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O'Kelly v. State

Court of Appeals of Mississippi

August 30, 2018


          DATE OF JUDGMENT: 08/05/2016




         EN BANC.

          WILSON, JUDGE

         ¶1. In August 2014, Skylar O'Kelly sold or gave his friend Parker Rodenbaugh two "hits" of 25B-NBOMe, a controlled substance referred to at trial as "synthetic LSD." A few hours later, Rodenbaugh died from the toxic effects of the drug. O'Kelly was indicted for trafficking in a controlled substance and depraved-heart murder. Following a jury trial in the Oktibbeha County Circuit Court, O'Kelly was convicted on both counts and sentenced to concurrent terms of ten years in the custody of the Mississippi Department of Corrections (MDOC) for trafficking and twenty years in MDOC custody for depraved-heart murder.

         ¶2. On appeal, O'Kelly challenges the sufficiency and weight of the evidence on both counts and argues that the circuit court erred by denying his pretrial motion to suppress statements that he made to police. We affirm O'Kelly's conviction for drug trafficking, and we hold that the circuit did not err by denying O'Kelly's motion to suppress. However, we hold that the evidence introduced at trial was insufficient to support a conviction for either depraved-heart murder or the lesser-included offense of culpable-negligence manslaughter. Therefore, we reverse and render a judgment of acquittal on that count. We remand the case for resentencing on the conviction for trafficking in a controlled substance.


         ¶3. In July 2014, O'Kelly, then twenty-one years old, paid a former high school classmate $500 for approximately 450 dosage units or "hits" of 25B-NBOMe, a controlled substance[1]referred to at trial as "synthetic LSD." O'Kelly bought the drugs both for personal use and to sell to others for $10 per hit. O'Kelly claimed that he did not know that the drug was illegal, but he admitted that he had never heard of it being sold openly or in a store. O'Kelly further testified that he did not know that the drug was dangerous. After he bought the drugs, both O'Kelly and his younger brother Daylin, then nineteen years old, took hits on one or more occasions.

         ¶4. O'Kelly moved to Starkville in August 2014. He testified that he planned to attend Mississippi State University, but he was not enrolled. On August 9, 2014, O'Kelly and Daylin were at O'Kelly's apartment in Starkville. Around 9 p.m., they went to a house where Parker Rodenbaugh, a twenty-two year old MSU student, lived with four other MSU students. O'Kelly and Rodenbaugh graduated from high school together, and O'Kelly testified that they were "best friends." O'Kelly testified that he, Daylin, and Rodenbaugh went downstairs, smoked marijuana and tobacco from a hookah pipe, and played video games. One of Rodenbaugh's roommates, Pierson Crowder, was hosting a fantasy football draft party upstairs with several guests. Two of Rodenbaugh's other roommates, Sam and David Kealhofer, were also present at different times during the night.

         ¶5. O'Kelly testified that around 10 p.m. Rodenbaugh asked him if he "wanted to trip," referring to the NBOMe. O'Kelly testified that he and Rodenbaugh had taken NBOMe together previously. O'Kelly went back to his apartment, retrieved five hits of NBOMe, and then returned to Rodenbaugh's house. O'Kelly took two hits himself, gave one hit to Daylin, and gave two hits to Rodenbaugh. O'Kelly told police that Rodenbaugh agreed to pay $20 for the two hits later. Rodenbaugh told both Crowder and Sam Kealhofer that he had taken "acid" or "LSD." They were not shocked or surprised, as they knew that Rodenbaugh had taken acid before. Nor were they concerned, as Rodenbaugh seemed fine at that time.

         ¶6. Forty-five minutes to an hour later, Rodenbaugh "began to repeat himself"-saying "good vibes" over and over-and saying things that did not "make sense." O'Kelly testified that Parker's behavior "wasn't really anything serious," and others "were laughing" and thought "it was funny." Later, however, Rodenbaugh went running through the house, hit his head on a shelf, and fell to the floor. After others helped him to his feet, Rodenbaugh ran down a hall and into a door, and fell down again. After that, Crowder, the Kealhofers, O'Kelly, and Daylin sat with Rodenbaugh for periods of time while Rodenbaugh lay on the floor. O'Kelly testified that Rodenbaugh was talking and sometimes coherent, but he also continued to repeat himself and say things that did not make sense.

         ¶7. O'Kelly testified that, "[a]fter a while, [Rodenbaugh] seemed to have calmed down." O'Kelly then went to another part of the house to smoke a cigarette "to calm [himself] down because [he] was a little bit under the influence at the time." Crowder and the Kealhofers stayed with Rodenbaugh. Later, O'Kelly came back to check on Rodenbaugh, and he could see that Rodenbaugh's roommates were trying to talk to him, but Rodenbaugh's feet were "kind of spasming." O'Kelly claimed that he said, "[H]ey, if there's anything I can do, please let me know." He claimed that Crowder answered, "[I]t's okay; we got it." O'Kelly and Daylin then went back downstairs and smoked the hookah pipe again.

         ¶8. Crowder and Sam Kealhofer testified at trial, and their testimonies were generally consistent with O'Kelly's testimony. They testified that they were not concerned when Rodenbaugh told them that he had taken acid, as they knew that he had taken acid before. Nor were they concerned when Rodenbaugh began "tripping," as he seemed to be fine. Even after Rodenbaugh was lying on floor, repeating himself, and periodically tensing up or spasming, they did not believe that he needed medical attention-in part because they knew that O'Kelly and Daylin had taken the same drugs and were not experiencing any negative effects. Crowder and Sam Kealhofer testified that they called 911 only after Rodenbaugh began to turn blue and seemed to stop breathing. They both testified that O'Kelly and Daylin were not with Rodenbaugh by that point.

         ¶9. O'Kelly testified that he and Daylin were downstairs when one of the guests from the draft party told them that they had to leave immediately because an ambulance was on its way. O'Kelly and Daylin left and went back to O'Kelly's apartment. O'Kelly claimed that he tried to call several people to check on Rodenbaugh's condition, but he could not get in touch with anyone.

         ¶10. When paramedics arrived at Rodenbaugh's house, they attempted to resuscitate him. However, their efforts were unsuccessful, and Rodenbaugh was pronounced dead. Dr. Lisa Funte, a forensic pathologist from the State Medical Examiner's Office, later identified the cause of death as the toxic effects of NBOMe.

         ¶11. Around 5:30 a.m. on August 10, Lieutenant Shawn Word of the Starkville Police Department went to O'Kelly's apartment. Word called O'Kelly's cell phone and asked him to step outside to talk, and O'Kelly agreed. At the outset of their conversation, Word advised O'Kelly of his Miranda rights. O'Kelly acknowledged that he had been at Rodenbaugh's house the night before. Word then told O'Kelly that Rodenbaugh had died. Word testified that O'Kelly "got emotional, went down in a crouching position," and stated, "I'm done with drugs." Word asked O'Kelly who else had taken the drugs, and O'Kelly stated that only he and Daylin had, and they were fine. O'Kelly told Word that there were no drugs in his apartment. O'Kelly told Word that he had only purchased five hits to begin with, and he, Daylin, and Rodenbaugh had taken all of them.

         ¶12. Word took O'Kelly to the police station for further questioning. At the station, Word again advised O'Kelly of his Miranda rights, and the interview was videotaped. O'Kelly reiterated that he had purchased only five hits of NBOMe and had paid $50 for them. O'Kelly stated that when Rodenbaugh was "on the floor" and "kept shaking," "he didn't know what to do" and "was getting freaked out." O'Kelly stated that "he couldn't take . . . watching his friend like" that, so he and Daylin went downstairs to smoke the hookah pipe. O'Kelly said that he went back to "check on [Rodenbaugh] periodically." Word asked O'Kelly why he did not call 911; O'Kelly "said he didn't know" and "was just hoping [Rodenbaugh would] work through it."

         ¶13. At the conclusion of the interview, Word told O'Kelly that he had a search warrant for O'Kelly's apartment, and Word asked again whether there were any drugs in the apartment. O'Kelly then admitted that he had paid $500 for 450 hits and that "less than 450 hits" were hidden in a bag in his closet.

         ¶14. Detective Bill Lott then conducted a videotaped interview of O'Kelly. Lott again advised O'Kelly of his rights and obtained a signed Miranda waiver at 6:40 a.m. At 7:06 a.m., O'Kelly signed a written statement consistent with his prior statements to Word. In his written statement, Word admitted that he had sold Rodenbaugh two hits of NBOMe for $10 per hit ($20 total) and "told him [he] could pay later."

         ¶15. Word subsequently found two sheets of NBOMe in 1/4" x 1/4" perforated squares (hits) in a bag in O'Kelly's closet, as O'Kelly had described. The sheets contained approximately 425 squares. In January 2015, O'Kelly was indicted for trafficking in a controlled substance, Miss. Code Ann. § 41-29-139(f) (Supp. 2014), and one count of second-degree or "depraved-heart" murder, Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014). The case eventually proceeded to trial in August 2016.

         ¶16. At trial, Dr. Funte testified that "NBOMe is incredibly potent" and "has been linked to death at very, very low levels of the drug." The drug "binds to a receptor in [the user's] brain" and can "stimulate[] a condition called serotonin syndrome." Dr. Funte testified that the effects of the drug are highly "unpredictable." She explained that although a person "might take the drugs several times and be fine," a single dose can lead to cardiac arrhythmias, muscle tissue breakdown, acute kidney failure, multi-organ system failure, and death. Dr. Funte testified that, even at a "[v]ery low level," the drug can cause "death quite rapidly." She testified that a person cannot "develop a tolerance" to NBOMe, "[s]o on any given day, you don't know whether that drug is going to cause an adverse reaction leading to your death."

         ¶17. On cross-examination, Dr. Funte testified that in August 2014 NBOMe "was in its infancy as something that was showing up certainly around here," although in "other areas including other countries it was known and used." She testified that "[t]here was a statement put out by the DEA making it a controlled substance in November 2013." It "certainly [was] not as common as marijuana or cocaine . . . . But it was not unheard of." This was the first autopsy that Dr. Funte had performed involving a death linked to NBOMe.

         ¶18. At the close of the evidence, the circuit court instructed the jury on the elements of drug trafficking, depraved-heart murder, and the lesser-included offense of culpable-negligence manslaughter. The jury found O'Kelly guilty of drug trafficking and depraved-heart murder. The court sentenced O'Kelly to serve ten years in MDOC custody for drug trafficking and twenty years in MDOC custody for depraved-heart murder, with the sentences to run concurrently. O'Kelly filed a timely motion for judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal.


         ¶19. On appeal, O'Kelly raises three issues: (1) "whether the State proved all the elements of . . . drug trafficking beyond a reasonable doubt, and/or whether the verdict . . . was against the overwhelming weight of the evidence"; (2) "whether the State proved all the elements of . . . depraved-heart murder beyond a reasonable doubt, and/or whether the verdict . . . was against the overwhelming weight of the evidence"; and (3) whether the circuit court erred by denying his pretrial motion to suppress statements that he made to police. In the last section of his brief, O'Kelly briefly discusses four other alleged trial errors. We address O'Kelly's arguments in turn below.

         I. Drug Trafficking

         ¶20. "The . . . test for sufficiency of the evidence is familiar." Lenoir v. State, 222 So.3d 273, 278 (¶25) (Miss. 2017) (quoting Poole v. State, 46 So.3d 290, 293 (¶20) (Miss. 2010)). "When this Court reviews the sufficiency of evidence supporting a guilty verdict, we view the evidence in the light most favorable to the State and decide if rational jurors could have found the State proved each element of the crime." Id. at 279 (¶25). "We are not required to decide-and in fact we must refrain from deciding-whether we think the State proved the elements." Id. (quoting Poole, 46 So.3d at 293-94 (¶20)). "Rather, we must decide whether a reasonable juror could rationally say that the State did." Id. (quoting Poole, 46 So.3d at 294 (¶20)).

         ¶21. When we review the denial of a motion for a new trial, we similarly consider "the evidence in the light most favorable to the verdict," and we will not reverse unless the "verdict . . . is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Little v. State, 233 So.3d 288, 292 (¶21) (Miss. 2017). As an appellate court, "[w]e do not make independent resolutions of conflicting evidence. Nor do we reweigh the evidence or make witness-credibility determinations." Id. at (¶20) (citation omitted). "Instead, when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony." Id. (quotation marks omitted). We review the trial judge's denial of a motion for a new trial for abuse of discretion. Id. at (¶21).

         ¶22. On the charge of "trafficking in a controlled substance," the State was required to prove beyond a reasonable doubt that O'Kelly possessed forty or more dosage units of NBOMe with the intent to sell, barter, transfer, or dispense the drugs to another person. See Miss. Code Ann. § 41-29-139(f)(2)(A). O'Kelly argues that the State failed to prove (1) that he intended to distribute the drugs or (2) that he possessed forty or more dosage units. Both arguments are without merit.

         ¶23. The first argument is based on O'Kelly's testimony that he and Rodenbaugh intended to split the cost of the NBOMe and keep it for their own personal use. According to O'Kelly, Rodenbaugh "said he'd go in half." However, in his initial statement to the police, O'Kelly indicated that he alone purchased the drugs and was willing to sell hits for $10 apiece. O'Kelly's statement did not mention any sort of ...

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