State v. Jones

[Cite as State v. Jones, 2018-Ohio-673.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-22
:
v. : Trial Court Case No. 2013-CR-193
:
ADAM L. JONES : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 23rd day of February, 2018.

...........

JANNA PARKER, Atty. Reg. No. 0075261, Miami County Prosecutor’s Office, 201 West
Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee

NIKKI BASZYNSKI, Atty. Reg. No. 0091085, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215
Attorney for Defendant-Appellant

.............
 -2-

HALL, J.

{¶ 1} Adam L. Jones appeals from the trial court’s denial of his petition for post-

conviction relief following an evidentiary hearing.

{¶ 2} In his sole assignment of error, Jones contends the trial court abused its

discretion in denying his petition, which alleged that his trial counsel had provided

ineffective assistance by, among other things, failing to retain an expert witness to rebut

the prosecution’s case at trial.

I. Procedural and Trial Factual Background

{¶ 3} The record reflects that a jury convicted Jones on one count of child

endangering, a second-degree felony. The 2014 conviction stemmed from a head injury

sustained by “Marianne,”1 the four-year-old daughter of Jones’ girlfriend, while the child

was in his care. On August 5, 2010, the child’s mother and Jones put the child down for

a nap in an upstairs bedroom of the house where they were living with friends and the

friends’ children. The mother then left the house, and Jones was the only remaining adult

with Marianne and the friends’ children. Jones said he then went downstairs and watched

the friends’ children play a video game. Within about 20 minutes, he said he went back

upstairs and found Marianne lying on her side on the floor. He testified that her eyes were

rolled back in her head, and she was gurgling. Jones carried the child to a neighbor’s

house and called for help. A paramedic arrived and transported the child to Upper Valley

Medical Center (UVMC). Her mother also responded to the hospital. She testified that at

UVMC the child had a large knot on the left side of her forehead and bruising on the left

1 As we did in a prior direct appeal, we will use the fictitious name “Marianne” to protect
the child’s privacy.
 -3-

ear, neither of which was there when she left the child at home with the appellant.

Marianne’s mother testified that the remains of the knot were also visible in State’s photo

Exhibits 11 and 12, taken several days after the incident, which depict an obvious

abrasion on the left forehead. At UVMC, the child was unconscious, had a CAT2 scan

performed, had a ventilator with a breathing tube applied, and then was care-flighted to

Cincinnati Children’s Hospital.

{¶ 4} In Cincinnati, Dr. Charles Stevenson, a pediatric neurosurgeon, confirmed

the existence of a large blood clot, or hematoma, in the subdural space over the left side

of the child’s brain. Due to the size of the hematoma in the confined skull, pressure had

pushed the brain dramatically, about three-quarters of an inch [2 cm], to the right. Dr.

Stevenson performed surgery “to remove the [left] side of the skull and take it off as one

large piece.” (T-2, 15).3 He saw an active hemorrhage. At trial, he explained:

[S]o we open up, we widely open up the membrane that’s containing

the clot. And then at that point in time you can see the clot. It is large, it is

red, it’s under significant pressure, and once you release it, it normally starts

to extrude itself; the brain starts to extrude it out towards you. And so what

we very quickly do then is use gentle irrigation and instruments to remove

2 We perceive the more current and common term is “CT” scan, and the UVMC report
refers to “CT Head C.” But because the transcript generally refers to the test as a “CAT”
scan, we often use that term.
3 The transcripts of the three-day jury trial are designated Day 1, Day 2 and Day 3, but
the pages for each volume serially begin at number 1. Consequently, we refer to the jury
trial transcript as T-1, T-2 and T-3 and then by page number of that volume. The post-
conviction evidentiary hearing transcripts also are designated Day 1, Day 2 and Day 3,
and are serially numbered beginning at 1 for each volume, and there is the separate
deposition of Dr. Kenneth Monson. We refer to these as T-PCR-1 T-PCR-2, and T-PCR-
3 and Monson Depo., and then by page number.
 -4-

all of this clot off the surface of the brain. And as you do that, you can see

the underlying surface of the brain, * * * *

This then continues for several minutes, because you want to be able

to remove all of the clot or as much as you safely can, and typically what

happens is at some point, when you remove some bit of the clot, you’re

going to find the underlying blood vessels that are actually responsible for

the bleeding, all right, those blood vessels that were injured that started

bleeding to cause the hematoma.

And in this case, we definitely found that. There are very large set of

veins at the top of all of our brains that run in the center and just off to each

side. And she had significant amount of active hemorrhage from these,

which I was able to identify as soon as I removed the clot in that region. I

then spent several minutes stopping this bleeding.

When asked if this was “fresh blood,” Dr. Stevenson stated:

Yes. The vast majority of this blood that was either forming clot in

various stages, that was either a few hours old or there were some just liquid

blood that was so fresh that it had not yet had time to clot off. Especially

near the regions of the veins that she had bleeding, there was just active

spurting of blood that was pooling and had not yet clotted off.

Q. Okay. So there’s fresh blood that had collected and then still

active bleeding-

A. Yes.

(T-2, 16-17).
 -5-

The only documentary evidence introduced at trial regarding the UVMC CAT scan—two

photocopies of CAT scan image slices (State’s Exhibits 15 and 16)—had been referred

to on direct examination of Dr. Stevenson. Upon cross examination, defense counsel

referred to these exhibits as follows:

Q. Okay and you had indicated that the bright white part is new

blood, okay. But that brown, or the darker layer could be several different

things, okay. One of the things that you had indicated that it could be old

blood. Correct? Okay. If a person suffered a minor subdural hematoma,

okay, where there was bleeding, okay, but we didn’t remove the blood,

okay, and there are those cases, correct?

A. Yes there are.

***

Q. Okay. All right. With this, it’s possible is it not doctor that the darker

images there [Exhibit 15 or 16] reflect that there has been prior bleeding in

this brain?

A. Based purely off the CAT scan images, that’s always a

consideration, yes.

(T-2, 32) (Emphasis added). And upon further questioning, Dr. Stevenson

reiterated:

Q. Okay in looking at this CAT scan, is it possible that this could be

an acute [new or fresh] on chronic [old]?

A. Based purely off of the CAT scan, there is a chance that that could

be the case yes.
 -6-

(T-2, 34). (Emphasis added).

{¶ 5} On re-direct examination, Dr. Stevenson testified that he did not note any

indication of a prior subdural hematoma in his report, but if during surgery he had visually

observed what he believed to be indication of a prior “minor” subdural hematoma he would

have noted it:

* * * because it would make a difference in terms of what was done

procedurally, and what the patient’s prognosis would be expected to be.

Q. And there was nothing in – correct me if I’m wrong, there was

nothing in your review of the scans from July 25th or the previous nasal injury

to suggest that there was any sort of minor subdural hematoma?

A. Not to the best of my knowledge, no.

Q. When you performed this surgery, and you actually had the

opportunity to look at this child’s brain, is there – was there anything there

to you that was suggesting – did you believe this to be an old injury, or did

you believe this to be a fresh injury?

A. Well the injury that we were treating emergently was absolutely

fresh injury. She had a very large clot, only some of which is actually

depicted on these images that we had here. The volume of the clot was

quite extensive. The clot itself was new, organizing blood, and she had

active bleeding, active hemorrhage out into the operative field, pooling

there. So all of that was absolutely new.

Q. Okay. And does a – if a – although you didn’t see any evidence

of a minor subdural hematoma, does a small subdural hematoma cause a
 -7-

large, acute subdural hematoma like you saw in [Marianne] when you

treated her?

A. No it does not.

Q. So there would have to have been some separate event that

caused the acute subdural hematoma that you witnessed?

A. Yes.

(T-2, 44-45). Dr. Stevenson’s testimony also included that subdural hematomas almost

always are caused by traumatic injuries including, for example, motor-vehicle collisions

or falls from a significant height such a second-story window or, possibly, the top of a

bunk bed.

{¶ 6} Fortunately, within days of the surgery, the child made a “dramatic recovery”

and was able to open her eyes, breathe on her own, and begin talking.

{¶ 7} In Jones’ defense, through Dr. Stevenson and other witnesses, his attorney

asserted that Marianne was a medically-fragile child who suffered from a rare condition

known as VATER Association. 4 As a result of that condition, she had undergone

approximately 25 surgeries, including multiple abdominal organ transplants. Defense

counsel also cross examined the State’s medical experts about a fall that Marianne had

experienced about three weeks earlier on July 17, 2010. On that occasion, Marianne

tripped in the kitchen and fell face-first onto the floor, hitting her nose. A few days later, a

doctor examined the child during a regularly-scheduled visit and concluded that her nose

4
This condition is now more accurately known as VACTERL Association due to the
recognition of additional potential defects. It typically refers to the presence of at least
three of a recognized group of birth defects tending to have a non-random occurrence.
Because the numerous transcript references use the term “VATER,” we use it here.
 -8-

was fine. In the days following the fall, the child was not lethargic and she engaged in

normal activities. On July 25, 2010, however, the child awoke with a bruised, swollen nose

and yellow drainage. The child’s mother took her to the hospital, where a CAT scan

revealed two nasal fractures. Marianne underwent emergency surgery to treat an

infection behind the fractures, and she remained hospitalized until August 3, 2010 while

receiving intravenous antibiotics.

{¶ 8} Defense counsel theorized at trial that the large subdural hematoma

Marianne experienced two days later on August 5, 2010 may have been related to the

child’s complex medical condition, the fracture she experienced when she fell on July 17,

2010, and the resulting infection she suffered. In particular, defense counsel suggested

that Marianne’s fall on July 17, 2010 may have caused a small hematoma that re-bled

and became larger when the child jumped or fell from her bed on August 5, 2010. Dr.

Stevenson, the treating pediatric neurosurgeon, agreed that such a scenario

“theoretically” could occur if there was an older, minor subdural hematoma followed by “a

repeat trauma to the exact, same place.” He added, however, that he had never seen

such a situation and did not see evidence of an older, minor hematoma when treating

Marianne. There was no evidence from any witness that she had reinjured her nose. Dr.

Stevenson also testified that he had seen the facial CAT scan that had been taken earlier,

which had revealed the broken nose, and although it only shows limited images of the

brain, there was no indication of a prior clot and no indication of a shift of the brain from

left to right. Finally, Dr. Stevenson found no connection between Marianne’s serious injury

and either her VATER Association or her recent nasal fracture. As indicated in testimony

previously quoted, he testified there was nothing to suggest a prior minor chronic
 -9-

hematoma.

{¶ 9} Dr. Kathi Makoroff, who was called by the State, is a pediatrician who

specializes in child abuse and is board certified in that field. She has been practicing in

that capacity at Cincinnati Children’s Medical Center for 17 years. At the time of her March

2014 testimony, she said she was the chair of the Ohio Chapter of the American Academy

of Pediatrics Committee on Child Abuse and Neglect, and president of the Ray Helfer

Society, an honorary society for physicians practicing in the area of child abuse. She was

a consultant in Marianne’s treatment, and ruled out causes of the child’s subdural

hematoma other than a traumatic injury involving “a great bit of force.” She explained:

“We do see these types of injuries in kids who have severe car accidents and are ejected

from the car or [in] very severe accidents. Kids who have very severe falls, like falling out

of the—out of a window, you know, not on the first floor of the house but subsequent

floors of the house, and we also see it in children with inflicted injury or abusive head

trauma when they come in and they have injuries similar to—to—to what we see on

[Marianne’s] CAT scan.” (T-2, 65). Dr. Makoroff ruled out as a possible cause of

Marianne’s injury a jump or a fall from the child’s bed:

So I could also rule out that history of a—of a roll off of a bed or even

a jump off a—off of a bed from something so small, you know, thirteen

inches off of the floor and onto carpet, which, you know, obviously has some

padding to it; the carpet itself has—has some padding properties to it. And

so I’m left with inflicted injury or abusive head trauma.

* * * Right so it goes back to your question about the amount of force

required. So even though we can’t give you—we can't give you a number
 -10-

of the amount of force, it certainly lies between kids who, and you know,

most people know someone—know a child and maybe some of the Jurors

were that child who, you know, went down the steps on a skateboard

because it was fun, or was klutzy or climbed a lot and had lots of falls, and

those kids don’t end up like this. Those kids don’t come into the emergency

room emergently and then require surgery to evacuate the blood. So even

though those kids are either klutzy or very sort of rambunctious and often

doing things and—and hitting their head requiring sutures or staples, you

know, to—because they’re hitting their head and getting—and getting

lacerations, they still don’t—they still don't cause these types of injuries. But

the really more forceful types of mechanisms, like a car accident, do. So the

answer to your question is even the rambunctious child who is maybe

jumping on the bed and even hits their head in the room, just—just—it’s

not—it's not enough injury to cause this type of subdural.

* * * So again, I can’t rule out there wasn’t an impact to her head; I

mean she doesn’t have a skull fracture, but just because there isn’t a skull

fracture doesn’t mean she wasn’t impacted especially if she was impacted

onto a soft surface. That may be enough of an impact to cause injury, but

not enough of an impact, or an impact onto the wrong type of surface to

cause a skull fracture. Or certainly a shaking; if she was picked up and

shaken violently, that would cause these types—this type of subdural, these

types of injuries. And of course there’s no impact there; she wasn’t actually

impacted onto a hard or soft surface, which would go along with her not
 -11-

having a skull fracture.

(T-2, 72-78).

{¶ 10} Dr. Makoroff stated that even a prior minor subdural hematoma, followed by

“a trivial fall like falling out of a bed thirteen inches” high, would not have caused

Marianne’s injury. She opined that the child’s injury was caused by “abusive head

trauma,” which she explained is the current terminology for what previously was known

as “shaken-baby syndrome.” Dr. Makoroff testified that “shaken-baby syndrome” is an

“old term” that means the “same exact thing” as “abusive head trauma.” In essence, Dr.

Makoroff used the process of elimination to conclude that Marianne’s injuries were not

accidental.

{¶ 11} Dr. Makoroff also rejected the scenarios proposed by defense counsel. Her

opinion ruled out the possibility that a “short fall” could have caused Marianne’s subdural

hematoma on August 5, 2010. She testified that a “short fall” potentially could “cause a

subdural” but not a large one like this child suffered:

[Y]es, injury – a fall, and I have seen these – these cases my –

myself, many of them, where a fall does cause a – a subdural. In

those cases, there is frequently a skull fracture, and then there is a

small amount of subdural blood underneath the skull fracture, and no

damage to the surrounding brain at all. So I just want to be clear that

I would answer your question yes, a short fall can cause a subdural,

but no a short fall wouldn’t cause a subdural like [Marianne] suffered.

(T-2, 92).

{¶ 12} Dr. Makoroff also rejected the idea that the hematoma on August 5, 2010
 -12-

was a “re-bleed” of a prior hematoma that resulted from the child’s earlier fall and nasal

fracture. She explained:

So first of all I can rule that out with [Marianne]. Now to be very clear,

when she had a CAT scan for her nose, they didn’t image all of her brain;

they imaged a good part of it in looking at the note, but they didn’t do a brain

CT, they did a facial CT on her, so they did see a good bit of her brain in

that it all looked normal. So for your theory to work, she would have had—

had to of had a large enough subdural initially, and they would have picked

it up on that CAT scan. So I can feel confident saying no for that reason. I

can feel confident also saying no because if [Marianne] suffered a re-

bleeding, she would not have been symptomatic the way she was. She—

she was not really conscious, and her brain was being affected by the re-

bleed, and that’s never really been described in re-bleeding, and she

required neurosurgery to take out the blood. And so that’s why I can rule

that out.

I can also rule it out because Dr. Stevenson, and I talked to Dr.

Stevenson after the surgery and read his operative report, would have seen

this within the hematoma. He would have seen a bunch of older, trying to

heal blood, with new blood as well. And he did not see that.

(T-2, 94-95). Also in response to defense cross examination, she stated:

So as you pointed out, I wasn’t there, you weren’t there, so I – I don’t

know what happened, you don’t know what happened, but I can tell you

what didn’t happen. So it wasn’t related to any of her past medical history.
 -13-

It – it wasn’t a direct cause of her nasal fracture from – from July, and it

didn’t happen from her falling off of a bed or even jumping off of her bed

and jumping into something in her room, if that in fact happened.

(T-2, 100-101).

{¶ 13} Dr. Makoroff was also cross examined in regard to a study in which a short

fall resulted in a subdural hemorrhage. She expressed ample familiarity with the study of

Dr. John Plunkett regarding falls from playground equipment, which some have used to

support that a subdural hematoma, and even death, can result from a short fall. Ultimately

though, her testimony was as we previously quoted, “a short fall wouldn’t cause a

subdural like [Marianne] suffered.” (T-2, 92).

{¶ 14} On re-direct examination, Dr. Makoroff also testified that very few accidental

falls in children “result in retinal hemorrhages” and that the retinal hemorrhages Marianne

experienced were larger and “more diffused throughout the whole retina” than what might

occur in a short fall. Dr. Makoroff added:

* * * So when we see retinal hemorrhages we don’t—we—we—we—

we, you know, again, it’s a very sort of short list of medical causes; many of

them the same as subdurals that can cause retinal hemorrhages, none of

them [Marianne] had. And so then if we are left with injury, same thing as

what I just testified to. Short household falls, even if we say they can cause

retinal hemorrhages, which is rare, they don’t cause retinal hemorrhages to

the degree of which [Marianne] had.

(T-2, 116).

{¶ 15} Dr. Michael Gray, a pediatric ophthalmologist at Cincinnati Children’s
 -14-

Hospital, testified that the retinas of both of Marianne’s eyes had many and diffuse multi-

layered retinal hemorrhaging. He said there could be several causes for this, and he looks

for bleeding problems, infection in the eye, or a history of trauma. Regarding trauma he

testified “generally it’s to cause hemorrhages or bleeding in the retina, it would have to be

severe trauma; usually head trauma.” (Id. at 124). He also testified that swelling of the

brain, “brain edema by itself does not lead to retinal hemorrhages.” (Id. at 135).

{¶ 16} As indicated, Jones’ defense at trial consisted primarily of his attorney cross

examining the State’s witnesses about Marianne’s multiple medical problems, the

possibility of re-bleeding of an old hematoma, whether a short fall could cause a subdural

hematoma, and the several possible causes of retinal hemorrhage. Counsel was able to

obtain several admissions regarding the possibility of the defense theories though not

sufficient for the State’s witnesses to alter their opinions. Defense counsel called no

experts to rebut the prosecution’s experts. The only defense witness was Jones. He

testified that he went upstairs and found Marianne on the floor, limp and non-responsive.

He denied striking, throwing, or shaking the child. He also denied becoming angry or

frustrated with the child. He testified that he had no idea how her injuries occurred.

{¶ 17} In closing argument, the prosecutor stressed that “no doctor or any other

witness ever said there is an old injury that’s related to the injury [Marianne] suffered on

August 5, 2010.” The prosecutor described Jones’ “story” as “simply inconceivable” and

argued that it “defies medical evidence[.]”

{¶ 18} After considering the evidence presented, the jury found Jones guilty on

one count of child endangering. The trial court imposed an eight-year prison sentence.

This court affirmed on direct appeal, rejecting arguments challenging the manifest weight
 -15-

and legal sufficiency of the State’s evidence and an argument alleging prosecutorial

misconduct. With regard to the weight and sufficiency of the evidence, this court

reasoned:

In the case before us, the circumstantial evidence is compelling that

Jones physically abused Marianne, and thereby caused her serious

physical harm. When Marianne was left in his care, she did not have the

brain injury that she had after she was in his care. He was the only adult in

her presence. By his admission, the three other children in the house were

on another floor, playing a video game.

Drs. Stevenson and Makoroff ruled out possible causes of

Marianne’s injury other than physical abuse, either in the form of impact to

Marianne’s head against a soft surface, or severe shaking. Under the

circumstances, a reasonable trier of fact could conclude that Jones was the

person who caused Marianne’s injury, if not intentionally, at the very least

recklessly, since a reasonable person would know that the impact to

Marianne’s head or the severe shaking necessary to cause her injury would

likely cause her serious physical harm.

State v. Jones, 2d Dist. Miami No. 2014-CA-11, 2015-Ohio-196, ¶ 30-31.

II. Post-Conviction Proceedings

{¶ 19} In December 2014, Jones filed an R.C. 2953.21 petition for post-conviction

relief with supporting evidentiary materials. (Doc. #43). Those materials included an

affidavit and report from Dr. Robert Rothfeder, a board-certified emergency room

physician with more than 30 years of experience in emergency medicine involving all
 -16-

varieties of adult and pediatric trauma, including brain-injury cases. The materials also

included an affidavit from Kenneth Monson, a PhD associate professor in mechanical

engineering and an adjunct assistant professor in bioengineering at the University of

Utah, and an affidavit from Dr. Marvin Miller of Dayton Children’s Hospital addressing the

proper terminology for VATER Association. Finally, the materials included an affidavit

from Jones’ trial counsel, Andrew Wannemacher, who explained that he knew he needed

the assistance of an expert witness and that his failure to obtain one was not a “strategic

move.”

{¶ 20} One of the documents attached to the post-conviction submission was the

first page of an apparent two-page UVMC “CT Head C” scan report which, appellant

points out, stated: “[T]here is a left hemispheric acute on chronic subdural hematoma.”

What appellant does not reference is that the document also states: “Given the acute on

chronic nature of this finding, nonaccidental trauma must be suspected.” (Petition, Exhibit

E). The trial court scheduled the post-conviction petition for an evidentiary hearing.

{¶ 21} The trial court held a three-day hearing on Jones’ petition in May and June

2015. Jones presented testimony from Dr. Rothfeder and attorney Wannemacher as well

as the videotaped deposition testimony from Monson. The State countered with testimony

from its own expert, Dr. Robert Shapiro from Cincinnati Children’s Hospital.

{¶ 22} Dr. Rothfeder, also a lawyer, trained as an internist and practiced as an

emergency-room physician for more than 30 years, a discipline in which he was board

certified in 1996. He treated adults and children and estimated that about half were

children. He left emergency-room practice in 2006. He said he continued with a part-time,

about one-half, clinical practice until he retired from patient care at the end of 2013. He
 -17-

has not had a practice dedicated specifically to pediatrics, and he is not a neurologist. He

said that over the past ten years he has developed a focused interest in child abuse and

infant brain injury. He spends the vast majority of his professional time consulting on

medical issues most of which are child abuse head-injury cases. In the last ten or fifteen

years, he has testified only for the defense. He estimated he has testified between one

and two hundred times on this topic.

{¶ 23} Based on his review of the case, including Marianne’s extensive medical

records, Dr. Rothfeder opined that the child’s serious medical problems related to VATER

Association made her more “fragile” and vulnerable to the injury she sustained in this

case. Dr. Rothfeder has encountered only a “couple” VATER Association patients in his

career, but his treatment of them was for something peripheral. He acknowledged he has

no clinical experience working with children with this association. (T-PCR-1, 23). Yet he

opined that she was generally a “fragile” child who was “more vulnerable to injury of any

type. * * * I mean what she’s made of just isn’t as strong and viable as the tissue would

be in a normal individual.” (Id. at 41).

{¶ 24} Dr. Rothfeder explained that he had reviewed a CAT scan of the serious

subdural hematoma taken after the incident. Although he was not specifically qualified as

a radiologist or neurologist, he opined that the scan revealed the presence of “new” blood

and older blood, signifying the existence of a “chronic subdural” and an “acute subdural”

* * * [W]hen you look at the scan there’s—there’s mixed density in

the hematoma. In other words, the—the—the tissue and the blood products

that are seen on the scan look different in terms of the white and black

densities depending on the composition of the fluid and in this scan there
 -18-

was a mixed density which indicated that the subdural consisted of a chronic

subdural, that is blood which had been present for a period of time which

was not new and which had been present for at least a number of weeks

and possibly longer, perhaps months even. And within that there was acute

bleeding. So there was new bleeding into the chronic subdural and that—

that’s a phenomenon that we refer to as re-bleeding of a chronic subdural

and something that’s seen not uncommonly with chronic subdurals.

(T-PCR-1, 26-27). Notably, however, the CAT scan itself was not separately introduced

into evidence. Nor was the original radiologist’s report, the first page of which we indicated

was attached to the petition, otherwise entered as an exhibit. Nor was the radiologist

called by Jones’ counsel in post-conviction proceedings even though the petition argued,

in “Ground III” of the incidents amounting to ineffective assistance of counsel, that Jones’

trial counsel was deficient “when his attorney failed to call the Upper Valley Medical

Center treating physicians and radiologists as witnesses.” (Petition at 38).

{¶ 25} When asked, Dr. Rothfeder did not render an opinion within a reasonable

degree of medical certainty as to the cause of what he surmised was a chronic subdural

hematoma, and he could not indicate when it originated. Rather, he indicated that “one of

the possibilities” was Marianne’s fall on July 17, 2010, which resulted in the nasal fracture

and infection. He added:

* * * However, it’s entirely possible that you know other unwitnessed

head trauma that the child might have had at some point in the past could

have caused it or medical condition that’s—that complicated things could

have caused it. For instance, when the nasal hematoma and the result[ing]
 -19-

infection occurred, a potential complication of an infection in the head like

that would be clotting or thrombosis in one of the veins inside the head

that—that feeds the dura or that drains the dura and it’s known among other

things that—what we call cortical venous thrombosis. Thrombosis of one of

those veins can be a cause of subdurals. So a variety of possibilities are—

are in play and the—the only one that I can really identify specifically as

potentially causative would relate to the—the trauma that caused the nasal

fracture ten days or a couple of weeks preceding the August event.

T-PCR-1, 30.

{¶ 26} With regard to the acute subdural hematoma that led to Jones’ conviction,

Dr. Rothfeder testified:

* * * The way that chronic subdurals can re-bleed relates to the

specific anatomy and pathology of the subdural. Once a chronic subdural

forms, a membrane forms over the subdural and the membrane contains

tiny little immature blood vessels and those—those vessels are subject to

re-bleeding and it’s thought that re-bleeding in these instances, in these

small blood vessels in the membrane of a subdural can—it’s thought that

those things—that re-bleeding of these things can occur in the absence of

trauma, spontaneously or with mild trauma which might otherwise be

incidental. Now understand that what I’m talking about now is not the type

of phenomenon that is now well understood or completely understood or

has been you know historically clarified over time. It’s not the kind of thing

that physicians have a perfect handle on. So everything I’m talking about
 -20-

remains in a – a state of incomplete understanding as – as medicine

presently exists.

(T-PRC-1, 31-32).

{¶ 27} Dr. Rothfeder further testified that one of the underlying bases for his

opinions was that “on top of that [his chronic re-bleed possibility] one thing we haven’t

discussed but I believe is contributory is the fact that on top of everything else, blood

testing when she was admitted to Cincinnati Children’s indicated that the state of her

blood coagulation was not normal at that point in time.” (Id.) (Emphasis added). In more

than three pages of transcript testimony, he specifically described this poor coagulation

and how “it would have contributed to the expansion of the new bleed.” That testimony is

similar to the portion of Dr. Rothfeder’s affidavit, submitted with the petition, where he was

critical of Dr. Makoroff’s trial testimony to the effect that Marianne’s coagulation was

normal. He went on to expound upon how the abnormal coagulation made this case “as

complex in terms of many different things going on as any I’ve seen,” (Id. at 33). And, he

testified her coagulation “was not safe.” (Id. at 36). But he was wrong. On cross

examination, it was pointed out that he had incorrectly referred to the coagulation testing

from 9:16 p.m. in the evening of admission, after the intensive medical intervention of a

two-hour brain surgery with multiple medications, and not the coagulation testing at the

time of admission at 4:40 p.m. in the afternoon. He had to admit that he was incorrect

and, contrary to his affidavit and hearing testimony, that her coagulation studies were

normal upon admission when the hematoma had already formed.

{¶ 28} Dr. Rothfeder did acknowledge that what looks like “new” blood and “old”

blood when analyzing a hematoma on a CAT scan can be new blood that’s moving. In
 -21-

his opinion, formed from review of only the CAT scan, “that did not appear to me to have

been the case with this mixed density [blood].” When Rothfeder was cross examined

about Dr. Stevenson’s testimony that Stevenson saw no old blood upon surgically viewing

Marianne’s brain, Dr. Rothfeder testified he relies on “what I’ve been told by

neurosurgeons” (Id. at 49) that it is entirely possible that evacuation of an acute

hematoma wouldn’t allow visualization of old blood somewhere else in the subdural

space. So, in Dr. Rothfeder’s estimation, the absence of old blood doesn’t rule out its

presence. However, his direct testimony about his own reading of the CAT scan had been

that the old blood and new blood was in the same place. After describing what he believed

was a chronic subdural, he said that “within that [his suspected chronic subdural] there

was acute bleeding. So there was new bleeding into the chronic subdural ** * *.” (Id. at

27).

{¶ 29} With regard to the cause of Marianne’s injury on August 5, 2010, Dr.

Rothfeder opined: “* * * I mean this is the farthest thing from a—a simple case to attempt

to analyze and—and draw conclusions from and—and I think that—that really explains

the—you know the opinions that I’m attempting to express here in saying that I don’t

believe it’s—it’s really possible to draw definite conclusions in terms of the cause of that

acute subdural with any reasonable certainty.” (Id. at 33). In his ultimate conclusion, Dr.

Rothfeder stated: “I don’t think that given everything I’ve discussed that it’s possible to—

to conclude that those injuries were the result of child abuse.” (Id. at 37). A fair evaluation

of his testimony is that he does not believe in the diagnosis of abusive head trauma

because one cannot divine intent from an unobserved mechanism of injury. He agrees

the diagnosis is accepted by the majority of pediatricians and the position papers of the
 -22-

number of organizations that support the diagnosis, which he gratuitously referred to as

“the political statements that derive from those organizations.” (Id. at 54).

{¶ 30} On cross examination, Dr. Rothfeder expressed his belief that a

biomechanical engineer would be better suited than Dr. Makoroff to assess whether a

short fall could have caused Marianne’s injury. While acknowledging that biomechanical

engineers typically do not work in emergency rooms, he explained: “Well, the—if the—

the kinematics and so forth of an injury were rarely—were really rarely contributory to

what I was doing in the emergency room. I mean for instance if—if someone comes in

you know with a history of a particular injury, my job is to diagnose and treat the injury.”

Concerning Dr. Makoroff’s opinion, and consistent with his rejection of the abusive head

trauma diagnosis, he added:

* * * [W]e’re not dealing with an issue of medical treatment. Dr.

Makoroff’s role in this case didn’t involve contributing to the treatment in this

case. It involved coming to a medical legal conclusion and I think that

physicians have nothing more than anecdotal experience to attempt to

conclude for instance whether a you know a—a particular short fall could

have caused a given injury. That’s why I’m critical.

(Id. at 46).

{¶ 31} With regard to the alleged “abusive head trauma” at issue, Dr. Rothfeder

opined that “the medical diagnosis really is head trauma” and that “whether it’s abusive

or not is a medical legal conclusion.”

{¶ 32} Dr. Rothfeder additionally maintained that the presence or absence of

retinal hemorrhages in this case had no diagnostic value to him, partially because he
 -23-

believed they could have been caused by the “presence of an expanding subdural

hematoma” (Id. at 52) itself, which in his opinion had an uncertain cause. Rothfeder was

not qualified as an opthamologist, and the foregoing opinion was directly contrary to the

previously quoted testimony of Dr. Gray, the only ophthalmologist who testified in this

record. Finally, he disputed whether severe shaking ever can damage bridging veins in

the brain and result in a subdural hematoma.

{¶ 33} Jones’ other expert witness, Kenneth Monson, testified via video deposition.

Monson, who holds a doctorate in mechanical engineering, also did three years of post-

doctoral work in conjunction with the Department of Neurosurgery at the University of

California San Francisco. There he collaborated with neurosurgeons in studying the

application of force and resulting trauma. In addition, he filled a research position at a

brain and spinal injury center. His doctoral thesis involved “mechanical and failure

properties of human cerebral blood vessels.” The study concerned “the response of the

cerebral blood vessels to head trauma.”

{¶ 34} Monson testified that, based on his experience and study, the acceleration

levels from shaking someone are too low to produce a head injury such as bleeding on

the brain. According to Monson, the lowest level of G-forces that might injure a six-month-

old child is 50Gs, whereas a subdural hematoma might be expected to result at around

85Gs. Monson testified, however, that the peak accelerations associated with shaking

are around 15Gs. He stated that these numbers are peer reviewed and generally

accepted. He testified that greater G-forces would be required to injure an older child.

{¶ 35} Monson also discussed “short falls” that might occur inside a residence. He

recognized that a multitude of variables must be considered to assess whether the force
 -24-

involved could produce a given injury. They include the height of the fall, whether the

head impacted, what part of the head impacted, the characteristics of the floor, whether

anything broke the fall, any physical acceleration before the fall (such as jumping or

running), etc. With regard to Marianne’s specific injury at issue, Monson, who admits he

is not trained in medicine (Monson Depo. at 51), opined:

So, if—if she had been standing on the bed, for example, and

somehow managed to get herself to the point of the floor, whatever that

was—I don’t know what the distance from the bed was where she was

found, so I don’t know if that’s feasible.

But if she were standing on the bed and fell and hit her head, there

would be—and I should say, if it were an unprotected fall—if she struck her

head squarely on the floor without any protection, then that would produce

a significant acceleration that would potentially be in the ballpark of what we

have been talking about for injury thresholds.

If we—if we talk about—and I should say this is all for a healthy

infant—or for a healthy child. There—there aren’t really any data out there

suggesting that—that the child has previous—a pre-existing condition like

chronic bleeding, chronic subdural—I think that, based on my review of the

records, there was actually mixed density blood in the CT scan suggesting

that there was blood before, you know, that would have been present days

before this particular incident.

But, anyway, so that matters, but falling off the bed if she is standing

on it is different from if she is standing in the middle of the floor and
 -25-

somehow fell down, which is also different from if she is lying on the bed

and rolls off the bed.

Clearly, those different scenarios in order of decreasing height

become less and less severe and—to the point where I don’t think you could

achieve the levels of acceleration required to produce injury from that—from

rolling off that 13-inch bed.

(Id. at 40-41).

{¶ 36} In Monson’s opinion, depending on how such a fall occurred, the range of

possibility of a serious injury would go from “almost impossible to do it to it could happen.”

More specifically, he explained that “the accelerations could range from, you know,

significantly over 100Gs down to 0, basically.” Monson stated that he was unaware of any

observed case in which shaking had produced a subdural hematoma. He was aware of

an observed case in which a “short fall” had produced such an injury.

{¶ 37} On cross examination, Monson conceded that serious injuries from short

falls are “pretty rare” and “quite unlikely.” (Id. at 67). He also stated that he could not draw

a conclusion in the present case as to whether a short fall in fact produced Marianne’s

injury. Monson recognized that if Marianne had been shaken and then “slammed” against

something causing an impact, the slamming would significantly increase the acceleration

and deceleration levels. He reiterated, however, that “the accelerations associated with

shaking are very low compared to the thresholds for injury * * * like a subdural

hematoma[.]” (Id. at 82). Finally, when asked whether the injury in this case was from a

short fall he said “I can’t actually draw an opinion on what - - what caused it.” (Id. at 68).

{¶ 38} Jones’ final witness, Andrew Wannemacher, testified about his efforts as
 -26-

defense counsel at trial. Specifically, he discussed his cross examination of the State’s

medical experts. Wannemacher also admitted realizing, at the outset of his involvement,

that “there needed to be an expert for the defense to not only explain the medical

documentation that had been provided by the State, but also to counteract Dr. Makoroff’s

shaken baby syndrome or abusive head trauma” theory. Wannemacher explained that he

did file a motion for a medical expert. He recalled the trial court required him first to get a

medical opinion that an expert would be helpful to the defense and to provide a fee

estimate. To do that, Wannemacher contacted a Dr. Miller at Dayton Children’s Hospital,

who agreed to review the documentation but refused to participate as a trial witness.

Wannemacher testified that Dr. Miller never followed up, or indicated whether he had

reviewed any materials. Wannemacher never received an opinion from him.

Wannemacher contacted other doctors but concluded on his own that their fees were

beyond what the trial court would authorize. As a result, he never obtained an expert

witness to assist with the defense. He also never consulted a medical or biomechanical

expert to determine whether a short fall could have produced Marianne’s injury.

Wannemacher testified that he reviewed approximately 2,000 pages of medical records

himself but did not “adequately understand what they meant.” He testified that his failure

to obtain the assistance of an expert witness was not a strategic decision. After the first

case against Jones was nolled, and then refiled, Wannemacher did not refile his motion

for an expert witness because he assumed that he would not be able to get one.

According to Wannemacher, he would have called a medical expert to testify if he had

one.

{¶ 39} The only other witness at the hearing was Dr. Robert Shapiro, a child-abuse
 -27-

pediatrician from Cincinnati Children’s Hospital, who was called to testify by the State.

Dr. Shapiro is the director of the Mayerson Center for Safe and Healthy Children at the

hospital, is an attending physician there, and is board certified in both pediatrics and child

abuse pediatrics. He has been practicing pediatrics for over thirty years in Ohio and

previously for seven years in New York. He has testified in court in those fields about

twice a month for the last 25 years and estimated the totals would be between 400 and

500 times. Although he said he almost always testifies on behalf of the prosecution, he

did serve as an expert for the Baltimore Public Defender’s Office. He has reviewed “lots

and lots of cases for the defense” (T-PCR-2, 38), but if he made a determination that child

abuse was not warranted, “the case doesn’t go,” so he has only testified in court a couple

of times for the defense. (Id. at 38-39).

{¶ 40} Based on his review of the records in this case, Dr. Shapiro agreed that

Marianne was a “very complex medical patient” (T-PCR-2, 19). But he rejected Dr.

Rothfeder’s opinion that the child’s VATER Association or any other existing medical

complications predisposed her to, or contributed to, the injury she suffered on August 5,

2010. He observed that her liver was functioning well, which is critical because that is

responsible for many aspects that keep a child from bleeding (T-PCR-2, 15). He also

disagreed with Dr. Rothfeder’s opinion that a short fall could have produced a subdural

hematoma like Marianne experienced that day. According to Dr. Shapiro, the child’s

injuries were consistent with abuse rather than a short fall. Dr. Shapiro also opined that

biomechanical engineering studies cannot accurately assess the forces generated from

different traumatic events involving children. With regard to the latter, he explained:

I would tell you that the biomechanical studies are flawed right now
 -28-

and too limited to be abuse (sic) [of use] to making a diagnosis and

understanding cause and effect. That’s not to say that I don’t have hope

one day that biomechanical studies will be more informative in this area and

they are still undergoing but it’s a remarkably difficult thing to study. The

head is far more complex than a lake. We barely have biomechanical

studies to understand what happens when a child falls. It’s way too

complicated in terms of mass of the child, size of the bone, angle that the

bone strikes, the manner that the child fell, how the bone ends up, what

parts of the other parts of the body, so we’re beginning to understand a little

bit more about what type of all, stair falls might result to what type fractures.

The head is unbelievably more complex than a femur. And we have – we

probably actually have – will never have any way to understand why type of

angular and other forces are required to cause a bridging vein to rupture

and what different individual factors are involved, so do I actually have hope

that biomechanical engineers will actually be able to tell us what actually

happens? No, I actually don’t. Maybe they will. I can tell you that we have

lots of data and lots of experience from accidental falls, from witnessed falls,

we have lots of experimental data that tells us about children who we know

have been abused because of a multitude of other reasons who have

injuries exactly like [Marianne] has and we have lots of experience knowing

what kinds of injuries happen to kids who fall. So that’s the data that we

have. That’s good data. It’s not biomechanical data.

(T-PCR-2, 51-52).
 -29-

{¶ 41} Dr. Shapiro compellingly contradicted Dr. Rothfeder regarding whether

Marianne had an older, chronic subdural hematoma and a newer, acute subdural

hematoma, i.e., “old” blood and “new” blood, giving four distinct reasons why Rothfeder’s

supposition is incorrect.

* * *A number of reasons. So the radiographic appearance actually

shows as you correctly said mixed densities on the CT Scan. And what the

CT Scan shows is the radiographic appearance from the computed

tomography scan of what is inside the cranium. And there is – there is fluid

between the brain and the sku (sic) – skull, that’s within a particular space

that is correctly referred to as a subdural compartment, subdural space and

it shows a mixed density. [Rothfeder] is correct about that. The

interpretation of what those mixed densities are cannot be determined with

any reliability based upon the CT Scan alone. One explanation is exactly as

he states, that it’s old blood with new blood bleeding into that space and

mixing with the old blood. That is one possibility. Then the other possibility

is that this is all new blood that shows different densities because what we

believe is movement of the blood, in other words active bleeding. So an

informed radiologist cannot make that determination and I am aware that

many radiologists are – are not current and they believe that they know and

they’re – they don’t, they’re wrong. So that’s number one. Number two, in

this particular instance, [Marianne] had a CT Scan of her sinuses for

evaluation of the nasal fracture and there was less than two weeks, I don’t

forget- I don’t remember the exact number of days, maybe ten, eleven days
 -30-

apart. That CT Scan shows us the space between the brain and the skull,

the subdural space. We don’t see the entire subdural space but we see the

frontal lobes and there is no fluid in there. So in terms of chronic or even –

chronic blood on top of old blood well it would have been there, should have

been there at the time and there was no evidence that it was there. So in

this case, although radiographically we can’t say whether this is new blood

on old or all new, we do have the benefit of a fairly recent CT Scan and the

blood was not there. So that’s a powerful argument to suggest that this is

not new on top of chronic but it’s all new. And then lastly, not lastly, number

three, this child had surgery and the neurosurgeon opened the child’s skull

and looked at what was in there and saw no evidence of chronic subdural.

So we wouldn’t expect chronic subdural and the neurosurgeon didn’t see

any chronic subdural. And then number four, we recognize that there is a

possibility that children who have abnormal subdural space, which would

be chronic subdural fluid in the space, that they might re-bleed, they might

have bleeding on top of that chronic fluid with minimal impact. This is area-

actually a area of study that we are still learning about. We – we know a

limited amount. Some people actually don’t believe that this predisposes

children. I have – I happen to be somebody who does believe that it – it

does predispose to bleeding. However, the bleeding that it predisposes to

has nothing to do with the kind of bleeding and life threatening event that

[Marianne] had. So, I would tell you that beyond a reasonable degree of

medical certainty this is new blood and we had absolutely no reason to
 -31-

believe there’s old blood in there and we have some evidence to suggest

that there was no old blood in there.

(T-PCR-2, 24-26).

{¶ 42} Dr. Shapiro also rejected Dr. Rothfeder’s opinion that Marianne’s retinal

hemorrhages had no diagnostic value. Dr. Shapiro agreed that retinal hemorrhaging is

not “pathogonomic” (meaning a definitive diagnostic sign indicative of a particular

condition) but he testified it was irresponsible to ignore it. Dr. Shapiro also disagreed with

Dr. Rothfeder’s opinion that the existence of the subdural hematoma itself may have

caused the retinal hemorrhages in this case. He stated: “It doesn’t cause hemorrhaging

like we saw in [Marianne].” (Id. at 30).

{¶ 43} Dr. Shapiro testified that he disagreed with Dr. Rothfeder’s suggestion in

his report that a short fall could have caused Marianne’s injury.

* * * He is right, and I agree, that short falls can at times cause

unexpected intracranial injury including bleeding and we – I recognize this.

Sometimes remarkably minimal impact results in intracranial bleeding. The

– the types of bleeding that occurs from a short fall is not the type of bleeding

and not the scenario that we see in [Marianne]. Typically, short fall

bleedings – bleeding from short falls will be directly on the site of impact.

[Marianne]’s was in the classic distribution that we see in kids who have

suffered shaken injuries. And children who have trauma and head injury

from short falls will, at most, have very minimal retinal hemorrhaging.

Typically, they will have no retinal hemorrhages, that’s bleeding behind the

eyes. When they do have bleeding behind the eyes, it’s limited to a small
 -32-

part of the retina. [Marianne] had bleeding in multiple layers and devastating

bleeding. So, this is frankly as a physician it would be irresponsible for me

to suggest that [Marianne’s] intracranial injury was a result of a short fall.

***

* * * I’ve certainly seen kids who have unexpected injury from such

minor falls as falling back on the back of the head. These are unusual, they

can happen, but they don’t look like [Marianne]’s injuries. So, it’s my

experience includes kids who fall off of couches, fall off of beds, fall off of

changing tables, fall off of bunk beds, kids who fall off the swings, kids who

fall in playgrounds, kids who get their heads knocked in sporting injuries,

these are all bread and butter pediatric emergency medicine type findings

and they don’t look anything like the injuries that [Marianne] presented with.

***

(Id. at 16-18).

{¶ 44} With regard to whether abusive head trauma or shaken baby syndrome is

widely accepted, Shapiro testified it is widely accepted in a large number of medical fields.

In regard to those who do not believe in the diagnosis, he said:

* * * It’s a tiny fraction of the medical community that speaks a very

loud voice. There’s broad acceptance and concurrence among

neurosurgeons, neurologists, radiologists, pediatricians in the diagnosis of

shaken baby syndrome. We have no debate. There is no debate in the

medical field, except for a small handful of individuals who, for whatever

reasons, feel that they need to speak very loudly about a so-called debate.
 -33-

The debate is trumped up and doesn’t exist.

(Id. at 33).

{¶ 45} In conclusion, Dr. Shapiro opined that Marianne’s injury was inconsistent

with an accident and was indicative of abusive head trauma. On cross examination, he

elaborated on that opinion: “* * * But you’ve got retinal hemorrhages in multiple layers,

you’ve got terrible intracranial bleeding, you got no serious trauma. So as a responsible

physician, the—any diagnosis other than child abuse would be rather difficult to come up

with.” (Id. at 55).

The trial court decision

{¶ 46} Based on the evidence presented, the trial court overruled Jones’ post-

conviction relief petition in an October 2016 decision and judgment entry. (Doc. #68). It

held that attorney “Wannemacher’s representation of the defendant was not objectively

unreasonable, the defendant was not prejudiced by counsel’s performance, and the

defendant has failed to show that the result of the trial would not [sic] have been different

but for counsel’s representation.” The trial court reasoned that Wannemacher had

engaged in effective cross examination of the State’s experts. It discounted Monson’s

expert testimony, pointing out that no biomechanical studies ever have been performed

measuring the effect of forces on the brains of live humans. The trial court additionally

found “little support” for Jones’ “re-bleed” theory.

{¶ 47} With regard to Wannemacher’s failure to secure any expert witnesses, the

trial court concluded that counsel’s failure to do so “does not rise to the level of ineffective

assistance of counsel, since the defendant has not shown a reasonable probability that

the testimony of additional experts would change the outcome of this case.” The trial court
 -34-

found that Dr. Rothfeder’s testimony about short falls and retinal hemorrhages was “called

into question” by the contrary opinions of Dr. Makoroff and Dr. Shapiro, who the trial court

found more credible largely because Dr. Rothfeder lacked “clinical experience” to testify

about a child with Marianne’s “complicated and unusual medical conditions.” The trial

court also credited Dr. Shapiro’s testimony that the nature of Marianne’s retinal

hemorrhages and extensive subdural hematoma were inconsistent with a short fall. In

addition, the trial court found no credible evidence of any “acute on chronic” re-bleeding.

{¶ 48} As for Monson, the trial court noted that his experience is laboratory in

nature and that hospitals do not employ biomechanical engineers. The trial court

determined that his testimony was not “particularly probative of the issues” in this case.

The trial court also pointed out that Monson had discounted confessions involving injuries

to shaken babies because the confessions might have been false or the defendants might

have both shaken and struck the victims. The trial court then reasoned:

Dr. Makoroff’s testimony at trial was that [Marianne] suffered abusive

head trauma, the likes of which are consistent with shaking and impact with

a soft surface. The defendant was not prejudiced by trial counsel’s failure

to call an expert to testify on his behalf. [Marianne’s] complex medical

history causes Dr. Rothfeder to erroneously conclude she is chronically

fragile and that must be why she was so badly injured. Dr. Makoroff and Dr.

Shapiro, whose entire careers have exclusively involved the care and

treatment of children, have the necessary medical training and clinical

experience to know, to a reasonable degree of medical certainty, that

[Marianne] suffered abusive injuries, consistent with their experience with
 -35-

both abuse injuries and accidental short falls. The proposed expert

testimony would not have discredited Dr. Makoroff or Dr. Stevenson’s

testimony and would not have affected the outcome of the case.

{¶ 49} Finally, the trial court found no ineffective assistance of counsel based on

Wannemacher’s failure to call witnesses from Upper Valley Medical Center to testify

about the UVMC CT scan reference to an acute-on-chronic subdural hematoma or his

failure to impeach Dr. Makoroff with UVMC records on that issue. The trial court reasoned

that Wannemacher had conducted effective cross examination and that there was “little

medical support” for the acute-on-chronic theory.

III. Analysis of Present Appeal

{¶ 50} Jones has appealed from the trial court’s denial of post-conviction relief.

The governing statute, R.C. 2953.21, provides that “[a]ny person who has been convicted

of a criminal offense * * * and who claims that there was such a denial or infringement of

the person’s rights as to render the judgment void or voidable under the Ohio Constitution

or the Constitution of the United States * * * may file a petition in the court that imposed

sentence, stating the grounds for relief relied upon, and asking the court to vacate or set

aside the judgment or sentence or to grant other appropriate relief.” R.C.

2953.21(A)(1)(a).

{¶ 51} We review a trial court’s denial of post-conviction relief for an abuse of

discretion. State v. Sapp, 2d Dist. Clark No. 2015-CA-43, 2017-Ohio-1467, ¶ 6. An abuse

of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of

the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

“A decision is unreasonable if there is no sound reasoning process that would support
 -36-

that decision.” Parrett v. Wright, 2017-Ohio-764, 85 N.E.3d 1067, ¶ 13 (2d Dist.).

Moreover, we have previously indicated that we defer to the trial court’s finding with regard

to credibility in post-conviction proceedings. State v. Hathaway, 2015-Ohio-5488, 55

N.E.3d 634, ¶ 21 (2d Dist.). We have recognized that during an evidentiary hearing on a

post-conviction relief petition, the trial court serves as the trier of fact and is charged with

assessing the credibility of the witnesses. State v. Robinson, 2d Dist. Greene No. 2013-

CA-33, 2014-Ohio-1663, ¶ 36; State v. Hamilton, 2d Dist. Clark No. 98 CA 98, 2000 WL

282303, *5 (March 17, 2000).

{¶ 52} Jones’ petition alleged ineffective assistance of counsel, which can

constitute grounds for post-conviction relief. State v. Robinson, 2d Dist. Greene No. 2013-

CA-33, 2014-Ohio-1663, ¶ 20. He claimed ineffective assistance based on, among other

things, Wannemacher’s failure to retain one or more expert witnesses to assist in his

defense. A defendant is deprived of effective assistance of counsel when (1) counsel’s

performance is deficient and (2) that deficient performance prejudices the defendant.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To

establish prejudice, a defendant must do more than show that counsel’s deficient

performance had a conceivable effect on the outcome of the proceeding. State v.

Hathaway, 2015-Ohio-5488, 55 N.E.3d 634, ¶ 12 (2d Dist.), quoting Strickland at 693. For

ineffective assistance of counsel to cause prejudice, such a result does not have to be

shown by a preponderance of the evidence. “The defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id., at 694.
 -37-

Grounds asserted in the post-conviction petition.

{¶ 53} Specifically, in his petition, Jones raises four distinct grounds as a bases for

relief. We review these grounds and the trial court’s disposition of them in an order that

facilitates our analysis. The first raised ground is that trial counsel “failed to reasonably

investigate and challenge the medical records in the case.” (Doc. #43 at 32). The focus

of this contention is that counsel should have done more to challenge Dr. Makaroff’s

opinions. Jones asserts that Marianne “did, in fact have a bleeding disorder” (Id. at 33),

that a short fall could not be ruled out as a cause of the injury because Monson said a

short fall is of much higher acceleration than shaking, and that Makaroff’s elimination of

a re-bleed possibility went unchallenged. Essentially, this ground of the petition claims

the medical records demonstrate Dr. Makaroff was wrong on the issues of “bleeding

disorder, short fall, and acute on chronic subdural hematoma.” (Id. at 35). The trial court

reasonably found no support for this ground, and we agree.

{¶ 54} With regard to the medical records supporting the notion that Marianne had

a “bleeding disorder,” the trial court concluded that contention was based on a

“misstatement,” which we characterize as a plain mistake, by the medical expert Jones

presented. No further consideration of a failure to present evidence of a non-existent

bleeding disorder is warranted.

{¶ 55} With regard to injury from a short fall, a term for which there is no apparent

accepted definition, the trial court noted that the essence of Monson’s testimony was only

that impact from a short fall would produce larger accelerations than shaking. We believe

in addition that Monson’s testimony also supports a biomechanical opinion that shaking

alone would not cause Marianne’s subdural hematoma. But, in any event, we agree with
 -38-

the trial court that Monson’s testimony was “not particularly probative of the issues

involved” in the post-conviction proceeding and would have had “negligible probative

value.” We note that although Dr. Makaroff testified that such an injury could result from

being “shaken violently,” her opinion of abusive head trauma included the potential of an

“impact to her head” (T-2, 78) or slamming onto a soft or hard surface (Id. at 87). Her

testimony that this type of injury “requires a great bit of force” (T-2, 63) is not inconsistent

with Monson’s. The inconsistency between Monson’s testimony and that of Dr. Makaroff’s

is Monson’s opinion that shaking alone does not result in sufficient G-force to result in an

injury like Marianne’s. We also note from the testimony that we have quoted, Monson’s

admission that he could not say Marianne’s injuries were from a short fall (Monson Depo.,

68) and that such results are “pretty rare.” (Id. at 67). The trial court also considered the

post-conviction testimony of Dr. Shapiro to the effect that Marianne’s injury was not the

result of a short fall. In sum, the trial court did not abuse its discretion by concluding that

the post-conviction evidence about the possibility of a short fall would not have made any

difference.

{¶ 56} In his petition, Appellant argues that “Dr. Stevenson admitted that he would

not have been able to see the old blood because of the active bleeding in [Marianne’s]

brain at the time.” (Doc. #43 at 34). We believe that argument is inconsistent with the

entirety of Dr. Stevenson’s testimony. Dr. Stevenson concluded there was no evidence

of a prior subdural hematoma. We have also quoted Dr. Shapiro’s testimony on the

subject, which we referred to as compelling. On this record, no reasonable juror would

conclude that Marianne had a prior subdural hematoma or a re-bleed thereof.

{¶ 57} Ground III of the petition asserts that counsel was ineffective when he “failed
 -39-

to call the Upper Valley Medical Center treating physicians and Radiologists as

witnesses.” (Doc. #43 at 38). We observe that if this ground were sufficient to constitute

ineffective assistance of counsel, a conclusion we do not embrace, current counsel has

repeated it. Those potential witnesses were not called to the post-conviction hearing.

Consequently, petitioner has presented no evidence that calling those witnesses would

have made any difference. On this ground, the trial court wrote that “there is little medical

support that there was an acute on chronic subdural hematoma that caused [Marianne’s]

hematoma. The CT scan from UVMC alone is not sufficient to make that determination.

The CT scan reveals the possibility of mixed-density blood but that is not substantiated

by the prior facial CT scan from her nasal fracture showing no subdural hematoma at all

or Dr. Stevenson’s observation of [Marianne] during brain surgery.” (Doc# 68 at14). We

do not find the trial court was unreasonable in rejecting this ground for relief in the petition.

{¶ 58} Enumerated Ground IV of the petition states that trial counsel was

ineffective when he “failed to impeach Dr. Makaroff with medical records that were readily

available”. (Doc.# 43, 40) The medical records specifically itemized are a) the UVMC

records to contradict that there was no evidence of an acute on chronic subdural

hematoma and b) the Children’s Hospital records regarding a bleeding disorder.

Petitioner argued that introduction of these records would have impeached Dr. Makaroff’s

testimony. In reverse order, there is no record that demonstrates a bleeding disorder at

the time of admission to Children’s. And, there is no reasonable possibility the UVMC CT

scan record we have discussed at length would have had any influence on Dr. Makaroff’s

testimony let alone the speculation that it would have impeached her testimony. There is

no reasonable probability that this ground would have impacted the trial whatsoever.
 -40-

Ground II, failure to retain an expert

{¶ 59} The remaining Ground II for relief is that Jones’ counsel was ineffective

“when his attorney failed to retain an expert to provide trial testimony”. (Doc. #43 at 35).

In our opinion, because trial counsel did not sufficiently exhaust attempts to obtain the

assistance of or the testimony of an expert witness, and he was therefore not in a position

to make an informed decision whether or not to call an expert to testify, we conclude the

trial court’s decision finding no deficient performance by Wannemacher was

unreasonable. Nonetheless, on this record, given the trial and post-conviction evidence,

we conclude the trial court did not abuse its discretion by finding there is not a reasonable

probability of a different result and denying the post-conviction motion for relief.

A. Deficient Representation

{¶ 60} We find it unreasonable to conclude that Wannemacher provided non-

deficient representation by failing to engage an expert to assist in the defense and to

allow counsel to be able to make an informed decision whether to have that expert testify.

We do not dispute that Wannemacher himself prepared for the issues in the trial. A

summary of Jones’ contentions in his post-conviction evidence is that 1) Marianne was a

complex patient, a fact that contributed to her injury, 2) there is a possibility of an acute-

on-chronic hematoma, 3) a short fall can cause a subdural hematoma, 4) Marianne had

a bleeding disorder, and 5) a retinal hemorrhage is not diagnostic. We eliminate the

bleeding disorder because it did not exist. With regard to each of the other post-conviction

contentions, Wannemacher’s cross examination at trial and his testimony at the post-

conviction-relief hearing both reflect significant preparation to show he was familiar with

and inquired about each of the contentions raised in post-conviction, and he was able to
 -41-

obtain several concessions from the State’s witnesses.

{¶ 61} In the case of Flick v. Warren, 465 Fed.Appx. 461 (6th Cir. 2012), the Sixth

Circuit Court of Appeals indicated in a 1998 shaken-baby death case that it was not

ineffective assistance of counsel to decide not to further seek an expert after counsel

received unfavorable responses from three doctors he had contacted for help. Under

those circumstances, “effective assistance of counsel does not require counsel to

continue contacting experts until he has found one.” Id. at 464. On the other hand, here

we conclude Wannemacher’s efforts to obtain an expert were simply insufficient to

demonstrate that he made a strategic choice to proceed without an expert. “Strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on investigation. In

other words, counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Strickland at 690-

691.

{¶ 62} On this record, we see no sound reason for Wannemacher’s admitted

failure to retain an expert to assist with medical issues, and to put counsel in a position to

make a strategic decision whether that expert should be called to testify. That failure was

not “objectively reasonable” and was deficient. The evidence established that Jones and

the child’s mother had put the child down for a nap shortly before the injury. Jones testified

in his own defense and claimed subsequently to have found the child on the floor

unresponsive. The State’s experts ruled out any other cause and opined that Marianne’s

condition must have been the result of abuse by Jones. At that point, although there were

concessions about other potential causes of Marianne’s injury, Jones should have been
 -42-

in a position to decide whether to call an expert in his defense. Due to defense counsel’s

failure to retain an expert, he had little beyond Jones’ own testimony to offer. We do not,

and need not, resolve the question of whether Wannamaker, armed with the experts who

testified in post-conviction, could have made a strategic decision not to call them after he

had obtained some concessions on each of the medical issues called into question.

B. Prejudice

{¶ 63} The remaining issue is whether Jones was prejudiced by defense counsel’s

failure to retain an expert and/or to call an expert to testify at trial to rebut the State’s

experts. The trial court found no prejudice to Jones based largely on its evaluation of the

credibility of the competing experts. With regard to defense experts Dr. Rothfeder and

Monson, the trial court found that the nature of their experience made them less credible

than the prosecution’s experts. It reasoned:

The court found the testimony of defendant’s experts, Dr. Rothfeder

and Dr. Monson, to have negligible probative value in evaluating their

criticisms of and differences with the testimony of Dr. Makoroff and Dr.

Stevenson. This conclusion is based in no small part on the vast difference

in clinical experience between [Marianne’s] treating physicians at Cincinnati

Children’s Hospital and Dr. Rothfeder, and, in the case of Dr. Monson, the

absence of clinical experience. The testimony of the defendant’s experts

does not demonstrate to this court a probability that the jury would have

reached a different verdict.

{¶ 64} The trial court also found more credible the prosecution experts’ testimony

about retinal hemorrhages, the “re-bleed” dispute, the inability of a short fall to cause
 -43-

Marianne’s injuries, and abusive head trauma actually causing the child’s injury. We

recognize that “expert witnesses in criminal cases can testify in terms of possibility rather

than in terms of a reasonable scientific certainty or probability.” State v. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 77. “The treatment of such testimony

involves ‘an issue of sufficiency, not admissibility.’ ”Id., quoting State v. D'Ambrosio, 67

Ohio St.3d 185, 191, 616 N.E.2d 909 (1993).5 But when experts testify about a variety of

possibilities or about underlying suppositions that are unsupported by the weight of the

evidence, the strength of their opinions has less weight than those expressed to a

reasonable medical certainty.

{¶ 65} As set forth above, Dr. Rothfeder opined that it would be impossible “to draw

definite conclusions in terms of the cause of [Marianne’s] acute subdural with any

reasonable certainty” and that it would be impossible “to conclude that those injuries were

the result of child abuse.” (T-PCR-1, 17). But a fair reading of his entire testimony is that

he would testify to that effect regardless of the medical aspects of this case because there

was no witness to or admission about the mechanism of injury and in those circumstances

he does not believe in the abusive head trauma/shaken baby diagnosis at all. (T-PCR-1,

37). The potential contributing causes Dr. Rothfeder identified were re-bleeding of a prior,

chronic subdural hematoma, a complex patient with ongoing infection related to the earlier

nasal fracture, a “short fall,” and his mistaken bleeding disorder, none of which did he

specify was the probable or reasonably certain cause of Marianne’s injury. We previously

indicated Appellant complains that in closing argument, the prosecutor seized on the

5 A more cogent reason for allowing criminal-case experts to testify about “possibilities”
is that the defense has no burden to prove what happened, but may raise reasonable
doubt about what possibly may not have happened.
 -44-

absence of any competing expert testimony at trial and “emphasized that ‘no doctor or

any other witness ever said there is an old injury that’s related to the injury [Marianne]

suffered’.” (Appellant’s Merit Brief at 6). Even if Jones’ post-conviction medical expert had

testified at trial, the preceding closing argument could still accurately and correctly have

been made because that defense expert testified in terms of possibilities rather than

certainty or probability. For instance, regarding the existence of a chronic hematoma, he

stated: “So a variety of possibilities are in play * * *.” (T-PCR-1, 30). And with regard to

the possibility of spontaneous or mild trauma as a cause of re-bleeding, he said: “[W]hat

I’m talking about now is not the type of phenomenon that is now well understood or

completely understood or has been you know historically clarified over time. It’s not the

kind of thing that physicians have a perfect handle on. So everything I’m talking about

remains in a – a state of incomplete understanding as – as medicine presently exists.”

(Id. at 32). Moreover, had the defense called Dr. Rothfeder at trial, his mistaken testimony

about Marianne’s non-existent bleeding disorder, which he said contributed to his

analysis, likely would have resulted in further loss of credibility with the jury.

{¶ 66} The trial court additionally discredited Monson’s testimony because he

lacks clinical experience, biomechanical studies have not been performed measuring the

effect of impact forces on the brains of live humans, and Monson’s experience is

laboratory in nature and hospitals do not employ biomechanical engineers. In our view,

taking Monson’s testimony at face-value leads to the conclusion that an intensely forceful

event occurred in Marianne’s bedroom, which is consistent with the opinions of Drs.

Stevenson, Makaroff, Gray, and Shapiro and contrary to the opinions of Dr. Rothfeder.

{¶ 67} To be sure, we recognize that there are those, including Jones’ post-
 -45-

conviction experts, who reject the diagnosis of abusive head trauma. Our research, and

the evidence in this case, supports a belief that acceptance of the diagnosis is by far the

prevailing view. See, e.g., Sandeep Narang, M.D., J.D., A Daubert Analysis of Abusive

Head Trauma/Shaken Baby Syndrome, 11 Hous. J. Health L. & Pol’y 505-633 (2011).

Criticism is often fostered by the legal defense community adopting the minority medical

opinion. See, e.g., Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby

Syndrome and the Criminal Courts, 87 Wash. U. L.Rev. 1, 27 (2009). Some courts have

also joined the fray by doing their own literature analysis to support a conclusion for one

side or the other. See, e.g., Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d 311

(2011) (Ginsburg, J., dissenting) (citing biomechanical and other studies raising doubt

about shaken baby syndrome, most particularly whether it can be caused by shaking

alone). But our function and duty is not to weigh in or vote for one side or the other, let

alone solve any disagreement of some in the medical community. Nor is it our position to

substitute how we might have ruled on the petition if we had considered it in the first

instance. Our review is to determine whether the trial court abused its discretion in its

ruling.

{¶ 68} Having painstakingly reviewed the record, we conclude that the trial court’s

credibility analysis was not unreasonable and did not in itself constitute an abuse of

discretion. We also determine that the trial court did not abuse its discretion when it

concluded that the post-conviction evidence, in the context of the entire record, would not

support a reasonable probability of a different result. Finally, Jones’ post-conviction

evidence is not sufficient to undermine our confidence in the outcome of his trial.

IV. Conclusion
 -46-

{¶ 69} Based on the reasoning set forth above, we overrule Jones’ assignment of

error and affirm the judgment of the Miami County Common Pleas Court.

.............

TUCKER, J., concurs.

FROELICH, J., dissenting;

{¶ 70} I would hold that the trial court acted unreasonably in finding that there is

not a reasonable probability that, had the defense called experts, the result would have

been different. This does not mean that the Appellant probably would have been found

not guilty with “evidence to support his story,” only that it is not unreasonable to so

conclude.

{¶ 71} Marianne slept in the same room as her mother and Appellant and the injury

happened during a “window” when the child was not connected to any medical support

equipment. (T-1, 202) Although the prosecutor speculated in closing that there were

incidents that might have angered the Appellant and caused him to momentarily “step too

far over that cliff” (T-3, 9), there was no testimony or evidence that the Appellant had ever

been abusive to Marianne or anyone prior to the day of the injury; nor was there any

evidence that he had a quick temper or was prone to fits of anger or was anxious,

overwhelmed, or upset on the day of the injury.

{¶ 72} The State argued that motive is not an element and that Appellant’s

testimony that “I don’t know what happened to her,” “just doesn’t cut it in the face of the

medical evidence that we have in this case.” (T-3, 4). “If he asks you to believe something,

which he did, there has to be evidence to support it. And the medical evidence does not
 -47-

support his story” (emphasis added) ( T-3, 11). “No matter what defense counsel tells

you, use your collective memory; no doctor or any other witness ever said there is an old

injury that’s related to the injury she suffered on August 5, 2010 …” (T-3, 11); the

evidence, the prosecutor argued, “doesn’t support” any of those “theoretical possibilities”

suggested by defense counsel. “It defies medical evidence that it- this injury could have

been caused by a non-event, which is what the Defendant would have you believe” (T-3,

31), but rather it had to be “shaking her or hitting her against a soft surface.” (T-3, 37).

{¶ 73} The State’s arguments were based on the only evidence the jury heard; and

the jury’s verdict was, as we held on direct appeal, not against the manifest weight of the

evidence. The State concluded that “… you can follow the medical evidence and the

expert testimony and the vast experience on this particular topic, or you can follow what

the Defendant said…” (T-3, 30). In other words, in the absence of any medical explanation

to the contrary, the jury should believe the unrebutted scientific, medical testimony the

State produced and not the denial of a person with no “evidence to support it” and

with an obvious reason not to tell the truth. As in Ceasor v. Ocwieja, 655 Fed.Appx. 263

(6th Cir. 2016), “The expert is the case.” (Emphasis in original and internal citations

omitted.) 6

{¶ 74} The trial court’s wholesale rejection of Monson’s bio-mechanical-based

testimony and its total discounting of Rothfeder’s testimony, based on his different

6
In Ceasor, a federal habeas corpus case, the state court had denied an appeal of an
ineffective assistance of counsel claim without holding a hearing where the defendant
could introduce his own experts’ testimony on what they would have said at trial. Here,
the trial court held the hearing and, as stated above, found there was no reasonable
probability of a different result. In neither case did the defense call any experts and the
convictions were dependent on the State’s experts alone.
 -48-

professional experiences than the State’s physicians, deprived Appellant of the right to

have the jury make such credibility decisions.7 I appreciate that in a PCR hearing, the

court may sometimes make such judgments. However, in this entirely circumstantial case

without any other inferentially-supportive evidence of the Defendant’s actions, and where

competent evidence exists that is not a “theoretical possibility,” confidence in the fairness

of the proceeding and the outcome of the case is undermined.

Copies mailed to:

Janna Parker
Nikki Baszynski
Hon. Christopher Gee

7 See, e.g., Poulin, Tests for Harm in Criminal Cases: A Fix for Blurred Lines, 17 U. Pa.
J. Const. L. 991 (2015), at 1059, discussing the differences between how judges and
jurors react to certain evidence.