State v. Adkins , 2016 Ohio 7250 ( 2016 )

[Cite as State v. Adkins, 2016-Ohio-7250.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 14CA3674
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
MICHAEL ADKINS, :
:
Defendant-Appellant. : Released: 09/30/16
_____________________________________________________________
APPEARANCES:
Bryan Scott Hicks, Lebanon, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Shane A. Tieman,
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Michael Adkins appeals his conviction in the Scioto County
Court of Common Pleas after a jury of his peers found him guilty of one
count of endangering children, R.C. 2919.22(B)(1)(E)(1)(2)(d), a felony of
the second degree. On appeal, Appellant challenges the sufficiency and
manifest weight of the evidence upon which he was convicted. However,
after reviewing the record, we find no merit to Appellant’s arguments.
Accordingly, we overrule Appellant’s sole assignment of error and affirm
the judgment of the trial court.
Scioto App. No. 14CA3674 2
FACTS
{¶2} On August 3, 2013, a 24-day old infant we will reference as
“M.A.” was taken to Southern Ohio Medical Center (“SOMC”) emergency
room by her parents, Christi Adkins (“Adkins”) and Michael Adkins
(“Appellant”). The Adkins family lived in West Portsmouth with M.A. and
three other young daughters.1 At SOMC, Mr. and Mrs. Adkins gave a
history of M.A.’s leg being injured the day before when she kicked her
father’s face while they were playing. The baby was examined and x-rayed.
The emergency room physician on duty determined that M.A. should be
transferred to Nationwide Children’s Hospital (“Children’s Hospital”) for
further evaluation. A social worker was called in to assist the family and
obtain information. M.A. was transferred the same evening.
{¶3} At Children’s Hospital, Dr. Jonathan Thackeray, the medical
director for the Center for Family Safety and Healing, performed an
examination of M.A. and ordered further diagnostic testing. The infant was
diagnosed with multiple leg fractures and abdominal wall bruising,
suspected to be the result of non-accidental trauma, i.e. child abuse. At
Appellant’s trial in 2014, M.A.’s mother testified M.A. now seems fine and
has no trouble walking.
1
At the time of trial, Appellant’s 13-year-old daughter from a previous relationship, A.K., resided with the
Adkins family in West Portsmouth, but she did not reside with them in August 2013.
Scioto App. No. 14CA3674 3
{¶4} On August 5, 2013, Detectives Daniel Malone and Jodi Conkel
of the Scioto County Sheriff’s Department questioned Mr. and Mrs. Adkins
at Children’s Hospital. On August 6, 2013, Mr. and Mrs. Adkins were asked
to come to the sheriff’s department for further questioning and at that time
gave videotaped interviews. On September 26, 2013, Appellant was
indicted on two counts, felonious assault and child endangering, both second
degree felonies.
{¶5} Appellant eventually proceeded to a jury trial which occurred in
November 2014. The State’s theory of the case was that Appellant was the
only person who had the opportunity to have abused M.A. The State
presented detailed medical evidence which included documentation of
symptoms first occurring on the evening of August 2, 2013. The evidence
demonstrated that Appellant was alone with M.A. for 2-3 hours prior to the
onset of symptoms. The State pointed out the couple’s initial statements that
other persons and the other children were not left alone with M.A.
{¶6} Appellant and his wife denied Appellant abused M.A. Appellant
repeated his initial statement that M.A. had kicked him while they were
playing and he believed she had injured her right leg in that manner. He also
introduced evidence that M.A. had hurt herself or that someone else with
access to M.A. had injured her in the days before August 2, 2013.
Scioto App. No. 14CA3674 4
{¶7} The jury ultimately returned verdicts which acquitted
Appellant of felonious assault and convicted him of child endangering. This
timely appeal followed. Where relevant, additional facts will be related
below.
ASSIGNMENT OF ERROR
“I. THE VERDICT WAS AGAINST THE SUFFICIENCY OF
THE EVIDENCE AS WELL AS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
A. STANDARD OF REVIEW
{¶8} A claim of insufficient evidence invokes a due process concern
and raises the question of whether the evidence is legally sufficient to
support the verdict as a matter of law. State v. Wickersham, 4th Dist. Meigs
No. 13CA10, 2015-Ohio-2756, ¶ 22, citing State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of
the evidence, our inquiry focuses primarily upon the adequacy of the
evidence; that is, whether the evidence, if believed, reasonably could support
a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The
standard of review is whether, after viewing the probative evidence and
inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443
Scioto App. No. 14CA3674 5
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61
Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing
court is not to assess “whether the state's evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a
conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶9} Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe 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);
State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing
court will not overturn a conviction on a sufficiency-of-the-evidence claim
unless reasonable minds could not reach the conclusion that the trier of fact
did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State
v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
{¶10} “Although a court of appeals may determine that a judgment of
a trial court is sustained by sufficient evidence, that court may nevertheless
conclude that the judgment is against the weight of the evidence.”
Wickersham, supra, at ¶ 24, quoting Thompkins, 78 Ohio St.3d at 387.
“ ‘Weight of the evidence concerns the inclination of the greater
amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the
jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they
shall find the greater amount of credible evidence sustains the
Scioto App. No. 14CA3674 6
issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in inducing
belief.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 12, quoting Thompkins, 78 Ohio St.3d
at 387, quoting Black's Law Dictionary 1594 (6th Ed.1990).
{¶11} When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence, and consider the credibility
of witnesses. Wickersham, supra, at ¶ 25. The reviewing court must bear in
mind, however, that credibility generally is an issue for the trier of fact to
resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.
Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because
the trier of fact sees and hears the witnesses and is particularly competent to
decide “whether, and to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its determinations of
credibility.’ ” Wickersham, supra, quoting Barberton v. Jenney, 126 Ohio
St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting State v. Konya,
2nd Dist. Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v.
Lawson, 2nd Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley
court explained:
“ ‘[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment
must be made in favor of the judgment and the finding of facts.
Scioto App. No. 14CA3674 7
***
If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.’ ” Eastley at ¶ 21, quoting
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,
Appellate Review, Section 60, at 191-192 (1978).
{¶12} Thus, an appellate court will leave the issues of weight and
credibility of the evidence to the fact finder, as long as a rational basis exists
in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No.
11CA9, 2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No.
07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier
of fact has some factual and rational basis for its determination of credibility
and weight.”).
{¶13} Once the reviewing court finishes its examination, the court
may reverse the judgment of conviction only if it appears that the fact-finder,
when resolving the conflicts in evidence, “ ‘clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered .’ ” Wickersham, supra, at ¶ 26; Thompkins, 78 Ohio
St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). A reviewing court should find a conviction against the
manifest weight of the evidence only in the “ ‘exceptional case in which the
Scioto App. No. 14CA3674 8
evidence weighs heavily against the conviction.’ ” Id., quoting Martin, 20
Ohio App.3d at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d
995 (2000).
LEGAL ANALYSIS
{¶14} Appellant was convicted of R.C. 2919.22(B)(1)(E)(2)(d),
endangering children. The relevant portions of the statute provide as
follows:
“(B) No person shall do any of the following to a child under
eighteen years of age or a mentally or physically handicapped
child under twenty-one years of age:
(1) Abuse the child;
***
(E)(1) Whoever violates this section is guilty of endangering
children.
***
(d) If the violation is a violation of division (B)(1) of this
section and results in serious physical harm to the child
involved, a felony of the second degree.”
{¶15} While the State asserts the jury had sufficient evidence on each
element of the crime charged to prove Appellant’s guilt of child endangering
beyond a reasonable doubt, Appellant contends the evidence at trial was not
legally sufficient to sustain a verdict against him. Appellant points to the
circumstantial nature of the evidence that he recklessly endangered his own
Scioto App. No. 14CA3674 9
infant. We must agree with Appellant that a great deal of circumstantial
evidence was presented in his case. However, we also observe:
“[D]irect evidence of a fact is not required. Circumstantial
evidence * * * may also be more certain, satisfying, and
persuasive than direct evidence.” State v. Grube, 987 N.E.2d
287, 2013-Ohio-692, ¶ 30, quoting State v. Lott, 51 Ohio St.3d
160, 555 N.E.2d 293 (1990), citing Michalic v. Cleveland
Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10, (1960), citing
Rogers v. Missouri Pacific RR Co, 352 U.S. 500508, fn.17, 77
S.Ct. 443, 449, fn.17, (1957). Even murder convictions and
death sentences can rest solely on circumstantial evidence.
Grube, supra, citing State v. Apanovitch, 33 Ohio St.3d 19, 514
N.E.2d 394 (1987); State v. Nicely, 39 Ohio St.3d 147, 151, 529
N.E.2d 1236, 1239 (1988).”
{¶16} At the outset, we summarize the medical evidence which was
presented to the jury for consideration:
1) M.A.’s pediatrician, Dr. Steven Keys, testified that he saw
M.A. three times after her birth and prior to her trip to the
SOMC emergency room on August 3, 2013. His records
demonstrate essentially normal exams, no pain or bruising, and
the description of M.A. as healthy and “well-cared for,” despite
being “fussy” on two of the three visits. Specifically, Dr. Keys
and his nurse practitioner performed hip manipulations to see if
the hips had been dislocated during birth. Dr. Keys testified
there was no indication of pain and injury during the
manipulations. M.A. did not react with any pain or crying.
2) SOMC emergency room physician Dr. Jason Cheatham
testified that M.A. was presented with right leg complaints on
August 3, 2013. He documented redness on top of the foot and
tenderness to the right foot, ankle, and lower leg. He and
another physician examined M.A.2 She cried when the right leg
was touched or repositioned, consistent with injury. Dr.
2
Later testimony and the records indicate the other physician was a Dr. Ross who did not testify at trial.
Scioto App. No. 14CA3674 10
Cheatham further testified the history documented in the
records indicated that M.A. kicked her father with such force
that it loosened his tooth. Dr. Cheatham testified an infant that
age could not exhibit that kind of force. Due to the injury and
the history of injury documented in the records, x-rays were
obtained. Dr. Cheatham specifically testified although he was
not a radiologist, in his opinion the x-rays revealed a “prime
example of child abuse,” given the incongruent history of
injury. Dr. Cheatham coordinated with the social worker to
obtain further information and arrange transport to Children’s
Hospital.
3) SOMC radiologist Dr. Nathan Bennington testified that the
images on the x-rays showed multiple recent “corner” or
“bucket” fractures highly-suggestive of abuse, so “classic” that
he used them in his teaching. He testified the fractures were not
consistent with the history of injury. He further testified the
fractures were “acute,” meaning recent.3 He testified the pain
and swelling caused by the fractures would start immediately
after the fracture occurred. He testified the healing of those
type of fractures occurs in one-to-two weeks. Dr. Bennington
testified the mechanism of injury for those types of fractures is
shaking, twisting, or blunt trauma.
4) Children’s Hospital pediatric radiologist Dr. Sally Smith
testified that the multiple fractures were, without a doubt in her
opinion, caused by abuse by shaking or twisting, and would not
occur by ordinary playing or handling of M.A. She specified 7
separate fractures.
5) SOMC social worker Jennifer Estep testified that upon
informing Adkins that M.A. would be transferred to Children’s
Hospital and that Children’s Services would be contacted, she
immediately responded: “I knew you would think we abused
our daughter”;
3
Dr. Bennington explained an older injury would have a callous formation around it instead of being a
sharp fracture line, as reflected on M.A.’s x-rays.
Scioto App. No. 14CA3674 11
6) Adkins’ step-mother, Aronessa Butler, testified that prior to
leaving M.A. with Appellant on the date of injury, she diapered
M.A. and saw no swelling or bruising but when she returned 2-
3 hours later, she noticed a red mark on M.A.’s abdomen and
Appellant questioned her a couple of times: “Do you think her
leg is broken?”
7) Children’s Hospital physician Dr. Jonathan Thackeray’s
testimony corroborated Dr. Bennington’s diagnosis of “corner”
or “bucket-handle” fractures. Additionally, Dr. Thackeray
testified M.A. had bruising of her abdominal wall and multiple
fractures of both legs. He specifically testified the history
provided of kicking her father would not result in a fracture, let
alone multiple fractures. He testified that multiple fractures
were caused by shaking or forceful pulling of the bone, pulling
or twisting, i.e. excessive force. He testified the symptoms of
pain would appear within minutes, hours, or 1-2 days, but not
three weeks. Dr. Thackeray also ruled out childbirth as the
mechanism of injury.
8) Dr. Thackeray identified Exhibits 20 and 21, photographs of
bruising on the right side of M.A.’s abdominal wall, running
along her belly button. He also identified Exhibits 22, 23 and
24, photographs of the left side of M.A.’s abdomen which
showed bruising similar to the right side. He testified sticky
tape on a diaper would not result in that type of bruising
because bruising is trauma to blood vessels underneath the skin.
He further testified that blood testing was performed to see if
M.A. had something wrong with her blood or bone health, but
this testing was normal. Dr. Thackeray testified the presence of
bruising and multiple fractures caused him to be concerned with
abuse, given there was no reasonable explanation for the
injuries.
{¶17} R.C. 2919.22(B)(1) sets forth the essential elements of the
offense of endangering a child as follows: “No person shall * * * abuse the
child.” A successful R.C. 2919.22(B)(1) conviction requires the State to
Scioto App. No. 14CA3674 12
prove beyond a reasonable doubt: (1) that the child is under eighteen years
of age; (2) an affirmative act of abuse occurred; and (3) that the defendant
recklessly committed the act of abuse. State v. Swain, 2002 WL 146204(Jan. 23, 2002). See State v. Ivey (1994), 98 Ohio App.3d 249, 257, 648
N.E.2d 519, 525; see also McGee, supra; State v. Burdine Justice, 125 Ohio
App.3d 707, 713, 709 N.E.2d 551, 555(1998). To establish an affirmative
act of abuse, the State must show that the defendant committed “an act
which inflicts serious physical harm or creates a substantial risk of serious
harm to the physical health or safety of the child.” Swain, supra; Ivey, 98
Ohio App.3d at 257, 648 N.E.2d at 525; Burdine Justice, 125 Ohio App.3d
at 714, 709 N.E.2d at 555. R.C. 2901.22(C) defines “recklessly” as follows:
“A person acts recklessly when, with heedless indifference to
the consequences, he perversely disregards a known risk that
his conduct is likely to cause a certain result or is likely to be of
a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the
consequences, he perversely disregards a known risk that such
circumstances are likely to exist.”
R.C. 2901.01(A)(5) includes in its definition of “serious physical harm”:
(c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;
***
Scioto App. No. 14CA3674 13
(e) Any 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.
{¶18} In addition to the pertinent medical testimony set forth above,
the State called Aronessa Butler, Adkins’ step-mother, to testify during the
case-in-chief. She testified on August 2, 2013, she and her husband took
Adkins shopping for school supplies. Before they left, Mrs. Butler changed
M.A.’s diaper. She testified she did not notice any swelling of the legs or
bruising on the abdomen. M.A. was “fussy” but did not seem to be in pain.
When the Butlers and Adkins left, Appellant, M.A., and the older daughters
remained at home.4
{¶19} Mrs. Butler testified they were gone 2-3 hours to Walmart and
a nearby Bob Evans. While they were eating, Adkins and Appellant talked
on the phone once. Mrs. Butler could hear them conversing about changing
M.A.’s diaper. Mrs. Butler testified Appellant told Adkins that M.A. “hurt
when you touched her heel,” and she was “fussing.”
{¶20} When they returned to the Adkins’ home, Mrs. Butler examined
M.A. Mrs. Butler did not notice swelling, but did notice a red mark on her
abdomen. Mrs. Butler testified Appellant asked her a couple of times “Do
you think her leg is broken?” Mrs. Butler opined that the leg was not broken
4
The evidence is not clear on this point as Adkins testified only two of the older girls were home and at
some point, S.A. came home.
Scioto App. No. 14CA3674 14
but had a minor injury of some sort. She advised taking M.A. to the doctor
if she was still fussy the next day. The defense did not cross-examine Mrs.
Butler at that time, but planned to bring her back during its case-in-chief.5
{¶21} Detective Malone from the Scioto County Sheriff’s
Department testified that at SOMC on August 3, 2013, Appellant indicated
that M.A. kicked him the day before, but at Children’s Hospital on August 5,
2013, his story changed and at the Sheriff’s Department on August 6, 2013,
Appellant suggested three additional mechanisms of injury.
{¶22} Detective Malone testified when he learned M.A. had multiple
fractures, he and Detective Jodi Conkel went to Children’s Hospital to
further investigate. At Children’s Hospital, the detectives spoke with
Appellant and Mrs. Adkins, took photographs of M.A., and obtained her
medical records.
{¶23} Detective Malone testified on August 6, 2013, Appellant and
Mrs. Adkins were asked to come to the sheriff’s department for formal
interviews. The videotaped interviews of Appellant and his wife were
played for the jury and admitted into evidence as Exhibits 15 and 18. The
interviews reveal Appellant and his wife gave conflicting statements of
events and recollections from those presented at trial.
5
The record indicates M.A. was placed with the Butlers for the next year while the case was pending trial.
Scioto App. No. 14CA3674 15
{¶24} Appellant suggested in the video and at trial that M.A. was
possibly hurt: (1) on her swing, (2) when her mother squeezed around her
crib, or (3) by their dog. Detective Malone’s explicit testimony is that he
was led to believe, from Appellant, that the other children were never left
alone with M.A. and there was no indication the other siblings had hurt M.A.
The relevant exchange from the Appellant’s transcribed videotaped
interview is as follows:
Malone: There’s something definitely wrong because you
didn’t do it, you both said your kids didn’t do it,
she didn’t do it, didn’t see who did it but she’s [the
baby] never away from you guys.
Appellant: Well as far as I know of none of the girls done it
but like you said, we raised them by our sight the
whole time. (sic.) The only time I wasn’t by her
sight was I laid her in her playpen while I went to
go use the bathroom. One of the other girls just sat
and listened to make sure she wasn’t going to start
crying while I went to the bathroom.
Malone: Which one of them was that?
Appellant: My oldest one.
Malone: The nine year old.
Appellant: Yeah. Which I wasn’t in the bathroom maybe but
a minute. I just went in there to take a pee and
right back out. As a matter of fact I didn’t even
shut the door all the way, I left it cracked open.
***
Scioto App. No. 14CA3674 16
Appellant: Well the other kids didn’t do it.
***
Malone: When you came out of the bathroom was she [the
baby] screaming and crying?
Appellant: Huh-um.
Malone: Did you ask your other daughter what happened?
Appellant: No, she [the baby] was laying there in the bed
(inaudible) bright eyes as can be, making a bunch
of weird looks on her face like she always does.
She was waiving her arms wasn’t crying or
nothing. The only time she whimpered is when
she kicked me in the mouth * * *.
{¶25} Detective Malone also testified that he interviewed Adkins and
her interview was identified as Exhibit 18 and played for the jury. Similarly,
on the video Adkins also stated they did not leave the other children alone
with the baby. Initially, Adkins denied Appellant was ever violent or angry
towards her. However, later in the video, she described several instances of
violence. The transcript of her recorded interview also confirms this
evidence. The evidence contained in her video will be set forth more fully
below.
{¶26} Detective Malone concluded his testimony by opining that
there was no evidence the mother, other children, or an unknown person had
hurt M.A. Malone testified there was no evidence that M.A. had injuries or
Scioto App. No. 14CA3674 17
abnormal cries or pains prior to the incident. Based on his investigation,
Malone opined the injuries happened within the 24-hour period before
August 2, 2013.
{¶27} Detective Jodi Conkel’s testimony echoed Detective Malone’s
as to the investigation which took place at Children’s Hospital. Conkel also
learned there were acts of violence in the home which scared Adkins.
Detective Conkel testified, based on her investigation, she never thought
Adkins, the other children, or M.A. herself caused the injuries.
{¶28} The State’s medical witnesses were all qualified as experts.
All State’s exhibits admitted into evidence were identified and authenticated.
When the State rested, defense counsel made a Crim.R. 29 motion which
was denied.
{¶29} Defense’s case-in-chief began by recalling Aronessa Butler
who testified that Appellant was a good dad, that his girls adored him, and
that he took care of the home and attended their school activities. She also
testified that M.A. had been exposed to other adults throughout the week.
However, Mrs. Butler also admitted that Appellant had a temper and had
once a made a threat about “driving a truck through Children’s Services.”
{¶30} Naomi Kinsel, a case worker with Scioto County Children’s
Services, testified both Appellant and his wife completed a parenting class.
Scioto App. No. 14CA3674 18
Ms. Kinsel testified but for Appellant’s felony charges and the no-contact
orders, Appellant had satisfied all agency requirements for M.A. to be
returned home. On cross-examination, Ms. Kinsel admitted documenting a
threat Appellant made about Children’s Services, but testified she had no
real fear about the threat.
{¶31} Adkins testified she and Appellant had been married 9 years.
They have five daughters, two of which are from their previous
relationships. Adkins testified M.A. was a planned pregnancy, and
Appellant was very excited. She only had 2 weeks of maternity leave, so
Appellant stayed at home and took care of all the children. He contributed
to the household income by “junking.” She had never questioned his ability
to parent.
{¶32} Adkins testified she did not know how M.A. actually received
her injuries on August 2, 2013. She had no cause to believe Appellant
struck M.A. or pinched her skin. On August 2, 2013, Adkins had gone with
her father and step-mother to get school supplies for the older girls. About 2
- 2 ½ hours after they left, Appellant called her at dinner and said that he
figured out why M.A. cried during diaper changes. Appellant told her that
when he touched M.A.’s ankle, she screamed, and he saw redness and
Scioto App. No. 14CA3674 19
swelling on her leg. Adkins told Appellant to take a heat pack, wrap it in a
towel, and place it on M.A.’s leg. They left the restaurant shortly thereafter.
{¶33} When Adkins arrived home, M.A. was asleep on the bed.
While Mrs. Butler earlier denied seeing swelling of the leg when they
returned home, Adkins testified M.A.’s right leg was noticeably swollen.
Mrs. Butler thought it was not serious and possibly M.A. had stubbed her
leg. Mrs. Butler advised taking M.A. to the emergency room if it was still
swollen in the morning.
{¶34} On cross-examination, Adkins admitted she did not notice
anything wrong with M.A. during the first three weeks of her life and,
specifically, before she left M.A. at home with Appellant on August 2, 2013.
Adkins did not recall telling Detective Malone that severe screaming when
they changed M.A.’s diaper had never occurred previously. Adkins did not
recall saying that the severe pain occurred just after she came home and
Appellant had been watching the children. She did not recall telling
Detective Malone that M.A.’s scream was not her normal cry.
{¶35} By way of contrast to her trial testimony about the 2 ½ hour
time frame, in her recorded interview, Adkins advised she was gone about 4
hours on the day M.A. was injured. Furthermore, as to M.A.’s
symptomatology, Adkins stated as follows in the recorded interview:
Scioto App. No. 14CA3674 20
Malone: So then you put down at the end of it [the
statement] I notice when you touch [M.A.’s]
right ankle she would scream as if it hurt severely.
Adkins: Right, right.
Malone: Did that happen any time before that?
Adkins: No, no.
Malone: So that severe pain was just when you came home
from buying school supplies for the kids?
Adkins: Right, right.
Malone: Was the leg red like that when you left?
Adkins: No, no.
***
Malone: And to your knowledge he never left the child out
of his sight?
Adkins: No, not to my knowledge, no.
Malone: Okay you brought her home and she seemed to be
fine, correct?
Adkins: Yeah, other than she always, ever since birth,
when you pick their little ankles up to put the
diaper on her, change her, she would squall like we
were really hurting her but I just thought well she
hates having her diaper changed. She’s a baby.
They don’t like it. * * * I didn’t think anything of
it, you know, I mean it wasn’t out of the normal
cry of a baby that’s getting her diaper changed. I
just thought she was being fussy. She don’t like it.
Malone: So then on the 2nd of this month you had told me
Scioto App. No. 14CA3674 21
that she had never cried like this before and her leg
was real sore to the touch, tell me about what you
told me there.* * * Should I say what got you to
the point to where you took her to the ER?
Adkins: Well, I came home Thursday night cause I went
with my dad and his wife to go get school supplies
for the other girls and I noticed that her right leg
was a bit swelled and was bigger than her left leg
and when you touched it she would scream like it
hurt and I told my husband, I said I don’t know
what in the world is going on. I don’t know why
she’s, you know, why it’s swelled, why she’s
crying like that * * *. So that’s what prompted me
to take her to the hospital.
Malone: Well here’s the thing between what you wrote here
and what you told me at the ER and what you’re
telling me now is this was never an acute pain and
she wasn’t screaming and she wasn’t like this
before yesterday when she kicked him in the
mouth, and now you’re saying, yeah, she had that
all along.
Adkins: We. I mean I’m just trying to think of anything. I
mean they just, I questioned the doctor-
***
Malone: Why didn’t you tell me that when I left the ER?
Adkins: I didn’t think about it. Honestly, I didn’t.
Malone: That’s pretty important, if my kid has had pain
since it’s been born-
Adkins: Well, I didn’t know she was in pain though, I
really didn’t. I just thought she didn’t like having
her diaper changed. She’s a baby.
Scioto App. No. 14CA3674 22
{¶36} In the recorded interview, Adkins also testified to an incident
involving Appellant’s temper 5-6 years prior. Despite telling Detective
Conkel in the recorded interview that Appellant grabbed a bedpost in anger
and it “scared the crap out of her,” at trial she testified that Appellant’s
action did not scare her at all. At trial she also explained when she was
trying to leave, a bag of clothes was torn accidentally, not “shredded” by
Appellant. In the interview she informed Appellant threatened to take the
battery out of the car to keep her from leaving, but at trial explained he did
so for her own safety.
{¶37} Lastly, Adkins testified she had not seen everyone who had
come in contact with M.A. 100-percent of the time. She explained her
statement to the social worker about “knowing they would be accused of
child abuse,” was made because she had heard every single time you take a
baby in with something wrong with arms or legs, it is considered abuse and
Children’s Services is involved.
{¶38} Appellant also called his minor daughters to testify on his
behalf. A.K., age 13, testified she had lived with Appellant since July 2014.
She testified he is the “best father she could ever have.” She had never seen
Appellant being violent with her sisters or Adkins.
Scioto App. No. 14CA3674 23
{¶39} S.A., age 11, and B.A., age 9, both testified they had never
seen their father be violent towards their mother, them, or M.A. Both girls
denied seeing Appellant hurt M.A. Both girls testified that their parents
argued, but they always took it into the bedroom. B.A. also stated: “He
would never hurt her. I know that. But I ain’t sure though because I don’t
really know if he would hurt her.” B.A. further testified she was “kind of
afraid of them fighting because I’ve seen shows when these girls and guys
get in fights and one of them kills them, and sometimes I do get kind of
scared of them fighting because of that.” On cross-examination, both girls
admitted they knew why they were in court and that “daddy” could go to
prison.
{¶40} At the end of the defense case-in-chief, Appellant testified. He
began by informing the jury that he had been around children all of his life,
taking care of his sister’s children when he was 14 or 15.6 He liked helping
his wife by staying home with the children.
{¶41} Appellant testified on August 2, 2013, they had a cookout.
They invited his parents and brother. Appellant’s family arrived around
12:30 or 1:00 p.m. However, they left and ended up not coming back.
6
This included Levi Swords, his nephew, who also testified on behalf of Appellant.
Scioto App. No. 14CA3674 24
Adkins went shopping with the Butlers later in the evening. Appellant
testified they were only gone 1 ½ to 2 hours.
{¶42} Appellant testified he had laid M.A. on the bed and was rubbing
his beard up and down her legs and around her belly. As he did, she kicked
her leg up, hitting him in the mouth. Appellant saw blood on her foot. He
touched M.A.’s ankle and she started crying. Appellant called his wife and
told her M.A.’s ankle was hurt and swollen. When Adkins came home they
discussed what to do. He testified Mrs. Butler’s recollection was wrong
because he asked “What do you think is wrong with her,” not, “Do you think
her leg is broken?”
{¶43} The next afternoon they took M.A. to the emergency room.
They waited a day because as long as M.A. wasn’t touched, she didn’t cry.
Appellant had no reluctance to take her because of any child abuse.
Appellant denied hurting M.A. accidentally or intentionally. He testified, as
did Adkins, that he believes the bruising on her abdomen is from the diaper
tape. He testified she did not have one mark on her belly that day, but they
were using cheaper diapers with sticky tape and it stuck to her skin.
{¶44} Appellant testified Detective Malone kept pushing him to
provide explanations. Appellant testified it is possible another family
member, friend, or one of M.A.’s sisters could have done it because in the
Scioto App. No. 14CA3674 25
week-to-10 days prior to the incident, many other people besides Appellant
had access to M.A. and held her, including his children, his brother and
girlfriend, girlfriend’s son, wife, landlord Joe Weeks, Nancy Fodge, Tara
Gillum, his parents, nephew and niece. Appellant also testified S.A., his
daughter, was going from room to room on August 2, 2013. And, because
of the cookout, multiple people were in the home on August 2, 2013. Even
nurses at Cabell Huntington hospital held M.A. while they visited his
father.7
{¶45} Appellant admitted he has a temper. He could not remember
the reason for his prior arguments with his wife. He denied grabbing a
plastic bag of clothes from her and tearing it up. Appellant admitted he
grabbed the bed post. He admitted he told her he would take the tires off the
car or battery out to keep her from leaving. Appellant testified he never
intended violence towards Children’s Services and was just blowing off
steam. He testified Mrs. Butler was a liar to say he asked her repeatedly if
she thought M.A.’s leg was broken.
{¶46} In State v. Swain, 2002 WL 146204, (Jan. 23, 2002), this Court
considered a sufficiency of the evidence argument, in the appeal of a
conviction for child endangering. In Swain, supra, the defendant was
7
Larry Adkins, Appellant’s father, testified he did not see M.A. when she was first born because he was in
Cabell Huntington Hospital. M.A. was taken to visit him there. His testimony indicates she would have
been 3-4 days old at the time.
Scioto App. No. 14CA3674 26
convicted of felonious assault and child endangerment after the minor child
sustained hot water burns and multiple fractures of the wrists, ankles, and
thigh within the first month of his life. At Swain’s trial, the child’s
pediatrician testified that the child’s injuries resulted from abuse. An
emergency room doctor at Children’s Hospital, Dr. Chapman, testified that
the fractures the child sustained were “corner fractures or bucket handle
fractures” caused by violent shaking.
{¶47} As in the case sub judice, in Swain, Dr. Chapman excluded
vaginal delivery as the cause of the broken bones. She testified that because
the child was delivered three weeks earlier, the x-rays would have revealed
evidence of healing. Additionally, Dr. Chapman testified: “A non-moving
three-week-old cannot sustain a femur fracture from his own activities.”
{¶48} Furthermore, in Swain, the child’s mother acknowledged that
she did not initially tell the investigating detective that the child was with
Swain’s mother and sister for part of the day prior because “she did not
realize it was important to do so.” Similarly here, Appellant and his wife did
not initially advise detectives other people had access to M.A. in the days
and hours leading up to her symptoms. And, Adkins initially omitted
mention of M.A.’s “severe screaming” since birth, as she “didn’t think about
it.”
Scioto App. No. 14CA3674 27
{¶49} On appeal, Swain cited State v. Miley, 114 Ohio App.3d
738, 684 N.E.2d 102 (4th Dist.1995), for the proposition that when the
testimony in a child abuse case indicates that a defendant was one of two
care givers, the evidence is insufficient to prove the elements of felony child
endangering. In Miley, the appellant was convicted of felony child
endangering after his six-day-old daughter suffered severe internal injuries.
This court reversed Miley’s convictions noting that the State presented no
direct evidence that Miley abused the child, failed to protect her from abuse,
or even knew of the abuse. We further found that the State’s circumstantial
evidence, that Miley and the child’s mother were the only ones with access
to the child, did not prove that Miley was the one who abused the child
beyond a reasonable doubt. We observed at 745:
“Reasonable doubt is present when jurors cannot say they are
firmly convinced of the truth of the charge. R.C. 2901.05(D);
State v. Frazier (1995), 73 Ohio St.3d 323, 330, 652 N.E.2d
1000, 1008. A fifty percent possibility does not satisfy the
standard of beyond a reasonable doubt. Therefore, reasonable
minds could only reach the conclusion that the State did not
prove beyond a reasonable doubt that Miley abused Jessica.”
{¶50} Swain argued the evidence in his case demonstrated that other
relatives spent “significant time” with the injured child. However, this court
disagreed. After recognizing the probative value of circumstantial evidence,
we concluded in Swain at *8:
Scioto App. No. 14CA3674 28
“[Sufficient evidence supports appellant’s R.C. 2919.22(B)
conviction. Evidence exists that [Damien] was abused and that
his injuries occurred on [December 16], the day appellant cared
for [Damien.] The doctors detected no injuries prior to
December 17. Appellant and [the child’s mother] were together
on December 15. [The mother] stated that she did not see who
caused [Damien’s] injuries and that she did not cause the
injuries. Evidence exists that appellant was the sole caretaker
during the period of time the abuse occurred. [Detective Lowe]
testified that appellant stated he cared for [Damien] the day
before the injuries were discovered. Appellant did not inform
the detective that [Damien] had been in anyone else’s care.
Although some evidence exists that appellant was not the sole
caretaker during the period of time when the abuse occurred,
once again the jury was free to reject appellant’s other
evidence. See State v. Sampsill (June 29, 1998) Pickaway App.
No. 97CA17, unreported. (internal citations omitted.)”
{¶51} In Swain at *9, we found Miley to be distinguishable in that:
“In Miley, the evidence revealed that at the time the abuse
occurred, the child was in the care of more than one person. In
the case at bar, however, evidence exists that at the time of
Damien's injuries, appellant was the sole caretaker. See
Sampsill, 1998 WL 346680 (June 29, 1998). As we noted
above, evidence exists that the injuries occurred on December
16 and, despite appellant's claims to the contrary, that appellant
was the sole caretaker that day and that appellant did not take
the child to visit with relatives. Additionally, appellant, like the
defendant in Sampsill, was alone with the child for a substantial
portion of the time-frame within which the injuries occurred.”
{¶52} In the case sub judice, we find sufficient evidence exists to
support Appellant’s R.C. 2919.22(B) conviction. We find the analysis of the
evidence more similar to that in State v. Swain, supra. Here, Appellant has
first argued that while the State argued M.A.’s injuries had to happen within
Scioto App. No. 14CA3674 29
the 2-3 hours Appellant was essentially alone with M.A., the trial testimony
from medical experts actually established that the injury could have taken
place up to several days prior to the time M.A. was presented to the SOMC
emergency room. However, the records and testimony show M.A. was born
on July 10, 2013, had been examined at her pediatrician’s office three times
since birth where she had normal exams; showed no evidence of bruising;
and no evidence of pain when her hips and legs were manipulated.
{¶53} Moreover, Adkins also testified that during the first three weeks
of M.A.’s life and before she left to shop on August 2, 2013, she did not
notice anything wrong with M.A. Mrs. Butler also noticed no swelling or
bruising prior to the shopping trip. The only evidence that M.A. had any
abnormal cries or pains regularly and prior to the incident came from her
parents, and was conflicting, as discussed above.
{¶54} By all accounts, including Appellant’s, M.A. first exhibited
symptoms during the 2-3 hours after they left the home to go shopping.
Appellant himself testified that on August 2, 2013 while the others were
gone, he was rubbing the baby’s stomach and legs with his beard when she
kicked him, hitting his mouth. He touched her ankle and she started crying.
Appellant himself testified that when he touched M.A.’s ankle, she
screamed, and he saw redness and swelling on her leg.
Scioto App. No. 14CA3674 30
{¶55} Dr. Bennington testified that the pain and swelling caused by
fractures would begin immediately. Dr. Thackeray also testified symptoms
of pain would appear within minutes, hours, or 1-2 days, but not weeks. All
this evidence establishes that for the first three weeks of her life, and
specifically between July 30, 2013 and August 2, 2013, roughly 4 days,
M.A. did not exhibit symptoms or signs of injury.
{¶56} Here, it is true that in Dr. Bennington’s cross-examination
testimony he admits he could not pinpoint an exact time when the injuries
occurred, and Dr. Thackeray’s and Dr. Smith’s cross-examinations, they
generally agree that the injuries would have had to have been sustained
“within” the 7-10 or 7-14 days of coming to the hospital. However, it
appears the jury rejected Appellant’s interpretation of the evidence as
showing the injuries occurred within the later possible time frame and were
more convinced by the medical evidence and documentation tending to
show that the injuries occurred shortly after the manifestation of symptoms,
which occurred during the 2-3 hour time frame Appellant was M.A.’s sole
care taker. As in Swain, evidence exists that M.A.’s injuries occurred on a
date certain, here August 2, 2013. We find sufficient evidence exists that
M.A.’s injuries occurred on August 2, 2013.
Scioto App. No. 14CA3674 31
{¶57} Appellant’s next argument is that nearly two dozen people had
access to M.A. during the 7 days prior to the incident, and that during those
7 days there were times when she was out of his care. Furthermore, none of
them were investigated by the police or hospital staff. In all, Appellant
suggested his brother and girlfriend, girlfriend’s son, his landlord Joe
Weeks, Nancy Fodge, Tara Gillum, his parents, his niece and nephew, and
nurses at Cabell Huntington Hospital who held M.A. when she was only 3-4
days old all had access to M.A. Appellant even testifies to a cookout earlier
in the day on August 2, 2013, which brought multiple people into the home.
However, the State argued the evidence demonstrated Appellant was alone
with M.A. a longer segment of time than anyone else, and just before the
symptoms occurred.
{¶58} We begin by noting no one took M.A. to the emergency room
until the next day, where Appellant explained to the treating providers that
M.A. injured herself by kicking him. However, both Dr. Cheatham and Dr.
Thackeray testified it was not possible for a child M.A.’s age to injure
herself in that manner. Dr. Thackeray and Dr. Smith testified M.A.’s
Scioto App. No. 14CA3674 32
injuries were caused by excessive force, shaking, or twisting. Dr.
Bennington testified these injuries are also caused by blunt trauma.8
{¶59} Then at Children’s Hospital, Appellant began to give other
possible explanations for the injuries. At the Sheriff’s office during the
formal interview, Appellant gave additional explanations. As in Swain,
Appellant and his wife did not initially inform the hospital staff or detectives
that M.A. had been in anyone else’s care but Appellant’s. And even so,
none of the possible explanations of possible injuries describe events of
excessive force or blunt trauma.
{¶60} Importantly, none of these explanations contain any specific
dates as to when the incidents possibly causing injury occurred. None of the
explanations regarding injury on the swing, the door, the crib, or the dog are
specified as to date. Furthermore, the evidence demonstrates that none of
these possible mechanisms of injury apparently occurred during the 2-3
hours when M.A. was alone with her father and just before she experienced
symptoms. And while Appellant indicated his wife was kicked while she
was pregnant with M.A. and that M.A. was possibly injured during delivery,
Dr. Thackeray testified regarding the birth records and video and testified he
saw nothing to indicate injury during delivery.
8
Appellant did not dispute the diagnosis of multiple fractures or the theory that the fractures were caused
by excessive trauma.
Scioto App. No. 14CA3674 33
{¶61} In their recorded statements, Appellant and his wife specifically
denied the other children had hurt M.A. and excluded them as a cause of
injury. However, at trial, Appellant elicited his minor daughters’ testimony.
B.A. testified that she might have accidentally hurt M.A. while she was
playing one day, although she really doesn’t play “rough.” When asked if
one of her sisters could have hurt the baby, B.A. responded: “I don’t know.
H.A., she’s a little rough.” Dr. Smith testified the fractures would not be
caused by ordinary play or handling of M.A. Again, the children’s
testimony about possible accidental injury while playing was vague, was not
qualified as to any specific date in time, and was not specified to be within
the 2-3 hours Appellant was the sole caretaker. And, this testimony
contrasts to Appellant’s initial vehement denial that the other children hurt
M.A.
{¶62} As in Swain, we find evidence exists that: (1) Appellant was the
sole caretaker of M.A. when the injuries occurred; and (2) that Appellant
was alone with M.A. a substantial portion of the time frame when injuries
occurred. The jury was free to believe or accept all the testimony presented
from the medical experts, the detectives, Appellant and his wife, and the
minor children. Regarding credibility, we are mindful that:
“The trier of fact, in this case the jury, has the primary
responsibility for determining the credibility of the witnesses
Scioto App. No. 14CA3674 34
and the relative weight to be given to each of their testimonies.
State v. Williams, 10th Dist. Franklin No. 91-AP-653,1992 WL
42815, (March 5, 1992), citing State v. DeHass, 10 Ohio St.2d
230, 227 N.E. 212, paragraph 1 of the syllabus (1967).”
{¶63} Finally, Appellant cites the testimony of every witness who had
personal knowledge of him and his interaction with his wife and children as
being convinced that Appellant could not and did not harm his child. This
argument also, necessarily, depends upon credibility determinations.
Appellant relies on the following remaining defense testimony summarized
here:
1) Todd Riddle, Joe Weeks, Tim Berry (friends and neighbors)
and Levi Swords (Appellant’s nephew whom he helped raise)
testified Appellant was a good dad, and they had not seen
violence in the Adkins’ home.
2) Betty Cattee and Carolyn Moore testified Appellant was a
great parent.
3) Nancy Fodge, a friend, testified she never observed violence
between Appellant and his family.
4) Larry Adkins, Appellant’s father, testified he had never
observed violence with Appellant’s family.
{¶64}While Appellant emphasizes the favorable testimony regarding
his parenting skills and interactions, the jury also heard Todd Riddle, Joe
Weeks, Tim Berry, Levi Swords, and Nancy Fodge admit that they did not
know what went on behind closed doors and were not present on August 2,
2013 when M.A. was injured. Betty Cattee, Carolyn Moore, and Nancy
Scioto App. No. 14CA3674 35
Scott (Appellant’s sister) admitted they were not present on August 2, 2013.
Nancy Scott, along with Aronessa Butler and even Adkins, admitted
Appellant had a temper. Appellant’s father Larry Adkins also admitted he
was not present on August 2, 2013.
{¶65} Regarding M.A.’s “fussiness” during diaper changes, Adkins
testified on direct that M.A. had been “fussy since birth like she’d scream
when we changed her diaper for no apparent reason. I just thought she
didn’t like diaper changes.” However in her recorded statement which the
jury viewed, she told Detective Malone she initially omitted the information
at the hospital about the severe screaming since birth, initially because she
just didn’t “think about it.” In her trial testimony, Adkins also downplayed
Appellant’s tendency towards violence, while the interview the jury heard
contained statements including “There was this time we got into a fight and
he scared me”; “He got mad and I don’t know if he did it to keep from
hitting me or something anyway he shook the metal poles real hard, and it
scared the crap out of me”; and “If I had just taken her with me none of this
never would have happened.”
{¶66} Appellant also damaged his credibility with his testimony about
a cookout earlier in the day on August 2, 2013 before his wife and the
Butlers went shopping. In Appellant’s videotaped statement, Detective
Scioto App. No. 14CA3674 36
Conkel advised Appellant that one of his daughters said that Appellant had
left them to go to a neighbors’ briefly on August 2, 2013. Appellant
specifically denied leaving M.A. alone on August 2, 2013. This exchange
followed:
Conkel: They said that they, she said that she left the baby
in the bassinet and locked the door behind you,
that you were going to Joe’s to borrow a hose to
fill up the pool. You left on the four wheeler.
Appellant: (Inaudible)
Conkel: That’s what she told me.
Appellant: When I went over, I went over to my landlord’s to
get us a hose to fill up a little kiddie pool for them,
my wife was still pregnant at the time. My wife
was there, who else was there, I think my brother
and his girlfriend was there cause we had a cook
out that day, and my mom and dad came down
* * *.
{¶67} Appellant’s recollection in his recorded interview about a
cookout is somewhat confusing. Whatever is to be construed about a
cookout taking place on a different day or on August 2, 2013, Appellant
testified about an event bringing additional people into the household which
no other defense witness recalled or found important to mention at trial. We
are constrained to give great deference to the jury’s determination of
credibility, given that the jury was in the best position to see and hear
Scioto App. No. 14CA3674 37
Appellant and all the prosecution and defense witnesses, and to note their
voice inflections and demeanor.
{¶68}We conclude in viewing the evidence in a light most favorable
to the prosecution, any rational trier of fact could find all of the essential
elements of child endangering proven beyond a reasonable doubt. The jury
obviously found the evidence against Appellant compelling. The direct
evidence showed M.A. had no symptoms of multiple fractures or bruising
during the first 24 days of her life. The circumstantial evidence
demonstrates Appellant and his wife initially excluded all other persons, and
Appellant was M.A.’s sole caretaker for 2-3 hours on August 2, 2013,
immediately prior to the manifestation of symptoms.
{¶69} Having found that sufficient evidence exists to support
Appellant’s conviction, we further find his conviction not to be against the
manifest weight of the evidence. In Wickersham, supra, at ¶ 31, we
observed:
“A jury, as the finder of fact and the sole judge of the weight of
the evidence and the credibility of the witnesses, may believe or
disbelieve all, part, or none of a witness's testimony. State v.
Proby, 10th Dist. Franklin No. 15AP-1067, 2015-Ohio-3364,
¶ 42, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d
548 (1964). A conviction is not against the manifest weight of
the evidence because the jury believed the state's version of
events over the appellant's version. Id. at ¶ 11, citing State v.
Houston, 10th Dist. Franklin No. 04AP-875, 2005-Ohio-449,
Scioto App. No. 14CA3674 38
¶ 38. A reviewing court must give great deference to the jury's
determination of witness credibility. Id., citing State v.
Chandler, 10th Dist. Franklin No. 05AP-415, 2006-Ohio-2070,
¶ 19.”
{¶70} We also observed in Wickersham, supra:
“ ‘While the jury may take note of inconsistencies and resolve
or discount them accordingly, * * * such inconsistences do not
render defendant's conviction against the manifest weight or
sufficiency of the evidence.’ ” Proby, supra, at ¶ 42, quoting
State v. Gullick, 10th Dist. Franklin No. 13AP-317, 2014-Ohio-
1642, ¶ 10, quoting State v. Nivens, 10th Dist. Franklin No.
95APA09-1236 (May 28, 1996).
{¶71} Here, the jury obviously believed the State’s version and
construal of the events, took note of inconsistencies in the evidence, and
resolved them in favor of the State. Despite the fact that Appellant’s
conviction is based in part on circumstantial evidence, we do not find this to
be the exceptional case in which the evidence weighs heavily against the
conviction. For the foregoing reasons, we find Appellant’s sole assignment
of error is without merit and we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 14CA3674 39
Harsha, J., concurring:
{¶72} I concur in the judgment and opinion overruling Adkins’s
assignment of error and affirming his conviction for child endangering. I
agree with the principal opinion that this case is distinguishable from our
decision in State v. Miley, 114 Ohio App.3d 738, 684 N.E.2d 102 (1996), in
which we held that circumstantial evidence that the defendant and his infant
daughter’s mother were the only persons who cared for and had access to the
infant during the time she suffered severe internal injuries was insufficient to
prove the defendant’s guilt beyond a reasonable doubt.
{¶73} I concurred in judgment only in that case, and Miley has been
largely confined to its facts and distinguished by this and other appellate
courts since that time. For example, in State v. Haley, 12th Dist. No.
CA2012-10-211, 2013-Ohio-4123, at ¶ 11, the Twelfth District Court of
Appeals specifically determined that “since its release, numerous courts
throughout the state, including this court, have found Miley provides limited
precedential value due to its highly distinguishable facts.” Similarly, in
State v. Hall, 11th Dist. Trumbull No. 2011-T-0115, 2012-Ohio-4336, at ¶
17, the Eleventh District Court of Appeals acknowledged the “limited
precedential value of Miley.”
Scioto App. No. 14CA3674 40
{¶74} The state established a specific period of time when the abuse
occurred here-during the 2 ½ hour period that Christi and her parents left the
child in Adkins’s care—even Christi and Adkins’s statements to police and
testimony suggested that this is the period when the injuries occurred.
Consequently, Miley, where there was no evidence that the defendant was
with the child during the injury, is readily distinguishable. See State v.
Meadows, 4th Dist. No. 99CA2651, 2001 WL 803822 (Feb. 12, 2001).
Significantly, Adkins himself does not even cite or rely on Miley in his short
brief.
{¶75} Therefore, based on the state’s evidence, which the jury was
free to credit, there was sufficient evidence to support Adkins’s child-
endangering conviction, and the jury did not clearly lose its way in resolving
conflicts in the testimony to convict him. The principal opinion thus
correctly overrules Adkins’s assignment of error and affirms the conviction.
Scioto App. No. 14CA3674 41
Hoover, J., dissenting:
{¶76} I respectfully dissent from the lead opinion.
{¶77} I would sustain Michael Adkins’s first assignment of error and
conclude that the State of Ohio failed to provide sufficient evidence to
sustain a verdict against him. I would then find the manifest weight of the
evidence argument moot.
{¶78} In State v. Dillon, 4th Dist. Washington No. 11CA31, 2013-
Ohio-614, this Court reversed a child endangering conviction based on a
sufficiency of the evidence argument. In that case, this Court set forth the
standard of review when reviewing the sufficiency of the evidence to
support a criminal conviction:
“An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to 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.” State v. Jenks, 61 Ohio St.3d 259, 574
Scioto App. No. 14CA3674 42
N.E.2d 492 (1991), paragraph two of the syllabus (superseded
by statute and constitutional amendment on other grounds).
This test raises a question of law and does not allow the
appellate court to weigh the evidence. State v. Osman, 4th Dist.
No. 09CA36, 2011–Ohio–4626, ¶ 39. A sufficiency of the
evidence challenge tests whether the state’s case is legally
adequate to go to a jury in that it contains prima facie evidence
of all of the elements of the charged offense. See Portsmouth v.
Wrage, 4th Dist. No. 08CA3237, 2009–Ohio–3390, ¶ 36.
A conviction that is based on legally insufficient
evidence constitutes a denial of due process. State v.
Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541(1997). And the Double Jeopardy Clause precludes retrial once
the reviewing court has found the evidence legally insufficient
to support a conviction. Tibbs v. Florida, 457 U.S. 31, 40–41,
102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). See also Thompkins at
387.
Id. at ¶¶ 8-10.
{¶79} In this case, the State presented insufficient evidence to sustain
the verdict against Michael Adkins.
Scioto App. No. 14CA3674 43
{¶80} The first witness presented by the State was Dr. Steven Keys, a
physician at Christ Care Pediatrics. This witness provided no evidence that
Michael Adkins abused M.A.9 He did provide testimony that the child,
M.A., was seen by a nurse practitioner at his office on July 30, 2013. On that
date, when M.A. was 20 days old, a hip manipulation was done; and no
bruising or pain was noted.
{¶81} The second witness was Dr. Jason Cheatham. Dr. Cheatham
was the emergency physician at Southern Ohio Medical Center. Dr.
Cheatham treated M.A. on August 3, 2013, when she was 24 days old. When
Dr. Cheatham examined M.A., he “did not see any obvious deformity,
swelling, bruising.” (Tr. page 72, line 24 and page 73, line 1.) Dr. Cheatham
also testified that M.A. did not exhibit any signs of disturbance or pain. (Tr.
page 73, lines 3-5.) Dr. Cheatham did not talk with Michael Adkins. (Tr.
page 80, lines 17-19 and page 81, lines 1-4.) Dr. Cheatham testified that he
did not determine the cause of the injuries.
Q. And you also were not part of an investigation to determine
who was the cause of these injuries, correct, other than taking
some kind of in put history? [sic]
A. Exactly.
9
Any minor children that are involved in this case shall be referred to with initials only.
Scioto App. No. 14CA3674 44
Q. Okay, so you’re not able to purport a person that caused
these injuries or anything that would have caused these
injuries?
A. Correct, we identify what the concerning findings and then
we refer that child to what we consider the experts in that field.
(Tr. pages 83-84.)
{¶82} The next witness that the State called was Dr. Nathan
Bennington. Dr. Bennington is a diagnostic radiologist at Southern Ohio
Medical Center. Dr. Bennington testified that the fractures that M.A.
sustained were “highly suggestive of non-accidental trauma or abuse.” (Tr.
page 95, lines 19-20.) However, Dr. Bennington provided no testimony or
evidence as to who or what caused the injuries to M.A.
{¶83} The State then called Dr. Sally Smith to testify. Dr. Smith is a
pediatric radiologist at Nationwide Children’s Hospital in Columbus, Ohio.
Dr. Smith dated M.A.’s injuries as occurring anywhere from 7-14 days prior
to August 3, 2013, when the images were taken of her injuries. However,
this time frame is inconsistent with the testimony that M.A. had no bruising
or pain when the hip manipulation was performed by the nurse practitioner
on July 30, 2013. Specifically, Dr. Smith testified as follows:
Q. Is there any way Doctor, that you can date these injuries?
Scioto App. No. 14CA3674 45
A. Yes, I can’t say a specific day, but I can give a time frame
that these fractures occurred.
Q. Okay.
A. So when a fracture, when a corner fracture looks just like a
little fleck of bone off of the corner it’s more likely to have
occurred within the last 7 to 14 days.
(Tr. page 123, lines 23-24 and page 124, lines 1-7.)
{¶84} Dr. Smith further testified that she did not know
necessarily that M.A. was abused.
Q. * * * Do you know necessarily that this child was abused?
A. I didn’t know, no.
(Tr. page 134, lines 4-6.)
{¶85} Dr. Smith was also unable to establish any causation
between M.A.’s injuries and any conduct or inaction of Adkins.
Q. Right, but you’re not able to say who did it, when exactly it
occurred, or how, what specific actions, you can only speculate
actions that would have occurred, correct?
A. Correct.
(Tr. page 138, lines 3-7.)
Scioto App. No. 14CA3674 46
{¶86} The next witness that the State called to testify was Jennifer
Estep. Ms. Estep is a social worker at Southern Ohio Medical Center. Ms.
Estep testified that she heard Christi Adkins (“Christi”) state: “I knew you
would think we abused our daughter.” (Tr. pages 151-152.) But, Ms. Estep
also testified that the parents were “very cooperative” when she spoke to
them. (Tr. page 156, line 10.) She also testified that she had not had any
dealings with the Adkins family in the past. (Tr. page 157, lines 17-19.)
Ultimately, Ms. Estep did not provide any testimony with respect to the
causation of M.A.’s injuries. Ms. Estep did not provide any direct evidence
linking Michael Adkins to M.A.’s injuries.
{¶87} The State’s next witness was Aronessa Butler; the maternal
step-grandmother of M.A. Mrs. Butler testified that she had handled M.A.
on August 2, 2013, before she and Christi left for “some adult time.” (Tr.
page 165, line 11.) Mrs. Butler observed that when she lifted M.A.’s legs,
M.A. fussed. (Tr. page 168, line 1.) After handling M.A., Mrs. Butler left
with Christi to go shopping; and they went to eat. Mrs. Butler testified that
the people that were left at home were M.A., B.A., H.A., and Mike. (Tr.
page 168, lines 23-34.) Mrs. Butler added that S.A. came home sometime
after she and Christi had already left. (Tr. page 169, lines 8-9.) Therefore,
M.A. was left at home with her father and three sisters.
Scioto App. No. 14CA3674 47
{¶88} Mrs. Butler testified that after shopping and eating, she and
Christi returned to the Adkins’s home. Mrs. Butler and Mr. Butler, Christi’s
father, were at the Adkins’s home long enough for Mr. Butler to fall asleep
on the couch. (Tr. page 171, lines 22-23.) Christi then asked Mrs. Butler to
“come back here and take a look” at M.A. (Tr. page 172, lines 1-2.) Christi
and Michael Adkins explained that M.A. had kicked her father in the mouth.
Mrs. Butler testified that she “took her diaper off, stripped her down * * *
looked over her heels, looked over everything.” (Tr. page 172, lines 10-12.)
Mrs. Butler thought M.A. “looked all right.” (Tr. page 172, line 13.) She did
not notice any swelling in her leg but she did notice a red mark on her
abdomen. (Tr. page 172, line 13-14.) Mrs. Butler testified that Christi and
Michael Adkins explained the red mark as being caused by the diaper. (Tr.
page 172, lines 15-16.)
Q. Okay, okay, and so at that point you noticed some marks on
her belly?
A. I noticed one on the right side. It just looked like, it really
looked a straight pin mark, I mean it was just a red line so you
know they held the diaper strap us, showed me, it was like “oh
okay”. [sic] I didn’t think anything of it and he’d asked me a
couple of times “do you think her leg is broken”. I said “no, I
Scioto App. No. 14CA3674 48
don’t really think so”. I said “you know if she’s still fussy in the
morning I’d take her to the doctor, maybe she just stoved her,
when she kicked she stoved her foot, her ankle, she’s just
hurting a little bit.” And I said “I really don’t think it’s anything
to be concerned with”. I said “call me tomorrow and let me
know how she’s doing”.
(Tr. page 173, lines 13-24 and page 174, lines 1-2.) Mrs. Butler provided no
testimony regarding the cause of M.A.’s injuries.
{¶89} The State’s next witness was Detective Dan Malone
(“Malone”). Malone is a detective at the Scioto County Sheriff's Office who
took statements from both Christi and Michael Adkins. Malone traveled to
Columbus, Ohio, to Nationwide Children's Hospital. Malone testified that at
the hospital, Michael Adkins told him that “he possibly was, or he was
tickling his child, was leaning over her and was tickling her belly with his
beard and the child had kicked him in the tooth and loosened his tooth and
possibly injured her leg that way.” (Tr. page 187, lines 20-24.) Malone then
interviewed Michael Adkins on a later date, August 8, 2013, at the Scioto
County Sheriff's Office. Malone testified that Christi and Michael Adkins
both stated “that the children never have time alone with this baby without
Scioto App. No. 14CA3674 49
one of them being present.” (Tr. page 195, lines 3-5.) Malone’s interview of
Michael Adkins was videotaped.
{¶90} When questioned multiple times regarding how the child could
have been injured, Michael Adkins presented different theories such as: 1)
the kick to his mouth; 2) injury occurring on a swing; 3) bumping the child
in the middle of the night; 4) the crib causing the injury; and 5) Christi
Adkins squeezing the baby through small places. These explanations were
presented after Malone had asked Michael Adkins multiple times, "can you
think of anything?" (Tr. page 220, lines 14-18.)
Q. And I think you asked that multiple times, can you think of
anything else and it appeared to me, and agree or disagree, that
he was trying to think of anything else and he was just throwing
things out there that he genuinely and honestly, although he
may not have thought they were the cause of the actual injuries,
but just how the baby might have been hurt, period.
A. Correct.
(Tr. page 220, lines 18-24 and page 221, line 1.)
{¶91} Malone testified that Michael Adkins denied intentionally
harming the child but said there might have been the possibility of an
accident. (Tr. page 210, lines 9-10.) Malone testified that during the
Scioto App. No. 14CA3674 50
interview Michael Adkins was calm and cool. Michael Adkins did not admit
to Malone that he harmed M.A.
{¶92} Malone also interviewed Christi Adkins. Malone testified that
Christi was “very distraught, very upset the whole time” during her
interview. Christi advised Malone that she did not hurt M.A. (Tr. page 213,
line 7.) Malone testified that Christi noticed that M.A.’s leg was swollen
“[w]hen she came home from clothes shopping for the kids for school.” (Tr.
page 212, lines 19-20.) However, this is inconsistent with Mrs. Butler’s
testimony that she did not notice any swelling. (Tr. page 172, lines 13-14.)
{¶93} The prosecutor then asked Malone the following series of
questions:
Q. Okay, was there any evidence that the mother ever injured
the child?
A. No.
Q. Was there any evidence that the other children ever injured
the child?
A. No.
Q. Was there any evidence that some unknown person injured
the child?
A. No.
Scioto App. No. 14CA3674 51
(Tr. page 216, lines 3-11.) The prosecutor did not ask Malone “if there was
any evidence that Michael Adkins ever injured the child?” Instead, the
prosecutor asked Malone, “Based on your investigation who had the
opportunity to injure this child?” Malone responded, “Michael Adkins.” (Tr.
page 216, line 14.) This is a much different question than “Was there any
evidence that Michael Adkins injured the child?” Malone also failed to
present any evidence that Michael Adkins injured the child.
{¶94} The State then called Detective Jodi Conkel ("Conkel") to
testify. Conkel is a detective with the Scioto County Sheriff's Office. Conkel
went with Malone to Nationwide Children’s Hospital on August 5, 2013;
and she also assisted in interviews on August 6, 2013. (Tr. page 238, lines
20-22 and page 239, line 1.) Conkel did testify that some of the children
were at the home at the time Michael Adkins was taking care of the child.
(Tr. page 252, lines 1-5.) Conkel did not provide any evidence that Michael
Adkins injured the child.
{¶95} Dr. Jonathan Thackeray was the next witness for the State. Dr.
Thackeray is the medical director of the Center for Family Safety and
Healing and the chief of the Division of Child and Family Advocacy at
Nationwide Children’s Hospital. Dr. Thackeray testified to M.A.’s injuries
and other “irregularities.” (Tr. page 267, lines 16-24 and page 268, lines 1-
Scioto App. No. 14CA3674 52
5.) Dr. Thackeray also testified that “ ‘mother states that she and the other
kids were home’ at the time that the injury would have occurred.” (Tr. page
278, lines 17-19.) Dr. Thackeray’s ultimate medical opinion was given.
Q. It’s your medical opinion here today that these injuries could
not have resulted in any accidental explanation that you were
given by the defendant, is that right?
A. That's correct.
(Tr. page 280, lines 8-12.)
{¶96} On cross-examination, Dr. Thackeray admitted that he could
not determine a cause of the bruising. (Tr. page 284, lines 22-24.) Dr.
Thackeray also testified that the injuries would have had to be sustained
within the last 7 to 10 days before coming into the hospital. (Tr. page 288,
lines 4-8.) Furthermore, Dr. Thackeray agreed with defense counsel that
swelling does not always necessarily accompany a fracture. (Tr. page 288,
lines 18-20.) Dr. Thackeray answered the following questions:
Q. * * * Doctor, you yourself are unable to say how and when
these injuries actually occurred other than the general
mechanism of a twisting or a pulling action, correct?
A. That’s correct.
Scioto App. No. 14CA3674 53
Q. You aren’t able to testify before this Court today and say
you know the exact mechanism specifically or at what minute
and hour it occurred, can you?
A. I cannot say that. That’s true.
Q. And you most certainly cannot say who caused it, correct?
A. That’s correct.
(Tr. page 290, lines 17-24 and page 291, lines 1-4.)
{¶97} On re-direct examination, Dr. Thackeray testified that the
parents (Christi and Michael Adkins) indicated that they were the only ones
to care for M.A. (Tr. page 292, lines 12-14.) Dr. Thackeray did not believe
that the other children caused the injuries to M.A. “based more on the fact
that the caregivers were clear, that they don’t allow the baby to be alone with
the siblings.” (Tr. page 293, lines 4-6.)
{¶98} The last witness in the State’s case in chief was Captain David
Hall ("Hall"). Hall was the captain in charge of the detectives unit of the
Scioto County Sheriff’s Office. Hall testified about a statement made to him
by Michael Adkins.
Q. What was his statement?
Scioto App. No. 14CA3674 54
A. His statement was he wasn’t sure if he’d done it or not. If he
did do it, he believed it was accidental, but then said he
couldn’t remember if he did it or not.
(Tr. page 299, lines 19-22.) Hall was questioned on cross-examination as
follows:
Q. My question is he did not admit to intentionally harming this
child in any form or any fashion, yes or not? [sic]
A. Not in those words, no.
(Tr. page 300, lines 17-20.)
{¶99} With respect to all the witnesses that were called to testify in
the State’s case in chief, none of the witnesses produced any direct evidence
that Michael Adkins harmed M.A. Likewise, all of the witnesses who
testified in Michael Adkins’s case in chief failed to produce any direct
evidence that Michael Adkins harmed M.A.
{¶100} The first defense witness, Mrs. Butler, had testified in the
State’s case in chief also. When she testified in Michael Adkins’s case in
chief, she testified on cross-examination that when Christi was at work,
Michael Adkins would be the primary caregiver. When questioned about
Christi’s work schedule, Mrs. Butler testified that Christi worked five hours
a day, two to three days per week.
Scioto App. No. 14CA3674 55
Q. So maybe fifteen hours a week?
A. Yeah, that sounds about right.
Q. And when she wasn’t at work where was she?
A. She was at home.
Q. With the children?
A. Yes.
Q. What did she do at home when she was with the children?
A. Everything a typical mom does.
Q. So she took over the primary caregiver role?
A. Yes.
(Tr. page 330, lines 1-11.) Thus, Mrs. Butler, Christi’s step-mother,
explained that Christi took over the primary caregiver role for the children
when she was not working the 10 to 15 hours per week. Mrs. Butler also
provided evidence that Christi did not believe that Michael Adkins injured
M.A. (Tr. page 344, lines 8-9.)
{¶101} The second defense witness was Naomi Kinsel. Ms. Kinsel
was the “ongoing case worker” for the Scioto County Children Services. Ms.
Kinsel testified that Michael Adkins completed the parenting program as
requested and that his interaction with M.A. was always appropriate. Ms.
Kinsel did acknowledge that she received a notification about Michael
Scioto App. No. 14CA3674 56
Adkins saying he would drive a truck into the Children Services; but she
also testified that this did not cause her any fear or did not cause her to stop
or terminate the supervised visits between Michael Adkins and M.A.
Conclusively, Ms. Kinsel provided no evidence that Michael Adkins injured
M.A.
Q. Okay. In this case did you know who potentially caused the
abuse?
A. No.
(Tr. page 365, lines 23-25.)
{¶102} Todd Riddle was the third witness called by the defense. Mr.
Riddle was Michael Adkins’s neighbor and friend. Mr. Riddle provided no
testimony regarding causation of M.A.’s injuries.
Q. Okay. So you wouldn’t know what goes on behind closed
doors at this defendant’s house?
A No.
Q. Whether there’s any violence or aggression.
A. No.
Q. Or child abuse, for that matter?
A. No.
(Tr. page 376, lines 5-11.)
Scioto App. No. 14CA3674 57
{¶103} The defense next called Joseph David Weeks as its fourth
witness. Mr. Weeks was the Adkins’s landlord. Mr. Weeks was familiar with
Michael Adkins and the Adkins family. Mr. Weeks testified that: “Mike is a
very good dad and I don’t believe Mike could ever hurt a kid.” (Tr. page
381, lines 20-21.) Mr. Weeks also failed to provide any evidence as to the
causation of M.A.’s injuries.
{¶104} The fifth witness for the defense was Levi Swords. Mr.
Swords is the nephew of Michael Adkins. (Tr. page 387, line 3.) Mr. Swords
testified about his relationship with Michael Adkins and about his view of
Michael Adkins’s relationship with his children.
Q. Okay. You know him as an uncle, but how is he has a dad?
[sic]
A. My opinion, he’s a great father.
Q. Okay. Have you ever witnessed any behavior between him
and his children that would cause you some concern?
A. No.
(Tr. page 391, lines 5-10.) Mr. Swords also testified that Christi helped take
care of the baby.
Q. She helped take care of the baby?
A. Um-huh.
Scioto App. No. 14CA3674 58
Q. She do a lot of the changing and the work when she wasn’t
at work?
***
A. Yeah, I mean when she wasn’t at work, yeah, she did a lot
with the baby.
(Tr. page 405, lines 22-25 and page 406, lines 4-5.) Ultimately, Mr. Swords
did not testify regarding the causation of M.A.’s injuries either.
{¶105} The next defense witness was Nancy Scott. Nancy Scott is
Michael Adkins’s sister. Ms. Scott provided no evidence as to causation of
Michelle’s injuries.
Q. Ma’am, can you tell the jury what your understanding is
about what happened to the baby, what caused the injury?
A. I really have no idea what caused the injury.
(Tr. page 417, lines 19-21.)
{¶106} Christi Adkins next testified for the defense. Christi explained
that she and Michael Adkins shared in the responsibilities of parenting. (Tr.
page 441, lines 9-10 and page 443, lines 1-4.) Christi testified that she did
not have any concerns about Michael Adkins staying home and taking care
of M.A. along with the other children. (Tr. page 443, lines 8-12.) Christi also
testified about the arguments that she had with Michael Adkins.
Scioto App. No. 14CA3674 59
Q. Okay. In either one of those incidents, other than scaring
you, did you ever believe he was going to physically hurt you?
A. No.
Q. Okay. Did you believe that he was going to physically hurt
one of the children.
A. No. He would never.
Q. Okay. Were there any other incidents that you’ve not
revealed that have ever caused you concern that he would ever
hit you or the children?
A. No.
(Tr. page 444, lines 23-25 and page 445, lines 1-8.)
{¶107} With respect to the actual date that M.A. received the
fractures, Christi could not testify to a date certain.
Q. Okay. Are you for certain that [August 2, 2013] is the day
that M.A. received the fractures to her legs?
A. I don’t know when it happened. I can’t tell you that.
Q. Okay.
A. Because I really don’t know what happened.
Scioto App. No. 14CA3674 60
(Tr. page 452, lines 6-10.) Christi also explained to the jury that with respect
to her oldest daughter, S.A., Christi had caused the same type of markings
that occurred with M.A.
Q. Okay. No theory by the hospital and how they were caused?
A. No. They asked me about the bruises while I was at
Children’s Hospital and I said I hadn’t noticed them before but,
you know, Michael had told me that the diaper tape had got her,
which I see as a relevant explanation because, like I said, I did
it accidently [sic] to my oldest daughter.
Q. When you did that to your oldest daughter, did she have the
same type of markings on her body?
A. Yes.
(Tr. page 454, lines 5-14.)
{¶108} Christi testified regarding her thoughts on whether or not
Michael Adkins caused M.A.’s injuries.
Q. Okay. When you got that phone call while you were eating
about M.A., did you have a suspicion that Mike abused or
caused leg fractures to M.A.’s legs?
A. No.
Scioto App. No. 14CA3674 61
Q. Do you to this day believe that Michael fractured Baby
M.A.’s legs?
A. No.
(Tr. page 458, lines 8-14.) * * *
Q. Okay. Do you believe that Michael whooped or spanked
M.A. in an aggressive manner?
A. No.
(Tr. page 463, lines 5-7.) * * *
Q. Do you believe that he caused these injuries?
A. No, I don’t.
(Tr. page 545, lines 6-7.)
{¶109} Christi also testified about the lack of treatment that M.A.
received for her injuries.
Q. Okay. You said there were no split, [sic] no casts?
A. No, none.
Q. Okay. What about in regards to the bruising or the injuries
on her abdomen?
A. They did nothing.
Q. Okay. Did the [sic] put ointment on them?
A. No.
Scioto App. No. 14CA3674 62
Q. Did they give her any medication that you are aware of?
A. No. They didn’t even send her home with any.
(Tr. page 468, lines 3-12.)
{¶110} Christi further testified about M.A.’s prognosis. The health
care providers said “that it would heal on its own in about two to three
weeks.” (Tr. page 469, lines 3-4.) Christi testified that M.A. is fine.
Q. Okay. How does M.A. appear today?
A. She’s fine. She walks, she talks.
Q. Does she walk as an average child would?
A. Oh yes. She’s all over the place, into everything.
Q. Does she have any permanent disability based on these leg
fractures?
A. Not that I can tell. I’m not a doctor but not that I can tell.
Q. Does she appear as if she walks without discomfort?
***
A. Oh yeah, she has no trouble walking at all.
(Tr. page 471, lines 13-24.)
{¶111} On cross-examination, Christi agreed that she was with the
“kids a hundred percent of the time” when she was not at work. (Tr. page
538, lines 3-6.) However, Christi denied hurting M.A.; (Tr. page 528, lines
Scioto App. No. 14CA3674 63
3-4); and she denied that the other children hurt M.A. (Tr. page 537, lines 8-
9.) Christi also provided no testimony or direct evidence that Michael
Adkins caused the injuries to M.A.
{¶112} A.K. was the defense’s next witness. A.K. is Michael
Adkins’s oldest daughter from a previous relationship. At the time of the
trial, A.K. was 13 years old and a student at Portsmouth West Middle
School. A.K. provided no evidence that Michael Adkins caused the injuries
to M.A.
{¶113} S.A. testified for the defense also. S.A. is the biological
daughter of Christi and adopted daughter of Michael Adkins. S.A. also failed
to provide any evidence that Michael Adkins injured M.A.
Q. Okay. Are you able to say how Baby M.A. got hurt?
A. No.
(Tr. page 562, lines 11-12.)
{¶114} B.A. testified next for the defense. B.A. is also the daughter of
Christi and Michael Adkins. At the time of the trial, B.A. was in the fourth
grade at Portsmouth West Elementary School. B.A. provided testimony
regarding the time when Christi left with Mrs. Butler for their “adult time.”
Q. Okay. Were you around him when he was taking care of
Baby M.A.?
Scioto App. No. 14CA3674 64
A. I was around him the whole time.
Q. Okay. And how do you remember that you were around him
the whole time?
A. Well, there’s a bathroom beside his room which is like
practically in his room. I went in there while he was with M.A.
and there’s a mirror on the bathroom door and it was open and I
could see him through it and I didn’t see him even lay a figure
[sic] on her.
(Tr. page 573, lines 23-25 and page 574, lines 1-7.) B.A. testified that her
father, Michael Adkins, did not hurt M.A.
Q. Okay. Okay. Did you see your dad pull M.A.’s legs to where
he was being mean to her or hurting her in any way?
A. No.
Q. Did you see her—did you see him hit her or pinch her?
A. No.
Q. Okay. Did anything—did anything that your dad did with
M.A. on that day cause you to question his ability to take care
of her?
A. No.
(Tr. page 577, lines 7-16.)
Scioto App. No. 14CA3674 65
{¶115} In addition, the State elicited testimony from B.A. that she
may have been playing too rough with M.A. and that H.A. is a little rough.
Q. Okay. Did you do something too rough with the baby?
A. I never tried to do anything rough with her but if I accidently
[sic] been too rough, I might have accidently [sic] hurt her
while I was playing with her one day.
***
Q. Yeah. You don’t think—do you think your sisters could
have hurt the baby?
A. I don’t know. H.A., she’s a little rough.
Q. Okay.
A. Because usually when she plays with me, she tries to tackle
me.
(Tr. page 586, lines 9-12, 25, and page 587, lines 1-5.) On re-direct, the
defense asked B.A. the following questions:
Q. Okay. Has your parents ever had to tell her to be a little bit
more gentler with the baby, that’s she’s being too rough? [sic]
A. Once.
Q. Okay. And do you--you play with the baby sometimes too,
right?
Scioto App. No. 14CA3674 66
A. Yes.
Q. And you said that you didn’t intentionally do something but
something may have happened accidently, [sic] right?
A. Yes.
(Tr. page 588, lines 9-18.) In sum, B.A. did not provide any evidence that
Michael Adkins injured M.A.
{¶116} H.A. also testified. H.A.’s testimony was brief.
Q. Okay. H.A., do you ever remember seeing your daddy spank
Baby M.A.?
A. He did not.
Q. Okay. Did you—do you remember telling anybody that he
spanked—that he spanked Baby M.A.?
A. No.
(Tr. page 592, lines 6-11.) Therefore, H.A. also failed to present any
evidence that Michael Adkins harmed M.A.
{¶117} The next witness called by the defense was Tim Berry. Mr.
Berry was a neighbor and friend of Michael Adkins. Tim testified that
Michael has “never showed any violence or anything toward the children.”
(Tr. page 594, line 16.) Mr. Berry provided no evidence that Michael Adkins
injured M.A.
Scioto App. No. 14CA3674 67
{¶118} Betty Cattee was the next witness for the defense. Ms. Cattee
is Michael Adkins’s aunt. Ms. Cattee testified about how M.A. was handled
at the hospital when she was born.
Q. And what were you able to observe?
A. I was upset. I’m sorry, but I was totally upset because this
baby should not have been bathed the way she was bathed. The
nurse—I mean, you know, I got grandkids of my own but this
nurse was holding this baby up by her ankle and instead of
turning her to wash her this way, she lifted her up by her ankles,
both ankles, both times and she washed her like this but she was
rubbing her so hard her little flesh was red.
(Tr. page 605, lines 4-11.) Although the State cross-examined Ms. Cattee by
questioning her about the experts’ various opinions that differed from hers,
Ms. Cattee still provided no evidence that Michael Adkins injured M.A.
{¶119} Carolyn Moore and Nancy Fodge also testified for the
defense. Ms. Moore is also Michael Adkins’s aunt. Nancy Fodge knew
Michael Adkins through Christi. Neither Carolyn Moore nor Nancy Fodge
provided any testimony or evidence that Michael Adkins harmed M.A.
Scioto App. No. 14CA3674 68
{¶120} Larry Adkins, Michael Adkins’s father, also testified for the
defense. Mr. Adkins testified about his observations and opinions about
Michael Adkins as a father.
Q. Anything throughout the years, and you knowing him best as
a parent I would hope, would cause you to be of any concern
within any part of your body that Michael caused M.A.’s
injuries?
A. No.
(Tr. page 642, lines 23-25 and page 643, lines 1-2.) Like the rest of the
witnesses, Mr. Adkins failed to provide any evidence that Michael Adkins
injured M.A.
{¶121} Michael Adkins was the last witness to testify in the case.
Even though he was questioned in detail by both the defense counsel and the
State, Michael Adkins did not provide any testimony that he injured M.A.
The defense rested; and the State did not call any rebuttal witnesses.
{¶122} The lead opinion finds that the jury’s verdict was not against
the manifest weight of the evidence and that sufficient evidence supported
the conviction. I disagree with the judgment of the lead opinion.
{¶123} In State v. Miley, 114 Ohio App.3d 738, 684 N.E.2d 102 (4th
Dist.1996), this Court reversed the conviction of Todd Miley. Todd Miley
Scioto App. No. 14CA3674 69
had been convicted of felony child endangerment. Todd Miley and Tammy
Detty were the parents of J.M. J.M. was only a newborn when she suffered
from serious internal injuries. The pertinent facts that this Court recited are
as follows:
* * * Doctors discovered that Jessica’s skull, right and
left tibias, right femur, left humerus, ribs five and seven, pelvis,
and distal right radius were all fractured. Jessica also suffered
from subdural effusions, retinal hemorrhaging, and
interhemispheric blood. The doctors were unable to determine
exactly when Jessica suffered these injuries.
***
The state’s case consisted of testimony at trial from four
doctors and a police detective as well as medical exhibits. The
doctors uniformly agreed that Jessica suffered her injuries from
intentional trauma: blows to the head, shaking, twisting, and
pulling. The doctors rejected brittle-bone disease as an
explanation for J.M.’s injuries. The doctors opined that J.M.
had been injured by child abuse.
Scioto App. No. 14CA3674 70
Detective Hayburn testified that Detty told him that
Miley and she were the only ones who had access to and cared
for J.M. * * *
Id. at 741.
{¶124} This Court analyzed the sufficiency of the evidence in Miley.
In doing so, the Court determined that the State relied upon circumstantial
evidence to make its case. Id. at 744. This Court acknowledged that
“[c]ircumstantial evidence inherently possesses the same value as direct
evidence.” Id., citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 494(1991), at paragraph one of the syllabus (superseded by statute and
constitutional amendment on other grounds). This Court held that the State’s
circumstantial evidence did not prove that Miley was the one who abused
J.M. beyond a reasonable doubt. Id. The Court stated:
* * * The state’s circumstantial evidence indicates that Miley
and Detty were the only ones with access to [J.M.] and that
[J.M.] was abused. However, this does not prove beyond a
reasonable doubt that Miley abused [J.M.] Rather, it leads to the
possibility that either Miley or Detty abused [J.M.]. Reasonable
doubt is present when jurors cannot say they are firmly
convinced of the truth of the charge. R.C. 2901.05(D); State v.
Scioto App. No. 14CA3674 71
Frazier (1995), 73 Ohio St.3d 323, 330, 652 N.E.2d 1000,
1008. A fifty percent possibility does not satisfy the standard of
beyond a reasonable doubt. Therefore, reasonable minds could
only reach the conclusion that the state did not prove beyond a
reasonable doubt that Miley abused [J.M.].
Id.{¶125} The Miley case is strikingly similar to this case in that both
cases relied upon the fact that the fathers were caretakers of the minor
children. Like Todd Miley, Michael Adkins was not the only caretaker of
M.A. The State did not provide evidence that Michael Adkins was the only
person who provided care for M.A. As shown in the recitation of the facts
above, Mrs. Butler testified that Christi worked anywhere from 5 hours per
day for 2 to 3 days per week. Other than those 10 to 15 hours per week,
Christi was the primary caretaker of M.A. Detective Malone, Dr. Thackeray,
and Levi Swords all testified that both Christi and Michael Adkins were
caregivers for M.A. Christi also agreed that she was with the “kids a hundred
percent of the time” when she was not at work. (Tr. page 538, lines 3-6.)
{¶126} Although the State’s theory was that the injuries were
sustained while Christi was gone during her “adult time”, the experts, Dr.
Smith and Dr. Thackeray, testified that the injuries could have been
Scioto App. No. 14CA3674 72
sustained 7 to 14 days and 7 to 10 days prior to August 3, 2013, respectively.
In addition, Dr. Cheatham testified that during his examination, he “did not
see any obvious deformity, swelling, bruising.” (Tr. page 72, line 24 and
page 73, line 1.) Dr. Cheatham also testified that M.A. did not exhibit any
signs of disturbance or pain. (Tr. page 73, lines 3-5.) Therefore, the injuries
are quite likely to have occurred at a time different than on August 3, 2013
as the State propounds.
{¶127} As this Court stated in Miley, “[a] fifty percent possibility
does not satisfy the standard of beyond a reasonable doubt.” Miley, supra, at
744. Therefore, reasonable minds could only reach the conclusion that the
State did not prove beyond a reasonable doubt that Michael Adkins abused
M.A. The analysis of this dissenting opinion is not to minimize the injuries
that M.A. has suffered. However, in the absence of sufficient evidence as to
the critical issue of the causation and perpetrator of M.A.’s injuries, and in
light of the other discrepancies in the circumstantial evidence, reasonable
doubt is raised.
{¶128} I would sustain the first assignment of error with respect to
the sufficiency of the evidence argument and find the manifest weight
argument moot. As a result, I would reverse the trial court’s judgment and
Scioto App. No. 14CA3674 73
remand the case to the trial court to vacate the conviction of child
endangerment and to discharge Michael Adkins.
Scioto App. No. 14CA3674 74
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs with Concurring Opinion.
Hoover, J.: Dissents with Dissenting Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.