[Cite as State v. Medley, 2018-Ohio-1391.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105760




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       CHAD MEDLEY

                                                             DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-606620-A

        BEFORE:          Jones, J., Kilbane, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 12, 2018
ATTORNEY FOR APPELLANT

P. Andrew Baker
11510 Buckeye Road
Cleveland, Ohio 44104

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Kristin M. Karkutt
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

          {¶1} Defendant-appellant, Chad Medley, appeals his misdemeanor endangering

children conviction, that was rendered after a jury trial.   For the reasons stated below, we

affirm.

                             I. Procedural and factual history

          {¶2} Appellant is the father of the victim child (date of birth January 27, 2016).

His codefendant, C.B., is the mother of the child. In July 2016, appellant and mother

were jointly indicted in a two-count indictment after it was discovered that their child

suffered a subdural hematoma that was determined to be “non-accidental.”                Count 1

charged a second-degree felony endangering children count, and Count 2 charged a

third-degree felony endangering children count.        Both counts contained “furthermore”

clauses, alleging that the violations resulted in serious physical harm to the child.

          {¶3} The case against appellant and mother proceeded to a joint jury trial.    At the

conclusion of the presentation of the state’s case, the defendants moved for a Crim.R. 29

judgment of acquittal, which the trial court denied.           The defense rested without

presenting any witnesses and renewed its Crim.R. 29 motion, that was again denied.

          {¶4} After its deliberations, the jury found appellant not guilty of Count 1, but

guilty of a lesser included offense of Count 2, endangering children, a first-degree

misdemeanor; it found him not guilty of the “furthermore” clause associated with Count
2.   The trial court sentenced him to two years of community control sanctions. 1

Appellant now appeals, raising two assignments of error for our review, challenging the

sufficiency of the evidence and the weight of the evidence, respectively.

       {¶5} The following facts were adduced at trial.         As mentioned, the victim, who

was born on January 27, 2016, is appellant’s child. The child lived with appellant and

mother. From May 8, 2016, through May 15, 2016, the child was hospitalized for issues

relating to vomiting.    It was determined that he had esophageal reflux.          The child was

hospitalized again on May 22, 2016, because he was shaking and it was believed that he

may have had a seizure.       Maternal grandmother testified as to the events leading up to

the second hospitalization.

       {¶6} On the date of the hospitalization, grandmother went to her daughter and

appellant’s residence.    Appellant was not there at the time; mother was there with her

two children.    Mother asked grandmother if she would watch the children while she

(mother) went to the store, and grandmother agreed.         Initially, grandmother was playing

with the other child, but then went to check on the victim. Upon seeing the child, she

noticed that his eyes were “gurgitating” to the side, and that his head was a little swollen.

 Mother arrived home at about the same time grandmother was checking on the child,

and grandmother told her that something was wrong with him; mother called 9-1-1.

       {¶7} Grandmother testified that she frequently baby-sat the victim, and would


       Mother was found guilty in the same manner as appellant, and the trial court imposed the
       1



same sentence on her. She has not appealed, however, and thus this decision relates only to father.
usually do so at another daughter’s house, where other children would also be present.

She noticed when he had the vomiting issues, and she would inform mother and father

whenever it happened.       Grandmother testified that she never hurt the victim and never

witnessed anyone else abuse him either.2 She also testified that mother and father were

good parents.

       {¶8} Paternal grandfather also testified.       He had baby-sat the victim once, and

denied harming him. According to grandfather, appellant told him that the victim was a

“little sluggish” because of his vomiting issues. He also testified that mother and father

were good parents.

       {¶9} One of the paramedics who responded to mother’s 9-1-1 call, Brendan Dunn,

testified.   Mother appeared upset and concerned about the child, and told Dunn that the

child had been shaking for approximately one minute and was “acting funny.”                   The

child was lying on the floor, with mother next to him, and appeared postictal, meaning he

was acting like he had just had a seizure.      He tried to get a medical history of the child

from mother, but she did not provide any pertinent information. Dunn transported the

child to Rainbow Babies and Children’s Hospital. He also called 696-KIDS, a hotline

which certain professionals are legally obligated to call and make a report if they find

something out of the ordinary involving a child in Cuyahoga County.

       {¶10} Officer Christopher Gillard of the Cleveland police responded to the

       2
          Grandmother admitted that she had an 11-year-old conviction for aggravated assault and
theft. She also admitted that she had her own children removed from her custody due to neglect, but
testified that she was never accused of abusing her children.
hospital, where he saw the child in a hospital bed with a tube in his mouth and his eyes

swollen shut. After the officer consulted with the medical professionals and other law

enforcement officials, the decision was made to arrest appellant   and mother.

       {¶11} Lois Graham (“Graham”), a county social worker, was assigned to the case

while the child was in the hospital. She recommended that the child not return home to

appellant and mother upon his release from the hospital.    When he was released on June

17, 2016, he was immediately placed in foster care.     Graham visited the child in foster

care and testified that he was eating well, had gained weight, and was progressing.

       {¶12} A county child protection specialist was assigned to the case and also

testified. During her investigation, she spoke with appellant and mother, as well as

medical personnel, and did not learn any information that caused her to believe that there

was anyone else besides appellant and mother who could have caused injury to the child.

       {¶13} Detective Cynthia Bazilius (“Detective Bazilius”) of the Cleveland Police

Department’s sex crimes and child abuse unit was the lead detective on the case.        She

obtained a search warrant for appellant and mother’s house because, during the course of

her investigation, appellant informed her that he had kept a hat on the child’s head for two

or three days.   She executed the search warrant for the house and located the hat.

       {¶14} Dr. Lolita McDavid (“Dr. McDavid”), the Director of Child Advocacy

Protection at Rainbow Babies and Children’s Hospital, reviewed the results of an MRI

performed on the child. She also consulted with a neuroradiologist concerning the MRI

results. Dr. McDavid testified that the MRI showed that the child had bilateral subacute
subdural hematomas. A subdural bleed means that blood is between the brain and the

dura, which covers the brain. Bilateral means bleeding on both sides of the brain. Dr.

McDavid testified that the child’s subdural hematomas were subacute, meaning that the

injury was between 7 and 21 days old.

      {¶15} According to Dr. McDavid, a subdural hematoma can be caused by being hit

in the head or by shaking. She testified that if blood is seen behind the eyes it usually

means that the subdural hematoma was caused by a shaking motion. Bleeding was

found within the retinal scan taken in this case. Further, she found no evidence that the

injury was caused by blunt force trauma. Thus, Dr. McDavid opined that the child’s

injuries were the result of a shaking injury and the cause of the injuries was

non-accidental.



                                 II. Law and analysis

      {¶16} We consider appellant’s two assignments of error together; in the first

assignment he contends that the evidence was insufficient to support the conviction and in

the second assignment, he contends that the conviction was against the manifest weight of

the evidence.

      {¶17} 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, 678 N.E.2d 541 (1997), paragraph two of the syllabus. The Supreme Court of Ohio

delineated the role of an appellate court presented with a sufficiency of the evidence
argument in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus:

       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. * * *

       {¶18} Whether the evidence is legally sufficient is a question of law, not fact.

Thompkins at 386.     In determining the sufficiency of the evidence, an appellate court

must give “full play to the responsibility of the trier of fact fairly to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979).     Consequently, the weight of the evidence and the credibility of the

witnesses are issues primarily determined by the trier of fact. State v. Yarbrough, 95

Ohio St.3d 227, 767 N.E.2d 216 (2002), ¶ 79; State v. Thomas, 70 Ohio St.2d 79, 80, 434

N.E.2d 1356 (1982). A verdict will not be disturbed unless, after viewing the evidence

in the light most favorable to the prosecution, it is apparent that reasonable minds could

not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460,

484, 739 N.E.2d 749 (2001); Jenks at 273.

       {¶19} A manifest weight of the evidence claim requires a different review.        The

weight of the evidence concerns the inclination of the greater amount of credible evidence

offered to support one side of the issue rather than the other. State v. Brindley, 10th
Dist. Franklin No. 01AP-926, 2002-Ohio-2425, ¶ 16. When presented with a challenge

to the manifest weight of the evidence, an appellate court, after “‘reviewing the entire

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

witnesses and determines 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.’” Thompkins at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). An appellate court should

reserve reversal of a conviction as being against the manifest weight of the evidence for

only the most “‘exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins at id., quoting Martin at id.

       {¶20} A defendant is not entitled to a reversal on manifest weight grounds merely

because inconsistent evidence was presented at trial. State v. Raver, 10th Dist. Franklin

No. 02AP-604, 2003-Ohio-958, ¶ 21.         Neither is a conviction against the manifest

weight of the evidence because the trier of fact believed the state’s version of events over

the appellant’s version.       State v. Gale, 10th Dist. Franklin No. 05AP-708,

2006-Ohio-1523, ¶ 19; State v. Williams, 10th Dist. Franklin No. 08AP-719,

2009-Ohio-3237, ¶ 17.    The trier of fact is free to believe or disbelieve all, part, or none

of the testimony. State v. Sheppard, 1st Dist. Hamilton No. C-000553, 2001 Ohio App.

LEXIS 4590, 22 (Oct. 12, 2001).

       {¶21} Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding
that a conviction is supported by the manifest weight of the evidence necessarily includes

a finding of sufficiency.       State v. Braxton, 10th Dist. Franklin No. 04AP-725,

2005-Ohio-2198, ¶ 15, citing State v. Roberts, 9th Dist. Lorain No. 96CA006462, 1997

Ohio App. LEXIS 4255 (Sept. 17, 1997). “[T]hus, a determination that a conviction is

supported by the weight of the evidence will also be dispositive of the issue of

sufficiency.” Id. In that regard, we first examine whether appellant’s convictions are

supported by the manifest weight of the evidence.       State v. Sowell, 10th Dist. Franklin

No. 06AP-443, 2008-Ohio-3285, ¶ 89.

       {¶22} Appellant was convicted of child endangerment under R.C. 2919.22(A),

which provides in relevant part that

       [n]o 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.

       {¶23} “Substantial risk” is defined as a “strong possibility, as contrasted with a

remote or significant possibility, that a certain result may occur or that certain

circumstances may exist.”      R.C. 2901.01(A)(8).      A child endangerment conviction

under R.C. 2919.22(A) requires proof of recklessness.            Cleveland Hts. v. Cohen,

2015-Ohio-1636, 31 N.E.3d 695, ¶ 25 (8th Dist.). “A person acts recklessly when, with

heedless indifference to the consequences, he [or she] perversely disregards a known risk

that his [or her] conduct is likely to cause a certain result, or is likely to be of a certain

nature.” R.C. 2901.22(C).
       {¶24} The goal of R.C. 2919.22(A) is to prevent acts of omission or neglect

involving a child. Cohen at ¶ 27.       Therefore, it is not necessary to show an actual

injury or a pattern of physical abuse by the defendant to support a conviction under the

statute. Id. Rather, a child endangering conviction may be based on isolated incidents

or even a “‘single rash decision’” in which a parent puts his or her child’s health or safety

at risk. Id., quoting State v. James, 12th Dist. Brown No. CA2000-03-005, 2000 Ohio

App. LEXIS 5905, 6-7 (Dec. 18, 2000).

       {¶25} Appellant does not contest that the child was under 18 years of age or that

he suffered bilateral subacute hematomas.       Instead, appellant contends that the state

failed to directly demonstrate that he abused the child.             Direct evidence and

circumstantial evidence possess the same probative value and therefore are subjected to

the same standard of proof, however. State v. Biros, 78 Ohio St.3d 426, 447, 678

N.E.2d 891 (1997).

       {¶26} In State v. Piggee, 8th Dist. Cuyahoga No. 101331, 2015-Ohio-596, for

example, this court considered a child endangering conviction against a mother who

sometimes left her baby with father, who she knew had a temper and of whom she had

concerns about leaving the baby with.     The mother and father were the primary people

who had access to the baby.     Mother claimed that the state’s evidence was insufficient

because there was a lack of evidence that she injured the baby, that she allowed the father

to injure the baby, or that she was even aware that any abuse had occurred.

       {¶27} This court rejected the mother’s claim, stating that, although “there may
have not been overwhelming direct evidence that [mother] herself caused the baby’s

injuries, there was substantial evidence that she either caused his serious injuries or was

complicit in that regard.” Id. at ¶ 39.

       {¶28} Here, appellant and mother were the primary caregivers for their child.

Maternal grandmother did babysit for the child, but she denied that she ever shook or

abused the child.   Paternal grandfather only babysat the child once.

       {¶29} Appellant told Detective Bazilius that the child was often “droopy” and had

been vomiting for a month.       He also described his child a being a “little sluggish.”

Appellant also told Detective Bazilius that he wished he knew that “shaking and stuff”

could have caused his child not to eat. Further, appellant claimed that in the days

leading up to the child’s hospitalization, he did not notice that he had a swollen head

because he had kept a hat on the child for two to three prior days.

       {¶30} On this record, we find that the manifest weight of the evidence supports the

child endangering conviction against appellant; that is, that he created a substantial risk to

the health or safety of the child by violating a duty of care.   We therefore, for the reasons

already discussed, necessarily find that the evidence against appellant was sufficient.

       {¶31} In light of the above, appellant’s two assignments of error are overruled.

       {¶32} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MARY EILEEN KILBANE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
