[Cite as State v. Bryan, 2011-Ohio-4619.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2011CA00054
HEATHER R. BRYAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010CR1361
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 12, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, WAYNE E. GRAHAM, JR.
PROSECUTING ATTORNEY, 4450 Belden Village St., N.W.
STARK COUNTY, OHIO Suite 703
Canton, Ohio 44718
BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00054 2
Hoffman, J.
{¶1} Defendant-appellant Heather R. Bryan appeals her conviction and
sentence entered by the Stark County Court of Common Pleas, on one count of
endangering children, in violation of R.C. 2919.22(B)(1)(E)(2)(d), a felony of the second
degree, following a jury trial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 17, 2010, the Stark County Grand Jury indicted Appellant
on the aforementioned charge. Appellant appeared before the trial court for
arraignment and entered a plea of not guilty to the Indictment. The matter proceeded to
jury trial on January 10, 2011.
{¶3} Dr. Jana Schweikert, a pediatrician with Stark County Pediatrics in
Alliance Ohio, testified Appellant presented her infant son, S.G., for a routine checkup
on June 1, 2010. Dr. Schweikert learned the child had been born approximately two
months premature, and had experienced a number of medical issues following his birth,
including possible infections, breathing difficulties or apnea, and possible jaundice.
According to Appellant, S.G.’s apnea was still a problem, and he was on a machine to
monitor the condition. Dr. Schweikert’s physical examination of S.G.’s outer body
revealed no signs of trauma. A follow-up visit was scheduled for the following week.
{¶4} On June 8, 2010, Appellant again presented S.G. to Dr. Schweikert for the
follow-up visit. At that time, the doctor noted a bruise on S.G.’s abdomen. Appellant
explained S.G. had slipped out of his father’s grasp while being bathed, and had struck
his stomach on the water faucet. Dr. Schweikert instructed Appellant to take S.G.
across the street to Alliance Community Hospital for x-rays.
Stark County, Case No. 2011CA00054 3
{¶5} Matthew Gilbert, an emergency room nurse at Alliance Community
Hospital, testified Appellant presented S.G. at the emergency room at approximately
6:00pm on June 8, 2010. The attending physician, Dr. Catalano, ordered a complete
body x-ray. Gilbert stated the x-rays revealed either a fractured skull or a suspected
fractured skull. Dr. Catalano informed Gilbert S.G. was to be transferred to Akron
Children’s Hospital for further assessment.
{¶6} Dr. Daryl Steiner, the Medical Director of the Care Center at Akron
Children’s Hospital, testified S.G. was in critical condition when the infant was brought
to the hospital, and was immediately admitted to the intensive care unit. Dr. Steiner
ordered a skeletal survey, blood work, a CT scan of S.G.’s head, and an MRI of his
brain. The tests and x-rays indicated multiple, serious internal injuries, which included
seven fractured ribs. Dr. Steiner determined two of the seven fractures had occurred
approximately two weeks earlier while the others had occurred within the last seven
days. S.G. also suffered a skull fracture, which Dr. Steiner explained was typically
caused by a child falling ten to fifteen feet. As a result of the skull fracture, S.G.
suffered permanent and irreversible brain injury. The extent of necrosis, dead tissue, on
S.G.’s brain indicated the injury had not taken place within the past few days.
{¶7} Dr. Steiner testified rib fractures are highly specific for abusive injuries,
and such do not occur with usual household events. Dr. Steiner stated, “Just about the
only way that can happen is if a child is picked up and, and his chest is manually
squeezed with, with a violent force to cause the fractures to occur.” Tr. Vol.1 at 148.
With respect to S.G.’s skull fracture, Dr. Steiner stated he could not make a diagnosis
the baby was shaken, but indicated S.G. sustained a forceful impact.
Stark County, Case No. 2011CA00054 4
{¶8} Chelsea Eberling, a social worker with the Stark County Department of
Job and Family Services, became involved in the matter after the agency received a
report of possible abuse. Eberling contacted Detective Joseph Weyer of the Alliance
City Police Department, and advised him of the allegations. Eberling also contacted Dr.
Steiner to review his findings. The following day, June 9, 2010, Eberling interviewed
Appellant and Eric Gooding, S.G.’s father, at Akron Children’s Hospital. Subsequently,
on June 16, 2010, Eberling and Detective Weyer interviewed Appellant at her place of
employment. Following the conversation, the agency took the child into custody.
Eberling recalled, during the interview Appellant acknowledged she had probably
thrown S.G. down a little too hard into his bassinette. Appellant explained S.G. was
constantly crying. When she could not get S.G. to stop crying she became more and
more frustrated.
{¶9} Detective Weyer testified he received a call on June 9, 2010, from
Eberling regarding S.G. Sometime around 3:00 or 4:00 pm that day, Detective Weyer
spoke with Gooding. The Detective met Gooding at the apartment he shared with
Appellant. Weyer took a written statement from Gooding and photographed areas of
the apartment, including the bathtub and the faucet. The detective interviewed
Appellant at her place of employment on June 16, 2010. During the interview, Appellant
admitted she had probably thrown S.G. down a little too hard or dropped him on the bed
or into his bassinette. Appellant gestured as if throwing S.G. down when she explained
to Detective Weyer what had happened. Appellant indicated she had probably done
this four or five times over the last few weeks.
Stark County, Case No. 2011CA00054 5
{¶10} After hearing all the evidence and deliberating, the jury found Appellant
guilty of child endangering. The trial court ordered a pre-sentence investigation.
Appellant appeared for sentencing on February 23, 2011, at which time the trial court
sentenced her to a term of imprisonment of four years.
{¶11} It is from this conviction and sentence Appellant appeals, raising as her
sole assignment of error:
{¶12} “I. APPELLANT’S CONVICTION FOR CHILD ENDANGERING IS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶13} Our standard of reviewing a claim a verdict was not supported by sufficient
evidence is to examine the evidence presented at trial to determine whether the
evidence, if believed, would convince the average mind of the accused's guilt beyond a
reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the 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. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, superseded by State constitutional
amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684
N.E.2d 668.
{¶14} The Supreme Court has explained the distinction between claims of
sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a
question for the trial court to determine whether the State has met its burden to produce
evidence on each element of the crime charged, sufficient for the matter to be submitted
to the jury.
Stark County, Case No. 2011CA00054 6
{¶15} Manifest weight of the evidence claims concern the amount of evidence
offered in support of one side of the case, and is a jury question. We must determine
whether the jury, in interpreting the facts, so lost its way that its verdict results in a
manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, 678
N.E.2d 541, 1997–Ohio–52, superseded by constitutional amendment on other grounds
as stated by State v. Smith, 80 Ohio St.3d 89, 1997–Ohio–355, 684 N.E.2d 668. On
review for manifest weight, a reviewing court is “to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the judgment must be
reversed. The discretionary power to grant a new hearing should be exercised only in
the exceptional case in which the evidence weighs heavily against the judgment.” State
v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175. Because the trier of fact is in a better position to observe the
witnesses' demeanor and weigh their credibility, the weight of the evidence and the
credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10
Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.
{¶16} We first address Appellant's sufficiency of the evidence challenge.
{¶17} Appellant was convicted of endangering children, in violation of R.C.
2919.22(B)(1)(E)(2)(d), which provides:
{¶18} “(B) No person shall do any of the following to a child under eighteen
years of age or a mentally or physically handicapped child under twenty-one years of
age:
Stark County, Case No. 2011CA00054 7
{¶19} “(1) Abuse the child;
{¶20} “* * *
{¶21} “(E)(1) Whoever violates this section is guilty of endangering children.
{¶22} “* * *
{¶23} “(2) If the offender violates division (A) or (B)(1) of this section,
endangering children is one of the following, and, in the circumstances described in
division (E)(2)(e) of this section, that division applies:
{¶24} “* * *
{¶25} “(d) If the violation is a violation of division (B)(1) of this section and results
in serious physical harm to the child involved, a felony of the second degree.”
{¶26} Appellant contends the State failed to prove the culpable mental state of
“reckless”. We disagree.
{¶27} R.C. 2901.22 defines “reckless” as follows:
{¶28} “(C) A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his 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, he perversely
disregards a known risk that such circumstances are likely to exist.”
{¶29} Dr. Steiner testified rib fractures in infants “are highly specific for abusive
injury”, adding “rib fractures do not occur with usual household events . . . just about the
only way that can happen is if a child is picked up and, and his chest is manually
squeezed with, with a violent force to cause the fractures to occur.” Tr. Vol. I at 148,
151. Dr. Steiner opined a person who caused a rib fracture in an infant would know
Stark County, Case No. 2011CA00054 8
he/she was inflicting that kind of injury. S.G. had seven rib fractures. With respect to
S.G.’s skull fracture, Dr. Steiner explained S.G.’s parietal bone was fractured, and such
a fracture requires a significant impact to the skull. Id. at 154. Dr. Steiner opined a
person who caused a skull fracture clearly recognized the forcefulness of the act.
{¶30} We find Dr. Steiner’s testimony was sufficient to establish the culpable
mental state of “reckless”. Accordingly, we find Appellant’s conviction was not based
upon insufficient evidence.
{¶31} We now turn to Appellant’s manifest weight of the evidence challenge.
Upon review of the record including a reading of the entire transcript, we find Appellant’s
conviction was not against the manifest weight of the evidence. Appellant admitted she
“had probably thrown the baby down a little too hard” onto the bed or into his bassinette.
Tr. Vol. II at 37. Appellant stated she had thrown S.G. in this manner four or five times.
At trial, Appellant testified she regretted ever putting S.G. down too hard. Id. at 138. The
evidence established the injuries S.G. suffered could not have occurred as the result of
a usual household event. The jury was free to accept or reject any or all of the testimony
of the witnesses. The jury obviously believed Appellant threw S.G. down with sufficient
force and violence as to cause his severe and permanent injuries.
{¶32} Appellant’s sole assignment of error is overruled.
Stark County, Case No. 2011CA00054 9
{¶33} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00054 10
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
HEATHER R. BRYAN :
:
Defendant-Appellant : Case No. 2011CA00054
For the reasons stated in our accompanying Opinion, The judgment of the Stark
County Court of Common Pleas is affirmed. Costs assessed to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. JULIE A. EDWARDS
State v. Bryan
Combined Opinion