[Cite as State v. Kosto,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 17 CA 54 THOMAS KOSTO

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 16 CR 649

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: May 14, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CLIFFORD J. MURPHY ROBERT E. CALESARIC ASSISTANT PROSECUTOR 35 South Park Place 20 North Second Street, 4th Floor Suite 150 Newark, Ohio 43055 Newark, Ohio 43055 Licking County, Case No. 17 CA 54 2

Wise, John, P. J.

{¶1} Defendant-Appellant Thomas Kosto appeals his conviction for involuntary

manslaughter and other offenses in the Court of Common Pleas, Licking County. Plaintiff-

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

{¶2} On May 29, 2015, Chad Baker, an adult male, was found unconscious in

the bathroom of the house on South Williams Street in Newark that he shared with his

fiancée, Katie O. A single syringe was in the bathroom, but a subsequent police search

turned up no additional drug paraphernalia or illegal drugs. After discovering Chad, Katie

called 911 and performed CPR. First responders found Chad’s chest and abdomen were

still warm to the touch. Paramedics attempted two doses of Narcan to revive Chad.

However, he was thereafter pronounced dead at Licking Memorial Hospital.

{¶3} According to Chad’s fiancée Katie, she and Chad had both been heroin

users in the past, but both had been through rehabilitation programs and had been free

of the drug for several years. Tr. at 130-133. Katie and Chad were both employed and

had an eighteen-month-old child together. Katie later stated that any discovery by her of

evidence of Chad’s return to heroin use would have “meant trouble” in their relationship.

Tr. at 141-142.

{¶4} Dr. Charles Jeffrey Lee, the chief forensic pathologist and deputy coroner

for Licking County performed the autopsy on Chad’s body, as further discussed infra.

Among other things, his toxicology report showed Chad had heroin, cocaine, and “a little

marijuana” in his system when he died. Tr. at 229. Dr. Lee listed Chad’s manner of death

as accidental. Tr. at 261. Licking County, Case No. 17 CA 54 3

{¶5} Law enforcement investigators recovered some of Chad’s deleted cell

phone texts. Some of these were messages between Appellant Kosto and Chad on the

evening of May 28, 2015, including appellant texting the statement: “I’m doing a shot with

you so hurry if you can. Lol.” Appellant also texted: “Iv got a new rig for you too. If you like

it I can get u more.” Appellant admitted to Detective Todd Green that he had deleted some

of his texts because it looked like he was the one that helped Chad get heroin. Tr. at 362,

383.

{¶6} Further investigation indicated that appellant had been in frequent contact

with his dealer, Nicole Fannin, during the month of May 2015, and that appellant was the

sole source of heroin to Chad in the forty-eight hours prior to his death. Nicole later

testified that she was selling heroin to appellant on a daily basis, in quantities no less than

one-half of a gram, throughout May 2015. Tr. at 297.

{¶7} On October 20, 2016, the Licking County Grand Jury indicted appellant on

one count of involuntary manslaughter (R.C. 2903.04(A)/(C)), one count of corrupting

another with drugs (R.C. 2925.02(A)(3)/(C)(1)(a)), one count of tampering with evidence

(R.C. 2921.12 (A)(1)/(B)) and one count of heroin possession (R.C. 2925.11(A)/(C)(6)(a)).

{¶8} The case proceeded to a jury trial commencing on June 27, 2017.

{¶9} On June 29, 2017, appellant was found guilty of all four of the above counts.

{¶10} The trial court, upon merging Counts 1, 2, and 4, sentenced appellant to an

aggregate prison term of 5 years.

{¶11} On July 19, 2017, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error: Licking County, Case No. 17 CA 54 4

{¶12} “I. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S RULE 29

MOTION FOR ACQUITAL [SIC] AND IN NOT INSTRUCTING THE JURY IN

ACCORDANCE WITH BURRAGE V. UNITED STATES,

(2014).

{¶13} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY ALLOWING THE STATE TO PUT ON EXPERT TESTIMONY

WITHOUT COMPLYING WITH CRIMINAL RULE 16 DENYING APPELLANT DUE

PROCESS OF LAW.

{¶14} “III. THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

I.

{¶15} In his First Assignment of Error, appellant contends the trial court erred in

denying his motion for acquittal and in failing to properly provide jury instructions on the

charge of involuntary manslaughter.1

Motion for Acquittal: Involuntary Manslaughter

{¶16} An appellate court reviews a denial of a Crim.R. 29 motion for acquittal

using the same standard used to review a sufficiency of the evidence claim. See State v.

Larry, 5th Dist. Holmes No. 15CA011,

, citing State v. Carter (1995),

,

, 1995–Ohio–104. Thus, “[t]he 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

1 We are utilizing the assigned error set forth in the text of appellant’s brief, which does not match the one placed in his table of contents. Licking County, Case No. 17 CA 54 5

a reasonable doubt.” State v. Jenks (1991),

,

,

paragraph two of the syllabus.

{¶17} Appellant herein was convicted of involuntary manslaughter (Count 1),

which is set forth in R.C. 2903.04(A) as follows: “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.”

{¶18} The predicate offense in this instance (Count 2) was corrupting another with

drugs under R.C. 2925.02(A)(3), which states as follows: “No person shall knowingly ***

[b]y any means, administer or furnish to another or induce or cause another to use a

controlled substance, and thereby cause serious physical harm to the other person, or

cause the other person to become drug dependent.”

{¶19} Count 2 of the indictment includes the language “to wit: Heroin, a Schedule

I controlled substance.”

{¶20} In support of his argument, appellant directs us to Burrage v. United States,

––– U.S. ––––,

,

(2014), which involved a penalty

enhancement provision under

(b)(1)(C). Said federal statute in

essence imposes a 20–year mandatory minimum sentence on a defendant who

unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results

from the use of such substance.” The United States Supreme Court in Burrage granted

certiorari on two questions, the first of which was whether the defendant could be

convicted under the “death results” provision when the use of the controlled substance

was a “contributing cause” of the death. Id. at 886. The Court first determined that the

federal statute in question imposes a requirement of “but-for causation.” Id. at 889-891. Licking County, Case No. 17 CA 54 6

Although the Government proposed the argument that an act or omission should be

considered a cause-in-fact if it was a “substantial” or “contributing” factor in producing a

given result, this was rejected by the Court. Id. at 890. The Court instead stated: “The

language Congress enacted requires death to ‘result from’ use of the unlawfully

distributed drug, not from a combination of factors to which drug use merely contributed.”

Id. at 891. The Court proceeded to hold that “*** at least where use of the drug distributed

by the defendant is not an independently sufficient cause of the victim's death or serious

bodily injury, a defendant cannot be liable under the penalty enhancement provision of

(b)(1)(C) unless such use is a but-for cause of the death or injury.” Id. at

892.

{¶21} In the case sub judice, the State of Ohio was required to prove under R.C.

2903.04(A) that appellant had caused the death of Chad Baker as a proximate result of

his committing or attempting to commit the felony offense of corrupting another with drugs

under R.C. 2925.02(A)(3). We note the indictment and the bill of particulars both allege

that the cause of Chad Baker's death was based on the felony of corrupting another

specifically with heroin. However, the record before us reveals that said theory is not fully

consistent with Dr. Lee’s investigation. He specifically testified that “acute combined drug

effects” from “[u]sing heroin and cocaine” were the cause of Chad’s death. Tr. at 243

(emphasis added). Dr. Lee also could not opine on cross-examination that Chad would

have died from the heroin use in and of itself. In other words, there is arguably a

reasonable probability that but for the use of cocaine, the death would not have occurred.

Appellant was not charged with providing cocaine to Chad, nor did the State pursue a Licking County, Case No. 17 CA 54 7

theory that appellant did so. In particular, the jury heard the following testimony by Dr.

Lee during his cross-examination:

Q. Okay. Let’s go back and talk about that tycol - toxicology report.

So, I was kind of processing your testimony the other day, and your theory

is the combined effect of cocaine and heroin caused Mr. Baker’s death.

Correct?

A. That’s correct.

Q. So, not just the heroin?

A. Correct.

Q. So, but for the use of the cocaine, do you know whether or not

the heroin would have killed him?

A. No.

Q. Or, are we guessing?

A. It would be a guess. There’s no way to tell for sure if he would

have died of only heroin. There’s no way to tell if he would have died only

of cocaine. But, certainly, he died when they were both mixed together.

That’s the best that we can - -

Q. I appreciate your honesty.

A. - - get out of this.

{¶22} Tr. at 261.

{¶23} Thus, just as in Burrage, “[n]o expert was prepared to say that [the victim]

would have died from the heroin use alone.” Id. at 890 Licking County, Case No. 17 CA 54 8

{¶24} We recognize that in Burrage, the United States Supreme Court was

interpreting a penalty enhancement provision in a federal statute, not an Ohio criminal

statute. However, this distinction does not dissuade us from applying the rationale of

Burrage herein, and “*** we cannot amend statutes to provide what we consider a more

logical result.” State v. Link,

, 2003–Ohio–6798,

, citing State v. Virasayachack (2000),

,

.

Accordingly, upon review, we find insufficient evidence was presented for reasonable fact

finders to conclude beyond a reasonable doubt that appellant was guilty of involuntary

manslaughter as charged by the State.

Motion for Acquittal: Corrupting Another with Drugs

{¶25} Appellant was also convicted of violating R.C. 2925.02(A)(3), which, as set

forth earlier, states in pertinent part as follows: “No person shall knowingly *** [b]y any

means, administer or furnish to another or induce or cause another to use a controlled

substance, and thereby cause serious physical harm to the other person, or cause the

other person to become drug dependent.”

{¶26} Pursuant to R.C. 2901.01(A)(5), “serious physical harm to persons” means

any of the following:

(a) Any mental illness or condition of such gravity as would normally

require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity,

whether partial or total, or that involves some temporary, substantial

incapacity; Licking County, Case No. 17 CA 54 9

(d) Any physical harm that involves some permanent disfigurement

or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to

result in substantial suffering or that involves any degree of prolonged or

intractable pain.

{¶27} In the case sub judice, in addition to the aforementioned medical testimony,

much of the focus at appellant’s trial was on a reconstruction of the timeline of Chad

Baker’s death, evidence (particularly via text messages and the testimony of Nicole

Fannin) concerning the provider of heroin to appellant and subsequently to Chad, and

certain statements and actions by appellant after Chad died. The time frame of the usage

of heroin and cocaine by Chad were reconstructed from autopsy and toxicology reports

by Dr. Lee. The doctor also described in general terms what a heroin overdose typically

does to a human body, eventually causing death “because you’re not breathing as

enough --- as you need to for your oxygen.” Tr. at 241. The State further put on evidence

that Chad had used heroin and cocaine between 7:00 PM and 11:00 PM on May 28,

2015, that he also used heroin between 2:00 AM and 4:00 PM on May 29, 2015, and that

he used heroin again minutes before his death in the early morning hours of May 29,

2015. Evidence was also adduced that appellant provided Chad with a “rig,” i.e., a pre-

loaded syringe that would help conceal Chad’s relapse to heroin usage from his fiancée,

Katie.

{¶28} However, our review of the record reveals a dearth of expert testimony on

the connection of Chad’s heroin use per se to the question of “serious physical harm” to

him. While we herein refuse to naively understate the physical dangers of illegal heroin Licking County, Case No. 17 CA 54 10

use, it is well-established that the State bears the burden of establishing each and every

element of a charged crime and must do so with proof beyond a reasonable doubt. See,

e.g., State v. Buckner, 5th Dist. Richland No. 2016 CA 101,

, citing

In re L.R., 8th Dist. Cuyahoga No. 93356,

, ¶ 11. We note that during

redirect examination, Dr. Lee was asked by the prosecutor if there was “any way to know

whether Chad used weak heroin, strong heroin, or any combination?” He replied: “He

used enough that it killed him --- that’s all I can say.” Tr. at 281. However, just moments

before that, Dr. Lee had reiterated that the cause of death for Chad was a combination of

cocaine and heroin. See Tr. at 278.

{¶29} We hereby hold that the “but-for causality” rationale of Burrage must also

be applied to the element of “causing serious physical harm” to another under R.C.

2925.02(A)(3), and accordingly, upon review, we find insufficient evidence was presented

in this instance for reasonable fact finders to conclude beyond a reasonable doubt that

appellant was guilty of corrupting another with drugs, namely heroin, as charged by the

State.

Jury Instruction Issue

{¶30} Appellant’s remaining argument essentially goes to the question of whether

the lack of a Burrage-based jury instruction constituted reversible error. As the State notes

in response, appellant never requested a jury instruction regarding any requirement that

heroin would have to be found to be the sole cause of Chad Baker’s death. An error not

raised in the trial court must be plain error for an appellate court to reverse. See State v.

Long (1978),

,

; Crim.R. 52(B). However, based on our Licking County, Case No. 17 CA 54 11

previous conclusions in the present assigned error, we find the jury instruction issue as

presented to be moot. See App.R. 12(A)(1)(c).

{¶31} Appellant’s First Assignment of Error is therefore sustained in part and

found moot in part.

II.

{¶32} In his Second Assignment of Error, appellant contends the trial court erred

to his prejudice by allowing the State to put on the expert testimony of Dr. Lee without

fully complying with the written summary report requirements of Crim.R. 16(K).

{¶33} We find appellant’s arguments would impact the counts of involuntary

manslaughter and corrupting another with drugs only (see Assignment of Error I), not the

remaining counts of tampering with evidence and heroin possession. Thus, based on our

previous conclusions herein, we find the present assigned error is moot.

III.

{¶34} In his Third Assignment of Error, appellant contends his convictions for

involuntary manslaughter and corrupting another with drugs were against the manifest

weight of the evidence.

{¶35} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury 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. Martin (1983),

,

.

See also, State v. Thompkins (1997),

,

. The granting Licking County, Case No. 17 CA 54 12

of a new trial “should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.”

. Even though a

manifest weight analysis may involve an appellate court's consideration of credibility (see

State v. Sanders,

, 2016–Ohio–7204, ¶ 38 (5th Dist.)), the weight to be

given to the evidence and the credibility of the witnesses are primarily issues for the trier

of fact (see, e.g., State v. Jamison (1990),

,

).

{¶36} Under the present circumstances, we find the arguments in this assigned

error are also moot.

{¶37} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is hereby affirmed in part and reversed in part. Appellant’s

convictions under Counts 3 and 4 of the indictment are affirmed. Appellant’s convictions

under Counts 1 and 2 of the indictment are reversed, and the matter is remanded for re-

sentencing.

By: Wise, P. J.

Wise, Earle, J., concurs.

Hoffman, J., concurs in part and dissents in part.

JWW/d 0420 Licking County, Case No. 17 CA 54 13

Hoffman, J., concurring in part and dissenting in part.

{¶38} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error as it relates to his conviction for involuntary manslaughter. However,

I respectfully dissent from its disposition therein as it relates to his conviction for corrupting

another with drugs.

{¶39} I find a clear distinction between the two charges. Because corrupting

another with drugs, by definition, can be supported by evidence administering or

furnishing heroin to another “carries a substantial RISK of death” (emphasis added) the

Burrage “but for” rationale does not apply. I find the evidence noted in the majority opinion

at paragraph 27 provides sufficient evidence to support Appellant’s conviction.2

2 I further concur in the majority’s analysis and disposition of Appellant’s second assignment of error.