State v. BittnerState v. Bittner
The Law Offices of Steven R. Adams, LLC, Steven R. Adams, 8 West Ninth Street, Cincinnati, Ohio 45202, for appellant
M. POWELL, J.
{1} Appellant, Jason Bittner, appeals the maximum prison sentence he received in the Warren County Court of Common Pleas after he pled guilty to a second-degree felony charge of child endangering.
{2} As of March 2018, appellant was a chiropractor and the father of two-year-old
{3} On October 11, 2018, appellant pled guilty to a second-degree felony count of child endangering in violation of
{4} Prior to the sentencing hearing, appellant submitted a sentencing memorandum in which he asserted that either a community control or minimum prison sentence would achieve the purposes of sentencing in this case. Appellant argued that: his conduct was not more serious than conduct normally constituting the offense of child endangering; his inability to console the victim “who was endlessly crying and screaming,” combined with additional stress from his struggling business and other commitments, “absolutely provoked [him] into committing [the] crime“; he was extremely remorseful and accepted responsibility for his actions; and he was at a low risk to reoffend.
{5} At the sentencing hearing, the state presented the testimony of Dr. Kathi Makoroff, a 21-year pediatrician specialized in child abuse, who had examined and treated the victim at Children‘s Hospital. Dr. Makoroff testified that the victim‘s injuries included 28 rib fractures that were consistent with squeezing around the ribcage. Some of the rib fractures were new. Others showed signs of healing, indicating they had occurred at least seven to ten days prior to February 28, 2018, the day the victim was brought to the hospital.
{6} In support of a community control sentence, defense counsel argued that with the exception of two misdemeanors, appellant had led a law-abiding life and was an upstanding leader and mentor to people, was deeply remorseful, presented an extremely low risk of recidivism, and emotionally collapsed and snapped during a “small window” of his life when he was unable to comfort and console the crying victim. Defense counsel further cited a forensic psychological evaluation of appellant, conducted between May and October 2018, which indicated that appellant was abused as a child, suffered undiagnosed and untreated mental illnesses, and had a mental breakdown on the day of the incident. Defense counsel indicated that the shaking of the victim was an isolated incident.
{7} Appellant then addressed the trial court. Appellant acknowledged that his actions were “so wrong [and] deplorable,” explained that he “couldn‘t handle the [victim‘s] constant screams on top of everything else that was breaking down in [his] life,” and asked the court to give him a chance and the opportunity to prove himself.
{8} Upon considering the purposes and principles of sentencing in
[W]e will never know the true extent of [the victim‘s] injuries, because * * * we will never know what her true potential was, prior to those days when you shook her.
[Y]our sentence will long be over with and [the victim] will continue to live with whatever disadvantage or disability that you have inflicted upon her. I can‘t help but think that this abuse was not a one time thing by the doctor‘s testimony that this occurred on at least one or more occasion[s] because of the varying degrees of healing of the ribs. That tells me something. This was not a one time snap by you. And, then on top of all that, for you to prevent your then wife from seeking medical attention for your young daughter, because of your pride and arrogance, and despite what you may think, your education and profession and your standing in the community, you are held to a higher standard. You know better. You were a medical professional.
{9} Appellant now appeals his sentence, raising four assignments of error.
{10} An appellate court reviews the imposed sentence according to
{11} A sentence is not clearly and convincingly contrary to law where the trial court “considers the principles and purposes of
{12} Assignment of Error No. 1:
{13} THE SENTENCE IMPOSED BY THE TRIAL COURT WAS CONTRARY TO LAW WHERE IT FAILED TO CONSIDER THE PURPOSES AND PRINCIPLES OF FELONY SENTENCING.
{14} Appellant argues the trial court failed to comply with
{15} The purposes of felony sentencing are “to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”
{16} “[A] trial court ‘fulfills its duty under [
{17} At the sentencing hearing and in its sentencing entry, the trial court expressly stated it considered the purposes and principles of felony sentencing under
{18} We note appellant‘s assertion that
{19} Appellant‘s first assignment of error is overruled.
{20} Assignment of Error No. 2:
{21} THE SENTENCE IMPOSED BY THE TRIAL COURT WAS CONTRARY TO LAW, WHERE THE TRIAL COURT BASED ITS SENTENCE ON UNCHARGED CONDUCT.
{22} Appellant argues that his prison sentence is contrary to law because the trial court improperly considered a dismissed charge of child endangering as well as uncharged and unproven conduct that he had injured the victim on another occasion. Appellant bases
I can‘t help but think that this abuse was not a one time thing by the doctor‘s testimony that this occurred on at least one or more occasion[s] because of the varying degrees of healing of the ribs. That tells me something. This was not a one time snap by you. And, then on top of all that, for you to prevent your then wife from seeking medical attention for your young daughter, because of your pride and arrogance[.]
The dismissed child endangering charge related to appellant‘s failure to seek medical treatment for the victim for two days.
{23} Ohio law is clear that “[u]nindicted acts or not guilty verdicts can be considered in sentencing without resulting in error when they are not the sole basis for the sentence.” State v. Thomas, 8th Dist. Cuyahoga No. 101263, 2014-Ohio-5153, ¶ 27; State v. Reinthaler, 7th Dist. Mahoning No. 16 MA 0170, 2018-Ohio-2483, ¶ 13. Moreover, the rules of evidence do not apply in sentencing hearings. Thomas at ¶ 27. Consequently, “[c]ourts have historically been permitted to consider hearsay evidence, evidence of an offender‘s criminal history, the facts concerning charges dismissed, and even offenses for which charges were not filed, but were addressed in the presentence investigation.” State v. Ropp, 3d Dist. Union No. 14-13-21, 2014-Ohio-2462, ¶ 4. When a defendant‘s convictions result from a plea bargain, the plea bargain “does not preclude the trial court‘s consideration of the underlying facts” in determining the appropriate sentence to impose. State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 18. Thus, charges that were dismissed as part of a plea agreement and the facts related to those charges are valid sentencing considerations. State v. Wiles, 59 Ohio St.3d 71, 78 (1991); State v. Edwards, 8th Dist. Cuyahoga No. 85908, 2006-Ohio-2315, ¶ 43; State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43.
{24} We find that the trial court properly considered appellant‘s failure to seek medical treatment for the victim for two days despite the obvious severity of her injuries.
{25} Furthermore, appellant‘s failure to seek medical treatment for the victim was a relevant and significant factor relating to the
{26} We likewise find no error in the trial court‘s consideration of Dr. Makoroff‘s testimony that the victim displayed signs of healing fractures, indicating that appellant had previously abused the victim.
{27} Appellant takes issue with the fact that Dr. Makoroff was not qualified as an expert in radiology or orthopedics. However, the record shows that Dr. Makoroff is a 21-year pediatrician, is board certified in child abuse pediatrics, including physical abuse, and evaluates between five and ten children per day. At sentencing, Dr. Makoroff testified on direct examination that the victim displayed signs of healing fractures, indicating that these fractures had occurred at least a week before the victim was brought to the hospital. Appellant neither objected to the pediatrician‘s opinion based upon her lack of qualifications nor moved to have her testimony stricken.
{28} On cross-examination, appellant initially did not question Dr. Makoroff about the healing fractures. It was not until after the trial court asked the pediatrician to explain
{29} Once again, appellant neither objected to the pediatrician‘s opinion based upon her lack of qualifications nor moved to have her testimony stricken. Moreover, in contrast to defense counsel‘s cross-examination of Dr. Makoroff regarding brain elasticity and whether the victim‘s brain could rewire itself despite the loss of brain tissue, his cross-examination of the pediatrician regarding the healing fractures cannot be characterized as challenging her opinion in any respect. Neither defense counsel in his sentencing closing argument nor appellant during allocution disputed Dr. Makoroff‘s opinion or suggested that appellant was not responsible for all of the victim‘s rib fractures.
{30} Appellant further argues that because the conduct was uncharged, he had no opportunity to defend against the alleged conduct. However, although appellant may not have agreed on the record that he had previously abused the victim, he never affirmatively disputed prior physical abuse. Given Dr. Makoroff‘s presentencing report indicating that the victim had 28 rib fractures and a fracture of her left ankle upon arriving at the hospital, the subsequent diagnosis of physical abuse, and the lack of personal or family history that would suggest that the victim fractured more easily, appellant should have been aware of this issue and could have affirmatively disputed it during allocution or otherwise. In any event, the circumstances of the healing fractures as described by Dr. Makoroff in
{31} Furthermore, in defense of his actions, appellant indicated in his sentencing memorandum, during the presentence investigation, and at sentencing that he simply snapped when he was unable to comfort and console the crying victim and that this was a one-time incident that would never happen again. The trial court could, therefore, consider uncharged conduct in response to the defense claim, and properly did so. Wright, 2018-Ohio-965 at ¶ 22. Finally, the victim‘s various healing fractures were not the sole basis for appellant‘s sentence nor the most important factor relied upon by the trial court in imposing a maximum sentence. Rather, the trial court primarily relied upon the severe injuries inflicted by appellant upon his defenseless three-month-old daughter in imposing the maximum sentence.
{32} Appellant‘s second assignment of error is overruled.
{33} Assignment of Error No. 3:
{34} THE SENTENCE IMPOSED ON THE DEFENDANT IS CONTRARY TO LAW WHERE THE SENTENCE IS NOT CONSISTENT WITH SENTENCES IMPOSED FOR SIMILAR CRIMES COMMITTED BY SIMILAR OFFENDERS.
{35} Appellant argues that his prison sentence is contrary to law because the trial court improperly relied upon seriousness factors that do not exist, namely, appellant‘s education and profession as a chiropractor and his standing in the community. Appellant asserts that although the list of seriousness factors in
{36} The trial court‘s statement regarding appellant‘s profession was not in terms of any of the enumerated
{37} Furthermore,
to achieving those purposes and principles of sentencing.”
{38} Appellant disagrees with the trial court‘s analysis and its balancing of the seriousness factors in
{39} Appellant further argues that his eight-year prison sentence is not consistent with sentences imposed for similar offenses by similar offenders.
{40} Pursuant to
{41} In support of his argument, appellant cites State v. Laracuente, 8th Dist. Cuyahoga Nos. 76025 and 76047, 2000 Ohio App. LEXIS 2235 (May 25, 2000), a “shaken baby syndrome” case in which a father was sentenced to community control following his conviction for child endangering. However, a defendant cannot simply present other cases in which an individual convicted of the same offense received a lesser sentence to demonstrate that his sentence is inconsistent. State v. B.J.T., 12th Dist. Warren No. CA2018-01-010, 2018-Ohio-4720, ¶ 36; State v. Silknitter, 3d Dist. Union No. 14-16-07, 2017-Ohio-327, ¶ 19. Rather, the defendant must show that the trial court failed to properly consider the statutory sentencing factors and guidelines in
{42} The record reflects that the trial court properly considered all relevant sentencing factors under
{43} Appellant‘s third assignment of error is overruled.
{44} Assignment of Error No. 4:
{45} THE SENTENCE IS CLEARLY AND CONVINCINGLY NOT SUPPORTED
{46} While conceding that he seriously injured the victim and that his parental relationship with the victim “technically” facilitated the offense, appellant argues that “the record clearly and convincingly does not support a finding that the maximum sentence was required to avoid demeaning the seriousness of the offense” because he does not present a threat of recidivism.
{47} While appellant has no prior significant criminal history and presents a low risk of recidivism, that fact does not eliminate or lessen in any way the violence of his actions, the victim‘s resulting severe injuries, or the life-long physical and developmental impact on the victim. As stated above, the victim suffered severe physical harm and permanent injury to a part of her brain, the harm was exacerbated by the victim‘s very young age, and appellant‘s relationship with the victim facilitated the offense. As the victim‘s father, appellant was responsible for her health, welfare, and safety. Instead, he violently shook her because he could not stand her crying. By doing so, he abused the trust of his position as a father and used the very young age of his victim to his benefit.
{48} The record shows that despite the obvious severe injuries suffered by the victim as a result of his behavior, appellant did not seek medical assistance for the victim and effectively dissuaded his wife from doing so for two days. The PSI indicates that appellant‘s actions during those two days were purely motivated by his fear anyone would find out what he had done. As appellant explained during the PSI interview, he intentionally “prioritized [his] own selfish fears over [the victim‘s] well being.”
{49} This pattern continued once the child was admitted to the hospital. The PSI indicates that appellant first told the police that the victim‘s injuries were likely caused when he fell backwards on a staircase while he was carrying the victim. Appellant then squarely blamed the victim‘s injuries on his older daughter who was then a toddler. The PSI and the
{50} We therefore find that the record supports the trial court‘s determination that imposing a maximum sentence is commensurate with the seriousness of appellant‘s conduct, necessary to
{51} punish appellant, and necessary to protect the public. Appellant‘s fourth assignment of error is overruled.
{52} In conclusion, we find that appellant‘s maximum eight-year prison sentence is not clearly and convincingly contrary to law because the trial court properly considered the principles and purposes of sentencing in
{53} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
Notes
State v. Hooper, 57 Ohio St.2d 87, 89-90 (1979); State v. Aspell, 10 Ohio St.2d 1 (1967).Under the rule of ejusdem generis, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.