[Cite as State v. Mayle, 2018-Ohio-2511.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. William B. Hoffman, J.
-vs-
                                                   Case No. 2017CA00125
TIMMY LEE MAYLE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2016 CR 1005


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 25, 2018


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO,                               GEORGE URBAN
Prosecuting Attorney,                          116 Cleveland Ave NW., Suite 808
Stark County, Ohio                             Canton, Ohio 44702

By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 47702-1413
Stark County, Case No. 2017CA00125                                                             2

Hoffman, J.



       {¶1}   Defendant-appellant Timmy Lee Mayle appeals his conviction and sentence

entered by the Stark County Court of Common Pleas, on one count of murder, in violation

of R.C. 2903.02(A)(1); and one count of endangering children, in violation of R.C.

2919.22(B)(1) and (E)(2)(d), following a jury trial Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   On July 11, 2016, the Stark County Grand Jury indicted Appellant on the

aforementioned charges, arising from the death of the twelve month old child of Kayle

Yoho while the child was in Appellant’s care. Appellant appeared for arraignment on July

15, 2016, and entered a plea of not guilty to the Indictment.

       {¶3}   The matter proceeded to jury trial on July 19, 2017. The following evidence

was presented at trial.

       {¶4}   Kayle Yoho and Appellant lived together at 1134 7th Street, NW, Canton,

Stark County, Ohio, with Yoho’s twelve month old child. Appellant was not the father of

the child. Yoho worked two jobs, leaving for work at 8:30 a.m., and sometimes not

returning until after the child’s bedtime. Appellant became the child’s primary caregiver.

       {¶5}   On March 11, 2016, Yoho left for work at approximately 8:50 a.m. Appellant

and the child were still asleep.      At approximately 10:00 a.m., Appellant woke up,

showered, and checked on the child, who had an extremely dirty diaper. Appellant called

Yoho about a half an hour later, inquiring when she would be home. Yoho informed him

she would be home in about an hour and a half. Appellant finally removed the child from

her pack-n-play, proceeded downstairs, and placed the child on the dining room floor.
Stark County, Case No. 2017CA00125                                                         3


Within minutes of calling Yoho, Appellant ran outside, trying to find help for the child, who

was limp and unresponsive. Appellant flagged down a truck driver who allowed Appellant

to use his cell phone to call 911.

       {¶6}   Paramedics responded to the call at approximately 10:37 a.m. When they

arrived, they found the child unconscious with irregular breathing. Appellant initially told

paramedics he did not know what happened to the child. Paramedics placed the child in

the ambulance and proceeded to ventilate her with a bag valve mask and give her oxygen.

They continued to ask Appellant what happened to the child, and he continued to say he

did not know. After one paramedic told Appellant to stop “dicking around”, he responded

the child might have fallen down two steps. Paramedics, frustrated with Appellant’s lack

of candor, closed the door to the ambulance and transported the child to Mercy Medical

Center. The child was later transferred to Akron Children’s Hospital, where she was

declared brain dead. Yoho decided to remove the child from life support. The child died

on March 12, 2016.

       {¶7}   Canton Police Officer Richard Hart testified he and his partner, David

Wolgamott, were dispatched to 1134 7th St., NW, in Canton, to assist the fire department

with a medical emergency. Upon their arrival, the officers spoke with paramedics and

were informed they were treating an unresponsive child. The officers learned Appellant

was the child’s caretaker and made contact with him. Appellant told the officers when the

child awoke that morning everything seemed to be fine. Appellant placed the child on the

floor in the dining room and left to take the dogs outside. Appellant then heard a thud.

When he went inside, he found the child unresponsive. Appellant identified Yoho as the

child’s mother and advised the officers she was at work. At one point during their
Stark County, Case No. 2017CA00125                                                         4


conversation, Appellant told Officer Hart a day or two prior to the incident he (Appellant)

had informed Yoho he no longer wanted to watch the child as it was too much for him.

On May 12, 2016, detectives learned the child would not survive and Appellant became

a suspect.

       {¶8}   Detective Joseph Mongold of the Canton Police Department initially

responded to Mercy Medical Center and spoke with paramedics, emergency room

nurses, and Yoho. After the child was transported to Akron Children’s Hospital, he

responded to the scene and assisted with the consent search of the residence. Det.

Mongold returned to the police department and contacted Dr. Raizman, a board certified

child abuse expert at Akron Children’s Hospital. Det. Mongold learned the child had skull

fractures and her injuries were not consistent with the kinds of injuries from a fall or an

accident. At that point, Det. Mongold’s view of Appellant “began to evolve.” Tr. Vol. V at

23. He ultimately developed Appellant as a suspect.

       {¶9}   Det. Mongold interviewed Appellant on March 17, 2016. By that time, Det.

Mongold had learned the child’s injuries were not the result of an accident or a fall down

the stairs, but “were in fact a result, a direct result of abuse that occurred at the time of

the incident.” Id. at 31. Appellant told Det. Mongold he knew the child’s father, David

Tucke, and added Tucke and Yoho had a bad relationship. Appellant informed the

detective Yoho’s relationship with Tucke ended on September 4, 2015, and he (Appellant)

and Yoho began their relationship on September 5, 2015. During the interview, Appellant

stated Tucke had last seen the child in October, 2015, then subsequently indicated Tucke

had last seen the child three months prior to the incident.
Stark County, Case No. 2017CA00125                                                       5


      {¶10} Appellant told Det. Mongold Yoho started working two jobs three or four

months prior to the incident. Appellant advised the detective the child was in good health

the week before her death. Appellant noted the child was unable to go up the stairs.

When he woke up on the morning of March 11, 2016, Appellant found the child’s diaper

“full of piss and shit”, which was running down her legs. He proceeded to shower and

then picked up the child. Holding the child away from him, Appellant went downstairs and

placed her on the dining room floor. Appellant left the room and let the dogs outside

through the back door. Appellant heard three “hits”, returned to the dining room, and

found the child unresponsive.

      {¶11} Appellant repeatedly told Det. Mongold the child was fine and had no

problems when she woke up on the morning of March 11, 2016. Det. Mongold testified

the events as described by Appellant did not match the medical evidence and the

conclusions reached by the medical examiner.

      {¶12} Dr. Michael Rubin, chairperson of the pediatric radiology department at

Akron Children’s Hospital, reviewed the child’s CT scans. Dr. Rubin testified the scans

revealed numerous injuries to the child’s body in various stages of healing. The injuries

included bone fractures to her left forearm, lower left leg, and lower right leg; a skull

fracture; and a spine compression fracture. Dr. Rubin noted, while these injuries were

indicative of child abuse, those injuries did not cause or contribute to the child’s death.

Dr. Rubin observed a diffuse swelling of the child’s brain, indicating a deprivation of

oxygen and an insufficient blood supply. Dr. Rubin explained such a brain injury could

be caused by drowning; strangulation; involvement in a high speed motor vehicle

accident; non-accidental trauma, for example, child abuse; or severe infections like
Stark County, Case No. 2017CA00125                                                        6


meningitis. He noted a severe brain injury, as the child had, does not result from a fall

down stairs or a fall off of a bed. Dr. Rubin added, although a skull fracture can occur

from a fall down stairs, it is unusual. He concluded the child’s injury was the result of

severe trauma, and based upon the soft tissue swelling, edema, and hematoma, the injury

occurred recently.

       {¶13} Dr. George Sterbenz, Chief Deputy Medical Examiner at the Summit County

Medical Examiner’s Office, performed the autopsy of the child. Dr. Sterbenz noted the

report from Mercy Medical Center revealed the child arrived at the hospital in a severe

coma with a Glasgow Coma Score of 3, which is the lowest score, and was in respiratory

distress, requiring intubation. A CT scan of the child’s head revealed an occipital skull

fracture, a fracture at the back of the head. A second CT scan was performed at Akron

Children’s Hospital, which confirmed the presence of the occipital skull fracture as well as

bleeding inside the cranial cavity and abnormal traumatic swelling of the brain, which

caused her skull bones to push apart. Clinicians at Akron Children’s Hospital also noted

facial bruising on the child’s chin and left eyelid. A skeletal survey performed at Akron

Children’s Hospital revealed a spine compression fracture and fracture of the left shin

bone, left arm bone, right shin bone, and right foreleg.

       {¶14} After examination of the child’s head, scalp, and skull, Dr. Sterbenz

determined the child had been subjected to more than a dozen blunt impact injuries to

the front and back of her head. The pattern of bleeding in the skin of the scalp and over

the galeal, the membrane covering the skull, indicated these impacts were repeated over

a short period of time in the same location. The child also had a fracture from her

lambdoidal suture, the connective tissue joint at the back of the skull, to the foramen
Stark County, Case No. 2017CA00125                                                        7


magnum, the opening where the spinal cord emerges from the cranial cavity, which

caused the skull to become unstable. The fracture also seriously affected the area where

the skull and brain stem meet, which is the area responsible for regulating the heart and

breathing. Dr. Sterbenz noted the skull fracture and bruises to the child’s scalp and galeal

were reflective of severe blows to the head.

       {¶15} Dr. Sterbenz explained these blows caused concussive forces, shock

waves, to travel through the child’s brain and skull, resulting in irrevocable stretching,

tearing, and killing of brain cells. The skull fracture alone was potentially fatal. The

concussive waves also caused excessive swelling of the brain, hemorrhaging in the optic

nerve and eyes, and the separation of her brain from her skull.          These injuries were

recent, “meaning they occurred within minutes of her presenting fatal event.” Tr. Vol. IV

at 134. Dr. Sterbenz concluded the child died from a concussive brain injury with traumatic

encephalopathy due to craniocerebral blunt force trauma. He opined the pattern of

injuries was not consistent with a tumbling fall down the stairs. Dr. Sterbenz testified, in

his experience, the injuries were consistent with a small child being held by another, who

then, in a short period of time and at the same physical location, repeatedly smashed her

head against a hard object, such as a piece of furniture or the floor.

       {¶16} Dr. Sterbenz utilized a PowerPoint presentation during his testimony, which

included photographs from the death scene, autopsy photographs, clipart, and other

graphics. Prior to trial, the trial court conducted a hearing with counsel to review the

autopsy report and the PowerPoint presentation. Appellant objected to the admission of

all of the clipart used in the PowerPoint. The trial court agreed three of the graphics were

unnecessary and instructed the state to remove or revise the graphics from the specific
Stark County, Case No. 2017CA00125                                                       8


slides. The trial court overruled Appellant’s other objections relative to the clipart and

graphics, finding the probative value was not substantially outweighed by any prejudicial

effect. The trial court also overruled Appellant’s objections to a number of autopsy

photographs, finding any prejudice caused by such did not outweigh their probative value,

as well as his objections to medical illustrations, finding the drawings were not

inflammatory. Appellant further objected to five slides as each included photographs

previously presented in the PowerPoint. The trial court overruled the objections, finding

the duplicative photographs were not overly prejudicial because such were being offered

for different purposes and to highlight areas different from the areas highlighted on the

photographs as previously presented.

       {¶17} At the close of the state’s case, Appellant made a Crim. R. 29 motion for

acquittal, which the trial court denied. Appellant also renewed his objections to the

admission of Dr. Sterbenz’s PowerPoint presentation as well as the autopsy photographs

therein. The trial court again overruled Appellant’s objections with the exception of slide

16, which the state withdrew from evidence.

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

guilty as charged. The trial court merged the child endangering count with the murder

count for purposes of sentencing. The trial court sentenced Appellant to a term of

incarceration of fifteen years to life.

       {¶19} It is from these convictions and sentence Appellant appeals, raising the

following assignments of error:
Stark County, Case No. 2017CA00125                                                         9


              I.   APPELLANT’S       CONVICTIONS         WERE      AGAINST       THE

       SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.

              II. THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S

       OBJECTIONS TO THE ADMISSION OF SEVERAL STATE’S EXHIBITS.



                                                 I

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

against the sufficiency and manifest weight of the evidence.

       {¶21} 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.”

       {¶22} 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
Stark County, Case No. 2017CA00125                                                       10


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).

       {¶23} “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

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

the credibility of the witnesses.

       {¶24} Appellant submits, when reviewing the evidence and considering the

credibility of the witnesses, one can only conclude the jury clearly lost its way. Appellant

contends the multiple injuries the child suffered prior to her death create reasonable doubt

as to whether her death was caused by Appellant or was the result of an accidental fall.

Appellant adds his consistent story and cooperative behavior throughout the course of

the investigation lend credence to his version of the events of March 11, 2016, and were

not indicative of someone who had just seriously injured a child.

       {¶25} Appellant was convicted of endangering children, in violation of R.C.

2919.22(B)(1) and (E)(2)(d), which provides:



              (B) No person shall do any of the following to a child under eighteen

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

       one years of age:

              (1) Abuse the child;

              ***
Stark County, Case No. 2017CA00125                                                          11


               (E)(2) If the offender violates division (A) or (B)(1) of this section,

       endangering children is one of the following, and, in the circumstances

       described in division (E)(2)(e) of this section, that division applies:

               ***

               (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.



       {¶26} Appellant was also convicted of murder, in violation of R.C. 2903.02(B),

which reads:



               (B) No person shall cause the death of another as a proximate result

       of the offender's committing or attempting to commit an offense of violence

       that is a felony of the first or second degree and that is not a violation of

       section 2903.03 or 2903.04 of the Revised Code.



       {¶27} Under R.C. 2903.02(B), “purpose to kill is not an element of the crime and

need not be proven.” State v. Maynard, 10th Dist. Franklin No. 11AP–697, 2012–Ohio–

2946, ¶ 17. “Instead, the mens rea for felony murder is the intent required to commit the

underlying predicate offense.” Id. “Thus, the mens rea element for felony murder under

R.C. 2903.02(B) is satisfied when the state proves the intent required for the underlying

felony.” Id. at ¶ 23. Child endangering, in violation of R.C. 2919.22(B)(1), is a felony of

the second degree under R.C. 2919.22(E)(2)(d), and is defined as an “offense of violence”
Stark County, Case No. 2017CA00125                                                       12


under R.C. 2901.01(A)(9); therefore, may serve as a predicate offense for felony murder.

State v. Blanda, 12th Dist. Butler No. CA2010–03–050, 2011–Ohio–411, ¶ 17.

       {¶28} The requisite mens rea for endangering children is recklessness. State v.

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980), paragraph one of the syllabus.

“Recklessness” is defined as a person who “with heedless indifference to the

consequences, * * * disregards a substantial and unjustifiable risk that the person's

conduct is likely to cause a certain result or is likely to be of a certain nature.” R.C.

2901.22(C).

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

Facts, supra, and all the testimony presented at trial, we find Appellant's convictions were

not against the manifest weight and sufficiency of the evidence. The evidence presented

refuted Appellant’s claims the child fell down the stairs. The child died as the result of

injuries she sustained from more than a dozen blows to her head which were repeated

over a short period of time in the same location and which occurred shortly before

paramedics arrived. Appellant was the only individual with the child during this time.

       {¶30} Appellant’s first assignment of error is overruled.

                                                II

       {¶31} In his second assignment of error, Appellant contends the trial court erred

in overruling his objections to the admissions of a number of the state’s exhibits.

Specifically, Appellant takes issue with the trial court’s admission of the autopsy

photographs as well as the medical examiner’s PowerPoint presentation as a whole.1



1 The state contends, because Appellant did not object to the medical examiner’s
testimony, the submission of a paper copy of the PowerPoint presentation, or the
admission of Exhibit 47, medical illustrations showing the difference between a spiral
Stark County, Case No. 2017CA00125                                                       13




       A. Standard of Review

       {¶32} The admission or exclusion of relevant evidence is a matter left to the sound

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice

to the defendant, a reviewing court should be reluctant to interfere with a trial court's

decision in this regard. State v. Sage (1987), 31 Ohio St.3d 173, 180.      In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983)

       {¶33} Evid.R. 403, which permits the exclusion of relevant evidence on the

grounds of prejudice, confusion, and undue delay, reads:

       {¶34} (A) Exclusion mandatory. Although relevant, evidence is not admissible if

its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.

       {¶35} (B) Exclusion discretionary. Although relevant, evidence may be

excluded if its probative value is substantially outweighed by considerations of undue

delay, or needless presentation of cumulative evidence. (Emphasis added).

       B. Autopsy Photographs



fracture and a clean fracture, Appellant has waived all but plain error on review. We
note Appellant objected to the PowerPoint presentation during a final pretrial hearing.
However, at trial, Appellant failed to object to Dr. Sternbenz’s testimony, either in
manner or substance, and failed to object to any aspect of the PowerPoint presentation.
Appellant did object to the admission of the PowerPoint presentation as well as specific
slides and photographs at the close of the case. As we find, infra, Appellant is unable to
meet the lesser standard of abuse of discretion, we need not analyze this assignment of
error under the higher plain error standard.
Stark County, Case No. 2017CA00125                                                        14


       {¶36} Appellant maintains the probative value of the autopsy photographs was

outweighed by the danger of unfair prejudice. Appellant explains, “Seeing the autopsied

body of a small child is, in itself, inflammatory. Seeing repetitive photographs negates

the probative value and serves only to prejudice the jury.” Brief of Appellant at 11.

       {¶37} “When considering the admissibility of photographic evidence under Evid.R.

403, the question is whether the probative value of the photographic evidence is

substantially outweighed by the danger of unfair prejudice to the defendant.” State v.

Morales, 32 Ohio St.3d 252, 257, 513 N.E.2d 267 (1987). “When balancing the probative

value against the danger of unfair prejudice, the trial court is vested with broad discretion

and an appellate court should not interfere absent a clear abuse of discretion.” State v.

Harcourt, 46 Ohio App.3d 52, 55, 546 N.E.2d 214 (12th Dist.1988), citing Morales at 258,

513 N.E.2d 267.

       {¶38} “[T]he mere fact that a photograph is gruesome or horrendous is not

sufficient to render it per se inadmissible.” State v. Maurer, 15 Ohio St.3d 239, 264, 473

N.E.2d 768 (1984). “Autopsy photographs are generally admissible to help the jury

appreciate the nature of the crimes, to illustrate the coroner's or other witnesses'

testimony by portraying the wounds, to help prove the defendant's intent, and to show the

lack of accident or mistake. ” State v. Buck, 2017-Ohio-273, 81 N.E.3d 895, ¶ 22 (Citation

omitted). Likewise, a trial court may admit gruesome photographs if they give “the jury an

‘appreciation of the nature and circumstances of the crimes’.” State v. Monroe, 105 Ohio

St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 26, quoting State v. Evans, 63 Ohio St.3d

231, 251, 586 N.E.2d 1042 (1992).
Stark County, Case No. 2017CA00125                                                     15


       {¶39} We have reviewed the autopsy photographs. We find such illustrated and

supported Dr. Sterbenz’s testimony regarding the child’s injuries and cause of death. The

photographs also aided in explaining why Appellant’s claim the injuries were the result of

an accident was not plausible. The photographs were, therefore, useful to the jury.

Although five of the photographs were used more than one time in the PowerPoint

presentation, those photographs were offered for different purposes and to highlight areas

different from the areas highlighted on the photographs as previously presented. While

the autopsy photographs are disturbing as they depict injuries to a deceased infant, we

do not find these photographs are so gruesome as to prejudice Appellant. Accordingly,

we find the probative value of these photographs outweighed any prejudice to Appellant

and the trial court did not abuse its discretion in admitting them.

       C. PowerPoint Presentation

       {¶40} Appellant also challenges the trial court’s admission of Dr. Sterbenz’s

PowerPoint presentation on two grounds. First, Appellant argues he was prejudiced by

the manner in which Dr. Sterbenz’s testified. Appellant explains the medical examiner

prepared and delivered “an elaborate presentation, as if teaching a class”, which relieved

the state from having to prepare a line of questioning for the witness. Additionally,

Appellant asserts certain non-photographic slides served to prejudice the jury.

       {¶41} With respect to the manner in which the medical examiner testified, our

review of the record reveals the prosecutor did, in fact, engage in a proper direct

examination of Dr. Sterbenz. We find, although Dr. Sterbenz provided extensive answers,

his answers detailed the child’s injuries, explained how the child would have sustained

the injuries, and detailed the manner and cause of her death; therefore, were appropriate.
Stark County, Case No. 2017CA00125                                                         16


       {¶42} With respect to the graphics within the PowerPoint presentation, Appellant

specifically takes issue with slide 16, clipart of a ball bouncing on a floor. Although slide

16 was not admitted into evidence, the slide was published and included with the print

version entire PowerPoint provided to the jury during deliberations. Appellant maintains

slide 16 was prejudicial as it “leads one to picture a small child’s head bouncing against

the floor repeatedly.” Brief of Appellant at 13. Appellant submits slide 16 provided little to

no probative value, but only served to inflame the passions of the jury. We find, although

slide 16 was erroneously provided to the jury, it did not prejudice Appellant. Dr. Sterbenz

testified the child had been subjected to more than a dozen blunt impact injuries to the

front and back of her head. The graphic in slide 16 provided a relatable visual of a blunt

force impact; therefore, was demonstrative of how the injuries occurred. Assuming,

arguendo, it was error to send slide 16 to the jury, in light of the totality of the evidence,

its admission was harmless.

       {¶43} Appellant also takes issue with slide 47, medical illustrations showing the

difference between a spiral fracture and a clean fracture. One illustration depicts adult

hands twisting the leg of a child. Appellant submits, upon viewing the illustration, the jury

“[u]ndoubtedly” imagined Appellant twisting the child’s “arms and legs, even though there

was no evidence that limb fractures were part of the fatal event.” Brief of Appellant at 12.

The trial court determined the illustrations aided Dr. Sterbenz during his testimony and

allowed the jury to better understand the medical examiner's testimony. We find no abuse

of discretion on the part of the trial court in doing so.

       {¶44} Contrary to the position asserted by Appellant that the graphics and

illustrations were not relevant and of no probative value, we find the physical evidence
Stark County, Case No. 2017CA00125                                                         17


revealed by the photographs and the expert opinion of Dr. Sterbenz, demonstrated and

supported by the slides, rebutted and refuted Appellant's claim the child was injured as

the result of a fall down stairs. The PowerPoint presentation assisted the jury while Dr.

Sterbenz discussed his findings, diagnoses, and opinions. Accordingly, pursuant to the

guidelines set forth in Ohio Evid. R. 401, we find the graphics and illustrations were clearly

relevant evidence, and further find such did not confuse the issue or mislead the jury.

       {¶45} Prior to trial, the trial court carefully examined each slide and entertained

arguments by the prosecution and defense regarding the PowerPoint presentation. The

trial court agreed with Appellant regarding three of the graphics, including slide 16, finding

they were unnecessary and instructed the state to remove or revise the graphics from the

specific slides.

       {¶46} For the foregoing reasons, we find the trial court did not abuse its discretion

in admitting the autopsy photographs and the PowerPoint presentation into evidence.

       {¶47} Appellant’s second assignment of error is overruled.
Stark County, Case No. 2017CA00125                                                18


      {¶48} The judgment of the Stark County Court of Common Pleas is affirmed.



By: Hoffman, J.

Wise, John, P.J. and

Gwin, J. concur
