State v. Starbird , 2022 Ohio 3518 ( 2022 )

[Cite as State v. Starbird, 2022-Ohio-3518.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-21-08
PLAINTIFF-APPELLEE,
v.
MARK MATTHEW STARBIRD, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20202146
Judgment Affirmed
Date of Decision: October 3, 2022
APPEARANCES:
Howard A. Elliott for Appellant
McKenzie J. Klinger for Appellee
Case No. 6-21-08
WILLAMOWSKI, J.
{¶1} Defendant-appellant Mark M. Starbird (“Starbird”) brings this appeal
from the judgment of the Court of Common Pleas of Hardin County finding him
guilty of endangering children. Starbird alleges on appeal that the trial court erred
by admitting the testimony of a witness, that the verdict was based upon an inference
upon an inference, that the conviction is not supported by sufficient evidence, and
that the conviction is against the manifest weight of the evidence. For the reasons
set forth below, the judgment is affirmed.
{¶2} On July 20, 2020, a five-week-old infant, M.S., was taken to the
hospital with injuries that allegedly were caused by a fall. Starbird claimed that
while bathing M.S., he left him in the baby tub on the bathroom counter while he
went to get a clean diaper. Starbird then heard a thump in the bathroom and went
back to find the tub and M.S. on the floor, with M.S. crying. Starbird alleged that
this was the cause of M.S.’s injuries. At the hospital, M.S. was diagnosed with a
broken leg, two broken ribs, and a skull fracture.
{¶3} On December 14, 2020, the Hardin County Grand Jury indicted Starbird
on one count of Endangering Children in violation of R.C. 2919.22(B)(1), (E)(2)(d),
a felony of the second degree. A jury trial was held on May 18-19, 2021. The
following testimony was presented at the trial.
{¶4} Chief Michael Harnishfeger (“Harnishfeger”) of the Ada Police
Department, testified that he spoke with Starbird on July 21, 2020, after children’s
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services referred the case to the police. Tr. 83-84. Starbird told Harnishfeger that
he was out of the room for a couple of seconds when “he heard a thud and when he
went back into the bathroom, he found the baby on the floor and he found the tub
on the floor as well.” Tr. 86. Starbird told Harnishfeger that he picked up M.S. and,
realizing M.S. was hurt, got him ready to go to the hospital. Tr. 86. Starbird
indicated that when M.S. fell, his wife (“K.S.”) was not home, but she arrived home
as he was picking up the baby. Tr. 90. Starbird wrote out a statement about what
happened, which was identified as Exhibit 3. Tr 91-92. Harnishfeger took multiple
pictures of the scene, including how the tub was placed on the counter, as
demonstrated by Starbird, how M.S. was positioned in the tub (using a teddy bear
as M.S.), and the position of the tub and the baby after the alleged fall. Tr. 93-101.
Starbird told Harnishfeger that the tub was lying on its side on the floor, with the
back against the cabinet and M.S. was lying on the floor away from the tub. Tr.
101. Starbird told him that he believed M.S.’ kicking caused the tub to shift off the
counter and fall. Tr. 105.
{¶5} After speaking with Starbird, Harnishfeger went to the hospital where
he took photos of M.S.’ injuries. Tr. 107. At that time, the only obvious injury to
M.S. was the broken leg, which was splinted. Tr. 109-110. There were no bruises
or signs of being gripped hard on M.S. Tr. 110. Harnishfeger also spoke with K.S.
at the hospital. Tr. 107-111.
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{¶6} On July 22, 2020, Starbird came to the police department for another
interview. Prior to Starbird picking up M.S., there was no indication that he was
injured. Tr. 115. Starbird also admitted that he actually had left M.S. in the tub
alone for a couple of minutes rather than the couple of seconds he originally stated.
Tr. 117. Starbird never indicated that anyone else could have harmed M.S. Tr. 120.
{¶7} On cross-examination Harnishfeger stated that the only inconsistency
in the times he spoke with Starbird was the length of time Starbird was out of the
room. Tr. 130. Harnishfeger also testified that he saw no bruising or handprints on
M.S. when he saw him at the hospital. Tr. 131. After speaking with Starbird and
viewing M.S., Harnishfeger turned the investigation over to Job and Family
Services and forwarded it to the prosecutor for their review. Tr. 131. Harnishfeger
did not charge Starbird with anything at that time.
{¶8} Cookee Shick (“Shick”) testified that she works as an investigator for
Job and Family Services. Tr. 135. Shick went with Harnishfeger to Starbird’s home
to investigate the injuries to M.S. Tr. 136. Shick testified that she had only
interviewed Starbird and K.S. Tr. 140. When Starbird placed the tub on the counter,
M.S.’s feet would not have been toward the ledge. Tr. 149. Starbird told Shick the
same narrative told to Harnishfeger. Tr. 151-52. Starbird did not know what
happened, but his theory was that M.S. must have pushed off the ledge above the
tub and caused it to fall. Tr. 152. M.S. weighed nine pounds at the time. Tr. 153.
M.S. would have had to push his own weight plus the weight of the tub and water
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off the counter for it to fall to the floor. Tr. 153. Starbird never mentioned any
water on the floor, any crying by M.S., or any indication that M.S.’ leg was injured.
Tr. 157.
{¶9} Shick identified Exhibit 34 as M.S.’ medical records from St. Rita’s.
Tr. 162. The medical records indicate that K.S. told the emergency room personnel
that M.S. was being bathed in the tub in the kitchen sink and that he fell on his leg,
behind, and then the back of his head. Tr. 164. K.S. also indicated that Starbird had
stated he tried to catch M.S. Tr. 164. The records also show that Starbird told a
nurse M.S. had fallen when he was out of the room. Tr. 166. The hospital records
indicate Starbird informed them he had consoled M.S. and that M.S.’ leg did not
look right. Tr. 166-67. Starbird also told the hospital personnel that he did not know
if M.S. had struck his head. Tr. 167. Starbird claimed that he did not bring M.S. to
the hospital immediately because he did not drive. Tr. 168. M.S. stayed in the
hospital for two days and K.S. was there the entire time. Tr. 168-69. Starbird was
not there because he drove home. Tr. 169. Starbird did not notify K.S. of the
incident until she was getting off work in the afternoon; several hours after M.S.
allegedly fell. Tr. 172.
{¶10} On cross-examination, Shick reread the notes from the hospital
records that reported what K.S. had told the hospital personnel. Tr. 177. Shick
admitted that the later statements were those given by Starbird himself. Tr. 177.
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Starbird’s statements to the nurse at the hospital were consistent with what he told
Shick and Harnishfeger. Tr. 178.
{¶11} K.S. testified that on July 20, 2020, when she dropped M.S. at the
babysitter, he appeared fine. Tr. 189-90. M.S. was born with hip dysplasia and was
being treated for it. Tr. 191. The issue was with his left foot, the right was fine. Tr.
193-94. K.S. received a text message from Starbird saying they should not put the
tub on the counter anymore as she was leaving work. Tr. 196. The text message
did not indicate there was any kind of injuries or an emergency with M.S. Tr. 198.
K.S. indicated that the hospital records were incorrect when it stated M.S. was born
via a vaginal birth because she had an emergency c-section. Tr. 197. K.S. testified
that Starbird had his own vehicle and drove himself to work regularly. Tr. 199-200.
K.S. received many text messages from Starbird on July 20, 2020, indicating that
he was tired and needed to sleep. Tr. 204-206. K.S. testified that when Starbird is
tired, he is “irritable.” Tr. 206.
{¶12} When questioned about M.S. and his personality, K.S. testified that on
the day of the incident, M.S. was able to hold up his head and rock side to side, but
not fully roll over. Tr. 194. M.S. did not like being changed and would squirm and
try to move away from you. Tr. 211. M.S. also did not like baths. Tr. 211. Usually
K.S. and Starbird bathed M.S. together. Tr. 212. M.S. was also colicky. Tr. 212.
{¶13} When K.S. got home from work, Starbird was waiting with M.S. Tr.
215. Starbird told K.S. that M.S. had fallen and they should go to the hospital. Tr.
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215. M.S. was crying. Tr. 216. K.S. then took M.S. and he started screaming when
she touched his leg. Tr. 217-18. While driving to the hospital, K.S. called her friend
and told her what happened. Tr. 221. Starbird was sitting in the backseat by M.S.
and did not contradict the story at any time. Tr. 221-22.
{¶14} At the hospital, Starbird was concerned and stood right beside K.S.
while she spoke to the nurse. Tr. 22. K.S. reviewed the hospital intake records and
noted that there are mistakes in it. Tr. 225. However, K.S. testified that she wasn’t
really paying attention to the background questions they asked so does not know if
she answered wrong or they wrote it wrong. Tr. 225-26. The only thing she was
sure of was that M.S. was two weeks premature, not full term, and she had a c-
section, not a vaginal birth. Tr. 226. When she told the nurse what happened,
Starbird was only a foot or so away and did not correct her. Tr. 226-27. When the
medical staff took M.S. to the exam room, they allowed K.S. to go with them, but
told Starbird he had to wait in the car. Tr. 227. While they took M.S. to x-ray, the
nurses asked K.S. questions to which she did not know the answers, so she guessed.
Tr. 228. Eventually the nurse told her there was a small break in the bone in his leg.
Tr. 228. That was all she was told until Child Protective Services (“CPS”) told her
M.S. had a stress fracture in his leg and a broken rib. Tr. 230. No one told her there
were any other injuries until the detective told her at a later date. Tr. 231.
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{¶15} K.S. stayed with M.S. at the hospital for three days.1 Tr. 231. Starbird
stayed for a while, but left to go to work. Tr. 231. Starbird drove home, even though
he does not have a driver’s license. Tr. 232. K.S. testified that Starbird did not seek
any medical treatment until she arrived home from work. Tr. 233. K.S. admitted
that she personally did not know what happened because she was at work when M.S.
was injured. Tr. 236.
{¶16} On cross-examination K.S. testified that the nurse who wrote the
medical history did so in the examination room and Starbird was not present at that
time to correct any errors in the background she provided. Tr. 242. K.S. also
testified that Starbird’s vehicle had mechanical issues and was not reliable. Tr. 243.
Starbird would only take M.S. in his truck when picking M.S. up from the babysitter
or before K.S. got her vehicle. Tr. 243-44. K.S. testified that Starbird treated M.S.
very well, though Starbird would get frustrated with M.S. when Starbird was tired.
Tr. 244-45. When Starbird became frustrated, he would walk away. Tr. 245. K.S.
admitted that Starbird never told her he tried to catch M.S. when M.S. fell. Tr. 245-
46. K.S. just assumed he was present and tried to catch him because that is what
she would have done. Tr. 245. While K.S. was in the emergency room with M.S.,
Starbird had to wait in the car. Tr. 251. They communicated by phone until K.S.’
phone died. Tr. 252.
1
This Court notes that earlier testimony was that M.S. was in the hospital for two days.
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{¶17} Brianna Budwit (“Budwit”) testified that she babysat for M.S. for
three days. Tr. 280. K.S. dropped M.S. off with his diaper bag and Starbird picked
him up a couple hours later. Tr. 281-283. On July 20, 2020, K.S. dropped M.S. off
with Budwit like normal. Tr. 286. M.S. was happy and had no sign of injury. Tr.
286. The next morning K.S. texted Budwit that M.S. had fallen while Starbird gave
him a bath and was hurt. Tr. 289-90. In Budwit’s opinion, M.S. could not have
applied enough pressure to shift the tub off the counter. Tr. 294.
{¶18} Christina Markward (“Markward”) testified that she was friends with
Starbird and K.S. Tr. 299. On July 20, 2020, Markward was working with K.S.
and was speaking to K.S. when K.S. started getting multiple text messages. Tr. 300.
K.S. looked at the messages and said she had to go. Tr. 301. Later, K.S. called
Markward and stated that K.S. and Starbird were taking M.S. to the hospital. K.S.
told Markward that Starbird was bathing M.S. and the tub was placed on the
bathroom counter. Tr. 302. While Starbird was getting a diaper, the tub fell off the
counter with M.S. in it. Tr. 302. Job and Family Services placed M.S. with
Markward a month or two after the incident and she had him for a week or two. Tr.
304-305. During that period, M.S. was not able to hold his own head up without
support, roll over, or push up his own weight. Tr. 305-306. The police came to her
home when she had M.S. and asked how she had obtained “custody” of the baby
bathtub. Tr. 308. Markward testified the bathtub was provided by K.S. when M.S.
was staying with Markward. Tr. 308. Markward testified that she picked the tub
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up from K.S. and Starbird and at that time, it was placed on a shelf in a shed. Tr.
309. K.S. told Markward to throw it away. Tr. 309. The police took the bathtub
from Markward. Tr. 310. Markward also testified that Starbird had previously lived
with her. Tr. 310. If Starbird was woken from his sleep, he “was very cranky.” Tr.
312.
{¶19} On cross-examination, Markward testified that when K.S. called her
on the way to the hospital, M.S. was crying and K.S. was upset. Tr. 313. Markward
also testified that when she spoke with Starbird about the incident, the story Starbird
told her about what happened was similar to what K.S. had told her. Tr. 314.
Markward came to get the bathtub because she asked K.S. for it and she used it to
bathe M.S. when M.S. was placed with Markward. Tr. 315. According to
Markward, K.S. told Markward to throw the bathtub away when she was done using
it. Tr. 316.
{¶20} Dr. Derek Davis (“Davis”) testified that he was the physician who
treated M.S. in the emergency room. Tr. 321. The history he reviewed was provided
by the triage notes of the nurse and the statements provided by K.S. Tr. 323. K.S.
originally reported that Starbird was in the room and attempted to catch M.S. when
he fell. Tr. 323. According to K.S., M.S. fell on his leg and hip before hitting the
back of his head. Tr. 323. Later his nurse reported that Starbird told her he was not
in the room, that he had left the room to retrieve something and M.S. fell from a
height of two to three feet. Tr. 324. Davis ordered x-rays of M.S.’ leg and hip and
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a CT scan of his head. Tr. 325. Davis also ordered a chest x-ray. Tr. 325. The leg
x-ray showed a displaced femur fracture. Tr. 326. The chest x-ray showed a rib
fracture on the right side of M.S. Tr. 327. Based upon what Davis was told by K.S.,
“the mechanism didn’t add up for the injuries as found.” Tr. 330. The injuries
should not have been so significant if M.S. had fallen from the reported height. Tr.
330. Davis testified to a reasonable degree of medical certainty, the injuries M.S.
suffered did not occur from a fall of this nature. Tr. 331. Due to the injuries
observed, Davis contacted the authorities. Tr. 332. Davis concluded that M.S.’
injuries were caused by “nonaccidental trauma”. Tr. 336. One of the reasons for
this belief was that Starbird was not in the room. Tr. 337. Davis subsequently
transferred M.S.’ care to trauma services. Tr. 336. M.S. was admitted to the hospital
for his own safety as child abuse was suspected. Tr. 340. M.S. was discharged from
the hospital on July 24, 2020. Tr. 341.
{¶21} On cross-examination, Davis testified that seeing femur fractures in a
child M.S.’ age was very rare. Tr. 346. Davis admitted that although it would be
rare to see injuries like M.S. had from the fall described, it was possible. Tr. 346.
Davis also admitted that if the history had been consistent, he would not have been
concerned. Tr. 347. The type of injury seen could possibly have occurred from the
fall described, but the probability was low. Tr. 349. Davis indicated that the rib
injury was not consistent with a fall. Tr. 349. Davis did admit that he never spoke
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with Starbird, so all his information was coming second hand. Tr. 350. Davis also
testified that he noted no bruising, redness, or fingermarks on M.S. Tr. 352.
{¶22} Ashley Knippen (“Knippen”) testified that she is an investigator with
the Hardin County Prosecutor’s Office. Tr. 367. She picked up the tub from
Markward. Tr. 369. Knippen testified that the sink countertop was approximately
31 ½ inches from the floor. Tr. 374. The depth of the countertop was 20 inches.
Tr. 377. The depth of the ledge above the countertop was four inches. Tr. 377. The
clearance between the countertop and the ledge was 9 ½ inches. Tr. 378. Knippen
tested the stability of the countertop and found it was securely attached to the wall.
Tr. 381-82. This was done because K.S. had indicated that the countertop was
wobbly. Tr. 409. Knippen also determined that the countertop was fairly level. Tr.
385. The clearance between the top of the tub, when placed on the countertop, and
the ledge was approximately one inch. Tr. 388. The tub weighed 2.99 lbs. Tr. 396.
If the tub was filled to the maximum fill line, it would contain 4.15 lbs. of water.
Tr. 399. If the tub was filled half way, which is beyond the maximum fill line, it
would contain two gallons, which would weigh 16.6 lbs. Tr. 399-400.
{¶23} Detective Terry Sneary (“Sneary”) testified that he works for the
Hardin County Sheriff’s Office. Tr. 410. Sneary was qualified to be a digital
forensic examiner. Tr. 411. The weight of the tub was approximately 3 lbs. Tr.
416. M.S., per the medical records, weighed 9 lbs. 10 oz. on the day of the incident.
Tr. 417. The combined weight of the tub, water, and child would be approximately
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29 lbs. Tr. 417. Sneary testified that he did not believe it was possible for M.S. to
move 29 lbs. Tr. 418.
{¶24} Sneary also testified that Starbird consented to a search of his cell
phone. Tr. 423. Sneary reviewed the data looking for text messages between
Starbird and K.S. Tr. 425. Starbird and K.S. were texting on the day of the incident
and at 11:22 a.m., Starbird informed K.S. he was trying to sleep. Tr. 428. At 4:27
p.m., Starbird sent K.S. a text asking how he was “supposed to know that it wasn’t
stable.” Tr. 430. Sneary testified that he personally tried to move the bathroom
counter, but it was solidly attached to the wall. Tr. 431. Sneary also testified that
the tub sat solidly on a flat surface. Tr. 431.
{¶25} Dr. Randall Schlievert (“Schlievert”) testified that he is employed as
a child abuse pediatrician with Mercy Health in Toledo. Tr. 440. Schlievert
reviewed the medical records of M.S. Tr. 446. Schievert testified that M.S. has no
signs of a brittle bone condition and the x-rays show “very healthy looking bones.”
Tr. 453. If M.S. did have this condition, you would expect to see further injuries
after the one on July 20. Tr. 453. No further injuries have occurred in the seven
months since his report. Tr. 454. Schlievert also testified that he has rereviewed
the case multiple times and has reached the same conclusion each time. Tr. 455.
Schlievert saw no signs of any disease with M.S. and his blood calcium was in the
normal range. Tr. 458-59. After reviewing the interviews about what happened,
Schlievert does not believe that falling from the counter would account for the
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injuries of M.S. Tr. 460. Given the abilities of a 5-week-old child, M.S. could not
have pushed himself and the tub off the counter merely by pushing on a ledge. Tr.
461. If M.S. would have fallen from the counter, he would have struck head first
because that is where the greatest weight is found. Tr. 462-63. M.S.’ head would
have withstood the worst of the collision, so the injuries to the ribs and the leg would
not have occurred. Tr. 463. M.S.’ leg was not only broken, but was snapped in half
and displaced. Tr. 463. The injury to the ribs occurs when you have repeated
compression of the chest, usually seen when a baby is shaken or squeezed too hard
to “stop” crying. Tr. 463-64. Schlievert testified that medically this usually occurs
when a parent pushes down on the baby’s chest to stop crying. Tr. 465. Additional
x-rays were done to check if M.S. was shaken, but there was no indication of
“shaken-baby”. Tr. 465. The second set of x-rays did show that M.S. had a second
rib broken as well. Tr. 467. According to Schlievert, there is no other situation
besides repetitive squeezing which would cause the posterior rib fractures found in
M.S. Tr. 472. The injury to M.S.’ femur was a spiral fracture, which are caused by
twisting and bending the bone at the same time. Tr. 474-75. Generally, this type of
injury is seen when someone grabs the leg and jams it upwards. Tr. 477. Seeing
this type of injury in a five-week-old infant is uncommon. Tr. 478. The usual injury
for an infant who has fallen from a height is a skull fracture or a broken collar bone,
not a broken leg or rib due to gravity pulling the heavier head down first. Tr. 479.
Schlievert also testified that a colicky baby can result in situational child abuse if
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the caregiver lacks coping skills. Tr. 483. In this case, there was no evidence to
support the claim that M.S.’ injuries were accidentally caused. Tr. 484. Schlievert’s
medical diagnosis was that M.S.’ injuries were the result of child abuse. Tr. 486.
{¶26} On cross-examination, Schlievert testified that of all the cases he
reviews for the State, about half are accidental and half are child abuse. Tr. 492-93.
Schlievert testified that the injuries to the leg occurred on the day M.S. was brought
to the emergency room. Tr. 496. Although the injuries to the skull and ribs could
have occurred a day or so earlier, the symptoms displayed by M.S. do not indicate
anything other than they occurred close in time to the break to the leg. Tr. 496-97.
Schlievert indicated that although he mentioned “shaken-baby syndrome”, he was
not stating an opinion on whether M.S. was shaken. Tr. 498. Schlievert admitted
that it was possible M.S. had osteogenesis imperfecta, which would cause his bones
to easily break, but it was highly unlikely. Tr. 502. Schlievert based this opinion
on the history of M.S., which showed no fractures prior to July 20, 2020, and no
further fractures since that day. Tr. 502. M.S.’ history of clubfoot and hip dysplasia
are unrelated to M.S.’ injuries on July 20, 2020. Tr. 505. Schlievert further testified
that he did not know for sure what happened to M.S., just that the injuries were
unlikely to have resulted from a fall from a bathroom counter. Tr. 519.
{¶27} At the conclusion of the trial, the jury found Starbird guilty as charged
in the indictment, included a specific finding that the offense resulted in serious
physical harm to the child. Doc. 58. On June 16, 2021, the trial court held a
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sentencing hearing. The trial court sentenced Starbird to a prison term of eight to
twelve years. Doc.72. Starbird appealed from this judgment and on appeal raises
the following assignments of error.
First Assignment of Error
The conviction herein for child endangerment is not supported by
sufficient evidence and as such all is improper and must be
vacated.
Second Assignment of Error
The conviction herein for child endangerment is against the
manifest weight of the evidence and must be vacated.
Third Assignment of Error
The conviction is based upon the jury having improperly made an
inference upon an inference from the evidence which is improper
and requires that the conviction herein must be vacated.
Fourth Assignment of Error
Evidence Rule 601 requires that where medical testimony is
presented, that the witness have an active clinical practice for
their testimony to be admitted, and where such testimony is
presented without meeting the qualification, the conviction is
tainted and must be set aside.
{¶28} We will address the assignments of error out of order.
Inference Upon Inference
{¶29} In the third assignment of error, Starbird claims that the jury had to
make an inference upon an inference to find him guilty.
It is impermissible for a trier of fact to draw “[a]n inference based
* * * entirely upon another inference, unsupported by any
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additional fact or another inference from other facts[.]” If,
however, the second inference is based in part upon another
inference and in part upon facts, it is a parallel inference and, if
reasonable, is permissible. Likewise, a trier of fact may draw
multiple inferences from the same set of facts.
State v. Jordan, 3d Dist. Seneca Nos. 13-01-25, 13-01-26, and 13-01-27, 2002-
Ohio-1418.
{¶30} Starbird argues that to find him guilty the jury had to infer that an act
of violence must have occurred to cause M.S.’ injuries and to infer that Starbird was
the perpetrator of that act. Starbird is correct that the jury had to infer both of these
facts as there was no direct evidence of them. However, it is possible for a
reasonable juror to reach these determinations without stacking the inferences
because there are separate facts to support both. Both Davis and Schlievert testified
that the mechanism that caused the injuries to M.S. was not a fall, but a deliberate
act. The doctors testified as to what acts were likely to cause the injuries and
testified to a reasonable degree of medical certainty that a fall was highly unlikely
to cause the injuries. Both doctors reached the conclusion that abuse was what
caused the fractures in the leg, ribs, and skull. Given this testimony, a reasonable
juror could infer that M.S. was the victim of child abuse, and not an accidental
injury.
{¶31} As to the perpetrator of the abuse, testimony was provided that M.S.
was healthy and injury free when K.S. dropped him at the sitter that morning.
Budwit testified that he was fine when Starbird picked M.S. up to take him home.
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Starbird was the only one home with the five-week-old infant. Starbird sent
multiple texts to K.S. during the day, but did not once mention that M.S. appeared
injured. The first time Starbird indicated that M.S. was hurt was several hours after
he picked M.S. up and he told K.S. that M.S. had fallen from the counter while being
bathed. From this set of facts, the jurors could reasonably conclude that Starbird
was the one who injured M.S. As there were additional facts to support the second
inference, it is permissible for the jurors to make it. The third assignment of error
is overruled.
Evidence Rule 601
{¶32} Starbird alleges in his fourth assignment of error that the trial court
erred in allowing the testimony of Schlievert because Schlievert was no longer a
practicing pediatrician. Initially this Court notes that Starbird did not object to
Schlievert’s testimony at trial. Schlievert testified that he is a licensed pediatrician
with training in child abuse and neglect. Tr. 442. He gave up his practice as a
pediatrician as he is an assistant dean of the graduate medical education at the
medical college in Toledo. Tr. 442. Starbird claims that because he does not spend
at least half of his time as a practicing pediatrician, his testimony should not have
been allowed.
{¶33} Evidence Rule 601 sets forth which people are disqualified to testify
as a witness. However, the rule does not apply in this case.
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B) Disqualification of Witness in General. A person is disqualified
to testify as a witness when the court determines that the person
is:
(5) A person giving expert testimony on the issue of liability in any
medical claim, as defined in R.C. 2305.113, asserted in any civil
action against a physician, podiatrist, or hospital arising out of the
diagnosis, care, or treatment of any person by a physician or
podiatrist, unless:
***
(b) The person devotes at least one-half of his or her professional
time to the active clinical practice in his or her field of licensure,
or to its instruction in an accredited school[.]
Evid.R. 601(B)(5) (emphasis added). The language of the rule limits the
requirement to an expert testifying on the issue of liability in a medical malpractice
claim in any civil action. Civil liability is not the issue in this criminal case.
Therefore, the rule does not disqualify the testimony of Schlievert. The fourth
assignment of error is overruled.
Sufficiency of the Evidence
{¶34} In his first assignment of error, Starbird claims that the conviction for
endangering children is not supported by sufficient evidence. The question of
whether the evidence presented at trial is legally sufficient to support a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678
N.E.2d 541. Sufficiency is a term of adequacy. Id.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
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believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. * * * Accordingly, “[t]he
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.” * * * “In deciding if the evidence was
sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier
of fact.”
State v. Hulbert, 3d Dist. Van Wert No. 15-19-07, 2021-Ohio-2298, ¶ 5 (citations
omitted).
{¶35} Here, Starbird was charged with endangering children in violation of
R.C. 2919.22(B)(1), (E)(2)(d).
(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.
(2) If the offender violates division (A) or (B)(1) of this section,
endangering children is one of the following, and, in the
circumstances described in division (E)(2)(e) of this section, that
division applies:
***
(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.
R.C. 2919.22. “Serious physical harm” is defined as follows.
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5) “Serious physical harm to persons” means any of the following:
***
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary,
substantial incapacity;
***
(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.
R.C. 2901.01(A)(5). The injuries in this case constitute serious physical harm. State
v. Swain, 4th Dist. Ross No. 01CA2591, 2002-Ohio-414. (holding that infant’s
multiple broken bones constituted serious physical harm).
{¶36} The State presented testimony from K.S. and Budwit that M.S. was in
good health before Starbird picked him up on July 20, 2020. Budwit testified that
Starbird picked up M.S. K.S. testified that Starbird called her several hours later
and told her M.S. was hurt. The testimony shows that Starbird was alone with M.S.
until K.S. returned from work. M.S. was a five-week-old infant who was incapable
of even rolling over at the time of the incident. The claims made by Starbird
regarding how the injuries occurred were determined to be improbable. Both Davis
and Schlievert testified that to a reasonable degree of medical certainty, the injuries
did not result from a fall, but were instead the result of abuse. Schlievert testified
that the injuries to the ribs required repeated compression, such as when one is
pushing on the chest of an infant to stop the crying. Based upon the evidence before
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it, a reasonable juror could conclude that someone acted in a way that caused
physical injury to the child. Since Starbird was the only person with M.S. during
the time when he was injured, the jury could also reasonably conclude that the
person who caused the injury was Starbird. M.S.’ injuries included a broken femur,
two broken ribs, and a skull fracture. K.S. testified that M.S. would scream when
his leg was touched showing that he suffered from severe pain. There were multiple
fractures that caused prolonged pain and required him to be temporarily
incapacitated while he was in a cast. Thus, the injuries suffered by M.S. would
qualify as serious physical harm. Viewing the evidence in a light most favorable to
the State, the evidence is sufficient to support the conviction. The first assignment
of error is overruled.
Manifest Weight of the Evidence
{¶37} Starbird claims in his second assignment of error that the conviction
was against the manifest weight of the evidence. When reviewing a judgment to
determine if it is against the manifest weight of the evidence, an appellate court
“review[s] the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts
in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
Mendoza, 137 Ohio App.3d 336, 2000-Ohio-1689, 738 N.E.2d 822 (3d Dist.). See,
also, State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new
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trial should be granted only in the exceptional case in which the evidence weighs
heavily against conviction. Thompkins at 387, 678 N.E.2d 541. Although the
appellate court acts as a “thirteenth juror,” due deference to the findings made by
the fact-finder must still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22,
2013-Ohio-650, ¶ 29.
{¶38} The evidence in this case, as discussed previously shows that the
injuries to M.S. were extensive. Starbird claims that he left the M.S. in the baby tub
on the bathroom counter and left the room for a short time to retrieve a diaper.
According to Starbird, he heard a thud, returned to the bathroom to find the tub and
M.S. on the floor crying. Starbird then contacted K.S. and they took M.S. to the
hospital. However, the testimony of Davis and Schlievert were that M.S. would not
have been able to tip the tub at 5 weeks of age and that a fall from less than three
foot would not have caused the break to the femur or the ribs. Sclievert testified
that gravity would have caused the head to hit first as it is the heaviest part of an
infant’s body. This is a case where the jury had to either believe Starbird, who did
testify, and his version of events, or not believe him. Evidence was presented that
made Starbird’s version of events improbable. The jury chose to disbelieve
Starbird. A review of the record does not show that the jury clearly lost its way
creating a manifest miscarriage of justice or that the evidence weighs heavily against
conviction. Thus, the judgment was not against the manifest weight of the evidence
and the second assignment of error is overruled.
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{¶39} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Hardin County
is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/hls
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