State v. Deems

[Cite as State v. Deems, 2016-Ohio-5608.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
BENJAMIN M. DEEMS : Case No. 15CA101
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from Court of Common
Pleas, Case No. 2015CR0191
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 22, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL M. ROGERS JEFFREY P. ULRICH
38 South Park Street P.O. Box 1977
Mansfield, OH 44902 Westerville, OH 43086
Richland County, Case No. 15CA101 2
Farmer, P.J.
{¶1} On February 26, 2015, the Richland County Grand Jury indicted appellant,
Benjamin Deems, on four counts of endangering children in violation of R.C.
2919.22(A), (B)(1), and (E)(2)(c) and (d), and three counts of felonious assault in
violation of R.C. 2903.11(A)(1). Said charges arose from incidents involving appellant
and his infant son, B.D., born December 16, 2014. The infant suffered permanent brain
damage and nineteen rib fractures. Mother of the infant is Amanda Isaac.
{¶2} Prior to trial, one of the endangering children counts and one of the
felonious assault counts were dismissed. A jury trial commenced on the remaining
counts on October 26, 2015. The jury found appellant guilty on all counts. By judgment
entry filed November 2, 2015, the trial court merged some of the counts and sentenced
appellant to an aggregate term of nineteen years in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE CONVICTIONS OF CHILD ENDANGERING AND FELONIOUS
ASSAULT AGAINST DEFENDANT ARE NOT SUSTAINED BY THE EVIDENCE AND
ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
I
{¶5} Appellant claims his convictions for child endangering and felonious
assault were against the sufficiency and manifest weight of the evidence as there was
no evidence to establish when the injuries were inflicted on B.D. and who inflicted the
Richland County, Case No. 15CA101 3
injuries, and no evidence was presented to establish that he knew or should have
known that B.D. was in need of medical attention. We disagree.
{¶6} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St. 3d 259 (1991). "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." Id. at
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On
review for manifest weight, a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "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. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). See
also, State v. Thompkins, 78 Ohio St. 3d 380, 1997-Ohio-52. The granting of a new trial
"should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction." Martin at 175.
{¶7} We note circumstantial evidence is that which can be "inferred from
reasonably and justifiably connected facts." State v. Fairbanks, 32 Ohio St. 2d 34
(1972), paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain,
satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St. 3d 353,
1992-Ohio-44. It is to be given the same weight and deference as direct evidence.
Jenks, supra.
Richland County, Case No. 15CA101 4
{¶8} Appellant does not contest the fact that B.D.'s severe and/or permanent
injuries (permanent brain damage and nineteen rib fractures) were the result of the
infant being violently shaken and significant pressure being applied to his rib cage.
Appellant's Brief at 10. However, he argues there were no witnesses to the infliction of
the injuries, someone else could have caused the injuries e.g., Amanda Isaac, the
infant's mother, and no evidence was presented to establish that he knew or should
have known that B.D. was in need of medical attention. Appellant also argues despite
the various negative factors reflecting on his parenting skills, none of them provided an
"actual nexus between the injuries sustained by B.D. and the actual causation of those
injuries." Appellant's Reply Brief at 1.
{¶9} Appellant was convicted on three counts of endangering children in
violation of R.C. 2919.22(A), (B)(1), and (E)(2)(c) and (d) which state:
(A) No person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a child under
eighteen years of age or a mentally or physically handicapped child under
twenty-one years of age, shall create a substantial risk to the health or
safety of the child, by violating a duty of care, protection, or support.***
(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.
Richland County, Case No. 15CA101 5
(E)(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:
(c) If the violation is a violation of division (A) of this section and
results in serious physical harm to the child involved, a felony of the third
degree;
(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.
{¶10} Appellant was also convicted on two counts of felonious assault in
violation of R.C. 2903.11(A)(1) which states: "No person shall knowingly do either of the
following: [c]ause serious physical harm to another or to another's unborn."
{¶11} Based upon the charges, the state was required to prove that appellant
recklessly abused B.D. on at least two occasions and the infant suffered serious
physical harm as a result of the abuse, and appellant recklessly created a substantial
risk to B.D.'s health and caused him serious physical harm by violating a duty of care to
B.D. There is no dispute that the infant suffered two separate injuries: permanent brain
damage and nineteen rib fractures.
{¶12} Steven Gregory Escue, M.D., the emergency room physician who
examined B.D. on February 13, 2015, testified the infant presented as nonresponsive,
his eyes were deviated to the left, and his stomach was "very distended, very firm, very
swollen." T. at 223; State's Exhibits 4 and 5. X-rays showed the infant had multiple rib
Richland County, Case No. 15CA101 6
fractures on both sides of his chest, and they were in "multiple different ages and stages
of healing." T. at 231, 238, 240; State's Exhibit 7. Therefore, there were at least two
separate trauma incidents. T. at 232, 240. Dr. Escue opined on a child it would take "a
lot of force to break a rib" because an infant's ribs are more flexible. T. at 233-234.
{¶13} Richard Daryl Steiner, D.O., Medical Director of the Care Center at Akron
Children's Hospital, testified the infant suffered a head injury, a neck injury, multiple rib
fractures, and an abdominal injury "which was a tearing of one of the major lymphatic
ducts inside the abdomen that caused fluid to collect inside his belly." T. at 391. The
traumatic brain injury resulted from a nonimpact trauma to the head, and the nineteen
rib injuries were inflicted as opposed to accidental. T. at 381, 387, 389, 394; State's
Exhibit 13. The traumatic brain injury and the neck injury were caused by the head
being "whiplashed back and forth" and "whiplash shaking." T. at 389, 392. The rib
injuries were to the back, sides, and front of the rib cage. T. at 393. Some of the rib
fractures had healed or were in the process of healing, indicating they "occurred at a
time about two to three weeks" prior to hospitalization. T. at 393. Dr. Steiner opined
B.D. "suffered multiple episodes of physical abuse over the course of the previous two
to three weeks." T. at 400.
{¶14} The challenge to the jury verdict rests solely on whether it was proven,
either by direct or circumstantial evidence, that appellant caused the two traumatic
injuries to the infant and created a substantial risk to the infant's health by violating a
duty of care.
{¶15} Appellant told police officers he was B.D.'s primary caregiver. T. at 303,
332. During his testimony and to the police officers, appellant related three incidents to
Richland County, Case No. 15CA101 7
justify the infant's injuries. In the first incident, the infant slipped out of appellant's hands
while being dressed and hit the hardwood floor. T. at 302, 446-447. In the second
incident, when the infant was about one month old, he rolled off the couch onto the
floor. T. at 302, 305, 464. The third incident right before the hospitalization on February
13, 2015, occurred when the infant started to throw up after feeding, began choking,
and "really wasn't breathing." T. at 295, 435, 456. Appellant started "patting both sides
of his back and front," "hitting him pretty hard," trying to get B.D. to breathe. T. at 295-
296, 435, 438, 441, 468-469. After the infant started breathing, "like a gasp," appellant
called the infant's mother at work. T. at 439-440. Appellant picked up mother and
drove the infant to the hospital instead of calling 911 because "I just figured that I can
get him there faster." T. at 442.
{¶16} Appellant's explanations of the earlier falls and him hitting the infant during
the choking incident, as well as the infant's birth and family medical history, were
rejected by the medical experts as the cause(s) of the injuries suffered by B.D. T. at
233, 236, 373, 387-389, 395-399. Both Dr. Escue and Charles Shaw, M.D., the infant's
pediatrician, testified infants roll over "around four months." T. at 233, 365.
{¶17} Dr. Shaw testified B.D. was a healthy newborn from his birth on December
16, 2014, to his four day check-up on December 20, 2014, to his follow-up check-up on
December 31, 2014. T. at 352, 356-357. The first report of any problems was a
telephone call to Dr. Shaw's office on January 27, 2015, to report swollen testicles. T.
at 359. Another telephone call on February 5, 2015, was to report constipation. T. at
360. Appellant testified the infant had a swollen belly starting around February 9, 2015,
and "[i]t gradually got big." T. at 436-437. Although a regularly scheduled appointment
Richland County, Case No. 15CA101 8
with Dr. Shaw was set for February 10, 2015, the appointment was rescheduled
because appellant was running late. T. at 362, 437. On February 13, 2015, the infant's
mother called Dr. Shaw's office to report the vomiting and choking incident and was
directed to go to the emergency room. T. at 364. Other than the listed dates, no other
telephone calls were made to Dr. Shaw's office. Id. Appellant stated he called Dr.
Shaw's office to report the infant's enlarged belly on February 9, 2015 and/or after. T. at
304, 437, 465. Dr. Shaw stated a telephone call was not received and an enlarged belly
was never reported. T. at 360-361.
{¶18} Appellant testified the infant cried and fussed all the time and he admitted
it frustrated him, and although the infant's mother was alone with B.D., he "didn't believe
it was her." T. at 446, 462-463.
{¶19} The jury was faced with determining whose explanation for the injuries
was more credible, the medical experts' or appellant's version. The weight to be given
to the evidence and the credibility of the witnesses are issues for the trier of fact. State
v. Jamison, 49 Ohio St. 3d 182 (1990). The trier of fact "has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page." Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 1997-
Ohio-260.
{¶20} Upon review, we find there was substantial credible evidence to support
the jury's verdict, and find no manifest miscarriage of justice.
{¶21} The sole assignment of error is denied.
Richland County, Case No. 15CA101 9
{¶22} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, P.J.
Hoffman, J. and
Wise, J. concur.
SGF/sg 811