State v. Williams

[Cite as State v. Williams, 2020-Ohio-4430.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

RUBIN L. WILLIAMS,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 19 CO 0010

Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2018-CR-155

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

JUDGMENT:
Affirmed.

Atty. Robert Herron, Prosecutor, Atty. John E. Gamble, Chief Assistant Prosecutor,
Atty. Tammie Riley Jones, Assistant Prosecutor, 105 South Market Street, Lisbon, Ohio
44432, for Plaintiff-Appellee and

Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St. Youngstown,
Ohio 44503 for Defendant-Appellant.
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Dated: August 21, 2020

Robb, J.

{¶1} 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 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
{¶2} On May 17, 2018, Appellant was indicted for involuntary manslaughter for
causing the death of Jennifer Bettis as a proximate result of committing or attempting to
commit a felony (drug trafficking). See R.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.
{¶3} 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 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,

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a spoon with residue, a folded paper packet containing a pink substance, a lighter, and
other drug paraphernalia. (Tr. 237, 280-281, 284). A baby gate impeded the entrance to
the kitchen, and the child was found sleeping on the floor by the gate. (Tr. 248).
{¶4} 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 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).
{¶5} 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).
{¶6} 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 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 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).

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{¶7} 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).
{¶8} 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 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).
{¶9} 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). 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 Appellant to operate out of her house and for acting as his drug runner. (Tr. 388-
391).

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{¶10} 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).
{¶11} On October 14, 2016, Nicole drove to 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).
{¶12} 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).
{¶13} 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 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.
{¶14} 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

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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 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 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).
{¶15} 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.
{¶16} 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 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
{¶17} 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.”

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{¶18} 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.3d 569, 576, 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. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541
(1997). An evaluation of witness credibility is not involved in a sufficiency review as the
question is whether the evidence is sufficient if believed. State v. Yarbrough, 95 Ohio
St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v. Murphy, 91 Ohio St.3d
516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency involves the state's burden
of production rather than its burden of persuasion. Thompkins, 78 Ohio St.3d at 390
(Cook, J., concurring).
{¶19} “A conviction can 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, 739 N.E.2d 749 (2001).
{¶20} 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,
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, 714 N.E.2d 867 (1999). See also Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 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. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998).
{¶21} 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). Here, the felony was

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drug trafficking, and Appellant was additionally charged with knowingly selling or offering
to sell a schedule II controlled substance. Fentanyl is a schedule II controlled substance.
{¶22} 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 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
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.
{¶23} 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.
{¶24} In Burrage, the defendant was federally indicted for unlawfully distributing
heroin with an additional sentencing enhancement element applying to cases where
“death * * * 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)(1)(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

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heroin metabolites, including 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.
{¶25} 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.
{¶26} The Burrage Court first outlined the two parts of the causation element in a
criminal case: actual cause and legal cause. Id. at 210. 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. 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.
{¶27} 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. Id. 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.
{¶28} 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

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defendant’s 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.
{¶29} 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.
{¶30} 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 by the defendant was a but-for cause of death even
though the decedent’s blood contained several drugs. Id. at 217.
{¶31} 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. 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.
{¶32} 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.” Id. 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.

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{¶33} First, we note that Burrage was an appeal from a federal conviction where
the non-constitutional issue involved the interpretation 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.S. 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 (1971) (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).
{¶34} 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).
{¶35} The statute in the case before us requires the defendant to “cause the death
of another * * * as a proximate result” of committing or attempting to commit a felony.
R.C. 2903.04(A)(1). 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. 14-19-14, 2019-Ohio-5168, ¶ 23 (but there
can be more than one cause); State v. Potee, 12th Dist. No. CA2016-06-045, 2017-Ohio-
2926, 90 N.E.3d 58, ¶ 33. Ohio’s standard 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.

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{¶36} Similarly, this court has reviewed a felony-murder conviction under a statute
with the same “cause the death of another * * * as a proximate result of” language. State
v. Franklin, 7th Dist. Mahoning No. 06-MA-79, 2008-Ohio-2264, ¶ 18, quoting R.C.
2903.02(B). We held: “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 * * *.” Franklin, 7th Dist. No. 06-MA-79 at ¶ 120-121, quoting
State v. Franklin, 10th Dist. Franklin No. 06AP-1154, 2008-Ohio-462, ¶ 25.
{¶37} 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, ¶ 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-Ohio-1642, 135 N.E.3d 1093, ¶ 42; State v. Carpenter, 3rd Dist. No.
13-18-16, 2019-Ohio-58, 128 N.E.3d 857, ¶ 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 v.
Hall, 12th Dist. Preble No. CA2015-11-022, 2017-Ohio-879, ¶ 71-74. Nevertheless, the
Price case still suggested but-for causation was satisfied. Price, 8th Dist. No. 107096 at
¶ 42-43 (finding the trial court instructed the jury on but-for causation).1
{¶38} 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-

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 Burrage rationale 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.

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for causation under the Burrage rationale. State v. Kosto, 5th Dist. Licking No. 17 CA 54,
2018-Ohio-1925, ¶ 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 ¶
23, quoting Burrage, 571 U.S. at 890.
{¶39} 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 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). * * * 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.
(Emphasis added). Burrage, 571 U.S. at 890.
{¶40} Likewise, Appellant believes Burrage means that the testimony must show
the decedent would have died from the drug he provided alone. 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

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 * * * 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.” That statute does not contain the “proximately results” language of the involuntary
manslaughter statute.

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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 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.
{¶41} 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).
{¶42} 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 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 her system) as the evidence shows the
decedent took a “lethal dose” of fentanyl thinking it was heroin. (Tr. 469, 489, 494).
{¶43} 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.
{¶44} 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

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mixed drug overdose, the ability of the anti-anxiety drug to suppress 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.
{¶45} 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 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-
Ohio-4215, 954 N.E.2d 596, ¶ 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 of the sufficiency or the weight of the evidence.
{¶46} 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 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. Id.
at ¶ 77-78, citing State v. D'Ambrosio, 67 Ohio St.3d 185, 191, 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-Ohio-4751, 23
N.E.3d 1096, ¶ 129 (In the criminal context, questions about certainty go not to

3Appellant 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.

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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
fentanyl instead of the heroin she ordered.
{¶47} 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.
{¶48} 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), 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).
{¶49} 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

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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 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).
{¶50} 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.
{¶51} 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). “Cause in fact is distinct from
proximate, or legal cause.” Renfrow v. Norfolk S. Ry. Co., 140 Ohio St.3d 371, 2014-
Ohio-3666, 18 N.E.3d 1173, ¶ 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 foreseeability).
{¶52} “Foreseeability should be assessed from the viewpoint of what the
defendant knew or should have known in light of ordinary experience.” Franklin, 7th Dist.
No. 06-MA-79 at ¶ 120, quoting Franklin, 10th Dist. No. 06AP-1154 at ¶ 25. Mitchell,
3rd Dist. No. 14-19-14 at ¶ 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. Losey, 23 Ohio App.3d 93, 95, 491 N.E.2d 379 (10th 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 at ¶ 120.
{¶53} “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-

Case No. 19 CO 0010
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4423, ¶ 91. See also Mitchell, 3rd Dist. No. 14-19-14 at ¶ 24, 31; State v. Carpenter, 3d
Dist. Seneca No. 13-18-16, 2019-Ohio-58, ¶ 56; State v. Vogt, 4th Dist. Washington No.
17CA17, 2018-Ohio-4457, ¶ 99-100, 105; State v. Veley, 6th Dist. Lucas No. L-16-1038,
2017-Ohio-9064, ¶ 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 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.
{¶54} For all of the foregoing reasons, this assignment of error is overruled.
ASSIGNMENT OF ERROR TWO: MANIFEST WEIGHT
{¶55} Appellant’s second assignment of error contends:
“The conviction for involuntary manslaughter was against the manifest weight of
the evidence.”
{¶56} 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, 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).
{¶57} 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. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220,
citing Thompkins, 78 Ohio St.3d at 387. The appellate court’s discretionary power to

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grant a new trial on these grounds can be exercised only in the exceptional case where
the evidence weighs heavily against the conviction. Id.
{¶58} The weight to be given the evidence is primarily for the trier of the facts.
State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus. 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. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984).
{¶59} 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.
Thompkins, 78 Ohio St.3d at 389, citing Ohio Constitution, Article IV, Section 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. 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 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).
{¶60} 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, ¶ 84, 86.
{¶61} 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

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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 cause of the decedent’s
death. For specifics, we refer to the discussion supra on the facts and law relevant to
causation.
{¶62} 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. CA2016-02-009, 2017-Ohio-420, ¶ 39 (the jury did
not lose its way in finding fentanyl was the actual and legal cause of death).
{¶63} 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 attempting 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.
{¶64} The trial court’s judgment is affirmed.

Waite, P.J., concurs.

D’Apolito, J., concurs.

Case No. 19 CO 0010
[Cite as State v. Williams, 2020-Ohio-4430.]

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.