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State v. Kosto

Court of Appeals of Ohio, Fifth District, Licking

May 14, 2018

STATE OF OHIO Plaintiff-Appellee
v.
THOMAS KOSTO Defendant-Appellant

          Criminal Appeal from the Court of Common Pleas, Case No. 16 CR 649

          For Plaintiff-Appellee CLIFFORD J. MURPHY ASSISTANT PROSECUTOR

          For Defendant-Appellant ROBERT E. CALESARIC

          Hon. John W. Wise, P. J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, JOHN, P. J.

         {¶1} 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 follows.

         {¶2} On May 29, 2015, Chad Baker, an adult male, was found unconscious in the bathroom of the house on South Williams Street in Newark that he shared with his fiancée, Katie O. A single syringe was in the bathroom, but a subsequent police search turned up no additional drug paraphernalia or illegal drugs. After discovering Chad, Katie called 911 and performed CPR. First responders found Chad's chest and abdomen were still warm to the touch. Paramedics attempted two doses of Narcan to revive Chad. However, he was thereafter pronounced dead at Licking Memorial Hospital.

         {¶3} According to Chad's fiancée Katie, she and Chad had both been heroin users in the past, but both had been through rehabilitation programs and had been free of the drug for several years. Tr. at 130-133. Katie and Chad were both employed and had an eighteen-month-old child together. Katie later stated that any discovery by her of evidence of Chad's return to heroin use would have "meant trouble" in their relationship. Tr. at 141-142.

         {¶4} Dr. Charles Jeffrey Lee, the chief forensic pathologist and deputy coroner for Licking County performed the autopsy on Chad's body, as further discussed infra. Among other things, his toxicology report showed Chad had heroin, cocaine, and "a little marijuana" in his system when he died. Tr. at 229. Dr. Lee listed Chad's manner of death as accidental. Tr. at 261.

         {¶5} 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.

         {¶6} Further investigation indicated that appellant had been in frequent contact with his dealer, Nicole Fannin, during the month of May 2015, and that appellant was the sole source of heroin to Chad in the forty-eight hours prior to his death. Nicole later testified that she was selling heroin to appellant on a daily basis, in quantities no less than one-half of a gram, throughout May 2015. Tr. at 297.

         {¶7} On October 20, 2016, the Licking County 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)).

         {¶8} The case proceeded to a jury trial commencing on June 27, 2017.

         {¶9} On June 29, 2017, appellant was found guilty of all four of the above counts.

         {¶10} The trial court, upon merging Counts 1, 2, and 4, sentenced appellant to an aggregate prison term of 5 years.

         {¶11} On July 19, 2017, appellant filed a notice of appeal. He herein raises the following three Assignments of Error:

         {¶12} "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).

         {¶13} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY ALLOWING THE STATE TO PUT ON EXPERT TESTIMONY WITHOUT COMPLYING WITH CRIMINAL RULE 16 DENYING APPELLANT DUE PROCESS OF LAW.

         {¶14} "III. THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

         I.

         {¶15} In his First Assignment of Error, appellant contends the trial court erred in denying his motion for acquittal and in failing to properly provide jury ...


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