[Cite as State v. VanMeter, 2016-Ohio-5191.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                       C.A. No.       14CA0058-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
CHRISTIAN VANMETER                                  COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   13 CR 0514

                                 DECISION AND JOURNAL ENTRY

Dated: August 1, 2016



        WHITMORE, Judge.

        {¶1}    Appellant, Christian VanMeter, appeals his convictions by the Medina County

Court of Common Pleas. This Court affirms.

                                                I

        {¶2}    On Friday, June 28, 2013, Mr. VanMeter’s infant son started showing signs that

he was in pain. The baby’s mother found that she could only console him by holding him close

to her body with her arm supporting his legs. Believing that the baby’s hips were out of

alignment, she took him to a chiropractor the following morning, as was their pattern. Over the

course of that weekend, however, the baby displayed signs of increasing distress. The following

Monday, the family returned to the chiropractor, who told them that the baby needed immediate

medical attention.

        {¶3}    The baby was diagnosed with a spiral fracture of the femur at Akron Children’s

Hospital. Suspecting that the fracture was a result of abuse, the staff performed additional tests
                                                2


and discovered that the baby had two subdural hemorrhages, one recent and one that dated back

several months.    The baby was temporarily removed from his parents’ custody, and Mr.

VanMeter was charged with felonious assault in violation of R.C. 2903.11(A)(1) and

endangering children in violation of R.C. 2919.22(A). A jury found him guilty of both offenses.

The trial court merged Mr. VanMeter’s convictions and sentenced him to four years in prison.

This appeal followed.

                                                II

                              Assignment of Error Number One

       THE TRIAL COURT ERRED AS THERE WAS INSUFFICIENT EVIDENCE
       PRESENTED BY THE STATE OF OHIO TO SUPPORT THE DEFENDANT’S
       CONVICTION OF FELONIOUS ASSAULT AND ENDANGERING
       CHILDREN.

       {¶4}    In his first assignment of error, Mr. VanMeter has argued that there is insufficient

evidence that he is the person who committed the crimes at issue. In the alternative, he has

argued that there is insufficient evidence that he acted with the mental states required to commit

felonious assault or endangering children. We disagree.

       {¶5}    “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–Ohio–

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do

not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.

Jenks, 61 Ohio St.3d 259, 273 (1991). The State’s evidence is sufficient if it allows the trier of

fact to reasonably conclude that the essential elements of the crime were proven beyond a

reasonable doubt. Id. Like any other element of an offense, identity may be established through
                                                   3


direct or circumstantial evidence. State v. Flynn, 9th Dist. Medina No. 06CA0096-M, 2007-

Ohio-6210, ¶ 12, citing State v. Gorgan, 9th Dist. Medina No. 1824, 1990 WL 1771, *1 (Jan. 10,

1990).

          {¶6}   R.C. 2903.11(A), which prohibits felonious assault, provides that no one “shall

knowingly * * * [c]ause serious physical harm to another[.]” Serious physical harm includes:

          (a) Any mental illness or condition of such gravity as would normally require
          hospitalization or prolonged psychiatric treatment;

          (b) Any physical harm that carries a substantial risk of death;

          (c) Any physical harm that involves some permanent incapacity, whether partial
          or total, or that involves some temporary, substantial incapacity;

          (d) Any physical harm that involves some permanent disfigurement or that
          involves some temporary, serious disfigurement;

          (e) Any physical harm that involves acute pain of such duration as to result in
          substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5). “A person acts knowingly, regardless of purpose, when the person is aware

that the person’s conduct will probably cause a certain result or will probably be of a certain

nature.     A person has knowledge of circumstances when the person is aware that such

circumstances probably exist.” R.C. 2901.22(B).

          {¶7}   Endangering children is prohibited by R.C. 2919.22(A), which prohibits any

person who is the parent of a child under eighteen years of age from creating a substantial risk to

the health or safety of the child by violating a duty of care, protection, or support. Endangering

children is a felony of the third degree when it results in serious physical harm to the child. R.C.

2919.22(E)(2)(c). Although R.C. 2919.22(A) does not specify the degree of culpability required

to commit the offense, the Ohio Supreme Court has concluded that “[t]he existence of the

culpable mental state of recklessness is an essential element of the crime of endangering

children[.]” State v. McGee, 79 Ohio St.3d 193 (1997), syllabus.
                                                   4


       {¶8}    Dr. Daryl Steiner, who examined the baby after he was taken to the emergency

room on July 1, 2013, testified that the baby had suffered a spiral fracture to the femur. Dr.

Steiner explained that fractures in very young children generally raise suspicion because, due to

the fact that young children are not mobile, fractures require “a specific traumatic event.” He

also explained that a spiral fracture is caused not by blunt force, but by “twisting around the long

axis of the bone.” In summary, he testified that:

       a fracture of the femur is a traumatic event in excess of routine handling. A femur
       fracture did not occur with just routine handling and play with the child. There’s
       a force more notable, more powerful, more forceful than just routine handling of
       children and routine play with children. If routine play caused fractures, we’d see
       fractures -- that’s all we’d see. But these are not very common injuries.

According to Dr. Steiner’s testimony, neither parent in this case offered an explanation

consistent with the degree of the baby’s injury.

       {¶9}    Mother testified that on the morning of Friday, June 28, 2013, the baby was

playing, smiling, and laughing. She put him down for a nap on the bed that she shared with Mr.

VanMeter between 9:00 and 9:30 a.m., leaving Mr. VanMeter alone in the upstairs room with the

baby. Mother testified that after her sister suggested that she go back upstairs, she found Mr.

VanMeter holding the baby and observed that he was the most frustrated she had ever seen him

with the child. She recalled that Mr. VanMeter had the baby in his arms and the baby was

screaming. Mr. VanMeter then handed the baby to Mother, telling her that he could not get him

to stop crying. Mother testified that she noticed afterward that the baby, who was usually easy to

console, seemed to be in pain. According to her recollection, he refused a bottle and only calmed

down when she held him close against her with her arm supporting his legs. She noted that when

she moved, “[h]e would scream. He would scream like he was – you know, something was

hurting him.” She testified that she had “never seen him scream and cry like he did.”
                                                 5


       {¶10} Mother’s sister also testified. She recalled that on Friday morning, she heard the

baby crying and went upstairs to check on him. She testified that she found Mr. VanMeter

holding the baby and “shaking him kind of hard * * * like he had a good grip on his hands and

seemed like he was really irritated.” She characterized the baby’s crying as “not * * * normal,”

as if he was in pain.

       {¶11} Based on this testimony, the jury could reasonably conclude that the baby

sustained a spiral fracture to his femur during the period of time that he was solely in the care of

Mr. VanMeter. In addition, the jury could reasonably conclude that the injury occurred because

of a force exerted upon the baby beyond the limits of normal play and handling and that

VanMeter was aware, regardless of his intent, that the force would probably result in injury to

the infant. Accordingly, the jury’s conclusion that Mr. VanMeter caused the baby’s injury and

the conclusion that he acted knowingly are supported by sufficient evidence.

       {¶12} Mr. VanMeter’s first assignment of error is overruled.

                               Assignment of Error Number Two

       THE JURY’S FINDING OF GUILTY ON THE CHARGE[S] OF FELONIOUS
       ASSAULT AND ENDANGERING CHILDREN WAS AGAINST THE
       MANIFEST WEIGHT OF [THE] EVIDENCE.

       {¶13} Mr. VanMeter’s second assignment of error is that his convictions for felonious

assault and endangering children are against the manifest weight of the evidence. We disagree.

       {¶14} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

       review 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.
                                                  6


State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

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

       {¶15} Mr.      VanMeter     has   argued       that   Mother   and   her   sister   vacillated

in their testimony and that their credibility was limited because they provided prior inconsistent

statements to the police. For example, Mother’s description of the baby’s behavior immediately

after she took him from Mr. VanMeter varied with respect to the intensity of his crying and

apparent distress. Neither Mother nor her sister testified that they believed the baby’s leg was

broken, and Mother testified that she sought treatment from the family’s chiropractor because

she believed that the baby’s hip was out of alignment.

       {¶16} Mother’s testimony about what happened at the chiropractor’s office also differed

from earlier statements. At trial, she testified that during the baby’s appointment on Saturday,

the chiropractor, Dr. Lash, did not remove the baby from his carseat or manipulate his legs. On

cross-examination, Mother acknowledged that she had previously stated that Dr. Lash did

remove the baby from the carseat and had bent his legs. Dr. Lash testified that Mother held the

baby during the visit and that he used “a soft technique” to adjust the baby’s spine. He denied

touching the right leg in any manner, specifically observing that bending and extending the leg

would cause extreme pain to someone with a broken femur. Mother also testified that the baby

was in pain before the visit to Dr. Lash, and any contact with the baby’s legs seemed to

aggravate the pain that was already present. Notably, Mother did not describe any behavior on

Dr. Lash’s part that would rise to the level of force described by Dr. Steiner as necessary to cause

a spiral fracture of the femur.
                                                7


        {¶17} Although Mother and her sister did testify about some details differently than the

statements they provided earlier, the testimony at trial was consistent on several points. On the

morning of Friday, June 28, 2013, the baby woke without pain and was not in distress before his

nap. After Mother took the baby from Mr. VanMeter, the baby appeared to be in pain and could

only be consoled by being held close to the body with his legs supported. Witnesses testified

that the baby’s pain continued unabated through the weekend, and when another chiropractor

saw him on Monday morning, he observed that “the leg was red, swollen, and extremely

distended” and advised the family to seek medical treatment quickly.

        {¶18} Mr. VanMeter has also argued that the weight of the evidence does not support

the conclusion that Mr. VanMeter violated a duty of care toward the baby for purposes of R.C.

2919.22(A). Specifically, he has argued that the evidence does not support the conclusion that

he failed to obtain medical treatment for the baby because Mother was primarily responsible for

making health care decisions.       This argument is misplaced because his conviction for

endangering children is based on evidence that he failed in a duty of care by causing the injury in

the first instance.

        {¶19} Mr. VanMeter’s convictions for felonious assault and endangering children are

not against the manifest weight of the evidence, and his second assignment of error is overruled.

                                                III

        {¶20} Mr. VanMeter’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.



        There were reasonable grounds for this appeal.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

KRISTOPHER K. AUPPERLE, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
