STATE OF OHIO v. THOMAS KOSTO
Case No. 17 CA 54
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 14, 2018
2018-Ohio-1925
Hоn. John W. Wise, P. J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, Jr., J.
Criminal Appeal from the Court of Common Pleas, Case No. 16 CR 649. Affirmed in Part; Reversed in Part and Remanded.
JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
DATE OF JUDGMENT ENTRY: May 14, 2018
APPEARANCES:
For Plaintiff-Appellee
CLIFFORD J. MURPHY ASSISTANT PROSECUTOR 20 North Second Street, 4th Floor Newark, Ohio 43055
For Defendant-Appellant
ROBERT E. CALESARIC 35 South Park Place Suite 150 Newark, Ohio 43055
{¶1} Defendant-Appellant Thomas Kоsto 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.
{¶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 Grаnd Jury indicted appellant on one count of involuntary manslaughter (
{¶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:
{¶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
{¶17} Appellant herein was convicted of involuntary manslaughter (Count 1), which is set forth in
{¶18} The prеdicate offense in this instance (Count 2) was corrupting another with drugs under
{¶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, 571 U.S. ___, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014), which involved a penalty enhancement provision under
{¶21} In the case sub judice, the State of Ohio was required to prove under
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 nо 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
Motion for Acquittal: Corrupting Another with Drugs
{¶25} Appellant was also convicted of violating
{¶26} Pursuant to
- Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
- Any physical harm that carries a substantial risk of death;
- Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; - 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 mеdical 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 оf 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
{¶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 anоther under
Jury Instruction Issue
{¶30} Appellant‘s remaining argumеnt 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;
{¶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
{¶33} We find appellant‘s arguments would impact the counts of involuntary manslaughter and corrupting anothеr 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
{¶36} Under the present circumstances, we find the arguments in this assigned еrror 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
{¶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 distinctiоn 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