[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 Appellee 
Case No. 9-20-35 

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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 from 

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 phone was also 

located during the search of his bedroom. Law enforcement officers accessed 

Good’s cell phone and examined the text message history. Of particular note was a 

series of text messages between Good and Thompson from the early morning hours 

of October 25, 2018, in which Good and Thompson appeared to talk about an 

exchange of drugs and money. Relying on these text messages, law enforcement 

officers obtained a warrant to search Thompson’s residence. During a search of 

Thompson’s bedroom, officers located a baggie that, like the baggie found in 

Good’s wallet, contained a “tannish/peach” substance. Subsequent testing revealed 

the substance found in Good’s wallet and the substance found in Thompson’s 

bedroom both contained fentanyl. An autopsy later determined Good died from an 

overdose of fentanyl. 
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{¶3} On April 4, 2019, the Marion County Grand Jury indicted Thompson 

on two counts: Count One of involuntary manslaughter in violation 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 April 8, 2019, Thompson 

appeared for arraignment and pleaded not guilty to the counts in the indictment. 

{¶4} On September 18, 2019, the Marion County Grand Jury issued a threecount superseding indictment. Counts One and Two of the original indictment were 

preserved, and Thompson was additionally charged with Count Three 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 pleaded not guilty to 

the counts in the superseding indictment. 

{¶5} A jury trial was held on July 14-17, 2020. On July 17, 2020, the 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, involuntary 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 that Count Three, 

corrupting another with drugs, would not merge with the other offenses for purposes 

of sentencing. Thereafter, the trial court sentenced Thompson to a term of eight 
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years in prison for involuntary manslaughter and a mandatory term of eight years in 

prison for corrupting another with drugs. The trial court ordered Thompson to serve 

these terms concurrently. The trial court filed its judgment entry 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 Sixth 

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 assistance 

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 his trial counsel 
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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 for 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 limine 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 witnesses; and (5) 

Thompson’s trial counsel was ineffective for conceding during closing 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 effective 

assistance of counsel under both the United States and Ohio Constitutions.” State 

v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A 

defendant asserting a claim of ineffective assistance of counsel must establish: (1) 

counsel’s performance was deficient or unreasonable under the circumstances; 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 unreasonable, the 

defendant must overcome the presumption that counsel provided competent 
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representation and must show that counsel’s actions were not trial 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 would have been 

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability 

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting 

Strickland at 694. 

ii. Motion to Suppress Evidence Seized Pursuant to the Search Warrant 

{¶11} Thompson first argues his trial counsel was ineffective for failing to 

file a motion to suppress the evidence seized during the search of his residence. 

Thompson maintains the warrant authorizing the search of his home 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 deficient search-warrant 
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affidavit is not part of the record on appeal. “A claim of ineffective 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. “When an 

allegation of ineffective assistance of counsel is based upon material 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 the search-warrant 

affidavit, we are unable to determine whether it set forth sufficient facts to support 

a finding of probable cause to search Thompson’s residence. Consequently, 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 from 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 ineffective 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 failing to 

file a motion to suppress the recordings of interviews he gave to law enforcement 
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officers on October 25 and October 29, 2018. Specifically, Thompson maintains 

that his trial counsel should have moved to suppress these recordings because law 

enforcement officers did not administer the warnings required by Miranda v. 

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

also contends his trial counsel should have at least filed a motion in limine to 

exclude the recordings from trial because the recordings were unfairly prejudicial. 

{¶14} “The failure to file a motion is not per se ineffective assistance 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 on 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 probability 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 presumed 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. 11CA3241 
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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 probability 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 October 29, 2018 

interviews with law enforcement officers. Thompson maintains that, if his trial 

counsel had properly filed a motion to suppress, these recordings would have been 

subject to suppression because he was not given Miranda warnings prior to 

participating in the interviews. Thus, to ascertain whether Thompson’s trial counsel 

was ineffective for failing to file a motion to suppress the recordings, we must first 

determine whether Thompson has demonstrated a sufficient likelihood 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 

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“‘[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 those circumstances, 

determine whether a reasonable person would have felt that he or 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 surrounding the 

interrogation are reconstructed, the court must apply an objective test to resolve ‘the 

ultimate inquiry’ of whether there was a ‘“formal arrest or restraint 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 totality 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 reasonable person in 

the interviewee’s position would have felt free to terminate the interview and leave, 

the following factors are relevant: (1) the location of the questioning; (2) the 

duration of the questioning; (3) statements made during the interview; (4) the 

presence or absence of physical restraints during the questioning; and (5) whether 
Case No. 9-20-35 

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

have also considered factors such as whether the interviewee had 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 went 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 ineffective-assistance-ofcounsel claim can be fully disposed of by resolving the “ultimate inquiry,” we focus 

on determining whether Thompson was in custody during the October 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 Thompson 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 possession of a substance 
Case No. 9-20-35 

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he believed to be drugs and that Good might have taken the substance 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 Good. Thompson states 

that, after Good entered the house, Good noticed a baggie in his 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 touch 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 see 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 repeatedly 

express their appreciation for Thompson’s cooperation. Thompson 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 day. 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 custody during this 

meeting with officers. In determining whether Thompson was in custody during the 
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interview, we must consider the totality of the circumstances surrounding the 

questioning. Here, the short duration of the interview (approximately 12 minutes), 

the favorable location of the interview (a private spot within Thompson’s place of 

employment versus a police-controlled environment), the nonconfrontational nature 

of the questioning, the absence of evidence that Thompson was placed in restraints 

during the interview, and Thompson’s immediate return to work following 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 enforcement 

officers on October 29, 2018. Although not clearly reflected in 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 officers drove him home 

upon its conclusion. We also learn Thompson was not arrested until March 2019. 

{¶23} Unlike the recording of Thompson’s first interview, the recording 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 not handcuffed, 

and he is not restrained at any point during the interview. The interviewing officers’ 

service weapons are never conspicuously displayed. Furthermore, at the beginning 
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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 that, 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 interview. 

{¶24} The interview, which lasts approximately 57 minutes, is more 

contentious than the October 25, 2018 interview. The interviewing officers employ 

a sharper, less sympathetic tone, and their questioning is more insistent and 

argumentative, including occasional bouts of yelling and strident 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 as 

the October 25, 2018 interview. Thompson’s answers to the interviewing officers’ 

questions are frequently inconsistent with each other and with statements he made 

during the October 25, 2018 interview. Nonetheless, many of Thompson’s core 

admissions and claims are unchanged. Thompson reiterates his claim that Good 

came to his house on the morning of October 25, 2018, looking for cocaine. 

Thompson repeats his earlier admission that he possessed some sort of substance on 

the morning of October 25, 2018, and he reaffirms his earlier statement that he did 

not know what the substance was. Thompson again states that Good inquired about 

the substance, that he told Good that he did not know what the substance was, and 
Case No. 9-20-35 

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that he told Good to stay away from the substance. Thompson persistently 

maintains that he did not sell or give Good any of the substance, instead insisting 

that Good took the substance without his knowledge or permission. Ultimately, 

Thompson concedes the substance that caused Good’s death came from his house. 

{¶26} After reviewing the recording of the October 29, 2018 interview and 

the trial testimony, we conclude that Thompson was not in custody during the 

October 29, 2018 interview. Again, we are mindful that in determining 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 October 29, 

2018 interview took place inside the decidedly police-dominated environment of a 

police station. However, “[t]he fact that a suspect is interviewed 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. Weighed against the 

remaining circumstances, the location of the October 29, 2018 interview is relatively 

insignificant. At approximately 57 minutes, the interview was still fairly short in 

duration. The officers’ questioning, though sterner and more antagonistic than their 

earlier questioning, was nevertheless devoid of abusive or threatening language and 

peppered with reminders that Thompson could terminate the interview at any time 

and go home. Thompson was not physically restrained during the interview, and he 
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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 weapons 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 person 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 the 

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 interviewing officers’ 

failure to administer Miranda warnings would not have had a reasonable probability 

of success. Because such a motion likely would not have succeeded, we conclude 

that Thompson’s trial counsel did not perform deficiently by failing to file one. As 

a result, this component of Thompson’s ineffective-assistance-of-counsel claim 

fails. 
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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] under [Evid.R. 403] as 

prejudicial, because these statements would, and in fact did, prejudice [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 exclusion 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 probative 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. That is, 

evidence that tends to disprove a party’s rendition of the facts 

necessarily harms that party’s case. Accordingly, the rules of

evidence do not attempt to bar all prejudicial evidence—to do so 

would make reaching any result extremely difficult. Rather, only 

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 inasmuch 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, 
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2012-Ohio-830, ¶ 26. Because Thompson has not argued, much less established, 

that the recordings’ probative value was substantially outweighed by the danger of 

unfair prejudice, Thompson has failed to demonstrate a reasonable probability of 

success on the proposed motion in limine. Consequently, this component of 

Thompson’s ineffective-assistance-of-counsel claim fails as well. 

iv. Witness Testimony 

{¶31} Thompson also argues his trial counsel was ineffective for calling him 

and his friend, Nicole Cooper, as witnesses. Thompson’s first claim is that trial 

counsel’s decision to offer his testimony was unreasonable because “[b]y testifying, 

[Thompson] connected himself to the drugs and prejudiced himself confirming 

other points of the State’s case, which were questionable as well.” 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 prejudicial because “[p]rior 

to [Cooper’s] testimony, the only link [between him] and the drugs came from a 

search warrant” that should have been the subject of a motion to 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 him 
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on the witness stand, this is not exactly accurate. “A criminal 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 properly 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 break his 

silence and to testify. This right to choose is personal as well 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 decision to 

testify and [does] not call him to the stand, counsel * * * act[s] 

unethically to prevent the defendant from exercising his fundamental 

constitutional right to testify. * * * Under such circumstances, 

defense counsel has not acted “‘within the range of competence 

demanded of attorneys in criminal cases,’” and the defendant clearly 

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 be 
Case No. 9-20-35 

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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, 2019 

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” and 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 called 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, misleading, or incomplete 
Case No. 9-20-35 

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advice concerning the defendant’s right to testify, his right not to testify, and the 

potential advantages and risks of each choice, the defendant might 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 alleging that counsel 

overrode the defendant’s decision not to testify and “forced the 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 indicating 

Thompson did not want to testify and that trial counsel overrode his decision. Nor 

is there anything in the record suggesting that Thompson’s trial counsel did not 

adequately advise Thompson of his rights or of the strategic implications of 

Thompson’s decision whether to testify. Though it appears that Thompson’s trial 

counsel did not advise him on the record concerning these matters, this is not 

particularly surprising as “[i]t is a normal practice for lawyers 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 Thompson’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 counsel, the defendant would still need to 

demonstrate prejudice. 
Case No. 9-20-35 

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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 defendant’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 colloquies 

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 rights 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 received 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 concerning which 

witnesses to call at trial fall within the realm of trial strategy 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 deficient if it is 
Case No. 9-20-35 

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‘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 range 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 statements, 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 following comments: 

I’m going to do something very unusual and ask you to find 

[Thompson] guilty of the charge of aggravated possession of drugs. 

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 your 

intelligence and say, “Oh, the drugs found at [Thompson’s residence], 

[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 that 

charge alone. 

(July 14-17, 2020 Tr. at 761). Thompson contends his trial counsel’s decision to 

concede guilt on the aggravated-possession-of-drugs charge “changed the course 

and result of the trial.” We disagree. 
Case No. 9-20-35 

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{¶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 ineffectiveness per se.” Id. 

“[C]oncessions of guilt must be analyzed on a case-by-case basis, 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 effort 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 constitute 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 closing 

statements, as well as the evidence in the record, we cannot conclude that 

Thompson’s trial counsel was ineffective for admitting Thompson’s guilt to the 

charge of aggravated possession of drugs. Thompson’s trial counsel’s decision to 

partially concede Thompson’s guilt was clearly strategic. Based 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 Thompson 
Case No. 9-20-35 

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to the fentanyl that caused Good’s death, it is evident that Thompson’s defense was 

not premised on casting doubt on whether he himself possessed fentanyl. Instead, 

Thompson’s defense was based on countering the State’s proof that he knowingly 

furnished fentanyl to Good. By admitting that Thompson possessed drugs, 

Thompson’s trial counsel attempted to direct the jury’s focus to 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 should be believed 

when he says that he did not give drugs to Good or allow Good to 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 has not 

demonstrated that the strategy was unreasonable under the circumstances. 

{¶40} Thompson’s first assignment of error is overruled. 

B. Second Assignment of Error: Are Thompson’s convictions supported by 

sufficient evidence and does the evidence weigh in favor of Thompson’s 

convictions? 

{¶41} In his second assignment of error, Thompson argues his convictions 

are not supported by sufficient evidence and are otherwise against the manifest 

weight of the evidence. 
Case No. 9-20-35 

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i. Standards for Sufficiency-of-the-Evidence and Manifest-Weight Review 

{¶42} Manifest “weight of the evidence and sufficiency of the evidence are 

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 

(1997). Accordingly, we address each legal concept individually. 

{¶43} “An appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, would convince 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 evidentiary conflicts nor 

assess the credibility of witnesses, as both are functions reserved 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 against the 

manifest weight of the evidence, a reviewing court must examine the entire record, 

“‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of 
Case No. 9-20-35 

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witnesses and determine[] whether in resolving conflicts in the evidence, the [trier 

of fact] clearly lost its way and created such a manifest miscarriage of justice that 

the conviction must be reversed 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 discretion on matters relating 

to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, 

“[o]nly in exceptional cases, where the evidence ‘weighs heavily 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 another with drugs. 

The most serious of these offenses, involuntary manslaughter, is codified at R.C. 

2903.04, which provides, in relevant part, that “[n]o person shall cause the death of 

another * * * as a proximate result of the offender’s committing 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 

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{¶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 relevant part, that “[n]o 

person shall knowingly obtain, possess, or use a controlled substance or a controlled 

substance analog.” R.C. 2925.11(A). Consequently, the culpable mental state for 

aggravated possession of drugs, and for involuntary manslaughter in this instance, 

is “knowingly.” “A person acts knowingly, regardless of purpose, when the person 

is aware that the person’s conduct will probably cause a certain result or will 

probably be of a certain nature. A person has knowledge of circumstances when the 

person is aware that such circumstances probably exist.” R.C. 2901.22(B). 

Therefore, to sustain Thompson’s involuntary-manslaughter conviction, the State 

was required to prove that Thompson caused Good’s death as the proximate result 

of knowingly possessing, obtaining, or using a controlled substance 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. 2925.02, 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 with the involuntary-manslaughter offense at 

sentencing, in determining whether Thompson’s involuntary-manslaughter conviction is supported by the 

evidence, we must necessarily consider whether the evidence supports the jury’s finding that Thompson 

committed the offense of aggravated possession of drugs. 
Case No. 9-20-35 

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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). Like aggravated 

possession of drugs, the culpable mental state for corrupting another with drugs is 

“knowingly,” which we defined above. “Furnish” means “‘to supply, 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 to prove that he 

committed the predicate offense of aggravated possession of drugs. In support of 

this claim, Thompson observes that “no DNA analysis was conducted 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 argument 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 officers 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. Although Thompson 

claimed in the interviews that he did not know what the substance was, he expressed 
Case No. 9-20-35 

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his belief that the substance was probably some variety of illegal 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 was found in a 

location consistent with Thompson’s description, and subsequent testing revealed 

that this substance contained fentanyl. Thus, viewing the evidence 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 possession of drugs. 

{¶50} Thompson also maintains his involuntary-manslaughter conviction is 

not supported by sufficient evidence because “the State was never able to prove that 

[he] actually furnished or made any drugs available to the victim.” 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 available to Good in 

order to obtain a conviction for involuntary manslaughter. The offense of corrupting 

another with drugs, which requires proof that the defendant furnished the victim 

with a controlled substance, was not the predicate offense for Thompson’s 

involuntary-manslaughter charge. The predicate offense for Thompson’s 

involuntary-manslaughter charge was aggravated possession of drugs, which does 

not require proof that the defendant furnished the victim with a controlled substance. 
Case No. 9-20-35 

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Accordingly, we address Thompson’s argument as it relates to a challenge to the 

sufficiency of the evidence supporting his corrupting-another-with-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 found in the victim’s 

wallet to [him], and certainly no DNA match existed.” Yet, Thompson 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 morning of October 

25, 2018, after Good asked about the drugs in Thompson’s bedroom. 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 October 25, 2018, 

the State presented sufficient evidence that Thompson and Good had prearranged 

for Good to obtain drugs from Thompson. At trial, the State presented the following 

series of text messages between Thompson and Good: 
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[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 testimony 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 508-509). Another law 

enforcement officer testified that, based on his experience, Good’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 Good came to his 

house, the evidence, when viewed in a light most favorable to the 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 to find that 

Thompson did in fact furnish Good with a controlled substance. Specifically, the 

State presented evidence that the substance found in Good’s wallet was similar to 

the substance seized from Thompson’s bedroom in that both substances were 
Case No. 9-20-35 

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“tannish/peach” in color and contained fentanyl. Given these similarities, the jury 

could reasonably infer that Thompson was the source of the substance 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 contributor of a DNA mixture 

discovered on the baggie and that Thompson was “excluded from the interpretable 

data,” this does not necessarily mean that Thompson’s DNA was not on the baggie. 

The State’s DNA report indicated that the DNA mixture discovered on the baggie 

included additional data that was “not interpretable.” The State’s expert witness in 

DNA analysis explained that this signified that “there is additional 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, 2020 Tr. at 655). She 

further testified that she could not include or exclude Thompson as a contributor to 

the DNA mixture. (July 14-17, 2020 Tr. at 655, 662). It is thus 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 positive identification. 

Therefore, viewing the evidence in a light most favorable to the State, any 

reasonable trier of fact could find beyond a reasonable doubt that Thompson 
Case No. 9-20-35 

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furnished Good with a controlled substance as required to sustain a conviction for 

corrupting another with drugs. 

{¶55} In sum, viewing the evidence in a light most favorable to the State, 

any rational trier of fact could have found the essential elements of involuntary 

manslaughter and corrupting another with drugs proven beyond a reasonable doubt. 

Accordingly, we conclude that Thompson’s involuntary-manslaughter and 

corrupting-another-with-drugs convictions are supported by sufficient 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 manifest-weight 

argument, Thompson simply rehashes claims he made in his first assignment of 

error. Thompson again claims his trial counsel was “ineffective 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] possession charge on 

closing argument was likely the final link in the destruction of any defense * * *.” 

He maintains it was these supposed missteps by counsel that “caused 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 resolve a manifest-weight 
Case No. 9-20-35 

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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 Thompson’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, Good obtained some 

of the substance and used it after leaving Thompson’s house. While Thompson 

claimed he did not sell or give the substance to Good or make the substance 

available to him, “[a] verdict is not against the manifest weight of the evidence 

because the finder of fact chose to believe the State’s [evidence] 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 involuntary-manslaughter and 

corrupting-another-with-drugs convictions are not against the manifest weight of 

the evidence. 

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

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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