State v. MicomonacoState v. Micomonaco
Sams, Fisher, Packard & Schuessler, LLC, Theresa Nelson Ruck, 8738 Union Centre Boulevard, West Chester, Ohio 45069, for defendant-appellant
YOUNG, J.
{¶ 1} Defendant-appellant, Kevin Micomonaco, appeals his conviction and sentence in the Butler County Court of Common Pleas for child endangering and assault.
{¶ 2} In October 2010, appellant was indicted on two counts of child endangering in violation of
{¶ 3} On May 5, 2011, pursuant to
{¶ 4} The trial court subsequently conducted an in camera hearing to determine E.S.‘s competency. The only persons present in the courtroom were court personnel and both counsel. The trial court found that E.S. was competent to testify. The trial court noted how the child‘s demeanor and testimony during the in camera hearing in the absence of appellant were “like night and day.”
{¶ 5} The following day, the trial court found that E.S. was unavailable to testify in the presence of appellant due to her inability to communicate about the alleged offense “because of extreme fear, failure of memory or another similar reason.” As a result, the court allowed E.S. to testify via closed circuit television pursuant to
{¶ 6} As a result, the trial court found that E.S. “either refused to testify or claimed lack of memory.” The court subsequently found that based on their refusal to testify or lack of memory, the testimony of both E.S. and her sister H.I. regarding appellant‘s abuse was not reasonably obtainable under
{¶ 7} The four statements were used by the state at a jury trial. On May 26, 2011, the jury found appellant guilty as charged. He was subsequently sentenced to 14 years in prison and 180 days in jail to be served consecutively.
{¶ 8} Appellant appeals, raising three assignments of error.
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED WHEN IT ALLOWED PREJUDICIAL HEARSAY STATEMENTS MADE BY H.S. AND E.S. TO BE ADMITTED DURING TRIAL. [sic]
{¶ 11} Appellant argues that the trial court erred in allowing Mother and Grandmother to testify about statements E.S. and H.I. made to them regarding appellant‘s abuse. Specifically, appellant first argues that the hearsay statements were improperly admitted under
{¶ 12} The record shows that on July 9, 2010, about one and one-half months after appellant‘s abuse of the girls, Grandmother picked them up so that they could spend the weekend at her house. This was the first time Grandmother was alone with the girls. During the ride, after E.S. mentioned that she and H.I. were in the hospital, H.I. stated, “Kevin [appellant] hurt me. Hurt my butt.” E.S. told Grandmother that appellant had hurt her too, she tried to run upstairs to get away from appellant, but “when I got up there, my mommy wasn‘t there.”
{¶ 13} Mother testified that following the 2010 Memorial Day weekend, she did not see or have contact with her daughters again until mid-July 2010, when she went to see them at her sister‘s house. As soon as Mother arrived, E.S. asked her if appellant “was in a place where he couldn‘t hurt them any more.” Later, as Mother and E.S. were in the den, E.S. once again brought up the subject of appellant, stating, “Mommy, when you were gone taking Aunt Heather home, Kevin used his fingers and made me and [H.I.] bleed.” The record shows that the girls were left alone with appellant during Memorial Day weekend when Mother took Heather home at appellant‘s request. Mother was gone between 45 and 60 minutes
{¶ 14} We first address appellant‘s argument that the admission of the girls’ statements was improper under
{¶ 15} We initially note that decisions regarding the admissibility of evidence are within the sound discretion of the trial court and will not be reversed absent a showing of an abuse of discretion. State v. Cain, 12th Dist. No. CA2010-06-012, 2011-Ohio-3759, ¶ 14. The trial
{¶ 16}
{¶ 17} We note it is undisputed that the state‘s May 5, 2011 notice of intent complied with the notification requirement under
The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to
Evid.R. 803 and804 . The circumstances must establish that the child was particularly likely to be telling the truth when the statement was made and that the test of cross-examination would add little to the reliability of the statement. In making its determination of the reliability of the statement, the court shall consider all of the circumstances surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement, the mental state of the child, the child‘s motive or lack of motive to fabricate, the child‘s use of terminology unexpected of a childof similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement. In making this determination, the court shall not consider whether there is independent proof of the sexual act or act of physical violence.
{¶ 18} Applying these requirements to the case at bar, we find that the trial court carefully reviewed the totality of the circumstances surrounding the girls’ statements to Mother and Grandmother and appropriately determined that there were sufficient indicia of reliability and particularized guarantees of trustworthiness that made the statements as reliable as those admitted under
{¶ 19} The testimony from the
{¶ 20} The hearing testimony shows that the girls’ statements to Grandmother and E.S.‘s statements to Mother were clearly spontaneous and unsolicited as they were not the
{¶ 21} With regard to the girls’ mental state, the testimony shows that while riding in the car on their way to Grandmother‘s house, H.I. was feeling stressed because she and her sister were returning for the first time to the home where the abuse occurred. For the same reasons, E.S. was afraid to go to Grandmother‘s house. She was also afraid of telling her what had happened and was quiet and sucking her thumb again. The testimony shows that when E.S. told her mother that appellant made her and her sister bleed, E.S. was somewhat afraid to tell Mother and was stuttering. Notwithstanding the girls’ foregoing demeanor, the record does not contain any reference to a mental state which would undermine the veracity of the girls’ statements to Grandmother and Mother.
{¶ 22} The record is void of any reason that either E.S. or H.I. would fabricate their statements. There is no apparent motive for the girls to fabricate. With regard to the terminology used, both girls used terminology expected of a child of similar age.
{¶ 23} With regard to the means by which the statements were elicited, the testimony clearly shows that the statements were not elicited in any way. Neither E.S. nor H.I. was coached or coerced, and the statements were given without input from either Mother or Grandmother.
{¶ 24} Finally, while the girls did not make the statements until several weeks after the abuse occurred, the record clearly shows that following the abuse, the girls did not have the opportunity to see or talk to Mother for the first time, and to spend time alone with Grandmother for the first time until several weeks after the 2010 Memorial Day weekend. In other words, the girls made their statements at the first possible moment.
{¶ 25} The record clearly demonstrates that based on the totality of the circumstances
{¶ 26} We therefore find that the girls’ statements were properly admitted under
{¶ 27} We next address appellant‘s argument that the admission of the girls’ statements violated his rights under the Confrontation Clause.
{¶ 28} The Sixth Amendment to the United States Constitution gives a defendant in any criminal prosecution the right to confront witnesses against him. Pursuant to the Confrontation Clause, out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354 (2004). The Confrontation Clause applies only to testimonial statements. State v. Muttard, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 59.
{¶ 29} The United States Supreme Court has not defined what constitutes a “testimonial” statement, but it has given examples of “formulations” for “testimonial statements“: ex parte in-court testimony or its functional equivalent, extrajudicial statements contained in formalized testimonial materials (such as affidavits, depositions, prior testimony, or confessions), and statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Muttard at ¶ 60, citing Crawford at 51-52. In determining whether statements implicate Confrontation Clause analysis, courts are to view them objectively and should focus on the expectation of the declarant at the time of making the statement. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶ 22, 36.
{¶ 30} We find that the statements made by E.S. and H.I. to Mother and Grandmother are not testimonial in nature. The statements were not made in the context of in-court testimony or its equivalent. There is no suggestion that they were elicited as part of the police investigation or in a sworn statement with intention of preserving the statement for trial or that they were a pretext or façade for state action. Muttard, 2007-Ohio-5267 at ¶ 61. Nor were the girls’ statements to Mother and Grandmother made under circumstances indicating to E.S. and H.I. that the statements would be used in a trial. State v. Osborne, 3d Dist. No. 1-06-94, 2007-Ohio-5776, ¶ 18. To the contrary, the statements were made spontaneously, without any prompting or questioning from either Mother or Grandmother. See State v. Brock, 3rd Dist. No. 5-07-42, 2008-Ohio-3220. The fact that the information given by the girls to Mother and Grandmother was subsequently used by the state does not change the fact that the statements were not made for the state‘s use. Muttard at ¶ 62.
{¶ 31} We therefore find that the state‘s use of the girls’ statements at trial did not violate the Confrontation Clause. Having already found that the statements were properly admitted under
{¶ 32} Assignment of Error No. 2:
{¶ 33} THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICT AND/OR THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 34} Appellant argues that his child endangering conviction regarding E.S. was supported by insufficient evidence and was against the manifest weight of the evidence because the state failed to establish he caused the child serious physical harm. Specifically, appellant asserts that the state failed to establish E.S. suffered “‘acute pain’ of a duration that results in substantial suffering or prolonged and intractable pain.”
{¶ 35} Whether the evidence presented is legally sufficient to sustain a verdict is a
{¶ 36} In determining whether a conviction is contrary to the manifest weight of the evidence, an appellate court must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of witnesses to decide whether the jury clearly lost its way in resolving evidentiary conflicts and created such a manifest miscarriage of justice that the conviction must be reversed. Layne at ¶ 24. This discretionary power is to be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id. A determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency. State v. Rodriguez, 12th Dist. No. CA2008-07-162, 2009-Ohio-4460, ¶ 62.
{¶ 37}
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
{¶ 38} E.S. and her sister H.I. spent most of the 2010 Memorial Day weekend with Mother and appellant. Father picked them up late afternoon on Sunday. E.S. was very withdrawn, timid. Later that evening, upon discovering bruises on E.S.‘s legs and stomach (and numerous bruises on H.I.), Father filed a police report; the girls were subsequently taken to Children‘s Hospital. Father testified that at the hospital, while E.S. was not in as much pain as her sister (who had a laceration to her liver), she was withdrawn and did not want to be touched.
{¶ 39} Grandmother and the maternal aunt (Aunt) of E.S. both saw the child at the hospital on Monday afternoon. Aunt testified that E.S. was very scared, was “curled in a little ball” on the bed, and was “very bruised, very timid, just very hurt.” E.S. was also “just terrified of me, and she‘s never been terrified of me.” Grandmother testified that E.S. was “very backwards, fearful,” and “kind of curled up, like, little fetal position sucking her thumb,” which was not something she normally did.
{¶ 40} Photographs taken at the hospital show multiple bruises on E.S.‘s body, including on her face, ears, neck, legs, torso, and lower abdomen. E.S. also had abrasions in her vaginal area. Kathi Makoroff, M.D., an expert in pediatric child abuse who examined E.S. at the hospital, testified that given E.S.‘s bruises and genital injuries, she expected E.S.
{¶ 41} E.S.‘s teacher testified that before the 2010 Memorial Day weekend, E.S. was “the sweetest little thing ever.” By contrast, when she returned to school a few weeks later, E.S. was a “totally different child,” was violent with other children, pulling their hair, getting on top of them, and beating them up, and was running out of the classroom.
{¶ 42} Upon a thorough review of the record and considering the standard of “serious physical harm” as stated in
{¶ 43} Appellant‘s second assignment of error is overruled.
{¶ 44} Assignment of Error No. 3:
{¶ 45} THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES ON ALL THREE COUNTS AS WELL AS THE MAXIMUM SENTENCE FOR COUNT ONE OF THE INDICTMENT.
{¶ 46} Appellant was sentenced to 8 years in prison on Count One (child endangering regarding H.I.), 6 years in prison on Count Two (child endangering regarding E.S.), and 180 days in jail on Count Three (assault regarding M.T., the six-year-old boy); all three sentences
{¶ 47} The Ohio Supreme Court set forth a two-part test for appellate courts to use when reviewing an appellant‘s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4. First, an appellate court must review the sentence to “determine whether the sentence is clearly and convincingly contrary to law.” Id. Should the sentence satisfy the first prong, “the trial court‘s decision shall be reviewed under an abuse-of-discretion standard.” Id. An abuse of discretion “connotes more than an error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181.
{¶ 48} “A sentence is not clearly and convincingly contrary to law, where the trial court considers the purposes and principles of
{¶ 49}
{¶ 50} Upon review of the record, we first find that appellant‘s sentences were not contrary to law. The trial court stated it considered the purposes and principles of sentencing under
{¶ 51} We next find that the trial court did not abuse its discretion in sentencing appellant to the maximum prison term of eight years for his abuse of H.I., and in imposing consecutive sentences. The trial court considered the presentence investigative report which revealed appellant‘s criminal record both as a juvenile and an adult, and the fact appellant abused all three children while he was on community control for an attempted robbery and “had just been released from the Monday program a few months before where he had an intensive program designed to assist him with any drug issues, criminal thinking issues[.]”
{¶ 52} The trial court also considered the serious nature of the offenses, and the seriousness of the injuries suffered by the children at the hands of appellant. As noted earlier, E.S. had multiple bruises on several parts of her body and had abrasions in her vaginal area. Because of their injuries, both E.S. and her sister were hospitalized for two days. Photographs of the boy‘s buttocks revealed profuse bruising which was likely inflicted with great force.
{¶ 53} Testimony at trial revealed that H.I. had multiple bruises on her body, including to her face, legs, arms, and torso, a laceration to her liver (which was a very serious injury), lacerations and bruises on her anus, and small lacerations in her vaginal area. Both her hip bones were fractured. Dr. Makoroff testified that H.I. was in a lot of pain at the hospital;
{¶ 54} Lastly, we cannot say that appellant‘s aggregate sentence of 14 years in prison is inconsistent with sentences imposed for similar crimes committed by similar offenders. Appellant has failed to show that the trial court did not properly consider the statutory sentencing factors and guidelines found in
{¶ 55} In light of the foregoing, appellant‘s third assignment of error is overruled.
{¶ 56} Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.