[Cite as State v. York, 2018-Ohio-612.]




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

 STATE OF OHIO                                  :
                                                :
          Plaintiff-Appellee                    :   Appellate Case No. 27521
                                                :
 v.                                             :   Trial Court Case No. 2014-CR-234
                                                :
 JESSE L. YORK                                  :   (Criminal Appeal from
                                                :   Common Pleas Court)
          Defendant-Appellant                   :
                                                :

                                           ...........

                                          OPINION

                           Rendered on the 16th day of February, 2018.

                                           ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
     Attorney for Defendant-Appellant

                                          .............




TUCKER, J.
                                                                                           -2-




       {¶ 1} Defendant-appellant Jesse York appeals from his conviction and sentence

for murder. He contends that cumulative errors deprived him of a fair trial. We conclude

that York has failed to establish any error, let alone cumulative error, that would affect his

right to a fair trial. Accordingly, the judgment of the trial court is affirmed.



                             I. Facts and Procedural History

       {¶ 2} This case arises from the 2013 death of R.S (hereinafter “R.”). R. was born

in January of 2012 to Helen Thompson and Brad Sellars. Sellars and Thompson, who

were not married and not living together at the time of R.’s birth, also had an older child

together.   R. resided in Germantown with Thompson and the older sibling.             Sellars

generally exercised parenting time with the children on Wednesdays and every other

weekend. In early 2013, Thompson began dating York who moved into the residence

with Thompson and the children.

       {¶ 3} On October 23, 2013, Sellars exercised visitation with the children. When

R. returned home, she was eating and playing normally.             That night, she woke up

vomiting and was disoriented. Thompson took R. to the pediatrician the next day. R.

was diagnosed with a virus and sent home. R. improved that day and exhibited no

further signs of illness.

       {¶ 4} Sellars also exercised parenting time on the weekend of November 9. He

and his mother took the children to a restaurant on Saturday. While there, R. walked

around the table and bumped her head. According to Sellars and his mother, she fussed

for a few minutes, but was fine thereafter. The next day, Sellars took the children to
                                                                                      -3-


Build-A-Bear Workshop at the mall. Sellars returned the children to Thompson that

night.

         {¶ 5} The next day, November 11, 2013, R. attended daycare. She exhibited no

signs of illness that day, and she acted normally that evening at home. However, after

midnight, she began to vomit. She vomited approximately four times during the night.

The next day, Thompson took R. to her pediatrician where she was, again, diagnosed

with a viral infection. The doctor told Thompson to allow R. to rest and to give her

Pedialyte to help keep her hydrated. Thompson and R. remained at home for the rest of

the day. By that evening, R. was doing better; the vomiting had stopped, and she was

eating, drinking and playing normally. On the morning of November 13, R. was a little

sleepy, but otherwise was acting and eating normally. However, Thompson decided to

keep her home from daycare.

         {¶ 6} Thompson left for work at 10:20 that morning. She left R. in York’s care.

No one else was in the home when Thompson left as the older sibling was at school. At

noon, Thompson sent York a text message asking about R. York responded that R. was

fine and that she was playing with her toys. At 1:30 p.m., York called Thompson stating

that R. had become “unresponsive.” Thompson immediately drove home, which took

approximately five minutes. Once there, she observed York on the couch with R. in his

arms. She observed that R. was breathing but unresponsive. She told York to call 911.

         {¶ 7} R. and Thompson were transported to Dayton Children’s Hospital by

ambulance. During the ride, Thompson noted a mark under the child’s eye. At the

hospital, staff determined R. to be “severely impaired from a neurologic point of view.”

Attending neurosurgeon, Laurence Kleiner, was called in to examine R. Kleiner noted
                                                                                      -4-


that R. was breathing spontaneously, but was exhibiting “writhing-like activity.” A CAT

scan of the head and diagnostic blood tests were performed. The CAT scan revealed

“significant cerebral swelling.” On physical exam, Kleiner found R. could not open her

eyes and could not respond or make purposeful movements. Kleiner rated R. as a “6 on

the Glascow Coma Scale.”1 R. was placed on a ventilator and admitted to the pediatric

intensive care unit for treatment and further testing. By 8:00 p.m. that evening, R.’s

condition had deteriorated and Kleiner ordered an MRI. The test indicated that the brain

swelling had increased. Kleiner conducted an examination and concluded that R. met

the clinical criteria for brain death.

         {¶ 8} On Thursday morning, November 14, R., while still on life support, was

examined by Dr. Lori Vavul-Roediger who is a board-certified child abuse pediatrician

and the director of the Department of Child Advocacy at Dayton Children’s Hospital.

Vavul-Roediger observed bruising under R.’s right eye and right upper scalp. She also

observed hemorrhaging in the left eye and small bruises to R.’s right ear. She noted a

laceration in R.’s mouth that corresponded to a bruise on the outside of her cheek.

         {¶ 9} Ultimately, pursuant to protocol, another examination was performed to

confirm that R. met the criteria for brain death. She was removed from life support and

pronounced dead at 11:00 a.m. on November 15, 2013.

         {¶ 10} On August 29, 2014, York was indicted on two counts of murder, one count

of involuntary manslaughter, two counts of endangering children, and one count of

felonious assault.      Discovery was conducted.       York filed a motion to suppress.

Following a hearing, the motion was denied. On March 5, 2017, the State filed a motion


1
    According to the record, anything less than an 8 indicates severe head injury.
                                                                                       -5-


in limine to exclude the introduction of evidence of domestic violence between Sellars

and his girlfriend.

       {¶ 11} A six-day jury trial commenced on March 7, 2017. At trial, Thompson

testified that while in the waiting room of the hospital on Wednesday, November 13, she

kept asking York what had happened to R. She testified that he kept responding, “I don’t

know.” Thompson testified that York then began asking her about a text message he

had received from a friend, T.J. Vickroy, concerning sexual activity involving Thompson.

Thompson informed York that she did not want to discuss the matter at that time.

Thompson testified that on the following morning York left the hospital to return home.

At some point that day, Thompson was informed that R. was clinically brain dead. She

testified that York returned to the hospital that evening and appeared to be intoxicated

and not “capable of conversation.” Thompson asked York’s mother to take him home.

       {¶ 12} The State also presented Carlie Woodward who testified that she is a friend

of Thompson’s and that she runs the daycare that R. attended. She testified that R.

appeared fine on November 11 while at the daycare. She further testified that she

communicated with Thompson regarding R., and was informed on the evening of

November 12, after the trip to the pediatrician, that R. was fine. Woodward testified that

she received a video from Thompson showing R., on November 12, dancing and singing

in her crib. Woodward testified that she went to Dayton Children’s Hospital on Thursday

morning. She testified that she spoke to York who told her that he did not know what

had happened to the child. York told Woodward that he had placed R. in her crib for a

nap and that when he tried to wake her later, she was unresponsive.

       {¶ 13} Dr. Kleiner testified that he observed bruising on R.’s face under her right
                                                                                          -6-


eye, her ear, left and right scalp and on her cheek.          The bruising on the cheek

corresponded to a laceration found on the inside of R.’s mouth near her gum line. Kleiner

testified that based upon R.’s history and injuries there was a very high likelihood that her

condition was the result of abuse. He further testified that, in his opinion, R.’s injuries

were sustained on the day she presented to the hospital.

       {¶ 14} Dr. Vavul-Roediger testified that she observed all of the bruising that Kleiner

had described. She also observed hemorrhaging in the left eye. She testified that R.

suffered significant head trauma caused by multiple impacts to her head. She testified

that while she could not give a precise time of the injuries, she could state that R. would

not have been able to walk, talk or eat after sustaining such injuries.

       {¶ 15} Montgomery County Deputy Coroner, Bryan Casto, M.D., testified that he

performed R.’s autopsy on November 16, 2013. In addition to the injuries observed by

Kleiner and Vavul-Roediger, Casto testified that he observed extensive injuries

underneath R.’s scalp.     Specifically, he observed bruising which extended the full

thickness of the scalp and which caused staining to the skull. Casto observed a large

central bruise located where the scalp sits on the top of the head. He also observed

pattern injuries consisting of several half-inch circular bruises each separated by a “fairly

uniform half-inch of spared skin that is not bruised.”        These pattern injuries were

observed on the left, right and back of the scalp. Casto testified that the central bruise

appeared different from the pattern injuries and that it appeared to be healing.

       {¶ 16} Casto testified that he also examined R.’s brain which showed significant

swelling. He testified that he also found subarachnoid and subdural bleeding. The dura

is a tough membrane found beneath the skull covering the brain. Beneath that is the
                                                                                        -7-


arachnoid membrane which is a thinner, translucent covering of the brain.

       {¶ 17} Casto testified that he looked at microscopic samples from the bruising on

the scalp. He testified that he found evidence of iron and fibrosis on the larger central

bruise. Casto testified that the iron and fibrosis indicated that the large bruise was an

older injury that was resolving. However, he testified that the pattern bruises were acute

injuries meaning that they did not show any evidence of healing. He testified that he

classified R.’s death as a homicide resulting from blunt force trauma to her head.

       {¶ 18} Brad Daugherty, a homicide investigator with the Montgomery County

Sheriff’s Office, also testified at trial.   He testified that he was assigned to assist

Germantown police with the investigation of R.’s death.       Daugherty testified that on

Thursday, November 14, he accompanied Detective Swatford and Major Burns, both

members of the Germantown police department, to interview York whom they found at

his mother’s residence.     Daugherty testified that they sat with York and his mother

around the kitchen table while they conducted the interview. York told them that R. had

acted fine in the morning. He told the officers that he was alone with R. and no one else

was in the residence. York told the officers that R. did not fall or hit her head that day.

He stated that R. fell asleep on the couch, and that he cleaned the residence while she

slept. York stated that when he attempted to wake R., he could not get her to respond.

York further stated that the back of R.’s head was wet with perspiration, and that her eyes

were unfocused. York stated that he called Thompson and then checked R.’s eyes with

a flashlight. According to York, R. had the same type of unresponsiveness a couple of

weeks earlier.

       {¶ 19} Daugherty testified that he obtained a search warrant for the
                                                                                         -8-


Thompson/York residence where he found a grocery bag outside of the apartment’s front

door. The bag held a diaper, a baby wipe, some toilet paper and a rag with either vomit

or blood on it.   Daugherty also removed a pillow and sheet from R.’s crib. He testified

that a search of York’s cellular telephone and records obtained from his service provider

indicated that York had deleted some text messages from the morning of November 13.

Specifically, the cell phone provider’s records indicate that York received a 9:38 a.m. text

from T.J. Vickroy informing York that Vickroy and his girlfriend were breaking up due to a

sexual encounter that occurred between Vickroy, his girlfriend, Thompson and another

woman.     Vickroy also indicated that he believed his girlfriend and Thompson were

involved romantically with each other. At 9:41 a.m.,York sent a text in response asking

how long ago the encounter had occurred. Vickroy did not respond. Thompson texted

York at 11:48 asking how her baby was doing. York responded a minute later, “good

just chilling playing with toys.” The actual phone did not contain these texts.

       {¶ 20} Dr. Lora Ellis, R.’s pediatrician, also testified on behalf of the State.

According to Ellis she did not see R. during the October 2013 visit. Instead, R. was seen

by one of her partners. Ellis reviewed the documentation of that visit and did not note

any complaints or findings regarding possible head injuries. Ellis did see R. during the

November 11, 2013 visit. She testified that she did not observe any bruising on R. Nor

did she observe any mouth laceration when she checked R.’s mouth. Ellis testified that

R. was acting appropriately during the visit.     Ellis testified that she did not observe

anything that would indicate the need for a neurological examination at that time.

       {¶ 21} Amy Dallaire, a forensic serology and DNA scientist with the Miami Valley

Regional Crime Laboratory, testified for the State. According to Dallaire, the pillow and
                                                                                         -9-


its case removed from R.’s crib testified positive for blood. When the blood from the

pillow was tested, Dallaire found mixed DNA, one of which was positively identified as

R.’s. The blood from the case also matched R.’s DNA. The crib sheet tested positive

for blood, but the sample was not sufficient to permit a DNA analysis. The baby wipe

contained DNA that was a match for R. The toilet paper contained DNA from a single

male source.

       {¶ 22} York, turning to the defense case, presented the testimony of Dr. Janice

Ophoven, a specialist in pediatric forensic pathology. She testified that she reviewed the

entire record including R.’s medical history and Casto’s autopsy report. Ophoven also

requested special staining studies of the dura, scalp and left eye. The additional staining

studies were performed by Dr. Casto’s office and delivered to Ophoven.            Ophoven

testified that it was her opinion that R. died from complications stemming from a pre-

existing traumatic brain injury which she opined had occurred “many, many days” before

R.’s hospitalization. Ophoven testified that the injuries likely occurred on or around

October 24, 2013, the date of R.’s first visit to the pediatrician with vomiting. She based

her opinion on her observation of iron found in the three staining samples, as well as the

fact that there was new tissue growth on the larger central bruising area, and, finally, the

fact that the blood located in the lining of the skull and along the surface of the brain

contained evidence of iron.

       {¶ 23} York also called Brad Sellars as a witness.         At that time, the State

reiterated its motion in limine to exclude evidence of domestic violence between Sellars

and his girlfriend. The defense did not object and stated that it had no response to the

motion.   The trial court sustained the motion.       Sellars then testified that he had
                                                                                          -10-


exercised parenting time with R. the weekend before her death. He testified that she

had a minor bump to her head while at a restaurant. He further testified that she was

able to fully participate at the Build-a-Bear Workshop at the mall the next day, including

“hands-on” activities.

       {¶ 24} In rebuttal, the State presented the testimony of Dr. Joseph Felo who is the

Chief Deputy Medical Examiner for Cuyahoga County.              Felo testified that he had

reviewed the entire record including Dr. Ophoven’s report.         He agreed with Casto’s

assessment that R. had an older injury as well as new injuries to her head, and that she

died from multiple blunt force impacts to her head that occurred on the day she was

hospitalized. Felo testified that it was “very unlikely” that R. could have eaten, watched

television or communicated after suffering the observed head trauma. He testified that

he found no evidence to support Ophoven’s claim that the injuries occurred on October

24, 2013.

       {¶ 25} Dr. Casto was also called in rebuttal. He testified that he disagreed with

Dr. Ophoven’s conclusions. First, he testified that, while the subarachnoid and subdural

blood did contain evidence of prior injury, they also contained evidence of fresh red blood

cells. He testified that the mere presence of old injury does not “negate the presence of

a new amount of blood or a new collection of blood.” Tr. 900. With regard to the scalp,

he reiterated his prior testimony that the larger central injury looked different on autopsy

than did the smaller circular injuries. He testified that to fulfill Dr. Ophoven’s request, he

sampled two areas of the scalp taking a sample from the older injury and a sample from

one of the newer injuries.      Both samples were placed on the same slide for Dr.

Ophoven’s staining studies. He testified that the iron staining showed “abundant iron”
                                                                                         -11-


on the larger central bruise which was consistent with his original classification of that

bruise as an older injury. According to Casto, Ophoven ignored the fact that the smaller

pattern injury sample had “almost no iron, one cell contains iron [and] clearly would not

be categorized as the same level of healing as the larger injury.” Tr. 906. He further

testified that Dr. Ophoven did not present any microscopic photos of the newer injuries

during her testimony and that she did not “mention the smaller fragment representing the

more acute trauma to [R.’s] scalp.” Tr. 907.

       {¶ 26} The jury found York guilty of all the indicted counts. At sentencing, the trial

court merged all the counts. The State elected to proceed to sentencing on the murder

charge contained in Count II of the indictment (proximate result; felonious assault). York

was sentenced to a mandatory term of fifteen years to life in prison. York appeals.



                                        II. Analysis

       {¶ 27} York’s sole assignment of error states as follows:

       THE CUMULATIVE RESULT OF THE COURT’S DECISIONS WERE

       CONTRARY TO JUSTICE AND PREJUDICIAL TO DEFENDANT-

       APPELLANT.

       {¶ 28} York contends that the cumulative effect of errors made by the trial court

during the course of the proceedings denied him a fair trial.

       {¶ 29} The Ohio Supreme Court recognized the doctrine of cumulative error in

State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). “Pursuant to this doctrine,

a conviction will be reversed where the cumulative effect of errors in a trial deprives a

defendant of the constitutional right to a fair trial even though each of numerous instances
                                                                                        -12-

of trial court error does not individually constitute cause for reversal.” State v. Garner,

74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). However, the doctrine does not apply

unless there are “multiple instances of harmless error.” Id. “In order to find cumulative

error, we must find: (1) that multiple errors were committed at trial, and (2) there is a

reasonable probability that the outcome of the trial would have been different but for the

combination of the separately harmless errors.” State v. Goldblum, 2d Dist. Montgomery

No. 25851, 2014-Ohio-5068, ¶ 58, citing State v. Kelly, 2d Dist. Greene No. 2004–CA–

20, 2005–Ohio–305, ¶ 33.

         {¶ 30} York first contends that the trial court erred by sustaining the motion in

limine filed by the State which sought to block evidence of alleged domestic violence

between Sellars and his girlfriend. He further contends that the trial court impermissibly

interfered with his examination of Sellars.     In support, York argues that Ophoven’s

testimony that the injury did not occur on the day of the hospitalization discredits the

State’s theory that, because he was alone with R., he was the only possible source of the

injuries. Thus, he argues that he should have been permitted to present a defense that

Sellars was a potential suspect since Sellars exercised parenting time just prior to each

of the episodes of vomiting.2 York contends that the evidence of the domestic violence

as well as the testimony he attempted to elicit from Sellars was relevant to show that

Sellars had a bad temper and also had the opportunity to harm R.

         {¶ 31} We begin first with the motion in limine.   Evid.R. 404(A) provides that

although it may be relevant, “[e]vidence of a person's character or a trait of character is

not admissible for the purpose of proving action in conformity therewith on a particular


2
    According to the record, vomiting can be a symptom of head injury.
                                                                                          -13-


occasion.” Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” “The burden is on the proponent of extrinsic act evidence to demonstrate that

the relevancy of the extrinsic act does not pertain to character and conforming conduct.”

State v. Nucklos, 171 Ohio App. 3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶ 86 (2d Dist.),

citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215.

       {¶ 32} In analyzing this argument, we are cognizant of the discrepancy in the

medical testimony.     Specifically, Casto, Felo, and Kleiner opined that the injuries

responsible for R.’s death occurred sometime on the day she was hospitalized. Vavul-

Roediger echoed this testimony when she opined that R. could not have been behaving

normally after the injuries were inflicted. Conversely, Ophoven opined that the injuries

occurred on or around October 24 when R. first presented to the pediatrician with

complaints of vomiting.

       {¶ 33} Further, our analysis must include the fact that York did not respond, nor

object, to the State’s motion. Nor did he make a proffer of any evidence. Accordingly,

he has waived all but plain error. This court has previously stressed “we recognize plain

error ‘with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.’ In order to prevail on a claim governed by the plain error

standard, [the defendant] must demonstrate that the outcome of [his] trial would clearly

have been different but for the errors that [he] alleges.” (Internal citations omitted.) State

v. Carpenter, 116 Ohio App.3d 615, 621, 688 N.E.2d 1090 (2d Dist. 1996).
                                                                                         -14-


       {¶ 34} Finally, “[t]he decision whether to admit or exclude evidence rests within the

sound discretion of the trial court and its decision in such matters will not be reversed on

appeal absent an abuse of discretion and material prejudice,” State v. Brewer, 2d Dist.

Greene No. 03CA0074, 2004-Ohio-3572, ¶ 58. An abuse of discretion occurs when the

trial court exhibits an arbitrary, unreasonable or unconscionable attitude. Id.

       {¶ 35} York was able to establish through Thompson that Sellars exercised

parenting time with R. prior to each of her vomiting episodes. Thus, he was able to

demonstrate opportunity. The only other reason he cited for using this evidence was to

show that Sellars had a bad temper; something that is barred by Evid.R. 404. We

conclude that York has failed to establish error, let alone plain error.       There is no

showing, and we cannot discern, how evidence of possible violence between Sellars and

his girlfriend would be relevant to this case, nor how the evidence is admissible for any of

the purposes set forth in Evid.R. 404(B).

       {¶ 36} We next turn to what York deems to be improper interference by the trial

court during his examination of Brad Sellars. York contends that the trial court, without

objection by the State, made various statements during the examination.

       {¶ 37} We note that the trial court permitted defense counsel to ask numerous

leading questions of Sellars before interjecting to comment that counsel should remember

that he was conducting direct examination rather than cross. Defense counsel said, “ok,”

and proceeded to continue questioning Sellars. After two questions, defense counsel

again began to ask leading questions, at which point the trial court asked “Do you know

what that means?”

       {¶ 38} The trial court’s control over the questioning of witnesses is governed by
                                                                                          -15-


Evid.R. 611 which provides:

       (A) Control by court. The court shall exercise reasonable control over the

       mode and order of interrogating witnesses and presenting evidence so as

       to (1) make the interrogation and presentation effective for the

       ascertainment of the truth, (2) avoid needless consumption of time, and (3)

       protect witnesses from harassment or undue embarrassment.

       ***

       (C) Leading questions. Leading questions should not be used on the direct

       examination of a witness except as may be necessary to develop the

       witness’ testimony. Ordinarily leading questions should be permitted on

       cross-examination. When a party calls a hostile witness, an adverse party,

       or a witness identified with an adverse party, interrogation may be by

       leading questions.

       {¶ 39} Sellars was called as a witness by York. York did not claim that Sellars

was a hostile witness. Thus, we find the trial court did not abuse its discretion when

admonishing counsel to discontinue the leading questions.

       {¶ 40} York further contends that the trial court sustained several objections by the

State without any basis for such a ruling. York asked Sellars what he and R. typically

did on their weekends together. The State objected, and the trial court sustained the

objection. York did not seek to question the ruling at a sidebar. We agree with the State

that, while there is no explanation in the record for the objection or the ruling thereon, the

trial court could have found that the question was overly broad as it was not limited to the

time frame around R.’s death. In any event, we find no abuse of discretion.
                                                                                           -16-


       {¶ 41} York also asked Sellars whether, when Thompson called him, she informed

him that R. had become unresponsive. York later asked whether Thompson was able

to directly call Sellars’ number. The State objected to both questions, and the trial court

sustained the objections. We note that the first question was leading and seems to ask

for hearsay evidence. The second question asked Sellars to testify as to what another

individual was able to do without establishing whether he had knowledge of Thompson’s

actions. Again, York did not contest the ruling and did not pursue either question further.

We cannot say that the trial court abused its discretion with regard to either question.

       {¶ 42} Finally, at another point in the direct examination, the trial court interjected

and stated, “I think you’re confusing him with the question * * * [i]f you can[,] rephrase it

so he understands the time period you’re talking about[?]” Sellars then indicated that he

was, indeed “very” confused by the questions. We find no error with regard to this

intervention by the trial court.

       {¶ 43} Next, York claims that the trial court erred with regard to objections that

were sustained during defense counsel’s cross-examination of Thompson. Specifically,

York asked Thompson whether Sellars paid child support for R. and whether there was a

period of time when he failed to exercise visitation with R. Defense counsel also asked

Thompson why she did not immediately inform Sellars when she began to date York.

Counsel also asked Thompson whether the vomiting episode in October was similar to

the one in November. The State objected, and the trial court sustained the objections.

       {¶ 44} With regard to the first three questions, York’s claim of relevance is that they

tend to demonstrate that Sellars had a bad temper and that he had opportunity to harm

R. As stated above, Evid.R. 404 bars the evidence insofar as it relates to temperament.
                                                                                         -17-


Further, York does not explain, nor can we discern, how the cited questions are relevant

to opportunity.   With regard to the question regarding whether R.’s symptoms and

appearance were similar during the October and November episodes, we agree with the

State that the matter had been fully explored by defense counsel earlier in his cross-

examination of Thompson. Thus, we find no abuse of discretion in the trial court’s

decision to sustain the State’s objections.

       {¶ 45} York next complains that the trial court erroneously permitted Casto to

testify that the pattern injuries to R.’s scalp are consistent with marks from knuckles or a

fist. He further objects to Casto’s testimony that R. would not have been able to perform

normally after the injuries were incurred.

       {¶ 46} The admissibility of expert testimony is a matter committed to the sound

discretion of the trial court, and the trial court's ruling will not be overturned absent an

abuse of that discretion. Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850

N.E.2d 683, ¶ 9. We first note that expert testimony must meet the threshold of being

relevant to a trial issue.   Evid.R. 401.     If so, then we must determine whether it is

sufficiently reliable under Evid.R. 702. State v. Abner, 2d Dist. Montgomery No. 20661,

2006-Ohio-4510, ¶ 26. Evid.R. 702 provides that a witness may testify as an expert if all

of the following apply:

       (A) The witness' testimony either relates to matters beyond the knowledge

       or experience possessed by lay persons or dispels a misconception

       common among lay persons;

       (B) The witness is qualified as an expert by specialized knowledge, skill,

       experience, training, or education regarding the subject matter of the
                                                                                            -18-


       testimony;

       (C) The witness' testimony is based on reliable scientific, technical, or other

       specialized information. * * *

       {¶ 47} During his testimony, Casto indicated that the field of forensic pathology

involves evaluating the types of injury that cause death as well as determining the

possible mechanisms of that injury. He further testified that he has looked at thousands

of injuries. He also testified regarding his educational background as well as his training

and work history. Casto testified that sometimes he is able to give an exact cause of the

injury and sometimes he cannot discern the exact cause.              He further testified that

sometimes he is able to provide only possible causes of the injuries. In this case, he

identified blunt force trauma as the cause of death. Casto testified that the circular

injuries could be consistent with a blow from a hammer, but that it was not likely that a

hammer was the cause of the injury as the circles were of such a uniform pattern. He

testified that the pattern injuries were not inconsistent with a blow from a fist. Casto’s

testimony that R. would not be able to function normally after the infliction of the pattern

injuries was based upon the degree of swelling found in the brain which he testified would

cause a lack of oxygen to the brain. From our review of the record, we conclude that the

State established that Casto’s testimony was relevant and that it complied with the terms

of Evid.R. 702. Thus, we cannot say that the trial court abused its discretion in permitting

the cited testimony.

       {¶ 48} York next claims that the trial court erroneously redacted handwriting on

some of the slides presented during Ophoven’s testimony before presenting the slides to

the jury. In rendering its ruling, the trial court noted that the writing on the slides rendered
                                                                                         -19-


them suggestive and that any evidence as to what was demonstrated on the slides should

be elicited through Ophoven’s testimony. York does not make any argument concerning

how this constitutes error, nor does he claim any prejudice resulting therefrom. Indeed,

Ophoven testified at length regarding the slides. We find no error.

      {¶ 49} York next states that “while the jury deliberated, it sent a note saying it was

deadlocked on Counts I and II, and the Court, over the objection of the defense, sent a

modified Allen charge to the jury.”3 We have reviewed the trial court’s supplemental

charge to the jury following their statement that they were deadlocked, and note that it

comports with the charge approved by the Supreme Court of Ohio in State v. Howard, 42

Ohio St. 3d 18, 537 N.E.2d 188 (1989), paragraph two of the syllabus, and Section CR

429.09 of the Ohio Jury Instructions. Accord State v. Howard, 2d Dist. Montgomery No.

23795, 2011-Ohio-27, ¶ 82. York does not claim that this was error or that it caused him

prejudice, and we find no error.

      {¶ 50} Finally, York contends that the trial court expressed bias against him during

sentencing with the following statement:

      I am incredibly troubled by your statement because your focus was on what

      happened to you. And your either, inability to accept the overwhelming

      evidence that was presented at trial or your refusal to do so. You stated

      just a minute ago, I have never harmed a child. Sir, there was a lot of

      evidence that said that you did. But I didn’t allow it in at trial because the


3
 In Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the United
States Supreme Court set forth a summary of the supplemental instruction to be given by
a trial court when jurors claimed they were deadlocked. The instructions were later
modified by the Supreme Court of Ohio in State v. Howard, 42 Ohio St. 3d 18, 537 N.E.2d
188 (1989).
                                                                                         -20-


       rules of evidence limit what can be presented at that trial.        But your

       suggestion, I don’t know if it’s delusion or what, but sir, there was a lot of

       evidence of your prior conduct towards children that unfortunately on this

       date resulted in the horrific death of an innocent and vulnerable child. 4

       You’ve shown no remorse at any point in time.             I’ve watched you

       throughout the three years of these proceedings, and there has not been

       one time where I felt that you even appreciated the gravity of what occurred

       and the jury has determined that you did. I guess I wonder, sir, and I

       cannot encapsulate what [R.’s] mom and her aunt said so eloquently. But

       I wonder if you ever though [sic] how hard this has been for [R.’s] family,

       instead of merely focusing your attention on yourself.

       {¶ 51} Just prior to this passage, York made a personal statement denying any

role in the death of R. His counsel then made a statement that York would continue to

“fight for his innocence in the next available venue.”

       {¶ 52} This court has stated that “it is clear that lack of remorse is an appropriate

consideration for sentencing, even for a convicted defendant who maintains his

innocence.” State v. Farley, 2d Dist. Miami No. 2002-CA-2, 2002-Ohio-6192, ¶ 54.

Even where, as here, the trial court must impose a mandatory sentence, rather than

determining a sentence from a possible range, we cannot say that it is inappropriate for

the trial court to comment upon a relevant factor. We cannot agree with York that this

passage evinces bias.



4
 According to the Presentence Investigation Report, there is evidence that in the past
York exhibited abusive behavior toward two other children.
                                                                                      -21-


       {¶ 53} We find no errors with regard to the issues raised by York. Also, there was

ample evidence to support the conviction. Thus, we conclude that York’s claim that he

was deprived of a fair trial due to cumulative error is not borne out by the record.

Accordingly the sole assignment of error is overruled.



                                    III. Conclusion

       {¶ 54} York’s sole assignment of error being overruled, the judgment of the trial

court is affirmed.

                                    .............



DONOVAN, J. and HALL, J., concur.



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Mathias H. Heck, Jr.
Michael J. Scarpelli
Hilary Lerman
Hon. Mary Katherine Huffman
