DocketNumber: No. 2004 CA 00288.
Citation Numbers: 2005 Ohio 4407
Judges: WISE, J.
Filed Date: 8/22/2005
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} On January 28, 2004, appellant's infant son, Joshua Rumph, died under a blanket, in his crib. Joshua's diaper, sleeper and t-shirt were soaked in urine and feces. Joshua's crib was surrounded by five empty baby bottles and one bottle filled with a liquid consisting of two percent milk diluted with water. Further, Joshua suffered from such a severe case of diaper rash that his skin was peeling from his body. Also, the hair on the back of Joshua's head was thin from laying on his back for many hours.
{¶ 3} Prior to his death, on April 14, 2003, Joshua weighed sixteen pounds and seven ounces. Eleven months later, at the time of his death, Joshua weighed ten pounds and four ounces. Following an autopsy, the coroner ruled the cause of Joshua's death was extremely severe malnutrition known as "marasmus."
{¶ 4} On the date in question, John Breehl, a Canton City firefighter, found Joshua's body in response to a 9-1-1 call that a child was not breathing. Upon arriving at appellant's apartment, Breehl found appellant, Mary Hall and Rachel Everett sitting on a couch in the living room. Breehl asked the women where the baby was and they directed him to the back bedroom where he discovered Joshua. Breehl checked for vital signs and found none. Breehl also noticed that Joshua was cold to his touch.
{¶ 5} Detectives from the Canton Police Department immediately began an investigation into Joshua's death. They learned that around 2:00 p.m. that afternoon, appellant knocked on the door of her neighbor, Rachel Everett. Appellant told Everett that she had something to tell her, but first she wanted to get cigarettes and "milds" before doing so. Everett took appellant to the Hill's store. Thereafter, appellant told Everett that Joshua "had passed" and took her into the apartment. Everett observed Joshua with a blanket over him. Upon seeing Joshua in his crib, Everett became upset and left appellant's apartment to visit her boyfriend at the Stark County Jail.
{¶ 6} After visiting the jail, Everett returned to appellant's apartment and told her that she had to tell someone because she did not want to get in trouble. Appellant replied that she did not want to tell anyone because she was "scared." Everett called her grandmother, Mary Hall, and asked her to come to appellant's apartment. Hall arrived at appellant's apartment at approximately 4:00 p.m. At this point, Everett was hysterical. Hall went into the bedroom, pulled back the blanket covering Joshua and found him dead. Appellant told Hall that she found Joshua dead the night before when she tried to put a bottle of milk in his mouth.
{¶ 7} Appellant attempted to prevent Hall from calling 9-1-1, however, Hall called for emergency help. At the police department, appellant told Detective Lawver that she discovered Joshua dead at about 11:30 p.m. on January 27, when she was trying to give him a bottle. Appellant informed Detective Lawver that she stopped feeding Joshua table foods because he would vomit and she was tired of "cleaning up throw up." Appellant further indicated that the last day she fed Joshua was New Year's day.
{¶ 8} On March 12, 2004, the Stark County Grand Jury indicted appellant on one count of aggravated murder, pursuant to R.C.
{¶ 9} Appellant's trial commenced on August 23, 2004. At the conclusion of the state's case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29(A). The trial court denied appellant's motion and thereafter, indicated its intent to consider the offense of murder as a lesser-included offense to the charge of aggravated murder. At the conclusion of the trial, the court considered the following three charges: aggravated murder with a death penalty specification; murder pursuant to R.C.
{¶ 10} Following its deliberations, the trial court found appellant guilty of murder pursuant to R.C.
{¶ 11} "I. THE TRIAL COURT COMMITTED PLAIN ERROR IN CONSIDERING MURDER UNDER O.R.C. §
{¶ 12} "II. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS CONSTITUTIONALLY GUARANTEED WHEN TRIAL COUNSEL FAILED TO OBJECT TO TRIAL COURT'S CONSIDERATION OF A LESSER CHARGE WHICH WAS NOT A LESSER-INCLUDED OFFENSE.
{¶ 13} "III. THE VERDICT OF THE TRIAL COURT FINDING THE APPELLANT GUILTY OF MURDER BY REASON OF THE COMMISSION OF ABUSE WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
{¶ 15} Prior to addressing the merits of appellant's argument, we note that defense counsel did not object to the trial court's decision to consider R.C.
{¶ 16} The issue raised in this assignment of error is whether the offense of murder, as defined in R.C.
{¶ 17} In State v. Deem (1988),
{¶ 18} "An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot as, statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense." Deem at paragraph three of the syllabus.1
{¶ 19} For purposes of addressing this assignment of error, we will apply the Deem analysis. Appellant maintains the second and third prongs of the Deem test are not satisfied because aggravated murder and murder have mutually exclusive elements. Therefore, according to appellant, murder, under R.C.
{¶ 20} The grand jury indicted appellant under R.C.
{¶ 21} Specifically, appellant argues one could prove murder, under R.C.
{¶ 22} We disagree with appellant's arguments upon application of theDeem analysis. First, the offense of felony murder, under R.C.
{¶ 23} However, felony murder, with the predicate offense of child endangering, under R.C.
{¶ 24} Finally, two elements of the greater offense are not required to prove the lesser offense. Under aggravated murder, pursuant to R.C.
{¶ 25} Accordingly, the trial court did not commit plain err when it found appellant guilty of murder, under R.C.
{¶ 26} Appellant's First Assignment of Error is overruled.
{¶ 28} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Strickland v. Washington (1984),
{¶ 29} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any give case, a strong presumption exists counsel's conduct fell within the wide range of reasonable, professional assistance. Id.
{¶ 30} In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. "Prejudice from defective representation sufficient to justify reversal of a conviction exists only where the result of the trial was unreliable or the proceeding fundamentally unfair because of the performance of trial counsel." State v. Carter (1995),
{¶ 31} Having determined that murder, under R.C.
{¶ 32} Appellant's Second Assignment of Error is overruled.
{¶ 34} The three-judge panel, in the case sub judice, found appellant guilty of murder under R.C.
{¶ 35} "(A) No person, who is the parent, * * * of a child under eighteen 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. * * *
{¶ 36} "(B) No person shall do any of the following to a child under eighteen years of age * * *:
{¶ 37} "(1) Abuse the child;
{¶ 39} "(2) If the offender violates division (A) or (B)(1) of this section, endangering children is one of the following:
{¶ 41} "(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."
{¶ 42} Appellant contends the starvation of a child is not abuse, under R.C.
{¶ 43} 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 (1991),
{¶ 44} In State v. Snell, Stark App. No. 2002CA00181, 2003-Ohio-975, this court addressed the definition of child abuse and approved the following definition adopted by the trial court from R.C.
{¶ 45} "* * * [a]buse means any act which causes physical or mental injury, that harms or threatens to harm the child's health or welfare." Id. at ¶ 25.
{¶ 46} Appellant suggests that she merely failed to act in not taking care of her seventeen-month old son, thereby causing the death of her child We disagree with this argument and find that appellant's conduct was not merely a failure to act, but instead an act of abuse. Appellant admitted that she made a conscious decision to withhold food from her son for a period of twenty-seven days. Appellant made this decision because she was tired of cleaning up vomit. Further, appellant sought no medical attention for her son even though she had done so in the past.
{¶ 47} Clearly, appellant's conduct caused physical injury to her son that resulted in his death. We find such conduct constituted abuse under the child endangering statute. Accordingly, the trial court's decision finding appellant guilty of murder, under R.C.
{¶ 48} Appellant's Third Assignment of Error is overruled.
{¶ 49} For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
Wise, J., Boggins, P.J., and Gwin, J., concur.