[Cite as State v. Hunt, 2020-Ohio-1124.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                    Hon. Patricia A. Delaney, J.
                                               Hon. Craig R. Baldwin, J.
 -vs-
                                               Case No. 2019 AP 07 0023
 KOLT HUNT

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Tuscarawas County
                                               Court of Common Pleas, Case No. 2018
                                               CR 07 0231


 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       March 23, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 AMANDA K. MILLER                              PATRICK J. WILLIAMS
 Assistant Prosecuting Attorney                300 E. Third Street, Suite #1
 Tuscarawas County                             Dover, Ohio 44622
 125 East High Avenue
 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2019 AP 07 0023                                                2


Hoffman, P.J.
       {¶1}   Defendant-appellant Kolt Hunt appeals his convictions and sentence

entered by the Tuscarawas County Court of Common Pleas, on two counts of child

endangering, following a jury trial. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   On July 13, 2018, the Tuscarawas Grand Jury indicted Appellant on one

count of child endangering, in violation of R.C. 2919.22(B)(1) and (E)(2)(d), a felony of

the second degree; and one count of child endangering, in violation of R.C. 2919.22(A)

and (E)(2)(c), a felony of the third degree. The victim in both counts was the 23 month

old son of Angel Kennedy, Appellant’s live-in girlfriend.           Appellant appeared for

arraignment on August 3, 2018, and entered a plea of not guilty to the Indictment.

       {¶3}   The matter proceeded to trial on May 7, and 8, 2019.              The following

evidence was adduced at trial.

       {¶4}   At approximately 1:30 p.m. on Wednesday, May 16, 2018, Angel Kennedy

delivered her 23 month old toddler (“the Child”) to All About Children Daycare. Kennedy

typically brought the Child to the daycare around this time each day. Appellant picked up

the Child around 6 p.m. each day. When Kennedy and the Child arrived, the Child

immediately reached for Donna Dickey, the toddler room teacher, and went right into her

arms. Dickey testified the Child’s behavior was unusual as “[h]e always cried and clung

to his mom usually when she was dropping him off.” Tr. at 67. Kennedy advised Dickey

the Child was hurt, and lifted the back of his shirt to expose a bruise. When Dickey

expressed concerns about the painfulness of the bruise, Kennedy responded, “yeah he

fell, he’s okay, he’s clumsy.” Id. at 68. Kennedy then left.
Tuscarawas County, Case No. 2019 AP 07 0023                                             3


      {¶5}   After her assistant arrived to cover the room during her lunch break, Dickey

took the Child to the daycare office. She removed his shirt and observed multiple bruises.

Upon further examination, Dickey found bruising on the Child’s face, neck, and shoulder

as well as the outside and inside of the Child’s right ear. Because she suspected the

injuries were the result of abuse and because she is a mandated reporter, Dickey

contacted Tuscarawas County Department of Jobs and Family Services (“TCJFS”).

Dickey described the Child as “very clingy and wanted held.” Id. at 72. She recalled the

Child cried when she changed his diaper, which was unusual.

      {¶6}   Mandy Prosser, the intake supervisor at TCJFS, testified the Agency

received a call from All About Children on May 16, 2018, in regards to a small child with

marks and bruises on his body. Prosser proceeded to the daycare and spoke with Dickey,

who was holding the Child. Upon Prosser’s request, Dickey removed the Child’s shirt.

Prosser observed marks over his entire back and immediately contacted the sheriff’s

office. Prosser described the marks as “severe” and knew, based upon the Child not yet

being two years old, “it was not accidental injuries.” Id. at 80. While she waited for an

officer to respond, Prosser documented the Child’s injuries. At trial, Prosser described

the injuries depicted in the photographs she had taken. Prosser noted a portion of the

Child’s back was swollen. Prosser relayed the situation to the attorney for TCJFS, who

immediately sought and received an ex-parte order for immediate custody. The Child

was taken to Akron Children’s Hospital later that day.

      {¶7}   Chief David Warrick of the Strasburg Police Department was dispatched to

All About Children in New Philadelphia on May 16, 2018, after the department received a

call from Mandy Prosser. Upon his arrival, Chief Warrick met with Mrs. Pruett, the
Tuscarawas County, Case No. 2019 AP 07 0023                                               4


director; Donna Dickey; and Prosser. Dickey brought the Child into the room, and showed

his injuries to Chief Warrick. Chief Warrick took digital photographs of the injuries. Chief

Warrick spoke with Angel Kennedy, who had returned to the daycare.                Appellant

subsequently arrived at the daycare. Chief Warrick advised Appellant he needed to

speak with him and instructed Appellant to meet him at the police department.

       {¶8}   Chief Warrick and Patrolman Burton interviewed Appellant.           Appellant

admitted he had hit or smacked the Child on the back three of four times two days earlier.

When Appellant was shown pictures of the Child’s injuries, he indicated where his hand

was on the Child’s back when he struck the Child.

       {¶9}   Dr. Bruce Benton, a pediatric emergency medicine fellow at Akron

Children’s Hospital, testified he examined the Child on May 16, 2018, when the Child was

presented at the emergency room. During his examination of the Child, Dr. Benton

observed what initially appeared as a very large bruise on the Child’s back, but was

“probably multiple blows because there are multiple linear injuries, which would not be

consistent with just one injury.” Tr. at 109. Dr. Benton added, “And then the ear is

probably another blow of some sort in addition to the one on the forehead.” Tr. at 109-

110. Dr. Benton explained it is not very common for a child the age of the Child “to speak

much, if at all, especially with a new person.” Tr. at 110. Most children of that age are

not able to articulate the level of pain he or she is experiencing or explain how an injury

occurred.

       {¶10} Dr. Benton ordered a head CT, a skeletal survey, and blood tests to

determine if there was internal bleeding and/or injury to the liver. The doctor explained

he ordered the tests because the force required to cause the amount of bruising the Child
Tuscarawas County, Case No. 2019 AP 07 0023                                               5


sustained could also cause internal injuries. The tests revealed the Child did not have

any fractures or internal injuries. Dr. Benton determined the Child experienced non-

accidental trauma consistent with child abuse. Dr. Benton unequivocally stated, when

the multiple blows were inflicted upon the Child, the Child “absolutely” would have felt

pain, and the Child “most likely” would have been uncomfortable on May 16, 2018. The

doctor noted a twenty-three month old children do not always cry when they are in pain

and do not always show outward signs they are in pain. Dr. Benton indicated the bruising

around the Child’s ear could not be self-inflicted. A child pulling on his ear due to an ear

infection could not cause the level of bruising the Child had on his ear.

       {¶11} After hearing all of the evidence and deliberating, the jury found Appellant

guilty of both counts of child endangering.

       {¶12} It is from his convictions and sentence Appellant appeals, raising the

following assignments of error:




              I. THE VERDICT OF THE JURY WAS AGAINST THE EVIDENCE

       AS THERE WAS INSUFFICIENT EVIDENCE OF SERIOUS PHYSICAL

       HARM.

              II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

       COUNSEL.

              III.   THE   PROSECUTOR          COMMITTED        PROSECUTORIAL

       MISCONDUCT IN CLOSING ARGUMENT WHICH EFFECTIVELY

       DENIED DEFENDANT DUE PROCESS OF LAW.
Tuscarawas County, Case No. 2019 AP 07 0023                                                6


                                                 I.

       {¶13} In his first assignment of error, Appellant challenges his convictions as

against the manifest weight and based upon insufficient evidence.

       {¶14} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “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.”

       {¶15} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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. Thompkins, supra at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶16} “The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
Tuscarawas County, Case No. 2019 AP 07 0023                                                      7


(1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge

the credibility of the witnesses.

       {¶17} Appellant was convicted on one count of child endangering, in violation of

R.C. 2919.22(A) and (E)(2)(c), which provide:




              No person, who is the parent, guardian, custodian, person having

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

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

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

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

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

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

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

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

              (E)(2) * * * (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.



       {¶18} Appellant was also convicted on one count of child endangering, in violation

of R.C. 2919.22(B)(1) and (E)(2)(d), which provide:
Tuscarawas County, Case No. 2019 AP 07 0023                                                8


             (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:

             Abuse the child.

             **

             (E)(2) * * * (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.



       {¶19} Appellant argues the state failed to prove the essential element of “serious

physical harm”. “Serious physical harm” is defined by R.C. 2901.01(A)(5) as any of the

following:



             Any mental illness or condition of such gravity as would normally

       require hospitalization or prolonged psychiatric treatment;

             Any physical harm that carries a substantial risk of death;

             Any physical harm that involves some permanent incapacity,

       whether partial or total, or that involves some temporary, substantial

       incapacity;

             Any physical harm that involves some permanent disfigurement or

       that involves some temporary, serious disfigurement;
Tuscarawas County, Case No. 2019 AP 07 0023                                             9


             Any physical harm that involves acute pain of such duration as to

      result in substantial suffering or that involves any degree of prolonged or

      intractable pain.



      {¶20} “The degree of harm that rises to the level of ‘serious’ physical harm is not

an exact science, particularly when the definition includes such terms as ‘substantial,’

‘temporary,’ ‘acute,’ and ‘prolonged.’” State v. Irwin, 7th Dist. Mahoning No. 06MA20,

2007-Ohio-4996. Under certain circumstances, a bruise can constitute serious physical

harm because a bruise may satisfy the statutory requirement for temporary serious

disfigurement. State v. Worrell, 10th Dist. Franklin No. 04AP-410, 2005-Ohio-521, at ¶

47–51, reversed on other grounds by In re Criminal Sentencing Statutes Cases, 109 Ohio

St.3d 313, 847 N.E.2d 1174, 2006-Ohio-2109; see also, State v. Payne, 8th Dist.

Cuyahoga 76539 (July 20, 2000) [bloody cut, swollen eye are temporary, serious

disfigurement]; State v. Plemmons–Greene, 8th Dist. Cuyahoga No. 92267, 2010-Ohio-

655, [black eye, bruising, swelling to right side of face, scratches on neck, and bruising

on thighs and buttocks].

      {¶21} Upon review of the evidence as set forth in the Statement of the Case and

Facts, supra, as well as the testimony and physical evidence presented at trial, we find

Appellant's convictions were not against the manifest weight and were based upon

sufficient evidence. Mandy Prosser noted the extensive bruising and swelling on the

Child’s back and ear despite two days having passed since the beating Appellant

admitted to inflicting. Donna Dickey testified the Child cried when she placed him on his

back to change his diaper. Dickey also described the Child as “clingy”, which was not his
Tuscarawas County, Case No. 2019 AP 07 0023                                                10


usual demeanor. Tr. at 72. Dr. Benton indicated the force necessary to cause the level

of bruising he observed on the Child could cause internal injuries.              Dr. Benton

unequivocally stated, when the multiple blows were inflicted upon the Child, the Child

“absolutely” would have felt pain, and the Child “most likely” would have been

uncomfortable days later on May 16, 2018. Although the Child could not verbalize the

level or duration of the pain he experienced, the trier of fact heard ample evidence upon

which it could find the injury caused serious physical harm to the Child.

       {¶22} Based upon the foregoing, Appellant’s first assignment of error is overruled.

                                             II.

       {¶23} In his second assignment of error, Appellant contends trial counsel was

ineffective for failing to object to Dr. Benton’s testimony regarding the pain the Child would

have experienced during and after Appellant beat him. Appellant submits Dr. Benton’s

testimony was merely the opinion of a lay witness; therefore, was inadmissible pursuant

to Evid. R. 701. We disagree.

       {¶24} Our standard of review for ineffective assistance claims is set forth in

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

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
Tuscarawas County, Case No. 2019 AP 07 0023                                               11


of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

       {¶25} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio

Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189

(1980).

       {¶26} Appellant argues Dr. Benton’s testimony should have been excluded under

Evid. R. 701. Evid. R. 701, which governs opinion testimony by lay witnesses, reads:



              If the witness is not testifying as an expert, the witness' testimony in

       the form of opinions or inferences is limited to those opinions or inferences

       which are (1) rationally based on the perception of the witness and (2)

       helpful to a clear understanding of the witness' testimony or the

       determination of a fact in issue.



       {¶27} During his direct testimony, Dr. Benton detailed his education, skill, training,

and experience as a pediatric emergency medicine doctor. Dr. Benton noted he has been
Tuscarawas County, Case No. 2019 AP 07 0023                                            12


practicing for ten years and actively participates in research and publication. Dr. Benton

described the protocols and tests he conducts to reach his diagnosis and the appropriate

treatment of a presenting child. Following this dialogue, the state asked Dr. Benton

whether the Child would have experienced pain when struck by Appellant as well as days

later when the Child was presented at the hospital. We find this testimony was rationally

based on Dr. Benton’s perception of the Child during treatment and also aided the jury in

determining a fact in issue regarding the charges of endangering children. As such, an

objection to this testimony would not have had a reasonable probability of being

sustained.

      {¶28} We find counsel’s performance did not fall below an objective standard of

reasonable representation nor was it violative of any of his or her essential duties to

Appellant. Accordingly, we overrule his second assignment of error.

                                               III.

      {¶29} In his final assignment of error, Appellant asserts the prosecutor committed

prosecutorial misconduct during closing arguments, which resulted in Appellant

effectively being denied due process.

      {¶30} “Prosecutors are afforded considerable latitude in closing argument.” State

v. Encarnacion, 10th Dist. Franklin No. 16AP-817, 2017-Ohio-5530, ¶ 9, citing State v.

Ballew, 76 Ohio St.3d 244, 255 (1996). “A prosecutor may comment on ‘ “what the

evidence has shown and what reasonable inferences may be drawn therefrom.” ’ ” Id.,

quoting State v. Lott, 51 Ohio St.3d 160, 165 (1990), quoting State v. Stephens, 24 Ohio

St.2d 76, 82 (1970), and citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶

159 (“A prosecutor may state an opinion if based on evidence presented at trial.”). See
Tuscarawas County, Case No. 2019 AP 07 0023                                               13


State v. McGuire, 3d Dist. Allen No. 1-13-47, 2015-Ohio-1887, ¶ 81 (“In closing

arguments, prosecutors are entitled to some latitude regarding what the evidence has

shown and the inferences that can be drawn.”), citing Ballew, supra at 255.

       {¶31} “The test regarding prosecutorial misconduct in closing arguments is

whether the remarks were improper and, if so, whether they prejudicially affected

substantial rights of the defendant.” Encarnacion, supra at ¶ 9, citing State v. Smith, 14

Ohio St.3d 13, 14 (1984). “A prosecutor’s isolated comments are not to be taken out of

context and given their most damaging meaning.” Id., citing State v. Noling, 98 Ohio St.3d

44, 2002-Ohio-7044, ¶ 94, citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct.

1868 (1974). “Instead, an appellate court must review a closing argument in its entirety

to determine whether prejudicial error occurred.” Id., citing Noling at ¶ 94, citing State v.

Frazier, 73 Ohio St.3d 323, 342 (1995).

       {¶32} During the state’s rebuttal closing argument, the Prosecutor remarked:



              And so I leave you with this. Imagine that those bruises are on your

       back. You’ve been sitting here for two days. Would your back be against

       the back of that chair? If your back looked like that, would you have slept

       on your back the past two nights? Would you be eating handfuls of Tylenol?

       If your back * * * If your back looked like that, would you be holding yourself

       still, trying not to move, trying not to flinch and cause a flash of pain. Now

       imaging [sic] if you were twenty-three months old. Thank you.



       {¶33} Tr. at 135-136.
Tuscarawas County, Case No. 2019 AP 07 0023                                            14


      {¶34} The trial court overruled defense counsel’s objection to the Prosecutor’s

remarks.

      {¶35} The trial court instructed the jury, in pertinent part:



             Evidence is all the testimony received from the witnesses, the

      exhibits admitted during trial, facts agreed to by counsel, and any facts

      which the court requires you to accept as true. Evidence may be direct or

      circumstantial or both. Direct evidence is the testimony given by a witness

      who has seen or heard the facts about which the witness testifies. It

      includes exhibits admitted into evidence during trial.          Circumstantial

      evidence is proof of facts or circumstances by direct evidence from which

      you may reasonably infer other related or connected facts which naturally

      and logically follow, according to the common experience of people. To

      infer or to make an inference is to reach a reasonable conclusion of fact

      which you may but are not required to make from other facts which you find

      have been established by direct evidence. * * * The evidence does not

      include the indictment, opening statements, or closing arguments of

      counsel. The opening statements and closing arguments are designed to

      assist you.



      {¶36} Tr. at 137-138.

      {¶37} We find the prosecutor’s comment was tantamount to asking the jurors to

place themselves in the shoes of the victim. We find such was improper. See, State v.
Tuscarawas County, Case No. 2019 AP 07 0023                                             15


Hart, 8th Dist. No 79564, 2002-Ohio-1084, *3. However, we find the prosecutor’s isolated

comment during closing argument did not prejudicially affect Appellant’s substantial rights

in light of all the evidence and the trial court’s admonition as to the limited purpose of

closing argument.

      {¶38} Appellant’s third assignment of error is overruled.

      {¶39} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.




By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur
