[Cite as State v. Baughman, 2010-Ohio-1259.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-09-38

        v.

JESSICA BAUGHMAN,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2009 0055

                                    Judgment Affirmed

                           Date of Decision: March 29, 2010




APPEARANCES:

        Eric J. Allen for Appellant

        Jana E. Emerick for Appellee
Case No. 1-09-38


PRESTON, P.J.

       {¶1} Defendant-appellant, Jessica Baughman (hereinafter “Baughman”)

appeals the judgment of conviction and sentence entered against her by the Allen

County Court of Common Pleas. For the reasons that follow, we affirm.

       {¶2} The facts relevant to this appeal are as follows. On September 29,

2008, the Call-A-Nurse hotline run by St. Rita’s Medical Center received a phone

call from a woman saying that a three-year-old boy, named Christopher Faulk

(hereinafter “Christopher”), had hit his head and was unresponsive. The nurse told

the caller to call 911, and after the call ended, because of the nature of the call, the

nurse also called the Allen County Sheriff’s Department to report the alleged

situation.   The Allen County Sheriff’s Department dispatched officers and

emergency personnel to 209 North Church Street in Beaverdam, Ohio, which was

the location of the alleged injured child. Upon arrival at the residence, paramedics

were met by a man, later identified as Jacob Jones (hereinafter “Jones”), who told

them that they did not need any help. Eventually, the paramedics were allowed

into the residence, at which time they found Christopher lying in the back

bedroom unresponsive and covered in bruises.

       {¶3} As the paramedics were placing Christopher in the ambulance, his

mother, defendant-appellant, Baughman, pulled up in a car with another woman,

Christina Jones, and told the paramedics and law enforcement officers that



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Christopher had fallen out of a tree several times. Baughman and Christopher

were taken to Lima Memorial Hospital, and he was later transferred to a hospital

in Columbus, where he eventually died as the result of blunt force trauma to his

head.

        {¶4} As a result of the investigation of Christopher’s injuries, law

enforcement officers eventually arrested Jones, who subsequently pled guilty to

murder, felonious assault, and child endangerment. In addition, on February 12,

2009, the Allen County Grand Jury returned a two-count indictment against

Baughman charging her with the following: count one, endangering children in

violation of R.C. 2919.22(A)&(E)(2)(c), a felony of the third degree; and count

two, obstructing justice in violation of R.C. 2921.32(A)&(C)(4), a felony of the

third degree.

        {¶5} On June 29, 2009, a bench trial was held.            Following the

presentation of evidence, the trial court found Baughman guilty on both counts of

the indictment. Baughman was then sentenced to five years imprisonment on

count one, and three years imprisonment on count two, which were to run

consecutively for a total of eight years.

        {¶6} Baughman now appeals and raises four assignments of error. For

ease of discussion, we elect to address Baughman’s first and second assignments

of error together.



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                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN FINDING THAT THERE
       WAS SUFFICIENT EVIDENCE TO ESTABLISH HER GUILT
       AS TO CHILD ENDANGERMENT AND OBSTRUCTING
       JUSTICE

                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN FINDING THAT THE
       CONVICTIONS FOR CHILD ENDANGERMENT AND
       OBSTRUCTING JUSTICE WERE SUPPORTED BY THE
       MANIFEST WEIGHT OF THE EVIDENCE

       {¶7} In her first and second assignments of error, Baughman argues that

the trial court erred in finding that her convictions for child endangerment and

obstructing justice were supported by sufficient evidence and were not against the

manifest weight of the evidence.

       {¶8} The Ohio Supreme Court has set forth the sufficiency of the

evidence test as follows:

       [A]n appellate court’s function when reviewing the sufficiency of
       the evidence to support a criminal conviction is to examine the
       evidence admitted at trial and 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.




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State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, superseded by

state constitutional amendment on other grounds as stated in State v. Smith (1997),

80 Ohio St.3d 89, 684 N.E.2d 668.

       {¶9} Alternatively, an appellate court’s function when reviewing the

weight of the evidence is to determine whether the greater amount of credible

evidence supports the verdict. State v. Thompkins (1997), 78 Ohio St.3d 380, 387,

678 N.E.2d 541. In reviewing whether the trial court’s judgment was against the

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines

the conflicting testimony. Id. In doing so, this Court must review the entire

record, weigh the evidence and all of the reasonable inferences, consider the

credibility of witnesses, and determine whether in resolving conflicts in the

evidence, the factfinder “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. Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764, ¶30, citing

State v. Martin (1983), 20 Ohio App.3d 127, 175, 485 N.E.2d 717; Thompkins, 78

Ohio St.3d at 387. Further, we must be mindful that the credibility to be afforded

the testimony of the witnesses is to be determined by the trier of fact. State v. Dye

(1998), 82 Ohio St.3d 323, 329, 695 N.E.2d 763; State v. Frazier (1995), 73 Ohio

St.3d 323, 652 N.E.2d 1000.




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       {¶10} After a review of the record, we note that Baughman failed to make

a Crim.R. 29 motion at the close of the State’s case. Thus, she has waived all but

plain error as to the sufficiency of the evidence. See State v. Jones (2001), 91

Ohio St.3d 335, 346, 744 N.E.2d 1163. In order to find plain error, there must be

a deviation from a legal rule, the error must be an “obvious” defect in the

proceedings, and the error must affect a defendant’s “substantial rights.” State v.

Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, 2002-Ohio-68. Reversal

on plain error is to be used “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage” of justice. Id.

       {¶11} Here, Baughman was charged with one count of child endangerment

and one count of obstructing justice.      In order to prove the charge of child

endangerment, the State had to prove that (1) Baughman was the parent of a minor

child, (2) that she recklessly created a substantial risk to the child’s health and

safety by violating a duty of care, protection or support, and (3) that the violation

resulted in serious physical harm to the child. R.C. 2919.22(A)&(E)(2)(c). With

respect to the obstructing justice charge, the State had to prove that Baughman,

with purpose to hinder the discovery, apprehension, prosecution, conviction, or

punishment of another for a crime committed or to assist another to benefit from

the commission of a crime, did communicate false information to a person, and the




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crime committed by the person aided is aggravated murder, murder, or a felony of

the first or second degree. R.C. 2921.32(A)&(C)(4).

       {¶12} Prior to the presentation of the State’s evidence, the defense and

State stipulated to the fact that Baughman was the mother and legal custodian of

the victim, Christopher. (June 29, 2009 Tr. at 3-4). In addition, they stipulated to

the judgment entry of conviction and sentence of Jones, along with the death

certificate for Christopher and the Franklin County Coroner’s report. (Id.) Then

the State proceeded to call its first witness, Rebecca Brandon. She testified that on

Monday September 29, 2008, she was working at St. Rita’s Medical Center’s Call-

A-Nurse hotline when she received a call around 9:00 a.m. from a woman named

Christina Jones. (Id. at 7). The caller said that she was the aunt of a three-year-

old boy, Christopher, and that Christopher had hit his head while throwing a fit

and was unable to be revived. (Id. at 7-8). Nurse Brandon told the caller that they

needed to call 911. (Id. at 8). After the call ended, Nurse Brandon stated that she

decided to call Children Services because the call had seemed suspicious. (Id.).

In addition, she called the sheriff’s department to see if someone had recently

placed a 911 call about a three-year old boy. (Id.). When they informed her that

they had not received a call, she told them about the call, and the sheriff’s office

said that they would send someone out to check on the situation. (Id. at 9). While




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Nurse Brandon acknowledged that she never spoke to Baughman during the call,

she did state that Christina had told her that Baughman was with her. (Id. at 11).

       {¶13} Next, Matthew Nowlan testified that he had been one of the

paramedics that had responded to 209 North Church Street in Beaverdam, Allen

County, regarding a possible unresponsive child. (Id. at 13-14). Nowlan said that

when they got to the scene, a man (Jones) came out of the trailer and asked them

what they were doing there and told them that no one had called them. (Id. at 15).

Jones had asked them several times what they were doing there when Nowlan’s

supervisor asked Jones if there was an unresponsive child in the trailer. (Id. at 15).

Jones said “yes,” and told them to “wait a minute, please,” at which point Jones

walked back into the house and shut the door behind him. (Id.). Eventually, he

came back and allowed the paramedics to come in and directed them into the back

bedroom. (Id. at 16). When they arrived in the back bedroom, Nowlan said that

he saw a small boy in a pair of shorts lying on the bed. (Id.). Nowlan stated that

the boy was unresponsive, that his respirations were labored, and that he was

covered from head to toe in bruises. (Id. at 17).

       {¶14} Around the time when the paramedics were getting the boy out of

the house and into the ambulance, a car pulled up to the house and two women got

out, one of whom ran up to the ambulance and told the paramedics that she was

the boy’s mother, later identified as Baughman. (Id. at 20). The paramedics asked



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Baughman what had happened to her son, and she responded that he had fallen out

of a tree several times; in addition, she also told them that her son would get angry

and would hit himself and cause bruises. (Id. at 22). Then, Baughman and the

boy were transported to the hospital. (Id. at 21-22).

       {¶15} Christopher died a few days later at the hospital, and Jones

subsequently pled guilty and was sentenced for murder, felonious assault, and

child endangerment as a result of the incident. (Id. at 1-3).

       {¶16} The Chief of Police of Bluffton, Ohio, Richard Skilliter, also

responded to the scene on September 29, 2008. He testified that when he arrived,

the paramedics were already loading a child into an ambulance, and that

Baughman was informing them that she was the boy’s mother. (Id. at 32-34).

Chief Skilliter asked Baughman what had happened, and she told him that her son

had fallen out of a tree the other night and since then he had not been acting right.

(Id. at 35). The other woman with Baughman also told him that they always had

to keep an eye on the child because he would hurt himself a lot. (Id.). The Chief

walked Baughman over to the ambulance and before it left he asked her again

what had happened, again Baughman repeated that her son had fallen out of a tree

and pointed to some trees in the distance. (Id. at 36). While Chief Skilliter was

having this conversation with Baughman, he noted that Jones was “no where in

our immediate area.” (Id. at 37). In response to Baughman’s explanation that the



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boy had fallen out of a tree, Chief Skilliter and a few other law enforcement

officers, along with one of the other children at the residence, walked back to the

woods where this event purportedly took place. (Id. at 38).

       {¶17} Sergeant Kevin Litsey with the Allen County Sheriff’s Department

responded to Lima Memorial Hospital to assist in the investigation of

Christopher’s injuries.   (Id. at 48-49).      When he arrived at the hospital, he

introduced himself to Christopher’s mother, Baughman, and asked her what had

happened. (Id. at 49-50). The doctor came in around that time and also asked her

what had happened. (Id.). She explained to the doctor that Christopher had fallen

out of a tree the day before (Sunday), and that he had been acting fine, but then

later had thrown a temper tantrum and hit his head on the linoleum floor. (Id. at

50-51). At that point, she said that Christopher became unresponsive. (Id. at 52).

After the doctor left, Sergeant Litsey again asked her what had happened, and

again she said that Christopher had been playing with some other children and had

fallen out of a tree on Sunday, but that he had been acting normal on Sunday. (Id.

at 52).   Later during his questioning, Baughman added that Christopher had

thrown a temper tantrum and that she had to place her hands between his head and

the floor because he had been banging his head on it repeatedly. (Id. at 54).

       {¶18} Sergeant Litsey spoke to the doctors and was permitted to look at

some of Christopher’s injuries. State’s exhibit 5 included pictures of Christopher



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while he was at Lima Memorial Hospital. (Id. at 54-58); (State’s Ex. 5). These

pictures show Christopher naked with his head completely bandaged and he is

hooked up to several medical devices. (Id. at 54-58); (State’s Ex. 5). In addition,

along with a cut inside his upper lip, there are multiple bruises all along

Christopher’s back, the back and front of his legs, the upper part of his body, his

upper left arm, and on both sides of his face. (Id. at 54-58); (State’s Ex. 5).

       {¶19} After seeing Christopher’s injuries, Sergeant Litsey went back to

Baughman and confronted her about her story. (Id. at 58-59). He told Baughman

that he knew she was not being honest, and Baughman eventually indicated that it

had been Jones that had caused the injuries to Christopher. (Id. at 59). She

explained that there was a stool inside the house, that Christopher had hit his head

on it, which had rendered him unconscious. (Id. at 59-60).

       {¶20} Sergeant Litsey still did not believe that Baughman was telling the

truth, so he continued his investigation, and interviewed her a second time on

September 30, 2008, which he recorded. (Id. at 64). Sergeant Litsey started the

recorded interview by telling Baughman that they had already arrested Jones for

felonious assault and wanted to clarify a few things with her original story.

(State’s Ex. 4). Baughman told them that it all started on Saturday morning when

Jones and Christina had gone to the hospital because Jones was having problems

with his kidney stones. (Id.). When they got home around 1p.m., one of the other



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kids told Jones that Christopher had been misbehaving and was being difficult.

(Id.). This caused Jones to get angry and he start screaming at Christopher. (Id.).

Then later, around dinnertime, Baughman said that Jones yelled at Christopher for

forgetting to take a stool with him to brush his teeth. (Id.). Jones started pushing

Christopher through the hallway into the bathroom, and when Christopher was

done brushing his teeth, Baughman said that Jones made him carry the stool back

and kept pushing Christopher towards the front room.          (Id.).   At one point,

Baughman said that Jones had pushed Christopher so hard that Christopher fell

and hit his head on the stool, and that Jones still made Christopher get up and

squat for about ½ hour because he had been too slow. (Id.).

       {¶21} At this point in the interview, Baughman said that Christopher had

been fine on Saturday and that he went to bed and got up around 10:30-11:00 a.m.

on Sunday and was acting normal. (Id.). Baughman said that Christopher tried to

make his bed, but Jones got angry at him again and pushed him out of the

bedroom and that it had looked like Christopher had hit his head on some kind of

foot peg. (Id.). Despite this incident, Baughman said Christopher was not hurt

and that Jones made Christopher a bowl of cereal; however, he got angry at

Christopher again because he was not eating it fast enough, so Jones started

shoving the food into Christopher’s mouth.        (Id.).   After giving the rest of

Christopher’s cereal to the dog, Baughman said that Jones swung Christopher into



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the couch and made him sit there with his hands in his lap; however, Christopher

kept fussing with his hands, and Jones spanked him with the paddle.            (Id.).

Baughman said that Jones started to pick Christopher up again by the back of his

neck, but this time Christopher threw himself down and hit his head on the back of

the stool where there was not any padding. (Id.). At this point, Baughman said

that Christopher was acting dazed and wobbled around, so Jones decided to give

Christopher a cold bath. (Id.). Baughman said that she did not personally see the

bath, but that when Jones brought Christopher back out, Christopher was

unresponsive. (Id.). While she was dressing Christopher from his bath, Jones told

her that Christopher was playing possum and to let him take a nap; however,

Baughman said that after a few hours Christopher was still sleeping, which she

thought was odd. (Id.).

       {¶22} Around 2:30 p.m., Baughman said that she started asking Jones if

they could take Christopher to the hospital, but Jones kept telling her “no” and that

Christopher was just tired and to let him sleep. (Id.). Later that night, Baughman

said that she had taken her pills, which had “knocked her out,” and that Jones

decided to take Christopher, who had still been lying on the couch, to his bed.

(Id.). When Baughman woke up on Monday she and Christina decided to go

check their debit cards, and it was at this time when Christina made the phone call

to Call-A-Nurse. (Id.). Before they left Jones told them to lie about Christopher



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and to say that Christopher had been playing in the woods with some kids and had

fallen from a tree because Jones did not want to get involved again with Children

Services and told the women that he was not going to go to prison. (Id.).

      {¶23} At this point in the interview, Sergeant Litsey confronted Baughman

about her version of this story, stating that not only was it different from her

previous versions at the hospital, but that it was different from the version Jones

had told the police. (Id.). Baughman replied that while Christopher had hit his

head on the side of the couch on Saturday, and that this had knocked him out, he

had recovered on Sunday because she said he had been walking around and

playing. (Id.). She said that it was not until Christopher kept playing around and

dropping his blanket on Sunday that Jones picked Christopher up again and

dropped him resulting in Christopher hitting his head again and rendering him

unconscious.   (Id.).   After that incident, for the rest of the day on Sunday,

Baughman said that Christopher was wheezing, making “cooing” and snoring

noises, and sometimes she said Christopher would talk, but she could not make out

what he was saying. (Id.). Baughman said that Jones decided to give Christopher

a bath to try to wake him up, but that after the bath Baughman said that

Christopher looked like a “cooked noodle” and he never woke up and just laid on

the couch snoring.




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      {¶24} Baughman was also confronted again about the multiple bruises over

Christopher’s body, which suggested to the police that Christopher had received a

severe beating. (Id.). Baughman said that no one had ever told her about the

bruises, but then admitted that Christopher had been hit with a piece of molding

for about a week, and that she had personally observed Jones hit Christopher with

the molding on Saturday and Sunday. (Id.). In regards to the small paddle,

Baughman said that Jones had been using it on Christopher ever since Christopher

and Baughman had moved in with Jones and Christina, which was about four

months prior to the incident. (Id.). And with respect to the stitches found on

Christopher’s head, Baughman said that while she had been at a doctor’s

appointment, Jones had told her that Christopher had fallen out of a tree and cut

the back of his head. (Id.). Baughman said that she had watched while Jones took

a regular sewing needle and thread (not a suture kit) and stitched the wound on the

back of Christopher’s head. (Id.).

      {¶25} By the end of the interview, Baughman acknowledged that it may

have been Saturday (and not Sunday) when Christopher had hit his head causing

him to become unconscious, and that he had been unconscious for more than a day

before they made the call to Call-A-Nurse. (Id.).

      {¶26} When asked why she had not told her doctor about the beatings

when she had been at her doctor’s appointment, Baughman replied “I don’t



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know.” (Id.). Moreover, when asked why she had let Jones hit Christopher,

Baughman replied by saying that she could not control Christopher herself and had

asked Jones to help get Christopher to respect her. (Id.). In addition, Baughman

said that she had lied to the police because Jones had threatened them multiple

times. (Id.). Ultimately, Baughman admitted that “just about every other day

Christopher received some kind of beating.” (Id.). And, when asked for the last

time why she had let this happen for so long Baughman replied, “I don’t know.”

(Id.).

         {¶27} Finally, Detective Sergeant Brett Lee of the Allen County Sheriff’s

Department testified that he was the on-scene commander for the investigation,

and that while he had been at the residence one of the children handed him a

broken paddle shaped piece of brown wood, which had “Old Betsy” carved on it.

(Id. at 80); (State’s Ex. 10). In addition, Detective Sergeant Lee stated that he also

recovered a piece of brown molding about 29 inches by 2¼ inches. (Id. at 84);

(State’s Ex. 11). Ultimately, Detective Sergeant Lee discovered that Jones had

used these items, as disciplinary tools, on Christopher, and that Christopher’s body

had corresponding injuries that matched the shape on the paddle with the holes on

the back side of his legs and buttocks. (Id. at 85, 88). Moreover, he stated that in

response to the initial explanation given to him by Baughman – that Christopher

had fallen out of a tree – he and other law enforcement officers went out to a small



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wooded area out behind the residence, photographed everything around the scene,

and collected what they thought was potential evidence. (Id. at 89). It was later

determined that the story that Christopher had fallen out of a tree was not true, and

that Baughman had lied in order to keep Jones from getting into trouble; however,

Detective Sergeant Lee did not know whether Jones had coerced Baughman into

lying for him. (Id. at 90, 93-94).

       {¶28} First, with respect to the child endangerment charge, Baughman

argues that when reviewing the record it is hard to determine that she knew Jones

was dangerous and that she disregarded this knowledge and violated her duty of

care to Christopher. We disagree. A parent has a duty to protect her child from

physical abuse, and Baughman violated that duty by taking no action to prevent

the abuse despite knowledge of the abuse. State v. Hlavsa (June 15, 2000), 8th

Dist. No. 76220 (failure to protect a child from physical abuse can be child

endangering); State v. Legg (1993), 89 Ohio App.3d 184, 187, 623 N.E.2d 1263

(child endangering conviction supported by sufficient evidence when parent with

knowledge that son being beaten did nothing). The record is full of examples

where Baughman violated her duty to protect Christopher from abuse and

recklessly created a substantial risk of harm to Christopher. It is undisputed that

Baughman was the mother and legal custodian of Christopher, and that

Christopher died as a result of blunt force trauma to his head. (June 29, 2009 Tr.



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at 2-4); (State’s Ex. 2). Moreover, she admitted in her second interview with the

police that she had known that Jones had been beating Christopher for about four

months, since the time when they first moved in with Jones and Christina. She

knew that Jones had not only used an old wooden paddle on Christopher, but had

also at times used a smaller, thinner piece of molding. In addition to the blunt

force trauma to Christopher’s head (which ultimately caused his death), the State’s

exhibits of Christopher’s body at the hospital depict multiple bruises that

correspond to the molding and paddle instruments testified to by Baughman.

(State’s Exs. 5, 10, 11).

       {¶29} Baughman admitted that she had the opportunity to tell someone that

Jones was physically abusing Christopher when Jones was not present. She had an

opportunity to tell her doctor during her appointment, but she said that she “didn’t

know” why she did not reveal this information. Instead when she came home

from her doctor’s appointment, she was told by Jones that Christopher had fallen

out of a tree and as a result had cut his head. Again, instead of taking some kind

of action to protect Christopher, Baughman allowed Jones to stitch up

Christopher’s cut using a regular needle and thread.

       {¶30} Finally, the last incident, which lasted at least two days, Baughman

said that she watched Christopher get yelled and screamed at, and pushed and

thrown around by Jones.      Baughman said that she was present during these



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physical and verbal assaults, but again did not take any action to protect

Christopher, and as a result, eventually one of Jones’ physical acts caused

Christopher serious physical harm when he hit his head and was rendered

unconscious. In addition to not taking any action to protect Christopher from

Jones’ physical and verbal abuse, Baughman also did not take any action to protect

Christopher when he was unconscious. Baughman said that for most of Sunday

Christopher was wheezing, making “cooing” and snoring noises, that sometimes

Christopher would talk, but she could not make out what he was saying, and that

he looked like a “cooked noodle” and he never woke up again. Baughman did say

that she told Jones that she thought Christopher needed to go to the hospital, but

Jones told her “no” and that Christopher just needed to sleep. Baughman even

thought it was odd that Christopher had been sleeping most of the day on Sunday,

but it was not until Monday morning, a day later, when an attempt was made to get

Christopher medical help when Christina and Baughman made a phone call to the

Call-A-Nurse hotline. Despite this call and the subsequent medical treatment,

Christopher died as a result of the blunt force trauma to his head.

       {¶31} Therefore, after reviewing all of the evidence in a light most

favorable to the State, we believe it was reasonable for the trial court as the trier of

fact to have concluded that Baughman recklessly created a substantial risk to

Christopher’s health and safety by violating a duty of care, protection or support,



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and that the violation resulted in serious physical harm to Christopher; and

therefore, that the essential elements of child endangerment were proven beyond a

reasonable doubt. Moreover, we cannot say that the trial court lost its way in

considering and weighing the evidence presented. Thus, we find that there was

sufficient evidence to support the child endangerment finding of guilt and that the

finding was not against the manifest weight of the evidence.

      {¶32} With respect to the obstructing justice charge, Baughman claims that

there was insufficient evidence to show that she purposefully lied to law

enforcement. In particular she claims that none of the law enforcement officers

believed her story from the beginning, and that it is unclear from the record

whether she had lied to prevent Jones’ apprehension or whether she was trying to

protect herself from Jones because she was scared of Jones. We disagree. Even

though the law enforcement officials had suspicions with Baughman’s initial

explanation of Christopher’s injuries, that he had fallen out of a tree, they still

investigated the situation. They went out to the wooded area in question, took

pictures of the scene, and gathered what they thought were important pieces of

physical evidence. Even though law enforcement was not substantially delayed

from discovering that Jones was the primary suspect, Baughman knew from the

beginning what had been going on between Christopher and Jones; moreover,

Baughman knew that Jones had asked them to lie because he did not want to go



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back to prison, but still chose to lie to not only the law enforcement officials, but

to the paramedics and doctors who were treating her son.

       {¶33} Baughman claims that the State failed to prove that her lies about

Christopher’s injuries were told with the purpose to prevent Jones’ apprehension.

It is difficult to prove a person’s subjective mental state through direct evidence,

thus “[i]t must ordinarily be proven by reference to the surrounding facts and

circumstances.” State v. Volgares (May 17, 1999), 4th Dist. No. 98CA6, at *5,

quoting State v. Clark (1995), 101 Ohio App.3d 389, 405, 655 N.E.2d 795. See,

also, State v. Austin (1976), 52 Ohio App.2d 59, 68, 368 N.E.2d 59 (intent is a

“question of fact that can be inferred from what the defendant did or said”). While

it may have been true that Baughman was scared of Jones, we believe that it could

have been inferred from the evidence that her real intent was to prevent Jones’

apprehension. There were several times when Baughman had the opportunity to

tell someone the real story when Jones was not around. She could have told Chief

Skilliter when he was helping her into the ambulance; she could have told the

doctor who was treating her son at the hospital; and, she could have told Sergeant

Litsey when he was interviewing her at the hospital. In none of those interactions

was Jones present, but Baughman still did not reveal that it had been Jones that

had beaten Christopher and caused his injuries.




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Case No. 1-09-38


       {¶34} Moreover, we note that even when she was told by law enforcement

officials that Jones had been arrested, Baughman still managed to tell versions of a

story that were less damaging to Jones. For example, in the beginning of her

second interview, Baughman told the police that Christopher had not become

unconscious until Sunday late afternoon, but later admitted that the severe hit had

happened much earlier and that Christopher had been left unconscious for a much

longer period of time. Finally, Baughman initially told the police that, even

though Jones had lifted Christopher into the air, it had been Christopher who had

dropped himself out of Jones’ grasp and hit his head on the back of the stool where

it was not padded and became disoriented and later became unconscious.

Nevertheless, Baughman later admitted that it was Jones that had caused

Christopher to become unconscious by pushing him into the stool causing

Christopher to hit his head.

       {¶35} Overall, from this evidence, we believe that it was reasonable for the

trial court as the trier of fact to have concluded that Baughman had lied to the law

enforcement officers about the real cause of Christopher’s injuries in an effort to

cover-up Jones’ involvement and to prevent his apprehension; and therefore, the

trier of fact could have concluded that the essential elements of obstructing justice

were proven beyond a reasonable doubt. Furthermore, we cannot say that the trial

court lost its way in considering and weighing the evidence presented. Thus, we



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Case No. 1-09-38


find that there was sufficient evidence to support the obstructing justice finding of

guilt and that the finding was not against the manifest weight of the evidence.

       {¶36} Baughman’s first and second assignments of error are, therefore,

overruled.

                       ASSIGNMENT OF ERROR NO. III

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
       COUNSEL UNDER THE SIXTH AMENDMENT TO THE
       FEDERAL CONSTITUTION MADE APPLICABLE TO THE
       STATES BY THE FOURTEENTH AMENDMENT

       {¶37} In her third assignment of error, Baughman argues that she was

denied effective assistance of trial counsel when her attorney waived her right to a

jury trial and her case proceeded to a bench trial.

       {¶38} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

       {¶39} In order to show counsel’s conduct was deficient or unreasonable,

the defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment.         Strickland, 466 U.S. at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide


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Case No. 1-09-38


range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d

673, 675, 693 N.E.2d 267.         Tactical or strategic trial decisions, even if

unsuccessful, do not generally constitute ineffective assistance. State v. Carter

(1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. Rather, the errors complained of

must amount to a substantial violation of counsel’s essential duties to his client.

See State v. Bradley (1989), 42 Ohio St.3d 136, 141-42, 538 N.E.2d 373, quoting

State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623. Prejudice results

when “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Bradley, 42 Ohio

St.3d at 142, citing Strickland, 466 U.S. 691. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Bradley, 42 Ohio

St.3d at 142; Strickland, 466 U.S. at 694.

       {¶40} Here, Baughman claims that she was denied effective assistance of

counsel when her trial attorney waived her right to a jury trial, which resulted in

“collateral consequences” and prejudiced her.         (Appellant’s Brief at 11).

However, whether or not to waive jury is a matter of trial strategy, and even if we

do not agree with the wisdom of trial counsel’s decision, debatable strategic and

tactical decisions may not form the basis of a claim for ineffective assistance of

counsel. State v. Campbell, 6th Dist. No. L-05-1284, 2006-Ohio-4435, ¶20, citing

State v. Phillips (1995), 74 Ohio St.3d 72, 85, 656 N.E.2d 643. See, also, State v.



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Case No. 1-09-38


Young, 4th Dist. No. 07CA3195, 2008-Ohio-4752, ¶50; State v. Peterson, 10th

Dist. No. 07AP-303, 2008-Ohio-2838, ¶56. In this particular case, given the

severity of the injuries to the victim, the age of the victim, and the nature of the

relationship between the defendant and the victim, we believe that it was a

reasonable decision by Baughman’s trial counsel to waive trying the case to a jury

and to try the matter to the court.

       {¶41} Additionally, Baughman briefly mentions that the colloquy given by

the trial court in discussing her waiver of her right to a jury trial was somehow

insufficient and should have been more explicit in assuring that she knew the full

ramifications of waiving her right to a jury. We disagree. At the pre-trial hearing,

the following conversation occurred:

       [Defense Counsel]: We are here today to enter in writing and on
       the record a waiver of our – of jury trial and requesting this
       matter be tried to the court.
       The Court: Miss Baughman, is this your understanding?
       Miss Baughman: Yes.
       The Court: You’ll have to speak up.
       Miss Baughman: Yes, sir.
       The Court: You understand that you have a constitutional right
       to a trial by jury and to determine this case – if it go to trial by
       jury that it’d be twelve (12) individuals that would hear this case
       and decide guilt or innocence. You understand?
       Miss Baughman: Yes, sir.
       The Court: And you understand that you’ll be waiving trial by
       jury and have this matter tried by the court?
       Miss Baughman: Yes, sir.
       The Court: The Court has prepared a waiver of jury. And the
       Court has before it a waiver of jury that says, “I, Jessica
       Baughman, defendant in the above case, hereby voluntarily


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Case No. 1-09-38


      waive or relinquish my right to a trial by jury and elect to be
      tried by a judge in – of the court in which said cause may be
      pending. I fully understand under the laws of this state, I have a
      constitutional right to a trial by jury.” And the trial to the court
      would be scheduled for the same date that had been previously
      scheduled, which would be June 29th. And there’s a signature of
      Jessica A. Baughman. Is this your signature?
      Miss Baughman: Yes, sir.
      The Court: And did you execute this waiver of jury here today
      in open court?
      Miss Baughman: Yes, sir.
      The Court: Very well. The waiver will be filed with the clerk’s
      office. It’d be so ordered. And this matter shall proceed to a
      trial to court on Monday, June the 29th at 8:45.

(May 27, 2009 Tr. at 1-3); (Doc. No. 38). Not only did the trial court make sure

on the record that Baughman understood her constitutional right to a jury, but

Baughman also signed a written waiver, further demonstrating that she had been

notified about her right to a jury that she was foregoing. We find that the colloquy

and the written waiver were sufficient to notify her about the jury trial right that

she was foregoing. State v. Barnett, 1st Dist. No. C-060950, 2007-Ohio-4599, ¶6

(finding that defendant’s execution of a written jury trial waiver and guilty plea

form, as well as her on-the-record colloquy with the trial court about these

documents, was sufficient to notify her about the jury trial right she was

foregoing).

      {¶42} Overall, besides Baughman’s general assertions that her trial counsel

was ineffective, Baughman has failed to specifically show how her trial counsel’s

performance was deficient or how she was prejudiced because her case was tried


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Case No. 1-09-38


to the court.    Therefore, we find that Baughman was not denied effective

assistance of counsel.

       {¶43} Baughman’s third assignment of error is, therefore, overruled.

                         ASSIGNMENT OF ERROR NO. IV

       THE FEDERAL SUPREME COURT CASE OF OREGON V
       ICE [sic] HAS EFFECTIVELY OVERRULED STATE V
       FOSTER [sic] REQUIRING TRIAL COURTS TO MAKE
       2929.14 DETERMINATIONS

       {¶44} In her last assignment of error, Baughman argues that the United

States Supreme Court decision in Oregon v. Ice (2009) __ U.S. __, 129 S.Ct. 711,

172 L.Ed.2d 517, overruled the Ohio Supreme Court’s decision in State v. Foster

(2006), 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.             As a result,

Baughman claims that the old sentencing scheme, which required judges to make

specific findings before imposing consecutive sentences and which was overruled

by the Ohio Supreme Court in Foster, has now been re-established by Oregon v.

Ice, and thus she is entitled to a new sentencing hearing under the old sentencing

scheme.

       {¶45} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, the Ohio Supreme Court declared that those portions of the felony sentencing

statutes that required judicial fact-finding before the trial court could impose a

prison sentence were violations of the Sixth Amendment pursuant to Blakely v.

Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and Apprendi


                                       -27-
Case No. 1-09-38


v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. 2006-

Ohio-856, at ¶100. Subsequently, the Supreme Court excised those provisions that

related to judicial fact-finding from the sentencing statutes, specifically including

R.C. 2929.14(E)(4) and R.C. 2929.41(A). Id. at ¶97. As a result of the excision of

those unconstitutional provisions, the Court ultimately held that, “[t]rial courts

have full discretion to impose a prison sentence within the statutory range and are

no longer required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences.” Id. at paragraph seven of the

syllabus.

       {¶46} Recently, in Oregon v. Ice, the United States Supreme Court

examined an Oregon statute that required judges to find certain facts before

imposing consecutive rather than concurrent sentences. 129 S.Ct. at 714-20. The

Supreme Court upheld the constitutionality of the Oregon statute and found that it

did not violate the Sixth Amendment concerns set out under Apprendi and Blakely.

Id. at 719.   Ultimately, the Supreme Court stated that, in light of historical

practices and the right of states to administer their criminal justice systems, the

Sixth Amendment did not prevent states from allowing judges, rather than juries,

to make any finding of facts necessary to the imposition of consecutive, rather

than concurrent, sentences. Id. at 716-20.




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Case No. 1-09-38


       {¶47} This Court recently addressed this exact issue in State v. Blackburn,

3d Dist. No. 5-09-18, 2009-Ohio-5902, ¶¶6-11, appeal accepted for review in

State v. Blackburn, 124 Ohio St.3d 1505, 2010-Ohio-799, __N.E.2d __. We stated

that several other districts have acknowledged the Oregon v. Ice decision, but have

found that until the Ohio Supreme Court fully reviews and ultimately reverses its

Foster decision, Foster remains binding upon this Court. State v. Robinson, 8th

Dist. No. 92050, 2009-Ohio-3379; State v. Franklin, 10th Dist. No. 08AP-900,

2009-Ohio-2664, appeal accepted for review in State v. Franklin, 123 Ohio St.3d

1422, 2009-Ohio-5340, 914 N.E.2d 1063; State v. Krug, 11th Dist. No. 2008-L-

085, 2009-Ohio-3815; State v. Miller, 6th Dist. No. L-08-1314, 2009-Ohio-3908.

Moreover, we noted that recently in State v. Elmore, 122 Ohio St.3d 472, 2009-

Ohio-3478, 912 N.E.2d 582, the Ohio Supreme Court briefly discussed Oregon v.

Ice. While the Court did not fully address the full ramifications of Oregon v. Ice,

because neither party had briefed the issue before oral argument, in its affirmance

of the trial court’s authority to impose consecutive sentences on the defendant, the

Ohio Supreme Court stated that “Foster did not prevent the trial court from

imposing consecutive sentences; it merely took away a judge’s duty to make

findings before doing so.” Id. at ¶36. Thus, although the Court has not yet fully

analyzed the implications of Oregon v. Ice as it relates to Foster, it appears that it

has still continued to follow the principles set forth in Foster. See State v. Crosky,



                                        -29-
Case No. 1-09-38


10th Dist. No. 09 AP 57, 2009-Ohio-4216, at ¶8. Therefore, as we stated in

Blackburn, unless the Ohio Supreme Court fully addresses Oregon v. Ice and

overrules its decision in Foster, Foster remains binding law in the state of Ohio.

Blackburn, 2009-Ohio-5902, at ¶¶6-11

       {¶48} Baughman’s fourth assignment of error is, therefore, overruled.

       {¶49} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, J., concurs.

/jlr


ROGERS, J., concurring separately.

       {¶50} I concur with the opinion of the majority. I write separately only to

remain consistent with my previously stated position on stipulations in criminal

cases. The majority notes that the parties in this case stipulated to certain matters

which included elements of the charged offenses. As I stated in my dissent in

State v. McCullough, 3d Dist. No. 12-07-09, 2008-Ohio-3055, ¶¶44-58, I believe it

is necessary for a trial court to fully comply with the requirements of Crim.R. 11

prior to accepting or admitting a stipulation of the parties which includes an

element of a criminal offense. I remain convinced in that opinion.




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Case No. 1-09-38


       {¶51} That being said, a review of the record in this case demonstrates that

evidence was presented during the trial on each element of the offenses.

Therefore, the fact that the parties attempted to stipulate to various issues in this

case is immaterial, and I join in affirming the judgment of the trial court.

jlr




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