[Cite as State v. Price, 2019-Ohio-1642.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 107096



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.


                                        MARK A. PRICE
                                               DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                   AND REMANDED; CONFLICT CERTIFIED


                                     Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-609930-A

        BEFORE:            Boyle, P.J., Laster Mays, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                      May 2, 2019
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Jeffrey Schnatter
          Katherine Mullin
Assistant Prosecuting Attorneys
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

      {¶1} Defendant-appellant, Mark Price, appeals his convictions.         He raises six

assignments of error for our review:

      1. The trial court erred by denying appellant’s motion for acquittal pursuant
      to Crim.R. 29 when the state failed to submit sufficient evidence for the
      essential elements of the crimes charged denying the appellant due process.

      2. Appellant’s convictions are against the manifest weight of the evidence.

      3. The trial court committed prejudicial error and/or plain error in violation
      of the Double Jeopardy Clause of the United States Constitution and
      Section 10, Article I of the Ohio Constitution when it failed to merge the
      two counts of corrupting another with drugs as they were allied offenses of
      similar import and were committed in a singular act with the same animus.

      4. The trial court erred in imposing consecutive sentences as such a
      sentence was not supported by the record.

      5. The trial court erred in failing to provide the [Burrage v. United States,
      571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014)] instruction regarding
      proximate cause which resulted in the denial of due process and wrongful
      conviction of the appellant.

      6. The trial court erred in failing to allow the appellant to present
      exculpatory evidence as a defense to corrupting another with drugs,
      violating his right to a fair trial and due process.

      {¶2} Finding merit to Price’s third assignment of error, we affirm in part,

reverse in part, and remand for the trial court to merge Price’s convictions for corrupting

another with drugs and allow the state to elect which of the convictions it wishes to

pursue at sentencing.

I. Procedural History and Factual Background
       {¶3} On September 19, 2016, the Cuyahoga County Grand Jury indicted Price on

22 counts. The charges stemmed from the victim dying of an alleged overdose on

August 2, 2016, and separate alleged drug activities on August 4, 2016. Those charges

were as follows:

       August 2, 2016: One count of involuntary manslaughter, in violation of
       R.C. 2903.04(A); two counts of corrupting another with drugs, in violation
       of R.C. 2925.02(A)(3) (one for heroin and one for fentanyl); two counts of
       trafficking, in violation of R.C. 2925.03(A)(1) (one for heroin and one for
       fentanyl); two counts of trafficking, in violation of R.C. 2925.03(A)(2) (one
       for heroin and one for fentanyl); and two counts of drug possession, in
       violation of R.C. 2925.11(A) (one for heroin and one for fentanyl).

       August 4, 2016: Three counts of trafficking, in violation of R.C.
       2925.03(A)(1) (two heroin and one for fentanyl); four counts of trafficking,
       in violation of R.C. 2925.03(A)(2) (two for heroin and two for fentanyl);
       four counts of drug possession, in violation of R.C. 2925.11(A) (two for
       heroin and two for fentanyl); one count of tampering with evidence, in
       violation of R.C. 2921.12(A)(1); and one count of possessing criminal
       tools, in violation of R.C. 2923.24(A).

All of the August 2 charges (except drug possession) contained a school yard

specification.   Except for the count for tampering with evidence, all of the counts had

forfeiture specifications.   Price pleaded not guilty, and the case proceeded to a jury trial

in February 2018.

       {¶4} On August 2, 2016, police officers responded to the victim’s apartment for a

report of a deceased male.     After securing the scene, police collected evidence from the

victim’s apartment, including “a white pinkish powder residue and * * * a straw, which is

commonly used for drug use[,]” six pills near the victim’s body, an ATM receipt from

1:00 a.m. that morning showing that $220 was withdrawn from the victim’s account, and
the victim’s cell phone.    Police also found what appeared to be heroin residue on the

victim’s nightstand, but did not collect that residue.

       {¶5} When searching through the victim’s phone, police found text messages to

and from a contact identified as “T” occurring around 3:00 a.m. on August 2 that were

indicative of drug activity.   Detective Amelio Leanza testified that he understood the

conversation as meaning that “[the victim’s] buying the drugs, but he’s going to supply

this person T with a portion of it for arranging it.”    Detective Leanza said it also showed

that “the person that’s bringing the drugs is about to pull up * * * [and does not] want to

meet anybody else” and explained that “it’s common for a dealer to maybe only trust a

certain clientele of theirs and not so much a person they’ve never met.”        The call log

from the victim’s cell phone also showed calls to “T” around 2:00 a.m. that morning.

       {¶6} Police ran “T’s” number through the department’s computer system and

found that it was associated with Tierra Fort, who lived in the same apartment complex as

the victim.   Police also found “that there were some prior disturbance calls to [the

apartment complex] between [the victim] and Miss Fort over some civil matter[s],” giving

police a possible connection between Fort and the victim.

       {¶7} Police subsequently obtained an arrest warrant for Fort and a search warrant

for her address.   After arresting Fort, police searched her apartment, finding a digital

scale, “some crushed up powder that was similar in color [to the] pink-colored substance

that [police] found in [the victim’s apartment],” a plastic straw with residue, a “rock of

that pink- and tan-colored substance[,]” and Fort’s cell phone.
       {¶8} During a police interview, Fort allowed police to search her cell phone and

identified herself as the contact labeled “T” in the victim’s phone.      Police found the

same text conversation that they found on the victim’s cell phone, and Fort said that she

had that conversation with the victim because he “wanted heroin and he was only able to

get it through her” and that she “middle[d]” the sale to the victim.

       {¶9} Detective Leanza explained that “middling a deal” meant a person who

“typically * * * [has] a contact * * * that they can get heroin from versus the other person

who cannot or maybe their supplier had been locked up or arrested, so they’ll go through

the other person because they know that this other person has a contact.”    He also stated

that “it’s very common for that other person to not want to give up their contacts because

they get to get a piece of heroin for arranging a sale.”

       {¶10} Detective Leanza stated that he found another conversation on Fort’s phone

with a different phone number that he believed was indicative of drug activity and that

Fort identified the person associated with that phone number as “Bam.” Fort told police

that she texted Bam on August 2 around 1:00 a.m. to obtain drugs for the victim. Fort’s

phone’s call log also showed calls between Fort and Bam around that time.

       {¶11} Because Fort did not know Bam’s real name and a search of the police

department’s computer system did not produce any results for the phone number

associated with Bam, police ran the number through Facebook and were able to identify

Bam as Price. Police showed Fort a photo of Price from Facebook, and Fort confirmed

that Price was Bam.
       {¶12} During trial, Fort testified as to the events leading up to the victim’s death.

She said that after the victim contacted her requesting drugs and after she texted Price,

Price arrived at her apartment around 3:00 a.m. and that he gave her a gram of heroin in a

baggie.   In exchange, Fort gave Price $100 that the victim had given to her.      She then

called the victim to come to her apartment, where he saw Price and they said “hello” to

each other in her living room.     She gave the victim the drugs, and before he left, the

victim gave her about “$20 worth” of the heroin and she put that “rock” in a dish next to

her bedroom.

       {¶13} Detective Leanza stated that at that point, he decided to arrange controlled

phone calls between Fort and Price to set up a drug purchase.      Fort made those calls in

his presence, which he recorded.    Detective Leanza explained that Fort requested drugs

from Price and that Fort and Price agreed to meet at the “RTA station on West 117th and

Madison[.]”

       {¶14} As part of their strategy, police arranged a “buy/point out,” in which a sale is

arranged, but no transaction occurs, and the “cooperating party points out [the drug

dealer]” and police arrest that person.   Fort was stationed with officers in an unmarked

vehicle in the parking lot of the RTA station and other officers were stationed in

additional unmarked vehicles in the parking lot.

       {¶15} Detective Leanza testified that a blue Chrysler with a male driver pulled into

the parking lot with Price in the passenger seat and that Fort identified Price.   Once the

car “pulled into a parking space[,]” officers surrounded the vehicle and ordered both
occupants out.   Detective Leanza described the arrests as follows during trial:

      We’re in undercover vehicles, obviously. We’re not in marked vehicles.
      I pulled behind the vehicle. So we’re coming up from the rear of this blue
      Chrysler. At that point, we’re ordering people inside, Hands up, you
      know, Police, Hands Up. We were wearing our vests that say in large
      white letters Police on the front, Police on the back. I went to the
      passenger side because that’s where I knew Mr. Price was. He did have
      his hands up. I opened the door. [H]is phone was on his lap. I removed
      him from the car and he was handcuffed.

      I believe I may have asked him his name or something like that, but he was
      not saying a word. His mouth didn’t open. He wasn’t saying anything.
      So I went around to the driver’s side of the car[, where detectives] had the
      driver out. I immediately Mirandized the driver because I knew I was
      going to want to talk to him right then and there. * * * He’s identified as
      Michael Jacob.

      ***

      I started walking [Price] towards the marked unit to be transported to jail.
      As I got closer to the car, he started pulling kind of downwards. And I
      opened the back door already and I told him to put his leg in. And he tried
      to put his leg up and he just started becoming limp. He turned and he
      looked at me with this glazed look on his face. And * * * I immediately
      knew he ingested some heroin.

      I called for the officer that showed up in the marked unit to give me his
      Narcan. I lowered him to the ground and kept him sitting upright against
      my chest, and from behind I administered some of the nasal Narcan to
      counteract the effects of the opiate that he had just ingested.

      ***

      At that point his mouth had kind of drooped open and there was a baggie
      sticking out of his mouth. So [paramedics] removed the baggie. I put on
      a pair of gloves. And then they handed me the baggie and we placed it
      into an evidence bag. Inside the bag was a mixture — was a pinkish-tan
      mixture with saliva.
       {¶16} Detective Leanza testified that because the bag only contained a trace

amount of a “pinkish-tan substance” once he pulled it from Price’s mouth, he believed

Price swallowed the bag’s contents.       He testified that the “pinkish-tan substance” was

similar to the substances he observed in Fort’s and the victim’s apartments and that the

“baggie” was sent to the lab for testing.     Detective Leanza stated that they did not find

any other drugs on Price.      He also stated that police found drugs and drug paraphernalia

in Jacob’s car.

       {¶17} Detective Leanza collected Price’s cell phone, obtained a search warrant for

the phone, and had it analyzed by the Bureau of Criminal Identification and Investigation.

 He said the analysis showed the same conversations and calls that were on Fort’s phone

from the morning of August 2. The phone also showed the recorded calls and text

messages that Fort made in Detective Leanza’s presence at the jail as part of the

controlled buy. Price’s phone also contained text messages to and from the phone of the

driver and that those text messages indicated drug activity.     Detective Leanza testified

that there were other conversations with other unidentified numbers that were also

indicative of drug activity.

       {¶18} On cross-examination, Detective Leanza testified that he did not submit the

victim’s or Fort’s phones for analysis and did not check to see if either of them obtained

drugs from other persons that night. He also obtained an Ohio Risk Assessment Report

(“ORAS”), which contained the victim’s prescription information. According to the

state, the ORAS report shows the historical record of people filling prescriptions.
       {¶19} Dr. Felo, the chief deputy medical examiner and forensic      pathologist for

the Cuyahoga County Medical Examiner’s Office, testified that he performed the victim’s

autopsy. Dr. Felo testified that the victim had “a history of substance abuse” as well as

“some heart disease and some lung disease[,]” an enlarged heart, and congested lungs, all

of which were caused by dilated cardiomyopathy.       The victim also had “abnormal” and

“heavy” lungs as well as pulmonary edema, “which is fluid build up” from “smoking

tobacco products, marijuana products, [or] illicit drugs[.]”     Dr. Felo said that before

receiving the toxicology results, he believed the victim could have died simply based on

the condition of his heart and lungs.

       {¶20} As to the toxicology results, Dr. Felo stated that he collected “various body

fluids and lung tissue” and that “several drugs * * * were identified in [the victim’s]

system[,]” including fentanyl and two antidepressants, mirtazapine and escitalopram, as

well as continine, a “cigarette tobacco product” and diphenhydramine.            Dr. Felo

explained that the victim did not have a prescription for fentanyl.

       {¶21} Dr. Felo testified that the two antidepressants and fentanyl were found in the

victim’s blood samples. He said that the levels of the antidepressants found in those

samples “were to be expected for someone who is taking their medications at normal

doses.” As to the level of fentanyl, he stated that it was “at a significantly high level;

one that is commonly seen with death.”

       {¶22} Explaining the effects of fentanyl, Dr. Felo said that it can cause

“respiratory depression,” which “causes the body to slow down breathing, and too much
of that can cause the lungs to essentially stop and then the person dies because the lungs

aren’t moving even though the heart is beating.”      He testified that while he was not sure

of the victim’s level of tolerance for fentanyl, the victim “died within 20 minutes of the

fatal dose.”

       {¶23} Dr. Felo also explained that any drugs found in a person’s urine “have been

cleaned out by the body” and show a person’s “historic use” of drugs, but he said that a

person is no longer under the effects of drugs found only in the urine. Dr. Felo testified

that the victim’s urine sample “had the same drugs that were found in the blood” except

for nicotine instead of the continine.       He explained that codeine and morphine, which

“are typically found in heroin as metabolites,” were also found in the victim’s urine.   Dr.

Felo concluded that the urine sample showed that the victim had “recently taken

marijuana and heroin, but [because] they’re not in his blood system[,] * * * [he was] not

under the influence of those drugs when he died.”        He explained that traces of heroin

were not found in his blood suggesting “that [the heroin had] already gone through his

blood and [was] not at detectable levels, and so we’re talking many minutes, perhaps

hours, that he last had a dose of heroin.”

       {¶24} Dr. Felo concluded that the victim died “as a result of acute intoxication by

the combined effects of escitalopram, fentanyl, and mirtazapine.”         He stated that he

included the two antidepressants “because both * * * also can cause respiratory

depression * * * [and] might slow down the heart rate” and that while “in and of itself the

fentanyl is what is the primary cause, [he could not] rule out how much the other two
prescription drugs had a role, a very small role, but they did have a role.”       Dr. Felo

categorized the victim’s death as accidental due to the fentanyl.   Without the fentanyl, he

would have concluded that the victim died of “dilated cardiomyopathy with

cardiomegaly” based on his “underlying enlarged and dilated heart.”

       {¶25} Dr. Felo then discussed a report authored by Price’s toxicology and

pharmacology expert, Dr. Robert Belloto, Jr., which opined that the victim’s death was

not drug-related and that the victim’s lungs were not abnormally heavy and questioned

“the validity of what the drug levels [were] largely because of the process called

post-mortem distribution.” Dr. Felo reviewed Dr. Belloto’s report, but said that it did

not change his opinion about the victim’s death.

       {¶26} Dr. Felo also stated that as part of his examination of the victim, he learned

that the victim was a 20-year drug abuser, who had previously attempted suicide, had

been in a coma, and had been in drug rehabilitation.         He agreed that based on the

toxicology report, the victim could have taken a combination of heroin and fentanyl and

survived for a period of time.

       {¶27} Meghan Peters, a forensic scientist and drug chemist for the Cuyahoga

County Medical Examiner’s Office, testified that the pinkish powder and the pen tube

collected from the victim’s apartment tested positive for heroin and fentanyl.    She stated

that the “rock” found in Fort’s apartment also tested positive for heroin and fentanyl.

       {¶28} After the state rested, Price moved for acquittal of all charges under Crim.R.

29, and the trial court denied his motion.
       {¶29} Price then called Dr. Belloto, a pharmacist for Madison Health, who was

recognized as an expert in toxicology and pharmacology for the trial.     Dr. Belloto stated

that he “reviewed the chemistry in this case” and wrote a report documenting his findings

as to the victim’s death.   He opined in his report that it was “hard to specifically assert

that a fentanyl overdose was the cause of death without further evidence that the fentanyl

was ingested (or snorted) shortly before his collapse and not at a prior time.”   He further

opined that the victim’s “lungs [were] not overly heavy and [were] in the expected

weights at autopsy.” He concluded the following in his report:

       It appears [the victim] ingested a heroin and fentanyl mixture at least 3
       hours and twenty minutes or most likely longer before his death. Though
       it could be shorter, the lack of heroin in his blood or urine indicates several
       hours had passed since the administration of the drugs. It is difficult to say
       that he died from the ingested drugs because the fentanyl and citalopram are
       subject to postmortem redistribution and were very likely not at toxic levels
       before death[.]

       {¶30} Dr. Belloto testified that the medical examiner’s office should have

measured the concentration of drugs in the victim’s system rather than just identify what

drugs were present.   He said that because the concentrations were not tested, the autopsy

failed to establish whether the drugs were toxic.   He also stated that the dosage levels in

the autopsy could be “misleading” based on post-mortem redistribution, which his report

explained “is where the drug level upon death is many times the level that would have

been obtained had the individual been alive.”

       {¶31} Dr. Belloto agreed with Dr. Felo that the victim could have died as a result

of cardiomegaly based on the victim’s pulmonary edema and dilated heart.          Dr. Belloto
testified that the victim’s body had metabolized the heroin and that because it “had all

been excreted, [it would have been] really hard to die of heroin if you’ve metabolized all

of it.”    He explained that the victim would have had “to be alive for that period of time

[to metabolize the heroin].” Dr. Belloto also said that it was unlikely that the fentanyl

caused the victim’s death because “[a]ll the drugs that were tested were a mixture of

those, so if that would somehow have [caused] his death, [he] would expect to see

different things at autopsy[.]”

          {¶32} On cross-examination, Dr. Belloto agreed that he did not examine the

victim’s body and did not see slides of the victim’s lungs. He also agreed that he had

never performed an autopsy.

          {¶33} Price then rested his case and renewed his Crim.R. 29 motion, which the

trial court, again, denied.

          {¶34} The jury found Price not guilty of involuntary manslaughter, but found him

guilty of all of the remaining charges and attached specifications.

          {¶35} The trial court found that the following convictions merged:

          One count of trafficking heroin in violation of R.C. 2925.03(A)(1), one
          count of trafficking heroin in violation of R.C. 2925.03(A)(2), and one
          count of drug possession (heroin) in violation of R.C. 2925.11 merged into
          conviction for corrupting another with drugs (heroin) in violation of R.C.
          2925.02(A)(3);
          One count of trafficking fentanyl in violation of R.C. 2925.03(A)(1), one
          count of trafficking fentanyl in violation of R.C. 2925.03(A)(2), and one
          count of drug possession (fentanyl) in violation of R.C. 2925.11 merged
          into conviction for corrupting another with drugs (fentanyl) in violation of
          R.C. 2925.02(A)(3);

          One count of trafficking in violation of R.C. 2925.03(A)(2) and one count
       of drug possession in violation of R.C. 2925.11(A) merged into one count
       for trafficking in violation of R.C. 2925.03(A)(1);

       One count of drug possession in violation of R.C. 2925.11(A) merged into
       trafficking in violation of R.C. 2925.03(A)(2);

       One count for trafficking in violation of R.C. 2925.03(A)(2) and one count
       for drug possession in violation of R.C. 2925.11(A) merged into one count
       of trafficking in violation of R.C. 2925.03(A)(1);

       One count for trafficking in violation of R.C. 2925.03(A)(2) and one count
       for drug possession in violation of R.C. 2925.11(A) merged into one count
       of trafficking in violation of R.C. 2925.03(A)(1).

The trial court then sentenced Price as follows:

       Corrupting another with drugs (heroin): 8 years

       Corrupting another with drugs (fentanyl): 8 years

       Trafficking (heroin): 12 months

       Trafficking (fentanyl): 12 months

       Tampering with evidence: 12 months

       Trafficking (heroin): 6 months

       Trafficking (fentanyl): 12 months

       Possessing criminal tools: 6 months

The court ordered that Price serve his 8-year sentences consecutive to one another and

that the sentences for the remaining charges be served concurrently, giving Price an

aggregate prison term of 16 years.    The trial court also advised Price that he would be

subject to 5 years mandatory postrelease control upon his release from prison and

imposed a $3,000 fine but waived court costs.
        {¶36} It is from this judgment that Price now appeals.

II. Law and Analysis

        A. Burrage Instruction

        {¶37} Because part of Price’s first assignment of error directly concerns an issue

raised in his fifth assignment of error, we will address his fifth assignment of error first.

In his fifth assignment of error, Price argues that the trial court abused its discretion and

deprived him of due process by not providing the proximate cause instruction set forth in

Burrage v. United States, 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), which he

requested.

        {¶38} When reviewing a trial court’s jury instructions, the proper standard of

review for an appellate court is whether the trial court’s refusal to give a requested jury

instruction constituted an abuse of discretion under the facts and circumstances of the

case.   Berardi’s Fresh Roast, Inc. v. PMD Ents., Inc., 8th Dist. Cuyahoga No. 93920,

2010-Ohio-5124, ¶ 12.

        {¶39} In Burrage, the United States Supreme Court examined 21 U.S.C.

841(b)(1)(C), a federal sentencing statute that requires a mandatory prison sentence for

defendants who unlawfully distribute certain drugs that cause death or serious bodily

injury. The court held that

        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.   In other words, the court concluded that “use of the drug must have been
a but-for cause of the victim’s death or injury” for a court to impose the mandatory prison

term. United States v. Volkman, 797 F.3d 377, 392 (6th Cir.2015), citing Burrage.

      {¶40} Price cites to State v. Kosto, 5th Dist. Licking No. 17CA54,

2018-Ohio-1925, discretionary appeal not allowed, State v. Kosto, 153 Ohio St.3d 1469,

2018-Ohio-3450, 106 N.E.3d 66, in support of his argument. In Kosto, the Fifth District

concluded that there was insufficient evidence to show that Kosto’s actions of providing

the victim with heroin were the proximate cause of the victim’s death. Id. at ¶ 24.     The

Fifth District held that “the ‘but-for causality’ rationale of Burrage must also be applied

to the element of ‘causing serious physical harm’ to another under R.C. 2925.02(A)(3)[.]”

  Id. at ¶ 29.   The court stated that “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. The court also concluded that Kosto’s conviction for corrupting another with

drugs was not supported by sufficient evidence because there was a lack of expert

testimony to establish that the victim’s “heroin use per se” caused “serious physical

harm” to the victim. Id. at ¶ 28.

       {¶41} Kosto, however, is not the only Ohio appellate court to examine Burrage

and its application to Ohio law. In State v. Carpenter, 3d Dist. Seneca No. 13-18-16,

2019-Ohio-58, the defendant relied on Kosto and Burrage, arguing that there was

insufficient evidence supporting his convictions for corrupting another with drugs and

involuntary manslaughter because the state did not show that the heroin distributed by the

defendant independently caused serious physical harm to the victim.      Id. at ¶ 47.   The
Third District disagreed with the defendant’s argument and distinguished the Fifth

District’s reasoning in Kosto, stating:

       [W]e part ways with the Fifth District’s application of the Supreme Court’s
       holding in Burrage and reject Carpenter’s argument that he cannot be
       convicted of involuntary manslaughter or corrupting another with drugs.
       First, the [United States] Supreme Court’s interpretation of a federal statute
       is not binding on this court’s interpretation of Ohio statutes; rather, those
       interpretations are merely persuasive authority in interpreting similar Ohio
       statutes. See State v. Phillips, 27 Ohio St.2d 294, 298, 272 N.E.2d 347
       (1971); State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, ¶ 31, 84
       N.E.3d 981. We are unpersuaded that the Supreme Court’s holding in
       Burrage is applicable to this case. Not only is the federal statute at issue
       in Burrage different from Ohio’s corrupting-another-with-
       drugs and involuntary-manslaughter statutes, but Ohio law defines
       causation differently than causation is defined in Burrage. * * *

       Foremost, the statute at issue in Burrage involved a
       sentencing-enhancement statute. * * * See Kosto at ¶ 24 (acknowledging
       “that in Burrage, the United States Supreme Court was interpreting a
       penalty enhancement provision in a federal statute, not an Ohio criminal
       statute”). Unlike the sentencing-enhancement statute at issue in Burrage,
       our analysis is focused on the elements of the crimes of involuntary
       manslaughter and corrupting another with drugs. The elements of those
       crimes require a certain result — that is, causing death or serious physical
       harm. * * *

       Next, it is well established that Ohio law generally defines “cause” in
       criminal cases identically to the definition of “proximate cause” in civil
       cases. * * * See State v. Jacobs, 8th Dist. Cuyahoga No. 51693, 1987 Ohio
       App. LEXIS 6828, 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.”)[.] * * *

       We conclude that the Fifth District’s decision in Kosto fails to address the
       standard of causation applied to crimes in Ohio. That is, the Fifth District
       failed to consider whether the heroin that Kosto provided the victim was a
       substantial or contributing factor to the victim’s death or serious physical
       harm and whether the resulting harm was foreseeable.
Id. at ¶ 49-54.   The Third District concluded “that an overdose death is a foreseeable

consequence of selling substances containing fentanyl and a rational trier of fact could

have found that Yarris’s death was the proximate result of Carpenter selling Yarris the

compound containing fentanyl[.]” Thus, the court held that the defendant’s convictions

were supported by sufficient evidence. Id. at ¶ 63-64.

       {¶42} We agree with the Third District’s analysis of Burrage and find that the trial

court did not err in failing to give Price’s requested instruction for causation.         In its

instructions to the jury, the trial court stated that “[c]ause is an act or failure to act which

in a natural and continuous sequence directly produces the death of a person, and without

which, it would not have occurred.”        Moreover, the trial court instructed the jury that

“[c]onduct is the cause of a result if it is an event, but for which the result in question

would not have occurred.”      (Emphasis added.)

       {¶43} We find no abuse of discretion with those instructions. In fact, it appears

that the trial court’s instructions set forth a “but-for” test that Price sought. Further, the

record reveals that the trial court’s instructions, taken in their entirety, fairly and correctly

state the law applicable to the evidence presented at trial.        Accordingly, we overrule

Price’s fifth assignment of error.

       {¶44} We sua sponte find that our holding relative to Price’s fifth assignment of

error concerning the Burrage instruction is in conflict with the Fifth District’s holding in

Kosto, 5th Dist. Licking No. 17CA54, 2018-Ohio-1925. As a result, we, sua sponte,

certify a conflict between the analysis in our decision and Kosto on the application of the
Burrage instruction and causation for the Ohio Supreme Court’s resolution.

       B. Sufficiency of the Evidence

       {¶45} In his first assignment of error, Price argues that the trial court erred in

denying his Crim.R. 29 motion for the charges of corrupting another with drugs and

tampering because there was insufficient evidence for the elements of those crimes.

       {¶46} Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient to

sustain a conviction of such offense or offenses.”     A sufficiency challenge essentially

argues that the evidence presented was inadequate to support the jury verdict as a matter

of law.   State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “‘The

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866

(1998), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

 “[A] conviction based on legally insufficient evidence constitutes a denial of due

process.” Thompkins at 386, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed. 652 (1982).    When reviewing a sufficiency of the evidence claim, we review the

evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d 195,

205, 661 N.E.2d 1068 (1996).

              1. Corrupting Another with Drugs

       {¶47} To establish that Price was guilty of corrupting another with drugs in

violation of R.C. 2925.02(A)(3), the state had to show that Price “administer[ed] or
furnish[ed] to another or induce[d] or cause[d] another to use a controlled substance, and

thereby cause[d] serious physical harm to the other person[.]”

              a. “Furnish”

       {¶48} Price first argues that there was insufficient evidence that he knowingly

“furnished” the victim with heroin and fentanyl.   Specifically, he states that “he supplied

the drugs to Ms. Fort not [the victim] and therefore he was not legally liable for the

actions of Ms. Fort who chose to supply them to [the victim].”

       {¶49} Foremost, the Revised Code does not define “furnish.”            Black’s Law

Dictionary, however, has defined “furnish” to mean “[t]o supply, provide, or equip, for

accomplishment of a particular purpose.” Black’s Law Dictionary 466 (6th Ed.1991).

       {¶50} The Eleventh District rejected a similar argument in State v. Patterson, 11th

Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423. In that case, witnesses testified that

the defendant showed up and sold drugs to a third party, who then gave the drugs to the

victim.   The third party testified that he called the defendant and told the defendant when

he arrived that the victim was paying for the heroin.   After being convicted of corrupting

another with drugs, the defendant appealed, arguing that “there was insufficient evidence

that he ‘administer[ed] or furnish[ed]’ a controlled substance to [the victim], since the

evidence only demonstrated that the drug transaction occurred between [the defendant]

and [a third party].” Id. at ¶ 85.   The court disagreed, stating that it did “not matter if

the heroin was sold or delivered directly to [the third party], provided that the sale gave

[the victim] access to it. * * * [The victim] gave the money to [the third party] who gave
it to [the defendant].” Id. at ¶ 86. Based on the third party’s testimony that he told the

defendant that the victim was purchasing the heroin, the court found that the defendant

“knew he was giving [the victim] access to heroin by the sale to or through [the third

party].” Id.   As a result, the court found sufficient evidence to show that the defendant

“furnished” the victim with heroin and affirmed his conviction. Id.; see also State v.

Potee, 12th Dist. Clermont No. CA2016-06-045, 2017-Ohio-2926, ¶ 31 (“Joslin’s

testimony regarding each stage of the transaction coupled with text messages and call logs

between Adkins and appellant on the day of the transaction provided evidence for the jury

to conclude appellant was aware his conduct would probably result in the sale of heroin

or fentanyl.”); State v. Jones, 5th Dist. Licking No. 05 CA 59, 2006-Ohio-916, ¶ 46

(affirming the defendant’s conviction for corrupting another with drugs because

“evidence was adduced that appellant purchased the heroin with the understanding that

Loring would share it with both appellant and appellant’s father.”).

       {¶51} We reach the same conclusion in this case.      The state presented sufficient

evidence that showed Price knew he was giving the victim access to heroin and fentanyl

by selling it to Fort. Text messages between Fort and Price show that Fort told Price

that she had “people waiting” to purchase the drugs from her once she received them

from Price and that she was using Price to obtain drugs for people other than herself.

Fort even testified that she told Price that the drugs were for someone else.     She also

testified that the victim and Price were in her apartment at the same time and even

acknowledged each other when the victim purchased the drugs from Fort.                Like
Patterson, this evidence is sufficient to show that Price knowingly gave the victim access

to heroin and fentanyl “by the sale to or through” Fort and, therefore, furnished the victim

with heroin and fentanyl.

              b. Serious Physical Harm

       {¶52} Price next argues that there was insufficient evidence that either the heroin

or fentanyl caused the victim “serious physical harm.”          R.C. 2901.01(A)(5) defines

“serious physical harm” as

       (a) [a]ny mental illness or condition of such gravity as would normally
       require hospitalization or prolonged psychiatric treatment;

       (b) [a]ny physical harm that carries a substantial risk of death;

       (c) [a]ny physical harm that involves some permanent incapacity, whether
       partial or total, or that involves some temporary, substantial incapacity;

       (d) [a]ny physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

       (e) [a]ny physical harm that involves acute pain of such duration as to result
       in substantial suffering or that involves any degree of prolonged or
       intractable pain.

       {¶53} First, we find there was sufficient evidence that the victim suffered serious

physical harm from fentanyl. The state’s expert, Dr. Felo, testified that the victim died

“as a result of acute intoxication by the combined effects of escitalopram, fentanyl, and

mirtazapine[,]” and that the fentanyl was the “primary cause” of death.     Dr. Felo stated

that the victim’s abnormally heavy and dark-colored lungs confirmed his conclusions.

This testimony was sufficient to establish that the fentanyl caused the victim serious

physical harm under R.C. 2901.01(A)(5)(b).
       {¶54} We also find there was sufficient evidence that the heroin caused the victim

serious physical harm.   Under R.C. 2901.01(A)(5)(b), “[a]ny physical harm that carries a

substantial risk of death” constitutes serious physical harm. We have previously held

that heroin is a “serious and deadly drug that causes physical harm every time it is

administered.” State v. Cunningham, 8th Dist. Cuyahoga No. 106109, 2018-Ohio-4022,

¶ 15. It is also beyond question that heroin is a drug that carries a substantial risk of

overdose and death.      Here, the heroin that Price furnished and the victim ingested

caused physical harm to the victim that carried a substantial risk of death.   Therefore, we

find sufficient evidence that heroin caused serious physical harm to the victim.

       {¶55} Price also argues that other evidence suggests that the victim did not die

from the drugs Price furnished, that the state failed to investigate whether the victim died

from “a second source of drugs[,]” and that Dr. Belloto’s testimony negated Dr. Felo’s

testimony that fentanyl caused the victim’s death.     Price’s arguments concerning other

evidence goes to the weight of the evidence, however, and does not undermine our

conclusion that Dr. Felo’s and Peters’s testimony was sufficient to establish that fentanyl

and heroin caused the victim serious physical harm.

              c. Proximate Cause

       {¶56} Finally, Price argues that there was insufficient evidence that “he furnished

the drugs that were the proximate cause of [the victim’s] serious physical harm.”        He

states that because the two antidepressants were “designated in [Dr. Felo’s] diagnosis,

[the victim’s] voluntary consumption of the [fentanyl] interfered in the proximate cause
of his death.”     He also argues that “the [s]tate failed to establish what role the

anti-[depressant] medication[s] played in the cause of death.”    His argument relies on the

United States Supreme Court’s recent decision in Burrage.        However, we already found

that the trial court did not err in failing to give or apply Price’s requested instruction for

causation set forth in Burrage and that the trial court’s but-for instruction was proper as to

proximate cause.

       {¶57} Further, there was sufficient evidence presented of proximate cause.          At

trial, Dr. Felo testified that the victim died “as a result of acute intoxication by the

combined effects of escitalopram, fentanyl, and mirtazapine[,]” and that the fentanyl was

the “primary cause” of death.      While he acknowledged that the two antidepressants

found in the victim “played a very small role” in the respiratory depression that the victim

experienced, Dr. Felo also testified that absent those medications, his determination of

death — acute intoxication by fentanyl — would have remained the same.             Therefore,

contrary to Price’s argument, the state presented testimony that the antidepressants played

a “very small role” in the victim’s death.    Because the fentanyl and heroin were mixed

together and that mixture constitutes a “controlled substance” under R.C. 2925.02(A)(3),

we find that Dr. Felo’s testimony was sufficient to satisfy the causation element of R.C.

2925.03(A)(3) for both fentanyl and heroin.

       {¶58} Additionally, Price argues that “the issue of causation was further muddled

by the possibility that [the victim] used the drugs to commit suicide which was an

argument the [d]efense was prevented from making to the jury.”             However, Price’s
“muddled” argument goes to the weight of the evidence and has no bearing on the

sufficiency of the evidence presented by the state concerning proximate cause.

       {¶59} In summary, we find that the state presented sufficient evidence to support

Price’s convictions for corrupting another with drugs.

               2. Tampering

       {¶60} Price also argues that there was insufficient evidence to support his

conviction for tampering with evidence.

       {¶61} To establish that Price was guilty of tampering with evidence in violation of

R.C. 2921.12, the state had to show that Price (1) knew that an official proceeding or

investigation was in progress or was about to be or likely to be instituted, and (2) altered,

destroyed, concealed, or removed evidence (3) with purpose to impair its value or

availability as evidence in such proceeding or investigation.              State v. Shaw,

2018-Ohio-403, 105 N.E.3d 569, ¶ 16 (8th Dist.).

       {¶62}     Proof of guilt may be made by circumstantial evidence, real evidence,

and direct evidence, or any combination of the three, and all three have equal probative

value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the

syllabus.   Indeed, “‘direct evidence of fact is not required[;] circumstantial evidence * *

* may also be more certain, satisfying and persuasive than direct evidence.’” State v.

Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990), quoting Michalic v. Cleveland

Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).

       {¶63} In this case, the charge for tampering with evidence arose on August 4,
2016, two days after the victim’s death.      That day, police arranged a “point out” between

Fort and Price at a local bus station.     According to Detective Leanza, the police had Fort

text Price to set up the deal, and officers stationed themselves in unmarked vehicles

before Price’s arrival.

       {¶64} Detective Leanza testified that after arresting Price in the parking lot, “his

mouth had kind of drooped open and there was a baggie sticking out of his mouth. So

[paramedics] removed the baggie.         I put on a pair of gloves.   And then they handed me

the baggie and we placed it into an evidence bag.       Inside the bag was a mixture — was a

pinkish-tan mixture with saliva.”        The following exchange also occurred during the

detective’s testimony:

       Q.     And you had indicated that there was a bag in Mr. Price’s mouth?

       A.     Yes.

       ***

       Q.     You thought that possibly he had swallowed a bag of drugs, didn’t
              you?

       A.     Yes.

       Q.     Okay. And in your experience, that might be something that someone
              would do, if they were trying to conceal drugs, they would ingest the
              bag of drugs?

       A.     Depending on the size.

       ***
       Q.     So [do] you think it’s impossible that [Price] was using any of the
              drugs [found in Jacob’s car]? He just fell out for no reason?

       A.     Because of the drugs that were in his mouth.

       Q.     And when people use drugs, have you known them, in your
              experience, to suck on the bags to try to get all of the drugs out of the
              bag?

       A.     * * * I’ve seen that happen.

       Q.     Yeah?     And you didn’t find any additional drugs on Mr. Price?

       A.     No.
       Q.     Just a bag that was tested with some residue?

       A.     Yes.

       ***

       Q.     If he wanted to get rid of any evidence, he could have swallowed that
              bag was in his mouth?

       A.     I can’t tell you if he could have or not.       I don’t know.     I’m not
              him.

Detective Leanza stated that the bag had only a trace amount of drugs.

       {¶65} On redirect, the following exchange between Detective Leanza and

the state occurred as to the controlled buy at the RTA station:

       Q.     Have you experienced people in the course of an arrest attempt to
              conceal evidence inside their mouth?

       A.     I have witnessed it happen, yes.

       Q.     Is that    consistent   with    you   finding    the   bag   in    Mr.      Price’s
              mouth?
       A.        Yes. Although I didn’t witness it, him put it in his mouth[.]

       ***

       Q.        [W]as there also enough time that [Price] could have just put [the
                 baggie] in his mouth once he heard the identification of police?

       A.            Yes. Because unfortunately, as I was coming up from the
             rear, I couldn’t see his face or what was transpiring in front of him,
             and this is a parking lot, so its angled parking and Mr. Jacob had
             pulled into a spot, and then there [were] other cars next to him, so
             unfortunately our view into the car — immediate view into the car
             was not there.
       {¶66} We find that there was sufficient, circumstantial evidence to show that Price

ingested the drugs that were in the baggie when he saw the police.        Police organized a

drug sale between Fort and Price, and Fort requested the same drugs that Price provided

to the victim.    Detective Leanza testified that when they arrested Price, they did not find

any drugs on him and only found a baggie that had a trace amount of a “pinkish-tan

substance” that resembled what they found in the victim’s apartment.       Detective Leanza

stated that Price would have had enough time to place the baggie in his mouth and

swallow the baggie’s contents before police were able to get to the passenger side of the

vehicle and detain him. Further, Price overdosed within minutes of his arrest. The

detective’s testimony and evidence collected from Price provides sufficient circumstantial

evidence that Price swallowed the drugs meant for Fort upon learning of police’s

presence.   Therefore, we find that there was sufficient evidence that Price (1) knew that

an official proceeding or investigation was in progress or was about to be or likely to be

instituted, and (2) altered, destroyed, concealed, or removed evidence (3) with purpose to

impair its value or availability as evidence in such proceeding or investigation.
      {¶67}        Accordingly, we overrule Price’s first assignment of error.

      C. Manifest Weight of the Evidence

      {¶68} In his second assignment of error, Price argues that his convictions for

corrupting another with drugs and tampering were against the manifest weight of the

evidence.      As part of his assignment of error, Price “incorporates all arguments detailed

in the first assignment of error[.]” As to the weight of the evidence, Price argues that

there was other evidence suggesting that the victim died from “a second source of

drugs[,]” that Dr. Belloto’s testimony was more credible than Dr. Felo’s testimony, and

that “the issue of causation was further muddled by the possibility that [the victim] used

the drugs to commit suicide which was an argument the defense was prevented from

making to the jury.”

      {¶69} A challenge to the manifest weight of the evidence tests whether the

prosecution has met its burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 678

N.E.2d 541.     On review from a manifest weight challenge, the appellate court is tasked

with reviewing all of the evidence in the record and in resolving the conflicts therein,

determining whether 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.” Id.

at 387.     “The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” Id.

Moreover, this court recognizes that the “weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of fact[.]” State v. Peterson, 8th
Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, ¶ 73, citing State v. DeHass,

10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

         {¶70} First, many of Price’s arguments concerning manifest weight — particularly

those challenging his tampering conviction and whether he “furnished” drugs and caused

“serious physical harm to” the victim — were raised in his assignment of error contesting

the sufficiency of the evidence.    We rejected those arguments, and we will not repeat our

analysis here.

         {¶71} In addition to the arguments he raised under sufficiency, Price points to Dr.

Belloto’s testimony and argues that Dr. Felo’s testimony was less credible. He also

argues that there was a “possibility that [the victim] sought drugs from another source

which would account for the [$120 of] missing money that [the victim] had withdrawn

from his bank at 1:00 a.m. the night he purchased drugs from Ms. Fort[.]” We disagree

again.

         {¶72} Price contends that “Professor Belloto testified that the likely cause of death

was [the victim’s] heart condition.”       Price further maintains that “Dr. Felo did not

possess the same level [of] expertise in toxicology and pharmacology as Professor

Belloto.”     “Professor Belloto” was certified as an expert in pharmacology and

toxicology.      He held a Ph.D., a doctor of philosophy, in clinical pharmacology.

“Professor Belloto” testified that he does not currently hold any additional certifications,

had never performed an autopsy, and had never determined the cause of someone’s death.

 Dr. Felo, on the other hand, was an M.D., a medical doctor, board certified in anatomic,
clinical, and forensic pathology.    He had worked at the medical examiner’s office for

over 20 years and had performed over 3,500 autopsies. Most importantly, Dr. Felo had

performed the autopsy of the victim in this case. The jury heard the testimony of both

Dr. Felo and “Professor Belloto” and found Dr. Felo to be more credible.        Therefore, we

will not disturb the jury’s credibility determination on appeal in this case.

       {¶73} As to the argument that the victim died from a separate source of drugs,

Price’s trial counsel raised that same issue during trial and during his closing argument.

The jury heard evidence concerning the difference between the amount the victim

withdrew from the ATM and the amount he paid Fort and convicted Price regardless.

       {¶74} Finally, Price argues that his convictions for corrupting another with drugs

were against the manifest weight of the evidence because there was evidence that the

victim was suicidal and that evidence “muddled” the issue of causation.         However, the

jury heard evidence showing that the victim was suicidal, but nonetheless convicted Price.

 As a result, we will not undermine the jury’s determination of that evidence in this case.



       {¶75} After reviewing the evidence in this case, we find that this is not the

“exceptional case in which the evidence weighs heavily against the conviction” and,

therefore, that Price’s convictions are not against the manifest weight of the evidence.

       {¶76} Accordingly, we overrule Price’s second assignment of error.
      D. Merger

      {¶77} In his third assignment of error, Price argues that the trial court erred when it

failed to merge Price’s convictions for corrupting another with fentanyl and heroin,

because “they were committed with the same animus, similar import, occurred on the

same date and during the same encounter with no separation in time or location.”

      {¶78} When determining whether two offenses are allied offenses of similar

import, we apply a de novo standard of review. State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

      {¶79} Pursuant to R.C. 2941.25(A), “[w]here the same conduct by defendant can

be construed to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be convicted

of only one.”   However,

      [w]here the defendant’s conduct constitutes two or more offenses of
      dissimilar import, or where his conduct results in two or more offenses of
      the same or similar kind committed separately or with a separate animus as
      to each, the indictment or information may contain counts for all such
      offenses, and the defendant may be convicted of all of them.

R.C. 2941.25(B).

      {¶80} “At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant’s conduct.”       Id. at ¶ 26. In State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court held that if a

defendant’s conduct supports multiple offenses, the defendant can be convicted of all of

the offenses if any one of the following is true: “(1) the conduct constitutes offenses of
dissimilar import or significance, (2) the conduct shows the offenses were committed

separately, or (3) the conduct shows the offenses were committed with separate animus or

motivation.” Id. at paragraph three of the syllabus, citing R.C. 2941.25(B).

       {¶81} “Two or more offenses of dissimilar import exist within the meaning of R.C.

2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims

or if the harm that results from each offense is separate and identifiable.” Ruff at

paragraph two of the syllabus. “[O]ffenses are not allied offenses of similar import if

they are not alike in their significance and their resulting harm.” Id. at ¶ 21.

       {¶82} Here, there was a single course of conduct underlying Price’s convictions

for corrupting another with drugs — he furnished the victim with a single bag containing

a mixture of heroin and fentanyl. Price did not furnish the victim with the drugs in

separate actions or sales or even heroin in one bag and fentanyl in another; instead, the

drugs were mixed together in one bag and furnished at the exact same time.         Further, the

harm resulting from Price’s conduct, the victim’s death, was the same and

indistinguishable. Finally, the record establishes that Price did not commit the offenses

separately or with separate animuses or motivations.        Therefore, under Ruff, Price’s

convictions for corrupting another with drugs are allied offenses of similar import and

should have merged for purposes of sentencing. Accordingly, we sustain Price’s third

assignment of error.

       E. Consecutive Sentences

       {¶83} In his fourth assignment of error, Price argues that the record did not support
the trial court’s imposition of consecutive sentences. Based on our resolution of Price’s

third assignment of error, however, his argument concerning consecutive sentences is

now moot.

       F. Exculpatory Evidence

       {¶84} In his sixth assignment of error, Price argues that the trial court deprived

him of his right to a fair trial and due process when it denied his request to present the

victim’s medical records at trial, which he argues were exculpatory because they showed

that the victim was suicidal and “offered an alternative explanation that [the victim]

intended to overdose on his anti-psychotic medication and heroin and that it was his

express intent to kill himself.” He maintains that “if the jury would have been allowed

to hear that only a week before, [the victim] had planned to commit suicide in the exact

manner that he did, the jury could have determined that [the victim’s] decision to use the

drugs in this manner was an independent intervening cause of his death.”          Price also

takes issue with the state’s failure to supply him with a copy of the medical records,

arguing that “since the records were not provided by the [s]tate, the [d]efense was unable

to impeach Dr. Felo with his conclusion of accidental death.”

       {¶85} “[P]rosecutorial violations of Crim.R. 16 result in reversible error only when

there is a showing that (1) the prosecution’s failure to disclose was willful, (2) disclosure

of the information prior to trial would have aided the accused’s defense, and (3) the

accused suffered prejudice.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836

N.E.2d 1173, ¶ 131, citing State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689
(1983).   “Crim.R. 16 requires the State to provide copies of items related to discovery

for the defense. This rule applies to items obtained by or belonging to the State. The

rule does not require the State to obtain items requested by the defense that the State does

not already possess.”          State v. Primeau, 8th Dist. Cuyahoga No. 97901,

2012-Ohio-5172, ¶ 51.

       {¶86} We find that analyzing the three factors set forth in Jackson is unnecessary

because there is no evidence in this case that the state ever possessed or withheld the

victim’s medical records from the defense.         In fact, the state explained to Price’s trial

counsel and the court that while Dr. Felo received [the victim’s] ORAS “as part of his

investigation as medical examiner,” it did not have possession of that report and it “[was

not] part of [its] case file for the detective.”   The state also informed the court that it did

not have the victim’s medical records.         Further, Price’s trial counsel stated that the

hospital that had the victim’s records failed to respond to his subpoena and requests and

the trial court’s order. Upon learning of the hospital’s failure to respond, the trial court

stated that it would contact the hospital itself. Therefore, because the record shows that

the medical records were not in the state’s possession, we find no Crim.R. 16 violation.

See Primeau at ¶ 52 (finding no Crim.R. 16 violation because “Primeau has failed to

show that the records were within the State’s possession, custody, or control, and that the

State withheld them from the defense”).

       {¶87} As to Price’s argument that the trial court should have admitted the medical

records, we review the trial court’s decision regarding the exclusion of those records for
an abuse of discretion.         State v. Pruitt, 8th Dist. Cuyahoga No.             98080,

2012-Ohio-5418.     Under Evid.R. 401, evidence is relevant when it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”       Further, under

Evid.R. 403(A), “[a]lthough relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.”

       {¶88} In the lower court proceedings, Price’s counsel argued that the medical

records showed that the victim had gone “to the hospital and said that he was going to get

heroin from his neighbor to kill himself” the week before his overdose.     He argued that

the records showed an “independent, intentional, intervening act [by the victim] that

would break the chain of causation.”     In response, the state argued that admitting the

records and allowing Price to introduce a “suicide theory” would “confuse the jury and

allow them to consider things that are not a defense” to the charges against Price.     The

trial court agreed with the state, finding that the alleged “intervening act * * * [did] not

negate the criminal act and * * * will confuse the jury and [did not present a] defense to

the involuntary manslaughter charge.”

       {¶89} We find that the trial court did not abuse its discretion because while the

records may very well have shown that the victim was suicidal and attempted suicide by

overdose recently, that evidence would not change the basic fact that the victim took the

drugs furnished by Price and died as a result.   Nor do the records undermine Dr. Felo’s
testimony that the victim died as the result of the drugs found in his system. By

furnishing the victim with drugs, Price knew that there was a chance that the victim

would overdose, and the victim’s suicidal attempt the week prior was not a fact of

consequent to the charges against Price. See State v. Johnson, 56 Ohio St.2d 35, 39, 381

N.E.2d 637 (1978) (“It is a fundamental principle that a person is presumed to intend the

natural, reasonable and probable consequences of his voluntary acts.”).

       {¶90} We disagree with Price’s argument that he could have challenged Dr. Felo’s

conclusion that the victim’s death was accidental. Challenging Dr. Felo’s conclusion

would not undermine the evidence showing that Price furnished drugs to the victim, who

overdosed and died as a result.   Further, the medical records would not have any effect

on determining Price’s criminal responsibility because the records do not change his

voluntary acts.

       {¶91} Accordingly, we overrule Price’s sixth assignment of error.

       {¶92} Judgment affirmed in part and reversed in part.      Case is remanded for the

trial court to merge Price’s convictions for corrupting another with drugs and allow the

state to elect which of the convictions it wishes to pursue at sentencing. We also sua

sponte certify a conflict between the analysis in our decision concerning Price’s fifth

assignment of error and Kosto on the application of the Burrage instruction and causation

for the Ohio Supreme Court’s resolution.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
