State v. Partin

[Cite as State v. Partin, 2020-Ohio-4624.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-05-079
: OPINION
- vs - 9/28/2020
:
LINDSAY PARTIN, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-03-0462
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Rittgers & Rittgers, Attorneys at Law, Neal D. Schuett, 121 West High Street, Oxford, Ohio
45056, for appellant
RINGLAND, J.
{¶1} Lindsay Partin appeals her convictions in the Butler County Common Pleas
Court for endangering children, involuntary manslaughter, and murder. For the reasons
described below, this court affirms Partin's convictions.
{¶2} This case involves the death of Hannah Wesche, who was hospitalized with
a traumatic brain injury on March 8, 2018, never recovered, and passed away ten days
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later. Hannah was 3 years and 2 months old at the time of her passing.
{¶3} Partin had been Hannah's babysitter. On the morning of March 8, Hannah's
father, Jason Wesche, dropped Hannah off with Partin and left to go to work. Minutes later,
Partin called Jason and told him that something was wrong with Hannah. Jason raced
back. Hannah was struggling to breath and unresponsive. Emergency responders rushed
Hannah to the hospital.
{¶4} Hannah had multiple bruises over her body, hemorrhages in both eyes, and
a CT scan revealed a large subdural hemorrhage. Given her injuries, doctors and
investigators suspected that Hannah's injuries were nonaccidental.
{¶5} Detectives interviewed Partin that day. Partin denied any knowledge of what
happened to Hannah, claimed that she seemed fine, and stated that Hannah just collapsed
upon walking into Partin's home. Detectives interviewed Partin again the following day,
during which she made multiple inculpatory statements admitting to excessively disciplining
Hannah earlier that week and shaking Hannah on the morning of March 8.
{¶6} Following Hannah's death, a Butler County grand jury indicted Partin on six
counts. Counts one and two charged Partin with committing felony endangering children
against Hannah on the two days leading up to March 8, 2018. The remaining counts
charged Partin with acts occurring on March 8, 2018, constituting felony endangering
children (counts three and five), involuntary manslaughter (count four), and murder (count
six). Counts three and five served as the predicate, underlying offenses for counts four and
six, respectively.
{¶7} The matter proceeded to a jury trial in April 2019. The state played Partin's
call to 9-1-1, in which she relayed that Hannah had just "passed out." Partin told the
dispatcher that Hannah "was fine," that she "walked into the house and just passed out"
and that she "went limp." Twice during the call, Partin mentioned that Hannah "fell really
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bad yesterday." Partin also mentioned a bruise under Hannah's chin.
{¶8} Evan Reedy, an EMT, responded to the 9-1-1 call at Partin's residence,
located at 4050 Shank Road, Hanover Township. EMT Reedy testified that when he
arrived, Hannah was laid on a couch. Her breathing was like a "sniffing," shallow and
irregular. Her eyes were moving, but without purpose. Reedy noticed some bruising on
various parts of Hannah's body, including the chest and eyes, which appeared sunken.
Partin told him, another EMT, and a deputy on scene, that Hannah had fallen after standing
on a toy a day earlier. Reedy and the other EMT secured Hannah for travel and then
transported her to Fort Hamilton Hospital.
{¶9} Deputy Damon Mayer testified that he was on road patrol for the Butler County
Sheriff's Office that morning and responded to the 9-1-1 call. He noted bruising on
Hannah's left eye and chin. Partin told him that Hannah had walked through the garage,
walked up the steps, asked Partin for a donut and to sit on the couch, and then "passed
out," falling forward onto the carpeted floor. Partin also said that on the previous day, at
4:00 p.m., Hannah had been playing in the garage and fell and hit her head on concrete.
Partin said she had informed Jason about this accident.
{¶10} Dr. Ahn Quan Nguyen, an emergency room physician at Fort Hamilton
Hospital, treated Hannah upon her arrival. Hannah was unresponsive and not able to
breathe on her own. Dr. Nguyen intubated Hannah and placed her on a ventilator. He
observed multiple bruises on Hannah's body, and further observed that her pupils were not
reacting appropriately, and that there was blood behind her eyes. Dr. Nguyen ordered a
CT scan of Hannah's head, neck, and face. Dr. Nguyen ordered that Hannah be transported
by air care to Cincinnati Children's Hospital for further treatment. Hannah left on an air care
flight approximately one hour after arriving at Fort Hamilton Hospital.
{¶11} Dr. Marguerite M. Caré is the staff neuroradiologist at Cincinnati Children's
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Hospital and testified for the state as an expert in pediatric radiology. On March 8, 2018,
Dr. Caré reviewed Hannah's CT scans taken at Fort Hamilton Hospital. Hannah had a large
subdural hemorrhage that was causing the mid-line of her brain to shift over to one side of
her skull. Dr. Caré explained that this shifting would have caused brain injuries and
significant brain abnormalities.
{¶12} Dr. Caré noted that the most likely cause of the subdural hemorrhage was
trauma. Furthermore, Dr. Caré opined that the subdural hemorrhage seen in Hannah's
case was not consistent with everyday accidents, like a fall, but instead was consistent with
"abusive head trauma." With Hannah's injuries, Dr. Caré would not have expected her to
be walking, or able to breathe on her own, and she would have been unconscious.
Furthermore, Dr. Caré opined that these symptoms would have started within seconds of
the injury.
{¶13} Based on Hannah's CT scans, Dr. Caré determined that Hannah required
immediate medical intervention. She shared her findings with a neurosurgeon who then
removed a part of Hannah's skull in order to drain the hemorrhage. The surgery was
successful in draining the hemorrhage. However, because Hannah's brain had swollen
from the injury, it began to swell out of the area where the surgeon removed the portion of
skull.
{¶14} Dr. Michael Yang is a board certified ophthalmologist at Cincinnati Children's
Hospital and testified for the state as an expert witness in pediatric ophthalmology. Dr.
Yang examined Hannah's eyes and found them to be extensively hemorrhaged.
Hemorrhages were present in all three layers of the eye. Dr. Yang opined that Hannah's
eye condition was most consistent with nonaccidental abusive head trauma and severe
brain injury.
{¶15} Dr. Ranjit Chima testified that he was one of the physicians in the pediatric
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ICU responsible for Hannah's care following her emergency surgery. While in the ICU,
Hannah never regained consciousness and her neurological condition deteriorated. After
three days, Dr. Chima determined that Hannah was progressing towards brain death. On
March 18, 2018, after meeting the criteria for brain death, doctors pronounced Hannah
deceased.
{¶16} Dr. Dorothy Dean is a forensic pathologist and performed Hannah's autopsy.
She testified for the state as an expert witness in forensic pathology. Dr. Dean noted that
Hannah weighed 32 pounds and was 38.5 inches long. After shaving Hannah's hair, Dr.
Dean located bruises on the back and right side of Hannah's head. Dr. Dean examined
underneath the skin on the back of Hannah's head and located two additional bruises. Dr.
Dean further located a bruise in the deep muscle of the neck.
{¶17} Dr. Dean noted that Hannah had "tremendous" hemorrhages in her eyes.
Upon examining Hannah's brain, Dr. Dean observed "tremendous" brain swelling and a
shearing injury to the brain. Dr. Dean opined that Hannah's cause of death was a traumatic
brain injury due to a blunt, tremendous force that went through her brain. A fall from ground
level would not cause the injuries observed. Hannah would not have been walking, talking,
or behaving in a normal fashion after receiving the injury, and would have been
neurologically abnormal and unresponsive "within moments." Dr. Dean opined that
Hannah's manner of death was homicide.
{¶18} Dr. Kathi Makoroff, Associate Professor of Pediatrics at the Mayerson Center
at Cincinnati Children's Hospital, testified for the state as an expert in child abuse pediatrics.
At trial, she reviewed a series of medical file photographs, which were introduced into
evidence, depicting the injuries observed on Hannah when she arrived at Children's
Hospital. She noted multiple bruises that she found concerning for child abuse including
those bruises around Hannah's eyes, left ear, under her chin, her flanks, upper arms, and
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buttocks. Given Hannah's overall medical condition, Dr. Makoroff opined that Hannah's
injuries were nonaccidental with a diagnoses of child physical abuse and abusive head
trauma.
{¶19} Dr. Makoroff further opined that Hannah's injuries were not caused by a fall
or multiple falls and that much greater force was involved in causing the injuries. Shaking
alone could have caused the injuries that resulted in Hannah's death. Furthermore, Hannah
would have been unresponsive after the injury.
{¶20} On cross-examination, defense counsel asked Dr. Makoroff if her opinion
testimony about bruises was "about the location and pattern of bruises on Hannah's body."
Dr. Makoroff agreed that she testified in that manner as to some of the bruises. Defense
counsel then questioned Dr. Makoroff as to whether she had offered an opinion about
patterns and locations of bruises in her expert opinion letter, which was provided in advance
of trial to the defense. The state objected to this line of questioning and a sidebar ensued.
The court ultimately found that Dr. Makoroff's opinion testimony that related to the patterns
and locations of bruises was within the scope of the opinion letter.
{¶21} Detective Janee Lambert testified that investigators first questioned Partin in
a formal interview on March 8, 2018, which interview was video-recorded and admitted into
evidence. In the recording, a detective initially read Partin her Miranda rights. Partin
indicated she understood her rights and executed a Miranda rights waiver form.
{¶22} As the interview began, a detective told Partin that Hannah had died, which
was not true at the time. Partin denied any knowledge of what caused Hannah to become
unresponsive. She stated that Jason had carried Hannah into the garage that morning.
She examined Hannah's face and told Jason that "her face looks good" and "her bruise
looks better." Hannah asked Jason for another hug and double kisses before Jason left.
Hannah was acting "completely normal," was not acting different, and only acted a little
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tired. Hannah told Partin that she wanted "couch and donut" and then fell face forward on
to the carpet. It happened within 30 seconds. Partin called Jason first before calling 9-1-
1.
{¶23} Later, detectives paused their questioning and left Partin alone in the interview
room. During this time, Partin announced aloud, "I am going to prison for the rest of my
life." When the interview resumed, Partin told detectives she had seen bruises sometimes
on the back of Hannah's head and on her arms. Hannah had also fallen on some gravel
on Tuesday, March 6. The next day, Partin had been "trying to make her chin look better"
by using vapor rub.
{¶24} Lead Detective Dan Turner testified concerning a second interview with
Partin, which he and another detective conducted on March 9, 2018. The second interview
was video-recorded and admitted into evidence. Again, Partin was informed of her Miranda
rights and again waived them in writing.
{¶25} During this interview, Detective Turner produced photographs taken at the
hospital of the various external bruising found on Hannah. While reviewing the
photographs, Partin reiterated her earlier claims that certain bruises were the result of falling
on gravel on Tuesday, March 6 or falling off a toy in Partin's garage on Wednesday, March
7. Partin again denied any knowledge of what caused Hannah to collapse in her home on
the morning of March 8.
{¶26} Approximately 50 minutes into the interview, Partin admitted for the first time
that something had happened to Hannah in Partin's home on Thursday morning. Hannah
had slipped at the entry door between the house and garage and hit her head on a concrete
step. Partin said that after the fall, she picked Hannah up and then Hannah said, "I want
donut and couch." And then Hannah collapsed.
{¶27} Detectives told Partin that the fall she had just described would not have
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caused Hannah's injuries based on what Hannah's physicians were relaying to them and
encouraged her to tell the truth. Partin then changed her story. She now stated that "when
I opened the door, I dropped her, and I slipped and fell." Partin said she slipped on
Hannah's blanket, they both fell, and Hannah hit her head on the metal part of the concrete
step. Hannah hit "really hard." Partin showed the detectives a bruise on her hand, which
allegedly resulted from the fall.
{¶28} The detectives continued to question Partin and informed her that a fall would
not cause the severe injuries suffered by Hannah. Partin then admitted that she "probably
shook" Hannah "hard," after the fall, for one minute. Hannah's head was "snapping around."
Partin was panicked. She also "probably" dropped Hannah.
{¶29} Partin later modified her story once more and admitted that she shook Hannah
before the alleged fall. Partin explained that Hannah had been whining because she did
not want her father to go to work. Partin shook her, picked her up, squeezed her, then they
fell. She shook Hannah again after they fell.
{¶30} Partin admitted that she was frustrated. Hannah had been whining after her
father every morning. Partin demonstrated violently shaking Hannah and yelling, "stop
doing this already!" Partin admitted that she shook Hannah until she stopped whining.
{¶31} With respect to some of the bruising around Hannah's head, Partin explained
that earlier in the week she "slapped" Hannah "upside the head" because Hannah took
ketchup and squirted it into the toilet. With regard to the bruise under Hannah's chin, Partin
admitted that she twice struck Hannah under the chin. She demonstrated the double-strike
with an uppercut-like motion using a martial arts-style clawed fist.
{¶32} With regard to the bruises observed on Hannah's chest, which Partin had
earlier claimed were from when Hannah fell on gravel or rocks, Partin confessed that these
bruises were from physical discipline. Partin demonstrated aggressively poking Hannah
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while yelling "Hannah! You know better!" Partin also demonstrated how she squeezed
Hannah around the middle or her body to discipline her. When asked why she would do
these things to Hannah, Partin explained that it was because Hannah was mischievous and
because Partin was frustrated with personal problems.
{¶33} Jason Wesche testified that he and Hannah lived at 4004 Shank Road, which
was about 300 feet from Partin's residence. Partin babysat Hannah during the day, baby
sat other children, and took care of her own children. The week of March 4, 2018, he had
conversations with Partin about some injuries observed on Hannah. Hannah had bruises
all over her chest and a "pretty bad" scrape on the chin. Partin told him that these occurred
because Hannah had fallen on rocks in the driveway. On another day, Partin told him that
Hannah stepped on top of a toy on wheels and it "kicked from underneath her. And she fell
on the handlebar." Hannah had bruising around her eye from this incident.
{¶34} On the morning of March 8, 2018, Jason helped Hannah put on her coat and
shoes and at 6:52 a.m., Jason sent Partin a text indicating that they were "getting ready to
head over" as he and Hannah left 4004 Shank Road. Partin texted him back "ok."
{¶35} Jason testified that he and Hannah left the home and went to his car. That
morning Hannah wanted to lay in the backseat for the drive over. They drove to Partin's
residence. Jason estimated that he would have arrived at the Partin residence three
minutes after sending the text, or 6:55 a.m. 1
{¶36} Jason carried Hannah, who was wrapped in a blanket, into Partin's garage
and gave Hannah hugs and kisses. That morning was different because Hannah kept
asking for more kisses. Then, Partin took Hannah and he walked away. He did not see
1. On March 5 and March 6, Jason texted Partin indicating that he was bringing Hannah over, and in those
texts, he indicated he would arrive at Partin's home in 3 minutes and 2 minutes respectively.
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them enter the home, but they were headed that way.
{¶37} Jason got into his car and then drove down to his work truck located at a
business down at the end of Shank Road.2 He got out of his vehicle, got into his work truck
and started it, then got back into his vehicle. He then saw that he had missed a call from
Partin. He returned the call and Partin told him there was something wrong with Hannah.
Jason then raced back to the Partin residence.
{¶38} Jason also testified about his activities on Wednesday March 7, 2018. That
evening, he picked up Hannah from Partin's home at 7:00 p.m. A friend of his, Chris Davis,
had stayed at 4004 Shank Road that day. After picking up Hannah, Jason and Hannah
drove Chris to Chris' residence in Fairfield, Ohio. Then they returned to 4004 Shank Road
and he and Hannah lay on the couch and went to sleep.
{¶39} Jason admitted that at the start of the investigation he told detectives that he
had gone to Wal-Mart on the evening of March 7 to get milk for Hannah and that he had not
mentioned Chris or travelling to Fairfield. He remembered what had actually occurred after
talking with Chris before he was going to testify. He told Detective Turner about this
recollection the day before his testimony.
{¶40} The state introduced Partin's cell phone records, which revealed that Jason
texted "getting ready to head over" at 6:52:17 a.m. Partin responded, "Ok" at 6:52:55 a.m.
Partin then called Jason at 7:00:47 a.m., which call was not answered. Jason returned the
call at 7:01:24 a.m. Partin called 9-1-1 at 7:02:51 a.m., which call lasted 13 minutes until
emergency responders arrived.
{¶41} On March 7, at 8:48 a.m., Partin used her phone's Google app to search "how
2. The record is unclear concerning the distance between the Partin residence and the business. Based on
an aerial map of Shank Road introduced into evidence, the business appears to be located less than a quarter
mile from the Partin residence.
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to get rid of a bruise." This search was found to have been deleted from the phone. The
same day, at 2:56 p.m., Partin searched "what essential oil is good for bruises" and "is
vaporub good for bruises." These two searches were not deleted. On March 8, at 9:13
p.m., Partin again searched "how to get rid of a bruise." This search was deleted.
{¶42} Partin took the stand in her defense case. She denied causing any harm to
Hannah between March 6 and March 8, 2018. She told detectives what she did in the
second interview because she wanted to "protect everybody." This was because the
detectives were asking about whether Partin's husband or Jason could have harmed
Hannah and she did not want anyone to be in trouble.
{¶43} Partin estimated that it took Jason 7 to 8 minutes to arrive after he sent his
text at 6:52 a.m. Jason walked in with Hannah wrapped in a blanket. Partin and Jason
"chit-chatted" about the snow and vapor rub. She looked at Hannah for "a second" and
then told Jason that it looked like the vapor rub "worked." He said "yeah." Hannah stood
up, grabbed Partin's hand, and the two walked into the residence. Partin then asked
Hannah if she wanted to go to the couch or go to sleep, because Hannah seemed tired.
Hannah responded, "donut and couch." She then collapsed. Partin said she had Hannah
for ten seconds before she collapsed.
{¶44} Partin said she saw bruising below Hannah's chin on Wednesday morning
and put vapor rub and essential oils on it. She assumed it was from when Hannah fell on
gravel the day before. Partin admitted that her story about Hannah putting ketchup in the
toilet was a lie.
{¶45} On cross-examination, Partin stated that she did not think she would get in
trouble for telling detectives that she had hurt Hannah because Jason would "back me up."
She confirmed that she did not believe she would be in trouble for poking Hannah in the
chest, squeezing her in the middle, hitting her with a closed fist multiple times under the
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chin, and shaking her. Partin also confirmed that the story about her falling with Hannah
was a lie and she also lied about getting a bruise on her hand from that fall. She told
detectives the lie about the bruise on her hand because it "seemed logical at the time."
{¶46} The jury convicted Partin on all six counts. During sentencing the court
informed Partin of her duty to register as a violent offender under Sierah's Law. Partin
appeals, raising seven assignments of error.
{¶47} Assignment of Error No. 1:
{¶48} THE TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICED THE
DEFENDANT WHEN IT ALLOWED AN EXPERT WITNESS FOR THE STATE TO
TESTIFY BEYOND THE SCOPE OF THE EXPERT'S REPORT, IN VIOLATION OF
CRIM.R 16(K).
{¶49} Partin contends that the trial court abused its discretion by failing to exclude
Dr. Makoroff's expert opinion that the "patterns and locations" of bruises on Hannah's body
indicated child abuse. Partin claims that Dr. Makoroff's opinion was a new theory of the
evidence and had not been disclosed in a written report as required by Crim.R. 16(K). Partin
argues the state's failure to disclose Dr. Makoroff's opinion prejudiced her defense because
she had no ability to contradict Dr. Makoroff's theory with her own expert opinion or
determine whether Dr. Makoroff's opinion was determined within a reasonable degree of
medical certainty. Partin claims additional prejudice because the state highlighted Dr.
Makoroff's opinion during closing argument.
{¶50} Dr. Makoroff's opinion letter was dated December 14, 2018, and there is no
dispute that it was provided to the defense in a timely manner. The letter indicated that Dr.
Makoroff had examined Hannah and observed multiple bruises on her face, ear, head,
chest, bilateral flanks, back, buttock, bilateral upper extremities, and bilateral lower
extremities. Dr. Makoroff further noted hemorrhages in both eyes, as well as subdural
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bleeding in the brain, shifting of one part of the brain to the other, and brain swelling. The
letter indicated that Hannah's presentation was inconsistent with a fall or even multiple falls
and that the severity of her injuries indicated that she would not have been acting normally
and would have become symptomatic and nonresponsive shortly after receiving the injury.
Ultimately, Dr. Makoroff offered her diagnosis of physical abuse, including abusive head
injury.
{¶51} At trial, during direct testimony, Dr. Makoroff reviewed the medical file
photographs taken of Hannah that depicted bruising over various parts of her body. Dr.
Makoroff indicated those bruises which were of concern to her, including the bruises on the
upper and lower eyelids, the bruising underneath the chin, a left ear bruise, bruises on the
chest, on the flanks, arms, and buttock. Dr. Makoroff noted that the extent of some bruises
made them appear less accidental, and that the bruises had occurred on "multiple planes"
of Hannah's body was also very concerning for child abuse and that a couple areas of
buttock bruising appeared to have "some pattern to it." Ultimately, in conjunction with the
other medical evidence including the injuries to Hannah's eyes and brain, and Hannah's
autopsy report, Dr. Makoroff opined, within a reasonable degree of medical certainty, that
Hannah's injuries were nonaccidental and her diagnoses were child physical abuse and
abusive head trauma.
{¶52} On cross-examination, defense counsel asked Dr. Makoroff if she agreed that
her opinion testimony on direct included opinions "about the location and pattern of bruises
on Hannah's body." Dr. Makoroff confirmed she had testified in that manner with respect
to some of the bruises. Upon further questioning, Dr. Makoroff confirmed that her testimony
concerning bruising "was very detailed." Defense counsel then confronted Dr. Makoroff
with her opinion letter and asked whether she discussed "patterns of bruises" or "locations
of bruises" in her letter. Dr. Makoroff confirmed that she had not used those words but
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argued that they were encompassed within her opinion letter.
{¶53} During this questioning, the state objected, and a side-bar discussion ensued.
Defense counsel moved to strike Dr. Makoroff's testimony, arguing that it was a new opinion
outside of the opinion letter. After hearing argument from both sides, the court indicated
that it did not agree that Dr. Makoroff's testimony constituted a new opinion, that Dr.
Makoroff had not deviated from her ultimate opinion, and therefore the court would not strike
her testimony.
{¶54} Crim.R. 16 governs discovery in criminal proceedings. Crim.R. 16(K)
addresses expert witnesses and expert witness reports. The rule provides:
An expert witness for either side shall prepare a written report
summarizing the expert witness's testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the
expert's qualifications. The written report and summary of
qualifications shall be subject to disclosure under this rule no
later than twenty-one days prior to trial, which period may be
modified by the court for good cause shown, which does not
prejudice any other party. Failure to disclose the written report
to opposing counsel shall preclude the expert's testimony at
trial.
{¶55} Recently, The Ohio Supreme Court construed Crim.R. 16(K) in an appeal
from a murder conviction where the trial court admitted expert opinions not previously
disclosed in writing. State v. Boaston, Slip Opinion No. 2020-Ohio-1061. In Boaston, the
state provided the defense with a deputy coroner's autopsy report more than one year prior
to the trial. Id. at ¶ 38. The autopsy report detailed the coroner's factual findings with
respect to the autopsy, including the appearance and weight of the contents of the victim's
stomach, but did not include the deputy coroner's opinion as to the victim's time of death
based on those findings. Id. The report also did not contain a written opinion concerning
whether the buckle of a glove found in the defendant's possession could have caused a
distinct abrasion found below the victim's chin. Id. at ¶ 39.
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{¶56} The deputy coroner met with defense counsel 19 days before trial and shared
her opinions as to time of death and as to the consistency between the glove buckle and
abrasion. Id. at ¶ 40. Defense counsel then suggested that the state file a supplemental
report, but the state did not. Id.
{¶57} At trial, defense counsel moved to exclude the deputy coroner's opinion
testimony for the failure to file a written report containing the expert's opinion within 21 days
of the trial as required by Crim.R. 16(K). Id. at ¶ 41. The trial court overruled the objection
and permitted the opinion testimony, noting that the defense had the autopsy report well
before trial and that defense counsel had chosen to meet with deputy coroner 19 days
before trial. Id. The court of appeals affirmed based partially on the trial court's broad
discretion concerning the admission of evidence. 2017-Ohio-8770, ¶ 49.
{¶58} The Ohio Supreme Court reversed. The court found that the autopsy report
"did not contain all the opinions that the state ultimately sought to elicit from the deputy
coroner at trial." Id. at ¶ 47. The court proceeded to construe whether Crim.R. 16(K)
required the exclusion of the deputy coroner's testimony, which went beyond that contained
in the autopsy report. Id.
{¶59} The court noted that the underlying purpose of Crim.R. 16(K) was to "'avoid
unfair surprise by providing notice to the defense and allowing the defense an opportunity
to challenge the expert's findings, analysis, or qualifications, possibly with the support of an
adverse expert who could discredit the opinion after carefully reviewing the written report.'"
Id. at ¶ 48, quoting State v. Perry, 11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ¶ 55.
Next, the court found a split within the courts of appeals as to the effect of noncompliance
with Crim.R. 16(K). Id. at ¶ 51. This court and others have found that a trial court retained
discretion to admit expert opinion testimony despite technical noncompliance with Crim.R.
16(K). Id., citing State v. Retana, 12th Dist. Butler No. CA2011-12-225, 2012-Ohio-5608, ¶
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53-54. Other courts of appeals concluded that Crim.R. 16(K) removed a trial court's
discretion and mandated the exclusion of opinion evidence when a written report had not
been disclosed in accordance with the rule. Id. at ¶ 52.
{¶60} Ultimately, the Ohio Supreme Court held that the plain language of Crim.R.
16(K) dictated the result: "[f]ailure to disclose the written report to opposing counsel shall
preclude the expert's testimony at trial." (Emphasis added.) Id. at ¶ 55. The court held that
it was error to allow opinion testimony that "went beyond the scope" of the autopsy report.
Id. at ¶ 58. The court then proceeded to examine the issue under a harmless-error analysis
and determined that the error in Boaston's case did not require reversal under Crim.R. 52.
Id. at ¶ 70.
{¶61} Boaston is distinguishable. Unlike the deputy coroner's autopsy report, which
contained only factual findings, Dr. Makoroff's opinion letter contained both the facts upon
which she relied, and the opinion derived from those facts, within a reasonable degree of
medical certainty. Dr. Makoroff's testimony at trial also did not go beyond the scope of her
opinion letter or her medical notes. Dr. Makoroff's opinion letter and notes of her medical
exam indicated with specificity each and every location where she noted bruising on
Hannah's body. Her opinion letter indicated that these observations, in conjunction with
Hannah's other medical conditions, led to her opinion that Hannah was the victim of child
physical abuse. It was only on cross-examination that defense counsel characterized Dr.
Makoroff's opinion as focusing on "locations" and "patterns" of the bruises as indicative of
child abuse.
{¶62} Dr. Makoroff's trial testimony added some detail to the summary nature of the
opinion letter. However, Crim.R. 16(K) only requires a summary of the expert opinion. And
Dr. Makoroff's testimony at trial explaining her opinion was not such an elaboration that it
could be said to have caused unfair surprise. In this regard, the defense was aware that
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Dr. Makoroff believed that the extent of bruising on Hannah was indicative of nonaccidental
child abuse. The defense therefore could have sought an expert to testify as to a
nonabusive cause of the extensive bruising found on Hannah's body.
{¶63} And even if this court were to instead find that Dr. Makoroff's testimony went
beyond the scope of her opinion letter, for the reasons discussed more fully in response to
the fifth assignment of error, any error would be harmless. Multiple other physicians
submitted corroborating expert opinions as to the nonaccidental nature of Hannah's injuries.
And the state submitted significant other evidence inculpating Partin in the offenses, most
notably through Partin's own statements. This court overrules Partin's first assignment of
error.
{¶64} Assignment of Error No. 2:
{¶65} THE STATE VIOLATED CRIM.R. 16 AND PREJUDICED THE DEFENDANT
WHEN IT FAILED TO DISCLOSE INFORMATION THAT IT HAD KNOWLEDGE THAT
ANOTHER INDIVIDUAL WAS WITH [HANNAH] HOURS BEFORE SHE COLLAPSED
FROM INTERNAL INJURIES, AND THAT IT KNEW [HANNAH'S] FATHER HAD LIED TO
INVESTIGATORS FOR OVER A YEAR.
{¶66} Partin argues that the state violated the criminal discovery rules and
prejudiced her right to a fair trial when it failed to disclose that Jason lied to detectives about
his whereabouts on the evening of March 7, 2018, and that a friend, Chris, was at his home
on March 7, 2018. Partin asks that this court reverse her conviction and remand for a new
trial.
{¶67} At trial, the evidence revealed that Jason initially told investigators that he and
Hannah went to Wal-Mart on the evening of March 7, 2018 and purchased milk. However,
detectives found no milk in the Wesche home. Detective Turner testified that he noted this
discrepancy early in the investigation. Upon further investigation, detectives found no
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evidence that Jason had travelled to Wal-Mart that evening. Detective Turner testified that
he subsequently determined that the discrepancy was not an issue, that Jason had not lied,
but also that he had not gone to Wal-Mart or purchased milk that evening.
{¶68} When Jason testified, he explained that he recalled telling detectives that he
had gone out to purchase milk but explained that he was confused at the time. He had
meant to get milk but had not. Two days prior to his testimony, after speaking with Chris,
Jason recalled that Chris was staying at his home on March 7, 2018.
{¶69} Jason then recalled that on the evening of March 7, he picked up Hannah
from Partin's house at around 7:00 p.m. He and Hannah then drove Chris back to Chris'
home in Fairfield. It took approximately one hour to drive to Fairfield, drop Chris off, and
drive back.3 Jason testified that he told Detective Turner about his recollection about Chris
Davis and his activities that evening for the first time on April 8, 2019, or the day before his
testimony for the state.
{¶70} Partin does not cite which provision of Crim.R. 16 the state allegedly violated
but presumably she refers to Crim.R. 16(B)(5), which requires that the prosecutor, upon
written demand, provide copies of "[a]ny evidence favorable to the defendant and material
to guilt or punishment * * *." And with respect to discovery violations in criminal proceedings,
Crim.R. 16(L)(1) provides:
The trial court may make orders regulating discovery not
inconsistent with this rule. If at any time during the course of the
proceedings it is brought to the attention of the court that a party
has failed to comply with this rule or with an order issued
pursuant to this rule, the court may order such party to permit
the discovery or inspection, grant a continuance, or prohibit the
party from introducing in evidence the material not disclosed, or
it may make such other order as it deems just under the
circumstances.
3. Jason's claim as to his travel that evening was corroborated by a neighbor who lived on Shank Road and
testified that she observed that Jason's car was not parked at 4004 Shank Road when she drove by at 8:00
p.m., but was parked at 8:40 p.m.
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{¶71} Prosecutorial violations of Crim.R. 16 are reversible only when there is a
showing that (1) the prosecution's failure to disclose was a willful violation of the rule, (2)
foreknowledge of the information would have benefited the accused in the preparation of
his defense, and (3) the accused suffered some prejudicial effect." State v. Joseph, 73
Ohio St.3d 450, 458 (1995).
{¶72} At trial, Partin did not raise any issue of a willful failure to disclose by the state,
nor is there any evidence in the record to support such an assertion. Partin argues that
foreknowledge that Jason had not gone to Wal-Mart and instead had taken Chris home,
and that Chris had been at 4004 Shank Road on March 7, 2018, would have benefitted her
defense because it would have led to a significantly different trial strategy. Presumably,
Partin is arguing that she would have modified her trial strategy to expand the list of
alternative suspects to include Chris.
{¶73} However, the presence of Chris at 4004 Shank Road on March 7, 2018 was
inconsequential given the evidence in this case. Both Partin and Jason testified that
Hannah was acting completely normal that morning.4 The medical evidence established
that Hannah would not have been walking, talking, kissing and hugging, and otherwise
acting normally after receiving the injuries that led to her death. The evidence
overwhelmingly established that the injuries suffered by Hannah had to have occurred in
the short window of time after Jason left Hannah with Partin. Thus, the medical evidence,
and Partin's own statements, served to exonerate both Jason and Chris as potential
suspects. For these reasons, this court finds that the information concerning Jason's
whereabouts on March 7 or that Chris was staying at the home on March 7, was immaterial
4. In fact, in every version of events relayed by Partin to emergency responders and investigators, Hannah
was acting normal upon her arrival at 4050 Shank Road.
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and had no prejudicial effect on Partin's substantial rights. Consequently, this court
overrules Partin's second assignment of error.
{¶74} Assignment of Error No. 3:
{¶75} THE DEFENDANT RECEIVED CONSTITUTIONALLY INEFFECTIVE
ASSISTANCE OF COUNSEL.
{¶76} Partin argues that her attorneys provided her with constitutionally deficient
legal representation where they failed to move to suppress her interviews with investigators
and failed to object or move for a continuance when the undisclosed information about
Jason's whereabouts and Chris Davis was revealed during Jason's testimony. To prevail
on a claim of ineffective assistance of counsel, Partin must show her trial counsels'
performance was deficient and that the deficient performance prejudiced her defense.
State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Trial counsel's performance will
not be deemed deficient unless it fell below an objective standard of reasonableness.
Strickland at 688. To show prejudice, Partin must establish that, but for her trial counsels'
errors, there is a reasonable probability that the result of her trial would have been different.
Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to an ineffective
assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019,
2014-Ohio-4625, ¶ 7.
{¶77} Partin argues that her attorneys' trial strategy focused on the alleged "coercive
nature" of the second interview. Partin contends that despite this strategy, her attorneys
did not move to suppress the interview on the grounds that her confession was obtained
through coercive police tactics. Partin argues that her admissions in the interview were a
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key aspect of the state's case against her and therefore there is a substantial likelihood of
a changed outcome at trial if the court had excluded the interview.
{¶78} In support of this argument, Partin cites case law standing for the general
proposition that confessions obtained through threatening or coercive police tactics are
unconstitutional. However, Partin does not articulate how her interview was coercive or
present any argument indicating why a motion to suppress in her case would have been
successful.
{¶79} This court has reviewed the recording of the second interview and does not
agree that the detectives acted coercively in obtaining Partin's confession. The detectives
informed Partin of her Miranda rights at the beginning of both interviews and she executed
Miranda waiver forms indicating she understood her right not to speak to investigators.
While the two detectives repeatedly pressed Partin to tell them the truth about what
happened that morning and informed her that her version of events did not match what
Hannah's doctors were informing them, neither the detectives' behavior nor demeanor
escalated to anything approaching threatening or coercive. To the contrary, both detectives
used the tactic of conveying sympathy and understanding as to why Partin may have been
so frustrated with Hannah's "mischievous" behavior, and with personal problems in Partin's
life, that she could have harmed Hannah. Partin's eventual confessions to acts harming
Hannah were detailed and were not the product of suggestion, coercion, or threatening law
enforcement tactics.
{¶80} In addition, Partin testified that she gave the detectives a false confession in
order to "protect everyone." She did not claim that she gave a false confession because
the two detectives coerced her. For the foregoing reasons, Partin has not demonstrated
that her attorneys provided constitutionally deficient legal assistance based upon an alleged
failure to file a motion to suppress her interview.
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{¶81} Next, Partin argues that her attorneys provided ineffective assistance by
failing to object to Jason's testimony about his whereabouts on March 7 and Chris Davis.
Partin argues that Jason's testimony should have been objected to immediately for the
same reasons set forth in the second assignment of error and that trial counsel should have
sought a continuance of the trial. Partin argues that the disclosure that another individual
was staying with Jason and Hannah at 4004 Shank Road on March 7, 2018, could have
substantially affected the defense theory of the case.
{¶82} However, for the same reasons discussed in response to Partin's second
assignment of error, whether Jason drove to Wal-Mart or drove with Chris and Hannah to
Fairfield, and whether Chris stayed at the home on March 7 was ultimately immaterial to
the state's case. Consequently, Partin cannot demonstrate any reasonable probability of a
changed outcome at trial but for her attorneys objecting to Jason's testimony, or seeking a
continuance. This court overrules Partin's third assignment of error.
{¶83} Assignment of Error No. 4:
{¶84} THE PROSECUTION PRESENTED INSUFFICIENT EVIDENCE TO
SUPPORT THE JURY'S FINDING THAT THE DEFENDANT WAS GUILTY OF CHILD
ENDANGERING, INVOLUNTARY MANSLAUGHTER, AND MURDER.
{¶85} Partin argues that the state presented insufficient evidence to support her
convictions. A sufficiency of the evidence challenge involves the determination of whether
the conviction can be supported as a matter of law. State v. Richardson, 150 Ohio St.3d
554, 2016-Ohio-8448, ¶ 13. The standard of review for a sufficiency of the evidence
challenge is whether any rational trier of fact, viewing the evidence in the light most
favorable to the prosecution, could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 15.
Inference Stacking
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{¶86} Partin argues that her convictions on all six counts resulted from
impermissible inference stacking. "Impermissible inference stacking" involves drawing an
inference based entirely upon another inference, unsupported by any additional facts or
another inference derived from facts. State v. Braden, 12th Dist. Preble No. CA2013-12-
012, 2014-Ohio-3385, ¶ 12. The rule is "extremely limited" and does not prohibit drawing
parallel inferences in combination with additional facts or drawing multiple, separate
inferences from the same facts. Id. at ¶ 12-13.
{¶87} With respect to counts one and two, i.e., the child endangering counts alleged
to have occurred between March 6 and 7, 2018, Partin argues that because Jason testified
that Hannah told him about falling on gravel, the jury then had to infer that Hannah lied to
Jason about falling. Partin also argues the jury had to infer the bruises on Hannah's body
were from Partin committing acts of torture or cruel abuse, or excessive corporal
punishment.
{¶88} The jury did not have to stack inferences to conclude that Partin committed
acts of torture, cruel abuse, or excessive corporal punishment against Hannah between
March 6 and 7, 2018.5 During the second interview, Partin confessed to physically
disciplining Hannah with a slap "upside the head." She demonstrated two forceful uppercut
motions to Hannah's chin with her fist in a clawed position. Partin further demonstrated
aggressively poking Hannah's chest. The state submitted sufficient evidence of acts of
torture, cruel abuse, and excessive corporal punishment for purposes of Partin's convictions
on counts one and two.
{¶89} With respect to the remaining counts, Partin argues that the jury had to infer
that Hannah's brain injuries occurred in the brief time she was in Partin's care that morning
5. R.C. 2919.22(B)(2) and (B)(3).
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and not while she was in Jason's care, that the jury had to further infer that Jason was telling
the truth that Hannah was healthy before being dropped off with Partin, and that the jury
had to further infer that Partin was so angry and distraught over her personal circumstances
that she "snapped" and caused fatal trauma to Hannah. However, none of these potential
conclusions by the jury would require the impermissible stacking of inferences. The jury
could find from Jason's and Partin's testimony that Hannah was walking, talking, and acting
normally when dropped off by Jason. The jury could conclude that Hannah's injuries
occurred while in Partin's care given the medical evidence and Partin's admissions. Finally,
the jury could accept Partin's statements during the second interview concerning her mind
state to explain her motivation in harming Hannah that morning.
Count Three – Child Endangering
{¶90} Partin argues that the state submitted insufficient evidence to convict her of
count three, i.e., child endangering in violation of R.C. 2919.22(A), alleged to have occurred
on March 8, 2018. On this count, the state had to prove that Partin, as a person having
custody or control, or person in loco parentis of a child under eighteen years of age, created
a substantial risk to the health or safety of Hannah, by violating a duty of care, protection,
or support.
{¶91} Partin does not articulate which element of the offense she claims that the
state failed to submit sufficient evidence to prove. Instead, she states that Hannah was at
her home for approximately two minutes before Hannah collapsed and that she immediately
contacted Jason. The state submitted sufficient evidence to support this count. Partin
admitted to detectives that in the brief time she had Hannah, she shook her until she
stopped whining, squeezed her, and dropped her, and then shook her again, all of which a
rational factfinder could find created a substantial risk to Hannah's health and safety.
Count Four – Involuntary Manslaughter
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{¶92} Partin argues that the state submitted insufficient evidence of involuntary
manslaughter when it could not prove how Hannah's injuries occurred. The state was
required to prove that Partin caused Hannah's death as a proximate result of Partin
committing or attempting to commit a felony. R.C. 2903.04(A). Partin argues that the state
"admitted it did not know how the internal brain injuries occurred" during closing argument,
and therefore the state failed to put on any evidence of causation.
{¶93} The state presented sufficient medical evidence establishing the cause of
Hannah's death, which Dr. Dean described as a tremendous force that went through
Hannah's brain, causing a shearing injury and traumatic brain injury. The state's other
expert witness testified that Hannah's injuries were nonaccidental, child physical abuse,
and that shaking alone could have caused the injuries. Partin admitted shaking Hannah,
among other acts. The foregoing constituted sufficient evidence to allow rational factfinders
to find that Partin caused Hannah's death by engaging in acts constituting felony child
endangering on March 8, 2018.
Count Five – Child Endangering
{¶94} For this count, the state was required to prove that Partin abused Hannah on
March 8, 2018, which abuse resulted in serious physical harm. R.C. 2919.22(B)(1) and
(E)(1)(d). Partin reiterates the same argument concerning causation set forth in the prior
section on involuntary manslaughter. For the reasons discussed previously, the state put
on sufficient evidence to permit a rational trier of fact to conclude that Partin abused
Hannah, which abuse caused serious physical harm, i.e. Hannah's death.
Count Six – Murder
{¶95} For this final count, the state was required to prove that Partin caused
Hannah's death as the proximate result of committing an offense of violence that is a felony
of the first or second degree (count five, child endangering, a second degree felony). Again,
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Partin reiterates her argument that the state failed to put on sufficient evidence of causation.
For the same reasons stated before, this court finds that the state submitted sufficient
evidence to allow a factfinder to conclude that Partin was guilty of murder. This court
overrules Partin's fourth assignment of error.
{¶96} Assignment of Error No. 5:
{¶97} THE DEFENDANT'S CONVICTIONS FOR CHILD ENDANGERING,
INVOLUNTARY MANSLAUGHTER, AND MURDER WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶98} Partin argues that the greater weight of the evidence supported a not guilty
verdict on all six counts. Partin contends that Jason testified that he had no concerns with
Partin as Hannah's caregiver, that he had seen bruises on Hannah's body, and that Hannah
told him the bruises were from falling. Partin further argues that the narrow time frame and
the state's lack of evidence as to the precise mechanism of Hannah's injury demonstrated
a lack of credibility in the state's evidence. Partin also points to evidence indicating that
Hannah exhibited "uncommon behavior" on the morning of March 8, including climbing into
the back of Jason's vehicle and asking for additional hugs and kisses from her father.
Finally, Partin argues that Jason's testimony that he had not gone to Wal-Mart and had a
friend staying with him the day before Hannah's collapse created an inference that Hannah
was suffering from internal injuries before she arrived at Partin's home that morning.
{¶99} In determining whether a conviction is against the manifest weight of the
evidence, the appeals court reviews the trial record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether, in resolving
conflicts in the evidence, 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. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12. While an
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appellate court considers the credibility of the witnesses and the weight to be given the
evidence, "these issues are primarily matters for the trier of fact to decide since the trier of
fact is in the best position to judge the credibility of the witnesses and the weight to be given
the evidence presented." State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-
Ohio-911, ¶ 25, citing State v. DeHass, 10 Ohio St.2d 230 (1967). The discretionary power
to overturn a conviction based on the manifest weight of the evidence is to be invoked only
in those extraordinary circumstances to correct a manifest miscarriage of justice where the
evidence presented weighs heavily in favor of acquittal. Id.{¶100} This is not a case where the evidence weighed heavily in favor of acquittal.
Even by Partin's own varying accounts of what occurred that morning, Hannah arrived at
4050 Shank Road in a normal condition. Partin even observed that Hannah appeared better
than she had the day before. That Hannah decided she wanted to ride in the back seat of
Jason's vehicle and give her father extra affection does not indicate "uncommon behavior"
that would call into question the credibility of the state's evidence.
{¶101} After Hannah collapsed, Partin repeatedly disclaimed any knowledge of
anything happening to Hannah inside the Partin residence. However, the medical evidence,
presented through multiple expert opinions by physicians of various specialties,
demonstrated that Hannah had to have suffered traumatic, violent injuries in the time
between when Jason left the garage and when Partin called Jason to report that something
was wrong with Hannah. And while that window of time was brief, the evidence did not
indicate that the injuries that occurred to Hannah would have taken a substantial time to
complete. Hannah's final accounting to detectives of what occurred that morning would fit
within the probable time frame. In this regard, Partin confessed in detail to shaking,
squeezing, and dropping Hannah because she was frustrated at Hannah's regular behavior
of whining as her father left for work. Partin further confessed to physically abusing Hannah
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on the days leading up to March 8.
{¶102} Other actions taken by Partin during the investigation further implicated her.
From the onset, Partin made certain to inform the 9-1-1 dispatcher, emergency responders,
and detectives, that Hannah "fell pretty bad yesterday." During the interview, Partin
repeatedly altered her story about what happened to Hannah and later claimed she lied
about detailed aspects of the abuse perpetrated on Hannah. Partin twice deleted internet
searches for "how to get rid of a bruise." And while alone in the interview room on March
8, before detectives had confronted her with the opinion of the medical experts, and before
Partin had made any inculpatory statements to detectives, Partin announced to herself that
she was going to prison for the rest of her life. Partin's convictions were supported by the
greater weight of the evidence. This court overrules Partin's fifth assignment of error.
{¶103} Assignment of Error No. 6:
{¶104} THE RETROACTIVE APPLICATION OF THE VIOLENT OFFENDER
REGISTRATION REQUIREMENT TO THE DEFENDANT'S CASE VIOLATES THE EX
POST FACTO CLAUSE AND THE OHIO CONSTITUTION.
{¶105} Partin argues that the court violated her federal and Ohio constitutional rights
by informing her of her duty to register under the violent offender registration scheme set
forth in R.C. 2903.41 through 2903.44, also known as Sierah's Law. Partin argues that the
current version of R.C. 2903.41 did not exist when she was indicted, and therefore the
application of Sierah's Law during sentencing violated her rights.
{¶106} After the parties filed their briefs in this case, this court issued an opinion in
another case addressing an identical argument. State v. Hubbard, 12th Dist. Butler No.
CA2019-05-086, 2020-Ohio-856, appeal accepted, 159 Ohio St.3d 1427, 2020-Ohio-3473.
In Hubbard, this court determined that the General Assembly plainly intended for Sierah's
Law to apply to conduct occurring before the statute's effective date and that the statute
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was remedial, not substantive, and therefore passed constitutional muster. Id. at ¶ 24, 37.
As of the date of this opinion, the Ohio Supreme Court has not issued an opinion on the
Hubbard appeal. This court does not find any cause to reconsider the precedent set forth
in Hubbard. Accordingly, this court overrules Partin's sixth assignment of error on the basis
set forth in Hubbard.
{¶107} Assignment of Error No. 7:
{¶108} THE CUMULATIVE EFFECT OF ERRORS IN DEFENDANT'S TRIAL
DEPRIVED HER OF A FAIR TRIAL.
{¶109} Partin argues that if this court determines that the errors that occurred in her
trial were harmless, then the cumulative effect of all the errors deprived her of a fair trial and
her conviction should be reversed. For the reasons discussed in response to Partin's first
through sixth assignments of error, this court does not find error in Partin's trial and does
not find that she was deprived of a fair trial. This court overrules Partin's seventh
assignment of error.
{¶110} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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