State v. Hooper

[Cite as State v. Hooper, 2022-Ohio-2990.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-21-35

v.

CHEYENNE N. HOOPER, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Trial Court No. CR2019 0491

Judgment Affirmed

Date of Decision: August 29, 2022

APPEARANCES:

Stephen T. Wolfe for Appellant

Jana E. Emerick for Appellee
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ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Cheyenne N. Hooper (“Hooper”), appeals the

July 27, 2021 judgment entry of sentence of the Allen County Court of Common

Pleas. For the reasons that follow, we affirm.

{¶2} L.S., born July 18, 2018, is the minor child of Hooper and Ebin Stratton

(“Stratton”). Following her birth, L.S. was diagnosed with torticollis (neck

tightness), which resulted in her developing plagiocephaly (a flattening of the skull

requiring her to wear a helmet to re-shape her head).

{¶3} This case stems from an incident on March 13, 2019 during which L.S.

incurred a “constellation” of life-threatening injuries, including a subdural

hemorrhage, which caused a midline shift; edema in the tissue and muscle of her

neck, which was suggestive of hyperflexion and a contusion-type injury; and

intraretinal hemorrhages. (May 24-28, 2021 Tr., Vol. II, at 381-382, 387).

{¶4} On the morning of March 13, 2019, Stratton left the home that he shared

with Hooper and L.S. for work. At approximately 12:00 p.m., Stratton received a

frantic phone call from Hooper indicating that L.S. had fallen and hurt her neck. In

response to a 911 emergency call, emergency responders arrived at the residence

and found L.S. unresponsive. As a result, the emergency responders rushed L.S. by

ambulance to the emergency department of (former) St. Rita’s Hospital (“St.

Rita’s”). Hooper reported to the emergency responders that L.S. had fallen off the

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(adult) bed and hit her head. Fortunately, following L.S.’s arrival at the emergency

department of St. Rita’s, L.S. “was much more responsive” “but not to the extent of

a normal child.” (May 24-28, 2021 Tr., Vol. II, at 215, 221). However, because of

the extent of L.S.’s injuries, the emergency-department staff of St. Rita’s contacted

Allen County Children Services (“ACCS”) to report L.S.’s condition.

{¶5} Immediately following Hooper’s frantic call, Stratton left work to

attend to L.S. After Stratton arrived to the emergency department of St. Rita’s,

Stratton was informed that L.S. needed to be intubated and sent by life flight to the

emergency department of Nationwide Children’s Hospital (“Nationwide”) in

Columbus, Ohio “[a]s a Level I neuro trauma alert.” (Id. at 273).

{¶6} Following L.S.’s arrival at the emergency department of Nationwide,

Hooper described L.S.’s trauma to Lauren Lathem (“Lathem”), a clinical medical

social worker with Nationwide. Specifically, Hooper informed Lathem that L.S.

“had just recently started having * * * lots of movement, as a typical seven month

old,” “that [Hooper] had sat her on the bed”; Hooper “turned her head for just a few

moments and that [L.S.] had fallen off the bed” approximately “two and a half feet”

and “that she landed on the carpet.” (Id. at 278). According to Lathem, Hooper

reported that L.S. “cried * * * so she sat her on the bed and that [L.S.] then tilted

her head backwards and described her eyes * * * as halfway closed.” (Id.). Hooper

reported that she had been previously diagnosed with anxiety and postpartum

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depression; however, she further reported that she was not taking the medication as

prescribed for her conditions. Moreover, Hooper revealed that she underwent a

breast-augmentation surgery on March 6, 2019. According to Hooper, even though

she was prescribed pain mediation following the surgery, she stopped taking the

medication earlier that week.

{¶7} Based on L.S.’s assessment at Nationwide, emergency-department

physicians ordered a “non-accidental trauma workup” and Lathem contacted ACCS

and the Lima Police Department to report that L.S.’s injuries were not consistent

with Hooper’s explanation as to how the injuries occurred and because “they didn’t

think that her falling two and a half feet could have caused [her] injur[ies].” (Id. at

259, 280); (May 24-28, 2021 Tr., Vol. II, at 515). Importantly, Dr. Catherine Huber

(“Dr. Huber”), a child-abuse pediatrician with Nationwide, who treated L.S.,

testified that Nationwide medical staff determined that L.S. suffered “abusive head

trauma and inflicted injury.” (May 24-28, 2021 Tr., Vol. II, at 383). In other words,

Dr. Huber testified that Nationwide medical staff concluded that L.S.’s injuries were

“not consistent with the mechanism reported by” Hooper. (Id. at 389). Due to the

extent of her injuries, L.S. was not released from Nationwide until March 26, 2019.

Hooper was alone with L.S. at the time L.S. sustained her injuries.

{¶8} On December 12, 2019, the Allen County Grand Jury indicted Hooper

on Count One of felonious assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), a

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second-degree felony, and Count Two of endangering children in violation of R.C.

2919.22(B)(1), (E)(2)(d), a second-degree felony. Hooper filed a written plea of not

guilty to the counts alleged in the indictment on December 20, 2019.

{¶9} The case proceeded to a jury trial on May 24-28, 2021. On May 28,

2021, the jury found Hooper guilty of Count Two but not guilty of Count One. On

July 22, 2021, the trial court sentenced Hooper to eight years in prison.1 (Doc. No.

155).

{¶10} Hooper filed her notice of appeal on August 18, 2021. (Doc. No. 162).

She raises three assignments of error for our review. For ease of our discussion, we

will begin by discussing Hooper’s second and third assignments of error together,

followed by her first assignment of error.

Assignment of Error No. II

The Evidence Presented at Trial was Insufficient to Support the
Convictions

Assignment of Error No. III

The Jury’s Verdicts Were Against the Manifest Weight of the
Evidence

{¶11} In her second and third assignments of error, Hooper argues that her

endangering-children conviction is based on insufficient evidence and is against the

manifest weight of the evidence. Specifically, Hooper contends that the State

1
The trial court filed its judgment entry of sentence on July 27, 2021.

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presented insufficient evidence that she was the person who recklessly “abused

[L.S.] or inexcusably failed to act to protect her.” (Appellant’s Brief at 11). Further,

Hooper contends that her endangering-children conviction is against the manifest

weight of the evidence because the jury lost its way in concluding that L.S.’s injuries

were the result of abuse.

Standard of Review

{¶12} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). Thus, we address each legal concept individually.

{¶13} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

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Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing Thompkins at 386.

{¶14} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

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Sufficiency of the Evidence Analysis

{¶15} We begin by addressing Hooper’s sufficiency-of-the-evidence

argument as it relates to her endangering-children conviction. Here, Hooper argues

only that there is insufficient evidence that she was the person who recklessly

abused L.S.—that is, Hooper contends that “this case was devoid of even

circumstantial evidence that there was any action or inexcusable inaction by” her.

(Emphasis added.) (Appellant’s Brief at 11).

{¶16} As an initial matter, contrary to Hooper’s suggestion, “inexcusable

inaction” is not an element of endangering children under R.C. 2919.22(B)(1).

Instead, the criminal offense of endangering children under R.C. 2919.22(B)(1)

provides, in its relevant part, “that no person shall abuse a child under eighteen years

of age.” State v. Powe, 9th Dist. Summit No. 21026, 2002-Ohio-6034, ¶ 27. See

also R.C. 2919.22(B)(1). “When a violation of R.C. 2919.22(B)(1) results in serious

physical harm to the child, it is felony of the second degree.” State v. Pendland, 7th

Dist. Mahoning No. 19 MA 0088, 2021-Ohio-1313, ¶ 20, citing R.C. 2919.22(B)(1),

(E)(2)(d).

{¶17} The culpable-mental state of endangering children under R.C.

2919.22(B) requires the defendant to have acted recklessly. State v. Troglin, 3d

Dist. Union No. 14-04-41, 2005-Ohio-6562, ¶ 38, fn. 2. See also State v. Hoffman,

9th Dist. Summit No. 26084, 2013-Ohio-1021, ¶ 23 (“‘[W]hen a defendant is

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charged with endangering children under [R.C. 2919.22(B)(1)], the State must

prove recklessness as an essential element of the offense.’”), quoting State v. Jones,

9th Dist. Summit No. 25986, 2012-Ohio-4256, ¶ 6; State v. Adams, 62 Ohio St.2d

151 (1997), paragraph one of the syllabus.

A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.

R.C. 2901.22(C).

{¶18} Thus, because they are the only elements that Hooper challenges on

appeal, our sufficiency-of-the-evidence review will be only the evidence supporting

the issue of identity as to Hooper’s conviction and the abuse-element of

endangering children under R.C. 2919.22(B)(1). “‘It is well settled that in order to

support a conviction, the evidence must establish beyond a reasonable doubt the

identity of the defendant as the person who actually committed the crime at issue.’”

State v. Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 13, quoting State

v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27, citing State v.

Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19, and State v. Lawwill,

12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11.

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{¶19} In support of her sufficiency-of-the-evidence challenge, Hooper

argues that a rational trier of fact could not have found that she was the person who

recklessly “physically abused [L.S.]” or that L.S.’s injuries were the result of abuse.

(Appellant’s Brief at 11). The record belies Hooper’s argument. See Pendland,

2021-Ohio-1313, at ¶ 28 (concluding that, “while no witness testified they actually

saw Appellant commit the abuse, there is a great deal of circumstantial evidence to

support Appellant’s convictions”). Indeed, the State may establish the elements of

a crime with direct or circumstantial evidence. State v. Miller, 8th Dist. Cuyahoga

No. 103591, 2016-Ohio-7606, ¶ 60, citing State v. Durr, 58 Ohio St.3d 86, 92

(1991). Likewise, since the intent of a person generally “cannot be proven by direct

evidence, thus proof of intent may be shown from circumstantial evidence.” State

v. Cole, 3d Dist. Seneca No. 13-10-30, 2011-Ohio-409, ¶ 23. See also State v. Lee,

7th Dist. Mahoning No. 14 MA 120, 2016-Ohio-649, ¶ 52 (“As with any other

element, recklessness can be established by circumstantial evidence.”).

{¶20} “‘Circumstantial evidence’ is the ‘proof of facts by direct evidence

from which the trier of fact may infer or derive by reasoning or other facts.’”

Lawwill at ¶ 12, quoting State v. Wells, 12th Dist. Warren No. CA2006-02-029,

2007-Ohio-1362, ¶ 11, citing State v. Griesheimer, 10th Dist. Franklin No. 05AP-

1039, 2007-Ohio-837, ¶ 26. Circumstantial evidence has no less probative value

than direct evidence. Griesheimer at ¶ 26, citing Jenks at paragraph one of the

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syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court has

long held that circumstantial evidence is sufficient to sustain a conviction if that

evidence would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.”); Miller at ¶ 61 (stating that “circumstantial evidence alone is

sufficient to support a conviction”), citing State v. Coleman, 8th Dist. Cuyahoga No.

102966, 2016-Ohio-297, ¶ 22. “‘[A]ll that is required of the jury is that it weigh all

of the evidence, direct and circumstantial, against the standard of proof beyond a

reasonable doubt.’” Miller at ¶ 61, quoting Jenks at 272. “‘“Circumstantial

evidence is not only sufficient, but may also be more certain, satisfying, and

persuasive than direct evidence.”’” Id., quoting State v. Hawthorne, 8th Dist.

Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland Tankers,

Inc., 364 U.S. 325, 330, 81 S.Ct. 6 (1960).

{¶21} Importantly, “[c]ircumstantial evidence demonstrating that a person

caused serious brain injuries to a child exists where the child is alone with the

accused during the timeframe in which the injury was likely sustained.” Pendland

at ¶ 28. See also Nasser, 2003-Ohio-5947, at ¶ 73 (“Furthermore, it is not unusual

that evidence of shaken baby syndrome may be primarily circumstantial, especially

where a child is in the sole custody of one adult at the time the injuries are

sustained.”).

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{¶22} Based on our review of the record, we conclude that a rational trier of

fact could have found beyond a reasonable doubt that Hooper was the person who

committed the offense at issue in this case—that is, that Hooper was the person who

recklessly abused L.S, which resulted in serious physical harm.

{¶23} At trial, the State presented the testimony of ten witnesses in support

of its case of endangering children. According to the State’s evidence, L.S. was

normal and in a good state of health the morning of March 13, 2019, when Stratton

left L.S. alone with Hooper to go to work. Compare State v. Garcia, 10th Dist.

Franklin No. 03AP-384, 2004-Ohio-1409, ¶ 24 (noting that the State presented

evidence that the child “was normal and in a good state of health” when her mother

left her alone with Garcia); State v. Nasser, 10th Dist. Franklin No. 02AP-1112,

2003-Ohio-5947, ¶ 72 (finding that the State presented evidence that the child “was

a healthy three-and-one-half-year-old girl at the time her mother left her in

defendant’s care”). Importantly, Hooper does not dispute that she was alone with

L.S. at the time L.S. became injured or that L.S. suffered serious physical harm. See

State v. Dawson, 7th Dist. No. 15 MA 0118, 2017-Ohio-2957, ¶ 51 (concluding that

“undisputed evidence indicated Appellant was the only person alone with the

child”). Consequently, the jury could infer in this case that L.S. suffered life-

threatening injuries while she was in Hooper’s sole custody. Accord State v.

Villarreal, 12th Dist. Butler No. CA2004-02-035, 2005-Ohio-1924, ¶ 22 (“In this

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case, however, from the evidence it was reasonable to infer that N.E. was injured

while he was in the sole custody of appellant.”); Lee, 2016-Ohio-649, at ¶ 51 (“Here,

the evidence permits a reasonable inference that the child suffered life-threatening

injuries after the mother left for work while in Appellant’s sole care.”).

{¶24} Furthermore, Drs. Huber and Randall Schlievert (“Dr. Schlievert”),

director of the child abuse program at the (former) Mercy Health Children’s

Hospital in Toledo, Ohio, testified that L.S.’s constellation of life-threatening

injuries were the result of abusive head trauma and inflicted injury. Accord Nasser

at ¶ 72 (“All four doctors testified that, based upon the multiple injuries, as well as

the retinal hemorrhages, the injuries sustained to Layla were not accidental, and had

been intentionally caused.”).

{¶25} Likewise Detective Matthew Woodworth (“Detective Woodworth”)

of the Lima Police Department, who investigated the case, testified that Nationwide

Children’s Hospital contacted the Lima Police Department to report that L.S.’s

injuries were not consistent with the way in which Hooper reported that L.S. was

injured. Consequently, as part of his investigation, Detective Woodworth testified

that he measured the bed from which Hooper alleged that L.S. fell, and that his

measurement revealed a height of approximately two-and-one-half feet. (See

State’s Ex. 22). He further testified that the bedroom was carpeted. In sum,

Detective Woodworth testified that his investigation revealed that L.S. was alone

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with Hooper at the time of her injury and that her injury was not the result of an

accident. Therefore, since L.S. suffered the life-threatening injuries while she was

in Hooper’s sole custody, the jury could infer that L.S.’s injuries were the result of

abuse.

{¶26} Accordingly, viewing the evidence in most favorable to the

prosecution, a rational trier of fact could have found beyond a reasonable doubt that

Hooper was the person who recklessly abused L.S., which resulted in serious

physical harm. Thus, we conclude that Hooper’s endangering-children conviction

is based on sufficient evidence. See Lee, 2016-Ohio-649, at ¶ 54.

{¶27} Having concluded that Hooper’s endangering-children conviction is

based on sufficient evidence, we next address Hooper’s argument that her

endangering-children conviction is against the manifest weight of the evidence.

Hooper contends that her endangering-children conviction is against the manifest

weight of the evidence because the jury lost its way in concluding L.S.’s injuries

were the result of abuse. Specifically, Hooper contends that the jury lost its way in

believing the State’s expert witness’ testimony over her expert witness’s testimony.

Compare Dawson, 2017-Ohio-2957, at ¶ 51-52 (concluding that, even though, the

case presented “a battle of the experts and doctors [where] each side presented a

plausible theory,” the jury did not lose its way “[i]n resolving the conflicting expert

opinions”).

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{¶28} However, we will not second-guess the weight that the jury assigned

to the evidence that L.S.’s injuries were the result of abuse or the jury’s witness-

credibility determination unless it is clear that the jury lost its way and a miscarriage

of justice occurred. See State v. Mitchell, 8th Dist. Cuyahoga No. 93076, 2010-

Ohio-520, ¶ 20. See also State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-

5671, ¶ 13 (“Although we review credibility when considering the manifest weight

of the evidence, the credibility of witnesses is primarily a determination for the trier

of fact.”), citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. “The

trier of fact is best able ‘to view the witnesses and observe their demeanor,

gestures[,] and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.’” Id., quoting State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, ¶ 24.

{¶29} “When examining witness credibility, ‘the choice between credible

witnesses and their conflicting testimony rests solely with the finder of fact and an

appellate court may not substitute its own judgment for that of the finder of fact.’”

In re N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-035, and 2010-L-041, 2011-

Ohio-6845, ¶ 79, quoting State v. Awan, 22 Ohio St.3d 120, 123 (1986). ““‘A

verdict is not against the manifest weight of the evidence because the [jury] chose

to believe the State’s witnesses rather than the defendant’s version of the events.”’”

State v. Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 44, quoting State

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v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15, quoting State v.

Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.

{¶30} Furthermore, “[a] defendant is not entitled to a reversal on manifest

weight grounds merely because inconsistent evidence was presented at trial.” State

v. Campbell, 10th Dist. Franklin No. 07AP-1001, 2008-Ohio-4831, ¶ 23, citing State

v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21. The trier of fact

“‘“may take note of the inconsistencies and resolve or discount them accordingly,

[but] such inconsistencies do not render [a] defendant’s conviction against the

manifest weight or sufficiency of the evidence.”’” State v. Ealy, 10th Dist. Franklin

No. 15AP-600, 2016-Ohio-1185, ¶ 19, quoting State v. Samatar, 152 Ohio App.3d

311, 2003-Ohio-1639, ¶ 113 (10th Dist.), quoting State v. Craig, 10th Dist. Franklin

No. 99AP-739, 2000 WL 297252, *3 (Mar. 23, 2000).

{¶31} After reviewing the evidence, the jury did not lose its way and create

such a manifest miscarriage of justice in its expert-witness-credibility

determination, or by concluding that L.S.’s injuries were the result of abuse,

requiring that we reverse Hooper’s convictions and order a new trial. Indeed, the

jury was able to weigh the State’s expert witness’ testimony, who thoroughly

described how they arrived at their conclusion that L.S.’s injuries were the result of

abusive head trauma and inflicted injury, against Hooper’s expert witness’s

testimony.

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{¶32} As we outlined in our sufficiency-of-the-evidence analysis, Drs.

Huber and Schlievert—the State’s expert witnesses—concluded that L.S.’s injuries

were the result of abusive head trauma and inflicted injury. Hooper’s expert-

medical witness, Dr. Daniel Adler (“Dr. Adler”), a pediatric neurologist, testified

that L.S.’s injuries could have been the result of an accidental fall.

{¶33} Significantly, Dr. Adler testified that L.S.’s pre-existing medical

conditions could have contributed to her injuries—that is, Dr. Adler testified that

L.S. is “an abnormal child with numerous anatomical abnormalities that

exaggerated her risk of being injured” and that “accidental trauma” “could result in

all the problems that are defined by the medical records.” (May 24-28, 2021 Tr.,

Vol. IV, at 799). In other words, Dr. Adler concluded that L.S.’s injuries could have

been the result “of an amount of force that’s inconsequential.” (Id. at 794).

Specifically, Dr. Adler testified that L.S.’s medical records reflect that she sustained

a head injury “at some other point in the past * * * that created this fluid”—“blood

of multiple ages”—“in the skull before March 13, 2019.” (Id. at 777, 785).

According to Dr. Adler, this prior-head injury “would be a factor in increasing the

risk that the injury described, meaning the fall from the bed, would have been more

likely to cause bleeding * * * .” (Id. at 778). Dr. Adler further testified that L.S.

“has an exaggerated risk of abnormal head movement in response to an applied

force” because of her pre-existing medical conditions. (Id. at 788). He also testified

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that, based on L.S.’s pre-existing medical conditions, “those forces were sufficient

in this case to cause the retinal hemorrhages that are present.” (Id. at 793).

{¶34} Likewise, the jury heard Dr. Adler’s explanation for the difference in

his opinion from Dr. Huber’s medical opinion. That is, Dr. Adler stated that Dr.

Huber rendered her conclusion without offering a specific explanation as to how she

arrived at her conclusion. Nevertheless, the jury was able to compare Dr. Adler’s

medical opinion against Dr. Huber’s and Dr. Schlievert’s medical opinions.

Specifically, Drs. Huber and Schlievert described how the evidence in the record

refutes Hooper’s story that L.S.’s injuries were caused by a short fall from the bed.

Importantly, based on her assessment of L.S., Dr. Huber concluded that “[t]he

constellation of injuries that [L.S.] sustained [were] not consistent with the history

of a simple fall off the bed and was most concerning for abusive head trauma and

inflicted injury.” (May 24-28, 2021 Tr., Vol. II, at 381). (See also State’s Ex. 19).

{¶35} Furthermore, Dr. Schlievert testified that he concluded, based on his

training and experience, that it was improbable that L.S.’s injuries were caused by

a short fall from the bed as reported by Hooper. Specifically, Dr. Schlievert testified

that the constellation of injuries sustained by L.S. are “not common from a short fall

* * * .” (May 24-28, 2021 Tr., Vol. III, at 613-614). That is, Dr. Schlievert testified

that L.S.’s constellation of injuries do not reflect the type of injuries typically

sustained by children who fall out of a bed. He further testified that L.S. “hitting

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her head on the bedframe” would not explain her injuries since “[i]t would actually

decrease the amount of energy once she hit the floor because there had already been

a stop on the way down, so it would actually be a series of two shorter falls.” (Id.

at 615).

{¶36} Further, the jury heard that the emergency-department staff of St.

Rita’s contacted ACCS and that Lathem contacted ACCS and Detective Woodworth

at the Lima Police Department to report that L.S.’s injuries were not consistent with

the way in which Hooper reported that L.S. was injured. Likewise, the jury heard

Detective Woodworth’s conclusion that L.S.’s injuries were not the result of an

accident.

{¶37} Moreover, the jury was able to compare the State’s witnesses’

testimony against the testimony that Hooper presented in her defense (including her

own testimony), and it is well within the providence of the trier of fact to determine

a witness’s credibility in making a statement including the prerogative to find a

witness not to be truthful. See State v. Voll, 3d Dist. Union No. 14-12-04, 2012-

Ohio-3900, ¶ 27. Consequently, after reviewing the entirety of the record, Hooper’s

arguments concerning the weight of the evidence are unpersuasive. Therefore, the

jury did not clearly lose its way and create such a manifest miscarriage of justice

that Hooper’s conviction must be reversed and a new trial ordered. Accordingly,

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Hooper’s endangering-children conviction is not against the manifest weight of the

evidence.

{¶38} Hooper’s second and third assignments of error are overruled.

Assignment of Error No. I

Appellant was Prejudiced by Ineffective Assistance of Counsel

{¶39} In her first assignment of error, Hooper argues that she was denied her

right to effective assistance of counsel. Specifically, Hooper argues that her trial

counsel was ineffective for failing to provide reciprocal discovery to the State as

required by Crim.R. 16, which resulted the in exclusion of evidence that she planned

to use in her defense. Similarly, Hooper contends that her trial counsel was

ineffective for failing to request a continuance in order to permit full discovery.

Standard of Review

{¶40} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment. Strickland at 687.

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Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on

other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).

{¶41} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142

and citing Strickland at 694.

Analysis

{¶42} Crim.R. 16 provides the discovery rules for criminal

proceedings. State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, ¶ 7 (3d Dist.).

“Crim.R. 16(H) specifies that ‘[i]f the defendant serves a written demand for

discovery or any other pleading seeking disclosure of evidence on the prosecuting

attorney, a reciprocal duty of disclosure by the defendant arises without further

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demand by the state.’” State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, ¶ 19,

quoting Crim.R. 16(H). See also State v. Ferricci, 8th Dist. Cuyahoga No. 110208,

2022-Ohio-1393, ¶ 34 (discussing the defendant’s reciprocal duty of discovery

under Crim.R. 16). Likewise, “[o]nce discovery is initiated by demand of the

defendant, all parties have a continuing duty to supplement their disclosures.”

Crim.R. 16(A).

{¶43} “Additionally, Crim.R. 16(K) provides that an expert witness for

either the state or the defense ‘shall prepare a written report summarizing the

expert’s testimony, findings, analysis, conclusions, or opinion, and shall include a

summary of the expert’s qualifications.’” Ferricci at ¶ 35, quoting Crim.R. 16(K).

The rule further provides that such written report and a summary of qualifications

shall be subject to disclosure no later than 21 days prior to the start of trial and that

the “[f]ailure to disclose the written report to opposing counsel shall preclude the

expert’s testimony at trial.” Crim.R. 16(K).

{¶44} The failure to comply with Crim.R. 16 is governed by Crim.R.

16(L)(1) which provides, in its relevant part:

If at any time during the course of the proceedings it is brought to the
attention of the court that a party has failed to comply with this rule
or with an order issued pursuant to this rule, the court may order such
party to permit the discovery or inspection, grant a continuance, or
prohibit the party from introducing in evidence the material not
disclosed, or it may make such other order as it deems just under the
circumstances.

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Crim.R. 16(L)(1). “‘[I]n determining the appropriate sanction, the trial court must

make an inquiry into the circumstances of the discovery violation.’” State v. Stiles,

3d Dist. Allen No. 1-08-12, 2009-Ohio-89, ¶ 45, quoting Engle at ¶ 8, citing

Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 (1987), paragraph two of the syllabus.

“Further, ‘the trial court “must impose the least severe sanction that is consistent

with the purpose of the rules of discovery.”’” Id., quoting Engle at ¶ 8, quoting

Papedelis at paragraph two of the syllabus.

{¶45} Generally, a trial court retains “‘wide discretion in determining

sanctions for discovery violations.’” State v. Gibson, 3d Dist. Allen No. 1-06-74,

2007-Ohio-3345, ¶ 12, quoting Engle at ¶ 7. However, “Crim.R. 16(K) removes a

trial court’s discretion and requires the exclusion of expert testimony when a written

report [is] not disclosed in accordance with the rule.” State v. Boaston, 160 Ohio

St.3d 46, 2020-Ohio-1061, ¶ 60.

{¶46} Here, Hooper contends that her trial counsel was ineffective for failing

to provide L.S.’s medical records to the State, which resulted in their exclusion from

evidence at trial. Specifically, Hooper contends that the omission of those records

“eliminated one of [her] main defenses – the argument that [L.S.’s] lack of long-

term issues was indicative of an accidental injury.” (Appellant’s Brief at 8).

Additionally, Hooper contends that her trial counsel was ineffective for failing to

provide the State with Hooper’s medical records that Dr. James Apesos (“Dr.

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Apesos”), a plastic surgeon who testified as an expert witness in her defense,

reviewed in preparing his report. Hooper argues that her trial “counsel provided

[these] records to the State during the trial upon which [her] theory of innocence

relied and that they intended to reference in expert testimony” but that the trial court

denied their admission “as in violation of the twenty-one (21) day deadline of

Crim.R.16(K) * * * .” (Appellant’s Brief at 8).

{¶47} In this case, the trial court inquired about the circumstances

surrounding the discovery violations. As to L.S.’s medical records, the trial court

determined that Hooper’s trial counsel violated the discovery rules since her trial

counsel received the records approximately by October 2020 but failed to disclose

them to the State until May 21, 2021. As a sanction, the trial court prohibited

Hooper from introducing L.S.’s medical records into evidence. Nevertheless, the

trial court permitted Hooper to elicit testimony from Dr. Adler from those medical

records.

{¶48} Likewise, even though there is no dispute that Hooper’s trial counsel

disclosed Dr. Apesos’s written report to the State as provided by Crim.R. 16(K), the

State asserted that Hooper’s trial counsel violated the discovery rules by failing to

timely disclose Hooper’s medical records (relied on in Dr. Apesos’s report) prior to

the start of trial. See Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, at ¶ 47 (“Here,

to be clear, an autopsy report was provided to the defense well in advance of 21

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days before trial, so this is not a case involving the admission of expert testimony

in the complete absence of an expert report.”). Importantly, “‘“[t]he purpose of

Crim.R. 16(K) is to avoid unfair surprise by providing notice to the [parties] and

allowing [each side] an opportunity to challenge the expert’s findings, analysis, or

qualifications, possibly with the support of an expert who could discredit the opinion

after carefully reviewing the written report.”’” Id., quoting State v. Fetty, 11th Dist.

Portage No. 2011-P-0091, 2012-Ohio-6127, ¶ 36, quoting State v. Perry, 11th Dist.

Lake No. 2011-L-125, 2012-Ohio-4888, ¶ 55.

{¶49} Here, in addition to the alleged undisclosed medical records, the State

requested that the trial court exclude Dr. Apesos’s report from evidence because it

relied on hearsay and other inadmissible information. As an equitable remedy, the

trial court excluded Dr. Apesos’s report but permitted Dr. Apesos to testify

generally as to the surgical procedure that Hooper underwent, including the typical

recovery and restrictions that patients experience. Importantly, Dr. Apesos did not

perform Hooper’s surgery or examine Hooper.

{¶50} As a result, even though the trial court limited Dr. Apesos’s testimony

and forestalled Hooper from introducing L.S.’s medical records and Dr. Apesos’s

report, Hooper cannot demonstrate that the outcome of the proceedings would have

been different. See State v. Briggs, 3d Dist. Allen No. 1-06-27, 2006-Ohio-5144, ¶

17 (concluding that “the results of trial would not have been different even if trial

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counsel had complied with the discovery rules”). That is, Hooper cannot

demonstrate that the jury would have acquitted her of the endangering-children

charge had Dr. Apesos’s testimony not been limited or L.S.’s medical records or Dr.

Apesos’s report been admitted at trial.

{¶51} Significantly, the State presented the unequivocal testimony of Drs.

Huber and Schlievert that L.S. suffered abusive head trauma and inflicted injury and

that L.S.’s “constellation” of injuries were not consistent with Hooper’s story that

L.S. fell of the bed. Drs. Huber and Schlievert’s testimony was bolstered by St.

Rita’s emergency-department staff’s report of L.S.’s injuries to ACCS and by

Lathem’s testimony that she reported L.S.’s injuries to ACCS and the Lima Police

Department since L.S.’s injuries were not consistent with Hooper’s explanation as

to how her injuries occurred. Likewise, Detective Woodworth’s testimony that

L.S.’s injuries were not the result of an accident augmented the State’s theory of the

case.

{¶52} Nevertheless, Hooper was not precluded from presenting her defense

strategy. Specifically, Hooper elicited testimony from Dr. Adler from L.S.’s

medical records regarding L.S.’s recovery; generated testimony from Dr. Apesos

regarding the surgical procedure Hooper underwent; and presented her own

testimony regarding the complications she experienced from that surgical

procedure. Yet, Hooper does not offer any argument as to how the excluded

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evidence would have aided her defense. See State v. Dawson, 9th Dist. Summit No.

28311, 2017-Ohio-2833, ¶ 28. Importantly, the jury acquitted Hooper of the

felonious-assault charge. In other words, Hooper was not deprived of a fair trial.

See State v. Carter, 3d Dist. Allen No. 1-15-62, 2017-Ohio-1233, 142. Therefore,

Hooper’s trial counsel was not ineffective for failing to provide reciprocal discovery

to the State as required by Crim.R. 16.

{¶53} Finally, Hooper argues that her trial counsel was ineffective for failing

to request a continuance in order to permit full discovery. Specifically, Hooper

contends that her trial counsel was ineffective for failing to request a continuance to

permit Dr. Adler “additional time to review and refute the findings” addressed in

Dr. Schlievert’s report. (Appellant’s Brief at 8). Likewise, Hooper contends that,

even though the State’s February 9, 2021 “continuance was premised on the

unavailability of a witness, Dr. Huber, * * * the fact that, upon review of Dr. Adler’s

report, the State obtained a new expert cannot be a mere coincidence.” (Id. at 9).

{¶54} “‘[T]he decision whether to request a trial continuance is debatable,

and involves a strategic choice of counsel that falls “within the realm of trial strategy

and tactics that will not ordinarily be disturbed on appeal.”’” State v. Wilcoxson, 2d

Dist. Montgomery No. 29053, 2021-Ohio-4339, ¶ 28, quoting State v. Wynn, 2d

Dist. Montgomery No. 25097, 2014-Ohio-420, ¶ 90, quoting State v. Warner, 8th

Dist. Cuyahoga No. 95750, 2012-Ohio-256, ¶ 11. “Because ‘requesting

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continuances is a matter of trial tactics and strategy, * * * we will not second-guess

trial counsel’s decision in this regard.’” Id., quoting Wynn at ¶ 5. See also State v.

Webster, 10th Dist. Franklin No. 20AP-171, 2021-Ohio-3218, ¶ 52.

{¶55} Based on our discussion above, Hooper cannot demonstrate that the

outcome of her trial would have been different had her trial counsel requested (and

received) such continuance. Accord Wynn at ¶ 91. That is, Hooper has not offered

any argument as to how any additional or excluded evidence would have changed

the outcome of her trial. Contrary to Hooper’s argument regrading Dr. Adler, it is

pure speculation that Dr. Adler would “refute” Dr. Schlievert’s “findings.” See

State v. McDermott, 2d Dist. Montgomery No. 21046, 2005-Ohio-5233, ¶ 16

(acknowledging that “his argument about what an expert could have determined by

reviewing the pictures is pure speculation”). Rather, the “additional information”

that Hooper suggests Dr. Adler would have included in his report derived from an

alternative opinion which was untimely disclosed to the State by Hooper’s trial

counsel. That testimony was properly excluded by the trial court under Crim.R.

16(K). See Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, at ¶ 71 (holding that “it

is error to admit expert-opinion testimony when the expert’s opinion was not set

forth in a written report prepared in compliance with Crim.R. 16(K)”).

Nevertheless, Hooper’s suggestion that the inclusion of Dr. Adler’s alternative

opinion would have changed the outcome of her trial is unadulterated supposition.

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See Dawson at ¶ 28 (“Mr. Dawson’s suggestion that additional review of the body

camera recording would have changed the outcome in this matter is pure

speculation.”).

{¶56} Furthermore, Hooper’s contention that the State must have had an

ulterior motive in seeking its February 9, 2021 continuance when it obtained Dr.

Schlievert’s report relates to a prosecutorial-misconduct argument, which Hooper

did not properly raise here. Indeed, “a defendant has the burden of affirmatively

demonstrating the error of the trial court on appeal.” State v. Stelzer, 9th Dist.

Summit No. 23174, 2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit

No. 20675, 2002-Ohio-2646, ¶ 27. “App.R. 12(A)(2) provides that an appellate

court ‘may disregard an assignment of error presented for review if the party raising

it fails to identify in the record the error on which the assignment of error is based

or fails to argue the assignment separately in the brief, as required under App.R.

16(A).’” State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322, ¶

11, quoting App.R. 12(A)(2).

{¶57} Assessing the totality of the circumstances, Hooper’s trial counsel may

have reasonably concluded, as a legitimate tactical decision, that it was futile to

request a continuance in order to permit full discovery. See State v. Blevins, 8th

Dist. Cuyahoga No. 106115, 2018-Ohio-3583, ¶ 34. Therefore, we conclude that

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Hooper failed to establish that her trial counsel was ineffective for failing to request

a continuance in order to permit full discovery.

{¶58} Hooper’s first assignment of error is overruled.

{¶59} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

MILLER and SHAW, J.J., concur.

/jlr

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