[Cite as State v. Kotomski, 2016-Ohio-4731.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2015-A-0047
        - vs -                                 :

TERESA KOTOMSKI,                               :

                 Defendant-Appellant.          :



Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00153.

Judgment: Affirmed.


Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215, and Paul L. Scarsella, Special Assistant Prosecutor, Ohio
Attorney General’s Office, 150 E. Gay Street, 16th Floor, Columbus, OH 43215 (For
Plaintiff-Appellee).

Paul H. Hentemann, 38052 Euclid Avenue, #103, Willoughby, OH 44094, and Mary
Jane Trapp, Thrasher, Dinsmore & Dolan, L.P.A., 1400 West Sixth Street, Suite 400,
Cleveland, OH 44113 (For Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Teresa Kotomski, appeals her conviction for Murder,

following a trial to the court in the Ashtabula County Court of Common Pleas. The

issues to be determined by this court are whether a murder conviction is supported by

the weight and sufficiency of the evidence when the defendant’s husband is shown to

have died from antifreeze ingestion in a timeframe when the parties had been fighting
and spent the day together, and whether reversal for an inconsistent verdict is

warranted when the defendant is convicted of Murder based on poisoning the victim

with antifreeze but is acquitted of Contaminating a Substance for Human Consumption.

For the following reasons, we affirm the judgment of the court below.

       {¶2}   On March 26, 2014, the Ashtabula County Grand Jury issued an

Indictment, charging Kotomski with one count of Murder, an unclassified felony, in

violation of R.C. 2903.02(A); and one count of Contaminating a Substance for Human

Consumption, a felony of the first degree, in violation of R.C. 2927.24(B)(1) and (E)(1).

       {¶3}   On March 25, 2015, the State filed a Motion for Similar Acts, asserting

that, pursuant to allegations by Teresa’s ex-husband, in 1980, Teresa had poisoned him

and his dog. The court did not allow this evidence to be admitted at trial.

       {¶4}   A trial before the judge was held on July 27 and 28, 2015. The following

pertinent testimony and evidence were presented.

       {¶5}   On August 13, 2009, around 9:20 a.m., 911 dispatcher Lonna Arcaro

received a call, with no response from the caller. She dialed the caller back and spoke

to Teresa Kotomski, who explained that she needed an ambulance to respond to her

home on Hammond Corner in Pierpont, stating “it’s my husband.”

       {¶6}   Pierpoint Fire Department EMTs, Chad Carter and Norm Woodard, arrived

at the residence, where other responders were treating Raymond Kotomski, and

preparing to take him to the ambulance. Raymond was unresponsive and Woodard

observed that he was “gasping for breath, and he had a lot of foam around his mouth.”

Carter spoke to Teresa, who was at the scene. Teresa stated that she and Raymond,

her husband, “had been arguing,” she left the residence, and Raymond “contacted her

and said that he drank something sweet.” She also stated that he was an alcoholic.

                                            2
Carter observed that the inside of the home was very clean and he did not notice any

beer bottles or other items Raymond might have ingested lying around, aside from

some soda cans on the counter.

       {¶7}     Teresa rode in the ambulance to the hospital. According to Woodard, she

was “distraught” and said that she and Raymond had been fighting “two days ago”

about his drinking and she left. She expressed a belief that his present condition was

from alcohol.

       {¶8}     Teresa also told Ed Giblin, a Pierpont Fire Department paramedic, that

Raymond “drank something that was sweet” which “dried his mouth out” and told her

“she would be sorry.” Teresa told Giblin that Raymond “went out to the garage” and

took something like kerosene or gasoline.

       {¶9}     Upon his arrival at the hospital, Raymond was evaluated by Dr. Marian

Barnett-Rico. She was informed that he had a history of alcohol use, but tests showed

no alcohol in his system. Raymond was quickly intubated to help with his breathing,

and Teresa informed her that “he didn’t want * * * any prolonged * * * mechanical

ventilation.” Dr. Barnett-Rico explained that they had to determine what was wrong

before deciding whether he would be on a ventilator for an extended period of time.

Teresa said that he had been threatening to kill himself but she did not think he would.

Dr. Barnett-Rico decided to transfer Raymond to Hamot Medical Center, aware that he

may have ingested antifreeze based on information she received from Teresa and the

acidic levels of his blood.

       {¶10} At Hamot, Dr. Elizabeth Gall noted that Raymond needed to be tested for

a toxic ingestion. Teresa also informed her that he mentioned drinking “something

sweet.” This, combined with the physical presentation of Raymond, led her to believe

                                            3
he may have ingested antifreeze. The test for ethylene glycol (found in antifreeze) was

positive.

       {¶11} According to Dr. Gall, Teresa indicated she had been arguing with

Raymond, and that she had been with him on the 11th when he was fine. Teresa stated

that he had not mentioned being suicidal.

       {¶12} Dr. Gall described the effects of ingesting antifreeze. From 30 minutes to

12 hours afterward, a person has neurological symptoms, acting intoxicated. From 12

to 24 hours, the person may have breathing and heart rhythm issues.     From 24 hours

to 72 hours a person will begin to have renal failure and acidosis. When Raymond

arrived, he was in the late stages. She explained that the antifreeze could have been

consumed approximately 24 to 48 hours before she saw Raymond.

       {¶13} Although Raymond was treated for ingestion of ethylene glycol, he did not

regain consciousness and the neurologist believed his prognosis was “grim.”        Life

support was ceased on the third day after he was hospitalized and Raymond died on

August 16. Dr. Gall’s death summary indicated that the principal diagnosis was acidosis

and ethylene glycol toxicity.

       {¶14} Kim Flickinger, Raymond’s daughter, went to see him when he was

hospitalized, but explained that she was not involved in the decision to terminate life

support, made by Teresa. Teresa stated “you don’t know what I went through for the

last 4 years.” Flickinger requested to have the body turned over to her, which Teresa

allowed on the conditions that she “had to have him cremated and that [Teresa] wanted

to make sure [Kim] wouldn’t be the beneficiary.”

       {¶15} The following testimony and investigation established the events leading

up to Raymond’s illness and death:

                                            4
      {¶16} Special Agent Robert McBride of the FBI spoke with Teresa about the

events in the days preceding Raymond’s death. Teresa indicated that she had moved

out of her home with Raymond and into an apartment on August 8, 2009. She was

having arguments with Raymond regarding their grandchildren. According to Special

Agent Lance Fragomeli of the FBI, Teresa indicated that Raymond favored one of the

grandchildren, and that Raymond was generally angry and “at times was verbally and

emotionally abusive.”

      {¶17} Laura McCoy described that she rented an apartment to Teresa, with a

move-in date of August 1 set. Although Teresa paid August rent, McCoy “never saw

any evidence that she ever moved into the apartment.” On August 7, Teresa said there

was a flea problem. The apartment was rented to another tenant on August 22.

      {¶18} On August 8, pursuant to the testimony of Joanne Gurowski, Raymond’s

niece, he visited her home in Pennsylvania to collect firewood. On that date, Raymond,

who she described as “a happy, jovial person,” was acting normally, spent time with her,

and joked around with family members. Daniel Gurowski, Joanne’s husband, noted that

Raymond had lunch with them, and acted normally. They spoke about a television

show and watched TV together.

      {¶19} According to Special Agent McBride, Teresa indicated that she, Raymond,

and the grandchildren “took a day trip” on August 11, eating, getting ice cream, and

feeding fish. This trip began at around 10 a.m. and concluded at 5 or 6 p.m. After

arriving at their residence, the two discussed reconciling, argued, and she went to her

apartment. She was to return to the home to see Raymond that evening, but after a

subsequent argument over the telephone, she did not do so.




                                           5
        {¶20} According to Mark Kollar, a Special Agent Supervisor for the Ohio Bureau

of Criminal Investigation, on August 11, there were short calls between Raymond and

Teresa between 9 and 10:20 a.m. The next call did not take place until 6:42 p.m. on

that date, consistent with Teresa’s statement that they spent the day together.

Raymond made several short calls to Teresa between that time and 8 p.m., when

Teresa called him back and the calls were longer. Several calls took place between the

two, continuing until after midnight. Kollar characterized these as a “substantial amount

of calls.”

        {¶21} Phyllis Allen, Teresa’s friend, had a phone conversation with Raymond

before he became sick, with him being upset because Teresa left him. On August 11,

she received a voicemail message, in which he apologized. She described him as

sounding like he had been drinking, which she had known him to do. This voicemail

message was presented as evidence. Subsequent testimony regarding cell phone

records demonstrated that the call occurred at 10:17 p.m.

        {¶22} Beginning at around 9:30 a.m. on the 12th, phone records indicated that

Teresa made several calls to Raymond, ending with a 1:45 p.m. call and resuming at

9:24 p.m. Teresa also called several times on the morning of the 13th.

        {¶23} Teresa told Agent McBride that she visited Raymond on the morning of

the 12th, staying a few hours. According to Agent Fragomeli, Teresa went to the house

to do some laundry. When she arrived he was ill, had labored breathing, complained of

pain in his stomach, had thrown up, and was “moaning.” She wanted him to seek

medical assistance, but he refused. She indicated that he told her he drank something

sweet, which she assumed was Dr. Pepper. She called various times that night but did

not receive a response. Kollar noted that the records demonstrated Teresa’s statement

                                           6
that she was at the residence at 11 a.m. on the 12th to do laundry for a few hours was

inconsistent, since there were phone calls between the two during that time.

       {¶24} On the 13th, Teresa had her mother check on Raymond, who discovered

him unresponsive, and Teresa called 911. McBride noted that Teresa made a comment

about Raymond “potentially killing himself,” but he did not have “the stomach for it.”

       {¶25} An investigation started after Raymond’s death, with a search of his home

conducted. Detective Sean Ward of the Ashtabula County Sheriff’s Office took various

photographs of the home. An opened jug of antifreeze was located in the garage.

Although some used cans were tested for traces of antifreeze, the results were

negative.

       {¶26} Kollar testified that a wiretap was performed on Teresa’s phones in 2012.

Several excerpts of phone calls from the wiretaps were played before the court. In one

conversation, she talks about the investigation and whether the State has proof. Teresa

stated, “Well if they had it they would have gotten me before don’t you think?” In a

conversation with another individual, she explained that she has to “stand [her] guns,”

and notes “that’s my story three years ago and that’s my story now,” referring to it as

being “my truth,” but denying responsibility for the murder.

       {¶27} Detective George Cleveland of the Ashtabula County Sheriff’s Office

noted that, although a bittering agent is now generally added to antifreeze to prevent

consumption, this was not required in Ohio in 2009. Tests confirmed that there was no

bittering agent in the antifreeze found at the Kotomskis’ home. No DNA or fingerprints

of Raymond or anyone else were found on the bottle. His investigation showed no

evidence to support a finding that Raymond committed suicide.




                                             7
      {¶28} Dr. Eric Vey, a forensic pathologist, performed an autopsy, finding the

cause of death to be complications of ethylene glycol toxicity and the manner of death

undetermined. He described a similar timeline of ethylene glycol poisoning as Dr. Gall,

and agreed that the antifreeze could have been consumed one to three days before

Raymond’s hospitalization. Dr. Vey noted that 3.3 ounces of antifreeze can be lethal.

      {¶29} Dr. Joseph Felo of the Cuyahoga County Medical Examiner’s Office

testified for the defense. He explained that, given Raymond’s size, being around 250

pounds, it would take more ethylene glycol to poison him than a smaller individual. Dr.

Felo agreed that it would be logical for a person to seek medical attention after

exhibiting symptoms from a poisoning. Dr. Felo found that Raymond “likely did not

ingest a large dose at one time, because people who do will have a short survival period

between time of ingestion and time of death,” with elevated levels of ethylene glycol.

Dr. Felo agreed that the level of ethylene glycol found in Raymond’s blood may have

been lower if some of it had metabolized when the blood sample was taken.

      {¶30} On July 30, 2015, the trial court found Teresa guilty of Murder as charged

in the indictment and acquitted her of Contaminating a Substance for Human

Consumption. This was memorialized in a Judgment Entry on that date.

      {¶31} On the same date, Teresa was sentenced to an indefinite term of 15 years

to life imprisonment. A Judgment Entry of Sentence was filed on August 4, 2015.

      {¶32} Teresa timely appeals and raises the following assignments of error:

      {¶33} “[1.] The trial court erred to the prejudice of the defendant-appellant in

denying her Crim.R. 29(A) motion for acquittal because the state failed to present

sufficient evidence to establish the element necessary to support a conviction of murder

beyond a reasonable doubt in violation of R.C. 2903.02(A).

                                           8
       {¶34} “[2.] The trial court erred as a matter of law and fact to the prejudice of the

defendant-appella[nt] in finding sufficient evidence to convict her of murder in violation

of R.C. 2903.02(A) by means of antifreeze poisoning, while finding insufficient evidence

to convict her of contaminating a substance for human consumption inasmuch as these

findings are inherently inconsistent.

       {¶35} “[3.]   The trial court’s verdict finding the defendant-appellant guilty of

murder is against the manifest weight of the evidence.”

       {¶36} In her first assignment of error, Teresa argues that the court erred in

denying her Crim.R. 29(A) motion for acquittal since there was insufficient evidence to

support a Murder conviction.

       {¶37} In reviewing the sufficiency of the evidence, an appellate court must

“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.”

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979).   “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. “In essence, sufficiency

is a test of adequacy.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997).

       {¶38} To convict Teresa of Murder, the State had to prove, beyond a reasonable

doubt, that she “purposely cause[d] the death of another.” R.C. 2903.02(A).

       {¶39} Teresa argues that there was insufficient evidence for a Murder

conviction, given the lack of evidence that she caused Raymond to ingest antifreeze.

                                             9
She asserts that the circumstantial evidence of phone calls between the two, her

interactions with Raymond on the dates leading up to his death, and her statements

regarding taking him off of the ventilator are insufficient to sustain a conviction.

       {¶40} We find that the evidence was sufficient to maintain the conviction. There

was evidence to support a conclusion that Teresa had access to Raymond and the

home and had been having a conflict with him in the days leading up to his poisoning.

The State’s timeline of her interactions with him, including their time spent together on

August 11, matches the timeframe in which he would have been poisoned, based on

the symptoms he exhibited. He also showed signs of poisoning in the voicemail he left

that evening at 10:17 p.m. Teresa’s statement regarding Raymond’s desire not to be

supported by a ventilator is also noteworthy, as it was made before doctors had even

discovered what may be causing his symptoms/unresponsiveness.                 This evidence

shows reason and access to commit the murder.

       {¶41} Teresa takes issue with the trial court’s conclusion that she stated

Raymond did not want to be on an artificial breathing device for a long period of time,

arguing that it is contradicted by Dr. Gall’s testimony that she was unaware of

discussions regarding removal of Raymond from life support. It is unclear why Teresa

cites this testimony.    The trial court’s finding is supported by the testimony of Dr.

Barnett-Rico. She testified that when she intubated Raymond, Teresa indicated that he

did not want prolonged mechanical ventilation, and Dr. Barnett-Rico explained that they

were not yet aware at the time if Raymond’s illness could be remedied. This discussion

took place within a short time after Raymond’s arrival at the emergency room. Dr.

Barnett-Rico found Teresa’s statement to be “unusual” and “a little out of the blue,”




                                             10
given those circumstances. The court’s conclusion on this issue, then, was supported

by sufficient evidence.

       {¶42} Given these facts, there was sufficient evidence to support Teresa’s

convictions. See State v. McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 45 (8th Dist.)

(the victim’s death from chronic intoxication of antifreeze, “coupled with testimony about

the troubled relationship between [the victim and defendant]” and the “opportunity” for

the defendant to contaminate a beverage the victim regularly consumed, provided

sufficient evidence to support the conviction).

       {¶43} The first assignment of error is without merit.

       {¶44} In her second assignment of error, Teresa argues that the court erred by

finding sufficient evidence to convict her of Murder through the use of antifreeze but not

finding sufficient evidence to convict her of Contaminating a Substance for Human

Consumption.     Teresa contends that it was inherently inconsistent to find that she

caused Raymond to ingest antifreeze but did not place it in something he would ingest.

       {¶45} Pursuant to R.C. 2927.24(B)(1), Contaminating a Substance for Human

Consumption is committed when a person “[k]nowingly mingle[s] a poison, hazardous

chemical, * * * or other harmful substance with a food, drink, nonprescription drug,

prescription drug, or pharmaceutical product, * * * if the person knows or has reason to

know that the food, drink, nonprescription drug, prescription drug, pharmaceutical

product, or water may be ingested or used by another person.”

       {¶46} As an initial matter, this court has held that “[i]nconsistent verdicts do not

provide a basis for a new trial. In fact, the Ohio Supreme Court has long held that

inconsistent verdicts on different counts in a multi-count indictment provide no basis for

retrial.” State v. Barringer, 11th Dist. Portage No. 2004-P-0083, 2006-Ohio-2649, ¶ 53;

                                            11
State v. Fernandez, 11th Dist. Lake No. 2001-L-162, 2002-Ohio-7140, ¶ 61.

“[I]nconsistency in a verdict does not arise out of inconsistent responses to different

counts, but only arises out of inconsistent responses to the same count.” State v.

Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph one of the syllabus;

State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 81.

       {¶47} Teresa argues that the foregoing case law is inapplicable when a case is

tried to the bench, since the concerns raised in a jury trial do not apply, such as

unanimity among juries. U.S. v. Maybury, 274 F.2d 899, 903 (2d Cir.1960).

       {¶48} The decision in Maybury is not binding on this court and this argument has

been rejected in Ohio, where the inconsistency principle outlined above has been

applied in both jury trials and bench trials. State v. Smith, 8th Dist. Cuyahoga No.

81344, 2003-Ohio-3215, ¶ 31 (an inconsistent verdict in a bench trial was permitted to

stand, as “it is not necessary to fashion a higher standard for judges” than juries); State

v. Henderson, 1st Dist. Hamilton No. C-130541, 2014-Ohio-3829, ¶ 25.

       {¶49} Regardless, the trial court’s verdicts were not inconsistent. The court’s

judgment entry, providing reasoning for its decision, aids in this determination. The

court stated in its judgment that the State did not show “what the defendant mingled a

harmful substance with, that is, food, drink * * [or] drug.” In other words, the State failed

to prove in exactly what substance the antifreeze was placed.            This prevented a

conviction on this charge only, since the court did not find that the State failed to prove

that Teresa poisoned Raymond with antifreeze by some method, just that it did not

show which substance in particular was poisoned. Whether it was necessary to prove

which substance was poisoned to obtain a conviction on this charge is irrelevant.




                                             12
       {¶50} Teresa also contends that an exception to the rule of inconsistent verdicts

applies, that verdicts involving “interlocking charges” allow for reversal. State v. Kelley,

109 So.3d 316, 317-318 (Fla.App.2013). Again, however, given the elements of the

crime and the court’s explanation for its verdict, it did not need to find that the antifreeze

was in any substance, or in a specific substance, in order to convict Teresa of Murder.

       {¶51} The second assignment of error is without merit.

       {¶52} In her third assignment of error, Teresa makes several arguments related

to the facts of this matter in support of her contention that her conviction was against the

manifest weight of the evidence.

       {¶53} Manifest weight of the evidence “addresses the evidence’s effect of

inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25, citing Thompkins, 78 Ohio St.3d at 386-387, 678 N.E.2d 541. “In other

words, a reviewing court asks whose evidence is more persuasive -- the state’s or the

defendant’s?”      Id.   An appellate court considering whether a verdict is against the

manifest weight of the evidence must consider all the evidence in the record, the

reasonable inferences, the credibility of the witnesses, and 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.”

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983).

       {¶54} Teresa points out various alleged flaws in the State’s evidence. As an

initial matter, it is important to emphasize that, while each individual piece of evidence

alone may not prove Teresa’s guilt, the combination of this evidence is what supports

the Murder conviction. This applies to the argument that the timeline does not prove

                                             13
that Teresa committed the murder but Raymond could have ingested the antifreeze

after she left on the 11th. The timeline clearly shows that the antifreeze was ingested

sometime on the evening of the 11th. The continued communication by Teresa and

Raymond, the arguments between the two, and Teresa’s inconsistent statements serve

to bolster the finding that she was responsible for Raymond’s poisoning. The fact that

Teresa did not seek help on the 12th when she saw Raymond was very ill, and that she

made an immediate and unusual request to prevent supportive breathing machines,

while possibly explained by Teresa’s arguments if viewed separately, again weigh

against her when viewed in the context of the totality of the evidence.

      {¶55} Teresa also argues that Raymond’s potential suicide provides reasonable

doubt, noting that the evidence presented does not contradict this possibility.

Considering the evidence against suicide in its totality, this possibility does not render

the conviction against the manifest weight of the evidence. While it may be speculation

that a person would be unlikely to commit suicide by consuming antifreeze, it is clear

that it causes a long and likely painful death.      Further, Teresa made inconsistent

statements about her belief that Raymond may have been suicidal, a contention which

is not supported by anyone other than the defendant. This is also contradicted by

testimony of relatives that Raymond had been acting normally just a few days prior to

the poisoning, giving no indication that he was suicidal. This is further supported by the

fact that several investigators reported no signs whatsoever that Raymond had

committed suicide.     It is unusual that there was no evidence that he voluntarily

consumed antifreeze, such as his fingerprints or DNA on the open antifreeze bottle or

cans with antifreeze remnants. It seems unlikely that Raymond would cover up his own

suicide, while such is not the case for Teresa.

                                            14
      {¶56} For these reasons, Teresa’s conviction is not against the manifest weight

of the evidence. See State v. Auerswald, 9th Dist. Medina No. 11CA0053-M, 2013-

Ohio-742, ¶ 46 (where there were inconsistencies in the defendant’s statement,

evidence that contradicted a finding of suicide, ongoing marital discord, and testimony

that antifreeze found in the marital residence did not contain a bittering agent, a

conviction for Murder was not against the weight of the evidence).

      {¶57} The third assignment of error is without merit.

      {¶58} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas, finding Teresa guilty of Murder, is affirmed. Costs to be taxed against

appellant.



CYNTHIA WESTCOTT RICE, P.J.

COLLEEN MARY O’TOOLE, J.

concur.




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