[Cite as State v. Mansfield, 2016-Ohio-8189.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                        :
                                                      :
         Plaintiff-Appellee                           :   Appellate Case No. 2015-CA-72
                                                      :
 v.                                                   :   Trial Court Case No. 2014-CR-739
                                                      :
 ERIN MANSFIELD                                       :   (Criminal Appeal from
                                                      :    Common Pleas Court)
         Defendant-Appellant                          :
                                                      :

                                                 ...........

                                                OPINION

                          Rendered on the 16th day of December, 2016.

                                                 ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

DAVID R. MILES, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn,
Ohio 45324
      Attorney for Defendant-Appellant

                                                .............

HALL, J.

        {¶ 1} Erin Mansfield appeals from her convictions for involuntary manslaughter

and voluntary manslaughter. We conclude that the trial court abused its discretion by
                                                                                         -2-


summarily overruling Mansfield’s motion claiming indigency and asking for public funds

to pay an expert witness to assist with her defense. Therefore we reverse the judgment

and vacate the convictions and sentence. The matter will be remanded for a new trial.

                                      I. Background

       {¶ 2} Todd Griffith lived at a campground in Clark County, Ohio. On July 4, 2014,

Mansfield and her boyfriend Charles “Tony” Rogers arrived at the campground to visit

another campground resident, Geneva Zerkle. All four of them had been drinking that day

and were hanging around together when an argument broke out between Griffith and

Zerkle, after Griffith accidentally broke one of Zerkle’s lawn chairs. Mansfield joined the

argument in defense of Zerkle. There was name calling, profanity, and some pushing by

all involved. Everyone eventually calmed down and Griffith left. Later, Rogers found

Griffith and asked him to apologize to Mansfield for calling her a “b****.” Mansfield and

Griffith begin arguing again, and Griffith pushed her into a kiddie pool, partly filled with

water, soaking her. Rogers tackled Griffith onto the ground, and Mansfield got on top of

him. She sat on Griffith’s chest and began to choke him. Zerkle watched as Griffith started

to turn blue. She told Mansfield that something was wrong and that she should stop

choking him, but Mansfield replied that Griffith was just faking it. Zerkle told Mansfield

several times that something was wrong before Mansfield climbed off Griffith. Everyone

immediately realized that something was wrong with Griffith, but by then it was too late.

Attempts to revive him failed, and he was pronounced dead at the scene. The coroner

who autopsied Griffith’s body determined that he died of asphyxia due to choking and

chest compression, that is, his brain was starved of oxygen because blood was prevented

from reaching it due to the occlusion of an artery or vein.
                                                                                         -3-




      {¶ 3} Mansfield was indicted in November 2014 on three counts of involuntary

manslaughter and one count of voluntary manslaughter. The involuntary manslaughter

charges were predicated on aggravated assault, assault (knowingly causing physical

harm), and assault (recklessly causing serious physical harm). A jury found Mansfield

guilty on all counts. The offenses merged for sentencing, and the State elected

sentencing on the charge of involuntary manslaughter predicated on aggravated assault.

The trial court sentenced Mansfield to 11 years in prison.

                                       II. Analysis

      {¶ 4} Mansfield presents seven assignments of error. We begin with the first.

                   A. The motion for payment of expert-witness fees

      {¶ 5} Before trial, Mansfield filed a motion asking the trial court to order the State

to pay the fees of an expert witness to assist with her defense. Mansfield claims in the

motion that she is indigent and says that though she has retained private counsel she did

so with borrowed money. Mansfield attached to her motion an affidavit of indigency in

which she avers that she has no resources to pay an expert witness because she is

unemployed, has no bank accounts, owns no motor vehicles, has no interest in any real

property, and has no financial accounts of any type. The trial court held no hearing but

instead summarily overruled the motion, saying only, “Defendant has retained counsel

and she is responsible for any fees associated for her defense.” Feb. 19, 2015 Entry.

      {¶ 6} The first assignment of error alleges that the trial court erred by overruling

Mansfield’s motion for payment of expert-witness fees. Mansfield contends that retaining

private counsel is not, by itself, sufficient reason to deny public funding for expert
                                                                                        -4-


assistance.

      {¶ 7} An indigent criminal defendant has a due-process right to expert assistance

under some circumstances. Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d

53 (1985). See also State v. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932 (1998), syllabus

(establishing when an indigent defendant must be provided funds to obtain expert

assistance at state expense). Few Ohio courts have addressed the issue of whether a

defendant who has retained private counsel may be declared indigent for purposes of

retaining an expert. The Eleventh District has addressed the issue most directly and most

often. In State v. Pasqualone, 11th Dist. Ashtabula No. 97-A-0034, 1999 WL 262174

(Mar. 31, 1999), the defendant filed a motion for the appointment of experts at state

expense to assist him in reconstructing the events of an automobile collision. Overruling

the motion, without a hearing, the trial court found that the defendant was not indigent,

solely on the grounds that the defendant had retained private counsel. But the appellate

court said that the fact that a defendant has retained private counsel does not preclude

her from being declared indigent. Pasqualone at *4. “It is entirely conceivable,” said the

court, “that a defendant may be indigent for one purpose, but not for another. For

example, a defendant’s resources may be drained by the expenditure of obtaining private

counsel. Thus, while a defendant can afford private counsel, he or she may not be able

to afford other costs of the case such as an investigator or expert witnesses.” Id.

Nevertheless, the appellate court affirmed the defendant’s conviction because the

defendant failed to provide the trial court with any evidence to support his claim of

indigency.

      {¶ 8} The Eleventh District next addressed the issue in State v. Sweitzer, 11th Dist.
                                                                                           -5-


Trumbull No. 98-T-0203, 2000 WL 973416 (July 14, 2000). In that case, the defendant

was initially represented by a public defender, but later friends of the defendant’s family

hired a private attorney for him. The defendant claimed that he was still indigent and

asked the trial court to appoint a medical expert and an investigator. After an indigency

hearing, the trial court denied the request because the defendant was represented by

private counsel. The appellate court began by noting that one’s indigency status can

change over time, quoting the second paragraph of the syllabus in State v. Tymcio, 42

Ohio St.2d 39, 325 N.E.2d 556 (1975): “A preliminary determination of indigency does not

foreclose a redetermination of eligibility for assigned counsel when, at a subsequent stage

of a criminal proceeding, new information concerning the ability or inability of the accused

to obtain counsel becomes available.” The appellate court then noted its holding in

Pasqualone that “the fact that a defendant has private counsel does not preclude him or

her from being declared indigent.” Sweitzer at *7. The court concluded that “the trial court

erred in denying appellant’s motions solely on the basis that he was represented by

private counsel” and reversed. Id. The court distinguished Pasqualone on the grounds

that the defendant in that case presented no evidence to support his indigency claim but

that the Sweitzer defendant was given a hearing and presented evidence to support his

claim.

         {¶ 9} Most recently, the Eleventh District addressed the issue in State v. Kidd, 11th

Dist. Portage No. 2006-P-0087, 2007-Ohio-6562. The defendant in Kidd filed a motion for

funds for investigative expenses, along with an affidavit of indigency. The trial court held

an indigency hearing. The court overruled the motion because it found that the defendant

was capable of employment and therefore not indigent. On appeal, the defendant argued
                                                                                          -6-


that the trial court’s conclusion that he was not indigent was based on the fact that his

mother had retained private counsel for him. Citing Pasqualone and Sweitzer, the

appellate court agreed that securing private counsel does not preclude a finding of

indigency for other purposes and that one’s indigency status can change over time. But

the court found no abuse of discretion in the trial court’s indigency finding, because the

defendant had failed to establish that he was indigent.

       {¶ 10} The Eleventh District’s resolution of this issue agrees with the standards

used by the Ohio Public Defender Commission (which provides legal representation at

state expense to indigent persons) to determine if a person is indigent. One of the

standards explicitly states that a defendant who has retained private counsel may still be

declared indigent for purposes of expert assistance: “A defendant who retains counsel

but does not have sufficient funds to pay for experts, transcripts, and other related

expenses should be declared indigent for those purposes.” Ohio Adm.Code 120-1-

03(E)(3).

       {¶ 11} We agree with the Eleventh District that a person cannot be found not

indigent for purposes of obtaining expert assistance based solely on the fact that the

person is represented by private counsel, although representation by retained counsel is

an important factor in evaluating indigency when a request for expert assistance is made.1

Here, the trial court’s indigency finding is based solely on the fact that Mansfield was

represented by private counsel. Moreover, the court’s finding is not supported by the

record. Mansfield’s affidavit of indigence is the only evidence on the issue, and it suggests


1 Retention of private counsel ordinarily should provide for the payment of fees and
reasonably anticipated defense resources. An unforeseen change in circumstances
may require additional defense resources.
                                                                                           -7-

that she has no money to pay the expert. Compare State v. Caulley, 132 Ohio App.3d

706, 725 N.E.2d 1229 (10th Dist.1999) (concluding that the trial court’s determination that

the defendant was not indigent and therefore not eligible to receive court-appointed

appellate counsel was not supported by the record, because uncontroverted testimony

clearly established that the defendant could not obtain appellate counsel).

       {¶ 12} The trial court could have held a hearing to inquire fully into Mansfield’s

indigency claim or the claimed need for expert assistance. The indigency determination

required to exercise the right to the assistance of counsel is interrelated with the indigency

determination required to exercise the right to expert assistance. Concerning that

determination as to counsel, the Ohio Supreme Court has pointed out that “[m]any factors

may impinge upon a defendant’s inability to obtain counsel, factors which may differ

greatly from case to case.” Tymcio, 42 Ohio St.2d at 44, 325 N.E.2d 556. The same may

be said of the inability to obtain expert assistance. What also may be said of the inability

to obtain expert assistance is this: “It is the duty of the trial court in a criminal case to

inquire fully into the circumstances impinging upon an accused’s claimed inability to

obtain counsel and his consequent need for assistance in employing counsel, or for the

assistance of court-appointed counsel.” Id. at paragraph three of the syllabus. This duty

could have been satisfied by holding an indigency hearing.

       {¶ 13} The trial court erred in finding that Mansfield was not indigent.

       {¶ 14} The first assignment of error is sustained.

       {¶ 15} The errors alleged in the other assignments of error occurred after the

erroneous handling of the motion for payment of the expert witness. The second and third

assignments of error respectively challenge the sufficiency of the evidence and the
                                                                                          -8-


manifest weight of the evidence. The fourth assignment of error alleges prosecutorial

misconduct with respect to the evidence. The fifth assignment of error asserts a claim of

ineffective assistance of counsel. The sixth assignment alleges cumulative error. And the

seventh assignment of error challenges Mansfield’s sentence. Each of these assignments

of error is moot—except for the second. “[R]etrial is barred if the reversal was based upon

a finding that the evidence was legally insufficient to support the conviction.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing Tibbs v. Florida, 457

U.S. 31, 47, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Therefore we must review the second

assignment of error.

                            B. The sufficiency of the evidence

       {¶ 16} Mansfield argues in the second assignment of error that the evidence is

insufficient to find her guilty of any of the charged offenses. A sufficiency-of-the-evidence

challenge requires that we consider “whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “We will not ‘disturb a verdict

on appeal on sufficiency grounds unless “reasonable minds could not reach the

conclusion reached by the trier-of-fact.” ’ ” State v. Montgomery, Ohio Sup. Ct. Slip

Opinion No. 2016-Ohio-5487, ¶ 74, quoting State v. Ketterer, 111 Ohio St.3d 70, 2006-

Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997).

       {¶ 17} The jury found Mansfield guilty of all of the charged offenses: involuntary

manslaughter under R.C. 2903.04(A), for causing Griffith’s death “as a proximate result
                                                                                        -9-


of” committing aggravated assault (Count One); involuntary manslaughter under R.C.

2903.04(B), for causing the death “as a proximate result of” committing assault by

knowingly causing physical harm (Count Two); involuntary manslaughter under R.C.

2903.04(B), for causing the death “as a proximate result of” committing assault by

recklessly causing serious physical harm (Count Three); and voluntary manslaughter

under R.C. 2903.03(A), for actually causing Griffith’s death (Count Four). Mansfield

argues that the evidence is insufficient to find that she acted knowingly (Counts One, Two,

and Four) or recklessly (Count Three). And she argues that the evidence is insufficient to

find that she proximately caused (Counts One, Two, and Three) or actually caused (Count

Four) Griffith’s death.

       {¶ 18} The culpable mental state of the offenses charged in Counts One, Two, and

Four is knowingly. “The culpable mental state of involuntary manslaughter is supplied by

the underlying offense * * *.” State v. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912

N.E.2d 133, ¶ 36 (8th Dist.). Accord State v. Campbell, 74 Ohio App.3d 352, 358-359,

598 N.E.2d 1244 (1st Dist.1991). The underlying offense in Count One is aggravated

assault under R.C. 2903.12(A)(1), which is committed by “knowingly” “[c]aus[ing] serious

physical harm to another.” And the underlying offense in Count Two is assault under R.C.

2903.13(A), which is committed by “knowingly caus[ing] or attempt[ing] to cause physical

harm to another.” As for voluntary manslaughter in Count Four, a person commits this

offense by “knowingly caus[ing] the death of another.” R.C. 2903.03(A). “A person acts

knowingly, regardless of purpose, when the person is aware that the person’s conduct

will probably cause a certain result or will probably be of a certain nature.” R.C.

2901.22(B). The culpable mental state of the assault offense underlying Count Three is
                                                                                              -10-


recklessly: “No person shall recklessly cause serious physical harm to another * * *.” R.C.

2903.13(B). “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the person’s

conduct is likely to cause a certain result or is likely to be of a certain nature. * * *” R.C.

2901.22(C).

       {¶ 19} Here, several witnesses testified at trial about what they heard Mansfield

say during the incident. One witness testified that after Griffith pushed Mansfield into the

pool, he heard Mansfield say that “she was going to choke him out.” (Trial Tr. 231). A

couple of minutes later the witness heard Mansfield say, “have you had enough, have

you had enough yet.” (Id. at 232). Zerkle testified that while Mansfield was on top of

Griffith, Mansfield asked him, “you want to breathe [m***** f*****]?” and “you want to live

[m***** f*****], you want to live?” (Id. at 516-517). Another witness testified that she saw

Griffith struggling to get up and heard Mansfield yell, “choke him out.” (Id. at 279). Yet

another witness testified that after Griffith pushed Mansfield into the pool, she heard

Mansfield say, “you pushed me in the pool * * * I’ll kill you, you [m***** f*****].” (Id. at 637).

The witness testified that she heard Mansfield say later, “choke him out” and then heard

Mansfield ask Griffith, “have you had enough?” (Id. at 637-638). When Griffith did not

respond, testified the witness, Mansfield said, “all right, choke him some more.” (Id. at

638). Still another witness testified that afterwards, in response to someone’s question

about what happened, he heard Mansfield say, “I choked him out.” (Id. at 339).

       {¶ 20} Based on this evidence, a reasonable person could find, beyond a

reasonable doubt, that Mansfield not only disregarded the risk that choking Griffith was

likely to cause him serious physical harm but that she was aware that her conduct would
                                                                                           -11-


probably cause him serious physical harm. Indeed, she was plainly trying to do just that.

In addition, a reasonable person could find, again, beyond a reasonable doubt, that

Mansfield was aware that choking Griffith would probably cause his death. It would be

reasonable to find that Mansfield, in the heat of the moment, was in fact trying to kill him.

       {¶ 21} As for the causation elements, the evidence must show that Mansfield

proximately caused Griffith’s death as a result of committing the assault offenses (Counts

One, Two, and Three) and actually caused his death (Count Four). With respect to

proximate cause, a defendant “will be held responsible for consequences that are direct,

normal, and reasonably inevitable when viewed in the light of ordinary experience.” State

v. Webber, 2015-Ohio-2183, 35 N.E.3d 961, ¶ 11 (2d Dist.). “It is not necessary that the

defendant ‘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.’ ” Id., quoting

State v. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912 N.E.2d 133, ¶ 26 (8th Dist.).

       {¶ 22} The coroner who autopsied Griffith’s body testified that he died of asphyxia

due to choking and chest compression. The coroner testified that he saw physical

evidence of hemorrhage in Griffith’s neck area suggesting that force was applied in that

area. He explained that increasing pressure on the neck can slow the flow of blood from

the head back to the heart. This increases the pressure in the carotid arteries and the

brain begins to starve for oxygen, which is a critical problem because the brain needs a

constant supply of oxygen. Chest compression was a contributing factor in this case, said

the coroner, because the pressure on the chest combined with force applied to the neck

prevented Griffith from being able to breathe in enough oxygen. Thus the effect of
                                                                                          -12-


Mansfield choking Griffith was to stop the blood from flowing to Griffith’s brain.

       {¶ 23} A reasonable person could find, beyond a reasonable doubt, that

Mansfield’s actions—sitting on his chest and squeezing his neck—both proximately and

actually caused Griffith’s death. The coroner’s testimony supports the finding that death

was a natural and logical consequence of Mansfield’s actions, that death was within the

scope of the risk created by her actions. It is also within the realm of common knowledge

that choking a person, like Mansfield did to Griffith, could naturally result in that person’s

death. Compare State v. Herring, 8th Dist. Cuyahoga No. 46032, 1983 WL 4744, *1 (Sept.

22, 1983) (saying that “[t]he natural and probable consequences of strangling someone

until they don’t move anymore and the natural and probable result of tying someone up

in a carpet and leaving them in an empty lot is that they will die”).

       {¶ 24} The second assignment of error is overruled.

                                      III. Conclusion

       {¶ 25} The judgment of the trial court is reversed, and the convictions and

sentence are vacated. The matter is remanded for a new trial.

                                      .............


FAIN, J., and FROELICH, J., concur.


Copies mailed to:

Megan M. Farley
David R. Miles
Hon. Douglas M. Rastatter