ORIGINAL

IN THE SUPREME COURT OF OHIO

Case No.:

STATE OF OHIO,

Plaintiff / Appellee,

V.

JEREMY T. HENDREX

Defendant/ Appellant.

On Appeal from the EleventhDistrict Court of AppealsCase No.: 2009-T-0091Trumbull County, Ohio

MEMORANDUM IN SUPPORT OF JURISDICTION OFDEFENDANT/APPELLANT

DENNIS WATKINS, ESQ.Trumbull County AdministrationBldg., 4th Floor160 High Street, NWWarren, Ohio 44481

ATTORNEY FOR PLAINTIFF-APPELLEE

BRETT M. MANCINO (#0071148)1360 East Ninth Street1000 IMG CenterCleveland, Ohio 44114216.241.8333 Telephone216.241.5890 Facsimilebmancino@rcs-law.com

FlJ

AUG 04. 2(liQ

CLERK OF GOURTSUPREME COURT OF pHIO

COUNSEL FOR DEFENDANT-APPELLANT, JEREMY HENDREX

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST ....................................................................................:................................1

STATEMENT OF THE CASE AND FACTS ..... .............................................................................1-6

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ............................:.............................6

Proposition of Law No. 1: A Defendant is denied due process of law under the United

States and Ohio Constitutions and Pursiiant to Jackson V. Virginia (1979), 443 U.S. 307

when he is convicted of felonious assault and child endangering based upon insufficientevidence after qualified experts disagree as to the diagnosis of the child victim :............................. 6

CONCLUSION .................................................................................................................................. 12

CERTIFICATE OF SERVICE ...................................:...............................:......................................13

AppendixState of Ohio v. Jeremy Hendrex, Opinion, C.A. No. 2009-T-0091

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERALINTERST

The Defendant-Appellant was sentenced to a maximum term of imprisonment of

eight years after his conviction of felonious assault and child endangering after a trial by

jury in the above case. This Court needs to review cases which involve child victims,

especially after there is evidence that could place the victim in the custody of more than

perpetrator during the time in which the experts opine the injuries took place, and there is

conflicting expert testimony as to the cause of the child victim's injuries.

More specifically, when there is competent credible expert testimony that differs

as to the cause of a child's injuries in a felonious assault and child endangering case, this

court needs to issue a rule of law stating definitively that this is insufficient evidence

upon which a conviction can be based.

STATEMENT OF THE CASE AND FACTS

The Defendant/Appellant Jeremy Hendrex ("Jeremy") was indicted by a Grand

Jury for felonious assault and child endangering regarding alleged injuries sustained by

his 2%z month old daughter, AJ.1 AJ was born July 12, 2007. AJ was born with a heart

murmur and jaundice.

AJ's mother is Shari Jarome ("Shari").

Jeremy was known by Shari and her relatives to be an extra caring father and

overly protective father of AJ. Shari testified that Jeremy was the most protective over

AJ of all of the family. Jeremy never got frustrated with AJ according to Shari. In fact, it

was Jeremy who did not like it when Shari took AJ to truck nights.

1"AJ" refers to the initials of the child in this matter; this is being done to protect theprivacy of the child.

Between September 5 and September 18, 2007, Jeremy was out of town and not

taking care of AJ. During this time that Jeremy was away from AJ, Shari's sister pori,

along with her young children, cared for AJ. During one of the days that Dori cared for

AJ, Dori called Shari to report that AJ was throwing up. Shari then scheduled an

appointment with AJ's pediatrician (Dr. Pentz, in Niles). AJ was prescribed Pedialyte to

deal with the dehydration caused by throwing up.

Jeremy returned to town on September 18, 2007 to the trailer where Shari lived

with AJ. Jeremy assisted in caring for AJ again. On September 21, Shari, Jeremy and AJ

went to breakfast along with Shari's sister pori, her husband and their son. At breakfast,

AJ began to throw up again. Jeremy and Shari went to Walgreens for more Pedialyte for

AJ. By bedtime on September 21, AJ appeared to be feeling better as she went to sleep in

her blue bouncy seat in the living room. The next morning, which was Saturday,

September 22, Shari woke up around 5:30 a.m. after hearing AJ playing in her chair. AJ

was pulling the blanket up and down over her head, giggling. At this time, AJ took 4

ounces of formula and Shari went to work. Shari worked as a bus driver for Trurnbull

County. Shari had to be at work on this morning by 6:30 a.m. and she worked until 5:00

p.m., which was unusual. Shari remembers Jeremy calling her around noon stating that

AJ had diarrhea. Shari told Jeremy to give AJ more Pedialyte. Jeremy then called again

toward the end of the day asking Sheri if he could give AJ anything else for the diarrhea.

Jeremy asked Shari to go to the pharmacist at Circle K and ask if there is anything

additionally that could be given to AJ.

2

After work, Shari returned home around 5:30 p.m. to do laundry. Shari saw AJ

sleeping on the couch, which was her normal naptime. Shari was at the laundromat doing

laundry until approximately 7:15 to 7:30 p.m.

When Shari returned home from doing laundry, AJ was still sleeping and Jeremy

was at the computer. Although this was a little unusual that AJ was still sleeping, it did

not cause Shari any concern. In fact, Shari and her sister Irene went out drinking to a bar

called Choices from approximately 9:00 p.m. to 11:00 p.m. and returned home around

11:30 p.m. after stopping at Taco Bell for something to eat. Shari remembers AJ taking a

half bottle of formula before she left for Choices. AJ did not spit up at this time. After

Shari returned home from Choices, she again fed AJ. It was at this time that AJ began

shaking. Jeremy was sitting with Shari while AJ was shaking, and he stated that AJ was

doing this earlier in the day as well. In reaction to the shaking, Shari took AJ to the

emergency room at St. Joseph's Hospital.

The doctors at St. Joseph's could not get the seizures under control so they life-

flighted her to the Children's Hospital at the Cleveland Clinic. A scan of AJ's brain

showed bleeding and the doctors first thought it was meningitis. The doctors then turned

their attention regarding AJ's bleeding on the brain to having been caused by trauma.

Almost immediately, the treating doctors at the Cleveland Clinic concluded that AJ's

injuries were caused by non-accidental means, or shaken baby syndrome. Dr. Hsich, who

was the child neurologist at the Cleveland Clinic who cared for AJ, testified that he did

now know the mechanism for AJ's injuries. Dr. Hsich opined that AJ's head was struck

by something or her head struck something. Dr. Hsich then opined that the injury with

AJ seemed to have occurred within the 24 hours prior to her arrival at St. Joseph's

3

Hospital. Dr. Hsich conceded that a minor bump could cause similar trauma on a baby

with swelling such as AJ's. Dr. Hsich also admitted that the initial CT scan conducted at

St. Joseph's Hospital did not identify any bone fractures in AJ's skull. Dr. Hsich also

agreed with the defense expert (Dr. Scheller) that the bleeding caused the seizures.

Because Jeremy did not have a car of his own, he did not arrive at the Cleveland

Clinic Children's hospital until two days after AJ's admission. Thereafter, and while at

the Cleveland Clinic, both Shari and Jeremy were interviewed by social workers and

investigators from Trumbull County Children's and Family Services. Almost

immediately, investigators blamed Shari and Jeremy for the injuries to AJ. The

investigators told Shari it had to be either her or Jeremy who caused the injuries. Shari

told them it could not be either of them.

Shari told the Children Services' investigators that Jeremy was the most

protective of all of them, and that Jeremy never got frustrated with AJ. Shari repeated in

her testimony that Jeremy was a good caregiver to AJ.

Shari lied to investigators regarding her own activities on the day AJ went to the

emergency room. Shari did not tell the investigators that she went drinking at Choices

bar that evening. On direct examination, Shari stated that she did not know why she did

not tell the investigators she went to Choices. On cross-examination, Shari testified she

was ashamed to tell the investigators that she was drinking at Choices prior to bringing

AJ to the emergency room. Shari admitted that prior to Choices she saw AJ shaking.

While at Choices, Shari drank two Bud Light beers.

Jeremy was interviewed by Children Services workers three times regarding AJ's

injuries. While trying to think of anything that may have caused injury to AJ, Jeremy

4

tried to recall any and all things that he may have done to cause these injuries. Jeremy

told investigators that one time he may have bumped her head on the faucet after giving

her a bath. Jeremy then told the investigators that AJ almost fell to the ground while she

was sleeping with him on the couch and he was able to catch her before she fell

completely to the ground. It was in a third interview that Jeremy told investigators that

on the day that AJ was brought to St. Joseph's Emergency Room, that he tripped over an

electric cord, and AJ fell out of his arms onto the couch and hit her head on the exposed

wooden portion of the couch.

After Jeremy left town on September 5, 2007 AJ suffered an injury-a bruise on

top of her head, above her right eye. Also, after Jeremy left town, there was an incident

where AJ's eyes had locked up causing her to stare into space. Neither of these incidents

were apparently investigated.

On behalf of the defense in this case, Dr. Joseph Scheller was called to explain the

injuries suffered by AJ. Dr. Scheller reviewed all of AJ's medical records, from birth to

admission to the Cleveland Clinic and follow up. Tr. Tr. 587. Dr. Scheller opined that

AJ's injuries were not caused by shaken baby syndrome.

Dr. Scheller, based upon his experience and training in this field, testified there

was no bruising on the brain itself. In fact, Dr. Scheller testified that there were three

important findings missing from AJ's injuries in order for a doctor to be able to conclude

that her injuries were caused by non-accidental trauma. The three things missing from

AJ's diagnosis were: 1) no bruises on the arms; 2) no neck injuries; and 3) no bruising on

the brain.

5

Dr. Scheller opined that for a baby to have suffered injuries from violent shaking,

the perpetrator would have to be holding the baby, moving the neck violently back and

forth that would cause the three specific types of injuries detailed by him. Dr. Scheller

testified that the retinal hemorrhages caused to AJ were due to increased pressure in the

brain. Dr. Scheller testified that there were no skull fractures identified during the first

CT scan at St. Joseph's hospital. In fact, there was no report to follow-up to see if the

fractures were healing. To Dr. Scheller, this lack of follow up indicated the doctors did

not believe there were fractures; otherwise, the doctors would follow-up with AJ to

monitor the healing of any fractures that may have existed:

Dr. Scheller opined that AJ's injuries were caused by a normally benign condition

known as external hydrocephalus - a buildup of fluid on the brain. Extemal

hydrocephalus causes babies heads to grow faster than usual causing pressure inside the

brain, like that suffered by AJ. It also causes seizures. In support of Dr. Scheller's

opinions was the fact that AJ's doctors' visits prior to being admitted St. Joseph's

Emergency room noted a dramatic increase in the size of her head that could have caused

small amounts of bleeding as early as August 2007.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. I

Proposition of Law No. 1: A Defendant is denied due process of law under the,United States and Ohio Constitutions and Pursuant to Jackson V. Virginia (1979)

443 U S 307 when he is convicted of felonious assault and child endaneering basedupon insufficient evidence after qualified experts disagree as to the diasnosis of thechild victim.

The United States Supreme Court, in Jackson v. Virginia, supra, has held that in

order to sustain a conviction beyond a reasonable doubt, there must be "sufficient

evidence" of all of the elements of the crime charged, not just "any evidence."

6

Whether evidence is legally sufficient to sustain a conviction for charges in an

indictment, as a question of law. See, State v. Thompkins (1997), 78 Ohio St. 3d 380,

386. "The relevant inquiry in a claim of insufficiency is whether any rational fact finder,

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proved beyond a reasonable doubt." See, State v. Jenks (1991), 61

Ohio St. 3d, 259, 574 N.E. 2d 492, ¶2 syllabus.

No witness testified that they saw Jeremy harm AJ Jarome. No witness testified

that Jeremy had harmed AJ previous to September 22, 2007. No witness testified that

Jeremy disliked or got frustrated with AJ. To the contrary, Shari testified that AJ was a

happy healthy baby in general and not colicky. No witness testified that Jeremy

knowingly caused serious physical harm to AJ. No witness testified that Jeremy

recklessly abused AJ Jarome.

The doctors who testified from Cleveland Clinic Children's Hospital could not

testify as to the mechanism of an injury to AJ Jarome. Tr. 398. The doctors from the

Cleveland Clinic testified that the injuries were non-accidental. Neither of the doctors

testified that the injuries were caused recklessly or knowingly.

In a case almost exactly similar to the one before this Court, the Fourth District

Court of Appeals reversed the conviction for endangering children. See, State v. Miley

(1996), 114 Ohio App. 3d 738, 684 NE 2d 102. In Miley, the Defendant Todd Miley was

charged with felony child endangerment. According to the Fourth District Court of

Appeals Opinion, the court found the following facts relevant to the decision vacating

Miley's conviction for child endangering.

On February 19, Jessica [Miley] was again admitted toChildren's Hospital in Columbus. Doctors initially placed

Jessica in the infectious disease ward. There were nobruises or lacerations on Jessica. Jessica remained in theinfectious disease ward for 2-3 days until furtherinvestigation by her doctors revealed serious intemalinjuries. Doctors discovery that Jessica's skull, right andleft tibias, right femur, left humerus, ribs 5 and 7, pelvis,and distal right radius were all fractured. Jessica alsosuffered from subdural effusions, retinal hemorrhaging andinterhemispheric blood. The doctors were unable todetermine exactly when Jessica suffered these injuries.

The State's case consisted of testimony at trial of fourdoctors and a police detective as well as medical exhibits.The doctors uniformly agreed that Jessica suffered her frominjuries from intentional trauma: blows to the head,shaking, twisting, and pulling.

**^

The State presented no direct evidence that Miley abusedJessica, failed to protect her from abuse, or even knew ofthe abuse.

+**

The State argues that Jessica was abused by someone andthat Miley, since he cared for her at all times, eithercommitted the abuse or failed to prevent the abuse. Insupport of this theory, Detective Haybum testified thatDetty told him that she and Miley were the only ones whocared for Jessica. However, the State presented noevidence that Miley was with Jessica 24 hours of everyday. Even assuming that Detective Hayburn's testimonycan be contorted to state that Miley was near Jessica 24hours a day, we still find that the State's evidence isinsufficient.

Rather, it leads to the possibility that either Miley or Dettyabused Jessica. Reasonable doubt is present when jurorscannot say they are firmly convinced of the truth of thecharge.

8

A 50% possibility does not satisfy the standard of beyond areasonable doubt. Therefore, reasonable minds could onlyreach the conclusion that the State did not prove beyond areasonable doubt that Miley abused Jessica.

***

The State's circumstantial evidence also does not prove thatMiley recklessly violated a duty to protect Jessica fromabuse or to seek treatment for the abuse.

The State theorizes that Miley either should have been putor was on notice of possible trouble since he was withJessica 24 hours a day. There is no evidence that Mileyobserved Jessica 24 hours a day and would have seen theabuse. The State also presented no evidence that Mileydisregarded a known risk in permitting Detty or her 18-month-old son to be near Jessica. Nevertheless, Mileymight have been on notice of some possible problems. Itseems a reasonable inference that Jessica would have criedwhen the injuries were afflicted. However, if Miley was onnotice of possible problems and had a duty to investigatefurther, what would he find? Although Jessica would likelybe crying, all babies cry. There was no testimony regardinghow Jessica might react to the infliction of these seriousinjuries, and we therefore cannot assume that Jessica'scrying was not longer or louder than normal. A thoroughinvestigation would also have included checking for anyoutward signs of abuse. However, the doctor's uniformlytestified that Jessica had no marks or laceration on her.Therefore, Miley would not have been on notice of possiblechild abuse if he had investigated Jessica's cry.

State v. Miley (1996), 114 Ohio App. 3d 738, 744-745.

The Fourth District Court of Appeals, concluding that the injuries suffered by the

baby in the Miley case were horrific still reversed the judgment of conviction as to Miley

because the state failed to provide sufficient evidence to prove its case beyond a

reasonable doubt that Miley was guilty of child endangering.

9

Likewise, the case before this court is almost identical to State v. Miley in as

much as there were no visible injuries to AJ; Jeremy was not in the only caregiver for AJ;

and the doctors could not testify as to the mechanism of injury to AJ. Therefore,

Jeremy's conviction for felonious assault and child endangering must be reversed.

Other Ohio courts that have addressed the issue of involving allegations of shaken

baby syndrome have found in the record additional evidence that evidence that pointed to

the Defendant as having caused the injuries to the babies in those cases. First, in State v.

Collins, the First District Court of Appeals rejected the Defendant's claim that there was

insufficient evidence to convict him of harming the child involved in that case. See, State

v. Collins, (Ohio App. 1 Dist.), 2004-Ohio-2274. The Court of Appeals in Collins, cited

to the following evidence in rejecting Collins' claim that there was insufficient evidence

to convict him of felonious assault and child endangering:

{¶32} The State further offered evidence that Jaevon'scrying had frustrated Collins, and that, on severaloccasions, Collins had gotten angry and thrown things,eventually leaving the apartment. Collins felt that Tu hadspoiled Jaevon by giving him attention when he cried.

{133} The State also presented evidence from Tu thatCollins had shaken Jaevon twice, asking the baby why hewas crying and saying the baby had no reason to keepcrying. Tu demonstrated on videotape how she had seenCollins shake the baby. Several weeks later, she wrote in aletter to Collins she had "only told the truth for our son"about what she had seen Collins do.

{¶34} Finally, the state offered evidence that Jaevon'sinjuries were first noticed early on Wednesday morning,and that Collins had been the sole caretaker for Jaevon- forthe first time ever-for the entire day on Monday and alsofor several hours on Tuesday.

{¶35} We conclude that a rational factfinder, viewing theevidence in a light most favorable to the state, could have

10

found that the state had proved beyond a reasonable doubtthat Collins had committed the offenses of endangeringchildren and felonious assault. Therefore, the evidencepresented was legally sufficient to sustain Collins'sconvictions.

In direct contrast to the evidence presented in the Collins' case supra, the

evidence against Jeremy is completely lacking. (This assumes that AJ suffered injuries at

the hands of another person and the injuries were not caused by the hydrocephalic

condition.) Jeremy was seen as a good and caring caregiver to AJ. Jeremy cared for AJ

several times alone. Jeremy was also not the only person who cared for AJ. In addition,

there was an almost two week period of time where Jeremy was away from town while

AJ became sick. No evidence points directly or circumstantially to Jeremy as having

caused injuries to AJ in this case.

The Ninth District Court of Appeals also considered a similar case to the one

presented herein and reviewed the circumstances surrounding shaken baby syndrome.

See, State v. Morris, (Ohio App. 9 Dist.), 2005-Ohio-1136. The Ninth District Court of

Appeals held that:

{¶58} The trigger for shaken baby syndrome is`uncontrollable crying'. When a caretaker cannot comforta crying baby, they become frustrated and `when thefrustration escalates, the violence of the shaking babysyndrome occurs, with the care provider being angry andfrustrated * * * and the violence of the shaking occurs.'The shaking stops the crying `because the brain is injuredto the point that the crying stops and the child isunconscious.'

As can be seen from the Morris opinion from the Ninth District Court of Appeals,

none of those factors or circumstances were present in Jeremy's trial. There was no

evidence that AJ was colicky. There was no evidence that AJ's brain becarne injured to

11

the point that she became unconscious: Neither doctor from the Cleveland Clinic testified

that AJ became unconscious at any point in time during her treatment as a result of any of

the injuries.

Dr. Scheller, who was called on behalf of the defense, testified distinctly that

there were three types of injuries lacking from AJ that support shaken baby syndrome.

There were no broken arms; there was no neck injury; and there was no injury to the

brain itself. In support of Dr. Scheller's conclusion that AJ suffered from the

hydrocephalic condition was the fact that AJ's head grew dramatically from 35.75cm at

her two-week old doctor's appointment to 41.75cm at her two-month old doctor's

appointment, putting her head size in the 97`h percentile for babies her age-a

dramatically rate of growth.

Therefore, Jeremy was denied due process of law when he was convicted based

upon insufficient evidence.

CONCLUSION

WHEREFORE, the defendant-appellant respectfully requests this Honorable

Court to accept the above appeal and reverse his convictions.

12

Resp^ ubmitte

sfiETT )1k. &&OdO'coo1ila.8Attorney f br Defendarit-Pefitioner

1360 East Ninth Street

1000 IMG CenterCleveland, Ohio 44114Phone: 216-241-8333Fax: 216-241-5890bmancinogres-law.com

CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction has been served

upon the following on this 2d day of August 2010:

Dennis Watkins, Esq.Triunbull County Administration Bldg., 4th Floor

160 High Street, NWWarren, Ohio 44481Attornev-for Plaint

Attordt^ey for Deferldant-Petitioner

13

STATE OF OHIO,

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

OPINION

Plaintiff-Appellee,

FlLE®COURTOFAPPEALS

JUN 2 I 2010

TRUMBULLCOUNTY,OHKAREN INFANTEALLEN, CLERK

CASE NO. 2009-T-0091-vs-

JEREMY T. HENDREX,

Defe n d a n t-Ap pe l l a nt.

Criminal Appeal from the Court of Common Pleas, Case No. 07 CR 750.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, AssistantProsecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH44481-1092 (For Plaintiff-Appellee).

Brett Mancino, 1000 IMG Center, 1360 East Ninth Street, Cleveland, OH 44114 (ForDefendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

f¶1} Appellant, Jeremy T. Hendrex, appeals his conviction, following a jury trial,

by the Trumbull County Court of Common Pleas of child endangering and felonious

assault committed against his two-month old daughter. Appellant's commission of

these crimes resulted in multiple skull fractures, severe brain injury, and permanent

blindness. Appellant challenges the sufficiency and weight of the evidence and raises

certain procedural objections. For the reasons that follow, we affirm.

{1[2} Appellant was indicted for child endangering resulting in serious physical

harm, a felony of the second degree, in violation of R.C. 2919.22(B)(1) and (E)(1)(2)(d),

and felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1)

and (D)(1). Appellant pled not guilty and the case was tried to a jury between July 6,

2009 and July 13, 2009.

{113} Shari Jarome testified she met appellant during the summer of 2002,

when they were both working at Cedar Point. They started dating at that time and,

shortly thereafter, moved in together in Sandusky. In 2004, they left their employment

with Cedar Point, and moved to the Youngstown area where Shari's family resides.

Shari and appellant lived together in Youngstown and then in Girard. In the summer of

2006, they started living in a trailer in Weathersfield Township.

{¶4} After living with appellant for four years, in November 2006, Shari became

pregnant. In April 2007, Shari began working as a van driver for Niles Trumbull Transit.

Appellant was unemployed and his sole source of income was selling cookbooks on

eBay that he had purchased at flea markets and auctions. Appellant sold these items

from the couple's trailer.

{¶5} Shari continued working until the day before she gave birth to the couple's

child Alyssa Jarome on July 12, 2007. Shari returned to work with Niles Trumbull

Transit three weeks after Alyssa was born. Her job was part-time with no benefits so

she applied for and obtained public assistance with the Trumbull County Department of

Job and Family Services. Soon after Alyssa was born, Job and Family Services notified

appellant of a hearing to determine his child support obligation as Alyssa's father.

2

Appellant told Shari he did not want to pay child support and to tell Job and Family

Services she did not want any support from him.

{¶6} While Shari was pregnant, appellant told her he was going to a "family

reiininn" in Kansas where his familv lives. Shariwas not invited. He left for that alleged

reunion on Wednesday, September 5, 2007, driving Shari's truck, and said he would be

back in one week. Shari later learned that appellant had been living a double life.

There was no family reunion. In fact, appellant was planning to return to Sandusky to

marry Dawn Marie, a woman he had been dating for 11 years and to whom he had

been engaged for the past two years, and then to go on a honeymoon with her in

Georgia.

{¶7} On the day after appellant left town, Thursday, September 6, 2007, Shari

took Alyssa to her pediatrician because Alyssa was spitting up. The doctor told Shari to

give Alyssa pedialyte for one day and thereafter to dilute her formula with one-half bottle

of water. By the end of the week, Alyssa was fine. On the following Friday, September

14, 2007, Shari took Alyssa for a well care visit and the doctor found Alyssa was doing

fine.

{¶8} After being gone for two weeks, appellant returned from his "family

reunion" on Tuesday, September 18, 2007. He never told Shari about the real purpose

of his trip, and simply resumed his routine of selling items on eBay and watching Alyssa

during the day while Shari was at work

{¶9} Shari was not working on Friday, September 21, 2007, and on that

morning, she, appellant, and Alyssa went out to breakfast. While at the restaurant,

Alyssa threw up and Shari gave her pedialyte. By the time Alyssa went to sleep that

3

night, she was better. Alyssa slept through the night in the living room in her playchair

and Shari slept on the couch next to her. Appellant and Shari were alone with Alyssa

that entire day and night. On the following morning, Saturday, September 22, 2007,

Shari woke up at about 5:30 a.m. because she heard Alyssa playing and giqgling. She

gave Alyssa a bottle of diluted formula, which she drank without incident, and then

Alyssa fell asleep in her playchair. Shari put Alyssa's chair in the bedroom with

appellant, who was sleeping on the couple's bed, and left for work.

{¶10} Appellant was alone with Alyssa during the entire day. Shari returned

home from work at about 5:00 p.m. At that time Alyssa was sleeping. Shari picked up

the family's laundry and washed clothes at the laundromat. She returned home at

about 7:30 p.m. Appellant was at the computer and Alyssa was sleeping on the couch.

Alyssa planned to meet her three sisters for a drink that evening at a nearby bar. While

waiting for one of her sisters to pick her up, Shari gave Alyssa a bottle of diluted formula

and she drank one-half of it. Shari held Alyssa and, while holding her, Alyssa's arms

shaked for a few seconds and then she appeared to be fine.

{¶11} Shari's sister picked her up at about 9:00 p.m. They went to the bar and

Shari's sister took her home at about 11:30 p.m. Shari gave Alyssa a bottle of diluted

formula, but she threw it up. While Shari was changing Alyssa's clothes, she started

shaking again. This was different, however, from the earlier incident because, this time,

both Alyssa's arms and legs were shaking. As a result, Shari took Alyssa to St.

Joseph's Hospital Emergency Room. Appellant did not go with them because, as he

told Shari, "[h]e's never liked going to hospitals."

4

{¶12} Upon arrival at the hospital, Alyssa started shaking and a doctor there told

Shari Alyssa was having a seizure. Hospital staff was unable to get Alyssa's seizures

under control so at about 4:30 a.m., on Sunday, September 23, 2007, Shari and Alyssa

were life-flighted to the Cleveland Clinic. Upon arrival, Shari called appellant and told

him about Alyssa's condition, but he did not come to the Clinic until the following

evening. After taking a CAT scan, doctors told Shari that Alyssa had bleeding in her

brain, which was caused by severe trauma.

{¶13} Alyssa was in the neonatal intensive care unit for two and one-half weeks

and then for one week in the pediatric intensive care unit. She then went to the

rehabilitation center at the Cleveland Clinic, where she stayed until October 31, 2007.

After her release from the Cleveland Clinic, Alyssa stayed with Shari's sister until

September 2008. Thereafter, she was returned to Shari, with whom she currently

resides.

{¶14} Shari stayed at the Cleveland Clinic with Alyssa until October 16, 2007. At

first appellant did not stay there with them. Later, after he talked to police, appellant

started to stay with Shari and Alyssa because, appellant said, the police told him they

would be watching him.

{¶15} Shari testified that at the time of trial, Alyssa was almost two years old. As

a result of her injuries, she is completely blind. She is responsive to verbal commands,

but can only speak about ten words.

{¶16} Diane Harris, caseworker with Trumbull County Children Services,

testified that Alyssa's case was referred to her in September 2007. She and Mark

Massucci, investigator with Children Services, interviewed appellant twice at the

5

Weathersfield Township Police Department. Prior to each interview, he was Mirandized

by Weathersfield Police Captain Naples, but Ms. Harris and Mr. Massucci conducted

the interviews. On September 26, 2007, when asked how Alyssa could have sustained

such severe injuries while he was alone with her, appellant told them there were only

two times he was with Alyssa when she might have been injured. The first incident

occurred when he took Alyssa out of the bathtub and she hit her head on the spigot.

The second occurred when he was holding Alyssa on his lap and she slipped through

his legs and he caught her, but she hit her head and was crying. He said that both

incidents occurred sometime before Alyssa was taken to the hospital, and that there

were no other incidents in which Alyssa could have sustained these injuries.

{¶17} Thereafter, on October 5, 2007, appellant was again interviewed by Ms.

Harris and Mr. Massucci. He admitted he was alone with Alyssa the entire day prior to

Shari taking her to the hospital. When asked how Alyssa could have sustained her

injuries, appellant repeated the bathtub and slipping-from-the lap incidents. However,

this time, he added a third incident. He said that during the afternoon prior to Shari

taking Alyssa to the emergency room, he was going to put her down on the couch. He

boxed her in with pillows so she would not fall, but she slipped and landed on the back

side of the cushions, but he did not know if Alyssa hit her head on the couch. He said

this was all that happened. When Ms. Harris asked appellant if he had ever thrown

Alyssa, as one of the doctors had suggested, he said he never had.

{¶18} Ms. Harris again interviewed appellant on October 13, 2007, and on that

occasion, for the first time, he told her about a fourth incident in which he was involved,

which, he said, might have caused Alyssa's injuries. He said that on the day Alyssa

6

went to the hospital, he was carrying her in the living room when he tripped on an

electrical cord and Alyssa fell and hit her head on the back of the couch, which has a

wooden frame.

{¶19} Shari testified that after Al,vssa had been at the hospital for three weeks,

on October 16, 2007, appellant came to the Cleveland Clinic and for the first time, told

her that he had been involved in a series of incidents with Alyssa in which she may

have sustained her injuries. Shortly thereafter, appellant was arrested by Weathersfield

Township Police. He called Shari from the jail several times, telling her he wanted her

to post bond for him, but she refused.

{¶20} Dr. Gary Hsich, a pediatric neurologist with the Cleveland Clinic, testified

that upon arrival at the hospital, Alyssa's seizures were so severe that she had to be on

three different types of medications to control them. She also had significant brain

injury, which required her to be on life support. CAT scans revealed that Alyssa had

sustained two separate skull fractures. One was at the back of her skull in the occipital

bone. Dr. Hsich testified that this is a relatively strong bone, which is difficult to fracture.

He said that a significant traumatic injury would have been required to cause this

fracture. There was also a second skull fracture near the top of her head on the right

side in the parietal bone. Alyssa also had an injury and bleeding in her head and brain,

severe swelling inside the brain near the parietal fracture, and multiple retinal

hemorrhages. The back of Alyssa's skull expanded due to the severe brain swelling,

and when the swelling eventually went down, this section of her skull retracted more

than other areas of the skull so there is now a permanent deformity because that

section of the skull has a deep depression. Dr. Hsich also testified that the trauma that

7

injured parts of Alyssa's brain caused those brain cells to die and they will never

regenerate. He testified that, despite Alyssa's severe internal injuries, he did not see

any external bruising, which sometimes occurs in such cases.

{¶21} Dr. Hsich testified that, due to the Alyssa's significant brain injuries, she

will have permanent developmental problems, learning disabilities, and difficulty walking

and talking. Also, she will always be at risk for seizures.

{¶22} He also testified that Alyssa's injuries were acute, i.e., they were inflicted

within the past few hours or at most within the past 24 hours. This determination was

made in part due to the presence of fresh or acute blood in Alyssa's brain. He said this

trauma triggered all these injuries, including the subdural bleeding, severe seizures, and

retinal hemorrhages. He said that victims who sustain such severe injuries would

experience a progression of symptoms. At first, they would be sleepy and groggy,

difficult to arouse, and experience vomiting. Then, as the swelling gets worse and there

is more bleeding, they would develop seizures and be less responsive.

{¶23} In describing Alyssa's course of treatment, Dr. Hsich testified that doctors

in the intensive care unit stabilized her breathing, blood pressure and seizures. The

neurosurgeons removed fluid and blood that was putting pressure on her brain. This

required drilling holes on each side of Alyssa's head and removing fluid to reduce the

swelling and pressure in her brain.

{¶24} Dr. Hsich testified that, due to Alyssa's two separate skull fractures, the

bleeding in her brain, her severe seizures, and retinal hemorrhages, it was his opinion,

to a reasonable degree of medical certainty, that traumatic injury in the form of child

abuse caused Alyssa's injuries and that her injuries were not accidental. Moreover, this

8

was not a case of just "shaken baby syndrome" because Alyssa sustained traumatic

injury as evidenced from her two skull fractures. He opined that she sustained a recent

impact injury, which means that her head was struck by some hard object. Dr. Hsich

said, °(blased on the severitv of [Allvssa's injuries, the multiple skull fractures and the

retinal hemorrhages, *** whatever this impact was, had to be quite significant."

{¶25} Dr. Hsich testified that nothing in Alyssa's pediatric records, which he had

reviewed, explained her injuries. Alyssa had seen her pediatrician twice within two

weeks prior to her admission to Cleveland Clinic. There were no serious problems and

Alyssa's development was good

{11[[26} Dr. Jonathon Sears, ophthalmologist and retina specialist with the

Cleveland Clinic, examined Alyssa in September 2007. He said she had hemorrhages

in every quadrant of the retina in both eyes. He said that because both eyes had a

similar finding, that means that some external trauma caused these injuries. Dr. Sears

testified that Alyssa also had a retinal detachment in one eye, and Alyssa will never

again have vision in that eye. He said the finding of retinal detachment also indicated a

traumatic origin to the injury in Alyssa's eye that was consistent with a direct blow to the

eye. He said the type of retinal hemorrhages Alyssa sustained in all four quadrants of

both eyes and the hemorrhages that surrounded the optic nerve indicate a degree of

severity almost always associated with shaken baby syndrome.

{1[27} Dawn Marie Hendrex testified for the defense. She said she had dated

appellant for eleven years when they were married in Sandusky on September 8, 2007.

She found out about Shari because on a prior occasion, she went to appellant's house

in Sandusky and found that Shari was living there with him. Dawn Marie testified she

9

and appellant were engaged for two years before they were married and she did not

know appellant was still with Shari. She said appellant led her to believe he had broken

up with Shari three years earlier. When appellant left Sandusky after their honeymoon,

Dawn Marie understood he was poing back to work because appellant told her he had a

job that required him to travel. She did not know that, in fact, he was unemployed. A

few weeks later, after Shari refused to post appellant's bond, appellant's sister called

.Dawn Marie and told her appellant was in jail in Warren and needed bail. Dawn Marie

then called a bondsman and came up with $2,000 to get appellant out of jail. When she

learned about the charges, she had no idea appellant had a baby or that he was still

seeing Shari. Dawn Marie then e-mailed Shari and told her she and appellant were

married. Despite this history of lies and deceit, Dawn Marie decided to "stand by" her

man because she "had this feeling from above" that she was meant to stay with him.

{¶28} Appellant testified, offering for the first time at trial new details concerning

his throwing Alyssa on the couch. He said that at about noon of the day Alyssa went to

the hospital, as he walked from the kitchen to the living room holding her, he tripped on

a rug that had "bunched up" because there was an electrical cord underneath it. He

said Alyssa flew out of his arms. He did not want to fall on her so he threw her to the

couch. She flew three feet, hit the couch, and her head bounced back and hit the wood

frame of the couch. He said the frame was exposed because he had previously taken

the back pillows off the couch so they would not flip over on Alyssa and suffocate her.

He said Alyssa landed on her back, and when she hit the couch he heard a "thump."

Alyssa was crying, but he did not think any medical attention was necessary because

he thought she had just bumped her head. Appellant said that when Shari took Alyssa

10

to the hospital that night, he did not go because he thought it was just a routine check-

up. Appellant said he did not tell the Children Services investigators about throwing

Alyssa to the couch during either the first or second interview because he was "scared."

However, he did not explain whv he did not disclose this to Shari for three weeks after

she took Alyssa to the hospital or to the doctors at St. Joseph's Hospital and the

Cleveland Clinic, who were desperately trying to safe Alyssa's life.

{¶29} The jury returned its verdict finding appellant guilty of both counts as

charged in the indictment. The trial court sentenced appellant to eight years in prison

on each count. The state moved to merge the two counts as allied offenses and the

court granted the motion.

f¶30} Appellant appeals his conviction, asserting four assignments of error.

Because the first two are interrelated, we shall consider them together. They allege:

{¶31} "[1.] The defendant appellant was denied his right to due process of law

when he was convicted for felonious assault and child endangering based upon

insufficient evidence and it was plain error for trial counsel not to have renewed a

motion for judgment of acquittal at the close of the evidence.

{¶32} "[2] The defendant appellant was denied due process of law when he was

convicted of felonious assault and child endangering against the manifest weight of the

evidence."

{¶33} An appellate court reviewing the sufficiency of the evidence examines the

evidence admitted at trial and determines whether, after viewing the evidence most

favorably to the state, the jury could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 273.

11

"On review for sufficiency, courts are to assess not whether the state's evidence is to be

believed, but whether, if believed, the evidence against a defendant would support a

conviction." State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52 (Cook, J.,

r.nnci irring)

{¶34} "'[S]ufficiency' is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law." Thompkins, supra, at 386, citing

Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for

judgment of acquittal can be granted by the trial court if the evidence is insufficient to

sustain a conviction). "In essence, sufficiency is a test of adequacy. Whether the

evidence is legally sufficient to sustain a verdict is a question of law." Thompkins,

supra. See, also, State v. Robinson (1955), 162 Ohio St. 486.

{¶35} The Supreme Court of Ohio in Jenks, supra, held:

{¶36} "Circumstantial evidence and direct evidence inherently possess the same

probative value. In some instances certain facts can only be established by

circumstantial evidence. Hence, we can discern no reason to continue the requirement

that circumstantial evidence must be irreconcilable with any reasonable theory of an

accused's innocence in order to support a finding of guilt. *** Since circumstantial

evidence and direct evidence are indistinguishable so far as the jury's fact-finding

function is concerned, all that is required of the jury is that it weigh all of the evidence,

direct and circumstantial, against the standard of proof beyond a reasonable doubt.

Nothing more should be required of a factfinder." (Citations omitted.) Jenks, supra, at

272.

12

{¶37} There is a fundamental distinction between a challenge to the sufficiency

of the evidence and a challenge to the weight of the evidence. The legal concepts of

sufficiency of the evidence and weight of the evidence are quantitatively and

qualitativelv different from each other. Thompkins, supra, at 386.

{¶38} A court reviewing the manifest weight observes the entire record, 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. State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994

Ohio App. LEXIS 5862, *14 -*15. "The discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." State v. Martin (1983), 20 Ohio App.3d 172, 175. An appellate court must

defer to the factual findings of the jury regarding the weight to be given the evidence

and credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, at

paragraph one of the syllabus. When examining witness credibility, "[t]he choice

between credible witnesses and their conflicting testimony rests solely with the finder of

fact and an appellate court may not substitute its own judgment for that of the finder of

fact." State v. Awan (1986), 22 Ohio St.3d 120, 123. The factfinder is free to believe

all, part, or none of the testimony of each witness appearing before it. State v. Brown,

11th Dist. No. 2002-T-0077, 2003-Ohio-7183, at 753. Moreover, if the evidence admits

to more than one interpretation, a reviewing court must interpret it in a manner

consistent with the verdict. Id.

13

{¶39} Before addressing appellant's sufficiency argument, we note he failed to

renew his motion for directed verdict after presenting his case. We also note that in his

first assignment of error, appellant alleges that, in failing to renew his motion after he

presented his defense, his attornev committed plain error. For there to be plain error,

there must first be an error, i.e., a deviation from a legal rule. State v. Payne, 114 Ohio

St.3d 502, 505, 2007-Ohio-4642. The error to which appellant refers was not renewing

his motion for acquittal at the end of his case. He therefore concedes he waived the

argument on appeal. Further, we note that "[t]he burden of demonstrating plain error is

on the party asserting it." State v. Porter, 178 Ohio App. 3d 304, 317, 2008-Ohio-4627,

citing State v. Jester (1987), 32 Ohio St.3d 147, 150; State v. Hill, 92 Ohio St.3d 191,

203, 2001-Ohio-141. In his argument in support of his first assigned error, appellant

failed to demonstrate or even argue plain error. In the circumstances of this case, with

appellant contending on appeal that his trial counsel erred in this regard, we hold

appellant waived his Crim.R. 29 motion by not renewing it at the close of the evidence.

However, even if appellant had not waived the argument, it would not be well-taken.

{1[40} In order to convict appellant of endangering children, the state was

required to prove that he recklessly abused a child and that the child abuse resulted in

serious physical harm. In order to convict appellant of felonious assault, the state was

required to prove appellant knowingly caused serious physical harm to Alyssa.

Appellant does not dispute that Alyssa sustained serious physical harm. Instead, he

argues the evidence was insufficient to prove that he inflicted the baby's injuries.

Specifically, he argues that no direct testimony was presented that appellant knowingly

14

or recklessly injured Alyssa. However, as the Eighth Appellate District held in State v.

Woodson, 8th Dist. No. 85727, 2005-Ohio-5691:

{¶41} "`*** [I]t is not unusual that evidence of shaken baby syndrome may be

primarilv n_.irr_.iimgtantial, especiallv where a child is in the sole custodv of one adult at

the time the injuries are sustained. See [State v.] Gulertekin, [(Dec. 3, 1998), 10th Dist.

No. 97APA12-1607, 1998 Ohio App. LEXIS 5641] (sufficient circumstantial evidence to

support conviction of child endangering where an infant suffered injuries consistent with

shaken baby syndrome while entrusted to the defendant's care); State v. Williams,

(1992) Ohio App. LEXIS 1010 (Mar. 5, 1992), Franklin App. No. 91AP-653, unreported

(sufficient circumstantial evidence to support conviction of child endangering where

there was medical expert testimony that an infant was injured as the result of abuse and

where the defendant was the primary caretaker of the infant immediately [preceding] the

manifestation of.the infant's injuries) *'*."' Woodson, supra, at ¶53, quoting State v.

Brooks, 10th Dist. No. OOAP-1440, 2001 Ohio App. LEXIS 4310,*18-*19.

{¶42} Appellant argues the instant case is virtually indistinguishable from State

v. Miley (1996), 114 Ohio App.3d 738, and that, like the Fourth District in that case, we

should reverse appellant's conviction. However, except for the injuries sustained by the

child in Miley, the circumstances in that case are distinguishable from the facts in the

instant case. First, while the doctors in Miley were unable to determine when the

injuries were inflicted on the child, here, Dr. Hsich testified that Alyssa's injuries were

acute and that they were inflicted within the past few hours or at most within the past 24

hours. Next, while there was no evidence in Miley that the defendant was with the child

24 hours a day and would have seen the abuse, here, appellant admitted that during the

15

relevant time, i.e., within the past 24 hours, he was Alyssa's sole caregiver except for

the brief periods outlined above at which time only appellant and Shari were with the

baby. There is no evidence or even argument that Shari harmed the baby during the

relevant time or at anv nthPr time.

{1[43} Further, unlike in Miley, appellant was under the pressure of leading a

double life with two different women, neither of whom was aware of his involvement and

life with the other. This pressure led him to constantly lie to each partner about his life

away from her. Dawn Marie testified appellant misled her concerning his alleged job

and the alleged break-up of his relationship with Shari three years earlier. She testified

appellant concealed from her his ongoing relationship with Shari and even the existence

of the couple's two-month old baby. Likewise, Shari testified appellant lied to her about

the reason for his long absence in September 2007 and concealed his marriage to

Dawn Marie, which took place when Alyssa was less than two months old. Appellant

was also facing increased financial stress because he had no job and did not want to

pay child support. While appellant was able to maintain this double life for the last three

years, his recent marriage to Dawn Marie would soon force him to choose between his

life with Dawn Marie and his life with Shari and Alyssa.

f¶44} Further, unlike in Miley, appellant provided four different versions of how

Alyssa sustained her injuries. Significantly, appellant concealed the fourth and most

incriminating version of events for three weeks from authorities and the hospital doctors,

who were then attempting to safe the baby's life. In appellant's fourth version, he

admitted he intentionally threw Alyssa a distance of three feet to the couch; that her

head bounced back and hit the wood frame of the couch; that when her head hit the

16

wood, he heard a thump; and that at the time Alyssa was crying and appellant did

nothing to help her. It is well-settled that evidence of an accused's concealment of

incriminating facts is admissible to show his consciousness of guilt. State v. Williams,

79 Ohio St.3d 1, 11, 1997-Ohin-407. Appellant's concealment of this information is

strong circumstantial evidence of guilt.

{¶45} We note that the Fourth District distinguished its holding in Miley in a later

child abuse case, State v, Meadows, 4th Dist. No. 99CA2651, 2001 Ohio App. LEXIS

3120, 2001-Ohio-2510, as follows:

{¶46} "We find that the case sub judice is distinguishable from Miley. In Miley,

the state was unable to establish a specific period of time during which the abuse

occurred. Here, Dr. Buerger testified that [the abused child] Natasha sustained her

injuries no more than twenty-four hours before she died. On the day before her death,

there is no indication that anything was wrong with Natasha before Tabitha went to the

pawnshop. When Tabitha returned from the pawnshop, however, Natasha was

complaining of stomach pain. While Tabitha was away, the evidence indicates that

appellant was the only one who was alone with Natasha." Meadows, supra, at *33.

{1147} In summary, the state offered the testimony of two Cleveland Clinic

physicians, each of whom testified that Alyssa's injuries were the result of an inflicted

head injury or shaken baby syndrome and not an accident. Further, the jury was

entitled to infer that appellant, as the sole caregiver at the time Alyssa became

symptomatic, was the person responsible for inflicting the injuries to her head. Finally,

the state presented sufficient evidence to establish that appellant acted knowingly and

recklessly when he injured his daughter. Appellant admifted that he intentionally, i.e.,

17

purposely, threw Alyssa three feet toward a couch that, according to his admission, he

knew had its wood frame exposed and thus would have been dangerous to the baby.

When recklessness or knowledge suffice to establish an element of an offense, then

purpose is also sufficient culpability for such element. R.C. 2901.22(E).

{¶48} Accordingly, in construing the evidence in a light most favorable to the

prosecution, we hold that sufficient evidence was presented for the jury to conclude

beyond a reasonable doubt that appellant was guilty of child endangering and felonious

assault.

{¶49} In support of his manifest-weight challenge, appellant argues that his

private expert Dr. Joseph Scheller testified there was no evidence that Alyssa had been

traumatized, either accidentally or intentionally, because, he claims, Alyssa did not have

any broken limbs, there were no neck injuries, and there was no injury to the brain.

However, appellant ignores Dr. Hsich's testimony that this was not merely a case

involving shaken baby syndrome because the perpetrator of this unspeakable horror

also, by the means of a hard object, fractured Alyssa's skull in two separate places.

Appellant also ignores Dr. Hsich's testimony that it was his opinion, to a reasonable

degree of medical certainty, that, due to Alyssa's two separate skull fractures, the

bleeding inside her head, her severe seizures, her brain injury, and her retinal

hemorrhages, it was traumatic injury in the form of child abuse that caused Alyssa's

devastating injuries.

{¶50} Appellant also argues that the jury should have accepted his expert's

opinion that Alyssa suffered from hydrocephalus, which is excess spinal fluid around the

brain, rather than child abuse. However, Dr. Hsich's testimony directly contradicted

18

appellant's expert. Dr. Hsich testified that Alyssa did not suffer from hydrocephalus

because such children do not present with seizures, and they do not have skull

fractures or retinal hemorrhages. Dr. Hsich also testified that, while the size of Alyssa's

head was in the upper percentile, many children change percentiles in the first few

months after their birth. We note that Dr. Scheller's opinion that Alyssa sustained no

trauma contradicts appellant's explanation of the cause of Alyssa's injuries. Appellant

admitted at trial that he threw Alyssa toward a couch that he knew had its wood frame

exposed; that Alyssa hit the couch and her head bounced back and hit the wood frame

of the couch; that Alyssa landed on her back and when she hit the couch, he heard a

thump and she was crying.

{¶51} We observe that appellant's expert never examined Alyssa, while Alyssa

is a patient of both Dr. Hsich and Dr. Sears. Moreover, Dr. Scheller's expert services

have been confined to providing testimony solely on behalf of the defense. Further,

while Dr. Scheller conceded that four physicians noted Alyssa's skull fractures on the

CAT scan, Dr. Scheller testified that, in his opinion, Alyssa's skull was not fractured. Dr.

Scheller's testimony stood in stark contrast to the testimony of two independent experts

from the Cleveland Clinic, who were at least equally, if not more, qualified than Dr.

Scheller. The jury as the trier of fact was entitled to believe the state's experts and to

reject the opinion of appellant's privately-retained expert, as it obviously did.

{¶52} Based upon our thorough and complete review of the record, we cannot

say that, in resolving the conflicts in the testimony in favor of the state, the jury clearly

lost its way and created such a manifest miscarriage of justice that appellant was

entitled to have his conviction reversed

19

{¶53} Appellant's first and second assignments of error are overruled.

{¶54} For his third assigned error, appellant claims:

{1155} "The defendant appellant was denied due process of law and prejudiced

when the trial court failed to provide a written copy of the jury instructions a violation

[sic] of Ohio Rule of Criminal Procedure 30."

{¶56} Appellant does not argue that any of the trial court's instructions were

erroneous or that the court failed to instruct the jury on all relevant issues. Further,

appellant concedes that the trial court reduced its instructions to writing and that they

are in the record. Instead, appellant argues the trial court failed to provide the jury with

a written copy of its instructions, as required by Crim.R. 30.

{¶57} However, we note from our review of the record that appellant never

objected to this alleged failure and he does not allege plain error. The argument is

therefore waived on appeal. Awan, supra, at 122. The general rule is that "'an

appellate court will not consider any error which counsel for a party complaining of the

trial court's judgment could have called but did not call to the trial court's attention at a

time when such error could have been avoided or corrected by the trial court."' Id., citing

State v. Childs (1968), 14 Ohio St.2d 56, at paragraph three of the syllabus.

{¶58} Further, even if appellant had not waived his right to assert this assigned

error, he failed to cite the record in support of this argument, in violation of App.R.

16(A)(7). For this additional reason, his argument lacks merit. We also note that,

based on our review of the record, there is no evidence to support appellant's argument

that the trial court failed to give a copy of the charge to the jury. In fact, the court made

a comment to the jury during the charge to the jury, which strongly suggests the court

20

did give a copy of the charge to them. During the jury instructions, the court told the

jury: "You will have in the jury room two verdict forms, one factual question. I will now

read the forms to you. By the way, you're also going to have the instructions." An

appellate court, in determining the existence of error, is limited to a review of the record.

State v. Sheldon (Dec. 31, 1986), 11th Dist. No. 3695, 1986 Ohio App. LEXIS 9608, *2;

Schick v. Cincinnati (1927), 116 Ohio St. 16, at paragraph three of the syllabus.

Without any evidence in support of appellant's assignment of error, there is nothing for

us to consider. On appeal it is the appellant's responsibility to support his argument by

evidence in the record that supports his or her assigned errors. City of Columbus v.

Hodge (1987), 37 Ohio App.3d 68. Without evidence in support of an assigned error,

we are bound to presume the regularity of the proceedings. State v. Yankora (Mar. 16,

2001), 11th Dist. No. 2000-A-0033, 2001 Ohio App. LEXIS 1230, *6. Because the

record in the case sub judice does not evidence that the trial court failed to give a copy

of the charge to the jury, we must presume the regularity of the proceedings below and

that the court gave a written copy of the charge to the jury.

{¶59} Appellant's third assignment of error is overruled.

{¶60} Appellant contends for his fourth assignment of error:

{¶61} "The trial court erred to the prejudice of the defendant/appellant and

denied the defendant/appellant his right to present a defense when it excluded defense

exhibits B, C, and D."

{¶62} Appellant argues the trial court erred in excluding three of his trial exhibits.

This court has held that an appellate court reviews the trial court's admission or

exclusion of evidence for an abuse of discretion. State v. McArthur, 11th Dist. No.

21

2006-L-260, 2007-Ohio-7133, at ¶43, citing State v. Ahmed, 103 Ohio St.3d 27, 40,

2004-Ohio-4190. "The term `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. Adams (1980), 62 Ohio St.2d 151, 157.

{¶63} First, appellant argues that Exhibit B, which he states is Dr. Scheller's

report, should have been admitted in evidence. However, Exhibit B is not Dr. Scheller's

report. It is the doctor's curriculum vitae. Dr. Scheller's report was admitted in evidence

as Exhibit A. This argument is therefore moot and lacks merit. We also note that Dr.

Scheller testified at length regarding his credentials. As a result, even if appellant

meant his argument to refer to his expert's curriculum vitae, which was not admitted in

evidence, any error resulting from the trial court's exclusion of this exhibit from the

evidence would have been harmless beyond a reasonable doubt.

{¶64} Next, appellant argues that Exhibit C was appellant's drawing depicting

how he threw Alyssa to the couch, and should have been admitted to illustrate his

testimony. However, appellant did not make this drawing; his trial counsel did. We also

note that counsel's drawing was demonstrative in nature, like a witness' drawing of an

accident scene on a chalk board, and was not intended to be an accurate or scale

drawing of the living room. As a result, the trial court did not abuse its discretion in

excluding this exhibit. In any event, appellant testified regarding this event and his

counsel's drawing and, moreover, numerous photographs were admitted in evidence

depicting the couch and the general area where appellant allegedly tripped and threw

Alyssa to the couch. Thus, even if the court abused its discretion in not admitting this

exhibit, any error would have been harmless.

22

{¶65} Finally, appellant argues that a timeline he created showing his activities

between July 24, 2007 and September 18, 2007, when he was absent from Trumbull

County and not with Alyssa, should have been admitted in evidence. However, it was

undisputed below that any trauma resulting in Alyssa's injuries occurred within 24 hours

of her arrival at St. Joseph's Hospital. As a result, evidence of appellant's activities prior

to midnight on September 22, 2007 was irrelevant. The timeline was therefore

inadmissible. Further, appellant's trial counsel suggested to the court that the purpose

of the timeline was merely to assist appellant in remembering the dates on which he

was absent from his trailer. Writings used to refresh a witness' memory pursuant to

Evid.R. 612 are not admissible in evidence. See 1 Giannelli & Snyder, Evidence (1996)

477-478, 574-575; Dayton v. Combs (1993), 94 Ohio App.3d 291, 298; State v. Ba(lew

(1996), 76 Ohio St.3d 244, 254. The timeline was therefore inadmissible for this

additional reason. In any event, the trial court permitted appellant to use the timeline to

assist him in remembering the events listed thereon. As a result, even if appellant was

entitled to have his timeline admitted in evidence, any error resulting from its exclusion

would have been harmless.

{¶66} Appellant's fourth assignment of error is overruled.

{¶67} For the reasons stated in the Opinion of this court, appellant's

assignments of error are without merit. It is the judgment and opinion of this court that

the judgment of the Trumbull County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.

23

STATE OF OHIO ))SS.

IN THE COURT OF APPEALS

COUNTY OF TRUMBULL

STATE OF OHIO,

) ELEVENTH DISTRICT

Plaintiff-Appellee,

- vs -

JEREMY T. HENDREX,

Defendant-Appellant,

JUDGMENT ENTRY

CASE NO. 2009-T-0091

For the reasons stated in the opinion of this court, the assignments of

error are not well taken. It is the judgment and the order of this court that the

judgment of the Trumbull County Court of Common Pleas is affirmed.

Costs to be taxed against appellant.

^^c^%uz^=^r G2^^^/.^-^ 3̂ y/^l/"^"'CJri^E CYNTHIA WESTCOTT RICE

DIANE V. GRENDELL, J., F I L E DCOURT OF APPEALS

TIMOTHY P. CANNON, J., JUN 2 ] 2010

concur. TRUiv BULLCOUNTY, 0HKAREN INFANTE ALLEN, CLERK