State v. Dawson , 91 N.E.3d 140 ( 2017 )

[Cite as State v. Dawson, 2017-Ohio-2957.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 15 MA 0118
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
LARRY DAWSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 13 CR 492
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Rhys Cartwright-Jones
42 North Phelps Street
Youngstown, Ohio 44503
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: May 23, 2017
[Cite as State v. Dawson, 2017-Ohio-2957.]
ROBB, P.J.
{¶1} Defendant-Appellant Larry Dawson appeals from his conviction and
sentence entered in Mahoning County Common Pleas Court for felony murder, a
violation of R.C. 2903.02(B). Appellant asserts four arguments for why his conviction
should be overturned. First, he argues the use of child endangering as the predicate
offense to felony murder violated his due process rights. Second, he argues there is
insufficient evidence Appellant abused the victim and proximately caused the death.
Third, he asserts the conviction is against the manifest weight of the evidence.
Lastly, he contends there were multiple instances of harmless error during the trial
which resulted in cumulative error requiring a new trial. For the reasons expressed
below, none of these arguments have merit. Thus, the conviction and sentence are
affirmed.
Statement of the Facts and Case
{¶2} Appellant and Rhea Stewart had one child, RayVon; the child was born
September 8, 2011. Tr. 259. Although Appellant and Steward were not together,
Appellant spent time with the child. Tr. 266, 271. On Saturday, December 8, 2012
Stewart took the 15 month old toddler to stay with Appellant for a couple days; the
toddler was scheduled to stay at Appellant’s house on 3031 Oregon Street,
Youngstown, Ohio from Saturday December 8, 2012 through Thursday, December
13, 2012. 12/13/12 Interview State’s Exhibit 8. Appellant lived with his girlfriend,
Ashlee Artist, and her son, who was a couple months older than RayVon.
{¶3} Stewart described RayVon as a typical 15 month old who was walking
and learning to talk. Both Appellant and Artist confirmed the toddler was walking.
The child’s pediatrician also testified the toddler was developmentally a normal 15
month old.
{¶4} During the visit, Appellant was the child’s primary caregiver. At
approximately 3:00 pm on Wednesday, Artist called 911 requesting an ambulance
because Appellant had found RayVon unresponsive in the crib and white foam was
coming out of his nose and mouth. The 911 operator instructed them how to
administer CPR and told them an ambulance was on the way.
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{¶5} Officer Assad Chaibi of the Youngstown Police Department arrived on
the scene prior to the ambulance. When he arrived, Appellant and Artist were
outside the home. Tr. 312. The officer described Appellant’s demeanor as very odd
for a father; he stated Appellant was not emotional and did not seem concerned. Tr.
315. The officer found the toddler lying on a couch with a liquid substance coming
out of his mouth and nose. Tr. 132. The officer began administering CPR. Tr. 313.
{¶6} Once the ambulance arrived, the paramedic, Kimberly Nosek,
administered CPR. Tr. 339. Upon asking Appellant questions about the toddler, she
noted Appellant seemed unattached to the situation. Tr. 343. She avowed she
asked Appellant if the child had experienced any accidents, falls, or hit his head. Tr.
344. Appellant responded no. Tr. 344.
{¶7} The child was taken to St. Elizabeth’s Health Center in Youngstown and
then was flown to Akron Children’s Hospital in Akron, Ohio. Dr. Vivek Malhotra, a
pediatric intensivist at Akron Children’s Hospital, testified when RayVon arrived at the
hospital there was no evidence of clinical brain function. Tr. 400. In examining his
eyes, the doctor observed bilateral retinal hemorrhages, which is often found in
shaken or abused children. Tr. 402-403. The doctor testified the injuries RayVon
had are typically seen in “very high impact injuries,” such as high speed motor vehicle
accidents or a child falling from a second story building onto concrete. Tr. 413.
RayVon died at the hospital on the morning of Thursday, December 13, 2012.
{¶8} That afternoon, Appellant and Artist were interviewed by Detective
Sergeant Patton. The detective specifically asked, “Has the baby fallen lately, hit his
head?” 12/13/12 Interview State’s Exhibit 8. Appellant responded saying RayVon
might have hit his head on the wall Monday. 12/13/12 Interview State’s Exhibit 8. He
described it as bumping his head on the drywall by sitting back real hard. 12/13/12
Interview State’s Exhibit 8. Appellant stated the toddler laughed after bumping his
head. 12/13/12 Interview State’s Exhibit 8.
{¶9} Artist told the detective Appellant informed her RayVon fell down a few
steps on Monday. She testified she did not see the fall; she was at work.
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{¶10} An autopsy was performed by the Summit County Coroner’s Office.
Following the examination, the Chief Medical Examiner Dr. George Sterbenz
determined the cause of death was craniocerebral blunt force trauma, and the
manner of death was homicide. State’s Exhibit 21. He testified there were multiple
impacts to the back of the head causing a skull fracture and brain injury. Tr. 473,
490, 495, 505. He avowed this type of injury would result in immediate disability and
quick death. Tr. 499.
{¶11} Thereafter, Detective Patton asked the medical examiner if a fall down
a couple of stairs could cause the injuries. He was told no, it could not happen from
a fall. Tr. 385, 777.
{¶12} Appellant was indicted on May 9, 2013 for felony murder in violation of
R.C. 2903.02(B)(D), an unclassified felony; child endangering in violation of R.C.
2919.22(B)(1)(E)(2)(d), a second-degree felony; and child endangering in violation of
R.C. 2919.22(A)(E)(2)(c), a third-degree felony. Appellant pled not guilty.
{¶13} The case proceeded to a jury trial. The jury found Appellant guilty of all
indicted charges. 6/29/15 Jury Verdict Forms; 7/7/15 J.E. For purposes of
sentencing, the child endangering convictions were found to be allied offenses of
similar import, and accordingly, merged with the felony murder conviction. 7/10/15
J.E. The trial court imposed the mandatory 15 years to life sentence for the felony
murder conviction. 7/10/15 J.E.
{¶14} Appellant appeals from his conviction and sentence.
First Assignment of Error: Due Process
{¶15} Appellant’s first assignment of error contends:
“Using child endangerment as a predicate offense for felony murder violates
the due process clause of the U.S. Constitution.”
{¶16} Appellant acknowledges that under the plain text of the felony murder
statute, child endangering may serve as a predicate offense for felony murder.
However, he contends allowing it to serve as a predicate offense violates due
process because it relieves the state of proving the culpable mental state. In
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asserting his argument, Appellant acknowledges multiple other appellate districts
have disagreed with this argument.
{¶17} The state counters arguing this issue was not raised to the trial court
and thus, is waived. Furthermore, it also cites to other appellate court decisions
which have found no merit with the due process argument.
{¶18} The state’s arguments are correct. Appellant did not raise the due
process issue to the trial court. The failure to raise an issue in the trial court waives
all but plain error on appeal. State v. Lorraine, 66 Ohio St. 3d 414, 416, 613 N.E.2d
212 (1993). Regardless, even if the issue was not waived, it lacks merit.
{¶19} Appellant was convicted of felony murder in violation of R.C.
2903.02(B). That statute provides, “No person shall cause the death of another as a
proximate result of the offender's committing or attempting to commit an offense of
violence that is a felony of the first or second degree and that is not a violation of
section 2903.03 or 2903.04 of the Revised Code.” R.C. 2903.02(B). Appellant was
found guilty of R.C. 2919.22(B)(1)(E)(d), second-degree felony child endangering.
R.C. 2901.01(A)(9) defines an offense of violence to include a violation of R.C.
2919.22(B)(1). Consequently, child endangering can constitute the predicate offense
for felony murder.
{¶20} Furthermore, R.C. 2903.02(B) has consistently been found to not
violate due process rights. State v. Hayden, 11th Dist. No. 99–L–037, 2000 WL
973413 (July 14, 2000) (R.C. 2903.02[B] does not relieve the state of the burden of
proving mens rea simply because the intent to kill is conclusively presumed so long
as the state proves the required intent to commit the underlying felony); State v.
Pickett, 1st Dist. No. C–000424, 2001 WL 1591318 (Dec. 14, 2001) (same); State v.
Collins, 5th Dist. No.2003–CA–0073, 2005–Ohio–1642 (same); State v. Minifee, 8th
Dist. No. 91017, 2009–Ohio–3089 (same); and State v. Cherry, 9th Dist. No. 20771,
2002–Ohio–3738 (same). “Thus, the mens rea element for felony murder under R.C.
2903.02(B) is satisfied when the state proves the intent required for the underlying
felony.” State v. Maynard, 10th Dist. Franklin No. 11AP–697, 2012–Ohio–2946, ¶ 17.
See also, Hayden, Pickett, Collins, Minifee and Cherry. Id. at ¶ 23. “[T]he General
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Assembly has chosen to define felony murder in this manner, and the General
Assembly is presumed to know the consequences of its legislation.” State v. Miller,
96 Ohio St. 3d 384, 2002–Ohio–4931, ¶ 34.
{¶21} The Ninth Appellate District has specifically addressed the due process
argument regarding felony murder and the predicate offense of child endangering.
Cherry, 9th Dist. No. 20771, 2002–Ohio–3738, ¶ 34-44. Our sister district held due
process rights were not violated and concluded a conviction for murder based on a
predicate felony with a mens rea of “recklessly” does not violate constitutional rights.
Id. at ¶ 39. It reasoned:
R.C. 2903.02(B) evidences a clear legislative intent to subject those
who commit the most serious felonies to liability for murder, where
commission of those felonies results in death. Where commission of
child endangering in violation of R.C. 2919.22(B)(1) results in serious
physical harm to the child victim, the violation is a felony of the second
degree and thereby becomes included in the class of eligible R.C.
2903.02(B) predicate felonies. R.C. 2919.22(E)(2)(d); R.C. 2903.02(B).
The consequence of this statutory scheme is to subject one who
causes serious physical harm to a child through an act of reckless
abuse to prosecution for murder, where the death of the child is a
proximate result of such abuse.
In light of the legislature's clear desire to punish under R.C. 2903.02(B)
those who proximately cause the death of children by acts of reckless
abuse, we find no merit to Appellant's argument that his constitutional
rights were violated by predicating his conviction on a felony with a
mens rea of “recklessly.”
Id. at ¶ 43-44.
{¶22} We agree. The due process argument raised in this assignment of
error lacks merit. This assignment of error is meritless.
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Second Assignment of Error: Sufficiency
{¶23} Appellant’s second assignment of error contends:
“The State submitted insufficient evidence to support a conviction.”
{¶24} Sufficiency of the evidence is a question of law dealing with legal
adequacy of the evidence. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d
541 (1997). It is the legal standard applied to determine whether the case may go to
the jury or whether the evidence is legally sufficient as a matter of law to support the
verdict. State v. Smith, 80 Ohio St. 3d 89, 113, 684 N.E.2d 668 (1997). In viewing a
sufficiency of the evidence argument, the evidence and all rational inferences are
evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St. 3d
123, 138, 694 N.E.2d 916 (1998). A sufficiency review is distinct from an evaluation
of the weight of the evidence which involves the persuasiveness of the evidence.
Thompkins, 78 Ohio St. 3d at 386. A conviction cannot be reversed on grounds of
sufficiency unless the reviewing court determines that no rational juror could have
found the elements of the offense proven beyond a reasonable doubt. Goff, 82 Ohio
St.3d at 138.
{¶25} As aforementioned, Appellant was convicted of felony murder, R.C.
2903.02(B), with child endangering, R.C. 2919.22(B)(1)(E)(2)(d), being the predicate
offense. Felony murder, as defined by R.C. 2903.02(B), provides no person shall
cause the death of another while committing a first or second-degree felony offense
of violence. Child endangering as defined by R.C. 2919.22(B)(1) requires proof the
offender abused a child under eighteen years of age. If the abuse results in serious
physical harm to the child, the violation of R.C. 2919.22(B)(1) constitutes a second
degree felony. R.C. 2919.22(E)(2)(d). Although not stated in the statute, the mens
rea for endangering children is recklessness. State v. Adams, 62 Ohio St. 2d 151,
404 N.E.2d 144 (1980), paragraph one of the syllabus. “Recklessness” is defined as
a person who “with heedless indifference to the consequences, * * * disregards a
substantial and unjustifiable risk that the person's conduct is likely to cause a certain
result or is likely to be of a certain nature.” R.C. 2901.22(C).
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{¶26} Appellant contends the state did not offer facts demonstrating Appellant
disregarded a known risk or abused the victim. He argues the facts of the case
reveal the likelihood of the death being caused from a fall down a couple of steps.
Furthermore, he asserts the state’s theory is based on a res-ipsa-loquitur theory of
liability; the toddler was in Appellant’s care and therefore, the injuries are only
attributable to Appellant.
{¶27} The state counters arguing it provided evidence of all elements of the
offenses. It asserts it produced evidence Appellant abused the child, and the abuse
was the proximate cause of death.
{¶28} The record indicates the state did provide evidence of all elements of
the offenses. The autopsy report and testimony from Dr. George Sterbenz and Dr.
Vivek Malhotra provided evidence of abuse and the manner of death.
{¶29} Dr. George Sterbenz performed the autopsy. The cause of death listed
in the report was craniocerebral blunt force trauma and stated the manner of death
was “Homicide: Struck by other person(s).” State’s Exhibit 21. He stated RayVon
suffered from “severe multiple concussive forces to the head with [sic] severe huge
fracture to the back of his head with a fracture extended right next to the brain stem.”
Tr. 498. He explained there were multiple blows to the front of the head and multiple
severe blows to the back of the head. Tr. 505. Because there were no abrasions on
the skin, the doctor reasoned the multiple blows to the head were from a nonabrasive
surface, such as a fist without jewelry or pieces of movable furniture. Tr. 508-509.
According to Dr. Sterbenz, the type of injury the toddler sustained would result in
immediate disability and quick death; the injury was not consistent with an accidental
fall. Tr. 499, 505-506. In the doctor’s opinion, the injury did not occur two days prior
to death. Tr. 499. Rather, it occurred minutes to hours before the child’s
cardiorespiratory arrest. Tr. 509.
{¶30} Dr. Vivek Malhotra is a pediatric intensivist, works at the ICU at Akron
Children’s Hospital, and treated RayVon while he was at Akron Children’s Hospital.
Tr. 394, 396, 399-400. He stated he examined the toddler’s eyes and there was
evidence of bilateral extensive retinal hemorrhages. Tr. 402-403. He explained this
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finding is typically seen when children are abused. Tr. 403. The hemorrhages are
caused by the sheer force of shaking or hitting the child with a very blunt object. Tr.
404. He stated after a massive skull fracture, like the one in this case, the child
would not be laughing. Tr. 435. The doctor was asked if there was a significant
concern the toddler might have been abused. He responded yes and explained,
“One, I could not explain from the history that I got from the father, who was watching
this child, I could not get a[n] explanation as to why he had such severe swelling in
the brain, blood in the brain, fracture of his brain. And, secondly, the retinal
hemorrhages was my other concern that are very, very classic for patients who have
child abuse.” Tr. 419.
{¶31} Artist and Appellant’s statements and testimony indicated Appellant
was with the toddler on December 12, 2012. Tr. 795, 942-943; State’s Exhibit 8.
{¶32} Although there are no eye witness accounts or statements as to what
exactly caused RayVon’s injuries, the above testimony provides sufficient evidence
for the felony murder charge to go to the jury. It was undisputed the toddler was
under eighteen years of age. It is also undisputed the toddler was solely in
Appellant’s care prior to death. When considering both Dr. Sterbenz and Dr.
Malhotra’s testimony there is evidence that within hours of the child’s death, the child
was abused, which resulted in serious physical harm to the child and ultimately
death. The testimony also suggests Appellant acted recklessly in abusing and
ultimately causing the child’s death.
{¶33} Admittedly, Appellant asserts the injuries and death were not caused
from abuse, but rather from falling down a couple of steps. For purposes of
sufficiency his argument does not negate the testimony from Dr. Sterbenz and Dr.
Malhotra. This argument is a manifest weight argument and is addressed in the next
assignment of error.
{¶34} Thus, considering the state’s evidence, there was sufficient evidence
for the felony murder charge to go to the jury, and for it to decide whether the
evidence proved beyond a reasonable doubt Appellant committed felony murder.
This assignment of error is meritless.
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Third Assignment of Error: Manifest Weight
{¶35} Appellant’s third assignment of error provides:
“The jury returned a verdict against the manifest weight of the evidence.”
{¶36} When reviewing a judgment under a criminal manifest weight standard
of review, “[t]he court reviewing 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.” Thompkins, 78 Ohio St. 3d at 387. A reviewing court's discretionary power
to reverse on manifest weight grounds and grant a new trial is exercised only in the
exceptional case where the evidence weighs heavily against conviction. Id. This
standard is a high one because the trier of fact is in the best position to determine
credibility issues, by having personally viewed the demeanor, voice inflections, and
gestures of the witnesses. State v. Ali, 154 Ohio App. 3d 493, 2003–Ohio–5150, 797
N.E.2d 1019, ¶ 36 (7th Dist.).
{¶37} As stated above, Appellant contends he did not abuse the child; he did
not hit the child with his fist or against furniture causing the craniocerebral blunt force
trauma. He asserts the injury was caused by RayVon falling down a couple steps a
few days prior to his death. Appellant presented testimony from a pediatric forensic
pathologist and biomechanical engineer to support his position.
{¶38} According to Appellant, after taking the child home on Saturday night,
Appellant gave RayVon a bath and put him to bed. Tr. 935. On Sunday, Appellant,
Artist, and the two kids were at the house watching television. Tr. 935. On Monday,
Appellant watched both RayVon and Artist’s son. Appellant testified on Monday
evening, while he was making dinner, RayVon was in the living room on the couch.
Tr. 937. Appellant would check on the child every couple minutes and at one point
RayVon was no longer on the couch but was lying on the landing of the steps. Tr.
937. These were steps for the second floor and the landing was located in the living
room. Tr. 937. He avowed the child laughed and seemed okay. Tr. 937-938.
Although he did not see the child fall or bump his head, Appellant checked him over,
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and contacted Stewart, Artist, and his mom about the incident. Tr. 937-938.
Appellant testified on Tuesday he took the child to his sister’s house so he could go
for a job interview. Tr. 940. He stated the child was sleeping a lot that day. Tr. 941.
On Wednesday, Artist got the kids up around 10:00 a.m. because her son had a
dentist appointment. Tr. 942. She took RayVon out of the crib he shared with her
son, and walked him into her and Appellant’s bedroom where he climbed into bed
with Appellant and fell back asleep. Tr. 942. Appellant testified they woke up at
noon. Tr. 942. The child had a sippy cup of milk and cereal bar and they watched a
movie. Tr. 942. The child fell back asleep around 1 p.m., and Appellant put him back
in the crib. Tr. 942. While the child was asleep Appellant took a shower and got
dressed. He then heard RayVon “gasping,” “taking deep breaths.” Tr. 943.
Appellant checked on the child, and the child was unresponsive. Tr. 943. Artist
arrived at house and called 911. Tr. 943.
{¶39} The 911 call was played for the jury. Tr. 305. The 911 call was made
at 3:04 p.m. on December 12, 2012. The operator instructed Artist on how to
administer CPR. In the background one can hear Appellant say he already
attempted CPR, and the child was not responding. The operator indicated an
ambulance was in route. At 3:13 p.m. Artist called 911 again because the
ambulance had not arrived. Shortly after that Officer Assad Chaibi arrived on the
scene. Tr. 308.
{¶40} Officer Chaibi testified that when he arrived Appellant and Artist were
outside and the toddler was lying on the couch. Tr. 312. He immediately started
CPR and when the ambulance arrived, the paramedic, Kimberly Nosek, took over.
Tr. 315, 330-331.
{¶41} As aforementioned, RayVon was taken to St. Elizabeth’s Hospital in
Youngstown and then flown to Akron Children’s Hospital in Akron. The child died on
December 13, 2012 at Akron Children’s Hospital. Following the child’s death,
Appellant was interviewed by Detective Sergeant John Patton. Tr. 370-371. The
interview was played for the jury. Tr. 375.
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{¶42} During the interview Appellant was asked if RayVon had fallen or
bumped his head. Appellant responded that on Monday or Tuesday the child had sat
back “real hard” and bumped his head on a wall at the bottom of the steps. Appellant
stated the wall was dry wall. He explained the child laughed after bumping his head
and was alright. State’s Exhibit No. 8. Appellant denied hitting the child. Tr. 388.
{¶43} Artist testified RayVon fell down the steps about two days before he
died. Tr. 794. She did not see the fall; Appellant told her it happened. Tr. 794. She
physically checked RayVon after she got home from work and he seemed fine. Tr.
804.
{¶44} Detective Sergeant Patton contacted Dr. Sterbenz, who performed the
autopsy, and asked if a fall could have been the cause of death. Tr. 777. Dr.
Sterbenz indicated the death could not have been caused from falling down steps.
Tr. 777. Detective Sergeant Patton did not pursue the theory that the death was
caused by an accidental fall because of the coroner’s statement. Tr. 777.
{¶45} At trial, Dr. Janice Ophoven, a pediatric forensic pathologist, and Alan
Dibb, a biomechanical engineer, testified for the defense. Considering RayVon’s
height and weight, Dibb was asked whether falling down a couple of steps could have
caused the injuries RayVon sustained. Tr. 700. Biomechanical engineering applies
the principles of mechanical engineering to determine how much force causes an
injury to the human body. Tr. 699-700. He testified biomechanical studies have
demonstrated the pediatric skull can fracture at impact heights around 32 inches onto
carpeted and padded surfaces. Tr. 702. He opined, to a reasonable degree of
scientific certainty, RayVon’s injuries were consistent with “a mechanism of falling
backwards and a direct impact to the back of the head.” Tr. 708. On cross-
examination, he admitted his opinion was based on the assumption RayVon was
“standing on a couple of steps and fell backwards.” Tr. 719. He made this
assumption because no one saw the child fall.
{¶46} Dr. Janice Ophoven, based on Dibb’s report, testified the skull fracture
is consistent with a fall; “a fall from the stairs could have resulted in the skull fracture
that ultimately lead to his cardiac arrest and death.” Tr. 589, 600. She disagreed
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with Dr. Sterbenz’s conclusion that there were multiple impacts to the back of the
skull. Tr. 634. She concluded a single impact caused the fracture; there was no
evidence of multiple impacts. Tr. 634-635. She also disagreed with him about when
the injury occurred in relation to death. She indicated it could have happened 48 to
72 hours prior to death. Tr. 640, 642-643. She testified given the brain swelling,
there was survival for a period of time after the injury. Tr. 594. Children who are hurt
and die immediately after do not have brain swelling because brain swelling occurs
over time; brains of children who died immediately look perfect because there is no
time for brain swelling. Tr. 594-595. She stated brain swelling peaks at 48 to 72
hours. Tr. 635. She likewise disagreed that retinal hemorrhaging was an indication
RayVon was abused. Dr. Ophoven testified there could be at least five reasons why
there was bilateral retinal hemorrhaging in this case. Tr. 598. One could be impact
trauma, another could be brain swelling, a third could be a clotting abnormality, a
fourth could be lack of oxygen, and a fifth could be CPR. Tr. 597-598. She indicated
the bilateral retinal hemorrhaging has no value in interpreting what did or did not
happen at the residence. Tr. 599. Given all the evidence, she opined RayVon was
not abused and his death was caused by an fall down a couple of steps. Tr. 679,
681.
{¶47} Based upon the above, Appellant asserts the jury clearly lost its way
when it found him guilty of felony murder because the evidence does not support
such conclusion. The evidence, in his opinion, establishes RayVon died because of
a fall down a couple of steps. He contends the testimony at least raises a reasonable
doubt as to whether he abused RayVon and caused his death.
{¶48} The state, on the other hand, asserts the evidence indicates, beyond a
reasonable doubt, Appellant abused RayVon and caused his death. As set forth in
the second assignment of error, the state presented evidence from Dr. Sterbenz and
Dr. Malhotra to support the position the child was abused and the abuse resulted in
death. Both doctors described the injuries and provided reasoning for their
conclusions. The pediatric intensivist, Dr. Malhotra, testified about RayVon’s injuries
and the indication of abuse, which were set forth above. He stated after a massive
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skull fracture, like the one in this case, the child would not be laughing. Tr. 435. Dr.
Sterbenz also described the injuries and concluded the type of injuries RayVon
sustained would result in immediate disability and quick death; the injury did not
occur two days prior to death. Tr. 499. He indicated there were multiple blows to the
head and the injury was not consistent with an accidental fall. Tr. 505-506. In
addition to the medical testimony, the state argued Appellant’s demeanor and
statements to police, the paramedic, and hospital personnel do not support the
conclusion the injury was caused by a fall.
{¶49} Regarding Appellant’s demeanor, witnesses testified Appellant was not
emotional and did not seem concerned. Officer Chaibi indicated he found Appellant
and Artist outside the house, while the child was laying on the couch and not
breathing. Tr. 312. Officer Chaibi stated Appellant was not emotional or crying, and
did not seem concerned. Tr. 315-316. Officer Chaibi described Appellant’s
demeanor as “another day at the office.” Tr. 315. He stated, in his 18 years of
experience, Appellant’s demeanor was very odd considering the circumstances. Tr.
316-317. Kimberly Nosek, the paramedic, similarly testified Appellant seemed
unattached to the situation. Tr. 330-331, 343.
{¶50} As to his statements to police, the paramedic, and hospital personal, he
did not tell them of a fall, even when asked. Officer Chiabi testified Appellant did not
tell him the child fell and/or hit his head. Tr. 318-319. Dr. Malhotra testified Appellant
did not tell Akron Children’s Hospital about RayVon falling and hitting his head. Tr.
412. Nosek, the paramedic, stated she asked if there was any trauma, such as the
child being in a car accident, falling, or hitting his head. Tr. 344. Appellant denied
any accident, falls, or hitting his head. Tr. 344. Furthermore, during his interview
with Detective Sergeant Patton, when asked if RayVon had fallen or hit his head,
Appellant did not state the child had fallen down the steps. Rather, he stated the
child had bumped his head and described the event as RayVon sitting back “real
hard” and hitting his head on the wall. State’s Exhibit No. 8. The statement
regarding the fall down the steps came from Artist, who did not see the fall, but said
Appellant told her it happened.
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{¶51} This case is a battle of the experts and doctors; each side presented a
plausible theory. Appellant’s experts asserted the evidence indicated RayVon’s
death was caused by falling down a couple steps two days prior to his death. One of
Appellant’s experts offered the opinion that RayVon was not abused. Conversely,
the state presented evidence from two doctors that the injury occurred shortly before
death and the evidence demonstrated RayVon was abused. The undisputed
evidence indicated Appellant was the only person alone with the child shortly before
death. We have recently explained circumstantial evidence that a person caused
serious brain injuries to an infant can exist where the baby is alone with the
defendant during the time when the injury was likely sustained. State v. Lee, 7th
Dist. No. 14 Ma 120, 2016-Ohio-649, ¶ 50 (see string cite for other districts
supporting such conclusion).
{¶52} Considering the two plausible theories, it was the jury’s province to
determine which evidence and experts to believe. The jury was in the best position
to assess the credibility of witnesses and determine the weight to give to the
evidence. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph
one of the syllabus. There is no indication this case presents exceptional
circumstances requiring our intervention in the fact-finder's weighing of the evidence.
In resolving the conflicting expert opinions, we cannot conclude 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. This assignment of error is overruled.
Fourth Assignment of Error – Cumulative Error
{¶53} Appellant’s fourth assignment of error provides:
“Multiple instances of error, if not reversible on their own, render this case
reversible on a theory of cumulative error.”
{¶54} Cumulative error exists only where the harmless errors during trial
actually “deprive[d] a defendant of the constitutional right to a fair trial.” State v.
DeMarco, 31 Ohio St. 3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
There is no such thing “as an error-free, perfect trial, and * * * the Constitution does
not guarantee such a trial.” State v. Hill, 75 Ohio St. 3d 195, 212, 661 N.E.2d 1068
 -15-
(1996), quoting United States v. Hasting, 461 U.S. 499, 508–509, 103 S. Ct. 1974
(1983). To support a claim of cumulative error, there must be multiple instances of
harmless error. State v. Garner, 74 Ohio St. 3d 49, 64, 656 N.E.2d 623 (1995).
{¶55} Appellant references three harmless errors occurring during trial and
argues these errors constituted cumulative error depriving him of a fair trial. The
state disagrees and asserts Appellant has failed to show the alleged errors had the
cumulative effect of depriving him of a fair trial.
{¶56} Two of the alleged errors Appellant references are about testimony of
bruises on RayVon that occurred a week or so prior to his death. Prior to trial,
Appellant filed a motion in limine; it was seeking to prevent the state from offering
evidence about two alleged prior instances of Appellant causing injury or handling the
child roughly. 1/22/15 Motion. The first instance occurred on November 30, 2012.
There was a complaint from Stewart’s neighbor that she saw a guy in a black car
handle RayVon roughly by placing him in the car by his collar. 1/22/15 Motion. The
second instance occurred sometime in late November or early December. 1/22/15
Motion. Stewart contacted police after RayVon came home from a visit with his
father, and had scratches on his face, bruising on both sides of his face, and a split
upper lip. 1/22/15 Motion. The case was referred to Children’s Services on
December 3, 2012. Over the state’s objection, the trial court granted the motion in
limine. 5/22/15 J.E.
{¶57} The state recalled two of its witnesses for rebuttal, Rhea Stewart and
Dr. Sterbenz. Stewart was recalled to testify RayVon had a bruise on his face when
he went to Appellant’s house on December 8, 2012 and this was an older bruise. It
was during this testimony that the alleged nonreversible harmless error occurred.
Stewart was asked whether RayVon had any marks on him when he went to
Appellant’s home on December 8, 2012. Tr. 1008. She stated he had a mark on his
face. Tr. 1008-1009. The state asked how long the child had the mark. Tr. 1009.
Stewart replied, “maybe a couple days prior to me dropping him off.” Tr. 1009.
Instead of stopping at that point, the state then asked, “What about – since
November 30, is that when that mark – came to fruition?” Tr. 1009. Stewart
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responded yes. Tr. 1009. Appellant objected and moved for a mistrial arguing the
ruling on the motion in limine prohibited the state from mentioning the November 30
date and referencing the alleged rough handling of RayVon. Tr. 1009-1013.
{¶58} The state alleged it was using the testimony to dispute Dr. Ophoven’s
testimony that the bruise was caused by resuscitation and was not an old bruise. Tr.
1010.
{¶59} Upon reviewing the testimony it becomes clear the state did not have to
use the November 30 date to make its point. Stewart testified the bruise was there
prior to her dropping off RayVon. This disputed Dr. Ophoven’s testimony that the
bruise probably happened during resuscitation. It also reinforced Dr. Sterbenz’s
testimony that the bruise was an old bruise; Stewart’s testimony may have helped
increase Dr. Sterbenz’s credibility. The state did not need to mention November 30
to make its point. Thus, by asking about November 30 specifically, the state’s line of
questioning could be seen as an attempt to get the November 30 alleged instance of
rough handling before the jury.
{¶60} The second alleged harmless error is referred by Appellant as “a
children services’ investigation referencing the ‘victim and his family.’” Appellant
does not cite to the transcript where the children services’ investigation was
referenced. However, it appears he is discussing Dr. Ophoven’s testimony where the
trial court determined she opened the door to reference the children services’
investigation for purposes of attacking her credibility. Tr. 667-671. During her
testimony she indicated there was no evidence the child was mishandled and that
was something she considered in determining whether the death was caused by
abuse or by an accidental fall. Tr. 646, 650. This testimony opened the door for
questioning her on her knowledge of any prior mishandling incidents. Tr. 667.
{¶61} Dr. Ophoven testified she reviewed a police report from November 30,
2012 and was aware of another reported incident being investigated. Tr. 673-674.
She stated it did not have anything to do with her evaluation. Tr. 674. The state then
asked if this was another incident of abuse of RayVon by Appellant. Tr. 674.
Appellant objected and the trial court sustained the objection. Tr. 674-675. The
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testimony proceeded and Dr. Ophoven was asked about the bruises on RayVon’s
face and the children services’ investigation regarding the bruises. Tr. 677. Dr.
Ophoven then clarified her earlier testimony to explain there was “no evidence of
rough handling at the time of the postmortem.” Tr. 677. She indicated there was
nothing to suggest the child had been abused when he came to the hospital. Tr. 677.
{¶62} The third alleged instance of harmless error concerned a conversation
Appellant’s relative initiated with two jurors. Tr. 836-891. Two jurors reported that
while at lunch a relative of Appellant talked to them and told them, “My nephew is
innocent. We are churchgoing people.” Tr. 839, 854. They responded “thank you”
and we cannot talk to you. Tr. 839, 854. Both jurors testified the relative started the
conversation and they both had their juror tags visible. Tr. 839, 854. The alternative
juror joined them after the conversation and they told him about the discussion. Tr.
844, 859. After questioning by the trial court, the state, and defense counsel, all
three jurors indicated the conversation did not affect them and did not impact their
ability to make a fair decision. Tr. 848-849, 859, 870-871.
{¶63} Appellant made no objection to the trial going forward; and, in fact, he
stated he wanted it to go forward. Tr. 881.
{¶64} Considering all three instances in conjunction with each other, this court
concludes there is no reversible cumulative error. The reference to the children
services investigation in Dr. Ophoven’s testimony was not error. The door was
opened by Dr. Ophoven. Any statements regarding prior abuse were objected to,
and a response to the question was not permitted. Furthermore, the issue regarding
the conversation with the jurors did not warrant the trial court granting a mistrial sua
sponte. The jurors indicated they could decide the case fairly. Furthermore,
Appellant clearly indicated he wanted the trial to go forward. Potentially harmless
error occurred during Stewart’s rebuttal testimony as it related to the November 30
date. However, one instance of harmless error does not amount to cumulative error.
{¶65} For those reasons, this assignment of error lacks merit.
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Conclusion
{¶66} All assignments of error lack merit. The conviction and sentence are
affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.