State v. Westley ( 2017 )

[Cite as State v. Westley, 2017-Ohio-7717.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104847
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAZMINE WESTLEY
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND VACATED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-592508-B
BEFORE: E.A. Gallagher, P.J., Stewart, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: September 21, 2017
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Khalilah A. Lawson
Assistant County Prosecutor
Justice Center, 9th Floor
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Jazmine Westley appeals her conviction for
endangering children in the Cuyahoga County Court of Common Pleas. For the
following reasons, we reverse and vacate.
Facts and Procedural Background
{¶2} Westley was charged with two counts of endangering children and one count
of permitting child abuse stemming from a December 27, 2014 incident in which she
brought her ten-week old infant, D.H., to Fairview Hospital for treatment of flu-like
symptoms. Chest x-rays revealed multiple healing rib fractures and a healing fracture of
D.H.’s left femur. D.H. was transferred, at appellant-mother’s request, to Rainbow
Babies and Children’s Hospital for further treatment. Further examination at Rainbow
confirmed the presence of healing fractures to D.H.’s ribs and femur.
{¶3} At trial, the state alleged that Westley had knowledge that co-defendant,
Dionte Hamilton, had been physically abusive to Westley and Westley’s older children
and, despite that knowledge, recklessly entrusted D.H. to the care of Hamilton. The
state introduced the testimony of Dr. Lolita McDavid, the medical director of child
advocacy and protection at Rainbow. McDavid was qualified as an expert in child abuse
pediatrics at trial and evaluated D.H. during her admission to Rainbow. McDavid
opined that the injuries to D.H. were nonaccidental in nature, explaining that posterior rib
fractures in infants are considered high specificity fractures for abuse in pediatric
radiology. McDavid stated that babies should not have any fractures and opined that she
didn’t believe D.H.’s injuries came from sibling play because siblings “don’t break
things” and “rib fractures in particular are force.” McDavid testified that posterior rib
fractures are seen with people who squeeze babies, often with children who are also
shaken.
{¶4} The jury returned a verdict of guilty on all three counts against Westley.
The trial court merged the three counts as allied offenses and the state elected to proceed
to sentencing on the first count of endangering children. The trial court imposed a prison
term of two years and later, granted judicial release.
Law and Analysis
{¶5} Westley argues that her convictions are against the manifest weight of the
evidence, that the trial court erred in improperly admitting other acts evidence in violation
of Evid.R. 404(B) and that her due process rights were violated by the prosecutor
deliberately misleading the jury.
{¶6} We need not reach Westley’s assignments of error because we find plain error
on the face of the record in that her conviction, as well as the guilty findings pertaining to
the merged counts, were not supported by sufficient evidence. The record reflects that
Dr. McDavid failed to offer any testimony to establish that her ultimate opinion, that the
injuries suffered by D.H. were the result of nonaccidental child abuse, was offered to a
reasonable degree of medical or scientific certainty.
{¶7} Ordinarily, expert opinion testimony is only competent if it is held to a
reasonable degree of medical certainty. State v. Benner, 40 Ohio St. 3d 301, 533 N.E.2d
701 (1988), citing State v. Holt, 17 Ohio St. 2d 81, 246 N.E.2d 365 (1969), syllabus. In
Benner, “reasonable certainty” was defined to mean “probability.” Id. at 313. In Stinson
v. England, 69 Ohio St.3d, 451 633 N.E.2d 532 (1994), the Ohio Supreme Court held that
expert medical opinion testimony must be excluded if it is not stated as a probability— an
event or result that is more likely than not to occur.
{¶8} However, in State v. Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, 23
N.E.3d 1096, the court clarified that “expert witnesses in criminal cases can testify in
terms of possibility rather than in terms of a reasonable scientific certainty or probability.”
Id. at ¶ 129, citing State v. D’Ambrosio, 67 Ohio St. 3d 185, 191, 1993-Ohio-170, 616
N.E.2d 909. The court explained in Thompson that, “[i]n the criminal context, questions
about certainty go not to admissibility but to sufficiency of the evidence; they are matters
of weight for the jury.” Id. at ¶ 129, quoting State v. Lang, 129 Ohio St. 3d 512,
2011-Ohio-4215, 954 N.E.2d 596, ¶ 77.
{¶9} In this instance, the state failed to elicit testimony from Dr. McDavid
establishing that her opinions were based even on possibilities much less reasonable
certainty or probability. Even assuming that we could infer from the circumstances that
Dr. McDavid’s testimony satisfied the D’Ambrosio “possibility” standard for criminal
cases, such a conclusion would merely allow for the admissibility of the testimony.
However, Dr. McDavid’s opinions were the sole source of evidence to establish that the
injuries suffered by D.H. were caused by nonaccidental child abuse. Without more, the
state failed to meet its burden in offering sufficient evidence to establish that reckless
conduct by Westley resulted in harm to D.H. A necessary predicate to the state’s case
against Westley was the theory that Hamilton abused D.H. and, therefore, Westley was
reckless in causing D.H.’s injuries because she should have known that Hamiton was a
physical threat to D.H. While Dr. McDavid’s testimony appears to be admissible
pursuant to D’Ambrosio and Thompson, pursuant to the same authority an opinion based
on mere possibility cannot unilaterally satisfy the state’s burden to offer sufficient
evidence to demonstrate an essential element of an offense beyond a reasonable doubt.
{¶10} Pursuant to Thompson, questions about certainty are relevant to the question
of the sufficiency of the evidence. Where, as here, the state failed to establish such
certainty in an expert’s testimony and that testimony was the sole evidence to establish an
element of an offense, the conviction cannot stand.
{¶11} We find Westley’s remaining assignments of error to be moot.
{¶12} The judgment of the trial court is reversed. Westley’s convictions are hereby
vacated.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., and
ANITA LASTER MAYS, J., CONCUR