[Cite as State v. Pinkerman, 2024-Ohio-1150.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA5
v. :
BRIAN PINKERMAN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Steven K. Nord, Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
Autumn D. Adams, Toledo, Ohio, for appellant1. ___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:3-21-24 ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment of conviction and sentence. Brian Pinkerman,
defendant below and appellant herein, assigns the following errors
for review:
1 Different counsel represented appellant during the trial court proceedings. 2 LAWRENCE, 23CA5
FIRST ASSIGNMENT OF ERROR:
“THE JURY ERRED IN CONVICTING PINKERMAN OF CORRUPTING ANOTHER WITH DRUGS AS THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE HE FURNISHED DRUGS TO E.B..”
SECOND ASSIGNMENT OF ERROR:
“THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT PROVE BEYOND A REASONABLE DOUBT PINKERMAN TRAFFICKED IN FENTANYL.”
THIRD ASSIGNMENT OF ERROR:
“THE JURY’S VERDICT OF GUILTY TO INVOLUNTARY MANSLAUGHTER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶2} On July 26, 2022, a Lawrence County Grand Jury returned
an indictment that charged appellant with (1) one count of
involuntary manslaughter in violation of R.C. 2903.04(A), a first-
degree felony, (2) one count of corrupting another with drugs in
violation of R.C. 2925.02(A)(3), a second-degree felony, and (3)
one count of trafficking in fentanyl in violation of R.C.
2925.03(A)(1), a fifth-degree felony. Appellant entered a not
guilty plea.
{¶3} On June 29, 2022, Lawrence County Sheriff’s Deputy Cody
Pizelli responded to a call regarding a possible overdose and
death. Pizelli found E.B. deceased inside her apartment, and
E.B.’s mother informed Pizelli about E.B.’s previous drug problems. 3 LAWRENCE, 23CA5
Pizelli also observed a bag on the kitchen counter that appeared to
contain powder residue and aluminum foil that appeared to have
discolored burn marks. Pizelli photographed the scene and
requested an investigator from the drug task force.
{¶4} Montgomery County Deputy Coroner Dr. Sean Swiatkowski
testified that his examination of the victim revealed no natural
disease process, trauma, or injury. The toxicology report
indicated that E.B.’s system contained fentanyl, norbuprenorphine
(Suboxone), hydrocodone, hydromorphone, temazepam (a hypnotic for
insomnia), amitriptyline (an antipsychotic), and two metabolites of
fentanyl. Swiatkowski concluded that “fentanyl intoxication”
caused E.B.’s death because “all of the other drugs were at a lower
level that wouldn’t * * * affect her * * * and she had no natural
disease process. So the medical decision is it’s fentanyl
intoxication.” A typical fentanyl concentration range that can
cause fatality is 3-28, and E.B. had a concentration of 48. Also,
Ohio Bureau of Criminal Investigation Forensic Scientist Lauren
Gowins testified that her analysis of the white powder revealed
“methamphetamine and fentanyl” with a weight of “0.87 grams plus or
minus 0.04 grams.”
{¶5} After Lawrence County Sheriff’s Special Deputy and
Investigator Kenneth Adkins arrived at E.B.’s residence, Adkins 4 LAWRENCE, 23CA5
spoke with the victim’s mother and other law enforcement, then
photographed the apartment. Adkins collected (1) from the kitchen
counter a piece of notebook paper that contained a white powdery
substance, (2) a plastic baggie with residue, (3) discolored
aluminum foil from the kitchen (typically used to consume drugs),
(4) a smartphone in a black case, (5) a smartphone in a blue case,
(6) another piece of foil with burn marks near the nightstand, (7)
a Bic pen with no internal components, commonly used to consume
illicit substances, and (8) $167 in the kitchen cabinet in a
glucose test kit. Adkins later obtained appellant’s DNA sample and
retrieved a red notebook from his apartment. Adkins explained that
the notebook paper had been cut in a manner consistent with drug
use.
{¶6} Investigator Adkins further testified that the Ohio
Narcotics Intelligence Center (ONIC), a state agency that supports
law enforcement with intelligence gathering and data analysis,
provided cell phone data on a flash drive. Upon inspection, Adkins
noticed text messages between the victim “and a contact in the
phone titled Brian and a phone number.” After Adkins noticed a
Facebook Messenger conversation between the victim and appellant’s
account, Adkins used the Ohio Law Enforcement Gateway (OHLEG) to
identify appellant’s driver’s license and address. 5 LAWRENCE, 23CA5
{¶7} Subsequently, Investigator Adkins obtained search
warrants for the victim’s Facebook account data and phone messages.
When Adkins extracted data from appellant’s cell phone, he found
text messages between the victim and appellant regarding the victim
“seeking something stronger * * * because the medication that she
had been prescribed wasn’t helping the pain that she was
experiencing from a recent surgery.” In addition, Adkins found
conversations regarding “amounts, how much it would cost for a
certain amount of drugs,” “how long it will take to go get it, if
the money was available,” and other drug-related conversations.
E.B.’s call log revealed that, after the June 26, 2022 text
messages between E.B. and appellant, the last activity on E.B.’s
phone is an unanswered call to appellant’s phone around 5:00 or
5:30 a.m.
{¶8} Investigator Adkins contacted appellant and advised him
of his Miranda rights. During a recorded interview, appellant
initially denied he obtained fentanyl for the victim, but later,
when asked if he felt responsible for the victim’s death, appellant
stated, “I got it and gave it to her, but I begged her not to do it
and I can’t control how much she did.” Text messages supported
appellant’s statement that, pursuant to E.B.’s instructions,
appellant retrieved money from a pickup truck on E.B.’s property, 6 LAWRENCE, 23CA5
procured drugs in West Virginia, and placed the drugs on E.B.’s
porch in a black tennis shoe. Appellant added, “If she didn’t get
it from me, she would have got it from someone else.”
{¶9} In a later phone call between appellant, Investigator
Adkins and other law enforcement, appellant stated, “Whoever she
[the victim] called after [5:28 a.m.] is where she got her sh*t.”
Appellant also claimed that he “gave [E.B.] a half gram and added a
half gram of powdered sugar.” After appellant blamed someone named
Julia McMillion for selling E.B. the fatal dose, Adkins interviewed
McMillion. Adkins, however, did not believe appellant’s
accusations against McMillion based on his interview and the fact
that no contact occurred between the victim and McMillion.
{¶10} At the close of the state’s case, the trial court denied
appellant’s Crim.R. 29 motion for judgment of acquittal. At the
conclusion of the trial and after reviewing the evidence, the jury
found appellant guilty as charged. The trial court merged all
three counts for purposes of sentencing and the state elected to
sentence under count one. The court thereupon sentenced appellant
to (1) serve 11 to 16.5 years in prison on count one, subject to a
post-release control term, and (2) pay fines and costs. This
appeal followed. 7 LAWRENCE, 23CA5
I.
{¶11} In his first assignment of error, appellant asserts that
the state failed to present sufficient evidence to prove beyond a
reasonable doubt that appellant furnished drugs to the victim. In
particular, appellant argues that the state did not adduce
sufficient evidence that the victim consumed a drug that appellant
supplied because (1) law enforcement found multiple types of drugs
in her home, none of which matched the particular drugs appellant
provided, and (2) the types of drugs in the victim’s system at the
time of her death are not the type of drugs the state alleged
appellant supplied to the victim.
{¶12} A claim of insufficient evidence invokes a due process
concern and raises the question of whether the evidence is legally
sufficient to support the verdict as a matter of law. State v.
Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 59 (4th Dist.), citing
State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 13 (4th Dist.);
State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶
22; State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).
When reviewing the evidence's sufficiency, the adequacy of the
evidence is the focus; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable
doubt. Thompkins, syllabus. 8 LAWRENCE, 23CA5
{¶13} The standard of review for an appellate court in an
evidence sufficiency inquiry is whether, after viewing the
probative evidence and inferences reasonably drawn therefrom in the
light most favorable to the prosecution, any rational trier of fact
could have found all the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259,
273, 574 N.E.2d 492 (1991); State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028, ¶ 207. Further, an assignment of
error based on sufficiency of the evidence challenges the state's
prima facie case's legal adequacy, not its rational persuasiveness.
State v. Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395, ¶
13. Therefore, when an appellate court reviews a sufficiency of
the evidence claim, the court must construe the evidence in a light
most favorable to the prosecution. State v. Dunn, 4th Dist.
Jackson No. 15CA1, 2017-Ohio-518, ¶ 13; Wickersham, supra, ¶ 23;
State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).
Consequently, a reviewing court will not overturn a conviction on a
sufficiency of the evidence claim unless reasonable minds cannot
reach the conclusion that the trier of fact did. State v.
Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 326 (2001).
{¶14} In the case sub judice, in addition to involuntary 9 LAWRENCE, 23CA5
manslaughter and trafficking in fentanyl, the jury found appellant
guilty of corrupting another with drugs in violation of R.C.
2925.02(A)(3). That statute provides “No person shall knowingly *
* * [b]y any means, administer or furnish to another or induce or
cause another to use a controlled substance, and thereby cause
serious physical harm to the other person, or cause the other
person to become a person with drug dependency.” R.C.
2925.02(A)(3).
{¶15} Appellant contends that, because the state failed to
present any evidence as to the victim’s precise time of death, the
state could not prove that appellant’s actions contributed to her
death. Appellant points out that, to find appellant guilty of that
charge, the trial court instructed the jury that they had to find
that appellant, by any means, administered or furnished fentanyl to
the victim and thereby caused her serious physical harm.
Appellant, however, asserts that the state presented no evidence
about appellant’s presence when the victim ingested drugs or that
appellant “furnished” the particular drugs that caused the victim’s
death.
{¶16} After our review, we believe that the state adduced
sufficient evidence to prove that appellant supplied a fentanyl
compound to the victim. Appellant acknowledged in his first 10 LAWRENCE, 23CA5
recorded interview with law enforcement that he provided drugs to
the victim. When asked if he purchased heroin or fentanyl for the
victim, appellant responded, “yeah, I went and got her some * * * a
gram * * * but I told her, ‘be careful.’” Appellant further stated
that he retrieved E.B.’s payment from a truck on the victim’s
property, purchased drugs in Huntington from “[his] guy,” left
drugs in a shoe on her porch, and later “kept calling to check on
her.” Appellant also knew about E.B.’s addiction and had purchased
drugs for her in the past. When asked whether he supplied heroin
or fentanyl to the victim, appellant stated, “It was heroin - but
realistically there is no heroin anymore - it’s all fentanyl.”
Cell phone records also confirmed the transaction with text
exchanges between appellant and the victim. Consequently, we
believe that sufficient evidence exists to support the jury’s
determination that appellant “furnish[ed] to another * * * a
controlled substance.” R.C. 2825.02(A)(3).
{¶17} The second part of the corrupting another with drugs
statute requires that the furnishing of the controlled substance
caused serious physical harm to the other person. R.C.
2925.02(A)(3). Here, Investigator Adkins testified that he
discovered in the victim’s apartment a piece of notebook paper that
contained a powdery substance. A field test revealed the substance 11 LAWRENCE, 23CA5
to be fentanyl. Later, the State Bureau of Criminal Investigation
lab confirmed that the substance tested positive for fentanyl and
methamphetamine. At trial, the coroner testified that the victim’s
system contained fentanyl at a concentration of 48 nanograms per
milliliter, with 3 to 28 sufficient to cause death. The coroner
further testified that the victim died of “fentanyl intoxication.”
{¶18} Appellant argues that what transpired between June 26 and
June 29, 2022 is unknown and the state did not present evidence
regarding the victim’s time of death. In fact, appellant claims,
the coroner “hinted that [the victim] may have laid in her house
for a ‘day or two’ before being found.” However, the coroner’s
reference to time related to minor dilation of the victim’s left
and right ventricles of her heart, “[a]nd that can be explained by
either she was laying in her home for a day or two, and plus when
we got the call, it was the 30th. They said they found her on the
29th. I didn’t perform the autopsy until the first, so that was two
more days. So as the body starts to lay there and wait, sometimes
you get some decompositional changing in dilation of the heart.”
Further, as noted above, the last activity on the victim’s phone
occurred around 5:30 a.m. on June 27, when she attempted to call
appellant, a call that went unanswered. Moreover, the drugs found
in appellant’s apartment had been packed in a manner that appellant 12 LAWRENCE, 23CA5
acknowledged that he packages drugs, a gram packaged in “a piece of
paper folded up like an envelope.”
{¶19} In State v. Bailey, 2023-Ohio-657, 210 N.E.3d 1 (6th
Dist.), the victim texted his marijuana dealer at 9:21 p.m. and
asked if he sold anything “stronger.” Bailey offered the victim
crack cocaine and arrived shortly after 11:00 p.m. At 11:21 p.m.,
Bailey texted, “Let me know how that is.” At 11:22 p.m., the
victim texted, “Not what I was expecting, no numbness, but I just
did a line, so we’ll see.” At 11:29 p.m., Bailey texted, “That was
work, you not supposed to do lines [laughing emoji].” The victim
did not read the 11:29 p.m. text. At 8:00 a.m. the next morning,
the victim’s girlfriend found him dead, in his recliner with his
arm hanging over the side of the chair. On the floor, directly
beneath his hand, the victim’s girlfriend found a straw and a baggy
of white powder that later tested as carfentanil, a fentanyl analog
used as tranquilizer for elephants and other large mammals,
exponentially more potent than fentanyl. Toxicology tests revealed
carfentanil in a concentration of .15 ng/ML, and a blood alcohol
concentration of .10. The coroner determined the victim’s cause of
death “combined drug intoxication -carfentanil, alcohol.” Id. at ¶
2-3.
{¶20} The state charged Bailey with corrupting another with 13 LAWRENCE, 23CA5
drugs, trafficking, and involuntary manslaughter. Bailey
challenged the sufficiency of the evidence and argued that he did
not sell the victim narcotics - but rather baking soda “to rip him
off.” The court noted that the state presented evidence that (1)
the victim asked to purchase narcotics from Bailey, (2) the victim
texted Bailey and said he had done a line and Bailey told him,
“that was work, you[‘re] not supposed to do lines,” (3) the victim
failed to read the last message and did not use his phone again,
(4) the victim’s girlfriend found him dead in his chair at 8:00
a.m., (5) the victim’s body was already cold and rigor mortis had
occurred, (6) a straw and a bag of powder were found beneath the
victim’s hand, (7) testing revealed that the baggy contained
carfentanil, and (8) the autopsy concluded that ingesting
carfentanil caused the victim’s death. Id. at ¶ 15. The Sixth
District observed that, when an appellate court examines a
sufficiency of the evidence claim, a court must view the probative
evidence “and inferences reasonably drawn therefrom” in a light
most favorable to the prosecution. (Emphasis added.) Id. at ¶ 16,
citing State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867
(1999). The court stated that the reasonable inference to be drawn
is that, after Bailey delivered to the victim a baggy of powder, a
baggy of powder was found near the victim’s body, the baggy 14 LAWRENCE, 23CA5
contained carfentanil, and carfentanil caused the victim’s death.
Thus, the evidence established that the baggy Bailey delivered must
have contained carfentanil. Drawing that inference in favor of the
state, the court concluded that the state presented sufficient
evidence that Bailey sold carfentanil to the victim, and the
ingestion of that drug led to his death. Id. at 16.
{¶21} In the case sub judice, we observe that the state adduced
evidence at trial that appellant furnished a controlled substance
to the victim, including text messages between the victim and
appellant concerning the drug transaction. The state also played a
recording of appellant’s police interview in which he admitted that
he sold fentanyl to the victim. The evidence also shows that the
victim last communicated with appellant, and the victim died as a
result of fentanyl intoxication.
{¶22} After our review of the probative evidence with the
inferences reasonably drawn therefrom in a light most favorable to
the prosecution, we believe that the state adduced sufficient
evidence, if believed, to prove each element of the offense and to
support appellant's corrupting another with drugs conviction.
{¶23} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error. 15 LAWRENCE, 23CA5
II.
{¶24} In his second assignment of error, appellant asserts that
his conviction for trafficking in fentanyl is against the manifest
weight of the evidence. Appellant argues that he sold the victim
heroin, not fentanyl or a fentanyl-related compound.
{¶25} After a court of appeals determines that sufficient
evidence supports a trial court's judgment, that court may
nevertheless conclude that a judgment is against the weight of the
evidence. Dunn, supra, at ¶ 15; Wickersham, supra, at ¶ 24;
Thompkins, supra, 78 Ohio St.3d at 387. “‘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 indicates clearly to the jury that the
party having the burden of proof will be entitled to their verdict,
if, on weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the issue which is to
be established before them. Weight is not a question of
mathematics, but depends on its effect in inducing belief.”’”
Wickersham, supra, at ¶ 24, quoting Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting Thompkins,
78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Black's Law
Dictionary 1594 (6th Ed.1990). 16 LAWRENCE, 23CA5
{¶26} When an appellate court considers a claim that a
conviction is against the manifest weight of the evidence, the
court must dutifully examine the entire record, weigh the evidence,
and consider witness credibility. The reviewing court must bear in
mind, however, that credibility generally is an issue for the trier
of fact to resolve. Schroeder, supra, at ¶ 61; Dunn, supra, at ¶
16; Wickersham, supra, at ¶ 25. Because the trier of fact sees and
hears the witnesses, an appellate court will afford substantial
deference to a trier of fact's credibility determinations.
Schroeder at ¶ 62. The jury has the benefit of seeing witnesses
testify, observing facial expressions and body language, hearing
voice inflections, and discerning qualities such as hesitancy,
equivocation, and candor. State v. Fell, 6th Dist. Lucas No. L-10-
1162, 2012-Ohio-616, ¶ 14.
{¶27} To decide whether the case sub judice is an exceptional
case in which the evidence weighs heavily against conviction, this
court must review the record, weigh the evidence and all reasonable
inferences, and consider witness credibility. State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). An appellate
court may reverse a conviction if the trier of fact clearly lost
its way in resolving conflicts in the evidence and created a
manifest miscarriage of justice. State v. Benge, 4th Dist. Adams 17 LAWRENCE, 23CA5
No. 20CA1112, 2021-Ohio-152, ¶ 28.
{¶28} R.C. 2925.03, the trafficking statute, provides, “(A) No
person shall knowingly do any of the following: (1) Sell or offer
to sell a controlled substance or a controlled substance analog.”
Here, appellant contends that he sold the victim heroin, not
fentanyl or a fentanyl-related compound. First, we point out that
selling any controlled substance violates R.C. 2925.03(A)(1).
Second, we conclude that, based upon our review of the evidence
adduced at trial, appellant’s trafficking in fentanyl conviction is
not against the manifest weight of the evidence. In State v.
Potee, 2017-Ohio-2926, 90 N.E.3d 58 (12th Dist.), a jury found
Potee guilty of involuntary manslaughter, corrupting another with
drugs, trafficking in heroin, and aggravated trafficking in
fentanyl after he supplied drugs to a couple. One victim died and
the other overdosed, but survived. Id. at ¶ 1-8. The evidence
showed that Potee provided directions to the victims, helped
facilitate the heroin transaction between Potee’s drug dealer and
the victims, and revealed that the victim would not likely have
obtained heroin from Potee’s dealer without his assistance. Id. at
¶ 4.
{¶29} Potee asserted that, because the state based its case on
a single transaction of heroin between himself and the victim, the 18 LAWRENCE, 23CA5
state failed to prove how the drugs exchanged in this particular
transaction resulted in the victim’s death, but resulted only in
the second victim’s overdose. After the court cited testimony from
the surviving victim regarding each stage of the transaction,
coupled with text messages and call logs between the deceased
victim and appellant on the day of the transaction, the court
concluded that ample credible evidence supported appellant’s
conviction for corrupting another with drugs. Thus, the court
concluded that the manifest weight of the evidence supported the
convictions. Id. at ¶ 31, 37.
{¶30} In the case at sub judice, appellant contends that the
state failed to “put fentanyl in Pinkerman’s hands.” However, in
his first recorded statement appellant said, “It was heroin - but
realistically there is no heroin anymore - it’s all fentanyl.” In
addition, as the state points out, the jury heard evidence that
Deputy Adkins found a notebook in appellant’s residence that
contained white paper similar to the paper found at the victim’s
apartment that contained fentanyl. Further, in appellant’s first
recorded statement he said he obtained drugs from his dealer
packaged “in a piece of paper folded up like an envelope.”
Finally, the jury heard evidence that the powder in the notebook 19 LAWRENCE, 23CA5
paper obtained from the victim’s apartment tested positive for
fentanyl, both the field test and the BCI analysis, and the coroner
concluded to a reasonable degree of medical certainty that the
victim died of fentanyl intoxication.
{¶31} Thus, after our review of the record, we conclude that
ample competent, credible evidence supports appellant’s trafficking
conviction and is not against the manifest weight of the evidence.
Weighing particularly heavily in favor of conviction are the cell
phone communications between the victim and appellant that
discussed the drug transaction and appellant’s admission that he
sold heroin/fentanyl to the victim.
{¶32} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III.
{¶33} In his final assignment of error, appellant asserts that
the jury’s involuntary manslaughter guilty verdict is against the
manifest weight of the evidence. Specifically, appellant contends
that, because the state failed to prove that appellant corrupted
the victim with drugs or that appellant trafficked in fentanyl, the
state did not prove the elements of involuntary manslaughter. 20 LAWRENCE, 23CA5
Further, appellant argues that the state failed to prove beyond a
reasonable doubt that appellant caused the victim’s death.
{¶34} As we pointed out in our discussion of appellant’s second
assignment of error, to satisfy the test for manifest weight of the
evidence the state must adduce substantial competent, credible
evidence on all the elements of an offense so that the jury can
find guilt beyond a reasonable doubt. State v. Smith, 2020-Ohio-
5316, 162 N.E.3d 898 (4th Dist.), citing State v. Eskridge, 38 Ohio
St.3d 56, 526 N.E.2d 304, syllabus (1988). Once again, witness
credibility is a matter entrusted to the trier of fact.
{¶35} Involuntary manslaughter is defined as: “No person shall
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). “The culpable mental state of involuntary manslaughter
is supplied by the underlying offense.” State v. Johnson, 8th
Dist. Cuyahoga No. 94813, 2011-Ohio-1919, ¶ 54. See also State v.
Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 11 (“‘[T]he
criminal intent of involuntary manslaughter is supplied by the
criminal intent to do the underlying unlawful act of which the
homicide is a consequence.’”), quoting Potee at ¶ 32.
{¶36} According to the jury charge in the case at bar, the 21 LAWRENCE, 23CA5
predicate-felony offense in this case is corrupting another with
drugs under R.C. 2925.02(A)(3) or trafficking in fentanyl under
R.C. 2925.03(A)(1). As we pointed out above, the culpable mental
state for trafficking in drugs and for corrupting another with
drugs requires a defendant to have acted knowingly. See R.C.
2925.03(A)(1); R.C. 2925.02(A)(3); R.C. 2901.22(B). Here, the
statute required the state to prove that appellant caused the
victim’s death as a proximate result of (1) knowingly selling or
offering to sell fentanyl or a compound containing fentanyl, or (2)
knowingly furnish a controlled substance and thereby cause serious
physical harm.
{¶37} In criminal cases, Ohio law generally defines “cause”
identically to the definition of “proximate cause” in civil cases.
See, e.g., State v. Emerson, 2016-Ohio-8509, 78 N.E.3d 1199, ¶ 24
(2d Dist.). See also State v. Jacobs, 8th Dist. Cuyahoga No.
51693, 1987 WL 10047, *2 (Apr. 23, 1987)(“It is merely a matter of
semantics that criminal cases are ‘cause’ and ‘result’ and civil
cases use ‘proximate cause’ and ‘proximate result.’ They mean the
same thing. In fact, R.C. 2903.04 (Involuntary Manslaughter) uses
‘proximate result’ to state the offenses.”); State v. Tschuor, 3d
Dist. Auglaize No. 2-77-31, 1978 WL 215783, *2 (Oct.17,
1978)(proximate-cause theory of criminal liability is applicable 22 LAWRENCE, 23CA5
standard under Ohio’s involuntary-manslaughter statute); State v.
Carpenter, 2019-Ohio-58, 128 N.E.3d 857, ¶ 51 (3d Dist.).
{¶38} “‘The term “proximate result” in the involuntary
manslaughter statute involves two concepts: causation and
foreseeability.’” Potee, 2017-Ohio-2926, 90 N.E.3d 58, at ¶ 33,
quoting State v. Hall, 12th Dist. No. CA2015-11-022, 2017-Ohio-879,
¶ 71. In Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, the
court considered the argument that sufficient evidence did not
support an involuntary manslaughter conviction based on a predicate
offense of corrupting another with drugs. The appellate court
concluded: “Since we have found Brown’s arguments against his
conviction for corrupting another with drugs are without merit, his
conviction for involuntary manslaughter has a properly supported
predicate conviction and withstands the sufficiency of the evidence
analysis.” Id. at ¶ 30.
{¶39} Similarly, in the case at bar we concluded that
appellant’s convictions for trafficking in drugs and corrupting
another with drugs are not against the manifest weight of the
evidence. Thus, we believe that appellant’s involuntary
manslaughter conviction has a properly supported predicate
conviction. See State v. Vogt, 4th Dist. Washington No. 17CA17,
2018-Ohio-4457, ¶ 93. 23 LAWRENCE, 23CA5
{¶40} The Third District court explained the two components of
causation in Carpenter, supra, when it instructed:
There are several tests for actual causation, the most common of which is the “but for” test; however, 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 Hall at ¶ 72-73; Emerson at ¶ 24; Burrage at 215, 134 S.Ct. 881; Christman at 755, 249 P.3d 680. See also State v. Wilson, 10th Dist. Franklin No. 03AP-592, 2004-Ohio-2838, 2004 WL 1221748, ¶ 18 (“The injuries inflicted by the defendant need not be the sole cause of death, as long as they constitute a substantial factor in the death.”), citing State v. Johnson, 60 Ohio App.2d 45, 52, 395 N.E.2d 368 (1st Dist.1977) (“In homicide cases involving the effect of expert medical testimony as to the cause of death, the general principle is that the injury need not be proved to be the direct or sole cause of death, as long as it started a chain of causation which resulted in or substantially contributed to the death.”), aff'd, 56 Ohio St.2d 35, 40- 41, 381 N.E.2d 637; Johnson, Cause-In-Fact After Burrage v. United States, 68 Fla.L.Rev. 1727, 1747 (2016) (highlighting Ohio as one of the jurisdictions that does not follow the “but-for” test to establish cause-in-fact causation), citing State v. Phillips, 74 Ohio St.3d 72, 656 N.E.2d 643 (1995). “In other words, a defendant can still be held criminally responsible where the defendant's conduct combined with other occurrences to jointly result in a legal injury.” Hall at ¶ 72. See also Emerson at ¶ 24 (noting that “an offender's criminal act does not have to be the sole cause of harm”); State v. Dunham, 5th Dist. Richland No. 13CA26, 2014-Ohio-1042, 2014 WL 1340627, ¶ 48 (asserting that “there may be more than one proximate cause of an injury” and, to satisfy the causal requirement, cause in fact may be established by proof “that the conduct is a substantial factor in bringing about the injury”).
The second component of causation—the legal or “proximate” cause—refers to the foreseeability of the result. See Katz, Martin, & Macke, Baldwin's Ohio Practice, Criminal 24 LAWRENCE, 23CA5
Law, Section 96:4 (3d Ed.2018). See also Hall at ¶ 71; State v. Bacon, 6th Dist. Lucas No. L-14-1112, 2016-Ohio- 618, 2016 WL 698033, ¶ 83 (“Proximate cause has been defined as ‘ “a direct, natural, reasonably foreseeable consequence, as opposed to an extraordinary or surprising consequence, when viewed in the light of ordinary experience.” ’ ”), quoting State v. Burt, 8th Dist. Cuyahoga No. 99097, 2013-Ohio-3525, 2013 WL 4137378, ¶ 23, quoting State v. Muntaser, 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809, 2003 WL 22455703, ¶¶ 26-27; Nere, 425 Ill.Dec. at 652, 115 N.E.3d 205, 2018 WL 4501039, at *7 (proximate cause “means that the result that actually occurs ‘must be enough similar to, and occur in a manner enough similar to, the result or manner which the defendant intended (in the case of crimes of intention), or the result or manner which his reckless or negligent conduct created a risk of happening (in the case of crimes of recklessness and negligence) that the defendant may fairly be held responsible for the actual result.’ ”), quoting 1 LaFave at 630-31. A “ ‘defendant will be held responsible for those foreseeable consequences which are known to be, or should be known to be, within the scope of risk created by his conduct.’ ” State v. Sabo, 3d Dist. Union No. 14- 09-33, 2010-Ohio-1261, 2010 WL 1173088, ¶ 25, quoting State v. Losey, 23 Ohio App.3d 93, 95, 491 N.E.2d 379 (10th Dist.1985). “ ‘[T]hat means that death [or serious physical harm] reasonably could be anticipated by an ordinarily prudent person as likely to result under these or similar circumstances.’ ” Id., quoting Losey at 95, 491 N.E.2d 379.
Id. at ¶ 52-53.
{¶41} Turning to foreseeability, this court has observed that
other Ohio courts of appeal have concluded that an overdose is a
“reasonably foreseeable consequence” of the sale of a controlled
substance. Vogt, supra, at ¶ 101-105. See also State v.
Patterson, 11th Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶ 25 LAWRENCE, 23CA5
91; State v. Veley, 6th Dist. Lucas No. L-16-1038, 2017-Ohio-9064,
¶ 30; State v. Wells, 12th Dist. Warren No. CA2016-02-009, 2017-
Ohio-420, ¶ 39. “There is nothing extraordinary or surprising about
the manner of [the victim’s] death in relation to appellant’s
actions. Appellant provided drugs to a known drug abuser. The
possibility of an overdose is a reasonably foreseeable consequence
of providing a controlled substance to another.” Wells at ¶ 39.
{¶42} In the case sub judice, appellant contends that too much
time elapsed from when he delivered the narcotics to the victim’s
death for any jury to reasonably infer that the drugs appellant
supplied caused the victim’s death. However, as the state points
out, the jury found appellant guilty of two felonies that
proximately resulted in the victim’s death, corrupting another with
drugs (second-degree felony) and trafficking in a fentanyl-related
compound (fifth-degree felony). Moreover, (1) when the victim
overdosed and died the only drugs found on or near her body are the
drugs appellant provided, (2) the white powdery substance in the
baggie on the victim’s kitchen counter tested positive for fentanyl
and methamphetamine, and (3) the deputy coroner testified that the
victim died from fentanyl intoxication. Messages between appellant
and the victim, as well as the appellant’s recorded statement,
established that (1) appellant agreed to procure drugs for the [Cite as State v. Pinkerman, 2024-Ohio-1150.]
victim, (2) appellant retrieved the victim’s money from a vehicle
on her property, (3) appellant traveled out of state to obtain the
drugs, (4) appellant delivered the drugs to the victim’s porch, and
(5) the victim’s last communication to appellant occurred after he
delivered the fentanyl.
{¶43} After we consider all the evidence, we believe that a
rational jury could have considered this evidence and found beyond
a reasonable doubt that appellant provided drugs to the victim,
that the drugs contained fentanyl, and the victim’s ingestion of
the fentanyl proximately caused her death. See State v. Allen, 6th
Dist. Wood No. WD-21-069, 2022-Ohio-3493, ¶ 22-23. Consequently,
we conclude that the jury did not clearly lose its way and create a
manifest miscarriage of justice. A rational trier of fact could
have found that appellant created a substantial risk of death or a
risk of some permanent incapacity when he sold the fentanyl
compound, and this act contributed to the victim’s death.
Carpenter at ¶ 57; see also Emerson, 2016-Ohio-8509, 78 N.E.3d
1199, at ¶ 25 (corrupting another with drugs conviction based on
sufficient evidence because reasonable juror could conclude
administration of fentanyl to victim created substantial risk of
death and was contributing cause of victim’s death); State v.
Johnson, 3d Dist. Crawford No. 3-10-14, ¶ 32 (corrupting another [Cite as State v. Pinkerman, 2024-Ohio-1150.]
with drugs conviction based on sufficient evidence because
testimony showed defendant provided victim with controlled
substances, except Vicodin, and victim suffered serious physical
harm as a result of taking controlled substances).
{¶44} Therefore, in the case sub judice we conclude that the
state presented ample, competent credible evidence that appellant
caused the victim’s death as a proximate result of selling her the
fentanyl compound. See Carpenter at ¶ 60, Emerson at ¶ 23 (need
not resolve whether defendant’s singular act is the only cause of
any lethal drug combination in victim’s system). Here, the state
adduced evidence that the fentanyl compound appellant sold to the
victim constituted a substantial or contributing factor and cause
in fact of the victim’s death. Although we recognize that
appellant argues that the victim could have acquired more drugs
elsewhere, the jury, as the trier of fact, is free to determine,
based on the evidence, that appellant supplied the drugs that the
victim ingested. Again, the jury, as the trier of fact, is in the
best position to evaluate credibility. State v. Mitchell, 3d Dist.
Union No. 14-19-14, 2019-Ohio-5168, ¶ 32, citing State v. DeHass,
10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶45} Therefore, after our review we conclude that the state
presented ample competent, credible evidence to prove that the [Cite as State v. Pinkerman, 2024-Ohio-1150.]
fentanyl compound appellant sold to the victim caused the victim to
suffer serious physical harm and caused her death. Thus,
appellant’s involuntary manslaughter conviction is not against the
manifest weight of the evidence and we overrule appellant’s final
assignment of error.
{¶46} Accordingly, for all the foregoing reasons, we affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. LAWRENCE, 23CA5
29 JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall recover from appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.