[Cite as State v. Henderson, 2017-Ohio-2900.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                         Court of Appeals No. WD-16-012

        Appellee                                      Trial Court No. 2014CR0224

v.

James Henderson                                       DECISION AND JUDGMENT

        Appellant                                     Decided: May 19, 2017

                                                *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                                *****

        JENSEN, P.J.

                                            I. Introduction

        {¶ 1} Appellant, James Henderson, appeals the judgment of the Wood County

Court of Common Pleas, finding him guilty of murder, felonious assault, and

endangering children, and imposing a prison sentence of 15 years to life.
                         A. Facts and Procedural Background

       {¶ 2} On June 5, 2014, appellant was indicted on one count of murder in violation

of R.C. 2903.02(B) and (D), and R.C. 2929.02(A), an unspecified felony, one count of

endangering children in violation of R.C. 2919.22(B)(2) and (E)(3), a felony of the

second degree, one count of endangering children in violation of R.C. 2919.22(B)(2) and

(E)(3), a felony of the third degree, and one count of felonious assault in violation of R.C.

2903.11(A)(1) and (D)(1)(a), a felony of the second degree. According to the indictment,

the felony murder count was predicated upon appellant’s commission of “an offense of

violence that is a felony of the first or second degree, to wit: Endangering Children or

Felonious Assault.”

       {¶ 3} Appellant appeared before the trial court for arraignment on June 17, 2014,

at which time he entered a plea of not guilty to the charges contained in the indictment.

Following several pretrial conferences and the completion of discovery, appellant entered

a waiver of his right to have the matter tried before a jury. Consequently, a bench trial

commenced on January 6, 2016.

       {¶ 4} At trial, the following facts were elicited: On May 17, 2014, authorities

were alerted that appellant’s three-month-old son, B.H., was not breathing. According to

statements appellant made to Sergeant Jeremy Holland of the Wood County Sheriff’s

Department, B.H. woke up around 7:00 a.m. that morning and drank three or four ounces

of formula. Appellant was the only one home with B.H. at the time. Afterwards,

appellant laid B.H. down in his crib. Appellant then went back to bed. Appellant woke




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up sometime later in the afternoon, and noticed that B.H. had vomited. Consequently,

appellant picked B.H. up out of his crib and noticed that he was stiff. Appellant then

alerted B.H.’s maternal grandmother, S.S., to B.H.’s condition, at which point S.S. called

911 and commenced CPR.

       {¶ 5} Jerry Houtz was the first EMT to arrive on the scene after authorities were

notified of B.H.’s condition. Upon arrival, Houtz was greeted by appellant, at which

point Houtz entered the residence and noticed that CPR had already been started by S.S.

Houtz subsequently took over for S.S., and immediately noticed that B.H. was

“extremely cold, gray, getting stiff.” Houtz also noticed that B.H. had aspirated and that

vomitus was present on B.H.’s mouth and nose. B.H. had no pulse at this point.

       {¶ 6} Houtz proceeded to take B.H. outside the residence, where he would be

closer to the ambulance that was on its way. Houtz testified that appellant did not follow

him outside or travel to the emergency room with B.H. During the ambulance transport

to the emergency room, B.H. was intubated and CPR was resumed. Michael Cox was the

paramedic that performed the intubation. Cox echoed Houtz’s testimony in describing

B.H.’s appearance as “cool and stiff.” Ultimately, the paramedics’ efforts to resuscitate

B.H. during the 17-minute ride to the emergency room were futile.

       {¶ 7} After B.H. arrived at the hospital, emergency room nurse, Amanda

Michaels, began treating him. Michaels testified that the first thing she noticed about

B.H.’s condition was that he felt very cold and stiff. Another nurse, Kristy Weiker,

described B.H. as “cold and lifeless.” Michaels took B.H.’s rectal temperature, which




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was 86 degrees Fahrenheit upon admission. Upon further examination, Michaels noticed

that B.H. had a bruise on his forehead and blood in his right eye. The emergency room

physician, James Case, testified that B.H.’s stiffness and body temperature were

indicators that B.H. “had been down for likely hours.” He observed a subconjunctival

hemorrhage on B.H.’s right eye, which he stated was typically associated with trauma.

       {¶ 8} After working on B.H. for half an hour without a change in his condition,

Case made the decision to cease resuscitation efforts. According to Weiker, the hospital

staff “kind of all knew that there was not going to be any return to life for the child. Just

from experience with the temperature that he was and how stiff he was and how many,

you know, codes we’ve been in in the past, it kind of was pretty apparent that he wasn’t

going to be living at the end of the code situation.”

       {¶ 9} Following B.H.’s death, an autopsy was performed in order to determine the

cause of death. According to the deputy coroner that performed the autopsy, Cynthia

Beisser, 20 milliliters of blood was pooled in the occipital region of B.H.’s skull and a

retinal hemorrhage was observed, indicating that a head injury had occurred prior to his

death. Beisser testified that the injuries she observed were consistent with a “whiplash

type of injury.” Thus, Beisser indicated that the cause of B.H.’s death was abusive head

trauma. Homicide was listed as the manner of death. Notably, a search of appellant’s

social media profiles revealed that appellant had conducted numerous computer searches




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for the term “shaking [sic] baby syndrome” between May 10, 2014, and May 17, 2014,

the day B.H. died.1

      {¶ 10} At the conclusion of the state’s case-in-chief, appellant moved for acquittal

under Crim.R. 29, which the trial court denied. Appellant did not present any evidence.

      {¶ 11} Following closing arguments, the court found appellant guilty of one count

of endangering children (pertaining to the May 17, 2014 incident), one count of felonious

assault, and one count of murder. The court found appellant not guilty of the remaining

endangering children count (pertaining to the May 10, 2014 incident). Concerning the

felony murder charge, the court stated:

             As to Count One, the Court finds on or about May 17, 2014, in

      Wood County, Ohio, the defendant caused the death of [B.H.] As a

      proximate result of committing or attempting to commit an offense of

      violence, that is a felony of the second degree, to wit, endangering children,

      finding that the defendant committed or attempted to commit the offense

      and that the defendant recklessly tortured or cruelly abused a child that

      resulted in serious physical harm to [B.H.] So the Court will make a

      finding of guilty to Count One, murder.



1
 May 10 was significant because B.H. suffered a bruise to his forehead on that date while
under appellant’s care. According to appellant, B.H. was injured when he lunged out of
appellant’s arms and hit his head on a metal bed frame. Appellant was charged with one
count of endangering children as a result of the injury sustained on May 10, but the trial
court found him not guilty on that charge.




5.
       {¶ 12} Upon its finding of guilt as to the aforementioned charges, the court

ordered the preparation of a presentence investigation report and continued the matter for

sentencing. The court directed the parties to be prepared to address the issue of merger at

sentencing, and to submit memoranda on that issue at least one week prior to the

sentencing hearing. In so doing, the court stated that there was “a very strong possibility

that all or at least a significant number of these charges may merge for purposes of

sentencing, and that is something that we will consider at the time of sentencing.”

       {¶ 13} At sentencing, the state argued that the offenses for which appellant was

found guilty should not merge but, rather, that the trial court should impose a sentence as

to each offense and order the sentences to be served concurrently. Appellant disagreed,

insisting that the offenses should merge because they each relate to a single offense.

Upon consideration of these arguments, the trial court ordered appellant to serve 15 years

to life in prison for the murder charge, plus 5 years in prison on each of the remaining

offenses (endangering children and felonious assault). Adopting the state’s merger

argument, the trial court ordered the sentences to be served concurrently to one another.

                                B. Assignments of Error

       {¶ 14} Following the trial court’s imposition of sentence, appellant filed a timely

appeal. On appeal, appellant presents the following assignments of error for our review:

              First Assignment of Error: The court erred when it did not merge

       Appellant’s convictions for Child Endangerment and Murder for purposes

       of sentencing.




6.
              Second Assignment of Error: Appellant’s conviction for felonious

       assault was against the manifest weight of the evidence.

              Third Assignment of Error: The court erred to the prejudice of

       Appellant when it did not consider the lesser included offense of

       involuntary manslaughter.

       {¶ 15} For ease of discussion, we will address appellant’s assignments of error out

of order.

                                        II. Analysis

                              A. Manifest Weight of the Evidence

       {¶ 16} In his second assignment of error, appellant argues that his felonious

assault conviction was against the manifest weight of the evidence.

       {¶ 17} In a bench trial, the trial court assumes the fact-finding function of the jury.

Thus, when reviewing a manifest weight claim,

              The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must

       be reversed and a new trial ordered. State v. Martin, 20 Ohio App.3d 172,

       175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 18} It has been long held that the weight to be given to the evidence and the

credibility of the witnesses is primarily for the trier of fact to decide. State v. Thomas, 70




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Ohio St.2d 79, 79-80, 434 N.E.2d 1356 (1982). The standard of review is therefore high,

and the trial court, with its unique position to resolve the factual issues, enjoys significant

deference to determine the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357,

367, 582 N.E.2d 972 (1992). As such, “[t]he discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” Martin at 175.

       {¶ 19} Under R.C. 2903.11,

              (A) No person shall knowingly do either of the following:

              (1) Cause serious physical harm to another or to another’s unborn;

              ***

              (D)(1)(a) Whoever violates this section is guilty of felonious

       assault.

       {¶ 20} Here, appellant argues that the state’s evidence fails to establish the

mens rea element of felonious assault; that is, the state failed to demonstrate that

appellant knowingly caused serious physical harm to B.H. Under R.C. 2901.22(B), a

person acts knowingly when the person is aware that his conduct “will probably cause a

certain result or will probably be of a certain nature.”

       {¶ 21} In order to establish appellant’s awareness of the consequences of his

violent behavior toward B.H., the state presented evidence of appellant’s numerous

internet searches of “shaking [sic] baby syndrome” during the days and hours leading up

to B.H.’s death. Appellant contends that these searches did not establish his knowledge




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of the consequences of his actions, but were simply the product of appellant’s guilty

conscience for the injuries B.H. sustained when he lunged out of appellant’s arms and hit

his head on a bed frame one week prior to his death. However, appellant’s position is

discredited by his acknowledgement that the injuries B.H. sustained during that fall were

“not fatal, or even serious.”

       {¶ 22} Further, appellant urges this court to find that the sheer number of internet

searches (approximately 200) demonstrates that appellant did not understand the

consequences of his actions and demonstrated his recklessness rather than knowledge.

Notably, appellant presented no evidence at trial to establish the basis for his extensive

internet research on the subject of shaken baby syndrome. Moreover, appellant concedes

that his version of the events that transpired on May 17, 2014, was inconsistent with the

injuries B.H. sustained. When questioned by law enforcement personnel as to what

happened to B.H., appellant suggested that he may have injured B.H. by holding him too

tightly or throwing him up in the air and letting him fall on the bed. Additionally,

appellant informed the authorities that he shakes when he gets angry and acknowledged

that he was angry with B.H. on the morning of May 17, 2014. However, Beisser testified

at trial that such actions could not have resulted in the “devastating” brain trauma she

observed while performing B.H.’s autopsy.

       {¶ 23} In light of the evidence presented at trial, including the autopsy findings of

devastating brain trauma and appellant’s peculiar interest in shaken baby syndrome, we




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find that this is not the exceptional case in which the evidence weighs heavily against

appellant’s conviction for felonious assault.

         {¶ 24} Accordingly, we find appellant’s second assignment of error not well-

taken.

                                 B. Lesser Included Offenses

         {¶ 25} In his third assignment of error, appellant argues that the trial court erred

when it did not consider the lesser included offense of involuntary manslaughter.

         {¶ 26} A charge on a lesser included offense is required where the trier of fact

could reasonably find against the state and for the accused on one or more of the elements

of the crime charged and for the state on the remaining elements, which by themselves

would sustain a conviction on a lesser-included offense. State v. Kilby, 50 Ohio St.2d 21,

24-25, 361 N.E.2d 1336 (1977). In other words, “[e]ven though an offense may be

statutorily defined as a lesser included offense of another, a charge on such lesser

included offense is required only where the evidence presented at trial would reasonably

support both an acquittal on the crime charged and a conviction upon the lesser included

offense.” State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of

the syllabus. Conversely, if the jury could not reasonably find against the state on an

element of the crime, then a charge on a lesser-included offense is not only not required,

but is also improper.

         {¶ 27} Here, appellant argues that he could have reasonably been convicted of

involuntary manslaughter rather than felony murder. He contends that the lesser included




10.
offense of involuntary manslaughter should have been considered because his internet

searches did not establish that he knowingly caused serious physical harm to B.H. In

essence, appellant is once again challenging the veracity of the state’s evidence as to the

establishment of the requisite mens rea to support his conviction for felonious assault.

Notably, the trial court did not rely upon appellant’s conviction for felonious assault to

support its finding of guilt on the felony murder charge. Rather, the court indicated at the

conclusion of the trial that the predicate offense for the felony murder conviction was the

endangering children count. Therefore, appellant’s argument is misplaced. Additionally,

we find that the evidence clearly supported a finding that appellant acted knowingly

when he assaulted B.H., for the reasons stated in our analysis of appellant’s second

assignment of error.

       {¶ 28} Moreover, appellant waived his right to a jury trial and thus this case was

tried to the bench. In a bench trial, the court is presumed to know the law and have

considered any lesser offenses that are supported by the evidence. State v. Buckley, 8th

Dist. Cuyahoga No. 68419, 1995 Ohio App. LEXIS 5181 (Nov. 22, 1995); In re Z.C.,

12th Dist. Warren Nos. CA2005-06-065, CA2005-06-066, CA2005-06-081, CA2005-06-

082, 2006-Ohio-1787, ¶ 30-31. “Furthermore, the judge in a bench trial does not need to

make a record of the fact that he considered lesser offenses and rejected them since

Crim.R. 23(C) only requires the court to make a general finding of guilty or not guilty.”

State v. Rister, 6th Dist. Lucas No. L-09-1191, 2012-Ohio-516, ¶ 15, citing State v.




11.
Walker, 26 Ohio App.3d 29, 31, 498 N.E.2d 191 (8th Dist.1985); State v. Avery, 12th

Dist. Preble No. CA87-03-006, 1987 Ohio App. LEXIS 9691 (Nov. 23, 1987).

         {¶ 29} Because the trial court was presumed to know the law and have considered

the lesser included offense of involuntary manslaughter, and in light of our conclusion

that the evidence did not reasonably support an acquittal on the felony murder count and

a conviction on the lesser offense, we find appellant’s third assignment of error not well-

taken.

                      C. Merger of Allied Offenses of Similar Import

         {¶ 30} In his first assignment of error, appellant argues that the trial court erred

when it failed to merge his conviction for endangering children with his conviction for

felony murder.

         {¶ 31} Regarding merger of allied offenses of similar import, R.C. 2941.25

provides:

                (A) Where the same conduct by defendant can be construed to

         constitute two or more allied offenses of similar import, the indictment or

         information may contain counts for all such offenses, but the defendant

         may be convicted of only one.

                (B) Where the defendant’s conduct constitutes two or more offenses

         of dissimilar import, or where his conduct results in two or more offenses

         of the same or similar kind committed separately or with a separate animus




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       as to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 32} As set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, the test for whether offenses are allied offenses of similar import under

R.C. 2941.25 is two-fold. First, the court must determine “whether it is possible to

commit one offense and commit the other with the same conduct.” Id. at ¶ 48. Second,

the court must determine “whether the offenses were committed by the same conduct,

i.e., ‘a single act, committed with a single state of mind.’” Id. at ¶ 49, quoting State v.

Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J.,

dissenting). “If the answer to both questions is yes, then the offenses are allied offenses

of similar import and will be merged.” Id. at ¶ 50.

       {¶ 33} Recently, the Supreme Court of Ohio expounded upon its holding in

Johnson, stating:

              As a practical matter, when determining whether offenses are allied

       offenses of similar import within the meaning of R.C. 2941.25, courts must

       ask three questions when a defendant’s conduct supports multiple offenses:

       (1) Were the offenses dissimilar in import or significance? (2) Were they

       committed separately? and (3) Were they committed with separate animus

       or motivation? An affirmative answer to any of the above will permit

       separate convictions. The conduct, the animus, and the import must all be




13.
       considered. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

       892, ¶ 31.

       {¶ 34} We review the trial court’s merger determination under R.C. 2941.25

de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶ 35} At the outset, we note that the trial court identified endangering children as

the predicate offense for the felony murder conviction at the conclusion of the bench trial.

The conduct that gave rise to the endangering children conviction and, by extension, the

felony murder conviction, was specified by the court as follows: “[T]he defendant

committed or attempted to commit the offense [of endangering children] and * * * the

defendant recklessly tortured or cruelly abused a child that resulted in serious physical

harm * * *. So the Court will make a finding of guilty to Count One, murder.”

       {¶ 36} Given the fact that the endangering children count was the predicate

offense for appellant’s murder conviction, we agree with appellant that the trial court

erred in failing to merge the two offenses at sentencing. Indeed, the murder count was

predicated upon the same conduct that gave rise to the endangering children conviction,

appellant’s abuse of B.H. that resulted in serious physical harm and, eventually, death.

The offenses were of similar import, and appellant committed the offenses with one act

and one animus.

       {¶ 37} Accordingly, appellant’s first assignment of error is well-taken.

Consequently, we must remand this matter for resentencing.




14.
                                     III. Conclusion

       {¶ 38} For the foregoing reasons, the judgment of the Wood County Court of

Common Pleas is affirmed, in part, and reversed, in part, and this matter is remanded to

the trial court for resentencing consistent with the requirements of R.C. 2941.25. Costs

are assessed to appellee pursuant to App.R. 24.


                                                               Judgment affirmed, in part,
                                                                    and reversed, in part.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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