State v. Fitzgerald
2017 Ohio 2717
Ohio Ct. App.2017Background
- Michael and Kaili Fitzgerald were indicted for felony child endangering after their son Z.F. (born June 2014) was found to have severely low weight at a January 2015 pediatric visit and was diagnosed with "failure to thrive."
- From August 2014 to January 2015 the Fitzgeralds missed well-baby visits; Z.F. gained only nine ounces in that period and his seven-month weight fell below the 3rd percentile.
- Cincinnati Children’s Hospital admitted Z.F.; with hospital nutrition he quickly gained weight and was later released to a relative.
- WIC records showed the family had access to sufficient food; the evidence indicated the child was not being fed adequately.
- The Fitzgeralds waived a jury; they stipulated to facts sufficient for misdemeanor child endangering but contested that Z.F. suffered "serious physical harm" as defined in R.C. 2901.01(A)(5)(e).
- Experts disputed whether Z.F. experienced "pain": the state’s child-abuse pediatrician testified Z.F. experienced prolonged "hunger pains," while defense experts either could not opine or said hunger sensations were not "actual pain." The trial court found prolonged pain and convicted; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that child suffered "serious physical harm" under R.C. 2901.01(A)(5)(e) | Expert testimony (Dr. Makoroff) established Z.F. experienced prolonged hunger pain during the period of underfeeding, satisfying "prolonged pain." | Sensations testified to were mere "discomfort" or "emptiness," not the type/degree of pain the statute contemplates. | Evidence was sufficient: dictionary meaning of "pain" includes hunger pains; expert testimony supported a finding of prolonged pain. |
| Manifest weight of the evidence (credibility of experts and overall proof) | The greater weight of evidence (weight loss, hospitalization, expert opinion, parents leaving child to "cry it out") supports conviction. | Defense experts disagreed; one would not have hospitalized and one denied hunger sensations qualify as "pain," so conviction is against manifest weight. | Appellate court defers to trial court’s credibility determinations, credits state expert, and finds verdict not against the manifest weight of the evidence. |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (explains standard for reversing a conviction as against the manifest weight of the evidence)
- State v. White, 29 Ohio St.3d 39 (1987) (courts may use the ordinary meaning of undefined statutory terms)