Court of Appeals of Ohio, Fifth District, Licking
Criminal Appeal from the Court of Common Pleas, Case No. 16
Plaintiff-Appellee CLIFFORD J. MURPHY ASSISTANT PROSECUTOR
Defendant-Appellant ROBERT E. CALESARIC
John W. Wise, P. J. Hon. William B. Hoffman, J. Hon. Earle E.
Wise, Jr., J.
JOHN, P. J.
Defendant-Appellant Thomas Kosto appeals his conviction for
involuntary manslaughter and other offenses in the Court of
Common Pleas, Licking County. Plaintiff-Appellee is the State
of Ohio. The relevant facts leading to this appeal are as
On May 29, 2015, Chad Baker, an adult male, was found
unconscious in the bathroom of the house on South Williams
Street in Newark that he shared with his fiancée,
Katie O. A single syringe was in the bathroom, but a
subsequent police search turned up no additional drug
paraphernalia or illegal drugs. After discovering Chad, Katie
called 911 and performed CPR. First responders found
Chad's chest and abdomen were still warm to the touch.
Paramedics attempted two doses of Narcan to revive Chad.
However, he was thereafter pronounced dead at Licking
According to Chad's fiancée Katie, she and Chad
had both been heroin users in the past, but both had been
through rehabilitation programs and had been free of the drug
for several years. Tr. at 130-133. Katie and Chad were both
employed and had an eighteen-month-old child together. Katie
later stated that any discovery by her of evidence of
Chad's return to heroin use would have "meant
trouble" in their relationship. Tr. at 141-142.
Dr. Charles Jeffrey Lee, the chief forensic pathologist and
deputy coroner for Licking County performed the autopsy on
Chad's body, as further discussed infra. Among
other things, his toxicology report showed Chad had heroin,
cocaine, and "a little marijuana" in his system
when he died. Tr. at 229. Dr. Lee listed Chad's manner of
death as accidental. Tr. at 261.
Law enforcement investigators recovered some of Chad's
deleted cell phone texts. Some of these were messages between
Appellant Kosto and Chad on the evening of May 28, 2015,
including appellant texting the statement: "I'm
doing a shot with you so hurry if you can. Lol."
Appellant also texted: "Iv got a new rig for you too. If
you like it I can get u more." Appellant admitted to
Detective Todd Green that he had deleted some of his texts
because it looked like he was the one that helped Chad get
heroin. Tr. at 362, 383.
Further investigation indicated that appellant had been in
frequent contact with his dealer, Nicole Fannin, during the
month of May 2015, and that appellant was the sole source of
heroin to Chad in the forty-eight hours prior to his death.
Nicole later testified that she was selling heroin to
appellant on a daily basis, in quantities no less than
one-half of a gram, throughout May 2015. Tr. at 297.
On October 20, 2016, the Licking County Grand Jury indicted
appellant on one count of involuntary manslaughter (R.C.
2903.04(A)/(C)), one count of corrupting another with drugs
(R.C. 2925.02(A)(3)/(C)(1)(a)), one count of tampering with
evidence (R.C. 2921.12 (A)(1)/(B)) and one count of heroin
possession (R.C. 2925.11(A)/(C)(6)(a)).
The case proceeded to a jury trial commencing on June 27,
On June 29, 2017, appellant was found guilty of all four of
the above counts.
The trial court, upon merging Counts 1, 2, and 4, sentenced
appellant to an aggregate prison term of 5 years.
On July 19, 2017, appellant filed a notice of appeal. He
herein raises the following three Assignments of Error:
"I. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S
RULE 29 MOTION FOR ACQUITAL [SIC] AND IN NOT INSTRUCTING THE
JURY IN ACCORDANCE WITH BURRAGE V. UNITED STATES,
571 U.S. (2014).
"II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY ALLOWING THE STATE TO PUT ON EXPERT
TESTIMONY WITHOUT COMPLYING WITH CRIMINAL RULE 16 DENYING
APPELLANT DUE PROCESS OF LAW.
"III. THE JURY'S VERDICT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
In his First Assignment of Error, appellant contends the
trial court erred in denying his motion for acquittal and in
failing to properly provide jury ...