OF JUDGMENT: 08/05/2016
OKTIBBEHA COUNTY CIRCUIT COURT HON. LEE J. HOWARD TRIAL JUDGE
ATTORNEY FOR APPELLANT: RODNEY A. RAY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER
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.
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.
AND PROCEDURAL HISTORY
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
substancereferred 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.
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
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.
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.
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.
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.
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.
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.
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.
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."
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.
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
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.
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
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.
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.
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.
"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)).
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
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.
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 ...