[Cite as State v. Deems, 2016-Ohio-5608.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :       Hon. William B. Hoffman, J.
                                            :       Hon. John W. Wise, J.
-vs-                                        :
                                            :
BENJAMIN M. DEEMS                           :       Case No. 15CA101
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from Court of Common
                                                    Pleas, Case No. 2015CR0191




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   August 22, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

DANIEL M. ROGERS                                    JEFFREY P. ULRICH
38 South Park Street                                P.O. Box 1977
Mansfield, OH 44902                                 Westerville, OH 43086
Richland County, Case No. 15CA101                                                    2

Farmer, P.J.

      {¶1}     On February 26, 2015, the Richland County Grand Jury indicted appellant,

Benjamin Deems, on four counts of endangering children in violation of R.C.

2919.22(A), (B)(1), and (E)(2)(c) and (d), and three counts of felonious assault in

violation of R.C. 2903.11(A)(1). Said charges arose from incidents involving appellant

and his infant son, B.D., born December 16, 2014. The infant suffered permanent brain

damage and nineteen rib fractures. Mother of the infant is Amanda Isaac.

      {¶2}     Prior to trial, one of the endangering children counts and one of the

felonious assault counts were dismissed. A jury trial commenced on the remaining

counts on October 26, 2015. The jury found appellant guilty on all counts. By judgment

entry filed November 2, 2015, the trial court merged some of the counts and sentenced

appellant to an aggregate term of nineteen years in prison.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}     "THE CONVICTIONS OF CHILD ENDANGERING AND FELONIOUS

ASSAULT AGAINST DEFENDANT ARE NOT SUSTAINED BY THE EVIDENCE AND

ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                            I

      {¶5}     Appellant claims his convictions for child endangering and felonious

assault were against the sufficiency and manifest weight of the evidence as there was

no evidence to establish when the injuries were inflicted on B.D. and who inflicted the
Richland County, Case No. 15CA101                                                         3


injuries, and no evidence was presented to establish that he knew or should have

known that B.D. was in need of medical attention. We disagree.

       {¶6}     On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "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." Id. at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the 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, 20 Ohio App.3d 172, 175 (1st Dist.1983). See

also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. 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.

       {¶7}     We note circumstantial evidence is that which can be "inferred from

reasonably and justifiably connected facts."      State v. Fairbanks, 32 Ohio St.2d 34

(1972), paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain,

satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353,

1992-Ohio-44. It is to be given the same weight and deference as direct evidence.

Jenks, supra.
Richland County, Case No. 15CA101                                                      4


       {¶8}   Appellant does not contest the fact that B.D.'s severe and/or permanent

injuries (permanent brain damage and nineteen rib fractures) were the result of the

infant being violently shaken and significant pressure being applied to his rib cage.

Appellant's Brief at 10. However, he argues there were no witnesses to the infliction of

the injuries, someone else could have caused the injuries e.g., Amanda Isaac, the

infant's mother, and no evidence was presented to establish that he knew or should

have known that B.D. was in need of medical attention. Appellant also argues despite

the various negative factors reflecting on his parenting skills, none of them provided an

"actual nexus between the injuries sustained by B.D. and the actual causation of those

injuries." Appellant's Reply Brief at 1.

       {¶9}   Appellant was convicted on three counts of endangering children in

violation of R.C. 2919.22(A), (B)(1), and (E)(2)(c) and (d) which state:



              (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.***

              (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.
Richland County, Case No. 15CA101                                                         5


             (E)(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:

             (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.



      {¶10} Appellant was also convicted on two counts of felonious assault in

violation of R.C. 2903.11(A)(1) which states: "No person shall knowingly do either of the

following: [c]ause serious physical harm to another or to another's unborn."

      {¶11} Based upon the charges, the state was required to prove that appellant

recklessly abused B.D. on at least two occasions and the infant suffered serious

physical harm as a result of the abuse, and appellant recklessly created a substantial

risk to B.D.'s health and caused him serious physical harm by violating a duty of care to

B.D. There is no dispute that the infant suffered two separate injuries: permanent brain

damage and nineteen rib fractures.

      {¶12} Steven Gregory Escue, M.D., the emergency room physician who

examined B.D. on February 13, 2015, testified the infant presented as nonresponsive,

his eyes were deviated to the left, and his stomach was "very distended, very firm, very

swollen." T. at 223; State's Exhibits 4 and 5. X-rays showed the infant had multiple rib
Richland County, Case No. 15CA101                                                          6


fractures on both sides of his chest, and they were in "multiple different ages and stages

of healing." T. at 231, 238, 240; State's Exhibit 7. Therefore, there were at least two

separate trauma incidents. T. at 232, 240. Dr. Escue opined on a child it would take "a

lot of force to break a rib" because an infant's ribs are more flexible. T. at 233-234.

       {¶13} Richard Daryl Steiner, D.O., Medical Director of the Care Center at Akron

Children's Hospital, testified the infant suffered a head injury, a neck injury, multiple rib

fractures, and an abdominal injury "which was a tearing of one of the major lymphatic

ducts inside the abdomen that caused fluid to collect inside his belly." T. at 391. The

traumatic brain injury resulted from a nonimpact trauma to the head, and the nineteen

rib injuries were inflicted as opposed to accidental. T. at 381, 387, 389, 394; State's

Exhibit 13. The traumatic brain injury and the neck injury were caused by the head

being "whiplashed back and forth" and "whiplash shaking." T. at 389, 392. The rib

injuries were to the back, sides, and front of the rib cage. T. at 393. Some of the rib

fractures had healed or were in the process of healing, indicating they "occurred at a

time about two to three weeks" prior to hospitalization. T. at 393. Dr. Steiner opined

B.D. "suffered multiple episodes of physical abuse over the course of the previous two

to three weeks." T. at 400.

       {¶14} The challenge to the jury verdict rests solely on whether it was proven,

either by direct or circumstantial evidence, that appellant caused the two traumatic

injuries to the infant and created a substantial risk to the infant's health by violating a

duty of care.

       {¶15} Appellant told police officers he was B.D.'s primary caregiver. T. at 303,

332. During his testimony and to the police officers, appellant related three incidents to
Richland County, Case No. 15CA101                                                              7


justify the infant's injuries. In the first incident, the infant slipped out of appellant's hands

while being dressed and hit the hardwood floor. T. at 302, 446-447. In the second

incident, when the infant was about one month old, he rolled off the couch onto the

floor. T. at 302, 305, 464. The third incident right before the hospitalization on February

13, 2015, occurred when the infant started to throw up after feeding, began choking,

and "really wasn't breathing." T. at 295, 435, 456. Appellant started "patting both sides

of his back and front," "hitting him pretty hard," trying to get B.D. to breathe. T. at 295-

296, 435, 438, 441, 468-469. After the infant started breathing, "like a gasp," appellant

called the infant's mother at work. T. at 439-440. Appellant picked up mother and

drove the infant to the hospital instead of calling 911 because "I just figured that I can

get him there faster." T. at 442.

       {¶16} Appellant's explanations of the earlier falls and him hitting the infant during

the choking incident, as well as the infant's birth and family medical history, were

rejected by the medical experts as the cause(s) of the injuries suffered by B.D. T. at

233, 236, 373, 387-389, 395-399. Both Dr. Escue and Charles Shaw, M.D., the infant's

pediatrician, testified infants roll over "around four months." T. at 233, 365.

       {¶17} Dr. Shaw testified B.D. was a healthy newborn from his birth on December

16, 2014, to his four day check-up on December 20, 2014, to his follow-up check-up on

December 31, 2014. T. at 352, 356-357. The first report of any problems was a

telephone call to Dr. Shaw's office on January 27, 2015, to report swollen testicles. T.

at 359. Another telephone call on February 5, 2015, was to report constipation. T. at

360. Appellant testified the infant had a swollen belly starting around February 9, 2015,

and "[i]t gradually got big." T. at 436-437. Although a regularly scheduled appointment
Richland County, Case No. 15CA101                                                         8


with Dr. Shaw was set for February 10, 2015, the appointment was rescheduled

because appellant was running late. T. at 362, 437. On February 13, 2015, the infant's

mother called Dr. Shaw's office to report the vomiting and choking incident and was

directed to go to the emergency room. T. at 364. Other than the listed dates, no other

telephone calls were made to Dr. Shaw's office. Id. Appellant stated he called Dr.

Shaw's office to report the infant's enlarged belly on February 9, 2015 and/or after. T. at

304, 437, 465. Dr. Shaw stated a telephone call was not received and an enlarged belly

was never reported. T. at 360-361.

       {¶18} Appellant testified the infant cried and fussed all the time and he admitted

it frustrated him, and although the infant's mother was alone with B.D., he "didn't believe

it was her." T. at 446, 462-463.

       {¶19} The jury was faced with determining whose explanation for the injuries

was more credible, the medical experts' or appellant's version. The weight to be given

to the evidence and the credibility of the witnesses are issues for the trier of fact. State

v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-

Ohio-260.

       {¶20} Upon review, we find there was substantial credible evidence to support

the jury's verdict, and find no manifest miscarriage of justice.

       {¶21} The sole assignment of error is denied.
Richland County, Case No. 15CA101                                              9


      {¶22} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




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