Petition for Writ of Certiorari — Rubin L. Williams, Petitioner v. Ohio

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APPENDIX A

State v. Williams. 2020-Qhio-5634. 2020 Ohio LEXIS 2779 (Ohio, Dec. 15, 2020)

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DEC 15 2020

CLERK OF COURT

su PREME COURT OF OHIO

State of Ohio

Case No. 2020-1197

v.

ENTRY

Rubin L. Williams

Upon consideration of the jurisdictional memoranda filed in this case, the court

declines to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R,„ 7.08(B)(4).

(Columbiana County Court of Appeals; No. 19 CO 0010)

ajuAjlx

J

Maureen O’Connor

Chief Justice

The Official Case Announcement can be found at http://www.supremecourt.ohio.gov/ROD/docs/

APPENDIX B

State v. Williams. 2020-0hio-4430

ii

State v. Williams, 2020-0hio-4430

Copy Citation

Court of Appeals of Ohio, Seventh Appellate District, Columbiana County

August 21, 2020, Decided

Case No. 19 CO 0010

Reporter

2020-0hio-4430 *

2020 Ohio Ann. LEXIS 3316 ** I 2020 WL 5525263

STATE OF OHIO, Plaintiff-Appellee, v. RUBIN L. WILLIAMS, DefendantAppellant.

Subsequent History: Motion denied by, Judgment entered by State v. Williams1

2020-0hio-5045. 2020 Ohio Ann. LEXIS 3899. 2020 WL 6266935 (Ohio Ct. App.,

Cnhimhiana Countv. Oct. 23. 2020)

Discretionary appeal not allowed by State v. Williams, 160 Ohio St. 3d 1497, 2020Ohio-5634. 2020 Ohio LEXIS 2779. 159 N.E.3d 284, 2020 WL 7347761 (Ohio, Dec.

15. 2020)

Discretionary appeal not allowed by State v. Williams. 2021-Qhio-254, 2021 Ohio

LEXIS 198 (Ohio. Feb. 2. 2021)

Prior History:

[**11 Criminal Appeal from the Court of Common Pleas of Columbiana County,

Ohio. Case No. 2018-CR-155.

Disposition:

Affirmed.

Core Terms

fentanyl, but-for, causation, drugs, heroin, legal cause, foreseeable, involuntary

manslaughter, weight of the evidence, pink, injected, phone, actual cause, controlled

substance, assigned error, drug overdose, overdose, supplied, credibility, packet,

mixed, independent cause, proximate result, delivery, manifest, felony, runner,

cases, defendant's conduct, drug trafficking

Page 1 of 23

Case Summary

Overview

HOLDINGS: [^-Sufficient evidence supported defendant’s conviction for

involuntary manslaughter under R.C. 2903.04(A), with the underlying felony

offense of drug trafficking under R.C. 2925.03(A)(1), because, from the direct and

circumstantial evidence presented at the trial, a rational juror could have concluded

that defendant sold the fentanyl which was injected by the decedent; [2]-Because

the coroner concluded the dose of fentanyl in the decedent's system was lethal and

she would still be alive but for taking the fentanyl, it could have been found that the

fentanyl was the actual cause (or cause-in-fact) of the decedent's death. The

testimony indicated that the decedent believed she was receiving and injecting

heroin, not fentanyl, and the facts suggested that fentanyl was the final controlled

substance ingested and was not anticipated by the decedent to be fentanyl.

Outcome

Judgment affirmed.

HN1 Witnesses, Credibility

The standard for reviewing the sufficiency of the evidence to support a criminal

conviction on appeal is the same as the standard used to review the denial of a

motion for acquittal. Whether the evidence is legally sufficient to sustain a

conviction is a question of law dealing with adequacy. An evaluation of witness

credibility is not involved in a sufficiency review as the question is whether the

evidence is sufficient if believed. In other words, sufficiency involves the State's

burden of production rather than its burden of persuasion.

HN2 Substantial Evidence, Sufficiency of Evidence

A conviction can be sustained based on circumstantial evidence alone.

Circumstantial evidence inherently possesses the same probative value as direct

evidence.

HN3 Substantial Evidence, Sufficiency of Evidence

A conviction cannot be reversed on the grounds of insufficient evidence unless the

reviewing court determines that no rational juror could have found the elements of

the offense proven beyond a reasonable doubt. In conducting this review, all of the

Page 2 of 23

evidence is to be viewed in light most favorable to the prosecution. Reasonable

inferences to be drawn from the evidence are also evaluated in the light most

favorable to the state. The question is merely whether any rational trier of fact

could have found the essential elements proven beyond a reasonable doubt

HN4 Involuntary Manslaughter, Elements

First-degree felony involuntary manslaughter has the relevant following elements:

cause the death of another as a proximate result of the offender's committing or

attempting to commit a felony. R.C. 2903.04(A), (C).

HN5 Acts & Mental States, Actus Reus

In general, when a crime requires both conduct and a specific result of the conduct,

a defendant's conduct must be both the actual cause and the legal cause of the

result.

HN6 Involuntary Manslaughter, Elements

The United States Supreme Court has defined the involuntary manslaughter

element of "death results" as requiring but-for causation so that the State was

required to prove that the decedent would not have died but for the defendant's

conduct. In other words, the prosecution must submit proof that the harm would not

have occurred in the absence of—that is, but for—the defendant's conduct. The

Court first gave the simple example of a defendant shooting a victim who dies from

the gunshot, stating the defendant actually caused the death because but for the

conduct, the decedent would not have* died. Notably, the same conclusion follows if

the predicate act combines with other factors to produce the result, so long as the

other factors alone would not have done so—if, so to speak, it was the straw that

broke the camel's back.

HN7 Involuntary Manslaughter, Elements

Regarding the involuntary manslaughter element of "death results," the defendant's

conduct can still be an independent cause even though his conduct was not the butfor cause of death if the victim would have died anyway.

HN8 Delivery, Distribution & Sale, Penalties

The United States Supreme Court has held 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.S. § 841(b)(l)(C)unless such use is a but-for

cause of the death or injury.

HN9 Acts & Mental States, Actus Reus

R.C. 2903.04. involuntary manslaughter, requires a defendant to cause the death of

another as a proximate result of committing or attempting to commit a felony. R-CL

Page 3 of 23

2903.04(AHU. Ohio courts regularly conclude the "proximate result" language in the

involuntary manslaughter statute requires the State to show: (1) actual cause

generally through the but-for test; and then; (2) legal cause, through the

foreseeability test. Ohio's standard jury instruction first defines cause as an act or

failure to act which in a natural and continuous sequence directly produces the

death of another, and without which it would not have occurred; it then explains

that natural consequences include the foreseeable consequences that follow in the

ordinary course of events. The language, "without which it would not have

occurred," encapsulates but-for causation.

HN10 Felony Murder, Elements

In order for a criminal defendant's conduct to be the proximate cause of a fatal

result in a felony murder case, the court must first determine whether the killings

would not have occurred but for the defendant's conduct. The court must then

determine whether the result varied greatly from the intended outcome or

foreseeable result of the underlying crime.

HN11 Involuntary Manslaughter, Elements

The but-for test of causation is the standard test for establishing cause in fact. A

substantial factor can be used in civil cases where a plaintiff suffers a single injury

as a result of the tortious acts of multiple defendants. In criminal cases involving

the involuntary manslaughter statute and a mixed drug overdose, some Ohio

appellate courts have expressed that, contrary to Burrage, a substantial factor test

can be applied

HN12 Acts & Mental States, Actus Reus

The independent cause test is not the same as but-for causation. If the situation

does not satisfy the independent cause test, then but-for causation would apply.

This was stated after pointing out that the independent cause test was not before

the United States Supreme Court. Therefore, in applying the but-for test to actual

cause, the United States Supreme Court did not require the prosecution to show the

drug supplied would have killed the decedent if there were no other drugs in her

system

HN13 Expert Witnesses, Daubert Standard

In response to an argument on the failure to modify an opinion by reasonable

degree of scientific certainty language, the Ohio Supreme Court has pointed out

that Evid.R. 702 requires that an expert's testimony be based on reliable scientific,

technical, or other specialized information.

HN14 Expert Witnesses, Daubert Standard

The Ohio Supreme Court has held that an expert witness in a criminal cases can

testify in terms of possibility rather than in terms of a reasonable scientific

certainty or probability, and the treatment of such testimony is analyzed under a

Page 4 of 23

sufficiency and weight argument, meaning that it is considered along with all of the

other evidence

•

HN15 Acts & Mental States, Actus Reus

In a criminal case, cause in fact is distinct from proximate, or legal cause. After

cause in fact is established, proximate cause must be demonstrated

HN16 Acts & Mental States, Actus Reus

Foreseeability should be assessed from the viewpoint of what the criminal

defendant knew or should have known in light of ordinary experience

HN17 Delivery, Distribution & Sale, Elements

The possibility of overdose is a reasonably foreseeable consequence of the sale of

heroin

HN18 Burdens of Proof, Prosecution

Weight of the evidence concerns the inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the issue rather than the other, it

deals with the persuasive effect of the evidence in inducing belief and is not a

question of mathematics. A weight of the evidence review considers whether the

state met its burden of persuasion, as opposed to the burden of production involved

in a sufficiency review.

HN19 Witnesses, Credibility

When a defendant claims a conviction is contrary to the manifest weight of the

evidence, the appellate court is to review the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. The appellate court's discretionary power to grant

a new trial on these grounds can be exercised only in the exceptional case where the

evidence weighs heavily against the conviction.

HN20 Province of Court & Jury, Weight of Evidence

The weight to be given the evidence is primarily for the trier of the facts.

HN21 Province of Court & Jury, Credibility of Witnesses

The trier of fact occupies the best position from which to weigh the evidence and

judge the witnesses' credibility by observing their gestures, voice inflections, and

demeanor.

HN22 Witnesses, Credibility

In a case tried by a jury, only a unanimous appellate court can reverse on the

Page 5 of 23

ground that the verdict was against the manifest weight of the evidence. Ohio

Const, art. IV. S 3(B)(3). The power of the court of appeals to sit as the "thirteenth

juror" is limited in order to preserve the jury's role with respect to issues

surrounding the credibility of witnesses and the weight of the evidence. When more

than one competing interpretation of the evidence is available and the one chosen

by the jury is not unbelievable, we do not choose which theory we believe is more

credible and impose our view over that of the jury.

Counsel: Atty. Robert Herron, Prosecutor, Atty. John E. Gamble, Chief Assistant

Prosecutor, Atty. Tammie Riley Jones, Assistant Prosecutor, Lisbon, Ohio, for

Plaintiff-Appellee.

Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd., Ohio, for DefendantAppellant.

Judges: BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D'Apolito, Judges.

Waite, P.J., concurs. D'Apolito, J., concurs.

Opinion by: Carol Ann Robb

OPINION AND JUDGMENT ENTRY

Robb, J.

r*P11 Defendant-Appellant Rubin Williams appeals after being convicted in the

Columbiana County Common Pleas Court of involuntary manslaughter and drug

trafficking. Appellant contests the sufficiency of the evidence on the causation

element of involuntary manslaughter. He says the contributing role played by the

fentanyl he allegedly provided to the decedent did not establish his drug trafficking

was the actual cause of her overdose death due to the mix of drugs in her system.

He relies on the United States Supreme Court's Burrage case, while the state urges

the case is distinguishable. Legal cause is also raised, which invokes a foreseeability

evaluation. Appellant additionally challenges [**21 the weight of the evidence,

stating the jury clearly lost its way on causation. For the following reasons, the trial

court's judgment is affirmed.

STATEMENT OF THE CASE

F*P21 On May 17, 2018, Appellant was indicted for involuntary manslaughter for

causing the death of Jennifer Bettis as a proximate result of committing or

Page 6 of 23

attempting to commit a felony (drug trafficking). SeeR.C. 2903.04(A). Appellant was

also indicted for knowingly selling or offering to sell a controlled substance,

specified as fentanyl (a Schedule II controlled substance). See R.C. 2925.03(A)(1).

The testimony indicated that Appellant's drug runner was to deliver to the decedent

$40 worth of heroin (a Schedule I controlled substance). Instead, the decedent

received a pink substance containing fentanyl, and she died after injecting it.

f*P31 The case was tried to a jury. The decedent's friend testified that she allowed

the decedent to move into her apartment in Salem (to sleep on her couch) some

weeks before the death. The friend was unaware of the decedent's drug use. (Tr.

230). On October 14, 2016, she left her one-year-old child with the decedent in the

afternoon, without anticipating being gone overnight. (Tr. 231, 245). While she was

out, she called and f**31 texted the decedent multiple times with no response. (Tr.

233, 249). She did not return to her home until nearly 6:00 a.m. on October 15,

2016. (Tr. 233). She found the decedent's body in a chair at the kitchen table. On the

table was an uncapped syringe, a spoon with residue, a folded paper packet

containing a pink substance, a lighter, and other drug paraphernalia. (Tr. 237, 280281, 284). A baby gate impeded the entrance to the kitchen, and the child was found

sleeping on the floor by the gate. (Tr. 248).

|~*P41 A Salem police officer testified that he was dispatched at 5:57 a.m. to the

apartment near the police station after a frantic call was made to 911. He observed

there were no signs of forced entry or a struggle, pointing out how the decedent was

still sitting in a kitchen chair with her left leg crossed over her right leg and her

head back. (Tr. 204). He said it was clear she was dead because blood was already

pooling behind her skin in lower spots. (Tr. 211). The detective confirmed the

officer's observations. (Tr. 276-277). He also noticed track marks on the decedent's

inner elbow. (Tr. 280). In addition to the drug paraphernalia on the table, the

decedent's purse contained more 1**41 syringes. (Tr. 280). There was vomit in the

trash can near the body, and there was testimony explaining how a drug addict can

be "dope sick" while awaiting drugs due to withdrawal. (Tr. 290, 392).

r*P51 A forensic scientist from BCI testified that the pink substance in the folded

paper packet contained fentanyl. (Tr. 509). Another BCI forensic scientist testified

that male DNA was present on the exterior of the packet, but it was not suitable for

comparison as it was of insufficient quantity or quality. (Tr. 525). The toxicology

report showed the decedent's blood contained fentanyl, benzodiazepines (anti­

anxiety), dextromethorphan (cough suppressant), and gabapentin (anti-convulsant).

(Tr. 454, 467, 472, 480-483).

r*P61 The decedent's husband testified that they had been separated for seven

years and he had custody of their two children. As the decedent had no car or

license, he drove to the Salem apartment on October 14, 2016 before 4:00 p.m. in

Page 7 of 23

order to transport her to her mother's house so she could attend a parent's day

function the next day. However, she could not leave as she was babysitting. When

she requested $40 for gas money to find a ride the next day, the husband went to a

store to [**51 withdraw the money from an ATM and to buy her a pack of cigarettes.

(Tr. 217-218). He texted the decedent a few hours after he left to provide the time

for the event, but she did not respond. (Tr. 219). The decedent's husband noted that

a year before her death, he picked her up after she was treated at a drug

rehabilitation facility. (Tr. 222). He said she had no chronic health conditions. (Tr.

215).

f*P71 After the police left the apartment, the decedent's friend looked through an

old cell phone which she previously let the decedent use. The phone was logged in to

the decedent's Facebook account, and the friend saw private messages about drug

transactions between the decedent and a person with the profile name of "Scrooug

McDuck." (Tr. 240-241). She brought the phone to the police station but was then

locked out of the decedent's Facebook account. (Tr. 250).

f*P81 The decedent's own phone had already been seized by the police, and they

soon extracted information from it. (Tr. 263, 346-347, 349). By serving a search

warrant on Facebook, they also obtained the decedent's Facebook Messenger

conversations with Scrooug McDuck (such as the one viewed by the friend on her

old phone). (Tr. 305). In the 1**61 meantime, the detective discovered that Scrooug

McDuck's Facebook profile was public and obtained his profile picture, another

nickname, and a list of friends. His girlfriend's name, Ursula Lewis, matched the

name of a person present when a search warrant was executed in Boardman. (Tr.

298-300). After speaking to various law enforcements agencies, the detective

matched Scrooug McDuck's profile picture with the photograph in the state's official

records associated with Appellant Rubin Williams. (Tr. 299-302).

f*P91 The detective also traced a phone number used to communicate with the

decedent around the time of the suspected drug delivery; it was assigned to Nicole

Miladore-Mitchell, who lived at the Boardman house where the recent search

warrant was executed. (Tr. 292-294). The detective found Nicole in jail after she was

arrested for fleeing from the police and crashing a vehicle (which resulted in the

death of her passenger who had been shoplifting just before the crash). (Tr. 309,

420-421). At trial, Nicole testified that she was serving a prison sentence for

involuntary manslaughter, failure to comply, and operating a vehicle while

intoxicated, all associated with the crash. (Tr. 386). P**71 She said Appellant was

her drug dealer, and he came to stay with her (and her boyfriend) in October 2016,

after Appellant got into an argument with his roommate who was also a drug

dealer. (Tr. 388, 408). Appellant's girlfriend Ursula moved into the Boardman house

as well. Nicole received free drugs for her addiction in exchange for allowing

Page 8 of 23

Appellant to operate out of her house and for acting as his drug runner. (Tr. 388391).

r*P101 Nicole said Appellant used her wireless internet connection because he had

a phone with no cellular service. (Tr. 393). She also let him borrow her phone in the

past. (Tr. 410). She observed that Appellant often communicated with her and with

his clients about drug transactions using Facebook Messenger where his profile

name was Scrooug McDuck. (Tr. 394, 427). Nicole testified that she was involved in

deliveries to the decedent in Salem at Appellant's instruction on the day before her

body was discovered and a prior day. (Tr. 396, 413-414). On October 12, 2016, she

was high on drugs while her boyfriend drove to meet the decedent in the parking lot

of the Salem apartment; she said Ursula was with them in the car. (Tr. 413).

r*P111 On October 14, 2016, Nicole drove to f**81 the decedent's apartment alone

after Appellant handed her the packet of drugs, which she believed was heroin. (Tr.

396-397, 414). She said she used her phone to contact the decedent to tell her she

had arrived, and the decedent handed her $40 for the drugs. (Tr. 398-399, 414).

Nicole maintained contact with Appellant on the way to the decedent's location and

on the way home. (Tr. 397, 399, 428-429). Nicole turned over the $40 to Appellant

when she returned to her house. (Tr. 399).

[*P121 Nicole revealed that the day before this delivery, she personally had a bad

experience with heroin Appellant gave her. Prior to injecting it, she observed that it

was pink while heroin is usually brown. She injected the substance in the presence

of her boyfriend, Ursula, and Appellant, and they later informed her that they

feared she was overdosing. (Tr. 400). Later, when Appellant learned of the death, he

expressed his concern to Nicole because the decedent overdosed on the drugs he

provided. (Tr. 401).

(*P131 The coroner explained that due to the increase in drug overdose deaths, the

forensic pathologist in Cuyahoga County informed the various counties serviced by

that office that autopsies for overdoses would 1**91 no longer be performed without

a written statement explaining the need. (Tr. 462-463). The coroner testified that

the decedent's death would not have occurred in the absence of the fentanyl. (Tr.

493). His testimony is further detailed below in addressing the assignments of

error.

[*P141 After Appellant moved for acquittal, he testified in his own defense and

presented the testimony of his former girlfriend. Appellant testified that he began

selling drugs to the decedent in early 2016 but claimed he was not still selling to her

in October of that year. (Tr. 574-575). He said he sold heroin and crack but did not

sell fentanyl as people were not using it yet. (Tr. 585). He claimed his roommate,

who was his supplier, evicted him around October 11, 2016 and took his drug cache.

(Tr. 576, 578, 586). Appellant said after he moved into Nicole's house, Nicole

Page 9 of 23

supplied drugs to the decedent, not him. (Tr. 574-575). He said he used Nicole's

phone and logged in to Facebook but forgot to log out when he gave the phone back

to her, which gave her access to his Facebook account. (Tr. 581-582). He denied

speaking to the decedent through his Facebook account on October 14, 2016. (TR.

582). His criminal history r**101 was discussed. He did not use the drugs he sold

(besides marijuana and some pills), but he noted that his girlfriend and other users

tested his product supply. (Tr. 595-596).

UP 151 Ursula testified that when Appellant's roommate cut off his drug supply in

October 2016, Appellant no longer had drugs to sell and lacked a supplier. She

claimed that Nicole and her boyfriend would pick up drugs from somewhere on the

east side of Youngstown as they had a car. (Tr. 549-550, 553). Still, Appellant

continued to arrange drug sales through Facebook Messenger. (Tr. 559-560). Ursula

knew Nicole brought drugs to the decedent shortly before her death because

Appellant (and Nicole) told her. (Tr. 554). Ursula admitted that after Nicole and her

boyfriend would retrieve and deliver the drugs, they all would split the profit (she

would snort it and they would inject it). (Tr. 556). Ursula acknowledged her

criminal and drug history.

UP 161 The jury found Appellant guilty as charged. The court sentenced Appellant

to eleven years for involuntary manslaughter. On agreement of the parties, the drug

trafficking offense was merged into the greater offense. Appellant filed a timely

notice of appeal from the March 7, 2019 1**111 sentencing entry. He then filed

motions for a new trial and acquittal. As the trial court opined that it could not rule

on the motions pending appeal, this court issued a limited remand order. After the

trial court denied the motions, the appeal was reactivated.

ASSIGNMENT OF ERROR ONE: SUFFICIENCY/CAUSATION

f*P171 Appellant's first assignment of error provides:

"The trial court erred in denying Appellant's motion for acquittal as there was

insufficient evidence to support a conviction for involuntary manslaughter."

UP 181 HN1 The standard for reviewing the sufficiency of the evidence to support a

criminal conviction on appeal is the same as the standard used to review the denial

of a motion for acquittal. See, e.g., Crim.R. 29(A) (referring to insufficient

evidence), £C) (post-verdict motion for acquittal); State v. Williams, 74 Ohio St.3_d

569. 576. 1996- Ohio 91. 660 N.E.2d 724 (1996). Whether the evidence is legally

sufficient to sustain a conviction is a question of law dealing with adequacy. State v.

TVinmpkins 78 Ohio St.3d 380. 386. 1997- Ohio 52. 678 N.E.2d 541 (19971. An

evaluation of witness credibility is not involved in a sufficiency review as the

Page 10 of 23

question is whether the evidence is sufficient if believed. State v. Yarbrough, 95

Ohio St. 3d 227. 2002-Qhio-2126. 767 N.E.2d 216, 1f 79, 82; State v. Murphy, 91

Ohio St.3d 516. 543. 2001- Ohio 112. 747 N.E.2d 765 (2001). In other words,

sufficiency involves the state's burden of production rather than its burden of

persuasion. Thomnkins. 78 Ohio St.3d at 390 (Cook, J., concurring).

T*P191 HN2 "A conviction can r**121 be sustained based on circumstantial

evidence alone." State v. Franklin. 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991).

Circumstantial evidence inherently possesses the same probative value as direct

evidence. State v. Treesh. 90 Ohio St.3d 460. 485, 2001- Ohio 4. 739 N.E.2d 749

(20011.

[*P201 HN3 A conviction cannot be reversed on the grounds of insufficient evidence

unless the reviewing court determines that no rational juror could have found the

elements of the offense proven beyond a reasonable doubt. State v. Goff, 82 Ohio

St.3d 123. 138. 1998- Ohio 369. 694 N.E.2d 916 (1998). In conducting this review,

all of the evidence is to be viewed in light most favorable to the

prosecution. Id. Reasonable inferences to be drawn from the evidence are also

evaluated in the light most favorable to the state. See State v. Filiaggi, 86 Ohio

St.3d 230. 247. 1999- Ohio 99. 714 N.E.2d 867 (1999). See also Jackson v. Virginia,

443 U.S. 307. 319. 99 S.Ct. 2781. 31 L.Ed.2d 560 (1979) (pointing to reasonable

inferences about both basic and ultimate facts in evaluating the due process

requirement of sufficient evidence). The question is merely whether "any rational

trier of fact" could have found the essential elements proven beyond a reasonable

doubt. (Emphasis original.) See State v. Getsv, 84 Ohio St.3d 180, 193, 1998- Ohio

533. 702 N.E.2d 866 (1998).

[*P211 HN4 First-degree felony involuntary manslaughter has the relevant

following elements: "cause the death of another * ie "k as a proximate result of the

offender's committing or attempting to commit a felony." R.C. 2903.04(A), (C). Here,

the felony was drug trafficking, and Appellant was additionally charged with

knowingly 1**131 selling or offering to sell a schedule II controlled substance.

Fentanyl is a schedule II controlled substance.

r*P221 The state presented the messages between Appellant's Facebook Messenger

account and the decedent arranging the drug sale. The jury heard Nicole testify that

Appellant was her drug dealer, she was his drug runner, and she let him "trap" (sell

drugs) out of her house. He instructed her to deliver drugs to the decedent and

handed her the folded packet of fentanyl which she believed was heroin. Appellant

also kept in contact with his drug runner before and after the delivery and received

the $40 from Nicole when she returned to her house. Nicole nearly overdosed on a

pink substance in front of Appellant the day before the delivery to the decedent, she

noted heroin is usually brown. The police noticed a pink residue on the spoon used

Page 11 of 23

to prepare the drugs for injection and recovered a pink substance from the folded

packet which was on the kitchen table in front of the decedent's body. Forensic

testing showed the pink substance was fentanyl. The testimony presented by

Appellant and his girlfriend contested some of Nicole's testimony, but this was a

consideration for the jury in r**141 determining the weight of the evidence, as

discussed in the second assignment of error. From the direct and circumstantial

evidence presented at the trial, a rational juror could conclude that Appellant sold

the fentanyl which was injected by the decedent.

r*P231 In any event, Appellant's specific argument takes issue with the causation

element of involuntary manslaughter. He contends the state failed to prove that his

conduct of supplying the fentanyl was the actual or legal cause of the decedent's

death. He relies on the United States Supreme Court's Burrage case and the Fifth

District's application of Burrage to reverse a conviction for involuntary

manslaughter in Kosto, a case involving a mixed drug overdose.

[*P241 In Burrage, the defendant was federally indicted for unlawfully distributing

heroin with an additional sentencing enhancement element applying to cases where

"death ie *k it results from the use of such substance." Burrage v. United States, 571

U.S. 204. 206-209. 134 S.Ct. 881. 187 L.Ed.2d 715 (2014), citing 21 U.S.C.

841(b')(l)(C) (mandatory minimum of 20 years, maximum of life). The additional

element was an issue for the trier of fact and had to be proven beyond a reasonable

doubt. Burrage. 571 U.S. at 210. In the Burrage case, the decedent's blood contained

multiple drugs in addition to heroin metabolites, including [**151 codeine,

alprazolam, clonazepam metabolites, and oxycodone. Id. at 207. The two experts

who testified "could not say whether [the decedent] would have lived had he not

taken the heroin." Id. One expert said heroin "was a contributing factor" in the

death as it interacted with the other drugs to cause respiratory and/or central

nervous system depression; the other expert testified similarly and described the

cause of death as "mixed drug intoxication" with heroin, oxycodone, alprazolam, and

clonazepam all playing a "contributing" role, adding only that the death would have

been "[v]ery less likely" without the heroin. Id.

T*P251 After a jury convicted the defendant and the circuit court affirmed, the

United States Supreme Court granted certiorari on two issues: "Whether the

defendant may be convicted under the 'death results' provision (1) when the use of

the controlled substance was a "contributing cause" of the death, and (2) without

separately instructing the jury that it must decide whether the death by drug

overdose was a foreseeable result of the defendant's drug-trafficking offense. Id. at

208.

f*P261 The Burrage Court first outlined the two parts of the causation element in

i a

criminal case: actual cause and [**161 legal cause. Id. at 210. HN5 In general, when

Page 12 of 23

a crime requires both conduct and a specific result of the conduct, a defendant s

conduct must be both the actual cause and the legal cause of the result. Id. The

Court specified that it was only reaching the issue of actual cause. Id. On the topic

of legal cause, the Court said legal cause is also called proximate cause and noted

that the two issues accepted for review corresponded to the two parts of causation

(meaning legal cause involves foreseeability). Id. at 208, 210.

T*P271 On the topic of actual cause, the state argued the "death results" language

of the statute is satisfied if the substance sold was a "contributing factor" or a

"substantial factor" such as when the drug sold was one of the drugs involved in a

mixed drug overdose death. Td. at 214-215. The Court rejected this argument,

stating the lower courts would be left to guess how substantial a cause must be to

qualify and noting Congress could have written the statute to impose a mandatory

minimum when the underlying crime "contributes to" death. Id. at 216, 218.

[*P281 HN6 The Court defined the element "death results" as requiring but-for

causation so that the state was required to prove that the decedent would not have

died but for the defendant's r**171 conduct. Id. at 211-212 (noting that but-for

causation would not be required if a statute contains "textual or contextual

indication to the contrary"). In other words, the prosecution must submit "proof that

'the harm would not have occurred' in the absence of—that is, but for—the

defendant's conduct." Id.at 211.

[*P291 The Court first gave the simple example of a defendant shooting a victim

who dies from the gunshot, stating the defendant actually caused the death because

but for the conduct, the decedent would not have died. Id. Notably: "The same

conclusion follows if the predicate act combines with other factors to produce the

result, so long as the other factors alone would not have done so—if, so to speak, it

was the straw that broke the camel's back." Id.

r*P301 The Court explained that if a defendant poisons a man debilitated by

multiple diseases, the poison is a but-for cause of his death even if the diseases

played a part in his death "so long as, without the incremental effect of the poison,

he would have lived." Id. The Court admonished that "but-for causation is not

nearly the insuperable barrier the Government makes it out to be" and cited two

examples where an expert testified that the drug distributed [**181, by the

defendant was a but-for cause of death even though the decedent's blood contained

several drugs. Id. at 217.

f*P311 As for a cited example of relaxed but-for causation, the Court pointed out

that it was not faced with the type of case where the drug was said to be an

independent cause of death, such as where two strangers each inflict a fatal wound

on a victim at the same moment. Burrage, 571 U.S. at 214-215. HN7

Page 13 of 23

In such

case, the defendant's conduct can still be an independent cause even though his

conduct was not the but-for cause of death since the victim would have died

anyway. Id.

(*P321 HN8 The Court concluded: "We 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." Td. at 218-219. As the government conceded that there was

no evidence the decedent "would have lived but for his heroin use," the Court

reversed the defendant's conviction under the penalty enhancement and

remanded. Id. at 219.

T*P331 First, we note that Burrage was an appeal from a federal conviction where

the non-constitutional issue involved the interpretation [**191 of language in a

federal statute. It is therefore not binding on a state court's interpretation of the

state's own statutes. See, e.g., United States v. Thirty-Seven Photographs, 402 U.SL

363. 369. 91 S.Ct. 1400. 28 L.Ed.2d 822 (1971) ("we lack jurisdiction authoritatively

to construe state legislation"); State v. Phillips, 27 Ohio St.2d 294, 298, 272 N.E.2d

347 (19711 (the reversal of a conviction under a federal statute, which is unrelated

to constitutional grounds that dictate the course of state law, may be persuasive

authority but is not binding on a state court).

f*P341 Second, the Burrage Court noted that a strict but-for test of causation .

would not be applied if a statute contained a "textual or contextual indication to the

contrary." Id. at 212. Subsequently, the Court found such a textual or contextual

indication against but-for causation where a federal statute limited restitution to

losses that are the "proximate result" of the defendant's offense. Paroline v. United

States. 572 U.S. 434. 458. 134 S.Ct. 1710. 188 L.Ed.2d 714

(2014) (noting Burrage mentioned that some statutes may have indicators against

the but-for test). "[S]uch unelaborated causal language by no means requires but-for

causation by its terms." Id. (and indicating the contributing role of the defendant in

the victim's loss due to child pornography should be considered in determining

restitution).

[*P351 HN9 The statute in the case before us requires the defendant to

"cause [**201 the death of another if 4: if as a proximate result" of committing or

attempting to commit a felony. R.C. 2903.04(A). Ohio courts regularly conclude the

"proximate result" language in the involuntary manslaughter statute requires the

state to show: (1) actual cause, generally through the but-for test; and then, (2) legal

cause, through the foreseeability test. See State v. Mitchell, 3rd Dist. Union No. 1419-14. 2019-Qhio-5168. IT 23 (but there can be more than one cause); State v. Potea,

12th Dist. No. CA2016-00-045. 2017-Ohio-2926, 90 N.E.3d 58,1f 33. Ohio's standard

Page 14 of 23

jury instruction (provided in this case) first defines cause as "an act or failure to act

which in a natural and continuous sequence directly produces the death of another,

and without which it would not have occurred"; it then explains that natural

consequences include the foreseeable consequences that follow in the ordinary

course of events. O.J.I., Crim. Section 417.23 (2019). The language, "without which

it would not have occurred," encapsulates but-for causation.

f*P361 Similarly, this court has reviewed a felony-murder conviction under a

statute with the same "cause the death of another rk k k as a proximate result of'

language. State v. Franklin. 7th Dist. Mahoning No. 06-MA-79, 2008-Qhio-2264,1i

18, quoting R.C. 2903.02(B). HN10 We held: "In order for a criminal defendant's

conduct to be the proximate cause of a fatal result in a felony murder

case, [**211 the court must first determine whether the killings would not have

occurred 'but for' the defendant's conduct. The court must then determine whether

the result varied greatly from the intended outcome or foreseeable result of the

underlying crime * * *." Franklin. 7th Dist. No. 06-MA-79, 2008-Qhio-2264 at H 120121. quoting State v. Franklin. 10th Dist. Franklin No. 06AP-1154, 2008-Qhio-462,

125.

r*P371 HN11 The but-for test of causation is the standard test for establishing

cause in fact. Ackison v. Anchor Packing Co.. 120 Ohio St. 3d 228. 2008-Ohio-5243,

897 N.E.2d 1118.1T 48. A substantial factor can be used in civil cases where a

plaintiff suffers a single injury as a result of the tortious acts of multiple

defendants. Pang v. Minch. 53 Ohio St.3d 186. 559 N.E.2d 1313 (1990). In criminal

cases involving the involuntary manslaughter statute and a mixed drug overdose,

some Ohio appellate courts have expressed that, contrary to Burrage, a substantial

factor test can be applied. See State v. Price. 8th Dist. No. 107096, 2019-Qhio-1642,

135 N.E.3d 1093. If 42: State v. Carpenter. 3rd Dist. No. 13-18-16, 2019-Qhio-58,

128 N.E.3d 857. 1 51-52 ("there are circumstances under which the "but for" test is

inapplicable and an act or omission can be considered a cause in fact if it was a

"substantial" or "contributing" factor in producing the result"). See also State w

Hall. 12th Dist. Preble No. CA2015-11-022, 2017-Qhio-879. t 71-74. Nevertheless,

the Price case still suggested but-for causation was satisfied. Price, 8th Dist. No.

107096. 2019-Qhio-1642 at f 42-43 (finding f**221 the trial court instructed the

jury on but-for causation).!

[*P381 These cases rejected the holding in Kosto where the Fifth District found the

evidence was insufficient to show the heroin supplied by the defendant caused the

victim's death under the involuntary manslaughter statute after attempting to

apply but-for causation under the Burrage rationale. State v. Kosto, 5th Dist...

Tacking No. 17 CA 54. 2018-Qhio-1925. IT 24-25.2 The Kosto court concluded: "just

as in Burrage, 'no expert was prepared to say that the victim would have died from

the heroin use alone.'" Id. at IT 23, quoting Burrage, 134 S. Ct. at 890.

Page 15 of 23

T*P391 However, this is a misinterpretation of Burrage. That statement

in Burrage was explaining why the independent cause test was not at issue in that

case;• the statement was not defining but-for causation (an issue which the Court

framed as asking whether the death would not have occurred without the drug

supplied by the defendant). Specifically, this excerpt on "heroin use alone" is

modified by:

courts have not always required strict but-for causality, even where criminal

liability is at issue. The most common (though still rare) instance of this occurs

when multiple sufficient causes independently, but concurrently, produce a result. *

* * To illustrate, if "A 1**231 stabs B, inflicting a fatal wound; while at the same

moment X, acting independently, shoots B in the head ... also inflicting [a fatal]

wound; and B dies from the combined effects of the two wounds," A will generally be

liable for homicide even though his conduct was not a but-for cause of B's death

(since B would have died from X's actions in any event), ie *k Je We need not accept or

reject the special rule developed for these cases, since there was no evidence here

that Banka's heroin use was an independently sufficient cause of his death. No

expert was prepared to say that Banka would have died from the heroin use alone.

-k * "k

(Emphasis added). Burrage, 134 S. Ct. at 890.

r*P401 Likewise, Appellant believes Burrage means that the testimony must show

the decedent would have died from the drug he provided alone. HN12 However, the

independent cause test is not the same as but-for causation. The Court's conclusion

of law specifically stated: if the situation does not satisfy the independent cause

test, then but-for causation would apply. Burrage, 571 U.S. at 218-219. This was

after pointing out that the independent cause test was not before the Court. Id. at

215 (as there was no testimony that the decedent would have died from heroin

alone). Therefore, in applying the 1**241 but-for test to actual cause, the United

States Supreme Court did not require the prosecution to show the drug supplied

would have killed the decedent if there were no other drugs in her system.

UP411 Rather, the Court expressly said but-for causation required the prosecution

to show the decedent would have survived if not for the drug the defendant

supplied. Id. at 219. The fact that there was a mixed drug overdose but the

defendant only supplied one drug is not dispositive. See id. at 211(pointing to the

straw that broke the camel's back), 216 (but-for causation would be satisfied by the

presentation of testimony stating that even though multiple drugs were in the

decedent's system, he would not have died without the addition of the drug at

issue).

r*P421 Our case is distinguishable from the Supreme Court's Burrage case as the

testimony in the case at bar indicated that the decedent believed she was receiving

and injecting heroin, not fentanyl. The coroner explained that a quarter of an inch

Page 16 of 23

of heroin in a vial compares to a mere two drops of fentanyl. (Tr. 495). A rational

person could find the state showed fentanyl was an independent cause of death

(which would have occurred even if she had no other drugs in T**251 her system) as

the evidence shows the decedent took a "lethal dose" of fentanyl thinking it was

heroin. (Tr. 469, 489, 494).

T*P431 Regardless, our case is distinguishable from the non-binding Burrage case

as the state established that fentanyl was the but-for cause of death. The coroner

specifically testified that the decedent ingested a lethal dose of fentanyl and she

would not have died if she had not used the fentanyl. (Tr. 493-494). If the state

showed the fentanyl provided by Appellant was the but-for cause of the decedent's

death, then: the application of Burrage's but-for causation rationale would not

assist Appellant; Kosto is distinguishable; and there is no need to consider a

substantial factor test.

[*P441 Here, the coroner testified to a reasonable degree of medical certainty that

the decedent's cause of death was asphyxia and drug overdose. (Tr. 473). The death

certificate reported: the immediate cause of death was asphyxia, a condition leading

to the cause was mixed drug overdose, and the injury occurred when the decedent

took a lethal dose of drugs. (Tr. 485); (Def.Ex. C). Appellant emphasizes the

reporting of a mixed drug overdose, the ability of the anti-anxiety drug to

suppress [**261 respiration if overused, and the testimony that a person can build a

tolerance to heroin and even to fentanyl. (Tr. 470). However, there was no

indication that the decedent ordered fentanyl, while there was an indication that

she ordered heroin.

[*P451 Appellant suggests that to ensure a fact-finder can rely on the coroner's

individual opinions, the coroner must continue to repeat that his opinions were to a

"reasonable degree of scientific certainty" rather than preface his opinion with

phrases such as, "I know" (when utilizing information disclosed by investigators to

formulate his conclusions).3 HN13 In response to an argument on the failure to

modify an opinion by "reasonable degree of scientific certainty" language, the

Supreme Court has pointed out that Evid.R. 702 requires that an expert's testimony

be based on "reliable" scientific, technical, or other specialized information. State v.

Lang. 129 Ohio St. 3d 512. 2011-Qhio-4215. 954 N.E.2d 596, 11 72 (and an objection

must be made to preserve an evidentiary argument). Appellant suggests that

without the repetition of the modifying phrase for subsequent pieces of testimony

provided by the coroner, we are not permitted to utilize his testimony that the

decedent would not have died if she had not used the fentanyl in our

evaluation T**271 of the sufficiency or the weight of the evidence.

[*P461 HN14 Yet, the Lang Court held that an expert witness in a criminal cases

can testify in terms of possibility rather than in terms of a reasonable scientific

Page 17 of 23

certainty or probability, and the treatment of such testimony is analyzed under a

sufficiency and weight argument, meaning that it is considered along with all of the

other evidence. Td. at f 77-78. citing State v. D'Ambrosio, 67 Ohio St.3d 185, 191,

1993- Ohio 170. 616 N.E.2d 909 (1993) ("While several decisions from this court

indicate that speculative opinions by medical experts are inadmissible since they

are based on possibilities and not probabilities, * * * the better practice, especially

in criminal cases, is to let experts testify in terms of possibility."). See also State v.

Thompson. 141 Ohio St. 3d 254. 2014-Qhio-4751. 23 N.E.3d 1096, 1 129 (In the

criminal context, questions about certainty go not to admissibility but to sufficiency

of the evidence; they are matters of weight for the jury."). Moreover,

the Burrage holding was not about whether an expert used the phrase "reasonable

degree of scientific certainty" but was about the lack of an opinion that the decedent

would still be alive if not for the drug at issue. And again, the evidence in our case

leads a reasonable person to believe the decedent died because she

received [**281 fentanyl instead of the heroin she ordered.

[*P471 In considering all of the circumstances, there are various background facts

which are relevant to the consideration of actual cause, including: the decedent's

age (30) and lack of known health conditions; her prior request for heroin (and

crack) for the earlier delivery; the timing of the texts showing the delivery time; the

content of an undelivered text about the product she injected; the drug runner

experience with the pink product; the position of the body in a chair at the kitchen

table; the baby's presence on the other side of the gate; and the uncapped syringe

and packet of fentanyl remaining on the kitchen table near a spoon (used for

preparing the injection and still containing residue) and a hairband (likely used as a

tourniquet). These facts suggest that fentanyl was the final controlled substance

ingested and was not anticipated by the decedent to be fentanyl.

f*P481 Furthermore, the coroner explained the other drugs in the decedent's

system and compared them to fentanyl. First, the toxicology report was introduced,

which showed the decedent's blood contained: fentanyl; benzodiazepine (anti­

anxiety), dextromethorphan (cough suppressant). [**291 and gabapentin (anti­

convulsant). (Tr. 454, 467, 472, 480-483). The anti-convulsant was well within the

therapeutic range; it is often prescribed to alleviate pain, and the decedent's

medical records indicated a history of migraines. (Tr. 471-472, 482). The lab did not

report the therapeutic ranges for the cough medicine or the anti-anxiety drug. The

cough suppressant was a Schedule V controlled substance which was previously

available over-the-counter. (Tr. 483). The coroner acknowledged the anti-anxiety

drug can suppress breathing but suggested a lethal dose is uncommon and

emphasized that it was a Schedule IV controlled substance with less risk of

addiction and overdose than fentanyl. (Tr. 481, 497).

Page 18 of 23

r*P491 As to fentanyl, the report showed the amount in the decedent's system was

nine nanograms per milliliter and listed the therapeutic range at one to three. The

coroner was an internal medicine specialist at various local hospitals and graduated

from a college of pharmacy before attending medical school. (Tr. 457-459). He

opined the therapeutic range for fentanyl was only one to two nanograms per

milliliter, according to the authorities he relies upon; he noted it was commonly

applied f**301 topically through a patch for severe cancer and end of life pain. (Tr.

468, 470, 486). He described how fentanyl paralyzes the muscles of the chest wall

and suppresses respiration causing a person to suffocate. (Tr. 468, 471). He opined

the decedent originally had a higher level of fentanyl in her system than the test

showed because fentanyl is metabolized into norfentanyl, which is metabolized by

the liver instantaneously and not measured by the test. (Tr. 468).

[*P501 The coroner concluded the dose of fentanyl in the decedent's system was

lethal and she would still be alive but for taking the fentanyl. (Tr. 493). From all of

this, a rational person could find beyond a reasonable doubt that the fentanyl was

the actual cause (or cause-in-fact) of the decedent's death.

r*P511 Appellant does not then alternatively discuss foreseeability, but he did

begin by generally arguing that the state failed to prove his conduct was "either the

actual or legal cause of [the decedent's] death." (Apt.Br. 7). HN15 "Cause in fact is

distinct from proximate, or legal cause." Renfrow v. Norfolk S. Rv. Co., 140 Ohio St.

3d 371. 2014-Ohio-3666. 18 N.E.3d 1173. 1f 20. After cause in fact is established,

proximate cause must be demonstrated. Id. See also Burrage, 571 U.S. at 208,

210 (legal cause is also called proximate cause and involves [**31] foreseeability).

T*P521 HN16 "Foreseeability should be assessed from the viewpoint of what the

defendant knew or should have known in light of ordinary experience." FrankliiL

7th Dist. No. 06-MA-79. 2008-Qhio-2264 at f 120. quoting Franklin, 10th Dist. No.

06AP-1154. 2008-Qhio-462 at H 25. Mitchell. 3rd Dist. No. 14-19-14, 2019-Qhio-5168

at f 24 (the defendant is responsible for the foreseeable consequences that are

known or should be known to be within the scope of risk created by his

conduct); State v. Losev. 23 Ohio Apn.3d 93, 95, 23 Ohio B. 158, 491 N.E.2d 379

noth Dist. 1985). Here, the result did not vary greatly from the foreseeable result of

the underlying crime as the result was not so surprising that it would be unfair to

hold the defendant criminally responsible. See Franklin. 7th Dist. No. 06-MA-79,

2008-Qhio-2264 at 1f 120.

f*P53l HN17 "The possibility of overdose is a reasonably foreseeable consequence

of the sale of heroin." State v. Patterson. 11th Dist. Trumbull No. 2013-T-0062,

2015-Ohio-4423. If 91. See also Mitchell. 3rd Dist. No. 14-19-14, 2019-Qhio-5168 at

24. 31: State v. Carpenter. 3d Dist. Seneca No. 13-18-16. 2019-Qhio-58, f 56, 128

N,E.3d 857; State v. Vogt. 4th Dist. Washington No. 17CA17, 2018-Qhio-4457, If 99^

Page 19 of 23

100. 105: State v. Velev. 6th Dist. Lucas No. L-16-1038, 2017-Qhio-9064,1f

25. Death is even more foreseeable when the drug supplied is fentanyl.

Furthermore, there were additional pertinent facts presented on this topic,

including: Appellant's experience as the decedent's dealer; the near overdose

experienced by Appellant's drug runner in his presence the day before Appellant

sold the fentanyl to the decedent; the pink color of the substance the drug

runner [**321 injected, when heroin was usually brown; and the pink color of the

substance supplied by Appellant to the decedent which she injected. Accordingly,

there was sufficient evidence to show legal causation.

f*P541 For all of the foregoing reasons, this assignment of error is overruled.

ASSIGNMENT OF ERROR TWO: MANIFEST WEIGHT

[*P551 Appellant's second assignment of error contends:

"The conviction for involuntary manslaughter was against the manifest weight of

the evidence."

r*P561 HN18 Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other"; it deals with the persuasive effect of the evidence in inducing belief

and is not a question of mathematics. State v. Thompkins, 78 Ohio St.3d 380, 387^

1997- Ohio 52. 678 N.E.2d 541 (1997). A weight of the evidence review considers

whether the state met its burden of persuasion, as opposed to the burden of

production involved in a sufficiency review. See id. at 390 (Cook, J., concurring).

f*P571 HN19 When a defendant claims a conviction is contrary to the manifest

weight of the evidence, the appellate court is to review the entire record, weigh the

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

determine whether, in resolving conflicts [**331 in the evidence, the trier of fact

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. Lang. 129 Ohio St. 3d

512. 2011-Qhio-4215. 954 N.E.2d 596. f 220. citing Thompkins. 78 Ohio St.3d at

387. The appellate court's discretionary power to grant a new trial on these grounds

can be exercised only in the exceptional case where the evidence weighs heavily

against the conviction. Id.

r*P581 HN20 The weight to be given the evidence is primarily for the trier of the

facts. State v. Hunter. 131 Ohio St. 3d 67. 2011-Qhio-6524. 960 N.E.2d 955, If 118

quoting State v. DeHass. 10 Ohio St.2d 230. 227 N.E.2d 212 (1967), paragraph one

of the syllabus. HN21 The trier of fact occupies the best position from which to

weigh the evidence and judge the witnesses' credibility by observing their gestures,

Page 20 of 23

voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

80. 10 Ohio B. 408. 461 N.E.2d 1273 (1984).

r*P591 HN22 Additionally, in a case tried by a jury, only a unanimous appellate

court can reverse on the ground that the verdict was against the manifest weight of

the evidence. Thomnkins. 78 Ohio St.3d at 389. citing Ohio Constitution. Article IV,

Section 3(B1(3). The power of the court of appeals to sit as the "thirteenth juror" is

limited in order to preserve the jury's role with respect to issues surrounding the

credibility of witnesses and the weight of the evidence. Thompkins, 78 Ohio St.3d at

387. 389. When more than one competing interpretation of the evidence is available

and the one chosen by the jury is not unbelievable, we do not choose

which [**341 theory we believe is more credible and impose our view over that of

the jury. State v. Gore. 131 Ohio App.3d 197. 201, 722 N.E.2d 125 (7th Dist. 1999).

r*P601 The jury could find the testimony of Appellant and his girlfriend lacked

credibility. Instead, the jury could choose to believe the testimony of Nicole and

find: Appellant handed her the packet containing fentanyl and instructed her to

deliver it to the decedent; she did so and received $40 from the decedent which she

passed on to Appellant; when Nicole sampled Appellant's drugs the day before, she

noticed that what she thought was heroin was pink in color instead of brown; and

she almost overdosed after sampling the drug in Appellant's presence. Additionally,

the jury could conclude that Appellant used his own Facebook profile to arrange the

drug deal with the decedent through the private messenger service. See, e.g., State

v. Vogt. 4th Dist. Washington No. 17CA17. 2018-Ohio-4457, f 84, 86.

[*P611 Appellant mainly relies on the argument set forth under his sufficiency

assignment of error. He concludes that even if we find the evidence was sufficient to

support the causation element, we should find that the jury's conclusion on

causation was against the manifest weight of the evidence. However, the direct and

circumstantial evidence indicates that the fentanyl was the actual and

legal r**351 cause of the decedent's death. For specifics, we refer to the discussion

supra on the facts and law relevant to causation.

[*P621 The strength of those facts and the application of the law set forth supra

prevents this court from sitting as the proverbial "thirteenth juror" in this case. As

to actual cause, the coroner testified decedent took a lethal dose of fentanyl and

would have lived if she had not ingested fentanyl (i.e., she would not have died but

for the fentanyl). The surrounding circumstances contributed to the reasonableness

of the conclusion that she would not have died without the fentanyl. As to legal

cause, the jury did not lose its way in finding the decedent's death was a foreseeable

result of the fentanyl sale. See, e.g., State v. Wells, 12th Dist. Warren No. CA201602-009. 2017-Qhio-420. f 39 (the jury did not lose its way in finding fentanyl was

the actual and legal cause of death).

Page 21 of 23

f*P631 After reviewing the entire record, weighing the evidence and all reasonable

inferences, and considering the credibility of witnesses and the conflicts in the

evidence, we cannot find the jury clearly lost its way in finding Appellant caused the

decedent's death as a proximate result of committing or attemptingj^36]_ to

commit felony drug trafficking. There is no indication the jury's verdict resulted in a

manifest miscarriage of justice. Accordingly, this assignment of error is overruled.

T*P641 The trial court's judgment is affirmed.

Waite, P.J., concurs.

D'Apolito, J., concurs

For the reasons stated in the Opinion rendered herein, the assignments of error are

overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

a certified copy be sent by the clerk to the trial court to carry this judgment into

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Footnotes

1

A discretionary appeal is pending in the Ohio Supreme Court on a proposition

related to the involuntary manslaughter count asking whether the jury must be

instructed that the drug supplied by the defendant "was an independent cause of

death and that, but for the ingestion of those drugs, the user would not have

died." State v. Price. 157 Ohio St.3d 1418. 2019-Ohio-3797, 131 N.E.3d 961. Also, a

conflict was certified with Kosto on the issue of whether the Burragerationale on

but-for causality applies to the causation element in the offense of corrupting

another with drugs. State v. Price. 157 Ohio St. 3d 1417. 2019-Ohio-3797, 131

N.E.3d 952.

2

Kosto used the same rationale to reverse the defendant's conviction for corrupting

another with drugs under R.C. 2925.02(A)(3), which states: "[n]o person shall

knowingly if k k administer or furnish to another or induce or cause another to use a

Page 22 of 23

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

That statute does not contain the "proximately results" language of the involuntary

manslaughter statute.

3

Appellant seems to place some arguments in the factual section of the brief where

he seems to take issue with the coroner's statement that it was "reasonable to

assume " the decedent overdosed on drugs based on the circumstances and the drug

paraphernalia. (Tr. 464). Yet, this was in the context of the coroner explaining why

an autopsy was not performed; the Cuyahoga County Medical Examiner was

overwhelmed and could no longer perform autopsies for drug overdoses without a

showing of need. Moreover, toxicology was then ordered which confirmed the initial

reasoning.

vv

Page 23 of 23

APPENDIX C

Case No. 2018-CR-155

Trial Court Judgment Entry

iii

t\ *

IN -THE COURT OF COMMON PLEAS

COLUMBIANA COUNTY, OHIO

STATE OF OHIO

Plaintiff

vs.

RUBIN L. WILLIAMS

Defendant.

)

)

)

)

)

)

)

)

)

Aftf

CASE NO. 2018-CR-155

JUDGMENT ENTRY

On March 1,2019 a sentencing hearing was held in this case. Assistant

Prosecuting Attorneys John Gamble and Tammie Jones appeared on behalf of

the State of Ohio. Attorney Paul Conn appeared on behalf of the Defendant.

The Defendant appeared.

On February 27, 2019, through its verdicts the jury found the Defendant

Guilty of Count One of the Indictment, involuntary Manslaughter, a violation of

R.C. § 2903.04(A), a Felony of the First Degree, and of Count Two of the

Indictment, Trafficking In Drugs, a violation of R.C. § 2925.03(A)(1), a Felony of

the Fourth Degree.

The Court heard from counsel. Representatives of Jennifer Bettis,

deceased, were present but declined the opportunity to address the Court. The

Defendant was afforded all rights pursuant to Crim. Rule 32 and made a

statement on his own behalf.

The Court has considered the record, the information presented at the

hearing, as well as the principles and purposes of sentencing under R.C.

2929.11, and has balanced the seriousness and recidivism factors of R.C.

2929.12.

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On Count One, the Defendant is sentenced to prison for Eleven (11)

years. On Count Two, the Defendant is sentenced to prison for Eighteen (18)

months. Counsel agree and this Court finds that Count Two merges into Count

One for purposes of sentencing only. The Defendant's Eleven (11) year prison

sentence imposed herein shall be served consecutively to all other prison

sentences now imposed against the Defendant.

Pursuant to R.C. 2929.14, this Court finds that consecutive prison

sentences are necessary to punish the offender, to protect the public from future

crimes, and that consecutive sentences are not disproportionate to the

seriousness of the Defendant's conduct and the danger he poses to the public.

This Court also finds that the Defendant's history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public

from future crime by the Defendant.

The sentence being imposed herein is not any form of trial tax, which is

repugnant to our system of justice. The sentence is imposed based upon my

consideration of the record, which includes the Defendant's own testimony

regarding his repeated involvement with illegal drugs in the community, which in

this case culminated in the death of Jennifer Bettis.

The Defendant is granted jail credit of zero days served as of this date

based on the fact that he is serving and is in custody on a separate prison

sentence. Counsel for the Defendant urges that the Defendant is entitled to jail

credit from approximately April 19, 2019. Counsel for the Defendant is granted

leave until March 15. 2019 at 4:00 p.m. to file any further Motion seeking

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additional jail credit on behalf of the Defendant. Counsel for the State of Ohio is

granted leave to file its response until March 22. 2019 at 4:00 p.m. The Court

will thereafter decide the issue of further jail credit, if any, on the briefs that are

submitted.

The Defendant was advised of weapons and/or ammunition disability

under Ohio and/or Federal law.

The Defendant was notified at the hearing of Post Release Control (PRC)

pursuant to R.C. 2929.19. Upon being released from prison the Defendant was

notified he will be supervised by the Parole Board for Five (5) years on PRC,

which is mandatory. The Adult Parole Authority will administer PRC pursuant to

R.C. 2967.28 and any violation of the conditions of PRC will subject the

Defendant to the consequences set forth in that statute. If the Defendant violates

that supervision or a condition of PRC, the parole board may impose a prison

term, as part of the sentence, of up to one-half of the stated prison originally

imposed upon the Defendant.

Pursuant to R.C. 2901.07 the Defendant shall submit to DNA collection at

the Columbiana County Jail or appropriate state correctional facility.

The Defendant shall pay the costs of this action, including the costs of the

jury, which are hereby taxed against him. Payment of the costs is deferred until

such time as the Defendant is released from prison.

The Defendant was also advised of the following:

1.) You have the right to appeal your conviction as well as the sentence

imposed against you.

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2.) If you are unable to pay for the cost of an appeal, you have the right to

appeal without payment upon your request.

3.) If you are unable to obtain counsel to file an appeal, counsel will be

appointed without cost upon your request.

4.) If you are unable to pay for the cost of preparing documents necessary

to appeal, the documents will be provided without cost, upon your request.

5.) You have the right to have a notice of appeal timely filed on your

behalf, within thirty (30) days of this date, upon your request.

Attorney Conn is requested to timely file any Notice of Appeal on behalf of

the Defendant.

Any bond of the Defendant in this case is released.

The Defendant shall remain in the custody of the Columbiana County Sheriff

while awaiting transport or return to the appropriate state correctional institution.

IT IS SO ORDERED.

Scott A. Washam, Judge

March 4, 2019

cc:

John Gamble, Esq.

Tammie Jones, Esq.

Paul Conn , Esq.

Sheriff

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