[Cite as State v. Christon, 2020-Ohio-1524.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2019-CA-43
                                                     :
 v.                                                  :   Trial Court Case No. 2018-CR-346
                                                     :
 KALI N. CHRISTON                                    :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                              Rendered on the 17th day of April, 2020.

                                                ...........

MARCY VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

P.J. CONBOY, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
      Attorney for Defendant-Appellant

                                               .............




HALL, J.
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       {¶ 1} Kali N. Christon appeals from his conviction of murder following a jury trial on

charges of murder and felonious assault; the offenses were merged for sentencing.

       {¶ 2} In his sole assignment of error, Christon contends the jury’s verdicts were

against the manifest weight of the evidence.

       {¶ 3} The record reflects that Christon was charged with the offenses set forth

above for allegedly abusing his six-week-old son by inflicting blunt-force injuries to the

child’s head, resulting in hemorrhaging that proved fatal. At trial, police dispatcher Steffi

Lutz testified that Christon called 911 at 3:17 a.m. on March 8, 2018 and reported that his

child had not been breathing for approximately 30 minutes. During the call, the dispatcher

heard Christon say, “I probably f***ed him up.” On cross-examination, the dispatcher

acknowledged that she did not know the context of the statement. She conceded it was

possible that Christon was referring to performing CPR improperly.

       {¶ 4} Fairborn police officer Sam Fullen was the first to arrive on the scene. He

proceeded to an upstairs bedroom of Christon’s residence and saw the child lying on the

floor on his back. The child was not breathing, and Fullen could not detect a pulse. Fullen

proceeded to perform CPR. Fairborn police officers John Hood and Matthew Haytas

arrived shortly after Fullen. Hood spoke with Christon at the scene and asked what had

happened. Christon responded that he woke up to the baby crying and went downstairs

to prepare a bottle. He came back upstairs and tried to feed the child. Christon told the

officer that the baby would not take the bottle and went “limp.” Christon stated that he

performed CPR on the child for about 40 minutes before calling 911. Hood and Haytas

both described Christon’s demeanor as “very calm.”
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       {¶ 5} The next witness at trial was Kent Depue, an emergency-room doctor at

Dayton Children’s Hospital. He testified that the victim had no pulse and was not breathing

upon arrival at the hospital. Resuscitation efforts were unsuccessful, and Depue

pronounced the child dead after about 30 minutes. On cross-examination, Depue agreed

that performing CPR improperly could cause injury. On redirect examination, he explained

that the expected injury primarily would involve broken ribs. He testified that he never had

seen subdural or subarachnoid hemorrhaging due to improper administration of CPR.

       {¶ 6} Kasey Hockett, the mother of the deceased child, also testified as a

prosecution witness. Hockett testified that she and Christon had two children together.

They were separated at the time in question. She lived with the children in Huber Heights,

and Christon lived with his aunt in Fairborn. Hockett sometimes stayed with Christon at

the Fairborn residence. On March 6, 2018, she dropped the children off to stay with

Christon for a couple of days. Hockett testified that the victim had no health problems

when she left him with Christon. At six weeks of age, the child was not able to roll over

by himself. Hockett had not seen the child fall and had not dropped the child. Hockett

stated that Christon called her at 3:14 a.m. on March 8, 2018 and reported that the six-

week-old child was not breathing. Christon hung up when Hockett asked whether he had

called 911.

       {¶ 7} Hockett testified that on prior occasions Christon became angry and

frustrated when the child would cry. She explained that he would yell and hold the child’s

mouth closed for a couple of seconds until she would tell him to stop. Sometime after the

child’s death, Hockett made a recorded telephone call to Christon and asked him about

an autopsy report identifying blunt-force trauma to the head as the cause of death.
                                                                                       -4-


Christon responded by calling the report “bulls**t” and saying “they make everything up.”

Hockett also testified that Christon previously had complained about the child needing to

learn to stop crying so much. According to Hockett, Christon had told her that the child

needed to learn to “be a man” and not cry. Hockett acknowledged, however, that she

never had seen Christon hit the child.

      {¶ 8} Christon’s aunt, Tonya Watkins, testified that Christon had his own bedroom

at her house. He shared the bedroom with his two children and sometimes Hockett. She

stated that she never saw him act inappropriately with his children. In the early morning

hours of March 8, 2018, he awoke her and told her that there was something wrong with

the baby and that he had been performing CPR. Watkins then assisted with performing

CPR until police arrived and took over.

      {¶ 9} Fairborn detective Ryan Whittaker testified about interviewing Christon with

another detective on March 8, 2018. At that time, Christon told the detectives that he

awoke around 2:00 a.m. or 2:30 a.m. to find his six-week-old child crying in his bed. He

went downstairs and prepared the child a bottle. He then returned and attempted to feed

the child. Christon told the detectives the baby refused the bottle and went “limp.”

According to Whittaker, Christon claimed that he performed CPR for approximately 30

minutes before getting his aunt. Christon told the detectives that everyone else was

asleep when he went to make the bottle and that it took him no more than five minutes.

Christon also denied that anyone had dropped the child or that the child had rolled off of

the bed. He claimed that he had been with the child the entire time and that no one else

had cared for him. Christon also stated that he had not left the house the prior day and

that he had been with the child the whole time. When asked why he did not call 911
                                                                                        -5-


sooner, Christon responded that he thought he could revive the child.

       {¶ 10} Detectives Whittaker and Shane Hartwell interviewed Christon a second

time on April 30, 2018. By that time, the detectives knew that blunt-force trauma to the

head was the cause of the child’s death. When confronted with these findings, Christon

responded that someone else in the house might have dropped the child. He also

suggested that other children in the house might have watched the infant while he stepped

outside to smoke. He continued to insist, however, that the child was not exhibiting any

signs of injury prior to going limp and stopping breathing. When Whittaker accused

Christon of shaking the child, he responded “damn” but did not admit shaking or striking

the infant.

       {¶ 11} Detective Hartwell also testified as a prosecution witness. He essentially

corroborated detective Whittaker’s testimony about the two interviews. In particular, he

testified that Christon initially denied that anyone else had cared for the child. Christon

also told Hartwell that the only other person in the bedroom besides himself and the six-

week-old infant was his other child, who was almost two years old. Christon told Hartwell

that this other child had been asleep throughout the time in question. After being

confronted with evidence about blunt-force trauma during the second interview, Christon

told Hartwell that someone else might have been watching the infant and might have

dropped him.

       {¶ 12} The next witness at trial was forensic pathologist Susan Brown. She testified

that she performed an autopsy on the deceased infant. The autopsy revealed that the

child exhibited subdural and subarachnoid hemorrhaging, which involved bleeding

around the brain. Brown also noted hemorrhaging involving both eyes as well as bruising
                                                                                          -6-


on the child’s back and contusions on the scalp, cheek, lip, and forearm. In addition, the

child had a laceration of the upper frenulum, which is a small piece of tissue inside the

mouth connecting the lip to the gums. Brown also noted the existence of rib fractures

without hemorrhaging, which indicated that the fractures were post-mortem and

attributable to CPR. Brown opined that the child’s cause of death was blunt-force trauma

to the head and that the manner of death was homicide. She explained that pressure from

bleeding on the brain caused problems with the child’s breathing and heartbeat and

resulted in death.

       {¶ 13} The final witness was Dr. Kelly Liker, the chief of the division of child

advocacy at Dayton Children’s Hospital. Liker was board-certified in pediatric child abuse.

She opined that a six-week-old child would not be able to crawl, walk, or sit up

independently. Nor could a child that age inflict the type of injuries at issue. For that

reason, Liker stated that a care giver would be expected to be aware of the cause of such

injuries. Based on her review of available records, Liker opined that the infant would have

exhibited symptoms and acted abnormally immediately after sustaining the subdural and

subarachnoid hemorrhaging. Symptoms might include vomiting, seizures, going limp, not

moving, and being non-responsive to stimuli. Liker stated that a loss of consciousness

would occur within minutes. In her medical opinion, the injuries at issue were not the result

of a fall or being dropped. Rather, the trauma to the child’s head resulted from multiple

impacts. Liker added that the tear to the child’s frenulum was consistent with something

forcibly being inserted into the mouth. Liker also opined that the child was incapable of

causing 15 observed bruises on his body by himself. Liker testified that she never had

seen a case in which CPR caused subdural or subarachnoid hemorrhaging. She agreed,
                                                                                             -7-


however, that the child’s rib fractures could have been caused by CPR. She also opined

that Christon’s other child, who was almost two years old, would have been incapable of

inflicting the severe injuries at issue. Liker noted too that, according to Christon, this child

was asleep during the entire incident. In Liker’s view, the victim’s injuries resulted from

physical abuse.

       {¶ 14} On cross-examination, Liker dismissed the notion that Christon’s nearly

two-year-old child repeatedly could have hit the victim in the head and thrown the victim

on the floor while Christon was downstairs preparing a bottle. Liker also noted that, by

Christon’s own admission, this other child was asleep when he went downstairs and

remained asleep when he returned upstairs. On redirect examination, Liker observed that

Christon claimed the victim was still in bed, and not on the floor, when he returned

upstairs. Liker added that she never had seen brain hemorrhaging caused by blows

inflicted by a two-year-old child. On recross-examination, Liker was informed that four

other children between the ages of 10 and 16 years old also lived in the house. She noted,

however, that there was no reported history of any of these people being in the bedroom

with the victim at the time of the injuries. To the contrary, the case history reflected that

the only people present were the victim, the two-year-old child, and Christon.

       {¶ 15} Based on the evidence presented, a jury found Christon guilty of felonious

assault and murder as a proximate result of committing felonious assault. The trial court

merged the two counts as allied offenses of similar import. The State elected to proceed

to sentencing on the murder conviction. The trial court imposed a prison term of 15 years

to life. This appeal followed.

       {¶ 16} In his assignment of error, Christon contends the jury’s guilty verdicts on the
                                                                                          -8-


felonious assault and murder charges were against the manifest weight of the evidence.

Christon asserts that he never before had injured either of his children. With regard to the

incident in question, he claims he went downstairs to prepare a bottle and does not know

whether someone else entered the bedroom and injured the infant during his five-minute

absence. He also suggests that someone else in the house might have cared for the child

earlier when he went outside to smoke and might have dropped the child. In addition,

Christon notes that Dr. Liker could not say specifically how the child’s injuries occurred.

He notes too that the coroner did not determine specifically what caused the blunt-force

trauma to the child’s head, who caused the injuries, or precisely when they occurred.

Under these circumstances, Christon maintains that the jury’s guilty verdicts were against

the weight of the evidence.

       {¶ 17} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A

judgment should be reversed as being against the manifest weight of the evidence “only

in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 18} With the foregoing standards in mind, we conclude that the jury’s verdicts

finding Christon guilty of felonious assault and murder were not against the weight of the

evidence. The trial court instructed the jury that felonious assault required proof that
                                                                                            -9-


Christon knowingly caused serious physical harm to his infant child. See R.C.

2903.11(A)(1). The trial court instructed the jury that murder required proof that Christon

caused the death of his infant child as a proximate result of committing an offense of

violence, namely felonious assault. See R.C. 2903.02(B). The weight of the evidence

supported the jury’s verdict that the State proved both offenses beyond a reasonable

doubt.

         {¶ 19} Christon initially told police that no one but him had watched or cared for his

infant child. He asserted that the child had no prior injuries, had not been dropped, and

had not rolled out of bed. He also claimed everyone else was asleep when he went

downstairs to prepare a bottle. After being confronted with evidence that the child died

from multiple blunt-force trauma injuries to the head, Christon changed his story. He

theorized that other people in the house might have harmed the child while he was

downstairs. The record contains no evidence, however, that anyone else in the house

entered the bedroom or was even awake. The infant’s mother, Kasey Hockett, also

testified that she was at Christon’s residence on March 6, 2018, and, at that time,

everything he needed to prepare a bottle was kept in his bedroom, suggesting that he

had no need to go downstairs. Dr. Liker also rejected any possibility that the infant may

have injured himself, that Christon’s two-year-old child may have inflicted the injuries, or

that the brain hemorrhaging may have occurred when Christon performed CPR. Liker

opined that the infant’s various injuries were the result of physical abuse. The jury also

heard testimony about Christon having a history of being frustrated by the infant crying

and trying to stop the crying. The 911 operator overheard him say “I probably f***ed him

up” in an apparent reference to the infant. In short, the jury reasonably could have
                                                                                        -10-


concluded that Christon was the only person who reasonably could have caused the

child’s injuries and that those injuries were the result of child abuse, including multiple

blows to the head that caused subdural and subarachnoid hemorrhaging and resulted in

death. The present case was not one in which the evidence weighed heavily against

Christon’s conviction. The jury’s guilty verdicts on the charges of felonious assault and

murder were not against the weight of the evidence. Christon’s assignment of error is

overruled.

      {¶ 20} The judgment of the Greene County Common Pleas Court is affirmed.

                                     .............



TUCKER, P.J. and FROELICH, J., concur.


Copies sent to:

Marcy Vonderwell
P.J. Conboy
Hon. Michael A. Buckwalter
