[Cite as State v. Heckathorn, 2019-Ohio-1086.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                                         STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                DANIELLE L. HECKATHORN,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 17 CO 0011


                                 Criminal Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                   Case No. 15 CR 447

                                        BEFORE:
                Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.


                                             JUDGMENT:
                                       Affirmed and Remanded.


 Atty. Robert L. Herron, Prosecuting Attorney, Atty. Ryan P. Weikart, Assistant
 Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-
 Appellee and
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 Atty. Katherine R. Ross-Kinzie, Assistant State Public Defender, Atty. Carly M.
 Edelstein, Assistant State Public Defender, Office of the Ohio Public Defender, 250
 East Broad Street—Suite 1400, Columbus, Ohio 43215, for Defendant-Appellant.

                                 Dated: March 25, 2019


 Robb, J.

       {¶1}   Defendant-Appellant Danielle L. Heckathorn appeals after being convicted
of murder and other offenses in the Columbiana County Common Pleas Court. She
raises issues with: sufficiency of the evidence to show she was complicit to murder;
sufficiency of the evidence to support three counts of obstructing justice, claiming any
false information she provided the officers was for the purpose of hindering their
investigation of her rather than to hinder their case against another; admissibility of four
photographs of the victim showing his body was cut in half; ineffective assistance of
counsel for various reasons; cumulative error; and consecutive sentence findings.
       {¶2}   For the following reasons, Appellant’s convictions are affirmed, and the
case is remanded for the trial court to issue a nunc pro tunc sentencing entry incorporating
the consecutive sentence findings made at the sentencing hearing.
                                STATEMENT OF THE CASE
       {¶3}   On Sunday, March 8, 2015, a distressed man appeared at the Columbiana
County Sheriff’s Department to report that his neighbor, Daniel Landsberger, confessed
to killing a black male. Landsberger said the body was still in the bedroom of his trailer
packed in snow and he was thinking of cutting it up and burning the mattress. The trailer
was in a rural area with a steep, icy drive. The deputies attempted to gather support
personnel and four-wheel-drive vehicles, but they were not able to respond until the next
day.
       {¶4}   As a team from the sheriff’s department approached Landsberger’s trailer
on March 9, he met them outside and provided consent to search. (Tr. 285). He had four
scratches on the side of his neck that looked like fingernail scratches. (Tr. 288-289). The
remains of a mattress and box spring were still smoldering in a fire pit in the yard. (Tr.
287, 497). In the trailer, officers discovered blood in a bedroom containing an empty bed
frame, and the wall behind the bed had blood spatter in the shape of the headboard that



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was no longer present. (Tr. 286, 480, 487). Below this was a small area of carpet
saturated with blood. (Tr. 484). Objects near the adjacent wall also had blood spatter.
(Tr. 486). There was “cast-off” blood identified on the ceiling; a BCI investigator explained
this blood was cast from a moving object after it was used to hit a bleeding body. (Tr.
481, 485, 582). The bedroom appeared to have recently been used as a “walk-in cooler”
due to the lack of heat, open windows, six five-gallon buckets of melting snow, and a
rolled towel under the door. (Tr. 286, 290-291, 479).
       {¶5}   In Landsberger’s SUV, officers found a small area saturated with blood in
the cargo hold. (Tr. 502). Smears of blood were discovered on both rear passenger
lower door frames and the inside of the back hatch. (Tr. 504-506). While a dog warden
was attempting to secure a dog, a bag of dog food in a shed was opened and found to
contain bloody items such as bed sheets, plastic sheeting, a garbage bag, and clothing
(with an open condom in the pocket). (Tr. 397-398, 514-520). Another condom and
wrapper were recovered from the bedroom floor. (Tr. 491). No body or bloody weapon
was discovered on the property.
       {¶6}   Officers searched for Landsberger’s female friend whom they concluded
was Appellant Danielle Heckathorn (fka Eckhart). She was interviewed on Tuesday,
March 10, 2015, the day after Landsberger was arrested for tampering with evidence.
She said: Landsberger picked her up on Thursday; he had a black male named “Q” (the
victim) in his car; they went to certain places and then to Landsberger’s trailer; she and
Landsberger used cocaine that night which she believed the victim provided; the condom
in the bedroom may have been hers but was not from that night; when they were taking
her home, Landsberger stopped the car, told the victim to get out of the car, and
proceeded to beat him; Appellant locked the door out of fear, but the two men returned
acting friendly to each other; the victim got in the back seat bleeding from his nose;
Landsberger had scratches on his neck; and Landsberger took Appellant home. (Tr. 776-
786); (St.Ex. 27).
       {¶7}   When a detective expressed he did not believe her story, Appellant admitted
she had intercourse with both Landsberger and the victim that night, stating her services
constituted her payment for drugs. She said Landsberger “ripped” the victim out of the
car and beat him up in order to rob him; she also said the victim lost the crack cocaine



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during the fight, but they subsequently found it. (Tr. 788-789). She claimed the beating
occurred at a pull-off for a recreation area, pointed out the area on a map, and said she
could bring them to the location. She disclosed there was blood on the snow. (Tr. 803).
She insisted the victim was awake when they dropped her off at home around 2:00 a.m.
(Tr. 793).
       {¶8}   The detective received a photograph of Quinn Wilson after texting another
officer to say Appellant mentioned a black male named Q. Appellant identified the
photograph of the victim. (Tr. 749). She then announced that she had the victim’s phone,
stating she used it because her phone had no service. When asked if she deleted
messages from the victim’s phone, she assured the detective she deleted no messages
from his phone. (Tr. 791). She said she did not speak to Landsberger after the incident.
(Tr. 793).
       {¶9}   Appellant thereafter added a new part to her story; she said Landsberger
instructed her to drive the car down the road during the beating. (Tr. 795). When
confronted with her different versions of the story, she revealed the pertinence of text
messages by claiming she thought Landsberger was joking when he texted her to say he
would beat the victim up and “take his shit.” (Tr. 797). She subsequently admitted going
to Landsberger’s residence a second time, after having sex in the bedroom but before the
robbery; she said this time Landsberger walked down to get vinegar in order to prepare
crack for injection while she and the victim waited in the car at the top of the icy drive.
(Tr. 798).
       {¶10} She said she deleted messages on her own phone (or her phone
automatically deleted messages) when the memory became full. (Tr. 933-936).              A
detective brought Appellant to the recreation area so she could direct him to the pull-off
where the incident allegedly occurred. (Tr. 948, 955). A search was conducted that day
and the next day, but no evidence of an altercation was uncovered. (Tr. 370-371, 949).
       {¶11} On Wednesday, March 11, 2015, a man who lived on a dirt road found the
victim’s body on a hill by the road. He reported seeing a loud blue truck on the road the
previous evening; after he thought it passed from hearing-distance, he heard its engine
start, making him suspect someone was dumping tires or a deer carcass as they had in
the past. (Tr. 461-463). When he inspected the property the next day, he found the



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bottom half of the body of a black male and then saw the top half of the body farther down
the hill. (Tr. 463-464). This location was 1.7 miles from where Appellant resided and 8.8
miles from Landsberger’s trailer. (Tr. 759-760).
       {¶12} The medical examiner concluded someone cut the body in half at the waist
after death, first using a sharp knife-like instrument and then cutting through the bones in
the pelvic area with a saw. (Tr. 1005-1006). The victim suffered multiple (at least 19)
chopping “blunt-force injuries” to the head with “features of sharp-force injury” caused by
an instrument such as a hatchet. (Tr. 1012). The blows caused: a broken lower jaw on
the left side; a left forehead injury; a base skull fracture which radiated from a hit on the
top of the head; open skull fractures oozing brain tissue; seven overlapping blows to the
right forehead and eye; blows to the right back of the head; crushed bones of the nose
and cheeks; and a split maxilla caused by two chops to the upper lip. (Tr. 1012-1019).
Death occurred within seconds to a few minutes after these blows. (Tr. 1022). The victim
also suffered a fractured right forearm prior to death which was not caused by a sharp
object (but could have been caused by the opposite side of the sharp-edged object). (Tr.
1007-1008). The medical examiner found no evidence of blows from a fist. (Tr. 1020).
       {¶13} The blood evidence from Landsberger’s property matched the victim’s DNA.
Appellant was a major contributor to the DNA on the condom from the bedroom floor. (Tr.
643). DNA on the condom from the pocket of the victim’s sweatshirt was a mixture
consistent with the victim, Landsberger, and Appellant. (Tr. 646).
       {¶14} The police conducted the second interview of Appellant on April 24, 2015.
She said she obtained the victim’s phone at approximately 1:00 a.m. She claimed she
listened to music on it, she tried to call a friend, and then it ran out of battery. She also
explained she did not have sex with Landsberger that night as he could not obtain an
erection; she had sex with the victim two times that night. (Tr. 808, 815). Appellant
mentioned a conversation on robbing the victim they had in person before the texts on
the subject. (Tr. 811). In describing the victim’s condition after the robbery, she said he
“was messed up” but not “terminal.” (Tr. 813). She said Landsberger asked the victim if
he wanted to go to the hospital.
       {¶15} Ohio’s BCI recovered data deleted from the victim’s phone, including forty-
four contacts between Appellant and the victim. (Tr. 701-702). The phones of Appellant



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and Landsberger were not smartphones and were sent to the FBI for data extraction. The
memory chip in Appellant’s phone had many bad sectors which could no longer be read.
(Tr. 691-692, 715). The recovered texts demonstrate these gaps in the data extraction.
(Tr. 834, 861). Besides texts, the phones also showed calls between Appellant and the
victim and between Appellant and Landsberger.
       {¶16} On Wednesday, March 4, 2015, the victim sent the following text at 3:08
a.m. telling Appellant: “I need that 800 so come thru for me make sure have some Yes
cash to or lease try the more the better.” After communications took place that are now
unrecoverable, Appellant told the victim: “And no u cant guarantee its what we need.
Even if everyone u know loves it. Some of the best stuff to others is worthless to us.”
Ten minutes later, she said, “Lmk when u gonna have some for me to test so we can get
the flo rollin if its good.” A few hours later, the victim indicated he could obtain “man” or
“boy” if she could provide a ride and money; a detective explained “man” or “boy” is heroin.
The victim spoke of his plan to have sex while he was in town. He also asked her to use
her connections to find him a place to operate. Appellant replied that she did not know a
place for him but did speak of providing him a “business opportunity” in Lisbon once she
tested his product.
       {¶17} At 6:35 a.m., Appellant told the victim to “get like a 20 off every person u
know that sell it. So we got better chance of findin the right stuff.” (A “20” was said to be
a portion of drugs.) While encouraging the victim to collect drugs for their next meeting,
Appellant disparaged the victim to Landsberger, encouraging Landsberger to rob the
victim. At 6:37 a.m., she texted Landsberger: “Remember our robbery conversation
yesterday?” (Emphasis added.) Six minutes later, she told Landsberger: “This nigger
dumb as fuck and he walkin around w a bunch of shit bumming rides from ppl he don’t
know and rippin ppl off constantly. Hes ignorant, stupid, small, slow, and don’t carry any
weapons.” (Emphasis added.)
       {¶18} Over the next hour, Appellant told the victim to collect as many different
kinds of “soft” that he could find “cuz soon as we find a winner we be getting major bank”
and “once we find it u gonna be movin some serious weight.” (A detective explained “soft”
referred to cocaine and “hard” referred to crack.) There was an indication the victim
wished to sell heroin and crack while Appellant was insisting on cocaine. Around 4:00



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p.m., Appellant told the victim she was on the way to pick him up; other texts indicated a
man drove them that evening.
       {¶19} The next day, Thursday, March 5, 2015, Appellant asked the victim if he
had gas money and said: “You still owe for yesterday. Idk if he gonna do it” and “he
hasn’t answered yet but he just got off work so give a min.” Around this same time,
Appellant texted Landsberger (at 3:33 p.m.) asking him to let her know when he finished
work and stating, “That dude wants ride to ytown said hed make up for yesterday. Should
rob him lol.” (Emphasis added.) At 6:07, Appellant texted Landsberger: “He getting da
hard on a front so he aint gonna be worth rippin til after ytown” and “Then we take him
out in da country n leave him..lol.” (Emphasis added.)
       {¶20} Landsberger sent multiple texts voicing he was “thinking about that hate
sex” and “thinking about that good hate sex.” He sent the following additional texts to
Appellant: “U want 2 make it fri thirteen”; “We beat emm tp”; and “Do u want him beat
up?” Appellant’s answers to these texts were not recovered.
       {¶21} At 9:38 p.m., Appellant wrote a message which was saved as a draft,
saying, “Its shootable.” A message saved as a draft is not a sent message. A message
can be saved as draft when a person starts typing but then: the person proceeds without
hitting send; the phone is shut down; the phone runs out of battery; or the phone loses
the signal. (Tr. 696-697).
       {¶22} At 12:53 a.m. (now Friday, March 6, 2015), Appellant sent a text to
Landsberger declaring: “Pick a place beat him n take his shit.” At 1:00 a.m., she texted
him explaining, “There is no one. We going out there to take his shit n leave.” (Emphasis
added.) At 1:07 a.m., she repeated, “We aren’t meeting anyone..u know this right?”
       {¶23} On the victim’s phone, a text was saved as a draft at 1:20 a.m. which stated,
“Jkill.” Appellant’s statement admitted she had possession of the victim’s phone at this
time. At 1:27 a.m., the victim’s phone sent a text to Landsberger with the following
instructions: “I dnt know u may have to do knock him out in here.” (Emphasis added.)
Appellant typed a message on her own phone, which was saved as a draft at 2:13 a.m.,
reading: “U got a crow bar? Knock him out and drag him out of carLa.” (Emphasis added.)
       {¶24} Landsberger sent a text to the victim’s phone: “Some dumb nigger salen
his shit. I Think I might of fucked him up and took his stuff. Was it ok?” At 3:41, Appellant



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used her phone to ask Landsberger, “Wat u do w him?” She also advised, “And u can
smk it. Recook.” Landsberger texted Appellant’s phone: “He be at my place. dont k just
yet what to” and then “This nigger stinks. Now I defenatily need to clean bed lin..he
sleeping.”
       {¶25} Appellant texted Landsberger at 5:22 a.m. to say “That def didn’t go as
plan,” and minutes later, she added, “Evidently I do have conscience.” (Emphasis added.)
Landsberger sent texts to Appellant asking for encouragement and worrying he would
“lose [her] over this.” Appellant texted Landsberger about being sick from drugs, and
Landsberger said he “got drunk last nite didn t get home till ten.” He told her, “Need to
deleat.” Appellant responded, “Am now” at 12:11 p.m. on Friday. That day, they texted
about Landsberger bringing more drugs to her house. He also texted, “No i ok not a
violent man just wanted to be with u .sorry for asking. I dont k what ur gone through.”
       {¶26} On October 15, 2015, after receiving the information extracted from the
three phones, the police conducted a third interview with Appellant. She said she had
sex with the victim in the trailer and later in Landsberger’s vehicle in his driveway while
Landsberger went to the trailer. She reiterated her story that she only saw a fight and
robbery at the recreation area which occurred after the visits to the trailer. She also
maintained that she only used the victim’s phone to listen to music and to call a friend
until the battery died. She expressed the robbery was not premeditated before the victim
entered the car; she also said she was not aware Landsberger planned to hurt the victim.
Some texts were then read to her to dispute this. She thereafter admitted texting from
the victim’s phone.
       {¶27} When asked about the text telling Landsberger he may “have to knock him
out in here,” she claimed “in here” referred to the car at the recreation area, not while they
were at the trailer; she denied being in the bedroom or present when Landsberger killed
the victim, claiming he was alive when they brought her home some time before 3:00 a.m.
She remembered her text about the crowbar, noting the plan was to beat up the victim.
Upon being asked why she texted Landsberger to say the night did not go as planned,
she replied, “I didn’t expect him to beat the living shit out of the guy.” After it was pointed
out that she suggested the crowbar, she responded, “I’m thinking knock him out. Not beat
‘em till he’s almost dead.” She said Landsberger was supposed to “conk ‘em in the head



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a couple times and grab his stuff an we were gonna go.” She estimated it was two
degrees outside that night.
       {¶28} On November 18, 2015, Appellant was indicted on seven counts:                  (1)
murder (for purposely causing the death of another by aiding and abetting Landsberger);
(2) tampering with evidence (for deleting evidence from the victim’s phone), a third degree
felony; (3) conspiracy to commit robbery (for inflicting, attempting to inflict, or threatening
physical harm while committing, attempting, or fleeing a theft offense), a third degree
felony; (4) complicity to the same robbery (by aiding and abetting Landsberger), a second
degree felony; and (5-7) obstructing justice (corresponding to the three police interviews),
third degree felonies due to the type of offense being investigated.
       {¶29} The case was tried to a jury over the course of five days. A stipulated
polygraph examination, administered in September 2016, was admitted into evidence
along with the examiner’s testimony. Appellant’s answers to the following four pre-
disclosed questions indicated deception: “Did you see Quinn murdered?” (answer: “No”);
“Were you in the bedroom when Quinn was murdered? (answer: “No”); “Was Quinn alive
the last time you saw him? (answer: “Yes”); and “Were you in the trailer when Quinn
was beaten to death? (answer: “No”). (Tr. 977-978).
       {¶30} In addition to all of the evidence reviewed above, the state presented the
testimony of a witness who testified the victim was one of her drug dealers. She said he
was not a typical dealer as he was caring and was not violent even when he was owed
money. (Tr. 422). Although the victim was generous, she said he would not lend out his
phone. (Tr. 444). She bought crack from the victim on the afternoon of March 5, 2015,
hours before his death. She thereafter went to her uncle’s residence where she saw
Appellant. Appellant indicated she would see the victim that night to repay a favor she
owed him. (Tr. 430-432). This witness learned the victim was dead the next day.
       {¶31} The defense called Appellant’s neighbor as a witness. Appellant lived with
her parents; she helped at the neighbor’s business and grew up with the neighbor’s
children. The neighbor testified she was awake doing paperwork on the night of March 5
turning into March 6, 2015. (Tr. 1060-1061). She saw a dark SUV pull in Appellant’s
driveway “sometime after 1:30, two o’clock.” (Tr. 1063). She said she used binoculars
and watched Appellant get out of the vehicle. (A detective testified the distance between



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the houses was 350 yards; and a map showed the neighbor’s house was located much
further back from the road than Appellant’s residence). The neighbor said she heard two
car doors shut, but the driver’s door stayed closed (apparently suggesting a second
passenger changed places after Appellant left the car).        (Tr. 1065).   The neighbor
admitted telling the police a year after the incident that this probably occurred closer to
3:30 a.m., but she pointed out she told them she would check her records. (Tr. 1079).
       {¶32} The jury found Appellant guilty of all charges.        The court sentenced
Appellant to: 15 years to life for murder; 12 months for tampering with evidence; 6 years
for robbery; and 12 months on each of the three counts of obstructing justice. The
conspiracy to commit robbery count was merged with the robbery count prior to
sentencing. The court ordered the sentences to run consecutively for a total sentence of
25 years to life.   Appellant filed a timely notice of appeal from the April 28, 2017
sentencing entry.
              ASSIGNMENT OF ERROR ONE: SUFFICIENCY FOR MURDER
       {¶33} Appellant sets forth six assignments of error, the first of which provides:
       “Danielle Heckathorn’s conviction for complicity to murder for the death of Quinn
Wilson was supported by insufficient evidence * * * [citations omitted].”
       {¶34} We begin by noting Appellant frames the sufficiency argument as the
invocation of plain error. Alternatively, within the fourth assignment of error, Appellant
contends counsel was ineffective to the extent counsel waived the issue by failing to move
for acquittal on the murder count. On this topic, criminal defense attorneys regularly move
for acquittal as a matter of custom, but the failure to so move does not necessarily render
trial counsel's performance deficient. State v. George, 9th Dist. No. 17CA0034-M, 2018-
Ohio-3930, ¶ 14. It has also been observed: “Failure to move for an acquittal under
Crim.R. 29 is not ineffective assistance of counsel, where the evidence in the State's case
demonstrates that reasonable minds can reach different conclusions as to whether the
elements of the charged offense have been proved beyond a reasonable doubt, and that
such a motion would have been fruitless.” State v. Stokes, 2d Dist. No. 2016-CA-4, 2016-
Ohio-7520, ¶ 17. In any event, the subject of sufficiency need not be considered under
the framework of ineffective assistance of counsel.




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        {¶35} Regardless of whether the defense files a motion, Crim.R. 29(A) requires
the trial court to grant an acquittal on its own motion if the evidence is insufficient to
support an offense. A defendant does not waive a sufficiency argument by failing to raise
the argument below as a not guilty plea preserves sufficiency arguments for purposes of
appeal. State v. Jones, 91 Ohio St.3d 335, 346, 744 N.E.2d 1163 (2001), citing State v.
Carter, 64 Ohio St.3d 218, 223, 594 N.E.2d 595 (1992). “The prosecution must prove
each and every element of the offense beyond a reasonable doubt.” Carter, 64 Ohio
St.3d at 223, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).   Hence, a defendant is not required to move for acquittal in order to raise
sufficiency of the evidence on appeal. In re J.M., 7th Dist. No. 12 JE 3, 2012-Ohio-5283,
¶ 34.
        {¶36} Whether the evidence is legally sufficient to sustain a conviction is a
question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency
review as the question is whether the evidence is sufficient if believed.        State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). See also Thompkins, 78 Ohio
St.3d at 390 (Cook, J., concurring) (sufficiency involves the state's burden of production
rather than its burden of persuasion).
        {¶37} A conviction cannot be reversed on grounds of sufficiency unless the
reviewing court determines, after viewing the evidence in the light most favorable to the
prosecution, that no rational juror could have found the elements of the offense proven
beyond a reasonable doubt. State v. Goff, 82 Ohio St.3d 123, 1998-Ohio-369, 694 N.E.2d
916 (1998). See also State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998) (the
question is merely whether any rational mind could find the elements were established).
The evidence and all rational inferences are evaluated in the state’s favor. See, e.g.,
State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999). Circumstantial evidence
inherently possesses the same probative value as direct evidence. State v. Treesh, 90
Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).
        {¶38} Appellant was convicted of complicity to murder in violation of R.C.
2903.02(A), which entails purposely causing the death of another. At trial, Appellant



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conceded she was complicit in the robbery. Appellant notes she was not charged with
complicity to “felony murder” under R.C. 2903.02(B), which entails causing the death of
another as a proximate result of the offender's committing or attempting to commit a first
or second degree felony offense of violence (unless that offense was manslaughter).
Appellant suggests the state relied on the mental state of knowingly or recklessly rather
than the required mental state of purposely, quoting R.C. 2901.22(B) and (C) which
provide: “A person acts knowingly, regardless of purpose, when the person is aware that
the person's conduct will probably cause a certain result or will probably be of a certain
nature”; and “A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that the person's
conduct is likely to cause a certain result or is likely to be of a certain nature.”
       {¶39} “A person acts purposely when it is the person's specific intention to cause
a certain result * * *.” R.C. 2901.22(A). A person who is complicit in the commission of
an offense “shall be prosecuted and punished as if he were a principal offender.” R.C.
2923.03(F) (and a complicity charge can be stated in terms of this statute or in terms of
the principal offense). This complicity statute provides: “No person, acting with the kind
of culpability required for the commission of an offense, shall * * * Aid or abet another in
committing the offense * * *.” R.C. 2923.03(A)(2). This requires an evaluation of whether
the relevant acts aided or abetted the principal in committing the offense and whether the
complicitor had the required intent.
       {¶40} The surrounding facts and circumstances can be used to determine a
defendant's intent. State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001);
Treesh, 90 Ohio St.3d at 485. “Participation in criminal intent may be inferred from
presence, companionship and conduct before and after the offense is committed.”
Johnson, 93 Ohio St.3d at 245. Acts which aided or abetted another include those which
“supported, assisted, encouraged, cooperated with, advised, or incited the principal in the
commission of the crime * * *.” Id.
       {¶41} Purpose to cause death may be inferred from the use of a deadly weapon
to inflict a wound calculated to destroy life. State v. Stallings, 89 Ohio St.3d 280, 291,
731 N.E.2d 159 (2000). The element of specific intent to cause death can be satisfied
“where the natural and probable consequence of the wrongful act done is to produce



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death.” In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 52-53
(2008). See also State v. Garner, 74 Ohio St.3d 49, 1995-Ohio-168, 656 N.E.2d 623
(1995) (where aggravated murder requires evidence beyond a reasonable doubt that it
was the specific intent of the defendant to have caused the death of another, evidence
he set fire to a house with sleeping children was sufficient of intent as their deaths were
natural and probable consequences regardless of the defendant’s claim he thought they
would awaken and flee); State v. Reddy, 192 Ohio App.3d 108, 2010-Ohio-5759, 948
N.E.2d 454, ¶ 37 (8th Dist.) (where the defendant admitted he intentionally pressed his
hands around his mother's neck but only with intent to render her unconscious, there was
specific intent to cause death as this is a natural and probable consequence of
strangulation).
       {¶42} “Based on the surrounding circumstances, which include the vulnerability of
the victim and the force with which the victim was struck, a blow to the head may be
probative of intent to kill.” State v. Clay, 10th Dist. No. 99AP-404 (Mar. 28, 2000).
Purposely instructing another to use a heavy metal tool, such as a crowbar, multiple times
on a robbery victim’s head is indicative of specific intent to cause death. See, e.g., State
v. Cook, 1st Dist. No. C-960252 (Dec. 19, 1997) (bringing stonemason’s hammer to
robbery); State v. Edwards, 26 Ohio App.3d 199, 200, 499 N.E.2d 352 (10th Dist.1985)
(hitting victim in head one time with a bannister railing). We also note Landsberger was
6’2” and estimated to weigh 250 to 280 pounds, and the victim was 5’6” (and his corpse
weighed 170 pounds). (Tr. 289, 1004). The act of robbing a victim who knows the thief
is also a consideration in ascertaining the purpose behind an assault during a robbery,
and Appellant knew the victim and had his phone prior to the assault. See, e.g., Cook,
1st Dist. No. C-960252.
       {¶43} Appellant challenges whether the following crowbar text should be used in
the sufficiency of the evidence analysis on aiding or abetting: “U got a crow bar? Knock
him out and drag him out of carLa.” This text was saved as a draft on her phone, and she
suggests it could not have encouraged Landsberger because there was no evidence it
was sent. However, Appellant said she was texting Landsberger while they were in the
car together with the victim. A person can show the person next to them a text they typed
without sending it (rather than orally expressing an incriminating plan in a third person’s



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presence). In addition, in the context of the conversation about why she encouraged
Landsberger’s actions, she admitted she remembered the crowbar text. When asked
why she asked if he had a crowbar, she answered: “To beat [him]. I don’t know. I’d never
been in that situation before.”
       {¶44} Furthermore, the authorities were unable to recover all texts from
Appellant’s phone due to bad memory sectors. Other incriminating texts were recovered
and clearly sent. For instance, Appellant sent a text at 1:27 a.m. from the victim’s phone
suggesting Landsberger “knock him out in here.” She told police she figured Landsberger
could hit the victim a few times in the face and he would be “out” and disclosed that the
plan did not flow as originally planned. She also said their plan was for Landsberger to
“conk” him on the head a few of times. The use of this term, along with mention of
knocking him out, suggests the plan involved the use of a hefty object to repeatedly hit
the victim’s head. The admitted plan after “conking” the victim on the head multiple times
in order to “knock him out” was to leave him unconscious without his phone in a rural area
in weather hovering near zero degrees.
       {¶45} Notably, the fact Appellant admitted to this part of the plan does not mean
this was the full plan and/or that plans did not evolve as the night progressed. In speaking
of the totality of the circumstances used to determine purpose to cause a death, it is often
stated: “The intent of an accused person dwells in his mind. Not being ascertainable by
the exercise of any or all of the senses, it can never be proved by the direct testimony of
a third person, and it need not be.” In re Washington, 81 Ohio St.3d 337, 340, 691 N.E.2d
285 (1998). Contrary to Appellant’s contention, the fact that some indicators of her
expressed intent were recovered in the form of text messages does not mean the fact-
finder can no longer consider the totality of the circumstances. In other words, the trier
of fact is not limited by the intent specifically expressed in what could be recovered,
especially where some texts were not recovered and the extent and content of live
conversations were unknown. Circumstantial evidence inherently possesses the same
probative value as direct evidence. Treesh, 90 Ohio St.3d at 485.
       {¶46} Appellant encouraged Landsberger to rob the victim before the victim was
picked up; she provided reasons to Landsberger by denigrating the victim (on grounds of
race, intellect, and morality), gave advice on timing, and spoke of location. At the same



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time, she encouraged the victim to bring a large variety of drugs under the guise of
assisting him in establishing a drug trade in Lisbon. Before the three met up that night,
Landsberger asked if Appellant wanted the victim beat up; he also asked if she wanted
to “make it fri thirteen” and spoke of “hate sex.” Appellant’s answers were not recovered
during the data extraction. They had phone and live conversations as well.
       {¶47} After the victim was picked up, Appellant put him at ease by engaging in
sex with him twice. Appellant and Landsberger were high on drugs. She was present
while instructing Landsberger to knock the victim out as can be seen in the language “in
here” in the text: “I dnt know u may have to do knock him out in here.” Notably, she
already had the victim’s phone at this point as she used the victim’s phone to send this
text to Landsberger. The crowbar draft reveals her intent (even if we were to assume for
the sake of argument that it was never communicated). And, the draft text “Jkill” saved
to the victim’s phone after Appellant commandeered his phone can be considered as part
of the totality of the circumstances as well. Appellant admitted she intended to be present
during the infliction of multiple head injuries and was present when Landsberger “beat the
shit out of” the victim.
       {¶48} The evidence indicated the victim was chopped in the face and head
multiple times with a sharp hatchet-like object. Blood spatter and cast off was found in
Landsberger’s bedroom with an empty bed frame and the mattress and box springs in the
fire pit. Appellant admitted they drove to Landsberger’s residence with the victim two
times that night. Although admittedly planning to rob and assault him, she had sex with
the victim both times; the first time in Landsberger’s bedroom where they tried to include
Landsberger whom she said could not perform. She claimed the second time they went
to Landsberger’s residence, only Landsberger entered the trailer and she stayed in the
car and had sex with the victim again. Merely because she told police her texts to
Landsberger with instructions were occurring while they were at a recreation area does
not require the jury to believe her claim; nor was the jury required to believe that she was
not present at Landsberger’s trailer when the victim was killed (whether a fight at the




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recreation area occurred or not). The jury was not bound by what Appellant claimed
happened or what Appellant claimed was her intent in the interview played at trial.1
        {¶49} As for her conduct subsequent to the incident, she asked what Landsberger
did with the victim. Landsberger responded that the victim was at his trailer, the victim
“stinks,” the bed needed cleaned, and he did not know what to do with the victim yet. She
thereafter mentioned having a conscience.                   She continued to communicate with
Landsberger about bringing her drugs. They also spoke about deleting information.
Appellant deleted messages from the victim’s phone, and messages were deleted from
her phone. Appellant was also not forthcoming with information during her interviews and
provided false information.
        {¶50} Viewing all the evidence and rational inferences in the light most favorable
to the state, some rational juror could find Appellant purposely aided or abetted
Landsberger in purposely causing the victim’s death and thereby committed murder by
complicity. Appellant’s first assignment of error is overruled as there was sufficient
evidence to support the murder conviction. The corresponding portion of Appellant’s
fourth assignment of error alleging ineffective assistance of counsel is also overruled as
the failure to move for an acquittal on the murder charge was not deficient performance
or prejudicial.
             ASSIGNMENT OF ERROR TWO: SUFFICIENCY FOR OBSTRUCTING
        {¶51} Appellant’s second assignment of error contends:
        “Danielle Heckathorn’s convictions for obstructing justice were supported by
insufficient evidence * * * [citations omitted].”
        {¶52} Appellant was convicted of three counts of obstructing justice for statements
made during each of the three interviews with police. For instance, she denied deleting
messages from the victim’s phone at the first and third interviews. At the second and third
interviews, she claimed she only used it for music and to call a friend (later admitting she

1 Credibility concerns the weight of the evidence. Besides observing her demeanor and other cues, the jury
was able to utilize the stipulated polygraph results to ascertain her credibility during the interview. The
results indicated deception on key questions, including whether the victim was alive when she last saw him,
whether she saw the victim murdered, and whether she was in the trailer and in the bedroom when the
victim was murdered. As Appellant points out, the results of a stipulated polygraph examination are
“admissible in evidence in a criminal trial for purposes of corroboration or impeachment,” but the examiner’s
testimony “does not tend to prove or disprove any element of the crime.” State v. Souel, 53 Ohio St.2d
123, 372 N.E.2d 1318 (1978), syllabus.


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used it to text). At the first interview, she denied being complicit in the robbery, but she
admitted her complicity in a subsequent interview.       She originally said Landsberger
already had the victim with him when she joined them. She suggested she refused to
speak to Landsberger after the incident, but texts later showed she continued
communicating with him.
       {¶53} At one point in the first interview, she said the condom would not have been
from that night; she then said she had sex with both Landsberger and the victim that night.
In the second interview, she said she did not have sex with Landsberger that night. Also
in the second interview, she said she could not believe Landsberger assaulted the victim
and stole from him. Yet, in the third interview, she admitted her involvement in a plan to
knock out the victim and take the drugs, as other evidence confirmed. The state also
points out Appellant claimed her texts about knocking the victim out occurred while they
were at a recreation area (not at the trailer), and at all three interviews, she claimed the
victim was alive and conscious when they dropped her off at home which was the last
time she saw him.
       {¶54} The statute defining the offense of obstructing justice provides in pertinent
part: “No person, with purpose to hinder the discovery, apprehension, prosecution,
conviction, or punishment of another for crime or to assist another to benefit from the
commission of a crime * * * shall * * * Communicate false information to any person * * *.”
R.C. 2921.32(A)(5); (C)(4) (a third degree felony if the crime committed by the other
person is murder or a felony of the first or second degree and the defendant knew or had
reason to believe this was the crime committed). In contesting the obstruction of justice
convictions, Appellant emphasizes the statute’s use of the identifier “another” and claims
the evidence was insufficient to show her communication of false information was for the
purpose of hindering the discovery, apprehension, prosecution, conviction, or punishment
of Landsberger as it showed only a purpose to hinder the investigation and prosecution
of herself.
       {¶55} Initially, the state notes the Supreme Court’s syllabus in a case addressing
the obstructing justice statute does not mention the element of “another” when stating:
“The making of unsworn false oral statements to a law enforcement officer with the
purpose to hinder the officer's investigation of a crime is punishable conduct within the



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meaning of R.C. 2921.32(A)(5).” State v. Bailey, 71 Ohio St.3d 443, 644 N.E.2d 314
(1994), syllabus. However, the issue in that case was whether unsworn statements were
punishable (due to case law on other statutes), not whether statements could be
punishable under R.C. 2921.32(A)(5) if they did not hinder the investigation of another for
a crime. See id. at 443-448. Furthermore, the Court concluded: “A trier of fact could
reasonably conclude from the evidence that defendant's purpose in making the false
communication to the law enforcement officers was to hinder the discovery or
apprehension of Marvin Woodfork.” (Emphasis added). Id. at 448. The case thus
involved the defendant hindering the investigation of another.
       {¶56} The plain language of the statute requires the defendant to communicate
false information for the purpose of hindering “the discovery, apprehension, prosecution,
conviction, or punishment of another for crime or to assist another to benefit from the
commission of a crime. (Emphasis added). R.C. 2921.32(A)(5). See also State v.
Hopkins, 1st Dist. No. C-810539 (May 12, 1982) (complaint fails to state a violation of
R.C. 2921.32 where the alleged purpose was to hinder the discovery of himself, rather
than someone else).
       {¶57} We proceed to Appellant’s argument that the evidence only showed she
was protecting herself, not Landsberger, when she provided various false statements to
the police. As aforementioned, purpose involves specific intent to cause a certain result.
R.C. 2901.22(A) (“or, when the gist of the offense is a prohibition against conduct of a
certain nature, regardless of what the offender intends to accomplish thereby, it is the
offender's specific intention to engage in conduct of that nature.”) Intent can be inferred
from the totality of the circumstances including circumstantial evidence, which has the
same probative value as direct evidence. Treesh, 90 Ohio St.3d at 485. Therefore, the
intent behind false communications can be gathered from the evidence as a whole,
including rational inferences. The question of whether the investigation was actually
hindered can be considered under the totality of the circumstances analysis but is not a
required element of obstructing justice in R.C. 2921.32(A)(5). See City of Cuyahoga Falls
v. Cox, 9th Dist. No. 13644 (Jan. 25, 1989). Compare R.C. 2921.31.
       {¶58} The state notes, at the time of the first two interviews, the police did not
have the deleted data from Appellant’s phone showing she set the evening in motion,



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encouraged Landsberger to rob victim, and was the connection between Landsberger
and the victim. The police did not even have a body at the first interview. During that
interview Appellant pointed police to a recreation area which they searched twice; she
maintained this was the location of the robbery and assault throughout the three
interviews. Whether this story was true was a question for the jury; it was not a given fact
because Appellant maintained it was so.
       {¶59} Evidence showing intent to hinder the prosecution of Landsberger also
includes Appellant’s claim that Landsberger discontinued the “fight” with the victim and
acted friendly and caring to the victim, even offering to bring him to the hospital after they
found the drugs lost in the snow while they were trying to steal them by force. She said
the victim did not appear “terminal” and suggested he may have died later of his injuries
suffered in the fight, which in turn implied a lessened culpability for Landsberger.
Moreover, at the second interview, she suggested Landsberger asked the victim if
Appellant could use his phone since Appellant’s phone had no service. Furthermore,
although she thereafter admitted they were untrue, she made statements during the third
interview that the robbery was not premeditated and there was no plan to hurt the victim.
A rational person could conclude these false communications were provided with purpose
to hinder the prosecution and conviction of both herself and Landsberger.
       {¶60} Importantly, a person can have multiple purposes or purposely do one act
in order to accomplish another act.       A person can specifically intend to hinder an
investigation of another for the additional purpose of hindering the investigation of herself
and still have purpose to hinder the investigation of the other person. This is especially
true in a case involving complicity where the investigations are linked. The fact that a
person has an ulterior purpose to help oneself does not eliminate the specific intent to
hinder the investigation of another.
       {¶61} To conclude, the totality of the circumstances allowed some reasonable
person to find Appellant specifically intended to hinder the investigation of Landsberger
when she communicated false information. There was sufficient evidence to allow the
case to proceed to a jury for evaluation of the elements and the weight of the evidence.
In accordance, Appellant’s second assignment of error is overruled. The corresponding
portion of Appellant’s fourth assignment of error raising ineffective assistance of counsel



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is also without merit as the failure to move for acquittal on the obstructing justice charges
was not deficient performance or prejudicial.
                   ASSIGNMENT OF ERROR THREE: PHOTOGRAPHS
       {¶62} Appellant’s third assignment of error provides:
       “Ms. Heckathorn was denied a fair trial and due process of law by the admission
of highly prejudicial photographs at trial * * * [citations omitted].”
       {¶63} Appellant challenges four photographs showing the victim’s bisected body;
as stated above, the victim’s body was discovered in two parts. Appellant relies on
Evid.R. 403(A), which provides relevant evidence is not admissible if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading of the jury.
       {¶64} The admission of potentially prejudicial photographs is determined under a
discretionary balancing test that requires exclusion only if the probative value of the
photographs is substantially outweighed by the danger of unfair prejudice. State v.
Franklin, 62 Ohio St.3d 118, 125, 580 N.E.2d 1 (1991). See also State v. Slagle, 65 Ohio
St.3d 597, 601, 605 N.E.2d 916 (1992) (admissibility of photographs is left to the sound
discretion of the trial court). We note it is only the danger of unfair prejudice that is
considered. Furthermore, the mere fact that a photograph may have gruesome aspects
does not render it inadmissible per se. State v. Maurer, 15 Ohio St.3d 239, 265, 473
N.E.2d 768 (1984). Even if a trial court abused its discretion in admitting prejudicial
photographs, the case is not reversed unless substantial rights of the defendant are
affected by the admission. State v. Lundgren, 73 Ohio St.3d 474, 486, 653 N.E.2d 304
(1995), citing Evid.R. 103 and Crim.R. 52(A).
       {¶65} During the testimony of the forensic pathologist, seven photographs were
utilized. (St. Ex. 99-105). Six showed the victim’s head wounds after they were cleaned
in the medical examiner’s office. The contested photograph is State’s Exhibit 100, a
photograph of the victim’s entire body on the examination table. The view is from the
victim’s right side and shows the head wounds on that side. As the photograph is of the
entire body and the body had been severed in half at the waist, the inside of each half of
the body is visible.      At trial, defense counsel objected to all seven pre-autopsy




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photographs.   (Tr. 1002).   The trial court overruled the objection and admitted the
photographs. (Tr. 1003).
      {¶66} In this assignment of error, Appellant challenges the trial court’s admission
of State’s Exhibit 100; in her fourth assignment of error on ineffective assistance of
counsel, Appellant contends counsel should have specified a more particular objection to
State’s Exhibit 100, instead of merely including it in the objection related to the seven
photographs introduced during the forensic pathologist’s testimony. However, counsel’s
objection preserved the issue for appeal. Although the objection applied to each of the
seven photographs presented during the pathologist’s testimony, counsel’s objection
noted the death was undisputed, urged the probative value was minimal as this was a
case of complicity, and alleged the photograph was more prejudicial than probative.
      {¶67} On appeal, Appellant contends State’s Exhibit 100 is highly prejudicial but
only slightly probative on the cause of death, noting the head injuries were specifically
depicted in closer photographs admitted as State’s Exhibits 99 and 101-105. Appellant
notes she was not charged with gross abuse of a corpse, which was an offense to which
Landsberger pled guilty (along with murder and tampering with evidence). She argues
the outrage and shock caused by State’s Exhibit 100 resulted in reversible prejudice as
she was not charged with abusing the body after death.
      {¶68} The state counters that the lack of charges with respect to the body after
death does not mean she may not have been involved in disposal of the body or that the
condition of the body when discovered was not relevant and probative. As previously
mentioned, acts after an offense are relevant to complicity and intent. The state points
out State’s Exhibit 100 merely shows the entire body prior to the medical examination
which lends credibility to the practice and procedure in preparation for autopsy, provides
perspective, and depicts information provided in testimony (including that of the forensic
pathologist), urging this was an intellectual, rather than an emotional, endeavor. The
state notes the body was a crime scene and the condition of the body explains various
events and evidence.
      {¶69} The uncontested depiction of the head wounds established the cause of
death and the purpose of the assailant, and it illustrated testimony that the victim died
within seconds to minutes, rather than surviving during a car ride to Appellant’s house as



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she claimed. Photographs illustrating the type of wounds suffered by the victim and those
corroborating the testimony of the coroner have significant probative weight that can
overcome potential prejudice. State v. Moore, 81 Ohio St.3d 22, 32, 689 N.E.2d 1 (1998).
Where a defendant contends he was not the perpetrator, the state can still present
evidence of purpose to cause death in the form of photographs showing the extent of the
injuries. State v. Jones, 7th Dist. No. 12 MA 181, 2014-Ohio-5915, ¶ 85, citing, e.g.,
Maurer, 15 Ohio St.3d at 265 (the places where bullets entered and exited the body and
the resulting wounds were probative of purpose to cause death).
         {¶70} Appellant points out, however, the photographs of the bisected body do not
show cause of death. Nevertheless, the inclusion of the entire body photograph illustrated
the testimony of the forensic pathologist that the bisection of the body occurred after
death.    This expert testified there was no hemorrhaging in the tissues around the
bisection, and he explained there would be no spray of blood from this cutting which
occurred after the heart stopped pumping. (Tr. 1006, 1025).
         {¶71} This was relevant to other testimony regarding the blood spatter and cast-
off evidence in the bedroom, which supported the theory that the victim was killed in the
bedroom of Landsberger’s trailer rather than at the recreation area. As the photograph
supported expert testimony on a key subject, the probative value was high. See State v.
Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 94 (“Although gruesome,
each of these photographs supported the medical examiner's testimony and provided an
overall perspective of her wounds.”). Although the photograph was gruesome, the trial
court did not abuse its discretion in determining the probative value of the photograph
was not substantially outweighed by the danger of unfair prejudice, and substantial rights
were not compromised by the admission of this photograph.
         {¶72} Appellant also contests three photographs taken at the scene when the
body was recovered: State’s Exhibit 84 is the top half of the body lying face down on a
hill (with no depiction of the inside of the body); State’s Exhibit 87 is the bottom half of the
body at the top of the hill by the road (with no depiction of the inside of the body); and
State’s Exhibit 90 includes both halves of the body as seen from the top of the hill (so the
inside of the bottom half of the body is visible). Counsel expressly voiced that he had no
objection to these photographs at trial. (Tr. 523).



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       {¶73} Appellant thus raises plain error under her third assignment of error
challenging the admission of photographs and ineffective assistance of counsel under her
fourth assignment of error for the failure to object to the admission of these photographs.
The state reviews the relevancy of photographs of the scene where a body was
discovered and reiterates its position that the lack of a charge for abusing a corpse does
not mean evidence of how the body was disposed is inadmissible in a case where the
defendant was complicit in the murder, tampered with evidence, and obstructed justice.
       {¶74} Ineffective assistance of counsel involves a demonstration of deficient
performance by counsel, which involves performance falling below an objective standard
of reasonable representation, and prejudice, which involves a reasonable probability that
the result would have been different but for counsel's errors that deprived the defendant
of a fair trial. State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180,
¶ 82, citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). “Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B). An appellate court's
invocation of plain error is discretionary. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 23. “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.” State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990).
To recognize plain error, the appellate court must find an obvious error which prejudiced
the appellant by affecting his substantial rights; this involves a “reasonable probability that
the error resulted in prejudice.” Rogers, 143 Ohio St.3d 385 at ¶ 22 (equating this analysis
of prejudice to the prejudice prong for an ineffective assistance of counsel analysis).
       {¶75} In a murder prosecution, photographs of the scene where a victim’s body
was discovered are not inadmissible merely because they depict the condition of the body
due to events occurring after death. See, e.g., State v. Hutton, 53 Ohio St.3d 36, 49, 559
N.E.2d 432 (1990) (repetitious photographs were “macabre” and depicted “extreme
decomposition” of “a rotting corpse”); State v. Goodwin, 7th Dist. No. 99 CA 220, 2001-
Ohio-3416 (where ear and skin were missing due to animals and decomposition). As the
state points out, the location of the body and its condition when discovered were relevant
to the testimony on how the body was discovered and when it may have been thrown



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down the hill. The witness who discovered the body was prompted to look for signs of
dumping after hearing a truck stop on a dirt road by the property the night before, which
was after Landsberger’s trailer was searched. The state makes note of the remoteness
of the location and the proximity to Appellant’s residence (1.7 miles).
       {¶76} Additionally, the forensic pathologist stated scrapes on the victim’s body
could have occurred after death and did not necessarily occur prior to death (as
suggested by Appellant’s story about a fight at a recreation area).        The landscape
surrounding the body on the side of hill and the position of the body were pertinent in
considering ways the scrapes may have occurred. Also relevant to this issue were the
steepness of the hill and the fact the top half of the body was found a distance down the
slope from the location of the bottom half. The unclothed state of the body was also
relevant to the bag of bloody items, including clothing, found in Landsberger’s shed. The
victim’s lack of clothing is also pertinent to Appellant’s admission to having sex with the
victim twice that night on Landsberger’s property.
       {¶77} The probative value of the depiction of the body at the scene of recovery
was not substantially outweighed by the danger of unfair prejudice.           In addition,
substantial rights were not affected by the viewing of photographs to illustrate the
testimony. The trial court did not commit plain error in admitting the three photographs
from the scene of the recovery. Trial counsel was not deficient and did not otherwise
render ineffective assistance by failing to object to the contested photographs. This
assignment of error is overruled.
                       ASSIGNMENTS OF ERROR FOUR & FIVE:
                  INEFFECTIVE ASSISTANCE & CUMULATIVE ERROR
       {¶78} Appellant’s fourth and fifth assignments of error contend:
       “Trial counsel provided ineffective assistance of counsel * * *” and “Ms.
Heckathorn’s rights to a fair trial and due process of law were violated by the cumulative
errors that occurred during her trial [citations omitted].”
       {¶79} The two-part test for ineffective assistance of counsel requires a defendant
to demonstrate:     (1) trial counsel's performance fell below an objective standard of
reasonable representation; and (2) prejudice arose from the deficient performance. State
v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v.



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Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs must be
established; if the performance was not deficient, then there is no need to review for
prejudice, and vice versa. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52
(2000).
       {¶80} In evaluating the alleged deficiency in performance, our review is highly
deferential to trial counsel's decisions; there is a strong presumption counsel's conduct
falls within the wide range of reasonable professional assistance. Bradley, 42 Ohio St.3d
at 142-143, citing Strickland, 466 U.S. at 689. We are to refrain from second-guessing
the strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651
N.E.2d 965 (1995). Instances of debatable trial strategy very rarely constitute ineffective
assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407
(1987). There are “countless ways to provide effective assistance in any given case.”
Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 689.
       {¶81} To show prejudice, a defendant must prove his lawyer's errors were so
serious that there is a reasonable probability the result of the proceedings would have
been different. Carter, 72 Ohio St.3d at 558. Lesser tests of prejudice have been
rejected: “It is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.” Bradley, 42 Ohio St.3d at 142, fn. 1, quoting
Strickland, 466 U.S. at 693. Prejudice from defective representation justifies reversal only
where the results were unreliable or the proceeding fundamentally unfair due to the
performance of trial counsel. Carter, 72 Ohio St.3d at 558, citing Lockhart v. Fretwell,
506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
       {¶82} In her fourth assignment of error, Appellant sets forth five allegations of
ineffective assistance of counsel: (1) counsel failed to object to State’s Exhibits 84, 87,
and 90, which were the photographs depicting the body at the recovery scene; (2) counsel
objected to the photographs of the wounds taken at the medical examiner’s office without
focusing the court’s attention on State’s Exhibit 100, which showed the entire body,
including the fact of bisection; (3) counsel failed to move for acquittal on the murder count;
(4) counsel failed to move for acquittal on the counts of obstructing justice; and (5) counsel
failed to object to testimony and closing argument about the distance of Appellant’s
residence from the site where the victim’s body was discovered.



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       {¶83} In her fifth assignment of error, Appellant claims that if this court finds each
of these five allegations were errors which did not individually warrant reversal, then the
court should consider whether the cumulative nature of the errors deprived her of a fair
trial. Under the cumulative error doctrine, a conviction is reversible when the cumulative
effect of errors in a trial deprived the defendant of a fair trial, even though each instance
of trial court error did not individually warrant reversal. State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 321-322 (yet, errors do not become prejudicial
by sheer weight of numbers).
       {¶84} We addressed the first four allegations of ineffective assistance of counsel
above within the corresponding first through third assignments of error. As for the fifth
argument, a detective testified, without objection, that the body was discovered 1.7 miles
from Appellant’s residence, and it took him less than 4 minutes to drive this route. (Tr.
760). (He also testified the victim’s body was discovered 8.8 miles from Landsberger’s
trailer, and it took him almost 14 minutes to drive this route.) In closing, the prosecutor
noted the victim’s body was found near Appellant’s residence, not near Landsberger’s
residence. (Tr. 1182). Appellant now contends this evidence was not probative of a
relevant matter because she was not charged with abuse of a corpse and the evidence
created a great danger of unfair prejudice, confusion of the issues, and misleading of the
jury, citing Evid.R. 403.
       {¶85} The state points out Appellant encouraged Landsberger throughout the day
and night of the murder. The evidence indicated he relied on her for direction. She was
charged with complicity to murder and also accused of tampering and obstructing in the
case. The lack of a charge for abusing a corpse does not preclude evidence of precisely
where a victim’s body was found. Likewise, it was not improper for the prosecutor to
comment that the location was near Appellant’s residence and not very close to
Landsberger’s residence, comparatively. This was a factual statement supported by the
evidence and the inference drawn would constitute a fair comment. See generally State
v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 119. The failure to
object to the testimony and comment in closing was not deficient performance; nor would
the issue render the results unreliable or the proceeding fundamentally unfair.




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Consequently, Appellant’s fifth argument on ineffective assistance of counsel is without
merit.
          {¶86} We overruled the other four instances of ineffective of assistance of counsel
supra. As set forth above, counsel sufficiently preserved the objection to the photograph
of the victim’s body prior to autopsy, but the objection was reasonably overruled. Also,
the failure to object to the photographs of the body at the recovery scene did not constitute
deficient performance as the photographs were admissible. Concerning Appellant’s two
claims on the failure to seek acquittal for murder and obstructing justice: the evidence is
either sufficient or it is not. As concluded in the first and second assignments of error, the
state presented sufficient evidence to support the contested elements of these offenses,
and counsel was not deficient in choosing not to challenge sufficiency at trial.
          {¶87} In conclusion, the five claims were not found to be harmless errors as they
were not found to be errors at all.              As there were not multiple instances of error,
individually harmless, there was no cumulative error. State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524, 960 N.E.2d 955, ¶ 132 (in the absence of multiple errors, the cumulative
error doctrine does not apply). Furthermore, there is no indication Appellant was deprived
of a fair trial (even assuming arguendo counsel should have raised certain issues).
Appellant’s fourth and fifth assignments of error are overruled.
                   ASSIGNMENT OF ERROR SIX: CONSECUTIVE SENTENCING
          {¶88} Appellant’s sixth and final assignment of error provides:
          “The trial court erred when it imposed consecutive sentences without expressly
making the findings required by R.C. 2929.14 during the sentencing hearing * * * [citations
omitted].”
          {¶89} The court imposed the required sentence of 15 years to life for murder; 6
years for robbery (where the maximum was 8 years); and 12 months for each of the four
third degree felonies (where the maximum was 36 months).2 The court ran these counts
consecutively for a total of 25 years to life.
          {¶90} There is a statutory presumption in favor of concurrent sentences. State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23, citing R.C.
2929.41(A). When a trial court imposes consecutive sentences for multiple convictions,

2   No sentence was entered for conspiracy to robbery as it was merged with complicity to robbery.


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it must make the required R.C. 2929.14(C)(4) findings at the sentencing hearing and
incorporate those findings into the sentencing entry. Id. at ¶ 29, 37. Division (C)(4) of
R.C. 2929.14 is considered to contain three separate required statutory findings: (1)
consecutive service is necessary to protect the public from future crime or to punish the
offender; (2) consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger posed to the public; and (3) one of the three
alternative findings in subdivisions (a), (b), or (c). State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028, ¶ 252.
       {¶91} To satisfy the third finding, one of the following three alternative findings
must be made: (a) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, was under a sanction imposed pursuant to R.C 2929.16,
2929.17, or 2929.18, or was under post-release control for a prior offense; (b) at least two
of the multiple offenses were committed as part of one or more courses of conduct, and
the harm caused by two or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender's conduct; or (c)
the offender's history of criminal conduct demonstrates consecutive sentences are
necessary to protect the public from future crime by the offender. R.C. 2929.14(C)(4)(a)-
(c).
       {¶92} The trial court's sentencing entry contains no consecutive sentencing
findings. The state concedes this and agrees the case must be remanded for a nunc pro
tunc entry.   Where the court properly makes consecutive sentence findings at the
sentencing hearing, the absence of findings in the sentencing entry is considered a
clerical error that can be corrected by the trial court in a nunc pro tunc entry to reflect what
occurred at sentencing. Bonnell, 140 Ohio St.3d 209 at ¶ 30-31 (and fixing such a clerical
error does not create a new final, appealable order).
       {¶93} A nunc pro tunc entry cannot cure a failure to make the required findings at
the sentence hearing. Beasley, 153 Ohio St.3d 497 at ¶ 260-261 (remanding as court
could not discern trial court made required proportionality finding); Bonnell, 140 Ohio
St.3d 209 at ¶ 30. Appellant concedes the trial court made the first two consecutive
sentence findings but contends the court failed to adequately set forth the third finding,



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i.e., one of the three alternatives in division (C)(4)(a)-(c). The state argues the trial court
made sufficient consecutive sentence findings at the sentencing hearing, urging the court
adequately set forth the third finding under subdivision (b) of R.C. 2929.14(C)(4). The
state urges the trial court essentially found the harm caused by the offenses was so great
or unusual that no single prison term would adequately reflect the seriousness of the
conduct.
       {¶94} At sentencing, the court spoke of the purposes and principles of sentencing
and noted the goals to protect the public, punish offenders, and decree a fair sentence.
The court announced it had analyzed the seriousness and recidivism factors and
disclosed it was adopting the analysis of those factors set forth in the state’s sentencing
memorandum. (Sent.Tr. 30). The court then found:
              The evidence shows that this Defendant was the architect or the
       mastermind of the robbery and murder of Quinn Wilson. The public needs
       to be protected from her for a very long time.
              I agree with the State’s observation in its Sentencing Memorandum
       that the evidence established that the Defendant was responsible for setting
       into motion all the events that led to the brutal slaughter of Quinn Wilson.
              The disposition of the various counts in this case reflect either the
       sentence required by law or what is necessary in the Court’s opinion to carry
       out the purposes and principles of the Sentencing Law, which I just detailed.
       Most particularly to protect the public. Anything less than the sentences
       which are about to be handed down and the consecutive nature of them
       that this Defendant is being given would fail to protect the public.
              Further, the consecutive nature of any sentence given is not
       disproportionate to the very serious nature of the criminal conduct involved,
       which involved great, tragic, and fatal harm to the late Quinn Wilson.
(Sent.Tr. 30-32).
       {¶95} The court announced that it was imposing consecutive sentences on each
offense instead of adopting the state’s recommendation. (Sent.Tr. 32-33). The state
recommended higher sentences on the non-murder counts. For the second degree
felony of robbery, the state asked for 7 years. For the four third degree felonies, the state



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asked for the maximum sentence of 3 years, concurrent to each other but consecutive to
the murder and robbery on which the state also sought consecutive sentences. When
added to the sentence of 15 years to life for murder, the total recommended sentence
was 25 to life, which was the same total sentence imposed by the court. In explaining
why the court chose to impose consecutive sentences on all offenses instead of adopting
the state’s recommendation, the court made additional pertinent findings: “I intentionally
sentenced this Defendant with regard to the Tampering with Evidence and each of the
counts of Obstructing Justice because she did everything within her power to thwart the
efforts of our responsible law enforcement community to solve this brutal murder and
robbery. She lied, she lied, and she lied, and she destroyed evidence.” (Sent.Tr. 32-33).
       {¶96} In evaluating the imposition of consecutive sentences, “a word-for-word
recitation of the language of the statute is not required, and as long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Bonnell, 140 Ohio St.3d 209 at ¶ 29. In other words, the court is not required
“to give a talismanic incantation of the words of the statute, provided that the necessary
findings can be found in the record * * *.” Id. at ¶ 37. The question is whether we can
“glean from the record” that the trial court made the third consecutive sentence finding at
the sentencing hearing. See id. at ¶ 36.
       {¶97} In Bonnell, the Supreme Court concluded that it could be discerned from
the trial court's statement that the defendant showed “very little respect for society and
the rules of society” that it found a need to protect the public from future crime or to punish
the defendant to satisfy the first finding. Id. at ¶ 33. The Court also concluded the trial
court’s statement the defendant had an “atrocious” record allowed one to discern the court
believed the defendant’s history of criminal conduct demonstrated the need for
consecutive sentences to protect the public from future crime to satisfy one of the
alternative third findings. Id. (but the Court was unable to discern there was an evaluation
of the second finding).
       {¶98} Related to the finding in subdivision (b) of R.C. 2929.14(C)(4), the trial court
implicated multiple offenses as being committed as part of one or more courses of
conduct when it referred to Appellant as the mastermind and architect of the robbery and



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murder and to her affirmative acts toward (“everything within her power to thwart”) law
enforcement resulting in the tampering and obstructing charges. The court spoke of the
necessity for consecutive sentences and thereafter referenced the “very serious nature”
of the conduct in conjunction with a description of the “great * * * harm” involved.
Considering the totality of the trial court’s statements at the sentencing hearing, we can
discern from the record that the trial court engaged in the analysis required under R.C.
2929.14(C)(4)(b). However, as set forth above, the case must be remanded for a nunc
pro tunc entry due to the absence of written consecutive sentence findings.
       {¶99} For the following reasons, Appellant’s convictions are affirmed, and the
case must be remanded for the issuance of a nunc pro tunc sentencing entry with
instructions to incorporate the consecutive sentencing findings made at the sentencing
hearing in the entry.



Waite, P.J., concurs.

D’Apolito, J., concurs.




Case No. 17 CO 0011
[Cite as State v. Heckathorn, 2019-Ohio-1086.]




         For the reasons stated in the Opinion rendered herein, the assignments of
 error are sustained and it is the final judgment and order of this Court that the
 judgment of the Court of Common Pleas of Columbiana County, Ohio, is affirmed.
 We hereby remand this matter to the trial court to issue a nunc pro tunc sentencing
 entry incorporating the consecutive sentence findings made at the sentencing hearing
 according to law and consistent with this Court’s Opinion. Costs waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.

                                      NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
