[Cite as State v. McFeeture, 2014-Ohio-5271.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 100434



                                           STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                        HOLLY McFEETURE

                                                         DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED



                                      Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                             Case Nos. CR-11-546241 and CR-12-564265

        BEFORE:         McCormack, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: November 26, 2014
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Alison Foy
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

        {¶1}   Matthew Podolak died at Parma Community General Hospital in 2006. Dr.

Daniel Galita, a medical examiner in the Cuyahoga County Coroner’s office performed an

autopsy upon Mr. Podolak. He found Podolak to have died of chronic intoxication by ethylene

glycol, a chemical found in antifreeze. Six years later, in 2012, Holly McFeeture, Podolak’s

live-in girlfriend at the time of his death, was indicted for his murder.   The matter was tried to a

jury. The state alleged that three months prior to his death, McFeeture began poisoning Podolak

by putting antifreeze in his iced tea. The defense alleged Podolak committed suicide. The

defense’s expert testified Podolak suffered from acute poisoning, indicative of suicide. After a

lengthy trial, the jury found McFeeture guilty of aggravated murder. Having reviewed the

record and applicable law, we affirm.

        {¶2} At trial, the state presented 15 witnesses — including Dr. Galita, several police

officers who investigated this matter, and Podolak’s family and friends. The defense called two

— its expert witness Dr. Robert Bux, and also Dr. Galita.

                                     A. The State’s Evidence

        {¶3} The state’s witnesses testified to the following events leading to Podolak’s death in

2006.

        {¶4} Podolak was a healthy, active, 31 year-old man. He worked at Phoenix Industrial

Finishes, a company owned by his uncle. He began working there soon after graduating from

high school, and worked his way up in the company. His uncle was grooming him to one day

take over the business. An outdoorsman, he enjoyed boating, camping, and hunting.            He also

played softball and hockey in his spare time.
       {¶5} In 2003, Podolak met McFeeture. They began dating soon after and subsequently

moved in together in a Cleveland home. Friends described Podolak as being ecstatic about

finding a mate to settle down with and start a family.     Within a year, their first child was born,

followed by a second child approximately two years later. A third child from a previous

relationship of McFeeture’s was also part of the family.

                         1. Friends’ Testimony About the Relationship

       {¶6} One of Podolak’s close friends, Dennis Owen, was with Podolak the night he met

McFeeture. According to Owen, he had “bad vibes” about the relationship and shared his

apprehension with Podolak. However, Podolak continued the relationship.

       {¶7}      By 2005, the relationship turned “argumentative,” “strained,” and “divisive.”

Another close friend, Russell Hersey, testified that after the relationship turned, Podolak would

spend several nights at a time at Hersey’s house.            Hersey advised Podolak to end the

relationship.     Podolak, each time however, returned to McFeeture.              Hersey described

Podolak’s moods as varying between “very happy” and “angry upset, crying upset, sometimes

fearful.” Hersey testified he was aware that Podolak had become depressed during this time.

However, Hersey never had any concern about Podolak being suicidal. According to Hersey,

Podolak was “too happy over what life would be and he was so looking forward to raising all

three children.” Because of the volatile situation, however, Hersey advised Podolak that he

needed to protect himself and to remove any guns from the home.

       {¶8}      Owen testified that several weeks prior to Podolak’s death, Podolak brought his

guns to Owen for him to keep. Owen testified that Podolak was “very confused, scared [and] *

* * troubled.”
       {¶9}    Sharon Smith, the plant manger at Phoenix Industries, testified she urged Podolak

to end his relationship with McFeeture.

       {¶10} Podolak had a 401(k) plan and life insurance through his employment at Phoenix

Industries.   McFeeture was the beneficiary of both. Hersey, Owen, and Michael Mulhall,

another friend, all similarly advised Podolak to remove McFeeture as the beneficiary.

                     2. Podolak’s Deteriorating Health in Spring of 2006

       {¶11} In the spring of 2006, Podolak’s health started to deteriorate. By Memorial Day

weekend, Hersey was very concerned about Podolak’s physical health. Hersey had enlisted

Podolak’s help to transfer a motor from one boat to another. Podolak, who in the past was

“very strong,” had gained weight, sweated profusely, complained of back pain, and said he had

lost his strength.   Hersey advise Podolak to seek medical attention and recommended a

physician, Dr. Thomas Mandat. Podolak went to see Dr. Mandat on July 26, 2006. Hersey

testified that on the day Podolak went to see the doctor, Podolak called him to ask about the

location of Dr. Mandat’s office. Hersey heard McFeeture in the background yelling at Podolak

that he was “too stupid to know where the doctor that [he was] supposed to go see was.”

       {¶12} Dr. Mandat testified at trial. Dr. Mandat reported that Podolak complained of

flank pain, which was pain in the lower back. After an examination, Dr. Mandat determined

Podolak had kidney stones and prescribed medicine to help with the passing of the stones and

associated pain.

                             3. The Day Before Podolak’s Death

       {¶13} Podolak died on July 31, 2006, a few days after he saw Dr. Mandat. The day

before he died, Podolak’s father talked to Podolak over the phone in the afternoon. Podolak had
bought his daughter a fishing rod, and wanted the three of them to go fishing together. Podolak

was excited about this family outing and looking forward to it.

       {¶14} That evening, Podolak was at a get-together with friends, including Hersey and

Owen. Hersey testified that Podolak “appeared in grave physical condition.” He had gained

even more weight, was sweating profusely, and had to steady himself to even walk. Podolak

also complained of extreme back pain.          Hersey further testified about Podolak’s declining

physical condition that evening.     Both Hersey and Owen again advised Podolak to remove

McFeeture as the beneficiary on his 401(k) plan and life insurance policy.

       {¶15} Later that evening, McFeeture called Podolak’s father to tell him that something

was wrong with his son and that she had called 911. Podolak’s father was able to speak with

his son over the phone briefly, finding him confused and distressed.          Podolak was soon

transported by an ambulance to the hospital.

       {¶16} At the hospital, the doctors determined that Podolak’s kidneys were failing.    Dr.

Mandat was part of the medical team that treated Podolak at the emergency room. The doctors

found Podolak to exhibit metabolic acidosis, which meant that his blood was very acidic. The

doctors were concerned about toxic ingestion of methanol or antifreeze.          McFeeture was

questioned at the hospital as to whether Podolak had ingested either antifreeze or rubbing

alcohol. She stated that he had not. Podolak passed away the day after he went to the hospital.

       {¶17} According to Dr. Mandat’s testimony, metabolic acidosis is usually related to

respiratory problems, but that was not the case here. Dr. Mandat explained that ethylene glycol

can also cause metabolic acidosis.
                       4. Testimony Regarding McFeeture’s Demeanor
                                   After Podolak’s Death

       {¶18} A friend of McFeeture’s, Rebecca Vega, testified that she reached out to McFeeture

to support her in the days following Podolak’s death. She went to the funeral home with

McFeeture to make arrangements.        Vega found it curious that McFeeture did not show

“emotions whatsoever one way or the other. Not * * * anger, not a tear.”

       {¶19} Several other witnesses testified to McFeeture’s demeanor and behavior at

Podolak’s services. Podolak’s father testified that at the wake, he had to ask McFeeture to

come into the room where the casket was to receive visitors. She acted as if she had “no feeling

in her.” Hersey described McFeeture as acting like it was a “party” and like “nothing had

happened.”

       {¶20} Two weeks after Podolak’s death, Vega went to McFeeture’s house. She saw

what appeared to be cleaning solvents out in the open in the kitchen.   Vega found it concerning,

given the young age of the children in the home, and asked McFeeture about it. McFeeture

responded that one of the items was antifreeze and explained Podolak used it to winterize his

boat. Podolak, however, had not owned a boat since 2004.

       {¶21} Michael Jakyma, a Cleveland police officer, knew McFeeture since 2002.

McFeeture baby-sat his children. He would go to her house to have coffee and talk. He

typically called ahead because he did not want to “interrupt another man’s house.” One day he

called McFeeture to see if he had “caught her at a bad time.” She responded that he “did not

have to worry about that anymore.” She said, “oh, Matt died last week,” sounding very casual

about it.   She told him Podolak had issues with his kidneys and was in pain from playing

hockey.
          {¶22} A month and a half after Podolak’s death, McFeeture became involved in a

relationship with Charles Lipscomb, another Cleveland police officer. When they first started

dating, McFeeture told Lipscomb that Podolak had passed away due to kidney failure. When

the autopsy results were released in January 2007, McFeeture became “worried” and told

Lipscomb that maybe Podolak had committed suicide, or an angry coworker had poisoned him,

or he was exposed to something at work. McFeeture told Lipscomb that she did not even know

what antifreeze was.

          {¶23} McFeeture told another acquaintance, Sean Walsh, that Podolak had died from an

industrial accident.

                       5. Jamison Kennedy’s Involvement and His Testimony

          {¶24} Jamison Kennedy met McFeeture at the bar where she bartended in late 2007.

They began dating in the spring of 2008. He was a convicted felon with a lengthy criminal

record.     He abused alcohol and drugs.      When Kennedy and McFeeture started dating,

McFeeture offered no details about Podolak’s death.

          {¶25}   According to Kennedy’s testimony, one day in September 2008, he and

McFeeture were drinking and McFeeture got “emotional” about Podolak. She told Kennedy she

“just wanted it all to go away,” she wanted to move from Cleveland, and she was sorry about

what had occurred. Kennedy asked McFeeture what she was sorry for. McFeeture said that

she put something in Podolak’s drinks, he got sick, and died.

          {¶26} Around that time, Kennedy was doing computer work for an attorney friend,

Santiago Feliciano. Kennedy testified that he told Santiago what McFeeture had confessed to

him. Feliciano, for his part, testified that he advised Kennedy to report the information to law

enforcement if Kennedy found it to be true.
        {¶27} Soon after McFeeture’s alleged confession, her relationship with Kennedy soured.

Kennedy believed she had been unfaithful to him.    On November 8, 2008, he went to her home

to confront her. She called the police. When the officers arrived, Kennedy assaulted the

officers. He was arrested and charged for the offenses.       After his arrest, he told the police

about McFeeture’s confession. Kennedy was subsequently convicted and sentenced to ten years

in prison for assaulting the officers.

                          6. Medical Examiner Dr. Galita’s Testimony

        {¶28} Dr. Galita has been a forensic pathologist and medical examiner for over ten years.

 His job responsibilities are to perform autopsies and to determine the cause and manner of

deaths, having performed over 3500 autopsies. He performed the autopsy of Podolak the day

after he died. Six months later, in January 2007, he issued an autopsy report detailing his

findings. The report was signed by him and then-County Coroner Dr. Elizabeth Balraj. The

report concluded the cause of Podolak’s death was chronic intoxication by ethylene glycol, but

“manner undetermined.” Three years later, in 2010, the autopsy report was amended. The

amended report, signed by then-County Coroner Dr. Frank Miller, concluded that Podolak died

as a result of “chronic intoxication by ethylene glycol, and was homicidal in nature.” The

amended report did not change the cause of death but changed the manner of death from

“undetermined” to “homicide.” Neither Dr. Balraj nor Dr. Miller testified at trial.

        {¶29} Dr. Galita, who performed the autopsy, provided extensive testimony at trial to

support the state’s theory that in the spring of 2006, McFeeture began poisoning Podolak by

putting antifreeze in his iced tea.

        {¶30} According to Dr. Galita, the ethylene glycol ingested by Podolak was absorbed into

his blood and then went to his liver where it was rapidly metabolized by alcohol dehydrogenase.
Alcohol dehydrogenase is an enzyme, or biological substance, that facilitates certain chemical

reactions in the body. When the ethylene glycol was rapidly metabolized, it was transformed

into oxylate, which combined with calcium to form calcium oxylate crystals.

        {¶31} There was a massive amount of these crystals in Podolak’s kidneys, blocking the

proper functioning of the kidneys.       Dr. Galita testified that the flank pain that Podolak

experienced beginning in May 2006 was due to the crystals in his kidneys. When examining

Podolak’s kidneys, he found that in addition to the damage in the kidneys, there was evidence

that the kidneys were attempting to heal.

        {¶32} Dr. Galita also found the crystals in Podolak’s heart and brain. In regard to the

heart, Dr. Galita determined that Podolak had “very severe acute myocarditis in the heart.”

Myocarditis is acute inflammation of the heart muscle. The doctor testified that Podolak would

not have developed myocarditis from a single acute case of ingestion of ethylene glycol; rather,

the myocarditis needed at least three weeks to develop. Galita ruled out that Podolak had suffered

a heart attack.

        {¶33} Dr. Galita concluded that Podolak died as a result of chronic intoxication by

ethylene glycol; that his death resulted from a sequence of acute events, acute sublethal

intoxications from time to time, for a period of at least three months.

        {¶34} Podolak’s friends testified that Podolak’s favorite beverage was raspberry iced

tea and he would bring it to work either in a thermos or in its original half- or whole-gallon

container.   His friend Michael Mulhall testified that McFeeture would sometimes bring lunch to

Podolak at work, and it would always include either a half-gallon or a whole-gallon container of

iced tea.
        {¶35} The police collected two bottles of antifreeze from the garage of McFeeture’s home

in August 2007, after she had moved out. The state submitted these bottles as exhibits to show

that there was antifreeze in the home, even though its witness Sergeant Michael Quinn

acknowledged that the particular ethylene glycol in those bottles did not match the ethylene

glycol found in Podolak’s body.

                                     B. The Defense’s Theory

        {¶36} The defense theory was that Podolak committed suicide because he had sustained

losses in internet gambling, work was not going well, and he was stressed from dealing with his

infant child.

        {¶37} In support of its theory, the defense presented Dr. Robert Bux, the coroner from El

Paso County, Colorado. He testified that Podolak suffered from acute poisoning, meaning that

it was a one-time ingestion of ethylene glycol, which would be indicative of suicide.

        {¶38} Dr. Bux disagreed with Dr. Galita’s finding of myocarditis.         Rather, Dr. Bux

testified that he believed Podolak had suffered a heart attack. Moreover, Dr. Bux testified that a

person can have myocarditis without ethylene glycol poisoning and that flank pain “shouldn’t be”

a symptom of ethylene glycol poisoning. According to Dr. Bux, there is no relation between

kidney stones and ethylene glycol poisoning.

        {¶39} Dr. Bux testified that the crystals found in Podolak’s kidneys began forming in the

hospital.   Regarding the cumulative effect of sublethal doses of ethylene glycol, he testified that

“[w]e don’t know the answer. The problem is that it depends if he got enough that significantly

depressed his kidneys or not.” Dr. Bux, however, did not deny Dr. Galita’s finding that there

was evidence that Podolak’s kidneys had attempted to heal.
       {¶40} After trial, the jury found McFeeture guilty of aggravated murder and

contaminating a substance for human consumption.             On appeal, McFeeture raises seven

assignments of error for our review. We address them in the order they are presented.

       [I.] The trial court erred when it denied appellant’s motion for acquittal under
       Crim.R. 29 because the state failed to present sufficient evidence to establish
       beyond a reasonable doubt the elements necessary to support the convictions.

       [II.] Appellant’s convictions are against the manifest weight of the evidence.

       [III.] The admission of certain testimony and evidence at trial violated appellant’s
       Sixth and Fourteenth Amendments rights under the United States Constitution
       including the right to confrontation.

       [IV.] Appellant was deprived of due process and a fair trial when the state
       introduced irrelevant, prejudicial, other act evidence and hearsay in violation of
       Evid.R. 401, 402, 403, 404, 602, 801, and the Fifth, Sixth, and Fourteenth
       Amendments to the United States Constitution.

       [V.] The trial court erred by denying appellant’s motion for a new trial.

       [VI.] The trial court erred by denying appellant’s motion in limine to exclude and
       objections to Dr. Galita’s testimony as to cause and manner of death.

       [VII.] Appellant was deprived of her federal and state rights by the undue
       preindictment delay.

                                  C. Sufficiency of the Evidence

       {¶41} In the first assignment of error, McFeeture contends there was insufficient evidence

for her conviction and the trial court erred in denying her motions for acquittal.

       {¶42} In reviewing for sufficiency of the evidence, 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. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
       {¶43} This murder case is built largely on circumstantial evidence.   “Proof of guilt may

be made by circumstantial evidence, real evidence, and direct evidence, or any combination of

the three, and all three have equal probative value.” State v. Zadar, 8th Dist. Cuyahoga No.

94698, 2011-Ohio-1060, ¶ 18, citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988).

       {¶44} “Circumstantial evidence is the proof of facts by direct evidence from which the

trier of fact may infer or derive by reasoning other facts in accordance with the common

experience of mankind.”    State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶

37. Although it requires the drawing of inferences, circumstantial evidence and direct evidence

inherently possess the same probative value.    Jenks at paragraph one of the syllabus. The

United States Supreme Court had long noted that “[c]ircumstantial evidence is not only

sufficient, but may also be more certain, satisfying, and persuasive than direct evidence.”

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). The

Ohio Supreme Court also instructed that “circumstantial evidence is sufficient to sustain a

conviction if that evidence would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.”   State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990).

       {¶45} In this case, the state presented extensive testimony from Dr. Galita, which

established that Podolak died of chronic intoxication of a chemical found in antifreeze. This

evidence, coupled with testimony about the troubled relationship between Podolak and

McFeeture and the opportunity for McFeeture to contaminate what Podolak regularly consumed,

viewed in a light most favorable to the state, constituted sufficient evidence to support

McFeeture’s conviction.

       {¶46} On appeal, McFeeture contends that the only shred of admissible evidence that the

state offered to prove her guilt was the allegation of convicted felon Jamison Kennedy.
Kennedy testified that McFeeture confessed to him, telling him that she had put something in

Podolak’s drink, he got sick, and passed away. McFeeture’s attack on Kennedy is an attack on

his credibility.    Credibility is not a consideration for us under a sufficiency of the evidence

review. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

          {¶47} Construed in favor of the state, the witnesses’ testimony in this case was sufficient

to support the jury’s finding of guilt. The first assignment lacks merit.

                                D. Manifest Weight of the Evidence

          {¶48} Under her second assigned error, McFeeture contends that her conviction was

against the manifest weight of the evidence.

          {¶49} Unlike sufficiency of the evidence, manifest weight of the evidence raises a factual

issue.

          “The court, reviewing the entire record, weighs the evidence and all reasonable
          inferences, considers the credibility of 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. The discretionary power to grant a new trial should be exercised
          only in the exceptional case in which the evidence weighs heavily against the
          conviction.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In a manifest-weight review, the

weight to be given the evidence and the credibility of the witnesses are primarily for the jury.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

When examining witness credibility, “the choice between credible witnesses and their conflicting

testimony rests solely with the finder of fact and an appellate court may not substitute its own

judgment for that of the finder of fact.”    State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277

(1986).
         {¶50} The state’s key witness was the medical examiner, Dr. Galita, who performed the

autopsy.    He testified at length about how he reached his conclusion that Podolak had been

chronically poisoned over a period of three months. He explained that he found crystals in

Podolak’s kidneys and cardiac myocarditis. Both of these conditions can arise due to exposure

to ethylene glycol.    He eliminated other causes of myocarditis, such as bacteria, fungi, and

viruses.    Moreover, he testified that myocarditis would not have occurred from a single, acute

exposure to ethylene glycol.

         {¶51} Other witnesses’ testimony corroborated Dr. Galita’s determination of cause of

death.     Podolak’s friends testified that in the spring of 2006, Podolak’s health began to

deteriorate.   He was diagnosed with kidney stones in July 2006.         His health continued to

decline after that. During the period of time in question, McFeeture would sometimes bring

Podolak’s lunch to him at work, including half- or whole-gallon containers of sweetened iced tea.

 Dr. Galita opined that, antifreeze, which has a sweet taste, could be mixed undetected with

sweetened iced tea.

         {¶52} Very shortly after Podolak’s death, McFeeture had antifreeze out in the open in her

kitchen. She explained to a friend that Podolak used it to winterize his boat, even though other

testimony showed that he had not owned a boat since 2004 or 2005.

         {¶53} Regarding the relationship between Podolak and McFeeture, the state’s witnesses

testified that the relationship had turned volatile.   Podolak appeared to be “fearful.” One

friend advised him to remove his weapons from the home — advice that Podolak heeded.

Podolak was also advised to end his relationship with McFeeture and to change McFeeture as the

beneficiary of his 401(k) plan and life insurance policy.    One such advisement was made the

day before his death. The witnesses’ testimony also showed McFeeture’s lack of interest and
emotion after Podolak died. Not only did Podolak’s family and friends notice it, McFeeture’s

own friend, Vega, also noticed and eventually cut ties with McFeeture because she was fearful

for herself and family.

       {¶54} All of this evidence was circumstantial.          Circumstantial evidence, however,

carries the same weight as direct evidence. Although there are obvious differences between

direct and circumstantial evidence, the differences are irrelevant to the probative value of the

evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).

       {¶55} The defense’s theory was that Podolak committed suicide.            Its expert testified

that Podolak died of acute poisoning, consistent with suicide. The state, however, presented

testimony showing that, although Podolak suffered from some depression, he was committed to

being a father to his children.   He had been making future plans for and with them, as late as the

day before he died. There was also testimony showing he sought medical treatment for both his

mental and physical ailments.     More importantly, the medical examiner, Dr. Galita, testified that

Podolak died of chronic intoxication over a three-month period of a chemical found in antifreeze.

 He testified that Podolak’s death was inconsistent with suicide.

       {¶56} Next, we turn to the credibility of Kennedy.                    Through direct and

cross-examination, the jury was very much aware of Kennedy’s credibility issues. He was a

repeat convicted felon, abused alcohol and drugs, and only told law enforcement about

McFeeture’s confession after he was arrested.       Notwithstanding Kennedy’s credibility issues,

the transcript reflects Sergeant Michael Quinn’s testimony that at the time Kennedy told law

enforcement about McFeeture’s confession, it was not publicly known (in media coverage) that

Podolak had died as a result of ethylene glycol poisoning. In other words, the record does not
support McFeeture’s claim that Kennedy merely reported what he had heard elsewhere, either to

gain leniency in his criminal case or to exact revenge on McFeeture.

           {¶57} Our review of the evidence does not show the jury, in resolving conflicts in the

evidence, clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. The weight of the evidence, albeit largely

circumstantial, supports the conviction. The second assignment of error is overruled.

                                     E. Right to Confrontation

           {¶58} Under the third assigned error, McFeeture claims her right to confrontation was

violated at trial.

           {¶59} The Sixth Amendment’s Confrontation Clause provides, “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against

him * * *.”

           {¶60} McFeeture claims her right to confront the witnesses was violated by (1) Dr.

Miller’s not testifying about the 2010 amendment of manner of death, (2) Dr. Galita’s testifying

about the toxicology reports, and (3) Detective Bobby Moore not testifying about his

investigation of the case. We address these issues in turn.

                       1. Dr. Galita’s Testimony About the Autopsy Report

           {¶61} The state’s key witness in this case was the medical examiner who performed the

autopsy, Dr. Galita. McFeeture claims her right to confront the witness was violated because

Dr. Miller, the county coroner in 2010 who amended the manner of death as homicide, did not

testify.

                                       a. Plain Error Review
       {¶62} McFeeture did not object at the trial level to Dr. Galita’s testimony based on the

Confrontation Cause.    First, we note that, before trial, she filed a motion in limine to prohibit

Dr. Galita from testifying.    However, it was on the ground that established medical science

could not support the conclusion that Podolak had been poisoned over time by ethylene glycol.

McFeeture’s motion did not challenge the state’s plan to have Dr. Galita testify about the autopsy

report, original and amended, in lieu of Dr. Miller, or in addition to Dr. Miller.   In fact, in the

motion the defense requested that the trial court exclude the testimony of any representative of

the Cuyahoga County Coroner’s Office.

       {¶63} Second, we note that although the defense did raise an objection at trial to Dr.

Galita’s testimony regarding both the cause and manner of death, the objection, however, was

based on the reasoning the defense provided in its motion in limine, not based on the

Confrontation Clause.    The first time an objection to Dr. Galita’s testimony was lodged based

on her Sixth Amendment right is on appeal.

       {¶64} The Ohio Supreme Court has long recognized, in both civil and criminal cases, that

“failure to timely advise a trial court of possible error, by objection or otherwise, results in a

waiver of the issue for purposes of appeal.”   Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679

N.E.2d 1099 (1997). However, “[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court[.]” Id., quoting Crim.R.

52(B). Further, even if the defendant satisfies this burden, the appellate court has discretion to

disregard the error and should correct it “only to prevent a manifest miscarriage of justice.”

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
       {¶65} With this standard of review in mind, we now turn to McFeeture’s claim that Dr.

Galita’s testimony regarding the manner of death in the amended 2010 autopsy report violated

her Sixth Amendment confrontation right.

       {¶66} In reviewing McFeeture’s claim, we are guided by recent precedents from the

United States Supreme Court and the Supreme Court of Ohio touching upon autopsy reports and

testimony regarding an autopsy report.

                          b. Recent Confrontation Clause Case Law
                              in the Context of Autopsy Report

       {¶67} In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the United States Supreme Court interpreted the Confrontation Clause to mean that an

admission of an out-of-court statement of a witness who does not appear at trial is prohibited by

the Confrontation Clause, if the statement is “testimonial,” unless the witness is unavailable and

the defendant has had a prior opportunity to cross-examine the witness.

       {¶68} Crawford, however, does not involve an autopsy report. Neither did the court

define the word “testimonial.” In State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853

N.E.2d 621, the Supreme Court of Ohio applied Crawford in the context of an autopsy report.

In Craig, a county medical examiner who did not perform the autopsy testified about the autopsy

even though it was someone else — the county coroner at the time of murder but who had since

retired — who performed the autopsy.       The appellant claimed his Sixth Amendment right to

confront witnesses was violated because the medical examiner who testified lacked firsthand

knowledge of the autopsy and there was no showing the coroner who performed the autopsy was

not available.
          {¶69} The Supreme Court of Ohio held that an autopsy report completed by a

nontestifying medical examiner was admissible as a nontestimonial business record under

Evid.R. 803(6). The court held that there was no Sixth Amendment violation in admitting the

autopsy report because Crawford had indicated that “business records are, ‘by their nature,’ not

testimonial” and were therefore admissible. Id. at ¶ 81, quoting Crawford at 56. The Supreme

Court of Ohio emphasized that “[a]n autopsy report, prepared by a medical examiner and

documenting objective findings, is the ‘quintessential business record.’” Id. at ¶ 82, quoting

Rollins v. State, 161 Md. App. 34, 81, 866 A.2d 926 (2005).

          {¶70} After Craig, the United States Supreme Court decided several cases on similar

issues.    It held that a forensic report made at police request showing a seized substance was

cocaine was testimonial and analysts who had performed laboratory tests were required to testify.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The

court also held that blood-alcohol analysis reports were testimonial and a surrogate witness was

not a proper substitute for the analyst who had conducted the test. Bullcoming v. New Mexico,

564 U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).      In Williams v. Illinois, 567 U.S. ___,

132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the plurality opinion applied a “primary purpose test”

and held that expert testimony from a forensic specialist was non-testimonial, and did not violate

the Confrontation Clause, because the report was not prepared for the primary purpose of

accusing a targeted individual. Id. at 2242.

          {¶71} In light of these recent United Supreme Court precedents, the Supreme Court of

Ohio revisited the issue in State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d

930.      In Maxwell, the medical examiner who performed the autopsy had became a medical

examiner in another state and, as in Craig, the state called a medical expert who did not conduct
the autopsy to testify about the autopsy report.      Appellant objected to the testimony.      He

argued he was entitled to confront and cross-examine the medical examiner who actually

performed the victim’s autopsy and wrote the report.      The Supreme Court of Ohio, yet again,

found no violation of the Confrontation Clause.

        {¶72} The court noted that the majority of jurisdictions that had examined this issue

concluded that a medical examiner who did not perform the autopsy may testify as to his or her

own expert opinions and conclusions regarding the autopsy and the victim’s death, citing

Commonwealth v. Avila, 454 Mass. 744, 762, 912 N.E.2d 1014 (2009) (“the expert witness’s

testimony must be confined to his or her own opinions and, as to these, the expert is available for

cross-examination”), Commonwealth v. Phim, 462 Mass. 470, 479, 969 N.E.2d 663 (2012) (a

medical examiner who did not perform the autopsy may not testify on direct examination as to

facts and conclusions stated in an autopsy report without personal knowledge or having

independently reached the same conclusion), and State v. Joseph, 230 Ariz. 296, 298, 283 P.3d

27 (2012) (as long as the substitute expert reaches his or her own conclusions, the Confrontation

Clause is satisfied).

        {¶73} Applying the same principle, the Supreme Court of Ohio held in Maxwell that there

was no Confrontation Clause violation. The court reasoned that the testifying medical examiner

“reached his own independent judgment on the cause and manner of [the victim’s] death based

upon his analysis of the evidence in the autopsy report, which itself was admitted.            His

conclusions were the same as those in the report.”   Id. at ¶ 53.
c. Dr. Galita’s Testimony about the Autopsy Report in the Instant Case

       {¶74} This case does not implicate the Confrontation Clause in the way the foregoing

cases did.    Here, the testifying medical examiner Dr. Galita was the one who performed the

autopsy.     Under the foregoing precedents, he would be permitted to testify about the autopsy

report, both the 2007 original and 2010 amended report.

       {¶75} Regarding the 2007 autopsy report, prepared by Dr. Galita and signed by both him

and Elizabeth K. Balraj, then-county coroner, there is no doubt it was a business record pursuant

to Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, and Maxwell, 139 Ohio St.3d

12, 2014-Ohio-1019, 9 N.E.3d 930. Dr. Galita’s extensive testimony regarding the autopsy he

performed and his finding that the cause of death was chronic intoxication by ethylene glycol did

not present a Crawford problem.

       {¶76} Indeed, on appeal, McFeeture does not challenge, on Sixth Amendment grounds,

the 2007 autopsy report or Dr. Galita’s testimony about the cause of death being chronic

intoxication by ethylene glycol.   She only claims the testimony provided by Dr. Galita regarding

the amendment of the autopsy report — from undetermined manner of death to homicide — was

a violation of her right to confrontation. She argues that Dr. Miller, the county coroner who

amended the manner of death as homicide, should have been subject to cross-examination. Our

careful review of the record indicates this claim lacks merit.

       {¶77} At the hearing on the aforementioned motion in limine, Dr. Galita testified that in

2006, based on his finding of cause of death to be chronic intoxication by ethylene glycol, he

ruled out Podolak’s death as a suicide or a natural death, but determined that the coroner’s office

needed more time to investigate and obtain more information as to “exactly how this intoxication

took place.” (Tr. 33-34.) As a result, the coroner’s office decided to rule the manner of death as
“undetermined” at the time. It felt further investigation about the circumstances surrounding

Podolak’s death was necessary before it could rule the manner of death as homicide. (Tr.

81-82.) Dr. Galita also explained at the hearing that Dr. Miller was the one who amended the

manner of death as homicide, because Miller was the county coroner at the time, and only a

coroner could write the manner of death. (Tr. 81.)

         {¶78} At trial, Dr. Galita provided substantial testimony regarding the cause of Podolak’s

death being chronic intoxication by ethylene glycol. He was then asked about the manner of

death.    The transcript reflects the following testimony:

         Q.     Did you have an opinion as to the manner of death at the time of
                your autopsy?

         A.     The manner of death —

         [DEFENSE COUNSEL]:            Objection.

         THE COURT: Overruled.

                Ongoing objection noted for the record based upon the sidebar
                conference earlier.

                Proceed.

         A.     The initial manner of death was undetermined.

         Q.     As a, at that time, Cuyahoga County Coroner’s office forensic
                pathologist, do you have a duty regarding determining the cause
                and manner of death?

         A.     That’s correct, yes.

         Q.     What are the possibilities in terms of the manner of one’s death?

         A.     The possibilities are homicide, suicide, accident, or undetermined.

         Q.     What do you mean by undetermined?
A.   Undetermined, that we don’t know exactly how the cause of death
     came about.

Q.   What would accidental manner of death mean?

A.   Accidental manner of death means that the person that dies from an
     event which is beyond his control but not from another human
     being or individual.

Q.   Okay. If ethylene glycol accidentally fell into someone’s cup and
     that person drank ethylene glycol day after day or over a period of
     three months, and that person was unaware that ethylene glycol
     was accidentally ingested —

A.   Yes.

Q.   — would that be an accidental manner of death?

A.   Yes. It’s extremely rare, I’d think —

Q.   Contaminated water supply or something like that?

A.   Contaminated water supply, yes.

Q.   If someone wanted to commit suicide and took small amounts of
     ethylene glycol and ingested it a little bit at a time over a period of
     days, weeks, months, would that be a manner of suicide?

A.   No. Because if somebody wants to commit suicide, he drinks a
     lethal amount of that poison.

Q.   A lethal amount —

A.   Being at least 120 milliliters.

Q.   And are there cases of people committing suicide by taking lethal
     [sic] amounts of ethylene glycol?

A.   No, it’s not possible.

Q.   Are there cases of people taking lethal amounts of ethylene glycol?

A.   Yes.

Q.   So 4 ounces?
A.   At least 4 ounces.

Q.   So if someone took 6 ounces of ethylene glycol and ingested it, it would be
     over the lethal limit?

A.   Yes, and he will die.

Q.   That will be a suicide in that case?

A.   Yes.

Q.   Then if someone were to put small amounts of ethylene glycol
     below the lethal level, sublethal, in someone’s cup over a period of
     time, that would be a homicide manner of death?

A.   Yes.

Q.   So at the time of your autopsy it was undetermined because you
     had more than one possibility?

A.   That’s correct. We didn’t have enough information to rule it as a
     homicide at that time.

Q.   Information that you had included some records from Parma
     Medical Hospital?

A.   Records for Parma Medical Hospital, homicide investigation, and
     other pieces of information from different other sources.

Q.   Did there come a time when additional information was presented
     to the Cuyahoga County coroner’s office?

A.   Yes.

Q.   And at that time, at the time of the autopsy, the Cuyahoga County
     coroner was Dr. Elizabeth Balraj?

A.   That’s correct.

Q.   The subsequent coroner was Dr. Frank Miller?

A.   That’s correct.
Q.   Did there come a time information was presented to Dr. Frank
     Miller?

A.   Yes.

Q.   What would the relationship be between Dr. Frank Miller and
     yourself at the Cuyahoga County Coroner’s office?

A.   The relationship is that the coroner is the person who rules the
     manner of death.

Q.   Did you have an opportunity to sign the autopsy protocol in this
     case?

A.   Yes, I did.

Q.   It’s your signature on State’s Exhibit Number 1?

A.   Yes.

Q.   Is there another signature there as well?

A.   Yes, Dr. Miller’s signature.

Q.   Did Dr. Balraj sign your original autopsy?

A.   That’s correct.

Q.   Did there come a time when the manner of death was changed in
     this case —

A.   Yes.

Q.   — or amended?

A.   It was changed in 2010.

Q.   On whose authority was that manner of death changed?

A.   Dr. Miller’s authority.

Q.   Did the Cuyahoga County Coroner’s office receive additional
     information between the time of your autopsy in 2006 and Dr.
     Miller’s decision in 2010?
       A.        Yes.

       Q.        Does the Cuyahoga County Coroner’s office have contact with the
                 decedent’s family?

       A.        Yes.

       Q.        What services does the Cuyahoga County Coroner’s office
                 provide?

       A.        We received information and we talked to different family
                 members. We received letters from family members, from friends,
                 from coworkers of Matthew Podolak, and immediately after we
                 signed the manner of death as undetermined we started the
                 homicide investigation. I requested immediately a homicide
                 investigation. And the homicide investigation brought us the two
                 bottles of antifreeze found in the garage and also provided us
                 valuable information from different other persons, which were
                 interviewed in relation with this case.

       Q.        Were additional individuals interviewed in connection with this
                 case?

       A.        That’s correct.

(Tr. 561-566.)

       {¶79} As the foregoing testimony reflects, Dr. Galita testified that he, as a medical

examiner, had a duty to determine both the cause and manner of death. He explained the

coroner’s office did not have enough information in 2007 to rule the death as homicide, and

therefore the manner of death was initially ruled “undetermined.” Subsequently, however, there

was additional information presented to the coroner’s office, which allowed       Dr. Miller, the

county coroner in 2010, to rule the manner of death as homicide upon his authority as the

coroner.

       {¶80} Regarding the additional information received by the coroner’s office between the

time of autopsy and the time the death was ruled homicide in 2010, Dr. Galita testified that after
the January 2007 initial report was issued, he immediately requested a homicide investigation

and his office started the investigation. The investigation revealed two bottles of antifreeze

found in McFeeture’s garage.      His office also received information from Podolak’s family

members, friends, and coworkers, and additional individuals were interviewed.      Dr. Galita also

testified he knew the investigation work of Detective Bobby Moore and Sergeant Michael Quinn

in this case.

        {¶81} When asked why the manner of death was eventually ruled as homicide instead of

suicide, Dr. Galita explained it was because Podolak had multiple, overlapping episodes of acute

intoxication over a period of three months. (Tr. 640-641.)

        {¶82} Thus, Dr. Galita’s testimony shows he was intimately involved in the

determination of both the cause and manner in the victim’s death from the beginning, and his

office’s investigation eventually led to the manner of death being ruled as homicide.

        {¶83} Whether we consider the homicide ruling in the amended 2010 report as

testimonial or nontestimonial, Dr. Galita was more than a “substitute” medical examiner and his

testimony was not “surrogate” testimony. He was the medical examiner who performed the

autopsy.    He prepared the autopsy report detailing his findings and concluded the death was

caused by chronic intoxication of ethylene glycol.      He immediately requested the homicide

investigation. He was personally familiar with the homicide investigation throughout the six

years that it took for the coroner’s office, which saw a change in the County Coroner, to rule the

death as homicide.

        {¶84} “Confrontation is designed to weed out not only the fraudulent analyst, but the

incompetent one as well.” Melendez-Diaz, 557 U.S. at 319, 129 S.Ct. 2527, 174 L.Ed.2d 314.

Therefore, McFeeture should be able to confront and cross-examine Dr. Galita regarding the
cause and manner of death in both the original and amended autopsy report. And, she did just

that. The transcript shows the defense ably confronted and thoroughly cross-examined Dr.

Galita regarding both the cause of death and the eventual ruling of the death as homicide.

Pursuant to the precedents from the United States Supreme Court and the Supreme Court of

Ohio, we perceive no violation of the Confrontation Clause in this case. The trial court did not

commit error, plain or otherwise, to permit Dr. Galita’s testimony about the amended manner of

death.

         {¶85} Even if we were to find an error in allowing Dr. Galita to testify about the ultimate

ruling of homicide in the amended autopsy report, we do not find the error to have created a

manifest miscarriage of justice.   The state presented compelling testimony from Dr. Galita who

found the victim to have died of chronic intoxication of ethylene glycol, and as Dr. Galita

explained, the chronic nature of the intoxication ruled out suicide as the manner of death.

McFeeture fails to demonstrate that the purported error in allowing Dr. Galita to testify about the

homicide manner of death created a manifest miscarriage of justice.

                                     2. Toxicology Reports

         {¶86} McFeeture contends that her right to confrontation was also violated because Dr.

Galita, rather than the toxicologist who prepared the toxicology reports, testified as to their

results. We disagree.

         {¶87} The toxicology reports were completed by the coroner’s office as part of the

autopsy protocol. The reports were done in the routine business of the coroner’s office. They

were clearly not testimonial, and fell under the business records exception to the hearsay rule.

As such, McFeeture’s contention that the toxicologist who prepared the reports was required to

testify is without merit.
                                        3. Police Testimony

           {¶88} Also under the third assignment of error, McFeeture complains that her right to

confrontation was violated because the state did not call the original lead detective in the case to

testify.

           {¶89} The record reflects the original lead detective, Detective Moore, had retired before

the trial and the state called instead Sergeant Quinn, who had involvement in the case during

Detective Moore’s investigation and became more actively involved in the case after the autopsy

report was amended in 2010.

           {¶90} A careful review of Sergeant Quinn’s testimony reveals that he did not testify as to

any hearsay from Detective Moore.        Rather, Sergeant Quinn testified as to his own involvement

and investigation of the case.      In regard to Detective Moore, Sergeant Quinn simply testified

that the detective had previously been assigned to the case. Because no testimonial statement

from Detective Moore was ever introduced at trial, it was not necessary for him to be available

for cross-examination.

                              4. Ineffective Assistance of Trial Counsel

           {¶91} Under the third assignment of error, McFeeture also contends that her trial counsel

was ineffective for not objecting to the testimony she now contends violated her Sixth

Amendment right. In order to reverse a conviction based on ineffective assistance of counsel, a

defendant first “must show that counsel’s representation fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Second, “[t]he defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”       Id.
at 694. In light of the foregoing analysis, we find the ineffective assistance of counsel claim to

lack merit.

       {¶92} The third assignment of error is overruled.

                                    F. Admission of Evidence

       {¶93} Under her fourth assignment of error, McFeeture contends that the trial court

improperly admitted evidence that was irrelevant, prejudicial, other acts evidence, or hearsay.

She challenges the following testimony.

       {¶94} Podolak’s father described Podolak and McFeeture’s relationship as strained.

Podolak’s friend Russell Hersey told Podolak it was not good for him to live at the home and told

him to remove his shotgun from the house. Another friend, Dennis Owen, told Podolak it

would not be good to be involved with McFeeture. Podolak’s colleague Sharon Smith, advised

Podolak to leave McFeeture. On several occasions, Podolak was on the phone at work with

McFeeture and he was arguing, upset, and yelling.      The two’s interactions were described as

“fiery” by a witness. Podolak brought his guns to Dennis Owen’s house a couple weeks before

he died.      McFeeture was aloof at the funeral, “carefree, superior, nothing bothered her.”

McFeeture’s interactions with men at the funeral were “very flirtatious.    Everything belonging

to Podolak been taken out of the house. McFeeture cut up Podolak’s clothes to make a quilt so

his father and brother did not have any clothes to remember him by. She began dating within a

month and a half after Podolak’s death.

       {¶95} McFeeture contends the sole purpose of all of this testimony was to portray her as a

bad character and, as such, it was irrelevant to the issue at trial — whether Podolak died of

homicide, suicide, or an accident. She argues even if the evidence was relevant, it was highly

prejudicial, in violation of Evid.R. 403.
       {¶96} The admission or exclusion of evidence rests in the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). Also, much of the

challenged evidence was not objected to and therefore must be reviewed for plain error.     Under

either an abuse-of-discretion or plain-error review, McFeeture’s claim lacks merit.

       {¶97} Much of the testimony that McFeeture complains of relates to testimony about her

demeanor and behavior following Podolak’s death.        The Ohio Supreme Court addressed this

kind of testimony in State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565. In

Diar, the court considered testimony in a capital murder case about the defendant-mother’s

behavior after her four-year-old son’s death in a house fire. The court found that the testimony

satisfied the requirements for lay opinion testimony under Evid.R. 701, and was therefore

properly admitted.   The defendant’s “lack of grief and exuberant behavior on the day of [the

victim’s] funeral were relevant in proving motive under Evid.R. 404(B). See State v. Hand, 107

Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 125 (absence of grief after being notified of

wife’s death admissible against defendant as lay opinion).” Diar at ¶ 86.

       {¶98} Furthermore, testimony portraying McFeeture in an unfavorable light was

admissible to prove motive under Evid.R. 404(B).      As to testimony regarding the relationship

between her and the deceased, it provided a context for the alleged crime and made her actions

more understandable to the jury, and permissible under Evid.R. 404(B) as well.        Diar at ¶ 72,

citing State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 76.

       {¶99} The fourth assignment of error is overruled.

              G. Motion for a New Trial: Materiality of Withheld Information

       {¶100} In her fifth assignment of error, McFeeture contends that the trial court erred by

denying her motion for a new trial.    The motion was based on the defense learning, after the
instant trial in August 2013, that Jamison Kennedy had been an informant in a murder case

prosecuted by the Cuyahoga County Prosecutor’s Office that went to trial nine months earlier, in

October 2012. She argues the state’s failure to disclose same denied the defense impeachment

material against Kennedy, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963), and therefore she was entitled to a new trial.

          {¶101} Pursuant to Brady, the prosecutor is required to disclose exculpatory and

impeachment evidence that is material to guilt. Brady at 87. Evidence favorable to the

defendant is deemed material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different. United States

v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).                A “reasonable

probability” is a probability sufficient to undermine confidence in the outcome. Bagley at 669;

see also State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the

syllabus. The Supreme Court of Ohio cautioned that in order to find the undisclosed evidence

material, the omission must “‘reflect our overriding concern in the justice of the finding of

guilty,’” which means “‘the omission must be evaluated in the context of the entire record,’” and,

if “‘there is no reasonable doubt about guilt whether or not the additional evidence is considered,

there is no justification for a new trial.’” State v. Jackson, 57 Ohio St.3d 29, 34, 565 N.E.2d 549

(1991), quoting United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 49 L.Ed.2d 342

(1976).

          {¶102} In addition, it is the defendant’s burden to prove a Brady violation and denial of

due process. Jackson at 33.

          {¶103} McFeeture contends that Kennedy’s testimony was the “centerpiece” of the state’s

case. According to her, there was no other evidence of a crime or anything linking her to
Podolak’s death.     She argues, therefore, the withheld information regarding Kennedy was

material within the meaning of Brady. Evaluating the undisclosed information in the context of

the entire record, as we are required to, we reject this contention.

       {¶104} Kennedy’s testimony that McFeeture had confessed to him was certainly an

important part of the state’s case, but we cannot agree that it was the “centerpiece” of the state’s

case, especially in light of the credibility concerns that came with his testimony.          A fair

evaluation of the evidence in this case shows the key witness in this case was medical examiner

Dr. Galita: he performed the autopsy and provided extensive testimony regarding his findings

showing Podolak died of chronic intoxication of a chemical found in antifreeze, which ruled out

suicide.

       {¶105} The undisclosed information that Kennedy was an informant in another case was

no doubt significant. It might have been utilized as impeachment evidence. To enhance

fairness, it should have been provided to the defense. However, a review of the transcript

shows that Kennedy’s credibility was very aggressively attacked by the defense at trial.         As

such, the undisclosed evidence would only furnish an additional basis to challenge his credibility,

and therefore, it would be considered cumulative, not material. See Robinson v. Mills, 592 F.3d

730, 736 (6th Cir. 2010) (where the undisclosed evidence merely furnishes an additional basis on

which to challenge a witness whose credibility has already been        shown to be questionable or

who is subject to extensive attack by other evidence, the undisclosed evidence may be

cumulative, not material).

       {¶106} Accordingly, we conclude the undisclosed information is not so material for

Brady purposes as to give rise to a reasonable probability that the outcome of the jury trial would
have been different if the information had been disclosed to the defense prior to trial.   The fifth

assignment of error is without merit.

                         H. Motion in Limine: Dr. Galita’s Testimony

       {¶107} For her sixth assigned error, McFeeture contends that the trial court erred in

denying her motion in limine that sought to prohibit Dr. Galita’s expert testimony.

       {¶108} Evid.R. 702 governs expert witness testimony and provides as follows:

       A witness may testify as an expert if all of the following apply:

       (A) The witness’ testimony either relates to matters beyond the knowledge or
       experience possessed by lay persons or dispels a misconception common among
       lay persons;

       (B) The witness is qualified as an expert by specialized knowledge, skill,
       experience, training, or education regarding the subject matter of the testimony;

       (C) The witness’ testimony is based on reliable scientific, technical, or other
       specialized information. To the extent that the testimony reports the result of a
       procedure, test, or experiment, the testimony is reliable only if all of the following
       apply:

               (1) The theory upon which the procedure, test, or experiment is
               based is objectively verifiable or is validly derived from widely
               accepted knowledge, facts, or principles;

               (2) The design of the procedure, test, or experiment reliably
               implements the theory;

             (3) The particular procedure, test, or experiment was conducted in
             a way that will yield an accurate result.
       {¶109} The trial court properly allowed Dr. Galita, who performed the autopsy of

Podolak, to testify as an expert as to his findings. The Ohio Supreme Court has held that the

“coroner is a medical expert rendering an expert opinion on a medical question.”           Vargo v.
Travelers Ins. Co., 34 Ohio St.3d 27, 30, 516 N.E.2d 226 (1987), citing State v. Cousin, 5 Ohio

App.3d 32, 449 N.E.2d 32, 37 (3d Dist.1982).1

       {¶110} At the hearing on McFeeture’s motion in limine, Dr. Galita testified that he had

performed approximately 3,500 autopsies. Further, Dr. Galita testified that even though chronic

poisoning by ethylene glycol is not widely reported in the medical literature, it is well established

that chemical myocarditis takes several weeks to develop following a non-lethal ingestion of

ethylene glycol.   Dr. Galita further testified that his findings were subjected to peer review

within the coroner’s office.

       {¶111} The defense and Dr. Bux disagreed with Dr. Galita’s findings.            That does not

mean that he was not qualified as an expert.       On this record, we find that Dr. Galita met the

requirements to provide expert testimony, and the trial court properly denied McFeeture’s motion

in limine to exclude his testimony.

       {¶112} Within this assignment of error, McFeeture also contends, citing R.C. 313.19, that

the coroner did not utilize the proper mechanism for changing the manner of death.

Specifically, McFeeture contends that a hearing should have been held in the common pleas

court prior to the change. McFeeture misreads the statute.



         “Under R.C. 313.02, certain professional training and qualification as a physician are the
       1


basic qualifications for the office. The coroner is charged with autopsies and making certain medical
findings. Bodies are buried or cremated ultimately and examination immediately by a qualified
expert is quite essential to make determination of the causes of death while the evidence is available.
But this pertains to the medical or physiological cause of death and it is reasonably clear why this
determination could be given a presumption of validity. This constitutes a medical opinion on a
medical question. The evidence necessary to the determination is only available during a relatively
short period, and the matter is peculiarly within the special area of expertise of the coroner.” Cousin
at 34.
       {¶113} R.C. 313.19 provides as follows:

       The cause of death and the manner and mode in which the death occurred, as
       delivered by the coroner and incorporated in the coroner’s verdict and in the death
       certificate filed with the division of vital statistics, shall be the legally accepted
       manner and mode in which such death occurred, and the legally accepted cause of
       death, unless the court of common pleas of the county in which the death
       occurred, after a hearing, directs the coroner to change his decision as to such
       cause and manner and mode of death.

(Emphasis added.)

       {¶114} Thus, under R.C. 313.19, a hearing is required if the court directs the coroner to

change his report. R.C. 313.19 contemplates situations like the one presented in Perez v.

Cleveland, Cty. Coroner, 78 Ohio St.3d 376, 678 N.E.2d 537 (1997), where the parents of the

deceased child filed a declaratory judgment action seeking to have the trial court direct the

coroner to change the manner of death.

       {¶115} Neither Perez nor R.C. 313.19 direct a hearing when, as here, the coroner amends

the autopsy report on his own. Thus, the hearing requirement under R.C. 313.19 was not

implicated. The sixth assignment of error is overruled.

                                     I. Preindictment Delay

       {¶116} In her final assignment of error, McFeeture contends that her rights were violated

by undue preindictment delay.    She argues she was prejudiced by the lapse of six years between

the death in July 2006 and the indictment issued in July 2012. McFeeture never raised this

issue at the trial court level. Thus, we review for plain error.

       {¶117} A defendant’s due process rights can be violated by preindictment delay under

certain circumstances. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d

468 (1971); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

“An unjustifiable delay between the commission of an offense and a defendant’s indictment
therefor, which results in actual prejudice to the defendant, is a violation of the right to due

process of law * * *.” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph

two of the syllabus.

       {¶118} Courts apply a two-part test to determine whether preindictment delay constitutes

a due process violation. The defendant has the initial burden to show that he was substantially

and actually prejudiced due to the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d

1199 (1998). The burden then shifts to the state to produce evidence of a justifiable reason for

the delay. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829. Thereafter,

the due process inquiry involves a balancing test by the court, weighing the reasons for the delay

against the prejudice to the defendant, in light of the length of the delay.   Id. at ¶ 51.

       {¶119} In reviewing preindictment delay, the determination of actual or substantial

prejudice entails “a delicate judgment based on the circumstances of each case.” Id. at ¶ 52.

The court must consider “the evidence as it exists when the indictment is filed and the prejudice

the defendant will suffer at trial due to the delay.” Id. Prejudice is not presumed solely due to

a lengthy delay. State v. Copeland, 8th Dist. Cuyahoga No. 89455, 2008-Ohio-234, ¶ 13.

Further, the defendant may not rely on speculation or vague assertions of prejudice. State v.

Clemons, 2013-Ohio-5131, 2 N.E.3d 930, ¶ 17 (8th Dist.). Rather, “proof of actual prejudice

must be specific, particularized and non-speculative.” State v. Stricker, 10th Dist. Franklin No.

03AP-746, 2004-Ohio-3557, ¶ 36.

       {¶120} Specifically, a defendant must show how lost witnesses and physical evidence

would have proven the defendant’s asserted defense. State v. Davis, 7th Dist. Mahoning No. 05

MA 235, 2007-Ohio-7216, ¶ 17 (“Without proof of prejudice, meaning something which
adversely affects [a defendant’s] ability to defend himself at trial, there is no due process

violation for preindictment delay in prosecution.”).

       {¶121} Reviewing for plain error, we find none. We are not persuaded by McFeeture’s

contention that she was prejudiced because Drs. Balraj and Miller were no longer employed by

the coroner’s office at the time of trial. As we have discussed at length, medical examiner Dr.

Galita performed the autopsy and was personally involved in the homicide investigation of the

coroner’s office. He provided lengthy testimony regarding both the change and manner of death

and was subject to extensive cross-examination.          We do not perceive any prejudice to

McFeeture due to the absence of Balraj and Miller from trial.

       {¶122} McFeeture also complains the Detective Bobby Moore, who was the lead

detective in this case from 2006 to 2011 but had since retired, did not testify.   Several police

officers involved in this case provided testimony regarding their investigation. McFeeture does

not demonstrate how the absence of Detective Moore prejudiced her.

       {¶123} The record reflects that the homicide investigation in this case began immediately

after the coroner’s office released the autopsy report finding Podolak died of chronic

intoxication. The investigation continued until the trial. There was no evidence that the state

delayed the indictment to gain a tactical advantage. United States v. Lovasco, 431 U.S. 783, 97

S.Ct. 2044, 52 L.Ed.2d 752 (1977). The seventh assignment of error is without merit.

       {¶124} In summary, this court is fully satisfied that the constitutional, statutory, and

procedural rules of trial, all mandated to ensure due process, were fully complied with in this

proceeding.   Matthew Podolak’s life was taken in 2006. From 2006 through the trial in 2013,

the combined forces of forensic scientists and law enforcement investigators labored to

ultimately present the evidence necessary to produce a just result.
       {¶125} The rare and unique nature of the homicide of Matthew Podolak was such that

careful forensic investigation over many months was necessary to identify the cause of his death.

 After that was achieved, years of investigation were required to determine that his death was

homicide.   These realities of the painstaking development of evidence over several years do not

reflect weakness in the process and outcome — just the opposite. The quilt of evidence that led

to the 2013 conviction was sewn together evermore strongly as the result of time and diligence.

The history of evidentiary development in this case reflects forensic and legal craftsmanship, not

procedural error.

       {¶126} The jury returned a just verdict.   We affirm their verdict today.

       {¶127} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
LARRY A. JONES, SR., P.J., DISSENTS


LARRY A. JONES, SR., P.J., DISSENTING:
       {¶128} I respectfully dissent. I believe that the admission of the 2010 amended autopsy

report was plain error and trial counsel was ineffective for not objecting to it. I also believe that

the trial court erred by not granting McFeeture’s motion for a new trial. I would, therefore,

reverse the conviction and remand the case for a new trial.

       {¶129} My view of this case is informed, in large part, by three things. First, the time

line of events. Podolak died in 2006. In January 2007, the autopsy report with Dr. Galita’s

findings was released.     By 2008, the police had Kennedy’s statement that McFeeture had

confessed to him. In 2010, the autopsy report was amended. In 2011, McFeeture was indicted,

but the state dismissed her case. In 2012, she was reindicted in this case.

       {¶130} Second, after careful review of the record, it is clear to me that from the time of

Podolak’s death in 2006, his family and friends believed McFeeture was the perpetrator, and

mounted an aggressive campaign for law enforcement to bring her to justice.

       {¶131} Third, this was not an open and shut case. It involved a death for which the

cause was not widely researched in the medical community. There was no physical evidence

tying McFeeture to the death. The state’s “star witness,” Kennedy, was saddled with credibility

issues. The defense’s theory of the case — that Podolak had committed suicide — was not

completely preposterous:     Podolak had been depressed, sought treatment, and was taking

medications for his depression.

       {¶132} That said, I understand that as it now stands, the law generally allows for the

admission of an autopsy report and testimony regarding the report by an expert other than the

person who prepared the report as a business record exception to hearsay under Evid.R. 803(6).

But the admission is not absolute, and I believe that under the “primary purpose test,” there may
be instances, such as here, where the admission of an autopsy report constitutes testimonial

evidence.

       {¶133} The primary purpose test “examines the reasons for and purpose of the record in

question.

       To determine the primary purpose, a court must “objectively evaluat[e] the
       statements and action of the parties to the encounter” giving rise to the statements.


State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 49, quoting Michigan v.

Byrant, 562 U.S. ___, 131 S.Ct. 1143, 1162, 179 L.Ed.2d 93 (2011). “Simpler is not always

better, and courts making a ‘primary purpose’ assessment should not be unjustifiably restrained

from consulting all relevant information * * *.” Bryant at id.

       {¶134} After doing an objective evaluation of this record, I am left to conclude that the

primary purpose of the amended autopsy report was for use at trial against McFeeture.

       {¶135} In Maxwell, the expert, who did not perform the victim’s autopsy, testified that he

reached “his own independent judgment on the cause and manner of” the victim’s death based on

his analysis of the evidence in the autopsy report. Id. at ¶ 33, 53. The majority attempts to

likewise find here that Dr. Galita reached his own independent judgment on the manner of

Podolak’s death. I believe that, when closely examined, the sum and substance of Dr. Galita’s

testimony as to Podolak’s manner of death was “Dr. Miller made that determination.” I am

strained to find that he offered his own independent judgment on the manner of death.

       {¶136} It is true that Dr. Galita testified that after the manner of death was ruled

undetermined in the original autopsy report, he “immediately” requested a homicide

investigation. But I fail to find that he offered any testimony that reasonably could be construed
that he formed an independent judgment to change the manner of death from undetermined to

homicide.

          {¶137} For example, Dr. Galita testified that the “homicide investigation brought us two

bottles of antifreeze found in the garage * * *.” Those two bottles of antifreeze were found in

the garage of McFeeture’s home at a time when she no longer lived there, and it was determined

that the antifreeze found in Podolak’s system did not come from either of those two bottles. To

further complicate the matter, the antifreeze bottles were prominently displayed for the jury

throughout the trial.

          {¶138} Further, his vague testimony that he had “valuable information from different

other persons, [who] were interviewed in relation with this case,” without elaboration, leaves me

with the conclusion that Dr. Galita did not know any more about the manner of death at the time

he testified than he did in 2007 when he ruled it undetermined. I am at a loss to find what the

“additional information” was, other than mounting pressure from Podolak’s family and friends.

In short, his testimony as to the manner of death reads to me like “I had a hunch it was homicide

in 2007 and I still have the same hunch.” Mere hunches, however, do not pass constitutional

muster.

          {¶139} I understand the evidentiary concerns that arise with autopsy reports, such as the

expert who conducted the autopsy being deceased or otherwise unavailable at the time of trial,

and the impossibility of a second autopsy being performed in some instances because of

cremation or the passage of time. But I am not advocating for a blanket reversal of the law

governing their admission. Rather, I am merely expressing my opinion that, under the particular

circumstances of this case, McFeeture was not afforded, as guaranteed by the Sixth

Amendment’s Confrontation Clause, her “right * * * to be confronted with the witnesses against”
her as it related to the amended autopsy report. I am unable to find that this was not a manifest

miscarriage of justice.

       {¶140} Thus, I think admission of the amended autopsy report without the testimony of

Dr. Miller to explain, and be subjected to cross-examination on, what exactly was different from

2007 to 2010 to cause the change in Podolak’s manner of death, was plain error. I also think

counsel was ineffective for not challenging the admission of the amended report on this ground.

       {¶141} In addition to finding that McFeeture’s right to confront her accusers was

violated, I also believe that her motion for a new trial should have been granted. The majority

writes that the “undisclosed information that Kennedy was an informant in another case was no

doubt significant. It might have been utilized as impeachment evidence. To enhance fairness,

it should have been provided to the defense.” I agree with the majority’s statements, with one

alteration: it would have been used as impeachment evidence. I am unable to say that the

withheld information was merely cumulative, and that the result of the trial would not have been

different had the defense been able to cross-examine Kennedy about his testimony in another

murder trial.

       {¶142} For the reasons stated above, I dissent.
