STATE OF OHIO v. CHRISTOPHER L. HOFFMAN
C.A. No. 26084
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
March 20, 2013
[Cite as State v. Hoffman, 2013-Ohio-1021.]
WHITMORE, Judge.
COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 08 12 4060 (A)
Dated: March 20, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellant, Christopher Hoffman, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} At around 3:00 a.m. on December 10, 2007, EMS responders and several members of the Cuyahoga Falls Police Department were dispatched to an apartment shared by Hoffman, his wife, and their infant son. Hoffman and his wife sought help for their son, N.H., born October 2, 2007, because he had an obstructed airway. By the time the EMS responders arrived, N.H. had no heartbeat and was not breathing. Although both the EMS responders and the hospital staff at Akron Children’s Hospital attempted to revive N.H., they were unsuccessful. N.H. was pronounced dead shortly after he arrived at the hospital.
{¶3} Subsequently, an autopsy was performed and a balled-up piece of tissue paper was removed from the back of N.H.’s throat. N.H. also had several facial injuries and injuries to
{¶4} A grand jury indicted Hoffman on twelve counts, seven of which the State dismissed prior to trial. The following five counts remained for trial: (1) aggravated murder, in violation of
{¶5} Hoffman filed a motion to sever the child endangering count related to N.H.’s rib fractures from his remaining counts for trial purposes, but the trial court denied his motion. Subsequently, the matter proceeded to a jury trial. The jury found Hoffman not guilty of aggravated murder, but guilty of the remaining counts. The court then sentenced Hoffman to fifteen years to life in prison.
{¶6} Hoffman now appeals from his convictions and raises three assignments of error for our review.
Assignment of Error Number One
THE TRIAL COURT ERRED WHEN IT DENIED MR. HOFFMAN’S MOTION FOR RELIEF FROM PREJUDICIAL JOINDER OF OFFENSES, GREATLY PREJUDICING HIS DEFENSE AND VIOLATING HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.
{¶7} In his first assignment of error, Hoffman argues that the trial court erred by refusing to sever the child endangering count pertaining to N.H.’s old rib fractures from his remaining counts for purposes of trial. We disagree.
{¶8} “It is well-settled that the law favors joinder.” State v. Merriweather, 9th Dist. No. 97CA006693, 1998 WL 239773, *3 (May 6, 1998).
{¶9} Hoffman concedes that he sought to sever his charges pursuant to
{¶10} “When a defendant claims that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct.” State v. Schaim, 65 Ohio St.3d 51, 59 (1992). Thus,
[a] prosecutor can use two methods to negate such claims of prejudice. Under the first method, the “other acts” test, the [S]tate argues that it could have introduced evidence of the [] crimes under the “other acts” portion of
Evid.R. 404(B) , [even] if the * * * offenses had been severed for trial. Under the second method, the “joinder” test, the [S]tate is not required to meet the stricter “other acts” admissibility test, but is merely required to show that evidence of each crime joined at trial is simple and direct. Thus, when simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as “other acts” underEvid.R. 404(B) .
(Citations omitted.) State v. Lott, 51 Ohio St.3d 160, 163 (1990). Accord State v. Shipley, 9th Dist. No. 03CA008275, 2004-Ohio-434, ¶ 75. “[T]he jury is capable of segregating the proof of multiple charges when * * * the evidence of each crime is uncomplicated.” State v. Hamblin, 37 Ohio St.3d 153, 159 (1988).
{¶11} “Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused’s propensity or inclination
{¶12} The Ohio Supreme Court recently held that:
in considering other acts evidence, trial courts should conduct a three-step analysis.
The 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. The next step is to consider 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 outweighed by the danger of unfair prejudice.
(Internal citations omitted.) Williams at ¶ 19-20. “[D]ecisions regarding the admissibility of other-acts evidence under
{¶13} The evidence that Hoffman sought to exclude here was that N.H. had suffered rib fractures at some point prior to his death. X-rays taken at the time of N.H.’s autopsy revealed both old and new rib fractures. The old rib fractures led to a separate charge of child endangering because N.H. could not have sustained them at the same time that he sustained the new rib fractures. In its pre-trial ruling, the trial court held that the evidence of the old fractures
{¶14} The first part of the Williams test for the admission of other acts evidence asks whether the evidence was relevant to a fact of consequence. Williams at ¶ 20. The defense’s entire theory in this case was that N.H.’s death was a horrific accident caused by him sucking in or swallowing a piece of foreign material that Hoffman could not retrieve. The State, on the other hand, theorized that N.H. was the victim of abuse and that Hoffman had caused his untimely death by pushing foreign material into his mouth. The evidence was such that N.H. only had two primary caregivers: Hoffman and his wife. Hoffman’s wife testified and denied ever having harmed N.H. in any manner. Therefore, evidence that N.H.’s ribs had been fractured on at least one previous occasion was relevant to determining whether he was a victim of abuse at Hoffman’s hands.
{¶15} The second part of the Williams test questions the State’s purpose in introducing the other acts evidence, i.e., whether it was to show propensity. Id. The State offered the evidence of N.H.’s old fractures to show, not that Hoffman had a propensity towards violence or abuse, but that N.H.’s death was not the result of an accident. Evidence may be admissible under
{¶16} The third part of the Williams test asks whether the probative value of the other acts evidence at issue is outweighed by its prejudicial effect. Williams at ¶ 20. Although the evidence that N.H. had suffered old rib fractures was undoubtedly prejudicial to Hoffman, we cannot say that the prejudicial effect of that evidence outweighed its probative value. The evidence greatly detracted from the defense’s theory that N.H. was well-cared for and simply died as the result of a horrific accident. Moreover, the trial court specifically instructed the jury that “[t]he evidence in each count must be considered separately, uninfluenced by your verdict in any other count.” Although Hoffman’s counts were joined for trial, the trial court told the jury to consider the counts separately in reaching it ultimate decision. This Court presumes that the jury followed the trial court’s instruction. See State v. Samuels, 9th Dist. Nos. 25982, 25983 & 25984, 2012-Ohio-5401, ¶ 13, quoting State v. Witcher, 9th Dist. No. 26111, 2012-Ohio-4141, ¶ 33.
{¶17} Hoffman argues that the evidence of N.H.’s old rib fractures was not admissible because the State failed to present sufficient evidence that he caused the old fractures. According to Hoffman, the old fracture evidence was not admissible to prove absence of mistake or accident because “[he] had no prior knowledge of the rib injuries.”
{¶18} Because Hoffman’s charges were joined for trial, the State was trying the charge pertaining to N.H.’s old rib fractures at the same time it was trying Hoffman’s other charges. It, therefore, had to prove that Hoffman caused N.H.’s old rib fractures during the course of the trial for Hoffman’s other charges. Hoffman has not set forth any law to suggest that the State was
{¶19} Because the evidence of N.H.’s old rib fractures was admissible other acts evidence, Hoffman cannot show prejudice as a result of the joinder of his multiple offenses. See Schaim, 65 Ohio St.3d at 59; Lott, 51 Ohio St.3d at 163. Moreover, due to that conclusion, this Court need not analyze whether the old rib fracture evidence was simple and distinct. See Clay at ¶ 33 (appellate court need not perform less stringent joinder test when “more stringent” other acts test met). The trial court did not commit plain error by denying Hoffman’s motion to sever his charges for purposes of trial. Hoffman’s first assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT VIOLATED MR. HOFFMAN’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, THE TRIAL COURT CONVICTED HIM OF MURDER IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶21} In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).
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 State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is a test of adequacy.” Thompkins at 386.
{¶22} Initially, we note that Hoffman’s assignment of error only challenges one of his child endangering convictions. Hoffman does not challenge the conviction arising from N.H.’s old rib fractures. Instead, he challenges the child endangering conviction that arose from the conduct in which he engaged on the day of N.H.’s death. That child endangering conviction, stemming from a violation of
{¶23} The child endangering statute forbids any person from abusing a child who is under eighteen years of age.
A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely 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.
{¶24} Officer Geoffrey Hill testified that he responded to the Hoffman residence to assist the fire department after dispatch informed him that there was an infant who was choking at the residence. Officer Hill spoke with Hoffman outside once the paramedics left with N.H. Officer Hill testified that he asked Hoffman what had happened and Hoffman stated that he had tried to clean his son’s mouth with some toilet paper while he was in the process of feeding him. Hoffman told Officer Hill that N.H. swallowed the toilet paper before he could react and he was unable to remove it from his son’s mouth.
{¶25} Amy Schaefer, a forensic investigator for the Summit County Medical Examiner’s Office, testified that she interviewed Hoffman at the hospital after N.H. had been pronounced dead. Hoffman told Schaefer that N.H. began to drool during his feeding, so he looked for something to wipe N.H.’s mouth. Unable to find a cloth, Hoffman stated, he went to the bathroom, took a few pieces of toilet paper, wetted them, balled them up, and used them to wipe N.H.’s mouth. When he was wiping inside N.H.’s mouth, Hoffman lost hold of the toilet paper and was never able to retrieve it.
{¶26} Other members of the Cuyahoga Falls Police Department interviewed Hoffman at the hospital and later at the police station. Detective Kurt Dirker testified that he interviewed Hoffman at the hospital before Schaefer conducted her interview. Hoffman told Detective Dirker that N.H. had spit up during his feeding, so Hoffman got two to three sheets of wet toilet
{¶27} Dr. Lisa Kohler, the Summit County Chief Medical Examiner, performed N.H.’s autopsy. Dr. Kohler testified that she removed an obstruction from the very back of N.H.’s throat. The obstruction measured approximately two-and-a-quarter inches by one inch by one-half inch. Once the obstruction was removed, Dr. Kohler teased it out and noted that it was consistent with “two thin layers of a facial tissue type product.” Dr. Kohler testified that it was impossible for N.H. to have swallowed or sucked in the balled-up tissue that she removed from his throat. She explained that, at around ten weeks of age, infants have a reflex that causes them to push solid materials out of their mouths with their tongues. Therefore, an infant could swallow foreign material only if someone pushed the material past the point of the infant’s reflex. Dr. Kohler testified that she ruled N.H.’s death a homicide because there was no way the balled-up tissue she found in his throat got there “without the assistance of another person.”
{¶28} Dr. Kohler also noted that N.H. had sustained several other injuries. During her examination of N.H., Dr. Kohler observed both fresh and healing bruises to N.H.’s face in two locations as well as a torn frenulum and bruising to his gums. Dr. Kohler explained that the frenulum is the small piece of tissue in the front of the mouth that connects a person’s upper lip to their upper gum. She testified that N.H.’s torn frenulum and bruised gum were due to some blunt force trauma and that, typically, a torn frenulum injury in a baby is one that is caused by the forceful pushing of the baby’s lip upward. When she x-rayed N.H. during her examination,
{¶29} Dr. Richard Daryl Steiner, the Medical Director of the Care Center at Akron Children’s Hospital, testified that he was asked to review N.H.’s case given his experience with child abuse pediatrics. Dr. Steiner opined, based on his review of all of the evidence in the case, that Hoffman’s explanation for how the foreign material found in N.H.’s throat came to be there was not plausible. Dr. Steiner elaborated that, given the size of the balled-up tissue Dr. Kohler found, the size of an infant’s mouth, and the tongue thrust reflex that a two-month old possesses, “it would not be plausible for that [two-month old] to have gotten that hunk of tissue down into the back of his throat without it having been placed there.” Dr. Steiner opined that for the tissue to have gotten into that position, the tissue would have had to have been placed beyond the midline of the tongue.
{¶30} “Circumstantial evidence and direct evidence inherently possess the same probative value * * *.” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Viewing the evidence here in a light most favorable to the State, we must conclude that the State presented sufficient evidence from which a rational trier of fact could have concluded that Hoffman recklessly abused N.H. on the day of his death. Although Hoffman told the police and the forensic investigator that N.H. somehow accidentally swallowed the balled-up tissue that blocked his airway, there was expert medical testimony that the only way the tissue could have gotten into N.H.’s throat was if someone placed it there. Both Dr. Kohler and Dr. Steiner
{¶31} Hoffman also argues that his felony murder conviction is based on insufficient evidence. The felony murder statute provides that “[n]o 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 * * *.”
Assignment of Error Number Three
MR. HOFFMAN’S CONVICTION WAS ENTERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶33} In determining whether a conviction is against the manifest weight of the evidence an appellate court:
must 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, 33 Ohio App.3d 339, 340 (9th Dist.1986). 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 conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id. Therefore, this Court’s “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. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.
{¶34} As in his sufficiency assignment of error, Hoffman only challenges the child endangering conviction that served as the predicate offense for his felony murder charge. That child endangering conviction related to the balled-up tissue that ultimately asphyxiated N.H. Hoffman argues that the jury lost its way by not concluding that N.H.’s death was the result of an accident. According to Hoffman, the jury only convicted him of the offense because it heard evidence about N.H.’s prior rib fractures.
{¶35} The State produced evidence that Hoffman gave several different versions of the events that occurred at the time of his son’s death when pressed about the details. Hoffman told
{¶36} As previously set forth, both Dr. Kohler and Dr. Steiner testified that it would not be possible for a two month old to swallow the type of solid object found in N.H.’s throat. Both doctors testified that a two month old would expel the object due to a tongue thrust reflex unless the object was pushed past the point of the child’s reflex. Dr. Steiner went on to explain that even if a child was sticking its tongue out at the point in time that a tissue was placed on top of the tongue, the tissue would not go beyond the midpoint of the tongue (where the thrust reflex ends) when the child retracted its tongue. Dr. Steiner explained that in that scenario the tissue would be scraped off by the child’s upper lip and gum due to the small size of the child’s mouth.
{¶37} In response to the testimony of Dr. Kohler and Dr. Steiner, the defense presented the testimony of Dr. Cyril Wecht, an expert in forensic, anatomical, and clinical pathology. Dr. Wecht testified that he believed it was possible for a two month old to swallow a tissue that came into contact with its mouth. According to Dr. Wecht, a baby’s desire to swallow an item “might be a matter of palatability” and depend on whether the item “tastes good.” Dr. Wecht ultimately concluded that N.H.’s death was accidental, but admitted that it was possible the tissue on which he asphyxiated had been intentionally placed into the back of his throat. The reason that Dr. Wecht thought the death was accidental was that, having reviewed all the evidence, he felt it was much more likely that Hoffman accidentally dropped the wad of tissue into N.H.’s throat. He specified: “I can think of many easier ways to kill a baby and not be discovered than to put a wad of tissue paper in the back of the mouth.” Dr. Wecht testified that he had never heard of the term “infant tongue thrust” and did not know what it meant. He agreed, however, that a tissue would have to go past a child’s gum line in order for it to be in the child’s mouth.
{¶38} Heidi Hoffman, N.H.’s mother, testified that N.H. was a good baby overall, but was fussy and spit up a lot during his feedings. Due to problems with N.H. spitting up and fussing after his bottle, Heidi stated that the pediatrician had suggested holding him upright for an hour after eating. Heidi testified that it was very rare to be able to console N.H. when he became fussy and that it usually took an hour or more of him crying before he would finally exhaust himself and fall asleep. Before N.H.’s death, Heidi stated that she left for work at around 7:00 a.m. and returned at around 5:30 p.m. Meanwhile, Hoffman worked two jobs; one from 12:00 p.m. until 5:00 p.m. and one from 6:00 p.m. until 6:00 a.m. Because Hoffman’s day
{¶39} Heidi testified that she never abused N.H. or had any knowledge that he had ever been injured. On the day of N.H.’s death, Heidi testified that she was sleeping when Hoffman came into her bedroom and told her that N.H. was choking on some tissue he had swallowed. Heidi stated that the bathroom in their apartment had big towels, small towels, and wash cloths in it, as well as disposable wipes. Heidi verified that there also was a receiving blanket right on the rocking chair in N.H.’s bedroom and that she had used that very blanket to wipe off her hands when she tried to feel inside N.H.’s mouth for any obstruction.
{¶40} Hoffman informed Mizda, the social worker at the hospital, that he felt like he was doing everything after N.H.’s birth and that “a lot of the responsibility seemed to fall [on] him.” Mizda testified that Hoffman seemed upset or angry during that portion of their conversation and, when she asked him how he felt, he replied that he “had gotten more pissed at Heidi than at [N.H.]” about the parenting schedule. Hoffman also spoke about his schedule when Detective Dirker interviewed him at the police station a few days after N.H.’s death. When speaking with Detective Dirker, Hoffman stated that “it pissed him off that he would come home from work at seven in the morning * * * and [Heidi] would * * * bitch about having to take care of the baby.”
{¶41} As previously discussed, Dr. Kohler noted several other injuries during her examination of N.H. Specifically, N.H. had two bruises to his face, one of which was old and one of which was fresh, a torn frenulum, bruised gums, a broken collar bone, and rib fractures.
{¶42} Dr. Steiner also testified regarding N.H.’s rib fractures. He testified that the mechanism of injury for such fractures is compression and the forcing of the rib cage backwards. When such a fracture occurs, Dr. Steiner went on, the baby is held by the thorax and the chest is compressed so that the back of the baby’s chest wall goes behind its spine. Dr. Steiner testified that he could not definitively say whether N.H.’s new rib fractures were caused by CPR compressions because he did not know how CPR had been performed. Dr. Steiner did say, however, that CPR would not have caused rib fractures if the baby was lying down at the time.
{¶43} Hoffman’s own expert also agreed that N.H.’s healing rib fractures were non-accidental. In his expert report, Dr. Wecht wrote that N.H.’s healed rib fractures and collar bone fracture “support a contention of non-accidental, adult inflicted injuries.” He further wrote that “[t]here had to be some adult caretaker who could have caused the chest fractures.” Dr. Wecht
{¶44} All of the EMS responders who treated N.H. and testified at trial testified that N.H. had blood in his mouth that they had to suction when treating him. N.H. also had a small amount of blood on his face below the nose and on his wrist. Maggie Hobson, one of the EMS responders, testified that N.H. was lying face up on the floor when she arrived on scene. Heidi also testified that N.H. was lying on the floor in front of his crib when she came into his room after Hoffman woke her up. None of the individuals who spoke with Hoffman ever recalled Hoffman saying that he put N.H. back into his crib once he began choking. Hoffman specifically told Detective Tlumac during the interview at the police station that after N.H. swallowed the toilet paper he left N.H. lying on the floor of his bedroom to go wake up Heidi. Even so, Officer James Stanley testified that he observed blood inside of N.H.’s crib when he inspected it on the day of N.H.’s death. N.H.’s bedding then was sent to the Bureau of Criminal Identification and Investigation where testing later confirmed that the blood on the bedding was consistent with N.H.’s DNA profile.
{¶46} The actual tissue that the medical examiner extracted from N.H.’s mouth had been balled-up into a wad. N.H. also had a torn frenulum and bruised gums, injuries which Dr. Kohler testified were consistent with blunt force trauma. Additionally, N.H.’s blood was found in his crib despite the fact that Hoffman claimed to have placed him directly on the floor of his room after swallowing the tissue. None of the medical experts who testified were able to definitively say whether some or all of the fresh fractures to N.H.’s ribs were or were not the result CPR. The healing fractures, however, were at least a week old. Both Dr. Kohler and Dr. Steiner testified that they were compression injuries, and Dr. Wecht, the defense expert, agreed that the injuries were non-accidental. Hoffman and his wife were N.H.’s primary caregivers. Heidi specifically testified that there were only a handful of occasions that someone else had watched
{¶47} Given all of the evidence before the jury, we cannot say that this is the exceptional case where the jury clearly lost its way by convicting Hoffman. Hoffman’s convictions for child endangering and felony murder are not against the manifest weight of the evidence. Consequently, his third assignment of error is overruled.
III
{¶48} Hoffman’s assignments of error are overruled. The judgment of the Summit 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 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.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J. CONCURRING.
{¶49} I concur in the majority’s judgment and most of its analysis. I write separately to briefly discuss Mr. Hoffman’s first assignment of error. While the majority conducts a detailed and thorough analysis of Mr. Hoffman’s argument, I would undertake a more limited review. There is no dispute that Mr. Hoffman did not preserve his argument for review, thus limiting this Court to determining whether the trial court committed plain error. To establish plain error,
“[f]irst, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of
Crim.R. 52(B) , an error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected ‘substantial rights * * * ’ [to the extent that it] * * * affected the outcome of the trial.”
State v. Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶ 9, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “Notice of plain error under
{¶50} Mr. Hoffman makes a very limited argument on appeal. Essentially, his argument appears to be that he was denied a fair trial because evidence that N.H. suffered prior, older fractures was presented in his murder trial and that the presentation of such evidence in his murder trial denied him a fair trial. I see no merit to his argument, particularly given our limited review. There is no question that, during the murder trial, the medical examiner could testify
{¶51} In light of the evidence presented supporting the conclusion that Mr. Hoffman was responsible for N.H.’s death and recent injuries, I cannot say the presentation of evidence concerning the older fractures which suggested prior abuse at the hands of an unknown person affected the outcome of the trial with respect to the murder charges. Thus, I agree that Mr. Hoffman’s assignment of error is properly overruled.
CARR, J. CONCURRING IN JUDGMENT ONLY.
{¶52} I concur in judgment only because I disagree with the lead opinion’s analysis of Hoffman’s first assignment of error. Hoffman forfeited the alleged error by failing to object, limiting this Court’s review to plain error under
APPEARANCES:
MELISSA M. PRENDERGAST, Assistant State Public Defender, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.