State v. Crane, CA2013–02–001.

• Court: Ohio Court of Appeals
• Writing for the Court: M. POWELL, J.
• Citation: State v. Crane, 17 N.E.3d 1252 (Ohio App. 2014)
• Decision Date: 25 August 2014
• Docket Number: No. CA2013–02–001.,CA2013–02–001.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Robert W. CRANE, Defendant–Appellant.

17 N.E.3d 1252

STATE of Ohio, Plaintiff–Appellee

v.Robert W. CRANE, Defendant–Appellant.

No. CA2013–02–001.

Court of Appeals of Ohio, Twelfth District, Brown County.

Aug. 25, 2014.

Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, Georgetown, OH, for plaintiff-appellee.

Julie D. Steddom, Ripley, OH, for defendant-appellant.

OPINION

M. POWELL, J.

{¶ 1} Defendant-appellant, Robert W. Crane, appeals his conviction in the Brown County Common Pleas Court for possession of heroin, possessing drug abuse instruments, and corrupting another with drugs, for which he was sentenced to eight years in prison. For the reasons that follow, we affirm appellant's conviction and sentence.

{¶ 2} On March 17, 2011, appellant found his wife Christine Crane unresponsive at their home in Aberdeen, Ohio and called the life squad, which transported Christine to a hospital in Maysville, Kentucky. Shortly thereafter, a deputy on the scene observed that appellant was disoriented, sweating profusely, and slurring his speech, and therefore had appellant transported to the same hospital. Christine was pronounced dead at the hospital shortly after her arrival. Appellant was treated for a heroin overdose.

{¶ 3} A search warrant was obtained for appellant's home. When the police executed the search warrant, they discovered drug paraphernalia, including a syringe and needle, a plate, a spoon, a razor blade, a lighter and a plastic card. The plate and spoon were submitted to the Ohio Bureau of Criminal Identification and Investigation for analysis, and those items tested positive for heroin. The syringe and needle were submitted to an independent laboratory for DNA analysis. The DNA analysis revealed that appellant could not be excluded as a major contributor to the DNA found on the syringe while Christine could not be excluded as a minor contributor to the DNA found on the syringe. However, only appellant's DNA was found on the needle.

{¶ 4} On May 26, 2011, appellant was charged in an 11–count indictment with permitting drug abuse in violation of R.C. 2925.13(B), a first-degree misdemeanor (Count One); involuntary manslaughter in violation of R.C. 2903.04(B), a third-degree felony (Count Two); corrupting another with drugs in violation of R.C. 2925.02(A)(2), a second-degree felony (Count Three); involuntary manslaughter in violation of R.C. 2903.04(A), a first-degree felony (Count Four); possession of heroin in violation of R.C. 2925.11(A), a fifth-degree felony (Count Five); possessing drug abuse instruments in violation of R.C. 2925.12(A), a second-degree misdemeanor (Count Six); corrupting another with drugs in violation of R.C. 2925.02(A)(3), a second-degree felony (Count Seven); possession of heroin in violation of R.C. 2925.11(A), a fifth-degree felony (Count Eight); permitting drug abuse in violation of R.C. 2925.13(B), a first-degree misdemeanor (Count Nine); complicity to trafficking in heroin in violation of R.C. 2925.03(A)(1), a fifth-degree felony (Count Ten); and engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a first-degree felony (Count Eleven).

{¶ 5} Appellant's first trial began on April 27, 2012, but was continued in progress to allow the state to depose witnesses who conducted the DNA analysis of the syringe. The trial resumed on October 1, 2012, but the trial eventually ended in a mistrial on October 9, 2012 due to the misconduct of a witness in testifying about a domestic violence incident between appellant and Christine.

{¶ 6} Appellant's second trial began on January 28, 2013. After the state's opening statement, appellant moved for a judgment of acquittal on all charges on the basis that the opening statement did not set forth a prima facie case on any of the charges. The state moved to reopen its opening statement. After argument on the issue, the trial court granted the state's motion to reopen. After the state's supplemental opening statement, the trial court granted appellant's motion for acquittal on Counts One and Nine (permitting drug abuse) and Count Two (third-degree involuntary manslaughter).

{¶ 7} During the testimony of state's witness Deputy Carl Smith, Smith and Deputy Buddy Moore's recorded interview of appellant was played for the jury. In that interview an alleged altercation between appellant and Christine was mentioned. Appellant moved for a mistrial on the basis that the trial court had previously granted his motion in limine regarding evidence of domestic violence between him and Christine, and the state violated the trial court's ruling by failing to redact the incident of domestic violence. The trial court denied appellant's motion for a mistrial and gave no curative instruction to the jury concerning the testimony.

{¶ 8} The state presented the testimony of Dr. Gregory Wanger, M.D., a Kentucky state medical examiner who conducted Christine's autopsy. Dr. Wanger testified that Christine died from heroin toxicity. Dr. Wanger testified that he obtained blood, urine and vitreous fluid specimens from Christine and sent them to an independent firm known as AIT Laboratories (AIT) for toxicology testing to determine the types and levels of drugs present in Christine's system at the time of her death. Dr. Wanger testified that his office does not have its own toxicology lab, and therefore contracts with AIT to do toxicology testing. He testified that he relied on AIT's toxicology report in formulating his opinion that Christine died from a heroin overdose. A redacted version of Christine's autopsy report, in which several sentences in the report were blacked out but the sentence stating that Christine's cause of death was heroin toxicity was left in the report, was admitted into evidence, and appellant raised no objection to the admission of the redacted autopsy report.

{¶ 9} The state also presented the testimony of 13 witnesses from AIT who were involved in various phases of the toxicological testing of Christine's blood and urine. AIT's toxicology report on Christine was referred to at trial as a “litigation packet,” though it is referred to in AIT's paperwork as a “Data Package.” The toxicology report was prologued with a “Certification of Authenticity” somewhat akin to a business records certification. The Certification of Authenticity, which was signed by AIT Toxicologist Faith Musko, states:

This is to certify that the documents in this Data Package are true and accurate reproductions of the original records generated in the normal course of business for this case by employees of AIT Laboratories and maintained in the files of this company.

The documents contained in this Data Package were prepared by the undersigned.

I swear and affirm under penalties for perjury that the foregoing representations are true to the best of my knowledge and belief.

Musko did not testify at appellant's trial. Instead, Kevin Shanks, an expert forensic toxicologist for AIT, testified as a witness for the state regarding AIT's toxicology report.

{¶ 10} Appellant objected to Dr. Wanger's testimony on the basis that the AIT toxicology report was testimonial in nature, the various witnesses from AIT did not address all phases of the testing of Christine's bodily fluids, and therefore Dr. Wanger's reliance on AIT's toxicology report in forming an opinion as to Christine's cause of death violated his right to confrontation. The trial court overruled appellant's objection and admitted AIT's toxicology report into evidence.

{¶ 11} After the state rested, appellant moved for a judgment of acquittal on the remaining counts. The trial court granted appellant's motion for acquittal as to Count Three (corrupting another with drugs) and Count Four (first-degree involuntary manslaughter). Appellant presented one witness in his defense. The case was submitted to the jury. The jury found appellant not guilty of Count Ten (engaging in pattern of corrupt activity) but guilty of all remaining counts, i.e., Counts Five and Eight (possession of heroin) Count Six (possessing drug abuse instruments) and Count Seven (corrupting another with drugs).¹ The trial court sentenced appellant to eight years in prison.

{¶ 12} Appellant now appeals, assigning the following as error:

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, WHEN IT DENIED HIS MOTION FOR ACQUITTAL AND ALLOWED THE PROSECUTOR TO SUPPLEMENT HER OPENING STATEMENT.

{¶ 15} Assignment of Error No. 2:

{¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, WHEN IT ALLOWED THE ADMISSION OF TESTIMONY THAT HAD BEEN THE SUBJECT OF A MOTION IN LIMINE AND FAILED TO INSTRUCT THE JURY TO DISREGARD SUCH TESTIMONY.

{¶ 17} Assignment of Error No. 3:

{¶ 18} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, WHEN IT ADMITTED TOXICOLOGY REPORTS WITHOUT THE PRESENCE OF THE ANALYST.

{¶ 19} In his first assignment of error, appellant argues the trial court erred by overruling his motion for acquittal of all the charges against him and by allowing the state to supplement its opening statement after its initial opening statement failed to state the charges against him and did not contain facts that would constitute prima facie evidence of guilt.

{¶ 20} R.C. 2945.10 provides in pertinent part that “[c]ounsel for the state must first state the case for the prosecution, and may briefly state the evidence by which he expects to sustain it.” (Emphasis added.)

{¶ 21} In State v. Holmes, 12th Dist. Butler No. CA90–06–113, 1991 WL 214359, *2–*3 (Oct. 21, 1991), the prosecutor failed to disclose in the state's opening statement the existence of a count in the indictment charging Holmes with having weapons under disability. Recognizing this, Holmes moved for an acquittal on that count at the close of the state's opening statement. The trial court overruled the ...