[Cite as State v. Berry , 2021-Ohio-1132.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO, CASE NO. 14-20-05 PLAINTIFF-APPELLEE,

v. JONATHAN E. BERRY, O P I N I O N
DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2019-CR-0028 Judgment Affirmed Date of Decision: April 5, 2021

APPEARANCES: Rocky Ratliff for Appellant Andrew M. Bigler for AppelleeCase No. 14-20-05

-2- WILLAMOWSKI, P.J. {¶1} Defendant-appellant Jonathan E. Berry (“Berry”) appeals the judgment of the Union County Court of Common Pleas. In this ca se, Berry was charged with five counts of aggravated trafficking in drugs and one count of involuntary manslaughter. Doc. 1. Four of the counts of aggra vated trafficking in drugs arose from controlled buys. Ex. 202, 209, 215, 222. The fifth count of aggravated trafficking in drugs arose from an alleged transacti on between Berry and Ashley Russell (“Ashley”). After this alleged transaction, Ash ley died from a drug overdose, giving rise to the charge of involuntary manslaughter . Doc. 1. On appeal, Berry raises ten assignments of error that challenge various as pects of his jury trial. For the reasons set forth below, the judgment of the trial cour t is affirmed. Facts and Procedural History {¶2} Ashley and her two children lived with her parents in Marysvill e, Ohio. Jan. 14 Vol. II Tr. 93. Ex. 230. She and her two child ren moved into her parents’ house in Marysville, Ohio after she began battling a d rug addiction. Jan. 14 Vol. II Tr. 28, 30-31. Ex. 256. Ashley was friends with Be rry and would drive him places since he did not have a driver’s license. Jan. 14 V ol. II Tr. 36, 50, 132. Jan. 15 Vol. II Tr. 328. Ashley’ s mother , Tonya Russell (“Tony a”), suspected that Ashley and Berry were doing drugs together. Jan. 14 Vol. II Tr . 38. Tonya texted Berry “[t]o tell him * * * that I knew he was selling her [Ashl ey] drugs or giving them to her * * * and I wanted it to stop.” Jan. 14 Vol. II Tr . 38. However, inCase No. 14-20-05

-3- response, Berry insisted that he was “cutting ties with * * * d ope” and that they were just “spending time together.” Jan. 14 Vol. II Tr. 52. {¶3} Deputy Rod Wilson (“Deputy Wilson”) of the Union County Sheriff ’s Office testified that he became acquainted with Berry through s everal complaints that his office had received. Jan. 13 Vol. II Tr. 5, 7. In Fe bruary of 2017, the police conducted a traffic stop of a vehicle and found methamphetamine s in the possession of G.C. Jan. 13 Vol. II Tr. 7. Pursuant to an agreement with the Union County Prosecutor’s Office (“defendant’s agreement”), G.C. consented t o work with the police as a confidential informant. Ex. 229. Jan. 13 Vol. II Tr. 8. G.C. would participate in four controlled-buy operations that had Berry as their target. Jan. 13 Vol. II Tr. 7. {¶4} On April 7, 2017, Deputy Wilson issued $80.00 to G.C. to purcha se methamphetamines from Berry. Ex. 199, 200, 202. G.C. walked t o an area behind a local repair shop where he had arranged a meeting with Berry. Ex. 202. G.C. returned to Deputy Wilson with $40.00 and a white powdery subst ance. Ex. 199, 200. This substance was later tested and found to contain meth amphetamines. Ex.
225. See Jan. 13 Vol. II Tr. 21-24, 27-28, 35-39. {¶5} On April 27, 2017, Deputy Wilson issued $80.00 to G.C. to purch ase methamphetamines from Berry. Ex. 206, 207. G.C. walked to a n earby parking lot at a local shopping plaza where he had arranged to meet Berry. Ex. 209. G.C. returned to Deputy Wilson with $20.00 and a crystalline substan ce. Ex. 206. ThisCase No. 14-20-05

-4- substance was later tested and found to contain methamphetamine s. Ex. 226. See Jan. 13 Vol. II Tr. 56-60, 64-65, 70-71. {¶6} On June 16, 2017, Deputy Wilson issued $80.00 to G.C. to purcha se methamphetamines from Berry. Ex. 212, 213, 215. G.C. again wa lked to a nearby parking lot at a local shopping plaza where he had arranged to meet Berry. Ex. 215. G.C. returned to Deputy Wilson with a crystalline substance and no excess funds in his possession. Ex. 212, 213. This substance was later tested and found to contain methamphetamines. Ex. 227. See Jan. 13 Vol. II Tr. 75, 77-80. This was the final controlled-buy operation involving Berry before Ashley’s death. Ex. 258. {¶7} On June 18, 2017, Berry engaged in a text exchange with Ashley. Ex. 173. Berry texted Ashley: “I got ur Chinese.” Ex. 173. At tri al, Detective Seth McDowell (“Detective McDowell”) of the Union County Sheriff’s O ffice testified that “Chinese” is used as a name for a compound that “contains fentanyl, whether it is made up of heroin and/or methamphetamine.” Jan. 15 Vol. II Tr. 350. During this exchange, Ashley texted, “So how can I get that from you?” Ex. 177. Berry then texted, “Give me a few want to wait till on the morning an d come get it after u drop ur boys.” Ex. 179. {¶8} On June 19, 2017 at 7:40 A.M., the following text exchange took place between Ashley and Berry: [Berry]: I. In town babe I need uCase No. 14-20-05

-5- [Ashley]: Ok im getting ready to take [my son] to daycare. Wh ere will you be? [Berry]: Parking g lot of the Dollar tree * * * [Ashley]: I am hurrying. My mom doesnt leave until 9 so shes still here. Doc. 193, 194. At 8:48 A.M., the following exchange occurred: [Ashley]: Did you bring that gor meet [Ashley]: Im righy by yhe YMCA [Berry]: Coming out of house.e depot [Berry]: Home depot [Ashley]: Im here in front of laen mowers [Berry]: Coming Doc. 195. At trial, the State introduced footage from a securi ty camera at Home Depot that captured images of Berry and Ashley walking together . Ex. 248. Jan. 16 Vol. I Tr. 61-62. {¶9} At around 1:00 P.M., Ashley’s Aunt, Lisa Crumb (“Crumb”), stopp ed by Ashley’s residence during her (Crumb’s) lunch break from wor k. Jan. 15 Vol. II Tr. 298. Crumb testified that she went to Ashley’s house to borrow a hair dryer. Jan. 15 Vol. II Tr. 299. She further stated that, at the time of her visit, Ashley’s children were in the swimming pool. Jan. 15 Vol. II Tr. 299. During their conversation, Crumb learned that Ashley had met Berry that morn ing at HomeCase No. 14-20-05

-6- Depot. Jan. 15 Vol. II Tr. 299-300. After using the hair drye r, Crumb then returned to work. Jan. 15 Vol. II Tr. 300. {¶10} On the afternoon of June 19, 2017, Ashley’s aunt, Gayla Wooldri dge (“Wooldridge”), was visiting her parents (“Ashley’s grandparent s”) at their house. Jan. 15 Vol. II Tr. 270-271. Ashley’s grandparents lived down the street from Ashley. Jan. 15 Vol. II Tr. 270-271. Wooldridge stated that, during her visit, Ashley’s six year old son came to Ashley’s grandparents’ house to report “that he thought something was wrong with Ashley.” Jan. 15 Vol. II Tr. 270-271. See Jan. 14 Vol. II Tr. 31. Wooldridge then went to check on Ashley. J an. 15 Vol. II Tr. 271. Wooldridge went to Ashley’s house with her nephew, M.R. Jan. 15 Vol. II
Tr. 276. {¶11} When Wooldridge arrived at Ashley’s residence, the front door w as open. Jan. 15 Vol. II Tr. 271. Wooldridge walked into the hou se and went to the upstairs bathroom. Jan. 15 Vol. II Tr. 271. The bathroom door was locked, so she and M.R. found the key and opened the door. Jan. 15 Vol. II Tr . 217. They then saw Ashley lying on the floor in the bathroom. Jan. 15 Vol. II Tr. 271. Ashley was unresponsive and was, by that point, turning blue. Ex. O. Woo ldridge then called 9-1-1. Jan. 15 Vol. II Tr. 272. {¶12} The emergency squad arrived at Ashley’s residence and transport ed her to the hospital where she was declared dead at 5:07 P.M. J an. 15 Vol. I Tr. 7, 18, 124. Crumb went to the hospital when she heard about Ashle y. Jan. 15 Vol. IICase No. 14-20-05

-7- Tr. 300. Crumb spoke with the law enforcement officers who wer e at the hospital and informed them that Ashley had met Berry that morning at Hom e Depot. Jan. 15 Vol. II Tr. 300. {¶13} The police examined the bathroom where Ashley was found. Jan. 16 Vol. I Tr. 16. Corporal Nathan Stone (“Corporal Stone”) discov ered a hypodermic needle, a Q-tip with the end ripped off, and a make-up bag behi nd the bathroom door. Jan. 16 Vol. I Tr. 18. Ex. 234. He determined that thi s make-up bag was, based on its c ontents, a “rig bag.” J an. 16 Vol. I Tr. 19. At trial, he explained that a rig bag contains “all the items [a drug user] would need to s hoot up, smoke, whatever you want to administer. ” Jan. 16 Vol . I Tr. 19. D u ring the investigation into Ashley’s death, the police recovered Ashley’s cell phone f rom her residence. Jan. 16 Vol. I Tr. 23. Her cell phone contained text messages that indicated she was a drug user and was in contact with Berry. Jan. 16 Vol. I Tr. 31, 36. {¶14} Corporal Stone also discovered a white powdery substance that w as in a plastic baggie that had been placed into another plastic b aggie. Jan. 16 Vol. I Tr. 33. Ex. 247. He stated that this package “looked like * * * it had been packaged for distribution” and looked like it had “never been opened.” Jan. 16 Vol. I Tr. 122. This white powdery substance was subsequently tested and found to contain fentanyl and ketamine. Jan. 15 Vol. I Tr. 69. Ex. 253. {¶15} The police decided to have G.C. perform a fourth controlled-buy operation with Berry as part of the investigation into Ashley’s death. Jan. 13 Vol.Case No. 14-20-05

-8- II Tr. 89. On June 21, 2017, Deputy Wilson issued $85.00 to G. C. to purchase a gram of methamphetamines from Berry. Ex. 221, 222. This time G.C. went to Berry’s residence for the drug transaction. Ex. 222. During t his operation, G.C. spoke with Berry about Russell. Jan. 16 Vol. I Tr. 60. {¶16} A recording of this conversation was admitted at trial. Ex. 22 4. Speaking to G.C., Berry said that he had seen Ashley on the day of her death and that she had given him $15.00 for a ride to Columbus. Jan. 16 Vol. I Tr. 60. G.C. returned from Berry’s house with a crystalline substance and no excess funds in his possession. Ex. 221, 219. This substance was later tested and found to contain methamphetamines. Ex. 228. See Jan. 13 Vol. II Tr. 89-91, 93-97. {¶17} On August 29, 2017, Dr. Bryan D. Casto (“Dr. Casto”) conducted a postmortem examination of Ashley’s remains. Ex. 255. He concl uded that the cause of Ashley’s death was “[m]ultiple drug intoxication (fent anyl, amphetamine/ methamphetamine).” Ex. 255. On September 5, 2017, Dr. David A pplegate (“Dr. Applegate”), the Union County Coroner, determined that Ashley’s death had been an accident, having resulted from a drug overdose. Ex. 258. {¶18} On February 15, 2019, Berry was indicted on five counts of aggravated trafficking in drugs in violation of R.C. 2925.03(A) (1), felonies of the fourth degree. Doc. 1. Four of these counts of aggravated tra fficking in drugs arose from the four controlled-buy operations between G.C. and Berry. Mar. 6 Tr. 32. One of these charges for aggravating trafficking in drugs arose from the allegedCase No. 14-20-05

-9- transaction between Ashley and Berry at Home Depot on June 19, 2017. Mar. 6 Tr. 32. Berry was also indicted on one count of involuntary mansla ughter in violation of R.C. 2903.04(A), a felony of the first degree. Doc. 1. {¶19} Berry’s jury trial was held in between January 13 and January 1 6, 2020. Jan. 13 Vol. I Tr. 1. Jan. 16 Vol. I Tr. 1. At trial, the State called G.C. to testify. Jan. 14 Vol. I Tr. 114. However, G.C. invoked his Fi fth Amendment right against self-incrimination and refused to testify. Jan. 14 Vol . I Tr. 126. The State then granted G.C. immunity “as it relates to, one, any question s asked by the prosecutor this afternoon; and, two, specifically as it relates to any events” connected to the four controlled-buy operations. Jan. 14 Vol. I Tr. 134. The trial court then informed G.C. that he did not have a Fifth Amendmentright against selfincrimination in this context and that he must testify or be fo und in contempt. Jan. 14 Vol. I Tr. 135. However, G.C. still refused to testify. Ja n. 14 Vol. I Tr. 152. The trial court then held G.C. in contempt. Jan. 14 Vol. I Tr. 160. {¶20} After the State rested, the Defense made Crim.R. 29 motions for each of the charges against Berry. Jan. 16 Vol. I Tr. 198-199. The trial court overruled these motions. Jan. 16 Vol. I Tr. 203. The jury then returned verdicts of guilty for each of the six charges against Berry. Doc. 194-199, 201. {¶21} On March 6, 2020, Berry appeared before the trial court for sentencing. March 6 Tr. 1. The trial court determined that ch arge of aggravated trafficking in drugs that arose from the alleged transaction be tween Ashley andCase No. 14-20-05

-10- Berry merged with the charge of involuntary manslaughter. Doc. 206. The State elected to proceed to sentencing on the charge of involuntary m anslaughter. March 6 Tr. 33. The trial court imposed an eleven-year prison term f or Berry’s conviction for involuntary manslaughter and then imposed eighteen-month pr ison sentences for each of Berry’s remaining convictions. Doc. 206. The tria l court then ordered these prison terms to be served consecutively. Doc. 206. Thus , Berry was sentenced to a “combined prison term * * * [of] 17 years.” Doc. 206. {¶22} The appellant filed his notice of appeal on March 26, 2020. Do c. 215. On appeal, Berry raises the following ten assignments of error: First Assignment of Error The record contained insufficient evidence to support a convict ion for aggravated possession of drugs in violation of R.C. 2925.03 and for involuntary manslaughter in violation of R.C. 2903.04. 1 Second Assignment of Error The conviction for aggravated possession of drugs in violation of R.C. 2925.03 and for involuntary manslaughter in violation of R.C. 2903.04 was contrary to the manifest weight of the evidenc e. Third Assignment of Error The trial court erred when it failed to give any jury instructi on regarding causation. Fourth Assignment of Error

1 In the appellant’s brief, the assignment of error states that Berry is challenging his conviction for “aggravated possession of drugs.” Appellant’s Brief, 6, 11. Ho wever, Berry was indicted on five counts of aggravated trafficking in drugs. Doc. 1. We will conduct our analysis accordingly.Case No. 14-20-05

-11- The trial court erred when it failed to grant a mistrial after the jury was tainted by the statements from a potential juror. Fifth Assignment of Error The trial court erred when it failed to grant a mistrial or a continuance due to late disclosure of the confidential informan t’s agreement. Sixth Assignment of Error The trial court incorrectly ruled as it pertained to confidenti al informant’s constitutional right against self-incrimination and the subsequent criminal contempt findings prejudiced appellant. Seventh Assignment of Error The trial court erred when it allowed text messages to be enter ed in violation of appellant’s confrontation clause and where hear say was offered for the truth of the matter asserted. Eighth Assignment of Error The trial court erred when it allowed family members to be present during the trial prior to their testimony being given i n violation of any separation of witnesses. Ninth Assignment of Error Appellant was denied his constitutional right to the effective assistance of counsel. Tenth Assignment of Error The trial court erred when appellant received the maximum sentence. First Assignment of ErrorCase No. 14-20-05

-12- {¶23} Berry argues that one of his convictions for aggravated traffic king in drugs and his conviction for involuntary manslaughter are not s upported by sufficient evidence. Legal Standard {¶24} A challenge to the sufficiency of the evidence supporting a con viction “is a question of law and a ‘test of adequacy rather than credi bility or weight of the evidence.’” State v. Beaver , 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40, quoting State v. Berry , 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. “The sufficiency-of-the-evidence analysis addresses the question of whether adequate evidence was produced for the case to be considered by the trie r of fact and, thus, whether the evidence was ‘legally sufficient to support the ver dict * * *.’” State v.
Luebrecht , 3d Dist. Putnam No. 12-18-02, 2019-Ohio-1573, ¶ 36, quoting State v. Worthington , 3d Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶ 12. On appeal, the applicable standard is whether, after viewing the evidence in the light most favora ble to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.
State v. Brown , 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 8, quoting State v. Plott , 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). Legal Analysis: Aggravated Trafficking in DrugsCase No. 14-20-05

-13- {¶25} To establish a conviction for the offense of aggravated traffic king in drugs in violation of R.C. 2925.03(A)(1), the State must prove that the defendant “[1] knowingly * * * [2] [sold] or offer[ed] to sell [3] a cont rolled substance or a controlled substance analog.” R.C. 2925.03(A)(1), (C)(1)(a). On appeal, Berry does not challenge any of the four charges of aggravated traffi cking in drugs that arose from the controlled buys with G.C. He only challenges th e charge that arose from his June 19, 2017 meeting with Ashley at Home Depot. 2 {¶26} In this case, the State introduced text messages that had been exchanged between Ashley and Berry on June 18 and June 19, 2017 . At trial, Lela J. Berry (“Lela”), Berry’s mother, was called as a witness and confirmed that the phone number associated with these texts was, in fact, Berry’s. Jan. 15 Vol. II Tr. 338. At 5:50 P.M on June 18, 2017, the following text exchange occurred: [Ashley:] Been patient holding... [Berry:] I got ur Chinese

2 Berry’s conviction for aggravated trafficking in drugs for thi s particular transaction merged with his conviction for involuntary manslaughter at sentencing. Mar. 6 Tr. 32-33. However, to establish a conviction for involuntary manslaughter, the State must prove that the def endant committed a felony that proximately caused the death of another. Brown, supra , ¶ 11 (holding “[t]he ‘criminal intent of involuntary manslaug hter is supplied by the criminal intent to do the underlying unlawfu l act of which the homicide is a consequence’”), quoting State v. Potee , 2017-Ohio-2926, 90 N.E.3d 58, ¶ 32 (12th Dist.). In this cas e, the State alleged that the offense of aggravated trafficking in drugs arising from the transaction between Ashley and Berry on June 19, 2017 proximately caused the death of Ashley. Thus, Berry’s conviction for involuntary manslaughter rests on the State having proved this underlying offense. For this reason, we will examine the record to determine whether the state provided sufficient evidence to sup port this conviction even though this conviction was merged by the trial court at sentencing.Case No. 14-20-05

-14- Doc. 173. At trial, Detective McDowell and Corporal Stone test ified about the meaning of the word “Chinese” in this context based upon their knowledge, training, and experience. Jan. 15 Vol. II Tr. 350. Jan. 16 Vol. I Tr. 4 0. {¶27} Detective McDowell testified that, in drug vernacular, “Chinese contains Fentanyl, whether it is made up of heroin and/or metha mphetamine.” Jan. 15 Vol. II Tr. 350. He also confirmed that “Chinese” “relates to the compound of fentanyl” and that the fentanyl “could be in any drug.” Jan. 1 5 Vol. II Tr. 351. He then testified that “when people are seeking out Chinese, they are looking for—or they know that the drug is—there’s a strong chance of containin g fentanyl.” Jan. 15 Vol. II Tr. 351. {¶28} Corporal Stone testified on the word “Chinese” as follows: Chinese is an interesting term or—street term for it is China white.
* * * China white has changed to some degree and drug vernacular changes at times. Originally, * * * it was high quality white Heroin believed to be from China. And then it has changed to b e high quality Fentanyl or Fentanyl laced Heroin * * *. [B]asica lly, any time you get a white depressant, it’s going to be Fentanyl based, a high quality Heroin base but there could be additives in it to make it better. Jan. 16 Vol. I Tr. 42. He stated that these additives “could b e Methamphetamine, Cocaine, Ketamine” and noted that Ashley died from “intoxicatio n of Fentanyl and Methamphetamine and Amphetamine.” Jan. 16 Vol. I Tr. 42.Case No. 14-20-05

-15- {¶29} Corporal Stone also testified that there are “different qualifi ers” for “Chinese,” including “slow lane” and “fast lane.” Jan. 16 Vol. I Tr. 40. [I]n the context of this, slow lane, it’s going to be depressan t * * *. It’s a depressant. It’s an opioid. Fentanyl, Heroin, prescrip tion medications. Slow lane is typically going to be a depressant. Jan. 16 Vol. I Tr. 40-41. He further confirmed that “slow lane ” could encompass “Fentanyl-Methamphetamine * * *, especially when you speak abou t the Chinese in particular.” Jan. 16 Vol. I Tr. 42. Based on the context o f these text messages, Corporal Stone concluded that, in using the term “Chinese,” “[t ]hey’re not talking about Lo Mein. They’re talking about dope.” Jan. 16 Vol. I Tr . 40. {¶30} At 7:34 P.M on June 18, 2017, the following exchange occurred between Ashley and Berry: [Ashley:] Did you make it to dinner? [Berry:] Omfg what a disaster [Berry:] This b**** is nodding out in her food at the table [Ashley:] Oh so you can get her that but you won’t me?? Unacceptable babe. [Berry:] I just told you I got it for u [Berry:] I didn’t get it for her I got it for you and she saw it
* * * [Berry:] If I showed up to dinner at her house f***ed up like this I would never hear the f***ing end of it.Case No. 14-20-05

-16- Doc. 174-175. At trial, Berry’s mother, Lela testified that Be rry lives at her house. Jan. 15 Vol. II Tr. 327. She confirmed that Berry’s girlfriend came over for dinner one night and had trouble staying awake and “went to sleep.” J an. 15 Vol. II Tr.
329. {¶31} At 8:42 P.M. on June 18, 2017, the following text exchange occu rred: [Ashley:] So how can I get that from you? [Berry:] Usually with two tens and a thong [Ashley:] 1 I got no problem. . . I hot thongs for days and wo uld be happy to model them for you anytime. . . the 2 tens. . . wil l you accept IOU’s? Lol [Berry:] Yep [Berry:] Give me a few want to wait till on the morning and co me get it after u drop ur boys [Ashley:] Do you have any idea how bad I need it for sleeping purposes. * * * [Ashley:] You have a continuous flow of energy. . . I do not. I am miserable right now
* * * [Berry:] C wat I can do [Ashley:] Thank you. . . Thank you. . . Thank you Doc. 177, 179, 181. At trial, Corporal Stone testified that th e text referring to “two tens and a thong” was discussing payment. Jan. 16 Vol. I Tr. 8 2-83. He said,Case No. 14-20-05

-17- Two tens meaning $20 and a thong. It’s payment for drugs. You pay with money but it’s not uncommon to pay with stolen items or with people’s bodies or pictures * * * obviously, a thong is a type of underwear but the way I read that context, based on my training, experience and this investigation, she was offering e ither services or pictures or some type of her body as payment for do pe. Jan. 16 Vol. I Tr. 82-83. On cross-examination, he confirmed t hat Ashley had sent pictures of her private areas to obtain drugs. Jan. 16 Vol. I Tr. 167. Further, Detective McDowell testified that he had an interview with Berr y after Ashley’s death. Jan. 15 Vol. II Tr. 340. During this interview, Berry told McDowell that he obtained Chinese from a person named Dutch “for about approxima tely $20. * * * $20 at a time.” Jan. 15 Vol. II Tr. 350. {¶32} At 10:05 P.M. on June 18, 2017, the following text exchange beg an: [Ashley:] So is that a no go for tonight? [Berry:] Not necisary gimme a few [Ashley:] My fingers are crossed [Ashley:] Just checking in [Ashley:] Wyd? [Berry:] Trying to get a ride Doc. 182, 183. Corporal Stone testified that “WYD” was “common vernacular for what are you doing.” Jan. 16 Vol. I Tr. 87. {¶33} At 1:26 A.M. on June 19, 2017, the following exchange began: [Berry:] You upCase No. 14-20-05

-18- [Ashley:] Yes [Berry:] Wat u doin [Ashley:] Nothin. . . wishing I could see you [Berry:] I am home at my mom’s [Ashley:] Wish I could get out there. . . [Berry:] Me to [Berry:] Lots on my mind. . . .smh [Berry:] I saved you some [Ashley:] Me too... [Ashley:] Thank you [Berry:] And if I could find you away here [Ashley:] I need to end to this madness [Berry:] What madness [Berry:] The staying up or the other reality my demons are try ing to create [Ashley:] Both. . . lol Doc. 183, 184, 185. {¶34} At 7:40 A.M. on June 19, 2017, the following exchange began: [Berry:] I. in town babe I need u [Ashley:] Ok im getting ready to take [my son] to daycare. Wh ere will you be? [Berry:] Parking g lot of the Dollar tree over heatedCase No. 14-20-05

-19- * * * [Ashley:] I am hurrying. My mom doesnt leave until 9 so shes still here. [Berry:] Call me if can
* * * [Ashley:] Did you bring that gor meet [Berry:] Im righy by yhe YMCA [Ashley:] Coming out of house.e depot [Berry:] Home Depot [Ashley:] Im here in frony of laen mowers [Berry:] Coming Doc. 193, 194, 195. {¶35} Corporal Stone testified that Ashley sent text messages solicit ing drugs from several people in the days leading up to her death. Jan. 16 Vol. I Tr. 178. However, he also confirmed that, after Ashley had met wit h Berry at Home Depot on June 19, 2017, “her drug seeking behavior stop[ped]”, and that “[s]he didn’t try to find drugs after that[.]” Jan. 16 Vol. I Tr. 178 . Corporal Stone testified that it was the content of the text messages between Ashley and Berry on June 18 and June 19, 2017 that led him to believe that Berry was the mo st likely suspect in the investigation into Ashley’s death. Jan. 16 Vol. I Tr. 142.Case No. 14-20-05

-20- {¶36} At trial, Corporal Stone testified that he went to Home Depot a nd examined their security footage. Jan. 16 Vol. I Tr. 50-51. He stated that he observed Berry, Ashley, and one of Ashley’s children together at Home De pot in footage captured on the security cameras. Jan. 16 Vol. I Tr. 50-51. T his footage was played for the jurors at trial. Jan. 14 Vol. II Tr. 96, 98. Corporal Stone testified that he could not find another reason for Ashley and Berry to meet at H ome Depot aside from a drug related transaction. Jan. 16 Vol. I Tr. 175-176. {¶37} Crumb testified that she had texted with Ashley on the day of h er death and had been close with Ashley. Jan. 15 Vol. II Tr. 290, 292. She stated that she had been addicted to prescription pain medication and could relate to Ashley’s addiction for that reason. Jan. 15 Vol. II Tr. 291. Crumb sta ted that she left work during her lunch break on June 19, 2017 to go to Ashley’s resid ence and borrow a hair dryer. Jan. 15 Vol. II Tr. 298. She testified that, afte r Ashley’s death, she informed the police that Ashley had indicated that she had met Berry at Home Depot that morning. Jan. 15 Vol. II Tr. 300. {¶38} Detective McDowell testified that he sat down for an interview with Berry at the Tri County Regional Jail. Jan. 15 Vol. II Tr. 340 . During this interview, he asked Berry about “Chinese.” Jan. 15 Vol. II Tr. 349. At t rial, Detective McDowell testified as follows about this conversation: towards the end of the interview, he had mentioned that when we got into the source of supply of where he would purchase * * * this Chinese from, he had said that he typically purchases from a gu yCase No. 14-20-05

-21- by the nickname of Dutch and Dutch sells him—he usually— typically purchases this Chinese from him for approximately $20
. Jan. 15 Vol. II Tr. 349-350. Detective McDowell stated that he asked Berry about his source or “plug.” Jan. 15 Vol. II Tr. 351-352. In respons e, Berry stated “[t]hat he [Berry] could get [Detective McDowell] anything [he] wanted * * *.” Jan. 15 Vol. II Tr. 352. Detective McDowell also testified that Berry admitted to having done drugs with Ashley. Jan. 15 Vol. II Tr. 359. {¶39} Jennifer Watson (“Watson”), who is a chemistry technical leader at the Miami Valley Regional Crime Laboratory, testified about the contents of the substance that the police had found in Ashley’s residence durin g the police investigation into her death. Jan. 15 Vol. I Tr. 58. She stat ed that testing revealed that this white powder contained fentanyl and ketamine. Jan. 1 5 Vol. I Tr. 60. See Ex. 253. Watson testified that fentanyl is a Schedule II contr olled substance and that ketamine is a Schedule III controlled substance. Jan. 15 Vol. I Tr. 70. See Ex.
253. {¶40} After viewing the evidence presented by the State at trial in a light most favorable to the prosecution, we find that a rational trie r of fact could have concluded that Berry committed the offense of aggravated traffi cking in drugs in violation of R.C. 2925.03(A)(1) on June 19, 2017. Since the St ate produced some evidence to substantiate each of the essential elements of this offense, we concludeCase No. 14-20-05

-22- that this conviction was supported by sufficient evidence. For this reason, this argument is without merit. Legal Analysis: Involuntary Manslaughter {¶41} To establish a conviction for the offense of involuntary mansla ughter in violation of R.C. 2903.04(A), the State has to prove that th e defendant “(1) caused the death of another (2) as a proximate result (3) of the offen der’s committing a felony.” State v. Brown , 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 11, citing R.C. 2903.04(A). The “criminal intent of involuntary manslaugh ter is supplied by the criminal intent to do the underlying unlawful act of which the homicide is a consequence.” State v. Potee , 2017-Ohio-2926, 90 N.E.3d 58, ¶ 32 (12th Dist.). {¶42} We have already determined that the State provided some evidenc e for each of the essential elements of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), a felony of the fourth degree. In so doing , the State provided some evidence to establish the third element of the offense of involuntary manslaughter. See Brown, supra , at ¶ 11. We turn now to the other two elements of this offense. {¶43} The text messages that were discovered between Ashley and Berry indicated that Berry had obtained “Chinese” for Ashley. Jan. 1 6 Vol. I Tr. 39-42. Corporal Stone testified that “Chinese” in drug vernacular refe rred to a compound that contained fentanyl. Jan. 16 Vol. I Tr. 39-42. Further, W ooldrige testified that she discovered Ashley’s body in the bathroom and that she calle d 9-1-1. Jan. 15Case No. 14-20-05

-23- Vol. I Tr. 271, 284. Zach Welch (“Welch”), a firefighter for t he City of Marysville, testified that he was part of the team that responded to this c all. Jan. 15 Vol. I Tr. 7. Welch stated that his team administered overdose treatments to Ashley and then brought her to the hospital. Jan. 15 Vol. I Tr. 14, 18. {¶44} At trial, Dr. Casto testified that Ashley died of a drug overdo se and that “there really [was] no other reason for her to be dead. S he does not have natural disease, she does not have an injury that would explain her dea th.” Jan. 15 Vol. I Tr. 169. He stated that her cause of death was multiple drug i ntoxication with “the drugs of significance” being fentanyl and amphetamines/methamph etamine. Jan. 15 Vol. I Tr. 170. {¶45} Dr. Matthew Juhascik (“Dr. Juhascik”), the chief toxicologist a t the Montgomery County Coroner’s Office, testified that they found f entanyl and methamphetamines in Ashley’s system. Jan. 15 Vol. I Tr. 146. Further, Dr. Applegate testified that, as the Union County Coroner, he had r uled Ashley’s manner of death to be an accidental overdose death based upon t he findings of the autopsy report from Montgomery County. Jan. 15 Vol. II Tr. 236

. See Ex. 258. {¶46} During the police investigation into Ashley’s death, Corporal S tone testified that the police found what appeared to be an unused b ag of drugs in the bathroom with Ashley but did not report finding any other illic it drugs at the residence during the investigation. Jan. 16 Vol. I Tr. 33. Th e State introduced testimony that drug paraphernalia was found in proximity to Ash ley’s body. Jan.Case No. 14-20-05

-24- 16 Vol. I Tr. 18-19. The police introduced pictures of a needl e, a Q-tip, and a rig bag on the bathroom floor where Ashley was found. Ex. 234. Ji m Fish (“Fish”), an investigator with the Union County Coroner’s Office, testified at trial that Ashley had “fairly new” needle marks on her arm. Jan. 15 Vol. I Tr. 2 05. {¶47} After viewing the evidence presented by the State at trial in a light most favorable to the prosecution, we find that a rational trie r of fact could have concluded that Berry committed the offense of involuntary mansl aughter in violation of R.C. 2925.03(A)(1). Since the State produced some evidence to substantiate each of the essential elements of this offense, we conclude that this conviction is supported by sufficient evidence. As such, Berry ’s first assignment of error is overruled. Second Assignment of Error {¶48} Berry argues that one of his convictions for aggravated traffic king in drugs in violation of R.C. 2925.03(A)(1) and his conviction for involuntary manslaughter in violation of R.C. 2903.04(A) are against the ma nifest weight of the evidence. Legal Standard {¶49} In a manifest weight analysis, “an appellate court’s function * * * is to determine whether the greater amount of credible evidence su pports the verdict.” Plott, supra , at ¶ 73. Thus, “the appellate court sits as a ‘thirteenth ju ror’ * * *.”Case No. 14-20-05

-25- State v. Davis , 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Appellate cou rts must review the entire record, weigh the evidence and all of th e reasonable inferences, consider the credibility of witnesses, a nd determine whether in resolving conflicts in the evidence, the factfinder ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ State v. Brentlinger , 2017-Ohio-2588, 90 N.E.3d 200, ¶ 36 (3d Dist.), quoting Thompkins at 387. {¶50} “A reviewing court must, however, allow the trier of fact appro priate discretion on matters relating to the weight of the evidence an d the credibility of the witnesses.” State v. Sullivan , 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.), quoting State v. Coleman , 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “[I]t is well established that the * * * credibility of the witnesses [is] primarily a matter for the trier of fact.” State v. Gervin , 2016-Ohio-8399, 79 N.E.3d 59, ¶ 142 (3d Dist.), quoting State v. Clark , 101 Ohio App.3d 389, 409, 655 N.E.2d 795 (8th Dist. 1995). “Only in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court ’s judgment.” State v.
Little , 2016-Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. Legal Analysis: Aggravated Trafficking in DrugsCase No. 14-20-05

-26- {¶51} We reincorporate the evidence presented under the first assignm ent of error and proceed to evaluating the evidence presented at trial on the basis of its weight. On cross-examination, Corporal Stone testified that he did not focus alone on Berry as a suspect. Jan. 16 Vol. I Tr. 142. He considered several other contacts in Ashley’s phone. Jan. 16 Vol. I Tr. 142. He stated that, in this process, the police interviewed Crumb. Jan. 16 Vol. I Tr. 128. At trial, he confi rmed that the police informed Crumb that “she was suspected of bringing drugs to Ash ley” during this interview. Jan. 16 Vol. I Tr. 129, 133. He further indicated that Crumb was not initially forthcoming about many details of her relationship wi th Ashley. Jan. 16 Vol. I Tr. 129-130. He also mentioned that Crumb did not, in h er initial statement, mention that she went to see Ashley on June 19, 2017 for the pu rpose of borrowing a hair dryer. Jan. 16 Vol. I Tr. 133. {¶52} The Defense then questioned Corporal Stone about another contac t, S.H., that Ashley had in her phone. Jan. 16 Vol. I Tr. 135. C orporal Stone indicated that he could not verify that S.H. was a drug dealer but could confirm that he had been a drug addict in the past. Jan. 16 Vol. I Tr. 135. The D efense then questioned Corporal Stone about another contact, A.C., that Ashley had in her phone. Jan. 16 Vol. I Tr. 138. Corporal Stone testified that he did not have any information that she was a dealer but could verify that she was an addict. Jan. 16 Vol. I Tr. 138. {¶53} Corporal Stone testified that he determined Berry was the most likely suspect because of the communications between Ashley and Berry in the twelve toCase No. 14-20-05

-27- twenty-four hours before her death. Jan. 16 Vol. I Tr. 142. H e testified that he came to the belief that Berry and Ashley met at Home Depot for a dru g deal because of the content of the text messages they had exchanged. Jan. 16 V ol. I Tr. 157-158. When asked about Berry’s statement to G.C.—that he had seen Ash ley on June 19, 2017 so that she could give him $15.00 for a ride—Corporal Ston e indicated that this statement did not seem to “correlate” with Berry’s actions on that morning. Jan. 16 Vol. I Tr. 155. {¶54} On cross-examination, Ashley’s mother, Tonya, stated that Ashle y did get drugs from Berry but also indicated that Ashley had, at tim es, obtained drugs from other people as well. Jan. 14 Vol. II Tr. 139. She state d that N.C. had been a source of drugs for Ashley before N.C. and Ashley had a falling out. Jan. 14 Vol. II Tr. 114. She also stated that she was not aware of Crumb br inging drugs to Ashley. Jan. 14 Vol. II Tr. 122. The Defense also read the na mes of around nineteen people that Ashley had contacted in the days before her death. Jan. 14 Vol. II Tr. 108-110. Tonya testified that she did not recognize most of th ese names. Jan. 14 Vol. II Tr. 108-110. The Defense also questioned Tonya about t he various prescription drugs that Ashley had been using around the time o f her death. Jan. 14 Vol. II Tr. 116. {¶55} Having reviewed this evidence produced at trial on the basis of its weight and credibility, we conclude that the evidence in the re cord does not weigh heavily against Berry’s conviction for aggravated trafficking i n drugs. Further,Case No. 14-20-05

-28- there is no indication in the record that the jury lost its way and returned a verdict against the manifest weight of the evidence. For this reason, this argument is without merit. Legal Analysis: Involuntary Manslaughter {¶56} We reincorporate the evidence presented under the first assignm ent of error for Berry’s conviction for involuntary manslaughter and p roceed to examining the evidence in the record on the basis of its weight and credi bility. At trial, Corporal Stone testified that he examined the contents of sever al prescription medication bottles in Ashley’s residence and searched for other “illicit drugs.” Jan. 16 Vol. I Tr. 143. He further testified that he looked to see if the pills inside the bottles matched the prescription. Jan. 16 Vol. I Tr. 143. The Defense also asked about whether there were any indications that Ashley may have c ommitted suicide. Jan. 16 Vol. I Tr. 169. Corporal Stone testified that he did n ot find any indication that this death was a suicide. Jan. 16 Vol. I Tr. 173. He sta ted that he had no reason to doubt the assessments of the medical examiners who determine d that this death was an accidental overdose death. Jan. 16 Vol. I Tr. 171-172. See Ex. 255, 258; Jan. 15 Vol. I Tr. 169-170, 146, 236. {¶57} Corporal Stone confirmed that Ashley indicated that she was “miserable” in the text messages that she sent to Berry. Jan. 16 Vol. I Tr. 168. The following exchange occurred between defense counsel and Corpora l Stone:Case No. 14-20-05

-29- [Defense Counsel:] And we know from not only the conversation with Jon Berty [sic] but other people that Ashley was fiending bad up to her death. Correct? [Corporal Stone:] I believe she states that. [Defense Counsel:] And how do you take fiending to mean in the drug world? [Corporal Stone:] So, dope sick. You and me, we don’t need it
. Once they have it in their body, they need it every eight to te n hours or they’re going to get the worse sickness you’ve ever se en. It’s a flu-like vomit, diarrhea. They want death. * * * If th ey’re wanting it, it’s not just them wanting it like me and you want to go get a beer after this. They physically need it. It’s a psychological, mental and physical thing that they need it. [Defense Counsel:] And she’s oftentimes texting at all hours o f the night trying to find it. Correct? [Corporal Stone:] Messaging and texting. Jan. 16 Vol. I Tr. 168-169. {¶58} The Defense also asked Corporal Stone about whether Ashley coul d have had a stash built up that she could have used on the date of her death. Jan. 16 Vol. I Tr. 178. Corporal Stone testified that addicts generall y do not keep a stash. Jan. 16 Vol. I Tr. 178. He stated, “that’s very rare. It’s a quick deal. The best chance you have to catch an addict with their dope is in transi t.” Jan. 16 Vol. I Tr. 178-179. He further stated that: if I buy from you, I’m going to try to set up the next one. Th at’s typical. But to have quantities of drugs on them, that’s just not because they’re using and they’re going to use it and deplete i t rather quickly.Case No. 14-20-05

-30- Jan. 16 Vol. I Tr. 179. He then stated that, once she got the drugs, Ashley would “use them immediately thereafter or [in] close proximity” to wh en she obtained them. Jan. 16 Vol. I Tr. 179. {¶59} Crumb testified that she had given Ashley marijuana in the past but denied transporting drugs to Ashley. Jan. 15 Vol. II Tr. 305. She admitted to having smoked marijuana with Ashley. Jan. 15 Vol. II Tr. 308. Crumb also stated that Ashley had asked her for drugs. Jan. 15 Vol. II Tr. 308. She testified that, upon such requests, she “would just put her off” and “would not get her anything.” Jan. 15 Vol. II Tr. 308. She testified that she knew Berry but stat ed that Berry had never asked her to deliver drugs to Ashley for him. Jan. 15 Vol. II Tr. 308. {¶60} On cross-examination, Crumb testified that she worked as an STN A at Carriage Court but stated that she did not have any access t o drugs. Jan. 15 Vol. II Tr. 310. She also admitted that her initial witness stateme nt to the police did not mention that her purpose in visiting Ashley was to borrow a hai r dryer. Jan. 15 Vol. II Tr. 311. But she denied fabricating this detail after she d iscovered that Ashley had died. Jan. 15 Vol. II Tr. 315. She further admitted to br inging Ashley marijuana but denied taking Ashley any other drugs. Jan. 15 Vol. II Tr. 314, 316. {¶61} On cross-examination, Wooldridge testified that her nephew, M.R ., was present when she discovered Ashley in the bathroom on June 19, 2017. Jan. 15 Vol. II Tr. 276, 278. She stated that M.R. was a drug addict a nd informed her that he did not see any drug paraphernalia around Ashley’s body. Ja n. 15 Vol. II Tr.Case No. 14-20-05

-31- 284. However, she also stated that M.R. was not looking for dr ug paraphernalia and was tending to Ashley at that time. Jan. 15 Vol. II Tr. 287. On cross-examination, Welch, the first responder, also could not identify the picture s of Ashley’s bathroom or the picture of the syringe on the floor. Jan. 15 Vol. I Tr. 32. He stated that he could not recall what the scene looked like at the time he arri ved at Ashley’s residence on June 19, 2017. Jan. 15 Vol. I Tr. 32. However, h is report noted that a syringe was located near to Ashley’s body. Jan. 15 Vol. I Tr. 31. {¶62} While cross-examining Dr. Applegate, defense counsel noted that one of the reports from the Union County Coroner’s Office indicated that the family members had forced themselves into Ashley’s residence. Jan. 15 Vol. II Tr. 250. Defense counsel noted that the family members had testified tha t they did not force themselves into the home but only into the bathroom. Jan. 15 V ol. II Tr. 250. Dr. Applegate testified that he “could not dispute that” testimony. Jan. 15 Vol. II Tr. 250. Defense counsel also noted that Dr. Applegate’s report in dicated that the family members found drug paraphernalia next to Ashley’s body. Jan. 15 Vol. II Tr. 250. Dr. Applegate stated that he believed that this fact was supported by information he had received. Jan. 15 Vol. II Tr. 250-251. {¶63} Defense counsel also noted that the report from the coroner’s o ffice indicated that the investigators found a brown paper bag with d rugs inside. Jan. 15 Vol. II Tr. 253. The report also stated that “fentamine” was f ound in this brown paper bag instead of “fentanyl.” Jan. 15 Vol. II Tr. 255. How ever, Dr. ApplegateCase No. 14-20-05

-32- noted that his secretary had begun to suffer from Alzheimer’s d isease around the time that this report was produced. Jan. 15 Vol. II Tr. 256. He also testified that the context of this situation did not indicate that Ashley had committed suicide and that he, for this reason, went with the “generally-accepted med ical ruling, that overdoses are accidental in nature.” Jan. 15 Vol. II Tr. 257. {¶64} Dr. Juhascik testified that they did not find ketamine in Ashle y’s system. Jan. 15 Vol. I Tr. 143. However, he also stated that ketamine could possibly be present in Ashley’s system but that the test simply did not detect this substance. Jan. 15 Vol. I Tr. 148. He further testified that fentanyl and methamphetamine can cause death and noted that the drugs in Ashley’s system could a lso be found in some prescription drugs. Jan. 15 Vol. I Tr. 146, 160. {¶65} Having considered the evidence presented at trial on the basis of its weight and credibility, we conclude that the evidence in the re cord does not weigh heavily against Berry’s conviction for involuntary manslaughter . Further, there is no indication that the jury lost its way and returned a verdict against the manifest weight of the evidence. As such, Berry’s second assignment of error is overruled. Third Assignment of Error {¶66} Berry argues that the trial court erred by failing to give a ju ry instruction on causation for the charge of involuntary manslaug hter. Legal StandardCase No. 14-20-05

-33- {¶67} “A trial court’s instructions to a jury must correctly, clearly , and completely state the law applicable to the case.” State v. Orians , 179 Ohio App.3d 701, 2008-Ohio-6185, 903 N.E.2d 656, ¶ 10 (3d Dist.). Further, “a defendant is entitled to have the jury instructed on all elements that must be proved to establish the crime with which he is charged.” State v. Gardner , 118 Ohio St.3d 420, 2008- Ohio-2787, 889 N.E.2d 995, ¶ 37, quoting State v. Adams , 62 Ohio St.2d 151, 153, 404 N.E.2d 144, 146 (1980). “Generally, appellate courts revie w alleged errors in jury instructions for an abuse of discretion.” State v. Chavez , 3d Dist. Seneca Nos. 13-19-05, 13-19-06, and 13-19-07, 2020-Ohio-426, ¶ 58. {¶68} However, if the Defense does not object to a jury instruction o r request a specific jury instruction before the trial court, all but pla in error is waived on appeal. State v. Harrison , 2015-Ohio-1419, 31 N.E.3d 220, ¶ 69 (3d Dist.). Under Crim.R. 52(A), “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Crim.R. 52(B). “In order to find plain error under Crim.R. 52(B), there must b e an error, the error must be an ‘obvious’ defect in the trial proceedings, and the error must have affected ‘substantial rights.’” State v. Bowsher , 3d Dist. Union No. 14-07-32, 2009- Ohio-6524, ¶ 12, quoting State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). ‘The standard for plain error is whether, but for the error, the outcome of the proceeding clearly would have been otherwise.’ State v. Hornbeck , 155 Ohio App.3d 571, 2003- Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist.), citing State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).Case No. 14-20-05

-34- State v. Taflinger , 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 17. “The defendant bears the burden of establishing an obvious defect in the proceedings.” State v. Queen , 3d Dist. Logan No. 8-19-41, 2020-Ohio-618, ¶ 7. Further, the plain error doctrine is applicable in exceptional circumstances and o nly to prevent a manifest miscarriage of justice. State v. Cartlidge , 3d Dist. Seneca No. 13-18-33, 2019-Ohio-1283, ¶ 11. {¶69} “Ohio Jury Instructions is a compendium of standard instruction s prepared by the Jury Instructions Committee of the Ohio Judicia l Conference, and is generally followed and applied by Ohio’s courts.” State v. Thompson , 2d Dist. Montgomery No. 22984, 2010-Ohio-1680, ¶ 174. “The instructions found in Ohio Jury Instructions are not mandatory. Rather, they are recommen ded instructions based primarily upon case law and statutes * * *.” State v. Martens , 90 Ohio App.3d 338, 343, 629 N.E.2d 462, 465 (3d Dist.). This Court has previ ously held that, when a “trial court’s instructions closely track the * * * language of the Ohio Jury Instructions,” this “suggests their accuracy and comprehensibil ity.” State v. Smith , 3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 31. Legal Analysis {¶70} On appeal, Berry alleges that the jury instructions for the cha rge of involuntary manslaughter failed to properly explain causation. R.C. 2903.04(A) defines this crime and reads, in its relevant part, as follows:Case No. 14-20-05

-35- No person shall cause the death of another or the unlawful termination of another’s pregnancy as a proximate result of the offender’s committing or attempting to commit a felony. (Emphasis added.) R.C. 2903.04(A). Berry raises two main argu ments under this assignment of error. However, since he did not request a speci fic jury instruction or raise an objection to these jury instructions below, we will review these arguments under the standard for plain error. Jan. 16 Vol. II Tr. 37-44, 67. {¶71} First, Berry argues that the trial court “failed to give any ju ry instruction regarding causation.” Appellant’s Brief, 12. Howe ver, the trial court included the following statement in the jury instructions: Before you can find the Defendant guilty of involuntary manslaughter, you must find that the State of Ohio has proven beyond a reasonable doubt that * * * Jonathan E. Berry did caus e the death of Ashley Russell.
* * * Proximate result bears a resemblance to the concept—concept of proximate cause * * * in that Defendant will be held responsibl e for those foreseeable consequences which are known to be or should be known to be within the scope of risk created by his conduct. * * *
Proximate cause is an act or failure to act that in the natural and continuous sequence, directly produced the physical harm and without which it would not have occurred. There may be more than one proximate cause. When a negligent act or failure to ac t of one party combines with the negligence of another to produce the physical harm, the negligence is a cause.Case No. 14-20-05

-36- Jan. 16 Vol. II Tr. 55-56. These statements are very similar t o the relevant Ohio Jury Instructions for causation: 1. CAUSE. The state charges that the act or failure to act of the defendant caused (death) (physical harm to [person] [property])
. Cause is an essential element of the offense. Cause is an act or failure to act which in a natural and continuous sequence direc tly produces the (death) (physical harm to [person] [property]), an d without which it would not have occurred.
2 OJI-CR 417.23. 1. OTHER CAUSES NOT A DEFENSE. There may be one or more causes of an event. However, if a defendant’s act or fail ure to act was one cause, then the existence of other causes is not a defense.
2 OJI-CR 417.25. 3 {¶72} The offense of involuntary manslaughter includes the elements o f causation and proximate result. R.C. 2903.04(A). A review of the jury instructions reveals that the trial court explained both of these elements, in part, by using the rubric provided by the concept of proximate cause. Jan. 16 Vol . II Tr. 55-56. See State v. Carpenter , 2019-Ohio-58, 128 N.E.3d 857, ¶ 51 (3d Dist.) (holding that “Ohio law generally defines ‘cause’ in criminal cases identical ly to the definition of ‘proximate cause’ in civil cases.”); State v. Chambers , 53 Ohio App.2d 266, 373 N.E.2d 393 (9th Dist. 1977) (holding that “the legislature inte nded to follow the theory of proximate cause” as the basis of liability in R.C. 29 03.04.); State v. Baksi ,

3 The Ohio Jury Instructions for involuntary manslaughter in OJI -CR 503.04 do not contain a separate definition for causation but directs attorneys to use the gener al jury instructions for causation contained in OJI-CR 417.23, OJI-CR 417.25. 2 OJI-CR 503.04.Case No. 14-20-05

-37- 11th Dist. Trumbull No. 98-T-0123, 1999 WL 1299297, *13 (Dec. 2 3, 1999) . Use of this language is not an indication that the trial court fail ed to instruct the jurors on the element of causation. {¶73} Thus, contrary to Berry’s assertion, the record indicates that the trial court adequately explained the causation element for the offens e of involuntary manslaughter in its instructions to the jury. The trial court’ s explanation of causation closely tracked with the language of the Ohio Jury In structions for causation. OJI-CR 417.23, OJI-CR 417.25. See State v. Reese , 7th Dist. Mahoning No. 14 MA 116, 2016-Ohio-557, ¶ 18. Since Berry has not demons trated how this instruction was defective, he cannot carry the burden of establ ishing plain error. As such, his first argument is without merit. {¶74} Second, Berry argues that the trial court should have “includeda ‘butfor’ causation instruction, or an instruction * * * regarding t he ‘substantial’ or ‘contributing’ factor.” Appellant’s Brief, 12. Again, we note that Berry did not propose a specific jury instruction for causation, limiting our analysis to plain error. In his argument, Berry points to the United States Supreme Cour t’s decision in Burrage v. United States as the basis for his argument that an instruction on “‘but for’ causation” is required in this context. Appellant’s Brief , 13, citing Burrage v.
U.S. , 571 U.S. 204, 218-219, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). However, in
State v. Price , the Ohio Supreme Court found that Burrage was “persuasive authority only.” State v. Price , 2020-Ohio-4926, --- N.E.3d ---, ¶ 28. SeeCase No. 14-20-05

-38- Carpenter , supra , at ¶ 49. As such, his reliance on Burrage does not, by itself, establish that the jury instructions were defective in the cont ext of this case. {¶75} In State v. Carpenter , this Court also considered the use of the “but for” test in the context of an involuntary manslaughter charge. Carpenter, supra , at ¶ 52. In that case, this Court stated that [t]here are several tests for actual causation, the most common of which is the ‘but for’ test; however, there are circumstances under which the ‘but for’ test is inapplicable and an act or omission can be considered a cause in fact if it was a ‘substan tial’ or ‘contributing’ factor in producing the result. (Citations omitted.) Id . Further, in State v. Mitchell , this Court held that While ‘but for’ causation is used in the vast majority of cases , there are circumstances where that analysis is inapplicable because, as a matter of law, there can be more than one proxima te cause of an injury.
State v. Mitchell , 3d Dist. Union No. 14-19-14, 2019-Ohio-5168, ¶ 23. {¶76} In the case before this Court, the trial court did not mention the “but for” test in its jury instructions. Jan. 16 Vol. II Tr. 55-56. Instead, the trial court instructed the jury that, in this case, there could be more tha n one cause. Jan. 16 Vol. II Tr. 55-56. The trial court’s decision was not, in this regard, improper under
Mitchell

. Mitchell , supra , at ¶ 23. Thus, this second argument is without merit. In both of these arguments, Berry has not carried the burden of es tablishing that the trial court committed an error let alone a plain error that aff ected the outcome of this case. As such, his third assignment of error is overruled.Case No. 14-20-05

-39- Fourth Assignment of Error {¶77} Berry argues that the trial court erred by overruling his motio n for a mistrial after a potential juror’s statements allegedly tainted the jury pool. Legal Standard {¶78} “A mistrial is an extreme remedy, declared only when a fair tri al is no longer possible.” State v. Sidibeh , 192 Ohio App.3d 256, 2011-Ohio-712, 948 N.E.2d 995, ¶ 44 (10th Dist.). As such, “[m]istrials are neces sary ‘only when the ends of justice so require * * *.’” State v. Welch , 3d Dist. Wyandot No. 16-06-02, 2006-Ohio-6684, ¶ 9, quoting State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio5084, 854 N.E.2d 1038, at ¶ 131. “[A] mistrial should not be o rdered merely because some error or irregularity had intervened.” State v. Carter , 3d Dist. Allen No. 1-15-62, 2017-Ohio-1233, ¶ 71. {¶79} “[T]he trial judge is in the best position to determine whether the situation in [the] courtroom warrants the declaration of a mist rial.” State v. Ahmed , 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 92. For t his reason, the decision to grant or deny a motion for a mistrial lies within t he sound discretion of the trial court. State v. Randle , 2018-Ohio-207, 104 N.E.3d 202, ¶ 29 (3d Dist.). Thus, a trial court’s disposition of a motion for a mistrial wi ll not be disturbed in the absence of an abuse of discretion. Id . “The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it implies that the c ourt’s attitude isCase No. 14-20-05

-40- unreasonable, arbitrary or unconscionable.” State v. Ortega , 3d Dist. Hancock No. 5-16-17, 2017-Ohio-239, ¶ 10, quoting Adams, supra , at 157. Legal Analysis {¶80} In this case, defense counsel made a motion for a mistrial afte r a potential juror made the following remarks during voir dire: [Trial court]: I think—did the next lady have her hand up? * * *. Juror: Yeah. He dated my good friend in high school. [Trial court]: Mr. Berry? Juror: Uh-huh. I believe so. He’s from Plain City. [Trial court]: Okay. So dated good friend?
Juror: Yes. [Trial court]: And you think that that’s going to keep you fro m being able to be fair and impartial in this case? Juror: Probably. [Trial court]: Why? I’ll put you on the spot a little bit. Juror: Well, he never liked me then and he always scared me an d he was the same kind of person back then. [Trial court]: Okay. All right. So the rest of the jurors ne ed to disregard that last part, same kind of person back then. Juror: Sorry. Jan. 13 Vol. I Tr. 21-22. See State v. Palmer , 8th Dist. Cuyahoga No. 89957, 2008- Ohio-2937, ¶ 21.Case No. 14-20-05

-41- {¶81} We begin our analysis of these comments by noting that this pot ential juror was subsequently dismissed and did not, therefore, partic ipate in the jury deliberations. Jan. 13 Vol. I Tr. 48-51. See State v. Richardson , 5th Richland No. 18CA24, 2018-Ohio-4817, ¶ 22 (considering the fact that an alte rnate juror who had made inappropriate comments “did not participate in the deliber ations.”). Nonetheless, Berry asserts that “[t]he entire jury pool was tai nted” by this comment. Appellant’s Brief, 15. However, “[p]rejudice can not generally be presumed but must be affirmatively demonstrated in the record.” State v. Gonzales , 3d Dist. Wyandot No. 16-08-17, 2009-Ohio-1656, ¶ 8. The nature of these comments is not “so egregious” that they overcome this general presumption. State v. Hairston , 4th Dist. Scioto No. 06CA3087, 2007-Ohio-4159, ¶ 15. Berry has als o not raised an argument that demonstrates, from the record, how these remarks biased the jurors or prejudiced the proceedings. Gonzales at ¶ 8. {¶82} Further, the trial court instructed the other jurors to disrega rd this potential juror’s comments. Jan. 13 Vol. I Tr. 22. See State v. Wayt , 83 Ohio App.3d 848, 615 N.E.2d 1107, 1109 (12th Dist. 1992) (considering the t rial court’s corrective measures in response to a juror’s challenged comment s). The trial court later instructed the jurors as to what evidentiary materials th ey could consider in reaching a verdict. Jan. 16, Vol. II Tr. 50. See State v. Williams , 10th Dist. Franklin No. 94APA12-1786, 1995 WL 527672, * 3 (Sept. 7, 1995) (consider ing that a juror’s challenged comments came before the jury had been instr ucted “on the lawCase No. 14-20-05

-42- to be applied in the case.”). We are to presume that the juror s followed the instructions of the trial court. State v. McWay , 3d Dist. Allen No. 1-17-14, 2018- Ohio-3618, ¶ 12. Berry has not given us a reason to dispense w ith this presumption. {¶83} In conclusion, the fact that a potential juror is dismissed dur ing the course of voir dire does not, by itself, render the remaining j urors biased. Berry has not demonstrated from the record that these remarks tainted the jury or prejudiced the remainder of these proceedings. See Gonzalez, supra , at ¶ 8, 10. In other words, he has not established that a fair trial was no longer possible . Having reviewed the materials in the record, we cannot conclude that the trial cour t abused its discretion in denying Berry’s motion for a mistrial. Thus, his fourth ass ignment of error is overruled. Fifth Assignment of Error {¶84} Berry argues that the trial court erred in denying the motion f or a mistrial that he made after the State was late in disclosing th e agreement between the police and the confidential informant. Legal Standard {¶85} We reincorporate the standard for mistrials set forth under the fourth assignment of error. Further, Crim.R. 16 reads, in its relevan t part, as follows: (A) Purpose, Scope and Reciprocity. This rule is to provide al l parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large. All du tiesCase No. 14-20-05

-43- and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal. Once discovery is initiated by demand of the defendant, all parties have a continuing duty to supplement the ir disclosures. (L) Regulation of Discovery. (1) The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course o f the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit t he party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. Crim.R. 16(A), (L)(1). “‘[T]he philosophy of the Criminal Rule s is to remove the element of gamesmanship from a trial.’ The purpose of discover y rules is to prevent surprise and the secreting of evidence favorable to one party. The overall purpose is to produce a fair trial.” City of Lakewood v. Papadelis , 32 Ohio St.3d 1, 3, 511 N.E.2d 1138, 1140 (1987), quoting State v. Howard , 56 Ohio St.2d 328, 333, 383 N.E.2d 912, 915 (1978). When considering whether a discovery violation occurred, courts must consider three factors: (1) whether the failure to disclos e was willful; (2) whether foreknowledge of the undisclosed material would have benefitted the defendant in trial preparation; and ( 3) whether the accused was prejudiced by the late disclosure. State v. Vargo , 7th Dist. Belmont No. 17 BE 0021, 2018-Ohio-2487, ¶ 21, citin g State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 35.Case No. 14-20-05

-44- A trial court must inquire into the circumstances producing the alleged violation of Crim.R. 16. The court is required to impo se the least severe sanction that is consistent with the purpose o f the rules of discovery.
State v. Parker , 53 Ohio St.3d 82, 86, 558 N.E.2d 1164, 1168 (1990). Legal Analysis {¶86} In this case, defense counsel informed the trial court that the State had not disclosed the defendant’s agreement” between G.C., the conf idential informant, and the Union County Prosecutor’s Office. Jan. 13 Vol. I Tr. 1 14. Ex. 229. On the basis of this failure, the Defense objected “to any testimony o r use of [G.C.] here at this trial * * *.” Jan. 13 Vol. I Tr. 115. {¶87} Before the trial began, the State explained that, under this ag reement, G.C. had agreed to be a confidential informant in several contr olled buys. Jan. 13 Vol. I Tr. 116. If G.C. complied with the terms of this agreem ent, he would not be charged with several crimes. Jan. 13 Vol. I Tr. 115-116. Jan. 13 Vol. II Tr. 10. Ex. 229. However, G.C. was caught lying to the police in violation of the defendant’s agreement. Jan. 13 Vol. II Tr. 7, 9. As a result, the defenda nt’s agreement was terminated. Jan. 13 Vol. II Tr. 12. G.C. did not receive the benefit held out under this defendant’s agreement and was charged with a crime. Jan. 13 Vol. II Tr. 13. {¶88} The State identified the fact that the defendant’s agreement wa s violated and terminated as a reason that its late disclosure sh ould not be a basis for a discovery sanction. Jan. 13 Vol. I Tr. 116. Before trial, t he State also produced aCase No. 14-20-05

-45- copy of the defendant’s agreement for the Defense to review. J an. 13 Vol. I Tr. 117, 119. In response, defense counsel stated that he “suspected th ere was a deal, but did not know there was a deal.” Jan. 13 Vol. I Tr. 118. He th en asserted that this late disclosure “could very well have materially, if not drasti cally[,] altered trial strategy in terms of how we approach [G.C.].” Jan. 13 Vol. I T r. 118. The Defense then requested a continuance of the trial. Jan. 13 Vol. I Tr. 118. {¶89} After hearing these arguments, the trial court denied this requ est for a continuance and stated the following: The issue is prejudice. This case has been pending before this Court * * * since February of 2019. Almost an entire year. An d if you wish to have inspected the documents related to the prio r record, you could have done that. If you had any questions abo ut whether or not the State was fully compliant with their obligat ions under Criminal Rule 16, you could have raised that with the Court prior to now.
* * * Objection’s overruled subject to the Court’s order that the Sta te provide the agreement, which turned out not to be an agreement, and record, which you’ve done both of these. And the Court’s order that the defense is entitled to voir dire the witness pri or to testimony if they wish to do that. Jan. 13 Vol. I Tr. 119-120. The trial court gave the Defense o ne hour to review the relevant materials before trial. Jan. 13 Vol. I Tr. 119-120. The trial court concluded this discussion by stating that “if there’s any issues about no t enough time, we can deal with it at that point in time.” Jan. 13 Vol. I Tr. 120-12 1.Case No. 14-20-05

-46- {¶90} Before the trial resumed, the Defense declined to question G.C. before the State called him as a witness. Jan. 13 Vol. I Tr. 121-122. Deputy Wilson was the State’s first witness. Jan. 13 Vol. I Tr. 122. The State and the Defense questioned him about the contents of the defendant’s agreement and the actions G.C. committed in violation of that agreement. Jan. 13 Vol. II Tr. 7-13; Jan. 14 Vol. I Tr. 89-90, 119-125. Subsequently, when G.C. was called by the State as a witness, he refused to testify. Jan. 14 Vol. I Tr. 126. After G.C. ref used to answer the State’s questions on direct examination, the trial court gave the Defen se the opportunity to cross-examine G.C. Jan. 14 Vol. I Tr. 160. However, at this p oint, the Defense declined to cross-examine him. Jan. 14 Vol. I Tr. 160. {¶91} On appeal, Berry has not demonstrated how he was prejudiced by the late disclosure of a copy of the defendant’s agreement. The tr ial court gave the Defense an opportunity to review the relevant materials. Jan. 13 Vol. I Tr. 120-121. The Defense ably and extensively cross-examined Deputy Wilson a bout the contents of this defendant’s agreement and G.C.’s violations of this agreement after the State had extensively questioned Deputy Wilson about the sa me matters. Jan. 13 Vol. II Tr. 7-13; Jan. 14 Vol. I Tr. 19-26, 89-90. Thus, th e jury heard about the terms of the defendant’s agreement and G.C.’s dishonesty withou t hearing G.C.’s testimony about the four controlled buys in which he was a conf idential informant. Jan. 14 Vol. II Tr. 126-160.Case No. 14-20-05

-47- {¶92} Further, in its arguments about the late disclosure of the defe ndant’s agreement before trial, the Defense asserted that its strategy with regard to G.C. might be affected by the State’s late disclosure of the defenda nt’s agreement. Jan. 13 Vol. I Tr. 118. However, because of G.C.’s refusal to testi fy, the Defense declined even to cross-examine G.C. Jan. 14 Vol. I Tr. 160. F or these reasons, Berry has not demonstrated how his Defense was, in fact, prejud iced by the late disclosure of G.C.’s defendant’s agreement. {¶93} Since Berry has not demonstrated prejudice under the facts of t his case, his argument is without merit. See Smale, supra , at ¶ 38. Having reviewed the materials in the record, we cannot conclude that the trial court abused its discretion in deciding not to declare a mistrial. As such, Ber ry’s fifth assignment of error is overruled. Sixth Assignment of Error {¶94} Berry asserts that the trial court should not have held G.C. in contempt of court for his refusal to testify and should have given an in struction to the jurors to disregard the testimony that G.C. did give before he refused to testify. Legal Standard {¶95} If a party alleges that the trial court failed to instruct the jury to disregard a witness’s testimony but did not request such an ins truction, all but plain error is waived on appeal. State v. Dickinson , 3d Dist. Paulding No. 11-08-08, 2009- Ohio-2099, ¶ 27. See also State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892Case No. 14-20-05

-48- N.E.2d 864, ¶ 171 (holding that the failure to request curative instructions “waiv[es] any claim to such instructions”). Accordingly, we reincorporat e the standard for plain error as set forth under the third assignment of error ab ove. Legal Analysis {¶96} In this cas e, G.C. was calle d as a witness by the Stat e. Jan. 14 Vol. I Tr. 114. However, once on the stand, G.C. asserted his Fifth A mendment right against self-incrimination and refused to testify. Jan. 14 Vol . I Tr. 126, 134. The trial court ordered a recess to allow G.C. time to consult with his attorney. Jan. 14 Vol. I Tr. 134. The State offered G.C. immunity as it relates to, one, any questions asked by the prosecutor this afternoon; and, two, specifically as it relates to any events that occurred on April the 7th of 2017, April the 27th o f 2017, June the 16th of 2017, and June the 21st of 2017. Jan. 14 Vol. I Tr. 134. Based on this grant of immunity, the t rial court determined that G.C. did “not have a Fifth Amendment Right against self-in crimination.” Jan. 14 Vol. I Tr. 135. However, G.C. continued to refuse to testif y. Jan. 14 Vol. I Tr. 150-161. In response, the trial court held G.C. in contempt. Jan. 14 Vol. I Tr. 150- 161. After the State concluded direct examination, the Defense declined to crossexamine G.C. Jan. 14 Vol. I Tr. 160. {¶97} The Defense did not object or raise an argument before the tria l court as to whether G.C. should be held in contempt for his refusal t o testify. 4 As such,

4 Before the State formally granted G.C. immunity, defense couns el argued that G.C. could refuse to testify pursuant to his Fifth Amendment right against self-incriminatio n. Jan. 14 Vol. I Tr. 133. The trial courtCase No. 14-20-05

-49- we will apply the standard of plain error for review. On appea l, Berry has not advanced an argument that explains how the trial court’s decisi on to hold G.C. in contempt was an error, let alone an error that prejudiced his s ubstantial rights and changed the outcome of this proceeding. Taflinger, supra , at ¶ 17. In the absence of such a showing, this argument is without merit. {¶98} Further, the Defense also did not request an instruction from t he trial court that directed the jurors to disregard the small amount of testimony that G.C. did give before his refusal to testify. In the absence of such a request, we will apply the standard for plain error on appeal. Again, Berry has not a dvanced an argument that explains how the trial court erred by failing to instruct the jury to disregard the limited testimony that G.C. gave before he refused to testify. Even if the trial court should have given such an instruction, Berry has not demonstrat ed how the absence of this instruction prejudiced his substantial rights and chang ed the outcome of this proceeding . Since Berry has not carried the bu rden of demonstr ating plain error in either of these two arguments, his sixth assignment of error is overruled. Seventh Assignment of Error

stated that it agreed with this argument based on how the situa tion stood at that moment. Jan. 14 Vol. I Tr. 133. Further, the State initially requested that G.C. be calle d as a court’s witness. Jan. 14 Vol. I Tr. 127. Defense counsel opposed this request. Jan. 14 Vol. I Tr. 127, 149. However, after G.C. consulted with his attorney and after the State formally granted G.C. immunity, de fense counsel did not object or raise arguments against the trial court’s findings of contempt agains t G.C. Jan. 14 Vol. I Tr. 150-161.Case No. 14-20-05

-50- {¶99} Berry argues the text messages between him and Ashley that were admitted into evidence were inadmissible evidence that violated his right to confront the witnesses against him. Legal Standard {¶100} “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prov e the truth of the matter asserted.” Evid.R. 801(C). Hearsay is typically inadmissible u nless the statement falls into a hearsay exception. Evid.R. 802. “An appellate co urt’s review of the admission of evidence is limited to a determination as to wheth er the trial court abused its discretion.” State v. Hawkey , 2016-Ohio-1292, 62 N.E.3d 721, ¶ 63 (3d Dist.), quoting Rigby v. Lake Cty ., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). “An abuse of discretion has been described as an unreasonable, arbitrary or unconscionable decision.” State v. Harris , 3d Dist. Hancock No. 5-99-14, 1999 WL 797159 (Sept. 30, 1999). {¶101} “Evidence * * * admissible at trial as a hearsay exception * * * may nonetheless be inadmissible because it violates a defendant’s r ight of confrontation.” State v. Dever , 64 Ohio St.3d 401, 415, 596 N.E.2d 436 (1992). “The question of whether a criminal defendant’s rights under th e Confrontation Clause have been violated is reviewed under a de novo standard. ” State v. Douglas , 3d Dist. Marion No. 9-05-24, 2005-Ohio-6304, ¶ 39, citing United States v.
Robinson , 389 F.3d 582, 592 (6th Cir. 2004).Case No. 14-20-05

-51- The Confrontation Clause guarantees the right of defendants in criminal cases ‘to be confronted with the witnesses against him .’ Crawford [ v. Washington , 541 U.S. 36,] 38, 124 S.Ct. 1354 [158 L.Ed.2d 177 (2004)]. Since a witness is a person who ‘bear[s] testimony,’ Id . at 51, 124 S.Ct. 1354, quoting 2 N. Webster, An American Dictionary of the English Language (1828), ‘the Confrontation Clause applies only to testimonial statements.’ State v. Muttart , 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 59, citing State v. Stahl , 111 Ohio St.3d 186, 2006-Ohio5482, 855 N.E.2d 834, ¶ 15. For testimonial hearsay to be admitted, the witness must be ‘unavailable to testify, and thedefendant [must have] had a prior opportunity for crossexamination.’ Crawford at 54, 124 S.Ct. 1354. With nontestimonial hearsay, however, ‘the States [have] flexibility in the development of hearsay law.’ Id . at 68, 124 S.Ct. 1354.
State v. Little , 2016-Ohio-8398, 78 N.E.3d 323 (3d Dist.). However, [t]here is * * * no dispute that the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ Crawford at 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, fn. 9. * * *. (Citations omitted.) State v. Ricks , 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 18. See State v. Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 131 (finding that “the Confrontation Clause did n ot apply” to statements that “were not offered to establish the truth of the matter asserted.”). Legal Analysis {¶102} At trial, the State sought to admit a series of text messages t hat had been exchanged between Ashley and Berry in the twenty-four hour s preceding her death. Jan. 16 Vol. I Tr. 70. See Doc. 182. Berry challenged the text messages that Ashley had sent to Berry. Jan. 16 Vol. I Tr. 72. The trial co urt admitted these textCase No. 14-20-05

-52- messages because Berry’s statements were admissions by a party opponent and because Ashley’s statements were not offered for the truth of t he matters asserted. Jan. 16 Vol. I Tr. 71-73. {¶103} Under Evid.R. 802(D)(2)(a), “a statement is not hearsay if * * * [t]he statement is offered against a party and is * * * the party’s o wn statement * * *.” Evid.R. 802(D)(2)(a). “[M]ultiple courts have held that text m essages sent by a defendant are not hearsay pursuant to Evid.R. 801(D)(2).” State v. Norris , 2016- Ohio-5729, 76 N.E.3d 405, ¶ 32 (2d Dist.), citing State v. Miller , 1st Dist. Hamilton No. C-130774, 2015-Ohio-330, ¶ 17; State v. Shaw , 2013-Ohio-5292, 4 N.E.3d 406, ¶ 43 (7th Dist.); State v. Bickerstaff , 11th Dist. Ashtabula No. 2014-A-0054, 2015- Ohio-4014, ¶ 15; State v. Davis , 2016-Ohio-1166, 61 N.E.3d 650 (12th Dist.). Thus, the text messages sent by Berry are statements made by a party opponent under Evid.R. 802(D)(2)(a) and are not, therefore, hearsay. See State v. Irwin , 2d Dist. Montgomery No. 26224, 2015-Ohio-195, ¶ 19; State v. Stapleton , 4th Dist. Pickaway No. 19CA7, 2020-Ohio-4479, ¶ 24. {¶104} Further, “[i]f a statement is not offered for the truth of the matter asserted * * *, it is not prohibited by the hearsay rule * * *. ” State v. LeMar , 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 59. “Accordi ngly, ‘testimony which explains the actions of a witness to whom a statement was directed, such as to explain the witness’ activities, is not hearsay.’” Id ., quoting State v. Maurer , 15 Ohio St.3d 239, 262-263, 473 N.E.2d 768, 790 (1984). See State v. Osie , 140 OhioCase No. 14-20-05

-53- St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 122 (holding that “ [a] statement is not hearsay when introduced to show its effect on the listener.”). “Multiple courts have held that text messages received on a defendant’s cell phone ar e not hearsay when the messages are not offered for the truth of the matter assert ed.” Norris at ¶ 32, citing Miller at ¶ 17; State v. Crocker , 2015-Ohio-2528, 38 N.E.3d 369 (4th Dist.). {¶105} In State v. Fitts , the Sixth District considered a situation that is factually similar to the case before this Court. State v. Fitts , 6th Dist. Wood Nos. WD-18-092, WD-18-093, 2020-Ohio-1154, ¶ 32. In Fitts , M.T., as a confidential informant, arranged several controlled buys with the defendant over text messages. Id . at ¶ 3. The Sixth District determined that the texts from Fi tts to M.T. were not hearsay as these statements were “admissions by a party-opponen t * * * under Evid.R. 801(D)(2)(a).” Id . at ¶ 32. However, the messages sent by M.T. to Fitts fell into three different categories: (1) ‘small talk’ initiated for the purpose of reestablishing th e relationship between M.T. and Fitts; (2) questions posed to Fit ts relating to various aspects of the drug transactions; and (3) d etails relating to the transactions such as quantity, price, and locat ion of the exchanges.
Id . at ¶ 32. The Sixth District considered each of these categor ies of text messages in Fitts under the Confrontation Clause. Id . at ¶ 32-34. {¶106} First, the Sixth District found that the “small talk” messages between M.T. and Fitts “were not offered for the truth of the matter as serted, thus theCase No. 14-20-05

-54- confrontation clause was not implicated.” Fitts at ¶ 33. Second, M.T.’s “questions [were] not statements.’” Id . at ¶ 34. The Sixth Circuit Court of Appeals, applying the analogous federal rule, explained that ‘a question is typically not hears ay because it does not assert the truth or falsity of a fact. A q uestion merely seeks answers and usually has no factual content.’ United States v. Wright , 343 F.3d 849, 865 (6th Cir. 2003), citing Quartararo v. Hanslmaier , 186 F.3d 91, 98 (2d Cir. 1999).
Id . For this reason, these questions did not implicate the Confr ontation Clause. Id

. Third, the messages “relating to the details of the purchases” “were offered to show the effect on Fitts, to explain the events, and to provide cont ext—they were not offered to prove the truth of the matters asserted” and did not run afoul of the Confrontation Clause. Id . at ¶ 35, 37. Thus, the Sixth District concluded that the text messages from M.T. to Fitts were admissible and did not ru n afoul of the Confrontation Clause. Id . at ¶ 37-38. {¶107} Turning to the facts of this case, the text messages from Ashle y to Berry fall within the same categories set forth in Fitts . First, Ashley and Berry began this text exchange with small talk: “Been patient holding ...” Ex. 173. Ashley discussed her sleep problems: “You have a continuous flow of en ergy...I do not.” Ex 181. She also bantered with Berry: “Should’ve invited me. . . just sayin”, and “I was going easy on you...figured youve been through enough tonight [.]” Ex. 175, 177, 181, 183, 184, 185. Following Fitts , these text messages do not constitute hearsay as these statements were not offered for the truth of t he matters asserted.Case No. 14-20-05

-55- Fitts, supra , at ¶ 33. These text messages also do not run afoul of the Co nfrontation Clause. Id

. {¶108} Second, Ashley asked Berry a number of questions in the texts t hat were admitted at trial: “Did you make it to dinner?”, “So how c an I get that from you?”, “So is that a no go for tonight?”, “[W]ill you accept IO U’s?”, and “Where will you be?” Ex. 173, 177, 179, 182, 183, 193, 194. We note that a number of these questions requested information from Berry regarding the alleged drug transaction. Fitts, supra , at ¶ 34. These questions provide the context for Berry’s statements and do not, in this case, “assert the truth or falsi ty of a fact.” Id ., quoting Wright , supra , at 865. Following Fitts , we conclude that these questions were not statements that constituted hearsay or implicated the Confronta tion Clause. Fitts,

supra , at ¶ 34. {¶109} Third, a number of Ashley’s texts addressed “the details of the purchases.” Fitts, supra , at ¶ 35. Ex. 179, 193, 194, 195, 196. Berry and Ashley exchanged several texts to determine where the other person was so that they could meet. Ex. 193, 194, 195, 196. These messages were not introdu ced to prove the truth of the matters asserted but to provide context for the st atements that Berry sent to Ashley. See Doc. 182. Following Fitts , these text messages from Ashley to Berry do not constitute inadmissible hearsay statements or run afoul of the Confrontation Clause. Fitts, supra , at ¶ 36-17, citing Crocker, supra , at ¶ 49-51. For these reasons,Case No. 14-20-05

-56- we find the Berry’s arguments against the admission of Ashley’s texts to be without merit. {¶110} On appeal, Berry also argues that the State relied on the truth of the matters asserted by Ashley in her text messages in its closing arguments. However, the trial court gave the jurors the following instruction at th e time that the text messages between Ashley and Berry were admitted: As it relates to the texts of the decedent Ashley Russell, you can only—those texts are not offered to prove anything. They’re simply—you can only consider them to prove the context, to give meaning to, in other words, things that the defendant was sayin g. So, you can consider them for that reason. You cannot consider them for any other reason. Jan. 16. Vol. I Tr. 73. Further, during the jury instructions, the trial court also instructed the jurors that the contents of the opening and clos ing arguments of the parties were not evidence. Jan. 16 Vol. II Tr. 50. “It is pre sumed that the jury followed the trial court’s instructions.” State v. Lang , 129 Ohio St.3d 512, 2011- Ohio-4215, 954 N.E.2d 596, ¶ 292. Since Berry has not directed us to any evidence in the record that would cause us to dispense with this presump tion, we find this argument to be without merit. {¶111} Having examined the materials in the record, we conclude that t he challenged texts do not constitute inadmissible hearsay and do not run afoul of the Confrontation Clause. Thus, we do not find any error in the tr ial court’s decision toCase No. 14-20-05

-57- admit the text messages that had been exchanged between Ashley and Berry. As such, Berry’s seventh assignment of error is overruled. Eighth Assignment of Error {¶112} In this case, both of Ashley’s parents, Tonya and Rich Russell (“Rich”), testified as witnesses and were physically present in court during the testimony of the other witnesses. Berry asserts that the trial court failed to separate witnesses in this regard. Legal Standard {¶113} “Evid.R. 615 governs the separation and exclusion of witnesses * * *.” State v. Schlosser , 3d Dist. Union No. 14-10-30, 2011-Ohio-4183, ¶ 14. This provision reads, in its relevant part, as follows: (A) Except as provided in division (B) of this rule, at the re quest of a party the court shall order witnesses excluded so that the y cannot hear the testimony of other witnesses, and it may make t he order of its own motion. * * *. (B) This rule does not authorize exclusion of any of the follo wing persons from the hearing:
* * * (4) in a criminal proceeding, an alleged victim of the charged offense to the extent that the alleged victim’s presence is authorized by statute enacted by the General Assembly or by the Ohio Constitution. As used in this rule, ‘victim’ has the same meaning as in the provisions of the Ohio Constitution providing rights for victims of crimes. 5

5 Evid.R. 615 was amended in order “to comply with the 2017 amen dment to Article I, Section 10a of the Ohio Constitution, also known as Marsy’s Law.” 2019 Staff Note , Evid.R. 615.Case No. 14-20-05

-58- Evid.R. 615(A), (B)(4). “The purpose of separating witnesses i s to prevent them from hearing the testimony of other witnesses and tailoring the ir testimony accordingly.” State v. Lawler , 6th Dist. Lucas No. L-03-1025, 2005-Ohio-134, ¶
24. {¶114} Matters regarding the “separation of witnesses ‘[are] ordinaril y * * * within the sound discretion of the trial court.’” State v. Williams , 2018-Ohio-974, 108 N.E.3d 758, ¶ 29 (10th Dist.), quoting State v. Smith , 49 Ohio St.3d 137, 142, 551 N.E.2d 190, 195 (1990). “Whether or not the trial court ha s properly exercised his discretion as to a separation of witnesses must be determin ed in the light of the facts and circumstances of each case.” State v. Williams , 3d Dist. Marion No. 9-80- 29, 1981 WL 6806, *2 (Mar. 11, 1981), quoting State v. Slone , 40 Ohio App.2d 523, 320 N.E.2d 720 (10th Dist. 1974), quoting 53 American Jurisprud ence 46, Trial, Section 31. On appeal, “[i]t is incumbent upon the appellant t o affirmatively demonstrate prejudice * * *.” Id

. See also State v. Hohvart , 7th Dist. Mahoning No. 06 MA 43, 2007-Ohio-5349, ¶ 31. {¶115} If a party fails to object to issues regarding the separation o f witnesses before the trial court, all but plain error is waived on appeal

. Schlosser , supra , at ¶ 12-15. We reincorporate the standard for plain error set forth under the third assignment of error above. Legal AnalysisCase No. 14-20-05

-59- {¶116} On appeal, Berry argues that Rich and Tonya should have been subject to a separation order since both were called by the Sta te as witnesses. 6 However, defense counsel did not raise the issue of the separat ion of witnesses to the trial court before Tonya or Rich were called as witnesses. For this reason, we will review these arguments for plain error only. {¶117} In his brief, Berry does not explain how the outcome of his tri al would have been different if Rich and Tonya had been separated as wit nesses. Rich and Tonya’s testimony largely provided background information about Ashley’s addiction and her relationship with Berry over the past several years. Jan. 14 Vol. II Tr. 24-100. Jan. 15 Vol. II Tr. 364-371. While Rich and To nya provided testimony that was relevant to this case, they did not generall y provide testimony that tended to establish the essential elements of the charges against Berry. {¶118} Having reviewed the materials in the record, we cannot conclude that the outcome of this proceeding would have been different if Ric h and Tonya had been subject to a separation of witnesses order. Thus, Berry h as not carried the burden of establishing plain error in this argument. For this reason, his eighth assignment of error is overruled.

6 On June 8, 2020, the prosecution filed a notice (“notice”) wit h the trial court that addressed the issue of the separation of witnesses. Doc. 176. The prosecution asserted t hat Ashley’s family members had a constitutional right under Marsy’s Law to be present for the en tirety of the trial and could not be excluded. Doc. 176. The Defense did not file a motion in response to thi s notice or raise an objection to the claims made therein. See Appellant’s Brief, 23. Further, the trial court did not make a ruling related to the assertions contained in the State’s notice that is challenged in this appe al. While the State relies on the arguments contained in its pretrial notice in this appeal, we need not re sort to an analysis that relies on Marsy’s Law to resolve the specific arguments raised by Berry in this assignme nt of error.Case No. 14-20-05

-60- Ninth Assignment of Error {¶119} Berry argues that several of his trial counsel’s decisions cons titute ineffective assistance of counsel. Legal Standard {¶120} “Under Ohio law, ‘a properly licensed attorney is presumed to c arry out his duties in a competent manner.’” State v. Harvey , 3d Dist. Marion No. 9-19- 34, 2020-Ohio-329, ¶ 57, quoting State v. Gee , 3d Dist. Putnam No. 12-92-9, 1993 WL 270995 (July 22, 1993). “For this reason, the appellant has the burden of proving that he or she was denied the right to the effective as sistance of counsel.” State v. Cartlidge , 3d Dist. Seneca No. 13-19-44, 2020-Ohio-3615, ¶ 39. “In orde r to prove an ineffective assistance of counsel claim, the appell ant must carry the burden of establishing (1) that his or her counsel’s performanc e was deficient and (2) that this deficient performance prejudiced the defendant.” McWay , supra , at ¶ 24, quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). {¶121} In order to establish deficient performance, the appellant must demonstrate that trial “counsel made errors so serious that cou nsel was not functioning as the ‘counsel’ guaranteed the defendant by the Si xth Amendment.”
State v. Howton , 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting
Strickland at 687. “[D]ebatable trial tactics do not establish ineffecti ve assistance of counsel.” State v. Queen , 3d Dist. Logan No. 8-19-41, 2020-Ohio-618, ¶ 14,Case No. 14-20-05

-61- quoting State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶
101. {¶122} In order to establish prejudice, “the defendant must show a rea sonable probability that, but for counsel’s errors, the result of the p roceeding would have been different.” Davis, supra , at ¶ 36, quoting State v. Bibbs , 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.). If the appellant does not establi sh one of these two prongs, the appellate court does not need to consider the facts of the case under the other prong of the test. State v. Baker , 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State v. Walker , 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). Legal Analysis {¶123} Failure to Request a Jury Instruction on Causation : Berry first argues that his trial counsel was ineffective for failing to request a general jury instruction on the element of causation after the trial court failed to inc lude one. However, under this third assignment of error, we concluded that the tri al court did, in fact, give the jury an instruction on causation. Accordingly, his tr ial counsel did not need to make a request for an explanation of causation to be include d in the jury instructions. The failure to make an unnecessary request does not constitute deficient performance. Thus, this argument is without merit. {¶124} Failure to Request a Burrage Jury Instruction : Berry next asserts that his defense counsel failed to request a specific jury instructi on based upon the United States Supreme Court’s decision in Burrage v. U.S

. See Burrage, supra

.Case No. 14-20-05

-62- Generally, trial “counsel’s decision not to request a jury inst ruction falls within the ambit of trial strategy.” Conway , supra , at ¶ 111. We note that Burrage is only persuasive authority for Ohio courts. See Price, supra, at ¶ 28. Further, in his brief, Berry does not assert a single argument to establish that he wa s prejudiced by his trial counsel’s failure to make this request for a specific jur y instruction. Accordingly, he has not carried the burden of establishing an i neffective assistance of counsel claim with this argument. {¶125} Failure to Cross-Examine the Confidential Informant : Berry argues that his trial counsel was ineffective for failing to cross-exa mine G.C. However, the decision whether to cross-examine a witness is a matter of trial strategy that “is firmly committed to the trial counsel’s judgment * * *.” State v. Grate , 2020-Ohio5584, --- N.E.3d ---, ¶ 148 (holding that defense counsel is no t required to conduct a cross-examination of every witness), quoting State v. Otte , 74 Ohio St.3d 555, 565, 660 N.E.2d 711 (1996). At trial, G.C. adamantly refused t o testify on direct examination and was held in contempt. Jan. 14 Vol. I Tr. 152. There is no indication that G.C. would have answered questions on cross-examination. Further, Berry has not demonstrated how the outcome of his trial would have been d ifferent if defense counsel had cross-examined G.C. Thus, he has failed to establi sh an ineffective assistance of counsel claim with this argument. {¶126} Failure to Call an Expert Witness : Berry argues that defense counsel should have called an expert witness to rebut the findings of t he State’s expertCase No. 14-20-05

-63- witnesses. In general, the decision of whether to call an expe rt witness is a matter of trial strategy. State v. Cook , 3d Dist. Union No. 14-19-26, 2020-Ohio-3411, ¶ 106. In this case, defense counsel vigorously cross-examined t he State’s expert witnesses. Jan. 15 Vol. I Tr. 78-97, 107-110, 125-131, 174-184 . Jan. 15 Vol. II Tr. 246-257, 261. Based on the record, defense “counsel’s decision to rely on crossexamination appears to have been a legitimate ‘tactical decisio n’ * * *.” State v.
Foust , 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 97. See State v.
Hartman , 93 Ohio St.3d 274, 299, 754 N.E.2d 1150, 1177 (2001). Furthe r, Berry has not demonstrated how calling an expert witness would have c hanged the outcome of this case. {¶127} Failure to Investigate Lisa Crumb : Berry argues that defense counsel failed to investigate Crumb fully even though she was the last person to see Ashely alive. As a general matter, trial “counsel has a duty to make reasonable investigations * * *.” State v. Bradley , 42 Ohio St.3d 136, 146, 538 N.E.2d 373, 383 (1989). Berry has alleged but has not established that def ense counsel failed to investigate Crumb. The record indicates that defense counsel c ame fully prepared to cross-examine Crumb at trial. Jan. 15 Tr. 308-316. Further , Berry has not advanced any argument in his brief that would demonstrate how t he outcome of this proceeding would have been different if defense counsel had fur ther investigated Crumb. Thus, this argument does not establish an ineffective a ssistance of counsel claim.Case No. 14-20-05

-64- {¶128} Failure to Conduct Independent Testing : Berry asserts that defense counsel was ineffective for failing to conduct independent test s of the evidence. As with seeking the analysis of an independent expert witness, the decision to seek independent testing is generally a matter of trial strategy. State v. Richardson , 5th Dist. Richland No. 2009-CA-00027, 2009-Ohio-4867, ¶ 72. See Foust at ¶ 97; State
v. Norman , 4th Dist. Ross Nos. 08CA3059, 08CA3066, 2009-Ohio-5458, ¶ 67. In this case, trial counsel cross-examined the analyst who tested the powdery substance found in Ashley’s house. Jan. 15 Vol. I Tr. 80-91. Further, B erry has not advanced a single argument on appeal that explains how he was prejudiced by this decision. Thus, this argument does not establish an ineffective assistanc e of counsel claim. {¶129} Failure to Respond to the State’s Motions, Briefs, or Notices : Berry argues that defense counsel failed to file a brief on the admis sibility of Ashley’s text messages with Berry; a response to a Marsy’s Law Notice that in dicated that the family would be present for the trial; a response to an order t o compel G.C. to testify; or a sentencing recommendation. {¶130} While defense counsel did not file a brief on the admissibility of the text messages between Ashley and Berry, he did argue against th eir admission at trial. Jan. 13 Vol. II Tr. 43. Jan. 14 Vol. II Tr. 76. Jan. 16 Vol. I Tr. 183-184. The trial court ruled that these messages were admissible over thes e objections. Further, under the seventh assignment of error, we concluded that the tr ial court did not errCase No. 14-20-05

-65- in allowing the jury to consider these text messages. Thus, Be rry cannot demonstrate how filing a brief would have changed the outcome o f this case. {¶131} The record indicates that defense counsel did not file a motion in response to the State’s notice that the family members would be present for trial pursuant to Marsy’s Law. However, Rich and Tonya primarily pro vided testimony regarding their relationship with Ashley, her prior history of substance abuse, and her relationship with Berry over the past few years. They also generally testified about different matters. Berry has not, on appeal, demonstrate d how filing a response to the State’s notice would have changed the outcome o f this proceeding. {¶132} Berry also argues that his trial counsel was deficient for fail ing to raise an argument against the trial court’s efforts to compel G.C. to testify. However, he cannot demonstrate how arguing against the trial court’s effort s to compel G.C. to testify would have changed the outcome of his trial because G.C . still refused to testify even after the trial court warned him that he could be held in contempt. {¶133} Finally, while defense counsel did not file a formal sentencing recommendation, he did present evidence as to the relevant sent encing factors at Berry’s sentencing hearing. Further, Berry has not advanced an y argument as to how the outcome of these proceedings would have been different if defense counsel had filed a formal sentencing recommendation. State v. Hawkins , 2d Dist. Greene No. 98CA6, 1999 WL 197932, *2 (April 9, 1999).Case No. 14-20-05

-66- {¶134} Failure to Seek a Determination of Admissibility for Several of Ashley’s Texts : Berry contends that defense counsel was ineffective for fail ing to seek a preliminary determination from the trial court as to whe ther Ashley’s texts to her friend, Chris Smith (“Smith”), were admissible. However, [a] motion in limine is a precautionary ruling in anticipation of an evidentiary issue and is not final. State v. Grubb , 28 Ohio St.3d 199, 201, 503 N.E.2d 142 (1986). ‘It is counsel’s duty to make his own appraisal of the case and to decide when such motions are worth filing.’ State v. Mayse , 2017-Ohio-1483, 88 N.E.3d 1208, ¶ 30 (3d Dist.), quoting State v. Giddens , 3d Dist. A llen No. 1-02-52, 2002-Ohio-6148, ¶ 30. We note th at defense counsel, at trial, cross-examined Corporal Stone at length abou t Ashley’s text messages, including those exchanged with Smith. Jan. 16 Tr. 15 7-169. Further, Berry has not explained how the outcome of his trial would have been different had defense counsel sought a preliminary ruling on these text messa ges. {¶135} In each of these arguments, Berry has failed to carry the burde n of establishing an ineffective assistance of counsel claim. For t his reason, his ninth assignment of error is overruled. Tenth Assignment of Error {¶136} Berry argues that the trial court erred by imposing the maximum prison term on him for this crime. Legal StandardCase No. 14-20-05

-67- {¶137} In rendering a sentence, “[t]he trial court has full discretion to impose any sentence within the authorized statutory range * * *.” State v. Dayton , 3d Dist. Union No. 14-16-05, 2016-Ohio-7178, ¶ 15, quoting State v. King , 2d Dist. Clark Nos. 2012-CA-25, 2012-CA-26, 2013-Ohio-2021, ¶ 45. However, in this process, trial courts are to sentence convicted felons in accordance wit h the overriding purposes of felony sentencing, which are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender an d others from future crime, rehabilitating the offender, and maki ng restitution to the victim of the offense, the public, or both. R.C. 2929.11. “To effectuate compliance with these overriding p urposes, the Ohio Revised Code requires the trial court to consider a number of f actors listed in R.C.
2929.12.” State v. Walton , 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The R.C. 2929.12 factors direct the trial court to evaluate the ser iousness of the offense and the likelihood of recidivism. R.C. 2929.12. {¶138} “Appellate courts defer to the broad discretion of the trial co urt in matters of sentencing.” State v. Jones , 3d Dist. Shelby No. 17-19-08, 2019-Ohio4938, ¶ 7. If the defendant establishes by clear and convincin g evidence that his or her sentence is “(1) contrary to law and/or (2) unsupported by the record,” an appellate court has the authority, pursuant to R.C. 2953.08(G)( 2), “to increase,Case No. 14-20-05

-68- reduce, or otherwise modif y a sentenc e * * * .” State v. McGowan , 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1. {¶139} Thus, “[u]nder R.C. 2953.08(G)(2), an appellate court will reve rse a sentence ‘only if it determines by clear and convincing evidenc e that the record does not support the trial court’s findings under relevant statutes or that the sentence is otherwise contrary to law.’” State v. Nienberg , 3d Dist. Putnam Nos. 12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Clear and convincing evidence is that measure or degree of proo f which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to th e facts sought to be established. Taflinger , supra , ¶ 12, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118, 53 O.O. 361, paragraph three of the syllabus (1954). However,
in State v. Jones , --- Ohio St.3d ---, 2020-Ohio-6729, the Supreme Court of Ohio clarified the proper scope of review of felony sentences imposed in cases * * * where the defendant’s appeal challenged the trial court’s application of R.C. 2929.11 and 2929.12. In Jones , the court held that R.C. 2953.08(G)(2)(b) ‘does not provide a basis for an appellate court to modify or vacate a sentence based on its view that the sentence is not supported b y the record under R.C. 2929.11 and 2929.12.’ Id . at ¶ 39. * * * Accordingly, “pursuant to Jones , an appellate court errs if it * * * modifies or vacates a sentence ‘based on the lack of support in the record for the trial court’s findings under R.C. 2929.11 an d R.C. 2929.12.’” [ State v .] Dorsey , [2d Dist. Montgomery No. 28747,] 2021-Ohio-76, at ¶ 17, quoting Jones at ¶ 29.Case No. 14-20-05

-69- State v. Slife , 3d Dist. Auglaize No. 2-20-17, 2021-Ohio-644, ¶ 13. Legal Analysis {¶140} After considering the contents of a presentence investigation ( “PSI”) and several victim impact statements, the trial court expressly considered the overriding purposes of felony sentencing at the hearing. R.C. 2929.11(A). March 6 Tr. 38. The trial court found that “the shortest prison term would demean the seriousness of the offense and would not protect the public.” March 6 Tr. 38. In particular, the trial court determined that his criminal histor y indicated that a longer sentence would be necessary to protect the public. March 6 Tr. 38. Further, the trial court also found that Berry’s lack of remorse would impede his rehabilitation. March 6 Tr. 34. {¶141} As to the seriousness factors, the trial court noted that the v ictim of the offense, Ashley, suffered serious physical harm as the resu lt of this offense. March 6 Tr. 34. See R.C. 2929.12(B)(2). The trial court also found that Berry’s relationship with the victim facilitated the offense of involun tary manslaughter as Berry referred to Ashley as his “friend” and “lover” at his sen tencing hearing. March 6 Tr. 26, 34-35, 36. See R.C. 2929.12(B)(6). However, Defense counsel argued that “[t]he victim induced or facilitated the offense” a s she requested strong narcotics from Berry. R.C. 2929.12(C)(1). March 6 Tr. 19. He also stated that Berry did not “expect[] to cause physical harm” to Ashley. Mar ch 6 Tr. 19-20. See R.C. 2929.12(C)(3).Case No. 14-20-05

-70- {¶142} As to the recidivism factors, the trial court noted Berry had t wo prior convictions for trafficking in drugs. March 6 Tr. 4. PSI. Be rry also had convictions for possession of marijuana, possession of drug paraphernalia, and for operating a vehicle under the influence. March 6 Tr. 34. PSI. See R.C. 2929.12(D)(2). The trial court also noted that the offenses for which he was being sentenced were the offenses that began his criminal history twenty-five years earl ier. March 6 Tr. 36.
PSI. See R.C. 2929.12(D)(3). The trial court determined that Berry did not respond favorably to these prior sanctions. Doc. 206. {¶143} At the sentencing hearing, the State played a recording of a ca ll that Berry had made from jail. March 6 Tr. 6. The following exchan ge took place in this call: [Berry]: The rat b*****d system that we have in America has failed again. The rat b*****d. Again. So this is w hat the re st of my life looks like. [Unidentified]: Okay. [Berry]: Where’s Ashley Russell’s accountability in all this? Some little rich girl kills herself on dope and I’m the one tha t has to go pay for the body. Where’s her accountability? [Unidentified]: (Inaudible). [Berry]: Yeah. Where’s her accountability in all of this? [Unidentified]: I’ll tell you where it’s at. It’s up Lieutena nt Detective Stone’s a**hole right where her face is.Case No. 14-20-05

-71- [Berry]: They got me so (inaudible) in this thing, bro, and th at’s it. You know what I’m saying? And that’s it. They’re just go ing to throw my life away cause they can. This wasn’t a fair trial
. March 6 Tr. 6-7. The trial court also found that Berry did not demonstrate any remorse or take responsibility for his actions. See R.C. 2929.12(D)(5). {¶144} Defense counsel argued that Berry did care for Ashley and was remorseful over “her loss.” March 6 Tr. 21. Further, Berry pr oduced a statement in which he said he would “trade [him]self for Ashley” if he co uld. March 6 Tr. 5.
See R.C. 2929.12(E)(5). Berry also admitted that he had a long hi story of addiction but stated that he had been sober for the five months previous to his sentencing hearing. March Tr. 26, 27. PSI. See R.C. 2929.12(D)(4). The trial court also took into account the fact that Berry had an Ohio Risk Assessment Sy stem score of eighteen, which signified “a moderate risk of re-offending.” M arch 6 Tr. 37. {¶145} After reviewing the evidence in the record, it is clear that th e trial court considered the relevant factors in R.C. 2929.11 and R.C. 2929.1 2 in the process of sentencing Berry. Under Jones , “R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an appellate court to modify or vacate a sentence b ased on its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” Jones,

supra , at ¶ 39. Accordingly, Berry has not carried requisite burden on appeal. Thus, Berry’s tenth assignment of error is overruled.
ConclusionCase No. 14-20-05

-72- {¶146} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of Union County Court of Comm on Pleas is affirmed. Judgment Affirmed SHAW and ZIMMERMAN, J.J., concur.
/hls