STATE OF OHIO v. RANDY JONES, ET AL.
Nos. 103290 and 103302
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 22, 2016
[Cite as State v. Jones, 2016-Ohio-5923.]
BEFORE: Jones, A.J., Kilbane, J., and Boyle, J.
JUDGMENT: AFFIRMED IN PART; VACATED IN PART AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-13-578526-A and 13-578526-B
RELEASED AND JOURNALIZED: September 22, 2016
For Randy Jones
James J. Hofelich 614 W. Superior Avenue Suite 1310 Cleveland, Ohio 44113
For Carissa Jones
Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Christoher D. Schroeder Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:
I. Statement of the Case
Background
{2} The victim in this case was the Joneses’ 12-year-old daughter, T.J., who passed away on February 18, 2013. The Joneses, Florida natives, adopted T.J. in Florida in 2002 when she was approximately eight months old. They made the decision to adopt because Carissa has Lupus, an autoimmune disorder, which she was successfully managing with medication at the time she and Randy wished to start a family. Attempting to get pregnant would have required her to go off her medications, which she did not want to do. The family moved to Cleveland in 2006 for Randy‘s job.
{3} Shortly after they relocated in Cleveland, T.J. was diagnosed with autism, attention deficit hyperactivity disorder (“ADHD“), and mild developmental delays. Her parents initially gave her medications to treat the issues, but eventually discontinued doing so because they believed the medications were not working. T.J. also had difficulty communicating and understanding other people. Her parents took her to a psychologist for the communication issues, but stopped doing so in 2009.
{5} T.J. initially went to a traditional school, but her parents did not feel it was working for her and, therefore, after the second grade, Carissa, a professional-trained teacher, home schooled her. An area in the basement of the family‘s home was set up similar to a classroom and was where T.J. was schooled.
{6} Randy testified at trial. He told the jury that T.J. first starting getting blisters on her body when she was three or four years old; he and Carissa noticed them one day after T.J. had been in daycare. They never got a definitive answer as to why T.J. would get them, but as mentioned, Randy would treat them, and according to him, they would generally heal in ten to 14 days. Randy testified that his treatment of the blisters involved applying a topical antibiotic (Neosporin), hydrogen peroxide, rubbing alcohol, and a mixture of “home” remedies, including a salve containing garlic and cayenne pepper. He would daily clean the wounds, and because of T.J.‘s picking issues, he would also daily bandage them.
The Days Leading up to T.J.‘s Death
T.J.‘s Death
{8} T.J. died on a Monday, and the Sunday immediately preceding was the NBA‘s All-Star Game. Randy testified that it was a family tradition to watch the game and celebrate. According to Randy, on that Sunday, T.J. was getting back to her normal self, appeared to be clear of any cold symptoms, and joined in the festivities. Randy testified that, because of the day‘s festivities, he did not remove the bandages on T.J. or clean her wounds that day. When T.J. went to sleep that evening she appeared to be fine, but awoke in the early morning hours, complaining of a pain in her side. Randy thought she had probably overdone it during the festivities, so he gave her a heating pad and took her temperature, which did not indicate a fever. He laid down with her for a while, but left her room when Carissa suggested that T.J. would get more rest if he were not there.
{9} Randy went to sleep in another bed, but was awakened by Carissa screaming. He found Carissa in T.J.‘s room; T.J. was unresponsive. Randy performed CPR on
{10} T.J. was transported by ambulance to an emergency room where, among others, Dr. Jamal Alarafi, attended to her. She passed away shortly after arriving at the hospital. Dr. Alarafi testified that he smelled necrotic, or dead, flesh on T.J. Dr. Alarafi did not remove the bandages on T.J.‘s feet, but described them as “dirty,” observed pus draining from T.J.‘s feet, and observed an abscess on her leg. The doctor believed that it would have taken days and weeks of non-management of the wounds for them to develop to the point that they had, and that the smell would have been noticeable within one to two weeks. After viewing pictures of the wounds with the bandages removed, Dr. Alarafi admitted that they actually depicted wounds in various stages of healing.
{11} Over the defense‘s objections, Dr. Alarafi was permitted to testify that it was his opinion that T.J. was malnourished.2 He testified that her stomach was distended, and that she was very small and emaciated. The doctor admitted that he did
{12} In speaking with Randy and Carissa after T.J.‘s death, Dr. Alarafi found Carissa to be “kind of indifferent,” and found that “very strange.” According to the doctor, Randy told him that T.J. had had a cold and had recently complained of chest pain, they were treating her with over-the-counter medicine, and they did not believe in modern medicine. The statement regarding disbelief in modern medicine was not reflected in the doctor‘s notes, however, and Randy testified that he never said that and that he and Carissa did believe in modern medicine. Dr. Alarafi also initially testified that Randy told him that T.J. had not been immunized, but later admitted, after reviewing his notes, that Randy said he was not sure whether she had been immunized; the record indicates that T.J. had, in fact, been immunized.
{13} Dr. Alarafi opined that T.J. “probably” would have survived if a medical professional had been involved in her care. He testified that T.J.‘s condition “shocked” him, that he had been in medicine for over 20 years, and T.J.‘s situation was the “worst case I‘ve ever seen of anything like this.” Dr. Alarafi contacted the police to investigate T.J.‘s death.
{14} Officer Timothy Casto spoke with Randy at the hospital. Randy told him that he and Carissa had taken T.J. to a doctor a month earlier for a physical, but Randy was unable to tell the officer the doctor‘s name or office location.
Autopsy
{16} Dr. McCollum explained that T.J. had an abscess, or a swollen area filled with pus, in her left leg near her ankle. The abscess became infected with a bacterium called staphylococcus (a staph infection), the infection festered, traveled into her bloodstream, and caused her to develop severe pneumonia in her lungs.
{17} Dr. McCollum testified that the manner of death was designated as homicide based on the Joneses’ inaction: “[T.J.] was a child. A 12-year-old cannot be expected to seek medical attention. * * * They depend on their caregivers to provide that attention for them.”
{18} Dr. McCollum admitted that T.J. could have developed the infection without having had the foot ulcers, and that the infection could have developed within a matter of hours or days. But she also testified that wounds on T.J.‘s feet were to the point where T.J.‘s tissue was actually dying, and that would have taken days to weeks to progress to that point.
{19} Further, Dr. McCollum testified about injuries T.J. had on her neck, head, torso, right arms and legs, and left leg, and that T.J. had bedsores. Dr. McCollum also testified that T.J. was in the 10th percentile on the body mass index and below the 5th
{20} Neither defense counsel for Randy nor Carrisa questioned Dr. McCollum on cross-examination.
{21} Dr. Thomas Gilson, the chief medical examiner for Cuyahoga County, also testified as follows to elaborate on the homicide manner of death designation:
We felt that this was an instance of medical negligence as the result of a caregiver not providing adequate care to this child. A reasonable person would have sought treatment for this child. This child had gangrene on her feet. She had an abscess. These are conditions that would have been painful. * * * They would have been foul-smelling.
{22} According to Dr. Gilson, T.J. also would have been “coughing, bringing up phlegm,” and would have appeared “very sick.” Dr. Gilson admitted that a person can develop sepsis, as T.J. had, and die suddenly from that. But it was his opinion that that did not occur in this case. Specifically, he testified that the evidence from the autopsy findings indicated that T.J. did not die from “necrotizing fasciitis,” which occurs when bacteria “seed” then quickly proliferate in the fascia (tissue that surrounds the muscle), before causing sepsis. The doctor also testified that he did not observe any active bedsores on T.J.‘s body.
{23} Counsel for Randy did not cross-examine Dr. Gilson and Carissa‘s counsel cross-examined him only as to the autopsy procedure.
Investigation into T.J.‘s Death
{24} One of the officers who responded to the Joneses’ home as a result of the 911 call photographed the home. The photographs showed various over-the-counter
{25} In March 2013, Paul Sturman, an investigator for the Cuyahoga County Department of Children and Family Services (“CCDCFS“), interviewed the Joneses at their home. Sturman testified that the Joneses were cooperative and still in shock and grieving. He viewed the schooling area for T.J. and found it to be adequate and appropriate. A day-by-day calendar in the schooling area showed the date of “January 7.” Sturman testified about T.J.‘s history, the days leading up to her death, and the day of her death, the sum and substance of which was generally the same as has already been stated.
{26} Sturman also questioned the Joneses about the other injuries on T.J.‘s body. The Joneses told him that they attributed them to T.J.‘s self-injurious behavior. Randy also told Sturman that it was like “pulling teeth” to get T.J. to tell them how she got her injuries, and so they set up a camcorder to help them learn. Further, Randy also said that because of her high tolerance for pain, T.J. could get burned or blisters without calling out in pain. The Joneses also told Sturman that T.J. was a “hefty eater,” but just did not gain weight.
{27} Detective Darren Porter was assigned to investigate the case. He was called to the scene after the 911 call and arrived when T.J. was in the ambulance.
The Defense‘s Case
Randy‘s Case
{28} As mentioned, Randy testified at trial. In addition to himself, he presented seven other witnesses. One of the witnesses, Dr. Janice Ophoven, a pediatric forensic pathologist, testified as an expert witness.
{29} Dr. Ophoven testified that bacteria can cause a rapid and fatal infection in just a few hours, and that with an infection, no one can predict a time line. She opined that if the infection had been in T.J.‘s body for an extended period of time, it would have traveled into T.J.‘s deep tissue and bones, and there was no evidence of that. Dr. Ophoven found Randy‘s treatment of T.J.‘s blisters appropriate and testified that his home remedy would have likely reduced the amount of pain T.J. experienced. The doctor also did not find any evidence of abuse or malnutrition of T.J. She testified that anyone undergoing approximately 45 minutes of CPR, as T.J. had, would have a distended stomach.
{30} After her review of this case, which included the autopsy protocol, Dr. Ophoven agreed with the medical examiner‘s determination as to the cause of T.J.‘s
{31} Dr. Ophoven also testified that there is debate within the forensic pathology community over the use of the term “homicide.” She believed that defining homicide as “being death at the hands of another” is “oversimplified.” The doctor gave the example of backing over a child in a driveway; she opined that that would be an accident, rather than a homicide.
{32} Randy‘s remaining witnesses were character witnesses, who collectively testified that the Joneses had a loving and nurturing relationship with T.J., that they never noticed anything was amiss with the family, and that they were shocked by the charges brought against Randy and Carissa.
Carissa‘s Case
{33} Carissa did not testify, but presented one witness, her cousin. The cousin testified that Randy was the “emotional” one in the relationship, while Carissa was the
State‘s Rebuttal Witness
{34} The state presented one rebuttal witness, a parishioner from the Joneses’ church. According to the parishioner, the Jones family “secluded” themselves and T.J. appeared to be afraid of Carissa. The parishioner testified that she once noticed that T.J.‘s ankles appeared to be swollen, but she could not qualify when that was. She admitted, however, that T.J. never appeared to have any mobility issues and she never felt the need to contact CCDCFS.
Verdict and Sentence
{35} On the above evidence, the jury found Randy and Carissa each guilty of involuntary manslaughter, permitting child abuse, and two counts of endangering children. The jury found them both not guilty of one count of endangering children.3 The parties agreed that the counts all merged, and the state elected to proceed to sentencing under the involuntary manslaughter count. Neither Randy nor Carissa had a criminal history. The court sentenced each to a ten-year term. This appeal ensued.
II. Assignments of Error
Randy‘s Assignments of Error
- The trial court erred when it denied appellant‘s motion for acquittal under
Crim.R. 29 for involuntary manslaughter because the charge is not supported by sufficient evidence. - Appellant‘s convictions were against the manifest weight of the
evidence. - The trial court committed reversible error when permitting opinion testimony for a witness that was not qualified as an expert.
- The trial court erred by denying defense requests for jury instructions and for providing improper and incomplete instructions over objection.
- The ten-year prison sentence rendered by the trial court judge is contrary to law and not supported by the record.
Carissa‘s Assignments of Error
- The trial court erred when it denied appellant‘s motion for acquittal under
Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions. - Appellant‘s convictions are against the manifest weight of the evidence.
- Appellant was deprived of due process and a fair trial when the state introduced irrelevant, prejudicial, other acts evidence and hearsay in violation of
Evid.R. 401 ,402 ,403 ,404 ,602 ,701 and702 , and theFifth ,Sixth , andFourteenth Amendments to the United States Constitution . - The trial court erred by denying defense requests for jury instructions and for providing improper and incomplete instructions over objection.
- The ten-year prison term is contrary to law and is not supported by the record.
III. Law and Analysis
Sufficiency of the Evidence
{36} At the conclusion of the state‘s case and the conclusion of the defense‘s case, both Randy and Carissa made
{37} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). “‘Sufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” Thompkins at id.
{38} The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jenks at id.
{39} “A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person‘s 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
{40} This court has held, under the substantively same definition of reckless, that a parent may be found to be reckless for failing to seek medical treatment for an injured or ill child. State v. Reynolds, 8th Dist. Cuyahoga No. 65342, 1994 Ohio App. LEXIS 3610, 26 (Aug. 18, 1994); see also State v. Scott, 3d Dist. Hardin No. 6-07-17, 2008-Ohio-86; State v. Stewart, 5th Dist. Stark No. 2007-CA-00059, 2007-Ohio-6118; State v. Stewart, 5th Dist. Stark No. 2007-CA-00068, 2007-Ohio-6177; State v. Traster, 9th Dist. Summit No. 17548, 1996 Ohio App. LEXIS 4619 (Oct. 23, 1996); State v. Sandefur, 9th Dist. Summit No. 15787, 1993 Ohio App. LEXIS 3983 (Aug. 11, 1993).
{41} Upon review, we find that the state presented sufficient evidence as to the Joneses’ recklessness. The record demonstrates that since 2009 they did not have T.J. under any medical care, including during the time of her illness immediately preceding her death. In finding the evidence sufficient to support the convictions, we note that it was not necessary for the state to prove that Randy and Carissa knew specifically what medical condition T.J. had or that it would lead to her death. Rather, under
{42} Dr. McCollum testified that the gangrenous wounds on T.J.‘s feet had developed for days or weeks and were to the point where the tissue was dying. Dr. Alarafi also testified that the wounds had to have been present for a period of time to have
{43} Further, at the hospital Randy told the police that he and Carissa had taken T.J. to the doctor one month prior to her death, but admitted during his testimony that T.J. had not been to a doctor in the approximately four years before her death. A reasonable inference could be made from that testimony that the Joneses believed that they should have sought medical treatment for their daughter.
{44} Another reasonable inference could have been made, based on the evidence that T.J. had bedsores, food was found her in her room, and the day-by-day calendar in the schooling area had the date “January 7,” that T.J. had become so ill that she was bedridden.
{45} In light of the above, the state presented sufficient evidence of recklessness.
{46} We likewise find that the state presented sufficient evidence that the Jones‘s inaction was the proximate cause of T.J.‘s death.
{47} Criminal conduct constitutes the “proximate cause” of a death, when the conduct “(1) caused the result, in that but for the conduct, the result would not have occurred, and (2) the result [was] foreseeable.” State v. Gibson, 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, ¶ 36, citing State v. Muntaser, 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809, ¶ 38. “Foreseeability is determined from the perspective of what the defendant knew or should have known, when viewed in light of ordinary experience.” Muntaser at id. Results are foreseeable when the consequences of an action are “natural and logical,” meaning “that [they are] within the scope of the risk created by the defendant.” Id., citing State v. Losey, 23 Ohio App.3d 93, 491 N.E.2d 379 (10th Dist.1985).
{48} The Joneses cite Dr. McCollum‘s admission that a staph infection can happen even without the type of injuries that T.J. had to her feet as ground that the state failed to prove proximate cause. Although Dr. McCollum did testify that an infection “can happen independently as well,” the state presented sufficient evidence that that was not the case here, and that was not Dr. McCollum‘s opinion. The state presented testimony that the staph infection developed in T.J.‘s left ankle and caused bacteria to enter her bloodstream, which traveled to her lungs, caused severe pneumonia, and killed her. Thus, the state presented evidence that, if believed, proved that without the abscess in T.J.‘s ankle, there would have been no staph infection and no pneumonia.
{49} As to foreseability, the state also presented sufficient evidence that, if believed, would prove that the consequences of the Jones‘s inaction were “natural and logical.” As mentioned, although a person can have a staph infection without visible injuries, the state presented evidence that that was not the case with T.J. Specifically, the state presented evidence about the foul odor that was coming from T.J.‘s feet, as well
{50} In light of the above, the evidence was sufficient to support the convictions and the Joneses’ first assignments of error are overruled.
Manifest Weight of the Evidence
{51} For their second assignments of error, the Joneses contend that the convictions are against the weight of the evidence. We disagree.
{52} Weight of the evidence addresses the evidence‘s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 387-388, 2007-Ohio-2202, 865 N.E.2d 1264. “In other words, a reviewing court asks whose evidence is more persuasive the state‘s or the defendant‘s? Even though there may be sufficient evidence to support a conviction, a reviewing court can still re-weigh the evidence and reverse a lower court‘s holdings.” Id. at 387. However, an appellate court may not merely substitute its view for that of the jury, but must find that “the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d 380 at 387, 678 N.E.2d 541. Accordingly, reversal on manifest weight grounds is reserved for the “exceptional case in which the evidence weighs heavily against the conviction.” Id.
{53} Upon review, we will not usurp the jury‘s findings in this case. For the reasons already discussed in analyzing the first assignments of error, the jury did not
{54} For the reasons stated above, the second assignments of error are overruled.
Evidentiary Rulings
{55} In their third assignments of error, Randy and Carissa challenge various testimony and evidence allowed by the trial court. We review a trial court‘s decision regarding the admission of evidence for an abuse of discretion. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). Thus, our inquiry is limited to determining whether the trial court acted unreasonably, arbitrarily or unconscionably in deciding the evidentiary issues. State v. Barnes, 94 Ohio St.3d 21, 23, 2002-Ohio-68, 759 N.E.2d 1240.
Dr. Alarafi‘s Opinion Testimony
{¶56} Randy and Carissa both challenge the admission of Dr. Alarafi‘s opinion testimony on various aspects of T.J.‘s condition, contending that it was improper because he did not file an expert report and, therefore, was not an expert witness. Specifically, Dr. Alarafi opined about how long it would have taken for T.J.‘s wounds to progress to the point they had and about her general care. He also opined that T.J. was malnourished.
{¶57}
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
{¶58} The Ohio Supreme Court has addressed the issue of lay witnesses testifying on issues generally reserved for expert testimony, stating the following:
It is consistent with [the] emerging view of
Evid.R. 701 that courts have permitted lay witnesses to express their opinions in areas in which it would ordinarily be expected that an expert must be qualified underEvid.R. 702 . * * * Although these cases are of a technical nature in that they allow lay opinion testimony on a subject outside the realm of common knowledge, they still fall within the ambit of the rule‘s requirement that a lay witness‘s opinion be rationally based on firsthand observations and helpful in determining a fact in issue. These cases are not based on specialized knowledge within the scope ofEvid.R. 702 , but rather are based upon a layperson‘s personal knowledge and experience.
State v. McKee, 91 Ohio St.3d 292, 296-297, 2001-Ohio-41, 744 N.E.2d 737; see also State v. Wilkinson, 8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 52-53; State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 74; State v. Cooper, 8th Dist. Cuyahoga No. 86437, 2006-Ohio-817, ¶ 18.
{¶59} Further, under Loc.R. 21.1(C), trial courts have the discretion to determine whether a treating physician‘s hospital or office records satisfy the requirements of a written report. This court recently addressed this issue, and found that a treating physician‘s testimony regarding his or her perceptions and observations about a patient is “‘consistent with [the] emerging view under
{¶60} Upon review, we find that admission of Dr. Alarafi‘s opinion testimony was not an abuse of discretion. Dr. Alarafi testified that he had been an emergency room physician for approximately 20 years, and that this was the “worst case” of anything of this nature that he had seen. He was alarmed by what he saw and, therefore, reported it to the police. His testimony about what he found alarming was helpful to explain to the jury why he would report the case to the police. The testimony was further helpful to aid the jury in understanding T.J.‘s condition and how sick she was. “It is well established that treating physicians can be called at trial to testify as viewers of their patients’ physical condition * * *.” State v. Brofford, 3d Dist. Union No. 14-12-08, 2013-Ohio-3781, ¶ 35, citing Williams v. Reynolds Rd. Surgical Ctr., 6th Dist. Lucas No. L-02-1144, 2004-Ohio-1645, ¶ 6.
{¶61} In light of the above, the trial court did not abuse its discretion in allowing Dr. Alarafi‘s opinion testimony. Randy‘s third assignment of error, which solely raises the issue of Dr. Alarafi‘s testimony, is overruled, and the portion of Carissa‘s third assignment of error relative to this issue is overruled.
Medical Examiner‘s Manner of Death Testimony
{¶62} Carissa also challenges in her third assignment of error Drs. McCollum‘s and Gilson‘s testimony that T.J.‘s manner of death was homicide. Carissa contends that the testimony was improper because it addressed the “ultimate issue” in the case and “inevitably led to jury confusion and impacted the verdicts in this case.” We disagree.
{¶63} The Ohio Rules of Evidence provide that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.”
{¶64}
The cause of death and the manner and mode in which the death occurred, as delivered by the coroner and incorporated in the coroner‘s verdict * * * shall be the legally accepted manner and mode in which such death occurred, and the legally accepted cause of death, unless the court of
common pleas of the county in which the death occurred, after a hearing, directs the coroner to change his decision as to such cause and manner and mode of death.
{¶65} In Vargo v. Travelers Ins. Co., 34 Ohio St.3d 25, 516 N.E.2d 226 (1987), the Supreme Court of Ohio held that the “coroner‘s factual determinations concerning the manner, mode and cause of the decedent‘s death, as expressed in the coroner‘s report and death certificate, create a nonbinding rebuttable presumption concerning such facts in the absence of competent, credible evidence to the contrary.” Id. at paragraph one of the syllabus. Thus, it is recognized that “it is clearly within the expertise of the coroner to give an opinion on whether a death is a homicide.” State v. Simpson, 11th Dist. Lake No. 93-L-014, 1994 Ohio App. LEXIS 4472, * 21 (Sept. 30, 1994), citing State v. Harrison, 1st Dist. Hamilton No. C-920422, 1993 Ohio App. LEXIS 2446 (May 12, 1993).
{¶66} In light of the above, Drs. McCollum and Gilson‘s testimony was proper. Moreover, the trial court gave the jury a limiting instruction as to their testimony, instructing the jury that their use of the term “homicide” was different than the legal term used in the jury instructions.
{¶67} Carissa‘s third assignment of error, as it relates to Drs. McCollum and Gilson‘s testimony is, therefore, overruled.
Testimony about other Injuries T.J. had
{¶68} Carissa‘s third assignment of error further challenges testimony about, and photographs depicting, other injuries (i.e., injuries other than on her feet and leg) T.J. had.
{¶69} Count 3 of the indictment charged endangering children by “recklessly abusing” T.J. Thus, the testimony and evidence that Carissa now challenges was relevant to that count. After review, we find that the state did not belabor the point about the other injuries, and that the testimony and photographs about them were properly admitted. Therefore, Carissa‘s third assignment of error, as it relates to testimony and evidence about T.J.‘s other injuries, is overruled.
Carissa‘s Medical Care in the Days Leading up to T.J.‘s Death
{¶70} Prior to trial, Carissa filed a motion in limine, seeking to bar the state from putting forth evidence that Carissa sought medical treatment for herself in February 2013, when both she and T.J. had colds. The trial court denied Carissa‘s request to limit the evidence and further denied her request to provide a limiting instruction regarding the evidence. Carissa claims that allowing the evidence was unduly prejudicial.
{¶71}
(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.
(B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.
{¶73} Furthermore, relevant evidence that is challenged as having probative value that is substantially outweighed by its prejudicial effects should be viewed in a light most favorable to the proponent of the evidence, maximizing its probative value and minimizing any prejudicial effect to the party opposing its admission. State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984).
{¶74} Evidence that Carissa treated with a doctor was relevant in this case. It showed that Randy and Carissa knew that when a person is sick, medical care is necessary. It also explained the antibiotic prescribed to Carissa that was found in T.J.‘s room. Further, viewing the evidence most favorably to the state as we are required to do, we find that the probative value of the evidence was not outweighed by its prejudicial effect.
{¶75} In light of the above, Carissa‘s final contention in her third assignment of
Jury Instructions
{¶76} In their fourth assignments of error, Randy and Carissa contend that the trial court erred in its instructions to the jury. Specifically, they both contend that the trial court erred in denying their request for an expanded definition of “recklessness.” They also both contend that the trial court erred in failing to give the “multiple defendants” instruction.
{¶77} Carissa also challenges the trial court‘s (1) denial of her request for a limiting instruction regarding the medical treatment she obtained for herself in the days leading up to T.J.‘s death; and (2) instruction that the medical definition of homicide differed from the legal definition.
{¶78} In general, the giving of jury instructions is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Taylor, 5th Dist. Holmes No. 12CA18, 2013-Ohio-5751, ¶ 34, citing State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3d Dist.1993). Thus, in reviewing a trial court‘s jury instruction, an appellate court “determines whether the trial court abused its discretion in refusing to give a requested instruction under the facts and circumstances of the case.” State v. Brunner, 10th Dist. Franklin No. 15AP-97, 2015-Ohio-4281, ¶ 31. Further, we review jury instructions “as a whole.” Taylor at id.
Recklessness Instruction
{¶79} Randy and Carissa sought to have the trial court instruct the jury on an
{¶80} A trial court “must act with extreme caution when giving an instruction that is outside the standard Ohio Jury Instructions to ensure that it is a correct statement of the applicable law. This is especially true when the trial court elects to use language from an appellate court opinion, which was not intended to be used as a jury instruction.” State v. Jeffers, 11th Dist. Lake No. 2007-L-011, 2001-Ohio-1894, ¶ 49.
{¶81} The OJI instruction the trial court provided read as follows: “A person acts recklessly when, with heedless indifference to the consequences, he or she perversely disregards a known risk that his or her conduct is likely to cause a certain result or is likely to be of a certain nature.” Ohio Jury Instructions Section 417.17. The court also gave the OJI instruction of “substantial risk,” which defines it as a “strong possibility as contrasted with a remote or even a significant possibility that a certain result may occur or that certain circumstances may exist.” Id.
{¶82} Upon review, the trial court did not abuse its discretion by denying the Joneses’ request for an expanded instruction on recklessness. The expanded instruction
{¶83} Additionally, the Joneses’ contention that the trial court misstated the definition of recklessness by referring to the dictionary is without merit. The statement made by the court was as follows:
Now, I‘ve outlined the essential elements of the offenses charged in this indictment. I could not include all of the law in any single part of these instructions. This is important. You must consider each part in light and in harmony with the entirety of the instruction. It‘s not to picked apart word by word, ladies and gentlemen. There‘s no magic here, okay? Each of the definitions flow, the instructions flow, in light and harmony with each other, all right? And I‘ve said this before to juries. There‘s no magic to the language. It‘s common English, Webster‘s dictionary language here, okay?
{¶84} This statement by the court was made after it had instructed the jury on recklessness as set forth in OJI. No other definition of recklessness was provided to the jury. Therefore, viewing the instructions as a whole as we are required to do, we find no abuse of discretion in the court‘s statement. Thus, the Jones‘s fourth assignments of error are overruled as it pertains to the “recklessly” instruction given by the court.
Limiting Instruction regarding Carissa‘s Medical Treatment
{¶85} We next consider Carissa‘s contention that the trial court should have provided the jury with a limiting instruction regarding evidence of the medical treatment she obtained for herself. Carissa contends that the evidence was “other acts” evidence
{¶86}
{¶87}
{¶88} The endangering children counts alleged that the Joneses “recklessly create[d] a substantial risk to the health or safety of” T.J.; “recklessly abuse[d]” T.J.; and
{¶89} In light of the above, the court did not abuse its discretion in not giving an “other acts” limiting instruction as to the evidence of Carissa‘s medical treatment. The state did not introduce the evidence as a permissible exception to the general ban on other acts evidence under
Definition of Homicide: Legal Definition v. Medical Definition
{¶90} As mentioned, during his testimony Dr. Gilson stated that the homicide designation as to the manner of T.J.‘s death was based on the Jones‘s “negligence for not seeking medical care.” Carissa contends that that testimony confused the jury and the court did not properly instruct the jury on the issue. But, as agreed to by all the parties, the court instructed the jury as follows:
You have heard testimony from experts in the field of forensic pathology. These witnesses have testified as to the meaning of the term homicide within the field of forensic pathology. This testimony is not to be considered for any other purpose than the use of the term homicide within
that field and should not be confused with the instructions of law regarding any legal term as used in these instructions.
{¶91} “A jury is presumed to follow the instructions, including curative instructions, given it by a trial judge.” State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). There was no abuse of discretion in the instruction given by the trial court; the instruction cured any potential confusion there may have been.
Lack of Multiple Defendants Instruction
{¶92} The last challenge relative to the jury instructions relates to the lack of a “multiple defendants” instruction. The Joneses never requested the instruction and, therefore, have waived all but plain error. State v. Hartman, 93 Ohio St.3d 274, 289, 754 N.E.2d 1150 (2001). Under
{¶93} In a case involving two or more defendants, the court must take care that evidence against one defendant is not misinterpreted by the jury and used as “spill-over” evidence or “guilt transference” that serves as the basis for convicting another defendant not connected to the evidence. United States v. Gallo, 763 F.2d 1504, 1526 (6th Cir.1985). The existence of a “spill-over” or “guilt transference” effect turns in part on whether the numbers of theories and defendants involved were too great for the jury to give each defendant the separate and individual consideration of the evidence against him
{¶94} The Joneses do not set forth any particulars that would demonstrate that the lack of a “multiple defendants” instruction affected their substantial rights. The evidence against Carissa and Randy was, for all intents and purposes, the same. Their positions were not antagonistic to each other, but, rather, they pursued a joint defense.
{¶95} Moreover, at both the start and end of trial, the court informed the jury that Randy and Carissa were separate defendants. At the start, the court told the jury, “[w]hen considering the evidence in this case, at the end of this trial you will deliberate separately for each defendant, all right? So keep that in mind. The evidence that the State has regarding Randy Jones may be different in some sort than the evidence the State has against Carissa Jones, and vice versa, okay?”
{¶96} At the conclusion of trial, the court told the jury that Randy and Carissa are “separately charged. So this one says State of Ohio v. Carissa Jones. This one says State of Ohio v. Randy Jones. That‘s what I mean by the defendants are separate and the verdicts are separate for each of them, okay?”
{¶97} In light of the above, there was no plain error in the lack of a “multiple defendants” jury instruction.
Sentences
{¶99} In their final assignments of error, Randy and Carissa challenge their ten-year prison sentences.
{¶100} When reviewing felony sentences, this court may increase, reduce, or modify a sentence, or it may vacate and remand the matter for resentencing, only if we clearly and convincingly find that either the record does not support the sentencing court‘s statutory findings or the sentence is contrary to law.
{¶101} In State v. Marcum, Slip Opinion No. 2016-Ohio-1002, the Ohio Supreme Court held that when a sentence is imposed solely after consideration of the factors in
{¶102} “Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere
{¶103}
{¶104}
{¶105} The sentences the Joneses received were within the statutory guidelines. Further, although the court did not make specific findings as to the factors set forth under
{¶106} Nonetheless, although the trial court included language in the sentencing judgment entry that it considered the
{¶107} Prior to sentencing, the trial court received numerous letters in support of the Joneses, as well as a petition requesting that the Joneses be sentenced to community control sanctions. At the sentencing hearing, the trial court engaged in extensive colloquy with Randy, who continued to maintain that he and Carissa were unaware of how sick T.J. was and that they believed she was getting better with their treatment. Carissa‘s uncle spoke on the Joneses’ behalf.
{¶108} A tragedy occurred in this case: T.J. died. On this record, however, we are unable to determine whether imprisoning her parents for ten years advances the two primary purposes of felony sentencing, that is, to protect the public from the Joneses and to punish them using minimum sanctions. We therefore vacate the sentences and remand for a resentencing hearing, at which we direct the court to make specific findings under
{¶109} For example, under the “more serious” factors in
{¶110} Further, the Ohio Supreme Court has held that remorse can be a mitigating factor.7 Thus, we direct the trial court to make a determination as to Randy and Carissa‘s remorse for their actions. We also direct the court to make an express determination regarding the mitigating evidence they presented that they were of good character, were respected members of the community, and were loving and nurturing parents to T.J.
{¶111} We further direct the court to make a finding as to whether any of the “likely to commit future crimes” factors under
{¶112} We recognize the discretion afforded to trial courts to impose sentences that are within the authorized statutory range, and that trial courts are not required to make findings or give its reasons for imposing more than the minimum or maximum sentences. Still, trial courts are “not endowed with unreviewable discretion to sentence within the statutory range.” State v. Morefield, 2d Dist. Clark No. 2015-CA-4, 2015-Ohio-4713, ¶ 7. We need a more developed record to determine whether, by clear and convincing evidence, the record does not support the sentences as the Joneses contend.
{¶113} Thus, pursuant to the authority afforded us under
{¶114} Judgments affirmed in part and reversed in part. The convictions are affirmed; the sentences are vacated and the case is remanded to the trial court for resentencing.
{¶115} It is ordered that appellants and appellee split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
MARY J. BOYLE, J., CONCUR