[Cite as State v. Henderson, 2017-Ohio-2900.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-16-012
Appellee Trial Court No. 2014CR0224
v.
James Henderson DECISION AND JUDGMENT
Appellant Decided: May 19, 2017
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
JENSEN, P.J.
I. Introduction
{¶ 1} Appellant, James Henderson, appeals the judgment of the Wood County
Court of Common Pleas, finding him guilty of murder, felonious assault, and
endangering children, and imposing a prison sentence of 15 years to life.
A. Facts and Procedural Background
{¶ 2} On June 5, 2014, appellant was indicted on one count of murder in violation
of R.C. 2903.02(B) and (D), and R.C. 2929.02(A), an unspecified felony, one count of
endangering children in violation of R.C. 2919.22(B)(2) and (E)(3), a felony of the
second degree, one count of endangering children in violation of R.C. 2919.22(B)(2) and
(E)(3), a felony of the third degree, and one count of felonious assault in violation of R.C.
2903.11(A)(1) and (D)(1)(a), a felony of the second degree. According to the indictment,
the felony murder count was predicated upon appellant’s commission of “an offense of
violence that is a felony of the first or second degree, to wit: Endangering Children or
Felonious Assault.”
{¶ 3} Appellant appeared before the trial court for arraignment on June 17, 2014,
at which time he entered a plea of not guilty to the charges contained in the indictment.
Following several pretrial conferences and the completion of discovery, appellant entered
a waiver of his right to have the matter tried before a jury. Consequently, a bench trial
commenced on January 6, 2016.
{¶ 4} At trial, the following facts were elicited: On May 17, 2014, authorities
were alerted that appellant’s three-month-old son, B.H., was not breathing. According to
statements appellant made to Sergeant Jeremy Holland of the Wood County Sheriff’s
Department, B.H. woke up around 7:00 a.m. that morning and drank three or four ounces
of formula. Appellant was the only one home with B.H. at the time. Afterwards,
appellant laid B.H. down in his crib. Appellant then went back to bed. Appellant woke
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up sometime later in the afternoon, and noticed that B.H. had vomited. Consequently,
appellant picked B.H. up out of his crib and noticed that he was stiff. Appellant then
alerted B.H.’s maternal grandmother, S.S., to B.H.’s condition, at which point S.S. called
911 and commenced CPR.
{¶ 5} Jerry Houtz was the first EMT to arrive on the scene after authorities were
notified of B.H.’s condition. Upon arrival, Houtz was greeted by appellant, at which
point Houtz entered the residence and noticed that CPR had already been started by S.S.
Houtz subsequently took over for S.S., and immediately noticed that B.H. was
“extremely cold, gray, getting stiff.” Houtz also noticed that B.H. had aspirated and that
vomitus was present on B.H.’s mouth and nose. B.H. had no pulse at this point.
{¶ 6} Houtz proceeded to take B.H. outside the residence, where he would be
closer to the ambulance that was on its way. Houtz testified that appellant did not follow
him outside or travel to the emergency room with B.H. During the ambulance transport
to the emergency room, B.H. was intubated and CPR was resumed. Michael Cox was the
paramedic that performed the intubation. Cox echoed Houtz’s testimony in describing
B.H.’s appearance as “cool and stiff.” Ultimately, the paramedics’ efforts to resuscitate
B.H. during the 17-minute ride to the emergency room were futile.
{¶ 7} After B.H. arrived at the hospital, emergency room nurse, Amanda
Michaels, began treating him. Michaels testified that the first thing she noticed about
B.H.’s condition was that he felt very cold and stiff. Another nurse, Kristy Weiker,
described B.H. as “cold and lifeless.” Michaels took B.H.’s rectal temperature, which
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was 86 degrees Fahrenheit upon admission. Upon further examination, Michaels noticed
that B.H. had a bruise on his forehead and blood in his right eye. The emergency room
physician, James Case, testified that B.H.’s stiffness and body temperature were
indicators that B.H. “had been down for likely hours.” He observed a subconjunctival
hemorrhage on B.H.’s right eye, which he stated was typically associated with trauma.
{¶ 8} After working on B.H. for half an hour without a change in his condition,
Case made the decision to cease resuscitation efforts. According to Weiker, the hospital
staff “kind of all knew that there was not going to be any return to life for the child. Just
from experience with the temperature that he was and how stiff he was and how many,
you know, codes we’ve been in in the past, it kind of was pretty apparent that he wasn’t
going to be living at the end of the code situation.”
{¶ 9} Following B.H.’s death, an autopsy was performed in order to determine the
cause of death. According to the deputy coroner that performed the autopsy, Cynthia
Beisser, 20 milliliters of blood was pooled in the occipital region of B.H.’s skull and a
retinal hemorrhage was observed, indicating that a head injury had occurred prior to his
death. Beisser testified that the injuries she observed were consistent with a “whiplash
type of injury.” Thus, Beisser indicated that the cause of B.H.’s death was abusive head
trauma. Homicide was listed as the manner of death. Notably, a search of appellant’s
social media profiles revealed that appellant had conducted numerous computer searches
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for the term “shaking [sic] baby syndrome” between May 10, 2014, and May 17, 2014,
the day B.H. died.1
{¶ 10} At the conclusion of the state’s case-in-chief, appellant moved for acquittal
under Crim.R. 29, which the trial court denied. Appellant did not present any evidence.
{¶ 11} Following closing arguments, the court found appellant guilty of one count
of endangering children (pertaining to the May 17, 2014 incident), one count of felonious
assault, and one count of murder. The court found appellant not guilty of the remaining
endangering children count (pertaining to the May 10, 2014 incident). Concerning the
felony murder charge, the court stated:
As to Count One, the Court finds on or about May 17, 2014, in
Wood County, Ohio, the defendant caused the death of [B.H.] As a
proximate result of committing or attempting to commit an offense of
violence, that is a felony of the second degree, to wit, endangering children,
finding that the defendant committed or attempted to commit the offense
and that the defendant recklessly tortured or cruelly abused a child that
resulted in serious physical harm to [B.H.] So the Court will make a
finding of guilty to Count One, murder.
1
May 10 was significant because B.H. suffered a bruise to his forehead on that date while
under appellant’s care. According to appellant, B.H. was injured when he lunged out of
appellant’s arms and hit his head on a metal bed frame. Appellant was charged with one
count of endangering children as a result of the injury sustained on May 10, but the trial
court found him not guilty on that charge.
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{¶ 12} Upon its finding of guilt as to the aforementioned charges, the court
ordered the preparation of a presentence investigation report and continued the matter for
sentencing. The court directed the parties to be prepared to address the issue of merger at
sentencing, and to submit memoranda on that issue at least one week prior to the
sentencing hearing. In so doing, the court stated that there was “a very strong possibility
that all or at least a significant number of these charges may merge for purposes of
sentencing, and that is something that we will consider at the time of sentencing.”
{¶ 13} At sentencing, the state argued that the offenses for which appellant was
found guilty should not merge but, rather, that the trial court should impose a sentence as
to each offense and order the sentences to be served concurrently. Appellant disagreed,
insisting that the offenses should merge because they each relate to a single offense.
Upon consideration of these arguments, the trial court ordered appellant to serve 15 years
to life in prison for the murder charge, plus 5 years in prison on each of the remaining
offenses (endangering children and felonious assault). Adopting the state’s merger
argument, the trial court ordered the sentences to be served concurrently to one another.
B. Assignments of Error
{¶ 14} Following the trial court’s imposition of sentence, appellant filed a timely
appeal. On appeal, appellant presents the following assignments of error for our review:
First Assignment of Error: The court erred when it did not merge
Appellant’s convictions for Child Endangerment and Murder for purposes
of sentencing.
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Second Assignment of Error: Appellant’s conviction for felonious
assault was against the manifest weight of the evidence.
Third Assignment of Error: The court erred to the prejudice of
Appellant when it did not consider the lesser included offense of
involuntary manslaughter.
{¶ 15} For ease of discussion, we will address appellant’s assignments of error out
of order.
II. Analysis
A. Manifest Weight of the Evidence
{¶ 16} In his second assignment of error, appellant argues that his felonious
assault conviction was against the manifest weight of the evidence.
{¶ 17} In a bench trial, the trial court assumes the fact-finding function of the jury.
Thus, when reviewing a manifest weight claim,
The court, reviewing 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. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 18} It has been long held that the weight to be given to the evidence and the
credibility of the witnesses is primarily for the trier of fact to decide. State v. Thomas, 70
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Ohio St.2d 79, 79-80, 434 N.E.2d 1356 (1982). The standard of review is therefore high,
and the trial court, with its unique position to resolve the factual issues, enjoys significant
deference to determine the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357,
367, 582 N.E.2d 972 (1992). As such, “[t]he discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.” Martin at 175.
{¶ 19} Under R.C. 2903.11,
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another’s unborn;
***
(D)(1)(a) Whoever violates this section is guilty of felonious
assault.
{¶ 20} Here, appellant argues that the state’s evidence fails to establish the
mens rea element of felonious assault; that is, the state failed to demonstrate that
appellant knowingly caused serious physical harm to B.H. Under R.C. 2901.22(B), a
person acts knowingly when the person is aware that his conduct “will probably cause a
certain result or will probably be of a certain nature.”
{¶ 21} In order to establish appellant’s awareness of the consequences of his
violent behavior toward B.H., the state presented evidence of appellant’s numerous
internet searches of “shaking [sic] baby syndrome” during the days and hours leading up
to B.H.’s death. Appellant contends that these searches did not establish his knowledge
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of the consequences of his actions, but were simply the product of appellant’s guilty
conscience for the injuries B.H. sustained when he lunged out of appellant’s arms and hit
his head on a bed frame one week prior to his death. However, appellant’s position is
discredited by his acknowledgement that the injuries B.H. sustained during that fall were
“not fatal, or even serious.”
{¶ 22} Further, appellant urges this court to find that the sheer number of internet
searches (approximately 200) demonstrates that appellant did not understand the
consequences of his actions and demonstrated his recklessness rather than knowledge.
Notably, appellant presented no evidence at trial to establish the basis for his extensive
internet research on the subject of shaken baby syndrome. Moreover, appellant concedes
that his version of the events that transpired on May 17, 2014, was inconsistent with the
injuries B.H. sustained. When questioned by law enforcement personnel as to what
happened to B.H., appellant suggested that he may have injured B.H. by holding him too
tightly or throwing him up in the air and letting him fall on the bed. Additionally,
appellant informed the authorities that he shakes when he gets angry and acknowledged
that he was angry with B.H. on the morning of May 17, 2014. However, Beisser testified
at trial that such actions could not have resulted in the “devastating” brain trauma she
observed while performing B.H.’s autopsy.
{¶ 23} In light of the evidence presented at trial, including the autopsy findings of
devastating brain trauma and appellant’s peculiar interest in shaken baby syndrome, we
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find that this is not the exceptional case in which the evidence weighs heavily against
appellant’s conviction for felonious assault.
{¶ 24} Accordingly, we find appellant’s second assignment of error not well-
taken.
B. Lesser Included Offenses
{¶ 25} In his third assignment of error, appellant argues that the trial court erred
when it did not consider the lesser included offense of involuntary manslaughter.
{¶ 26} A charge on a lesser included offense is required where the trier of fact
could reasonably find against the state and for the accused on one or more of the elements
of the crime charged and for the state on the remaining elements, which by themselves
would sustain a conviction on a lesser-included offense. State v. Kilby, 50 Ohio St.2d 21,
24-25, 361 N.E.2d 1336 (1977). In other words, “[e]ven though an offense may be
statutorily defined as a lesser included offense of another, a charge on such lesser
included offense is required only where the evidence presented at trial would reasonably
support both an acquittal on the crime charged and a conviction upon the lesser included
offense.” State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of
the syllabus. Conversely, if the jury could not reasonably find against the state on an
element of the crime, then a charge on a lesser-included offense is not only not required,
but is also improper.
{¶ 27} Here, appellant argues that he could have reasonably been convicted of
involuntary manslaughter rather than felony murder. He contends that the lesser included
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offense of involuntary manslaughter should have been considered because his internet
searches did not establish that he knowingly caused serious physical harm to B.H. In
essence, appellant is once again challenging the veracity of the state’s evidence as to the
establishment of the requisite mens rea to support his conviction for felonious assault.
Notably, the trial court did not rely upon appellant’s conviction for felonious assault to
support its finding of guilt on the felony murder charge. Rather, the court indicated at the
conclusion of the trial that the predicate offense for the felony murder conviction was the
endangering children count. Therefore, appellant’s argument is misplaced. Additionally,
we find that the evidence clearly supported a finding that appellant acted knowingly
when he assaulted B.H., for the reasons stated in our analysis of appellant’s second
assignment of error.
{¶ 28} Moreover, appellant waived his right to a jury trial and thus this case was
tried to the bench. In a bench trial, the court is presumed to know the law and have
considered any lesser offenses that are supported by the evidence. State v. Buckley, 8th
Dist. Cuyahoga No. 68419, 1995 Ohio App. LEXIS 5181 (Nov. 22, 1995); In re Z.C.,
12th Dist. Warren Nos. CA2005-06-065, CA2005-06-066, CA2005-06-081, CA2005-06-
082, 2006-Ohio-1787, ¶ 30-31. “Furthermore, the judge in a bench trial does not need to
make a record of the fact that he considered lesser offenses and rejected them since
Crim.R. 23(C) only requires the court to make a general finding of guilty or not guilty.”
State v. Rister, 6th Dist. Lucas No. L-09-1191, 2012-Ohio-516, ¶ 15, citing State v.
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Walker, 26 Ohio App.3d 29, 31, 498 N.E.2d 191 (8th Dist.1985); State v. Avery, 12th
Dist. Preble No. CA87-03-006, 1987 Ohio App. LEXIS 9691 (Nov. 23, 1987).
{¶ 29} Because the trial court was presumed to know the law and have considered
the lesser included offense of involuntary manslaughter, and in light of our conclusion
that the evidence did not reasonably support an acquittal on the felony murder count and
a conviction on the lesser offense, we find appellant’s third assignment of error not well-
taken.
C. Merger of Allied Offenses of Similar Import
{¶ 30} In his first assignment of error, appellant argues that the trial court erred
when it failed to merge his conviction for endangering children with his conviction for
felony murder.
{¶ 31} Regarding merger of allied offenses of similar import, R.C. 2941.25
provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate animus
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as to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 32} As set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, the test for whether offenses are allied offenses of similar import under
R.C. 2941.25 is two-fold. First, the court must determine “whether it is possible to
commit one offense and commit the other with the same conduct.” Id. at ¶ 48. Second,
the court must determine “whether the offenses were committed by the same conduct,
i.e., ‘a single act, committed with a single state of mind.’” Id. at ¶ 49, quoting State v.
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J.,
dissenting). “If the answer to both questions is yes, then the offenses are allied offenses
of similar import and will be merged.” Id. at ¶ 50.
{¶ 33} Recently, the Supreme Court of Ohio expounded upon its holding in
Johnson, stating:
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
ask three questions when a defendant’s conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were they
committed separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be
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considered. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, ¶ 31.
{¶ 34} We review the trial court’s merger determination under R.C. 2941.25
de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶ 35} At the outset, we note that the trial court identified endangering children as
the predicate offense for the felony murder conviction at the conclusion of the bench trial.
The conduct that gave rise to the endangering children conviction and, by extension, the
felony murder conviction, was specified by the court as follows: “[T]he defendant
committed or attempted to commit the offense [of endangering children] and * * * the
defendant recklessly tortured or cruelly abused a child that resulted in serious physical
harm * * *. So the Court will make a finding of guilty to Count One, murder.”
{¶ 36} Given the fact that the endangering children count was the predicate
offense for appellant’s murder conviction, we agree with appellant that the trial court
erred in failing to merge the two offenses at sentencing. Indeed, the murder count was
predicated upon the same conduct that gave rise to the endangering children conviction,
appellant’s abuse of B.H. that resulted in serious physical harm and, eventually, death.
The offenses were of similar import, and appellant committed the offenses with one act
and one animus.
{¶ 37} Accordingly, appellant’s first assignment of error is well-taken.
Consequently, we must remand this matter for resentencing.
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III. Conclusion
{¶ 38} For the foregoing reasons, the judgment of the Wood County Court of
Common Pleas is affirmed, in part, and reversed, in part, and this matter is remanded to
the trial court for resentencing consistent with the requirements of R.C. 2941.25. Costs
are assessed to appellee pursuant to App.R. 24.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
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