State v. Redd , 2014 Ohio 491 ( 2014 )

[Cite as State v. Redd, 2014-Ohio-491.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99624
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARNELL REDD, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-541880
BEFORE: S. Gallagher, J., Boyle, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: February 13, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: Jeffrey Gamso
Erika B. Cunliffe
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John R. Kosko
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Darnell Redd, Jr., appeals the imposition of consecutive sentences
by the trial court upon his resentencing. For the reasons stated herein, we affirm.
{¶2} In September 2010, Redd was indicted on 12 counts arising out of allegations
that Redd shook his nearly two-month-old son and grabbed or pulled the baby by his legs.
During the course of proceedings, the trial court engaged in a Daubert hearing regarding
abusive head trauma, which was formerly known as shaken baby syndrome.
{¶3} Testimony was presented from the physicians who treated the victim.
Dr. Richard Daryl Steiner diagnosed the eight-week-old as having bilateral retinal
hemorrhages, acute subdural hemorrhage, hypoxic ischemic brain injury, and healing
bilateral tibial corner fractures. He opined that the tremendous head injuries were the
result of nonaccidental, nonimpact, abusive head trauma involving shaking or rotational
acceleration, deceleration. He further described the leg fractures as metaphyseal
fractures that were healing and had occurred weeks early. He stated that such fractures
result when there is a shearing injury across the growth plate, which is seen when a baby
is grasped by the leg and snatched or shaken around using the leg as a handle. His
findings indicated that the victim had been the victim of physical abuse on multiple
occasions over the previous two to three weeks. Dr. Lolita M. McDavid, who also
examined the victim, opined that the victim suffered abusive head trauma that was
consistent with a shake mechanism. She also diagnosed multiple leg fractures with
callus formation, indicating they were healing. The defendant’s medical expert,
Dr. Harold E. Buttram, testified to his belief that injuries cannot be caused to an infant’s
head by a shaking mechanism alone. He expressed that shaken baby syndrome has been
a subject of debate and that he did not believe the syndrome was valid. He testified to
other potential causes of the injuries. He conceded on cross-examination that the
majority of the medical community, in particular pediatrics, does give acceptance to
shaken baby syndrome and/or abusive head trauma in infants.
{¶4} Ultimately, Redd entered a guilty plea to two counts of endangering children,
third-degree felonies, in violation of R.C. 2919.22(A), and the remaining counts were
nolled. The two counts related to separate incidents, one involving the victim’s broken
legs and the other involving head trauma to the victim.
{¶5} At the time of Redd’s original sentencing hearing, the victim was 19 months
old. He did not walk, did not speak any words, was eating through a feeding tube, and
had certain neurological disabilities. Nonetheless, he had been improving since the
previous year and was progressing “slowly but surely.” The trial court imposed
consecutive sentences of 30 months each to be followed by a two-year period of
community control.
{¶6} On appeal in State v. Redd, 8th Dist. Cuyahoga No. 98064, 2012-Ohio-5417,
this court found that the original sentence was contrary to law because the trial court
could not sentence a defendant to community control and prison for the same offense and
because the trial court had not made all of the required findings to impose consecutive
sentences. The court did not rule out the possibility for consecutive sentences but, rather,
indicated that from the record before it,
the trial court will be hard pressed to make the required findings to impose
consecutive sentences at the new sentencing hearing. According to the
[presentence investigation report] and Redd’s sentencing memorandum,
Redd has no prior adult or juvenile criminal history and was rated the
lowest possible risk of recidivism.
Id. at ¶ 18. The court affirmed Redd’s convictions, vacated his sentence, and remanded
the case for a new sentencing hearing. Id. at ¶ 21.
{¶7} Upon remand, the trial court held a sentencing hearing on February 22, 2012.
Defense counsel requested that the court impose a community control sanction.
Defense counsel indicated that Redd had no prior juvenile or adult criminal history
record, that he was developmentally disabled with a full scale IQ of 66, that he had
worked in the community throughout his teenage and adult years, that he was married
with two children but had divorced since his incarceration, that the probation department
found Redd to be in the lowest risk of recidivism, that he had complied with his
court-supervised release program during the pendency of his case for a period of almost
one year, that he had reported as directed and submitted all negative urine tests, and that
he had exemplary behavior during his then 18 months of incarceration. Defense counsel
also referenced letters of support written by Redd’s family members and friends, which
were attached to Redd’s sentencing memorandum. Defense counsel further requested
that if community control sanctions were not imposed, that the sentences be concurrent.
Redd addressed the court and expressed his remorse. Redd’s aunt addressed the court in
his favor.
{¶8} The state responded by noting the significance of the injuries to the child and
that Redd had admitted to two incidents.
{¶9} The court considered the record, the oral statements made at the hearing as
well as the original sentencing hearing, the presentence investigation report, the
sentencing memorandum submitted by defense counsel, the court-supervised release
report, and the purposes and principles of sentencing under R.C. 2929.11 and 2929.12.
The court recognized that the victim was a small child, or baby, who suffered very serious
and significant injuries and that there were two separate offenses of child endangering.
One was associated with evidence of fractures to the victim’s legs. The other was
associated with an incident where the victim was taken to the hospital with severe head
trauma.
{¶10} The court recognized the offender’s relationship to the victim, as the father
of the child, facilitated the offense. The court considered defense counsel’s argument
concerning Redd’s lack of criminal history and low risk for recidivism, but found those
factors did not take away from the significance of the offenses and the serious injuries
suffered by the small child.
{¶11} The court found that a prison sentence is consistent with the purposes and
principles of sentencing under R.C. 2929.11 and that the defendant was not amenable to a
community control sanction. The court imposed a sentence of 30 months in prison on
each count, to be served consecutively. In imposing consecutive sentences, the trial
court made each of the required findings. Additionally, the court advised Redd that upon
his release from prison, he would be subject to three years of discretionary postrelease
control. Credit was granted for time served.
{¶12} The state requested that the court elaborate upon the injuries to the victim.
The court indicated that, prior to imposition of the original sentence, it had engaged in a
Daubert hearing regarding shaken baby syndrome and that the information gleaned at the
Daubert hearing made very clear to the court the significance of the injuries to the child.
The court indicated that there was evidence and testimony concerning head injuries to the
child, and at that time, the child exhibited other injuries, including bleeding on the brain,
trouble eating resulting in the need for a stomach tube, and a broken tibia. The court
stated as follows:
[T]he Daubert hearing focused on testimony from the experts, the two
doctors that had actually examined this child and gave their opinions, and
also * * * from the doctor retained by the defense * * * to try to undermine
the shaken baby syndrome.
So the significance of these injuries in terms of the brain and head
trauma and the developmental problems resulting from that shaken baby
syndrome, that head trauma were very significant in [terms] of his
incapacity, being on a feeding tube. He couldn’t see at that point.
And along with that, the evidence that was shown to the Court, or the
testimony by the doctors, that there was evidence of a prior indication with
the broken tibia. That’s why there was a charge of child endangering, and
he plead guilty to that because that was a separate and distinct injury to this
child that preceded the shaken baby head injuries that resulted. * * *
***
Yes. That was the basis for the consecutive sentences imposed in
this case, given the nature and extent of the injuries to this child on two
separate occasions of about a month or so apart * * *.
Again, my duty as the Judge is to protect the public and to make sure
that the seriousness of the defendant’s conduct and the injuries to this child
is not demeaned by the sentence that’s imposed.
{¶13} Defense counsel objected to the imposition of consecutive sentences.
While the defense did not dispute injuries to the victim, it disputed the state’s
characterization of the injuries. Defense counsel argued that the medical report and
doctors’ testimony established that the broken leg entailed nondisplaced hairline fractures.
Defense counsel further indicated that the victim, who was approaching the age of three
years, was doing well: he could see and hear, and he was attempting to talk. Defense
counsel further asserted that while the victim was delayed, so too is his father, and there
was evidence that the victim was delayed at birth.
{¶14} Redd timely filed this appeal. In his sole assignment of error, Redd claims
the trial court erred by imposing consecutive sentences because the findings were not
supported by and/or were contradicted by the record.
{¶15} Under R.C. 2953.08(G)(2), an appellate court may overturn the imposition
of consecutive sentences if (1) the sentence is “otherwise contrary to law,” or (2) the
appellate court clearly and convincingly finds that the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4). State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 11. Under current R.C. 2929.14(C)(4), when
imposing consecutive sentences, the trial court must first find that the sentence is
“necessary to protect the public from future crime or to punish the offender.” Next, the
trial court must find that consecutive sentences are “not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.”
Finally, the trial court must find the existence of one of the three statutory factors set forth
in R.C. 2929.14(C)(4)(a)-(c). In this case, the trial court heard a considerable amount of
evidence, gave proper consideration to the record, and articulated the appropriate
findings. The trial court stated as follows:
The Court is requiring the defendant to serve these terms consecutively,
because the consecutive sentence is necessary to protect the public from
future crime, or to punish the offender, and these consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct, and to the
danger the offender poses to the public.
And these two or multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by these two multiple
offenses so committed was so great or unusual that no single prison term for
any of the offenses as any part of any of the courses of conduct adequately
reflect the seriousness of the offender’s conduct.
Again, this Court has the duty to protect the public and to not impose
this consecutive sentence in this Court’s opinion would demean the
seriousness of the conduct and the injuries to this small child.
{¶16} Redd does not dispute that the trial court made the necessary findings when
imposing consecutive sentences. Instead, he claims that the trial court’s findings are not
supported by the record.
{¶17} Redd argues that the record does not show that the injuries the victim
suffered were as severe as the court believed or that they were solely caused by Redd’s
actions. Redd focuses upon the nature of the leg fractures as nondisplaced hairline
fractures of soft tissue. He also claims that the record does not support the conclusion
that the head injuries were the cause of the victim’s developmental problems or that the
problems were intractable. He argues that the victim had demonstrated improvement in
overcoming the injuries and that there was a family history of developmental and medical
difficulties.
{¶18} While Redd references evidence that was favorable to him, the record also
contains evidence showing significant head trauma to the victim, as well as leg injuries
that arose from a separate incident. The examining doctors opined as to the
nonaccidental nature of the injuries, found significant head trauma was caused to the
victim, and found that the leg fractures resulted from a shearing injury across the growth
plate that is seen when handling an infant by its legs. While there was evidence of
improvement by the victim, the trial court properly focused upon the seriousness of the
offender’s conduct that resulted in serious injuries to the young child. The record
supports the trial court’s determinations in this regard.
{¶19} Redd also argues that the record contradicts the finding that consecutive
sentences were necessary to protect the public. Redd claims he was overwhelmed with
the rigors of caring for two young children and briefly lost his composure. He further
references his lack of a prior criminal history, low risk of recidivism, and exemplary
criminal record. The trial court recognized these factors. However, the court could not
ignore the evidence showing that these were traumatic, nonaccidental injuries and that
more than one incident occurred. Also, the injuries were caused in his capacity as the
parent and caretaker of the young victim. Although Redd is now divorced, he
nonetheless remains the parent of two young children who are entitled to be given
consideration for protection from future crime. The record supports the trial court’s
findings that consecutive sentences are necessary to protect the public from future crime
or to punish the offender, and are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.
{¶20} Additionally, the record supports the finding that the two separate offenses
were committed as part of one or more courses of conduct and that the harm caused
thereby was so great or unusual that no single prison term adequately reflects the
seriousness of the offender’s conduct. Indeed, the record reflects the serious nature of
the injuries inflicted, the young age of the victim who was the child of the offender, a
pattern of abuse, and that multiple incidents occurred.
{¶21} Upon our review, we find that the trial court fully met the requirements of
the applicable law, including the requirements of R.C. 2929.14. We are unable to clearly
and convincingly find that the record does not support the sentencing court’s findings
under R.C. 2929.14(C)(4).
{¶22} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
KENNETH A. ROCCO, J., CONCUR