[Cite as State v. Thompson , 2021-Ohio-2979.]

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

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 9-20-35

v. JERMAIL N. THOMPSON, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 2019 CR 0115 Judgment Affirmed Date of Decision: August 30, 2021

APPEARANCES: 

### Thomas A. Gjostein for Appellant 

### Nathan R. Heiser for AppelleeCase No. 9-20-35

-2- MILLER, J. {¶1} Defendant-appellant, Jermail N. Thompson, appeals the September 15, 2020 judgment of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.

I. Facts and Procedural History {¶2} On October 25, 2018, Logan Good was found in his bedroom dead f rom an apparent drug overdose. During a search of Good’s bedroom, law enforcement officers located Good’s wallet. Officers searched the wallet, where they discovered a baggie containing a “tannish/peach” substance. Good’s cell p hone was also located during the search of his bedroom. Law enforcement offi cers accessed Good’s cell phone and examined the text message history. Of pa rticular note was a series of text messages between Good and Thompson from the earl y morning hours of October 25, 2018, in which Good and Thompson appeared to tal k about an exchange of drugs and money. Relying on these text messages, l aw enforcement officers obtained a warrant to search Thompson’s residence. Du ring a search of Thompson’s bedroom, officers located a baggie that, like the ba ggie found in Good’s wallet, contained a “tannish/peach” substance. Subseque nt testing revealed

the substance found in Good’s wallet and the substance found in Thompson’s bedroom both contained fentanyl. An autopsy later determined G ood died from an overdose of fentanyl.Case No. 9-20-35

-3- {¶3} On April 4, 2019, the Marion County Grand Jury indicted Thompso n on two counts: Count One of involuntary manslaughter in violat ion of R.C. 2903.04(A), a first-degree felony, and Count Two of aggravated possession of drugs in violation of R.C. 2925.11(A), a fifth-degree felony. On Apr il 8, 2019, Thompson appeared for arraignment and pleaded not guilty to the counts i n the indictment. {¶4} On September 18, 2019, the Marion County Grand Jury issued a th reecount superseding indictment. Counts One and Two of the origin al indictment were preserved, and Thompson was additionally charged with Count Thr ee of corrupting another with drugs in violation of R.C. 2925.02(A)(3), a second -degree felony. On September 23, 2019, Thompson appeared for arraignment and plead ed not guilty to the counts in the superseding indictment. {¶5} A jury trial was held on July 14-17, 2020. On July 17, 2020, t he jury found Thompson guilty as charged in the superseding indictment. {¶6} Thompson’s sentencing hearing was held on September 14, 2020. At the hearing, the trial court determined that Count One, involun tary manslaughter, and Count Two, aggravated possession of drugs, would merge for purposes of sentencing. The State elected to have the trial court sentence Thompson for the involuntary-manslaughter offense. It was further determined th at Count Three, corrupting another with drugs, would not merge with the other o ffenses for purposes of sentencing. Thereafter, the trial court sentenced Thompson to a term of eightCase No. 9-20-35

-4- years in prison for involuntary manslaughter and a mandatory te rm of eight years in prison for corrupting another with drugs. The trial court orde red Thompson to serve these terms concurrently. The trial court filed its judgment e ntry of sentence on September 15, 2020. {¶7} On October 1, 2020, Thompson timely filed a notice of appeal. He raises two assignments of error for our review. II. Assignments of Error

1. The appellant had his rights to due process of law violated under Article 1, Section 10 of the Ohio Constitution and the Si xth Amendment of the United States Constitution, in being compelled to stand trial when trial counsel was rendered ineffective for failing to file a motion to suppress the search of appellant’s residence and to suppress or exclude by motion in limine his statements, as well as, for having the appellant testify given the State’s complete lack of evidence against him. [Tr. Vol. I. 214 ].

2. Appellant’s conviction was not supported by the sufficiency of the evidence in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and Article I, Sections 1 & 16 of the Ohio Constitution and the conviction was also against the manifest weight of the evidence. [Tr. Overall]

. III. Discussion

A. First Assignment of Error: Did Thompson receive ineffective as sistance of counsel? {¶8} In his first assignment of error, Thompson argues he was denied his right to the effective assistance of counsel as provided for by the United States Constitution and by the Ohio Constitution. Thompson contends h is trial counselCase No. 9-20-35

-5- was ineffective in five respects: (1) Thompson’s trial counsel was ineffective for failing to file a motion to suppress the evidence seized during the search of Thompson’s home; (2) Thompson’s trial counsel was ineffective f or failing to file a motion to suppress recordings of statements Thompson made to law enforcement officers during interviews on October 25 and October 29, 2018; (3) Thompson’s trial counsel was ineffective for failing to file a motion in l imine to bar introduction of these same recordings at trial; (4) Thompson’s trial counsel was ineffective for calling Thompson and another person, Nicole Cooper, as witnesse s; and (5) Thompson’s trial counsel was ineffective for conceding during c losing statements that Thompson committed the offense of aggravated possession of drugs.

i. Ineffective-Assistance-of-Counsel Standard {¶9} “In criminal proceedings, a defendant has the right to effectiv e assistance of counsel under both the United States and Ohio Con stitutions.” State

v. Evick , 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A defendant asserting a claim of ineffective assistance of counse l must establish: (1) counsel’s performance was deficient or unreasonable under the c ircumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole , 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or un reasonable, the defendant must overcome the presumption that counsel provided c ompetentCase No. 9-20-35

-6- representation and must show that counsel’s actions were not tr ial strategies prompted by reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie , 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Frazier , 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a substantial violation of counsel’s essential

duties to his client. See State v. Bradley , 42 Ohio St.3d 136, 141-142 (1989). {¶10} Prejudice results when “‘there is a reasonable probability that , but for counsel’s unprofessional errors, the result of the proceeding w ould have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability is a probability sufficient to undermine confidence in the outc ome.’” Id. , quoting

Strickland at 694. ii. Motion to Suppress Evidence Seized Pursuant to the Search W arrant {¶11} Thompson first argues his trial counsel was ineffective for fai ling to file a motion to suppress the evidence seized during the search of his residence. Thompson maintains the warrant authorizing the search of his ho me was invalid because it was based on an affidavit that contained “very thin evidence.” {¶12} However, we are unable to consider this facet of Thompson’s ineffective-assistance argument because the supposedly deficien t search-warrantCase No. 9-20-35

-7- affidavit is not part of the record on appeal. “A claim of ine ffective assistance of counsel in a direct appeal must be established by the evidence in the record.” State

v. Carter , 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, ¶ 78. “Wh en an allegation of ineffective assistance of counsel is based upon m aterial that is not part of the record, the merits of the argument cannot be addressed.” State v. Barnett , 7th Dist. Jefferson No. 06-JE-23, 2008-Ohio-1546, ¶ 130. Without t he search-warrant affidavit, we are unable to determine whether it set forth suff icient facts to support a finding of probable cause to search Thompson’s residence. Co nsequently, we are unable to determine whether Thompson’s trial counsel performed deficiently by failing to pursue a meritorious suppression motion, and we must presume regularity in the proceedings below with respect to the evidence seized fr om Thompson’s

house. State v. Ash , 7th Dist. Monroe No. 16 MO 0002, 2018-Ohio-1139, ¶ 30-31;

see State v. Davidson , 11th Dist. Portage No. 2005-P-0038, 2006-Ohio-1458, ¶ 31 (declining to consider a claim that trial counsel was ineffecti ve for failing to file suppression motion based on defects in search-warrant affidavit , where affidavit was not made part of the record); State v. Castile , 6th Dist. Erie No. E-02-012, 2005- Ohio-41, ¶ 60 (same). iii. Motion to Suppress Recordings and Motion in Limine {¶13} Thompson next argues his trial counsel was ineffective for fail ing to file a motion to suppress the recordings of interviews he gave to law enforcementCase No. 9-20-35

-8- officers on October 25 and October 29, 2018. Specifically, Tho mpson maintains that his trial counsel should have moved to suppress these reco rdings because law enforcement officers did not administer the warnings required b y Miranda v.

Arizona , 384 U.S. 436, 86 S.Ct. 1602, prior to conducting the intervie ws. Thompson

also contends his trial counsel should have at least filed a mo tion in limine to exclude the recordings from trial because the recordings were u nfairly prejudicial. {¶14} “The failure to file a motion is not per se ineffective assista nce of

counsel.” State v. Costell , 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 161.

To sustain a claim of ineffective assistance of counsel based o n counsel’s failure to file a particular motion, the defendant must first specify the basis for the motion that counsel supposedly should have filed. See State v. Phelps , 5th Dist. Delaware Nos. 18 CAA 02 0016 and 18 CAA 02 0017, 2018-Ohio-4738, ¶ 13. Then, the “‘defendant must show that the motion had a reasonable probabil ity of success.’”

State v. Dahms , 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 101, quoting State v. Ferguson , 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 11; Phelps at ¶ 13. If the defendant fails to demonstrate that there is a reasonable probability that the proposed motion would have been granted, counsel is pr esumed to have been effective since the filing of the motion would have been a “futile act,” which the law does not require counsel to undertake. State v. Leu , 6th Dist. Lucas No. L17-1265, 2019-Ohio-3404, ¶ 47; State v. Cottrell , 4th Dist. Ross Nos. 11CA3241Case No. 9-20-35

-9- and 11CA3242, 2012-Ohio-4583, ¶ 20. Additionally, even if the defendant succeeds in establishing a reasonable probability of success on the proposed motion, he still “must further show that there is a reasonable probabil ity that the outcome [of the trial] would have been different if the motion had been granted * * *.” State

v. Blanton , 4th Dist. Adams Nos. 19CA1096 and 19CA1097, 2020-Ohio-7018, ¶ 50, appeal allowed , 162 Ohio St.3d 1444, 2021-Ohio-1398; Phelps at ¶ 13. a. Motion to Suppress Based on Lack of Miranda Warnings {¶15} The first motion Thompson claims his trial counsel should have filed is a motion to suppress the recordings of his October 25 and Oc tober 29, 2018 interviews with law enforcement officers. Thompson maintains t hat, if his trial counsel had properly filed a motion to suppress, these recordin gs would have been subject to suppression because he was not given Miranda warnings prior to participating in the interviews. Thus, to ascertain whether Th ompson’s trial counsel was ineffective for failing to file a motion to suppress the re cordings, we must first determine whether Thompson has demonstrated a sufficient likeli hood of success on his proposed suppression motion. {¶16} “Police officers are not required to administer Miranda warnings to every person whom they question.” In re A.M. , 3d Dist. Marion No. 9-20-23, 2021- Ohio-432, ¶ 28. “Only custodial interrogation triggers the need for Miranda warnings.” (Emphasis sic.) State v. Biros , 78 Ohio St.3d 426, 440 (1997).Case No. 9-20-35

-10- “‘[C]ustody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” Howes v. Fields , 565 U.S. 499, 508-509, 132 S.Ct. 1181 (2012). “In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given th ose circumstances, determine whether a reasonable person would have felt that he o r she was not at liberty to terminate the interview and leave.” State v. Hoffner , 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 27. “Once the factual circumstances surround ing the interrogation are reconstructed, the court must apply an object ive test to resolve ‘the ultimate inquiry’ of whether there was a ‘“formal arrest or res traint on freedom of movement” of the degree associated with a formal arrest.’” Id. , quoting California

v. Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517 (1983), quoting Oregon v.

Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711 (1977). {¶17} “In resolving ‘the ultimate inquiry’ courts must consider the t otality of the circumstances surrounding the questioning.” In re R.S. , 3d Dist. Paulding No. 11-13-10, 2014-Ohio-3543, ¶ 17. In determining whether a reaso nable person in the interviewee’s position would have felt free to terminate th e interview and leave, the following factors are relevant: (1) the location of the qu estioning; (2) the duration of the questioning; (3) statements made during the int erview; (4) the presence or absence of physical restraints during the questioni ng; and (5) whetherCase No. 9-20-35

-11- the interviewee was released at the end of the questioning. Howes at 509. Courts

have also considered factors such as whether the interviewee ha d access to a cell phone during the interview, “whether an officer [was] armed and display[ed] [a] weapon in a threatening fashion,” and whether the interviewee w ent voluntarily to the police station for the interview. State v. Soto , 9th Dist. Lorain No. 16CA011024, 2017-Ohio-4348, ¶ 11. Because this part of Thompson’s ineffect ive-assistance-ofcounsel claim can be fully disposed of by resolving the “ultima te inquiry,” we focus on determining whether Thompson was in custody during the Octob er 25 and October 29, 2018 interviews. {¶18} We start with the interview Thompson gave to law enforcement officers on October 25, 2018, a few hours after Good’s body was discovered. The recording of the October 25, 2018 interview contains only audio , but from our review of the recording and the testimony at trial, we discern the interview was conducted in a hallway near the kitchen of Buffalo Wild Wings, the restaurant where Thompson was working. {¶19} In the recording, which is approximately 12 minutes long, the interviewing officers inform Thompson of Good’s death and ask T hompson a number of non-accusatory and largely open-ended questions. In response to these questions, Thompson makes several incriminating remarks. Most significantly, Thompson states that, earlier in the day, he had been in posses sion of a substanceCase No. 9-20-35

-12- he believed to be drugs and that Good might have taken the subs tance from him. Thompson tells the interviewing officers that Good came to his house that morning looking for cocaine, but he did not have any cocaine to give Go od. Thompson states that, after Good entered the house, Good noticed a baggie in hi s bedroom and asked what was inside of the baggie. Thompson says that he told Good that he did not know what was inside of the baggie and that Good should not tou ch it. Thompson explains to the interviewing officers that he found the baggie a few days earlier and that, when he found it, he believed it contained crack cocaine, though he was not certain of its contents. Thompson says that while he did not s ee Good take the baggie, he noticed later in the day that the baggie was missing . Thompson opines that Good likely took the baggie with him when he left. {¶20} As the interview draws to a close, the interviewing officers re peatedly express their appreciation for Thompson’s cooperation. Thompso n provides the officers with his phone number and home address and states that if they wished to talk to him again, he would be at home all day the following da y. The interview concludes with the interviewing officers telling Thompson that they would “get out

of his hair” so he could return to work. {¶21} After reviewing the recording and the trial testimony relating to the October 25, 2018 interview, we conclude Thompson was not in cus tody during this meeting with officers. In determining whether Thompson was in custody during theCase No. 9-20-35

-13- interview, we must consider the totality of the circumstances s urrounding the questioning. Here, the short duration of the interview (approx imately 12 minutes), the favorable location of the interview (a private spot within Thompson’s place of employment versus a police-controlled environment), the nonconf rontational nature of the questioning, the absence of evidence that Thompson was p laced in restraints during the interview, and Thompson’s immediate return to work f ollowing the interview all militate against concluding that Thompson was in custody. We are confident a reasonable person in Thompson’s position would have felt free to terminate the interview and, in Thompson’s case, return to work

. {¶22} Next, we consider the interview Thompson gave to law enforcemen t officers on October 29, 2018. Although not clearly reflected i n the recording of the October 29, 2018 interview, we learn from trial testimony that Thompson went voluntarily to the police station for the interview and that of ficers drove him home upon its conclusion. We also learn Thompson was not arrested u ntil March 2019. {¶23} Unlike the recording of Thompson’s first interview, the recordi ng of the October 29, 2018 interview contains both audio and video. In the recording, Thompson is seen entering an interview room in the basement of the Marion Police Department accompanied by plainclothes officers. Thompson is n ot handcuffed, and he is not restrained at any point during the interview. Th e interviewing officers’ service weapons are never conspicuously displayed. Furthermore , at the beginningCase No. 9-20-35

-14- of the interview, the officers assure Thompson he would not be going to jail that day, that he could terminate the interview at any time, and tha t, should he choose to end the interview, they would take him home. The interviewing officers repeat some of these assurances at various times throughout the interv iew. {¶24} The interview, which lasts approximately 57 minutes, is more contentious than the October 25, 2018 interview. The interview ing officers employ a sharper, less sympathetic tone, and their questioning is more insistent and argumentative, including occasional bouts of yelling and stride nt accusations that Thompson is lying. However, despite the somewhat disputatious tenor of the interview, the officers’ interviewing tactics fall far short of harassment or coercion. {¶25} The October 29, 2018 interview covers much of the same ground a s the October 25, 2018 interview. Thompson’s answers to the inte rviewing officers’ questions are frequently inconsistent with each other and with statements he made during the October 25, 2018 interview. Nonetheless, many of Th ompson’s core admissions and claims are unchanged. Thompson reiterates his c laim that Good came to his house on the morning of October 25, 2018, looking f or cocaine. Thompson repeats his earlier admission that he possessed some s ort of substance on the morning of October 25, 2018, and he reaffirms his earlier s tatement that he did not know what the substance was. Thompson again states that Go od inquired about the substance, that he told Good that he did not know what the substance was, andCase No. 9-20-35

-15- that he told Good to stay away from the substance. Thompson pe rsistently maintains that he did not sell or give Good any of the substanc e, instead insisting that Good took the substance without his knowledge or permissio n. Ultimately, Thompson concedes the substance that caused Good’s death came f rom his house. {¶26} After reviewing the recording of the October 29, 2018 interview and the trial testimony, we conclude that Thompson was not in custo dy during the October 29, 2018 interview. Again, we are mindful that in dete rmining whether Thompson was in custody during the interview, we must consider the totality of the circumstances surrounding the questioning. {¶27} It is true that, unlike the October 25, 2018 interview, the Oct ober 29, 2018 interview took place inside the decidedly police-dominated environment of a police station. However, “[t]he fact that a suspect is intervi ewed at a police station does not, unto itself, require officers to issue Miranda warnings.” State v. Brunson , 11th Dist. Portage No. 2016-P-0004, 2016-Ohio-8519, ¶ 16. Weig hed against the remaining circumstances, the location of the October 29, 2018 i nterview is relatively insignificant. At approximately 57 minutes, the interview was still fairly short in duration. The officers’ questioning, though sterner and more a ntagonistic than their earlier questioning, was nevertheless devoid of abusive or thre atening language and peppered with reminders that Thompson could terminate the inter view at any time and go home. Thompson was not physically restrained during the interview, and heCase No. 9-20-35

-16- was released at the end of the questioning. In fact, Thompson was not arrested until several months after the October 29, 2018 interview. Moreover, during the questioning, the interviewing officers did not display their we apons in a threatening fashion. Finally, and of particular importance, Thompson went voluntarily to the police station for questioning and the officers drove him home afterwards. Thus, the totality of the circumstances suggests that a reasonable pe rson in Thompson’s position would have felt at liberty to end the interview at any time and leave. {¶28} In sum, we conclude Thompson was not in custody during either t he October 25, 2018 interview or the October 29, 2018 interview. Because Thompson was not in custody during either interview, the interviews did not constitute custodial interrogations and the interviewing officers were not required to

administer Miranda warnings prior to questioning Thompson. As a result, a motion to suppress the recordings of these interviews based on the int erviewing officers’

failure to administer Miranda warnings would not have had a reasonable probability of success. Because such a motion likely would not have succee ded, we conclude that Thompson’s trial counsel did not perform deficiently by fa iling to file one. As a result, this component of Thompson’s ineffective-assistance-o f-counsel claim

fails.Case No. 9-20-35

-17- b. Motion in Limine Based on Unfair Prejudice {¶29} The second motion that Thompson claims his trial counsel should have filed is a motion in limine. Thompson argues his trial counsel “could have made a simple motion in limine at trial to exclude the [recordings] un der [Evid.R. 403] as prejudicial, because these statements would, and in fact did, p rejudice [his] defense.” Thompson’s argument is without merit. {¶30} Thompson maintains the recordings would have been excludable under Evid.R. 403 because they were prejudicial to his defense. However, Evid.R. 403, specifically Evid.R. 403(A), does not allow for the exclus ion of evidence simply because that evidence is prejudicial to the defendant’s case. Instead, Evid.R. 403(A) requires the exclusion of evidence only when “its probat ive value is substantially outweighed by the danger of unfair prejudice * * *.” (Emphasis added.). As the Supreme Court of Ohio has observed, it is fair to say that all relevant evidence is prejudicial. T hat is, evidence that tends to disprove a party’s rendition of the fact s necessarily harms that party’s case. Accordingly, the rules of evidence do not attempt to bar all prejudicial evidence—to do s o would make reaching any result extremely difficult. Rather, on ly evidence that is unfairly prejudicial is excludable. (Emphasis sic.) State v. Crotts , 104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 23. In this case, the recordings were prejudicial to Thompson’s defense ina smuch as they implicated Thompson in criminal activity, but “‘[i]ncriminating ’ does not equal ‘unfair prejudice’ under Evid.R. 403(A).” State v. Swiergosz , 197 Ohio App.3d 40,Case No. 9-20-35

-18- 2012-Ohio-830, ¶ 26. Because Thompson has not argued, much les s established, that the recordings’ probative value was substantially outweigh ed by the danger of unfair prejudice, Thompson has failed to demonstrate a reasonable pro bability of success on the proposed motion in limine. Consequently, this c omponent of Thompson’s ineffective-assistance-of-counsel claim fails as wel l. iv. Witness Testimony {¶31} Thompson also argues his trial counsel was ineffective for call ing him and his friend, Nicole Cooper, as witnesses. Thompson’s first claim is that trial counsel’s decision to offer his testimony was unreasonable beca use “[b]y testifying, [Thompson] connected himself to the drugs and prejudiced himsel f confirming other points of the State’s case, which were questionable as we ll.” Second, Thompson contends his trial counsel was ineffective in calling Cooper as a witness because Cooper “confirmed that drugs were on [his] premises and in [his] bedroom.” According to Thompson, this testimony was prejudicia l because “[p]rior to [Cooper’s] testimony, the only link [between him] and the dr ugs came from a search warrant” that should have been the subject of a motion t o suppress. a. Thompson’s Testimony {¶32} We deal first with the claim that Thompson’s trial counsel was ineffective for deciding to have Thompson testify at trial. At the outset, we note that while Thompson maintains that it was his trial counsel who decided to put himCase No. 9-20-35

-19- on the witness stand, this is not exactly accurate. “A crimina l defendant has the right to testify in his defense at trial.” State v. Ruggles , 12th Dist. Warren Nos. CA2019-05-038, CA2019-05-044, CA2019-05-045 and CA2019-05-046, 2020- Ohio-2886, ¶ 73, citing Rock v. Arkansas , 483 U.S. 44, 51-53, 107 S.Ct. 2704 (1987). However, [a]lthough often framed as a right to testify, it is more prope rly framed as a right to choose whether to testify. The “choice” concept reflects the competing considerations that make up this right; while the Fifth Amendment gives the accused the right to remain silent, courts have recognized that the accused also has the absolute right to brea k his silence and to testify. This right to choose is personal as we ll as fundamental, and the defendant must make this decision himself. (Citations omitted.) United States v. Ly , 646 F.3d 1307, 1313 (11th Cir.2011). “[T]he ultimate decision of whether a defendant will testify on his own behalf is the

defendant’s.” State v. McKay , 11th Dist. Ashtabula No. 2001-A-0008, 2002-Ohio3960, ¶ 44. Indeed, counsel acts at his peril by disregarding the defendant’s decision to testify: [I]f defense counsel refuse[s] to accept the defendant’s decisi on to testify and [does] not call him to the stand, counsel * * * act [s] unethically to prevent the defendant from exercising his fundam ental constitutional right to testify. * * * Under such circumstance s, defense counsel has not acted “‘within the range of competence demanded of attorneys in criminal cases,’” and the defendant cl early has not received reasonably effective assistance of counsel. (Citations omitted.) United States v. Teague , 953 F.2d 1525, 1534 (11th Cir.1992).

See United States v. Mullins , 315 F.3d 449, 453 (5th Cir.2002) (“[I]t cannot beCase No. 9-20-35

-20- permissible trial strategy, regardless of its merits otherwise, for counsel to override the ultimate decision of a defendant to testify contrary to his advice.”). As ultimate responsibility for the decision whether to testify belongs with the defendant and not with counsel, the fact that the defendant was called to testify , taken alone, generally will not support a claim of ineffective assistance of counsel. See Hesser v. United

States , M.D.Fla. Nos. 2:16-cv-632-FtM-29CM and 2:11-CR-83-FTM-29CM, 2 019

WL 2717271, *5 (June 28, 2019) (recognizing the “well established law that the choice as to whether to testify or not is up to a defendant” an d concluding that because “it was petitioner’s decision to testify, not counsel’s , * * * there was no ineffective assistance in calling petitioner as a witness”); State v. Winstead , 1st Dist. Hamilton No. C-080092, 2009-Ohio-973, ¶ 16; McKay at ¶ 43-44. {¶33} Yet, a defendant is not completely precluded from bringing an ineffective-assistance claim relating to the fact that he was c alled to testify at trial. “In cases where a defendant is represented by counsel, counsel is responsible for providing the advice needed to render the defendant’s decision of whether to testify knowing and intelligent.” Ly at 1313, citing Teague at 1533. “Defense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify, the strategic implications of each choice, and that it is ultimately for

the defendant himself to decide.” Teague at 1533. Thus, depending on the circumstances, if counsel gave the defendant erroneous, mislead ing, or incompleteCase No. 9-20-35

-21- advice concerning the defendant’s right to testify, his right n ot to testify, and the potential advantages and risks of each choice, the defendant mi ght be able to demonstrate that counsel performed deficiently. 1 See id. at 1534 (explaining that counsel’s failure to inform a defendant of his right to testify constitutes neglect of a “vital professional responsibility”). Moreover, a claim allegi ng that counsel overrode the defendant’s decision not to testify and “forced th e defendant to testify is analyzed under the two-pronged Strickland standard.” Singleton v. United States , 134 F.Supp.3d 807, 812 (D.Del.2015), citing Palmer v. Hendricks , 592 F.3d 386, 398-399 (3d Cir.2010) and Sexton v. French , 163 F.3d 874, 882 (4th Cir.1998). {¶34} However, in this case, there is nothing in the record indicatin g Thompson did not want to testify and that trial counsel overrod e his decision. Nor is there anything in the record suggesting that Thompson’s tria l counsel did not adequately advise Thompson of his rights or of the strategic im plications of Thompson’s decision whether to testify. Though it appears that Thompson’s trial counsel did not advise him on the record concerning these matte rs, this is not particularly surprising as “[i]t is a normal practice for lawye rs to advise their clients in private, rather than on the record.” State v. Bays , 87 Ohio St.3d 15, 27 (1999). Because we are unable to review the content of the advice Thomp son’s trial counsel gave to Thompson, we cannot determine whether Thompson’s trial counsel’s

1 Of course, to sustain a claim of ineffective assistance of cou nsel, the defendant would still need to demonstrate prejudice.Case No. 9-20-35

-22- performance was deficient in this respect. See State v. Seibert , 6th Dist. Wood No. WD-02-017, 2003-Ohio-3107, ¶ 12-13 (rejecting as unreviewable d efendant’s argument that counsel was ineffective for failing to advise him of his right not to testify at trial where counsel’s advice, if given, was not put on the record). {¶35} Furthermore, we observe that the trial court engaged in two col loquies with Thompson wherein the trial court informed Thompson that he had a right to testify or not to testify, that the jury could not consider his silence for any reason should he choose not to testify, and that the decision whether to testify was his to make after consultation with counsel. (July 14-17, 2020 Tr. at 674, 682-683). Thompson’s counsel stated he was satisfied with the trial court ’s explanation of Thompson’s rights, and Thompson indicated he understood his rig hts and that it was his decision to testify. (July 14-17, 2020 Tr. at 674, 682-683 ). In light of these circumstances, Thompson has failed to demonstrate that he recei ved ineffective assistance of counsel with regard to his trial testimony. b. Cooper’s Testimony {¶36} Thompson’s argument that his trial counsel was ineffective for calling Cooper as a witness fares no better. “[C]ounsel’s decisions co ncerning which

witnesses to call at trial fall within the realm of trial strat egy and tactics and generally will not constitute ineffective assistance of counsel .” State v. Smith , 115 Ohio App.3d 419, 426 (3d Dist.1996). “Trial strategy is only d eficient if it isCase No. 9-20-35

-23- ‘outside the realm of legitimate trial strategy so as “to make ordinary counsel

scoff.”’” In re R.M. , 7th Dist. Harrison No. 19 HA 0007, 2019-Ohio-5251, ¶ 47, quoting State v. Taylor , 5th Dist. Richland No. 2005-CA-0112, 2006-Ohio-4064, ¶ 34. Here, Thompson has neither argued nor established that his trial counsel’s decision to call Cooper as a witness was so far outside the ran ge of legitimate trial strategy as to be nonsensical. Consequently, Thompson has not demonstrated that his trial counsel was ineffective in choosing to call Cooper as a witness. v. Closing Statements {¶37} Finally, Thompson argues he received ineffective assistance of counsel because his trial counsel, while presenting closing sta tements, asked the jury to return a guilty verdict on the aggravated-possession-of -drugs charge. During his closing statements, Thompson’s trial counsel made the follo wing comments: I’m going to do something very unusual and ask you to find [Thompson] guilty of the charge of aggravated possession of dru gs. And that may seem unusual to you, a defense attorney asking us to find his client guilty. I’m not going to sit here and insult y our intelligence and say, “Oh, the drugs found at [Thompson’s resid ence], [Thompson] is not responsible for those.” I would be insulting your intelligence, wouldn’t I? I’m not going to do that. All right ? The State has proven its case beyond a reasonable doubt as to t hat charge alone. (July 14-17, 2020 Tr. at 761). Thompson contends his trial cou nsel’s decision to concede guilt on the aggravated-possession-of-drugs charge “cha nged the course and result of the trial.” We disagree.Case No. 9-20-35

-24- {¶38} “According to the Ohio Supreme Court, ‘[c]oncessions of guilt, in any form, are among the most troublesome actions a defense counsel can make during representation of a defendant.’” State v. Villani , 12th Dist. Butler No. CA2018-04- 080, 2019-Ohio-1831, ¶ 37, quoting State v. Goodwin , 84 Ohio St.3d 331, 336 (1999). “Nonetheless, concessions do not constitute ineffectiv eness per se.” Id. “[C]oncessions of guilt must be analyzed on a case-by-case basi s, considering ‘[a]ll of the facts, circumstances, and evidence.’” Id. , quoting Goodwin at 338. “When defense counsel concedes his client’s guilt to a charge in an e ffort to enhance credibility by being candid and realistic with the jury, such a decision may be construed as tactical or strategic and, therefore, does not con stitute ineffective

assistance of counsel.” State v. Simpson , 2d Dist. Montgomery No. 19797, 2004- Ohio-669, ¶ 24, citing Goodwin at 338-339. {¶39} After reviewing the entirety of Thompson’s trial counsel’s clos ing statements, as well as the evidence in the record, we cannot co nclude that Thompson’s trial counsel was ineffective for admitting Thompson ’s guilt to the charge of aggravated possession of drugs. Thompson’s trial cou nsel’s decision to partially concede Thompson’s guilt was clearly strategic. Base d on Thompson’s trial counsel’s cross-examination of the State’s witnesses, the presentation of Thompson’s own case, and the rest of the closing statements, in which Thompson’s trial counsel insisted that there was no evidence definitively connecting ThompsonCase No. 9-20-35

-25- to the fentanyl that caused Good’s death, it is evident that Th ompson’s defense was not premised on casting doubt on whether he himself possessed f entanyl. Instead, Thompson’s defense was based on countering the State’s proof th at he knowingly furnished fentanyl to Good. By admitting that Thompson possess ed drugs, Thompson’s trial counsel attempted to direct the jury’s focus t o what Thompson’s

trial counsel believed to be the weakest elements of the State’ s case. See State v.

Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 60; State v. Scott , 101 Ohio St.3d 31, 2004-Ohio-10, ¶ 60. Moreover, the admission may have been beneficial in bolstering the credibility of Thompson’s defense to the jury, i .e., because Thompson is being forthcoming by admitting that he possessed drugs, he s hould be believed when he says that he did not give drugs to Good or allow Good t o take them. See

Villani at ¶ 38; Simpson at ¶ 24-25. Ultimately, while Thompson’s trial counsel’s strategy may not have yielded the hoped-for results, Thompson h as not demonstrated that the strategy was unreasonable under the circu mstances. {¶40} Thompson’s first assignment of error is overruled. B. Second Assignment of Error: Are Thompson’s convictions supp orted by sufficient evidence and does the evidence weigh in favor of Tho mpson’s convictions? {¶41} In his second assignment of error, Thompson argues his convicti ons are not supported by sufficient evidence and are otherwise agai nst the manifest weight of the evidence.Case No. 9-20-35

-26- i. Standards for Sufficiency-of-the-Evidence and Manifest-Weigh t Review {¶42} Manifest “weight of the evidence and sufficiency of the evidenc e are clearly different legal concepts.” State v. Thompkins , 78 Ohio St.3d 380, 389 (1997). Accordingly, we address each legal concept individuall y. {¶43} “An appellate court’s function when reviewing the sufficiency o f the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would co nvince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89 (1997). Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evi dentiary conflicts nor assess the credibility of witnesses, as both are functions rese rved for the trier of

fact.” State v. Jones , 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio4775, ¶ 33. {¶44} On the other hand, in determining whether a conviction is again st the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[] the evidence and all reasonable inferences, consider[ ] the credibility ofCase No. 9-20-35

-27- witnesses and determine[] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest misca rriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discre tion on matters relating to the weight of the evidence and the credibility of the witnes ses. State v. DeHass , 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weig ht standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavil y against the conviction,’ should an appellate court overturn the trial court ’s judgment.” State v.

Haller , 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119. ii. Thompson’s Offenses {¶45} Thompson was found guilty of three offenses: involuntary manslaughter, aggravated possession of drugs, and corrupting an other with drugs. The most serious of these offenses, involuntary manslaughter, i s codified at R.C. 2903.04, which provides, in relevant part, that “[n]o person sh all cause the death of another * * * as a proximate result of the offender’s committin g or attempting to commit a felony.” R.C. 2903.04(A). “The culpable mental state of involuntary manslaughter is supplied by the underlying offense.” State v. Johnson , 8th Dist. Cuyahoga No. 94813, 2011-Ohio-1919, ¶ 54.Case No. 9-20-35

-28- {¶46} The predicate felony for Thompson’s involuntary-manslaughter charge was aggravated possession of drugs. 2 The offense of aggravated possession of drugs is codified at R.C. 2925.11, which provides, in releva nt part, that “[n]o person shall knowingly obtain, possess, or use a controlled sub stance or a controlled substance analog.” R.C. 2925.11(A). Consequently, the culpabl e mental state for aggravated possession of drugs, and for involuntary manslaughte r in this instance, is “knowingly.” “A person acts knowingly, regardless of purpos e, when the person is aware that the person’s conduct will probably cause a certai n result or will probably be of a certain nature. A person has knowledge of cir cumstances when the person is aware that such circumstances probably exist.” R.C. 2901.22(B). Therefore, to sustain Thompson’s involuntary-manslaughter convi ction, the State was required to prove that Thompson caused Good’s death as the proximate result of knowingly possessing, obtaining, or using a controlled subst ance or controlled substance analog. {¶47} Thompson was also convicted of corrupting another with drugs. The offense of corrupting another with drugs is codified at R.C. 29 25.02, which provides, in relevant part, that “[n]o person shall knowingly * * * [b]y any means,

administer or furnish to another or induce or cause another to use a controlled

2 Although the aggravated-possession-of-drugs offense merged wit h the involuntary-manslaughter offense at sentencing, in determining whether Thompson’s involuntary-mansl aughter conviction is supported by the evidence, we must necessarily cons ider whether the evidence sup ports the jury’s finding that Thompson committed the offense of aggravated possession of drugs.Case No. 9-20-35

-29- substance, and thereby cause serious physical harm to the other person, or cause the other person to become drug dependent.” R.C. 2925.02(A)(3). L ike aggravated possession of drugs, the culpable mental state for corrupting a nother with drugs is “knowingly,” which we defined above. “Furnish” means “‘to supp ly, provide, or equip, for accomplishment of a particular purpose.’” State v. Price , 8th Dist. Cuyahoga No. 107096, 2019-Ohio-1642, ¶ 49, quoting Black’s Law Dictionary 466 (6th Ed.1991). iii. Sufficiency of the Evidence {¶48} Thompson first suggests his involuntary-manslaughter conviction is not supported by sufficient evidence because the State failed t o prove that he committed the predicate offense of aggravated possession of dru gs. In support of this claim, Thompson observes that “no DNA analysis was conduct ed to link the baggie of drugs found in [Thompson’s] bedroom to [him].” {¶49} Although Thompson is correct that the baggie of drugs found in his bedroom was not tested for the presence of his DNA, his argumen t does not account for the ample evidence presented by the State connecting him to the drugs found in his bedroom. During his interviews with law enforcement office rs on October 25 and October 29, 2018, Thompson repeatedly admitted that he was in possession of some type of substance on the morning of October 25, 2018. Alt hough Thompson

claimed in the interviews that he did not know what the substan ce was, he expressedCase No. 9-20-35

-30- his belief that the substance was probably some variety of ille gal drug. Furthermore, during the October 29, 2018 interview, Thompson described where he stored the substance while it was in his possession. During the search of Thompson’s bedroom on October 25, 2018, a baggie containing an unknown substance w as found in a location consistent with Thompson’s description, and subsequent testing revealed that this substance contained fentanyl. Thus, viewing the evid ence in a light most favorable to the State, any reasonable trier of fact could find beyond a reasonable doubt that Thompson committed the offense of aggravated possess ion of drugs. {¶50} Thompson also maintains his involuntary-manslaughter conviction is not supported by sufficient evidence because “the State was nev er able to prove that [he] actually furnished or made any drugs available to the vict im.” While Thompson frames this argument as challenging the sufficiency of the evidence supporting his involuntary-manslaughter conviction, we observe that the State was not required to prove that Thompson furnished or made drugs ava ilable to Good in order to obtain a conviction for involuntary manslaughter. The offense of corrupting another with drugs, which requires proof that the defendant fur nished the victim with a controlled substance, was not the predicate offense for Thompson’s involuntary-manslaughter charge. The predicate offense for Tho mpson’s involuntary-manslaughter charge was aggravated possession of dr ugs, which does not require proof that the defendant furnished the victim with a controlled substance.Case No. 9-20-35

-31- Accordingly, we address Thompson’s argument as it relates to a challenge to the sufficiency of the evidence supporting his corrupting-another-w ith-drugs

conviction. {¶51} Thompson contends the State did not present sufficient evidence that he furnished Good with drugs because “[t]estimony was admitted that [he] was likely unconscious when [Good] came to his residence on October 25, 2018 * * *.” He also argues that “no evidence existed connecting the drugs f ound in the victim’s wallet to [him], and certainly no DNA match existed.” Yet, Tho mpson again ignores the State’s considerable evidence supporting a finding that he furnished drugs to Good. {¶52} First, in both of his interviews with law enforcement officers, Thompson recounted the conversation he had with Good on the mor ning of October 25, 2018, after Good asked about the drugs in Thompson’s bedroo m. Therefore, construing the evidence in a light most favorable to the State, the evidence supports that Thompson was at least semi-conscious when Good came to his house on the morning of October 25, 2018. However, regardless of Thompson’s level of consciousness when Good came to his house on the morning of Oct ober 25, 2018, the State presented sufficient evidence that Thompson and Good had prearranged for Good to obtain drugs from Thompson. At trial, the State pr esented the following series of text messages between Thompson and Good:Case No. 9-20-35

-32- [Good]: What happened to u being up lol [Good]: U going to have a dub at 830 [Thompson]: Yep. I was Out like a Blown out light [Good]: K [Good]: See u then [Thompson]: OK All of these text messages were sent and received between 1:13 a.m. and 1:41 a.m. on October 25, 2018. In addition, the State presented testimon y from a law enforcement officer that, in his experience, a “dub” refers to $20 worth of “[t]ypically heroin, but anything.” (July 14-17, 2020 Tr. at 5 08-509). Another law enforcement officer testified that, based on his experience, Go od’s text messages to Thompson represented an attempt by Good to obtain drugs. (July 14-17, 2020 Tr. at 638). Accordingly, even if Thompson was unconscious when Go od came to his house, the evidence, when viewed in a light most favorable to t he State, supports that Thompson had previously agreed to make $20 worth of drugs available for Good when Good arrived on the morning of October 25, 2018. {¶53} Finally, the State presented sufficient evidence for the jury t o find that Thompson did in fact furnish Good with a controlled substance. Specifically, the State presented evidence that the substance found in Good’s wal let was similar to the substance seized from Thompson’s bedroom in that both subst ances wereCase No. 9-20-35

-33- “tannish/peach” in color and contained fentanyl. Given these s imilarities, the jury could reasonably infer that Thompson was the source of the subs tance found in

Good’s wallet. {¶54} Contrary to Thompson’s assertion, this inference is not negated by the apparent absence of his DNA on the baggie that was found inside of Good’s wallet. While it is true that Good was identified as the major contribu tor of a DNA mixture discovered on the baggie and that Thompson was “excluded from t he interpretable data,” this does not necessarily mean that Thompson’s DNA was n ot on the baggie. The State’s DNA report indicated that the DNA mixture discovere d on the baggie included additional data that was “not interpretable.” The Sta te’s expert witness in DNA analysis explained that this signified that “there is addit ional DNA data, but it is so low that it is uninterpretable,” meaning that she “wouldn ’t be able to include or exclude anyone from that additional data.” (July 14-17, 202 0 Tr. at 655). She further testified that she could not include or exclude Thompso n as a contributor to the DNA mixture. (July 14-17, 2020 Tr. at 655, 662). It is th us possible that Thompson interacted with the baggie found in Good’s wallet and that he deposited his DNA thereon, though in an amount insufficient to make a pos itive identification. Therefore, viewing the evidence in a light most favorable to th e State, any reasonable trier of fact could find beyond a reasonable doubt t hat ThompsonCase No. 9-20-35

-34- furnished Good with a controlled substance as required to susta in a conviction for corrupting another with drugs. {¶55} In sum, viewing the evidence in a light most favorable to the S tate, any rational trier of fact could have found the essential eleme nts of involuntary manslaughter and corrupting another with drugs proven beyond a reasonable doubt. Accordingly, we conclude that Thompson’s involuntary-manslaught er and corrupting-another-with-drugs convictions are supported by suff icient evidence. iv. Manifest Weight of the Evidence {¶56} Thompson separately argues that his convictions are against the manifest weight of the evidence. However, in making his manife st-weight argument, Thompson simply rehashes claims he made in his first assignment of error. Thompson again claims his trial counsel was “ineffectiv e for failing to file and argue motions to suppress,” that his trial counsel erred by “[c]alling [him] to testify as well as [Cooper],” and that “[a]dmitting to [the] po ssession charge on closing argument was likely the final link in the destruction o f any defense * * *.” He maintains it was these supposed missteps by counsel that “ca used the jury to lose its way.” These are not proper manifest-weight arguments, and in similar circumstances, we have refused to construct, and then analyze, a manifest-weight argument on behalf of the defendant. See State v. Laws , 3d Dist. Allen No. 1-20- 10, 2021-Ohio-166, ¶ 32 (declining to construct and then resolv e a manifest-weightCase No. 9-20-35

-35- argument where defendant’s manifest-weight argument was nothing more than a restatement of his earlier sufficiency-of-the-evidence argument ). {¶57} Nevertheless, we have little difficulty concluding that Thompso n’s convictions are not against the manifest weight of the evidence . As discussed throughout this opinion, there is overwhelming evidence that on October 25, 2018, Thompson possessed a substance containing fentanyl. By his own statements, Thompson confirmed that Good was aware of the drugs. There is also substantial evidence supporting that on the morning of October 25, 2018, Go od obtained some of the substance and used it after leaving Thompson’s house. W hile Thompson claimed he did not sell or give the substance to Good or make t he substance available to him, “[a] verdict is not against the manifest weig ht of the evidence because the finder of fact chose to believe the State’s [eviden ce] rather than the

defendant’s version of the events.” State v. Martinez , 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Finally, it is undisputed Good overdosed on fentanyl and later died as a result. Thus, Thompson’s involunt ary-manslaughter and corrupting-another-with-drugs convictions are not against the m anifest weight of

the evidence. {¶58} Thompson’s second assignment of error is overruled.Case No. 9-20-35

-36- IV. Conclusion {¶59} For the foregoing reasons, Thompson’s assignments of error are overruled. Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the Marion County Court

of Common Pleas. Judgment Affirmed ZIMMERMAN and SHAW, J.J., concur. /jlr