STATE OF OHIO v. PHILLIP A. FARLEY
Case No. 11-COA-042
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 1, 2012
2012-Ohio-3620
Hоn. Patricia A. Delaney, P.J.; Hon. William B. Hoffman, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Juvenile Division Case No. 20114052; JUDGMENT: AFFIRMED
For Appellant:
JOSEPH P. KEARNS, JR. P.O. Box 345 153 W. Main St. Ashland, OH 44805
For Appellee:
RAMONA FRANCESCONI ROGERS ASHLAND COUNTY PROSECUTOR ANDREW N. BUSH 110 Cottage Street Ashland, OH 44805
{¶1} Defendant-Appellant Phillip A. Farley appeals his conviction and sentence by the Ashland County Court of Common Pleas, Juvenile Division, for one count of Endаngering Children, a first degree misdemeanor in violation of
FACTS AND PROCEDURAL HISTORY
{¶2} S.B. asked Appellant to babysit her three children on August 3, 2010 because she was scheduled to have outpatient surgery. (T. 27.) The youngest of S.B.s three children is B.H., born on October 23, 2008. Id. Appellant had known S.B. for a year and was familiar with her children. (T. 120-121.) Appellant is 32 years old. (T. 120.)
{¶3} When S.B. put B.H. tо bed on August 2, 2010, she did not notice any bruising or injury to his face. (T. 29.)
{¶4} On August 3, 2010 at 2:00 a.m., Appellant came to S.B.s apartment, located in Loudonville, Ohio. (T. 123.) Appellant took a nap on the couch downstairs. (T. 123.) At 4:30 a.m., S.B.s mother picked S.B. up at the apartment and took S.B. to the hospital. (T. 10.) Appellant was awake on the couсh and the children were asleep in their room when S.B. left. (T. 29.)
{¶5} S.B.s mother picked the children up at S.B.s apartment after the surgery. (T. 11.) Appellant and B.H. were in the house when she arrived. (T. 12-13.) When S.B.s mother saw B.H., she noticed a mark on his face. (T. 13.) S.B.s mother testified there was a mark on the right side and the left side of B.H.s face. (T. 16.) The mark on the left side of B.H.s face looked like a handprint. (T. 16.)
{¶7} S.B.s mother brought the children back to her home. (T. 30.) S.B. saw the mark on B.H.s face and called the Loudonville Police Department. (T. 33.) The police and paramedics responded. (T. 33.) The paramediсs examined B.H. and S.B. did not have B.H. transported to the hospital. Id. The Loudonville Police Department took photographs of B.H.s injuries. (T. 33.)
{¶8} Detective Coey of the Loudonville Police Department interviewed Appellant on August 4, 2010. (T. 42.) Appellant told Det. Coey that B.H. came down the steps and fell over the banistеr. Appellant was sitting on the couch and he attempted to catch the child as he was falling. (T. 46.)
{¶9} On April 7, 2011, Appellant was charged with one count of Endangering Children in violation of
{¶10} At trial, S.B.s mother and S.B. testified. Dr. Richard D. Steiner, of Akron Childrens Hospital, testified as to his expert opinion that the injuries on B.H.s face were the result of physical abuse. (T. 98.) The abusive event was a hand slap. Id. In order to reach this opinion, Dr. Steiner reviewed the police photographs and the police
{¶11} Appellant testified in his own defense. He testified he was sitting on the couch and he saw B.H. fall. (T. 127.) Appellant dove across the room and he grabbed B.H.s head with two hands. Id. Appellant applied ice to the redness to B.H.s face. (T. 128.)
{¶12} At the conclusion of the evidence, the trial court found Appellant guilty of one count of Endangering Children. Appellant was currently incarcerated for felony drug trafficking through a conviction in the Holmes County Court of Common Pleas. The trial court sentenced Appellant to 120 days in the Ashland County Jail. The jail sentence was to be served consecutively to the period of incarceration that Appellant was presently serving. (Judgment Entry, Sept. 22, 2011.)
{¶13} It is from this decision Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶14} Appellant raises three Assignments of Error:
{¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED THE TESTIMONY OF DR. STEINER WITHOUT PROPER FOUNDATION.
{¶16} “II. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO SERVE HIS MISDEMEANOR SENTENCE CONSECUTIVE TO HIS EXISTING FELONY SENTENCE.
ANALYSIS
I.
{¶18} Appellant argues in his first Assignment of Error that the trial court abused its discretion when it admitted the testimony of Dr. Steiner. We disagree.
{¶19} At trial, Appellant made a continuing objection to the testimony of Dr. Steiner as to his opinion that the series of linear bruises of B.H.s face were characteristic of a hand slap. (T. 86.) The basis of Appellants objection was a lack of foundation for the admission of Dr. Steiners ultimate opinion. Appellant argues Dr. Steiner could not render an opinion because he only reviewed photographs of the injuries and read police reports. Appellant cites Evid.R. 702 in support of his argument.
{¶20} Evid.R. 702 states:
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. To the extent that the testimony reports
the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
{¶21} Determinations regarding the admissibility of expert testimony are generally within the discretion of the trial court and, absent an abuse of that discretion, will not be overturned. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 616, 687 N.E.2d 73 (1998); Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991) (“а trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence“).
{¶22} Dr. Steiners testimony qualifies under Evid.R. 702(B) based upon his “specialized knowledge, * * * experience, training, [and] education regarding the subject matter * * *.” According to Evid.R. 702(C), his testimony must be based on “reliable * * * specialized information” to be admitted, but because his testimony did not involve scientific or technical testing or procedures, the further requirements of Evid.R. 702(C)(1) to (3) are not at issue.
{¶24} Dr. Steiner testified to his significant experience in child abuse pediatrics. (T. 70.) Dr. Steiner testified he regularly reviewed cases of suspected child abuse through photographs and investigative reports and has enough information to render an opinion. (T. 83.) He discussed thе three criteria that he relies on when diagnosing cases of child abuse: history, plausibility, and congruence. (T. 68-71.) He has found it to be a reliable method of diagnosing child abuse and it was a standard practice within the pediatric field to use that criteria. Id.
{¶25} Dr. Steiner testified B.H. suffered a high velocity slap to his face bаsed on the breaking of the blood vessels on the face. (T. 86-88.) Comparing Appellants version of the events causing the injury to the face, Dr. Steiner concluded Appellants version was not congruent to the injuries. A grab or a squeeze to catch a child falling a few feet would not result in the same injuries. (T. 86.)
{¶27} Appellants first Assignment of Error is overruled.
II.
{¶28} Appellant argues in his second Assignment of Error the trial court erred in sentencing Appellant to serve the misdemeanor sentence in the present case consecutively to his existing felony sentence rendered in a separate case. We disagree.
{¶29} The trial court found Appellant was in violation of
{¶30} We find the trial court followed current Ohio sentencing laws to order Appellant to serve his misdemeanor sentence consecutively tо an unrelated felony. Prior to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
{¶31}
A jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term, jail term, or sentence of imprisonment when the trial court specifies that it is to be served consecutively or when it is imposed for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131 of the Revised Code.
When consecutive sentences are imposed for a misdemeanor under this division, the term to be served is the aggregate of the
consecutive terms imposed, except that the aggregate term to be served shall not exceed eighteen months.
{¶32} Governing consecutive misdemeanor and felony sentences is also
A jail term or sentence of imprisonment imposed for a misdemeanor violation of section 4510.11, 4510.14, 4510.16, 4510.21, or 4511.19 of the Revisеd Code shall be served consecutively to a prison term that is imposed for a felony violation of section 2903.06, 2903.07, 2903.08, or 4511.19 of the Revised Code or a felony violation of section 2903.04 of the Revised Code involving the operation of a motor vehicle by the offender and that is served in a state correctiоnal institution when the trial court specifies that it is to be served consecutively.
{¶33} In State v. Trainer, the Second District Court of Appeals analyzed the impact of Foster on
We concede that the trial court‘s reading of
R.C. 2929.41(B)(1) rendersR.C. 2929.41(B)(3) superfluous. Before it was excised from the Revised Code,R.C. 2929.41(A) prohibited consecutive misdemeanor and felony sentences, subject to the exceptions found inR.C. 2929.41(B)(3) . BecauseR.C. 2929.41(A) no longer exists, however, we are left withR.C. 2929.41(B)(1) , which allows consecutive misdemeanor and felony sentences in all cases, as recognized by the Twelfth District in Terry, supra, and the Fifth District in Elkins, supra. To readR.C. 2929.41(B)(3) as identifying the only circumstances under which a trialcourt may order consecutive misdemeanor and felony sentences is to ignore the plain language of R.C. 2929.41(B)(1) , which states that “[a] jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term * * * when the trial court specifies that it is to be served consecutively[.]” (Emphasis added). On the other hand, to readR.C. 2929.41(B)(1) as authorizing consecutive misdemeanor and felony sentences in all cases admittedly rendersR.C. 2929.41(B)(3) surplusage. But this is a consequence of the Ohio Supreme Court‘s decision to exciseR.C. 2929.41(A) from the Revised Code while leavingR.C. 2929.41(B) intact.
State v. Trainer, 2009-Ohio-906, ¶ 19-21,
{¶34} Pursuant to
{¶35} Appellants second Assignment of Error is overruled.
III.
{¶36} Appellant argues in his third Assignment of Error the verdict of the trial court was against the manifest weight of the evidence. We disagree.
{¶38} Appellant was charged with Endangering Children in violation of
{¶39} Under Sеction 2901.21(B), if a crime “neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.” “A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likеly to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.”
{¶40} S.B. testified that when she put B.H. to bed, he did not have marks on his face. After B.H. woke up, Appellant was the only adult in the home with B.H.
{¶41} An appellant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial. State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21. Neither is a conviction against the manifest weight of the evidence because the trier of fact believed the state‘s version of events over the appellant‘s version. State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19; State v. Williams, 10th Dist. No. 08AP719, 2009-Ohio-3237, ¶ 17. The trier of fact is free to believe or disbelieve all or any of the testimony. State v. Jackson, 10th Dist. No. 01AP-973, 2002 WL 416994 (Mar. 19, 2002); State v. Sheppard, 1st Dist. No. C-000553, 2001 WL 1219765 (Oct. 12, 2001). The trier of fact is in the best position to take into account inconsistencies, along with the witnesses’ manner and demeanor, and determine whether the witnеsses’ testimony is credible. State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58; State v. Clarke, 10th Dist. No. 01AP-194, 2001 WL 1117575 (Sept. 25, 2001). Consequently, an appellate court must ordinarily give great deference to the fact finder‘s determination of the witnesses’ credibility. State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037, ¶ 28; State v. Hairston, 10th Dist. No. 01AP-1393, 2002-Ohio-4491, ¶ 74.
{¶43} Appellants third Assignment of Error is overruled.
{¶44} For the foregoing reasons, Appellants three Assignments of Error are overruled.
{¶45} The judgment of the Ashland County Court of Common Pleas, Juvenile Division, is affirmed.
By: Delaney, P.J.
Hoffman, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
PAD:kgb
STATE OF OHIO v. PHILLIP A. FARLEY
Case No. 11-COA-042
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE