[Cite as State v. Meyerson, 2017-Ohio-8726.]


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

STATE OF OHIO                                       C.A. No.      28549

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ZACHARY MEYERSON                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR-2015-05-1643

                                 DECISION AND JOURNAL ENTRY

Dated: November 29, 2017



        CALLAHAN, Judge.

        {¶1}    Defendant-Appellant, Zachary Meyerson, appeals from his convictions in the

Summit County Court of Common Pleas. This Court affirms in part and vacates in part.

                                               I.

        {¶2}    On the evening of May 20, 2015, K.M.’s mother left him in the care of Mr.

Meyerson, her former fiancé. K.M. was three years old at the time and his mother and Mr.

Meyerson had been dating for about six months. When K.M.’s mother returned home from

work, she found K.M. largely unresponsive. Mr. Meyerson claimed that K.M. had been fine all

evening, but that he found him in an unresponsive state while trying to rouse him from sleep.

K.M.’s mother then called for an ambulance, and K.M. was transported to Akron Children’s

Hospital. At the hospital, K.M. was diagnosed with a subdural hematoma and underwent

emergency neurosurgery to relieve the pressure in his brain. The physicians who examined him

also uncovered multiple burns on his body and extensive bruising to his anal cavity. Because all
                                                 2


of K.M.’s injuries were acute and indicative of abuse, the police questioned Mr. Meyerson.

Following his interview, Mr. Meyerson was arrested in connection with the injuries that K.M.

sustained.

       {¶3}    A grand jury indicted Mr. Meyerson on one count of rape, one count of felonious

assault, and two counts of child endangering. Before trial, he filed a motion in limine, seeking to

exclude certain statements K.M. made in the presence of his therapist, and later, his

grandmother. The State responded in opposition to the motion, and the trial court held a hearing.

K.M.’s therapist was not available to testify at the hearing because she unexpectedly passed

away. Nevertheless, the court found that the statements K.M. made to her were admissible, so it

allowed the State to present her therapy notes at trial through another witness. The court also

found that the statements K.M. made in the presence of his grandmother were admissible, so it

allowed his grandmother to testify as to those statements.         The jury ultimately found Mr.

Meyerson guilty on all counts, and the court sentenced him to a total of 25 years to life in prison.

       {¶4}    Mr. Meyerson now appeals from his convictions and raises two assignments of

error for this Court’s review. For ease of analysis, this Court reorders the assignments of error.

                                                 II.

       {¶5}    Before turning to the merits of Mr. Meyerson’s assignments of error, this Court

pauses to address a matter that the State has brought to this Court’s attention. With the exception

of certain, designated felonies, third-degree felonies are punishable by up to three years in

prison. R.C. 2929.14(A)(3)(a), (b). The trial court here, however, sentenced Mr. Meyerson to

five years in prison on one of his third-degree felony child endangering counts. Because child

endangering is not one of the third-degree felonies for which a court may impose a sentence in

excess of three years, see R.C. 2929.14(A)(3)(a), his sentence on that count is contrary to law.
                                                  3


See State v. McMullen, 9th Dist. Summit No. 26850, 2015-Ohio-1631, ¶ 6 (sentence not

authorized by statute is contrary to law).

       {¶6}    Though Mr. Meyerson has not challenged his sentence on appeal, “‘R.C.

2953.08(G)(2) permits an appellate court to * * * ‘vacate [a] sentence and remand [a] matter to

the sentencing court for resentencing’ if [a] sentence is contrary to law.’” State v. Vitt, 9th Dist.

Medina No. 11CA0071-M, 2012-Ohio-4438, ¶ 22, quoting State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, ¶ 4, quoting R.C. 2953.08(G)(2). See also State v. Johnson, 9th Dist. Summit

No. 26788, 2013-Ohio-4680, ¶ 8. Moreover, this Court “can remand one offense[] of a multiple-

offense sentence[] for resentencing without vacating the entire sentence.” Vitt at ¶ 22, citing

Saxon at paragraphs one, two, and three of the syllabus. This Court, therefore, vacates Mr.

Meyerson’s five-year prison sentence on his child endangering count and remands this matter to

the trial court for it to resentence him on that count. See Vitt at ¶ 22-23; Johnson at ¶ 8, 14.

Because this Court’s remand does not affect the arguments that Mr. Meyerson has raised on

appeal, this Court still addresses the merits of his assignments of error.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       PERMITTED THE STATE OF OHIO TO ELICIT HEARSAY TESTIMONY
       ON DIRECT EXAMINATION FROM A DECEASED WITNESS, AND
       PERMITTED TESTIMONY THAT DID NOT FIT AN EXCEPTION TO THE
       HEARSAY RULES.

       {¶7}    In his second assignment of error, Mr. Meyerson argues that the trial court erred

when it admitted certain statements that K.M. made in the presence of his therapist, and later, his

grandmother.    Specifically, he argues that the statements were hearsay and not subject to

admission under either Evid.R. 803(4) or Evid.R. 807. For the reasons that follow, this Court

rejects his argument.
                                                 4


        {¶8}   The decision to admit or exclude evidence lies in the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). Accord State v. Just, 9th Dist. Wayne No.

12CA0002, 2012-Ohio-4094, ¶ 17 (abuse of discretion standard applied to court’s admission of

child victim’s statements under Evid.R. 803(4)). “Absent an issue of law, this Court, therefore,

reviews the trial court’s decision regarding evidentiary matters under an abuse of discretion

standard of review.” State v. Aguirre, 9th Dist. Lorain No. 13CA010418, 2015-Ohio-922, ¶ 6.

An abuse of discretion indicates that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the

abuse of discretion standard, this Court may not substitute its judgment for that of the trial court.

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

        K.M.’s Statements to His Therapist

        {¶9}   “Regardless of whether a child less than ten years old has been determined to be

competent to testify * * *, the child’s statements may be admitted at trial as an exception to the

hearsay rule pursuant to Evid.R. 803(4) * * *.” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-

5267, syllabus. That rule pertains to statements “made for purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms, pain, or sensations, or the

inception or general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.” Evid.R. 803(4). “To determine whether statements are

admissible under [Evid.R. 803(4)], a court must look to the primary purpose of the statements.”

Just at ¶ 19. Statements made for the primary purpose of medical diagnosis or treatment are

nontestimonial and, therefore, admissible. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742,

¶ 28.   Conversely, statements made for the primary purpose of forensic investigation are

testimonial, id., and admissible only if “the declarant is unavailable and the accused has had a
                                               5


prior opportunity to cross-examine him [or her].”      State v. McNair, 9th Dist. Lorain No.

13CA010485, 2015-Ohio-2980, ¶ 37, citing Crawford v. Washington, 541 U.S. 36, 68-69 (2004).

In analyzing the primary purpose of a statement offered pursuant to Evid.R. 803(4), courts must

consider the circumstances surrounding the statement. Muttart at ¶ 48.

       “[A] nonexhaustive list of considerations includes (1) whether the child was
       questioned in a leading or suggestive manner; (2) whether there is a motive to
       fabricate, such as a pending legal proceeding * * *[;] and (3) whether the child
       understood the need to tell the physician the truth. In addition, the court may be
       guided by the age of the child making the statements, which might suggest the
       absence or presence of an ability to fabricate, and the consistency of [his]
       declarations. In addition, the court should be aware of the manner in which a * *
       * medical provider elicited or pursued a disclosure of abuse by a child victim, as
       shown by evidence of the proper protocol for interviewing children alleging
       sexual abuse.”

In re I.W., 9th Dist. Wayne Nos. 07CA0056 & 07CA0057, 2008-Ohio-2492, ¶ 15, quoting

Muttart at ¶ 49.

       {¶10} After his release from the hospital, K.M. began seeing Dr. Cynthia Keck-

McNulty, a trauma therapist at Akron Children’s Hospital. It is undisputed that he saw her

multiple times from June 2015 until late October 2015.         It is also undisputed that she

unexpectedly passed away in early November 2015. At issue are certain statements that K.M.

made to Dr. Keck-McNulty during a session that occurred in late August 2015. The State sought

to admit the statements pursuant to Evid.R. 803(4). Because Dr. Keck-McNulty could not testify

about K.M.’s statements or her sessions with him, the State relied upon her counseling session

notes. It further relied upon (1) a transcript of her testimony in a different case in which she

discussed her background and therapeutic practices; and (2) the testimony of Dr. Richard Daryl

Steiner, the former Medical Director of the Children At Risk Evaluation (“CARE”) Center at

Akron Children’s Hospital.
                                                6


       {¶11} When testifying in a different case, Dr. Keck-McNulty stated that she had

practiced trauma therapy for almost twenty years and counseled children who had suffered

physical or sexual abuse. She testified that she did not conduct forensic interviews, but took

referrals from the CARE Center or Children Services for children who were in need of ongoing

trauma therapy. She explained how, over the course of time, she would establish a therapeutic

relationship with her patients that would allow them to feel comfortable enough to disclose any

abuse that may have occurred. She testified that, as a therapist, she maintained an objective role

and did not act as an investigator.

       {¶12} Dr. Keck-McNulty’s notes from her therapeutic sessions with K.M. reflect that,

before she began counseling him, she met with his grandmother and mother for an initial

diagnostic assessment. She then spent a full counseling session with K.M. simply playing,

explaining the rules of therapy, and developing a relationship. Her notes reflect that she met

with K.M. multiple times over the course of several months and generally discussed with his

mother his progress and ongoing behavioral issues. The notes reflect that she spent significant

time working with K.M. on his emotional responses and his feelings, noting his moods and

various behaviors during each session. They also reflect that she frequently documented his

statements or verbal outbursts and her responses thereto.

       {¶13} Dr. Keck-McNulty’s notes reflect that, on August 28, 2015, she had K.M. take

part in an activity wherein he looked at a drawing of a child’s body and she asked him to identify

the private areas. After he did so, Dr. Keck-McNulty asked whether anyone had ever touched

one of his private parts in a way that made him “feel mad, scared or confused.” K.M. then

responded “Mean Zack.” Though it is not clear from a review of Dr. Keck-McNulty’s notes

whether the following statements occurred that same day or during a session that occurred a few
                                               7


days later, her notes reflect that K.M. also said Mr. Meyerson: (1) “hit my head after he bent

me”; (2) “hit me with a frickin’ bat”; (3) “bent my legs over my head”; (4) “bit” his cheek and

butt; (5) “put a freaking toy in my butt!!”; and (6) put the toy “all the way up my butt and made

me poop [] poopy toys out my butt * * *.”

       {¶14} Dr. Steiner testified that he was asked to consult on K.M.’s case after his

admission to Akron Children’s Hospital. He explained that K.M. had to undergo neurosurgery

for a traumatic brain injury caused by a combination of blunt force trauma and shaking. He

stated that K.M. also presented with several burns to his cheek, arm, and buttocks that were

characteristic of contact burns from a cigarette lighter.    Additionally, K.M. had sustained

extensive bruising to the area around his anus and his anal sphincter. Dr. Steiner testified that

the bruising was consistent with an object having been forcefully inserted into the anal opening.

After reviewing K.M.’s statements, Dr. Steiner described them as being “very consistent” with

the injuries that K.M. had sustained.

       {¶15} The trial court determined that K.M.’s statements to Dr. Keck-McNulty were

made for the primary purpose of medical diagnosis and treatment and, therefore, were

nontestimonial. The court noted that the statements were made during ongoing, one-on-one

trauma therapy rather than a forensic interview. Further, the court found that there was no

evidence Dr. Keck-McNulty had led K.M. to make the statements or that he had possessed an

ulterior motive when he made them, particularly given his young age. Because the evidence

showed that K.M. had a positive relationship with Dr. Keck-McNulty and made the statements in

the context of one of their ongoing, therapeutic sessions, the court found the statements

admissible.
                                                8


       {¶16} Mr. Meyerson argues that the court abused its discretion by admitting K.M.’s

statements because “there [were] many questions and concerns regarding [their] reliability and

veracity * * *.” He notes that the statements came more than three months after the alleged

incident and there was no indication that K.M. repeated them at multiple counseling sessions.

He also notes that the social worker who initially interviewed K.M. at the hospital conceded that

he had some difficulty following the rules about truth telling. Given the foregoing issues and the

fact that there was no opportunity to cross-examine Dr. Keck-McNulty, Mr. Meyerson argues

that the court ought to have excluded K.M.’s statements.

       {¶17} Upon review, this Court cannot conclude that the trial court abused its discretion

when it admitted K.M.’s statements to Dr. Keck-McNulty pursuant to Evid.R. 803(4). K.M. was

only three years old at the time he made the statements, suggesting the absence of a motive to

fabricate. See Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, at ¶ 49. Additionally, Dr. Keck-

McNulty’s notes do not reflect that she questioned him in a suggestive manner. See id., citing

State v. Dever, 64 Ohio St.3d 401, 410 (1992). She previously testified that, as a therapist, she

strove to maintain an objective role. The notes she took while treating K.M. are replete with

descriptions of his emotional responses and remarks about his progress. Her notes confirm that

her sessions with K.M. were in the nature of therapeutic counseling rather than forensic

investigation. See Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, at ¶ 28.

       {¶18} Though Mr. Meyerson argues that K.M.’s statements are unreliable, Dr. Steiner

testified that K.M.’s statements about the abuse he suffered were “very consistent” with his

injuries. Further, statements made for the purpose of medical treatment enjoy a presumption of

reliability. Muttart at ¶ 47. The State set forth evidence that K.M. made statements to Dr. Keck-

McNulty in the context of their ongoing, one-on-one trauma therapy sessions. His statements,
                                                 9


describing the physical and sexual assault he endured and identifying his perpetrator, fell

“‘within the [Evid.R. 803(4)] exception, as statements made for purposes of diagnosis or

treatment.’” State v. Dasen, 9th Dist. Summit No. 28172, 2017-Ohio-5556, ¶ 55, quoting State

v. Stahl, 9th Dist. Summit No. 22261, 2005-Ohio-1137, ¶ 15. Accordingly, the trial court did not

abuse its discretion when it admitted them.

       K.M.’s Statements to His Grandmother

       {¶19} Evid.R. 807 allows a proponent to introduce an out-of-court statement (1) made

by a child under twelve, and (2) describing a sexual act or act of physical violence. The child’s

competency to testify need not be established, State v. Silverman, 121 Ohio St.3d 581, 2009-

Ohio-1576, syllabus, but “four elements [] must be satisfied before [the] child’s out-of-court

statement regarding abuse can be admitted.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-

Ohio-3108, ¶ 20. The State must show that: (1) “the totality of the circumstances surrounding

the making of the statement provides particularized guarantees of trustworthiness * * *”; (2) the

child’s testimony “is not reasonably obtainable”; (3) there exists “independent proof of the

sexual act * * *”; and (4) the defendant was given notice, at least ten days before trial or hearing,

of the content of the statement and the circumstances surrounding it. Evid.R. 807(A)(1)-(4).

       {¶20} The State sought to introduce statements that K.M. made to his grandmother on

August 28, 2015, directly after his counseling session with Dr. Keck-McNulty. At a pretrial

hearing, K.M.’s grandmother testified that she took K.M. to his counseling session that day and

briefly spoke with Dr. Keck-McNulty at the session’s end. She then took K.M. outside where he

caught sight of his reflection in some windows. According to the grandmother, K.M. then

became extremely upset and began screaming in an angry tone.               She testified that K.M.

repeatedly screamed at his reflection: “Really, Zach, a freaking toy? You shoved a freaking toy
                                                10


up my butt?” He then screamed: “That really hurt and it made me have to poop.” K.M.’s

grandmother testified that, after she reassured K.M. he was safe, he calmed down enough for her

to take him home.

       {¶21} The trial court determined that K.M.’s statements were admissible pursuant to

Evid.R. 807, so his grandmother testified as to the statements at trial. Mr. Meyerson argues that

the court abused its discretion by admitting that testimony because K.M. was incompetent to

testify and the circumstances surrounding his statements showed their lack of trustworthiness.

See Evid.R. 807(A)(1). Mr. Meyerson once again notes that K.M. was very young when he

made the statements, he waited more than three months to make them, and there was evidence

that he had some difficulty distinguishing between the truth and a lie.

       {¶22} Even if the statements K.M. made in the presence of his grandmother were

inadmissible, the record reflects that the court’s error in their admission was “harmless beyond a

reasonable doubt.” State v. Edwards, 9th Dist. Summit No. 28164, 2017-Ohio-7231, ¶ 42. The

statements mirrored the ones K.M. made to Dr. Keck-McNulty during his counseling session

with her. Both sets of statements occurred near in time to each other, identified Mr. Meyerson as

the perpetrator, and described him as having forced an object inside of K.M.’s anal cavity. The

grandmother’s testimony as to those statements was merely cumulative of the testimony the jury

heard regarding K.M.’s statements to Dr. Keck-McNulty. See State v. Hernon, 9th Dist. Medina

No. 3081-M, 2001 Ohio App. LEXIS 1276, *13 (Mar. 21, 2001) (error in admission of testimony

“may be harmless beyond a reasonable doubt if it is cumulative”). Moreover, as discussed

below, the jury heard a wealth of testimony about the nature of K.M.’s injuries, the approximate

timeframe during which they occurred, and the fact that Mr. Meyerson was alone with him at

that time. Having reviewed the record, this Court concludes that the court’s error in admitting
                                                 11


the grandmother’s testimony, if any, was harmless beyond a reasonable doubt. See Edwards at ¶

42; Hernon at *13. As such, Mr. Meyerson’s second assignment of error is overruled.

                                  ASSIGNMENT OF ERROR I

          THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
          DENIED DEFENDANT-APPELLANT MEYERSON’S MOTION FOR
          JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29.

          {¶23} In his first assignment of error, Mr. Meyerson argues that the trial court erred

when it denied his Crim.R. 29 motion on his rape count. Specifically, he argues that the State

failed to prove beyond a reasonable doubt the element of sexual conduct. This Court disagrees.

          {¶24} “‘[This Court] review[s] a denial of a defendant’s Crim.R. 29 motion for acquittal

by assessing the sufficiency of the State’s evidence.’” State v. Bulls, 9th Dist. Summit No.

27029, 2015-Ohio-276, ¶ 6, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-

634, ¶ 33. Whether the evidence in a case is legally sufficient to sustain a conviction is a

question of law that this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997).

          An appellate court’s function when reviewing the sufficiency of the evidence to
          support a criminal conviction is to examine the evidence admitted at trial to
          determine whether such evidence, if believed, would convince the average mind
          of the defendant’s guilt beyond a reasonable doubt. The 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, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “In essence, sufficiency

is a test of adequacy.” Thompkins at 386.

          {¶25} “No person shall engage in sexual conduct with another who is not the spouse of

the offender * * * when * * * [t]he other person is less than thirteen years of age * * *.” R.C.

2907.02(A)(1)(b). The phrase “sexual conduct” includes the unprivileged insertion, “however
                                                 12


slight, of * * * any instrument, apparatus, or other object into the vaginal or anal opening of

another.” R.C. 2907.01(A). Whoever commits the foregoing offense is guilty of rape. R.C.

2907.02(B).

       {¶26} K.M.’s mother testified that she and Mr. Meyerson started living together a few

months before the incident giving rise to this appeal. She explained that Mr. Meyerson was not

K.M.’s father, but became like a father to him. Because she worked in the evening and Mr.

Meyerson worked during the day, they took turns caring for K.M. She testified that Mr.

Meyerson’s parenting practices often led to arguments between them, however, because she

thought the punishments he inflicted on her son were, at times, overly harsh. She also stated that

their relationship almost ended more than once because Mr. Meyerson became too stressed and

could not cope with her son.

       {¶27} The evening of May 20, 2015, was the first night that K.M., his mother, and Mr.

Meyerson were to spend in their new apartment. K.M.’s mother testified that the three ate pizza

together that evening before she left for work. She estimated that she left the apartment around

7:00 or 7:30 p.m. and did not return until after 1:00 a.m.

       {¶28} One of the neighbors at the apartment testified that Mr. Meyerson began banging

on her door after midnight. Mr. Meyerson asked to use her phone to call his girlfriend because

her son “was running a fever and was nonresponsive.” The neighbor described Mr. Meyerson as

“very erratic” and indicated that he attempted to call his girlfriend multiple times to no avail. He

then asked the neighbor to search for the number to his girlfriend’s place of employment.

Although the neighbor offered to call an ambulance or drive Mr. Meyerson and K.M. to the

hospital, she testified that Mr. Meyerson declined her offer on the basis that “he didn’t have the

authorization * * * [t]o take [K.M.] to the hospital or seek treatment.”
                                                13


       {¶29} After his calls to K.M.’s mother failed, Mr. Meyerson returned to his apartment

and the neighbor followed. She testified that she followed Mr. Meyerson to a back bedroom

where she saw K.M. lying on a mattress, flat on his back with his arms above his head. The

neighbor testified that K.M. initially would not respond when she said his name or touched him,

but that she and Mr. Meyerson eventually were able to rouse him to some degree when they

placed a cold rag on his face. She testified that K.M. had difficulty remaining conscious and

they eventually brought him into the kitchen and set him on the counter. While K.M. was still

sitting on the counter, his mother returned from work.

       {¶30} K.M.’s mother testified that she returned home to find her son awake, but

unwilling to speak or move. Mr. Meyerson informed her that he had put K.M. to bed and

returned sometime later to take him to the bathroom. At that point, however, he could not wake

K.M., so he ran to the neighbor for help. K.M.’s mother testified that she immediately accepted

the neighbor’s offer to use her phone to call 911, but Mr. Meyerson suggested they wait longer.

Fearful for her son, she ignored Mr. Meyerson’s suggestion and called for help.

       {¶31} EMS workers responded to the apartment at approximately 1:50 a.m. and brought

K.M. to Akron Children’s Hospital. Dr. Eric Singer, a staff physician, examined K.M. and noted

that he had obvious bruising to his face and was difficult to arouse. A CT scan was performed

and revealed a subdural hematoma and a midline shift of K.M.’s brain. Dr. Singer explained that

the head bleed K.M. had suffered was creating pressure in his head and had caused his brain to

shift to one side. The condition required emergency neurosurgery wherein K.M. underwent a

craniectomy to relieve the pressure on his brain.

       {¶32} Dr. Singer testified that head injuries of the sort K.M. suffered are generally

caused by blunt force trauma. He described K.M.’s brain bleed as acute, meaning that it had
                                                  14


started within 36 hours of him arriving at the hospital. Additionally, he saw a number of other

acute injuries when examining K.M. Dr. Singer specified that he observed multiple V-shaped

burns on K.M.’s face, arm, and buttocks that were consistent with burns from a BIC lighter.

Further, he stated that K.M.’s rectal area was freshly and intensely bruised in a manner consistent

with “[s]omething [being] rammed in there.” He noted that K.M.’s buttocks had to be physically

pulled apart to be able to view the injury to his rectal area.

          {¶33} Dr. Steiner, the former Medical Director of the CARE Center, testified that he

was asked to consult on K.M.’s case. He testified that he had a wealth of experience in pediatric

emergency trauma and frequently consulted when abuse concerns arose.                   During his

consultation, Dr. Steiner reviewed all of K.M.’s records and test results and spoke with K.M.’s

mother. Dr. Steiner ultimately concluded that K.M. had experienced a blunt force injury to his

head and face in combination with a shaking injury. He further concluded that K.M. had

sustained multiple imprint burns, consistent with a BIC lighter, and a traumatic, “[p]enetrating

injury” to his anal cavity. As to the latter, he opined that the injury was caused by an instrument

with a conical or circular shape. Dr. Steiner further opined that all of K.M.’s injuries occurred

within 24 hours of his presentation to the hospital and were the result of non-accidental, violent

events.

          {¶34} The State presented evidence that the police searched Mr. Meyerson and K.M.’s

mother’s apartment after speaking with Dr. Steiner and receiving information about the likely

shape and diameter of the instrument used to cause K.M.’s anal injuries. A search of the

apartment yielded several possibilities, including two bongs that belonged to Mr. Meyerson.

Both bongs were submitted to the Bureau of Criminal Investigation (“BCI”) for testing. On the
                                                 15


mouthpiece of the larger bong, forensic scientists discovered a mixture of DNA profiles that

were consistent with the profiles belonging to Mr. Meyerson and K.M.

       {¶35} Detective Dominic Perella interviewed Mr. Meyerson at the police station a few

hours after K.M. was taken to the hospital. He testified that Mr. Meyerson’s statement changed

significantly during the interview. When Mr. Meyerson first described his evening with K.M.,

he claimed that K.M. fell down at one point but that he was not hurt in the fall and went to sleep

without incident. Mr. Meyerson stated that K.M. sustained a burn mark because he briefly

tapped him with a hot lighter. He described how he became angry after he burned himself trying

to light a candle and K.M. laughed at him. There was testimony, however, that the police were

unable to find any candles at the apartment when they conducted their search. Moreover, Mr.

Meyerson later admitted that he may have burned K.M. multiple times with the lighter when

attempting to chase him. He also admitted that he spanked K.M.’s bare bottom that evening and,

at one point, held his head to the wall when he refused to remain still in time out.

       {¶36} As previously set forth, the State also introduced into evidence several statements

that K.M. made to Dr. Keck-McNulty, his trauma therapist. In his statements to Dr. Keck-

McNulty, K.M. specifically identified Mr. Meyerson as his perpetrator. He also described how

Mr. Meyerson hit him in the head and shoved an item into his anal cavity.

       {¶37} Viewing the evidence in a light most favorable to the prosecution, a rational trier

of fact could have concluded that the State proved the element of sexual conduct beyond a

reasonable doubt. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. The State set

forth evidence that K.M. sustained a forcible, penetrating injury to his anal cavity and that the

injury was acute. It set forth evidence that K.M. was unharmed when his mother left him, but

significantly injured when she returned home several hours later.          During that time, K.M.
                                                16


remained solely under the care of Mr. Meyerson. Moreover, Mr. Meyerson admitted that he

inflicted at least some of the injuries that K.M. sustained that evening (i.e., the contact burns

from the lighter). Based on the evidence the State presented, the jury reasonably could have

concluded that Mr. Meyerson physically abused K.M. and, in the course of doing so, forcibly

inserted an instrument into his anal cavity.      As such, this Court must conclude that Mr.

Meyerson’s rape conviction is based on sufficient evidence. See R.C. 2907.01(A).

       {¶38} In the argument portion of his brief, Mr. Meyerson also argues that his rape

conviction is against the manifest weight of the evidence. Yet, his captioned assignment of error

only pertains to the denial of his Crim.R. 29 motion for acquittal. This Court has held that “[a]n

appellant’s captioned assignment of error ‘provides this Court with a roadmap on appeal and

directs this Court’s analysis.’” State v. Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-

3254, ¶ 41, quoting State v. Marzolf, 9th Dist. Summit No. 24459, 2009-Ohio-3001, ¶ 16. This

Court will not address arguments that fall outside the scope of an appellant’s captioned

assignment of error. See Pleban at ¶ 41. Because Mr. Meyerson has not separately assigned as

error that his rape conviction is against the manifest weight of the evidence, this Court will not

address his argument on that point. His first assignment of error is overruled.

                                                III.

       {¶39} Mr. Meyerson’s assignments of error are overruled. This Court reverses the

judgment of the Summit County Court of Common Pleas only to the extent that it imposed upon

Mr. Meyerson a five-year sentence for child endangering. His five-year sentence on that charge

is vacated, and the matter is remanded for resentencing on that charge. Thus, the court’s

judgment is affirmed in part, reversed in part, and the cause is remanded in accordance with the

foregoing opinion.
                                                17


                                                                        Judgment affirmed in part,
                                                                                  vacated in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

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

Pleas, County of Summit, 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.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



HENSAL, P. J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

JACOB T. WILL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
