Opinion
No. 108435
11-12-2020
STATE OF OHIO, Plaintiff-Appellee, v. SIERRA DAY, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anna M. Faraglia, Aqueelah Jordan, and Sean Kilbane, Assistant Prosecuting Attorneys, for appellee. Myriam Miranda, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626899-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anna M. Faraglia, Aqueelah Jordan, and Sean Kilbane, Assistant Prosecuting Attorneys, for appellee. Myriam Miranda, for appellant. FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant Sierra Day ("appellant") brings the instant appeal challenging her convictions for aggravated murder, murder, felonious assault, endangering children, permitting child abuse, and tampering with evidence. Appellant argues that she was denied her constitutional right to a fair trial and the effective assistance of counsel and that her convictions were against the manifest weight of the evidence. After a thorough review of the record and law, we affirm.
I. Factual and Procedural History
{¶ 2} This is an incredibly tragic case arising from the death of a four-year-old girl, A.D., the daughter of appellant.
{¶ 3} On March 11, 2018, paramedics from the city of Euclid responded to a 911 call regarding an unresponsive child. Paramedics arrived at the residence of appellant in the Cultural Gardens apartment complex. A.D. was found lying underneath an air conditioning unit with a black eye and a laceration above her eye, and bruises, cuts, and burns on her body. The paramedics on the scene testified that she appeared malnourished and emaciated to the point that she was just "skin and bones." The paramedics performed CPR, but it was apparent that A.D. was lifeless, cold, and stiff.
{¶ 4} A.D. was transported to the hospital, where she was subsequently pronounced dead. While still in the lobby of appellant's apartment complex, an officer spoke with appellant and her significant other, Deonte Lewis ("Lewis"). Appellant and Lewis had been dating since July 2017, and there was evidence presented at trial that Lewis resided at the apartment with appellant and A.D. Appellant told the officer that the family had gone out to eat at Red Lobster several days prior and since that time, A.D. had not been acting the same and was weak, sick, and not eating. Appellant stated that she had called a 24-hour nurses' hotline and was advised to continue giving A.D. liquids. Appellant told the officer that that morning, she had placed A.D. on the toilet and walked out of the bathroom. She then heard a loud thud and found A.D. unresponsive on the floor. When asked by the officer to repeat the story, appellant added that A.D. was hot, so she had given her a bath and turned on the air conditioner.
{¶ 5} Detective Jennifer Kroczak was the lead detective on the case. She observed the photos taken of A.D. at the hospital and described her as being "extremely emaciated" and having "obvious signs of trauma and abuse," including a deep dark bruise over A.D.'s eye, which was swollen shut, a laceration above the eye, bruises on her body, and what appeared to be burns on her lower leg. As part of her investigation, Detective Kroczak listened to the 911 call from the day A.D. was found unresponsive. She testified that the callers, appellant and Lewis, did not sound panicked or excited, which was out of the ordinary for such a situation involving a young child.
{¶ 6} Detective Kroczak investigated appellant's account that A.D. had become sick after the family had dined at Red Lobster but was unable to verify the story. She also reviewed appellant's phone records and confirmed that appellant had never called a 24-hour nurses' hotline that she stated she did after A.D. became ill. Detective Kroczak reviewed videos from appellant's phone, one of which was from the day before A.D. died, where appellant and Lewis were engaging in sexual activity.
{¶ 7} A.D. suffered a number of injuries in her short life. At trial, the state presented testimony of workers from A.D.'s day care, Harbor Crest Day Care, who noticed these injuries. When asked by the day care workers about the bruises or marks, A.D. responded, "Mommy hit me" or "Mommy did it[,] but Mommy said I fell."
{¶ 8} The state further presented incident reports from A.D.'s day care documenting when A.D. came to the day care with injuries, such as a bump on her head, a dark red mark on her face, and a dark-colored bruise on her face under her eye. When asked about the mark and bruise on her face, A.D. said each time that her mother had hit her.
{¶ 9} In February 2017, Cuyahoga County Department of Children and Family Services ("CCDCFS") received an emergency referral regarding A.D. A social worker went to the day care, and met with A.D. The social worker noticed bruising under A.D.'s left eye. She later spoke with appellant, who stated that A.D. had run into the side of a table at her grandfather's home. When asked about the other injuries the day care had noticed, appellant stated that A.D.'s grandfather, aunt, cousins, and/or the day care were to blame.
{¶ 10} On March 14, 2017, A.D. arrived at the day care with a cut on her lip, which was noted by one of the workers at the day care. On May 15, 2017, A.D. came with a scrape on her chin. A worker at the day care filled out a report of the injury and asked appellant what had happened. Appellant stated that A.D. fell in the park; however, when A.D. was asked about the injury, she said that her mother had pushed her.
{¶ 11} On May 18, 2017, A.D. told a day care worker that her head hurt. The same day care worker who authored the May 15th report observed blood blisters on A.D.'s scalp and blood on the inside of her ear. A.D. again stated that her mother had hit her. The police were called to the day care, and A.D. was taken to the hospital. The officer who responded to the day care spoke with the owner, who provided him with copies of fourteen incident reports from the day care documenting the injuries observed on A.D. over the past two years. Appellant stated that A.D.'s injuries had occurred when she was with her great-grandfather the day prior but later said that they must have happened at the day care. Appellant subsequently admitted that the man was not really A.D.'s great-grandfather, but instead was a friend's father. She could not provide any contact information for this individual.
{¶ 12} The officer went to the hospital to see A.D. and observed dried blood inside her ear, a scrape on her nose, and an abrasion on the top of her head. When he spoke to appellant at the hospital, appellant claimed that the injuries had occurred at the day care. She further stated that A.D. had told her that the day care workers hit her, but she did not believe her because she claimed that A.D. had lied in the past.
{¶ 13} A social worker from CCDCFS that came to the hospital also noticed A.D.'s injuries. When asked how she got hurt, A.D. told the social worker that "Mommy did it." Appellant told the social worker that A.D. had not had any marks that morning and that she did not know where they came from. She also said that A.D. could have gotten hurt the night before while playing with other kids, but she could not provide the names of any individuals.
{¶ 14} The physician's assistant and nurse who treated A.D. also observed the abrasion on A.D.'s nose, a scrape on her scalp, and blood around one of her ears. The nurse who treated A.D. testified that A.D. reported to him, the physician's assistant, and the social worker that "Mommy hit me." The physician's assistant testified that while the combination of these injuries was normal for a three-year-old, she decided to call CCDCFS after hearing A.D.'s statement.
{¶ 15} Following this incident, appellant brought A.D. to Harbor Crest Day Care one last time before removing her without explanation. Appellant began bringing A.D. to the day care where appellant was employed, Get Ready, Set, Grow.
{¶ 16} In September 2017, A.D. went to visit her father, M.G., who noticed bruises on her chest and lower back. A.D. told him that "Mommy pushed me up the stairs," but then shrugged her shoulders when asked who did it. M.G. also noticed a rotting tooth in A.D.'s mouth. He took photographs of the injuries and called Cleveland Police to file a report. When M.G. asked appellant about the bruises, appellant stated that her brother had hit A.D. on her behind. M.G. subsequently attempted to petition the courts for custody, and appellant filed a temporary restraining order against him.
{¶ 17} In December 2017, CCDCFS received a call regarding allegations of abuse and neglect of A.D. A social worker, Lorra Greene, went to appellant's apartment and told her that she was there to investigate allegations of abuse and neglect. Appellant was upset and stated that she felt that she was being harassed. She told Ms. Greene that A.D. was not home, so Ms. Greene scheduled a home visit to meet with A.D.
{¶ 18} Ms. Greene returned to the apartment on the scheduled day but was told that A.D. was not home. She returned the following day and was able to speak with A.D. along with appellant.
{¶ 19} During this encounter, Ms. Greene physically examined A.D. She noticed a small scrape on A.D.'s back, which appellant explained happened at A.D.'s grandfather's house. She also noticed a faint bruise on A.D.'s arm.
{¶ 20} After the examination and conversation with A.D. and appellant, Ms. Greene observed the rest of the apartment, made sure the utilities were working, that the child had a place to sleep, and that she had adequate food and clothing, which she did.
{¶ 21} Following the visit, Ms. Greene talked to a few of appellant's family members, including her brother, sister, mother, and father. She subsequently spoke with appellant's employer, Get Ready, Set, Grow. She also contacted the hospital to make sure that A.D. had been seen for her most recent well-child check.
{¶ 22} Ms. Greene testified that she continued to investigate the case because the referent who called had been adamant about her concerns. The referent had stated that she had known someone else with information about A.D. Ms. Greene stayed in contact with the referent and urged her to have the other person contact her.
{¶ 23} In January 2018, Ms. Greene met with her supervisor; the case was determined to be unsubstantiated and closed that month.
{¶ 24} Later, Ms. Greene met with A.D.'s father, M.G., as the result of a referral from the court to do a home evaluation for the case in which M.G. was seeking custody of A.D. She met with M.G. on March 9, 2018, at his home. She was supposed to meet with appellant on March 12, 2018, but received a phone call the day prior from her supervisor who told her that A.D. had died.
{¶ 25} In February 2018, appellant told her brother, Isaiah Day ("Isaiah"), that A.D. was unable to walk. This concerned Isaiah, so he went to appellant's apartment to check on A.D. He observed A.D. lying on her bed and never saw her get out of the bed. He asked her if she was "cool" and she said "yeah." He figured she could not walk because possibly her ankle hurt. Isaiah then spoke to appellant, who stated that A.D. had been eating very little.
{¶ 26} Appellant's sister, Erica Johnson ("Johnson") testified that she had noticed A.D. getting thinner as early as July 2017. Johnson further stated that she observed appellant take A.D. into another room for discipline, and once observed A.D. leave with a bloody nose. When Johnson asked appellant about it, appellant stated that A.D. had fallen and hit her face. Johnson testified that she saw bruises and scratches on A.D. whenever she saw her, and when appellant was asked about the injuries, appellant always blamed the day care or someone that was not with appellant.
{¶ 27} Dr. Joseph Felo, a forensic pathologist with the Cuyahoga County Medical Examiner's Office, performed the autopsy of A.D. on March 12, 2018. He observed that A.D. was "severely malnourished," weighing only 26 pounds, which put her in the third percentile for children her age. Dr. Felo also observed a very prominent black eye and laceration of her upper left eyelid, which he testified occurred approximately two days prior to A.D.'s death. In fact, her eyelids were so swollen that it was difficult for him to pry them open to observe her eyes during the autopsy.
{¶ 28} A.D. also had a bruise on the right side of her forehead, which Dr. Felo testified was approximately a week old. She had some abrasions on her left arm and back and areas of her lower legs and feet where the skin had just "sloughed off." Dr. Felo stated that A.D. had begun to form bed sores on her lower legs as well.
{¶ 29} Dr. Felo's internal examination of A.D. led him to conclude that A.D. had died a slow death. There was evidence of previous injury on the inside of her head in the form of a healing blood clot on her brain. This injury had caused pressure to build on A.D.'s brain, causing her to have a series of strokes. Dr. Felo testified that the strokes would have occurred approximately two weeks to three months prior to her death. Because of the strokes, A.D. suffered from a lack of oxygen to the brain, which caused the back part of her brain to die. Dr. Felo testified that this part of the brain is responsible for muscle coordination, which would have rendered A.D. clumsy and uncoordinated, if she was able to walk at all.
{¶ 30} The strokes also caused A.D.'s organs to begin to deteriorate. Her lungs were collapsing because she was not taking deep breaths, her pancreas was digesting itself because she was not eating, and the internal lining of her stomach was eroding due to starvation.
{¶ 31} Dr. Felo ruled A.D.'s cause of death a cerebral infarction (stroke) due to blunt impact to the head with subdural hematoma and a contributing cause of malnutrition. The manner of death was ruled a homicide.
{¶ 32} Appellant and Lewis were charged with (1) aggravated murder, an unclassified felony in violation of R.C. 2903.01(C); (2) murder, an unclassified felony in violation of R.C. 2903.02(B); (3) felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(1); (4) permitting child abuse, a felony of the first degree in violation of R.C. 2903.15(A); (5) endangering children, a felony of the second degree in violation of R.C. 2919.22(B)(1); (6) endangering children, a felony of the second degree in violation of R.C. 2919.22(B)(2); (7) endangering children, a felony of the third degree in violation of R.C. 2919.22(A); and (8) tampering with evidence, a felony of the third degree in violation of R.C. 2921.12(A)(1). Both appellant and Lewis pled not guilty to all counts.
{¶ 33} The state sought joinder of appellant and Lewis's trials and moved to present evidence of prior bad acts under Evid.R. 404(B), both of which the court granted. A jury trial commenced on February 27, 2019. The state presented the testimony of 37 witnesses, including appellant's sister and brother, several officers and paramedics that responded to the scene on the day A.D. died, workers from Harbor Crest Day Care and Get Ready, Set, Grow, and social workers from CCDCFS. At the close of the state's case, appellant's counsel moved for a Crim.R. 29 judgment of acquittal on all counts, which the court denied. Appellant renewed her motion at the close of her case, which was again denied.
{¶ 34} Appellant requested a lesser included offense instruction of reckless homicide on Count 1 and a lesser included offense instruction of involuntary manslaughter on Count 2, both of which the trial court denied. The jury returned a verdict of guilty on all counts.
{¶ 35} For sentencing, Counts 2 through 7 merged with Count 1, and appellant was sentenced on Count 1 (aggravated murder) and Count 8 (tampering with evidence). Appellant was sentenced to a term of incarceration of life without the possibility of parole on Count 1 and three years on Count 8, to run concurrently.
{¶ 36} Appellant filed the instant appeal on April 15, 2019, raising the following verbatim assignments of error for our review:
I. The trial court erred when it allowed evidence of alleged prior bad acts under Evid.R. 404(B) and then failed to instruct the jury on its proper use, thereby denying her the right to a fair trial and her right to due process as protected by the 14th Amendment to the US Constitution and Article I Section 10 of the Ohio Constitution.
II. The trial court erred when it ruled that statements of A.D. where [sic] excempted [sic] from the hearsay rule under Evid.R. 807 without making the appropriate findings of fact on the record thereby denying appellant the right to a fair trial and her right to due process as
protected by the 14th Amendment to the US Constitution and Article I Section 10 of the Ohio Constitution[.]
III. The trial court erred when it denied [appellant]'s motions for mistrials thereby denying her the right to a fair trial and her right to due process as protected by the 14th Amendment to the US Constitution and Article I Section 10 of the Ohio Constitution.
IV. The trial court erred when it ordered the joinder of [appellant] and her co-defendant Mr. Lewis thereby denying her the right to a fair trial and her right to due process as protected by the 14th Amendment to the US Constitution and Article I Section 10 of the Ohio Constitution[.]
V. The trial court erred when it denied [appellant]'s motion for a lesser included instruction on reckless homicide and involuntary manslaughter thereby denying her the right to a fair trial and her right to due process as protected by the 14th Amendment to the US Constitution and Article I Section 10 of the Ohio Constitution.
VI. The trial court erred when it admitted irrelevant evidence thereby denying her the right to a fair trial and her right to due process as protected by the 14th amendment to the US Constitution and Article I Section 10 of the Ohio Constitution.
VII. The trial court erred by denying appellant's Crim.R. 29 motions because the convictions were not supported by sufficient evidence thereby denying her the right to a fair trial and her right to due process as protected by the 14th Amendment to the US Constitution and Article I Section 10 of the Ohio Constitution.
VIII. The convictions were against the manifest weight of the evidence.
IX. Appellant was denied the effective assistance of counsel.
II. Law and Analysis
A. Evidence of prior bad acts
{¶ 37} In appellant's first assignment of error, she argues that the trial court erred by unlawfully admitting into evidence testimony and exhibits of prior bad acts by appellant. Further, she contends that the trial court failed to instruct the jury on the proper use of other acts evidence. The evidence at issue involved prior injuries inflicted on A.D.; misconduct by appellant and Lewis at an apartment rental office; an argument between appellant and Lewis outside appellant's apartment; appellant and Lewis deceiving an officer in order to obtain a ride home on a cold night; and appellant and Lewis engaging in sexual relations the day before A.D. died.
{¶ 38} The state argues that the evidence of appellant's prior assaults of A.D. was relevant because the evidence of prior assaults has a tendency to make a fact of consequence more probable. The state contends that the fact that appellant had access to and targeted the same victim makes the facts associated with A.D.'s murder more probable than without such evidence. In addition, the state asserts that the evidence was offered for one of the purposes enumerated in Evid.R. 404(B), namely the identity of the perpetrator. Furthermore, the state submits that the evidence of prior assaults was admissible to demonstrate a scheme and plan or system in committing the current offense. Finally, the state argues that any prejudicial effect of admission of the evidence outweighs its probative value.
{¶ 39} With regard to the evidence offered of other bad acts, appellant argues that these were improperly admitted in that the state used them to show that appellant was a bad mother and a bad citizen and consequently must be guilty of the crimes with which she was charged. In response, the state contends that they were presented to demonstrate that appellant and Lewis were together in the months leading up to A.D.'s death. Additionally, the state argues that the video of appellant and Lewis engaging in sexual relations in the apartment is probative of appellant's mental state while A.D. was lying in the other room, immobile after the strokes.
{¶ 40} We review a trial court's evidentiary rulings for an abuse of discretion. In re J.P., 8th Dist. Cuyahoga No. 81486, 2003-Ohio-3522, ¶ 24. A trial court abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34; Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 41} Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts "is not admissible to prove the character of a person in order to show action in conformity therewith" but may be admissible to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident." Similarly, R.C. 2945.59 permits the admission of other acts evidence tending to show a defendant's "motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question."
{¶ 42} The Supreme Court of Ohio has set forth the following three-step analysis for determining whether other acts evidence is admissible:
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R. 403.State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.
{¶ 43} Pursuant to the above test, we must first consider whether the other acts evidence was relevant. The state contends that evidence of appellant's prior assaults of A.D. was relevant because it had a tendency to make a fact of consequence more probable. The state submits that appellant had access to the same victim and was targeting the same victim, which made the fact that appellant caused the injuries that led to A.D.'s untimely death more probable than without such evidence.
{¶ 44} Further, the state argues that the evidence regarding appellant and Lewis's interactions at the apartment rental office and deceiving a police officer was relevant because it had a tendency to make a fact of consequence (that appellant and Lewis were together in the months leading to A.D.'s death) more probable. Finally, the state maintains that the video of appellant and Lewis engaging in sexual relations the day before A.D.'s death was relevant to show appellant's state of mind at the time A.D. was dying.
{¶ 45} We agree that evidence of appellant's prior bad acts was relevant. Accordingly, we must next determine whether the evidence was presented for a legitimate purpose under Evid.R. 404(B). The state argued, and the trial court agreed, that evidence of appellant's prior assaults of A.D. demonstrated identity, scheme, or plan. Further, the evidence regarding appellant and Lewis's interactions in the apartment rental office, deceiving a police officer to obtain a ride home, and engaging in sexual activity the day before A.D.'s death were not used to show that appellant acted in conformity with these bad acts but instead demonstrated that appellant and Lewis were together in the months leading up to A.D.'s death and thus showed opportunity and identity. We agree that the second prong was met.
{¶ 46} Finally, we must consider whether the probative value of the evidence of appellant's prior assaults of A.D. was substantially outweighed by the danger of unfair prejudice.
In balancing the probative value of certain evidence against its possible prejudicial tendency, it is appropriate to assess evidentiary alternatives the same way. State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 22. Probative value is measured partially by the relative scarcity of evidence on the same issue; that is, if the state offers evidence for which there is an evidentiary alternative that has substantially similar or greater probative value but is less prejudicial, the probative value of the state's evidence must be discounted. Id., citing Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). "The danger of unfair prejudice is then weighed against this reduced probative value." Creech at id.State v. Alexander, 8th Dist. Cuyahoga No. 106556, 2019-Ohio-451, ¶ 36.
{¶ 47} We find any unfair prejudice of the other acts evidence did not substantially outweigh its probative value. "All evidence introduced against a criminal defendant is prejudicial. Unfairly prejudicial evidence, though, tends to appeal to a jury's emotional sympathies rather than intellect." State v. Ford, 8th Dist. Cuyahoga No. 106394, 2018-Ohio-5169, ¶ 42, citing Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001), quoting Weissenberger's Ohio Evidence, Section 403.3, at 85-87 (2000).
{¶ 48} Appellant has not cited a less restrictive evidentiary alternative. The probative value in identifying appellant as the perpetrator and demonstrating her motive, scheme, and plan in her actions substantially outweighs any danger of unfair prejudice. The third prong of the test has therefore also been met.
{¶ 49} Appellant further contends that even if it was not error to admit the other acts evidence, the trial court erred in not giving the jury a limiting instruction that the other acts evidence could not be considered as evidence that appellant had a bad character and acted in conformity with that character in causing A.D.'s death. The state contends that appellant's counsel did not request a limiting instruction at any time.
{¶ 50} Appellant's failure to request a limiting instruction waives all but plain error. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 136, citing State v. Davis, 62 Ohio St.3d 326, 339, 581 N.E.2d 1362 (1991). "Where the defense fails to request a limiting instruction on other-acts evidence, the trial court's failure to give such an instruction is not plain error where '[n]othing suggests the jury used "other acts" evidence to convict [the defendant] because she was a bad person.'" Perez at id., quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 91, citing State v. Grant, 67 Ohio St.3d 465, 472, 620 N.E.2d 50 (1993). Appellant does not point to anything that suggests the jury did so. Accordingly, we find no plain error in the trial court's failure to give a limiting instruction.
{¶ 51} Appellant's first assignment of error is therefore overruled.
B. Statements of A.D.
{¶ 52} In her second assignment of error, appellant argues that the trial court erred when it ruled that statements made by A.D. to various individuals were admissible under Evid.R. 807. Appellant contends that the state asked for statements by medical professionals but did not move to use any of the statements that A.D. made to nonmedical professionals, yet the trial court permitted the state to introduce all of the statements into evidence.
{¶ 53} The state argues that the statements were properly admitted under Evid.R. 807 because A.D. was consistent in her statements and had no motive to lie. In addition, the statements were not obtainable from A.D., and independent proof of the acts exist in the form of photos and statements to the treating physician and nurse at the hospital. Further, the state maintains that it complied with the rule in that it provided notice to appellant stating its intention to use evidence of prior bad acts, which included the statements at issue.
{¶ 54} Evid.R. 807 provides an exception to the general exclusion of hearsay statements when a child under the age of 12 at the time of trial or hearing makes an out-of-court statement describing any act or attempted act of physical harm directed against the child's person. In order for the statement to be admitted, the proponent of the statement must not be able to reasonably obtain the child's testimony. Evid.R. 807(A)(2). "It is axiomatic that the testimony is not reasonably obtainable when the child is deceased at the time of trial or hearing." State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576, 906 N.E.2d 427, ¶ 14, citing Evid.R. 807(B)(3)(a).
{¶ 55} Appellant argues that the trial court did not comply with Evid.R. 807(C) in that it failed to "make the findings required by this rule on the basis of a hearing conducted outside of the presence of the jury and * * * make findings of fact, on the record, as to the bases for its ruling." Appellant, however, did not object to this claimed error at the time it occurred. On February 4, 2019, the state filed a notice of intent to use Evid.R. 404(B) evidence of prior acts. The state contends that included in the evidence cited in this notice were the statements made by A.D. regarding appellant's prior assaults. Appellant did not file any objection to the notice or move to exclude the statements made by A.D.
{¶ 56} At one point during the trial, the court met with counsel in chambers to discuss the other acts evidence the state sought to present under Evid.R. 404(B). After the court ruled that it was going to allow the evidence, the court further stated, "I'm going to allow it in under 807, the child's testimony. You can have a standing objection on those other acts."
{¶ 57} Trial counsel for appellant did not raise the issue of the court failing to hold a hearing and make the findings required by Evid.R. 807(C). Therefore, this assignment of error is subject to the plain error rule. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B). "Plain error exists only if 'but for the error, the outcome of the trial clearly would have been otherwise,' and is applied 'under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61, quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶ 58} After reviewing the record, we cannot say that but for the trial court's error in not holding a hearing and making the required findings under Evid.R. 807(C), the outcome of the trial clearly would have been otherwise. The statements of A.D. met the requirements of Evid.R. 807 and would have been found to be admissible had the court held the hearing. Further, A.D. had made statements to medical providers about appellant causing her injuries. These statements were admissible under Evid.R. 803(4) for statements for the purposes of medical diagnosis or treatment, and appellant does not argue otherwise. Accordingly, the disputed testimony was cumulative. We therefore cannot say that the outcome of the trial would have been different but for the court's failure to hold the Evid.R. 807(C) hearing. Appellant's second assignment of error is overruled.
C. Motions for Mistrial
{¶ 59} In her third assignment of error, appellant argues that the trial court erred in denying her two motions for mistrial. The first motion occurred during her codefendant's opening statement, when counsel for Lewis suggested that she would be introducing specific statements made by appellant. The trial court agreed that the comments were inappropriate and admonished Lewis's counsel for her conduct. The trial court ordered the jury to disregard the statements by Lewis's counsel but denied appellant's motion for a mistrial.
{¶ 60} The second motion for mistrial occurred when counsel for Lewis elicited testimony of prior bad acts by appellant during the testimony of the state's witness, Isaiah. Specifically, during cross-examination, counsel for Lewis mentioned that appellant had punched A.D. in the eye after A.D. had soiled herself. Appellant's counsel objected and again moved for a mistrial. The trial court reminded Lewis's counsel of the prior admonition during opening statements and ordered the jury to disregard the evidence elicited by Lewis's counsel.
{¶ 61} Appellant argues that the curative instructions did not provide appellant the protections of the law to which she is entitled and that her fundamental rights to a fair trial were violated when her codefendant elicited statements that could be used to incriminate her and introduced additional prior bad acts evidence involving appellant assaulting A.D.
{¶ 62} The state argues that a mistrial was not proper in either instance. In the first instance, during Lewis's opening statement, the trial court stopped Lewis's counsel from making certain statements and instructed the jury to disregard them. In the second instance, during Isaiah's testimony, the trial court again immediately stopped Lewis's counsel and instructed the jury accordingly.
{¶ 63} The grant or denial of an order of mistrial lies within the sound discretion of the trial court. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). Absent a showing that the accused suffered material prejudice, a reviewing court will not disturb the exercise of that discretion. State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). "Moreover, mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible." State v. Colbert, 8th Dist. Cuyahoga No. 84189, 2004-Ohio-6012, ¶ 21, citing Garner at id. Furthermore, a jury is presumed to follow the instructions, including curative instructions, given to it by a trial judge. Colbert at id., citing State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994).
{¶ 64} After reviewing the record, we cannot say that the trial court abused its discretion in denying appellant's motions for a mistrial. The trial court provided curative instructions to the jury regarding the inappropriate statements by Lewis's counsel, and the jury is presumed to have followed them. Additionally, opening statements are not evidence, Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, ¶ 29, and the jury was instructed the same. Appellant's third assignment of error is overruled.
D. Joinder of Trial
{¶ 65} In her fourth assignment of error, appellant argues that the trial court erred in ordering both defendants to be tried together. She asserts that her right to a fair trial was violated when she had to defend herself both from the state and from her codefendant, Lewis.
{¶ 66} The state contends that appellant's fundamental right to a fair trial was not violated when she had to defend herself from Lewis's statements at trial. In both of the instances cited by appellant, the state notes that the trial court immediately halted the testimony and gave a curative instruction to the jury.
{¶ 67} Crim.R. 14 requires separate trials when joinder would result in prejudice. The rule states: "If it appears that a defendant or the state is prejudiced by a joinder of offenses * * * in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts * * * or provide such other relief as justice requires." Crim.R. 14.
{¶ 68} A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges under Crim.R. 14 has the burden of affirmatively showing that his or her rights were prejudiced; he or she must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial, and must demonstrate that the court abused its discretion in refusing to separate the charges for trial. State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 21, citing State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), syllabus.
{¶ 69} Crim.R. 12(C)(5) provides that a request for severance of defendants under Crim.R. 14 must be raised prior to trial. If a defendant fails to timely file his or her motion, the right to severance of a trial is deemed waived. State v. O'Neal, 6th Dist. Lucas No. L-92-279, 1993 Ohio App. LEXIS 3864, 2 (Aug. 6, 1993), citing former Crim.R. 12(G) (now Crim.R. 12(H)).
{¶ 70} Here, Lewis moved for severance prior to trial; however, appellant did not object to the joinder of her trial or move to sever the trials prior to trial commencing. "In joint trials, only the defendant who makes an appropriate request or proper objection preserves error on appeal." State v. Thompson, 1st Dist. Hamilton No. C-830843, 1984 Ohio App. LEXIS 10503, 4 (Aug. 8, 1984), citing State v. Henry, 4 Ohio St.3d 44, 45, 446 N.E.2d 436 (1983), fn. 1.
{¶ 71} Moreover, even if appellant's motions were proper after trial had commenced, "'[a] motion for severance due to prejudicial misjoinder * * * must be renewed at the close of the state's case or at the conclusion of all the evidence and unless made at that time, it is waived.'" State v. Harris-Powers, 8th Dist. Cuyahoga No. 87921, 2007-Ohio-389, ¶ 17, quoting State v. Owens, 51 Ohio App.2d 132, 366 N.E.2d 1367 (9th Dist.1975), paragraph two of the syllabus. See also Crim.R. 8(B). Thus, appellant has waived all but plain error. State v. Hughes, 8th Dist. Cuyahoga Nos. 98667 and 98668, 2013-Ohio-1550, ¶ 25, citing Owens at 146. As noted above, to find plain error under Crim.R. 52(B), it must be determined that, but for the error, the outcome of the trial clearly would have been otherwise. Hughes at ¶ 25, citing Long, 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph two of the syllabus.
{¶ 72} We find no plain error here. As we discussed in the previous assignment of error, upon certain objectionable statements by Lewis's counsel, the trial judge gave a curative instruction to the jury, which we presume the jury followed.
{¶ 73} Appellant's fourth assignment of error is therefore overruled.
E. Lesser Included Offense Instruction
{¶ 74} In her fifth assignment of error, appellant argues that the trial court erred in denying her motion for instructions on reckless homicide as a lesser included offense of aggravated murder, as charged in Count 1, and involuntary manslaughter as a lesser included offense of murder, as charged in Count 2.
{¶ 75} The state argues that the evidence did not support an acquittal on aggravated murder and a conviction on reckless homicide because there was no evidence that appellant acted recklessly in causing A.D.'s injuries and that the evidence showed that A.D.'s injuries were caused purposely. For the same reason, the court's denial of a lesser included offense of involuntary manslaughter was not supported by the evidence.
{¶ 76} The determination of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. "The first tier, also called the 'statutory-elements step,' is a purely legal question, wherein we determine whether one offense is generally a lesser included offense of the charged offense." State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6, citing State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). The second tier looks to the evidence in a particular case and determines whether "'a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.'" Evans at ¶ 13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11. "Only in the second tier of the analysis do the facts of a particular case become relevant." Deanda at ¶ 6.
{¶ 77} In analyzing whether an offense is a lesser included offense of another, the court shall consider whether (1) "one offense carries a greater penalty than the other," (2) "some element of the greater offense is not required to prove commission of the lesser offense," and (3) "the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed." Evans at paragraph two of the syllabus, clarifying State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988).
{¶ 78} After it has been determined that the offense is a lesser included offense, the second tier mandates that courts look to the evidence in a particular case and determine whether "'a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.'" Deanda at ¶ 6, quoting Evans at ¶ 13. See also State v. Thomas, 40 Ohio St.3d 213, 216, 533 N.E.2d 286 (1988).
{¶ 79} The first prong of the Evans test is met because reckless homicide has been held to be a lesser included offense of aggravated murder. State v. Hill, 8th Dist. Cuyahoga No. 87645, 2006-Ohio-6425, ¶ 29, citing State v. Teets, 4th Dist. Pickaway No. 02CA1, 2002-Ohio-6799. Further, involuntary manslaughter is a lesser included offense of murder. See State v. Franks, 8th Dist. Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 19. Consequently, the issue before us is whether the jury could reasonably find appellant guilty of reckless homicide but not guilty of the aggravated murder offense charged in the indictment, and whether the jury could reasonably find appellant guilty of involuntary manslaughter but not guilty of the murder offense charged in the indictment. "An instruction on a lesser included offense is not required simply because some evidence of a lesser included offense is advanced." Hill at ¶ 32. "'[A] charge on the lesser included offense is warranted only if the evidence adduced at trial would support it.'" State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 92, quoting Thomas at 216.
{¶ 80} Involuntary manslaughter is governed by R.C. 2903.04, which provides, in pertinent part, that "[n]o person shall cause the death of another * * * as a proximate result of the offender's committing or attempting to commit a felony." R.C. 2903.04(A). Appellant sought an involuntary manslaughter charge with the predicate felony being endangering children under R.C. 2919.22(A) (Count 7), which provides, in pertinent part:
No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.
{¶ 81} The culpable mental state for involuntary manslaughter is supplied by the underlying offense. State v. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912 N.E.2d 133, ¶ 36 (8th Dist.). The mental state for endangering children is reckless. State v. Johnson, 8th Dist. Cuyahoga No. 94813, 2011-Ohio-1919, ¶ 54, citing Cleveland v. Kazmaier, 8th Dist. Cuyahoga No. 84290, 2004-Ohio-6420.
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 consequences,
the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.R.C. 2901.22(C).
{¶ 82} The evidence presented showed that A.D. suffered a blunt force trauma to the head and additional injuries thereafter. Dr. Felo testified that the fatal injury had occurred two weeks to three months prior to A.D.'s death and that malnutrition also contributed to A.D.'s death. There was no evidence that appellant sought treatment for A.D.'s injuries. In addition, there was testimony by appellant's brother that appellant had told him sometime in February 2018 that A.D. was unable to walk. Yet, as demonstrated by her medical records, appellant never took A.D. for medical treatment.
{¶ 83} Moreover, paramedics and responding officers testified that A.D. was emaciated, just "skin and bones." At her death, she weighed in the third percentile for children her age. Finally, based on the testimony of the paramedics and responding officers, when appellant and Lewis finally decided to call 911, A.D. was likely already dead.
{¶ 84} Appellant's mental state was further underscored by the video from her cell phone depicting her and Lewis engaging in sexual relations in the same apartment where A.D. was immobile in her bed for the final hours of her life.
{¶ 85} This matter is similar to State v. Crump, 2019-Ohio-2219, 137 N.E.3d 711 (8th Dist.), which also involved the abuse and neglect of a child that led to the child's death. The child sustained head trauma while in the care of her mother (Crump) and Crump's partner. She was unconscious for a significant amount of time before Crump and her partner finally called 911; however, at that point, it was too late. Crump was charged with aggravated murder, murder, felonious assault, and endangering children, and was convicted of reckless homicide and child endangering.
{¶ 86} At trial, Crump had requested a reckless homicide instruction, although she later claimed on appeal that the instruction was error. This court noted that any error in the instruction was invited error, but nevertheless held that the trial court did not err in charging the jury on the lesser included offense of reckless homicide. This court reasoned that a defendant could not purposely cause the death (aggravated murder) of another without also recklessly causing the death of another (reckless homicide). Crump at ¶ 30, citing State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 190.
{¶ 87} This case is distinguishable from Crump. In Crump, the defendant waited hours to call 911, whereas in the instant matter, appellant did not seek medical attention for A.D. for weeks to even months. As noted above, Dr. Felo testified that A.D. had died a slow death. There was evidence of previous injury on the inside of A.D.'s head in the form of a healing blood clot on her brain, which had caused her to have a series of strokes. Dr. Felo opined that the strokes would have occurred approximately two weeks to three months prior to A.D.'s death.
{¶ 88} There was testimony that, while A.D. was suffering and wasting away, appellant and Lewis went on about their lives, even to the point of having sexual relations while A.D. was lying in the next room the day before they finally called 911.
{¶ 89} Thus, the totality of the abuse and neglect of A.D. was so extreme that it far exceeded recklessness. The evidence simply does not support a finding that appellant acted merely recklessly in her actions toward A.D., and no jury would have been able to find appellant guilty of reckless homicide, but not guilty of aggravated murder or murder. Accordingly, the evidence did not reasonably support an acquittal of aggravated murder and a conviction of reckless homicide or an acquittal of murder and a conviction on the lesser included offense of involuntary manslaughter. We therefore cannot find that the trial court abused its discretion in denying a reckless homicide or involuntary manslaughter instruction. Appellant's fifth assignment of error is overruled.
F. Admission of Irrelevant Evidence
{¶ 90} In her sixth assignment of error, appellant argues that the trial court erred in admitting irrelevant evidence in the form of corpse photos, day care logs, unrelated medical and dental records, and photos of alleged bad acts. Appellant did not provide any specific arguments as to why the stated evidence was irrelevant except to say that the photos depicting A.D.'s deceased body were not probative because her cause of death was undisputed, and that the photos of prior bad acts had no probative value and were highly prejudicial.
{¶ 91} The state argues that it had the burden of proving that appellant purposely caused the death of A.D., which placed A.D.'s cause of death directly at issue. Additionally, the photos of the prior bad acts were offered to show identity of appellant as the perpetrator of A.D.'s injuries. Moreover, the state contends that A.D.'s medical records were relevant to demonstrate that appellant did not seek medical care for the injuries found by Dr. Felo upon her death and to demonstrate that she weighed the same amount at her death that she had when she was only eighteen months old.
{¶ 92} The admission of evidence lies within the broad discretion of a trial court; consequently, a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43, citing State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). Within this broad discretion is the trial court's duty "to determine whether testimony is relevant and to balance its potential probative value against the danger of unfair prejudice." State v. Clark, 8th Dist. Cuyahoga No. 95928, 2011-Ohio-4109, ¶ 32. Evid.R. 402 allows the admission of any relevant evidence so long as the probative value of that evidence is not outweighed by its prejudicial effect, and it does not confuse the issue, or mislead the jury. Evid.R. 403(A). Our inquiry is therefore limited to whether the trial court acted unreasonably, arbitrarily, or unconscionably in deciding to admit the evidence.
{¶ 93} We cannot find that the trial court abused its discretion in allowing the medical examiner's photos, the reports from the day care noting A.D.'s injuries, A.D.'s medical and dental records, and the photos of A.D.'s prior injuries while in appellant's care. We have already addressed the evidence regarding prior injuries inflicted by appellant and have found their admission was proper. Moreover, A.D.'s medical and dental records were certainly relevant to demonstrate the medical care, or lack thereof, provided to A.D. in the weeks leading to her death. Finally, the photos from the medical examiner regarding the cause of A.D.'s death were relevant because defense counsel cross-examined Dr. Felo as to whether A.D.'s fatal injuries could have been caused by a fall.
{¶ 94} Appellant's sixth assignment of error is overruled.
G. Sufficiency and Weight of the Evidence
{¶ 95} In her seventh and eighth assignment of error, appellant argues that the trial court erred in denying her Crim.R. 29 motions because her convictions were not supported by sufficient evidence and that her convictions were against the weight of the evidence.
{¶ 96} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. Johnson, 8th Dist. Cuyahoga No. 94813, 2011-Ohio-1919, at ¶ 31-34, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus.
"An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable doubt." Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, [at] ¶ 101, citing Thompkins [at 386].Cleveland v. Battles, 8th Dist. Cuyahoga No. 104984, 2018-Ohio-267, ¶ 11-12.
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. Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶ 97} A manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. A reviewing court "'weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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 at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). "A conviction should be reversed as against the manifest weight of the evidence only in the most 'exceptional case in which the evidence weighs heavily against the conviction.'" State v. Burks, 8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777, ¶ 47, quoting Thompkins at 387.
{¶ 98} Appellant contends that the jury lost its way as it was bombarded with irrelevant evidence, prejudicial prior bad acts evidence, and that it was motivated by sympathy, "moved by the horrific death of a beautiful little girl." In particular, appellant argues that the photos of A.D., the day care logs, and the evidence of prior injuries only served the purpose of shocking the jury. Appellant asserts that there was no independent evidence of intentional acts as charged in the indictment.
{¶ 99} The state asserts that it did not play on the heart strings of the jury; rather, it presented evidence of appellant's actions and A.D.'s injuries.
{¶ 100} Having reviewed the evidence presented at trial, we conclude that any rational trier of fact could have found appellant's convictions proven beyond a reasonable doubt. Moreover, we simply cannot say that the jury lost its way in believing the case presented by the state, even if there was no independent evidence of the intentional acts that led to A.D.'s injuries.
{¶ 101} The state presented evidence showing that A.D. died of a blunt force trauma to the head, combined with malnutrition. Dr. Felo testified that the blow to her head occurred two weeks to three months prior to A.D.'s death and that her organs shut down as she slowly died. Appellant lied to police about calling a nurses' hotline and did not seek any other medical care. Multiple witnesses described the condition of A.D.'s body as emaciated and "skin and bones." During the weeks prior to her death, A.D.'s condition was obvious, yet appellant did nothing to save her. Any rational trier of fact could have found that appellant was guilty beyond a reasonable doubt.
{¶ 102} Appellant was convicted of three counts of child endangering, in violation of R.C. 2919.22(A), (B)(1), and (B)(2). A conviction for child endangering under subsection (A) requires sufficient evidence that the defendant recklessly created a substantial risk to the health or safety of one or more children by violating a duty of care, protection, or support. Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31 N.E.3d 695, ¶ 25 (8th Dist.).
{¶ 103} "Recklessly" is defined under R.C. 2901.22(C) as follows:
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 consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
{¶ 104} Appellant was A.D.'s mother who had sole custody of A.D., and the evidence showed that appellant either caused, or allowed Lewis to cause, serious physical injuries to A.D. Additionally, if Lewis were the perpetrator, appellant failed to remove Lewis from the home, failed to call the police to stop the abuse, and failed to seek medical treatment for A.D.'s injuries, which ultimately resulted in her death. Accordingly, there was sufficient evidence to support appellant's child endangering conviction under R.C. 2919.22(A).
{¶ 105} Appellant's other child endangering convictions were under R.C. 2919.22(B)(1) and (2). While R.C. 2919.22(A) defines an offense of neglect as a "violation of a duty of care, protection, or support which results in a substantial risk to his health or safety," subsections (B)(1) and (B)(2) of R.C. 2919.22 concern "actual physical abuse of a child, whether through physical cruelty or through improper discipline or restraint." Committee comment to R.C. 2919.22; see also State v. Esper, 8th Dist. Cuyahoga No. 105069, 2017-Ohio-7069, ¶ 13.
{¶ 106} The Supreme Court of Ohio has distinguished the neglect form of child endangering set forth in R.C. 2919.22(A) from the abuse form of the offense set forth in R.C. 2919.22(B)(1) and (2), stating that "neglect is characterized by acts of omission rather than acts of commission" and abuse is characterized by "[a]ffirmative acts of torture, abuse, and excessive acts of corporal punishment or disciplinary measures." State v. Kamel, 12 Ohio St.3d 306, 309, 466 N.E.2d 860 (1984); see also State v. Sammons, 58 Ohio St.2d 460, 391 N.E.2d 713 (1979) (an affirmative act of abuse is a required element for a conviction under R.C. 2919.22(B); whereas subsection (A) involves acts of omission).
{¶ 107} Appellant asserts that there was no evidence that she committed any act to abuse, torture, or discipline A.D. R.C. 2919.22(B) provides, in relevant part:
No person shall do any of the following to a child under eighteen years of age * * * :
(1) Abuse the child;
(2) Torture or cruelly abuse the child * * * .
{¶ 108} "Abuse" has been defined as "'ill-use, maltreat; to injure, wrong or hurt.'" State v. Surles, 9th Dist. Summit No. 23340, 2007-Ohio-2733, ¶ 12, quoting State v. Nivert, 9th Dist. Summit Nos. 16806 and 16843, 1995 Ohio App. LEXIS 4666, 6 (Oct. 18, 1995), quoting I Oxford English Dictionary at 44-5 (2d Ed.1933). "Torture" means (1) "the infliction of severe pain or suffering (of body or mind)"; or (2) "acting upon violently in some way, so as to strain, wrench, distort, twist, pull or knock about." Id., quoting Nivert at 5-6. Finally, treating a person "cruelly" has been held to mean (1) "to demonstrate indifference to or delight in another's suffering"; or (2) "treat severely, rigorously, or sharply." Id., quoting Nivert at 6.
{¶ 109} As described throughout this opinion, there was certainly evidence that appellant inflicted suffering upon A.D. and/or that she maltreated A.D., which was unquestionably done cruelly. A reasonable jury could therefore find that appellant was guilty of endangering children under R.C. 2919.22(B).
{¶ 110} With regard to the tampering with evidence charge, there was testimony by multiple witnesses that the apartment smelled of bleach, and there were a number of cleaning supplies lined up on the counter. Further, there was testimony from the responding officers and paramedics that A.D.'s body was found beneath an air conditioning unit that was being used in March. Given that there was testimony that A.D. had a decomposing smell to her, a reasonable jury could have found that appellant was guilty of tampering with evidence.
{¶ 111} This is not an exceptional case in which the evidence weighs heavily against the convictions. We cannot say that appellant's convictions were unsupported by sufficient evidence or against the manifest weight of the evidence. Accordingly, appellant's seventh and eighth assignments of error are overruled.
H. Ineffective Assistance of Counsel
{¶ 112} In her ninth assignment of error, appellant argues that she was denied the effective assistance of counsel when her trial counsel failed to request a jury instruction of the appropriate use of prior bad acts evidence.
{¶ 113} "Reversal of a conviction for ineffective assistance of counsel requires that the defendant show, first, that counsel's performance was deficient, and second, that the deficient performance prejudiced the defendant so as to deprive the defendant of a fair trial." State v. Ford, 158 Ohio St. 3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 391, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 114} The Supreme Court of Ohio has held that the decision whether to request such a jury instruction is a tactical one. State v. Croce, 8th Dist. Cuyahoga No. 100244, 2014-Ohio-1627, ¶ 28, citing State v. Schaim, 65 Ohio St.3d 51, 61, 600 N.E.2d 661 (1992). Therefore, counsel's failure to request the instruction could have been tactical and does not demonstrate that counsel's performance was deficient. Moreover, even if counsel should have requested the instruction, appellant has failed to demonstrate that but for this error, the outcome of the trial would have been different.
{¶ 115} Consequently, we are unable to conclude that appellant's counsel rendered ineffective assistance in failing to request a limiting jury instruction regarding evidence of prior bad acts. The final assignment of error is overruled.
III. Conclusion
{¶ 116} After thoroughly reviewing the record, we affirm appellant's convictions. Appellant was not denied her constitutional rights to a fair trial or the effective assistance of counsel. Appellant's convictions for aggravated murder, murder, felonious assault, endangering children, permitting child abuse, and tampering with evidence were supported by sufficient evidence and are not against the manifest weight of the evidence.
{¶ 117} Judgment affirmed.
It is ordered that appellee recover from appellant 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 pleas court to carry this judgment into execution. The defendant's convictions 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. /s/_________
FRANK D. CELEBREZZE, JR., JUDGE EILEEN T. GALLAGHER, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR