State v. Sabo , 2010 Ohio 1261 ( 2010 )

[Cite as State v. Sabo, 2010-Ohio-1261.]
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), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, superseded by
State constitutional amendment on other grounds as stated in State v. Smith (1997),
80 Ohio St.3d 89, 684 N.E.2d 668.
{¶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), 78 Ohio St.3d 380, 387,
678 N.E.2d 541. 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. Id. 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, 2006-Ohio-3764, ¶30, citing
State v. Martin (1983), 20 Ohio App.3d 127, 175, 485 N.E.2d 717; Thompkins, 78
Ohio St.3d at 387. 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), 82 Ohio St.3d 323, 329, 695 N.E.2d 763; State v. Frazier (1995), 73 Ohio
St.3d 323, 652 N.E.2d 1000.
{¶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), 91
Ohio St.3d 335, 346, 744 N.E.2d 1163. 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), 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Reversal
on plain error is to be used “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage” of justice. Id.{¶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, 2006-Ohio-5159, ¶66, citing State v. Morris, 105 Ohio App.3d 552, 556, 664
N.E.2d 950.
{¶25} This Court has previously cited to the 10th District’s decision in
State v. Losey (1985), 23 Ohio App.3d 93, 94-95, 491 N.E.2d 379, for guidance on
the intention of the Legislature in its use of “proximate result” under R.C.
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2903.04. See Shoemaker, 2006-Ohio-5159, at ¶65. 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), 53 Ohio App.2d 266, 373 N.E.2d 393 [7
O.O.3d 326. 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),
22 Ohio App.2d 16, 457 N.E.2d 414 [51 O.O.2d 15].
Losey, 23 Ohio App.3d at 95.
{¶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), 65 Ohio App.3d
777, 783-84, 585 N.E.2d 487 (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
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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. __, 129 S.Ct. 711, 172 L.Ed.2d 517, overruled the Ohio
Supreme Court’s decision in State v. Foster (2006), 109 Ohio St.3d 1, 2006-Ohio-
856, 845 N.E.2d 470. 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, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, 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), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and Apprendi
v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. 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. 129 S.Ct. at 714-20. 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.
Id. at 719. 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. Id. at 716-20.
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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), 309 U.S. 551, 557,
60 S.Ct. 676, 83 L.Ed. 920; State v. Storch (1993), 66 Ohio St.3d 280, 291, 612
N.E.2d 305. However, this Court recently addressed the potential effects of
Oregon v. Ice in State v. Blackburn, 3d Dist. No. 5-09-18, 2009-Ohio-5902, ¶¶6-
11, accepted for appeal by State v. Blackburn, 124 Ohio St.3d 1505, 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,
2009-Ohio-3379; State v. Franklin, 10th Dist. No. 08AP-900, 2009-Ohio-2664;
State v. Krug, 11th Dist. No. 2008-L-085, 2009-Ohio-3815; State v. Miller, 6th
Dist. No. L-08-1314, 2009-Ohio-3908. 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, 2009-Ohio-4216, ¶7; State v.
Miller, 6th Dist. No. L-08-1314, 2009-Ohio-3908, ¶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. Id., citing State v. Mickens, 10th Dist. No. 08AP-743,
2009-Ohio-2554.
{¶40} Moreover, as Sabo acknowledges in his brief, we noted that recently
in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, 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, 2009-Ohio-5902, at ¶¶10-11, quoting
Elmore, 2009-Ohio-3478, at ¶36. 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),
86 Ohio St.3d 451, 462, 715 N.E.2d 1062 (“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), 78
Ohio St.3d 59, 62, 676 N.E.2d 506 (“[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), 86 Ohio St.3d 1, 17, 711 N.E.2d 203.
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, 2009-Ohio-4109, ¶12, citing
State v. Bell, 176 Ohio App.3d 378, 2008-Ohio-2578, 891 N.E.2d 1280, ¶130 (“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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