[Cite as State v. Sabo, 2010-Ohio-1261.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

STATE OF OHIO, CASE NO. 14-09-33 

 PLAINTIFF-APPELLEE, 

 v. 

RICHARD H. SABO, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Union County Common Pleas Court 

Trial Court No. 08-CR-84 

Judgment Affirmed 

Date of Decision: March 29, 2010 

 

APPEARANCES: 

Richard s. Ketcham for Appellant 

David W. Phillips for Appellee 
Case No. 14-09-33 

-2-

PRESTON, J. 

{¶1} Defendant-appellant, Richard H. Sabo (hereinafter “Sabo”), appeals 

the judgment of conviction entered against him by the Union County Court of 

Common Pleas. For the reasons that follow, we affirm. 

{¶2} This matter stems from the events that took place on or about June 

19, 2007, when Sabo allegedly transported liquid methadone and other drugs to 

Union County, Ohio, where he shared them with another individual, Michael 

Mudgett (hereinafter “Michael”), who later died of an overdose of drugs. On July 

16, 2008, the Union County Grand Jury indicted Sabo on three counts: count one, 

sale or offer to sell Methadone, Oxycodone and Tramadol, constituting aggravated 

trafficking in drugs, in violation of R.C. 2925.03(A)(c)(1), a felony of the fourth 

degree with a forfeiture specification that a pick-up truck was used to commit or 

facilitate the commission of the offense; count two, involuntary manslaughter in 

violation of R.C. 2903.04, a felony of the second degree; and count three, 

aggravated possession of drugs in violation of R.C. 2925.11(A)(c)(1), a felony of 

the fifth degree. 

{¶3} Sabo entered pleas of not guilty to the charges on October 10, 2008. 

On June 17, 2009, the State moved to amend count one of the indictment to 

remove any reference to Oxycodone and Tramadol. The motion was granted on 

the same day. 
Case No. 14-09-33 

-3-

{¶4} A jury trial was held on June 17-18, 2009, and the following 

testimony was heard. Michael’s mother and Sabo’s sister, Jane Mudgett 

(hereinafter “Mudgett”), testified that on June 19, 2007, Michael was with her at 

her house when Sabo and his girlfriend, Linda Byers (hereinafter “Byers”), pulled 

into the driveway. (June 17, 2009 Tr. at 51-56). Mudgett said that Sabo and 

Byers had liquor, beer, guns, and a white pharmaceutical bag with them, and that 

they were looking to party. (Id. 55-56). Mudgett said that she told them to leave, 

and while Byers stayed behind, Sabo and Michael left together and went to Steven 

Latham’s house (hereinafter “Latham”), which was down the road from her house. 

(Id. at 57). Later that day, Mudgett and her other son, Nick Mudgett (hereinafter 

“Nick”), went to Latham’s house where Sabo, Latham, and Michael were all 

partying. (Id. at 58). She said that there was a lot of alcohol, ashtrays, beer cans, 

and a plate with white power on it. (Id.). She said that when they arrived Michael 

was very inebriated and that Nick had to escort him back inside the house and put 

Michael to bed. (Id. at 59-60). Soon after putting Michael to bed in the back 

bedroom, Mudgett said that Nick went home, but that she stayed the night at 

Latham’s house. (Id. at 60). When she got up the next morning, she went to 

check on Michael, but Sabo stopped her and told her that Michael was fine, then 

he gave her a ride back to her house. (Id. at 61). Later that day, Mudgett decided 

to go back to Latham’s house and when she got to Latham’s house she found 

Michael dead in the back bedroom. (Id. at 62). 
Case No. 14-09-33 

-4-

{¶5} Mudgett further testified that Sabo was the caretaker for their father 

and was living at their father’s house while their father was staying at a nursing 

home. (Id. at 53-54). Mudgett said that their father had a lot of medical problems 

and took a lot of medications, and that Sabo was in charge of making sure their 

father received his medications, one of which she knew was liquid methadone. 

(Id. at 52-55). 

{¶6} On cross-examination, Mudgett testified that Michael and Sabo had 

a good relationship. (Id. at 64). In addition, Mudgett acknowledged that Michael 

had been diagnosed as bi-polar and was taking medications for his mental illness, 

and that Sabo was aware of Michael’s mental condition and that Michael was 

taking medications for it. (Id. at 64-65). Furthermore, she admitted that Michael 

drank and that his drinking had caused him problems. (Id. at 65). 

{¶7} Nick Mudgett, Michael’s younger brother, testified next. Nick, who 

lived with his mother, also stated that Sabo and Byers pulled into their driveway 

and that they were looking to party. (Id. at 72-77). Nick said that he went out 

with Sabo to his truck and that Sabo pulled out and showed him a prescription bag. 

(Id. at 78). Nick stated that Michael and Sabo left together and went to Latham’s 

house, and later when Nick and his mother went to Latham’s house, they saw 

everyone snorting up drugs. (Id. at 79-82). Nick said that Michael was stumbling 

around and that his speech was slurred and his eyes were glazed over and his 

pupils were the size of pins. (Id.). He put Michael to bed in the back bedroom, 
Case No. 14-09-33 

-5-

and although his mother stayed behind, Nick left because he had to work the next 

morning. (Id. at 84). 

{¶8} Linda Byers, Sabo’s girlfriend, testified that on June 19, 2007, she 

and Sabo started at his father’s house then drove over to Mudgett’s house because 

they wanted to party. (Id. at 89-90). While she stated at trial that they had only 

brought vodka and beer with them that day, she later admitted that in a prior 

statement she had made to the police, she had said that Sabo also had taken liquid 

methadone and 3-5 syringes with him over to Mudgett’s house. (Id. at 95-96). 

{¶9} Steven Latham, who was convicted of permitting drug abuse in 

connection to Michael’s death, testified that on June 19, 2007, Sabo and Michael 

came over to his house. (Id. at 107). Latham said that in addition to the alcohol 

Sabo brought in to his house, Sabo also had liquid methadone and some pills. (Id. 

at 108-09). Immediately following their arrival, Latham said that all three of them 

started partying with the drugs Sabo had brought. (Id. at 110). Latham said that 

Sabo would put the liquid methadone in a syringe and then would place the 

syringe under each of their tongues. (Id. at 111). Latham said that Sabo was the 

only one who administered the liquid methadone and that he gave Michael four 

hits of the liquid methadone. (Id. at 111-12). Moreover, they crushed up the pills 

Sabo brought, which Latham believed consisted of more than one kind of pill, and 

they snorted the powder. (Id. at 112-13). In addition to the drugs, Latham said 

that the three of them were also drinking alcohol. (Id. at 113). 
Case No. 14-09-33 

-6-

{¶10} Latham said that later that day Nick and Mudgett came over and that 

before he left, Nick put Michael, who was “very inebriated,” to bed in the back 

bedroom. (Id. at 114). The next day, prior to Mudgett’s discovery, Latham said 

that he checked on Michael and discovered that Michael was dead. (Id. at 116). 

On cross-examination, Latham said that Michael was not forced into taking any of 

the drugs, and that Sabo had told them that what he was putting in the syringes 

was liquid methadone, although Sabo was the only person who handled the liquid 

methadone and administered the liquid methadone to each of them individually. 

(Id. at 125). 

{¶11} Corporal Matt Warden and Deputy Tom Bidlack of the Union 

County Sheriff’s Office testified that they had responded to a dispatch at 13871 

Hillsview Road concerning a possible dead-on-arrival. (Id. at 25-27, 46). When 

Corporal Warden entered the back bedroom of the residence he found Mudgett 

and another man (Latham) next to Michael’s body which was lying on a bed. (Id. 

at 28-29). Corporal Warden stated that Michael had no pulse and there was 

“obvious” pooling of the blood. (Id. at 29). Mudgett, who was very upset at the 

time, told the officers that they had been partying all night and doing drugs, and 

later told Deputy Bidlack that Sabo had been responsible for Michael’s death. (Id. 

at 39, 46). 

{¶12} Detective Andrew Wuertz with the Upper Arlington Police 

Department and Detective Jeff Stiers with the Union County Sheriff’s Office 
Case No. 14-09-33 

-7-

testified that they went to Sabo’s residence to interview him about the 

circumstances surrounding Michael’s death. (Id. at 127-28, 134-36). Initially, 

Sabo admitted that he and Byers had gone to Union County the previous night and 

had been drinking with Michael, but Sabo failed to mention anything about using 

drugs. (Id. at 129, 136). After this initial interview, Detective Stiers talked with 

Byers, who mentioned that Sabo had brought liquid methadone with him the 

previous night, so Detective Stiers confronted Sabo about the liquid methadone. 

(Id. at 137-38, 142-49). This time Sabo admitted to bringing the liquid methadone 

and giving Michael three to four hits of the drug the previous night. (Id. at 142-

49). The detectives eventually recovered the methadone during a consent search 

of the home. (Id. at 130). Finally, Detective Stiers said that after he had 

confronted Sabo about the liquid methadone, Sabo made a written statement in 

which he admitted to giving Michael three to four hits of the liquid methadone, 

and even stated that he had told Michael not to go overboard with the liquid 

methadone because he was not used to it. (Id. at 144); (State’s Ex. 23). 

{¶13} Dr. Jeff Lee, the chief forensic pathologist and the deputy coroner 

for Licking County, testified that he performed the autopsy of Michael’s body on 

June 20, 2007, at the request of Union County Coroner Dr. David Applegate. 

(June 18, 2009 Tr. at 160). Dr. Lee said that he found airway froth and brain 

swelling, consistent with and due to asphyxia or respiratory depression. (Id. at 

161-64). Dr. Lee stated that one of the common causes of these types of injuries is 
Case No. 14-09-33 

-8-

a drug overdose. (Id. at 163). Dr. Lee asked Dr. Marinetti from the Montgomery 

County Coroner’s office to perform a toxicology report on some samples from 

Michael’s body, and his report indicated the presence of nine different drugs, five 

significant ones, which included: methadone, tramadol, olazapine, oxycodone, and 

alcohol. (Id. at 168). Based on this report and his examination of Michael’s body, 

Dr. Lee concluded that the cause of death was due to the acute multiple drug 

effects which led to respiratory depression. (Id. at 169-70). Moreover, Dr. Lee 

stated that, to a reasonable degree of medical certainty, out of the drugs that had 

caused the respiratory depression, the “most significant one without question” was 

the level of methadone. (Id. at 173). Dr. Lee believed that the methadone level 

was the most significant given the high level found in Michael’s body. (Id.). Dr. 

Lee explained that individuals who are prescribed methadone build up a tolerance 

to it, but individuals, like Michael, who are naïve to the drug, or who do not use 

the drug on a regular basis, do not have this tolerance. (Id. at 173-74). Dr. Lee 

stated that he has seen naïve individuals die from methadone levels as low as 0.15 

micrograms per milliliter of blood, and here, Michael exhibited a level of 

methadone at 1.2 microgram per milliliter of blood – eight times higher than the 

lowest recognized lethal level of methadone (0.15). (Id. at 173). 

{¶14} Dr. Lee also explained tramadol, methadone, oxycodone, and 

alcohol are all respiratory depressants, which means that each of them decrease the 

brain’s natural ability to cause the lungs to breathe; in other words, they cause the 
Case No. 14-09-33 

-9-

brain to tell the lungs to slow down the breathing. (Id. at 170). These drugs 

eventually cause the brain to decrease the breathing of the lungs to a point where 

the body is not producing enough oxygen to keep the brain and heart alive, and the 

individual dies from a lack of oxygen. (Id. at 171). On cross-examination, as to 

how long different drugs would remain detectable in a person’s body, Dr. Lee said 

that it could be as little as a few hours for one drug or as long as a few weeks for 

another drug. (Id. at 179). 

{¶15} Dr. Marinetti, the chief forensic toxicologist at the Montgomery 

County Coroner’s office, testified that she ran the standard toxicology tests on the 

samples provided to her by Dr. Lee and found the presence of alcohol, marijuana, 

methadone, oxycodone, tramadol, and olanzapine. (Id. at 188). On crossexamination, Dr. Marinetti stated that the amount of time a particular drug would 

stay in someone’s body would depend on the drug, the biggest determining factor 

being the dose, or how much drug was taken by the individual. (Id. at 190). 

{¶16} Keith Taggart, a chemist at the Bureau of Criminal Identification in 

Richfield, Ohio, testified that he ran the standard tests on the bottle found at 

Sabo’s house given to him by Detective Stiers, and ultimately determined that the 

bottle contained liquid methadone. (Id. at 191-94). 

{¶17} Finally, Dr. Applegate, the Union County Coroner, testified that he 

had responded to the scene of Michael’s death and noticed that there was a slight 

froth around his mouth, indicative of a drug overdose. (Id. at 197-99). He stated 
Case No. 14-09-33 

-10-

that he sent the body over to Licking County, and after reading the reports from 

the forensic pathologist and the forensic toxicologist, he concluded that Michael 

had died from polysubstance overdose. (Id. at 200). While Dr. Applegate could 

not say for sure which specific drug found in Michael’s body actually killed 

Michael, Dr. Applegate stated that the methadone had been one of the more 

contributing drugs, and that Michael would not have died but for the ingestion of 

the drugs. (Id. at 200-03). 

{¶18} Afterwards, the State rested and Sabo declined to put on any 

additional evidence in defense, so the matter was submitted to the jury, who 

returned guilty verdicts on all three counts of the indictment. A sentencing 

hearing was conducted on August 31, 2009, where the trial court imposed the 

following sentence: as to count one, aggravated trafficking, seventeen (17) 

months; as to count two, involuntary manslaughter, nine (9) years; and as to count 

three, aggravated possession of drugs, eleven (11) months. Each term of 

imprisonment was to be served consecutively for a total of eleven (11) years and 

four (4) months. The trial court further ordered the forfeiture of Sabo’s pick-up 

truck, restitution to June Mudgett in the amount of $11,468.31, and the payment of 

costs of $1,797.50. 

{¶19} Sabo now appeals and raises two assignments of error. 
Case No. 14-09-33 

-11-

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED WHEN IT ENTERED 

JUDGMENT AGAINST THE DEFENDANT AS TO COUNT 

TWO WHEN THERE WAS INSUFFICIENT EVIDENCE TO 

SUSTAIN THAT CONVICTION AND IT IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION 

OF DEFENDANT-APPELLANT’S RIGHTS TO DUE 

PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY 

AMENDMENTS V AND XIV OF THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE 

OHIO CONSTITUTION. (T – VOL. II – 252-57); JUDGMENT 

ENTRY. 

{¶20} In his first assignment of error, Sabo argues that his involuntary 

manslaughter conviction was not based on sufficient evidence and was against the 

manifest weight of the evidence. Specifically, Sabo claims that this conviction 

was erroneous because, while the jury could have found, and did find, that he was 

guilty of aggravated trafficking in drugs, the jury could not have found that the 

aggravated trafficking offense proximately caused Michael’s death. 

{¶21} The Ohio Supreme Court has set forth the sufficiency of the 

evidence test as follows: 

[A]n appellate court’s function when reviewing the sufficiency of 

the evidence to support a criminal conviction is to examine the 

evidence admitted at trial and determine whether such evidence, 

if believed, would convince the average mind of the defendant’s 

guilt beyond a reasonable doubt. The relevant inquiry is 

whether, after viewing the evidence in a light most favorable to 

the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable 

doubt. 
Case No. 14-09-33 

-12-

State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, superseded by 

State constitutional amendment on other grounds as stated in State v. Smith (1997), 

80 Ohio St.3d 89, 684 N.E.2d 668. 

{¶22} Alternatively, an appellate court’s function when reviewing the 

weight of the evidence is to determine whether the greater amount of credible 

evidence supports the verdict. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 

678 N.E.2d 541. In reviewing whether the trial court’s judgment was against the 

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines 

the conflicting testimony. Id. In doing so, this Court must review the entire 

record, weigh the evidence and all of the reasonable admissible inferences, 

consider the credibility of witnesses, and determine whether in resolving conflicts 

in the evidence, the factfinder “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. Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764, ¶30, citing 

State v. Martin (1983), 20 Ohio App.3d 127, 175, 485 N.E.2d 717; Thompkins, 78 

Ohio St.3d at 387. Further, we must be mindful that the credibility to be afforded 

the testimony of the witnesses is to be determined by the trier of fact. State v. Dye

(1998), 82 Ohio St.3d 323, 329, 695 N.E.2d 763; State v. Frazier (1995), 73 Ohio 

St.3d 323, 652 N.E.2d 1000.

{¶23} After a review of the record, we note that Sabo failed to make a 

Crim.R. 29 motion at the close of the State’s case. Thus, he has waived all but 
Case No. 14-09-33 

-13-

plain error as to the sufficiency of the evidence. See State v. Jones (2001), 91 

Ohio St.3d 335, 346, 744 N.E.2d 1163. In order to find plain error, there must be 

a deviation from a legal rule, the error must be an “obvious” defect in the 

proceedings, and the error must affect a defendant’s “substantial rights.” State v. 

Barnes (2002), 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Reversal 

on plain error is to be used “with the utmost caution, under exceptional 

circumstances and only to prevent a manifest miscarriage” of justice. Id. 

{¶24} In this case, Sabo does not dispute his convictions of aggravated 

trafficking in drugs or aggravated possession of drugs. Rather, his complaint on 

this appeal only concerns the involuntary manslaughter conviction, which is 

defined under R.C. 2903.04, and provides: 

No person shall cause the death of another or the unlawful 

termination of another’s pregnancy as a proximate result of the 

offender’s committing or attempting to commit a felony. 

The State had the burden to prove that Sabo caused Michael’s death, and that the 

death proximately resulted from Sabo’s commission of any felony, which in this 

particular case was trafficking in drugs. State v. Shoemaker, 3d Dist. No. 14-06-

12, 2006-Ohio-5159, ¶66, citing State v. Morris, 105 Ohio App.3d 552, 556, 664 

N.E.2d 950. 

{¶25} This Court has previously cited to the 10th District’s decision in 

State v. Losey (1985), 23 Ohio App.3d 93, 94-95, 491 N.E.2d 379, for guidance on 

the intention of the Legislature in its use of “proximate result” under R.C. 
Case No. 14-09-33 

-14-

2903.04. See Shoemaker, 2006-Ohio-5159, at ¶65. In that decision, the 10th 

District stated as follows: 

Under [R.C. 2903.04], defendant cannot be held responsible for 

consequences no reasonable person could expect to follow from 

his conduct; he will be held responsible for consequences which 

are direct, normal, and reasonably inevitable-as opposed to 

extraordinary or surprising-when viewed in the light of ordinary 

experience. In this sense, then, “proximate result” bears a 

resemblance to the concept of “proximate cause” in that 

defendant will be held responsible for those foreseeable 

consequences which are known to be, or should be known to be, 

within the scope of the risk created by his conduct. State v. 

Chambers (1977), 53 Ohio App.2d 266, 373 N.E.2d 393 [7 

O.O.3d 326. Here, that means that death reasonably could be 

anticipated by an ordinarily prudent person as likely to result 

under these or similar circumstances. See State v. Nosis (1969), 

22 Ohio App.2d 16, 457 N.E.2d 414 [51 O.O.2d 15]. 

Losey, 23 Ohio App.3d at 95. 

{¶26} Here, Sabo argues that there was insufficient evidence that his 

aggravated trafficking of drugs proximately caused Michael’s death. Specifically, 

he claims that given the evidence presented at trial, only the liquid methadone 

could be associated with him, and neither expert witness could say which one of 

the five significant drugs found in Michael caused Michael’s death. Therefore, he 

claims that it was unforeseeable for him to have known that Michael had toxic 

levels of other significant drugs in his body when he administered the liquid 

methadone. We disagree. 

{¶27} Based on the evidence presented in this case, we believe that 

reasonable minds could have concluded at the close of the State’s case that 
Case No. 14-09-33 

-15-

Michael’s death was proximately caused by Sabo giving him the liquid 

methadone. While Michael’s death was the result of the effects of taking multiple 

drugs, and neither expert could pinpoint which exact drug caused Michael’s death, 

we believe that a fatal consequence was within the foreseeable scope of risk 

created by Sabo’s conduct in administering the liquid methadone when there was 

ample evidence regarding Michael’s inebriated condition, the fact that he and Sabo 

had taken other substances together that night, and the fact that Sabo had even 

warned Michael about using the liquid methadone. See State v. Baksi (Dec. 23, 

1999), 11th Dist. No. 98-T-0123, at *16 (finding that there was sufficient evidence 

to support involuntary manslaughter conviction when evidence showed defendant 

prepared an extremely strong hit of heroin and gave the loaded syringe to another 

inmate who was known to abuse drugs); State v. Grunden (1989), 65 Ohio App.3d 

777, 783-84, 585 N.E.2d 487 (finding that reasonable minds could have concluded 

at the close of the state’s case that the infant’s death was proximately caused by 

the defendant’s conduct in leaving a gram of cocaine unattended on a coffee table, 

well within the reach and propensities of a thirteen-month-old child). 

{¶28} First of all, there was testimony that the level of methadone found in 

Michael’s body was at a lethal level by itself. The forensic pathologist who had 

conducted the actual autopsy of Michael stated that the most significant drug 

found in Michael’s body that had contributed to his death was the methadone. 

This was because the level of methadone found in Michael’s body was eight times 
Case No. 14-09-33 

-16-

higher than the lowest lethal level of methadone typically found in naïve 

methadone users’ deaths. Furthermore, not only was there testimony that Sabo 

had brought the liquid methadone, but also that he was the only one that had been 

in control and administered the liquid methadone to everyone, including Michael, 

who received three to four shots. Finally, Sabo even told the police that he had 

warned Michael to not go overboard with the liquid methadone because he was 

not used to it. 

{¶29} Sabo argues that he was unaware that Michael had taken other 

“toxic” drugs that night; however, there was evidence that Sabo should have been 

aware of Michael’s condition and that Michael had ingested other substances that 

night. Latham testified that the pills were crushed up and snorted by both Michael 

and Sabo, and although not directly linked to the other drugs found in Michael’s 

body, these pills were also brought by Sabo. Furthermore, there was ample 

testimony about how Michael was “very inebriated” that night and had been 

drinking in addition to taking the methadone and snorting the white powder 

substance. Thus, while there may not have been evidence directly linking Sabo to 

the other significant drugs found in Michael’s system (oxycodone, tramadol, and 

olanzapine), it is clear that Michael was very inebriated that night, and that 

Michael was ingesting other substances with Sabo in addition to drinking alcohol 

when Sabo provided and administered three to four hits of the liquid methadone to 

Michael. 
Case No. 14-09-33 

-17-

{¶30} Under the facts of this case, we believe that a fatal consequence was 

within the foreseeable scope of risk created by Sabo’s conduct in administering the 

liquid methadone given the evidence presented by the State, specifically Michael’s 

inebriated condition, the fact that he and Sabo had taken other substances together, 

and the fact that Sabo had warned Michael about using the liquid methadone. 

Therefore, we find that a rational trier of fact could have found the prosecution 

proved beyond a reasonable doubt that Sabo proximately caused Michael’s death 

when Sabo provided and administered the liquid methadone. 

{¶31} Moreover, we do not believe that the jury clearly lost its way and 

created such a manifest miscarriage of justice that Sabo’s conviction must be 

reversed and a new trial ordered. When reviewing a conviction under the manifest 

weight of the evidence standard of review, this Court must review the entire 

record. However, Sabo did not present any additional evidence in defense, thus all 

this Court is left with is the above evidence and testimony that was presented by 

the State. 

{¶32} Specifically, the jury was aware of the fact that Michael had died 

from a combination of multiple drugs; however, there was testimony that the one 

drug that was clearly provided for and administered by Sabo (the liquid 

methadone), was the most significant drug that had contributed to Michael’s death. 

There was evidence that the amount of methadone in Michael’s body was eight 

times higher than the lowest lethal dosage found in overdosed naïve methadone 
Case No. 14-09-33 

-18-

users. In addition, the jury heard about Sabo’s own statement to Michael warning 

him about the liquid methadone, which at least raises a reasonable inference that 

Sabo was aware of the potential dangers of administering liquid methadone to 

naïve users. Overall, the jury was able to personally view the demeanor of the 

witnesses and it was in the best position to judge their credibility, and therefore, 

based on the above evidence, we find that the State presented ample evidence and 

testimony at trial so that the jury could have reasonably concluded that Sabo 

proximately caused Michael’s death when he provided and administered the liquid 

methadone. Again, given Michael’s inebriated condition, the fact that he and Sabo 

had taken other substances together, and the fact that Sabo had warned Michael 

about using the liquid methadone, we believe that a fatal consequence was within 

the foreseeable scope of risk created by Sabo’s conduct in providing and 

administering the liquid methadone. 

{¶33} Overall, when viewing the evidence in a light most favorable to the 

State, Michael’s death, resulting from polysubstance overdose, could have 

reasonably been anticipated by an ordinarily prudent person as likely to result 

from Sabo’s trafficking in drugs, and that any rational trier of fact could have 

found the essential elements of R.C. 2903.04(A) proven beyond a reasonable 

doubt. Furthermore, we cannot say that the jury lost its way in considering and 

weighing the evidence presented. Thus, we find that there was sufficient evidence 
Case No. 14-09-33 

-19-

to support the involuntary manslaughter conviction and that the conviction was not 

against the manifest weight of the evidence. 

{¶34} Sabo’s first assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED WHEN IT IMPOSED 

CONSECUTIVE SENTENCES WITHOUT MAKING THE 

FINDINGS REQUIRED BY R.C. 2929.14(E)(4). (T – VOL. II – 

280-81); JUDGMENT ENTRY. 

{¶35} In his second assignment of error, Sabo argues that the trial court 

erred in failing to make the requisite findings under R.C. 2929.14(E)(4) when it 

stated that his three terms of imprisonment were to run consecutively. 

Specifically, Sabo claims that the United States Supreme Court decision in Oregon 

v. Ice (2009), __ U.S. __, 129 S.Ct. 711, 172 L.Ed.2d 517, overruled the Ohio 

Supreme Court’s decision in State v. Foster (2006), 109 Ohio St.3d 1, 2006-Ohio856, 845 N.E.2d 470. As a result, Sabo claims that the old sentencing scheme, 

which required judges to make specific findings before imposing consecutive 

sentences and which was overruled by the Ohio Supreme Court in Foster, has now 

been re-established by Oregon v. Ice. 

{¶36} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 

470, the Ohio Supreme Court declared that those portions of the felony sentencing 

statutes that required judicial fact-finding before the trial court could impose a 

prison sentence were violations of the Sixth Amendment pursuant to Blakely v. 
Case No. 14-09-33 

-20-

Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and Apprendi 

v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. 2006-

Ohio-856, at ¶100. Subsequently, the Supreme Court excised those provisions that 

related to judicial fact-finding from the sentencing statutes, specifically including 

R.C. 2929.14(E)(4) and R.C. 2929.41(A). Id. at ¶97. As a result of the excision of 

those unconstitutional provisions, the Court ultimately held that, “[t]rial courts 

have full discretion to impose a prison sentence within the statutory range and are 

no longer required to make findings or give their reasons for imposing maximum, 

consecutive, or more than the minimum sentences.” Id. at paragraph seven of the 

syllabus. 

{¶37} Recently, in Oregon v. Ice, the United States Supreme Court 

examined an Oregon statute that required judges to find certain facts before 

imposing consecutive rather than concurrent sentences. 129 S.Ct. at 714-20. The 

Supreme Court upheld the constitutionality of the Oregon statute and found that it 

did not violate the Sixth Amendment concerns set out under Apprendi and Blakely. 

Id. at 719. Ultimately, the Supreme Court stated that, in light of historical 

practices and the right of states to administer their criminal justice systems, the 

Sixth Amendment did not prevent states from allowing judges, rather than juries, 

to make any finding of facts necessary to the imposition of consecutive, rather 

than concurrent, sentences. Id. at 716-20. 
Case No. 14-09-33 

-21-

{¶38} Sabo claims that the United States Supreme Court’s decision 

controls over the Ohio Supreme Court’s decision as to matters of federal 

constitution law. See Minnesota v. National Tea Co. (1940), 309 U.S. 551, 557, 

60 S.Ct. 676, 83 L.Ed. 920; State v. Storch (1993), 66 Ohio St.3d 280, 291, 612 

N.E.2d 305. However, this Court recently addressed the potential effects of 

Oregon v. Ice in State v. Blackburn, 3d Dist. No. 5-09-18, 2009-Ohio-5902, ¶¶6-

11, accepted for appeal by State v. Blackburn, 124 Ohio St.3d 1505, 2010-Ohio799, __ N.E.2d __, and ultimately rejected the argument that Foster had been 

overruled. 

{¶39} In Blackburn, we followed the reasoning of several other districts 

that have acknowledged the Oregon v. Ice decision, but have found that until the 

Ohio Supreme Court fully reviews and ultimately reverses its Foster decision, 

Foster remains binding upon this Court. State v. Robinson, 8th Dist. No. 92050, 

2009-Ohio-3379; State v. Franklin, 10th Dist. No. 08AP-900, 2009-Ohio-2664; 

State v. Krug, 11th Dist. No. 2008-L-085, 2009-Ohio-3815; State v. Miller, 6th 

Dist. No. L-08-1314, 2009-Ohio-3908. We stated that while a re-examination of 

Ohio’s sentencing statutes might be appropriate considering the Oregon v. Ice

decision, such a review may only be performed by the Ohio Supreme Court. Id. at 

¶9, citing State v. Crosky, 10th Dist. No. 90AP-57, 2009-Ohio-4216, ¶7; State v. 

Miller, 6th Dist. No. L-08-1314, 2009-Ohio-3908, ¶18. Therefore, we are bound 

to follow the law and decisions of the Supreme Court, unless or until they are 
Case No. 14-09-33 

-22-

reversed or overruled. Id., citing State v. Mickens, 10th Dist. No. 08AP-743, 

2009-Ohio-2554. 

{¶40} Moreover, as Sabo acknowledges in his brief, we noted that recently 

in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, the 

Ohio Supreme Court briefly discussed Oregon v. Ice. Id. at ¶10. However, while 

the Court did not fully address the full ramifications of Oregon v. Ice, because 

neither party had briefed the issue before oral argument, in its decision affirming 

the trial court’s authority to impose consecutive sentences on the defendant, the 

Ohio Supreme Court stated that “Foster did not prevent the trial court from 

imposing consecutive sentences; it merely took away a judge’s duty to make 

findings before doing so.” Blackburn, 2009-Ohio-5902, at ¶¶10-11, quoting 

Elmore, 2009-Ohio-3478, at ¶36. Thus, although the Court has not yet fully 

analyzed the implications of Oregon v. Ice as it relates to Foster, it appears that it 

has still continued to follow the principles set forth in Foster. See Crosky, 2009-

Ohio-4216, at ¶8. 

{¶41} Finally, Sabo points out that R.C. 2929.14 has been amended by the 

General Assembly eleven times since the Foster decision, but yet in each of its 

amendments, the statute has maintained the original language pertaining to judicial 

fact-finding and consecutive sentences. Sabo claims that given the existence of 

the original language in R.C. 2929.14, the United States Supreme Court’s decision 

in Oregon v. Ice nullified the Foster decision pertaining to that language and 
Case No. 14-09-33 

-23-

brought it back into full effect. We disagree. Regardless of whether the original 

language has remained part of the statute since Foster, it is clear that under the 

separation of powers doctrine the Ohio Supreme Court’s role is not only to apply 

the enactments of the General Assembly but also to determine the statute’s 

constitutionality. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 

86 Ohio St.3d 451, 462, 715 N.E.2d 1062 (“The power and duty of the judiciary to 

determine the constitutionality and, therefore, the validity of the acts of the other 

branches of government have been firmly established as an essential feature of the 

Ohio system of separation of powers.”); see, also, Beagle v. Walden (1997), 78 

Ohio St.3d 59, 62, 676 N.E.2d 506 (“[i]nterpretation of the state and federal 

Constitutions is a role exclusive to the judicial branch”). Moreover, it is also clear 

that when the Court declares a statute unconstitutional, severing the 

unconstitutional portions of the statute is a remedy within the Court’s power. See 

R.C. 1.50; Simmons-Harris v. Goff (1999), 86 Ohio St.3d 1, 17, 711 N.E.2d 203. 

Here, severing the unconstitutional portions of R.C. 2929.14(E)(4), which 

pertained to judicial fact-finding, is exactly what the Ohio Supreme Court choose 

to do; therefore, regardless of the existence of the language over the past few 

years, it is clear that the Court’s declaration of the unconstitutionality and 

consequential severance of mandatory judicial fact-finding was a valid excision of 

the language and still remains binding upon this Court. It is not the place of this 

Court to declare unconstitutional a decision of our Supreme Court, and we must 
Case No. 14-09-33 

-24-

defer to the authority of the Ohio Supreme Court regarding the constitutionality of 

Foster. See State v. Combs, 2nd Dist. No. 22743, 2009-Ohio-4109, ¶12, citing 

State v. Bell, 176 Ohio App.3d 378, 2008-Ohio-2578, 891 N.E.2d 1280, ¶130 (“a 

claim that a decision of the Supreme Court of Ohio is unconstitutional is not 

cognizable in this court.”) 

{¶42} Therefore, as we stated in Blackburn, until the Ohio Supreme Court 

fully addresses Oregon v. Ice and overrules its decision in Foster, Foster remains 

binding law in the state of Ohio. State v. Blackburn, 3d Dist. No. 5-09-18, 2009-

Ohio-5902, ¶¶6-11. 

{¶43} Sabo’s second assignment of error is, therefore, overruled. 

{¶44} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS and SHAW, J.J., concur. 

/jnc