[Cite as State v. Vaughan, 2017-Ohio-583.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 16 CAA 0026
ROBERT VAUGHAN                                :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Delaware County
                                                  Court of Common Pleas, Case No.
                                                  15CRI090419



JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           February 13, 2017




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

CAROL OB'BRIEN                                    JEFFREY UHRICH
Delaware County Prosecutor                        P.O. Box 1977
140 N. Sandusky Street                            Westerville, OH 43086
Delaware, OH 43015
[Cite as State v. Vaughan, 2017-Ohio-583.]


Gwin, P.J.

        {¶1}    Appellant Robert Vaughan [“Vaughan”] appeals his convictions and

sentence after a jury trial in the Delaware County Court of Common Pleas on one count

of Endangering Children in violation of R.C. 2919.22(B)(1), a felony of the second degree;

and one count of Endangering Children in violation of R.C. 2919.22(A), a felony of the

third degree.

                                        Facts and Procedural History

        {¶2}    On September 18, 2015, the Delaware County Grand Jury returned an

indictment against Vaughan charging him with two counts of endangering children. Count

One charged Vaughan with recklessly abusing his infant child. Count Two charged

Vaughan with creating a substantial risk to the health or safety of the infant by violating a

duty of care. Both charges had an additional finding that the infant suffered serious

physical harm.

        {¶3}    On July 17, 2015, Michelle Leighty, an intake investigator with the Delaware

County Department of Job and Family Services [“DCJFS”] received a referral regarding

an infant located at the residence of Vaughan and I.B. Specifically, there were allegations

that an infant “Jane Doe” daughter of Vaughan, had sustained bruising to the face, and a

laceration above her eyebrow, causing concern for her well-being. Leighty went to the

residence accompanied by a Delaware City police officer. When they arrived the infant’s

mother, I.B. and the infant were present. Leighty testified that she observed that the infant

had a laceration above her left eyebrow, circular bruising on her face, and a laceration

under her nostril.
Delaware County, Case No. 16 CAA 0026                                                      3


       {¶4}   Leighty testified that the infant’s mother reported that the infant had been

sitting upright on a couch and had fallen onto a baby wipe lid, causing the laceration on

the infant's forehead. Ms. Leighty stated that she did not observe any blood on the lid or

on the cushion where the child had fallen.

       {¶5}   As a result of her findings, Leighty asked that the infant be seen and

evaluated at Grady Memorial Hospital in Delaware, Ohio. After the evaluation at Grady

Memorial Hospital, DCJFS filed for emergency custody of the infant and transported the

infant to Nationwide Children's Hospital for further evaluation.

       {¶6}   X-rays were ordered due to concerns of non-accidental injury. The x-rays

revealed that the infant had three broken ribs. Later testing revealed that the infant did

not have brittle bone syndrome. Dr. Jennifer Mitzman testified that broken ribs cause

significant pain. The doctor further testified that broken ribs are most commonly seen

due to some kind of squeezing mechanism. The doctor explained that breaking ribs

requires a lot of force, so much so that there are not always broken ribs even when

someone has put a lot of pressure on someone's ribs while performing CPR.

       {¶7}   Officer Greg Bates of the City of Delaware Police Department was the

officer that accompanied Ms. Leighty to the residence. Officer Bates testified that he

observed a cut above the infant’s left eye, bruising on the right cheek, another small cut

or scab in the middle of the infant’s forehead, and bruising on the infant’s left leg.

       {¶8}   I.B. the infant's mother testified on behalf of the State of Ohio.         I.B.

admitted that she had been convicted of violating a duty of care by failing to obtain

medical treatment for the infant’s out of these incidents.
Delaware County, Case No. 16 CAA 0026                                                     4


       {¶9}   I.B. testified that after the infant was born, Vaughan would watch the baby

while I.B. was at work, and that she would watch the baby while Vaughan was at work.

At the time, Vaughan was working 12-hour shifts most days. However, I.B. admitted

that she did not start working and was home to take care of the infant for approximately

eight weeks after the baby was born.

       {¶10} I.B. testified that the infant sustained an injury when she was about five

weeks old. Specifically, the infant sustained a broken leg injury. I.B. stated that she was

not present when the injury occurred and that it happened while the baby was under the

care of Vaughan. I.B. testified that Mr. Vaughan told her that the infant twisted away from

him while he was trying to clean up a scratch the baby had sustained on her face. As a

result of the injury, the baby was taken to Grady Memorial Hospital where she was placed

in a full body brace and sent home to heal.

       {¶11} Regarding the injuries discovered by Ms. Leighty and Officer Bates in July

2015, I.B. testified that I.B., Vaughan and the infant had fallen asleep on the couch. I.B.

testified that the infant started crying, awaking I.B. I.B. testified that Vaughan then told

her to go to bed and that he would take care of the child. Not long after I.B. went upstairs

to go to bed, Vaughan came upstairs to get her because the infant had a cut. I.B. came

downstairs. I.B. testified that the infant had a large gash above the infant’s left eyebrow.

I.B. further testified Mr. Vaughan told her he stepped away from the infant while changing

the infant’s diaper, and that he did not see what happened. However, he assumed that

she had cut her head on the lid to the diaper wipes container. The couple argued about

whether to take the infant to the hospital and a decision was made not to take her.
Delaware County, Case No. 16 CAA 0026                                                        5


          {¶12} Regarding the bruises to the infant’s face, I.B. testified sometime in July

2015 that she came home from work and Vaughan told her he was carrying the infant

upstairs while also carrying several other items, including a bottle. He dropped the bottle

and tried to pick it up. When he leaned down, the infant’s head hit on the stairs. Neither

I.B. nor Vaughan sought medical attention for the infant at that time.

          {¶13} I.B. testified that she took the infant to Grady Memorial Hospital on July 17,

2015 at the request of Ms. Leighty. I.B. did not go to Children's Hospital when the infant

was transported to that facility. While at Children's Hospital, I.B. testified that she learned

that the infant had also sustained three or four broken ribs. I.B. testified that she believed

Vaughan caused the broken ribs. I.B. testified there were times Vaughn would take the

infant and bounce her. I.B. testified that sometimes the infant would not stop crying.

Vaughan would get frustrated and put his thumbs under the infant’s ribs and squeeze,

causing the infant to scream. I.B. testified that she did not seek treatment for the infant

on these occasions.

          {¶14} I.B. testified that she had a conversation with Vaughan regarding an

intentional striking of the infant. I.B. testified Vaughan had told her that he smacked the

child on one occasion because "she wasn't focused.” I.B. testified that she did not notice

any sign of injury to the infant at the time she alleged Vaughan made these statements

to her.

          {¶15} Detective Tom Donoghue of the Delaware Police Department interviewed

Vaughan during this investigation. Vaughan told the detective that the cut over the infant’s

eyebrow was caused by the diaper wipes lid. Vaughan told the detective that the bruises

on the infant’s face occurred when he accidentally bumped the infant’s head on the stairs.
Delaware County, Case No. 16 CAA 0026                                                     6


Vaughan told the detective that he might have injured the infant’s ribs by tossing her up

in the air and missing her and by squeezing too hard.

       {¶16} Vaughan testified on his own behalf during the trial. Vaughan testified that

he had lied to the police. Vaughan testified that he was not been present when the infant

sustained the cut over her eye. Vaughan testified he made up the story about the baby

wipes lid. Vaughan testified that when he said that the infant’s injuries had occurred while

in his care that he had simply been lying to try to protect his family.

       {¶17} With respect to the broken leg sustained by the infant in April 2015,

Vaughan testified that he was not at home when it happened. Vaughan testified that

when he returned home from work, I.B. told him that he needed to look at the infant’s leg.

When he looked, it was red and swelling. The couple then took the infant to Grady

Memorial Hospital. Vaughan testified that he did ask I.B. what happened to the leg, and

that I.B. told him that she did not know.

       {¶18} Regarding the injury to the infant’s forehead in July 2015, Vaughan testified

that he first became aware of the injury when he came home from work and saw that there

was a gauze wrap on the infant’s forehead. Vaughan testified he called his sister who had

a medical background to discuss the cut, sent her pictures of the injury, and based on her

suggestions decided not to seek medical treatment for the infant.

       {¶19} Regarding the bruises to the infant’s face, Vaughan testified that he did not

know how all the bruises occurred. He stated, "I'm sure some of them did come from

me ‘cause … I would hold her up and I did, I dropped her a couple of times.” 2T. at 251.

Vaughan further testified, "[a]nd there's a couple of times where she falls right onto my
Delaware County, Case No. 16 CAA 0026                                                      7


breastplate" and that "I probably caused bruising on her forehead and her cheeks.” 2T.

at 252.

       {¶20} Mr. Vaughan testified that he was not made aware that Charlotte's ribs had

been broken until August or September of 2015. 2T. at 258. When asked about how the

ribs may have been broken, Mr. Vaughan denied ever holding Charlotte tight enough to

hurt her. 2T. at 259. Vaughan testified that his strong grip on the infant could have

caused the injuries to her ribs. 2T. at 282. Vaughan testified that it was possible that his

thumbs could have gone into the infant’s rib cage. Id.

       {¶21} After deliberating, the jury returned unanimous verdicts of guilty on both

counts with the additional findings that the infant suffered serious physical harm. The trial

court merged the jury’s guilty finding on the R.C. 2912.22(A) charge [violation of duty of

care, protection or support] with the jury’s guilty finding on the R.C. 2919.22(B)(1) charge

[abuse]. Vaughan was sentenced on the R.C. 2919.22(B)(1) [abuse causing serious

physical harm] charge, a felony of the second degree. R.C. 2919.22(E)(2)(d).

       {¶22} On May 16, 2016, the trial court sentenced Vaughan to three years in

prison.

                                       Assignment of Error

       {¶23} Vaughan raises one assignment of error,

       {¶24} “I.   THE    CONVICTIONS         OF    CHILD     ENDANGERING         AGAINST

DEFENDANT ARE NOT SUSTAINED BY THE EVIDENCE AND ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”
Delaware County, Case No. 16 CAA 0026                                                         8

                                          Law and Analysis

       {¶25} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,

¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.

       {¶26} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of

the greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue, which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed. 1990)

at 1594.

       {¶27} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
Delaware County, Case No. 16 CAA 0026                                                         9

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982).          However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,

reversal on manifest weight grounds is reserved for “‘the exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                             ***

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with

       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶28} Vaughan argues the state failed to provide evidence that the various injuries

sustained by the infant were caused by his actions. Further, Vaughan contends the

medical testimony presented by the state did not establish the time or dates when the
Delaware County, Case No. 16 CAA 0026                                                      10


infant’s injuries would have been sustained, or that any acts of Vaughan caused any of

the specific injuries. [Appellant’s Brief at 8-9].

       {¶29} R.C. 2919.22 Endangering Children provides, in relevant part,

              (A) No person, who is the parent, guardian, custodian, person having

       custody or control, or person in loco parentis of a child under eighteen years

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

       of age, shall create a substantial risk to the health or safety of the child, by

       violating a duty of care, protection, or support. It is not a violation of a duty

       of care, protection, or support under this division when the parent, guardian,

       custodian, or person having custody or control of a child treats the physical

       or mental illness or defect of the child by spiritual means through prayer

       alone, in accordance with the tenets of a recognized religious body.

              (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

                                              ***

              (E)(1) Whoever violates this section is guilty of endangering children.

              (2) If the offender violates division (A) or (B)(1) of this section,

       endangering children is one of the following, and, in the circumstances

       described in division (E)(2)(e) of this section, that division applies:

                                              ***
Delaware County, Case No. 16 CAA 0026                                                      11


              (c) If the violation is a violation of division (A) of this section and

       results in serious physical harm to the child involved, a felony of the third

       degree;

              (d) If the violation is a violation of division (B)(1) of this section and

       results in serious physical harm to the child involved, a felony of the second

       degree.

       {¶30} In the case at bar, the trial court merged the jury’s guilty finding on the R.C.

2912.22(A) charge [violation of duty of care, protection or support] with the jury’s guilty

finding on the R.C. 2919.22(B)(1) charge [abuse]. The jury further returned a separate

finding that the infant suffered serious physical harm. Vaughan was sentenced on the

R.C. 2919.22(B)(1) [abuse causing serious physical harm] charge, a felony of the second

degree. R.C. 2919.22(E)(2)(d).

       {¶31} The trial court instructed the jury “[a]buse means any act which causes

physical or mental injury that harms or threatens to harm the child's health or welfare.”

3T. at 357; R.C. 2151.031(D). The trial court went on to instruct the jury that if the jury

found Vaughn guilty of child endangering they must then decide whether the infant

suffered “serious physical harm as a result of the abuse.” 3T. at 358.

       {¶32} “Serious physical harm to persons” as defined in R.C. 2901.01(A)(5) means

any of the following,

              (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;
Delaware County, Case No. 16 CAA 0026                                                    12


              (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.

       {¶33} There is no dispute and the evidence proves beyond a reasonable doubt

that the infant suffered a broken leg, broken ribs, and numerous cuts and bruises.

Vaughan testified that only he and I.B. cared for the infant; the couple did not have day

care, babysitters or anyone else caring for the infant during the time the child received

each of the injuries.

       {¶34} For the most part, Vaughan blamed I.B. for the infant’s injuries. 2T. at 244;

248; 263. However, Vaughan testified that he dropped the infant “a couple of times.” 2T.

at 251. Vaughan further testified that I.B. told him on more than one occasion that “he

held her too tightly…and said you’re hurting her….” 2T. at 259. Vaughan admitted that

the story about the infant being injured as a result of a fall onto the lid of a baby wipe

container was a lie. 2T. at 245-247; 261).

       {¶35} Dr. Mitzman testified that the infant suffered three broken ribs. 1T. at 211-

212. She further testified that such an injury would require “a significant amount of force,

in a specific point.” 1T. at 216-217. Dr. Mitzman testified that rib fractures take “a long

time to heal and they are painful.” 1T. at 213. In some cases, residual pain can be
Delaware County, Case No. 16 CAA 0026                                                   13


experienced for years after the broken ribs have healed. 1T. at 215. Dr. Mitzman opined

that the injury to the infant’s leg was caused by a “twisting and pulling mechanism….” 1T.

at 202. The infant would need to be placed in a harness around the waist and down the

leg to permit the bones to grow back together. 1T. at 202.

      {¶36} I.B. the infant’s mother testified that Vaughan was with the infant when her

leg was broken. 1T. at 131. Vaughn was also with the infant in June / July 2015, when

the infant suffered cuts and bruises. 1T. at 135. Vaughan refused to take the infant to

the hospital. I.B. became suspicious of Vaughan and began to take pictures of the infant’s

injuries. 1T. at 137. I.B. testified that she believed Vaughan caused the broken ribs. I.B.

testified there were times Vaughan would take the infant and bounce her. I.B. testified

that sometimes the infant would not stop crying. Vaughan would get frustrated and put

his thumbs under the infant’s ribs and squeeze, causing the infant to scream. 1T. at 140.

      {¶37} Although not stated in R.C. 2919.22, recklessness is the culpable mental

state for the crime of child endangering. State v. O'Brien, 30 Ohio St.3d 122, 508 N.E.2d

144(1987).

      {¶38} The Ohio Supreme Court has defined reckless conduct as,

             Reckless conduct is characterized by the conscious disregard of or

      indifference to a known or obvious risk of harm to another that is

      unreasonable under the circumstances and is substantially greater than

      negligent conduct. Thompson, 53 Ohio St.3d at 104–105, 559 N.E.2d 705,

      adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965);

      see also Black’s Law Dictionary 1298–1299 (8th Ed.2004) (explaining that

      reckless conduct is characterized by a substantial and unjustifiable risk of
Delaware County, Case No. 16 CAA 0026                                                         14


       harm to others and a conscious disregard of or indifference to the risk, but

       the actor does not desire harm).

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶34.

       {¶39} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “‘such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.’” State v. Jenks, 61 Ohio

St.3d 259, 272, 574 N.E.2d 492(1991) at paragraph one of the syllabus. “‘Circumstantial

evidence and direct evidence inherently possess the same probative value [.]’” Jenks, 61

Ohio St.3d at paragraph one of the syllabus.            Furthermore, “‘[s]ince circumstantial

evidence and direct evidence are indistinguishable so far as the jury's fact-finding function

is concerned, all that is required of the jury is that i[t] weigh all of the evidence, direct and

circumstantial, against the standard of proof beyond a reasonable doubt.’” Jenks, 61

Ohio St.3d at 272, 574 N.E.2d 492. While inferences cannot be based on inferences, a

number of conclusions can result from the same set of facts. State v. Lott, 51 Ohio St.3d

160, 168, 555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co. , 164 Ohio

St. 329, 331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can

be employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio

St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

       {¶40} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Vaughan recklessly abused the infant causing serious physical

harm to the infant.
Delaware County, Case No. 16 CAA 0026                                                     15


       {¶41} We hold, therefore, that the state met its burden of production regarding

child endangering by abuse causing serious physical harm to the infant, and, accordingly,

there was sufficient evidence to support Vaughan’s convictions.

       {¶42} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.

2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212(1967).

       {¶43} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
Delaware County, Case No. 16 CAA 0026                                                   16

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125(7th Dist. 1999).

       {¶44} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

      {¶45} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996

WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,

but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-

604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State
Delaware County, Case No. 16 CAA 0026                                                   17

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).           Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

      {¶46} In the case at bar, the jury heard the witnesses, viewed the evidence and

heard Vaughan’s testimony and explanations of the infant’s injuries.

      {¶47} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Vaughan of the

charges.

      {¶48} Based upon the foregoing and the entire record in this matter, we find

Vaughan’s convictions are not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions concerning

the credibility of the testimony of the state’s witnesses and Vaughan and his arguments.

This court will not disturb the jury's finding so long as competent evidence was present to

support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard

the witnesses, evaluated the evidence, and was convinced of Vaughan’s guilt.
Delaware County, Case No. 16 CAA 0026                                                   18


      {¶49} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Vaughan was convicted.

      {¶50} Vaughan’s sole assignment of error is overruled.

      {¶51} The judgment of the Delaware County Court of Common Pleas, Delaware

County, Ohio is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur
