)(4)(c). That statute provides: “No person shall knowingly do any of the

following: By any means * * * : Induce or cause a juvenile who is at least two years the

offender’s junior to commit a felony drug abuse offense, when the offender knows the

age of the juvenile or is reckless in that regard.” Appellant’s indictment charged him

with corrupting another with drugs under this subsection, but alleged, with particularity,

that appellant did:

       {¶18} knowingly by any means induce or cause a juvenile, to wit: Jane
             Doe, dob 6/27/99, who is at least two years [his] junior to commit a
             felony drug abuse offense, involving a Schedule I or II controlled
             substance, to wit: Methamphetamine, when the offender knows the
             age of the juvenile or is reckless in that regard.

       {¶19} While there was evidence that A.M. ingested suboxone earlier “that day,”

and there was evidence that appellant was the only individual in the group in

possession of suboxone, the indictment did not charge appellant in the alternative or

with an additional count of corrupting the juvenile with suboxone, a Schedule III

controlled substance. Even though the elements of the statute do not ostensibly require

a charging instrument to include the drug at issue, this particular indictment specified

what the state intended to prove; namely, that appellant corrupted A.M. with meth.

While this detail might ordinarily be resolved by a bill of particulars, the narrow nature of




                                             7
the allegation in the indictment precluded the state from attempting to prove the charge,

via this count, by recourse to evidence relating to appellant’s possession of suboxone.

       {¶20} Every defendant has a due process right to notice of a specific charge.

State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶60 citing Cole v. Arkansas, 333

U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly

established than that notice of the specific charge, and a chance to be heard in a trial of

the issues raised by that charge, if desired, are among the constitutional rights of every

accused in a criminal proceeding in all courts, state or federal”). Here, the state never

alleged, or sought to amend the indictment to allege appellant corrupted another with

suboxone, a schedule III controlled substance. Given the specificity of the charging

instrument, the issue of whether appellant corrupted another with suboxone was not

before the jury. Accordingly, even if there was sufficient evidence to support a

conviction on a hypothetical charge specifying suboxone, appellant’s possession of that

drug cannot be considered in our analysis of whether the state met its burdens of

production and persuasion for the indicted charge of corrupting another with drugs, to

wit: meth.

       {¶21} With this in mind, to obtain a valid conviction for corrupting another with

drugs, the state was required to prove, beyond a reasonable doubt, appellant (1)

knowingly induced the juvenile or caused the juvenile to use meth and (2) he either

knew she was a juvenile or was reckless in that regard.          Given the nature of the

evidence, the jury was required to assume the meth injected by A.M. belonged to

appellant such that he knowingly induced or caused her to use it. Because the state




                                            8
failed to circumstantially establish this necessary predicate, the evidence is not

constitutionally adequate for a valid conviction.

       {¶22} It is well-settled that “[c]ircumstantial evidence and direct evidence

inherently possess the same probative value * * *.” State v. Jenks, 61 Ohio St.3d 259

(1991), paragraph one of the syllabus. “Circumstantial evidence has been defined as

testimony not grounded on actual personal knowledge or observation of the facts in

controversy, but of other facts from which inferences are drawn, showing indirectly the

facts sought to be established.” State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001 ,

2014-Ohio-4304, ¶22, citing      State v. Nicely, 39 Ohio St.3d 147, 150 (1988). An

inference is “a conclusion which, by means of data founded upon common experience,

natural reason draws from facts which are proven.” State v. Nevius, 147 Ohio St. 263,

71 N.E.2d 258 (1947). It consequently follows that “when circumstantial evidence forms

the basis of a conviction, that evidence must prove collateral facts and circumstances,

from which the existence of a primary fact may be rationally inferred according to

common experience.” Windle, supra at ¶34.

       {¶23} A conviction, however, may not be based upon the “stacking of

inferences.” Payne, supra, at ¶23. “When an inference, which forms the basis of a

conviction, is drawn solely from another inference and that inference is not supported by

any additional facts or inferences drawn from other established facts, the conviction is

improper.” Id. See also State v. Maynard, 10th Dist. Franklin No. 11AP-697, 2012-

Ohio-2946, ¶27. The rule against inference-stacking essentially forbids the drawing of

an inference from evidence, which is too uncertain or speculative or which raises merely

a possibility or conjecture. While reasonable inferences may be drawn from the facts




                                             9
and conditions established, they cannot be drawn from facts or conditions merely

assumed.

        {¶24} The state produced evidence that A.M., a juvenile, had meth in her system

on March 18, 2018, and disclosed that she had been injecting meth on that day as well

as several days prior. It also established A.M. had a certain quantity of meth in her

purse when she encountered the police. Appellant testified he did not observe A.M.

injecting meth and he did not share any meth with her while he was with her. At trial, he

testified he deduced that A.M. was injecting meth with White on the night of March 17

and the early morning of March 18 inside a closed bathroom because they possessed

needles and they would exit the bathroom “all jacked up.” He testified neither he nor T-

Ham injected the drug.

        {¶25} Appellant possessed a small amount of meth located in his West Virginia

bag. He admitted to possessing the amount found in the bag and conceded he smoked

it with his friend, T-Ham. Alternatively, a very large quantity of meth was found in a

closed box. The box was located, along with small baggies, during the search of the

room.    Neither of these items were found inside appellant’s bag.        Appellant was

charged with possession of this large quantity, as well as trafficking (based upon the

baggies), but the jury acquitted him of the trafficking charge as well as the charge

involving the greater quantity; he was found guilty only of possessing the small amount

found in his bag.

        {¶26} The meth, upon which the charge of corrupting another with drugs was

based, could have issued from one of various uncertain sources: (1) the supply in

appellant’s possession; (2) the large quantity in the box; (3) A.M. herself; (4) an




                                           10
independent supply furnished by White (who was not present at the time of the arrest);

or (5) an unidentified individual from whom A.M. or White may have purchased drugs.

While it is possible that appellant’s supply could have been the source of the meth that

A.M. injected, given the evidence, it is equally possible the meth she injected came from

any of the other potential sources. Because there was no additional circumstantial

evidence to support the inference that appellant’s supply was the source, the conviction

is based upon an assumption; namely, that, despite appellant’s consistent denials,

appellant knowingly provided A.M. with the drug. In other words, the conviction was

premised upon impermissible inference-stacking.

       {¶27} We acknowledge that the jury instructions simply tracked the language of

the corrupting-another-with-drugs statute and did not specifically advise the jury that the

charge itself was premised exclusively upon meth. In this regard, the jury may have

based its verdict upon its view that appellant corrupted A.M. with suboxone.

Unfortunately, we have no way of knowing which drug the jury based its verdict on.

And, as already noted, the issue of whether appellant provided, induced, or caused

A.M. to commit a felony drug offense with suboxone was not properly before the jury

because it was not charged in the indictment. Accordingly, even if the jury’s verdict was

based upon its conclusion that appellant corrupted A.M. with suboxone, that verdict

would be a nullity as it would represent a conviction on a fictional charge. In light of the

actual charges, we can only analyze the evidence as it relates to the meth.

       {¶28} Assuming the jury premised its verdict upon appellant’s corruption of A.M.

with meth, that verdict is a product of speculation. Upon analysis, appellant’s conviction

could only be based on an inference which was dependent not upon an established




                                            11
fact, but upon another inferential assumption. Although reasonable inferences may be

drawn from evidence, it is the state’s burden to present evidence on each element of

the charged crime from which those inferences may be drawn. It must be borne in mind

that proof must be sufficient for the jury to find guilt beyond a reasonable doubt. Thus,

although the state need not exclude every reasonable theory of innocence to sustain a

conviction, we are loath to endorse inference-stacking as a means to upholding a

conviction.   Because the state failed to establish, beyond a reasonable doubt, that

appellant knowingly induced or caused A.M. to use meth, the conviction is based upon

insufficient evidence.

       {¶29} Appellant’s assignment of error has merit.

       {¶30} For the reasons discussed in this opinion, the judgment convicting

appellant of corrupting another with drugs is hereby reversed and vacated.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




                                           12
