STATE OF OHIO, Appellee, - vs - JOHN LINCOLN POWERS, Appellant.
CASE NO. CA2023-09-100
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/22/2024
[Cite as State v. Powers, 2024-Ohio-1521.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2022-11-1540
Christopher Bazeley, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, John Lincoln Powers, appeals his conviction in the Butler County Court of Common Pleas after a jury found him guilty of one count of second-degree felony endangering children. For the reasons outlined below, we affirm Powers’ conviction.
{¶ 2} On December 12, 2022, the Butler County Grand Jury returned an indictment charging Powers with one count of endangering children in violation of
{¶ 3} On June 20, 2023, a seven-day jury trial began on the matter. Following the presentation of the evidence, which included several unobjected to photographs taken during Kiara‘s autopsy, the jury returned a verdict finding Powers guilty of endangering children, but not guilty of murder. Several weeks later, on August 10, 2023, the trial court held a sentencing hearing where it sentenced Powers on that endangering children charge to an indefinite term of eight to 12 years in prison, less 235 days of jail-time credit.1 The trial court also ordered Powers to pay $1,750 in restitution to Kiara‘s mother and notified Powers that he would be subject to a mandatory postrelease control term for up to three years, but not less than 18 months, upon his release from prison. The trial court issued its judgment of conviction entry on August 16, 2023. Powers filed a timely notice of appeal from the trial court‘s judgment of conviction entry on September 13, 2023.
{¶ 4} Powers’ appeal now properly before this court for decision, Powers has raised three assignments of error for review.
{¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING GRUESOME AUTOPSY PHOTOGRAPHS TO BE SHOWN TO THE JURY.
{¶ 7} In his first assignment of error, Powers argues the trial court committed plain error by admitting into evidence seven photographs taken during Kiara‘s autopsy. To support this claim, Powers argues the introduction of those photographs was unfairly prejudicial to him due to their “gruesome” nature in that they “graphically show her with her scalp pulled back, brain exposed, blood oozing from her head, and her inverted brain on a cutting board.” We disagree.
{¶ 8} Normally, this court “will not reverse a trial court‘s decision regarding the admission of evidence absent an abuse of discretion.” State v. Buell, 12th Dist. Warren No. CA2015-11-102, 2016-Ohio-5477, ¶ 32. Powers, however, concedes that he did not object during trial to the admission of any of the seven challenged photographs. By failing to object, Powers has forfeited all but plain error on appeal. State v. Shouse, 12th Dist. Brown No. CA2013-11-014, 2014-Ohio-4620, ¶ 20. Pursuant to
{¶ 9} “To demonstrate plain error, an appellant must show (1) that there was an error, (2) that the error was ‘plain,’ i.e., obvious, and (3) that the error affected the appellant‘s ‘substantial rights,” State v. Drain, 170 Ohio St.3d 107, 2022-Ohio-3698, ¶ 52, which the Ohio Supreme Court has “interpreted to mean that the error affected the outcome of the trial.” State v. Brinkman, 169 Ohio St.3d 127, 2022-Ohio-2550, ¶ 45. “The
{¶ 10} Given these principles, for Powers to prevail under a plain error standard of review, Powers must establish: (1) that the trial court erred by admitting the seven challenged photographs taken during Kiara‘s autopsy into evidence; (2) that the error was obvious; and (3) that there is a reasonable probability that the admission of those photographs affected the outcome of his trial. Yet, in his appellate brief, Powers merely argues that the trial court committed plain error by admitting those photographs into evidence because there was “no indication that the trial court made any effort to minimize the impact of the photographs or limit the jury‘s exposure,” and because there was “no need for the photographs because Powers did not dispute that Kiara died as a result of a serious head injury.”
{¶ 11} However, in cases where the defendant is being tried for murder, the Ohio Supreme Court has determined that “autopsy photographs depicting a victim‘s injuries ‘[are] probative of the manner of death and [the defendant‘s] specific intent to kill.‘” State v. Nicholson, Slip Opinion No. 2024-Ohio-604, ¶ 148, quoting State v. Shine, 8th Dist. Cuyahoga No. 105352, 2018-Ohio-1972, ¶ 87, citing State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, ¶ 93. The Ohio Supreme Court has also “upheld the admission of gruesome photographs when the photographs ‘supported the coroner‘s testimony and
{¶ 12} Alternatively, even if we were to find the trial court‘s decision to admit the seven challenged photographs into evidence was error, which we do not, there is nothing in the record to indicate the photographs’ admission affected the outcome of Powers’ trial. That is to say, there is nothing in the record to indicate that Powers was prejudiced by the photographs’ admission into evidence. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22 (noting that when reviewing for plain error, “even if the error is obvious, it must have affected substantial rights,” thus requiring “[t]he accused * * * to demonstrate a reasonable probability that the error resulted in prejudice“); see also State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 23 (rejecting the notion that there is any category of forfeited error that is not subject to the plain error rule‘s requirement of prejudicial effect on the outcome).
{¶ 13} Had that been the case, thereby inflaming the jurors’ passions against Powers, the jury certainly would have found Powers guilty of murdering Kiara rather than awarding Powers with an acquittal on that charge. As for the offense that Powers actually
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED POWERS THE OPPORTUNITY TO PRESENT FAVORABLE EVIDENCE IN REBUTTAL.
{¶ 16} In his second assignment of error, Powers argues the trial court erred by excluding from evidence certain text messages exchanged between himself and Kiara‘s mother used to refresh his recollection at trial. Powers also argues the trial court erred by preventing him from having his brother, James, testify to specific instances in which he had taken good care of James’ children in the past, thereby establishing himself as someone who was “capable of caring for children without harming them.” We disagree with both of Powers’ claims.
{¶ 17} To support his claims, Powers initially argues that the trial court‘s decision to exclude the above referenced evidence “prevented [him] from rebutting the evidence presented by the state” and “allowed a one-sided picture to be painted to the jury that he, out of frustration and incompetence, was the only one who could have possibly injured
{¶ 18} Pursuant to
If a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. The adverse party is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
The rule thus permits a witness “to review the prior statement to refresh [the witness‘] memory after [the witness’ memory] has been exhausted or nearly exhausted and then to testify on the basis of [his or her] present knowledge of the facts.” State v. Curtis, 12th Dist. Brown No. CA2009-01-004, 2009-Ohio-6740, ¶ 42.
{¶ 19} But, while it may be true that
{¶ 20} Next, as it relates to the trial court‘s decision to exclude the testimony of Powers’ brother, James, as to specific instances in which he had taken good care of James’ three children in the past, the trial court properly denied this testimony from being introduced into evidence in accordance with
{¶ 21} In this case, however, the fact that Powers may have taken care of James’ three children in the past without causing them physical harm does not go to any essential element of either endangering children or murder, the two offenses for which Powers was being tried. It was also not an essential element to any defense that Powers’ either raised, or could have raised, as part of his defense case-in-chief. Therefore, because the method for proving character by specific instances of conduct can only be done in cases where character or a trait of character of a person is an essential element of a charge, claim, or
{¶ 22} Assignment of Error No. 3:
{¶ 23} THE EVIDENCE PRESENTED AT TRIAL IS LEGALLY INSUFFICIENT TO SHOW THAT POWERS CAUSED THE INJURY THAT CAUSED KIARA‘S DEATH.
{¶ 24} In his third assignment of error, Powers argues his conviction for one count of second-degree felony endangering children in violation of
{¶ 25} “A claim challenging the sufficiency of the evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 165, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Such a challenge “requires a determination as to whether the state has met its burden of production at trial.” State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34. “The relevant inquiry is ‘whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.‘” State v. Roper, 12th Dist. Clermont No. CA2021-05-019, 2022-Ohio-244, ¶ 39, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. ““Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person‘s own affairs.”
{¶ 27} Powers argues his conviction for endangering children was not supported by sufficient evidence because there was no “direct evidence” that he ever acted recklessly to cause Kiara serious physical harm. However, although the record may not contain any direct evidence to establish Powers’ guilt, such as eyewitness testimony as to what caused Kiara‘s injuries, the record contains overwhelming circumstantial evidence to prove Powers’ guilt beyond a reasonable doubt. That is to say, the record contains overwhelming circumstantial evidence that it was Powers who acted recklessly in causing Kiara to suffer serious physical harm to her person sometime between April 4 and May 10, 2022 as alleged in the indictment. This includes the fact that Kiara suffered significant head trauma during the late evening or early morning hours of May 9 and 10, 2022 that resulted in Kiara‘s brain sustaining substantial, life-ending injuries, while she was in
{¶ 28} ““[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238 (1990). “A conviction based on purely circumstantial evidence is no less sound than a conviction based upon direct evidence.” State v. Apanovitch, 33 Ohio St.3d 19, 27 (1987); State v. Zimmerer, 12th Dist. Butler No. CA2019-10-176, 2020-Ohio-3921, ¶ 26 (“[a] conviction based on circumstantial evidence is no less sound than one based on direct evidence“). “‘It is not unusual that evidence of shaken baby syndrome [or abusive head injury] may be primarily circumstantial, especially where a child is in the sole custody of one adult at the time the injuries are sustained.” State v. Milby, 12th Dist. Warren No. CA2013-02-014, 2013-Ohio-4331, ¶ 39, quoting State v. Woodson, 8th Dist. Cuyahoga No. 85727, 2005-Ohio-5691, ¶ 53. Therefore, finding Powers’ conviction for endangering children in violation of
{¶ 29} Judgment affirmed.
PIPER and BYRNE, JJ., concur.