[Cite as State v. Haynes , 2020-Ohio-1049.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals Nos. WD-18-087 WD-18-088 Appellee Trial Court Nos. 2018CR0105 v. 2018CR0351 Samuel S. Haynes, Sr. DECISION AND JUDGMENT Appellant Decided: March 20, 2020

* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.

* * * * * ZMUDA, P.J. I. Introduction {¶ 1} In this consolidated appeal, appellant, Samuel Haynes, Sr., app eals the judgment of the Wood County Court of Common Pleas, sentencing h im to four years in prison after a jury found him guilty of two counts of corruptin g another with drugs and2. one count of aggravated possession of drugs. Because we find t hat appellant’s convictions for corrupting another with drugs were not supporte d by sufficient evidence, we reverse the trial court’s judgment in case No. 2018CR0105. Finding no error in the trial court’s imposition of costs, we affirm the court’s judgme nt in case No. 2018CR0351. A. Facts and Procedural Background {¶ 2} On April 5, 2018, appellant was indicted in case No. 2018CR0105 on two counts of corrupting another with drugs in violation of R.C. 29 25.02(A)(2) and (C)(1), felonies of the second degree. The first count stemmed from an overdose that occurred on December 15, 2017. On that date, K.D. overdosed after using heroin that she purchased from appellant’s dealer in Toledo. The second count stemmed from an overdose that occurred on December 29, 2017. On that date, M.W . overdosed after using heroin that he acquired from appellant’s dealer in Toledo. {¶ 3} On April 6, 2018, appellant appeared before the trial court and entered pleas of not guilty to the aforementioned charges. Thereafter, the m atter proceeded to discovery. {¶ 4} On September 20, 2018, an additional indictment was filed in ca se No. 2018CR0351 on one count of aggravated possession of drugs in vi olation of R.C. 2925.11(A) and (C)(1)(a), a felony of the fifth degree. Appell ant pled not guilty to the charge, and discovery continued in both cases. {¶ 5} On October 3, 2018, the state filed a motion to join the two in dictments for trial. Appellant filed his memorandum in opposition to the sta te’s motion on October 10,3. 2018, arguing that the joinder of the cases would be unfairly p rejudicial. On October 18, 2018, the trial court granted the state’s motion and joined the cases for trial. {¶ 6} The matter then proceeded to a two-day jury trial on October 30 , 2018. 1 Over the course of the trial, the state called several witnesse s, including M.W. and K.D. Appellant did not call any witnesses. {¶ 7} On the first day of trial, M.W., who was 34 years old at the ti me of trial, testified that he began using Fentanyl at the age of 17. Early on, M.W. used Fentanyl three times per week, eventually leading to his becoming addict ed to the drug. M.W. first realized that he was addicted to Fentanyl in 2010, when he star ted to notice that he would become sick when he was not using Fentanyl. At that time, M.W. checked himself into an inpatient substance abuse treatment program located in Maume e, Lucas County, Ohio. Although the program helped M.W. to stop using drugs for a “cou ple months,” he ultimately relapsed on Fentanyl and heroin. M.W. stated that h e sought treatment for his

addiction on at least three additional occasions. On one such occasion, he entered into a substance abuse program at Behavioral Connections in Bowling Gr een, Wood County, Ohio. It was during his treatment at Behavioral Connections, i n October 2017, that M.W. first met appellant.

1 On the eve of trial, the state filed a motion to amend the ind ictment in case No. 2018CR0105. In its motion, which was granted by the trial cour t, the state sought to amend the indictment to reflect two charges of corrupting anoth er with drugs in violation of R.C. 2925.02(A)(3) instead of R.C. 2925.02(A)(2).4. {¶ 8} Regarding his involvement with appellant, M.W. described appell ant as a “friend” and indicated that they would talk during treatment se ssions at Behavioral

Connections. The course of treatment M.W. received at Behavior al Connections included Suboxone, an opiate that is used to provide relief fro m opiate withdrawal symptoms. At that time, M.W. was trying to “do a taper off” of Suboxone, and he testified that he had not used heroin since September 2017. Ho wever, M.W. acknowledged that he discussed the possibility of trading Subox one for heroin with appellant, and he later indicated that he relapsed on heroin so metime in November 2017. When asked whether appellant helped him relapse, M.W. responded in the negative, although M.W. did concede that “the only heroin that I was usin g was the heroin that me and [appellant] were getting.” On cross-examination, M.W. test ified that he was the one who took the initiative to travel to Toledo to acquire heroin. He went on to state that he

resumed his use of heroin in order to wean himself off of Subox one and to avoid the withdrawal symptoms that are associated with the cessation of S uboxone use. {¶ 9} In December 2017, M.W. and appellant traveled to Toledo in appe llant’s van on “more than three” occasions in order to acquire heroin. M.W . provided appellant with Suboxone, which appellant then traded in toward the purchase of heroin from appellant’s drug dealer. Thereafter, M.W. and appellant split the heroin e venly, at times using the heroin together. M.W. testified that he did not know whether a ppellant ever paid him anything for his share of the heroin.5. {¶ 10} On the afternoon of December 29, 2017, appellant and M.W. drove to Toledo together to trade Suboxone for heroin from appellant’s d rug dealer. Upon their arrival, the dealer approached M.W. while he was seated in the passenger seat of appellant’s vehicle. M.W. then gave the dealer some of his Sub oxone in exchange for

heroin. {¶ 11} After the drug transaction, appellant and M.W. left Toledo and headed back toward Bowling Green. While appellant was driving, M.W. ingest ed some of the heroin, which he described as having “a lot of Fentanyl in it.” M.W. t hen blacked out, and recalled regaining consciousness once he was back in Bowling Gr een. M.W. instructed appellant to drop him off at his apartment, where he used more of the heroin, leading to an overdose. Appellant was not with M.W. at the time of his ov erdose. M.W. was eventually given two doses of Narcan, an opiate blocker, and wa s resuscitated by medical personnel. {¶ 12} On the second day of trial, K.D. testified that she, like M.W., met appellant while undergoing substance abuse treatment at Behavioral Connec tions. Prior to entering treatment, K.D. had used drugs for more than seven years. K.D. ’s treatment program included Suboxone, which K.D. was taking in order to wean herse lf from heroin. During her time at Behavioral Connections, K.D. and appellant discusse d their history of drug use and the idea of using heroin again. {¶ 13} According to K.D.’s testimony, appellant informed her that he w as still using heroin while undergoing treatment. Appellant explained t o K.D. that he knew a6. heroin dealer in Toledo and thus it was no problem for him to a cquire heroin. K.D. could not remember who initiated the conversation about using heroin. Nonetheless, she agreed to travel to Toledo with appellant to purchase heroin. {¶ 14} Thereafter, K.D. and appellant visited Toledo “over 40 times.” According to K.D., she was responsible for purchasing appellant’s fuel fo r the trips, and was also required to split the heroin evenly with appellant. In most in stances, K.D. purchased the heroin with cash. Generally, appellant and K.D. would purchase the heroin, find a place to park, and use the heroin immediately. On one such occasion, on December 15, 2017, K.D. overdosed after purchasing heroin from appellant’s dealer. K.D. testified that she overdosed at her home, and she indicated that appellant was not present at the time of her

overdose. {¶ 15} Eventually, K.D. was terminated from the substance abuse progra m at Behavioral Connections due to her relapse with heroin. {¶ 16} On cross-examination, K.D. clarified that appellant never injec ted her with heroin. She also acknowledged that she was using heroin for mo nths prior to her December 15 overdose. K.D. went on to testify that she could h ave acquired heroin without appellant’s assistance, but it was more convenient for her to use appellant’s dealer because she could purchase smaller quantities from appel lant’s dealer. {¶ 17} At the close of the state’s evidence, appellant moved the trial court for an acquittal under Crim.R. 29, arguing that there was no evidence introduced to establish that he furnished heroin to K.D. and M.W. as required to suppor t a conviction for7. corrupting another with drugs. As to the aggravated possession charge, appellant

contended that the state failed to introduce evidence to demons trate that he was the individual in possession of a duffle bag containing heroin, whi ch was seized from appellant’s van by the police. {¶ 18} The state responded by arguing that it did not have to prove th at appellant “was the one who furnished the drugs.” Rather, according to th e state, appellant’s participation in obtaining heroin for K.D. and M.W. by driving them to his dealer in Toledo was sufficient to support convictions for corrupting ano ther with drugs. Further, the state contended that the aggravated possession charge was s upported by evidence that appellant was the sole occupant of the van at the time of the s eizure of heroin, and that he had sole dominion and control over the vehicle. Thus, the stat e argued that the evidence established that appellant was the individual in possession of the duffle bag located inside

the van. {¶ 19} Ultimately, the trial court agreed with the state and summarily denied appellant’s Crim.R. 29 motion. Thereafter, closing arguments w ere presented, the jury was instructed, and the jury began its deliberations. Eventual ly, the jury returned with guilty verdicts as to the three charges contained in the indict ments, as amended. {¶ 20} The matter proceeded immediately to sentencing, at which time t he trial court ordered appellant to serve two years in prison on each of the charges for corrupting another with drugs and 11 months in prison for aggravated posse ssion of drugs. The8. court directed the two-year sentences to be served consecutivel y to one another, but concurrent to the 11-month sentence, for a total prison sentenc e of four years. {¶ 21} On December 7, 2018, appellant filed his timely notice of appea l in case Nos. 2018CR0105 and 2018CR0351. Pursuant to appellant’s reques t, we consolidated the appeals on December 17, 2018. B. Assignments of Error {¶ 22} On appeal, appellant assigns the following errors for our revie w: I. The trial court erred in denying Appellant’s Crim.R. 29 mot ion. II. The jury’s verdict was against the manifest weight of the evidence presented at trial. III. The trial court committed error to the prejudice of Appel lant by imposing the costs of prosecution without consideration of Appe llant’s present or future ability to pay. II. Analysis A. Sufficiency and Manifest Weight {¶ 23} In appellant’s first assignment of error, he argues that his co nvictions for corrupting another with drugs were not supported by sufficient evidence. 2 Therefore, appellant contends that the trial court erred in denying his Cr im.R. 29 motion for

2 Appellant does not challenge the sufficiency of the state’s ev idence regarding his aggravated possession conviction in case No. 2018CR0351. Rathe r, appellant’s arguments regarding his aggravated possession conviction pertai n only to the court imposition of costs as set forth in his third assignment of err or.9. acquittal. Additionally, appellant asserts in his second assig nment of error that his convictions for corrupting another with drugs were contrary to the manifest weight of the evidence. Because appellant’s first two assignments of error a re interrelated, we will address them simultaneously. {¶ 24} A motion for acquittal under Crim.R. 29(A) is a challenge to th e sufficiency of the evidence. See State v. Brinkley , 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 39. The denial of a motion for acquittal und er Crim.R. 29(A) “is governed by the same standard as the one for determining whethe r a verdict is supported by sufficient evidence.” State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. {¶ 25} In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and deter mine whether “any rational

trier of fact could have found the essential elements of the cr ime proven beyond a reasonable doubt.” (Internal citations omitted.) State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appel late court will not weigh the evidence or assess the credibility of the witnesses. State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is suffic ient evidence to support a conviction is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). {¶ 26} When reviewing a manifest weight of the evidence issue, we sit as a “thirteenth juror.” Id. at 387. That is, we review the entire record, weigh the evide nce10. and all reasonable inferences, and consider the credibility of witnesses. Id. Our role is to 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.” Id. We reverse a conviction on manifest weight grounds for only the most “exceptional case in which the eviden ce weighs heavily against

the conviction.” Id. at 387. {¶ 27} Here, appellant was convicted of two counts of corrupting anoth er with drugs in violation of R.C. 2925.02(A)(3), which provides: (A) No person shall knowingly do any of the following:

* * * (3) By any means, administer or furnish to another or induce or cause another to use a controlled substance, and thereby cause serious physical harm to the other person, or cause the other person to become drug dependent. In support of his sufficiency and manifest weight arguments, ap pellant contends that the state failed to introduce evidence demonstrating that he admini stered, furnished, caused, or induced M.W. or K.D. to use heroin. Additionally, appellant asserts that the state did not establish that he purposely caused physical harm to M.W. or K.D. or caused them to become drug dependent. We will address these arguments in reve rse order.11. {¶ 28} As to the purpose argument, we note that the statutory section identified in the original indictment, R.C. 2925.02(A)(2), does contain a pur pose element. 3 However, R.C. 2925.02(A)(3) contains no such element. In their briefs t o this court, the parties focus their arguments around R.C. 2925.02(A)(2). Our review of the record makes it clear that appellant was convicted of corrupting another with d rugs under R.C. 2925.02(A)(3), not R.C. 2925.02(A)(2). Because R.C. 2925.02(A) (3) does not contain a purpose element, the state was not required to prove that appel lant acted with purpose in causing serious physical harm to M.W. or K.D. {¶ 29} Next, we turn to appellant’s argument that the state failed to introduce

sufficient evidence to establish that he administered or furnis hed heroin to M.W. or K.D., or induced or caused them to use heroin. At the outset, we not e that only the term

“administer” is defined within the Revised Code. Under R.C. 37 19.01(A), “administer” is defined as “the direct application of a drug, whether by inj ection, inhalation, ingestion, or any other means to a person or an animal.” There is no evid ence in this case to support the conclusion that appellant directly applied the heroin for M .W. or K.D. Rather, the

3 R.C. 2925.02(A)(2) provides, (A) No person shall knowingly do any of the following:

* * * (2) By any means, administer or furnish to another or induce or cause another to use a controlled substance with purpose to cause serious physical harm to the other person, or with purpose to cause the other person to become drug dependent. (Emphasis added.)12. testimony provided at trial established that M.W. overdosed at his apartment and K.D. overdosed at her home. Appellant was not present at the time o f the overdoses. {¶ 30} The term “furnish” is not defined in the Revised Code. “Black’ s Law Dictionary * * * defines ‘furnish’ to mean ‘[t]o supply, provid e, or equip, for accomplishment of a particular purpose.’” State v. Schwab , 4th Dist. Athens No. 12CA39, 2014-Ohio-336, ¶ 9. With this definition in mind, ther e is no evidence that appellant furnished the drugs to M.W. and K.D. Indeed, the tes timony adduced at trial establishes that appellant transported M.W. and K.D. to Toledo to meet with his drug dealer. M.W. and K.D. conducted the drug transactions on their own, and thereafter split the heroin with appellant as a form of compensation for his dri ving them to Toledo. Thus, the drugs did not come from appellant, nor were they with in appellant’s dominion or control prior to being purchased by M.W. and K.D. {¶ 31} Like “furnish,” the term “induce” is not defined in the Revised Code. In State v. Marbury , 8th Dist. Cuyahoga No. 52848, 1987 WL 19252 (Oct. 29, 1987), a case involving a charge of obstructing justice under R.C. 2921.32, t he Eighth District defined

“induce” as follows: Because the word “induce” is not defined in the Revised Code, w e are obliged by R.C. 1.42 to consider the common meaning: “[T]o move and lead (as by persuasion or influence) * * *: prev ail upon * * *3a: to bring on or bring about.” Webster’s Third New International Dictionary (1986) 1154.13. Black’s Law Dictionary (5 Ed.1979) 697, provides a consistent

definition: “To bring on or about; to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by m otives, prevail on.”

Id. at *3. {¶ 32} Applying the foregoing definition to the facts in the case at b ar, we find a dearth of evidence to establish that appellant induced M.W. and K.D. to use drugs. As to M.W., the record reveals that M.W. resumed his use of heroin in an effort to wean

himself off of Suboxone and avoid the severe withdrawal effects associated with the cessation of Suboxone use. M.W. was specifically asked about a ppellant’s involvement in his relapse on heroin, and he responded that appellant did n ot help him relapse. M.W.

later testified that he was the one who took the initiative to travel to Toledo to acquire heroin. Taken together, M.W.’s testimony does not support the state’s theory that appellant was preying upon M.W. and persuaded him to relapse on heroin. To the contrary, it is evident from our review of the record that M.W. wished to resume his heroin use, and used appellant’s connections in Toledo to do so

. {¶ 33} Regarding K.D., the record reveals that K.D. and appellant occa sionally discussed their history of drug use and the idea of using heroi n again while they were both patients at Behavorial Connections. While she testified t hat appellant informed her that he was still using heroin while undergoing treatment, and that he knew a heroin14. dealer in Toledo and thus it was no problem for him to acquire heroin, K.D. could not remember who initiated the conversation about using heroin. Fu rther, the state introduced no evidence to establish that appellant exerted any influence over K.D. or attempted to persuade her to resume her use of heroin during th ese discussions. Indeed, K.D. acknowledged that she was using heroin for months prior to her December 15 overdose. As to whether appellant persuaded her to relapse on heroin or influence her in that regard, K.D. testified that she used appellant’s dealer si mply because she could purchase smaller quantities of heroin from appellant’s dealer. Moreover, K.D. conceded the fact that she could have acquired heroin without appellant’ s assistance; she used appellant’s dealer out of mere convenience. Ultimately, K.D.’s testimony establishes that she planned on using heroin with or without appellant. Thus, w e find that appellant did

not “induce” K.D. to use heroin. {¶ 34} In addition to the foregoing, we further find that the evidence presented by the state does not establish that appellant caused M.W. or K.D. to use heroin. As already noted, M.W. testified that appellant did not help him relapse. Further, while K.D. testified that appellant’s dealer provided a convenient means o f acquiring small quantities of heroin, she did not testify that appellant’s dealer was the exclusive means of acquiring

heroin. {¶ 35} Upon a thorough examination of the record before us, we conclud e that the state’s evidence, when viewed in a light most favorable to the state, does not establish that appellant administered or furnished heroin to M.W. or K.D. We further find that the15. evidence does not prove that appellant induced or caused M.W. o r K.D. to use heroin. Consequently, we find that appellant’s convictions for corrupti ng another with drugs under R.C. 2925.02(A)(3) are not supported by sufficient eviden ce. Because the state’s evidence was insufficient to support the charges of corrupting another with drugs, we find that the trial court erred in denying appellant’s Crim.R. 29 mo tion. {¶ 36} Accordingly, appellant’s first assignment of error is well-take n. Our resolution of appellant’s first assignment of error in his favo r renders appellant’s second assignment of error moot, and we do not address it.

B. Costs {¶ 37} In his third assignment of error, appellant argues that the tri al court erred by imposing the costs of prosecution without consideration of a ppellant’s present or future ability to pay. At the outset, we note that the trial c ourt’s imposition of costs in case No. 2018CR0105 cannot stand, as we have concluded that the convictions obtained in that case were not supported by sufficient evidence. As to the costs imposed in case No. 2018CR0351, our standard of review on this issue is whether the imposition of costs was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b); State v. Farless , 6th Dist. Lucas Nos. L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4, citing State v. Collins , 2015-Ohio3710, 41 N.E.3d 899, ¶ 30 (12th Dist.) (“An appellate court may not modify a financial sanction unless it finds by clear and convincing evidence that it is not supported by the record or is contrary to law.”).16. {¶ 38} At sentencing, the trial court imposed costs by stating, “Costs of this matter are going to be assessed to the Defendant.” In its sentencing entry, the trial court clarified that it was only ordering appellant to pay the costs of prosecution, stating in relevant part: “The Defendant shall pay the outstanding costs of this prosecution. Judgment granted for costs and execution awarded to Wood County .” {¶ 39} On appeal, appellant challenges the trial court’s imposition of costs on the basis that the trial court did not consider his present or futu re ability to pay costs. Appellant confusingly cites two types of costs in his brief; co sts of prosecution and costs of confinement. However, as noted above, the trial court only directed appellant to pay the costs of prosecution. {¶ 40} Concerning costs of prosecution, R.C. 2947.23(A)(1)(a) provides that “[i]n all criminal cases, including violations of ordinances, the jud ge or magistrate shall include in the sentence the costs of prosecution * * * and rend er judgment against the defendant for such costs.” We have previously held that trial courts are obligated to impose the costs of prosecution irrespective of a defendant’s a bility to pay such costs. See State v. Trimpe , 6th Dist. Wood No. WD-18-048, 2019-Ohio-3017, ¶ 29; State v.

Dotson , 6th Dist. Wood No. WD-15-060, 2016-Ohio-8085, ¶ 23; State v. Tucker , 6th Dist. Wood No. WD-16-063, 2018-Ohio-1869, ¶ 37; State v. Hughes , 6th Dist. Wood No. WD-16-056, 2018-Ohio-1237, ¶ 64. {¶ 41} Because the court did not impose costs of confinement in case N o. 2018CR0351, and because it was obligated to impose the costs of prosecution17. irrespective of appellant’s ability to pay, we find that costs of prosecution were properly imposed in case No. 2018CR0351. Therefore, appellant’s third a ssignment of error is not well-taken with respect to the costs imposed in case No. 2018CR 0351. {¶ 42} Conclusion {¶ 43} In light of the foregoing, the judgment of the Wood County Cour t of Common Pleas is reversed, in part, and affirmed, in part. Appe llant’s convictions for corrupting another with drugs in case No. 2018CR0105 are not su pported by sufficient evidence, and are vacated. Therefore, appellant may not be ret ried on those charges, and they are hereby dismissed. The trial court’s imposition of cos ts in case No. 2018CR0351 is affirmed. The state is ordered to pay the costs of this app eal pursuant to App.R. 24.

Judgment reversed, in part, and affirmed, in part. A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _________________

______________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.