State v. Costell , 2016 Ohio 3386 ( 2016 )

[Cite as State v. Costell, 2016-Ohio-3386.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-15-11
v.
JON JAMES COSTELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2014-CR-0127
Judgment Affirmed
Date of Decision: June 13, 2016
APPEARANCES:
Paula Brown for Appellant
David W. Phillips for Appellee
Case No. 14-15-11
PRESTON, J.
{¶1} Defendant-appellant, Jon James Costell (“Costell”), appeals the April
20, 2015 judgment entry of sentence of the Union County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from the overdose death of Debra Costell (“Debra”)
on September 25, 2013. Debra was a bedridden paraplegic suffering from chronic
obstructive pulmonary disease (“COPD”), depression, and two stage IV decubitus
ulcers—bed sores. Debra, who lived at home with her husband, Costell, received
in-home healthcare from home-healthcare aids and nurses until she was
hospitalized in July 2013. When Debra returned home on August 21, 2013, she
received only in-home nursing care until her death. Debra was prescribed a
number of medications, including Tramadol, to treat her pain, and Sertraline, to
treat her depression. Debra’s nurses were responsible for staging her pillbox with
her daily prescribed medications, and Costell was responsible for administering to
Debra her medications from her pillbox and her as-needed medications, which
were not staged in her pillbox. Debra’s cause of death was determined to be acute
intoxication from the combined effects of Tramadol and Sertraline. Among other
medications, Debra was prescribed 100 milligrams—1 pill—of Sertraline per day,
and prescribed 50 milligrams up to 3 times per day as needed—up to 3 pills—of
Tramadol.
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{¶3} On June 22, 2014, the Union County Grand Jury indicted Costell on
four counts, including: Count One of aggravated murder in violation of R.C.
2903.01(A), (F) and 2929.02(A), an unclassified felony; Count Two of failing to
provide for a functionally impaired person in violation of R.C. 2903.16(A), (C)(1),
a fourth-degree felony; Count Three of domestic violence in violation of R.C.
2919.25(B), (D)(4) a third-degree felony; and Count Four of involuntary
manslaughter in violation of R.C. 2903.04(A), (C), a first-degree felony. (Doc.
No. 1).
{¶4} On July 23, 2014, Costell appeared for arraignment and entered pleas
of not guilty to the counts of the indictment. (Doc. No. 4).
{¶5} The case proceeded to a jury trial on April 13-16, 2015. On April 16,
2015, the jury found Costell guilty as to the counts in the indictment. (Doc. Nos.
109, 110, 111, 112); (Apr. 16, 2015 Tr. at 68-70). On April 20, 2015, the trial
court sentenced Costell to life in prison with parole eligibility after serving 25
years on Count One and 36 months in prison on Count Three, and it ordered that
Costell serve the terms consecutively. (Doc. No. 115); (Apr. 20, 2015 Tr. at 13).
The parties agreed that Counts Two and Four merged with Count One. (Id.); (Id.
at 12).
{¶6} On May 13, 2015, Costell filed his notice of appeal. (Doc. No. 126).
He raises nine assignment of error for our review. For ease of our discussion, we
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will first review together Costell’s eighth and sixth assignments of error; followed
separately by his second and first assignments of error; then together his fifth,
seventh, and ninth assignments of error; and finally together his third and fourth
assignments of error.
Assignment of Error No. VIII
The Trial Court Erred When it Did Not Grant Defendant’s Rule
29 Motion at End of State’s Case and at End of the Trial.
Assignment of Error No. VI
The Verdict Was Against the Manifest Weight of the Evidence
and Defendant’s Conviction Was Not Supported by Sufficient
Evidence.
{¶7} In his eighth assignment of error, Costell argues that the trial court
erred by denying his Crim.R. 29 motion because the State “never proved [Costell]
caused Debra’s death.” (Appellant’s Brief at 33). In his sixth assignment of error,
Costell argues that his convictions are against the manifest weight of the evidence
and based on insufficient evidence.
{¶8} “Under Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved
beyond a reasonable doubt.” State v. Tatum, 3d Dist. Seneca No. 13-10-18, 2011-
Ohio-3005, ¶ 43, citing State v. Bridgeman, 55 Ohio St. 2d 261, 263 (1978). “A
motion for acquittal tests the sufficiency of the evidence.” Id., citing State v.
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Miley, 114 Ohio App. 3d 738, 742 (4th Dist.1996). As such, we will review
together Costell’s arguments under his sixth and eighth assignments of error that
his convictions are not supported by sufficient evidence.
{¶9} 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.
{¶10} “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 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St. 3d 89 (1997), fn. 4.
Accordingly, “[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-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App. 3d 505,
2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No.
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4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy
rather than credibility or weight of the evidence.”), citing Thompkins at 386.
{¶11} 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
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.
{¶12} It appears that Costell is challenging only his aggravated-murder
conviction under R.C. 2903.01(A) in his sixth and eighth assignments of error.
R.C. 2903.01(A) provides, “No person shall purposely, and with prior calculation
and design, cause the death of another * * *.” Accordingly, to prove that Costell
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committed aggravated murder under R.C. 2903.01(A), the State was required to
prove: (1) Costell acted purposely; (2) Costell acted with prior calculation and
design; and (3) Costell caused Debra’s death. See R.C. 2903.01(A); State v.
Williams, 8th Dist. Cuyahoga No. 98528, 2013-Ohio-1181, ¶ 24; State v. Neeley,
143 Ohio App. 3d 606, 620 (1st Dist.2001). “A person acts purposely when it is
the person’s specific intention to cause a certain result * * *.” R.C. 2901.22(A).
The Supreme Court of Ohio defines “prior calculation and design” as requiring
“evidence of ‘more than the few moments of deliberation * * * and * * * a scheme
designed to implement the calculated decision to kill.’” State v. Conway, 108
Ohio St. 3d 214, 2006-Ohio-791, ¶ 38, quoting State v. Cotton, 56 Ohio St. 2d 8, 11
(1978).
{¶13} Because it is the only element Costell challenges on appeal, we
review the sufficiency of the evidence supporting only whether Costell caused
Debra’s death, and whether the jury clearly lost its way in concluding that Costell
caused Debra’s death.
{¶14} At trial, the State presented the testimony of 25 witnesses. The
testimony relevant to Costell’s sixth and eighth assignments of error is
summarized below.
{¶15} As its first witness, the State presented the testimony of Union
County Sheriff’s Office 9-1-1 dispatcher Rebecca Heath (“Heath”), who testified
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that she received a 9-1-1 emergency call from Costell at 5:31 a.m. on the morning
of September 25, 2013 while she was working as a dispatcher. (Apr. 13, 2015 Tr.,
Vol. II, at 196-197, 201). Heath identified State’s Exhibit 1 as a true and accurate
audio recording of Costell’s 9-1-1 call, which was subsequently played for the
jury. (Id. at 197-198, 202). Heath testified that Costell seemed calm at times and
at other times he seemed to be “somewhat unwilling or abrupt.” (Id. at 202, 203).
According to Heath, Costell seemed to be “a little calmer than most.” (Id. at 203).
{¶16} Next, Todd L. Simmons (“Simmons”), a firefighter and EMT for
Union Township, testified that he responded to the Costell residence on September
25, 2013 as a result of Costell’s 9-1-1 call. (Id. at 206, 208). According to
Simmons, Costell “said he didn’t do CPR on her, but * * * he said he did try to do
rescue breaths.” (Id. at 212). Heath testified that Costell did not “seem too upset”
and that Costell “just kept saying: I know she’s gone.” (Id. at 214).
{¶17} Union County Sheriff’s Deputy James M. Inskeep (“Deputy
Inskeep”) testified that he was dispatched to the Costell residence on September
25, 2013. (Id. at 217-218). Deputy Inskeep testified that Costell told him that
Debra had been “pretty sick,” requiring Costell to quit his job to stay home and
care for her “full time.” (Id. at 222-223). According to Deputy Inskeep, Costell
mentioned that that night she was sleeping in the bed and he tends to
sleep on the couch and that morning when he got up to check on her,
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that he noticed the nasal tubing for the oxygen was off her face and
that when he was checking on her, that she needed CPR.
(Id. at 223). Regarding the CPR, Deputy Inskeep testified that Costell told him
that he had a terrific time trying to turn her and straighten her out
because of her physical, medical conditions; and then he said when
he did get her flat, which was very hard to do, that when he started
the CPR, that the cracking of the bones really disturbed him.
(Id.). Deputy Inskeep testified that he “took [from the scene] a bag of prescription
drugs that [Costell] gave him.” (Id. at 224). According to Deputy Inskeep, the
medication was already “bagged up,” and he took it because “[i]t’s custom that we
take all the medication when a person passes away at home, we take that and give
it to the coroner so that it can be inventoried and be counted to make sure that we
have everything in the house.” (Id. at 224-225). He testified that he transported
the bag of Debra’s medications to the Sheriff’s Office and left the bag in the
dispatch room for Investigator Paul L. Slaughter (“Investigator Slaughter”) of the
Union County Coroner’s Office to retrieve. (Id. at 231-232). Deputy Inskeep
testified that Costell explained to him that he kept Debra’s medications in a
lockbox because he was afraid of it being stolen and because “she would get into
her medication and try to take too much medication.” (Id. at 225). Deputy
Inskeep testified that Costell informed him that he was the “only person to have
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the key to the box” that contained Debra’s medications and that he administered
her medications to her. (Id. at 226). Deputy Inskeep testified, “In most of the
cases I’ve ever been around with a death, the person always talks about the loss of
a relationship, the loss of a loved one and it’s going to be hard * * *.” (Id.).
However, according to Deputy Inskeep, Costell’s demeanor was “different” than
that because “most of the time he talked about himself.” (Id.).
{¶18} On cross-examination, Deputy Inskeep testified that he did not
inventory the medications provided to him by Costell. (Id. at 231-232).
{¶19} Dr. Prasanna K. Muniyappa (“Dr. Muniyappa”) testified that Debra
was his patient since 2010. (Id. at 285, 287). According to Dr. Muniyappa, Debra
suffered from COPD, depression, paralysis resulting in her inability to walk, and
two stage IV decubitus ulcers. (Id. at 288-289, 291). Dr. Muniyappa testified that
Debra had been bedridden since 2008. (Id. at 288). Dr. Muniyappa testified that
he was surprised to learn that Debra passed away because he had “seen her a
couple of weeks earlier” and, even though she was “not in the best of health,” he
“did not expect her to pass away so soon.” (Id. at 303-304).
{¶20} Dr. Muniyappa testified that he prescribed Debra two pain
medications—Tramadol and Vicodin—and that Debra had been taking the dosage
of Tramadol that she was taking at the time of her death since 2011. (Id. at 292-
293). Dr. Muniyappa confirmed that Debra’s prescribed dosage of Tramadol was
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not increased. (Id. at 293). Dr. Muniyappa testified that he prescribed Debra
Sertraline to treat her depression and that she was taking the dose of Sertraline that
she was taking at the time of her death for at least a year. (Id. at 294). Unlike the
Tramadol, which Debra was to take on an as-needed basis for pain, Debra was to
take the Sertraline every day. (Id. at 293, 295). According to Dr. Muniyappa,
Debra did not complain to him about any interactions between the Tramadol and
Sertraline. (Id. at 295). Dr. Muniyappa testified, “Usually when there’s an
interaction between the two drugs, you’re going to see it sooner than later; so
within the first month, two months, maybe even three months, you would see
some problem with that medicine.” (Id.).
{¶21} On cross-examination, Dr. Muniyappa testified that Debra also
“suffered from the effects of [Wernicke-Korsakoff syndrome (“Korsakoff
syndrome”)],” “which is * * * a long-standing illness brought on by alcohol use
and thiamine deficiency.” (Id. at 305). According to Dr. Muniyappa, it is possible
for a person diagnosed with Korsakoff syndrome to exhibit “some liver issues” if
that person is “a heavy drinker.” (Id.). Yet, Dr. Muniyappa testified that he was
not actively treating Debra for that disease because “[t]here really is no treatment
at that point other than just try to help with nutrition.” (Id. at 307, 308). Dr.
Muniyappa testified that Debra’s health was declining because “she had these
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chronic issues, she continued to smoke, she had bad COPD * * * [and] she was not
in the best of health.” (Id. at 316).
{¶22} On redirect examination, Dr. Muniyappa testified that he was not
aware of any effect that Debra’s Korsakoff syndrome had on her liver, and that
Debra was not diagnosed with any other liver issues. (Id.). According to Dr.
Muniyappa, Debra’s prescriptions would not have any effect on her liver if they
were taken at their prescribed levels. (Id. at 317-318).
{¶23} Kimberly Reedy (“Reedy”), a lead investigator with the Ohio
Department of Medicaid, testified that she became involved in the case as part of
the Ohio Department of Medicaid’s “100 percent death review” and because her
office “received [a referral] from CareStar[, the Ohio Department of Medicaid’s
contracting case-management agency for Debra’s care,] as an alert, saying
[Reedy’s office] need[s] to look at this case.” (Id. at 279). Reedy testified that she
reported her concerns regarding Debra’s death to the Union County Coroner’s
Office and the Union County Sheriff’s Office. (Id. at 284).
{¶24} Investigator Slaughter testified that he was dispatched to the Costell
residence on September 25, 2013, and that he initially thought that an autopsy was
unnecessary since Debra had extensive medical issues. (Id. at 235, 237, 247-248).
However, he testified that the Union County Coroner, Dr. David T. Applegate
(“Dr. Applegate”), informed him the next day that an autopsy would be performed
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because Dr. Applegate received “a complaint from the state about possible abuse
from some of the home health nurses and people that had seen [Debra].” (Id. at
250-251).
{¶25} Investigator Slaughter testified that, on the date of Debra’s death,
Costell provided to him Debra’s medications that were in her pillbox and that
Costell told him that he had to keep her medication locked up “because it’s been
stolen before.” (Id. at 242). According to Investigator Slaughter, he is required by
state law to “receive all medicine of someone that is deceased * * * for evidence.”
(Id. at 243). He testified that he retrieved from the Sheriff’s Office dispatch room
the bag of Debra’s medications that Deputy Inskeep transported from the Costell
residence to the Sheriff’s Office. (Id. at 243-244). Investigator Slaughter testified
that he inventoried Debra’s medications “to see if all the mediations were there, if
there was any that was missing, [and] if they had been taken regularly or not.” (Id.
at 247). However, Investigator Slaughter admitted that he had no way of knowing
whether Debra was taking her medications as ordered or whether there were any
medications missing. (Id.). He also admitted that he did not search the Costell
residence for any additional pills or pill bottles. (Id.).
{¶26} Investigator Slaughter testified that he asked Costell what happened,
and Costell told him that Debra went to bed at approximately 10:00 p.m. the night
before with her oxygen on, but when he went to wake her in the morning, she did
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not have her oxygen on and she was unresponsive. (Id. at 244). Investigator
Slaughter testified that Costell told him that Debra did not have any “recent
complaints.” (Id.). He testified that Costell told him that the 9-1-1 dispatcher told
him to perform CPR on Debra but he could not get her on the floor to perform the
CPR. (Id. at 245).
{¶27} Investigator Slaughter testified that he called Costell to inform him
that Dr. Applegate decided to perform an autopsy on Debra’s body, but did not tell
Costell that Dr. Applegate ordered the autopsy as a result of a complaint. (Id. at
251). According to Investigator Slaughter, Costell was “very agitated” that
Debra’s body was going to be autopsied—that is, Costell told Investigator
Slaughter that he did not think an autopsy needed to be done since “he had done
nothing wrong.” (Id. at 252). Investigator Slaughter testified that Costell
repeated, throughout their 30-40 minute telephone conversation, that there was no
reason for an autopsy because he had not done anything wrong. (Id. at 253-254).
He also testified that Costell’s statement to him that “I’ve been off work, I had to
do something” was, in hindsight, odd. (Id. at 254). Investigator Slaughter testified
that he again spoke with Costell approximately six to eight weeks later but before
the autopsy and toxicology reports were concluded. (Id. at 255). He testified that
Costell again repeated that he did not understand why an autopsy was necessary
because “he had done nothing but take care of her, that he had done nothing
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wrong.” (Id.). However, Investigator Slaughter testified that Costell did not
inquire as to the results of the autopsy. (Id. at 256). He testified that he spoke
with Costell a third time once the autopsy and toxicology reports were completed.
(Id.). According to Investigator Slaughter, Costell said, “You know, you told me
that she didn’t need an autopsy, that you thought it was natural causes and that - -
is there anything you can do for me.” (Id. at 256-257). Investigator Slaughter
testified that he informed Costell that the conversation was inappropriate, that he
was hanging up the phone, and that Costell was not to call back. (Id. at 257).
{¶28} On cross-examination, Investigator Slaughter testified that he did not
ask Costell why he could not get Debra off the bed to perform CPR. (Id. at 259).
{¶29} Detective Michael S. Justice (“Detective Justice”) of the Union
County Sheriff’s Office testified that he investigated Debra’s death at the request
of the Union County Coroner’s Office. (Apr. 15, 2015 Tr. at 75, 77). Detective
Justice identified State’s Exhibit 40 as a true and accurate recording of his April 8,
2014 interview of Costell, which was subsequently played for the jury. (Id. at 78-
79). Detective Justice testified that he executed a search warrant that day and
seized as evidence 2012 and 2013 calendars, which he identified as State’s
Exhibits 54 and 55, respectively. (Id. at 94-95). Detective Justice testified that he
discussed the calendars with Costell and, in particular, a notation on the 2013
calendar across September 17, 18, and 19 indicating “Deb had bad days.” (Id. at
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96-97). (See also State’s Ex. 55). He further testified that Costell told him that
the notations were in his handwriting. (Apr. 15, 2015 Tr. at 96). Detective Justice
identified State’s Exhibit 7 as the bag of Debra’s medications that Costell provided
to Deputy Inskeep on September 25, 2013. (Id. at 94). He testified that he
retrieved the bag of Debra’s medications from the Union County Coroner’s Office
and provided the bag to Lonnie Craft (“Craft”), a pharmacist with Plain City
Druggist, in Plain City, Ohio, for him to inventory and review the medications
contained in the bag. (Id.).
{¶30} On cross-examination, Detective Justice testified that he did not
inform Costell that he was recording his interview. (Id. at 99).
{¶31} David Burke (“Burke”), a pharmacist with Dave’s Pharmacy in
Marysville, Ohio, testified that Debra filled her prescriptions with his pharmacy.
(Apr. 14, 2015 Tr., Vol. I, at 9, 13). Burke identified State’s Exhibit 16 as a true
and accurate copy of Debra’s prescription profile record from January 1, 2011
through September 25, 2013. (Id. at 15-16). He testified that Debra’s Sertraline
prescription was last filled on September 6, 2013 with 30 pills constituting a 30-
day supply and that her Tramadol prescription was last filled on September 6,
2013 with 90 pills constituting a 30-day supply. (Id. at 23-24).
{¶32} Burke testified Debra was prescribed the same dose of Sertraline and
Tramadol for more than a year and that Debra did not report to him any
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interactions or problems with her prescriptions. (Id. at 31). According to Burke, if
Debra experienced any interactions between the Tramadol and Sertraline, she
would have experienced serotonin syndrome, which “will occur generally within a
week to four weeks” causing a person to feel “out of sorts” before experiencing
physical conditions, including seizures and tardive dyskinesia. (Id. at 31-32).
Burke further testified, “This would go on for an extended period of time. It is a
very chronic condition. You would know that you had this.” (Id. at 32-33).
Burke testified that his wife, who is also a pharmacist and who delivered Debra’s
prescriptions, “was there a few weeks before [and] actually conversed with her - -
she could have relayed [any perceived side effects] at any time and we never
perceived [the side effects were] occurring.” (Id. at 33). According to Burke,
taking a higher-than-prescribed dose of Sertraline and Tramadol can be life
threatening. (Id. at 34). In particular, Burke testified that taking a higher-than-
prescribed dose of Tramadol “can lead to respiratory depression.” (Id.).
{¶33} On cross-examination, Burke testified that Debra’s Tramadol
prescription was filled approximately every 30 days between July 2012 and June
26, 2013. (Id. at 36). However, Burke testified that his pharmacy did not fill
Debra’s Tramadol prescription between June 26, 2013 and September 6, 2013.
(Id. at 38). Burke testified that his pharmacy filled “five or six regularly-
scheduled medications” for Debra each month. (Id. at 40-41).
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{¶34} Next, Craft testified that Detective Justice asked him to examine the
bag of medications that Costell provided to law enforcement on September 25,
2013. (Id. at 47-48). Craft identified State’s Exhibit 19 as the report of the
inventory that he conducted of Debra’s bag of medications. (Id. at 49). State’s
Exhibit 19 reflects that there were 50 Tramadol tablets filled under prescription
number 6462318, 10 Sertraline tablets filled under prescription number 7395540,1
and 16 Sertraline tablets filled under prescription number 6442504. (State’s Ex.
19). (See also Apr. 14, 2015 Tr., Vol. I, at 50-51).
{¶35} Nicole McClintock (“McClintock”) testified that she is the director
of nursing for the company that provided in-home nursing services for Debra from
May 2013 through the time of her death. (Apr. 14, 2015 Tr., Vol. I, at 89, 91, 96-
97). She testified that she formulated, in conjunction with Dr. Muniyappa,
Debra’s plan of care, known as a “485 plan,” which describes “what we’re going
to be doing, what we’re going to be teaching, how we’re going to be doing wound
care, the medications the patient’s on.” (Id. at 92-93). McClintock identified
State’s Exhibit 13 as Debra’s 485 plan that was certified from August 21, 2013
through October 19, 2013. (Id. at 93-94). She further testified that Debra’s 485
plan reflects Debra’s diagnoses, “which [are] the main reason[s] that [a medical
professional is] going in to see the patient[,]” as including “[p]ressure ulcer in [sic]
1
Prescription number 7395540 is not one of the prescriptions indicated as being filled by Dave’s
Pharmacy. (See State’s Ex. 16).
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the lower back and pressure ulcer on the hip, paraplegia, COPD with no
exacerbation, [and] epilepsy.” (Id. at 94-95).
{¶36} McClintock identified State’s Exhibit 7 as Debra’s pillbox. (Id. at
125). She testified that Debra’s 485 plan required one 100-milligram pill of her
Sertraline to be put “into the bedtime tab” of her pillbox, but did not require her
Tramadol to be put into her pillbox because it was to be administered to Debra on
an “as-needed” basis. (Id. at 127-128). McClintock testified, “A home health aide
is not allowed to handle medications, so they legally cannot give a pain medicine,
so we allow the caregivers in that case to administer pain medicines[,]” which are
prescribed on an as-needed basis. (Id.).
{¶37} According to McClintock, Debra “was very hopeful. She wanted to
get better.” (Id. at 99). McClintock testified that Debra could not reach the
counter where her medication was stored. (Id. at 138). She testified that Debra’s
wheelchair was kept in another room, which was located behind the kitchen, and
not near Debra’s bed. (Id. at 100). She further testified that Debra was not able to
get out of her bed on her own, and that she could not “even get to the bedside
commode by herself.” (Id. at 100-101).
{¶38} McClintock testified that, after Debra was released from the hospital
on August 21, 2013, “Nursing was going out - - it started out daily for nine weeks
until she got her wound vac. * * * We did not have a home health aide going in
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there, but we did have nursing going in.” (Id. at 97-98). McClintock testified that
Costell complained to her,
When we did not have a home health aide going in there - - it
was per his choice after [Debra] come [sic] home the second time
from the nursing home - - he would complain about having to get up
in the middle of the night to put her on the bedside commode and
how it hurt his back and how he wasn’t getting much sleep.
He would complain about having to roll her and turn her, even
though we had educated him on the importance of preventing further
breakdown with the wounds, because it hurt his back and to do it
every two hours was interfering with rest time. So there was a lot of
complaints like that.
(Id. at 130-131). She further testified that Costell complained to her regarding the
financial burden:
He would complain about * * * the electric bill * * *, but he
would complain about how her supplies cost so much money and
how this cost - - you know, the hospital bed and getting her to and
from her doctors’ appointments because we would use an ambulette
service to get her to and from the doctors’ appointments.
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(Id. at 131). Yet, McClintock testified that Debra’s services that she received from
McClintock’s company were paid for by Medicaid. (Id. at 132).
{¶39} On cross-examination, McClintock testified that she did not perform
Debra’s assessment for her 485 plan. (Id. at 141). She also testified that she did
not fill Debra’s pillbox. (Id. at 143). McClintock testified that the nurses “would
call in the scripts to the pharmacy for refills” when they would notice that a pill
bottle needed to be refilled. (Id. at 144). She testified that she assumed the nurses
would not refill a prescription if the pill bottle was not empty. (Id. at 145).
McClintock testified that Costell’s financial-burden complaints would have been
alleviated if he put Debra in the nursing home. (Id. at 149-150).
{¶40} On redirect examination, McClintock testified that Costell’s time-
related complaints would have been alleviated if he would have authorized the full
amount of home healthcare to which Debra was entitled. (Id. at 150).
{¶41} Nora L. Fox (“Fox”) testified that she provided in-home nursing
care, for approximately 45-60 minutes, one-two times per week, for Debra from
November 2012 through the time at which Debra was hospitalized.2 (Id. at 58-60,
76, 80, 85). Fox testified that Debra “was alert and oriented, answered questions,
asked questions[.]” (Id. at 63-64). According to Fox, the only care that Debra was
2
Fox testified that she stopped providing in-home nursing care for Debra when Debra “went to the
hospital,” which Fox thought was in August or September 2013. (See Apr. 14, 2015 Tr., Vol. I, at 87). The
record reflects that Debra went to the hospital in July 2013. (See Apr. 14, 2105 Tr., Vol. II, at 239).
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able to provide for herself included “reach[ing] over and get[ting] a drink, but
that’s about it.” (Id. at 64).
{¶42} Fox testified that she filled Debra’s pillbox with her medication each
week according to Debra’s “485 plan,” which was established by Dr. Muniyappa.
(Id. at 69). According to Fox, Debra’s medications were kept in the kitchen under
the counter—approximately four to five feet from Debra’s bed—in a locked box.
(Id. at 69-70). Fox testified that Debra was not able to reach the box from her
bed—that is, to reach the box, Debra would “have had to get out of the bed and
walk around the corner of the wall, go over to the sink and get the key, and then
come back and unlock it.” (Id. at 70). Fox testified that Costell controlled the key
to the box and kept the key by a windowsill above the kitchen sink. (Id. at 71).
Fox testified that Costell “would stand there and watch” while she was filling
Debra’s weekly pillbox. (Id.). Fox testified that she did not know how often
Costell would provide Debra the Tramadol. (Id. at 73). She testified that Costell
would dispense Debra’s medication to her from her weekly pillbox by handing it
to her in a “little plastic cup” and giving her a drink. (Id. at 73-74). Fox testified
that she never saw any medication in Debra’s bed, on the floor around her bed, or
under her pillow. (Id. at 74).
{¶43} On cross-examination, Fox testified that she filled Debra’s weekly
pillbox with Tramadol. (Id. at 80). She also testified that Costell unlocked the
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pillbox for her at first, but then told her where the key was for her to unlock it
herself. (Id. at 81). Fox testified that she did not hear Costell make any
statements about wanting to hurt Debra or wanting her to die. (Id. at 83).
{¶44} On redirect examination, Fox testified that she did not think Debra
was suicidal. (Id. at 84).
{¶45} Sandra K. Cox (“Cox”) testified that she provided wound care “every
day” for Debra from May to June 2013. (Apr. 14, 2015 Tr., Vol. II, at 206-208).
Cox testified that Debra was diagnosed with two stage IV decubitus ulcers—“one
on the upper part of her coccyx and then one on the ischium, which is the bottom
cheek of her buttocks.” (Id. at 208). According to Cox, “The one on the upper
part of her buttocks was almost as deep as [her] fist would go in. The one on the
ischium, which is the bottom portion of her buttocks, was about a golf ball size
with depth.” (Id. at 209). She further testified that the two wounds were
“tunneling” together. (Id. at 210). According to Cox, she knew Debra’s wounds
were painful because she “would cry when [they] would do the dressings[,]”
requiring “having to take gauze and other dressings and push inside the wound[,]”
“and she would also make sounds of ouch, that hurts.” (Id.). Cox testified that
Costell observed while Debra’s wound dressings were changed. (Id.).
{¶46} Cox further testified that she setup Debra’s weekly pillbox according
to her 485 plan. (Id. at 212). She testified that Debra’s medications were kept in a
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lockbox, which was maintained in the kitchen underneath a shelf and the key “was
in a little figurine, like a corn, up on the shelf,” and that Debra could not reach
either herself. (Id. at 214, 215). According to Cox, she did not put Debra’s pain
medications—including the Tramadol—in her weekly pillbox because Costell did
not want her to have the pain medication because “the pain meds made her loopy
and he didn’t want that.” (Id. at 211, 214). She testified that she did not know
what happened to the pain medication that was being ordered but not provided to
Debra. (Id. at 214). Cox testified that she offered Debra pain medication but
Costell told her that Debra did not need it. (Id. at 221).
{¶47} Cox testified that Debra’s oxygen was turned off “[m]any times”
and, when Costell was confronted about turning off her oxygen, he said “that we
wasn’t [sic] the one that was paying the bills - - the electric bills and that was
raising his bills and that she didn’t need it anyway.” (Id. at 220). Cox confirmed
that the oxygen was medically necessary for Debra. (Id.). When Debra’s oxygen
levels were low, she would be confused. (Id.).
{¶48} On cross-examination, Cox testified that Costell would not allow
anyone to give Debra pain medications, including the Tramadol. (Id. at 225-226).
She confirmed that she did not put Debra’s Tramadol in her pillbox because it was
an as-needed medication. (Id. at 226). Cox identified State’s Exhibit 39 as a copy
of a notepad in which she made notations regarding Debra’s medications. (Id. at
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Case No. 14-15-11
227). Specifically, Cox testified that she noted that she “added three pills a day
[of the Tramadol] in [Debra’s] medi-planner”—that is, Cox testified that she noted
in the notepad that she was putting Debra’s Tramadol in her pillbox as of May 20,
2013. (Id. at 227, 228-229). (See also State’s Ex. 39). She testified that she did
not know if Costell provided to Debra to ingest all of the medications that Cox put
in Debra’s pillbox but that the weekly pillbox was empty when she would refill it.
(Apr. 14, 2015 Tr., Vol. II, at 228).
{¶49} Donna Lutz (“Lutz”) testified that she provided in-home nursing care
for “an hour and a half or so” “two or three days a week” for Debra from May
through June 2013 and “seven days a week” from June through July 2013. (Id. at
230-232). Lutz testified that she would typically arrive at the Costell residence
between 10:00 and 11:00 a.m. and leave between 1:00 and 1:30 p.m. (Id. at 244).
{¶50} Lutz testified that she would fill Debra’s pillbox. (Id.). She testified
that Debra’s medications were maintained in a “heavy metal, like a steel
container” in the kitchen and the key was “on the other side of the kitchen next to
the refrigerator up in a ceramic dish.” (Id. at 244-245). According to Lutz,
Costell allowed her access to the “steel container” with Debra’s medications so
that she could refill Debra’s pillbox each week. (Id. at 245). Lutz testified that,
although she did not see Costell administer Debra’s medications to her, Costell
dispensed Debra’s medications from her pillbox to Debra and that “[h]e would
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always just report to us that either he had or had not given her meds.” (Id. at 246-
247). She testified that she did not know what happened to the medications that
were in Debra’s pillbox, but she testified that the pillbox was empty when she
would refill it. (Id. at 247-248). She further testified that she did not find any
medication around Debra’s bed, on the floor, or inside Debra’s bed. (Id. at 256).
{¶51} Lutz testified that Debra could not get out of bed. (Id.). Lutz
recalled a conversation with Costell regarding Debra’s bedsores, “He stated if she
was a horse, he could take her out in the back and put her out of her misery.” (Id.
at 242).
{¶52} According to Lutz, Costell “was upset that it took money to take care
of [Debra], that she was a burden.” (Id. at 235). Lutz continued,
[Costell] would always make sure that I understood how good of a
life that he had prior to [Debra’s] injury and prior to us having to
come out there, and what a burden the cost was on him as far as
money * * * which was very difficult to understand because she was
part * * * of the Medicaid program, so her Medicaid would take care
of her medications and her supplies and her visits; so as far as a
burden monetary [sic], it didn’t make sense.
(Id. at 236). She also testified, “The electricity was an issue because of her
concentrator that had her oxygen. He was always complaining about how that
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would drain him because that was coming out of his pocket and that was not
covered by Medicaid.” (Id. at 236-237). According to Lutz, Costell also
complained about the noise that Debra’s oxygen concentrator emitted, “He said it
was too loud [because] there’s an alarm system * * * and he didn’t like that * * *
because that was too loud and it would awaken him when he was sleeping.” (Id. at
237-238). Lutz testified, “Several times that I would get there, she would be
difficult to arouse and you would check her oxygenation and it would be in the
low 80s.” (Id. at 238). Lutz testified that, eventually, Debra “had difficulty [with
her oxygenation level] every day that [Lutz] was there” and required
hospitalization in mid-July 2013. (Id. at 239).
{¶53} On cross-examination, Lutz testified that Costell did not want Debra
to take Vicodin and testified that she did not remember whether Debra was
prescribed Tramadol. (Id. at 258). She testified that Costell told her that he gave
Debra her medications and that she did not see any indications that Debra was not
taking those medications—other than that she was not taking Vicodin. (Id. at 261-
262).
{¶54} Susan Steigerwald (“Steigerwald”) testified that she provided “a total
of six visits” of in-home nursing care for Debra for a two-week period in
September 2013. (Id. at 270-271). Steigerwald testified that she last saw Debra
on September 20, 2013. (Id. at 272). She testified that her “job was to change the
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wound vac, change the dressing,” and to setup Debra’s medications “on a weekly
basis.” (Id. at 271, 272). Steigerwald identified State’s Exhibit 13 as Debra’s 485
plan and testified that she setup Debra’s weekly pillbox in accordance with that
plan. (Id. at 273). (See also State’s Ex. 13). Regarding the pillbox, she testified,
“If you’re doing a weekly med setup, you go through and fill up all the a.m.
medications for Monday through the following Sunday and the noon medications,
evening medications, and night medications.” (Apr. 14, 2015 Tr., Vol. II, at 274).
She testified that she did not put as-needed medications in the pillbox. (Id. at 274-
275). Steigerwald testified that, when she filled Debra’s pillbox on September 20,
2013, she did not put the Tramadol in the pillbox because it was prescribed to
Debra on an as-needed basis. (Id. at 275-276). As an as-needed prescription,
Steigerwald testified that Costell was responsible for administering the Tramadol
to Debra when she needed it. (Id. at 276). Regarding Debra’s Sertraline,
Steigerwald testified that she put one tablet for each day in her pillbox. (Id.).
{¶55} Steigerwald testified that, when she last saw Debra five days before
her death, there was nothing about Debra’s chronic conditions that concerned her.
(Id. at 278). Steigerwald testified that, when she learned of Debra’s death, she
thought to herself, “Wow, that seems weird” “[b]ecause she had a chronic
condition. There was nothing acutely wrong with her when I left. Her vital signs
were all stable.” (Id. at 279).
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Case No. 14-15-11
{¶56} On cross-examination, Steigerwald testified that she filled Debra’s
pillbox on September 20—a Friday—and that if another nurse filled it on the
following Monday, “she would have just been filling up several days.” (Id. at
281). She testified that she would spend approximately one hour in the Costell
residence when she would provide Debra nursing care. (Id. at 282).
{¶57} Linda Murphy Tripla (“Tripla”) testified that she provided in-home
nursing care twice for Debra, one of those visits being on September 23, 2013—
two days before her death. (Id. at 283, 285). Tripla identified State’s Exhibit 15
as a true and accurate copy of the September 23, 2013 skilled-nursing visit notes
that she created from her care of Debra that day. (Id. at 286). Tripla testified that
State’s Exhibit 15 reflects that she set up Debra’s medications “for one week per
[the 485-plan] order.” (Id. at 286-287). (See also State’s Exhibit 15). Tripla
testified, “I remember that there were already medications set up, but I filled in
like a couple days of medications and that was per Mr. Costell’s request.” (Apr.
14, 2015 Tr., Vol. II, at 288). She testified that, because Tramadol was prescribed
to Debra on an as-needed basis, she did not put it in her pillbox. (Id. at 288-289).
She further testified, to ensure that a patient receives the correct medication, “You
look at the 485, the orders, and then you have to look at your prescription bottles
so that way, you know, see the medication name, the milligram, make sure you’re
getting the right, you know, dosage of medication.” (Id. at 289). Tripla testified
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Case No. 14-15-11
that she followed this procedure for Debra’s medications on September 23, 2013.
(Id. at 290).
{¶58} On cross-examination, she confirmed that there were already pills in
Debra’s pillbox and that she set up Debra’s medications for “only like two days”
since “the previous nurse had been there two days prior and set the medications
up.” (Id. at 291). According to Tripla, she did not put in Debra’s pillbox any of
Debra’s medications that were prescribed on an as-needed basis because she
“never put a[n as-needed prescription] in a routine pill pack. Even at a request, I
have never done that before.” (Id. at 292). However, she testified that the
statement that she provided to Detective Justice in April 2014 reflects that she put
Debra’s Vicodin in her pillbox. (Id. at 292, 293). Tripla testified that she does not
know why her statement to Detective Justice reflects that because Debra’s Vicodin
was prescribed on an as-needed basis and she does not “remember putting Vicodin
in” the pillbox. (Id. at 292-293).
{¶59} On redirect examination, Tripla testified that she did not have
Debra’s 485 plan to reference when she was interviewed by Detective Justice. (Id.
at 293-294).
{¶60} Catherine Spradlin (“Spradlin”) testified that she provided home-
health aid services for Debra from May to June 2013 “five days a week” from 8:00
a.m. until 1:00 p.m. (Id. at 161, 163, 168). Specifically, she testified that she
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Case No. 14-15-11
“made sure [Debra] was clean and dry in the mornings, * * * [gave] her bed baths,
turn[ed] her, ma[de] her as comfortable as [she] could, ma[de] sure she ate, drank,
all that stuff.” (Id. at 161). Spradlin testified that Costell “would tell [Debra] it
was her fault that he couldn’t work, it was her fault that the bills wasn’t [sic] paid,
it was her fault that he couldn’t do nothing [sic]. It was always her fault because
she was stuck in bed.” (Id. at 169). According to Spradlin, she could not
administer medication to Debra as a home-health aide, only “the nurse and the
family” could administer medication to Debra. (Id. at 173).
{¶61} On cross-examination, Spradlin confirmed that she did not “touch”
any of Debra’s medications, but testified that she saw Costell put Debra’s
medications “in a little - - like a medicine cup and put it on her nightstand” and
saw Debra take the medications provided by Costell. (Id. at 176-177). According
to Spradlin, Debra’s nurse would stage Debra’s medications in the pillbox, Costell
would get the medications out of the pillbox, and Debra would take them. (Id. at
177). She further testified that she did not ever see a time when Debra did not take
her medications, “[s]he always took them when [Spradlin] was there.” (Id. at 177-
178). Spradlin testified that she did not have access to the pillbox. (Id. at 177).
According to Spradlin, Debra told her that she wanted to go back to the nursing
home because “she would have got better treatment.” (Id. at 178). She further
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Case No. 14-15-11
testified that Debra told her that she wanted to go back to the nursing home, before
and after she “got the catheter,” “because she was in pain.” (Id. at 179).
{¶62} Cheri Simpkins (“Simpkins”) testified that she provided home-health
aid services for Debra Monday through Saturday from June 18, 2013 through July
8, 2013. (Id. at 181-182). She testified that she worked with Debra from 8:00
a.m. until 5:00 p.m. Monday through Friday and from 8:00 a.m. until 12:00 p.m.
on Saturdays. (Id. at 182). Simpkins testified that she did not provide services on
Sundays because “Costell told the company he didn’t want any help on Sundays
because it was family day.” (Id. at 183). She testified that she would “get [Debra]
up in the mornings, * * * give her a shower, * * * change her bed, [and] get her
dressed.” (Id. at 183-184). Simpkins testified that, because Debra was bedridden,
Simpkins would assist Debra with getting to her bedside commode, help her get
into her wheelchair, and help her sit up so that she could eat. (Id. at 186).
According to Simpkins, Debra could not even “roll in her bed. You had to help
her move. You had to help roll her to get out of bed.” (Id.).
{¶63} Simpkins testified that Debra’s medications were kept “[i]n a
lockbox” to which only Costell and the nurses had access. (Id. at 193-194). She
testified that she saw Costell provide Debra her medication in a little cup and that
she saw Debra take her medication. (Id. at 194). According to Simpkins, she
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Case No. 14-15-11
never saw any medication on the floor or in Debra’s bed. (Id.). She testified that
she changed Debra’s sheets every day. (Id.).
{¶64} According to Simpkins, money was not an issue for Costell because
he told her “that he would be able to get money if he needed money.” (Id. at 191).
Simpkins testified Costell told her that “if [Debra] wasn’t around, then he could
have a job and have everything he wanted”; however, Simpkins testified that
Costell could have gotten a job since Simpkins provided care for Debra from 8:00
a.m. to 5:00 p.m. Monday through Friday. (Id. at 195).
{¶65} On cross-examination, Simpkins testified that Debra told her “please
don’t let them put me in a nursing home, tell them no.” (Id. at 198-199).
{¶66} Dr. Kenneth Gerston (“Dr. Gerston”), deputy coroner of the Franklin
County Coroner’s Office, testified that he autopsied Debra’s body. (Apr. 15, 2015
Tr. at 12, 15-16). Dr. Gerston identified State’s Exhibit 24 as his autopsy report
for Debra. (Id. at 27). Dr. Gerston testified that his “internal examination [of
Debra’s body] revealed that she had a slightly enlarged heart for a woman her
size.” (Id. at 24). However, he testified that he did not find anything that would
indicate that she suffered a heart attack. (Id. at 31). He further testified, “In the
lungs I didn’t find anything special except that the pulmonary parenchyma, that is
the functioning tissue air sacs of the lungs, were very spongy, so she probably had
some emphysema.” (Id. at 24). Regarding Debra’s liver, Dr. Gerston testified that
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Case No. 14-15-11
her liver’s weight was normal, and that her “liver’s texture and appearance was
[sic] normal and under the microscope was normal, so she had a normal liver.”
(Id. at 25). Dr. Gerston further testified that he did not see any indication that she
had liver disease. (Id.). Regarding Debra’s kidneys, Dr. Gerston testified that her
kidneys were normal and that he did not see any indication that she had kidney
disease. (Id. at 25-26). Dr. Gerston testified that he withdrew vitreous fluid from
Debra’s eyes, which was examined by a toxicologist. (Id. at 26). According to
Dr. Gerston, the toxicology study of Debra’s eye’s vitreous fluid revealed that she
did not have any kidney or liver issues. (Id.).
{¶67} Dr. Gerston testified that he could not determine Debra’s cause of
death from the anatomical findings of his autopsy; rather, he determined Debra’s
cause of death from the toxicology reports, which revealed the “high level of
Sertraline, that is therapeutic high, meaning that somewhat higher than a normal
amount than you would expect to find in the blood for a patient taking that and a
toxic to lethal level of Tramadol[.]” (Id. at 27-28). Dr. Gerston testified that,
based on the results of the toxicology report, he determined Debra’s cause of death
to be “acute intoxication by the combined effects of Sertraline and Tramadol.”
(Id. at 28). Dr. Gerston clarified, “Acute meaning that this would occur within a
short time, say hours.” (Id.). Dr. Gerston testified that he reported his findings to
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the Union County Coroner, Dr. Applegate, and identified State’s Exhibit 23 as his
letter to Dr. Applegate explaining his findings. (Id. at 29).
{¶68} On cross-examination, Dr. Gerston testified that he received a
summary of Debra’s medical history prior to conducting his autopsy. (Id. at 32-
33). However, he testified that, while he had heard that Debra was diagnosed with
Korsakoff syndrome, he was not provided that diagnosis in writing. (Id. at 34).
Dr. Gerston testified that Korsakoff syndrome, a progressive disease, “might”
“[i]n some cases” have an effect on a person’s liver. (Id. at 34-35). However, he
testified that he would not have been able to tell what stage Debra’s Korsakoff
syndrome was because it is a “clinical diagnosis.” (Id. at 35).
{¶69} Dr. Gerston also clarified that Debra’s “therapeutically high level of
Sertraline” “means that the level in the blood is higher than what one would expect
with normal dosage and normal metabolism of the drug.” (Id. at 35-36). Dr.
Gerston testified that a person’s body could cause a higher-than-normal level if it
is not metabolizing the drug normally; however, he testified that Debra was
normally processing Sertraline because “[t]here is only one organ in the body that
would process it and that was the liver, and the liver was found to be normal.” (Id.
at 36-37). Regarding the Tramadol, Dr. Gerston testified that the “most common
cause” for a high level of that drug “would be an overdose.” (Id. at 37). However,
he testified, “Another cause would be that the body, the liver in this case, wouldn’t
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Case No. 14-15-11
metabolize it; but as I pointed out, the liver is normal and it would be capable of
metabolizing.” (Id.). Dr. Gerston further elaborated,
If a liver cannot metabolize a particular substance, we generally see
changes under the microscope. These changes either could be due to
degeneration or death of liver cells. It could be due to psoriasis,
which is scarring of the liver. It could be due to the accumulation of
fat in the liver. None of which we found.
(Id. at 38).
{¶70} On redirect examination, Dr. Gerston testified that Tramadol is
metabolized by “[t]he liver principally and then excreted by the kidney.” (Id. at
40). He confirmed that Debra’s kidneys were normal. (Id. at 40-41). Dr. Gerston
testified that State’s Exhibit 25 reflects that O-Desmethyltramadol—“one of the
prime metabolites or first major metabolite of Tramadol”—“is fairly high.” (Id. at
41). He further testified that the presence of this metabolite indicates that Debra
was “perfectly capable” of metabolizing Tramadol. (Id.). Dr. Gerston testified
that Debra’s enlarged heart and emphysema combined with the Sertraline and
Tramadol contributed to her death. (Id. at 41-42, 43). That is, according to Dr.
Gerston, Debra’s enlarged heart would make her sensitive to arrhythmia and “a
toxic to lethal level of a drug [such as Tramadol] which would increase the levels
of a substance called serotonin in the blood and Sertraline, which certainly inhibits
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Case No. 14-15-11
the uptake of serotonin, the effect would be to make the heart very sensitive to
arrhythmias.” (Id. at 42). He also testified, the “O-Desmethyltramadol has some
respiratory depressive effects. Tramadol does too but not as much as morphine.”
(Id. at 42-43).
{¶71} On re-cross examination, Dr. Gerston testified that the Tramadol
itself could have caused Debra’s death because “[t]hat’s why the level is listed as
toxic to lethal. It depends on the individual. Some individuals react differently to
it, depending on the length of time they’re taking the drug.” (Id. at 45-46). Dr.
Gerston also testified that the O-Desmethyltramadol, as Tramadol’s first
metabolite, could also have contributed to Debra’s death—it could depress
respiration to some extent. Tramadol itself has little effect on the respiration, but
it’s prime metabolite has some effect on it.” (Id. at 46).
{¶72} Calvin McGuire (“McGuire”), the chief toxicologist of the Franklin
County Coroner’s Office at the time of Debra’s death, testified that he conducted
toxicology tests on Debra. (Apr. 14, 2015 Tr., Vol. II, at 295, 297). McGuire
identified State’s Exhibit 26 as his October 23, 2013 toxicology report of his
findings from his examination of Debra’s blood. (Id. at 298-299). McGuire
testified the results of his testing showed that Debra had “[a] high therapeutic
level”—“.68 micrograms per milliliter”—of Sertraline in her blood and a “toxic to
lethal” level—“2.0 micrograms per milliliter”—of Tramadol in her blood. (Id. at
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301-302). According to McGuire, “a high therapeutic level” means that “[i]t’s just
the upper end of the therapeutic level of drugs in a person’s system.” (Id. at 302).
More specifically, he testified, “if a person is given the right dosage of drug,
they’ll be at a therapeutic level. And there’s a range on the therapeutic level from
low therapeutic to high therapeutic, and it’s just - - she was on the high therapeutic
level.” (Id.). He further testified that “toxic to lethal” “depends on a person’s
tolerance * * * for some people that could be a toxic level and for other people
that could be a lethal level.” (Id. at 302-303).
{¶73} On cross-examination, McGuire testified that he could not recall
whether he was provided with Debra’s medical history. (Id. at 304). He testified
that his toxicology report is based only on Debra’s blood sample. (Id. at 305).
{¶74} Daniel D. Baker, IV (“Baker”), the current3 chief toxicologist of the
Franklin County Coroner’s Office identified State’s Exhibit 25 as a true and
accurate copy of his April 2, 2014 toxicology report for Debra. (Apr. 15, 2015 Tr.
at 7, 10-11). Baker testified that State’s Exhibit 25 reflects that 240 nanograms
per milliliter of O-Desmethyltramadol was found in Debra’s blood. (Id. at 11).
{¶75} Dr. Laureen Marinetti (“Dr. Marinetti”), forensic toxicology director
at Redwood Toxicology Laboratory in Santa Rosa, California, testified that
Detective Justice requested that she review and interpret Debra’s toxicology
3
Baker became the chief toxicologist at the Franklin County Coroner’s Office on January 1, 2015 after
McGuire retired. (See Apr. 14, 2015 Tr., Vol. II, at 295); (Apr. 15, 2015 Tr. at 7).
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report. (Id. at 47, 53). Dr. Marinetti identified State’s Exhibit 28 as a true and
accurate copy of the report that she prepared based on her review of Debra’s
autopsy, toxicology report, prescription medication history, and Detective
Justice’s death-investigation report. (Id. at 53-53).
{¶76} Dr. Marinetti testified that, based on her review of those records, she
was able to determine Debra’s prescription levels and find the corresponding
“published ranges” expected to be found in a person’s blood for those
medications. (Id. at 54, 56). Regarding the published ranges, Dr. Marinetti
testified that the ranges are determined “where individuals are given these doses
and then their blood is drawn and a concentration is measured so that there’s some
idea of what a concentration at a particular dose should look like.” (Id. at 56-57).
However, Dr. Marinetti testified that because people absorb and metabolize drugs
differently, “it’s really hard to get a number and say that every person is going to
be exactly this concentration of drug if they take exactly this dose, which is why
there is a range.” (Id. at 57). According to Dr. Marinetti, the linear relationship
between a blood concentration and the number of pills ingested varies by person
because each person does not absorb and metabolize drugs at the same rate. (Id. at
59).
{¶77} Dr. Marinetti testified that Debra’s Sertraline concentration “was
approximately 11 times higher than the high end of the range”—.68—and the
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range is .016 to .06. (Id. at 57-58). Dr. Marinetti testified that “the highest range
would still be consistent with a therapeutic range or an expected range
concentration.” (Id. at 58). Regarding the Tramadol concentration, Dr. Marinetti
testified that Debra’s Tramadol concentration was “five times higher” than the
highest end of the expected range. (Id.). Dr. Marinetti clarified, during the court’s
examination, that Debra’s Tramadol concentration was 2.0, and the expected range
for Tramadol is .18 to .38. (Id. at 70). According to Dr. Marinetti, Debra’s blood
concentration “could have been an acute or a one-time large dose or it could have
been a large dose on top of a dose that was already there.” (Id. at 59-60).
Nevertheless, she testified that Debra’s blood concentration reflected large doses
of Tramadol and Sertraline, which is not consistent with Debra’s prescribed
dosages. (Id. at 60-61).
{¶78} Regarding the Tramadol metabolite, O-Desmethyltramadol, Dr.
Marinetti testified that its presence in Debra’s blood indicates that Debra’s liver
was processing the Tramadol. (Id. at 62). Dr. Marinetti further testified that she
reviewed the autopsy and vitreous-fluid-test reports to determine whether Debra
was experiencing any kidney or liver issues, which she determined that Debra was
not. (Id. at 61-62).
{¶79} On cross-examination, Dr. Marinetti testified that she was not
provided Debra’s medical records, was not aware that Debra was diagnosed with
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Korsakoff syndrome, and did not take that diagnosis into consideration in
preparing her report. (Id. at 63). Dr. Marinetti testified that Debra’s concentration
of Sertraline “is not even at the high end of therapeutic range” as Dr. Gerston
testified; rather, according to Dr. Marinetti, “[i]t is in far excess of therapeutic
range.” (Id. at 64). Regarding the Tramadol, Dr. Marinetti testified that “when
you look at interpreting a level of a drug, you have to look at the whole picture.
You can’t just look at a number.” (Id. at 65). Dr. Marinetti did not opine, and was
not requested to opine, in her report as to what caused Debra’s death. (Id. at 66).
{¶80} On redirect examination, Dr. Marinetti testified that Debra’s O-
Desmethyltramadol concentration was approximately two times higher than the
published ranges. (Id. at 67). Regarding the effects of large dosages of Tramadol
and Sertraline, Dr. Marinetti testified,
[Debra’s] ranges for both of these drugs I would consider toxic
to lethal, so the side effects being produced are going to be serious in
nature, both on the brain and on the heart.
They both can cause increased heart rate, can cause increased
blood pressure. They can cause seizures. They can cause a type of
like myoclonic jerking, kind of like a jerk. They can also cause
depression of consciousness.
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Both of these drugs inhibit a neurotransmitter called serotonin
and that’s good if you don’t do too much because it helps treat
depression; but if you have too much serotonin, then that’s when the
toxicity occurs. It’s sometimes referred to as serotonin syndrome.
And so with these two drugs together at elevated levels, that excess
serotonin is what’s producing the side effects.
(Id. at 67-68). She went on,
[A]lso, Tramadol can produce respiratory depression. So if you
already have someone, such as Ms. Costell, who has chronic
obstructive pulmonary disease and has trouble getting oxygen
already and you’ve got a toxic level of a drug that produces
respiratory depression, then you have even more oxygen deprivation
to the person.
Also, if you have someone that has an enlarged heart and you
have a drug that increases heart rate and increases blood pressure,
that can have a toxic effect on a heart that is already enlarged.
(Id. at 68-69).
{¶81} As its last witness, the State presented the testimony of Dr.
Applegate. (Id. at 132). Dr. Applegate testified that he ordered an autopsy of
Debra’s body after speaking with Investigator Slaughter regarding the information
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relayed to him from the Ohio Department of Medicaid. (Id. at 134-135). He
testified that Union County autopsies are performed by the Franklin County
Coroner’s Office. (Id. at 135). According to Dr. Applegate, he spoke with Costell
regarding the autopsy on September 26, 2013 and described Costell as “very
upset” during the conversation and that he “used a lot of profanity, vulgarity, kept
incriminating himself with statements that he would be better off if she were dead,
his life’s been hell for the last five years.” (Id. at 137). Dr. Applegate testified
that he reviewed the Franklin County Coroner’s Office’s autopsy and toxicology
reports and concluded that Debra’s cause of death was acute intoxication of the
combined effects of Sertraline and Tramadol. (Id. at 138). Dr. Applegate testified
that his job not only requires him to determine the cause of a person’s death, but
also to determine the manner of their death. (Id. at 138-139).
{¶82} Regarding Debra’s manner of death, he testified that “this is a very
difficult case” and that he “initially ruled it as undetermined” because, after
reviewing all of the medical records, he “could not determine who was in charge
of her medicines since the medicines were what actually caused her death.” (Id. at
139). Dr. Applegate testified that, because he ruled Debra’s manner of death as
undetermined, he “turned the case over to the Union County Sheriff’s Office
asking them to investigate and if they could provide any further information as to
who was in control of her medications.” (Id.). According to Dr. Applegate, the
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Union County Sheriff’s Office “came back with fairly convincing evidence that
Mr. Costell was in control of her medicines at all times, and that was consistent
with the nursing reports from the home agencies, that he controlled the box.” (Id.
at 139-140). Therefore, he testified that he changed his opinion on Debra’s
“manner of death from undetermined to homicide.” (Id. at 140). Dr. Applegate
identified State’s Exhibit 30 as a true and accurate copy reflecting his findings
regarding Debra’s death. (Id.). He further testified that he did not have Dr.
Marinetti’s report at the time that he generated his report. (Id.). Yet, he testified
that he reviewed Dr. Marinetti’s report and thinks that her report confirms his
findings. (Id. at 140-141).
{¶83} On cross-examination, Dr. Applegate testified that his telephone
conversation with Costell on September 26, 2013 “had nothing to do about her
death, no remorse there. It was about how this impacted him. That was the
awkwardness.” (Id. at 143). He also testified, “I have no opinion of who may
have [caused Debra’s death], but that someone did contribute to it.” (Id. at 145).
{¶84} Thereafter, the State moved to admit its exhibits,4 which were
admitted without objection, and rested. (Id. at 146). Next, Costell made a Crim.R.
29(A) motion, which the trial court denied. (Id. at 163-166). Costell did not
4
State’s Exhibits 1, 3, 7, 8, 9, 11, which was redacted, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26,
27, 28, 29, 30, 32, 34, 36, 39, 40, 43, 44, 45, 46, 47, 54, and 55 were admitted without objection. (Apr. 15,
2015 Tr. at 148-162). State’s Exhibits 26, 29, 32, 34, and 36 were previously admitted into evidence by
stipulation. (Apr. 14, 2015 Tr., Vol. II, at 264-269, 305-306); (Apr. 15, 2015 Tr. at 132, 157-158).
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provide any evidence, rested, and renewed his Crim.R. 29(A) motion, which was
denied. (Id. at 166). The case was submitted to the jury, which found Costell
guilty as to the counts in the indictment. (Apr. 16, 2015 Tr. at 68-70).
{¶85} We first review the sufficiency of the evidence supporting Costell’s
aggravated-murder conviction. State v. Velez, 3d Dist. Putnam No. 12-13-10,
2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999
WL 355190, *1 (Mar. 26, 1999).
{¶86} As an initial matter, we note that Costell offers no support for his
argument that his aggravated-murder conviction is based on insufficient evidence.
“[A] defendant has the burden of affirmatively demonstrating the error of the trial
court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶
7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27.
“Moreover, ‘[i]f an argument exists that can support this assignment of error, it is
not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27. “App.R. 12(A)(2)
provides that an appellate court ‘may disregard an assignment of error presented
for review if the party raising it fails to identify in the record the error on which
the assignment of error is based or fails to argue the assignment separately in the
brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin No.
14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,
App.R. 16(A)(7) requires that an appellant’s brief include ‘[a]n argument
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containing the contentions of the appellant with respect to each assignment of
error presented for review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record on which appellant
relies.’” Id., quoting App.R. 16(A)(7). Not only did Costell fail to include an
argument regarding how his aggravated-murder conviction is based on insufficient
evidence, but Costell failed to provide citations to the authorities, statutes, and
parts of the record that support his argument. However, in the interest of justice,
we will address the merits of Costell’s sufficiency-of-the-evidence argument. See
State v. Thomas, 3d Dist. Mercer No. 10-10-17, 2011-Ohio-4337, ¶ 25.
{¶87} Viewing the evidence in a light most favorable to the prosecution, we
conclude that Costell’s aggravated-murder conviction under R.C. 2903.01(A) is
supported by sufficient evidence. That is, a rational trier of fact could conclude
that Costell caused Debra’s death.
{¶88} Although there is no direct evidence that Costell caused Debra’s
death, the State presented circumstantial evidence that Costell caused Debra’s
death. “Circumstantial evidence and direct evidence have the same probative
value.” State v. Adams, 3d Dist. Crawford No. 3-06-24, 2007-Ohio-4932, ¶ 21,
citing Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “‘When the state
relies on circumstantial evidence to prove an essential element of the offense
charged, there is no need for such evidence to be irreconcilable with any
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reasonable theory of innocence in order to support a conviction.’” Id., quoting
Jenks at paragraph one of the syllabus. Circumstantial evidence is sufficient to
support a murder conviction. State v. Nicely, 39 Ohio St. 3d 147 (1988), paragraph
one of the syllabus.
{¶89} At trial, the State presented evidence that Costell kept Debra’s
medications, including the Sertraline and Tramadol, in a locked box in the kitchen,
and that he kept the key for the box on a shelf above the locked box’s location.
(Apr. 13, 2015 Tr., Vol. II, at 225-226, 242, 244); (Apr. 14, 2015 Tr., Vol. I, at 69-
71, 81, 138); (Apr. 14, 2015 Tr., Vol. II, at 193-194, 214-215, 244-245); (State’s
Ex. 40). The State presented evidence that Costell was the only person to
administer Debra’s medications, and that he administered Debra’s medications on
September 24, 2013—the night before Debra’s death. (Apr. 14, 2015 Tr., Vol. I,
at 73-74); (Apr. 14, 2015 Tr., Vol. II, at 176-177, 194, 246-247); (State’s Ex. 40).
The State presented evidence that Debra’s death was caused by the acute
intoxication by the combined effects of Sertraline and Tramadol, and presented
evidence that “acute” meant that her death occurred within a short period of time
after taking the higher-than-prescribed doses of Sertraline and Tramadol—that is,
she died within hours of taking the overdose of those medications. (See Apr. 15,
2015 Tr. at 28). (See also Apr. 14, 2105 Tr., Vol. II, at 301-303); (Apr. 15, 2015
Tr. at 11, 27-28, 35-38, 40-43, 45-46, 54-62, 64-65, 67-69, 70, 138-140); (State’s
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Exs. 23, 24, 25, 26, 28, 30). The State also presented evidence that Costell was
the only person in the residence with Debra when she died—that is, that Tripla last
saw Debra on September 23, 2013 and that there was no evidence that any other
person was in the residence after September 23, 2013 and before Debra’s death on
September 25, 2013. (See Apr. 14, 2015 Tr., Vol. II, at 285); (State’s Ex. 40).
Moreover, the State presented evidence that Debra could not get out of bed on her
own or walk—namely, the State presented evidence that Debra could not reach the
portion of the kitchen where her medication was kept or reach the shelf where the
key to the locked box was kept. (Apr. 13, 2015 Tr. at 288); (Apr. 14, 2015 Tr.,
Vol. I, at 64, 70, 100-101, 138); (Apr. 14, 2015 Tr., Vol. II, at 186, 214-215, 256).
In addition, Dr. Applegate, Investigator Slaughter, and Lutz testified that Costell
made incriminating statements to them. (Apr. 13, 2015 Tr., Vol. II, at 256-257);
(Apr. 14, 2015 Tr., Vol. II, at 242); (Apr. 15, 2015 Tr. at 137).
{¶90} Therefore, the jury could infer that Costell caused Debra’s death—
that is, that Costell administered the lethal doses of Sertraline and Tramadol to
Debra, which caused her death. Accord State v. Phillips, 3d Dist. Wyandot No.
16-13-09, 2014-Ohio-3670, ¶ 66 (concluding that the jury could infer Phillips’s
involvement in the crime from circumstantial evidence); Adams, 2007-Ohio-4932,
at ¶ 23 (concluding “that there was circumstantial evidence from which the jury
could make a reasonable inference of guilt”). Compare Neeley, 143 Ohio App.3d
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at 620 (concluding that Neeley’s aggravated-murder conviction was based on
sufficient evidence even though “the evidence was largely circumstantial”).
Accordingly, Costell’s aggravated-murder conviction is based on sufficient
evidence.
{¶91} Having concluded that Costell’s aggravated-murder conviction is
based on sufficient evidence, we next address Costell’s argument that his
aggravated-murder conviction is against the manifest weight of the evidence.
Velez, 2014-Ohio-1788, at ¶ 76. Costell challenges the same element of his
aggravated-murder conviction that he challenges in his sufficiency-of-the-
evidence argument—that he caused Debra’s death. As such, we will review only
whether the jury clearly lost its way in concluding that Costell caused Debra’s
death and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.
{¶92} Costell argues that his aggravated-murder conviction is against the
manifest weight of the evidence because “[t]he State never offered any proof that:
(1) any of Debra’s medications was [sic] missing; or (2) that [Costell] gave Debra
an overdose of medication.” (Emphasis sic.) (Appellant’s Brief at 31). More
specifically, Costell argues that the lack of evidence (1) that Debra “received an
overdose of medication,” (2) of “who gave what pills to Debra,” and (3) regarding
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“whether Debra hoarded any pills” is weightier than the evidence that Costell
caused Debra’s death. (Id.).
{¶93} “Even removing the lens of favorability in favor of the prosecution,
through which we examine the sufficiency of the evidence, this is not an
exceptional case where the evidence weighs heavily against the convictions.”
State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33. Regarding
Debra’s Tramadol, there was conflicting testimony from the nurses—who were
involved in Debra’s care prior to the time Debra went into the hospital in July
2013—whether they included Debra’s Tramadol in her pillbox. However,
Steigerwald and Tripla—the nurses who treated Debra after she was released from
the hospital on August 21, 2013 through the date of her death—testified that they
staged Debra’s pillbox in accordance with Debra’s 485 plan and put only Debra’s
Sertraline in the pillbox because her Tramadol prescription was an as-needed
medication, and, as an as-needed medication, it is not staged in a pillbox. (Apr.
14, 2015 Tr., Vol. II, at 274-276, 286-290, 292).
{¶94} Costell further argues that the lack of an inventory of Debra’s pills
weighs against his conviction because it “establish[es] reasonable doubt as to
whether Debra actually received an overdose of medication, who gave what pills
to Debra, and whether Debra hoarded any pills.” (Appellant’s Brief at 31). In
particular, Costell points to the inadequate chain-of-custody evidence with regard
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to Debra’s medications. Costell directs us to Deputy Inskeep’s testimony that he
took Debra’s medications, which were bagged by Costell, to the Union County
Sheriff’s Office without inventorying the medications, and Investigator
Slaughter’s testimony that he later retrieved Debra’s medications from the
“communications room of the sheriff’s department.” (Id., citing Apr. 13, 2015 Tr.,
Vol. II, at 230-231, 244). In advancing this argument, Costell appears to be
making two arguments that his conviction is against the manifest weight of the
evidence because of 1) inadequate chain-of-custody evidence and 2) a lack of
inventory of Debra’s pills.
{¶95} “A chain of custody is part of the authentication and identification
requirement for the admission of evidence under Evid.R. 901.” State v. Glover,
12th Dist. Brown No. CA2015-01-003, 2015-Ohio-3707, ¶ 30, citing State v.
Rigdon, 12th Dist. Warren No. CA2006-05-064, 2007-Ohio-2843, ¶ 14, citing
State v. Brown, 107 Ohio App. 3d 194, 200 (3d Dist.1995). The State bears the
burden of establishing a chain of custody and is required only to “‘establish that it
is reasonably certain that substitution, alteration, or tampering did not occur.’” Id.,
citing State v. Miller, 12th Dist. Preble No. CA2002-02-004, 2002-Ohio-6109, ¶
18 and quoting State v. Blevins, 36 Ohio App. 3d 147, 150 (10th Dist.1987). It is
the trier of fact’s duty to determine whether a break in the chain of custody exists
and whether any break weighs against conviction. Id. (“The trier of fact has the
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task of determining whether a break in the chain of custody exists.”), citing State
v. Blumensaadt, 11th Dist. Lake No. 2000-L-107, 2001 WL 1116458, *4 (Sept.
21, 2001), citing Columbus v. Marks, 118 Ohio App. 359 (10th Dist.1963); Glover
at ¶ 30 (“Yet, even then, any deficiencies or irregularities in the chain of custody
generally go to the weight of the evidence, not its admissibility.”), citing State v.
Steele, 12th Dist. Butler No. CA2003-11-276, 2005-Ohio-943, ¶ 114.
{¶96} Although traditional chain-of-custody evidence was not presented in
this case, the State presented evidence regarding the progress of the case to
account for the custody of Debra’s medications. See Glover at ¶ 35 (concluding
that “although there may be some breaks in the chain of custody * * *, the State
presented extensive detailed testimony from several witnesses that traced the chain
of custody”). That is, the State presented evidence that the Costell residence was
not treated as a crime scene because Debra’s death was not initially suspicious.
Debra was bedridden with numerous, severe health issues and there was no visible
evidence of physical trauma. Thus, there was no suspicion that Debra died of
anything other than natural causes. Similarly, because there was initially nothing
suspicious about Debra’s death—a scenario created by Costell—law enforcement
officers had no reason to employ traditional crime-scene preservation
procedures—that is, they had no reason to believe that there was a fair probability
that evidence of a crime would be found.
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{¶97} Indeed, the State presented the testimony of Deputy Inskeep and
Investigator Slaughter that they were required to take from the residence Debra’s
medications since she died in her home. (Apr. 13, 2015 Tr., Vol. II, at 224-225,
243). Deputy Inskeep testified that he took from the residence a bag of Debra’s
prescription medications, which Costell already “bagged up” to provide to
authorities, and that Costell voluntarily provided to him the bag with Debra’s
medications. Deputy Inskeep testified that he left the bag of Debra’s medications
in the dispatch room of the Sheriff’s Office. (Id. at 224, 231-232). Investigator
Slaughter testified that he retrieved the bag of medications from the dispatch room
of the Sheriff’s Office and took it to the Coroner’s Office. (Id. at 243-244).
Detective Justice testified that he retrieved the bag of medications from the
Coroner’s Office and provided it to Craft to inventory and review. (Apr. 15, 2015
Tr. at 94). There is no evidence that the bag of medications, or any of the
medications in the bag, were altered or tampered with. Therefore, “because
deficiencies or irregularities in the chain of custody generally go to the weight of
the evidence, not its admissibility, it was for the jury to determine the weight to be
given” to the bag of Debra’s medications. Glover at ¶ 36, citing State v. Corder,
4th Dist. Washington No. 10CA42, 2012-Ohio-1995, ¶ 25 (finding conviction for
aggravated trafficking offense was not against the manifest weight of the evidence
resulting from a challenge to the chain of custody where the state presented
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evidence that a pill presented as evidence was the same pill appellant provided to a
confidential informant that was then transported to the sheriff’s office and to BCI
for testing) and State v. Banks, 5th Dist. Fairfield No. 10-CA-36, 2011-Ohio-3801,
¶ 189 (finding conviction for trafficking offense was not against the manifest
weight of the evidence where the record did not “affirmatively demonstrate any
substitution, altercation or tampering of the evidence”).
{¶98} Second, there is no evidence that the jury lost its way in determining
the credibility and weight of the evidence as it relates to Costell’s chain-of-custody
argument regarding inventory of Debra’s medications. “It is well-established that
it is the trier of fact who makes determinations of credibility and the weight to be
given to the evidence.” Glover at ¶ 37, citing State v. Erickson, 12th Dist. Warren
No. CA2014-10-131, 2015-Ohio-2086, ¶ 42, citing DeHass, 10 Ohio St. 2d 230, at
paragraph one of the syllabus. “Therefore, as the trier of fact, the jury was free to
believe or disbelieve all, part, or none of the [evidence] presented at trial.” Id.,
citing State v. Birt, 12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 47.
As we noted above, Craft testified that he inventoried and reviewed the bag of
Debra’s medications that Costell provided to law enforcement on September 25,
2013. (See Apr. 14, 2015 Tr., Vol. I, at 47-51); (State’s Ex. 19). However, there
is no evidence in the record how many pills of each prescription should have
remained on the date of Debra’s death. Likewise, despite any inventory of
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Debra’s Tramadol, because it was prescribed as an as-needed medication, there
could have been any number of pills remaining. Similarly, as an as-needed
medication, there would have been no Tramadol in Debra’s pillbox. Moreover,
weighing in favor of Costell’s conviction is the evidence that he had access to the
lockbox where Debra’s medications were kept—that is, because, there is no
evidence of how many Tramadol or Sertraline pills should have remained at the
time of Debra’s death, Costell could have dispensed to Debra any number of
Sertraline or Tramadol pills from the lockbox. Thus, while an initial inventory of
Debra’s medications was not performed at the Costell residence on September 25,
2013 when Costell first provided to Deputy Inskeep the bag of mediations, there is
no indication that the jury lost its way in determining the credibility and weight of
the evidence as it relates to Costell’s chain-of-custody argument regarding
inventory. See Glover at ¶ 37.
{¶99} With regard to the cause of Debra’s death, Costell claims that “the
State argued throughout the trial that Debra died of an overdose of Tramadol”
despite “the death certificate [which] states that Debra died due to the combined
effects of Sertraline and Tramadol.” (Appellant’s Brief at 31). Specifically,
Costell argues that his conviction is against the manifest weight of the evidence
because “the State argued throughout trial that Debra died of an overdose of
Tramadol” and because “the State’s own alleged experts could not agree on the
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significance of the levels of Tramadol and Sertraline allegedly found in a sample
of Debra’s postmortem blood.” (Id.).
{¶100} Regarding Costell’s argument that the State argued throughout trial
that Debra died of a Tramadol overdose, Costell points us to one instance in which
the State stated in its opening argument, “The Tramadol itself - - and that’s the
drug that likely killed her - - as five times higher than the expected upper
therapeutic range.” (Id., citing Apr. 13, 2015 Tr., Vol. I, at 26-27). Rather, taken
in context, the State argued throughout its opening argument that Debra died from
an overdose of Tramadol and Sertraline. (See Apr. 13, 2015 Tr., Vol. I, at 18-20,
26-28).
{¶101} Costell further argues that the jury lost its way in concluding that he
caused Debra’s death based on conflicting testimony of McGuire and Dr.
Marinetti. Costell points us to McGuire’s testimony that Debra’s blood revealed
.68 micrograms per milliliter of Sertraline, which he categorized as “[a] high
therapeutic level” and Dr. Marinetti’s characterization of that concentration as 11
times higher than the high-end of the therapeutic range. (See Apr. 14, 2015 Tr.,
Vol. II, at 301-302); (Apr. 15, 2015 Tr. at 57-58). First, McGuire and Dr.
Marinetti did not offer a conclusion as to what caused Debra’s death. (Apr. 14,
2015 Tr., Vol. II, at 295-306); (Apr. 15, 2015 Tr. at 66); (State’s Exs. 26, 28).
Rather, Dr. Gerston and Dr. Applegate unequivocally testified that Debra’s death
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was caused by “acute intoxication by the combined effects of Sertraline and
Tramadol.” (Apr. 15, 2015 Tr. at 28, 138); (State’s Exs. 23, 30). While Dr.
Gerston hypothesized on re-cross examination that the Tramadol or the O-
Desmethyltramadol alone could have caused Debra’s death and explained the
reasoning behind his hypothesis, he did not change his ultimate opinion regarding
Debra’s cause of death. (See Apr. 15, 2015 Tr. at 45-46). Furthermore, Costell
makes no argument with respect to how McGuire’s and Dr. Marinetti’s
characterizations of the level of Sertraline discovered in Debra’s blood weighs
against his conviction. Even so, Costell’s contentions do not negate the evidence
that Debra died of an overdose of medication prescribed to her. Indeed, the
evidence that we summarized in our sufficiency-of-the-evidence analysis
supporting Costell’s conviction is much weightier than the evidence against it.
Most significant is the evidence that (1) Debra was alone with Costell the evening
before her death; (2) she could not access her medications; (3) Costell
administered Debra’s medications the evening before her death; and (4) Debra
died within hours of ingesting the overdose of the Sertraline and the Tramadol
provided to her. For these reasons, we cannot conclude that the jury clearly lost its
way in concluding that Costell caused Debra’s death and created such a manifest
miscarriage of justice that Costell’s aggravated-murder conviction must be
reversed and a new trial ordered.
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Assignment of Error No. II
The Misconduct of the Prosecutor During Opening Statement,
Voir Dire, and Closing Argument So Tainted the Trial With
Unfairness that Appellant was Denied Due Process and a Fair
Trial in Violation of the Fifth and Fourteenth Amendments to
the United States Constitution, and Article I, Section 10 of the
Ohio Constitution.
{¶102} In his second assignment of error, Costell points to a number of
instances—during opening statements, voir dire, and closing arguments—that he
argues demonstrates prosecutorial misconduct and denied him a fair trial. Costell
also argues in this assignment of error that the prosecutor engaged in misconduct
by improperly introducing evidence throughout trial of other bad acts by Costell
against Debra, which denied him a fair trial.
{¶103} “The test for prosecutorial misconduct during opening statements
and closing arguments is whether the remarks made by the prosecutor were
improper and, if so, whether they prejudicially affected a substantial right of the
accused.” State v. Siefer, 3d Dist. Hancock No. 5-09-24, 2011-Ohio-1868, ¶ 46,
citing State v. White, 82 Ohio St. 3d 16, 22 (1998). “In opening statements and
closing arguments, prosecutors are entitled to some latitude regarding what the
evidence has shown and the inferences that can be drawn.” Id., citing State v.
Ballew, 76 Ohio St. 3d 244, 255 (1996). “‘“It is improper for an attorney to
express his or her personal belief or opinion as to the credibility of a witness or as
to the guilt of the accused.”’” Id., quoting State v. Van Meter, 130 Ohio App.3d
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592, 601 (3d Dist.1998), quoting State v. Williams, 79 Ohio St. 3d 1, 12 (1997).
“However, ‘[a] prosecutor may state his opinion if it is based on the evidence
presented at trial.’” Id., quoting State v. Watson, 61 Ohio St. 3d 1, 10 (1991),
abrogated on other grounds, State v. McGuire, 80 Ohio St. 3d 390, 686 (1997).
{¶104} “‘Additionally, we review a prosecutor’s opening statement and
closing argument in its entirety.’” Id., quoting Watson at 10. “If, in the context of
the entire trial, it appears clear beyond a reasonable doubt that the jury would have
found the defendant guilty, even without the improper remarks, then the trial will
not be deemed unfair.” Id., citing State v. Tenace, 109 Ohio St. 3d 255, 2006-
Ohio-2417, ¶ 45, citing State v. Treesh, 90 Ohio St. 3d 460, 464 (2001). See also
State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 31 (“‘To establish
prejudice, a defendant must show that a reasonable probability exists that, but for
the prosecutor’s improper remarks, the result of the proceeding would have been
different. Thus, “[n]ot every intemperate remark by counsel can be a basis for
reversal.”’”), quoting State v. Porter, 4th Dist. Meigs No. 10CA15, 2012-Ohio-
1526, ¶ 20, quoting State v. Landrum, 53 Ohio St. 3d 107, 112 (1990). “Again, the
touchstone of this analysis ‘“is the fairness of the trial, not the culpability of the
prosecutor.”’” Siefer at ¶ 46, quoting State v. Myers, 97 Ohio St. 3d 335, 2002-
Ohio-6658, ¶ 140, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940
(1982).
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{¶105} First, Costell alleges that the prosecutor made seven impermissible
comments during opening statements. Costell’s trial counsel did not object to any
of the prosecutor’s statements that he alleges to be improper. As such, the alleged
improprieties are waived, absent plain error. State v. Smith, 3d Dist. Hardin No. 6-
14-14, 2015-Ohio-2977, ¶ 63, citing State v. Diar, 120 Ohio St. 3d 460, 2008-
Ohio-6266, ¶ 139 and State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-
Ohio-1542, ¶ 68. “Crim.R. 52(B) governs plain-error review in criminal cases.”
State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 55, citing State v.
Risner, 73 Ohio App. 3d 19, 24 (3d Dist.1991). “A court recognizes plain error
with the utmost caution, under exceptional circumstances, and only to prevent a
miscarriage of justice.” Smith at ¶ 63, citing Saleh at ¶ 68. “We may reverse only
when the record is clear that defendant would not have been convicted in the
absence of the improper conduct.” Id., citing State v. Williams, 79 Ohio St. 3d 1,
12 (1997). Accordingly, Costell must show both that the misconduct occurred
and, absent the prosecutor’s statements during opening statements, the outcome of
his trial would clearly be different. State v. Pickens, 141 Ohio St. 3d 462, 2014-
Ohio-5445, ¶ 109.
{¶106} Costell does not cite any Ohio criminal cases in support of his
arguments. Instead, he directs us to a Tenth Circuit Court of Appeals opinion
reversing a drug conviction as a result of the prosecutor’s failure to introduce
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evidence to support his opening-statement claims, and Ohio civil cases discussing
improper statements made by the parties during jury trials. See U.S. v. Novak, 918
F.2d 107 (10th Cir.1990); Caserta v. Allstate Ins. Co., 14 Ohio App. 3d 167 (10th
Dist.1983); Kolidakis v. Glenn McClendon Trucking Co., 7th Dist. Mahoning No.
03 MA 64, 2004-Ohio-3638. Those cases are not persuasive. Rather, after
reviewing the prosecutor’s entire opening statement, we conclude his statements
were reasonably based on the evidence presented at trial. Compare Siefer at ¶ 48,
citing State v. Ballew, 76 Ohio St. 3d 244, 255 (1996); State v. Smith, 2d Dist.
Montgomery No. 25462, 2013-Ohio-5345, ¶ 27 (concluding that the prosecutor’s
statement during opening statements regarding the defendant’s guilt “were not
improper, but were simply a summary of what [the prosecutor] expected the
evidence to establish at the end of trial”); State v. James, 7th Dist. Columbiana No.
07 CO 47, 2009-Ohio-4392, ¶ 12 (concluding that the prosecutor’s mention during
opening statements of September 11, 2001 and “the prosecutor’s labeling of the
shooting as an incident that changed the way one looks at the community as it
constitutes a new level of violence” as fair comments on the facts of the case).
{¶107} The first instance of prosecutorial misconduct during opening
statements to which Costell refers is when the prosecutor stated that Costell “was
engaging in what ‘must have been extraordinary painful sexual acts’ with Debra.”
(Appellant’s Brief at 11, quoting Apr. 13, 2015 Tr., Vol. I, at 21). Costell alleges
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that this statement is improper because the medical records contradicted that those
acts would have been painful for Debra. (See id., citing State’s Ex. 11). The
evidence presented at trial showed that Costell engaged in sexual acts with Debra.
The evidence presented at trial further showed that Debra’s legs were in a
contractured state, that she had two stage IV decubitus ulcers on her bottom, and
that she had a catheter. As such, the prosecutor was simply drawing an
inference—not expressing a personal belief or opinion about the credibility of a
witness or the accused—that those sexual acts would have caused Debra pain. See
Siefer at ¶ 50, citing Ballew at 255. Therefore, the prosecutor’s statement is not
improper.
{¶108} The second instance to which Costell points is the prosecutor’s
statement to the jury that “the nurses did not put Tramadol in Debra’s pillbox
when he knew there were nurses that would testify to just the opposite.”
(Appellant’s Brief at 12, citing April 13, 2015 Tr., Vol. I, at 25, April 14, 2015 Tr.,
Vol. I, at 80, and April 14, 2015 Tr., Vol. II, at 228). Specifically, Fox testified on
cross-examination that she filled Debra’s weekly pillbox with Tramadol and Cox
testified on cross-examination that she noted in State’s Exhibit 39, the notepad in
which she documented the medications that she staged in Debra’s weekly pillbox,
that she included Tramadol in Debra’s weekly pillbox from May 20, 2013 until
she stopped providing care for Debra in June 2013. Despite Fox’s and Cox’s
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testimony, Fox and Cox also testified that they staged Debra’s pillbox in
accordance with her 485 plan. There was uncontroverted testimony that Debra’s
485 plans reflected that her Tramadol prescription was to be administered to her
on an as-needed basis, and, as such, was not to be staged in her pillbox.
Therefore, the prosecutor’s statement was reasonably based on what he thought
the evidence would show at trial and was not improper.
{¶109} Costell further alleges three instances in which he claims that the
prosecutor improperly made statements about what the evidence presented during
trial would show. In particular, he argues that the prosecutor improperly stated
that (1) Reedy “looked at Debra’s file and said, ‘there’s really no reason this
woman should have died’”; (2) “Debra did not hoard any drugs and that she would
have had to save up a large number of drugs to overdose herself”; and (3) Costell
did not want Debra to have a catheter and “without [the catheter] her ulcers would
‘rot.’” (Appellant’s Brief at 12-13, quoting April 13, 2015 Tr., Vol. I, at 16, 21,
23, and citing April 13, 2015 Tr., Vol. II, at 284 and State’s Exs. 11, 65, 152).
Costell cannot establish that the outcome of his trial would have clearly been
different because none of these statements are improper. Indeed, the prosecutor
did not express a personal belief or opinion about the credibility of a witness or the
accused; rather, the prosecutor’s statements were “fair comment” based on the
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evidence to be presented at trial. See Siefer at ¶ 48; Pickens, 141 Ohio St. 3d 462,
2014-Ohio-5445, at ¶ 113, 115.
{¶110} Sixth, Costell contends that the prosecutor made improper legal
arguments during his opening statements when he suggested to the jury:
“[U]nder the law of Ohio, a caregiver - - and Jon Costell is defined
as a caregiver - - has to give everything that is reasonably necessary
for a person under the law. He should have given her pain medicine.
He should have given her an appropriate dosage of medication.”
(Appellant’s Brief at 12-13, quoting Apr. 13, 2015 Tr., Vol. I, at 29-30). Costell
argues that this statement took from the hands of the jury whether he failed to
provide for his functionally impaired wife. The prosecutor’s statements did not
result in plain error. See Smith, 80 Ohio St. 3d at 110 (“concluding that the
prosecutor’s “mere reference to [] legal concepts * * * did not result in prejudicial
or plain error”). R.C. 2903.16(A) provides,
No caretaker shall knowingly fail to provide a functionally impaired person
under the caretaker’s care with any treatment, care, goods, or service that is
necessary to maintain the health or safety of the functionally impaired
person when this failure results in physical harm or serious physical harm
to the functionally impaired person.
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Costell does not dispute that he was Debra’s caretaker. Moreover, the prosecutor
is entitled “wide latitude” in setting up for the jury what the evidence will show,
and the State presented testimony that Costell did not administer Debra’s pain
medication to her because he did not like the side effects. Furthermore, the jury
heard the trial court’s instructions regarding the law at issue in the case. (See Apr.
16, 2015 Tr. at 50-65). Therefore, even if the prosecutor’s statement is improper,
there is no evidence that the result of Costell’s trial would have clearly been
different.
{¶111} Finally, Costell argues that the prosecutor “recounted to the jury
inadmissible hearsay during [his] opening statement.” (Appellant’s Brief at 13).
Specifically, Costell points to the prosecutor’s comments that Debra told her
nurses “no” when they asked if she wanted pain medication “because of
[Costell],” and the prosecutor’s statements regarding Reedy’s review of Debra’s
medical records after her death, which caused Reedy to request law enforcement
to investigate Debra’s death. (Id., citing Apr. 13, 2015 Tr., Vol. I, at 10, 11, 16,
21). The jury was instructed that the prosecutor’s opening statements are not
evidence. (Apr. 16, 2015 Tr. at 48). See State v. Risner, 3d Dist. Logan No. 8-
12-02, 2012-Ohio-5954, ¶ 28; State v. Tapke, 1st Dist. Hamilton No. C-060494,
2007-Ohio-5124, ¶ 78. “We must presume that the jury followed the trial court’s
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instructions when deliberating in this matter.” Risner at ¶ 28, citing State v.
Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 51.
{¶112} Furthermore, by telling the jury that Debra would decline pain
medication when her nurses would ask her if she wanted pain medication because
Costell did not want her to have pain medication, the prosecutor was illustrating
for the jury what he expected the evidence he intended to introduce would show.
“In general, a statement made by counsel of the evidence that he expects to
introduce is not reversible error unless it appears that counsel made the statement
in bad faith, even if it turned out that such evidence was incompetent.” Id. at ¶ 27,
citing State v. Neal, 10th Dist. Franklin No. 95APA05-542, 1996 WL 28765, *12,
quoting State v. Lipker, 16 Ohio App. 2d 21 (4th Dist.1968). Indeed, the
prosecutor introduced the testimony of Debra’s nurses that Costell did not want
Debra to have pain medication. The prosecutor also introduced the testimony of
Debra’s nurses that Debra would decline pain medication if Costell was present
when they were providing nursing services for Debra.
{¶113} In addition, Reedy’s testimony was not inadmissible hearsay
because it was not introduced to prove the truth of the matter asserted; rather, it
was introduced to show why she did what she did as part of her investigation.
(See Apr. 13, 2015 Tr., Vol. II, at 281-282); Tapke at ¶ 79. Therefore, taken in the
context of the entire trial, Costell did not demonstrate that the prosecutor’s
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statements are improper or that the result of his trial would have clearly been
different absent those statements.
{¶114} Second, Costell alleges three instances of prosecutorial misconduct
during voir dire. Costell did not object to any of the comments he alleges to be
improper. Therefore, we review for plain error.
{¶115} Costell first argues that the prosecutor elicited improper medical
testimony from prospective jurors in front of the entire venire. (Appellant’s Brief
at 16-17, citing Apr. 13, 2015 Tr., Vol. I, at 105-108, 116-117). The prosecutor
was attempting to identify and remove prospective jurors who would rely on their
experience caring for decubitus ulcers and experience with Tramadol or
Sertraline—that is, the prosecutor was inquiring into the perspective jurors’
attitudes and potential biases, which is not error. See State v. Montgomery, 5th
Dist. Fairfield No. 14-CA-49, 2015-Ohio-3066, ¶ 27. See also State v. Nields, 93
Ohio St. 3d 6, 39 (2001) (noting that a prosecutor is permitted to argue facts in
evidence during voir dire), citing State v. Lott, 51 Ohio St. 3d 160, 165 (1990).
{¶116} Costell also argues that the prosecutor improperly “told the
potential jurors that it was okay for them to have formed opinions ‘whether it’s
how sad this case is or how tragic it is, or how senseless it is.’” (Appellant’s Brief
at 17, quoting Apr. 13, 2015 Tr., Vol. I, at 73). Costell’s argument is erroneous.
Read in context, the prosecutor immediately followed that statement with the
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question, “but any of those opinions that would affect your ability today as a fair
and impartial juror?” (Apr. 13, 2015 Tr., Vol. I, at 73). None of the prospective
jurors indicated that they had formed an opinion about the case that would affect
their impartiality. (Id.).
{¶117} Thirdly, Costell argues that the prosecutor improperly
inflame[d] the passions of the potential jurors and taint[ed] the entire
venire by inquiring if they believed being a caretaker would be
stressful:
“Would you also agree that - - caring for somebody day in and
day out, do you believe that would give you an excuse to abuse or
neglect or even cause the death of that person? Anybody agree with
that?
How many of you have children? A lot of you.
Grandchildren? A lot of you as well. Caring for - - children can be
stressful, would you agree? Would you agree that just because it
may be stressful, none of you think it’s okay to abuse or neglect or
murder a child; is that correct? I didn’t think so. Okay.”
(Appellant’s Brief at 17-18, quoting Apr. 13, 2015 Tr., Vol. I, at 103). Clearly, the
prosecutor was inquiring into the potential jurors’ attitudes and biases, which, as
we noted above, is not error. Montgomery at ¶ 27.
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{¶118} Finally, Costell alleges three instances of prosecutorial misconduct
during closing arguments that he claims denied him a fair trial. Because Costell
did not object to any of the prosecutor’s statements during closing arguments, we
review his arguments for plain error. Reviewing the prosecutor’s closing
argument in its entirety, none of the statements of which Costell complains
amount to plain error. As we noted above, the prosecutor has some latitude during
closing arguments to summarize for the jury what the evidence has shown and
what inferences can be drawn from that evidence. Siefer, 2011-Ohio-2868, at ¶
46, citing White, 82 Ohio St. 3d at 22. Indeed, the three instances to which Costell
points us fall within that latitude.
{¶119} Costell points us to the prosecutor’s statement,
“Dr. Marinetti told you what would happen after she took this level
of drugs. Spasms and twitching, her heart would speed up, she - -
heart rate would go up, her blood pressure would go up. She’d have
respiratory depression. And during that period of time, Jon Costell
was there after he had given her the drugs. This wasn’t a quick
death and he did nothing.”
(Appellant’s Brief at 19, quoting Apr. 15, 2015 Tr. at 21). Costell argues that the
prosecutor’s statement was improper because
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Dr. Marinetti never testified as to how Debra died or how long it
would have taken her to die, presuming the reported levels of the
medications were accurate. What Dr. Marinetti did testify to were
possible side effects, which were anything from an increased heart
rate to respiratory depression.
(Id., citing Apr. 15, 2015 Tr. at 68). Costell’s argument is meritless because the
prosecutor was summarizing Dr. Marinetti’s testimony regarding the potential side
effects from taking higher-than-prescribed doses of Sertraline and Tramadol and
was inferring how Debra would have died based on that testimony. Furthermore,
while Dr. Marinetti did not testify to how Debra died or how long it would have
taken her to die, Dr. Gerston and Burke testified to the side effects from overdoses
of Sertraline and Tramadol, and Dr. Gerston and Dr. Applegate testified as to
Debra’s cause of death. Thus, the prosecutor’s statements were within the realm
of permissible summary and extrapolation.
{¶120} Second, Costell argues that the prosecutor improperly told the jury
that “Debra ‘would have needed a good number of drugs’ when [the prosecutor]
knew there had been no testimony to support [that] argument.” (Appellant’s Brief
at 19, April 16, 2015 Tr. at 15-16). In particular, Costell argues that it was
improper for the prosecutor to tell the jury,
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“You can infer that you’d have to take 11 pills to get to 11 times
higher than the upper dose, upper range. The Tramadol, three pills a
day taken in accordance with it would have a particular range. It
was five times higher. Three pills times five is another 15 pills.”
(Id., quoting April 16, 2015 Tr. at 15-16). Similar to that argument, Costell further
alleges that the prosecutor improperly argued in his closing argument, “Now if
you are taking care of somebody and you’re supposed to give them one pill and
there’s 11 there. If you’re supposed to give them 3 pills a day and there’s 15
there, you’re going to know the difference.” (Appellant’s Brief at 20, quoting
Apr. 16, 2015 Tr. at 41). Again, Costell’s arguments are meritless because the
prosecutor’s statements are based on the evidence presented at trial and are
permissible inferences based on that evidence. See Siefer, 2011-Ohio-1868, at ¶
46.
{¶121} Costell further argues in this assignment of error that the prosecutor
engaged in misconduct when he introduced evidence throughout trial of “other bad
acts” by Costell against Debra which deprived him of a fair trial—namely that the
prosecutor improperly told the jury during opening statements that the Sheriff’s
Office “had been called to the house ‘just six weeks’ before Debra died with the
implication being that [Costell] harmed Debra in some way.” (Appellant’s Brief
at 22-23, quoting Apr. 13, 2015 Tr., Vol. I, at 6). Also, Costell argues that it was
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improper to elicit testimony from (1) “the 911 operator about other runs to the
house”; (2) “Paul Slaughter about [Costell’s] other legal issues”; and (3) Debra’s
nurses and Debra’s caseworker “about other instances of alleged abuse.”
(Appellant’s Brief at 23, citing Apr. 13, 2015 Tr., Vol. II, at 200, 239, Apr. 14,
2015 Tr., Vol. II, at 201-203, and Apr. 15, 2015 Tr. at 118-119).
{¶122} “Generally, evidence which tends to show that the accused has
committed other crimes or acts independent of the crime for which he stands trial
is not admissible to prove a defendant’s character or that the defendant acted in
conformity therewith.” State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56,
2005-Ohio-6779, ¶ 24, citing State v. Elliot, 91 Ohio App. 3d 763, 770 (3d
Dist.1993) and Evid.R. 404. “Evidence of other crimes, wrongs, or acts” “may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
State v. Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, ¶ 16, quoting Evid.R.
404(B). Typically, “[a] trial court is given broad discretion in admitting and
excluding evidence, including ‘other bad acts evidence.” State v. Williams, 7th
Dist. Jefferson No. 11 JE 7, 2013-Ohio-2314, ¶ 7, citing State v. Maurer, 15 Ohio
St.3d 239, 265 (1984). However, because Costell failed to object to the
introduction of this evidence, we review for plain error, which Costell concedes.
(See Appellant’s Brief at 23).
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{¶123} The evidence of which Costell complains was admissible for a
purpose other than showing that he acted in conformity with the character or
reputation suggested by that evidence. See State v. Dotson, 2d Dist. Clark No.
2003 CA 34, 2004-Ohio-6875, ¶ 16. Rather, the testimony of which he complains
is relevant to proving the charges against Costell. See Williams, 2013-Ohio-2314,
at ¶ 7. That is, Costell was charged with aggravated murder, failing to provide for
a functionally impaired person, domestic violence, and involuntary manslaughter.
Taken in context, the testimony was introduced to address elements of the charges
facing Costell. Therefore, even if we assume the prosecutor’s statements are
improper, Costell did not demonstrate that the result of his trial would have clearly
been different absent those statements.
{¶124} Costell alleges several instances in this case that he argues were
error on the part of the prosecutor. However, “Error is not necessarily misconduct.
Indeed, most error is not.” State v. Reynolds, 2d Dist. Montgomery No. 19780,
2003-Ohio-7245, ¶ 46. “Prosecutorial misconduct, like ineffective assistance of
counsel, necessarily involves an attorney’s failure to conform to clear professional
standards.” Id. “‘The touchstone of the analysis “is the fairness of the trial, not
the culpability of the prosecutor.”’” State v. Johnson, 3d Dist. Allen No. 1-13-45,
2014-Ohio-4750, ¶ 88, quoting State v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, ¶
231, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940 (1982). Thus,
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even assuming that there was error, Costell presented no evidence, and we see
none, that the result of the trial would have been different. See Pickens, 2014-
Ohio-5445, at ¶ 128. Indeed, Costell received a fair trial.
{¶125} Costell’s second assignment of error is overruled.
Assignment of Error No. I
The Trial Court Committed Structural Error and Violated the
Defendant’s Due Process Rights to a Fair Trial When it
Instructed the Parties to Give an Opening Statement Prior to
Voir Dire, and Did So Without Any Admonishment to the
Venire that Opening Statements Are Not Evidence. The Trial
Court Committed Further Structural Error When it Did Not
Dismiss the Venire After It Was Tainted by Comments From
One of the Prospective Jurors, By Prosecutorial Misconduct,
and When it Did Not Control the State’s Improper Voir Dire.
{¶126} In his first assignment of error, Costell argues that the trial court
committed structural error by instructing the parties to give opening statements
prior to voir dire without admonishment to the venire that opening statements are
not evidence. Costell further argues in this assignment of error that the trial court
committed structural error when the venire was tainted by comments from one of
the perspective jurors. Thirdly, Costell argues in this assignment of error that the
trial court erred by failing “to control numerous instances of prosecutorial
misconduct that occurred during voir dire.” (Appellant’s Brief at 9).
{¶127} “A structural error is a constitutional defect that defies analysis by
harmless error standards, because it affects the framework within which the trial
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proceeds, rather than simply being an error in the trial process itself.” State v.
Fields, 12th Dist. Butler No. CA2005-03-067, 2005-Ohio-6270, ¶ 27, citing State
v. Perry, 101 Ohio St. 3d 118, 2004-Ohio-297, ¶ 17.
Structural error affects the substantial rights of a criminal defendant,
even absent a specific showing that the outcome of the trial would
have been different, and requires automatic reversal. Because a
defendant is relieved of his burden to show prejudice, the finding of
structural error is rare and limited to exceptional cases.
State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, ¶ 53 (Moyer, J., concurring
in judgment only), citing Perry at ¶ 18, citing Johnson v. United States, 520 U.S.
461, 468, 117 S. Ct. 1544 (1997). The “‘limited class of cases’” recognizing
structural error are cases “in which the errors permeate the ‘entire conduct of the
trial from beginning to end,’ so that the trial court cannot ‘“reliably serve its
function as a vehicle for determination of guilt or innocence.”’” Fields at ¶ 27,
quoting Arizona v. Fulminante, 449 U.S. 279, 309-310, 111 S. Ct. 1246 (1991),
quoting Rose v. Clark, 478 U.S. 570, 577-578, 106 S. Ct. 3101 (1986). Those
“limited number of cases in which structural errors have been recognized include
“a total deprivation of the right to counsel; lack of an impartial trial judge;
unlawful exclusion of grand jurors of the defendant’s race; the right to self-
representation at trial; the right to a public trial; erroneous reasonable doubt
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instruction to the jury.” Id., quoting Johnson v. United States, 520 U.S. 461, 468-
469, 117 S. Ct. 1544 (1997). To begin with, we must examine whether the errors
that Costell alleges to be structural errors are errors.
{¶128} Trial courts have inherent discretion in controlling the order of trial
proceedings. See State v. Malloy, 2d Dist. Clark No. 11CA0021, 2012-Ohio-2664,
¶ 23. Indeed, R.C. 2945.03 provides:
The judge of the trial court shall control all proceedings during a
criminal trial, and shall limit the introduction of evidence and the
argument of counsel to relevant and material matters with a view to
expeditious and effective ascertainment of the truth regarding the
matters in issue.
“Under R.C. 2945.03, the trial court reserves the right and responsibility to control
the proceedings of a criminal trial.” Blumensaadt, 2001 WL 1116458, at *10,
citing State v. Cornwell, 86 Ohio St. 3d 560 (1999). We review the trial court’s
decision to instruct the parties to present opening statements prior to voir dire for
an abuse of discretion. See State v. Walker, 2d Dist. Clark No. 08-CA-32, 2009-
Ohio-1936, ¶ 25. An abuse of discretion implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St. 2d 151,
157 (1980). However, because Costell did not object to the trial court’s
instruction, we review for plain error. See Perry at ¶ 23 (concluding that the
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failure to raise a structural error to the trial court waives all but plain error on
review); Walker at ¶ 24.
{¶129} The trial court’s instruction to the parties to present opening
statements before voir dire did not amount to plain error. The trial court explained
to the prospective jurors why it altered the customary sequence of voir dire
questioning and opening statements: “The opening statements will be given so
that you as jurors will know what the case is about and then you’ll be able to
answer questions as to whether or not you can be a fair and impartial juror in the
case.” (Apr. 13, 2015 Tr., Vol. I, at 6). See also Walker at ¶ 22-23. We cannot
say that the record clearly reflects that Costell would have been acquitted had the
trial court not instructed the parties to provide opening statements prior to voir
dire. Compare State v. Dale, 2d Dist. Montgomery No. 2012 CA 20, 2013-Ohio-
2229, ¶ 38, citing Walker at ¶ 24. See also U.S. v. Goode, 814 F.2d 1353, 1355
(9th Cir.1987) (concluding that the trial court did not abuse its discretion by
ordering the parties to present opening statements before voir dire); U.S. v. Keese,
992 F.2d 1001, 1002 (9th Cir.1993) (observing that the trial court “invited counsel
to make opening statements prior to voir dire, and the government did so”);
Larsen, Navigating the Federal Trial, Section 5:41 (2015) (noting that opening
statements are sometimes made before voir dire because “[t]he argument in favor
of this practice is that it allows the panelists to know the facts and understand the
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issues before answering questions concerning their qualifications to serve on the
jury”). Because it was not error for the trial court to instruct the parties to give
opening statements prior to voir dire, there can be no structural error.
{¶130} Costell further argues under this assignment of error that a second
structural error occurred “when a prospective juror tainted the entire venire with
her emotional explanation of why she could not sit through [Costell’s] trial.”
(Appellant’s Brief at 7). Specifically, Costell argues that the prospective juror’s
comments rose to the level of structural error because the “comments
demonstrate[d] that she believed the State’s opening statement was evidence, and,
moreover, that it was true.” (Id.). In support of his argument, Costell cites Mach
v. Stewart. 137 F.3d 630 (9th Cir.1997). In Mach, the Ninth Circuit Court of
Appeals concluded that there was a structural error, which resulted from “the
jury’s exposure during voir dire to an intrinsically prejudicial statement made four
times by a children’s social worker, [that] occurred before the trial had begun,
result[ing] in the swearing in of a tainted jury, and severely infect[ing] the process
from the very beginning.” Id. at 633.
{¶131} In particular, Costell points us to the prospective juror’s statement:
[Prospective Juror]: I just buried my dad in December and he was also
bedridden back and forth for many years. There
was no way that he would have been kept in the
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condition that [the victim] was kept. He was taken
care of. My mom was right there by him and so
were we no matter what happened.
And at no point was he ever treated - - no
matter how least [sic] there was an amount of
people around him in a wet condition, bed sores
that become that bad - - I’m sorry. I just - -
[Trial Court]: You understand you haven’t heard any of the
evidence yet. You’ve just heard an opening
statement as to what the State thinks. You feel like
you couldn’t sit and listen to the evidence and - -
[Prospective Juror]: I can’t sit through this.
(Apr. 13, 2015 Tr., Vol. I, at 42-43). The prospective juror was then excused.
{¶132} We review Costell’s argument for plain error since he failed to
object to the juror’s comments or move for a mistrial as a result of those
comments. See State v. Smith, 9th Dist. Summit No. 22550, 2006-Ohio-158, ¶ 5.
The potential juror’s comments do not amount to plain error. There is nothing in
the record that indicates that the potential juror’s statements biased the other
veniremen. State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, ¶ 98; State v.
Sanders, 92 Ohio St. 3d 245, 248 (2001). In Sanders, the Supreme Court of Ohio
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declined to presume that the other veniremen were biased by hearing the remarks
at issue because “[t]he usual way to find out whether a venireman harbors bias is
voir dire, and Sanders could have asked that the trial court either question the
other veniremen on this point, or permit the parties to do so[,]” but he “made no
such request.” Sanders at 248. Similar to the facts in Sanders, Costell failed to
ask the trial court to either question the other veniremen to find out whether they
harbored bias or permit the parties to do so. As such, we decline to presume that
the other veniremen were biased. Yarbrough at ¶ 98, citing Sanders at 248; State
v. Brooks, 2d Dist. Montgomery No. 18502, 2001 WL 1295285, *1 (Oct. 27,
2001). Furthermore, it was not plain error for the trial court to fail to provide
either a cautionary instruction to neutralize the effect of the venireman’s
statements or question the other veniremen to determine whether the comments
affected their impartiality. Yarbrough at ¶ 98. Nevertheless, the trial court
provided at least a minimal instruction to the prospective juror that no evidence
had been presented.
{¶133} Moreover, the Ninth Circuit Court of Appeals case on which Costell
relies in support of his argument is distinguishable from the facts of this case, and
was distinguished by the Supreme Court of Ohio in Sanders. See id. “Sanders
makes clear that bias should only be presumed when a potential juror makes
repeated, definite statements of opinion concerning a matter germane to trial.”
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Smith, 2006-Ohio-158, at ¶ 7, citing Sanders at 248. Indeed, unlike the potential
juror in Mach who made “repeated, definite statements of opinion concerning a
matter germane to the trial—a matter in which she also appeared to be an expert,”
the venireman in this case expressed only her opinion, did not speak at length, and
was immediately excused. Id., citing State v. Doerr, 193 Ariz. 56, 62, 969 P.2d
1168 (1998) and Lucero v. Kerby, 133 F.3d 1299, 1308-1309 (10th Cir.1998). See
also Smith at ¶ 7; Brooks at *1. Moreover, the venireman expressed an opinion
about herself and was immediately excused for cause. Compare Brooks at *1.
Therefore, Costell cannot demonstrate that the outcome of his trial would clearly
have been different. As such, since there is no error stemming from the potential
venireman, there is no structural error.
{¶134} Third, Costell argues in this assignment of error that the trial court
“committed structural error when it failed to control numerous instances of
prosecutorial misconduct that occurred during voir dire.” (Appellant’s Brief at 9).
As we noted in our discussion in Costell’s second assignment of error, Costell did
not object to any of the instances he claims to be prosecutorial misconduct during
voir dire, let alone raise to the trial court the issue of structural error; therefore, we
review Costell’s argument for plain error. Based on our conclusion in Costell’s
second assignment of error, there were no instances of prosecutorial misconduct
for the trial court to control. As such, there is no plain error.
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{¶135} Costell’s first assignment of error is overruled.
Assignment of Error No. V
It Was Plain Error to Admit Debra’s Death Certificate Because
It States Her Caregiver Caused Her Death.
Assignment of Error No. VII
The Trial Court Erred When it Allowed Kim Reedy to Testify to
Inadmissible and Highly Prejudicial Hearsay Evidence Over
Objection of Defense Counsel Thereby Denying Appellant a Fair
Trial and Due Process of Law as Guaranteed By the Fourteenth
Amendment to the United States Constitution and Deprived
Appellant of his Sixth Amendment Rights.
Assignment of Error No. IX
Trial Court Erred When it Admitted Irrelevant, Gruesome,
Repetitive and Substantially Prejudicial Photographs of the
Deceased in Violation of [Costell’s] Constitutional Rights.
{¶136} In his fifth, seventh, and ninth assignments of error, Costell raises
evidentiary issues. In his fifth assignment of error, Costell argues that the trial
court erred in admitting Debra’s death certificate without redacting it. In his
seventh assignment of error, Costell argues that the trial court erred in admitting
hearsay testimony. In his ninth assignment of error, Costell argues that the trial
court erred in admitting irrelevant photographs of Debra’s decubitus ulcers.
{¶137} Evidence is relevant when it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401.
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“Under Evid.R. 403(A), ‘[a]lthough relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.’” Velez, 2014-Ohio-1788, at ¶
122, quoting State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-33, 2005-
Ohio-3761, ¶ 71. “‘Unfair prejudice is that quality of evidence which might result
in an improper basis for a jury decision.’” Id., quoting State v. Calhoun, 11th Dist.
Ashtabula No. 2010-A-0057, 2012-Ohio-1128, ¶ 82. “‘[D]espite the mandatory
terms of Evid.R. 403(A), when considering evidence under that rule, the trial court
is vested with broad discretion and an appellate court should not interfere absent a
clear abuse of that discretion.’” State v. Nevins, 171 Ohio App. 3d 97, 2007-Ohio-
1511, ¶ 49 (2d Dist.), quoting State v. Harding, 2d Dist. Montgomery No. 20801,
2006-Ohio-481, ¶ 21.
{¶138} Generally, the admission or exclusion of evidence lies within the
trial court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice. State v. Conway, 109 Ohio St. 3d 412, 2006-
Ohio-2815, ¶ 62, citing State v. Issa, 93 Ohio St. 3d 49, 64 (2001). As we noted
above, “an abuse of discretion implies that the court’s attitude was unreasonable,
arbitrary, or unconscionable.” Adams, 62 Ohio St. 2d at 157. However “if the
party wishing to exclude evidence fails to contemporaneously object at trial when
the evidence is presented, that party waives for appeal all but plain error.” Bagley,
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2014-Ohio-1787, at ¶ 53-54, citing State v. Hancock, 108 Ohio St. 3d 57,
2006-Ohio-160, ¶ 59-60, State v. Barrett, 4th Dist. Scioto No. 03CA2889,
2004-Ohio-2064, ¶ 20, and State v. Lenoir, 2d Dist. Montgomery No. 22239,
2008-Ohio-1984, ¶ 19. As we stated above, for us to find plain error, an appellant
“must demonstrate that the outcome of his trial would clearly have been different
but for the trial court’s errors.” Id. at ¶ 55.
{¶139} In his fifth assignment of error, Costell argues that it was plain error
to admit Debra’s death certificate because it impermissibly states that “Debra died
because her caregiver, who the State told the jury was [Costell], gave her a lethal
dose of her prescription medication.” (Appellant’s Brief at 30, citing State’s Ex.
30). In particular, Costell argues that it was plain error to admit the death
certificate without redacting that portion of the death certificate.
{¶140} The Revised Code authorizes a coroner to inquire “‘how the
deceased came to his death, whether by violence to self or from other persons, by
whom, whether as principals or accessories before or after the fact, and all
circumstances related thereto.’” (Emphasis added.) State v. Harrison, 1st Dist.
Hamilton No. C-920422, 1993 WL 293971, *2 (May 12, 1993), quoting R.C.
313.17. Once the coroner makes that determination, “R.C. 313.19 makes the
coroner’s verdict and death certificate the ‘legally accepted manner and mode in
which such death occurred, and the legally accepted cause of death[.]’” State v.
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Cousin, 5 Ohio App. 3d 32 (3d Dist.1982), paragraph one of the syllabus,
abrogated on other grounds, State ex rel. Blair v. Balraj, 69 Ohio St. 3d 310
(1994). However, a coroner’s verdict and death certificate are the legally accepted
manner, mode, and cause of a person’s death “only as to the physiological cause of
death and the immediate mechanical, chemical or biological means by which death
was caused, but does not extend to the determination of the criminal responsibility
of any human agency involved in the causal chain.” (Emphasis added.) Id.
Indeed, Dr. Applegate, who was subject to cross-examination by Costell, testified
that he concluded Debra died as the result of a homicide but further testified that
he did not have an opinion as to who caused Debra’s death. (Apr. 15, 2015 Tr. at
145). See State v. Stewart, 11th Dist. Ashtabula No. 2001-A-0011, 2002-Ohio-
3842, ¶ 46 (the coroner’s testimony regarding the decedent’s cause of death was
not prejudicial because it concluded only that her “death was caused by another
person, as opposed to suicide and natural causes, and no criminal responsibility
was assigned to appellant”); State v. Cohen, 11th Dist. Lake No. 12-011, 1988 WL
41545, *15 (Apr. 29, 1988) (concluding that the coroner’s testimony concluding
that the victim’s death was the result of violent means was admissible because
there was there was no testimony implicating the defendant in the victim’s
death”), citing State v. Woodards, 6 Ohio St. 2d 14, 24 (1966); State v. Thomas,
11th Dist. Trumbull No. 3342, 1985 WL 7783, *2 (concluding that the trial court
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erred in admitting the coroner’s verdict because the defendant objected to its
admission and the defendant did not have the opportunity to cross-examine the
coroner). Thus, it was not plain error for the trial court to admit the death
certificate or plain error for the trial court to not redact the death certificate. See
Woodards at 24 (concluding that the death certificate, containing conclusions that
the victim died as a result of being beaten by an unknown assailant, was
admissible because it did not name the assailant).
{¶141} In his seventh assignment of error, Costell argues that the trial court
erred by permitting inadmissible and prejudicial hearsay testimony. In particular,
Costell argues that the trial court erred by permitting Reedy to testify “to what
someone else had written or noted in a file” in the CareStar records. (Appellant’s
Brief at 32-33). While Costell objected to Reedy’s testimony as being improper
hearsay, the trial court did not abuse its discretion by permitting Reedy’s
testimony because it was not hearsay and was relevant for the jury. First, Reedy’s
testimony regarding her review of Debra’s records as part of her death review for
the Ohio Department of Medicaid was offered to explain her actions in pursuing
her investigation and not for the truth of the matter asserted. See Davis, 116 Ohio
St.3d 404, 2008-Ohio-2, at ¶ 117 (concluding that a law enforcement officer’s
testimony that Davis became a suspect as a result of “information from an out-of-
state law enforcement agency” was not hearsay because it was offered to explain
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the law enforcement officer’s actions in opening the investigation and not for the
truth of the matter asserted). Because Debra’s death was caused by the overdose
of her medication—not visible signs of trauma—Reedy’s testimony regarding the
investigation of Debra’s death was relevant for the jury to understand how medical
professionals concluded that she died as the result of a homicide. See id.
(concluding that the law enforcement officer’s “reasons for opening the
investigation were relevant and helped provide the foundation for his subsequent
testimony).
{¶142} In his ninth assignment of error, Costell alleges that the trial court
erred by admitting two autopsy photographs depicting Debra’s decubitus ulcers.
In particular, Costell argues that these photographs were irrelevant to Debra’s
cause of death. “‘Under Evid.R. 403 * * *, the admission of photographs is left to
the sound discretion of the trial court.’” State v. Ream, 3d Dist. Allen No. 1-12-
39, 2013-Ohio-4319, ¶ 101, quoting Maurer, 15 Ohio St. 3d at 264. “A trial court
may reject a photograph, otherwise admissible, due to its inflammatory nature, if
the prejudicial effect outweighs its probative value.” Id., citing Evid.R. 403 and
Maurer at 264-65. “However, ‘the mere fact that [a photograph] is gruesome or
horrendous is not sufficient to render it inadmissible if the trial court, in the
exercise of its discretion, feels that it would prove useful to the jury.’” Id., quoting
Woodards, 6 Ohio St.2d at 25. “Autopsy photographs are generally admissible to
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help the jury appreciate the nature of the crimes, to illustrate the coroner’s or other
witnesses’ testimony by portraying the wounds, to help prove the defendant’s
intent, and to show the lack of accident or mistake.” State v. Shakoor, 7th Dist.
Mahoning No. 01CA121, 2003-Ohio-5140, ¶ 73, citing State v. Gross, 97 Ohio
St.3d 121, 2002-Ohio-5524, ¶ 52.
{¶143} While Costell initially objected to the photographs being introduced
during trial, he did not object to their admission into evidence. (Apr. 15, 2015 Tr.
at 18-19, 155). Generally, the failure to object to the admission of evidence
waives all but plain error on review. State v. Coley, 93 Ohio St. 3d 253, 265
(2001). However, even under an abuse-of-discretion standard of review, Costell
fails to show that the prejudicial impact of either of the two autopsy photos of
which he complains outweighs their individual probative value. Indeed, there are
only two photographs and those photographs are not particularly gruesome or
inflammatory. See State v. Mason, 82 Ohio St. 3d 144, 158-59 (1998). Rather,
those photographs are probative to whether Costell is guilty of domestic violence
or failing to provide for a functionally impaired person—that is, whether Costell
recklessly caused physical harm to Debra or whether he knowingly failed to
provide a functionally impaired person with treatment, care, goods, or a service
that is necessary to maintain that person’s health or safety and that failure resulted
in physical harm or serious physical harm to that person. See id. at 159; R.C.
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2919.25(B) and 2903.16(A). Likewise, those photos are relevant because they
illustrate the testimony of the coroner and the healthcare professionals. Mason at
159, citing Maurer at paragraph seven of the syllabus. Therefore, it was not plain
error or an abuse of discretion to admit the photographs.
{¶144} Costell’s fifth, seventh, and ninth assignments of error are
overruled.
Assignment of Error No. III
Defense Counsel Were Ineffective For Failure to Conduct a
Proper Voir Dire Which Denied the Appellant the Right to a
Fair Trial and the Right to Due Process of Law Under the Ohio
and United States Constitutions. Counsel’s Questions Were
General and Not Specific and Counsel Did Not Address Any
Potential Bias.
Assignment of Error No. IV
Appellant Was Deprived of the Effective Assistance of Counsel
Due to Numerous Errors and Omissions Which Prejudiced
Appellant’s Trial.
{¶145} In his third and fourth assignments of error, Costell argues that his
trial counsel was ineffective. In his third assignment of error, Costell alleges that
his trial counsel conducted an ineffective voir dire. In his fourth assignment of
error, Costell submits a laundry list of 18 instances that he alleges demonstrates
that his trial counsel was ineffective during trial.
{¶146} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
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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 representation and must show that counsel’s actions
were not trial strategies prompted by reasonable professional judgment.
Strickland at 687. 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. Carter, 72
Ohio St. 3d 545, 558 (1995). 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, 141-42 (1989), quoting State v. Lytle, 48 Ohio St. 2d
391, 396 (1976), vacated in part on other grounds, 438 U.S. 910, 98 S. Ct. 3135
(1978).
{¶147} “Prejudice results when ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48,
quoting Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.’” Id., quoting
Bradley at 142 and citing Strickland at 694.
{¶148} First, in his third assignment of error, Costell argues that his
counsel conducted an ineffective voir dire. “When evaluating claims of
ineffective assistance at voir dire, [the Supreme Court of Ohio has] ‘recognized
that counsel is in the best position to determine whether any potential juror should
be questioned and to what extent.’” State v. Thompson, 141 Ohio St. 3d 254, 2014-
Ohio-4751, ¶ 225, quoting State v. Murphy, 91 Ohio St. 3d 516, 539 (2001). “‘Few
decisions at trial are as subjective or prone to individual attorney strategy as juror
voir dire, where decisions are often made on the basis of intangible factors.’”
State v. Mundt, 115 Ohio St. 3d 22, 2007-Ohio-4836, ¶ 64, quoting Miller v.
Francis, 269 F.3d 609, 620 (6th Cir.2001). The Supreme Court of Ohio has
“consistently declined to ‘second-guess trial strategy decisions’ or impose
‘hindsight views about how current counsel might have voir dired the jury
differently.’” Id. at ¶ 63, quoting Mason, 82 Ohio St. 3d at 157.
{¶149} Costell raises five instances where prospective jurors indicated that
they knew or were related to law enforcement officers and argues that his trial
counsel was ineffective for failing to further inquire about those relationships.
Costell also raises two instances in which prospective jurors stated that they, or a
family member, experienced domestic violence, and that his trial counsel was
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ineffective for failing to further inquire into those situations. Finally, Costell
argues that his trial counsel was ineffective because he “did not ask jurors
Pendergast and Livingston any questions, nor did he inquire of the two alternate
jurors.” (Appellant’s Brief at 24). Costell’s arguments are meritless. “‘This
Court has previously held that when jurors demonstrate during voir dire that they
are able to remain fair and impartial, no action will lie for ineffective assistance of
counsel for not seeking their removal.’” State v. Brooks, 3d Dist. Defiance No. 4-
08-09, 2008-Ohio-6188, ¶ 20, quoting State v. Bofia, 3d Dist. Henry No. 7-03-12,
2004-Ohio-3018, ¶ 14, citing State v. Hill, 3d Dist. Paulding No. 11-03-07, 2003-
Ohio-5123, ¶ 29. All of the prospective jurors of which Costell complains
indicated that they would be able to remain fair and impartial despite their
relationships or experiences.5 (See Apr. 13, 2015 Tr., Vol. I, at 54, 57-59, 86).
{¶150} Costell further argues in his third assignment of error that his trial
counsel was ineffective during voir dire for failing to use his last preemptory
challenge. “[T]he decision whether to dismiss a juror using preemptory challenges
is a trial tactic.” Bofia at ¶ 14, citing Hill at ¶ 30. “Debatable trial tactics, without
more, will not be grounds for an ineffective assistance of counsel claim.” Id.,
5
Although prospective-juror McClain indicated to the trial court that he has “an aunt and a sister that’s
[sic] in a domestic situation” and that he might be able to be a fair and impartial juror, he later responded to
the prosecutor’s question during voir dire “Anything about that incident involving your family that would
cause you not to be able to sit here today?,” “I don’t believe so.” (Apr. 13, 2015 Tr., Vol. I, at 54-55, 85-
86).
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citing Hill at ¶ 30. Here, this was nothing more than a debatable trial tactic. As
such, Costell’s argument is meritless.
{¶151} Finally, Costell argues in his third assignment of error that his trial
counsel was ineffective for failing “to object to the [trial] court’s failure to swear
in the venire.” (Appellant’s Brief at 25). Costell’s argument is erroneous as the
trial court placed the prospective jurors under oath prior to voir dire. (Apr. 13,
2015 Tr., Vol. I, at 38-39).
{¶152} For these reasons, Costell’s trial counsel was not ineffective during
voir dire, and his third assignment of error is overruled.
{¶153} We turn to Costell’s fourth assignment of error in which he lists 18
instances that he argues demonstrates that his trial counsel was ineffective during
trial, including allegations that his trial counsel was ineffective for failing to move
for a mistrial, failing to object to testimony and the admission of evidence, failing
to impeach witnesses and conducting ineffective cross-examination, and failing to
file a number of pretrial motions.
{¶154} Costell argues that his trial counsel was ineffective for failing “to
move for a mistrial after a prospective juror tainted the venire when she informed
the court she could not sit through trial because her deceased grandfather would
never have been treated the way Jon treated Debra.”6 (Appellant’s Brief at 27).
6
It was actually the prospective juror’s father. (Apr. 13, 2015 Tr., Vol. I at 42).
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Based on our conclusion as to Costell’s first assignment of error, his argument is
meritless. Also meritless based on our discussion of Costell’s first assignment of
error is his argument that his trial counsel was ineffective for failing to object to
the trial court’s “failure to give any admonishment or instruction prior to opening
statements or voir dire.” (Id.).
{¶155} Moreover, based on our conclusion in Costell’s second assignment
of error relative to Costell’s arguments regarding other-bad-acts evidence, his
argument that his trial counsel was ineffective for failing to object to that evidence
is meritless. Costell neglects to acknowledge in advancing this argument that the
State was also required to prove the other charges against Costell, and not only the
aggravated-murder charge. Further meritless, based on our conclusion in Costell’s
second assignment of error, is Costell’s argument that his trial counsel was
ineffective for failing to object to “the prosecutor’s improper and highly
prejudicial opening statement, voir dire, and closing statement.” (Id.).
{¶156} Based on our conclusion in Costell’s seventh assignment of error,
his argument that his trial counsel was ineffective for failing to move to redact
Debra’s death certificate is meritless.
{¶157} Of those 18 instances of ineffective assistance that Costell argues,
10 relate to instances in which Costell claims his trial counsel’s failure to object
resulted in him receiving an unfair trial. The failure-to-object arguments raised by
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Costell already not meritless based on our conclusions in Costell’s other
assignments of error do not rise to the level of ineffective assistance of trial
counsel. Those arguments include trial counsel’s failure to object to: (1) several
instances of Debra’s healthcare professionals’ testimony that Costell alleges to be
“inadmissible and irrelevant character evidence”; (2) the admission of State’s
Exhibit 9 because there a proper foundation was not laid for its admission and
seven pages were missing, and the admission of Debra’s medical records because
they “highlight[ed] certain information and contained allegations that [Costell]
was hateful and had a drinking problem”; (3) the prosecutor asking Dr. Muniyappa
a legal question; (4) “the introduction of any records or testimony that related to
events prior to January 2013”; and (5) Heath’s and Simmons’s testimony
regarding Costell’s demeanor after Debra’s death, as well as Investigator
Slaughter’s and Dr. Applegate’s testimony regarding their conversations with
Costell. (Appellant’s Brief at 27-29). “[T]rial counsel’s failure to object is
generally viewed as trial strategy and does not establish ineffective assistance.”
State v. Stairhime, 3d Dist. Defiance No. 4-13-06, 2014-Ohio-1791, ¶ 42, quoting
State v. Turks, 3d. Dist. Allen No. 1-08-44, 2009-Ohio-1837, ¶ 43, citing State v.
McKinney, 11th Dist. Trumbull No. 2007-T-0004, 2008-Ohio-3256, ¶ 191, and
citing State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, ¶ 103. Indeed,
Costell advances no argument that there is a reasonable probability that the
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outcome of his trial would have been different based on his failure-to-object
arguments. We conclude that Costell’s failure-to-object arguments fall within the
realm of trial tactics and do not support an ineffective-assistance-of-counsel claim.
{¶158} Costell argues that his trial counsel was ineffective for failing to
impeach (1) the “State’s witnesses * * * with the State’s own exhibits that showed
Debra could turn herself, that Debra denied any pain during intercourse, and that
Debra’s nurses believed that [Costell] and Debra could engage in sexual
intercourse without any serious issue” and (2) “the healthcare workers’ allegations
that Debra had told them that [Costell] abused her * * * with the medical records
depicting Debra’s mental health and memory issues.” (Appellant’s Brief at 27,
citing State’s Exs. 8, 11). He also argues that his trial counsel was ineffective for
questioning Lutz and Dr. Muniyappa on cross-examination “if they had ever called
law enforcement to say that Debra was being abused.” (Id. at 28, citing Apr. 13,
2015 Tr., Vol. II, at 309-310 and Apr. 14, 2015 Tr., Vol. II, at 262). “It is well
settled that the scope of cross-examination is considered a trial strategy, and
debatable trial tactics do not establish ineffective assistance.” State v. Alvarez, 3d
Dist. Defiance No. 4-08-02, 2008-Ohio-5189, ¶ 32, citing Conway at ¶ 101, citing
State v. Hoffner, 102 Ohio St. 3d 358, 2004-Ohio-3430, ¶ 45; State v. Campbell, 90
Ohio St. 3d 320, 339 (2000). Costell’s trial counsel may have decided not to cross-
examine the State’s witnesses because such cross-examination would have
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reemphasized the abuse allegations and bolstered the State’s argument. Compare
id. Conversely, Costell’s trial counsel may have decided to cross-examine Lutz
and Dr. Muniyappa regarding what they reported to law enforcement to discredit
the abuse allegations. Indeed, Dr. Muniyappa testified that he did not contact law
enforcement to report any suspected abuse and, although Lutz testified that she
contacted law enforcement to report suspected abuse, she elaborated that law
enforcement never followed up with her regarding her allegations. Thus, Costell’s
trial counsel’s considerations are trial strategy and do not constitute ineffective
assistance of counsel. Alvarez at ¶ 32.
{¶159} Costell argues that his trial counsel was ineffective for failing to
object to the admission of Costell’s prior domestic-violence judgment entries
because his trial counsel stipulated to the prior convictions. Costell’s argument is
misplaced. The record reveals that Costell’s trial counsel stipulated to the prior
domestic-violence judgment entries themselves, not just the convictions as Costell
argues on appeal. (See Apr. 14, 2015 Tr., Vol. II, at 265-266). Moreover, the
failure to object and decisions regarding stipulations are matters of trial strategy
and tactics. Stairhime, 2014-Ohio-1791, at ¶ 42; State v. Roy, 10th Dist. Franklin
No. 14AP-986, 2015-Ohio-4959, ¶ 22, citing State v. Rippy, 10th Dist. Franklin
No. 08AP-248, 2008-Ohio-6680, ¶ 16, citing State v. Edwards, 119 Ohio App.3d
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106 (10th Dist.1997), citing United States v. Teague, 953 F.2d 1525 (11th
Cir.1992). Costell’s trial counsel was not ineffective in this instance.
{¶160} Costell argues that his trial counsel was ineffective for “telling the
venire that [Costell] might not testify, because ‘I might tell him, [Costell], there’s
a reason why you can’t testify here. I don’t want you testifying.’” (Appellant’s
Brief at 28, quoting Apr. 13, 2015 Tr., Vol. I, at 154). In context, Costell’s trial
counsel was asking the venire their attitude toward a defendant that invokes his
constitutional right not to testify based on his trial counsel’s advice. As we
acknowledged in Costell’s third assignment of error, juror voir dire is a matter of
trial strategy, and we are unwilling to “‘second-guess trial strategy decisions’ or
impose ‘hindsight views about how current counsel might have voir dired the jury
differently.’” Mundt, 115 Ohio St. 3d 22, 2007-Ohio-4836, at ¶ 63, quoting
Mason, 82 Ohio St. 3d at 157. Moreover, the trial court instructed the jury that
Costell has a constitutional right not to testify, and that the jury cannot take
Costell’s right not to testify into consideration during its deliberations. (Apr. 16,
2015 Tr. at 46). “A presumption exists that the jury has followed the instructions
given to it by the trial court.” State v. Murphy, 65 Ohio St. 3d 554, 584 (1992).
{¶161} Costell argues that his trial counsel was ineffective for failing to file
a number of pretrial motions: (1) a motion for a bill of particulars; (2) a motion to
suppress Costell’s statement to Detective Justice; (3) a motion in limine to exclude
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prior bad acts; (4) a motion to redact irrelevant, prejudicial portions of the exhibits
and the death certificate; (5) “a motion to sever the aggravated murder count from
the balances [sic] of the charges”; and (6) a motion to dismiss the indictment based
on the destruction of potentially exculpatory evidence. (Appellant’s Brief at 29).
The failure to file a motion is not per se ineffective assistance of counsel. State v.
Schlosser, 3d Dist. Union No. 14-10-30, 2011-Ohio-4183, ¶ 34, citing In re Smith,
3d Dist. Hancock No. 5-01-34, 2002 WL 255126, *6 (Feb. 22, 2002). “Without
proving that trial counsel was deficient for failing to make certain motions and that
those motions had a reasonable probability of success, the ineffective assistance of
counsel claim fails.” Id. Costell failed to demonstrate that his trial counsel was
deficient for failing to file any of those pretrial motions or that such motions
would have been successful. Indeed, Costell makes no argument relative to
whether any of those motions would have had a reasonable probability of success,
and we decline to root out any possible argument. State v. Raber, 189 Ohio
App.3d 396, 2010-Ohio-4066, ¶ 30 (“[I]f an argument exists that can support [an]
assignment of error, it is not this [c]ourt’s duty to root it out.”). See also App.R.
12(A)(2); App.R. 16(A)(7).
{¶162} Finally, as we noted in Costell’s second assignment of error,
ineffective-assistance-of-counsel claims necessarily involve an attorney’s failure
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to conform to clear professional standards. Reynolds, 2003-Ohio-7245, ¶ 46. As
such, as the Second District Court of Appeals admonished in Reynolds,
while we are aware of appellate counsel’s duty to represent [their]
client’s interests zealously, we urge [] counsel to avoid misuse of
[ineffective-assistance-of-counsel] claims. * * * There is an element
of perversity in the claim that mere exaggerations, or even negligent
misstatements, simply don’t involve.
Id.
{¶163} For these reasons, Costell’s fourth assignment of error is overruled.
{¶164} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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