State of Ohio, Appellee v. Gilbert John Michael Hughes, Appellant
Court of Appeals No. WD-16-056
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Decided: March 30, 2018
[Cite as State v. Hughes, 2018-Ohio-1237.]
JENSEN, J.
Trial Court No. 2015CR0148. Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.
{¶ 2} On April 16, 2015, Hughes was indicted on one count of endangering children in violation of
A. March 6, 2015 Incident
{¶ 3} On March 6, 2015, at 9:01 a.m., the Wood County Sheriff‘s Office received a 911 call about an unresponsive three-month-old baby in Bowling Green. When paramedics arrived, they found that S.H. was not breathing and had no pulse. S.H. was transported to Wood County Hospital, where she was stabilized. Her treatment included the insertion of an intraosseous line to allow doctors to infuse medication directly into her bone, the insertion of an endotracheal tube to pump oxygen directly into her lungs, the use of a ventilator to breathe for her, and the administration of several doses of epinephrine to help restart her heart. The emergency room doctor who treated S.H. believed that S.H.‘s respiratory arrest was caused by respiratory syncytial virus (“RSV“) because S.H. had been admitted to the hospital with RSV a couple of weeks earlier.
{¶ 4} S.H. was transferred by air ambulance to the pediatric critical care unit at Toledo Children‘s Hospital because she was on a ventilator. Dr. Susan Tourner, the
B. The Experts’ Testimony
1. Dr. Schlievert‘s Testimony
{¶ 6} Regarding S.H.‘s injuries, Dr. Schlievert said that Dr. Tourner asked him to examine S.H. because she showed signs of abusive head trauma. He noted that the pattern of retinal hemorrhaging seen in S.H.‘s eyes was indicative of abusive head trauma and helped rule out other causes, such as blood clots, infections, and genetic conditions. He also said that her CT scan showed subdural hematomas that were composed of both fresh and old blood. He emphasized that the CT scan could not provide the exact dates the hematomas occurred, but he believed that the appearance of the fluid was indicative of a recent shaking incident and an earlier shaking incident. Dr. Schlievert said that a baby exhibiting symptoms of a brain injury was a better indicator of when a shaking event happens than the appearance of the brain on a CT scan. In S.H.‘s case, she exhibited apnea on February 20, which Dr. Schlievert said was mistakenly attributed to RSV when it was actually likely caused by shaking. A shaking incident on February 20 would account for the old blood in S.H.‘s CT scan. On March 6, S.H. exhibited
{¶ 7} Dr. Schlievert also ruled out alternate explanations for S.H.‘s injuries and CT scan results. He said that S.H.‘s MTHFR gene mutation could not account for her medical condition on March 6 because the risk that the mutation would lead to a blood clot is small and, although a localized clot could explain a subdural hematoma, it would not explain the presence of other signs of abusive head trauma. Dr. Schlievert also dismissed the likelihood that the old blood could be related to a birth injury because, even assuming that a birth injury caused some later bleeding, it would not cause brain damage and, thus, would not cause the serious symptoms S.H. had. In his opinion, S.H.‘s injuries were caused by someone violently shaking her.
2. Dr. Scheller‘s Testimony
{¶ 8} To counter Dr. Schlievert‘s testimony, Hughes presented Dr. Joseph Scheller‘s testimony. Dr. Scheller is a pediatric neurologist with special training in reading CT and MRI scans. In preparing his report, Dr. Scheller reviewed S.H.‘s medical records, but did not examine her. His review of the records led him to believe that S.H. suffered from birth trauma that caused her to develop a hygroma, which is a collection of thick fluid between the skull and the brain. The “old blood” Dr. Schlievert identified on the CT scan was really fluid from the hygroma and the “fresh blood” was a natural result of S.H.‘s body ridding itself of the hygroma. He said that his conclusion is supported by
{¶ 9} Initially, Dr. Scheller noted that he found it striking that S.H. did not have any visible injuries that could be attributed to abuse; he said it is possible—but unusual—for an abused child to present without any external injuries.
{¶ 10} Relative to S.H.‘s head size, Dr. Scheller testified that the doctor who attended S.H.‘s birth mistakenly plotted S.H. on the growth curve for a baby born after 37 weeks’ gestation and found that her head circumference was in the 50th percentile. He said that her weight more closely corresponded with a baby born after 40 weeks’ gestation and plotting her measurement on the growth curve for full-term babies put her in the 20th percentile for head circumference. By her two-week checkup, S.H.‘s head circumference was in the 90th percentile for babies her age. Dr. Scheller thought that this increase was unusual and represented some underlying problem. He also said that her birth record noted some swelling on her scalp, which indicated to Dr. Scheller that S.H.‘s passage through the birth canal had been “a little bit more squeezed” than average.
{¶ 11} As to the MTHFR gene mutation, Dr. Scheller testified that it is sometimes associated with excessive blood clotting. S.H. also had elevated blood platelet levels both times she was admitted to the hospital, which also could have caused excessive clotting.
{¶ 13} Dr. Scheller also identified fresh blood near the front right, back center, and top center of S.H.‘s skull. He said that the fresh hematomas were small and not pushing on the brain, so they should not have caused any dramatic problems.
{¶ 14} He claimed that it is not uncommon for children who have large heads to have fluid accumulations like the one he saw in S.H., but said that the accumulations are generally benign. Most children‘s bodies are able to break down the fluid and remove it from the body. As part of the removal process, the body creates new blood flow to the affected area by growing blood vessels and the new vessels sometimes bleed. This results in blood that is not touching the surface of the brain and does not cause the same effects as blood from trauma, which does touch the surface of brain.
{¶ 15} On the whole, Dr. Scheller believed that S.H.‘s brain looked fairly good, despite the hematomas, so the CT scan did not explain why S.H. had a near-death experience on March 6.
{¶ 16} Dr. Scheller went on to review S.H.‘s brain MRI from March 7, 2015. He explained that an MRI gives more detailed images of the brain‘s anatomy. The fluid around S.H.‘s brain was a grayish color on the MRI images, which Dr. Scheller said was indicative of a hygroma, as opposed to normal spinal fluid, which appears black on MRI
{¶ 17} The MRI also showed that the fresh blood seen on the CT scan was not only above the surface of the brain, but was also touching the surface of the brain. According to Dr. Scheller, blood on the surface of the brain can cause seizures, which manifest in babies as changes in color, circulation, breathing, and blood pressure. Dr. Scheller also showed the jury MRI images of the blood flow in S.H‘s brain. The images showed symmetrical areas on both sides of her brain that were damaged. Dr. Scheller attributed this pattern to a lack of blood and oxygen flow. In short, he did not believe that S.H.‘s brain images showed a picture of someone who had suffered head trauma.
{¶ 18} Dr. Scheller referred to S.H.‘s CT scan from September 2015 to support his conclusion. The images showed that S.H. had an even thicker layer of fluid around her brain and had fresh blood—that is, a new subdural hematoma—near the front left of her skull.
{¶ 19} Regarding S.H.‘s retinal hemorrhages, Dr. Scheller testified that any change in the pressure of the brain affects the delicate veins in the eye by putting pressure
{¶ 20} Taking all of this information into consideration, Dr. Scheller concluded that S.H. suffered from a severe seizure on March 6 due to blood clots on the surface of her brain. The clots resulted from bleeding that occurred as her body tried to absorb the fluid from the hygroma, which, in turn, was caused by birth trauma. And the seizure—not abusive head trauma—caused S.H.‘s respiratory arrest and resulting brain damage on March 6. Dr. Scheller said that it was possible (although unlikely) that S.H. was shaken, but that her brain did not look like a brain that had suffered a traumatic injury. Rather, it looked like a brain that was going through a chronic process and suffered an acute complication.
{¶ 21} During cross-examination, Dr. Scheller confirmed that he is not board certified in child abuse and does not consider himself an expert in child abuse. He defended his decision to use 40 weeks as S.H.‘s gestational, instead of 37 weeks as the attending pediatrician did, by explaining that S.H.‘s measurements were inconsistent with a 37-week baby‘s measurements and noting that many parents have an inaccurate perception of their baby‘s gestational age. He claimed that common sense told him that a doctor would expect to see external injuries on a baby with abusive head trauma, but he could not point to any specific research that reached the same conclusion. He also admitted that it is possible for a baby to have a head injury without also having evidence
3. Dr. Schlievert‘s Rebuttal Testimony
{¶ 22} For its rebuttal case, the state recalled Dr. Schlievert. He explained that the body naturally releases more platelets in response to trauma. Even though S.H.‘s platelet counts were elevated, they were not elevated enough to cause clotting. In fact, Dr. Schlievert believed that the elevated platelet counts were a response to the brain trauma S.H. suffered, not the cause of it. As far as S.H.‘s retinal hemorrhages, Dr. Schlievert said that there were too many and they were too widespread to be caused by a change in brain pressure. He believed that all of S.H.‘s injuries occurred from being violently shaken. Dr. Schlievert disagreed with Dr. Scheller‘s conclusion that S.H. had blood clots sitting on the surface of her brain. Even if she did, he said, such clots would not cause seizures. Seizures do not cause brain damage unless they last for almost an hour; the instant change seen in S.H. shows that her brain damage was the result of physical trauma, not the result of a seizure.
C. The Effects on S.H.
{¶ 23} Prior to March 6, 2015, S.H. appeared to be developing normally. The pediatricians who examined her at birth and at wellness checkups said that she was generally healthy prior to her RSV diagnosis on February 20. Her head circumference at birth was in the 50th percentile on growth charts and in the 90th percentile at all of her
{¶ 24} S.H.‘s foster father testified about S.H.‘s life following March 6, 2015. At the time of trial, S.H. was nearly two years old. But she had the mentality of a baby who is no more than four months old. She regularly receives physical, occupational, and speech therapy to help her learn to perform activities such as swallowing, sucking, grabbing objects, and controlling her head. She is nonmobile and has a tracheostomy tube that requires frequent suctioning. She cannot ingest food through her mouth because her stomach does not function properly, so she is fed through a tube that goes directly into her intestines.
{¶ 25} S.H. receives medicines five times a day. She takes seven different medicines to control seizures, reduce stomach acid, improve breathing, and relieve pain. Additionally, S.H. must spend several hours a day wearing a back brace to correct her spine curvature and using a pulsating vest to help clear the mucus in her lungs. The foster father testified that his wife, a registered nurse, quit her job to attend to S.H.‘s care and her numerous medical appointments each month.
D. The Police Investigation
{¶ 26} Sergeant Scott Kleiber of the Bowling Green Police Division was one of the officers who investigated this case. He testified that he was dispatched to Wood
{¶ 27} When Kleiber and his partner spoke to Hughes about the incident, Hughes told them about S.H.‘s February 20 RSV diagnosis and said that he believed the same thing was happening again. Hughes said that S.H. was very fussy and crying a lot that morning, and he had trouble calming her down. When Kleiber asked Hughes if S.H. made him mad that morning, Hughes responded, “Well, a little bit, but she‘s tiny and I am not trying to hurt her.” When Hughes could not calm S.H. down and he started to get upset, he put her in her swing and walked to the back of their home (approximately 25 to 30 feet from the swing). He said that he was gone for a short time, during which he texted his wife and S.H.‘s mother, Janel, and when he returned, S.H. was lifeless and had her tongue sticking out. Hughes told Kleiber that he had bounced S.H. and patted her on the back and conceded that he may have done it too roughly. Hughes also indicated that bonding with S.H. had been difficult.
{¶ 28} While talking to the officers, Hughes allowed Kleiber‘s partner to read text messages on his phone. Kleiber testified that Hughes sent Janel a picture of S.H. at 8:52 a.m. with the caption “Cranky fucking pain in the ass.” Although Kleiber subpoenaed Hughes‘s phone records, the records do not contain this message. The first March 6 message in the phone records was from Hughes to Janel at 8:53 a.m. It said, “Wont [sic] shut up.”
Is it bad if I cant wait til I got ro work on monday [sic].
At work I don‘t have a screaming baby. Just bitchy coworkers and some students[.]
I can‘t take this random ass crying and screaming.
She makes me fucking tense This is serious FUCKING BULLSHITT that acts this way with me I love both of y all to death but I m so FUCKING stressed out [sic].
{¶ 30} On March 7, the day after S.H. was admitted to the hospital, Hughes sent the following messages to Janel:
I was the last one taken [sic] care of her. It always happens when she is with me.
I may not be crying on the outside but I‘m totally torn up on the inside[.]
I still feel like I did something WRONG to her.
E. Hughes‘s Witnesses
{¶ 31} During his case, Hughes first presented the testimony of Janel‘s mother, grandmother, and two of her aunts. All four women testified that they had seen Hughes interact with and care for S.H. and did not have any concerns with the way Hughes treated her. They described him as doting, protective, caring, gentle, and concerned about making sure that he was doing things correctly. None of them ever saw Hughes
{¶ 32} Janel also testified on Hughes‘s behalf. She and Hughes were married on May 13, 2013. S.H., who was born on November 19, 2014, is their only child. Janel had high blood pressure and gestational diabetes while she pregnant, so she was induced 17 days before her due date. She also mentioned that S.H. “got stuck” during the birth, and said that someone told her that S.H.‘s shoulder had been partially dislocated, but that they had “popped it back in.”
{¶ 33} Janel returned to work in mid-January 2015. She worked from 2:00 a.m. to 10:30 a.m. at a restaurant near their home. Hughes cared for S.H. from the time Janel went to work until Janel‘s aunts arrived at 8:30 a.m. to watch S.H. while Hughes worked.
{¶ 34} On February 20, Janel was at work when Hughes called and told her that something was wrong with S.H., who was not breathing normally. Janel rushed home, and they took S.H. to Wood County Hospital. S.H. was transferred to Toledo Children‘s Hospital where she stayed overnight. She was diagnosed with RSV. Several days later, S.H. still was not breathing correctly. In addition to continuing breathing problems, Janel said that S.H. startled more easily after the February 20 incident and, beginning about a week after, vomited daily for approximately a week. The vomiting stopped on March 1 and S.H. was healthy until March 6. S.H. was still jumpy during those days, but otherwise seemed to be acting like herself again.
{¶ 36} Hughes‘s counsel asked Janel about the text messages. She said that she, by her own choice, had been S.H.‘s main caretaker while she was on maternity leave, so Hughes did not have a chance to develop his parenting skills and his ability to comfort S.H. until Janel went back to work. She said that Hughes is a “tense” person, but she viewed the text messages as nothing more than him expressing his frustration with not being able to comfort S.H. She believed that Hughes was stressed, but not inordinately so.
{¶ 37} Like her relatives, Janel described Hughes as loving, caring, and protective. She did not believe that Hughes hurt S.H. Janel explained that she and Hughes wanted children and Hughes was excited about S.H.‘s birth. While Janel had seen Hughes get frustrated with S.H. and walk away from her, she had never seen him get angry with S.H.
{¶ 38} Finally, Hughes testified on his own behalf. Regarding the February 20 incident, he said that S.H. was fine for a while that morning, but then she began gasping for air and breathing irregularly. He began doing rescue breathing and sent a message to Janel, who came home. Janel continued rescue breathing while Hughes dressed, and then he drove them to the hospital. When S.H. came home from the hospital, Hughes said that she was extremely cranky and fussy. He echoed Janel‘s testimony that S.H. startled more easily than normal and vomited for several days, but seemed to be better by March 1.
{¶ 39} March 6 began as a normal day. Around 7:30 or 8:00 that morning, S.H. woke up screaming and Hughes could not quiet her. He said that he tried feeding her, bouncing her, and changing her diaper, but she did not stop crying. He was getting frustrated, so he put her in her bouncy seat and walked to his bedroom to get dressed. He had been back there for a time when he noticed that S.H. had gotten quiet. He went to check on her and found her slumped over in her bouncy seat with her tongue sticking out. He took her out of her seat and nudged her to see if it would wake her up. When she did not, he messaged Janel, saying “she‘s doing it again.” When Janel got home, Hughes called 911. He explained that their house is off an alley, not the street in their address, so he went outside to wait for the ambulance to make sure the paramedics could find the house. The paramedics came in and took S.H. to the hospital. Hughes spent some time gathering things like clothes and the diaper bag and then left for the hospital.
{¶ 41} Regarding the text messages, Hughes testified that he sent the messages on March 1 because S.H. kept crying “for no reason.” He said that he researched crying after that to try to figure out how to soothe S.H.
F. Outcome
{¶ 42} After hearing the evidence, the jury found Hughes guilty of the single count in the indictment. The trial court proceeded directly to sentencing. It sentenced Hughes to eight years in prison and ordered him to pay “the costs of this matter.”
{¶ 43} Hughes now appeals the trial court‘s decision, raising four assignments of error:
I. The trial court erred in allowing the victim to be present in the courtroom, thereby prejudicing Appellant‘s constitutional right to a fair trial.
II. The trial court erred in denying Appellant‘s Crim.R.29 [sic] motion.III. The jury‘s verdict was against the manifest weight of the evidence presented at trial.
IV. The trial court committed error to the prejudice of Appellant by imposing the costs of prosecution without consideration of Appellant‘s present or future ability to pay.
II. Law and Analysis
A. S.H.‘s Presence in the Courtroom was not Prejudicial
{¶ 44} In his first assignment of error, Hughes argues that S.H.‘s presence in the courtroom during her foster father‘s testimony was prejudicial and the trial court erred by permitting it. The state responds that S.H. had the right to be in the courtroom, and the trial court did not err by allowing her to be present.
{¶ 45} At the time of Hughes‘s trial, crime victims had a constitutional right to “reasonable and appropriate * * * access * * * and to a meaningful role in the criminal justice process.”
{¶ 46} “Although
{¶ 47} Here, Hughes contends that S.H.‘s presence in the courtroom was prejudicial because of S.H.‘s “distressed physical condition” and Dr. Schlievert‘s statement (made before the jury ever saw S.H.) that S.H. “was never coming back.” The state responds that Hughes‘s right to a fair trial was not prejudiced because S.H.‘s time in the courtroom was brief and the jury had already seen her physical condition—including the placement of her tracheostomy tube—in pictures that the state admitted into evidence.
{¶ 48} We agree with the state that S.H.‘s physical condition is an insufficient reason to exclude her from the courtroom. Hughes does not provide any case law to support this argument, nor were we able to find any.
{¶ 50} Even considering Dr. Schlievert‘s statement together with the jury‘s opportunity to see S.H. during her foster father‘s testimony does not lead us to the conclusion that Hughes did not receive a fair trial. Hughes does not point to anything in the record that shows that these factors affected the jury or tainted their verdict.
{¶ 51} Because there is no evidence that Hughes‘s right to a fair trial was prejudiced, we find that the trial court did not abuse its discretion in permitting S.H. to be in the courtroom. Accordingly, Hughes‘s first assignment of error is not well-taken.
B. The Jury Properly Convicted Hughes of Endangering Children
{¶ 52} In his second and third assignments of error, Hughes argues that the trial court erred in denying his
1. The Trial Court Properly Denied Hughes‘s Crim.R. 29 Motion
{¶ 53} A motion for acquittal under
{¶ 54} In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” (Citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 55} “An entry of acquittal is improper ‘if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.‘” State v. Race, 6th Dist. Sandusky No. S-16-018, 2017-Ohio-612, ¶ 13, quoting State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus.
{¶ 56} To prove that Hughes committed second-degree endangering children, the state was required to prove that Hughes abused a child under 18 years of age and that the abuse caused serious physical harm to the child.
{¶ 57} Hughes does not contest that S.H., a child under 18 years of age, suffered serious physical harm. Rather, he argues that the state failed to prove that he abused S.H. In response, the state points to evidence showing that (1) S.H. was healthy and
{¶ 58} This evidence is what the court had to consider when it ruled on Hughes‘s motion for a judgment of acquittal at the close of the state‘s case. Viewing the facts in the light most favorable to the prosecution, we find that there is sufficient evidence to support a finding that Hughes abused S.H. Accordingly, Hughes was not entitled to a judgment of acquittal at the close of the state‘s case, and the trial court did not err by denying Hughes‘s motion.
{¶ 59} When the trial court considered Hughes‘s
2. Hughes‘s Conviction is not Against the Manifest Weight of the Evidence
{¶ 60} When reviewing a claim that a verdict is against the manifest weight of the evidence, the appellate court must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether the jury clearly lost its way in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. We do not view the evidence in a light most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder‘s resolution of the conflicting testimony.‘” State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest weight grounds is reserved for “the exceptional case in which the evidence weighs heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Although under a manifest weight standard we consider the credibility of witnesses, we extend special deference to the jury‘s credibility determinations given that it is the jury that has the benefit of seeing the witnesses testify, observing their facial expressions and body language, hearing their voice inflections, and discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.
C. The Trial Court Properly Imposed Costs
{¶ 62} Hughes‘s fourth assignment of error challenges the trial court‘s imposition of the costs of prosecution. He contends that the trial court did not make a finding that he has or will have the ability to pay before it ordered him to pay costs. The state argues that the trial court properly imposed the costs of prosecution because such costs do not require a finding that the defendant has the ability to pay and did not impose any other costs, so Hughes‘s arguments regarding the other costs are moot. We agree with the state.
{¶ 63} Our standard of review on this issue is whether the imposition of costs and financial sanctions was contrary to law.
{¶ 64} Here, the only costs imposed by the trial court were the costs of prosecution. At sentencing, the court said only that “I‘m going to order you to pay the costs of this matter * * *” and stated in its judgment entry of conviction and sentence that Hughes is “ordered to pay the costs of this prosecution.” Under
III. Conclusion
{¶ 65} Based on the foregoing, the October 6, 2016 judgment of the Wood County Court of Common Pleas is affirmed. Hughes is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
Thomas J. Osowik, J.
James D. Jensen, J. CONCUR.
JUDGE
JUDGE
JUDGE