STATE OF OHIO v. URSULA OWENS
No. 107494
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 6, 2019
2019-Ohio-2221
Criminаl Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615579-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 6, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Anna M. Faraglia and Owen M. Patton, Assistant Prosecuting Attorneys, for appellee.
Timothy F. Sweeney, for appellant.
SEAN C. GALLAGHER, J.:
{¶ 1} Ursula Owens appeals her convictions for felony murder, with the predicate offense being felonious assault, and three counts of endangering children. Owens is serving an aggregate term of imprisonment of 25 years to life. The convictions are affirmed.
{¶ 3} In October 2016, the victim was admitted to the hospital for third-degree, deep tissue burns on her hand and wrist. Crump and Owens claim the child had been scalded with a hot water-soaked towel while washing her hands through a malfunctioning hot-water heater. It was claimed that the hot-water heater was not generally working, so the victim was unaware of the potential danger. Crump and Owens maintain that the victim somehow wrapped her wrist in the hot water-soaked towel causing the third-degree burns. Owens and Crump waited a full day before taking the child to the hospital. Although indicating that Owens and Crump‘s story was plausible, an investigation with children services was opened because the child
{¶ 4} On March 17, 2017, the child was again admitted to the hospital, but she died as a result of a traumatic brain injury the morning following her admission. Owens‘s biological son (“son“) was staying with Owens the night of March 16 through the following day. The son‘s friend was staying as well. On the morning of March 17, the boys woke to screaming and yelling coming from the victim‘s bedroom, which was directly across from the boys’ room. The son testified to being able to see into the victim‘s room, although his disclosure did not occur immediately. At trial, the son testified to seeing Crump “pop” the victim four or five times on her arm. The son visibly demonstrated in court what the word “pop” meant, but the description is not evident from the written record. According to the boys, Owens told Crump “that‘s not how you do it.” According to the son, Owens then punched the victim, picked her up, and threw her into the wall and then a dresser. Both boys testified to hearing two loud “thumps.” The son explained that the two thumps were the victim hitting the wall and the dresser. By that time, the son‘s friend went to the door of their room and saw the victim on the ground with Owens standing over the victim, yelling. Crump was standing behind Owens, with Crump telling Owens something to the effect of “that‘s enough.” The victim was not moving or making any noises. The son‘s friend asked the son if the victim had been “body slammed”
{¶ 5} Crump and Owens waited over 12 hours to take the victim to the hospital, after conducting an online sеarch about seizures in young children. The couple claimed that the victim was having seizures throughout the morning and the afternoon and they read online that the best course of treatment was to allow the victim to sleep. After the victim‘s pulse became noticeably weak, Crump finally called for emergency services late in the evening. When the victim was first admitted to the hospital, Crump told the physician that the victim had one short seizure in the morning and no medical history of seizures.
{¶ 6} The treating physician testified that the victim presentеd with a traumatic brain injury that in her experience could not be caused by a seizure. By the time the victim was admitted to the hospital, there were no viable treatment options — the injury and swelling in the brain tissue was too severe. The coroner determined that the death was caused by acute trauma, in part indicated by the existence of a severed blood vessel in the brain. Owens presented an expert in her defense, who claimed that the severed blood vessel was caused by the autopsy itself. The defense expert, Thomas William Young, M.D., claimed that the traumatic brain injury was caused by seizures the victim was experiencing the day she was admitted
{¶ 7} With respect to the March incident, Owens was convicted of felony murder under
{¶ 8} In the first assignment of error, Owens claims that error occurred in failing to sever the counts pertaining to the separate abuse. Owens claims that permitting the jury to consider the October and March allegations in one setting prejudiced her right to a fair trial.
{¶ 9}
{¶ 10} Owens focuses on whether the evidence of the October burning incident would have been admissible under
{¶ 11} In State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 300, the Ohio Supreme Court addressed a similar argument, albeit one made in the context of an ineffective assistance of counsel claim for failing to seek severance of joined offenses. In McKelton, the defendant was charged with felonious assault and domestic violence for a May 2008 incident that resulted in the victim‘s broken ankle. Id. Two other counts charged the defendant with felonious assault and domestic violence that resulted in the victim‘s death and occurred in July 2008. Id. Both incidents were separate, but were related in that they
{¶ 12} McKelton is instructive. In this case, the evidence demonstrating each instance of alleged abuse is demonstrated by separate and distinct evidence, and the evidence does not render the evidence of either offense more complex or confusing. Further, the jury acquitted Owens of the felonious assault charges associated with the October hot-water inсident. Owens was only convicted of child endangering. This demonstrates the jury was capable of separately deliberating on the charged offenses without imputing criminal liability based on Owens being found guilty of murder for her later conduct. There is no error in the court‘s refusal to sever the trial, and the first assignment of error is overruled.
{¶ 13} In the second assignment of error, Owens claims the child endangering convictions for the hot-water incident are based on insufficient evidence “and/or” against the weight of the evidence based on the same arguments presented in the first assigned error. According to Owens, the “burn doctor” conceded that Owens and Crump‘s story of how the victim was injured was “plausible” and children services was not able to substantiate the abuse claim.
{¶ 14} Although Owens correctly identifies evidence that arguably weighs in her favor, she does so at the expense of the remainder of the evidence that proved
{¶ 15} When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of the 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Generally, determinations of credibility and weight of the testimony are reserved for the trier of fact. State v. Lipkins, 2017-Ohio-4085, 92 N.E.3d 82, ¶ 36 (10th Dist.), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶ 16} Under
{¶ 17} In the third assignment of error, Owens claims that the evidencе of the victim‘s older or remote injuries as noted by the coroner and the treating physician through the signs of healing, was inadmissible under
{¶ 19} In the fourth assignment of error, Owens сlaims the trial court erred by not instructing the jury on reckless homicide as a lesser included offense to the felony murder count, charged under
{¶ 21} Felony murder under
{¶ 22} An offense is considered to be a lesser included offense of another if (1) the “lesser” offense carries a lesser penalty than the greater one; (2) as statutorily defined, the greater offense cannot ever be committed without the lesser offense also being committed; and (3) some element of the greater offense is not required to prove the commission of the lesser offense. (Emphasis added.) State v. Deem, 40 Ohio St.3d 205, 209, 533 N.E.2d 294 (1988). The test is stated in the conjunctive.
{¶ 23} Applying that test to felony murder under
{¶ 24} In contrast, in order to be convicted of reckless homicide, the death of the victim has to be recklessly caused by the offender.
{¶ 25} That level of culpability is not necessary to proving felony murder under
{¶ 26} And, although it is cоnceivable that a reckless homicide could factually be found within the commission of felony murder, the standard under Deem focuses on the statutory definitions, not the factual possibilities. Under Deem, as interpreted through the lens of Nolan, reckless homicide can no longer be considered a lesser included offense of felony murder under
{¶ 27} In the fifth assignment of error, Owens claims that
{¶ 29} In order to substantiate a claim of ineffective assistance of counsel, the appellant must show that (1) counsel‘s performance was deficient, and (2) the deficient performance prejudiced the defendant so as to deprive him of a fair trial — which is defined as a reasonable probability that but for counsel‘s errors, the result of the proceeding would have been different. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny of defense counsel‘s performance must be highly deferential. Strickland at 689. In Ohio, the defendant has the burden of demonstrating bоth prongs of the test. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223.
{¶ 30} We need not dwell on Owens‘s arguments. We have addressed all three issues on the merits and rejected each claim of reversible error. There is no error in the failure to sever the trials; the evidence of the victim‘s remote injuries was not improperly admitted under
{¶ 31} In the seventh assignment of error, Owens claims her convictions “on Counts 1-2, 3, 4, and 5-9, for reckless homicide, murder, felonious assault, and endangering a child, all as to March 17, are based on insufficient evidence and/or are against the manifest weight of the evidence.” According to Owens, there is no proof, much less that beyond a reasonable doubt, that Owens committed a felonious assault that proximately caused the victim‘s death because there were no visible injuries suggestive of an assault or abuse committed on the fateful day. Owens claims the son‘s testimony about seeing his mother body slam the victim into the wall and dressеr was fabricated because he delayed his disclosure.
{¶ 32} Even without the son‘s eyewitness testimony, it is undisputed that Owens was in the room with Crump when the son‘s friend heard the crying and two loud thumps. The son‘s friend testified to hearing Owens tell Crump “that‘s not how you do it” after Crump “popped” the victim in the arm a few times and before the two loud thumps were audible. He also heard Crump tell Owens, “that‘s enough” after he heard two loud “thumps” that he believed were caused by the victim being body slammed based on his observations. It is undisputed that the victim was unresponsive immediately аfter the thumps were heard. The treating physician testified to the severity of the traumatic brain injury that she explained to have been caused by acute trauma and not by a seizure. Coupled with the coroner‘s conclusion as to the cause of death, there is sufficient evidence of Owens having committed a
{¶ 33} And finally, in the eighth assignment of error, Owens claims that the child endangering counts, as they pertained to the same date, are allied offenses of similar import. The only multiplicity with respect to the child endangering counts pertains to the events in October, the day on which the victim‘s hand sustained third-degree, deep tissue burns from the hot-water incident. The offenses relating to the physical abuse of the victim in March, the assault that led to the victim‘s death, were merged into the felony murder count and did not result in final convictions. The only surviving conviction for child endangering from the March incident was based on the failure to provide the victim with medical care following the physical abuse. As a result, the conviction for violating
{¶ 34} Owens cites several cases in which the trial court merged child endangering offenses under
{¶ 35} Under
{¶ 36} In this case, Owens was convicted of child endangering under
{¶ 37} Under Ruff, the two violations are based on separate conduct — affirmative abuse and the neglect, an act of omission. See State v. Porosky, 8th Dist. Cuyahoga No. 94705, 2011-Ohio-330, ¶ 11 (the affirmative act of abuse is separate from the act of omission in failing to get the child medical care). Each results in a separate identifiable harm or was committed with separate conduct. Either way, Owens‘s eighth and final assignment of error is overruled.
{¶ 38} The convictions are affirmed.
It is ordered that appellee reсover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR