768 N.E.2d 1223 | Ohio Ct. App. | 2002
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *118
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *119
Ashley Smith was born on November 26, 1990 to Thera Evans. Appellant was Evans' fiancé, but he was not Ashley's biological father.
On December 23, 1990, Evans left Ashley in the care of appellant so that she could shop for her mother's Christmas gift. Ashley had been fussy most of the day and would not eat. Evans was gone between forty-five minutes and one hour. When Evans returned, Ashley was acting differently. She was crying inconsolably and she had a mark on her cheek. When Evans questioned appellant about Ashley's abnormal behavior, he explained that he was bouncing the baby on his knee, which caused her head to swing backward and forward.
Appellant attempted unsuccessfully to console Ashley by placing a cold wash rag on her head. Ashley cried throughout the night and she would not eat. The next morning, Ashley was taken to a local hospital. After an examination, she was immediately transferred to Children's Hospital Medical Center in Cincinnati.
The doctors placed Ashley in intensive care because she required assistance with her bodily functions, including breathing. A computed tomography scan revealed that Ashley suffered from inter-cranial and retinal hemorrhaging, which was causing severe brain damage. Robert J. Lerer, M.D., Ashley's attending physician, suspected that the hemorrhaging was the result of someone shaking Ashley violently. Every physician who saw Ashley similarly diagnosed her as a victim of "shaken baby syndrome."1
Ashley's injuries resulted in spastic cerebral palsy and severe mental retardation. Although Ashley lived for nine years, she was never able to do anything on her own. Physically, she remained drawn into a fetal position. For most of her life, Ashley had to be fed through a tube because she lost her ability to swallow. Ashley's mental capacity never surpassed that of a six-month-old child. Her only verbal responses were laughing, crying and moaning.
Ashley died in the care of her adoptive family on October 31, 1999. An autopsy conducted at the direction of the Butler County Coroner indicated that Ashley died of "cystic encephalomalacia due to subarachnoid hemorrhage." In other words, a hemorrhage caused a complex mass of cysts to fill the cerebral hemispheres around Ashley's brain. The coroner noted that the cause of the condition was "child maltreatment" or "shaken baby syndrome."
Appellant was indicted on one count of involuntary manslaughter. He pled not guilty to the charge. After a trial to the bench, appellant was found *121 guilty as charged and sentenced accordingly. Appellant appeals his conviction and sentence, and raises eight assignments of error for review.
Assignment of Error No. 1:
THE FINDING OF GUILT IN THE CASE SUB JUDICE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND THE TRIAL COURT ERRED BY OVERRULING MOTIONS FOR ACQUITTAL RAISED BY DEFENDANT-APPELLANT.
In his first assignment of error, appellant contends that the state produced insufficient evidence to convict him for involuntary manslaughter. Specifically, appellant argues that the state failed to prove that he was guilty of child endangering as a predicate offense for involuntary manslaughter. In support of his argument, appellant notes that it is equally likely that Evans caused the injury to Ashley.
"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." State v. Jenks (1991),
The state can use either direct evidence or circumstantial evidence to prove the elements of a crime. See, e.g., State v. Durr (1991),
Appellant was tried on one count of involuntary manslaughter in violation of R.C.
Appellant does not dispute that the state provided sufficient evidence to prove Ashley was under the age of eighteen. Therefore, we will examine the record to determine whether the state presented sufficient evidence concerning the second and third elements.
The second element requires the state to prove that an affirmative act of abuse occurred. Child abuse has been defined as an act that "inflicts serious harm or creates a substantial risk of serious harm to the physical health or safety of the child." Burdine-Justice at 714. Child abuse has also been described as "any form of cruelty to a child's physical, moral or mental well-being." Ivey at 258.
At trial, Evans testified that Ashley was acting differently when she returned from shopping. Ashley was "agitated" and would scream anytime that Evans moved her. She cried inconsolably for most of the night and would not take her bottle. Thus, the state presented sufficient evidence to establish that Ashley's injuries occurred when she was in appellant's care on December 23, 1990 while Evans was Christmas shopping.
Dr. Lerer testified that the first time he saw Ashley at Children's Hospital she was comatose. She was being mechanically ventilated. Her eyes showed signs of retinal hemorrhages. It appeared to Dr. Lerer that Ashley was unable to see and hear. A computed tomography scan revealed that Ashley suffered from inter-cranial hemorrhaging, which was causing severe brain damage. Dr. Lerer suspected that the hemorrhaging was the result of someone shaking Ashley violently.
Robert Shapiro, M.D., the medical director of Children's Hospital's Mayerson Center for Safe and Healthy Children, reported his medical findings pertaining to Ashley. As the head of the child abuse team, Dr. Shapiro was requested to evaluate Ashley when she was admitted to the hospital. Dr. Shapiro testified that he agreed with Ashley's attending physicians in their diagnosis of her as a victim of shaken baby syndrome.
Richard Burkhardt, M.D., Butler County Coroner, testified that Ashley died because a hemorrhage caused a complex mass of cysts to fill the cerebral hemispheres around her brain. The coroner noted that the cause of the condition was "child maltreatment" or "shaken baby syndrome." Thomas Catalanotto, *123 M.D., Ashley's physician, also testified that Ashley's death was a result of complications of neurological devastation caused by being violently shaken as a baby.
Lieutenant Gerald Martin was a detective with the Hamilton Police Department assigned to the Youth Aid Bureau. He testified that appellant gave him a statement during an investigative interview. In his statement, appellant admitted that he "spun [Ashley] around in circles" and "bounced her up and down" on his knee in an effort to quiet her. Appellant described how Ashley's head went back "real far" while he bounced her on his knee. Appellant admitted believing that he hurt Ashley because "she was acting like she couldn't catch her breath" and "her eyes were closed." Appellant described how that night Ashley would not open her eyes or respond. Appellant stated: "[Ashley] was worse than usual in that she was crying a lot and I could not do anything with her. This kind of gets on your nerves and it got me upset I guess."
Thus, the state's evidence, if believed, establishes that appellant committed an act of abuse during the time which Evans was shopping. This act of abuse caused Ashley severe physical and mental harm. Appellant argues that a trier of fact could conclude from the evidence that Evans had injured Ashley before he had any contact with her. Such an argument concerns the weight of the evidence and the credibility of the witnesses, not the sufficiency of the evidence. The state produced sufficient circumstantial evidence through appellant's own admissions, Evans and Drs. Lerer, Shapiro and Burkhardt from which a reasonable trier of fact could conclude that appellant committed the act of abuse that caused Ashley's injuries.
The third element to establish a violation of R.C.
In a child abuse case where an individual, after viewing photographs of her child, stated "I didn't realize I hit her so hard," this court found that a reasonable trier of fact could infer the defendant's actions were reckless. Burdine-Justice at 715-16. Similarly, in this case, appellant admitted that Ashley got on his nerves and made him upset. In addition, he stated that he bounced Ashley on his knee with enough force that "her head went back real far." Appellant also admitted to tossing a one-month-old baby in the air. A reasonable trier of fact could infer from *124 appellant's statements and the injuries suffered by Ashley that appellant acted with heedless indifference to the consequences of his actions.
Appellant contends that the state did not prove that he recklessly disregarded a "known" risk because he did not know that shaking a baby could cause brain damage. Appellant supports his contention by referring to Dr. Shapiro's testimony that fifty percent of lay people probably do not realize that shaking a baby can cause brain damage. However, culpability for the predicate offense of endangering children does not require that appellant have known that his conduct would lead to brain damage or shaken baby syndrome. Rather, it is sufficient that appellant disregarded the known risk that his conduct would lead to abuse in the form of mental or physical harm to a child. There is sufficient evidence in the record that appellant acted recklessly in his treatment of Ashley. Thus, the state introduced sufficient evidence from which a rational trier of fact could conclude that appellant was guilty of child endangering.
Finally, the state must prove that Ashley's death was a proximate result of the crime of endangering children. The state's witnesses testified that Ashley ultimately died of pneumonia. However, Ashley's doctors consistently testified that the pneumonia was a direct result of the physical harm caused by being shaken as a baby. The harm caused to her as an infant inflicted her with cerebral palsy and neurological devastation of such severity that Ashley was bedridden for her entire life. Since she was confined to a bed and lost her ability to swallow early in her life, Ashley had a tendency to aspirate respiratory secretions, which led to recurrent episodes of pneumonia. Ashley did not survive the last occurrence of pneumonia. Thus, there is sufficient evidence to demonstrate that Ashley's death was proximately caused by appellant.
Therefore, after viewing the evidence in the light most favorable to the state, we conclude that a rational trier of fact could find the elements of involuntary manslaughter proven beyond a reasonable doubt. Accordingly, appellant's first assignment of error is overruled.
Assignment of Error No. 2:
THE FINDING OF GUILT IN THE CASE SUB JUDICE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
In his second assignment of error, appellant argues that his conviction is against the manifest weight of the evidence. Specifically, appellant contends that the evidence does not establish that the injuries he inflicted upon Ashley when she was one month old proximately caused her death at the age of nine. In addition, appellant contends that the evidence does not establish that he was the one who hurt Ashley. *125
A reviewing court will not reverse a judgment as against the manifest weight of the evidence in a bench trial where the trial court could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eskridge (1988),
The 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 [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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.
State v. Thompkins (1997),
We have already concluded that the state presented sufficient evidence to convict appellant of involuntary manslaughter beyond a reasonable doubt. Appellant did not introduce any evidence at trial contrary to the state's evidence. Instead, appellant challenged the credibility of the state's evidence. The trial court was in the best position to judge the credibility of the witnesses and to determine the weight to be given the evidence. Considering the record as a whole, we conclude that the trial court did not lose its way in its resolution of the evidence. Accordingly, appellant's second assignment of error is overruled.
Assignment of Error No. 3:
THE GUILTY VERDICT IN THE CASE SUB JUDICE WAS DERIVED SOLELY FROM AN INFERENCE BASED ON AN INFERENCE.
In his third assignment of error, appellant argues that his conviction is impermissibly derived from an inference based on an inference. Appellant argues that the trial court had to infer that he shook Ashley by inferring that he acted inconsistently with his statement to the police. Based on this inference, appellant contends the trial court further inferred that the injury to Ashley caused her death. *126
A trier of fact may not draw an inference based entirely upon another inference, unsupported by any additional fact or another inference from other facts. State v. Cowans (1999),
Although inferences arose in this case, none is impermissibly drawn from another. Initially, the inference that appellant caused the harm to Ashley is based on Evans' testimony that Ashley acted differently when Evans returned from shopping. It may also be inferred from appellant's admission that Ashley got on his nerves while he was watching her. Whether appellant caused Ashley's death must be inferred from additional facts: the testimony of Drs. Lerer, Shapiro and Catalanotto and the results of the autopsy as testified by Dr. Burkhardt. Thus, the inference concerning Ashley's death is a parallel inference based in part on previous inferences and in part on additional facts. The proof does not violate the prohibition against stacking one inference upon another. Accordingly, appellant's third assignment of error is overruled.
Assignment of Error No. 4:
THE TRIAL COURT ERRED WHEN IT ADMITTED TESTIMONY BY THE PROSECUTION'S `EXPERT' WITNESS WITHOUT PROPER FOUNDATION.
In his fourth assignment of error, appellant argues that the trial court erred by admitting Dr. Shapiro's testimony "without proper foundation." Citing Evid.R. 703, appellant contends that the trial court failed to assess the "reasoning and methodology" underlying Dr. Shapiro's testimony before permitting it to be admitted at trial.
Initially, we note that appellant did not object to the foundation of Dr. Shapiro's testimony at trial and therefore has waived all but plain error. Pursuant to Crim.R. 52(B), "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." A plain error within the meaning of Crim.R. 52(B) is an obvious error that is prejudicial to an accused, although neither objected to nor affirmatively waived, which, if allowed to stand, would have a substantial adverse impact on the integrity of and public confidence in judicial proceedings. State v. Craft (1977),
Pursuant to Evid.R. 702, a witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. * * *.
The facts or data in the particular case upon which the expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. Evid.R. 703.
The record reveals that Dr. Shapiro is a specialist in pediatric emergency medicine and has been the medical director of Children's Hospital's Mayerson Center for Safe and Healthy Children for many years. The information and medical knowledge that he possesses regarding pediatric emergency care and the incidents of child abuse relates to matters beyond the knowledge and experience possessed by lay persons. In addition, Dr. Shapiro treated Ashley shortly after she suffered her injuries. He has treated and diagnosed other victims of "shaken baby syndrome." The bases for his expert opinions included his personal observations and facts presented at trial through other witnesses. The trial court did not err by allowing Dr. Shapiro to testify as an expert. Appellant's fourth assignment of error is overruled.
Assignment of Error No. 5:
THE TRIAL COURT ERRED WHEN IT ADMITTED IRRELEVANT TESTIMONY AT TRIAL.
Assignment of Error No. 6:
THE TRIAL COURT ERRED WHEN IT ADMITTED TESTIMONY AT TRIAL WHICH WAS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE.
In his fifth and sixth assignments of error, appellant again challenges the trial testimony of Dr. Shapiro. Appellant argues in his fifth *128 assignment of error that Dr. Shapiro's testimony was not relevant. Specifically, appellant contends that Dr. Shapiro testified about irrelevant "unsubstantiated statistics" regarding shaken baby syndrome. Appellant contends in his sixth assignment of error that even if Dr. Shapiro's testimony is relevant, the trial court should have excluded it because its probative value was substantially outweighed by its prejudicial effect.
The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987),
As we have already noted, Dr. Shapiro is a specialist in pediatric emergency medicine and has been the director of Children's Hospital's child abuse team for many years. In addition, Dr. Shapiro treated Ashley shortly after she suffered her injuries. He has treated and diagnosed other victims of "shaken baby syndrome." Dr. Shapiro's testimony was probative because it provided the trial court with expert testimony of how Ashley could have sustained her injuries. Dr. Shapiro's experience in treating other victims of shaken baby syndrome did not amount to "unsubstantiated statistics." Rather, it provided part of Dr. Shapiro's basis of knowledge for his diagnoses of Ashley.
The probative value of Dr. Shapiro's testimony is indisputable. The question then becomes whether there was unfair prejudice to appellant by allowing him to testify. Unfavorable evidence is not equivalent to unfairly prejudicial evidence. See State v. Geasley (1993),
Dr. Shapiro's testimony about the likely cause of Ashley's injuries was unfavorable to appellant. However, we cannot conclude that Dr. Shapiro's testimony caused any prejudice to appellant as the term is defined under Evid.R. 403. Nor can the testimony be said to arouse the trial court's emotions, evoke a sense of horror, or appeal to an instinct to punish appellant for his alleged actions. Therefore, we conclude that the probative value of Dr. Shapiro's testimony was not outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion in admitting Dr. Shapiro's testimony. Accordingly, appellant's fifth and sixth assignments of error are overruled.
Assignment of Error No. 7:
THE TRIAL COURT COMMITTED SO MANY CUMULATIVE ERRORS WARRANTING A REVERSAL OF DEFENDANT-APPELLANT'S CONVICTION.
In his seventh assignment of error, appellant appears to argue that he was deprived of a right to a fair trial because the trial court committed "so many cumulative errors." Yet, appellant fails to indicate a single error that comprises the alleged accumulation of errors.
Although a particular error might not constitute prejudicial error in and of itself, a conviction may be reversed if the cumulative effect of the errors deprives appellant of a fair trial, despite the fact that each error individually does not constitute cause for reversal. State v.DeMarco (1987),
This court has found no instance of error in the trial court as set forth in appellant's previous assignments of error. Nor has appellant alleged or established any instances of harmless error. Therefore, the doctrine of cumulative error is not applicable to this case. Appellant's seventh assignment of error is overruled.
Assignment of Error No. 8:
THE TRIAL COURT ERRED BY IMPOSING FINES OR COSTS IN THE CASE SUB JUDICE.*130
Appellant argues in his eighth assignment of error that the trial court erred by imposing upon him costs, counsel fees and fines. Appellant contends that the fines are unconstitutionally excessive and improperly imposed without consideration of whether he could pay them.
In addition to a sentence of imprisonment, the trial court ordered appellant to pay all costs of prosecution and court-appointed counsel costs. Contrary to appellant's assertion, the trial court did not impose any fines upon appellant. Therefore, we will only consider whether the trial court correctly ordered appellant to pay the costs of prosecution and court-appointed counsel costs.
R.C.
R.C.
The fees and expenses approved by the court under this section shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county in an amount that the person reasonably can be expected to pay.
Thus, an indigent defendant may properly be required to pay his attorney fees only after the court makes an affirmative determination on the record that the defendant has, or reasonably may be expected to have, the means to pay all or some part of the cost of the legal services rendered to him. See, e.g., State v. Watkins (1994),
While the trial court did not mention payment of court-appointed counsel fees at the sentencing hearing, the court ordered the appellant to pay them in the judgment entry of conviction. Yet, the trial court made no determination on the record that appellant was able to pay or could reasonably be expected to pay for his court-appointed counsel. Accordingly, appellant's eighth assignment of error, as it relates to the court-appointed counsel fees, is sustained.
We reverse the judgment of the trial court as to court-appointed counsel fees, and affirm the judgment in all other respects. The matter is *131 remanded to the trial court for a determination of whether appellant is able to pay or can reasonably be expected to pay the costs of his court-appointed counsel.
YOUNG, P.J., and WALSH, J., concur.
