[Cite as State v. Iakobets, 2017-Ohio-910.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27974
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SERGII IAKOBETS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 15 01 0124
DECISION AND JOURNAL ENTRY
Dated: March 15, 2017
HENSAL, Judge.
{¶1} Sergii Iakobets appeals a judgment of the Summit County Court of Common
Pleas that convicted and sentenced him for felonious assault and endangering children. For the
following reasons, this Court affirms.
I.
{¶2} On December 21, 2014, Mr. Iakobets and his wife brought their five-month-old
daughter E.I. to the hospital for fussiness and inconsolable crying. An examination revealed that
E.I. had a bruise on her cheek, subdural hematomas, retinal hemorrhaging, retinoschisis, and
multiple fractures of her ribs that were in the process of healing. While at the hospital, E.I. also
experienced seizures. After ruling out other causes, doctors concluded that E.I. had suffered
abusive head trauma as a result of violent shaking.
{¶3} Upon interviewing E.I.’s parents, police learned that they had taken turns
attending church that day. According to Mr. Iakobets, when his wife left for church around 2:00
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p.m., E.I. was sleeping. Around 3:00 p.m., E.I. woke up crying. Mr. Iakobets fed her several
ounces of milk, but she was still crying, so he moved her legs in an attempt to relieve her gas.
She was still crying at 4:00 p.m. when Mr. Iakobets’ wife returned home. Throughout the rest of
the day, E.I. continued to be very fussy and also vomited on Mr. Iakobets. Around 11:00 p.m.,
the Iakobetses brought her to the hospital. Mr. Iakobets admitted that, in trying to console E.I.,
he did grab her under her arms and jostled her around, but alleged that he did not shake her
seriously.
{¶4} The Grand Jury indicted Mr. Iakobets for felonious assault and endangering
children. A jury found him guilty of the offenses, and the trial court sentenced him to a total of
10 years imprisonment. Mr. Iakobets has appealed, assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY ALLOWING THE TESTIMONY OF DR.
RICHARD STEINER AS REBUTTAL EVIDENCE.
{¶5} Mr. Iakobets argues that the trial court incorrectly allowed the State to call Dr.
Richard Steiner on rebuttal. During its case-in-chief, the State called Dr. John Melville, who
testified that he is a child-abuse pediatrician for the hospital. According to Dr. Melville, the only
explanation for all of E.I.’s injuries is that she suffered abusive head trauma as a result of
shaking. During his case, Mr. Iakobets called a doctor who testified that shaking does not
explain E.I.’s injuries and that some of them may have been the result of her not breathing during
a seizure. He also opined that the broken ribs could have been a result of E.I. having temporary
brittle bone disease. Over Mr. Iakobets’s objection, the State called Dr. Steiner, a different child-
abuse pediatrician for the hospital, on rebuttal. Dr. Steiner testified that temporary brittle bone
disease does not exist and that E.I.’s injuries can only be explained by violent shaking.
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{¶6} “Rebutting evidence is that given to explain, refute, or disprove new facts
introduced into evidence by the adverse party; it becomes relevant only to challenge the evidence
offered by the opponent, and its scope is limited by such evidence.” State v. McNeill, 83 Ohio
St.3d 438, 446 (1998). “A party has an unconditional right to present rebuttal testimony on
matters which are first addressed in an opponent’s case-in-chief and [is not testimony that should
have been presented] in the rebutting party’s case-in-chief.” Phung v. Waste Mgmt. Inc., 71
Ohio St.3d 408, 410 (1994). The trial court has discretion to determine which proper rebuttal
evidence may be admitted. State v. Carrasquillo, 9th Dist. Lorain No. 09CA009639, 2010-
Ohio-5063, ¶ 16. Its decision will not be reversed absent an abuse of discretion. McNeill at 446.
Abuse of discretion connotes more than simply an error in judgment; the court must act in an
unreasonable, arbitrary, or unconscionable manner. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶7} Mr. Iakobets argues that Dr. Steiner’s testimony about temporary brittle bone
disease was not proper rebuttal evidence because the issue was addressed during the State’s case-
in-chief. He notes that the State asked Dr. Melville about brittle bone disease on direct
examination. He then asked Dr. Melville about temporary brittle bone disease on cross-
examination. According to Mr. Iakobets, because the State had the opportunity to ask Dr.
Melville about temporary brittle bone disease on redirect or by calling a different expert on the
issue during its case-in-chief, such evidence could not be presented on rebuttal.
{¶8} On cross-examination, Mr. Iakobets asked Dr. Melville whether he was familiar
with temporary brittle bone disease. The doctor answered that he knew that it had been proposed
as a diagnosis, but that he did not believe there was enough evidence to justify using it as a
diagnosis. He also explained that it had been proposed as affecting children up to six months old
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and that it was different than brittle bone disease, which is a genetic disorder called osteogenesis
imperfecta. The State did not ask Dr. Melville any questions about temporary brittle bone
disease on redirect.
{¶9} Contrary to Dr. Melville’s description of temporary brittle bone disease on cross-
examination, Mr. Iakobets’s expert testified that temporary brittle bone disease is a real condition
that was discovered in the mid-1990s through the study of children who experienced bone
fractures under normal handling while in the hospital. He explained that E.I. would be
susceptible to the disease because she was born premature, which could have led to a delay in her
acquiring all of the minerals that are necessary for strong bones. Mr. Iakobets’s expert testified
that, once children suffering from the condition begin to mineralize properly, they catch up and
no longer have weak bones.
{¶10} Upon review of the record, we conclude that Dr. Steiner’s testimony about
temporary brittle bone disease was proper rebuttal testimony. The fact that Mr. Iakobets raised
the issue on cross-examination of one of the State’s witnesses does not make it part of the State’s
case-in-chief. See State v. Sullivan, 9th Dist. Wayne No. 98CA0019, 1999 WL 11265, *4 (Jan.
13, 1999) (explaining that, during its case-in-chief, the prosecution “must present evidence
which, if believed, would establish each element of the offense[.]”). In addition, the fact that the
State could have asked Dr. Melville about temporary brittle bone disease, a disease he denied
exists, on redirect also does not make it part of the State’s case-in-chief. Carrasquillo, 9th Dist.
Lorain No. 09CA009639, 2010-Ohio-5063 at ¶ 17 (“[R]edirect testimony is generally considered
to be evidence clarifying matters raised on cross-examination, not new evidence.”). The issue of
temporary brittle bone disease only became material after Mr. Iakobets’s expert witnesses
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offered it as an explanation for E.I.’s fractures. We, therefore, conclude that the trial court
correctly allowed the State to call Dr. Steiner about temporary brittle bone disease on rebuttal.
{¶11} Mr. Iakobets also argues that the trial court allowed Dr. Steiner to testify about
issues other than temporary brittle bone disease that were beyond the scope of rebuttal. We note,
however, that Mr. Iakobets never objected to Dr. Steiner’s testimony as being outside the scope
of rebuttal. He, therefore, has forfeited his argument. Crim.R. 52(B). Although Mr. Iakobets
has not forfeited consideration of plain error, he has not developed a plain error argument in his
appellate brief, and this Court declines to construct one for him. State v. Thomas, 9th Dist.
Summit No. 27266, 2015-Ohio-2935, ¶ 15. Mr. Iakobets’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO
PROVE EACH AND EVERY ELEMENT OF THE CRIME OF CHILD
ENDANGERING BEYOND A REASONABLE DOUBT.
{¶12} Mr. Iakobets argues that his child endangering conviction is against the manifest
weight of the evidence. If a defendant asserts that a conviction is against the manifest weight of
the evidence,
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the
greater amount of credible evidence produced in a trial to support one side over the other side.
State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). An appellate court should only exercise its
power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.
State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.
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{¶13} Mr. Iakobets notes that his child endangering offense was based on the rib
fractures that E.I. suffered, which Dr. Melville testified occurred seven to ten days before the
Iakobetses brought her to the hospital. He argues that the State did not present any evidence
about who was caring for E.I. when the fractures occurred. According to Mr. Iakobets, because
the State failed to prove that he had an opportunity to cause the fractures to E.I., let alone that he
actually did cause them, his child-endangering conviction is against the manifest weight of the
evidence.
{¶14} Dr. Melville testified that children who have suffered critical abusive head trauma
frequently also have rib fractures that are in the process of healing. He explained that the rib
fractures are the result of compression of the child’s body. Squeezing and shaking the child
becomes a way of managing the child’s crying, but it can escalate over time and eventually reach
a threshold where critical injury occurs. In an interview with police, Mr. Iakobets admitted that
he had held E.I. tightly in the past and that he would hold E.I. under her arms while shaking her,
albeit claiming that he did so only a little bit to scare her so that she would stop crying.
{¶15} “[T]he weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of
the syllabus. “In reaching its verdict, the jury was in the best position to evaluate the credibility
of the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.”
State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. Upon review of the
record, we cannot say that the jury lost its way when it chose to believe Dr. Melville’s testimony
about the probable cause of the rib fractures, which were supported by Mr. Iakobets’s admissions
about the way he handled E.I. We, therefore, conclude that Mr. Iakobets’s child endangering
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conviction was not against the manifest weight of the evidence. Mr. Iakobets’s second
assignment of error is overruled.
III.
{¶16} Mr. Iakobets’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
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CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
ANGELA M. KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.