State v. HellerState v. Heller
TEODOSIO, Presiding Judge.
{¶1} Chelsie Heller appeals her convictions from the Lorain County Court of Common Pleas. This Court affirms.
I.
{¶2} Ms. Heller‘s son, A.L., has been involved with Lorain County Children‘s Services (“LCCS“) since birth. At that time, LCCS removed the baby from Ms. Heller‘s custody and placed him with his paternal grandmother, Elvira. When the baby was around three months old, LCCS returned the baby to Ms. Heller‘s custody. Elvira, however, would still watch the baby from time to time.
{¶3} When the baby was about eight months old, Elvira noticed a scratch on his face and took pictures of it. Elvira provided those pictures to the LCCS caseworker, who then went to Ms. Heller‘s mother‘s house (where Ms. Heller lived), along with two police officers. Ms. Heller denied them access to the home, but brought the baby onto the porch so that the LCCS
{¶4} After LCCS dropped the baby off at Elvira‘s son‘s house (where Elvira lived), Elvira gave the baby a bath. While doing so, one of her other grandsons noticed a bump on the back of the baby‘s head and pointed it out to her. Elvira inspected the bump аnd called LCCS, who advised her to take the baby to the hospital. She did, and the baby was eventually transferred to Rainbow Babies and Children‘s Hospital, where he was diagnosed with a skull fracture.
{¶5} A grand jury indicted Ms. Heller on one count of felonious assault in violation of
II.
ASSIGNMENT OF ERROR I
THE COURT ABUSED ITS DISCRETION WHEN IT ALLOWED AN EXPERT WITNESS FOR THE STATE TO TESTIFY WITHOUT THE STATE PROVIDING AN EXPERT REPORT PURSUANT TO CRIMINAL RULE 16(K).
{¶6} In her first assignment of error, Ms. Heller argues that the trial court abused its discretion by allowing an expert witness to testify at trial when the State failed to provide
{¶7}
{¶8} Here, Dr. McDavid testified that she observed injuries on the baby, including a scratch on his face, a bruise on his arm, and swelling on the baсk of his head, which was later diagnosed as a skull fracture. She testified that these injuries concerned her because an eight-month-old baby, who is not crawling yet, should not have any fractures, and because the baby had multiple injuries that were nоt consistent with a single fall. Over defense counsel‘s objection, Dr. McDavid opined that the injuries were inflicted (meaning that “[t]here was an impact“), and non-accidental. This conclusion was consistent with the medical records presented at trial, which indicated that the baby‘s injuries were “inflicted, non-accidental trauma.”1
{¶9} Ms. Heller‘s argument on appeal ignores the case law regarding a treating physician‘s ability to give a lay opinion, and instead focuses on State v. Walls, 6th Dist. Erie Nos. E-16-027 and E-16-028, 2018-Ohio-329, which is readily distinguishable. In Walls, the treating physician testified as an expert, and testified to matters that “far exceeded the scope of his report.” Id. at ¶ 23. The Walls court concluded that “it was incumbent on the [trial] court to preclude [the physician] from testifying to these undisclosed оpinions[,]” and that this prejudiced the defense, warranting a new trial. Id. at ¶ 38, 54.
{¶10} Here, unlike in Walls, the State did not present Dr. McDavid as an expert witness, nor did Dr. McDavid provide testimony that was inconsistent with her conclusions reflected in the medical records, which defense counsel received prior to trial. Even if Dr. McDavid had
ASSIGNMENT OF ERROR II
THE COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE STATE TO INTRODUCE EVIDENCE RULE 404(B) EVIDENCE AGAINST DEFENDANT‘S OBJECTION.
{¶11} In her second assignment of error, Ms. Heller argues that the trial court abused its discretion when it allowed the State to introduce
{¶12}
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, prepаration, plan, knowledge, identity, or absence of mistake or accident.
When examining
[t]he first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Evid.R. 401 . The next step is toconsider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B) . The third step is to consider whether the probative value of the other acts evidence is substantially outweighеd by the danger of unfair prejudice. SeeEvid.R 403 .
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20. This Court reviews a trial court‘s decision regarding the admissibility of other-acts evidence for an abuse of discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, syllabus.
{¶13} Ms. Heller argues that the trial court erred by admitting the following “other acts” testimony at trial: (1) Ms. Heller‘s other four children were involved with LCCS; (2) LCCS removed the baby from Ms. Heller‘s custody at birth because he tested positive for marijuana; (3) the LCCS caseworker brought two police officers with him to Ms. Heller‘s mother‘s house because Ms. Heller had threаtened him in the past; (4) Ms. Heller used profane language with the caseworker in the past; (5) Ms. Heller did not get along with her previous social worker; (6) Ms. Heller used profane and threatening language after LCCS cancelled a visitation beсause the baby had a neurology appointment; (7) Ms. Heller agreed to Elvira receiving temporary custody of the baby; and (8) LCCS was involved with Ms. Heller‘s children due to substance abuse, housing issues, and mental-health concerns.
{¶14} Defense counsеl did not properly object to the testimony regarding the first five of the foregoing at trial. While Ms. Heller has cited the transcript in support of her position, those transcript pages indicate that her trial counsel did not object, objeсted for reasons other than
{¶15} Regarding the latter three issues (i.e., Ms. Heller‘s use of profane and threatening language after LCCS cancelled a visitation because the baby had a neurology appointment; the fact that Ms. Heller agreed to Elvira receiving temporary custody of the baby; and the fact that LCCS was involved with Ms. Heller‘s children due to substance abuse, housing issues, and mental-health concerns), Ms. Heller‘s trial counsel raised general objections at trial, but did not specifically object on the basis of
THE CUMULATIVE EFFECT OF THE IMPROPERLY ADMITTED 404(B) EVIDENCE, AND EXPERT TESTIMONY CUMULATIVELY ROSE TO THE LEVEL THAT THIS CASE WARRANTS REVERSAL.
{¶16} In her third assignment of error, Ms. Heller argues that the cumulative effect of the improperly admitted other-acts evidence and Dr. McDаvid‘s expert testimony warrants a new trial. Based upon this Court‘s resolution of Ms. Heller‘s first and second assignments of error, Ms. Heller‘s third assignment of error is overruled.
III.
{¶17} Ms. Heller‘s assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Lorain, 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.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JOHN D. TOTH, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.