State v. CookState v. Cook
Attorneys for Plaintiff-Appellee
Ben Swift, Atty. Reg. No. 0006745, 333 W. First St., Suite 445, Dayton, OH 45402
Attorney for Defendant-Appellant
O P I N I O N
Rendered on the 17th day of December, 2010.
GRADY, J.:
{¶ 1} Defendant, Kimberly Cook, appeals from her conviction and sentence for felony murder, endangering children, and felonious assault.
{¶ 3} On July 20, 2008 around 3:00 p.m., Defendant went to the home of her neighbor, Mildred Combs, and asked for help, claiming that Hope Cook was having a seizure. Combs found Hope Cook naked and unconscious on the front room floor. Her hands were clenched, her toes were curled under, her eyes were closed and she was not moving. Combs wanted to immediately call 911 but Defendant refused, electing instead to try to revive Hope Cook by talking to her and rubbing her hands and legs. After five to ten minutes, Defendant agreed to call for help. Combs made that 911 call.
{¶ 4} Paramedic Lisa Johnson found Hope Cook on the floor, motionless and unconscious. Johnson recognized that Hope Cook had sustained an injury to her brain. Johnson also noticed bruises on Hope Cook‘s left cheek, brow, jaw, and arm. Defendant told Johnson that Hope Cook had fallen in the tub three days earlier.
{¶ 5} Hope Cook was transported to Children‘s Medical Center.
{¶ 6} Doctors were unable to save Hope Cook due to the severe swelling in her brain. Dr. Abboud, a critical care pediatric physician, attempted unsuccessfully for ninety minutes to resuscitate Hope Cook. Dr. Abboud pronounced Hope Cook dead at 9:46 p.m., on July 20, 2008.
{¶ 7} Defendant told the doctors at Children‘s Medical Center that Hope Cook had been fine that day, right up to the point where she threw a tantrum in the bathroom and fell and then went limp. Defendant additionally said Hope Cook had fallen in the shower three days earlier. Defendant‘s father-in-law claimed Hope Cook had fallen from a merry-go-round and struck her head on concrete just three days before she died.
{¶ 8} Defendant was charged by indictment with five felony offenses.
{¶ 9} Count One charged that Defendant caused the death of
{¶ 10} Count Two charged that Defendant recklessly abused a child under eighteen years of age, Hope Cook, resulting in serious physical harm to the child in violation of
{¶ 11} Count Three charged that Defendant caused the death of Hope Cook as a proximate result of committing the offense of felonious assault (serious physical harm),
{¶ 12} Count Four charged that Defendant knowingly caused serious physical harm to Hope Cook, in violation of
{¶ 13} Count Five charged that Defendant did recklessly torture or cruelly abuse a minor child, Dexter Cook, in violation of
{¶ 14} Doctors Abboud and Drazner, who treated Hope Cook at Children‘s Medical Center, and Dr. Casto, the deputy coroner who performed the autopsy, all testified at Defendant‘s trial that Hope Cook‘s catastrophic brain injuries were so severe that they could not have been caused by an accidental fall in the bathtub or on the playground, or even two such falls. The doctors explained that this type of trauma occurs from high velocity injuries such
{¶ 15} Defendant was found guilty of all five charges in the indictment. The trial court merged the two felony murder offenses arising from the death of Hope Cook, Counts One and Three, and sentenced Defendant to serve a term of fifteen years to life on the merged offenses. The court imposed sentences of eight years to life on Count Two, endangering children through abuse of Hope Cook, and eight years to life as Count Four, felonious assault arising from serious physical harm inflicted on Hope Cook. The court imposed a term of five years on Count Five, involving Dexter Cook. The court ordered all the terms to be served consecutively.
{¶ 16} Defendant appealed to this court from her conviction and sentence. Defendant‘s assignments of error pertain only to the charges involving Hope Cook.
FIRST ASSIGNMENT OF ERROR
{¶ 17} “THE TRIAL COURT ERRED WHEN IT FOUND DEFENDANT GUILTY OF COUNTS ONE (I) THROUGH (IV) OF THE INDICTMENT, AS SUCH A FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 18} Though Defendant frames her assignment of error as a manifest weight of the evidence claim, the substance of her argument
{¶ 19} When considering a
{¶ 20} A
{¶ 21} “An appellate court‘s function when reviewing the
{¶ 22} Defendant argues that her convictions for felony murder proximately resulting from endangering children (abuse resulting in serious physical harm) and felonious assault (causing serious physical harm) are not supported by legally sufficient evidence because, while the evidence established that Hope Cook suffered head injuries that resulted in her death, the evidence fails to prove that the child‘s injuries were not the result of accidental falls. We disagree.
{¶ 23} Defendant attempted to show at trial through the testimony of her father-in-law and the cross-examination of the State‘s witnesses that Hope Cook‘s head injuries were the result of one or more accidental falls in the tub and/or on the playground. However, every physician who testified rejected the idea that Hope Cook‘s head injuries were the result of one or even two accidental falls. The direct and circumstantial evidence in this
{¶ 24} Dr. Drazner testified that Hope Cook had extensive multiple skull fractures, a very large hematoma, and such severe swelling that her brain had shifted past the mid-line. Dr. Drazner testified that such injuries are comparable to those occurring in high velocity car crashes, or falls from great heights, and could not have been caused by accidentally falling to the ground in a tub or shower. Hope Cook‘s injuries were instead caused by inflicted trauma.
{¶ 25} Dr. Patricia Abboud testified that Hope Cook‘s injuries, which resulted from inflicted trauma, occurred within several hours before she arrived at Children‘s Medical Center. Dr. Casto, who performed the autopsy on Hope Cook, observed deep bruises on the top of her spine, the back of her neck, and the back of her head. The child had at least two separate complex skull fractures, from two separate impacts with a broad, flat hard surface. The injuries resulted from inflicted trauma, and could not have been caused by a hard fall to the ground or even two such falls. Cause of death was blunt force head trauma.
{¶ 26} Hope Cook‘s body contained numerous bruises in different
{¶ 27} Viewing the totality of this evidence in a light most favorable to the State, as we must, we conclude that a rational trier of facts could find beyond a reasonable doubt all of the essential elements of the charged offenses, including that Hope Cook‘s head injuries and resulting death were caused by inflicted blunt force trauma and not accidental falls in the tub and/or on the playground. Defendant‘s convictions are supported by legally sufficient evidence and the trial court properly overruled her
{¶ 28} A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 29} “[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Accord: State v. Thompkins, supra.
{¶ 31} “[b]ecause the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.”
{¶ 32} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 33} Defendant argues that in light of the evidence she presented suggesting that Hope Cook‘s head injuries and resulting death were the result of accidental falls, the jury lost its way and her convictions are against the manifest weight of the evidence. We disagree.
{¶ 35} The credibility of the witnesses and the weight to be given to their testimony were matters for the trier of facts, the jury, to decide. DeHass. Hope Cook‘s injuries were inconsistent with Defendant‘s theory that those injuries resulted from the child accidentally falling in the tub and/or on the playground. The jury did not lose its way in this case simply because they chose to believe the State‘s version of the events, rather than Defendant‘s, which they had a right to do. State v. Flugga, Licking App. No. 2009CA5, 2009-Ohio-5648; State v. Ligon, Clermont App. No. CA2009-09-056, 2010-Ohio-2054; State v. Craycraft, Clermont App. Nos. CA 2009-02-013 and 014, 2010-Ohio-596.
{¶ 36} Reviewing this record as a whole, we cannot say that the evidence weighs heavily against a conviction, that the trier of facts lost its way in choosing to believe the State‘s witnesses, or that a manifest miscarriage of justice has occurred.
{¶ 37} Defendant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 38} “THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO MERGE COUNTS TWO (II) AND FOUR (IV) INTO COUNT ONE (I) OF THE INDICTMENT WHEREAS BOTH ARE ALLIED OFFENSES OF SIMILAR IMPORT, COMMITTED WITH A SINGLE ANIMUS.”
{¶ 39} The court imposed prison sentences of fifteen years to life for each of the two
{¶ 40} Defendant argues that the trial court erred when it did not also merge into the two felony murder offenses the child endangering/abuse/serious physical harm and felonious assault/ serious physical harm offenses that were the predicate offenses for the felony murder offenses. In its most recent iteration on the issue of allied offenses of similar import, the Ohio Supreme
{¶ 41} “Our analysis of allied offenses originates in the prohibition against cumulative punishments embodied in the Double Jeopardy Clause of the
{¶ 43} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 44} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶ 45} “A two-step analysis is required to determine whether two crimes are allied offenses of similar import. E.g. State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816; Rance, 85 Ohio St.3d at 636, 710 N.E.2d 699. Recently, in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, we stated: ‘In determining whether offenses are allied offenses of similar import under
{¶ 46}
{¶ 47} “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 and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.”
{¶ 48} “Offense of violence” is defined in
{¶ 49}
{¶ 50}
{¶ 51} “No person shall knowingly do either of the following:
{¶ 52} “Cause serious physical harm to another or to another‘s unborn.”
{¶ 53}
{¶ 54} “No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
{¶ 55} “Abuse the child.”
{¶ 56} If the violation of
{¶ 57} Relying upon State v. Mills, Tuscarawas App. No. 2007AP07 0039, 2009-Ohio-1849, Defendant argues that felony murder based upon a predicate offense of felonious assault and the underlying felonious assault offense are allied offenses of similar import that must be merged. Likewise, felony murder based upon a
{¶ 58} In State v. Williams, the Ohio Supreme Court held that attempted felony murder,
{¶ 59} We see no reason why a different result should be reached when the predicate felony offense underlying the felony murder charge is endangering children/abuse/serious physical harm in violation of
{¶ 60} In Mills, the Fifth Appellate District analyzed a case nearly identical to the one now before us. In that case the defendant was found guilty of felony murder based upon felonious assault, felony murder based upon child endangering, felonious assault, and child endangering. Applying the Cabrales analysis, the Mills court concluded that each underlying felony offense, felonious assault and child endangering, must merge with its respective felony murder count because, while the elements do not exactly align when viewed in the abstract, the commission of the felony murder necessarily results in commission of the underlying predicate felony offense, and therefore the offenses are allied offenses of similar import. The Mills court further concluded there where, as here, there is but one incident leading to the death of one victim, the two felony murder counts must also merge.
{¶ 61} Based upon our recent decisions in Reid and Scandrick, and the Fifth Appellate District‘s decision in Mills, we conclude that felony murder based upon felonious assault/causing serious physical harm, in violation of
{¶ 62} Defendant‘s second assignment of error is sustained. We will reverse and vacate Defendant‘s sentences for felony murder,
BROGAN, J., And MCFARLAND, J., concur.
(Hon. Matthew W. McFarland, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Laura M. Woodruff, Esq.
Ben Swift, Esq.
Hon. Mary Lynn Wiseman