State v. Vogt

Citation: 2018 Ohio 4457Docket: 17CA17

Court: Ohio Court of Appeals; October 29, 2018; Ohio; State Appellate Court

Original Court Document: View Document

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Ryan Vogt was convicted by the Washington County Common Pleas Court of involuntary manslaughter and drug trafficking. He appealed the conviction, arguing that the evidence was insufficient to support the manslaughter charge, claiming it deprived him of due process under various constitutional amendments. Additionally, he contended that his convictions were against the manifest weight of the evidence, violating his due process rights. Vogt also argued that the trial court improperly refused to dismiss the case based on double jeopardy concerns and erred by not instructing the jury on the lesser-included offense of reckless homicide. He claimed his defense counsel's failure to request this instruction constituted ineffective assistance of counsel.

The indictment stemmed from the overdose death of Tyler Miller, who had recently returned home after rehabilitation for heroin addiction. Following a mistrial declared due to a discovery violation and conflict of interest involving his defense counsel, Vogt filed a motion to dismiss the charges, which the trial court denied. The retrial commenced in March 2017, with testimony from Tyler's father detailing Tyler's drug issues leading up to his death. The appellate court found no merit in Vogt's arguments and affirmed the trial court's judgment.

In the fall of 2015, Tyler experienced an overdose but was revived with Narcan and continued outpatient drug counseling. By December 2015, he recognized the need for inpatient rehabilitation, leading to a 5-6 day stay at Camden Clark followed by over a month at Parkside in Columbus. During his rehab, his parents held his cell phone and wallet, with his mother searching the wallet multiple times without finding illegal drugs. Tyler was discharged on January 15, 2016, and was in good spirits, expressing aspirations to become an addiction counselor.

After returning home, Tyler retrieved his belongings and went to his residence with his girlfriend, Josie Schau, who noted he was upbeat and engaged. John Miller last saw Tyler alive between 7:00 and 8:00 p.m. that evening. The following day, after receiving no response from Tyler to a hunting invitation, John Miller discovered Tyler unresponsive at his sister Samantha's home and called 911, but attempts to revive him were unsuccessful.

After the emergency response, Jill and Samantha Miller found a small rock wrapped in paper in Tyler's wallet and contacted law enforcement. John Miller testified that Tyler had funds in his bank account when he returned from rehab. Josie, who had been in a relationship with Tyler for three years, stated he only used heroin after an overdose in summer 2015 and that he had not used drugs in her presence. Throughout his rehab and upon returning home, Tyler appeared happy and optimistic, with Josie and Samantha corroborating his positive demeanor on January 15. Josie left around 11:00 p.m., and Tyler sent her a text at 2:13 a.m. on January 16, which she did not see until the morning. Samantha testified to hearing Tyler snoring when she left for work that morning, unaware of the overdose until later that day.

Samantha returned home to find emergency personnel present and began searching for drugs after they left, but claimed to find none and saw no signs of drug use by Tyler the prior evening. During cross-examination, she could not recall key details about Tyler's movements or Josie's departure. Later, Samantha and her mother discovered a substance in Tyler's wallet, which resembled a small rock wrapped in paper.

Patrolman Aaron Perine of the Beverly Police Department testified that he responded to a report of a death at Tyler’s residence on January 16, 2016. He found Tyler unresponsive, with a brown substance draining from his nose, and called for medical assistance. Perine authenticated photographs of the scene, noting Tyler's position and the presence of a half-eaten bowl of ice cream, a notepad, and his wallet. After law enforcement left, the family reported finding a substance in Tyler's wallet, which tested positive for heroin upon field testing.

Perine acknowledged that he was aware of Tyler's addiction and suspected an overdose upon seeing the substance oozing from his nose. He initially searched the room for causes of death but could not explain how he missed the heroin in Tyler's wallet, suggesting it might have been overlooked without belief that it was placed there post-mortem.

Detective Scott Parks, a forensic data recovery expert, testified about extracting data from Tyler's and Appellant's cell phones. He retrieved text conversations and call logs, with the first text occurring on November 30, 2015, and the last call from Appellant’s phone to Tyler on January 16, 2016, showing no call activity in between. Parks authenticated the extraction report as evidence.

Detective Parks, a member of the Drug Task Force, testified about his involvement in drug investigations and acknowledged difficulties accessing Miller’s phone, while noting that Appellant’s phone lacked security features. Dr. Matthew Juhascik, chief toxicologist, reported toxicological results from Tyler Miller’s body, confirming a heroin overdose based on positive opiate tests and a morphine level of 136 nanograms per milliliter, a metabolite of heroin. Dr. Robert Shott, a forensic pathologist, corroborated the cause of death as heroin intoxication, noting that the morphine level was consistent with overdose cases.

During the trial, defense counsel objected to the admission of an extraction report from Appellant’s iPhone, citing incomplete information, but the court overruled the objection. Detective Bryan Lockhart, the final state witness, analyzed text communications between Miller and Appellant, suggesting a drug dealer-user relationship. Lockhart obtained a search warrant for Appellant's residence and recorded an interview where Appellant denied knowing Miller but later mentioned a friend, Cory Forshey, who might have sold drugs to Miller.

The State moved to admit various exhibits, including photographs of Tyler Miller’s body, drug-related evidence, extraction reports from both Tyler Miller's and the Appellant's cell phones, police evidence, a coroner's report, and a recorded interview of the Appellant. Following this, the State rested its case. Defense counsel filed a Crim. R. 29 motion to dismiss the involuntary manslaughter charge, asserting that the State did not prove the Appellant knowingly caused Tyler's death as a result of drug trafficking. Counsel argued that the evidence of the Appellant's culpable mental state was weak, primarily relying on text messages, and highlighted the lack of substantial evidence of drug trafficking. Additionally, counsel contended that Tyler's decision to use heroin was a significant intervening factor in his overdose. The trial court denied the motion. The jury subsequently found the Appellant guilty on both counts, leading to a six-year prison sentence for the involuntary manslaughter charge and an eleven-month concurrent sentence for the second count, totaling six years. The Appellant filed a timely appeal, focusing first on the third assignment of error regarding the review standards for motions to dismiss based on double jeopardy and mistrial declarations. While the State failed to disclose the relevant texts during discovery, this was deemed unintentional rather than a deliberate act to provoke a mistrial. The State was unaware of a potential conflict of interest involving the Appellant’s counsel, who represented another defendant in an unrelated case, and this conflict should have been recognized by defense counsel when they received the recorded interview of the Appellant.

The trial court determined that the State did not gain a material advantage from the mistrial, and the Appellant was afforded additional time to prepare his defense with relevant text messages. The court found no intentional misconduct by the State that would necessitate the mistrial. It ruled that the failure to disclose the text messages during discovery did not create a conflict of interest affecting the trial, as the Appellant was aware of any potential conflict prior to the trial. Defense counsel raised concerns about a possible conflict of interest, which, while not explicitly framed as a manifest necessity, prompted the trial court's concerns. This led to an implicit finding that the potential conflict justified the mistrial, thereby negating double jeopardy protections and upholding the denial of the Appellant's motion to dismiss the indictment.

Regarding the Appellant's assignments of error, he contested the sufficiency of evidence supporting his conviction for involuntary manslaughter and argued that both his manslaughter and drug trafficking convictions were against the manifest weight of the evidence. The appellate court outlined its standard of review, emphasizing the need to assess the entire record and the credibility of witnesses. The Appellant's conviction for drug trafficking was largely based on circumstantial evidence, specifically text messages between him and another individual, which the court noted can hold equal probative value to direct evidence. The court referenced a prior case where a defendant was convicted of involuntary manslaughter linked to drug trafficking, affirming that the verdict was not against the manifest weight of the evidence.

Detective Lockhart presented Exhibit F, an extraction report containing text conversations between Tyler’s cell phone (TP) and Appellant’s iPhone (AP). Notably, on November 30, 2015, discussions regarding 'price' and 'location' took place. A subsequent exchange on December 4, 2015, revealed Tyler's efforts to hide his heroin addiction from his girlfriend, Josie, corroborating her trial testimony of being unaware of his drug use. The texts indicated Tyler's avoidance of Josie while arranging to meet another individual. A conversation on December 5, 2015, suggested Tyler was unable to purchase drugs and mentioned a friend in Marietta who could assist. 

On December 15, 2015, a message from AP went unanswered, which Lockhart attributed to Tyler being in rehab and without phone access. Finally, on January 15, 2016, shortly after Josie left Tyler's residence, a conversation initiated by Tyler confirmed he had been in rehab since December 4. The exchange indicated Tyler's continued struggles with addiction, including planning to obtain heroin. Lockhart noted the relevance of Tyler's truck being non-operational, as it aligned with testimonies from Tyler's father and others about his transportation situation.

Detective Lockhart testified about the dynamics between Appellant and Tyler, indicating a relationship typical of drug user and dealer, supported by multiple text exchanges discussing drug quantities and methods of use. The term "clean point" was clarified to mean a clean needle, and it was suggested that Tyler was deciding between snorting heroin or using it intravenously. Lockhart, having reviewed the communications and knowing Tyler's heroin addiction, sought a search warrant for Appellant's residence.

During the execution of the warrant, Appellant was interviewed after being read his Miranda Rights. He denied knowing Tyler Miller, despite Lockhart informing him that Tyler had his contact information. Appellant suggested that others might have misled Tyler about his identity. Throughout the interview, he denied knowing who had borrowed his phone, despite acknowledging that many people used it. 

A key exchange occurred when Appellant distanced himself from Tyler, claiming ignorance of any responsibility related to Tyler's actions. He mentioned Cory Forshey, suggesting a connection between Cory and the drug dealings, while maintaining that any drugs involved were Cory's and not his own. Lockhart indicated familiarity with Cory Forshey and suspected his involvement in drug sales in the area.

Tyler Miller had Cory Forshey’s name saved under two numbers on his phone, but Detective Lockhart testified that there were no calls or texts exchanged between Tyler and Cory during the hours surrounding Tyler's death. Lockhart analyzed Appellant’s phone and concluded that he had control of it during the relevant time, evidenced by text conversations with his girlfriend, Jessica Heilby. Text messages indicated Appellant was at Cory's location and involved in activities related to working on his car, which coincided with texts sent to Tyler’s phone. Lockhart noted that if Cory had been using Appellant’s phone, he would not refer to himself in the third person. 

During cross-examination, Lockhart acknowledged Cory’s reputation with law enforcement as being associated with drugs, while Appellant was not known in that context. He admitted that it was feasible for Appellant to have lent his phone to others, and that Appellant may have withheld information about loaning his phone to protect a friend. No drugs or significant incriminating evidence were found at Appellant's residence, although some drug paraphernalia was located without any residue. 

Defense counsel highlighted that Tyler could have been discussing a needle for diabetic reasons and pointed out that Appellant’s girlfriend and sister were the last individuals to see Tyler alive. Additionally, there was no evidence on Tyler's phone to suggest he received heroin from Appellant during the critical timeframe. Ultimately, the review of the entire record led to the conclusion that Appellant’s conviction for involuntary manslaughter was supported by the manifest weight of the evidence.

Cell phone communications between Tyler Miller and the Appellant indicated discussions about heroin transactions, with evidence showing the Appellant possessed his cell phone during relevant times. Similar to the case of Kramer, the Appellant's credibility was crucial for the jury's assessment. Although the Appellant lacks a prior criminal record, his interview was perceived as implausible, especially as he denied knowing Tyler Miller despite evidence of multiple text exchanges between them. The jury likely found inconsistencies between the Appellant's statements and the text messages, which also correlated with testimonies from Tyler's father and girlfriend.

The Appellant pointed out the lack of eyewitness testimony regarding drug sales, paralleling Kramer’s argument. However, as established in Kramer, such testimony is not mandatory for a conviction, and juries can weigh the evidence's absence. Although a search of the Appellant’s home did not yield direct evidence of drug trafficking, the court reiterated that the State is not obligated to produce specific packaging materials for a conviction.

Additionally, the Appellant noted that Tyler Miller had previously overdosed and had connections to known dealers, raising the possibility that the heroin causing Miller’s death could be from an unknown source. Nonetheless, the court emphasized that conflicting evidence does not render a conviction against the manifest weight of the evidence, as juries are entitled to believe the prosecution’s testimony.

A conviction is not deemed against the manifest weight of the evidence if evidence allows for different interpretations. The Appellant's counsel argued the lack of direct evidence and highlighted weaknesses in circumstantial evidence, specifically regarding text messages. The defense suggested that another individual, Cory Forshey, controlled the Appellant's phone and arranged a drug deal shortly before the victim’s death. However, the jury favored the prosecution's interpretation. The court concluded that the evidence supporting the Appellant's conviction for drug trafficking, particularly the text messages and recorded interviews, was sufficient and did not constitute a miscarriage of justice.

Regarding the Appellant's second assignment of error concerning involuntary manslaughter, the court found no new arguments presented. The Appellant reiterated that the conviction was based primarily on text messages and lacked additional supporting evidence. Involuntary manslaughter, as defined under R.C. 2903.04(A), requires that the death results from the offender's commission or attempted commission of a felony, with the necessary culpable mental state derived from the underlying offense. The court referenced prior cases affirming that the intent for involuntary manslaughter is linked to the intent of the underlying unlawful act. Since the court upheld the conviction for trafficking in drugs, this also supported the involuntary manslaughter conviction, leading to the conclusion that the Appellant's arguments lacked merit.

Appellant's challenge to the sufficiency of his involuntary manslaughter conviction hinges on the argument that he could not have reasonably foreseen Tyler Miller's death from heroin due to Miller's prior drug rehabilitation. He contends that he should not be held accountable for consequences that a reasonable person would not expect and emphasizes Dr. Shott’s testimony indicating that a recent rehab patient might be more susceptible to overdose. The court's review process for sufficiency requires assessing whether a rational juror could find the essential elements of the crime proven beyond a reasonable doubt. Historical precedents in Ohio law show that courts typically reject defenses based on the foreseeability of drug-related deaths. Citing previous cases, the court clarifies that a defendant can only be held liable for consequences that are direct and foreseeable, akin to the legal concept of proximate cause, which emphasizes the need for consequences to be within the scope of risk created by the defendant's actions.

In this case, the court evaluated whether the actions of Sabo in administering liquid methadone could reasonably be anticipated to result in death, despite the presence of multiple drugs in the victim's system. Sabo contended there was insufficient evidence linking his conduct to the victim’s death, arguing that he could not foresee the victim's toxic levels of other drugs. However, the appellate court found ample evidence indicating that Sabo's actions created a foreseeable risk of fatality. They referenced prior cases, noting that while experts could not definitively identify which drug caused the death, the overall circumstances—such as the victim's inebriated state, the simultaneous drug use, and Sabo's warning to the victim—supported the conclusion that a fatal consequence was within the realm of foreseeability. The court also examined other relevant cases where foreseeability was established, demonstrating that providing controlled substances to known drug users typically results in predictable risks, including overdose. In summary, the court upheld that Sabo's conduct bore a sufficient causal link to the victim's death, countering his claims of unforeseeability.

Veley contended that the victim's repeated purchases of heroin from him—over 100 times—made the victim's overdose death unlikely and unforeseeable. The court, however, highlighted that Ohio courts have consistently recognized that death from an overdose of illegal substances is a foreseeable outcome, rejecting the notion that foreseeability requires inevitability. Citing precedent, the court explained that when actual harm differs from intended harm, it must be shown that the outcome was not so extraordinary as to be unfair to hold the defendant criminally liable. The court emphasized that defendants can be held responsible for consequences they know or should know arise from their actions, stating that the possibility of an overdose is a reasonably foreseeable result of heroin sales. Furthermore, foreseeability does not necessitate that a defendant actually envisions the outcome.

In contrast, the Fifth District found insufficient evidence for a conviction of involuntary manslaughter in State v. Kosto, where the decedent's toxicology report indicated the presence of multiple drugs, including heroin. Text messages between Kosto and the decedent prior to the death were also examined. The court dismissed the argument that ingesting a fatal drug constituted an intervening act. Kosto referenced the U.S. Supreme Court case Burrage v. United States, which determined that liability under 21 U.S.C. 841(b)(1)(C) requires the drug distributed by the defendant to be a but-for cause of the death, rather than merely a contributing factor. The Kosto court noted that Ohio law necessitates proving that the defendant's actions were a proximate cause of the victim's death as a result of committing a drug-related felony.

A federal statute mandates a 20-year minimum sentence for unlawful distribution of Schedule I or II drugs resulting in death or serious bodily injury. In Burrage, the U.S. Supreme Court ruled that a conviction under the "death results" provision requires "but-for causation," rejecting the government's argument for a broader interpretation involving substantial or contributing factors. In a related case, the indictment claimed that the defendant's distribution of heroin caused the victim's death, but forensic evidence indicated that "acute combined drug effects" from heroin and cocaine were the actual cause. The pathologist could not confirm that heroin alone would have led to death, suggesting a reasonable probability that cocaine use was a contributing factor. The defendant was not charged with providing cocaine, and the court found insufficient evidence to establish guilt for involuntary manslaughter under the given circumstances. However, a toxicologist's testimony indicated that the heroin levels in the victim's blood were consistent with a fatal overdose, supporting the conclusion that the defendant's trafficking in heroin constituted a predicate offense for involuntary manslaughter. Ultimately, the court determined that sufficient evidence existed for a rational fact-finder to find all elements of involuntary manslaughter proven beyond a reasonable doubt.

The conviction is affirmed based on sufficient evidence, and the first assignment of error is overruled. The appellant argues that the trial court erred by not instructing the jury on the lesser-included offense of reckless homicide and claims ineffective assistance of counsel due to his attorney's failure to request this instruction. Although the appellant did not separately argue these assignments of error as required, the court decides to address them in the interest of justice. The standard of review for jury instruction warrants is de novo, but since the appellant did not request the instruction, the court applies a "plain error" standard, which requires showing that the trial's outcome would have been different but for the alleged error.

The analysis involves a two-tiered approach: first, determining if reckless homicide is a lesser-included offense of the charged crime, and second, assessing whether the evidence allows a jury to find the appellant not guilty of the charged offense while potentially convicting him of the lesser offense. The court references relevant case law, including State v. Deanda and State v. Evans, to outline the legal framework for evaluating lesser-included offenses.

An offense can be classified as a lesser-included offense if it meets three criteria: (i) it has a lesser penalty than the greater offense; (ii) it must be impossible to commit the greater offense without simultaneously committing the lesser offense; and (iii) some elements of the greater offense are not required to establish the lesser offense. This framework, established in Ohio law, underwent a minor revision, removing the word "ever" from the second criterion to clarify that the greater offense cannot be committed without the lesser offense being committed.

The document examines whether reckless homicide qualifies as a lesser-included offense of involuntary manslaughter. Research indicates a lack of consensus among appellate courts on this issue. In the case of State v. Hipshire, the trial court denied a jury instruction on reckless homicide, finding no basis for it as a lesser-included offense. The appellate court later held that the trial court erred because there was sufficient evidence for a jury to reasonably conclude that Hipshire had exhibited reckless disregard for his wife's well-being, warranting the lesser-included instruction. The court noted that the trial court's decision stemmed from an incorrect legal interpretation rather than factual determinations. In contrast, the case of State v. Carusone highlighted that the mental states required for involuntary manslaughter and reckless homicide are inconsistent, adding further complexity to the issue.

Carusone's case is distinguished by his involvement in an altercation with two victims. The court criticized the reasoning behind the refusal to provide a jury instruction as an error of law and an abuse of discretion. It was concluded that Carusone could not be guilty of both involuntary manslaughter and reckless homicide because the evidence did not support findings of both knowing and reckless behavior. In a comparable case, State v. Patterson, the dissent noted that involuntary manslaughter can occur without reckless homicide. Although reckless homicide could sometimes be a lesser-included offense of involuntary manslaughter, the trial court's decision not to give such an instruction was not considered erroneous in this case.

The defense strategy centered on the absence of evidence for drug trafficking, emphasizing circumstantial evidence regarding text messages and the defendant's clean criminal record. The defense suggested that a friend had access to the defendant's phone, implying that friend might be responsible for the drug trafficking. This “all-or-nothing” strategy aimed for complete acquittal, making it inconsistent to argue an acknowledgment of a dangerous situation while simultaneously claiming a lack of recklessness. The presumption is that the failure to request a lesser-included offense instruction stemmed from this trial strategy.

Consequently, the court found no plain error regarding the trial court's failure to give a lesser-included offense instruction and rejected the claim of ineffective assistance of counsel based on this absence. The fundamental right to effective counsel was acknowledged, but the court determined that the defense's strategic choices did not constitute ineffective assistance.

To prove ineffective assistance of counsel, a defendant must demonstrate (1) that the attorney's performance was deficient and (2) that this deficiency prejudiced the defense, resulting in an unfair trial. The performance is considered deficient if it falls below an objective standard of reasonable representation. Prejudice requires showing a reasonable probability that the trial's outcome would have differed absent the counsel's errors. Failure to establish either element is sufficient to dismiss the claim, allowing courts to forgo analysis of the other element if one is dispositive. Courts maintain a strong presumption that counsel's conduct is within the bounds of reasonable professional assistance, and tactical decisions, even if unsuccessful, typically do not constitute ineffective assistance. In this case, the counsel's decision not to request a lesser-included instruction on reckless homicide was deemed a reasonable strategy, leading to the affirmance of the trial court's decision. The judgment is affirmed, costs are assessed to the appellant, and a special mandate is issued for execution of the judgment. A stay on execution of the sentence is temporarily continued to allow for the possibility of an appeal to the Supreme Court of Ohio, with specified conditions regarding duration and termination. A certified copy of this entry serves as the mandate.