Last month, the 5th District Court of Appeals overturned the 2017 conviction of a man accused of supplying heroin to a man who overdosed and died.
CANTON Roger Latham stood in a courtroom last year to face the man who sold his son a fatal dose of fentanyl.
As difficult and disturbing as it was for Latham, it was also rare. Out of hundreds of overdoses, Stark County authorities have brought involuntary manslaughter charges against drug suppliers only a dozen times. Most families who have lost loved ones to overdoses have only suspicions and rumors about who supplied the drugs.
Latham said he was glad the dealer who sold his 37-year-old son, Sean E. Latham, a deadly synthetic opioid was off the street and serving six years in prison. But he wasn’t so naïve to think that had stopped the flow of drugs.
“Hopefully, he is rehabilitated,” Roger Latham said. “That’s the key right there."
A recent court decision could make it harder for police to bring manslaughter charges against people who supply drugs to overdose victims.
Last month, the 5th District Court of Appeals overturned the 2017 conviction of a man accused of supplying heroin to a man who overdosed and died.
While the case happened in Licking County, rulings by the Canton-based appeals court apply to trial courts in 15 counties, including Stark.
The case
The case started with the overdose death of a Newark man in 2015. A toxicology report showed the victim had heroin, cocaine and “a little marijuana” in his system when he died.
A Licking County grand jury charged Thomas Kosto with involuntary manslaughter, corrupting another with drugs, tampering with evidence and heroin possession based on text messages between him and the victim and the testimony of the woman who sold Kosto heroin.
A jury convicted Kosto last year on all counts, and a Licking County judge sentenced him to five years in prison.
Kosto continues to deny supplying heroin to the victim, according to his attorney, Robert Calesaric.
5th District ruling
Earlier this month, a three-judge panel of the 5th District Court of Appeals said there wasn’t enough evidence to convict Kosto of involuntary manslaughter.
Kosto was charged only with supplying heroin, the judges noted, but the victim died from a combination of cocaine and heroin, and the prosecution’s medical expert couldn’t say the victim died only from using heroin, the appeals court reasoned.
“In other words, there is arguably a reasonable probability that but for the use of cocaine, the death would not have occurred,” Judge John W. Wise wrote for the panel.
Wise and Earle E. Wise Jr. also overturned Kosto’s conviction for corrupting another with drugs, but Judge William B. Hoffman dissented, saying there was enough evidence to uphold a conviction.
The appeals court let stand Kosto’s convictions for tampering with evidence and heroin possession and returned the case to Licking County for resentencing.
Prosecutors appealing
Licking County prosecutors didn’t return calls seeking comment. Last month, they asked the appeals court to reconsider its decision and certify that its opinion conflicted with the rulings of other appeals courts and required review by the Ohio Supreme Court.
In court filings, prosecutors argued other appeals courts have said it’s enough to prove a defendant set in motion the events that made the death of another person a “reasonably inevitable consequence” and that an overdose is a “reasonably foreseeable consequence” of giving drugs to someone.
The prosecutors also argued the 5th District’s more restrictive standard could be applied to other crimes.
What’s the impact?
Calesaric said the case could be difficult for prosecutors to deal with, but legislators could easily change the law to make it easier for authorities to pursue these cases.
Local attorneys also have been parsing the decision.
Since 2015, the first time charges were brought against a drug dealer following a fatal overdose, the Stark County Coroner’s Office has handled 300 fatal overdoses. But local grand juries have indicted just a dozen defendants with involuntary manslaughter for allegedly supplying drugs or contributing in other ways to fatal overdoses.
Seven of those defendants pleaded guilty or no contest to involuntary manslaughter; another defendant pleaded guilty to a lesser charge. Cases are pending against three other defendants, including former Jackson Township doctor Frank Lazzerini.
Only one overdose-death defendant has gone to trial. He was convicted last month.
Prison sentences for defendants convicted of involuntary manslaughter have ranged from four years to 15 years.
Assistant Stark County Prosecutor Fred Scott said attorneys in that office continued to monitor the Kosto decision but didn’t believe it would impact any of the involuntary manslaughter cases brought so far in Stark County, or those that are pending.
Scott said the opinion underscored the difficulty investigators have when trying to connect an overdose death to a particular batch of drugs supplied by a specific defendant.
But Stark County Public Defender Tammi Johnson said the decision appeared to say that a drug has to be “the cause” of death, not just “a cause.”
That could be significant given that some 85 percent of the 281 fatal overdoses from 2015 to 2017 were in people who had taken multiple substances, including street drugs, prescription medications or alcohol, according to Coroner’s Office data.
“I think the defense has another argument to make, and I think the prosecutor is going to have to make sure they can prove their case in a different kind of way, in making certain that this was the cause of death,” Johnson said.
Reach Shane at 330-580-8338 or shane.hoover@cantonrep.com
On Twitter: @shooverREP