[Cite as State v. O'Cull, 2018-Ohio-4459.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
: Case No. 17CA6
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
TRACEY O'CULL, :
:
Defendant-Appellant. : Released: 10/29/18
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Nikki Trautman
Baszynski, Assistant Ohio State Public Defender, Columbus, Ohio, for
Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Highland County Court of Common
Pleas judgment entry convicting Appellant, Tracey O'Cull, of one count of
corrupting another with drugs (fentanyl), a second-degree felony in violation
of R.C. 2925.02(A)(3), and sentencing her to a maximum prison term of
eight years. Because we find no merit to Appellant's sole assignment of
error, it is overruled and the judgment and sentence imposed by the trial
court is affirmed.
Highland App. No. 17CA6 2
FACTS
{¶2} Appellant, Tracey O'Cull, was indicted on one count of first-
degree felony involuntary manslaughter and one count of second-degree
felony corrupting another with drugs in connection with the death of
Benjamin Hahn, the victim herein, who was found dead on December 19,
2015. The State alleged that the victim (who had a history of drug use and
who had recently been released from a rehabilitation program) contacted
several individuals, including Appellant, on December 18, 2015 seeking
heroin. The State further alleged that later that night, Appellant drove to the
victim's residence and sold drugs to him. Appellant's mother found him
unresponsive the next morning, with a syringe, empty capsules, a metal
spoon and a cell phone. Text messages between the victim and Appellant
indicated Appellant texted the victim that she was in his driveway shortly
before his death occurred. Later toxicology testing revealed that Appellant
had fentanyl in his system when he died, and a pathology report indicated
the victim died from fentanyl intoxication.
{¶3} The matter proceeded to a jury trial which resulted in a hung
jury on the manslaughter count and a conviction on the corrupting another
with drugs count. The trial court ordered a pre-sentence investigation and
ultimately sentenced Appellant to an eight-year maximum term of
Highland App. No. 17CA6 3
imprisonment. It is from this conviction and sentence that Appellant now
brings her timely appeal, setting forth a single assignment of error for our
review.
ASSIGNMENT OF ERROR
"I. THE RECORD DOES NOT CLEARLY AND CONVINCINGLY
SUPPORT TRACEY O'CULL'S SENTENCE."
{¶4} In her sole assignment of error, Appellant contends that the
record does not support her maximum, eight-year sentence. More
specifically, Appellant contends that the trial court's sentence was based
upon findings not supported by the record, as well as findings that
misinterpret statutory factors, and that her sentence must be vacated as a
result. The State contends that the record clearly and convincingly supports
Appellant's sentence.
{¶5} When reviewing felony sentences, appellate courts must apply
the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23. Under R.C.
2953.08(G)(2), “[t]he appellate court's standard for review is not whether the
sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2)
provides that an appellate court may increase, reduce, modify, or vacate and
remand a challenged felony sentence if the court clearly and convincingly
finds either:
Highland App. No. 17CA6 4
"(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law."
{¶6} Although R.C. 2953.08(G)(2)(a) does not mention R.C. 2929.11
and 2929.12, the Supreme Court of Ohio has determined that the same
standard of review applies to those statutes. Marcum at ¶ 23 (although
“some sentences do not require the findings that R.C. 2953.08(G)(2)(a)
specifically addresses[,] * * * it is fully consistent for appellate courts to
review those sentences that are imposed solely after consideration of the
factors in R.C. 2929.11 and 2929.12 under a standard that is equally
deferential to the sentencing court”); State v. Butcher, 4th Dist. Athens No.
15CA33, 2017-Ohio-1544, ¶ 84. Consequently, “an appellate court may
vacate or modify any sentence that is not clearly and convincingly contrary
to law only if the appellate court finds by clear and convincing evidence that
the record does not support the sentence.” Marcum at ¶ 23; Butcher at ¶ 84.
{¶7} “Once the trial court considers R.C. 2929.11 and 2929.12, the
burden is on the defendant to demonstrate by clear and convincing evidence
that the record does not support his sentence.” State v. Akins-Daniels, 8th
Dist. Cuyahoga No. 103817, 2016-Ohio-7048, ¶ 9; State v. O'Neill, 3rd Dist.
Allen No. 1-09-27, 2009-Ohio-6156, fn. 1. “Clear and convincing evidence
Highland App. No. 17CA6 5
is ‘that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123 Ohio
St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18; quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶8} We initially conclude that Appellant's sentence is not clearly and
convincingly contrary to law. The trial court imposed an eight-year term of
imprisonment. While an eight-year term does constitute a maximum
sentence for a second-degree felony offense, it is within the statutory range
for the offense. Further, Appellant does not argue that her sentence is
contrary to law, but rather that the record does not clearly and convincingly
support her sentence.
{¶9} In particular, Appellant contends significant findings made by
the trial court that justified the maximum sentence are not supported by the
record. Appellant argues the trial court made two findings indicating her
conduct was more serious than conduct normally constituting the offense,
which were not supported by the record: 1) that the victim's death was
Highland App. No. 17CA6 6
exacerbated by his addiction; and 2) that the relationship between the victim
and Appellant facilitated the offense. The record indicates the trial court
found as follows regarding these factors:
"Now, in looking at this and going through the analysis that I
would do in any case, I've looked at the factors that are set forth
in 2929.11 thru .14, I'll go through and say this: It is true that
the victim facilitated the offense by voluntarily using the drugs.
In terms of committing the offense, the offender expected to
cause physical harm, I think, yes, I think addiction is physical
harm, obviously it's killing people.
And so any time a seller of heroin or Fentanyl gives drugs to
someone, I think there can be an expectation that there could be
an overdose.
I'll find under 2929.12 there is an aggravating factor, in that the
physical injury suffered by the victim due to the offender's
conduct was exacerbated because of his physical and mental
condition, specifically I find that addiction is a mental
condition; and actually with heroin it is a physical addiction.
So, therefore, uh, you know, the injury again when people sell
dope to each other, particularly opiates, that's an awareness, it's
just so overwhelmingly prevalent, as counsel had indicated, that
the people in this world, they know that, and they understand
that.
And obviously the victim's relationship with the offender
facilitated the offense, because he apparently knew he could get
drugs from her, and called her by her first name. And from text
messages it's clear that they had some sort of pre-existing
relationship, friends, dealer/buyer, I don't know, but it's clear
that there was a relationship there."
{¶10} With respect to the trial court's finding that Appellant's
relationship with the victim facilitated the offense, Appellant contends that
Highland App. No. 17CA6 7
the trial court's interpretation of the word facilitation "would essentially
render the factor meaningless and arbitrary." She argues that the legislature
sought to impose harsher punishment on individuals "who exploited their
victim's trust or dependence[,] not individuals who merely knew their
victims." A similar argument was made in State v. Sari, 11th Dist. Lake No.
2016–L–109, 2017-Ohio-2933. Sari was indicted for one count of illegally
conveying drugs into a detention facility and two counts of corrupting
another with drugs. Id. at ¶ 3. Sari entered into a plea agreement on all
counts and stipulated that the evidence would have shown that she and two
other individuals (one of which was Martin, who was also confined in jail at
the same time as Sari) entered into a plan to bring drugs into the detention
facility when Sari was returning after being released on medical furlough. Id.
at ¶ 6. The plan succeeded by Sari concealing heroin in her vagina and
distributing it to several others in the detention center once she returned,
including Martin and another individual, Ellis. Id. The next day, Martin was
found unresponsive in her cell and had to be revived with Narcan, and Ellis
was found dead in her cell. Id.
{¶11} On appeal, Sari argued that the trial court incorrectly analyzed
the factor involving whether her relationship with the victim facilitated the
offense. Id. at ¶ 23. Sari argued that her relationship with the victims did not
Highland App. No. 17CA6 8
facilitate the offense, and “that if we were to find this factor ‘is triggered
under these circumstances, then virtually every distribution of drugs to a
friend would invoke this factor.’ ” Id. The State argued, in part, “that the
victims would never have received the drugs from Ms. Sari had they not had
a relationship with her[.]” Id. The Eleventh District noted in Sari as follows
with regard to the definition of the word facilitate:
"To facilitate means to make easier. The American Heritage
Dictionary (2 Ed.1985) 484. In order to have the relationship
facilitate the offense, the defendant must have used his
relationship with the victim to help commit the offense. In other
words, the defendant must have used the relationship to allow
him to commit the offense in a manner which he could not have
accomplished without the relationship. State v. Manley, 3d Dist.
Allen No. 1–11–04, 2011–Ohio–5082, ¶ 20, citing State v.
McDade, 6th Dist. Ottawa Nos. OT–06–001, OT–06–004,
2007–Ohio–749, ¶ 54." Id.
The Sari court ultimately found, based upon the evidence before it, that the
factor could be argued either way, noting that Sari's relationship with
Martin, in particular, made it easier for her obtain the heroin she later
distributed into the jail. Id. at ¶ 24. The court did not further analyze Sari's
relationship with the other victim, noting that even if the determination had
been made in error, it was harmless considering the other seriousness and
recidivism factors present, which included the fact that Sari's conduct was
part of organized criminal activity and resulted in serious physical harm. Id.
at ¶ 24-26.
Highland App. No. 17CA6 9
{¶12} Much like the Sari court, we conclude this particular factor can
be argued either way. Here, however, Appellant's argument on appeal is
belied by her counsel's arguments made at the sentencing hearing itself.
Appellant's counsel argued at the sentencing hearing that the victim
facilitated the offense, and that Appellant "had no special relationship of
trust with Ben, other than the relationship that the drug culture itself creates
between users who come together for the purpose of finding drugs, sharing
drugs, using drugs, and getting high." Appellant's counsel further referenced
the "bizarre drug culture happening right now." It appears, at the present
time, that a trust relationship between drug dealers and drug buyers does
exist, and we conclude that the relationship does facilitate drug offenses.
With the technology currently available which permits law enforcement to
recover and review text communications, trust is implicit with every text
message that is sent between a buyer and seller. Putting something into a
written text message or any other traceable writing indicates a certain level
of trust that the buyer or seller is not cooperating with law enforcement, is
not acting as part of a controlled buy, and would not use that written
communication against the sender. In fact, the text messages between the
victim and Appellant leading up to the drug sale were introduced as
Highland App. No. 17CA6 10
evidence in this case. As such, we find the trial court appropriately
considered and analyzed this sentencing factor.
{¶13} Appellant next argues that the trial court improperly found that
the victim's death was exacerbated by his addiction. The trial court actually
found that "[t]he physical or mental injury suffered by the victim of the
offense due to the conduct of the offender was exacerbated because of the
physical or mental condition or age of the victim." Appellant argues that
while the victim's addiction can be characterized as a mental or physical
condition, it did not "exacerbate" the harm caused, but rather the victim's
death was caused by the fentanyl present in the drugs he used. She further
argues that the victim's "overdose was not made worse because of his
addiction; instead, Ben's addiction was the reason he procured the drugs in
the first place." Appellant also argues that the victim's addiction mitigated
in her favor, which the trial court so found by noting the victim had "induced
or facilitated" the offense.
{¶14} A review of the record indicates the trial court properly
considered the fact that the victim facilitated the offense by voluntarily using
drugs. Nevertheless, the trial court found that the injury, in this case death,
of the victim, due to the conduct of Appellant, was exacerbated because of
the mental or physical condition (drug addiction) of the victim. The record
Highland App. No. 17CA6 11
here shows that Appellant had a history of drug addiction but had recently
been released from a rehabilitation program. Further, the text messages
between Appellant and the victim indicate the victim was seeking heroin.
However, Appellant sold the victim what ended up being a lethal does of
fentanyl.
{¶15} The State's theory at trial, based on the text messages between
Appellant and the victim, text messages between the victim and another
friend, and the medical evidence, was that Appellant took an initial dose of
the drug he was provided, and that when he did not get an immediate result,
as he would with heroin, he took another dose, which ultimately resulted in
his death. It is unknown if the victim realized he was taking fentanyl, which
he did not ask to purchase, rather than heroin, a drug which he had a history
of using. In this regard, we cannot conclude that the trial court improperly
found that the victim's death, due to the conduct of Appellant, was
exacerbated by the victim's physical and mental condition of drug addiction.
Further, we conclude that even if the trial court's determination does not
properly interpret the word "exacerbate," as argued by Appellant, as in Sari,
we conclude such error is harmless considering the other seriousness and
recidivism factors supported by the record.
Highland App. No. 17CA6 12
{¶16} Next, Appellant contends the trial court's rejection of
mitigating factors was not supported by the record. In support of this
argument Appellant contends the trial court refused to find two mitigating
factors that were supported by the record: 1) that Appellant acted under
strong provocation, and 2) that Appellant did not expect to cause physical
harm to the victim. Appellant contends her own drug addiction provoked
her to sell drugs to the victim, and argues that her drug addiction was
illustrated in the pre-sentence investigation report. She argues the trial court
refused to acknowledge her addiction, but instead focused on the fact that
her two most recent offenses were trafficking, not possession, charges. The
State contends Appellant made a choice to drive to the victim's home to sell
him drugs, and that there is nothing in the record to suggest the victim
threatened her or forced her to sell him drugs.
{¶17} The only mitigating factor found by the trial court was that
"[t]he victim induced or facilitated the offense." The trial court did not find,
as argued by Appellant, that Appellant acted under strong provocation in
committing the offense. As noted by Appellant, the trial court noted at the
sentencing hearing that Appellant's most recent offenses involved drug
trafficking, as opposed to possession, which would indicate that addiction
was a motivation. Further, the pre-sentence investigation report does
Highland App. No. 17CA6 13
contain information provided by Appellant indicating she was using drugs in
2015, the year the present offense occurred. The trial court specifically
noted it had reviewed the pre-sentence investigation report in making its
determinations. Thus, it appears the trial court considered the information
suggesting Appellant suffered from drug addiction, but it nevertheless did
not assign that information great weight.
{¶18} In State v. Yost, 4th Dist. Meigs No. 17CA10, 2018-Ohio-
2719, ¶ 3, an argument was made that the trial court improperly balanced
and weighed the seriousness and recidivism factors in imposing a maximum
sentence. This Court reasoned, in response to that argument, as follows:
“Although other factors cited by Yost's counsel at the
sentencing hearing supported a finding that the offense was less
serious or that she would be less likely to commit a future
crime, see R.C. 2929.12(C) and (E), the trial court did not need
to—as Yost appears to implicitly claim—assign equal weight to
each applicable factor. Instead, precedent refutes any contention
that each statutory or other relevant factor is entitled to equal or
a certain weight in the balancing process. See State v. Graham,
4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, ¶ 25,
rejecting the argument that because each of the statutory
sentencing factors are mandatory, each is entitled to equal
weight on balance, citing State v. Bailey, 4th Dist. Highland No.
11CA7, 2011-Ohio-6526, ¶ 34, quoting State v. Arnett, 88 Ohio
St.3d 208, 215, 724 N.E.2d 793 (2000) (“in considering the
factors set forth in R.C. 2929.12, the trial court has ‘the
discretion to determine the weight to assign a particular
statutory factor’ ”).” Yost at ¶ 19.
Highland App. No. 17CA6 14
Here, the trial court considered all of the evidence before it, including the
information contained in the pre-sentence investigation and Appellant's more
recent trafficking offenses, and ultimately determined that Appellant's
alleged drug addiction did not mitigate against her conduct in selling the
victim a legal dose of fentanyl. We cannot conclude that the trial court
failed to properly consider or analyze this seriousness or recidivism factor,
or that this determination was contrary to law based upon the record before
us.
{¶19} Finally, we find Appellant's argument that the trial court failed
to determine that Appellant did not expect to cause physical harm to the
victim to be a mitigating factor to be disingenuous. The trial court made
several statements at the sentencing hearing regarding Appellant's role in the
death of the victim. For instance, the following comments were made:
"In terms of committing the offense, the offender expected to
cause physical harm, I think, yes, I think addiction is physical
harm, obviously it's killing people. And so any time a seller of
heroin or Fentanyl gives drugs to someone, I think there can be
an expectation that there could be an overdose.
***
So, therefore, uh, you know, the injury again when people sell
dope to each other, particularly opiates, that's an awareness, it's
just so overwhelmingly prevalent, as counsel has indicated, that
the people in this world, they know that, and they understand
that.
***
And the Court will further find that in committing the offense,
as far as the expectation to cause physical harm, again, as I said,
Highland App. No. 17CA6 15
getting high is part of the physical harm because it speeds the
addiction, which is clearly physical harm."
{¶20} Appellant argues that "[t]he problem with the trial court's
interpretation of this statutory factor is that it reads into it a 'should have
known' component that is unsupported by the plain language." Appellant
contends that "[t]he statute does not exclude from consideration those
individuals who should have known their actions could cause harm. Instead,
the statute directs courts to consider that the offender may not have expected
the harm to result and because of that, her conduct may be less serious than
conduct normally constituting the offense."
{¶21} Regardless of how Appellant describes it, Appellant knew
harm could, or was likely to result, from her conduct. Further, with regard
to an assertion that her conduct may be less serious than conduct normally
constituting the offense, Appellant corrupted another with drugs to the extent
it resulted in his death. While her conduct may not have caused an initial
addiction, it fed an addiction and resulted in the near immediate death of the
victim. Therefore, we find no error in the trial court's failure to determine,
as a mitigating factor, that Appellant did not cause, or expect to cause, harm
to any person or property. See State v. Sari, supra, at ¶ 28 ("* * * because
Ms. Sari did in fact cause physical harm to persons and because the
contention that she did not expect to cause physical harm is belied by the act
Highland App. No. 17CA6 16
of providing someone with heroin, a drug that has recently caused the death
of countless individuals in this area. These arguments are not well taken.").
{¶22} Further, and as noted in Yost, the trial court made additional
determinations in support of its issuance of a maximum sentence, including
that Appellant, at the time of the offense, had previously served a prison
sentence, that the victim suffered serious physical harm, that Appellant had
not responded favorably to sanctions previously imposed for criminal
convictions, and that Appellant showed no genuine remorse for the offense.
All of these factors weighed against imposition of a shorter sentence, and the
trial court was entitled to place additional weight on these factors.
Therefore, we overrule Appellant's sole assignment of error.
{¶23} In our view, Appellant has not established that her eight-year
prison sentence is clearly and convincingly not supported by the record. As
such, her sole assignment of error is overruled and we affirm the judgment
of the trial court.
JUDGMENT AFFIRMED.
Highland App. No. 17CA6 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.