State v. Pinkerman

[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.
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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.
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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
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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.
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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,
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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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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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).
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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
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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
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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
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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.
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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
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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
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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
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{¶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.