[Cite as State v. Leffel, 2019-Ohio-1840.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                      ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                     :        OPINION

                    Plaintiff-Appellee,             :
                                                             CASE NO. 2017-A-0085
          - vs -                                    :

 MARISA ANN LEFFEL,                                 :

                    Defendant-Appellant.            :


 Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR
 00162.

 Judgment: Affirmed


 Nicholas A. Iarocci, Ashtabula County Prosecutor and Shelley M. Pratt, Assistant
 Prosecutor, 25 West Jefferson Street, Jefferson, Ohio 44047 (For Plaintiff-Appellee).

 Michael A. Partlow, 112 S. Water Street, Suite C, Kent, Ohio 44240 (For Defendant-
 Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}       Appellant, Marisa Leffel, appeals her involuntary manslaughter conviction

and sentence following a jury trial. We affirm.

        {¶2}       Leffel was originally charged with three counts of involuntary manslaughter,

corrupting another with drugs, aggravated trafficking, and trafficking heroin. All six counts

are based on Leffel’s delivery of drugs to Eric Andrus, which resulted in his fatal overdose

on January 12, 2016. A jury found her guilty of all counts.
       {¶3}   The trial court merged all counts for sentencing, and the state elected to

proceed with sentencing on count one, involuntary manslaughter, a first-degree felony in

violation of R.C. 2903.04(A) predicated on Leffel’s violation of R.C. 2925.02(A)(3),

corrupting another with drugs. She was sentenced to ten years in prison. We granted

her motion for a delayed appeal.

       {¶4}   Leffel raises four assigned errors:

       {¶5}   “[1.] The jury’s verdict convicting the appellant are not supported by

sufficient evidence.

       {¶6}   “[2.] The appellant’s convictions are against the manifest weight of the

evidence.

       {¶7}   “[3.] The trial court erred and abused its discretion by sentencing appellant

to the maximum penalty allowed by law.

       {¶8}   “[4.] The trial court committed plain error by failing to give the jury instruction

contained in Ohio Jury instructions concerning accomplice testimony.”

       {¶9}   We collectively address her first and second assigned errors challenging

the sufficiency of the evidence and claiming that her conviction is against the manifest

weight of the evidence. Leffel’s defense theory was that she and Spurlock brought drugs

into the condo that night with no intent to sell them, but that Andrus stole their drugs and

money without their knowledge, which they did not learn about until after leaving. She

argues that she did not voluntarily supply him with any drugs.

       {¶10} Upon reviewing a record for sufficiency, “‘[t]he 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




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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). ‘[T]he weight to be given the evidence and the credibility of the witnesses are

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

(1967), paragraph one of the syllabus.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-

1019, 9 N.E.3d 930, ¶146.

       {¶11} “In viewing a sufficiency of the evidence argument, the evidence and all

rational inferences are evaluated in the light most favorable to the prosecution. See State

v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed

on grounds of sufficiency unless the reviewing court determines that no rational juror

could have found the elements of the offense proven beyond a reasonable doubt. Id.”

State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, 96 N.E.3d 1046,

¶95, appeal not allowed, 151 Ohio St.3d 1515, 2018-Ohio-365, 90 N.E.3d 952.

       {¶12} When        “determining     whether      a   criminal    conviction     is   against

the manifest weight of the evidence, an appellate court must review the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of witnesses,

and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

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

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶119.

       {¶13} “* * * But the weight and credibility of evidence are to be determined by the

trier of fact. * * * The trier of fact is free to believe all, part, or none of the testimony of any

witness, and we defer to the trier of fact on evidentiary weight and credibility issues




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because it is in the best position to gauge the witnesses' demeanor, gestures, and voice

inflections, and to use these observations to weigh their credibility. * * *.” State v. Miller,

4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶27-28.

       {¶14} A finding that a conviction is not against the manifest weight of the evidence

necessarily encompasses a sufficiency finding as well.          State v. Skeins, 11th Dist.

Trumbull No. 2017-T-0018, 2018-Ohio-134, ¶10, citing State v. McGowan, 7th Dist.

Jefferson No. 14JE37, 2016-Ohio-48, ¶4.

       {¶15} R.C. 2903.04(A), involuntary manslaughter, prohibits a person from causing

“the death of another * * * as a proximate result of the offender's committing or attempting

to commit a felony.”

       {¶16} “The term ‘proximate          result’ used    in R.C.     2903.04,    involuntary

manslaughter, mandates that a person will be criminally responsible for causing the death

of another only where the consequences of his conduct are direct, normal, and

reasonably inevitable when viewed in the light of ordinary experience.”              State v.

Sabatine, 64 Ohio App.3d 556, 560, 582 N.E.2d 34 (8th Dist.1989); State v. Losey, 23

Ohio App.3d 93, 95, 491 N.E.2d 379 (10th Dist.1985) (“‘[P]roximate result’ bears a

resemblance to the concept of ‘proximate cause’ in that defendant will be held responsible

for those foreseeable consequences which are known to be, or should be known to be,

within the scope of the risk created by his conduct.”).

       {¶17} Involuntary manslaughter is a crime of transferred intent. Stanley v. Turner,

6 F.3d 399, 402 (6th Cir.1993), citing State v. Losey, 23 Ohio App.3d 93, 491 N.E.2d 379

(1985). Thus, the requisite culpable mental state is the same as the culpable mental state

of the underlying offense. Id.




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      {¶18} Here, the predicate felony is corrupting another with drugs, in violation of

R.C. 2925.02(A)(3)(C)(1), which states:

      {¶19} “(A) No person shall knowingly do any of the following:

      {¶20} “* * *

      {¶21} “(3) By any means, * * * furnish to another or induce or cause another to

use a controlled substance, and thereby cause serious physical harm to the other person,

or cause the other person to become drug dependent;

      {¶22} “* * *

      {¶23} “(C) Whoever violates this section is guilty of corrupting another with drugs.”

      {¶24} “Black's Law Dictionary * * * defines ‘furnish’ to mean ‘[t]o supply, provide,

or equip, for accomplishment of a particular purpose.’” State v. Schwab, 4th Dist. Athens

No. 12CA39, 2014-Ohio-336, ¶9.

      {¶25} On January 11, 2016, Andrus met with his probation officer and tested

negative for drugs.    He was coherent and later had dinner with his mother at

approximately 7 p.m. She left him alone for the night inside Andrus’ father’s condo, which

was locked from the outside. Only his mother, father, and sister had access. Andrus’

parents are divorced but were working together to help him maintain his sobriety after his

misdemeanor drug abuse and theft convictions. His mother received a call on January

12, 2016 that her son had passed away. He was 24 years old.

      {¶26} Andrus’ phone was in his mother’s name and she gave police consent to

search it. He had contacted approximately 14 different people that day. The review of

his phone showed that he was Facebook messaging Shawna Spurlock searching for

drugs. He asks her to help him find some “H” or some “boy,” slang for heroin. Andrus




                                            5
then messages Spurlock telling her that he has cash and feels sick. He also notes that

he would be ok with “speed.”

       {¶27} Spurlock testified that she and Leffel were dating for a while, engaged to be

married, and living with Leffel’s mother. The police identified Spurlock as a suspect upon

examining her message history with Andrus.

       {¶28} Spurlock initially gave conflicting versions of that night to police, which were

before the jury. She first told police that she and Leffel drove to “hang out” with Andrus

because he was dope sick. And while they led Andrus to believe they were bringing him

drugs, they did not. They climbed up the balcony to help him. Spurlock then changed

her story and said they did bring drugs into his condo, but that they did not give Andrus

any. Spurlock explained they each used their own drugs before leaving his condo, and

after they left, they realized Andrus had stolen their drugs.

       {¶29} Spurlock testified as to her final version of the night in question at trial, and

admitted she had initially lied to police. Spurlock confirmed that Andrus was Facebook

messaging her looking for heroin, and she instructed him to text her instead. Spurlock

confirmed that she had used heroin earlier that day. Leffel had “white china” heroin, which

Spurlock described as much stronger than other heroin she had used. In response to

Andrus’ numerous requests, Spurlock and Leffel drove to his condo to sell him heroin.

Spurlock explained Leffel was also texting Andrus with Spurlock’s phone and that Leffel

and Andrus negotiated the amount and price of the drugs he was buying.

       {¶30} Spurlock drove her car and when they arrived at the condo, Leffel got out

for about 10 minutes to sell Andrus the heroin. Leffel came back to Spurlock’s car yelling

that he had robbed her. Leffel explained that she “stepped onto the balcony and * * *




                                              6
handed him the dope. And he shut the sliding glass door,” and “he never came back with

the money.”

      {¶31} Spurlock pleaded guilty to corrupting another with drugs in exchange for her

testimony at Leffel’s trial. She was sentenced to four years in prison.

      {¶32} The text and Facebook messages on Andrus’ phone are consistent with

Spurlock’s trial testimony. Spurlock said that Leffel was using her phone to negotiate the

exchange. One message asks him “how much” and “where to,” and then states, “I’ll give

you the 10 sack, u gimme the 10 bucks * * * if you like it and want more then you can call

me back, and I’ll bring you more.”

      {¶33} At 11:39 p.m. a message from Spurlock’s phone instructs Andrus to delete

her number and messages and advises him to message Spurlock on Facebook when he

wants more.

      {¶34} Andrus’ later text says, “I’m just trying to get high * * * I hit up like 20 ppl.

Parents are trying to keep me clean.” At 12:31 a.m., a message from Spurlock’s phone

to Andrus states she is almost there. At 12:39 a.m., his message to Spurlock says, “Was

this a 5 sack lol cmon now,” and her text response states, “Did you seriously just rob me?”

Andrus’ messages stop after that, but the messages from Spurlock’s phone to his

continued and consisted of threats to Andrus. Spurlock testified that Leffel sent him the

threatening messages because he did not pay.

      {¶35} Andrus did not answer his father’s texts and calls the next morning. He had

overdosed and died as a result of the combined effect of fentanyl and opiates.

      {¶36} Leffel did not testify at trial.       But she also spoke with police and her

statement was admitted at trial. Leffel explained to police that she had gone to Cleveland




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three times to purchase drugs. She bought enough for her personal use and extra to sell.

She denied selling Andrus drugs on the night in question. She initially told police that she

and Spurlock just went to visit, and they had no drugs with them. To explain away the

texts about Andrus robbing them, Leffel told police that he stole money from her wallet.

Leffel also changes her story. At the conclusion of her police interview, she admits that

the women had drugs with them in Andrus’ condo, but they never intended to sell him

any. Instead, she explains that he had his own bag of drugs and that he also stole their

drugs and money.

       {¶37} Leffel first argues that there was no evidence before the jury to establish

that she voluntarily supplied Andrus with drugs; instead she claims she established that

he robbed her and took the drugs from her against her will. We disagree.

       {¶38} Spurlock’s testimony and the corresponding messages on Andrus’ phone

establish that the two women drove to his condo to sell him heroin and that upon arriving,

Leffel delivered the heroin to him, but did not get paid. Andrus was home alone and

locked inside. After receiving the drugs, he messaged Spurlock complaining about the

quantity of drugs. Thereafter, his messages stopped even though the women continued

to text him. Andrus was found dead the next morning. The toxicology report showed he

had lethal levels of fentanyl and morphine, or broken-down heroin, in his blood. Heroin

is often mixed with fentanyl.

       {¶39} The evidence establishes that Leffel knowingly delivered heroin to Andrus,

who was locked in his condo and drug sick. After Leffel left, Andrus used the heroin,

overdosed, and died as a result. Thus, a jury could reasonably find that Leffel knowingly

furnished Andrus with the heroin, and his use of the drug proximately resulted in his death.




                                             8
And death by overdose is a foreseeable consequence of heroin use and consequently, a

foreseeable result or should be a foreseeable result of furnishing another with drugs.

State v. Carpenter, 3rd Dist. Seneca No. 13-18-16, 2019-Ohio-58, __ N.E.3d __, ¶63;

State v. Sabo, 3d Dist. Union No. 14-09-33, 2010-Ohio-1261, 2010 WL 1173088, ¶25;

State v. Losey, 23 Ohio App.3d 93, 95, 491 N.E.2d 379 (10th Dist.1985) (finding that

death reasonably “could be anticipated by an ordinarily prudent person as likely to result

under these or similar circumstances.”).

       {¶40} And contrary to Leffel’s argument, the jury did not lose its way upon

believing Spurlock’s trial testimony. Her criminal history and prior versions were before

the jury for its consideration, as the trier of fact. Accordingly, Leffel’s first and second

assigned errors lack merit and are overruled.

       {¶41} Leffel’s third assignment contends the trial court abused its discretion upon

imposing the maximum sentence and claims the court erroneously imposed a harsher

punishment on Leffel than Spurlock because Leffel chose to go to trial. We disagree.

       {¶42} First, Leffel’s argument improperly states that she received the maximum

penalty for her conviction. The applicable maximum prison term for a violation of R.C.

2903.04(A) is 11 years, not ten. R.C. 2929.14(A)(1).

       {¶43} Moreover, there is no right to parity in sentencing and “‘no requirement that

co-defendants receive equal sentences[,]’ and as such, a defendant cannot challenge his

sentence because it is disproportionate from that of his codefendant's.” State v. Sankey,

11th Dist. Ashtabula No. 2017-A-0080, 2018-Ohio-2677, ¶10, quoting State v. Lloyd, 11th

Dist. Lake No. 2002-L-069, 2003-Ohio-6417, ¶21. “Instead, trial courts have discretion in

imposing a prison term within the statutory range and are required to assess the




                                             9
applicable sentencing factors upon imposing a defendant's sentence. R.C. 2929.12(A).”

Id.

       {¶44} Finally, our review of sentencing issues is dictated by R.C. 2953.08(G)(2),

which states:

       {¶45} “(2) The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

       {¶46} “The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court's standard for review is not

whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds either of the following:

       {¶47} “(a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14,

or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

       {¶48} “(b) That the sentence is otherwise contrary to law.” (Emphasis added.)

       {¶49} Here, the trial court imposed a ten-year sentence, which is on the high-end

of the sentencing range. But upon reviewing the sentencing factors, the trial court noted

that Leffel has a lengthy criminal history, including one juvenile adjudication and several

convictions while an adult. The court also emphasized that Leffel committed the instant

offense while on community control for a felony conviction in an adjacent county and that

Leffel showed a complete lack of remorse for her actions that caused the loss of Andrus’

life. Leffel does not challenge the court’s statements in this regard.




                                              10
         {¶50} Accordingly, we do not clearly and convincingly find that her sentence is

contrary to law or unsupported by the record. Thus, her third assignment lacks merit.

         {¶51} Leffel’s fourth and final argument claims that the trial court committed plain

error upon instructing the jury because a recitation of 2 CR OJI 409.17 is required when

an accomplice testifies against a defendant.

         {¶52} Because Leffel did not object at trial on this basis, she waives all but plain

error.     State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).                   “Notice

of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph

three of the syllabus. Plain error occurs when but for the error, the outcome of the trial

clearly would have been otherwise, and errors of this magnitude may be recognized even

when an appellant does not object at trial. Id. at 96-97; Crim.R. 52(B).

         {¶53} Regardless, a verbatim recitation of applicable jury instructions are not

required at trial. To the contrary, the court’s instructions to the jury should communicate

the law and controlling legal principles pertinent to the case. State v. Harris, 8th Dist.

Cuyahoga No. 104329, 2017-Ohio-2751, 90 N.E.3d 342, ¶65, appeal not allowed, 150

Ohio St.3d 1453, 2017-Ohio-8136, 83 N.E.3d 939.

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

         {¶55} “The testimony of an accomplice does not become inadmissible, because

of her complicity, moral turpitude, or self-interest, but the admitted or claimed complicity

of a witness may affect her credibility and make her testimony subject to grave suspicion

and require that it be weighed with great caution.”




                                               11
       {¶56}   And elsewhere, instructed “You are, as I have said to you earlier, the sole

judges of the facts.” The trial court instructions, therefore, communicate the law and legal

principles pertinent to weighing accomplice testimony with great caution. R.C. 2923.03

(D).

       {¶57} Accordingly, her fourth assigned error lacks merit.

       {¶58} The trial court’s decision is affirmed in full.



TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




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