State v. Kosto ( 2018 )

[Cite as State v. Kosto, 2018-Ohio-1925.]
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, 571 U.S. ___ (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, 2016-Ohio-829, ¶ 20, citing State v. Carter (1995),
72 Ohio St.3d 545, 553, 651 N.E.2d 965, 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), 61 Ohio St.3d 259, 574 N.E.2d 492,
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. ––––, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014), which involved a penalty
enhancement provision under 21 U.S.C. Sec. 841(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
21 U.S.C. § 841(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, 155 Ohio App.3d 585, 2003–Ohio–6798, 802 N.E.2d 680, ¶
17, citing State v. Virasayachack (2000), 138 Ohio App.3d 570, 741 N.E.2d 943.
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, 2018-Ohio-233, ¶ 23, citing
In re L.R., 8th Dist. Cuyahoga No. 93356, 2010-Ohio-15, ¶ 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), 53 Ohio St.2d 91, 372 N.E.2d 804; 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), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. 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.” Martin at 175, 485 N.E.2d 717. Even though a
manifest weight analysis may involve an appellate court's consideration of credibility (see
State v. Sanders, 76 N.E.3d 468, 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), 49 Ohio St.3d 182, 552 N.E.2d 180).
{¶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.