Opinion

State v. Platt

2024 Ohio 1330

Court: Ohio Court of Appeals
Filed: Apr 2, 2024
Status: Published
On the bench: Abele
Cited by: 7 cases
Authority: More cited than 49.3%

The opinion

[Cite as State v. Platt, 2024-Ohio-1330.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ATHENS COUNTY

STATE OF OHIO, :

Plaintiff-Appellant, : Case

No. 22CA2

v. :

DONALD E. PLATT, : DECISION AND

JUDGMENT ENTRY

Defendant-Appellee. :

________________________________________________________________

Patrick T. Clark and Jared T. Strubel, Assistant State Public

Defenders, Columbus, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and

Merry M. Saunders, Athens County Assistant Prosecuting Attorney,

Athens, Ohio, for appellee.

________________________________________________________________

CRIMINAL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:4-2-24

ABELE, J.

{¶1} This is an appeal from an Athens County Common Pleas

Court judgment of conviction and sentence. A jury found Donald

Platt, defendant below and appellant herein, guilty of (1)

involuntary manslaughter, in violation of R.C. 2903.04(A), and

(2) endangering children, in violation of R.C. 2919.22(A). The

trial court merged the endangering children offense with the

involuntary manslaughter offense and sentenced appellant to

serve an indeterminate four- to six-year prison term.

{¶2} Appellant assigns the following errors for review:

ATHENS, 22CA2

FIRST ASSIGNMENT OF ERROR:

“DONALD PLATT’S CONVICTIONS FOR CHILD

ENDANGERMENT AND INVOLUNTARY MANSLAUGHTER

ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

SECOND ASSIGNMENT OF ERROR:

“MR. PLATT WAS DENIED A FAIR TRIAL AND DUE

PROCESS OF LAW BY THE ADMISSION OF

IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE

AT TRIAL.”

THIRD ASSIGNMENT OF ERROR:

“MR. PLATT WAS DENIED A FAIR TRIAL AND DUE

PROCESS OF LAW BY THE ADMISSION OF IMPROPER

OPINION TESTIMONY.”

FOURTH ASSIGNMENT OF ERROR:

“DONALD PLATT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL.”

FIFTH ASSIGNMENT OF ERROR:

“THE CUMULATIVE EFFECT OF THE FIRST, SECOND,

THIRD, AND FOURTH ASSIGNMENTS OF ERROR

DENIED DONALD PLATT A FAIR TRIAL.”

SIXTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED WHEN IT SENTENCED

DONALD PLATT TO AN INDETERMINATE TERM OF

INCARCERATION UNDER THE UNCONSTITUTIONAL

R.C. 2929.144.”

ATHENS, 22CA2

On March 5, 2021, a childhood sleepover

turned tragic when appellant’s 14-year-old

son, M.P., took a loaded weapon from an

unlocked gun cabinet and accidentally shot

and killed 11-year-old E.S., a friend of

appellant’s 11-year-old son, L.P.

{¶4} An Athens County Grand Jury subsequently returned an

indictment that charged appellant with three offenses: (1)

involuntary manslaughter, in violation of R.C. 2903.04(A); (2)

endangering children, in violation of R.C. 2919.22(A); and (3)

tampering with evidence, in violation of R.C. 2921.12(A)(1).

The indictment also contained firearm specifications for the

involuntary manslaughter and endangering children offenses. The

state later dismissed the tampering with evidence charge.

{¶5} At the February 22, 2022 jury trial, the state’s first

witness, L.P., testified that on March 5, 2021, he, E.S., and

M.P. generally were “hanging out” in L.P.’s and M.P.’s bedrooms.

L.P. described the crime scene photographs to explain the layout

of the bedrooms and to describe E.S.’s location when M.P.

accidentally discharged the fatal shot. Several weapons also

appeared within these photographs. One photograph showed

“katanas” leaning against the bed. L.P. stated that katanas are

swords “that Japanese Samorides [sic] used.” At one point, L.P.

ATHENS, 22CA2

had a 20-gauge shotgun in his room that hung above his mirror.

He and M.P. also have throwing stars that they received from

their grandfather. Apparently, the boys did throw the stars at

the wall, but their parents yelled when they did so. Another

photograph showed L.P. with the barrel of a BB gun in his mouth.

{¶6} L.P. also recorded some videos of the evening’s

activities. One video showed M.P. “vaping,” while another

depicted L.P. telling E.S. to “kill” himself.1 L.P. explained

that, as part of the evening’s activities, he and E.S. sprayed

body spray on M.P.’s clothes, “lit it on fire and smacked it

out” “to mess with [M.P.].”

{¶7} L.P. also stated that, later in the evening, the three

boys went for a walk and, when they returned, they played video

games. The boys also discussed guns and visited appellant’s

bedroom where appellant showed the boys a “pistol.” Later, M.P.

retrieved a gun from the gun cabinet to show E.S. “the laser

[sight] on the gun.” As M.P. showed E.S the gun, M.P dropped

The state played multiple videotaped recordings for the

jury. However, none of the audio has been transcribed for the

record. See State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-

2856, 951 N.E.2d 1018, ¶ 18-22 (explaining that transcript must

be in writing and pointing out that videotape transcripts are

not acceptable). This court nevertheless reviewed the

recordings and has considered them to the extent that the

content of the spoken words is obvious.

ATHENS, 22CA2

the gun. When M.P. picked up the gun, the gun discharged and

the bullet struck E.S. L.P. called 9-1-1.

{¶8} M.P. testified that on the evening of March 5, 2021,

he, L.P., and E.S. were “hanging out.” The state introduced

crime-scene photographs of M.P.’s bedroom and he indicated that

one photograph depicted “a broken gun” that leaned against his

dresser. M.P. further explained that, throughout the evening,

he exchanged text messages with his girlfriend. After L.P. and

E.S. lit his clothing on fire, he texted his girlfriend to

report that L.P. and E.S. “just lit me on fire and snorted

chocolate milk stuff.” He elaborated that L.P. and E.S. “took

like Axe and sprayed it on like my pant leg when I wasn’t paying

attention to it and took a lighter to it.” M.P. further stated,

“And for some reason [L.P. and E.S.) decided to snort chocolate

milk batter.”

{¶9} M.P. also sent his girlfriend text messages about

vaping. One text stated that he “shot my little vape,” and

another stated he will “have to use dabs I guess.” M.P.

explained that “dabs” are “like a wax with THC in it.”

{¶10} Later, M.P., E.S., and L.P. were in L.P.’s room and

talked about guns “and like attachments that you can put on the

guns.” M.P. stated that he decided to show them appellant’s gun

that had the laser sight. M.P. went to the gun cabinet and,

ATHENS, 22CA2

although appellant usually locked the gun cabinet, this night

M.P. found the gun cabinet unlocked. M.P. retrieved the gun and

took it to the bedroom, and he showed them the gun, he “kind of

like dropped it and then when I was picking it back up it almost

dropped again and I kind of liked squeezed and, uh” the bullet

struck E.S. M.P. explained that he “kind of like was in shock

that it was loaded.” He said that appellant “usually” leaves

the guns unloaded, unless he was preparing to take the boys to

the gun range. M.P. stated that he would not have “gotten the

gun out” and shown it to E.S. if he knew that it had been

loaded.

{¶11} On cross-examination, M.P. stated that his father

talked to him about gun safety and told him to presume that

“every gun is loaded.” He agreed he “was being very stupid” the

night he accidentally shot E.S.

{¶12} The trial court also allowed the jury to ask

questions. The jury asked if M.P. knew when the picture was

taken of L.P. with the BB gun. M.P. did not know. The jury

also asked, “What are the effects of using dabs?” M.P. stated,

“you just get high[;] that’s all I know.”

{¶13} Some law enforcement officers who responded to the

scene testified and the state played videotaped recordings from

ATHENS, 22CA2

the officers. In the recordings, appellant can be heard

exclaiming that he unlocked the gun cabinet “yesterday.”

{¶14} Nelsonville Police Officer Justin Yocum stated that

when he entered the Platt residence, he smelled marijuana. He

did not, however, determine who may have smoked marijuana.

{¶15} Nelsonville Police Chief Scott Fitch testified about

the weapons that he stores at his home. He explained that he

stores weapons unloaded, and inside a gun safe that requires a

combination and code. Fitch also stated that a gun cabinet and

a gun safe are not the same. He indicated that a gun cabinet,

like the one in appellant’s home, is more decorative with

windows and primarily is used to display weapons.

{¶16} On cross-examination, Chief Fitch agreed that Ohio law

does not require gun owners to store weapons in a particular

manner. Nevertheless, he believes that the steps he takes are

the “responsible thing to do.”

{¶17} Alexis Gogle, a data analyst with the Athens County

Prosecutor’s Office, testified about cell-phone data she

extracted from the Platt family’s electronic devices. On

December 25, 2020, appellant communicated with someone about

Christmas and stated that “Christmas is going so far, so good.

No one is dead yet. You know with my two boys it’s possible.”

He next states, “And they have guns and swords and shit. What

ATHENS, 22CA2

am I thinking. Lol.” The person he corresponded with stated,

“Holy shit. Guns and swords. You trying to get them to kill

each other? LMAO.”

{¶18} On February 5, 2021, M.P. sent appellant the message

L.P. “hit me with his stick thing [and] then swung katanas at

me so I slapped him.” Appellant responded, “Y’all need to go to

[your] own rooms[.] I’ll be home shortly.” Gogle also

discovered that the photo of L.P. with the gun in his mouth was

taken February 22, 2021.

{¶19} Gogle also examined the electronic data from the

evening of the fatal shooting to help create a time line of

events. She outlined the series of text messages that M.P.

exchanged with his girlfriend, including messages about L.P. and

E.S. setting his clothing on fire, vaping, and using “dabs.”

Gogle further testified about the electronic data that had been

recorded near the estimated time of the shooting. On March 6,

2021, at 12:27 a.m., L.P. used his phone to record himself and

E.S., and “he repeats the phrase a few times kill yourself E.S.,

kill yourself.” A 12:35 a.m. video showed M.P. vaping. At

12:42 a.m., M.P. called his girlfriend. At 12:48 a.m., L.P.

used M.P.’s phone to call 9-1-1.

{¶20} Appellant testified in his defense. When defense

counsel asked appellant if he recalled the prosecutor showing

ATHENS, 22CA2

the jury a picture of L.P. with a gun in his mouth, appellant

responded he did remember and “that was the first [he] had ever

seen that.” Defense counsel also asked appellant about the

boys’ swords and appellant reported that the swords “are blunt.”

Appellant did agree that M.P. once had a sharp sword, but

appellant removed it the night the boys texted him about their

argument. Appellant further stated that M.P. had a throwing

star, but he is not sure how he obtained it.

{¶21} Defense counsel also asked appellant about M.P.’s text

message regarding “dabs.” Appellant stated that M.P. had a

blood test the night of E.S.’s death, and appellant “was under

the impression that if [M.P.] failed the blood test that night

he was going to jail.” He also stated the M.P. “has never done

anything like that ever” and believed that M.P. had been joking

around with his girlfriend.

{¶22} Next, defense counsel asked appellant about the

officer’s testimony that the house smelled like marijuana.

Appellant said he does not know why the officer thought that,

that “[i]t certainly wasn’t me,” and “[w]e weren’t in the house

that night smoking marijuana for sure.”

{¶23} Appellant also maintained that he taught L.P. and M.P.

how to handle guns in a safe manner. He further stated that he

usually does not have loaded guns in the gun cabinet, but “there

ATHENS, 22CA2

had been some crazy stuff going on in my neighborhood and people

[were] trying to break in houses,” so he had kept three weapons

loaded.

{¶24} Appellant testified that the night E.S. stayed at his

house, he prepared dinner for the boys. After, “they went on

about their time and [were] in the living room playing video

games.” Appellant explained he “was in [his] bedroom playing

[his] guitar” until around 11:45 pm., then around that time he

“yelled at [the boys] for being too loud.” He told them it was

“time to quiet down” and he returned to his room.

{¶25} The next thing appellant remembered is hearing “what

sounded like a flat board falling on the table.” He “jumped up

to go find out what it was,” and M.P. and L.P. met him in the

hallway and told him what happened. Appellant tried to give

E.S. CPR.

{¶26} Appellant explained that he wondered how M.P. obtained

access to the gun because he kept the gun cabinet “locked all

the time.” Appellant initially assumed he left the cabinet

unlocked because he thought only he knew the code. He also

testified that he “put that lock on [the cabinet] religiously.

Every time. Without fail.”

{¶27} On cross-examination, the prosecutor asked appellant

“[h]ow many times” he disciplined the boys that night.

ATHENS, 22CA2

Appellant stated that he “scolded them for not listening and not

doing what they were told.” Appellant agreed that he did not

know that L.P. and E.S. had lit M.P. on fire, even though the

boys’ rooms are five or six feet away from his room. He also

did not know of the video “in which L.P. told E.S. to kill

himself.”

{¶28} Appellant did admit that he smoked marijuana a day or

two before the fatal accident, but denied he smoked marijuana

the night of the accident. The prosecutor asked appellant if he

takes suboxone, and appellant stated that he does on occasion.

He explained that “[a]t one point I was addicted to Roxy 30's.”

The prosecutor also asked appellant about L.P.’s testimony that

appellant showed the three boys a handgun during the evening of

March 5, 2021, and appellant agreed that he had shown the boys

one gun, but he believed this occurred on a preceding day.

{¶29} On February 25, 2022, the jury found appellant guilty

of involuntary manslaughter and endangering children. The trial

court merged the endangering children offense with the

involuntary-manslaughter offense and sentenced appellant to

serve four to six years in prison. This appeal followed.

{¶30} In his first assignment of error, appellant asserts

that the state failed to present sufficient evidence to support

ATHENS, 22CA2

his two convictions. In particular, he asserts that the state

failed to establish that appellant’s conduct proximately caused

E.S.’s death, or that he committed a felony offense by leaving

his gun cabinet unlocked. Regarding proximate cause, appellant

argues that the state failed to prove “but for” causation.

Appellant argues that M.P. admitted that he knew the code to the

gun cabinet, and, in the past, had opened it several times

without permission. Appellant thus asserts that, even if he

forgot to lock the cabinet, M.P. “might still have entered the

cabinet, removed a gun, and accidentally squeezed the trigger.”

Appellant further contends that his conduct did not constitute a

substantial factor in bringing about E.S’s death, but rather

M.P.’s conduct was the substantial factor. Appellant also

argues that E.S.’s death was not a foreseeable risk.

{¶31} The state responds that E.S.’s death was a proximate

cause of appellant committing, or attempting to commit, the

felony offense of endangering children. The state contends

that, if appellant had not “been in his bedroom with the door

shut the whole time, talking to the minor children instead of

texting them, and safely securing loaded firearms in his home,

E.S. may still be here today.” The state further argues that

“Appellant created the risk of E.S. being shot when he failed to

properly secure loaded firearms in his home when children are

ATHENS, 22CA2

present or likely to be present.” With respect to whether

E.S.’s death was a foreseeable risk, the state asserts that “it

is foreseeable that inquiring children would want to look and

touch a firearm that was readily accessible to them – especially

to show off the new laser [sight] and flashlight that

[a]ppellant had put on.”

{¶32} A claim of insufficient evidence invokes a due-process

concern and raises the question whether the evidence is legally

sufficient to support the verdict as a matter of law. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); accord

State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216

N.E.3d 653, ¶ 13 (“[i]f the state fails to present sufficient

evidence on every element of an offense, then convicting a

defendant for that offense violates the defendant’s right to due

process of law”). When reviewing the sufficiency of the

evidence, our inquiry focuses primarily upon the adequacy of the

evidence; that is, whether the evidence, if believed, reasonably

could support a finding of guilt beyond a reasonable doubt.

Thompkins at syllabus. The essential question is whether, after

viewing the probative evidence and inferences reasonably drawn

therefrom in the light most favorable to the prosecution, any

rational trier of fact could have found all the essential

ATHENS, 22CA2

elements of the offense beyond a reasonable doubt. E.g.,

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574

N.E.2d 492 (1991).

{¶33} Furthermore, a reviewing court is not to assess

“whether the state’s evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a

conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook, J.,

concurring); accord State v. Richardson, 150 Ohio St.3d 554,

2016-Ohio-8448, 84 N.E.3d 993, ¶ 13. Instead, the factfinder’s

role is to “resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to

ultimate facts.” Jackson, 443 U.S. at 319; accord State v.

Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16.

{¶34} Thus, when reviewing a sufficiency of the evidence

claim, an appellate court must construe the evidence in a light

most favorable to the prosecution. E.g., State v. Hill, 75 Ohio

St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio

St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will

not overturn a conviction on a sufficiency of the evidence claim

unless reasonable minds could not reach the conclusion that the

trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162,

749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,

ATHENS, 22CA2

739 N.E.2d 749 (2001). Furthermore, “[w]hether the evidence is

legally sufficient to sustain a verdict is a question of law”

that appellate courts review de novo. In re J.V., 134 Ohio

St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 3; accord Thompkins,

78 Ohio St.3d at 386.

{¶35} R.C. 2903.04(A) sets forth the offense of involuntary

manslaughter: “No person shall cause the death of another * * *

as a proximate result of the offender’s committing or attempting

to commit a felony.” R.C. 2903.04(A).

{¶36} In the case sub judice, the state alleged that E.S.’s

death was a proximate result of appellant’s committing, or

attempting to commit, the felony offense of endangering

children, in violation of R.C. 2919.22(A) which provides:

(A) No person, who is the parent, guardian,

custodian, person having custody or control, or person

in loco parentis of a child under eighteen years of age

or a child with a mental or physical disability under

twenty-one years of age, shall create a substantial risk

to the health or safety of the child, by violating a

duty of care, protection, or support.

R.C. 2919.22(A).

{¶37} Here, appellant did not present any argument focused

around the elements contained in the endangering children

statute. Instead, at the end of the argument in his first

assignment of error appellant summarily asserts that he “did not

ATHENS, 22CA2

commit a felony offense by leaving his gun cabinet unlocked.”

Because appellant did not present an argument centered upon the

elements contained in the endangering children statute, we

should not create one. Rather, we simply note that the state

presented more than adequate evidence to demonstrate that

appellant created a substantial risk to the health or safety of

E.S. (and appellant’s two sons) by violating a duty of care,

protection, or support by failing to ensure that the children

did not have access to the loaded guns stored in his home, or by

failing to properly supervise the children to ensure that they

did not access the loaded weapons. Instead, appellant’s

argument within his first assignment of error focuses upon

whether sufficient evidence demonstrates that E.S.’s death was a

proximate result of appellant committing the felony offense of

endangering children.

{¶38} Under well-established criminal law principles,

causation consists of both actual cause and proximate cause.2

Both appellant and the state assert that proving the

“proximate result” standard in the involuntary manslaughter

statute is equivalent to “proximate cause” and requires the

state to establish both causation and foreseeability.

The Ohio Supreme Court has equated “proximate result” in

the involuntary manslaughter statute with “proximate cause.”

State v. Crawford, 169 Ohio St.3d 25, 2022-Ohio-1509, 201 N.E.3d

840, ¶ 15, citing State v. Carpenter, 2019-Ohio-58, 128 N.E.3d

857, ¶ 51 (3d Dist.), and State v. Owens, 162 Ohio St.3d 596,

2020-Ohio-4616, 166 N.E.3d 1142, ¶ 9. In Crawford, the court

stated that R.C. 2903.04(A) “requires two things for an

ATHENS, 22CA2

State v. Carpenter, 2019-Ohio-58, 128 N.E.3d 857, ¶ 51 (3d

Dist.), citing Burrage v. United States, 571 U.S. 204, 210, 134

S.Ct. 881, 187 L.Ed.2d 715 (2014) (“[w]hen a crime requires ‘not

merely conduct but also a specified result of conduct,’ a

defendant generally may not be convicted unless his conduct is

involuntary manslaughter conviction: (1) that a felony was

committed, and (2) that a person’s death was a proximate result

of the commission of that felony.” Id. at ¶ 14. Respecting

proximate cause, the court announced that “the ‘basic question

that a proximate cause requirement presents’” is “‘“whether the

harm alleged has a sufficiently close connection to the conduct”

at issue.’” Id. at ¶ 16, quoting Robers v. United States, 572

U.S. 639, 645, 134 S.Ct. 1854, 188 L.Ed.2d 885 (2014), quoting

Lexmark Internatl., Inc. v. Static Control Components, Inc., 572

U.S. 118, 133, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). The

court further emphasized that “[t]he foreseeable harm is what

matters for proximate cause.” Id., citing Johnson v. Univ.

Hosps. of Cleveland, 44 Ohio St.3d 49, 57, 540 N.E.2d 1370

(1989).

It is unclear whether the Crawford court intended to

overrule Ohio appellate decisions stating that the involuntary

manslaughter statute requires both actual cause and proximate

cause. E.g., Carpenter at ¶ 51; State v. Hall, 12th Dist.

Preble No. CA2015-11-022, 2017-Ohio-879, ¶ 71; State v. Gibson,

8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, ¶ 36. The court

appears, however, to have limited its decision to the specific

predicate offense involved in that appeal (having a weapon while

under a disability) and considered a pure question of law.

Crawford at ¶ 17. Moreover, the court noted that the defendant

conceded the proximate-cause issue. Id.

Additionally, neither the state nor appellant has argued

that proximate cause involves only a foreseeability inquiry.

Also, the Ohio Supreme Court issued Crawford a few months after

appellant’s trial concluded. Thus, we will consider the issue

as the parties have presented it. But see Bacon, State v.

Crawford 2022-Ohio-1509, 49 Ohio N.U.L.Rev. 489, 501 (2023)

(“[t]he court’s holding in Crawford has diluted foundational

elements of criminal law and culpability”).

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‘both (1) the actual cause, and (2) the “legal” cause (often

called the “proximate cause”) of the result.’”), quoting 1 Wayne

R. LaFave, Substantive Criminal Law, Section 6.4(a), at 464-466

(2d Ed.2003); State v. Lovelace, 137 Ohio App.3d 206, 216, 738

N.E.2d 418 (1st Dist.1999); Baldwin’s Oh. Prac. Crim. L.,

Section 96:1 (3d ed.) (“[t]here are two requirements for

criminal culpability: (1) factual causation and (2) legal

(proximate) causation”).

{¶39} Additionally, Ohio appellate courts routinely state

that “[t]he term ‘proximate result’ in the involuntary

manslaughter statute involves two concepts: causation and

foreseeability.” State v. Hall, 12th Dist. Preble No. CA2015-

11-022, 2017-Ohio-879, ¶ 71; e.g., State v. Williams, 7th Dist.

Columbiana No. 19 CO 0010, 2020-Ohio-4430, ¶ 35 (“Ohio courts

regularly conclude the ‘proximate result’ language in the

involuntary manslaughter statute requires the state to show: (1)

actual cause, generally through the but-for test; and then, (2)

legal cause, through the foreseeability test”).

{¶40} In general, to “cause” another person’s death means to

commit “an act or failure to act which in a natural and

continuous sequence directly produces the death of a person, and

without which, it would not have occurred.” State v. Price, 162

ATHENS, 22CA2

Ohio St.3d 609, 2020-Ohio-4926, 166 N.E.3d 1155, ¶ 33.

Moreover, “[c]onduct is the cause of a result if it is an event,

but for which the result in question would not have occurred.”

Id. Taken together, these two principles mean that a homicide

defendant’s conduct ordinarily must be “the but-for cause of”

the person’s death. Id.

{¶41} When, however, one or more causes contribute to a

person’s death, the existence of other causes does not negate

the defendant’s conduct so long as the defendant’s “act or

failure to act was one cause.” Id. at ¶ 34. In these

circumstances, the defendant’s “act or omission can be

considered a cause in fact if it was a ‘substantial’ or

‘contributing’ factor in producing the result.” Carpenter at ¶

52 (citations omitted). In other words, “[t]here is no but-for

cause of harm when independently sufficient causes of that harm

coincide.” Price at ¶ 29. Thus, “a defendant can still be held

criminally responsible where the defendant’s conduct combined

with other occurrences to jointly result in a legal injury.”

Hall at ¶ 72; accord State v. Motley, 2023-Ohio-1811, 216 N.E.3d

761, ¶ 25 (8th Dist.), quoting State v. Flanek, 8th Dist.

Cuyahoga No. 63308, 1993 WL 335601, *7 (Sept. 2, 1993) (“‘[a]

defendant cannot be relieved of criminal liability merely

because factors other than his acts contributed to the death’”);

ATHENS, 22CA2

State v. Dunham, 5th Dist. Richland No. 13CA26, 2014-Ohio-1042,

¶ 48 (cause in fact may be established by proof “that the

conduct is a substantial factor in bringing about the injury”).

{¶42} In the case sub judice, we agree with the state that

appellant’s conduct constituted a substantial or contributing

factor in bringing about E.S.’s death. Appellant left his gun

cabinet unlocked with loaded weapons inside. Appellant left his

two sons and E.S. largely unsupervised during the evening

without ensuring that they would be unable to access loaded

weapons in the gun cabinet. Instead, appellant chose to remain

in his bedroom throughout the evening, but did exit one time to

ask the children to stop making noise. Had appellant kept watch

of the children, or had he locked his gun cabinet and ensured

the children did not have access to loaded weapons, M.P. could

not have retrieved the loaded gun that ended with a fatal

tragedy. Thus, appellant’s conduct was a substantial factor in

causing E.S.’s death. See Hall at ¶ 74 (concluding that

mother’s decision to leave her children home alone was a

substantial factor in causing the children’s death from house

fire; if mother had been home rather than out all night, she may

have been able to protect the children).

{¶43} Consequently, after our review we believe that the

state presented sufficient evidence to show that appellant’s

ATHENS, 22CA2

conduct, or his failure to act, constituted a cause of E.S.’s

death.

{¶44} We further believe that the record contains sufficient

evidence to establish that appellant’s conduct, or failure to

act, was a proximate cause of E.S’s death. “[T]he ‘basic

question that a proximate cause requirement presents’” is

“‘“whether the harm alleged has a sufficiently close connection

to the conduct” at issue.’” Crawford, supra, at ¶ 16, quoting

Robers, 572 U.S. at 645, quoting Lexmark, 572 U.S. at 133. “The

foreseeable harm is what matters for proximate cause.” Id.,

citing Johnson, 44 Ohio St.3d at 57; accord State v. Bacon, 6th

Dist. Lucas No. L-14-1112, 2016-Ohio-618, ¶ 83 (“Proximate cause

has been defined as ‘“a direct, natural, reasonably foreseeable

consequence, as opposed to an extraordinary or surprising

consequence, when viewed in the light of ordinary

experience.”’”), quoting State v. Burt, 8th Dist. Cuyahoga No.

99097, 2013-Ohio-3525, ¶ 23, quoting State v. Muntaser, 8th

Dist. Cuyahoga No. 81915, 2003-Ohio-5809, ¶ 26-27. Thus, a

defendant is “responsible for consequences which are direct,

normal, and reasonably inevitable - as opposed to extraordinary

or surprising - when viewed in the light of ordinary

experience.” State v. Losey, 23 Ohio App.3d 93, 95 (10th

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Dist.1985). A “‘defendant will be held responsible for those

foreseeable consequences which are known to be, or should be

known to be, within the scope of the risk created by his

conduct.’” Id., citing State v. Chambers, 53 Ohio App.2d 266,

373 N.E.2d 393 (9th Dist.1977); accord Carpenter at ¶ 53; State

v. Sabo, 3d Dist. Union No. 14-09-33, 2010-Ohio-1261, ¶ 25;

Baldwin’s Oh. Prac. Crim. L., Section 95:12 (3d ed.) (“where a

person sets in motion a sequence of events, the foreseeable

consequences of which were known or should have been known at

the time, the person is criminally liable for the direct and

reasonably inevitable consequence of death resulting from the

original criminal act”).

{¶45} “A requirement of proximate cause thus serves, inter

alia, to preclude liability in situations where the causal link

between conduct and result is so attenuated that the consequence

is more aptly described as mere fortuity.” Paroline v. United

States, 572 U.S. 434, 444–45, 134 S.Ct. 1710, 188 L.Ed.2d 714

(2014), citing Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830,

838–839, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996). “Even

intervening criminal conduct does not prevent an offender’s

actions from being the proximate cause so long as that

intervening conduct was foreseeable.” State v. Osman, 4th Dist.

Athens No. 09CA36, 2011-Ohio-4626, ¶ 48, citing Lovelace, 137

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Ohio App.3d at 218–19 (police officer’s criminal conduct during

a high-speed chase, which directly caused a motorist’s death,

was foreseeable, and, therefore, defendant could be held

criminally liable for proximately causing the motorist’s death).

{¶46} Additionally, “‘for something to be foreseeable does

not mean that it be actually envisioned.’” State v. Wells, 12th

Dist. Warren No. CA2016-02-009, 2017-Ohio-420, ¶ 35, quoting

Lovelace, 137 Ohio App.3d at 219. As the Losey court explained:

It is not necessary that the accused be in a

position to foresee the precise consequence of his

conduct; only that the consequence be foreseeable in the

sense that what actually transpired was natural and

logical in that it was within the scope of the risk

created by his conduct.

Losey, 23 Ohio App.3d at 96.

{¶47} In the case sub judice, even if appellant did not

actually envision that M.P. would remove a loaded gun from the

gun cabinet and shoot E.S., this result nonetheless is not so

outside the realm of possibility that it could be viewed as an

unforeseeable consequence of appellant leaving loaded weapons in

an unlocked gun cabinet while leaving three adolescent boys,

with obvious curiosity about weapons, largely unsupervised

throughout the evening. Consequently, we believe that the state

presented sufficient evidence to allow a reasonable factfinder

to conclude that E.S.’s death was a foreseeable risk of

appellant’s act or failure to act. See generally State v. Vogt,

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4th Dist. Washington No. 17CA17, 2018-Ohio-4457, ¶ 98 (even

though death resulted from “the effects of taking multiple

drugs” and experts could not “pinpoint which exact drug caused

[the victim’s] death, * * * a fatal consequence was within the

foreseeable scope of risk created by [the defendant’s] conduct

in administering the liquid methadone when there was ample

evidence regarding [the victim’s] inebriated condition, the fact

that he and [the defendant] had taken other substances together

that night, and the fact that [the defendant] had even warned

[the victim] about using the liquid methadone”).

{¶48} Indubitably, E.S.’s death was a horrific accident.

However, we nevertheless believe that the state presented

sufficient evidence to establish, beyond a reasonable doubt,

that appellant’s actions caused E.S.’s death as a proximate

result of committing the offense of endangering children.

Proper precautions and the exercise of common sense would have

prevented E.S.’s death.

{¶49} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

{¶50} In his second assignment of error, appellant asserts

that the trial court plainly erred by allowing the state to

introduce irrelevant and highly prejudicial evidence. Appellant

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contends that the trial court plainly erred by failing to

exclude the following evidence: (1) “[t]he video of [L.P.]

repeatedly encouraging [E.S.] to kill himself”; (2) “[t]estimony

about the smell of marijuana at the house”; (3) “[t]estimony

about [M.P.] vaping underage and making comments about dabs – a

THC compound that can be used to get high”; (4) “[t]estimony and

exhibits of additional inoperable weapons that were kept in

[M.P.’s] and [L.P.’s] rooms”; (5) “[t]estimony about

[appellant’s] marijuana use and his previous opiate addiction”;

and (6) “[o]pinion testimony from Chief Fitch.”3 Appellant

argues that this evidence was irrelevant to proving a fact in

issue.

{¶51} Appellant contends that the two actions of consequence

involved (1) M.P. taking a gun from the gun cabinet and

accidentally shooting E.S., and (2) whether appellant left the

gun loaded and unsecured in the gun cabinet. Appellant argues

that none of the foregoing evidence is relevant to show the

existence of either fact and the danger of unfair prejudice

substantially outweighed any probative value.

Although appellant cited to the parts of the record to

support this and other assignments of error, as App.R. 16(A)(7)

requires, those page references do not match the page numbers in

the transcripts provided to this court. Nonetheless, this court

has endeavored to review the entire record and appellant’s

assignments of error.

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{¶52} The state argues that appellant failed to object to

the testimony, and he even introduced some of it through his own

testimony. The state further contends that the evidence “was

cumulative in proving that [a]ppellant violated a duty of care

when he permitted E.S. to spend the night at his home with his

children.” The state also asserts that the evidence was

material to prove the endangering children offense:

Evidence of whether Appellant’s child is

repeatedly telling another to kill himself, smoking

illegal narcotics in the home – including Appellant

previously using narcotics while owning a firearm –

and the existence of multiple other weapons readily

accessible, are relevant in whether or not Appellant

had violated a duty of care or protection by creating

a substantial risk to the health or safety of not only

his own children, but one that he accepted care for

that night.

The state also contends that the evidence was not unduly

prejudicial. Instead, the state argues that the evidence helped

tell the story of the day and “what led to M.P. obtaining the

loaded firearm from the unlocked gun cabinet.” Moreover, the

state asserts that the evidence helped to establish that

appellant violated the standard of care through his lack of

control over the children’s activities: “But for Appellant’s

lack of care, his loaded firearm would not have been retrieved

by his fourteen-year-old son from an unlocked gun cabinet and

E.S. might still be alive today.”

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{¶53} We initially observe that appellant did not object at

trial to any of this evidence. A well-established principle is

that appellate courts ordinarily will not consider any error

that a complaining party “could have called but did not call to

the trial court’s attention at a time when such error could have

been avoided or corrected by the trial court.” State v. Childs,

14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the

syllabus. Appellate courts, nevertheless, have discretion to

consider “[p]lain errors or defects affecting substantial

rights.” Crim.R. 52(B); e.g., Risner v. Ohio Dept. of Natural

Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-

3731, 42 N.E.3d 718, ¶ 27. “To prevail under the plain-error

standard, a defendant must show that an error occurred, that it

was obvious, and that it affected his substantial rights,” i.e.,

the trial court’s error must have affected the outcome of the

trial. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594,

63 N.E.3d 93, ¶ 62, citing State v. Barnes, 94 Ohio St.3d 21,

27, 2002-Ohio-68, 759 N.E.2d 1240. However, even when a

defendant demonstrates that a plain error or defect affected his

substantial rights, the Ohio Supreme Court has “admonish[ed]

courts to notice plain error ‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest

miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21,

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27, 2002-Ohio-68, 759 N.E.2d 1240, quoting State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.

{¶54} In the case at bar, after our review we do not believe

that the trial court plainly erred by allowing the evidence to

be admitted at trial. Additionally, even if, for purposes of

argument, we agreed that the trial court plainly erred, we do

not believe that a manifest miscarriage of justice occurred.

{¶55} Evid.R. 401 defines relevant evidence as “evidence

having 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.” Under

Evid.R. 402, “[a]ll relevant evidence is admissible, except as

otherwise provided.” A trial court must, however, exclude

relevant evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of

the issues, or of misleading the jury.” Evid.R. 403. A trial

court has broad discretion to determine whether to exclude

evidence under Evid.R. 403(A), and “‘an appellate court should

not interfere absent a clear abuse of that discretion.’” State

v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216,

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¶ 40, quoting State v. Allen, 73 Ohio St.3d 626, 633, 653 N.E.2d

675 (1995).

{¶56} Evid.R. 403(A) “manifests a definite bias in favor of

the admission of relevant evidence, as the dangers associated

with the potentially inflammatory nature of the evidence must

substantially outweigh its probative value before the court

should reject its admission.” State v. White, 4th Dist. Scioto

No. 03CA2926, 2004-Ohio-6005, ¶ 50. Thus, “[w]hen determining

whether the relevance of evidence is outweighed by its

prejudicial effects, the evidence is viewed in a light most

favorable to the proponent, maximizing its probative value and

minimizing any prejudicial effect to the party opposing

admission.” State v. Lakes, 2nd Dist. Montgomery No. 21490,

2007-Ohio-325, ¶ 22.

{¶57} We also recognize that, to some degree, all relevant

evidence may be prejudicial in the sense that it “tends to

disprove a party’s rendition of the facts” and, thus,

“necessarily harms that party’s case.” State v. Crotts, 104

Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. Evid.R.

403(A) does not, however, “attempt to bar all prejudicial

evidence.” Id. Instead, the rules provide that only unfairly

prejudicial evidence is excludable. Id. “‘Evid.R. 403(A)

speaks in terms of unfair prejudice. Logically, all evidence

ATHENS, 22CA2

presented by a prosecutor is prejudicial, but not all evidence

unfairly prejudices a defendant. It is only the latter that

Evid.R. 403 prohibits.’” State v. Skatzes, 104 Ohio St.3d 195,

2004-Ohio-6391, 819 N.E.2d 215, ¶ 107, quoting State v. Wright,

48 Ohio St.3d 5, 8, 548 N.E.2d 923 (1990).

{¶58} Thus, unfair prejudice “does not mean the damage to

the defendant’s case that results from the legitimate probative

force of the evidence.” United States v. Mendez-Ortiz, 810 F.2d

76, 79 (6th Cir.1986); accord State v. Lang, 129 Ohio St.3d 512,

2011-Ohio-4215, 954 N.E.2d 596, ¶ 89. Instead, unfairly

prejudicial evidence is evidence that “might result in an

improper basis for a jury decision.” Oberlin v. Akron Gen. Med.

Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001), quoting

Weissenberger’s Ohio Evidence (2000) 85–87, Section 403.3.

Unfairly prejudicial evidence arouses the jury’s emotions,

“‘evokes a sense of horror,’” or “‘appeals to an instinct to

punish.’” Id., quoting Weissenberger. “‘Usually, although not

always, unfairly prejudicial evidence appeals to the jury’s

emotions rather than intellect.’” Id., quoting Weissenberger

Thus, “[u]nfavorable evidence is not equivalent to unfairly

prejudicial evidence.” State v. Bowman, 144 Ohio App.3d 179,

185, 759 N.E.2d 856 (12th Dist.2001).

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{¶59} In the case at bar, we do not believe that the trial

court plainly erred by failing to exclude the evidence as

irrelevant. Instead, we agree with the state that some of the

evidence helped establish that appellant violated a duty of care

or protection by creating a substantial risk to the health or

safety of the children.

{¶60} The video of L.P. encouraging E.S. to kill himself

helped to establish that appellant was unaware of the events

that unfolded in his home and did not maintain proper oversight

of the boys. It also helped the state establish a time line of

the events. See generally State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 72 (evidence regarding lack of

parenting “provided the context for the alleged crimes”); State

v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215,

¶ 113 (background information admissible “to make the actions of

the participants understandable to the jurors” and observing

that crimes do not occur “in a vacuum”).

{¶61} The testimony regarding the smell of marijuana also

tended to establish that someone inside the home may have been

smoking marijuana the night of the accident. Evidence that

someone may have smoked marijuana suggested either that (1)

appellant smoked marijuana, which would suggest that he did not

maintain sobriety while in charge of the three boys, or (2) one

ATHENS, 22CA2

of the boys smoked marijuana, which would tend to show that

appellant did not maintain proper oversight over them.4

{¶62} Moreover, on direct examination defense counsel asked

appellant about the officer’s testimony regarding the smell of

marijuana. Appellant denied that anyone had smoked marijuana in

the home that night and stated that he does not know why one

officer thought that the home smelled of marijuana.

{¶63} The evidence that depicted M.P. vaping, and the

testimony regarding “dabs,” also formed part of the immediate

background of the events of the evening. Diar at ¶ 72; Skatzes

at ¶ 113. Additionally, during defense counsel’s direct

examination of appellant, counsel asked about M.P.’s text

message referring to “dabs.” Appellant stated that M.P. likely

was “joking around” and M.P. does not smoke marijuana.

{¶64} The testimony about the boys’ weapons and the

photographs that showed swords and other weapons in the boys’

bedroom likewise formed part of the immediate background of the

crime. The crime-scene photographs depicted the bedroom where

the shooting occurred and the other bedroom where the boys had

The record reveals that appellant had allowed a homeless

person to sleep on his couch on the night of the accident. No

one has suggested that this homeless person may have smoked

marijuana, however.

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spent part of the evening. See State v. Jackson, 107 Ohio St.3d

53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 85 (photos relevant

because “helped explain the testimony of police officers who * *

* processed the crime scene”); State v. Graham, 8th Dist.

Cuyahoga No. 109582, 2021-Ohio-3199, ¶ 40, citing State v.

Jalowiec, 91 Ohio St. 3d 220, 230, 744 N.E.2d 163 (2001) (“Ohio

courts have found that photographs may be used for a wide

variety of purposes, including corroborating witness testimony,

establishing the intent of the accused, and showing the nature

and circumstances of the crime”).

{¶65} Furthermore, during his direct examination appellant

discussed the weapons shown in the photographs and explained

about the inoperable guns and dull swords. Appellant stated

that M.P. once had a sharp sword, but appellant took it away.

{¶66} We also do not believe that testimony about

appellant’s previous opiate addiction, while of questionable

relevance to the involuntary manslaughter charge, affected the

jury’s decision. No evidence adduced at trial indicated that

appellant had an on-going drug addiction issue.

{¶67} Chief Fitch offered testimony to explain how he stores

weapons in his home and this helped to establish whether

appellant breached a duty of care or protection by his failure

to ensure that the children did not have access to weapons. The

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chief’s testimony gave the jury information regarding best

practices to store weapons to minimize the likelihood that

curious children could access the weapons. While we recognize

that Ohio law does not require gun owners to store weapons in

any particular manner, the chief’s testimony helped the jury to

understand how a parent could store weapons in order to reduce

the risk that a curious child could find a weapon and cause an

accident.

{¶68} Appellant nevertheless contends that, even if the

evidence was relevant, such evidence was unfairly prejudicial

and confused the jury. Appellant asserts that the video of L.P.

telling E.S. to kill himself “only hours before” E.S.’s death

was “morbid, evoke[d] a sense of horror, and serve[d] only to

inflame the passions of the jury.” As we stated above, however,

the video helped to establish that appellant was unaware of the

boys’ activities throughout the evening, and it also formed part

of the background of the crime and helped to establish a time

line of the fatal shooting. The video, filmed only a few

moments before M.P. shot E.S., did not serve only to evoke a

sense of horror or to inflame the jury’s passions.

{¶69} Appellant additionally alleges that evidence regarding

marijuana, vaping, and appellant’s former opiate addiction

confused the jury. He points out that during certain witnesses’

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testimony the jury asked questions about marijuana and dabs.

Appellant suggests that this questioning shows that the evidence

confused the jury. While we do not speculate why the jury asked

questions about the smell of marijuana or dabs, we do not

believe that the record supports a conclusion that the evidence

confused the jury. Instead, the record reflects that the jury

carefully deliberated the case. During deliberations, the jury

requested to see various pieces of physical evidence, none of

which related to marijuana, vaping, or appellant’s former opiate

addictions. The jury also sought clarification regarding the

meaning of “cause” and “the length of time that continu[ous]

sequence begins.” The court advised the jury to consult the

court’s original instructions.

{¶70} Additionally, the jury later advised the court that it

reached a decision regarding one count and “spent many hours

deliberating the second without being able to make a

conclusion.” The court indicated that it would instruct “the

bailiff or [his] staff to let [the jury] know to continue

deliberating.” The jury later returned its verdict. Thus, the

record of the jury’s deliberations shows that the jury

diligently considered the matter before it reached a verdict and

refutes appellant’s argument about jury confusion.

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{¶71} Appellant also argues that this drug-related evidence

allowed the state to portray appellant and M.P. “as criminal

drug users and invite[d] the jury to view them as such.” He

further contends that “evidence regarding the purely speculative

possibility that [appellant] was under the influence of drugs”

on the night of the accident “was more prejudicial than

probative.” As we noted earlier, however, evidence that

appellant or M.P. (or one of the other boys) may have smoked

marijuana on the night of the accident was relevant to show that

appellant did not properly supervise the boys. We do not

believe that the probative value of this evidence was

substantially outweighed by its prejudicial effect. See

Yarbrough at ¶ 40 (“the exclusion of relevant evidence under

Evid.R. 403(A) is even more of a judgment call than determining

whether the evidence has logical relevance in the first place”).

{¶72} Appellant further claims that the state used the

challenged evidence “to assert an absentee parent theory” when

it, instead, “needed to prove access to the gun violated the

standard of care.” We observe, however, that the endangering-

children statute required the state to establish that appellant

created “a substantial risk to the health or safety of the

child, by violating a duty of care, protection, or support.”

R.C. 2919.22(A). This statute required the state to demonstrate

ATHENS, 22CA2

that appellant created a substantial risk to E.S.’s health or

safety by violating a duty of care, protection, or support. It

did not necessarily require the state “to prove access to the

gun violated the standard of care.” Instead, the statute

required the state to prove that appellant violated “a duty of

care, protection, or support.” The evidence the state

introduced helped to illustrate that appellant violated a duty

of care or protection by failing (1) to maintain proper

oversight over the children throughout the night of the fatal

accident, or (2) to ensure that the weapons were inaccessible

and unloaded while three weapons-curious boys spent the night in

his home. In sum, we do not believe that the trial court

plainly erred by admitting the above evidence.

{¶73} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶74} In his third assignment of error, appellant asserts

that the trial court plainly erred by allowing Chief Fitch to

give expert-opinion testimony. In particular, he contends that

the chief “testified to standards for firearm handling and

safety – something within the purview of an expert.” Appellant

thus alleges that the state should have complied with Crim.R.

ATHENS, 22CA2

16(K) and the trial court should have excluded Fitch’s

testimony.

{¶75} The state contends that it did not ask Chief Fitch

questions as an expert witness, but rather as a lay witness.

The state additionally asserts that defense counsel not only

failed to object to the chief’s testimony, but also during

cross-examination asked the chief questions about gun safety.

The state observes that appellant used the chief’s testimony to

help argue that appellant did not commit a crime by failing to

securely store his weapons. As the state also notes, appellant

did not object to Chief Fitch’s testimony. Thus, we review this

assignment of error for plain error.

{¶76} Evid.R. 701 governs the admissibility of non-expert

opinion testimony. The rule provides:

If the witness is not testifying as an expert, the

witness’ testimony in the form of opinions or inferences

is limited to those opinions or inferences which are (1)

rationally based on the perception of the witness and

(2) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.

Evid.R. 701.

{¶77} Evid.R. 702 sets forth the requirements for expert

testimony and provides:

A witness may testify as an expert if all of the

following apply:

(A) The witness’ testimony either relates to

matters beyond the knowledge or experience possessed by

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lay persons or dispels a misconception common among lay

persons;

(B) The witness is qualified as an expert by

specialized knowledge, skill, experience, training, or

education regarding the subject matter of the testimony;

scientific, technical, or other specialized information.

To the extent that the testimony reports the result of

a procedure, test, or experiment, the testimony is

reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or

experiment is based is objectively verifiable or is

validly derived from widely accepted knowledge, facts,

or principles;

(2) The design of the procedure, test, or

experiment reliably implements the theory;

(3) The particular procedure, test, or experiment

was conducted in a way that will yield an accurate

result.

{¶78} In State v. McKee, the Ohio Supreme Court explained

“[t]he distinction between lay and expert witness opinion

testimony” as follows: “lay testimony ‘results from a process of

reasoning familiar in everyday life,’ while expert testimony

‘results from a process of reasoning which can be mastered only

by specialists in the field.’” State v. McKee, 91 Ohio St.3d

292, 297, fn.2, 744 N.E.2d 737 (2001), quoting State v. Brown,

836 S.W.2d 530, 549 (Tenn.1992); accord State v. Lavender, 1st

Dist. Hamilton No. C-180003, 2019-Ohio-5352, 141 N.E.3d 1000, ¶

95.

{¶79} In the case at bar, we do not believe that Chief

Fitch’s testimony constituted expert testimony. His testimony

did not result “‘from a process of reasoning which can be

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mastered only by specialists in the field.’” McKee, 91 Ohio

St.3d at 297, fn.2. Moreover, the chief’s testimony did not

relate “to matters beyond the knowledge or experience possessed

by lay persons or dispels a misconception common among lay

persons.” Id. Instead, the chief’s testimony resulted from a

reasoning process familiar in everyday life as a law enforcement

officer and gun owner.

{¶80} Moreover, Ohio courts generally agree that a law

enforcement officer may offer lay testimony “concerning matters

that are within [the officer’s] experience and observations” if

otherwise admissible under Evid.R. 701. State v. Jones, 2015-

Ohio-4116, 43 N.E.3d 833, ¶ 108 (2nd Dist.), quoting State v.

Tatum, 10th Dist. Franklin No. 10AP–626, 2011-Ohio-907, ¶ 17;

e.g., Lavender at ¶ 110 (officer could offer lay testimony

regarding “whether a particular picture contained an image of a

revolver”); State v. Blair, 2016-Ohio-2872, 63 N.E.3d 798, ¶ 87-

88, 96 (4th Dist.) (two officers’ testimony that an individual

did not have physical ability to beat the victim to death or

inflict the type of wounds that would have been consistent with

a fatal beating admissible as lay testimony); Tatum at ¶ 14

(officer’s testimony that bullets fired into a victim’s car

originated from a large-caliber firearm admissible as lay

testimony); State v. Parker, 2d Dist. Montgomery No. 18926,

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2002-Ohio-3920, ¶ 53 (detective permitted to testify that two

wounds on defendant consistent with gunshot wounds).

{¶81} Additionally, as we stated in State v. Carver, 4th

Dist. Scioto No. 21CA3943, 2022-Ohio-3223, ¶ 56:

“lay witness opinion testimony is not prohibited ‘merely

because it embraces the ultimate issue to be decided by

the trier of fact.’” State v. Infante, 11th Dist.

Trumbull No. 2019-T-0043, 2020-Ohio-992, at ¶ 42,

quoting State v. Heilman, 11th Dist. Trumbull Nos. 2004-

T-0133, 2004-T-0135, 2006-Ohio-1680, ¶ 96, citing

Evid.R. 704. “[T]he critical point is whether the

opinion of the lay witness will truly be helpful to the

jury * * *.” State v. O’Brien, 11th Dist. Lake No. 2011-

L-011, 2013-Ohio-13, ¶ 45.

{¶82} In the case before us, we do not believe that the

trial court plainly erred by permitting Chief Fitch to testify

about his gun-safety or gun-storage practices. Instead, Fitch’s

testimony was (1) rationally based on his perception, and (2)

helpful to a clear understanding of whether leaving loaded

weapons in an unlocked gun cabinet created a substantial risk of

harm to the three children spending the night in appellant’s

home.5 We therefore do not agree with appellant that the state

should have qualified the chief as an expert witness or that the

We also note that information readily available on the

National Rifle Association’s website supports the view that the

chief’s testimony did not relate to matters beyond a lay

person’s understanding, and it contains a common-sense notion:

“Store guns so they are not accessible to unauthorized persons,

especially children.” https://eddieeagle.nra.org/parents.

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trial court plainly erred by allowing the testimony into

evidence.

{¶83} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error.

{¶84} In his fourth assignment of error, appellant asserts

that trial counsel did not provide effective assistance of

counsel. In particular, appellant claims that trial counsel

failed to object to irrelevant and prejudicial evidence,

including questions asked to establish that M.P, L.P., and

appellant “were irresponsible.” More specifically, appellant

claims that trial counsel was ineffective for failing to object

to questions that the prosecution asked L.P. regarding: (1) the

swords in L.P.’s room; (2) “when and why [L.P.] got in trouble

with ‘other weapons’ and when he hit his brother with a stick

once”; (3) “a recording [of] a video of [M.P.] vaping”; (4) “the

firearm and BB gun in [L.P.]’s room”; (5) “when and why and how

he and [E.S.] lit [M.P.] on fire”; (6) “when and why he used

throwing stars in the house”; and (7) “when and why he took a

picture with a BB gun in his mouth.”

{¶85} Appellant further asserts that trial counsel was

ineffective for failing to object to questions that the

prosecution asked M.P. regarding: (1) “when and how much he

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vaped”; (2) “whether he knew he was not old enough to vape”; (3)

“a broken gun and a BB gun in his room”; (4) “when and how he

was lit on fire by [E.S.] and [L.P.]”; (5) “[L.P.] and [E.S]

snort chocolate milk powder”; (6) “using ‘dabs,’ what ‘dabs’

means, and whether you can get high from it”; and (7) “whether a

video depicted him vaping.”

{¶86} Appellant additionally contends that trial counsel was

ineffective for the failure to object to questions that the

prosecution asked Alexis Gogel regarding: (1) “messages from

[appellant] that a gun in the house belonged to [M.P.]”; (2)

“messages from [appellant] saying ‘No one is dead yet. You know

with my two boys it’s possible”; (3) “messages about [L.P.]

hitting [M.P.] with a stick and then swinging swords at him, and

[M.P.] slapping [L.P.] back”; (4) “photos of [L.P.] with a BB

gun in his mouth”; (5) “messages from [M,P.] stating [L.P.] and

[E.S.] lit him on fire and snorted chocolate milk powder”; (6)

“messages from [M.P.] about him vaping and using dabs”; (7) a

video of [L.P.] repeatedly telling [E.S.] to kill himself”; and

(8) a video of [M.P.] vaping in the house.”

{¶87} Appellant further contends that trial counsel was

ineffective for the failure to object to questions the

prosecution asked Chief Fitch. Appellant claims the following

questions “were irrelevant and unduly prejudicial”: (1) “how

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and why he stores his own firearms in large safes in his

basement”; (2) “how his own son does not know the combination to

his gun safes”; (3) “how his son took the Ohio Hunter’s Safety

Course”; (4) “where he keeps his firearms for use in home

defense and that placement by the front door wouldn’t make any

sense”; (5) “how much firearm safety education is adequate”; (6)

“[appellant] leaving a loaded firearm for his son to access”;

(7) “how the safes he uses are appropriate for gun storage while

the cabinet used by [appellant] was not secure”; (8) “which gun

of [appellant’s] would be adequate for home defense”; and (9)

“how having guns in a visible location is irresponsible.”

Appellant contends that Fitch “opined as to his feelings on how

[appellant] stored his firearms and insinuated [appellant’]s

children were not taught enough about firearm safety.”

Appellant alleges that Fitch’s “testimony was not helpful to the

jury in determining a fact in issue,” so defense counsel should

have objected.

{¶88} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance

of counsel for their defense. The United States Supreme Court

has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance”

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of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S.

263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (the Sixth

Amendment right to counsel means “that defendants are entitled

to be represented by an attorney who meets at least a minimal

standard of competence”).

{¶89} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) his counsel’s

performance was deficient and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154

Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶

85. “Failure to establish either element is fatal to the

claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-

Ohio-968, ¶ 14. Therefore, if one element is dispositive, a

court need not analyze both. State v. Madrigal, 87 Ohio St.3d

378, 389, 721 N.E.2d 52 (2000) (a defendant’s failure to satisfy

one of the ineffective-assistance-of-counsel elements “negates a

court’s need to consider the other”).

{¶90} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney

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performance remains simply reasonableness under prevailing

professional norms.’” Padilla v. Kentucky, 559 U.S. 356, 366,

130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466

U.S. at 688; accord Hinton, 571 U.S. at 273. Prevailing

professional norms dictate that “a lawyer must have ‘full

authority to manage the conduct of the trial.’” State v.

Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶

24, quoting Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct.

646, 98 L.Ed.2d 798 (1988).

{¶91} Furthermore, “‘[i]n any case presenting an

ineffectiveness claim, “the performance inquiry must be whether

counsel’s assistance was reasonable considering all the

circumstances.”’” Hinton, 571 U.S. at 273, quoting Strickland,

466 U.S. at 688. Accordingly, “[i]n order to show deficient

performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d

810, ¶ 95 (citations omitted).

{¶92} Moreover, when considering whether trial counsel’s

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. Thus, “the defendant must overcome

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the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id.

Additionally, “[a] properly licensed attorney is presumed to

execute his duties in an ethical and competent manner.” State

v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10,

citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel’s errors were “so

serious” that counsel failed to function “as the ‘counsel’

guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S.

at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153,

156, 524 N.E.2d 476 (1988).

{¶93} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine the outcome.’” Hinton, 571 U.S. at 275, quoting

Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph

three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component

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requires a “but for” analysis). “‘[T]he question is whether

there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’”

Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.

Furthermore, courts ordinarily may not simply presume the

existence of prejudice but, instead, must require a defendant to

affirmatively establish prejudice. State v. Clark, 4th Dist.

Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th

Dist. Ross No. 01CA2592, 2002 WL 507529 (Apr. 2, 2002); see

generally Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct.

1029, 145 L.Ed.2d 985 (2008) (prejudice may be presumed in

limited contexts, none of which are relevant here).

{¶94} We note that trial counsel’s “failure to make

objections is not alone enough to sustain a claim of ineffective

assistance of counsel.” State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 103; accord State v. Sowell,

148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 144

(rejecting argument that failing to preserve error is inherently

prejudicial and stating, “[i]t is not enough that an alleged

error resulted in a disadvantage for an accused”). Instead, a

defendant still must “show that any particular failure to object

substantially violated an[] essential duty [and] was

prejudicial.” State v. Fears, 86 Ohio St.3d 329, 347, 715

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N.E.2d 136 (1999); accord State v. Holloway, 38 Ohio St.3d 239,

244, 527 N.E.2d 831 (1988) (stating that failure to object

insufficient on its own to establish ineffective assistance of

counsel; instead, a defendant still must demonstrate that

counsel substantially violated an essential duty and that

counsel’s performance materially prejudiced the defense).

{¶95} Additionally, trial counsel’s decision to object, or

not to object, may be a legitimate trial strategy or tactical

decision for the reason that “‘each potentially objectionable

event could actually act to [the defendant]’s detriment.’”

State v. Johnson, 112 Ohio St.3d 210, 2006–Ohio–6404, 858 N.E.2d

1144, ¶ 140, quoting Lundgren v. Mitchell, 440 F.3d 754, 774

(C.A.6, 2006). Thus,

“any single failure to object usually cannot be said to

have been error unless the evidence sought is so

prejudicial * * * that failure to object essentially

defaults the case to the state. Otherwise, defense

counsel must so consistently fail to use objections,

despite numerous and clear reasons for doing so, that

counsel’s failure cannot reasonably have been said to

have been part of a trial strategy or tactical choice.”

Johnson at ¶ 140, quoting Lundgren, 440 F.3d at 774; cf. United

States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d

657 (1984) (describing the right to the effective assistance of

counsel as “the right of the accused to require the

prosecution’s case to survive the crucible of meaningful

adversarial testing”).

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{¶96} In the case at bar, we do not believe that any single

failure to object essentially defaulted the case to the state,

or that defense counsel consistently failed to use objections,

despite numerous and clear reasons for doing so, such that

counsel’s failure cannot reasonably have been said to have been

part of a trial strategy or tactical choice. First, as we noted

in our discussion of appellant’s second assignment of error,

some of the testimony that appellant now challenges was

relevant. Second, to the extent any of the other testimony

listed within this assignment of error could be viewed as not

relevant had trial counsel objected, the trial court would have

had discretion to admit the testimony.

{¶97} Furthermore, we do not believe that counsel’s failure

to object to any purportedly irrelevant evidence affected

appellant’s substantial rights. Without the purportedly

irrelevant evidence, the remaining evidence firmly establishes

that appellant caused E.S.’s death as a proximate result of

committing the offense of endangering children. Even if we

excised every piece of testimony appellant references within

this assignment of error, the remaining evidence establishes

that (1) appellant stored loaded guns in an unlocked gun cabinet

accessible to the children, (2) appellant knew his children and

E.S. had an interest in weapons, (3) according to L.P.’s

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testimony, on the date of the fatal accident appellant had shown

the three boys a “pistol,” and (4) appellant spent most of the

night of the fatal accident in his bedroom. Thus, appellant

generally was unaware of the children’s activities. This

evidence constitutes more than adequate evidence that

appellant’s actions and inactions caused E.S.’s death as a

proximate result of committing endangering children.

{¶98} While we do not doubt, and actually readily accept,

the fact that appellant profoundly regrets the fatal accident,

the evidence nevertheless supports the jury’s verdict that he

caused E.S.’s death as a proximate result of endangering

children. Consequently, even if we excise the purportedly

irrelevant evidence, we believe the remaining evidence supports

appellant’s conviction. As a result, even if trial counsel’s

failure to object to the litany of testimony cited above

constituted deficient performance, that performance did not

affect appellant’s substantial rights, i.e., it did not affect

the outcome of the trial.

{¶99} Additionally, after our review we do not believe that

the record otherwise suggests that trial counsel deprived

appellant of the effective assistance of counsel. Trial counsel

raised objections as counsel deemed appropriate and based upon

trial strategy. Had counsel objected to every piece of

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testimony cited in appellant’s fourth assignment of error,

counsel would have needlessly interrupted the flow of the trial

and the jury may have perceived the objections as bothersome.

See State v. Campbell, 69 Ohio St.3d 38, 53, 630 N.E.2d 339

(1994) (“[b]ecause ‘[o]bjections tend to disrupt the flow of a

trial, [and] are considered technical and bothersome by the

fact-finder,’ Jacobs, Ohio Evidence (1989), at iii-iv, competent

counsel may reasonably hesitate to object in the jury’s

presence”). Trial counsel reasonably could have determined that

objecting to each and every item of testimony cited in

appellant’s fourth assignment of error, for a total of 31

objections, would have been unreasonable and may have portrayed

counsel in a negative light. See generally Engle v. Isaac, 456

U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (“the

Constitution does not insure that defense counsel will recognize

and raise every conceivable * * * claim”).

{¶100} Moreover, “[e]ven if defense counsel did not perform

as perfectly as appellant would have preferred, the Sixth

Amendment right to counsel does not guarantee an error-free,

perfect trial, but simply, a fair trial, i.e., one whose result

was reliable.” State v. Carroll, 4th Dist. Ross No. 15CA3506,

2016-Ohio-7218, ¶ 35, citing In re Smith, 4th Dist. Ross No.

01CA2599 (Dec. 12, 2001), quoting United States v. Hasting, 461

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U.S. 499, 508–509, 103 S.Ct. 1974 (1983)(“‘there can be no such

thing as an error-free, perfect trial, and * * * the

Constitution does not guarantee such a trial.’”); cf. Cronic,

466 U.S. at 659 (explaining that trial is unfair “if counsel

entirely fails to subject the prosecution’s case to meaningful

adversarial testing”).

{¶101} We further note, as does the state, that trial counsel

successfully (1) convinced the trial court to dismiss the

firearm specifications, and (2) sought a jury instruction to

advise the jury that Ohio law does not require gun owners to

store their guns in any particular manner. The court instructed

the jury that “[t]here is no criminal statute in Ohio that

prescribes how a gun owner must store a loaded or unloaded

firearm and/or ammunition in the home as it relates to a minor’s

access thereto.”

{¶102} Therefore, based upon all of the foregoing reasons, we

do not agree with appellant that trial counsel failed to provide

effective assistance of counsel. See generally Cronic, 466 U.S.

at 656 (footnote omitted) (“[w]hen a true adversarial criminal

trial has been conducted — even if defense counsel may have made

demonstrable errors — the kind of testing envisioned by the

Sixth Amendment has occurred”). Accordingly, we overrule

appellant’s fourth assignment of error.

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{¶103} In his fifth assignment of error, appellant asserts

that the cumulative effect of the errors deprived him of a fair

trial.

{¶104} The cumulative-error doctrine states that a conviction

will be reversed if the cumulative effect of all the errors in a

trial deprive a defendant of the constitutional right to a fair

trial, even though each alleged instance of error may not

individually constitute cause for reversal. State v. Powell,

132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223,

citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256

(1987), paragraph two of the syllabus.

{¶105} In the case before us, however, because we have not

found merit to appellant’s assignments of error, the cumulative-

error doctrine does not apply under these circumstances. State

v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶

143, citing Powell at ¶ 223.

{¶106} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fifth assignment of error.

{¶107} In his sixth assignment of error, appellant asserts

that the trial court erred by sentencing him to an indeterminate

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term of imprisonment.6 He claims that the Reagan Tokes Law, R.C.

2929.144(B), is unconstitutional because the law violates the

separation-of-powers doctrine, the constitutional right to due

process, and the constitutional right to a jury trial.

{¶108} We believe that our recent analysis in State v.

Nesbitt, 4th Dist. Ross No. 23CA14, 2023-Ohio-3434, fully

disposes of appellant’s sixth assignment of error. We therefore

incorporate the relevant portion below:

“‘[T]he question of the constitutionality of a

statute must generally be raised at the first

opportunity and, in a criminal prosecution, this means

in the trial court.’” State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting

State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277

(1986). A reviewing court does have “discretion to

consider a forfeited constitutional challenge to a

statute” and “may review the trial court decision for

plain error, but we require a showing that but for a

plain or obvious error, the outcome of the proceeding

would have been otherwise, and reversal must be

necessary to correct a manifest miscarriage of justice.”

(Citation omitted.) Id. at ¶ 16. “The burden of

demonstrating plain error is on the party asserting it.”

Id. The Supreme Court of Ohio has “stated that a

forfeited constitutional challenge to a statute is

subject to review ‘where the rights and interests

involved may warrant it.’” Id., quoting In re M.D., 38

Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

During the pendency of this appeal, the trial court

granted appellant judicial release. Appellant’s judicial

release does not render this appeal moot because the trial court

reserved the right to reimpose appellant’s sentence if he

violates his community-control conditions. See State v.

Delmonico, 8th Dist. Cuyahoga No. 108578, 2020-Ohio-3368, ¶ 30,

fn.6; State v. Cossin, 4th Dist. Athens No. 02CA32, 2003-Ohio-

4246, ¶ 8.

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Nesbitt did not argue plain error on appeal, and we

decline to construct a plain error argument on his

behalf. State v. Conant, 4th Dist. Adams No. 20CA1108,

2020-Ohio-4319, at ¶ 40 (declining to construct plain

error argument for appellant challenging Reagan Tokes

Law). However, we observe that even if Nesbit had argued

plain error, his argument would fail. Nesbitt asserts

the Reagan Tokes Law violates the right to a jury trial

and separation-of-powers doctrine, but in State v.

Hacker, ___ Ohio St.3d ___, 2023-Ohio-2535, ___ N.E.3d

___, the Supreme Court of Ohio recently held that the

law does not violate the right to a jury trial or the

separation-of-powers doctrine. Hacker at ¶ 1, 25, 28.

“An appellate court has no authority to overrule

decisions of the Ohio Supreme Court but is bound to

follow them.” State v. Dickens, 9th Dist. Lorain No.

07CA009218, 2008-Ohio-4404, ¶ 25.

Nesbitt also asserts that the Reagan Tokes Law

violates the right to due process under the Fourteenth

Amendment. He claims that the law “does not give

adequate notice of what will trigger additional prison

time” because R.C. 2967.271(C) is unconstitutionally

vague regarding what institutional rule infractions DRC

may use to rebut the R.C. 2967.271(B) presumption of

release. However, Hacker held that the Reagan Tokes Law

is not void for vagueness. Hacker at ¶ 40. Nesbitt

also claims the Reagan Tokes Law “does not provide a

process for a fair hearing” when rule infraction

“charges are brought.” He asserts that under Ohio

Adm.Code 5120-9-08, a panel of two DRC staff members has

authority to determine guilt, the panel has “ultimate

authority” to grant or deny requests for witnesses, and

if the panel grants a request, the inmate “may not

address or examine a witness” and “is only permitted to

ask the panel to pose questions to the witness.”

However, Hacker determined that the Reagan Tokes Law

does not violate procedural due process on its face.

Hacker at ¶ 1, 35-40.

Id. at ¶ 52-54.

{¶109} Accordingly, based upon the foregoing reasons, we

overrule appellant’s sixth assignment of error and affirm the

trial court’s judgment.

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JUDGMENT AFFIRMED.

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Smith, J., Dissenting

{¶110} I respectfully dissent with the majority’s disposition

of assignments of error one through five and I would not reach

the merits of assignment of error six. With respect to Platt’s

first assignment of error, which challenges the sufficiency of

the evidence as to both his child endangerment and involuntary

manslaughter convictions, the majority holds that Platt’s

conduct “constituted a substantial or contributing factor in

bringing about E.S.’s death.” The majority cites several

reasons in support of its holding, including that Platt left his

gun cabinet unlocked with loaded weapons inside and that Platt

left his two sons and E.S. “largely unsupervised during the

evening without ensuring that they would be unable to access

loaded weapons in the gun cabinet.” The majority finds that if

Platt had “kept watch of the children, or had he locked his gun

cabinet and ensured the children did not have access to loaded

weapons, M.P. could not have retrieved the loaded gun that ended

with a fatal tragedy.” Based upon this reasoning, the majority

finds that Platt’s “conduct was a substantial factor in causing

E.S.’s death.” However, because the record before us indicates

that M.P. had somehow obtained the security code for the gun

safe, unbeknownst to Platt, I cannot agree with the conclusion

E.S. may still be alive but for Platt’s failure to lock his gun

ATHENS, 22CA2

cabinet, which contained a loaded firearm. Furthermore, if we

are to accept Chief Fitch’s testimony, which I believe was

improperly admitted, Platt was rendered guilty of child

endangerment simply by choosing to store his weapons in a gun

cabinet as opposed to a gun safe, whether the cabinet was locked

or not. Such reasoning simply cannot stand, as the State of

Ohio has not enacted a safe storage law. For these reasons, I

disagree with the majority’s disposition of Platt’s first

assignment of error.

{¶111} I further find that Platt’s second, third, fourth, and

fifth assignments of error should be sustained. Although I am

mindful that plain error should be noticed “ ‘ with utmost

caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice[,]’ ” I conclude that the trial

court’s admittance of voluminous irrelevant and unduly

prejudicial testimony and evidence, even in the absence of

objections by defense counsel, constituted plain error. State

v. Barnes, supra, at 27, quoting State v. Long, supra, at

paragraph three of the syllabus. Although there is evidence in

the record to indicate that Platt was home with his children all

evening on the night of the incident, that he had prepared

dinner for them, had scolded them at least once, and possibly

twice, in person for being too loud or rowdy, that he had

ATHENS, 22CA2

educated his sons on gun safety, and that he almost always

stored his guns unloaded in a locked gun cabinet with a

combination lock that he believed was only known to himself,

this evidence was overcome by irrelevant and unduly prejudicial

evidence that portrayed Platt as an absent and formerly drug-

addicted parent who failed to supervise the children that were

in his home and who irresponsibly left a loaded weapon is his

unlocked gun cabinet, that was merely for display or decoration

and that could not be considered secure, even if locked.

{¶112} For instance, the trial court admitted and defense

counsel failed to object to testimony suggesting that either

Platt or the children had smoked marijuana that night, despite

the fact that only one of several responding officers noted a

smell of marijuana, that no marijuana was recovered from the

house, and that it was never established that Platt or any of

the children had used marijuana that night. Evidence of Platt’s

prior drug addiction and use of suboxone was also admitted

without objection, which I conclude was not only irrelevant to

the present matter as it was removed in time, but was also

unduly prejudicial. I find there is no plausible trial strategy

which supports the failure to object to these lines of

questioning and further find that the trial court’s admittance

of this testimony constituted plain error. The admission of

ATHENS, 22CA2

this evidence, even if deemed relevant, most surely was

outweighed by the danger of unfair prejudice and confusion of

the jury.

{¶113} As noted by the majority, “[u]nfairly prejudicial

evidence arouses the jury’s emotions, ‘ “evokes a sense of

horror,” ’ or ‘ “appeals to an instinct to punish.” ’ ” Oberlin

v. Akron Gen. Med. Ctr, supra, at 172, quoting Weissenberger’s

Ohio Evidence, supra, at 85-87, Section 403.3. As further

observed by the majority, “ ‘ “unfairly prejudicial evidence

appeals to the jury’s emotions rather than intellect.” ’ ” Id.

The testimony regarding suspected, current marijuana usage and

prior drug abuse went far beyond attempting to demonstrate that

Platt violated a duty of care by creating a substantial risk to

the health and safety of the children. Instead, in my view, it

served to evoke a sense of horror and inflame the jury’s

passions, as argued by Platt.

{¶114} Additionally, I find the allowance of what essentially

purported to be expert testimony by Chief Fitch as to the

standards for safe gun storage to be highly and unfairly

prejudicial. The state offered Chief Fitch’s testimony not as a

layperson, but as a law enforcement officer with prior

experience working for the Bureau of Criminal Investigation, to

provide the standard for what constitutes responsible gun

ATHENS, 22CA2

ownership and safe storage, in comparison to the practices of

Platt, which in Chief Fitch’s view fell well below his

articulated standard. I find defense counsel was ineffective

for failing to object to this testimony in general and also find

that the trial court plainly erred in admitting this testimony

to the extent the state did not comply with the requirements for

qualifying the witness as an expert in accordance with Crim.R.

16(K).

{¶115} Chief Fitch was permitted to testify at length

regarding his personal practice with handling and storing

firearms as compared to how Platt’s weapons were kept and stored

in his home. Chief Fitch essentially testified that the only

responsible way in which individuals, and particularly parents,

can possess and store firearms is if their child is educated on

gun safety, is shown how to handle firearms, and understands

that if they have any questions about a firearm at any given

moment, the adult owner will stop what they are doing and

immediately address those questions so as to eliminate any

curiosity whatsoever. Chief Fitch was further permitted to

criticize Platt’s election to store his guns in a gun cabinet as

opposed to a gun safe, opining that the former is essentially

only for decoration and display, while the latter is the only

responsible option for safety and security. Chief Fitch was

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also permitted to opine and criticize Platt’s decision to store

his firearms in a gun cabinet located near the front door,

essentially suggesting that to do so endangered rather than

protected the family against intruders, as an intruder would

have quick access to the guns when they entered the door. All

of this served to portray Platt at best as an ignorant and

irresponsible gun owner, despite the fact that Platt testified

and M.P. verified that he had educated his children on firearm

safety, had taught them that every gun should be presumed

loaded, that it was his routine practice to store his firearms

unloaded in the locked gun cabinet, except that he recently left

his gun loaded due to a rash of nearby break-ins and had

apparently forgotten to lock the cabinet the previous time he

opened it. Further, the fact that M.P. had apparently gained

access to the combination lock on the cabinet coupled with the

fact that M.P. admitted to having accessed the cabinet on

several previous occasions without permission in the past, begs

the question as to whether it was Platt that left the gun

cabinet unlocked after all.

{¶116} Additionally, as mentioned above, according to Chief

Fitch, the storing of firearms in a gun cabinet, even if locked,

is insufficient because a gun cabinet has glass doors and is

simply for “aesthetics.” According to Chief Fitch, the only

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responsible way to store guns is the way he stores them, which

is in an immovable fire-rated gun safe, with the combination

code kept under separate lock and key in a “safety deposit box.”

The problem with this is that Ohio has never enacted a safe

storage law with respect to firearms. I will concede that

defense counsel attempted to draw out this point on cross-

examination, however, as is illustrated below, counsel was

unable to undo the damage done by allowing Chief Fitch to

testify, essentially as an expert, to a standard which simply

does not exist in the State of Ohio. This exchange took place

as follows between defense counsel and Chief Fitch during cross

examination:

Q: Uh, do you do those things because that is

what you want to do or do you do those things

because it’s your understanding that’s required

by law?

A: Uh, I do those things because I believe it’s

a responsible thing to do as a homeowner.

Q: Okay. But not required by law?

A: Well I feel that I am responsible as a gun

owner and required by law to keep those guns.

Q: Okay

A: And not just leave them laying around for

guests or company to come over and have access

to them.

Q: Okay. But again, none of those steps are

required by law?

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A: Again, I would say that being a responsible

gun owner and keeping them out of the hands of

people into my house is required by law.

Q: Okay.

A: If I own a firearm I am responsible for that

by law.

Q: Okay.

A: So yes I would disagree with that statement.

{¶117} Then, on re-direct, the state asked Chief Fitch

whether or not there was a latch on Platt’s gun cabinet, to

which Fitch responded in the affirmative, stating that it could

have “theoretically” been used to lock the gun cabinet.

However, the state was permitted to further question the chief,

without objection, whether Platt’s gun cabinet was secure, to

which the chief responded “[a]bsolutely not.”

{¶118} Although the state argues that Platt “was not charged

with a crime that involved the manner in which he stored his

firearms nor the fact that he kept loaded firearms in his home,”

in my view, the allowance of Chief Fitch’s testimony, which was

for all intents and purposes testimony of an unvetted expert

witness, essentially put Platt on trial for storing loaded

firearms in a cabinet deemed by Fitch to be unsecure. Thus,

although defense counsel was clearly trying to reframe Chief

Fitch’s testimony for Platt’s benefit, his questioning regarding

the proper and responsible method of storing guns only further

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harmed Platt’s interests. As such, I believe counsel’s

representation fell below an objective standard of

reasonableness in this regard and resulted in not only deficient

performance, but prejudice to his client.

{¶119} In light of the foregoing, I would sustain Platt’s

first assignment of error, as well as his second, third and

fourth assignments of error. I would likewise sustain Platt’s

fifth assignment of error, which argues cumulative error as a

result of the errors forming the basis of assignments of error

one through four. In short, I agree with Platt’s argument that

trial counsel performed deficiently and “profoundly disserved”

him at trial. Finally, in light of my disposition of

assignments of error one through five, I would not reach the

merits of Platt’s sixth assignment of error.

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JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that

appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

Court directing the Athens 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, it is continued for a period of 60

days upon the bail previously posted. The purpose of said stay

is to allow appellant to file with the Ohio Supreme Court an

application for a stay during the pendency of the proceedings in

that court. The stay as herein continued will terminate at the

expiration of the 60-day period.

The stay will also terminate if appellant fails to file a

notice of appeal with the Ohio Supreme Court in the 45-day

period pursuant to Rule II, Sec. 2 of the Rules of Practice of

the Ohio Supreme Court. Additionally, if the Ohio Supreme Court

dismisses the appeal prior to the expiration of said 60 days,

the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Wilkin, J.: Concurs in Judgment and Opinion.

Smith, P.J.: Dissents with Dissenting Opinion.

For the Court

BY:__________________________

Peter B. Abele, Judge

NOTICE TO COUNSEL

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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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.