State v. Westley, 2017 Ohio 7717

Jazmine Westley was charged with two counts of endangering children and one count of permitting child abuse after her ten-week-old infant, D.H., was found to have healing posterior rib fractures and a healing left femur fracture discovered during hospital treatment.
The State’s theory: Westley knew her co-defendant, Dionte Hamilton, had been physically abusive to other children and recklessly entrusted D.H. to him, resulting in nonaccidental injuries.
Dr. Lolita McDavid, a child abuse pediatrician, testified the fractures were nonaccidental and characteristic of inflicted injury (posterior rib fractures often from squeezing and associated with shaking).
The jury convicted Westley on all counts; the court merged allied offenses and sentenced her on one count.
On appeal, the Eighth District found plain error: McDavid never stated her opinion to a probability or even to a possibility standard—her testimony lacked the required degree of medical/scientific certainty to prove nonaccidental injury as the sole evidence supporting an essential element of the offense.
The appellate court reversed and vacated Westley’s convictions as the State’s evidence was insufficient where the expert opinion was the only evidence linking Hamilton’s abuse (and thus Westley’s recklessness) to D.H.’s injuries.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to support conviction	State argued expert’s testimony established injuries were nonaccidental and supported recklessness in entrusting child to Hamilton	Westley argued evidence was insufficient because expert did not state opinion to required certainty	Reversed: expert testimony lacked stated probability/possibility sufficient to prove element beyond reasonable doubt when it was the sole evidence
Admissibility/degree of certainty of expert opinion	State relied on admissibility of expert’s opinion that fractures were nonaccidental	Westley contested weight/sufficiency due to lack of reasonable medical certainty	Court held admissibility under criminal standard (possibility) differs from sufficiency; here testimony did not even meet possibility standard for proving guilt
Use of other-acts evidence (Evid.R. 404(B))	State introduced testimony about Hamilton’s prior abuse of other children to show Westley’s knowledge	Westley argued the other-acts evidence was improperly admitted	Moot — court did not reach because conviction reversed for insufficiency
Prosecutorial misconduct (alleged misleading jury)	State argued prosecution fairly presented evidence	Westley alleged prosecutor misled jury	Moot — court did not reach because conviction reversed for insufficiency

State v. Benner, 40 Ohio St.3d 301 (defines "reasonable medical certainty" as probability for expert medical opinion)
State v. Holt, 17 Ohio St.2d 81 (early Ohio authority on medical certainty for expert testimony)
Stinson v. England, 69 Ohio St.3d 451 (expert medical opinion must be stated as probability to be admissible under civil standards)
State v. Thompson, 141 Ohio St.3d 254 (criminal experts may testify in terms of possibility; certainty affects sufficiency, not admissibility)
State v. D'Ambrosio, 67 Ohio St.3d 185 (criminal context allows testimony in terms of possibility)
State v. Lang, 129 Ohio St.3d 512 (certainty questions go to weight/sufficiency for the jury)