State v. Clay, 23889 (5-7-2008)State v. Clay, 23889 (5-7-2008)
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{¶ 1} Defendant-Appellant Michael Clay appeals from his conviction and sentence in the Summit County Court of Common Pleas. This Court affirms.
I
{¶ 2} On August 28, 2006, Clay and Cynthia Jones‘s eight month old daughter, M.C., died after paramedics were unable to resuscitate her. Doctors found multiple bruises and contusions on M.C.‘s face as well as blood in her nose and a cut to her lip. The medical examiner autopsied M.C. and determined that her death was a homicide caused by blunt force impacts to the head. Subsequently, police officers arrested Clay in connection with M.C.‘s death.
{¶ 3} Cynthia Jones met Clay while the two worked at Taco Bell and became pregnant after they began dating. Jones testified that Clay never wanted her to have the baby and asked her to get an abortion so as not to “ruin his life.” Once M.C. was born, Clay was forced to spend a great deal of time caring for M.C. He lost his job at Taco Bell, so he stayed at home to watch M.C. while Jones continued to work. Eventually, the couple moved into Clay‘s mother‘s home.
{¶ 4} Jones testified that M.C. frequently had bruises on her head and body, but that Clay would always claim that the bruises were self inflicted or a result of his playing too roughly with her. For instance, at two months of age M.C. sustained a bruise to her forehead, and Clay claimed that she incurred the bruise rolling over in her bassinet and hitting her head on the bars. Even so, questions regarding M.C.‘s frequent injuries never surfaced until the spring of 2006. In May of 2006, Jones returned home to find Clay holding M.C. in a blanket. Jones discovered that M.C. had burns on the lower half of her body, so she took M.C. to the hospital. After M.C. received treatment, police questioned Clay about her injuries. The investigating officer, Sergeant Gregory Johnson, became suspicious of Clay because Clay gave multiple versions of the same story. In each version, Clay indicated that M.C. received the burns from her bath water, but the details of how this occurred changed. In one version, Clay alleged that he placed M.C. into the tub, and she started to scream approximately forty-five
{¶ 5} On the night of August 27, 2006, Jones bathed M.C, dressed her in a yellow “onesie” with flowers on it, and put her to bed. Jones testified that M.C. only had two faded bruises on her head at this point in time, which Clay claimed had come from her “playing with her toys.” The next morning, Jones could not get M.C. to take her bottle, so she told Clay to feed M.C. and left for work shortly before 8:00 a.m. At approximately 9:36 a.m., she received a phone call from Clay‘s mother, who indicated that M.C. was not breathing and the ambulance was on its way.
{¶ 6} Pamela Cunningham, Clay‘s mother, testified that she was sleeping on the downstairs’ couch on the morning of August 28th, when she heard Clay yelling for her help. She further testified that Clay came running downstairs with
{¶ 7} On August 13, 2007, Clay‘s jury trial commenced based on the following charges: (1) aggravated murder pursuant to
{¶ 8} Clay has timely appealed to this Court, raising three assignments of error for our review.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED IN DENYING THE APPELLANT‘S ORAL MOTION FOR DIRECTED VERDICT PURSUANT TO CRIMINAL RULE 29 BECAUSE THE APPELLEE PRESENTED INSUFFICIENT EVIDENCE IN ORDER TO MEET EACH AND EVERY ELEMENT OF THE OFFENSES OF MURDER — A SPECIAL FELONY, CHILD ENDANGERING, AND FELONIOUS ASSAULT. IN ADDITION, THE APPELLANT‘S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE.”
{¶ 9} In his first assignment of error, Clay argues that his convictions for murder, child endangering, and felonious assault were based on insufficient evidence and that they were against the manifest weight of the evidence. We disagree.
{¶ 10} Initially, we note that Clay has failed to set forth his sufficiency and manifest weight arguments in separate assignments of error. See
{¶ 11} Clay‘s substantive argument takes issue with his convictions for murder pursuant to
{¶ 12} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *1. “While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion.” Id., citing State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook, J., concurring). In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review
“An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. at paragraph two of the syllabus; see, also, Thompkins, 78 Ohio St.3d at 386.
In State v. Roberts, this Court explained:
“[Sufficiency is required to take a case to the jury[.] * * * Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at *2.
Accordingly, we address Clay‘s challenge to the weight of the evidence first, as it is dispositive of his claim of sufficiency.
{¶ 13} In determining whether a conviction is against the manifest weight of the evidence an appellate court:
“[M]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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. Otten (1986), 33 Ohio App.3d 339, 340.
A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the
{¶ 14}
“No person shall cause the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence that is a felony of the first or second degree[.]”
A violation of
{¶ 15} The record reflects that numerous witnesses testified about the injuries that M.C. sustained prior to her death. Jones testified that M.C. frequently had bruises on her face and head. She testified that she initially believed that these bruises were caused by Clay playing “too roughly” with M.C. and that she told Clay that he should not play so roughly with M.C. at such a young age. Melissa Williams, M.C.‘s occasional babysitter, testified that she had seen M.C. with bruising down both the left and right sides of her face at her jaw line when M.C. was approximately two to three months old. Kelly Jansen, a coworker of Cynthia‘s and Clay‘s, testified that M.C. also had bruising on her face when Jones brought her to the restaurant at four to five months of age. Moreover, Marsha Singleton, Cynthia‘s sister and M.C.‘s occasional babysitter, testified that M.C. “always” had bruises when she babysat for her.
{¶ 16} Several officials who responded to Clay‘s 911 call testified at his trial and explained what they observed when they arrived at Clay‘s residence on the morning of M.C.‘s death. Officer Thomas Mason, Firefighter Stephen Bosso, and Firefighter Brian Cyphert all testified that M.C. had bruising on the left side of her face when they came to attend to her. Firefighter Cyphert also testified that M.C.‘s pupils were dilated when he examined her, indicating that she had suffered a head injury. Firefighter Cyphert acknowledged that he and the other paramedics
{¶ 17} Doctor Daniel Galita performed M.C.‘s autopsy. Dr. Galita testified that M.C. died as a result of blunt force impacts to her head, which caused subgaleal contusions.1 He further testified that he found seventeen contusions on M.C.‘s head and mild swelling in her brain as a result of the head trauma. Dr. Galita also discovered large amounts of iron-laden macrophages in M.C.‘s lungs. He explained that iron-laden macrophages develop in a person‘s lungs when they are forcibly deprived of oxygen for too long and that a large amount of macrophages is indicative of smothering or strangling. While a person who is strangled generally develops other signs of the strangling as well, such as petechial hemorrhaging in the eyes, a person who is smothered might not display any other symptoms. Based on M.C.‘s injuries and the large amount of macrophages in her lungs, Dr. Galita concluded that M.C. had been repeatedly smothered over a period of time. He indicated that macrophages do not appear immediately after asphyxiation and that M.C.‘s macrophages would have taken approximately a
{¶ 18} Clay gave Jones, the police, and other witnesses multiple versions of the events leading up to M.C.‘s death. Sergeant Feketik conducted the initial interview with Clay shortly after M.C.‘s death. During that interview, Clay stated that he put M.C. in her playpen and went downstairs to get her a bottle and start a load of laundry. He stated that he went upstairs a few minutes later, found M.C. was not breathing, and rushed her downstairs to his mother and to call 911. Approximately forty-five minutes after Clay‘s initial interview with Sergeant Feketik, he gave the Sergeant a written statement. The written statement indicated that before Clay put M.C. in her playpen he gave her a remote control to play with and that she hit herself three times in the head and once in the mouth with it. Clay wrote that he wiped off M.C.‘s mouth and placed her in her playpen where she leaned over and laid down. He further wrote that when he came back upstairs with her bottle he found her face down in the playpen. He claimed that he smacked M.C.‘s face to try to revive her and then tried to perform CPR on her before bringing her down to his mother.
{¶ 19} Jones testified that Clay initially told her the following story. Clay stated that he played with M.C. for a short time before putting her in her playpen. While they were playing, Clay claimed that he gave M.C. the remote control and
{¶ 20} Kelly Jansen, a coworker of Jones and Clay, testified that after M.C. died Clay told her the following story. Clay stated that he had put M.C. in her playpen, went downstairs for a few seconds to make her bottle, and found her face down in her crib when he returned. He also stated that he turned M.C. over, cleaned out her mouth, and then took her straight downstairs to his mother. Later, however, Clay added to the story, stating that he also handled a load of laundry when he went downstairs to make M.C.‘s bottle. Finally, Clay gave Jansen a third
{¶ 21} Police collected multiple samples and swabs from Clay‘s home after they began investigating M.C.‘s murder. John Saraya, a special agent with the Ohio Bureau of Criminal Identification and Investigation (“BCI“), testified that M.C.‘s playpen was located in the master bedroom of Clay‘s home directly next to the bed. M.C.‘s diaper bag sat in the space between the bed and the playpen. Agent Saraya testified that BCI took samples from the bed mattress, carpet, diaper bag, playpen, door frame of the master bedroom, and from the remote control that Clay claimed M.C. hit herself with. Dale Laux, a BCI forensic scientist, testified that every single one of the samples tested presumptive for the presence of M.C.‘s blood except for the remote control.
{¶ 22} There were two items that BCI could not test during their investigation. First, BCI could not test the yellow “onesie” that M.C. had been wearing on the morning of her death. Paramedics testified that M.C. had been clad only in a diaper when they arrived in response to Clay‘s 911 call. Since Jones indicated that M.C. was wearing the onesie when she left for work in the morning, someone obviously removed M.C.‘s onesie prior to the paramedics’ arrival. However, neither Jones nor the police were ever able to find M.C.‘s onesie. Second, BCI was not able to test Jones and Clay‘s bed sheets. Jones testified that they were on the bed when she left for work in the morning, but that they were
{¶ 23} Based on the evidence in the record before us, we cannot conclude that the jury lost its way in finding Clay guilty of felonious assault and of murder. Throughout her short lifetime, M.C. consistently showed signs of bruising. Her bruises would appear after spending time with Clay, who always attributed them to various, innocuous causes. After her death, the medical evidence showed that she was the victim of repeated smothering and ultimately died from blunt force trauma to her head that she could not have caused. Clay never gave a consistent explanation for how M.C. incurred these injuries. Rather, he changed his story many times and claimed that she died from self inflicted wounds.
{¶ 24} Contrary to Clay‘s assertion, we find numerous pieces of evidence in the record to support the jury‘s finding that Clay knowingly inflicted harm upon M.C. See
{¶ 25} Having disposed of Clay‘s challenge to the weight of the evidence, we similarly dispose of his sufficiency challenge. See Roberts, supra, at *2. Clay‘s first assignment of error is overruled.
Assignment of Error Number Two
“THE TRIAL COURT ERRED IN FAILING TO GRANT THE APPELLANT‘S MOTION FOR RELIEF FROM PREJUDICIAL JOINDER BECAUSE TRYING THE APPELLANT FOR ALLEGED CRIMES OF WHICH HE HAD PREVIOUSLY BEEN CLEARED FROM WITHIN ANOTHER COUNTY GREATLY PREJUDICED HIS DEFENSE AND VIOLATED HIS RIGHT TO A CONSTITUTIONALLY FAIR TRIAL.”
{¶ 26} In his second assignment of error, Clay argues that the trial court erred in denying his motion for relief from prejudicial joinder. On January 23, 2007, Clay filed a motion for relief from joinder in the trial court, seeking to sever count six in the indictment.2 Count six charged Clay with child endangerment in
{¶ 27} Pursuant to
“A defendant claiming error * * * under
Crim.R. 14 has the burden of affirmatively showing that his rights were prejudiced; he must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant‘s right to a fair trial, and he must demonstrate that the court abused its discretion in refusing to separate the charges for trial.” State v. Torres (1981), 66 Ohio St.2d 340, syllabus.
An abuse of discretion is more than an error of law or judgment and implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion
{¶ 28} After a defendant informs the trial court of his basis for arguing that joinder would be prejudicial, the prosecutor can rebut the allegations of prejudice in one of two ways. Under the first method, the prosecutor may argue that the evidence the defendant seeks to admit would have been admissible regardless of joinder as “other acts” evidence. State v. Lott (1990), 51 Ohio St.3d 160, 163, citing Bradley v. U.S. (CA D.C. 1969), 433 F.2d 1113, 1118-19;
{¶ 29} While the State generally cannot introduce other acts evidence to prove that a defendant possessed a certain character trait and acted in conformity therewith,
{¶ 30} First, Clay argues that M.C.‘s injuries were not similar enough to permit their introduction at trial because burning, smothering, and blunt force trauma injuries bear no relation to one another. However, the pattern of M.C.‘s injuries made them relevant and admissible as other acts evidence, not the method by which they were inflicted. Multiple witnesses at trial testified that M.C. displayed signs of abuse her entire life, mostly in the form of bruising. These injuries, including the burn injuries, always occurred after M.C. had spent time alone with Clay. Although M.C.‘s injuries were not of the exact same nature, we cannot say that they do not amount to a pattern of abuse. All of M.C.‘s injuries tend to show that Clay intended to inflict serious physical harm upon M.C. See
{¶ 31} Second, Clay argues M.C.‘s May 2006 injuries were found to be accidental, not intentional, and so their introduction confused the jury and prejudiced his trial. See
{¶ 32} Although the jury ultimately acquitted Clay of the charge related to M.C.‘s May 2006 burn injuries, the record supports the trial court‘s decision to admit the evidence related to the charge. The record reflects that Clay‘s explanation as to how M.C. received her burns changed on multiple occasions. Much like the later stories involving the remote control, Clay gave Jones and Sergeant Johnson several different versions of how the hot water in the tub burned M.C. However, the doctor who opined that M.C.‘s death was accidental only received one version of the events. Doctor Richard Steiner examined M.C. after the burning incident and directly questioned Clay about the incident. Dr. Steiner concluded that M.C.‘s burns were accidental based on his examination of M.C. and Clay‘s explanation. At trial, Dr. Steiner testified that he was unaware that Clay had given multiple, different explanations about how M.C.‘s burns occurred and that had he known that information he might have concluded M.C.‘s burns were not accidental. Given the extensive probative value of this evidence, we cannot conclude that the trial court abused its discretion in admitting it. See
{¶ 33} Because we conclude that the State negated any prejudice to Clay by meeting the more stringent “other acts” method discussed in Lott, we need not analyze whether the State also met the less stringent “joinder test.” See Lott, 51 Ohio St.3d at 163-64. Clay cannot show prejudice as a result of the trial court‘s failure to grant his
Assignment of Error Number Three
“THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT‘S REQUEST FOR A MISTRIAL DUE TO THE APPELLEE‘S WITNESS HIGHLY PREJUDICIAL REFERENCE TO MONEY BEING RAISED FOR THE APPELLANT‘S LAWYER LONG BEFORE THE APPELLANT WAS CHARGED WITH ANY CRIME.” (Sic.)
{¶ 34} In his third assignment of error, Clay argues that the trial court erred in not ordering a mistrial. Clay claims that the following colloquy entitled him to a new trial:
“PROSECUTOR: You mentioned regarding the donation of [M.C.‘s funeral] money, do you know what happened to that money?
“DEFENSE: Objection.
“COURT: You can answer.
“JONES: It went toward his lawyer.”
Specifically, he argues that this testimony suggests that Clay hired a lawyer prior to being charged with M.C.‘s death because he knew he would be a suspect.
{¶ 35} The decision whether to grant or deny a motion for mistrial “lies within the sound discretion of the trial court” and will not be reversed absent a showing of abuse of discretion. State v. Garner (1995), 74 Ohio St.3d 49, 59, citing State v. Glover (1988), 35 Ohio St.3d 18, 19; State v. Widner (1981), 68 Ohio St.2d 188, 190. “A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused or the prosecution are adversely affected; this determination is made at the discretion of the trial court.” State v. Reynolds (1988), 49 Ohio App.3d 27, 33. An abuse of discretion is more than an error of law or judgment, but rather, it is a finding that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore, 5 Ohio St.3d at 219. Under this standard of review, an appellate court may not merely substitute its judgment for that of the trial court. Pons, 66 Ohio St.3d at 621. The granting of a mistrial is necessary only when a fair trial is no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, citing Illinois v. Somerville (1973), 410 U.S. 458, 462-63.
{¶ 36} Clay‘s counsel objected to Jones‘s statement immediately after she made it, and the trial court held a side bar. At side bar, Clay‘s counsel argued that the remark was prejudicial because he was actually a court appointed attorney, and
“[T]here is absolutely no evidence that the money that was collected was used for an attorney. You are to disregard totally the statement that you just heard. Also the attorneys that are here today are court appointed attorneys. So, all of the information that you just heard on the last statement you are to totally disregard.”
Clay argues that the trial court‘s curative instruction was insufficient, but he fails to cite any law in support of this proposition or to explain why the court‘s instruction did not sufficiently cure the alleged defect in the trial. See State v. Taylor (Feb. 9, 1999), 9th Dist. No. 2783-M, at *3 (noting that an appellant has the burden of demonstrating error on appeal by citing to legal authority in support of his proposition). See, also,
III
{¶ 37} Clay‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
SLABY, P. J., DICKINSON, J., CONCUR