[Cite as State v. Sabo,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO, CASE NO. 14-09-33

PLAINTIFF-APPELLEE,

v.

RICHARD H. SABO, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 08-CR-84

Judgment Affirmed

Date of Decision: March 29, 2010

APPEARANCES:

Richard s. Ketcham for Appellant

David W. Phillips for Appellee Case No. 14-09-33

PRESTON, J.

{¶1} Defendant-appellant, Richard H. Sabo (hereinafter “Sabo”), appeals

the judgment of conviction entered against him by the Union County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} This matter stems from the events that took place on or about June

19, 2007, when Sabo allegedly transported liquid methadone and other drugs to

Union County, Ohio, where he shared them with another individual, Michael

Mudgett (hereinafter “Michael”), who later died of an overdose of drugs. On July

16, 2008, the Union County Grand Jury indicted Sabo on three counts: count one,

sale or offer to sell Methadone, Oxycodone and Tramadol, constituting aggravated

trafficking in drugs, in violation of R.C. 2925.03(A)(c)(1), a felony of the fourth

degree with a forfeiture specification that a pick-up truck was used to commit or

facilitate the commission of the offense; count two, involuntary manslaughter in

violation of R.C. 2903.04, a felony of the second degree; and count three,

aggravated possession of drugs in violation of R.C. 2925.11(A)(c)(1), a felony of

the fifth degree.

{¶3} Sabo entered pleas of not guilty to the charges on October 10, 2008.

On June 17, 2009, the State moved to amend count one of the indictment to

remove any reference to Oxycodone and Tramadol. The motion was granted on

the same day.

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{¶4} A jury trial was held on June 17-18, 2009, and the following

testimony was heard. Michael’s mother and Sabo’s sister, Jane Mudgett

(hereinafter “Mudgett”), testified that on June 19, 2007, Michael was with her at

her house when Sabo and his girlfriend, Linda Byers (hereinafter “Byers”), pulled

into the driveway. (June 17, 2009 Tr. at 51-56). Mudgett said that Sabo and

Byers had liquor, beer, guns, and a white pharmaceutical bag with them, and that

they were looking to party. (Id. 55-56). Mudgett said that she told them to leave,

and while Byers stayed behind, Sabo and Michael left together and went to Steven

Latham’s house (hereinafter “Latham”), which was down the road from her house.

(Id. at 57). Later that day, Mudgett and her other son, Nick Mudgett (hereinafter

“Nick”), went to Latham’s house where Sabo, Latham, and Michael were all

partying. (Id. at 58). She said that there was a lot of alcohol, ashtrays, beer cans,

and a plate with white power on it. (Id.). She said that when they arrived Michael

was very inebriated and that Nick had to escort him back inside the house and put

Michael to bed. (Id. at 59-60). Soon after putting Michael to bed in the back

bedroom, Mudgett said that Nick went home, but that she stayed the night at

Latham’s house. (Id. at 60). When she got up the next morning, she went to

check on Michael, but Sabo stopped her and told her that Michael was fine, then

he gave her a ride back to her house. (Id. at 61). Later that day, Mudgett decided

to go back to Latham’s house and when she got to Latham’s house she found

Michael dead in the back bedroom. (Id. at 62).

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{¶5} Mudgett further testified that Sabo was the caretaker for their father

and was living at their father’s house while their father was staying at a nursing

home. (Id. at 53-54). Mudgett said that their father had a lot of medical problems

and took a lot of medications, and that Sabo was in charge of making sure their

father received his medications, one of which she knew was liquid methadone.

(Id. at 52-55).

{¶6} On cross-examination, Mudgett testified that Michael and Sabo had

a good relationship. (Id. at 64). In addition, Mudgett acknowledged that Michael

had been diagnosed as bi-polar and was taking medications for his mental illness,

and that Sabo was aware of Michael’s mental condition and that Michael was

taking medications for it. (Id. at 64-65). Furthermore, she admitted that Michael

drank and that his drinking had caused him problems. (Id. at 65).

{¶7} Nick Mudgett, Michael’s younger brother, testified next. Nick, who

lived with his mother, also stated that Sabo and Byers pulled into their driveway

and that they were looking to party. (Id. at 72-77). Nick said that he went out

with Sabo to his truck and that Sabo pulled out and showed him a prescription bag.

(Id. at 78). Nick stated that Michael and Sabo left together and went to Latham’s

house, and later when Nick and his mother went to Latham’s house, they saw

everyone snorting up drugs. (Id. at 79-82). Nick said that Michael was stumbling

around and that his speech was slurred and his eyes were glazed over and his

pupils were the size of pins. (Id.). He put Michael to bed in the back bedroom,

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and although his mother stayed behind, Nick left because he had to work the next

morning. (Id. at 84).

{¶8} Linda Byers, Sabo’s girlfriend, testified that on June 19, 2007, she

and Sabo started at his father’s house then drove over to Mudgett’s house because

they wanted to party. (Id. at 89-90). While she stated at trial that they had only

brought vodka and beer with them that day, she later admitted that in a prior

statement she had made to the police, she had said that Sabo also had taken liquid

methadone and 3-5 syringes with him over to Mudgett’s house. (Id. at 95-96).

{¶9} Steven Latham, who was convicted of permitting drug abuse in

connection to Michael’s death, testified that on June 19, 2007, Sabo and Michael

came over to his house. (Id. at 107). Latham said that in addition to the alcohol

Sabo brought in to his house, Sabo also had liquid methadone and some pills. (Id.

at 108-09). Immediately following their arrival, Latham said that all three of them

started partying with the drugs Sabo had brought. (Id. at 110). Latham said that

Sabo would put the liquid methadone in a syringe and then would place the

syringe under each of their tongues. (Id. at 111). Latham said that Sabo was the

only one who administered the liquid methadone and that he gave Michael four

hits of the liquid methadone. (Id. at 111-12). Moreover, they crushed up the pills

Sabo brought, which Latham believed consisted of more than one kind of pill, and

they snorted the powder. (Id. at 112-13). In addition to the drugs, Latham said

that the three of them were also drinking alcohol. (Id. at 113).

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{¶10} Latham said that later that day Nick and Mudgett came over and that

before he left, Nick put Michael, who was “very inebriated,” to bed in the back

bedroom. (Id. at 114). The next day, prior to Mudgett’s discovery, Latham said

that he checked on Michael and discovered that Michael was dead. (Id. at 116).

On cross-examination, Latham said that Michael was not forced into taking any of

the drugs, and that Sabo had told them that what he was putting in the syringes

was liquid methadone, although Sabo was the only person who handled the liquid

methadone and administered the liquid methadone to each of them individually.

(Id. at 125).

{¶11} Corporal Matt Warden and Deputy Tom Bidlack of the Union

County Sheriff’s Office testified that they had responded to a dispatch at 13871

Hillsview Road concerning a possible dead-on-arrival. (Id. at 25-27, 46). When

Corporal Warden entered the back bedroom of the residence he found Mudgett

and another man (Latham) next to Michael’s body which was lying on a bed. (Id.

at 28-29). Corporal Warden stated that Michael had no pulse and there was

“obvious” pooling of the blood. (Id. at 29). Mudgett, who was very upset at the

time, told the officers that they had been partying all night and doing drugs, and

later told Deputy Bidlack that Sabo had been responsible for Michael’s death. (Id.

at 39, 46).

{¶12} Detective Andrew Wuertz with the Upper Arlington Police

Department and Detective Jeff Stiers with the Union County Sheriff’s Office

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testified that they went to Sabo’s residence to interview him about the

circumstances surrounding Michael’s death. (Id. at 127-28, 134-36). Initially,

Sabo admitted that he and Byers had gone to Union County the previous night and

had been drinking with Michael, but Sabo failed to mention anything about using

drugs. (Id. at 129, 136). After this initial interview, Detective Stiers talked with

Byers, who mentioned that Sabo had brought liquid methadone with him the

previous night, so Detective Stiers confronted Sabo about the liquid methadone.

(Id. at 137-38, 142-49). This time Sabo admitted to bringing the liquid methadone

and giving Michael three to four hits of the drug the previous night. (Id. at 142-

49). The detectives eventually recovered the methadone during a consent search

of the home. (Id. at 130). Finally, Detective Stiers said that after he had

confronted Sabo about the liquid methadone, Sabo made a written statement in

which he admitted to giving Michael three to four hits of the liquid methadone,

and even stated that he had told Michael not to go overboard with the liquid

methadone because he was not used to it. (Id. at 144); (State’s Ex. 23).

{¶13} Dr. Jeff Lee, the chief forensic pathologist and the deputy coroner

for Licking County, testified that he performed the autopsy of Michael’s body on

June 20, 2007, at the request of Union County Coroner Dr. David Applegate.

(June 18, 2009 Tr. at 160). Dr. Lee said that he found airway froth and brain

swelling, consistent with and due to asphyxia or respiratory depression. (Id. at

161-64). Dr. Lee stated that one of the common causes of these types of injuries is

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a drug overdose. (Id. at 163). Dr. Lee asked Dr. Marinetti from the Montgomery

County Coroner’s office to perform a toxicology report on some samples from

Michael’s body, and his report indicated the presence of nine different drugs, five

significant ones, which included: methadone, tramadol, olazapine, oxycodone, and

alcohol. (Id. at 168). Based on this report and his examination of Michael’s body,

Dr. Lee concluded that the cause of death was due to the acute multiple drug

effects which led to respiratory depression. (Id. at 169-70). Moreover, Dr. Lee

stated that, to a reasonable degree of medical certainty, out of the drugs that had

caused the respiratory depression, the “most significant one without question” was

the level of methadone. (Id. at 173). Dr. Lee believed that the methadone level

was the most significant given the high level found in Michael’s body. (Id.). Dr.

Lee explained that individuals who are prescribed methadone build up a tolerance

to it, but individuals, like Michael, who are naïve to the drug, or who do not use

the drug on a regular basis, do not have this tolerance. (Id. at 173-74). Dr. Lee

stated that he has seen naïve individuals die from methadone levels as low as 0.15

micrograms per milliliter of blood, and here, Michael exhibited a level of

methadone at 1.2 microgram per milliliter of blood – eight times higher than the

lowest recognized lethal level of methadone (0.15). (Id. at 173).

{¶14} Dr. Lee also explained tramadol, methadone, oxycodone, and

alcohol are all respiratory depressants, which means that each of them decrease the

brain’s natural ability to cause the lungs to breathe; in other words, they cause the

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brain to tell the lungs to slow down the breathing. (Id. at 170). These drugs

eventually cause the brain to decrease the breathing of the lungs to a point where

the body is not producing enough oxygen to keep the brain and heart alive, and the

individual dies from a lack of oxygen. (Id. at 171). On cross-examination, as to

how long different drugs would remain detectable in a person’s body, Dr. Lee said

that it could be as little as a few hours for one drug or as long as a few weeks for

another drug. (Id. at 179).

{¶15} Dr. Marinetti, the chief forensic toxicologist at the Montgomery

County Coroner’s office, testified that she ran the standard toxicology tests on the

samples provided to her by Dr. Lee and found the presence of alcohol, marijuana,

methadone, oxycodone, tramadol, and olanzapine. (Id. at 188). On cross-

examination, Dr. Marinetti stated that the amount of time a particular drug would

stay in someone’s body would depend on the drug, the biggest determining factor

being the dose, or how much drug was taken by the individual. (Id. at 190).

{¶16} Keith Taggart, a chemist at the Bureau of Criminal Identification in

Richfield, Ohio, testified that he ran the standard tests on the bottle found at

Sabo’s house given to him by Detective Stiers, and ultimately determined that the

bottle contained liquid methadone. (Id. at 191-94).

{¶17} Finally, Dr. Applegate, the Union County Coroner, testified that he

had responded to the scene of Michael’s death and noticed that there was a slight

froth around his mouth, indicative of a drug overdose. (Id. at 197-99). He stated

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that he sent the body over to Licking County, and after reading the reports from

the forensic pathologist and the forensic toxicologist, he concluded that Michael

had died from polysubstance overdose. (Id. at 200). While Dr. Applegate could

not say for sure which specific drug found in Michael’s body actually killed

Michael, Dr. Applegate stated that the methadone had been one of the more

contributing drugs, and that Michael would not have died but for the ingestion of

the drugs. (Id. at 200-03).

{¶18} Afterwards, the State rested and Sabo declined to put on any

additional evidence in defense, so the matter was submitted to the jury, who

returned guilty verdicts on all three counts of the indictment. A sentencing

hearing was conducted on August 31, 2009, where the trial court imposed the

following sentence: as to count one, aggravated trafficking, seventeen (17)

months; as to count two, involuntary manslaughter, nine (9) years; and as to count

three, aggravated possession of drugs, eleven (11) months. Each term of

imprisonment was to be served consecutively for a total of eleven (11) years and

four (4) months. The trial court further ordered the forfeiture of Sabo’s pick-up

truck, restitution to June Mudgett in the amount of $11,468.31, and the payment of

costs of $1,797.50.

{¶19} Sabo now appeals and raises two assignments of error.

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ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT AS TO COUNT TWO WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THAT CONVICTION AND IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF DEFENDANT-APPELLANT’S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY AMENDMENTS V AND XIV OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. (T – VOL. II – 252-57); JUDGMENT ENTRY.

{¶20} In his first assignment of error, Sabo argues that his involuntary

manslaughter conviction was not based on sufficient evidence and was against the

manifest weight of the evidence. Specifically, Sabo claims that this conviction

was erroneous because, while the jury could have found, and did find, that he was

guilty of aggravated trafficking in drugs, the jury could not have found that the

aggravated trafficking offense proximately caused Michael’s death.

{¶21} The Ohio Supreme Court has set forth the sufficiency of the

evidence test as follows:

[A]n appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial and determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is 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.

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State v. Jenks (1991),

,

, superseded by

State constitutional amendment on other grounds as stated in State v. Smith (1997),

,

.

{¶22} Alternatively, an appellate court’s function when reviewing the

weight of the evidence is to determine whether the greater amount of credible

evidence supports the verdict. State v. Thompkins (1997),

,

. In reviewing whether the trial court’s judgment was against the

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines

the conflicting testimony.

In doing so, this Court must review the entire

record, weigh the evidence and all of the reasonable admissible inferences,

consider the credibility of witnesses, and determine whether in resolving conflicts

in the evidence, the factfinder “clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Andrews, 3d Dist. No. 1-05-70,

, citing

State v. Martin (1983),

,

; Thompkins,

. Further, we must be mindful that the credibility to be afforded

the testimony of the witnesses is to be determined by the trier of fact. State v. Dye

(1998),

,

; State v. Frazier (1995),

,

.

{¶23} After a review of the record, we note that Sabo failed to make a

Crim.R. 29 motion at the close of the State’s case. Thus, he has waived all but

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plain error as to the sufficiency of the evidence. See State v. Jones (2001),

,

. In order to find plain error, there must be

a deviation from a legal rule, the error must be an “obvious” defect in the

proceedings, and the error must affect a defendant’s “substantial rights.” State v.

Barnes (2002),

,

,

. Reversal

on plain error is to be used “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage” of justice.

{¶24} In this case, Sabo does not dispute his convictions of aggravated

trafficking in drugs or aggravated possession of drugs. Rather, his complaint on

this appeal only concerns the involuntary manslaughter conviction, which is

defined under R.C. 2903.04, and provides:

No person shall cause the death of another or the unlawful termination of another’s pregnancy as a proximate result of the offender’s committing or attempting to commit a felony.

The State had the burden to prove that Sabo caused Michael’s death, and that the

death proximately resulted from Sabo’s commission of any felony, which in this

particular case was trafficking in drugs. State v. Shoemaker, 3d Dist. No. 14-06-

12,

, citing State v. Morris,

,

.

{¶25} This Court has previously cited to the 10th District’s decision in

State v. Losey (1985),

,

, for guidance on

the intention of the Legislature in its use of “proximate result” under R.C.

-13- Case No. 14-09-33

2903.04. See Shoemaker,

. In that decision, the 10th

District stated as follows:

Under [R.C. 2903.04], defendant cannot be held responsible for consequences no reasonable person could expect to follow from his conduct; he will be held responsible for consequences which are direct, normal, and reasonably inevitable-as opposed to extraordinary or surprising-when viewed in the light of ordinary experience. In this sense, then, “proximate result” bears a resemblance to the concept of “proximate cause” in that 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. State v. Chambers (1977),

,

[

. Here, that means that death reasonably could be anticipated by an ordinarily prudent person as likely to result under these or similar circumstances. See State v. Nosis (1969),

,

[

].

Losey,

.

{¶26} Here, Sabo argues that there was insufficient evidence that his

aggravated trafficking of drugs proximately caused Michael’s death. Specifically,

he claims that given the evidence presented at trial, only the liquid methadone

could be associated with him, and neither expert witness could say which one of

the five significant drugs found in Michael caused Michael’s death. Therefore, he

claims that it was unforeseeable for him to have known that Michael had toxic

levels of other significant drugs in his body when he administered the liquid

methadone. We disagree.

{¶27} Based on the evidence presented in this case, we believe that

reasonable minds could have concluded at the close of the State’s case that

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Michael’s death was proximately caused by Sabo giving him the liquid

methadone. While Michael’s death was the result of the effects of taking multiple

drugs, and neither expert could pinpoint which exact drug caused Michael’s death,

we believe that a fatal consequence was within the foreseeable scope of risk

created by Sabo’s conduct in administering the liquid methadone when there was

ample evidence regarding Michael’s inebriated condition, the fact that he and Sabo

had taken other substances together that night, and the fact that Sabo had even

warned Michael about using the liquid methadone. See State v. Baksi (Dec. 23,

1999), 11th Dist. No. 98-T-0123, at *16 (finding that there was sufficient evidence

to support involuntary manslaughter conviction when evidence showed defendant

prepared an extremely strong hit of heroin and gave the loaded syringe to another

inmate who was known to abuse drugs); State v. Grunden (1989),

,

(finding that reasonable minds could have concluded

at the close of the state’s case that the infant’s death was proximately caused by

the defendant’s conduct in leaving a gram of cocaine unattended on a coffee table,

well within the reach and propensities of a thirteen-month-old child).

{¶28} First of all, there was testimony that the level of methadone found in

Michael’s body was at a lethal level by itself. The forensic pathologist who had

conducted the actual autopsy of Michael stated that the most significant drug

found in Michael’s body that had contributed to his death was the methadone.

This was because the level of methadone found in Michael’s body was eight times

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higher than the lowest lethal level of methadone typically found in naïve

methadone users’ deaths. Furthermore, not only was there testimony that Sabo

had brought the liquid methadone, but also that he was the only one that had been

in control and administered the liquid methadone to everyone, including Michael,

who received three to four shots. Finally, Sabo even told the police that he had

warned Michael to not go overboard with the liquid methadone because he was

not used to it.

{¶29} Sabo argues that he was unaware that Michael had taken other

“toxic” drugs that night; however, there was evidence that Sabo should have been

aware of Michael’s condition and that Michael had ingested other substances that

night. Latham testified that the pills were crushed up and snorted by both Michael

and Sabo, and although not directly linked to the other drugs found in Michael’s

body, these pills were also brought by Sabo. Furthermore, there was ample

testimony about how Michael was “very inebriated” that night and had been

drinking in addition to taking the methadone and snorting the white powder

substance. Thus, while there may not have been evidence directly linking Sabo to

the other significant drugs found in Michael’s system (oxycodone, tramadol, and

olanzapine), it is clear that Michael was very inebriated that night, and that

Michael was ingesting other substances with Sabo in addition to drinking alcohol

when Sabo provided and administered three to four hits of the liquid methadone to

Michael.

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{¶30} Under the facts of this case, we believe that a fatal consequence was

within the foreseeable scope of risk created by Sabo’s conduct in administering the

liquid methadone given the evidence presented by the State, specifically Michael’s

inebriated condition, the fact that he and Sabo had taken other substances together,

and the fact that Sabo had warned Michael about using the liquid methadone.

Therefore, we find that a rational trier of fact could have found the prosecution

proved beyond a reasonable doubt that Sabo proximately caused Michael’s death

when Sabo provided and administered the liquid methadone.

{¶31} Moreover, we do not believe that the jury clearly lost its way and

created such a manifest miscarriage of justice that Sabo’s conviction must be

reversed and a new trial ordered. When reviewing a conviction under the manifest

weight of the evidence standard of review, this Court must review the entire

record. However, Sabo did not present any additional evidence in defense, thus all

this Court is left with is the above evidence and testimony that was presented by

the State.

{¶32} Specifically, the jury was aware of the fact that Michael had died

from a combination of multiple drugs; however, there was testimony that the one

drug that was clearly provided for and administered by Sabo (the liquid

methadone), was the most significant drug that had contributed to Michael’s death.

There was evidence that the amount of methadone in Michael’s body was eight

times higher than the lowest lethal dosage found in overdosed naïve methadone

-17- Case No. 14-09-33

users. In addition, the jury heard about Sabo’s own statement to Michael warning

him about the liquid methadone, which at least raises a reasonable inference that

Sabo was aware of the potential dangers of administering liquid methadone to

naïve users. Overall, the jury was able to personally view the demeanor of the

witnesses and it was in the best position to judge their credibility, and therefore,

based on the above evidence, we find that the State presented ample evidence and

testimony at trial so that the jury could have reasonably concluded that Sabo

proximately caused Michael’s death when he provided and administered the liquid

methadone. Again, given Michael’s inebriated condition, the fact that he and Sabo

had taken other substances together, and the fact that Sabo had warned Michael

about using the liquid methadone, we believe that a fatal consequence was within

the foreseeable scope of risk created by Sabo’s conduct in providing and

administering the liquid methadone.

{¶33} Overall, when viewing the evidence in a light most favorable to the

State, Michael’s death, resulting from polysubstance overdose, could have

reasonably been anticipated by an ordinarily prudent person as likely to result

from Sabo’s trafficking in drugs, and that any rational trier of fact could have

found the essential elements of R.C. 2903.04(A) proven beyond a reasonable

doubt. Furthermore, we cannot say that the jury lost its way in considering and

weighing the evidence presented. Thus, we find that there was sufficient evidence

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to support the involuntary manslaughter conviction and that the conviction was not

against the manifest weight of the evidence.

{¶34} Sabo’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES WITHOUT MAKING THE FINDINGS REQUIRED BY R.C. 2929.14(E)(4). (T – VOL. II – 280-81); JUDGMENT ENTRY.

{¶35} In his second assignment of error, Sabo argues that the trial court

erred in failing to make the requisite findings under R.C. 2929.14(E)(4) when it

stated that his three terms of imprisonment were to run consecutively.

Specifically, Sabo claims that the United States Supreme Court decision in Oregon

v. Ice (2009), __ U.S. __,

,

, overruled the Ohio

Supreme Court’s decision in State v. Foster (2006),

, 2006-Ohio-

856,

. As a result, Sabo claims that the old sentencing scheme,

which required judges to make specific findings before imposing consecutive

sentences and which was overruled by the Ohio Supreme Court in Foster, has now

been re-established by Oregon v. Ice.

{¶36} In State v. Foster,

,

,

, the Ohio Supreme Court declared that those portions of the felony sentencing

statutes that required judicial fact-finding before the trial court could impose a

prison sentence were violations of the Sixth Amendment pursuant to Blakely v.

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Washington (2004),

,

,

, and Apprendi

v. New Jersey (2000),

,

,

. 2006-

Ohio-856, at ¶100. Subsequently, the Supreme Court excised those provisions that

related to judicial fact-finding from the sentencing statutes, specifically including

R.C. 2929.14(E)(4) and R.C. 2929.41(A). Id. at ¶97. As a result of the excision of

those unconstitutional provisions, the Court ultimately held that, “[t]rial courts

have full discretion to impose a prison sentence within the statutory range and are

no longer required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences.” Id. at paragraph seven of the

syllabus.

{¶37} Recently, in Oregon v. Ice, the United States Supreme Court

examined an Oregon statute that required judges to find certain facts before

imposing consecutive rather than concurrent sentences.

. The

Supreme Court upheld the constitutionality of the Oregon statute and found that it

did not violate the Sixth Amendment concerns set out under Apprendi and Blakely.

. Ultimately, the Supreme Court stated that, in light of historical

practices and the right of states to administer their criminal justice systems, the

Sixth Amendment did not prevent states from allowing judges, rather than juries,

to make any finding of facts necessary to the imposition of consecutive, rather

than concurrent, sentences.

.

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{¶38} Sabo claims that the United States Supreme Court’s decision

controls over the Ohio Supreme Court’s decision as to matters of federal

constitution law. See Minnesota v. National Tea Co. (1940),

,

,

; State v. Storch (1993),

,

. However, this Court recently addressed the potential effects of

Oregon v. Ice in State v. Blackburn, 3d Dist. No. 5-09-18,

, ¶¶6-

11, accepted for appeal by State v. Blackburn,

, 2010-Ohio-

799, __ N.E.2d __, and ultimately rejected the argument that Foster had been

overruled.

{¶39} In Blackburn, we followed the reasoning of several other districts

that have acknowledged the Oregon v. Ice decision, but have found that until the

Ohio Supreme Court fully reviews and ultimately reverses its Foster decision,

Foster remains binding upon this Court. State v. Robinson, 8th Dist. No. 92050,

; State v. Franklin, 10th Dist. No. 08AP-900,

;

State v. Krug, 11th Dist. No. 2008-L-085,

; State v. Miller, 6th

Dist. No. L-08-1314,

. We stated that while a re-examination of

Ohio’s sentencing statutes might be appropriate considering the Oregon v. Ice

decision, such a review may only be performed by the Ohio Supreme Court. Id. at

¶9, citing State v. Crosky, 10th Dist. No. 90AP-57,

, ¶7; State v.

Miller, 6th Dist. No. L-08-1314,

, ¶18. Therefore, we are bound

to follow the law and decisions of the Supreme Court, unless or until they are

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reversed or overruled.

citing State v. Mickens, 10th Dist. No. 08AP-743,

.

{¶40} Moreover, as Sabo acknowledges in his brief, we noted that recently

in State v. Elmore,

,

,

, the

Ohio Supreme Court briefly discussed Oregon v. Ice. Id. at ¶10. However, while

the Court did not fully address the full ramifications of Oregon v. Ice, because

neither party had briefed the issue before oral argument, in its decision affirming

the trial court’s authority to impose consecutive sentences on the defendant, the

Ohio Supreme Court stated that “Foster did not prevent the trial court from

imposing consecutive sentences; it merely took away a judge’s duty to make

findings before doing so.” Blackburn,

, quoting

Elmore,

. Thus, although the Court has not yet fully

analyzed the implications of Oregon v. Ice as it relates to Foster, it appears that it

has still continued to follow the principles set forth in Foster. See Crosky, 2009-

Ohio-4216, at ¶8.

{¶41} Finally, Sabo points out that R.C. 2929.14 has been amended by the

General Assembly eleven times since the Foster decision, but yet in each of its

amendments, the statute has maintained the original language pertaining to judicial

fact-finding and consecutive sentences. Sabo claims that given the existence of

the original language in R.C. 2929.14, the United States Supreme Court’s decision

in Oregon v. Ice nullified the Foster decision pertaining to that language and

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brought it back into full effect. We disagree. Regardless of whether the original

language has remained part of the statute since Foster, it is clear that under the

separation of powers doctrine the Ohio Supreme Court’s role is not only to apply

the enactments of the General Assembly but also to determine the statute’s

constitutionality. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999),

,

(“The power and duty of the judiciary to

determine the constitutionality and, therefore, the validity of the acts of the other

branches of government have been firmly established as an essential feature of the

Ohio system of separation of powers.”); see, also, Beagle v. Walden (1997),

,

(“[i]nterpretation of the state and federal

Constitutions is a role exclusive to the judicial branch”). Moreover, it is also clear

that when the Court declares a statute unconstitutional, severing the

unconstitutional portions of the statute is a remedy within the Court’s power. See

R.C. 1.50; Simmons-Harris v. Goff (1999),

,

.

Here, severing the unconstitutional portions of R.C. 2929.14(E)(4), which

pertained to judicial fact-finding, is exactly what the Ohio Supreme Court choose

to do; therefore, regardless of the existence of the language over the past few

years, it is clear that the Court’s declaration of the unconstitutionality and

consequential severance of mandatory judicial fact-finding was a valid excision of

the language and still remains binding upon this Court. It is not the place of this

Court to declare unconstitutional a decision of our Supreme Court, and we must

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defer to the authority of the Ohio Supreme Court regarding the constitutionality of

Foster. See State v. Combs, 2nd Dist. No. 22743,

, ¶12, citing

State v. Bell,

,

,

(“a

claim that a decision of the Supreme Court of Ohio is unconstitutional is not

cognizable in this court.”)

{¶42} Therefore, as we stated in Blackburn, until the Ohio Supreme Court

fully addresses Oregon v. Ice and overrules its decision in Foster, Foster remains

binding law in the state of Ohio. State v. Blackburn, 3d Dist. No. 5-09-18, 2009-

Ohio-5902, ¶¶6-11.

{¶43} Sabo’s second assignment of error is, therefore, overruled.

{¶44} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jnc

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