[Cite as State v. Arnder , 2022-Ohio-481.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : JOHN A. ARNDER : Case No. 2021 AP 06 0012 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appe al from the Court of Common Pleas, Case No. 2020 CR 06 0247

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 18, 2022

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant KRISTINE W. BEARD JACOB T. WILL 125 East High Avenue 121 South Main Street New Philadelphia, OH 44663 Suite 520 Akron, OH 44308Tuscarawas County, Case No. 2021 AP 06 0012 2

Wise, Earle, P.J. {¶ 1} Defendant-Appellant, John Arnder, appeals his May 6, 2021 conviction and sentence by the Court of Common Pleas of Tuscarawas County, Ohi o. Plaintiff-Appellee is state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On June 26, 2020, the Tuscarawas County Grand Jury indict ed appellant on two counts of aggravated trafficking in drugs in violation o f R.C. 2925.03 and two counts of corrupting another with drugs in violation of R.C. 29 25.02. Said charges arose after the overdose death of Johnathan Brinkman. {¶ 3} A jury trial commenced on March 16, 2021. The jury found appellant guilty of the trafficking counts and not guilty of the corrupting coun ts. By judgment entry filed May 6, 2021, the trial court merged the trafficking counts and sentenced appellant to twelve months in prison. {¶ 4} Appellant filed an appeal and this matter is now before t his court for consideration. Assignments of error are as follows: I {¶ 5} "THE JURY'S FINDING OF GUILTY AS TO THE OFFENSES OF TRAFFICKING IN DRUGS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." II {¶ 6} "APPELLANT'S CONVICTIONS FOR TRAFFICKING IN DRUGS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF THE DUETuscarawas County, Case No. 2021 AP 06 0012 3

PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SEC TION 10, OF THE OHIO CONSTITUTIO N." III {¶ 7} "THE TRIAL COURT'S IMPOSITION OF THE MAXIMUM SENTENCE FOR A FELONY TRAFFICKING IN DRUGS WAS NOT SUPPORTED BY THE RECORD O R THE COURT'S FINDINGS." I, II {¶ 8} In his first and second assignments of error, appellant c laims his convictions were against the manifest weight and sufficiency of the evidenc e. We disagree. {¶ 9} On review for manifest weight, a reviewing court is to ex amine the entire record, weigh the evidence and all reasonable inferences, consi der the credibility of witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised o nly in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. {¶ 10} On review for sufficiency, a reviewing court is to exami ne the evidence at trial to determine whether such evidence, if believed, would su pport a conviction. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inqui ry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the crime pr oven beyond a reasonableTuscarawas County, Case No. 2021 AP 06 0012 4

doubt." Id. at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). {¶ 11} Appellant was convicted of aggravated trafficking in dru gs in violation of R.C. 2925.03(A)(1) which states: "No person shall knowingly * * * [s]ell or offer to sell a controlled substance or a controlled substance analog." {¶ 12} The jury heard testimony from several witnesses. Jason Brinkman, father of the deceased, testified his son was staying in his home and he saw his son at 3:30 a.m. and everything appeared normal. T. at 117. He next saw h is son at 7:00/7:30 a.m. in a condition that prompted him to call for emergency help. T . at 119. {¶ 13} Tuscarawas County Coroner Investigator Catherine Clark t estified to taking blood samples from the deceased and the procedures involved in sending the samples to a lab for testing. T. at 125-129. {¶ 14} Forensic toxicologist Kevin Shanks testified to the proc edures involved in receiving, testing, and interpreting blood samples. T. at 140- 147. He testified the blood samples from the deceased contained fentanyl and carfentanil, a s well as a cocaine metabolite and benzodiazepine. T. at 154-156, 159-161; State's Exhibit B. He explained over the last several years, both fentanyl and carfentanil "hav e been found in the street heroin supply." T. at 154. The fentanyl and carfentanil toget her would have a "synergistic effect" (exaggerated effect) making the combination of the two drugs "more powerful than the sum of the two drugs." T. at 158-159. {¶ 15} Tuscarawas County Coroner Jeff Cameron testified the dec eased's cause of death was respiratory failure and fentanyl and carfentanil i ntoxication. T. at 176; State's Exhibit D. He stated the presence of these two drugs are "extr emely potent syntheticTuscarawas County, Case No. 2021 AP 06 0012 5
opioids, which cause central nervous system depression." Id. He explained "[e]ssentially the brainstem gets turned off, the patient stops breathing, res piratory failure leads to cerebral hypoxia or lack of oxygen to the brain and within a fe w minutes the patient is dead." T. at 176-177. He was one hundred percent certain the deceased's cause of death was from the combination o f the synthetic opioids of fentanyl and carfentanil. T. at 177-178. {¶ 16} New Philadelphia Detective Captain Shawn Nelson testifie d to investigating the matter. He obtained information that led him to appellant as the seller of "the narcotics on the night in question." T. at 184. Detective Nelson interv iewed appellant and the taped interview was played for the jury. T. at 188; State's Exhibit E. During the interview, appellant admitted to buying a gram of heroin, dividing it, and selling "a twenty" to the deceased. When he first went to the deceased's home, the decea sed stated he did not have any money. When appellant returned around 3:30/4:00 a.m., the deceased had the money and the sale was conducted through an open window of the home. No drugs were recovered from the bedroom. T. at 198. {¶ 17} Kelsey Couts, the deceased's girlfriend, was called by t he defense. She testified she was sleeping in the deceased's bedroom when his f ather entered the bedroom around 7:00/7:30 a.m. and she then observed the decease d on the floor. T. at 208, 211. She noticed $300 was missing from her purse. T. at 209, 215. She testified the deceased would often take her debit card or money while she was sleeping, "it was constant with him." Id. The deceased hid his drug use from her. T. at 210. {¶ 18} In his appellate brief at 10, appellant argues the state "presented no evidence showing, or even suggesting, that Mr. Arnder sold fent anyl, carfantanil, or aTuscarawas County, Case No. 2021 AP 06 0012 6 mixture of the two" to the deceased. He further argues there i s no way to connect him to the substances found in the deceased. Appellant's Brief at 11. {¶ 19} The weight to be given to the evidence and the credibili ty of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990). The trier of fact "has the best opportunity to view th e demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We note circumstantial evidence is that which can be "inferred from rea sonably and justifiably connected facts." State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio44, 595 N.E.2d 915. It is to be given the same weight and defe rence as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). {¶ 20} The jury heard appellant admit to purchasing a gram of h eroin, dividing it, and selling some to the deceased just prior to his death. The deceased's girlfriend testified to money being missing from her purse. Both fentanyl and carfentanil have been found in the street heroin supply. The deceased died from fent anyl and carfentanil intoxication. No drugs were found in the deceased's bedroom. {¶ 21} Based upon both the direct and circumstantial evidence, we find sufficient evidence, if believed, to support the conviction, and do not fi nd any manifest miscarriage of justice. {¶ 22} Assignments of Error I and II are denied. IIITuscarawas County, Case No. 2021 AP 06 0012 7 {¶ 23} In his third assignment of error, appellant claims the t rial court erred in imposing the maximum sentence for a felony in the fifth degree. We disagree. {¶ 24} Pursuant to R.C. 2953.08(A)(1), appellant is entitled to appeal as of right the maximum sentence imposed on his conviction. Under R.C. 295 3.08(G)(2), we may either increase, reduce, modify, or vacate a sentence and reman d for resentencing where we clearly and convincingly find that either the record does no t support the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016- Ohio-1002, 59 N.E.3d 1231; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015- Ohio-4049. {¶ 25} "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to th e extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, a nd which will produce in the mind of the trier of facts a firm belief or conviction as t o the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. {¶ 26} As noted by this court in State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶ 16:

A trial court's imposition of a maximum prison term for a felon y conviction is not contrary to law as long as the sentence is wi thin the statutory range for the offense, and the court considers both t he purposes and principles of felony sentencing set forth in R.C. 2929.11 a nd theTuscarawas County, Case No. 2021 AP 06 0012 8
seriousness and recidivism factors set forth [in] R.C. 2929.12. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 1 0, 16.

{¶ 27} R.C. 2929.11 governs overriding purposes of felony sente ncing and states:

(A) A court that sentences an offender for a felony shall be gu ided by the overriding purposes of felony sentencing. The overriding p urposes of felony sentencing are to protect the public from future crime b y the offender and others, to punish the offender, and to promote the effectiv e rehabilitation of the offender usi ng the minimum sanctions that the court determines accomplish those purposes without imposing an unnece ssary burden on state or local government resources. To achieve thos e purposes, the sentencing court shall consider the need for inca pacitating the offender, deterring the offender and others from future cri me, rehabilitating the offender, and ma king restitution to the vict im of the offense, the public, or both. (B) A sentence imposed for a felony shall be reasonably calcula ted to achieve the three overriding purposes of felony sentencing s et forth in division (A) of this section, commensurate with and not demeani ng to the seriousness of the offender's conduct and its impact upon the v ictim, and consistent with sentences imposed for similar crimes committed by similar offenders.Tuscarawas County, Case No. 2021 AP 06 0012 9

{¶ 28} R.C. 2929.12 governs factors to consider in felony sente ncing. Subsection (A) states the trial court "shall consider the factors set fort h in divisions (B) and (C) of this section relating to the seriousness of the conduct, [and] the f actors provided in divisions (D) and (E) of this section relating to the likelihood of the o ffender's recidivism." {¶ 29} As noted by this court in State v. Webb, 5th Dist. Muskingum No. CT2018- 0069, 2019-Ohio-4195, ¶ 17:

Although a trial court must consider the factors in R.C. 2929. 11 and 2929.12, there is no requirement that the court state its reaso ns for imposing a maximum sentence, or for imposing a particular sente nce within the statutory range. There is no requirement in R.C. 2929.12 t hat the trial court states on the record that it has considered the statutory criteria concerning seriousness and recidivism or even discussed them. (Citations omitted.)

{¶ 30} "Nothing in R.C. 2953.08(G)(2) permits an appellate cour t to independently weigh the evidence in the record and substitute its judgment fo r that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12." State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42. {¶ 31} Appellant was found guilty of aggravated trafficking in drugs in the fifth degree. Pursuant to R.C. 2929.14(A)(5), felonies of the fifth degree are punishable by "a definite term of six, seven, eight, nine, ten, eleven, or twelv e months." By judgment entryTuscarawas County, Case No. 2021 AP 06 0012 10 filed May 6, 2021, the trial court sentenced appellant to the m aximum, twelve months in prison. The sentence is not contrary to law. {¶ 32} During the sentencing hearing, the trial court recited a ppellant's extensive criminal history which included prior imprisonment for traffick ing offenses. May 5, 2021 T. at 10-12. {¶ 33} In its judgment entry, the trial court noted it consider ed the record, all statements, and the factors set forth in R.C. 2929.11 and 2929. 12. The trial court found the deceased suffered serious physical harm (death), appellant was out on bail before trial when the offense was committed, appellant had prior adjud ications of delinquency and a prior history of criminal convictions including numerous drug offenses, appellant has failed to respond favorably to past sanctions, including in carceration for trafficking in drugs, appellant has demonstrated a pattern of drug and/or alco hol abuse that is related to the offense and fails to acknowledge the pattern of drug and /or alcohol abuse or refuses treatment, appellant has been scored as "very high risk" to reo ffend, and appellant was non-compliant with pretrial release supervision. The trial cou rt further stated the R.C. 2929.12 factors indicate "recidivism is more likely" than less likely, the increasing seriousness factors outweigh the decreasing seriousness factors , a prison term is consistent with the purposes and principles of sentencing, and appellant is not amenable to available community control sanctions. {¶ 34} Upon review, we do not find clear and convincing evidenc e that the record does not support the trial court's findings or that the sentenc e is contrary to law. R.C. 2953.08(G)(2). The sentence is within the statutory range for a felony of the fifth degree, and the trial court considered the R.C. 2929.11 and 2929.12 fac tors.Tuscarawas County, Case No. 2021 AP 06 0012 11 {¶ 35} Assignment of Error III is denied. {¶ 36} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio is hereby affirmed. By Wise, Earle, P.J. Hoffman, J. and Wise, John, J. concur.

EEW/db