[Cite as State v. Miku, 2018-Ohio-1584.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. Craig R. Baldwin, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 2017 CA 00057
MATHEW NICOLAS MIKU

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2016 CR 00458


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 20, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                AARON KOVALCHIK
PROSECUTING ATTORNEY                           116 Cleveland Avenue, NW
RONALD MARK CALDWELL                           808 Courtyard Centre
ASSISTANT PROSECUTOR                           Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702
Stark County, Case No. 2017 CA 00057                                                        2

Wise, John, P. J.

        {¶1}   Defendant-Appellant Mathew Nicolas Miku appeals his conviction for

murder and child endangering in the Court of Common Pleas, Stark County. Plaintiff-

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

       {¶2}    On the late morning of March 4, 2016, paramedics from the Canton Fire

Department were dispatched to a residence on Dewalt Ave. NW in response to a report of

an adult woman needing medical assistance. Appellant lived there with Hailey Miku, his

young daughter, and his girlfriend Jessica Bender (who is not the child’s mother). The

paramedics instead discovered the body of three-year-old Hailey on a mattress in the living

room. Paramedic John Huff later testified that appellant appeared “frantic” at the scene.

Appellant then stated that Hailey had tripped over a cat and had fallen down a flight of

carpeted stairs the previous week. Trial Tr. at 254, 256. Appellant told Huff that he had

brought Hailey downstairs after discovering her in an unresponsive state. Id. Sergeant

Robert Smith and Officer Dave Wolgamott of the Canton Police Department were also

dispatched to the scene. According to Sgt. Smith, when he made contact with appellant,

his response was: “I'm going to jail, ain't I?” Tr. at 267.

       {¶3}    Harry Campbell, the chief investigator for the Stark County Coroner, also

came to the scene. He observed that rigor mortis had set in, and he observed inter alia

“numerous injuries *** across [Hailey’s] scalp, the forehead, the bridge of the nose, and

the right cheek.” Tr. at 293. Campbell also noted additional injuries, including abrasions

and bruises, about the girl’s head and body.

       {¶4}    Appellant was interviewed by Detective Joseph Mongold at Canton Police

headquarters, after signing a written waiver of his Miranda rights. Tr. at 455. Appellant told
Stark County, Case No. 2017 CA 00057                                                        3


him that the girl’s mother, Justina Longwell, had asked him around Thanksgiving of 2015

to watch Hailey for a few days, but that she thereafter avoided resuming physical custody.

Tr. at 460-461. Appellant initially maintained his claim that Hailey had fallen down the

stairs. As Mongold continued the questioning, he pointed out that the girl’s numerous

injuries were not consistent with a single fall down the carpeted stairs. Appellant at some

point in the process added that she had also fallen off the toilet. Appellant further

suggested that the girl may have had a reaction to Tylenol or Ibuprofen. Tr. at 464. At

some point, appellant began to concede that he had “severe anger issues,” that he usually

took his frustration out on Hailey, and that he had a hard time controlling himself when he

acted violently. Tr. at 465. He then admitted that he had hit her in the face with an open

hand, causing her ear to bleed, and that he had beat her with a curtain rod. Tr. at 467.

Ultimately, appellant confessed to the detective that he had gone too far and killed her. Tr.

at 468. When asked about Jessica Bender's role in the abuse of Hailey, appellant stated

Bender “didn’t have a hard bone in her body and wouldn't hurt a fly.” Id. Appellant also

asked Det. Mongold to tell some of the neighbors that he knew what he had done was

wrong. Tr. at 470.

       {¶5}    On July 26, 2016, the Stark County Grand Jury indicted appellant on one

count of murder (R.C. 2903.02(B)), specifically for knowingly causing the death of another

as a proximate result of committing the second-degree felony of child endangering.

Appellant was also indicted on one count of child endangering (R.C. 2919.22(B)(1) and

(E)(2)(d)), specifically for recklessly abusing a child that resulted in serious physical harm

to the child, or (under R.C. 2919.22(B)(2) and (E)(3)), for recklessly torturing or cruelly

abusing the child that resulted in serious physical harm to the child. The State’s theory of
Stark County, Case No. 2017 CA 00057                                                         4


the case was that appellant beat the child over a three-month period without seeking

medical attention for her, resulting in her death.

       {¶6}    Appellant subsequently pled not guilty to the above charges. On November

21, 2016, appellant filed a motion to suppress the statements he made to Detective

Mongold during the recorded interview at the Canton Police Department. He argued in his

motion that his waiver of his constitutional rights and agreement to speak was induced by

improper promises made by the detective. Following a hearing on December 1, 2016, the

trial court overruled the motion to suppress.

       {¶7}    The case proceeded to a trial by jury commencing on February 6, 2017.

During the trial, Dr. Renee Robinson, forensic pathologist at the Stark County Coroner's

Office, testified that she performed the autopsy of Hailey Miku, as further detailed infra. Tr.

at 514-515. Dr. Robinson testified that she determined that homicide was the manner of

death concerning Hailey. Tr. at 559. However, upon cross-examination, Dr. Robinson

could not point to a specific single injury that caused the death of Hailey. Tr. at 566.

       {¶8}    Later during the trial proceedings, appellant moved the court to instruct the

jury on the lesser included offense of involuntary manslaughter. The trial court overruled

the motion.

       {¶9}    The jury ultimately found appellant guilty of the charged offenses, and the

court sentenced him to an aggregate prison term of 23 years-to-life in prison (15 years-to-

life for murder and a consecutive eight-year prison term for child endangering).

       {¶10} On April 3, 2017, appellant filed a notice of appeal. He herein raises the

following seven assignments of Error:
Stark County, Case No. 2017 CA 00057                                                   5


      {¶11} “I.      THE TRIAL COURT ERRED WHEN IT OVERRULED APPELANT’S

[SIC] MOTON [SIC] TO SUPPRESS.

      {¶12} “II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

      {¶13} “III. THE TRIAL COURT ERRED IN ADMITTING PHOTOS WHICH WERE

INFLAMMATORY AND HIGHLY PREJUDICIAL.

      {¶14} “IV. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY OF PRIOR

BAD ACTS.

      {¶15} “V. THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE

JURY ON INVOLUNTARY MANSLAUGHTER.

      {¶16} “VI. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTIONS 10 AND 16 OF THE OHIO CONSITUTION, BECAUSE HIS TRIAL COUNSEL

PROVIDED INEFFECTIVE ASSITANCE [SIC].

      {¶17} “VII. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE

APPELLANT'S CONVICTIONS AS ALLIED OFFENSES.”

                                           I.


      {¶18} In his First Assignment of Error, appellant contends the trial court erred in

denying his motion to suppress the statements he made to Detective Mongold concerning

his conduct toward the victim, Hailey. We disagree.

      {¶19} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Stark County, Case No. 2017 CA 00057                                                        6


Second, an appellant may argue the trial court failed to apply the appropriate test or correct

law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing this

third type of claim, an appellate court must independently determine, without deference to

the trial court's conclusion, whether the facts meet the appropriate legal standard in the

given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v.

Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry (1994), 95 Ohio

App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620

N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. The United

States Supreme Court has held that as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal. See Ornelas v.

United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911.

       {¶20} The gist of appellant’s suppression argument is that Detective Mongold,

following appellant’s waiver of rights pursuant to Miranda, infra, improperly induced him to

make incriminating statements by allegedly implying appellant would receive a lesser jail

sentence and promising appellant that he could see his girlfriend, Jessica Bender, after

the interview.

       {¶21} A waiver of the Fifth Amendment right not to incriminate oneself must be

made voluntarily, knowingly and intelligently. State v. Abdi, 4th Dist. Athens No. 09CA35,

2011-Ohio-3550, ¶ 55, citing Miranda v. Arizona (1966), 384 U.S. 436, 444. A suspect's

decision to waive his or her Fifth Amendment privilege is made voluntarily absent evidence

that his or her will was overborne and his or her capacity for self-determination was

critically impaired because of coercive police conduct. State v. Collins, 5th Dist. Richland
Stark County, Case No. 2017 CA 00057                                                      7

No. 2003–CA–0073, 2005–Ohio–1642, ¶ 141, citing Colorado v. Spring (1987), 479 U.S.

564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954. A “totality of the circumstances test” is applied

to this question. See, e.g., State v. Burgett, 3rd Dist. Marion No. 9–09–14, 2009–Ohio–

5278, ¶ 39.

       {¶22} During the suppression hearing, Detective Mongold testified that appellant

asked multiple times if he could see Jessica Bender. Supp. Tr. at 22, 33-35. Mongold

stated he told appellant that he could make it possible for him to see Bender after the

interview. Id. Mongold testified on cross examination that appellant asked what kind of jail

sentence he was looking at, to which the detective responded that it depended upon how

truthful he was to law enforcement. Supp. Tr. at 37. Mongold also testified upon cross-

examination that he told appellant he could see Bender if he was honest with him. Supp.

Tr. at 38.

       {¶23} As appellant notes, the Second District Court of Appeals, in State v.

Arrington (1984), 14 Ohio App.3d 111, 470 N.E.2d 211, held as follows: “Where an

accused's decision to speak was motivated by police officers' statements constituting

‘direct or indirect promises' of leniency or benefit and other representations regarding the

possibility of probation which were misstatements of the law, his incriminating statements,

not being freely self-determined, were improperly induced, involuntary and inadmissible

as a matter of law.” Id. at paragraph 2 of the syllabus. Nonetheless, general assurances

that a defendant's cooperation will be considered or that a confession will be helpful do

not invalidate a confession. See State v. Scholl, 10th Dist. Franklin No. 12AP-309, 2012-

Ohio-6233, ¶ 15. We also note that under R.C. 2929.12(D) and (E), one of the factors for

consideration of the likelihood of recidivism is whether or not an offender shows “genuine
Stark County, Case No. 2017 CA 00057                                                      8


remorse for the offense.” Upon review, we find Detective Mongold’s unspecific statement

that appellant’s sentence “depends on how honest you are with us” did not constitute a

misstatement of the law rendering appellant’s statements involuntary and inadmissible

under Arrington.

       {¶24} In regard to the detective’s assurances that appellant could talk to his

girlfriend, Jessica, we find appellant divorces this question from its context. The record

indicates that after appellant presented his initial exculpatory version of events, Det.

Mongold confronted him with information that had been obtained from other sources,

including Jessica. Supp. Tr. at 44. Appellant then persisted in his request to see and talk

with her. Likely seeking to prevent appellant from finding out what Jessica had reported

and thereby allowing appellant the opportunity to line up his story with her report, Mongold

understandably replied that he would see about allowing appellant to talk with Jessica after

the interrogation was complete, and not before. We are unpersuaded that the detective’s

actions constituted a misrepresentation of the law or other coercive technique utilized to

improperly induce a confession by appellant.

       {¶25} Accordingly, we hold the trial court did not err in denying appellant’s motion

to suppress.

       {¶26} Appellant’s First Assignment of Error is overruled.


                                             II.

       {¶27} In his Second Assignment of Error, appellant maintains his convictions were

not supported by sufficient evidence and were against the manifest weight of the evidence.

We disagree.
Stark County, Case No. 2017 CA 00057                                                      9

                                 Sufficiency of the Evidence

       {¶28} In reviewing a defendant's claim of insufficient evidence, “[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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus.

       {¶29} Appellant was convicted of murder under R.C. 2903.02(B), which states:

“No person shall cause the death of another as a proximate result of the offender's

committing or attempting to commit an offense of violence that is a felony of the first or

second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised

Code.”

       {¶30} Appellant     was    also convicted    of    child endangering under R.C.

2919.22(B)(1) and/or (B)(2), which read in toto as follows:

              (B) No person shall do any of the following to a child under eighteen

       years of age or a mentally or physically handicapped child under twenty-one

       years of age:

              (1) Abuse the child;

              (2) Torture or cruelly abuse the child[.]

       {¶31} In the case sub judice, one of the State’s key witnesses was Dr. Renee

Robinson, a forensic pathologist with the Stark County Coroner's Office, who conducted

the autopsy of Hailey’s body. Among other things, she noted that Hailey weighed 27.2

pounds, which, according to her medical records, was down from her October 2015 weight

of just under 28.4 pounds. Tr. at 523. According to Dr. Robinson, Hailey was in just the 5th
Stark County, Case No. 2017 CA 00057                                                     10


percentile for weight and body mass index for a child of her age. Tr. at 524. At the time of

Hailey’s death, there were no contents inside the stomach, and a toxicological screen of

her blood and liver did not show the presence of Tylenol or Ibuprofen, in contradiction to

what appellant initially told Det. Mongold. Tr. at 521, 557. There were numerous abrasions

to the girl's face, indicating recent blunt trauma. One of her eyes was swollen, and there

was “evidence that this eye [had] been bruised previously.” Tr. at 526. Dr. Robinson also

noted a tear in the skin behind her one ear, which the presence of a significant amount of

dead skin on that part of the scalp. Hailey's hair was missing from his area, and some of

her other hair easily came out in Dr. Robinson's hands during the autopsy. There was also

some scabbing on her scalp, and skin had been taken off areas of the girl's face. Dr.

Robinson concluded that none of these injuries were caused by a fall, but were instead

the result of blunt trauma. Tr. at 520-533, 548.

       {¶32} Dr. Robinson also noted green discoloration around Hailey's abdomen, and

a collection of fluid on her hip bone. This indicated to Dr. Robinson that something was

“not right” with Hailey's environment or “internal body chemistry” since these are signs

usually seen when a dead body has been decomposing. Tr. at 535. On her body, in

general, there were “multiple medical bruises” and “multiple areas of abraded skin.” Id.

Hailey's torso also had perimortem abrasions, which is indicative that these injuries were

caused while she was dying. There was also an abrasion to the girl's labia. After examining

Hailey’s front side, Dr. Robinson noted bruising all along the girl's back area. Along with

bruising, scabbing, and healing lesions on her buttocks, there were bruises up and down

Hailey’s spine, corresponding with the protrusions of her spine. According to Dr. Robinson,

such injuries are often seen who have been bed-ridden for some time, producing “bed
Stark County, Case No. 2017 CA 00057                                                    11


sores,” which could also have been caused by standing against a wall for a long time. Tr.

At 542. Dr. Robinson also testified that although most children do not lose any teeth until

the age of six, when permanent teeth start coming in, Hailey at age three was already

missing teeth and one front tooth was merely sitting in its socket. Dr. Robinson also noted

bruising and contusions on the girl's legs, which again, were not the results of a fall

according to the doctor, but were instead the result of blunt trauma. Tr. at 534-546.

       {¶33} Dr. Robinson also opined that the foam found around Hailey's mouth at the

time of her demise would indicate a “slower death.” Blood and other bodily fluids were

leaking inside Hailey's body, collecting in her lungs and then being expelled through her

mouth. An examination of Hailey's internal organs showed the presence of “bacterial

overgrowth” in her heart, brain, eyes, and kidneys, related to bacteria in the girl's

bloodstream. These organs also indicated longstanding inflammation. In addition, the

small intestine showed evidence of ongoing bleeding, which results when the body's

clotting agents are consumed in dealing with bleeding and inflammation in other parts of

the body. In addition, the presence of bone marrow emboli in Hailey's lungs indicated the

girl's bones had suffered trauma. Based on the status of her internal organs, Hailey would

have needed hospitalization. Tr. at 546-557.

       {¶34} Dr. Robinson's conclusion was that Hailey's manner of death was a

homicide. As to cause of death, the doctor testified:

              *** My final anatomic diagnosis reads that she sustained inflicted

       trauma of varying ages of her head, face and scalp, of her torso, which is

       your trunk, and the extremities. There was evidence of neglect, both of

       general care and of medical care. There was sequelae of trauma and
Stark County, Case No. 2017 CA 00057                                                      12


       neglect which is things that can happen as a result of the trauma and

       neglect, and everything I talked about, the chronic inflammation and the

       things that I found in the organs are sequelae of that. With the final diagnosis

       coming under the heading of all these things, being the result of combined

       effects of acute and chronic inflicted trauma and neglect. Acute means

       short-term, chronic means long-term. ***.

       Tr. at 558-559.

       {¶35} The State also called Jessica Bender, who lived with appellant during the

pertinent times in this case. She recalled numerous instances of witnessing appellant

hitting and slapping Hailey, hearing “thud” sounds from other rooms, observing the ear

and scalp wound on the girl, and instances of appellant locking Hailey in her room for as

long as a day and a half. Tr. at 388-415. Hailey was “always hungry” and would quickly

drink any beverages Jessica gave her. Tr. at 394. Jessica said she last saw Hailey alive

the night before she died. The next morning, appellant came downstairs about 8:30 AM,

telling her that he had given the girl some Tylenol and that she wanted to go back to bed.

According to Jessica, appellant left the house to get some cigarettes at about 9:00 or 10:00

AM, and after returning, he went upstairs and found her lifeless body at about 11:00 AM.

After screaming out “she won’t wake up,” appellant called 911 and brought Hailey down to

the mattress in the living room. Tr. at 419.

       {¶36} As noted in our recitation of facts, appellant made significant confessions to

Det. Mongold and lesser incriminating statements to some of the responding Canton

officers. Appellant himself further exonerated Jessica from any wrongdoing in his

statements. A defendant’s confession may be construed as direct evidence of his or her
 Stark County, Case No. 2017 CA 00057                                                    13

guilt. See State v. Corson, 4th Dist. Pickaway No. 15CA4, 2015-Ohio-5332, 2015 WL

9305491, ¶ 30, citing State v. Watts, 1st Dist. Hamilton No. C–810091, 1981 WL 10176,

fn. 1.

         {¶37} Appellant’s chief contention for purposes of his sufficiency of the evidence

claim appears to be that DNA evidence was not presented linking him to Hailey’s injuries.

However, upon review of the record, we find sufficient direct and circumstantial evidence

existed for reasonable fact finders to conclude beyond a reasonable doubt that appellant

engaged in child endangering and caused the resulting death of Hailey as charged. We

thus hold said convictions were supported by the sufficiency of the evidence.

                              Manifest Weight of the Evidence

         {¶38} In regard to appellant's manifest weight challenge to his convictions, our

standard of review is stated as follows: “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 (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See

also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting of a

new trial “should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.” Martin at 175, 485 N.E.2d 717.

         {¶39} Appellant's focus is on the credibility of Jessica Bender. He urges that she

made “multiple statements” to law enforcement officials, and notes that she was alone in

the home with the child for a time on the morning of her death and that she was concerned

about maintaining custody of her own children once the investigation began. Appellant
Stark County, Case No. 2017 CA 00057                                                             14


also maintains that his explanation to police that the girl fell down the stairs should have

created reasonable doubt for the jurors. However, bearing in mind the extent and varying

nature of the child’s multiple indicators of abuse, upon review of the record under the

standard of Martin, we find the jury did not clearly lose its way and create a manifest

miscarriage of justice requiring that appellant's convictions be reversed and a new trial

ordered. Appellant's murder and child endangering convictions were not against the

manifest weight of the evidence.

       {¶40} Appellant's Second Assignment of Error is therefore overruled.

                                                III.

       {¶41} In his Third Assignment of Error, appellant argues the trial court erred in

allowing into evidence certain autopsy photographs. We disagree.

       {¶42} Under Evidence Rules 403 and 611(A), the admission of photographs is left

to the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 559

N.E.2d 710. See also State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768. Under

Evidence Rule 403(A), the probative value of the evidence must be weighed against the

danger of unfair prejudice, of confusion of the issues, or of misleading the jury. Evid.R.

611(A) further provides, in relevant part, the trial court “shall exercise reasonable control

over the mode and order of ... presenting evidence so as ... to make the ... presentation

effective for the ascertainment of the truth” and to “avoid needless consumption of time.”

“Although a photograph may be rendered inadmissible by its inflammatory nature, the

mere fact that it is gruesome or horrendous is not sufficient to render it inadmissible if the

trial court, in the exercise of its discretion, feels that it would prove useful to the jury.” State

v. Woodards (1966), 6 Ohio St.2d 14, 25, 215 N.E.2d 568. “The real question is whether
Stark County, Case No. 2017 CA 00057                                                       15


the probative value of such photographs is outweighed by the danger of prejudice to the

defendant.” Woodards at 25, 215 N.E.2d 568.

       {¶43} We note appellant failed to object to the introduction of the autopsy

photographs in question. Error not raised in the trial court must be plain error in order to

reverse. State v. Johnson, 5th Dist. Richland No. 98–CA–42, 1998 WL 818026, citing State

v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804. Notice of plain error is to be taken with

utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice. Id. Plain error does not exist unless but for the error, the outcome

of the trial would clearly have been otherwise. State v. Nicholas (1993), 66 Ohio St.3d 431,

613 N.E.2d 225.

       {¶44} In the case sub judice, the trial court admitted sixteen autopsy photographs,

twelve of which were of the child victim, Hailey. The State in this instance presented the

case that Hailey died as a result of trauma over a three-month period, exacerbated by

appellant’s repeated failure to obtain even basic medical treatment for the child in the midst

of his horrific perpetuation of child abuse. We therefore are unpersuaded upon review that

the trial court committed plain error or abused its discretion in admitting the autopsy

photographs at issue.

       {¶45} Appellant's Third Assignment of Error is overruled.

                                             IV.

       {¶46} In his Fourth Assignment of Error, appellant contends the trial court erred in

admitting certain testimony from Jessica Bender regarding his prior acts of violence toward

Jessica and his anger management issues. We disagree.
Stark County, Case No. 2017 CA 00057                                                        16


       {¶47} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343.

As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. Our

task is to look at the totality of the circumstances in the case sub judice, and determine

whether the trial court acted unreasonably, arbitrarily or unconscionably in allowing or

excluding the disputed evidence. State v. Oman, 5th Dist. Stark No.1999CA00027, 2000

WL 222190. However, we again note that appellant, except concerning a question about

the care of his dog, did not object to the testimony in question. Error not raised in the trial

court must be plain error in order to reverse. State v. Johnson, supra. In State v.

Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 452, the Ohio Supreme Court reiterated

that “* * * the plain error rule is to be applied with utmost caution and invoked only under

exceptional circumstances, in order to prevent a manifest miscarriage of justice.” Id. at

227, 448 N.E.2d 452.

       {¶48} Evid.R. 404(A) provides that evidence of a person's character is not

admissible to prove the person acted in conformity with that character. Evid.R. 404(B) sets

forth an exception to the general rule against admitting evidence of a person's other bad

acts. The Rule states as follows: “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that he acted 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. ***”

       {¶49} “Other acts” evidence is admissible only if there is substantial proof that the

alleged other acts were committed by the defendant and such evidence tends to show one
Stark County, Case No. 2017 CA 00057                                                      17

of the matters enumerated in Evid.R. 404(B). State v. Wagner, 5th Dist. Licking 03 CA 82,

2004–Ohio–3941, ¶ 43, citing State v. Echols (1998), 128 Ohio App.3d 677, 692, 716

N.E.2d 728. However, even if disputed testimony was erroneously admitted at trial, such

evidence may be found merely cumulative and not prejudicial where there is other

evidence establishing a defendant's identity as the perpetrator of abuse. See State v.

Young, 2nd Dist. Montgomery No. 19466, 2003-Ohio-4706, ¶ 46. In this instance, as the

State aptly points out in its response, appellant admitted in his statements to police that

he suffered from anger management issues, that he took out his frustrations on Hailey,

and that he often could not stop himself when he beat her. This constituted independent

evidence upon which the jury could base its determinations.

       {¶50} We therefore hold the trial court's decision allowing the disputed testimony

by Jessica in regard to Evid.R. 404(B) did not constitute plain error or an abuse of

discretion warranting reversal.

       {¶51} Accordingly, appellant's Fourth Assignment of Error is overruled.

                                             V.

       {¶52} In his Fifth Assignment of Error, appellant contends the trial court erred by

not instructing the jury, as he requested, on the lesser offense of involuntary manslaughter.

We disagree.

       {¶53} When reviewing a trial court's jury instructions, the proper standard of

review for an appellate court is whether the trial court's refusal to give a requested jury

instruction constituted an abuse of discretion under the facts and circumstances of the

case. State v. Klusty, 5th Dist. Delaware No. 14 CAA 07 0040, 2015–Ohio–2843, ¶ 25.

Because the failure to properly instruct the jury is not in most instances structural error,
 Stark County, Case No. 2017 CA 00057                                                     18

the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d

705, applies to a failure to properly instruct the jury, for it does not necessarily render a

trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. State

v. Bleigh, 5th Dist. Delaware No. 09–CAA–03–0031, 2010–Ohio–1182, ¶ 119, citing Neder

v. United States (1999), 527 U.S. 1, 119 S.Ct. 1827, 144 L .Ed.2d 35.

       {¶54} Even 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 (1988), 40

Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus.

       {¶55} Appellant herein requested a jury instruction on involuntary manslaughter

under R.C. 2903.04(A), which is causing the death of another “as a proximate result of

committing or attempting to commit a felony.” Appellant urges that it was “possible” for the

jury to have acquitted him of murder and convicted him of involuntary manslaughter.

Appellant’s Brief at 21. However, the Ohio Supreme Court has cautioned: “To require an

instruction to be given to the jury every time ‘some evidence,’ however minute, is

presented going to a lesser included (or inferior-degree) offense would mean that no trial

judge could ever refuse to give an instruction on a lesser included (or inferior-degree)

offense. *** The jury would be unduly confused if it had to consider the option of guilty on

a lesser included (or inferior-degree) offense when it could not reasonably return such a

verdict.” State v. Shane, 63 Ohio St.3d 630, 632-633, 590 N.E.2d 272, 275 (parenthetical

text in original).
Stark County, Case No. 2017 CA 00057                                                    19


       {¶56} In this instance, the only child endangering charges that fit the distressing

facts about Hailey’s treatment by appellant were the two alternative versions charged in

the indictment, both of which were second-degree felonies and the predicate offenses for

murder under R.C. 2903.02(B). The evidence heard by the jury showed that Hailey died a

horrible death as a result of appellant’s repeated beatings and abuse, causing internal

injuries that went untreated. The evidence simply would not support a lesser charge of

child endangering and an acquittal of murder as charged. Upon review of the record, we

are unpersuaded that the trial court's refusal to give an involuntary manslaughter

instruction at the request of defense counsel was unreasonable, arbitrary, or

unconscionable.

       {¶57} Accordingly, appellant's Fifth Assignment of Error is overruled.

                                             VI.

       {¶58} In his Sixth Assignment of Error, appellant contends he was deprived of

constitutional right to the effective assistance of trial counsel. We disagree.

       {¶59} Our standard of review for ineffective assistance claims is set forth in

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

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's assistance

was ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
Stark County, Case No. 2017 CA 00057                                                         20


of the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id. However, trial counsel is entitled to a strong presumption that all

decisions fall within the wide range of reasonable professional assistance. State v. Sallie

(1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme

Court and the Ohio Supreme Court have held that a reviewing court need not determine

whether counsel's performance was deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies. Bradley at 143, 538 N.E.2d 373,

quoting Strickland at 697, 104 S.Ct. 2052.

       {¶60}    In addressing this claim, we also remain mindful that “[a] defendant is

entitled to a fair trial but not a perfect one.” See State v. Bleigh, 5th Dist. Delaware No. 09-

CAA-03-0031, 2010-Ohio-1182, ¶ 133, quoting Bruton v. United States (1968), 391 U.S.

123, 135–136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (internal quotations omitted).

          Claim of Ineffective Assistance re: Lack of Inquiry into Substance Use

       {¶61} Appellant first argues his trial counsel was ineffective in failing to inquire or

present evidence regarding his alleged use of alcohol and/or drugs, which may have

impacted the trial court’s analysis of the voluntariness of his statements to law enforcement

concerning Hailey’s death. However, our review on appeal is limited to those materials in

the record that were before the trial court. See, e.g., State v. DeMastry, 155 Ohio App.3d

110, 119-120, 799 N.E.2d 229, 2003-Ohio-5588, citing State v. Ishmail (1978), 54 Ohio

St.2d 402, 377 N.E.2d 500. In this instance, we find appellant's argument relies on

information dehors the record, and invites unwarranted speculation on our part in the
Stark County, Case No. 2017 CA 00057                                                      21

present direct appeal. See, e.g., State v. Fornshell, 5th Dist. Fairfield No. 10 CA 48, 2011-

Ohio-3560, ¶ 18.

       Claim of Ineffective Assistance re: Failure to Object to Victim Photographs

       {¶62} Appellant next challenges his trial counsel's decision not to attempt to block

autopsy photographs of the victim (see Assignment of Error III, supra). However, in light

of our previous analysis and determinations, even if defense counsel had objected, we are

unpersuaded that the danger of undue prejudice caused by admission of the photographs

would have substantially outweighed their probative value.

    Claim of Ineffective Assistance re: Failure to Challenge Prior “Bad Acts” Evidence

       {¶63} Appellant lastly challenges his trial counsel's failure to challenge, via a

motion in limine and/or objecting during trial, evidence regarding appellant’s prior failure

to take his mental health medications, his lack of proper care of his dog, and his past

abusive treatment his girlfriend, Jessica Bender.

       {¶64} Evid.R. 404(B) states as follows: “Evidence 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. * * *.”

       {¶65} We first note it is well-established that “[c]ompetent counsel may reasonably

hesitate to object [to errors] in the jury's presence because objections may be considered

bothersome by the jury and may tend to interrupt the flow of a trial.” State v. Rogers, 9th

Dist. Summit No. 19176, 1999 WL 239100, citing State v. Campbell (1994), 69 Ohio St.3d

38, 53, 630 N.E.2d 339 (internal quotations omitted).
Stark County, Case No. 2017 CA 00057                                                       22


       {¶66} Upon review, given the extensive evidence of the injuries to the victim and

the abuse and neglect she suffered, assuming trial counsel's decision not to object in this

regard fell below an objective standard of reasonable representation, we are unpersuaded

that appellant was prejudiced thereby.

                                         Conclusion

       {¶67} Having considered the foregoing claims, we hold appellant was not deprived

of the effective assistance of trial counsel in violation of his rights under the Sixth and

Fourteenth Amendments to the United States Constitution and Article I, §10 and §16 of

the Ohio Constitution.

       {¶68} Appellant’s Sixth Assignment of Error is overruled.

                                             VII.

       {¶69} In his Seventh Assignment of Error, appellant argues, based on a theory of

allied offenses of similar import, that the trial court erred in not merging his sentences for

murder and child endangering. We disagree.

       {¶70} R.C. 2941.25 protects a criminal defendant's rights under the Double

Jeopardy Clauses of the United States and Ohio Constitutions. See State v. Jackson, 2nd

Dist. Montgomery No. 24430, 2012-Ohio-2335, 2012 WL 1900373, ¶ 133, citing State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 45. Appellate review

of an allied offense question is de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-

5699, 983 N.E.2d 1245, ¶ 12.

       {¶71} R.C. 2941.25 states as follows:

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

       constitute two or more allied offenses of similar import, the indictment or
Stark County, Case No. 2017 CA 00057                                                      23


       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 as

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

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

       {¶72} Under the Ohio Supreme Court’s decision in State v. Earley, 145 Ohio St.3d

281, 285, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11, we now apply a three-part test under

R.C. 2941.25 to determine whether a defendant can be convicted of 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 considered.” Id. at ¶ 12, citing State v. Ruff, 143 Ohio

St.3d 114, 143 N.E.3d 114, 2015-Ohio-995, ¶ 31. We also note in Ruff, the Court had

further developed the analytical framework for courts to apply regarding the concept of

“import,” holding in part as follows: “Two or more offenses of dissimilar import exist within

the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

involving separate victims or if the harm that results from each offense is separate and

identifiable.” Ruff, at paragraph two of the syllabus.

       {¶73} Appellant herein was convicted of murder under R.C. 2903.02(B), which

states: “No person shall cause the death of another as a proximate result of the offender's

committing or attempting to commit an offense of violence that is a felony of the first or
Stark County, Case No. 2017 CA 00057                                                     24


second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised

Code.”

       {¶74} Appellant      was    also convicted     of    child endangering under R.C.

2919.22(B)(1) and/or (B)(2), which read in toto as follows:

                (B) No person shall do any of the following to a child under eighteen

       years of age or a mentally or physically handicapped child under twenty-one

       years of age:

                (1) Abuse the child;

                (2) Torture or cruelly abuse the child[.]

       {¶75} Appellant directs us to State v. Henderson, 6th Dist. Wood No. WD-16-012,

2017-Ohio-2900, which is essentially on point with the issue before us, although it appears

to involve a much shorter timeframe of child abuse. The Sixth District Court of Appeals

therein held:

                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 [the child victim]

         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.

       {¶76} Id. at ¶ 36.
Stark County, Case No. 2017 CA 00057                                                        25

       {¶77} However, our reading of the Ohio Supreme Court’s rationale in Earley,

supra, leads us to a different conclusion than that of Henderson.

       {¶78} In Earley, the Court considered whether a trial court could impose

cumulative sentences for both aggravated vehicular assault (R.C. 2903.08(A)(1)(a)) and

operating a motor vehicle while under the influence of alcohol or drugs (“OVI”) (R.C.

4511.19(A)(1)(a)) when the OVI was the predicate conduct for the aggravated vehicular

assault. In determining the offenses were not required to merge, the Court first noted that

by criminalizing aggravated vehicular assault, the General Assembly had “emphasized the

necessity of a strong punishment for and deterrent against individuals causing serious

physical harm while driving under the influence.” Id. at ¶ 15. In lieu of focusing on a

“separate animus” analysis, the Court emphasized that aggravated vehicular assault “has

a different import and significance” than the offense of driving under the influence, because

“aggravated vehicular assault necessarily involves causing serious physical harm to

another person.” Id. On the other hand, a misdemeanor OVI offender commits his or her

offense “regardless of any subsequent consequences that occur due to the impaired

driver's actions.” Id. The Court thus concluded: “There is a legitimate justification for

criminalizing each of these offenses separately, and R.C. 2941.25 permits separate

convictions for both ***.” Id.

       {¶79} In that light, we find that the murder statute at issue in this matter is intended

to punish the taking of a human life while engaging in violence against another, while the

proscription against child endangering, in principle, is for the separate overall purpose of

protecting children against any type of abuse or torture, which, in this instance, resulted in

serious physical harm and eventual death. Therefore, even though the two offenses were
Stark County, Case No. 2017 CA 00057                                                       26


based on the same course of conduct timeframe (November 26, 2015 through March 4,

2016), we hold the trial court in the case sub judice did not err in refusing to merge the two

offenses for sentencing.

       {¶80} Appellant’s Seventh Assignment of Error is overruled.

       {¶81} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is hereby affirmed.


By: Wise, John, P. J.

Baldwin, J., and

Wise, Earle, J., concur.



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