State v. Mabrey , 2011 Ohio 3849 ( 2011 )

[Cite as State v. Mabrey, 2011-Ohio-3849.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96048
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GENEVA MABREY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-532828
BEFORE: Keough, J., Jones, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: August 4, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Jesse W. Canonico
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Geneva Mabrey (“Mabrey”), appeals from
the common pleas court’s judgment finding her guilty of child endangering.
For the reasons that follow, we affirm.
{¶ 2} In January 2010, Mabrey was charged with felonious assault in
violation of R.C. 2903.11(A)(1) and child endangering, with a serious physical
harm specification, in violation of R.C. 2919.22(B)(1). The matter proceeded
to trial before the bench. At the close of the State’s case, the trial court
granted Mabrey’s Crim.R. 29 motion for judgment of acquittal on the
felonious assault charge. The court found Mabrey guilty of child
endangering, including the serious physical harm specification, and sentenced
her to two years of community control sanctions.
{¶ 3} Mabrey appeals, contending that her conviction for child
endangering was not supported by sufficient evidence and was against the
manifest weight of the evidence. Mabrey does not contest the underlying
facts of the case, but maintained at trial and now on appeal that she did not
recklessly abuse the child, and that her actions and/or inactions were at most
a violation of a duty of care to the child.
{¶ 4} The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, Cuyahoga
App. No. 92266, 2009-Ohio-3598, ¶12. 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 (1991), 61 Ohio St. 3d 259, 574
N.E.2d 942, paragraph two of the syllabus.
{¶ 5} A manifest weight challenge, on the other hand, questions
whether the prosecution met its burden of persuasion. State v. Thomas
(1982), 70 Ohio St. 2d 79, 80, 434 N.E.2d 1356. A reviewing court may
reverse the judgment of conviction if it appears that the trier of fact “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. Thompkins,
78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A finding that a
conviction was supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency. Id. at 388.
{¶ 6} Mabrey was convicted of child endangering in violation of R.C.
2919.22(B)(1), which provides that “no person shall [abuse] a child under
eighteen years of age or a mentally or physically handicapped child under
twenty-one years of age.”
{¶ 7} The requisite culpable mental state for the crime of child
endangering is recklessness. State v. Adams (1980), 62 Ohio St. 2d 151, 153,
404 N.E.2d 144. R.C. 2901.22(C) provides that “[a] person acts recklessly
when, with heedless indifference to the consequences, [s]he perversely
disregards a known risk that [her] 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, [s]he
perversely disregards a known risk that such circumstances are likely to
exist.”
{¶ 8} Therefore, “[t]o establish a violation of R.C. 2919.22(B)(1), the
state must prove, beyond a reasonable doubt: (1) that the child is under
eighteen years of age or a mentally or physically handicapped child under
twenty-one years of age, (2) an affirmative act of abuse, and (3) which act was
reckless, that is, perpetrated with heedless indifference to the consequences
of the action.” (Internal citations omitted.) City of Newburgh Hts. v. Cole,
166 Ohio App. 3d 826, 2006-Ohio-2463, ¶8, quoting State v. Bogan (June 14,
1990), Montgomery App. No. 11920. It is undisputed that the child in this
case was under eighteen years of age. Accordingly, the issue on appeal
pertains to the second and third elements of the offense.
{¶ 9} The State argues that “an affirmative act of abuse” is not an
element that must be proven in order to sustain a conviction under R.C.
2919.22(B)(1). In fact, the State asks this court to hold and declare that “an
affirmative act of abuse” is not an element of the offense under R.C.
2919.22(B).
{¶ 10} “Abuse” is not defined by the criminal statutes. However,
“abused child” is defined by the juvenile statutes as one who, “because of the
acts of his parents, guardian, or custodian, suffers physical or mental injury
that harms or threatens the child’s health or welfare.” Cole at ¶9, quoting
R.C. 2151.031(D).
{¶ 11} The Legislative Service Commission Commentary to R.C. 2919.22
explained that child endangering under R.C. 2919.22(B) “deals with actual
physical abuse of a child, whether through physical cruelty or through
improper discipline or restraint, and regardless of by whom the offense is
committed.”
{¶ 12} Additionally, the Ohio Supreme Court in State v. Kamel (1984),
12 Ohio St. 3d 306, 308-309, 466 N.E.2d 860, identified that “[i]t is not
necessary to show an actual instance or pattern or physical abuse on the part
of the accused in order to justify a conviction under R.C. 2919.22(A).
Affirmative acts of torture, abuse, and excessive acts of corporal punishment
or disciplinary measures are expressly covered under division (B) of the
section.” Accordingly, the Legislative Commentary and the decision in
Kamel differentiate between sections (A) and (B) of R.C. 2919.22 and
establish that an affirmative act of abuse is a required element for a
conviction under R.C. 2919.22(B). Section (A) involves acts of omission,
whereas section (B) involves acts of commission. Kamel at 309, citing State
v. Sammons (1979), 58 Ohio St. 2d 460, 391 N.E.2d 713.
{¶ 13} Although we disagree with the State’s assertion that an
affirmative act of abuse is not an element of child endangering under R.C.
2919.22(B), we find that Mabrey’s conviction was supported by sufficient
evidence and was not against the manifest weight of the evidence.
{¶ 14} The evidence and testimony established that Mabrey, a licensed
practical nurse, provided home care to J.L.,1 a special needs child, since he
was eight months old. J.L. was born prematurely and suffers from a variety
of health problems, as well as cognitive disability and impairment. Although
J.L. is somewhat verbal, he cannot comprehend and answer questions. As a
result of his conditions, J.L. was part of MetroHealth Medical Center’s
Comprehensive Care program, a multi-disciplinary program designed to
address the needs of children like J.L.
{¶ 15} On April 23, 2008, Mabrey was providing care to J.L., then
five-years old, in her home. Around 9:00 p.m. and after J.L. experienced
both bowel and urinary incontinence, Mabrey placed J.L. in the bathtub with
approximately ten inches of cool water, which was enough to cover the lower
part of his body. According to Mabrey’s statement to police, she bathed him
and then allowed him to play with his toys in the bathtub. J.L. turned the
cold water on while playing, adding an additional one to two inches of cold
water. Because J.L. kept “bothering the cold water,” Mabrey told J.L. that it
was time to get out of the bathtub. As he stood up, he lost his balance and
fell to the side of the bathtub, hitting his mouth, falling on his back, and
going under the water. As Mabrey pulled J.L. out of the bathtub, he was
spitting up water. She wiped his face and he began to shake and then
We use initials to protect the identity of the minor involved in this incident.
1
became quiet. Because he would not stand up and kept spitting up water,
she took him to the kitchen and called 9-1-1. According to Mabrey, J.L. was
in the bathtub for approximately 15 to 20 minutes and she never left him
alone during this time.
{¶ 16} Euclid dispatch received a 9-1-1 call from Mabrey at 10:12 p.m.
Mabrey told the dispatcher that J.L. had gone underwater. When the
paramedics arrived, J.L. was naked and sitting on the counter cradled in
Mabrey’s arms.
{¶ 17} Euclid firefighter and paramedic, Gregory Ivanovics, who was
first on the scene, testified that when he took J.L. from Mabrey, J.L. was
damp and “very cold to the touch through my [nonlatex] glove.” Ivanovics
immediately carried J.L. to the ambulance to begin treatment. Ivanovics
testified that his assessment of J.L. was that he (1) was cold to the touch, (2)
had his teeth and jaw clenched and clamped on his tongue, (3) had saliva and
vomit around his mouth, (4) was “very cyanotic. His lips were very blue,”
and (5) had a fast and weak pulse. He testified that he did not observe any
blood, bruises, abrasions, or scratches on J.L.’s body. According to Ivanovics,
he “never experienced anything like that before.”
{¶ 18} EMS transported J.L. to Euclid Hospital where Bridgette Stemple
(f.k.a. Davis) was a treating nurse. She testified that the initial call from
Euclid Fire and Rescue stated that they were transporting a child who was
“submerged in a tub for an unknown length of time.” When J.L. arrived at
Euclid Hospital, Stemple conducted a head to toe assessment and observed
that J.L. was small, very cold, had multiple abrasions and small scrapes on
his arm and buttocks, had clenched teeth, and had a rapid heart rate.
Stemple testified that J.L.’s core body temperature , which was taken
approximately thirteen minutes after the 9-1-1 call was placed, registered at
28.9 degrees Celsius, which is approximately 84 degrees Fahrenheit.
Stemple characterized J.L.’s temperature as “hypothermic, very, very low”
and testified that at that temperature, multiple systems within the body are
shutting down. J.L. was transported by Life Flight to MetroHealth
approximately 30 minutes later.
{¶ 19} Euclid police officer Michael Walsh testified that at 10:14 p.m. on
April 23rd he responded to an emergency call at Mabrey’s residence. When
he arrived, EMS was treating a child in the ambulance on scene. Officer
Walsh testified that he spoke with an “upset” Mabrey who told him that J.L.
had gone underwater for a few seconds as she was giving him a bath.
Because J.L. was unresponsive, she called 9-1-1. Officer Walsh looked in the
bathroom, but saw no standing water in the bathtub.
{¶ 20} Detective Brent Figueira testified that he received a call for a
child nearly drowning and he and his partner went to MetroHealth, where
they found Mabrey. After speaking with Mabrey, she gave them a written
statement regarding the incident. At that time, Detective Figueira treated
this case as a near-drowning incident. Approximately five days later, “the
drowning investigation changed to a case where the child suffered
hypothermia due to some mechanism.”
{¶ 21} Angela Colon, special investigator for Cuyahoga County
Department of Children and Family Services, was assigned to investigate the
circumstances surrounding this incident. She testified that it was reported
to her that J.L. was found in the bathtub and that he almost drowned.
Accordingly, the case was classified as an allegation of neglect as an
emergency.
{¶ 22} On April 24th, Colon interviewed Mabrey and informed her that
she was named as an alleged perpetrator for allegations of neglect regarding
the possible drowning of J.L. Colon testified that she did not learn of J.L.’s
injuries until after speaking with Mabrey on April 24th. According to Colon,
Mabrey was visibly upset and cried during the interview, but was cooperative
and respectful in answering all her questions. Mabrey told Colon that she
put J.L. in the bathtub to bathe him and that she made the water a little
cooler because it was a warm day. Mabrey told her that J.L. kept playing
with the faucet, drained the water out of the bathtub, and added more cold
water. Mabrey denied leaving J.L. unsupervised. Mabrey told Colon that
J.L. had a tendency to “duck under water” but when he went to get out of the
bathtub, he slipped. When she got him out of the bathtub, he spit some
water out and his eyes appeared “funny.” Because he would not stand up, she
wrapped him up, and carried him to the kitchen to call 9-1-1. As she carried
him, J.L. was “fighting” and kicking her.
{¶ 23} Colon testified that after learning J.L. suffered hypothermia
during the incident, she interviewed Mabrey again on May 22nd. During
this interview, Colon observed the bathroom and bathtub area and took the
temperature of the cold water from the bathtub faucet, which registered at 48
degrees Fahrenheit. She asked Mabrey to go over the events again
regarding the incident.
{¶ 24} Mabrey told her that she thought J.L. was in the bathtub for 20
minutes or more, but then later said she was unsure how long J.L. was in the
bathtub. In this interview, Mabrey told Colon that while J.L. played in the
bathtub, she sat doing her paperwork in the bathroom and never left him
unattended. She also told Colon that she had her cell phone with her in the
bathroom. Again Mabrey told her that J.L. was playing with the cold water
and that he drained the water out of the bathtub and refilled it with all cold
water.
{¶ 25} Mabrey stated J.L. had a habit of throwing himself under the
water and when he would not stand up, she got concerned. Mabrey told her
that he fell getting out of the bathtub, but now stated that he fell forward and
hit his mouth. Mabrey assumed J.L. hit his mouth because she saw blood on
his lip. Mabrey said J.L. appeared to have swallowed some water, so she
grabbed him from the bathtub and he was grasping for breath. When she
got him out of the bathtub, his teeth were completely clenched and he was
trembling. She told Colon that he was not trembling in the bathtub and she
thought maybe he was trembling due to the fall. Mabrey told Colon that she
did not think J.L. had a seizure. He was unresponsive, so she took him to
the kitchen to call 9-1-1. She told Colon that she did not perform CPR on
J.L. because he was breathing. Mabrey told Colon that J.L. appeared “real
cold.”
{¶ 26} Colon testified that she felt there were questionable actions and
inconsistencies in Mabrey’s different version of events, specifically (1) if
Mabrey had her cell phone in the bathroom, why Mabrey would use the
kitchen phone, (2) the amount of time J.L. was in the bathtub, and (3) the
event of J.L. falling. Based on Colon’s investigation, CCDCFS ruled that
“allegations of neglect were indicated.”
{¶ 27} The State’s trial theory was that Mabrey used a cold water bath
abusively or to punish J.L. The State called Dr. Mark Feingold, member of
MetroHealth’s Department of Pediatrics and Director of Child Protection
Services, as a pediatric expert in diagnosing child abuse. Dr. Feingold
testified that he became involved in the case because J.L. was admitted into
the pediatric intensive care unit due to severe hypothermia. Dr. Feingold
testified that he reviewed J.L.’s medical records in connection with this
incident and conducted a physical examination of J.L., but the examination
revealed nothing specific for child abuse.
{¶ 28} However, based on the medical records, he learned that J.L.
suffered hypothermia with a core body temperature of 28.6 degrees Celsius,
which translated to 83.5 degrees Fahrenheit. Dr. Feingold testified that the
event history provided by Mabrey was not consistent with J.L.’s core
temperature because “he was simply too cold.” According to Dr. Feingold, a
core body temperature to drop to 84 degrees Fahrenheit is indicative of two
plausible situations: (1) that the person has died and the temperature is
lowering as time passes, or (2) that the person was exposed to external cold.
Dr. Feingold testified that the first stage of hypothermia is just being cold, i.e.
shivering and teeth chattering. The next stage is more severe hypothermia
where the body temperature lowers and the person has mental confusion,
combativeness, unreasonable behavior, and loss of spontaneous movement.
{¶ 29} Dr. Feingold indicated in his assessment notes that he was
unable to determine what happened to J.L.: “1. The precise nature of what
occurred on the evening of admission is still not clear. What is remarkable,
however, is the profound, life-threatening hypothermia present on arrival at
the local emergency department. Voluntarily playing in cold water would
not lower his core temperature to this extent.”
{¶ 30} Dr. Feingold testified that there were several possibilities as to
how J.L.’s body temperature reached such a low level: “Was he being forced
into cold water as some sort of punishment? Possibly so. Was he under
water for longer than reported? Also possibly so, but his relatively benign
course does not suggest a lengthy immersion. Was he slightly chilled by
playing in the water before he slipped and fell, and was the phone call for
EMS assistance postponed? Again, possibly so. There is no solid data on
exactly how fast a child’s core temperature will fall either with external
chilling or cardio-respiratory arrest, but a rectal temperature of 29 C (8
degrees below normal) would surely have to require a significant length of
time and not mere minutes.”
{¶ 31} Dr. Feingold did not render an opinion regarding whether this
was a case of child abuse; however, he did render an opinion regarding the
amount of time J.L. was subjected to external cold. He opined that based on
J.L.’s body size, the temperature of the water, and the amount of water he
was immersed in, it would take approximately one hour for a core body
temperature to lower to the extreme suffered by J.L. He opined further that
a person experiencing hypothermic symptoms in a bathtub would
instinctively get up and get out of the situation or express serious objections
to the cold.
{¶ 32} In this case, the evidence was undisputed. J.L. was in a bathtub
of cool water for a period of time that caused his core body temperature to
lower to a life-threatening range. Whether the State satisfied its burden of
proving the elements of R.C. 2919.22(B)(1) is an issue for the trier of fact.
However, the proof for each element must be analyzed in light of the nature of
the physical act relative to the substantial risk of harm, whether the act was
justified by the underlying circumstances, and whether the act was recklessly
perpetrated. Bogan, citing In the Matter of Kimberly Noftz, Alleged Abused
Child (Aug. 22, 1986), Huron App. Nos. H-85-26 and H-86-11.
{¶ 33} This court reviewed a similar case in State v. Parker (July 8,
1999), Cuyahoga App. No. 74294, where the defendant was charged with child
endangering after placing a child in a bathtub of hot water. This court
stated that “[i]t is reckless to put a child into bath water that has not been
tested and abusive to immerse a child in scalding hot water.” Id.
{¶ 34} Although J.L. did not suffer from burns like the child in Parker,
we find that Mabrey acted recklessly in failing to adequately supervise J.L.
while he played with the bathtub’s water faucet handles. J.L. could have
easily turned on the hot water and scalded himself. The special needs
required by J.L., his limited verbal skills, and cognitive ability, demanded
more supervision than what Mabrey provided. We also find it abusive to sit
and watch a child freeze to the point that his body temperature lowers to a
life-threatening stage. Based on the inconsistencies in Mabrey’s
different version of events, coupled with the undisputed medical evidence and
time frames in which these events occurred, any rational trier of fact could
have found that Mabrey acted recklessly perpetrating this act of abuse
without heed to the potentially grave and life-threatening consequences.
The uncontroverted medical evidence and testimony showed that the extreme
state of hypothermia J.L. suffered resulted from immersion in and lengthy
exposure to cold bath water.
{¶ 35} The weight of the evidence also supports Mabrey’s conviction.
The evidence submitted at trial, which tended to show the child’s injuries
resulted through Mabrey’s recklessness, was reliable and credible. J.L. was
in Mabrey’s care when he suffered severe hypothermia. There was no other
logical explanation presented as to how J.L.’s core temperature reached this
life-threatening level. It is especially troubling that Mabrey was a licensed
practical nurse; due to Mabrey’s profession, she should have known and
appreciated the risk of allowing a child to remain in cold water for such a long
period of time.
{¶ 36} Accordingly, we find that the trial court had before it sufficient
and substantial evidence from which it could reasonably find that the
requisite elements of child endangering were proved beyond a reasonable
doubt and that the court did not lose its way in finding Mabrey guilty of child
endangering in violation of R.C. 2919.22(B)(1). Mabrey’s assignments of
error are overruled.
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.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, P.J., and
KENNETH A. ROCCO, J., CONCUR