State v. Aeschilmann, Case No. 2013CA00192

• Decision Date: 06 October 2014
• Docket Number: Case No. 2013CA00192
• Parties: STATE OF OHIO Plaintiff-Appellee v. ALAN J. AESCHILMANN Defendant-Appellant
• Court: Ohio Court of Appeals

2014 Ohio 4462

STATE OF OHIO Plaintiff-Appellee
v.
ALAN J. AESCHILMANN Defendant-Appellant

Case No. 2013CA00192

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

October 6, 2014

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING:

Criminal appeal from the Stark County Court of Common Pleas, Case No. 2013-CR-0287

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

JOHN FERRERO
Stark County Prosecutor
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
110 Central Plaza South, Ste. 510
Canton, OH 44702

For Defendant-Appellant

JAMES BURDON
137 South Main Street
Suite 201
Akron, OH 44308

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Gwin, P.J.

{¶1} Appellant Alan J. Aeschlimann ["Aeschlimann"] appeals his convictions on one count of felony murder and one count of child endangering for the death of two-year-old Bri'Sean T. Gamble on October 19, 2011.

Facts and Procedural History

A. The Parties

{¶2} Aeschlimann, also known as "A.J." was a 28-year-old divorced father and sole custodian of his 4-year-old daughter Hannah. He withdrew from Kent State University to begin employment with the Ohio Department of Youth Services at the Indian River Correctional Facility where he had served for 5 years as a corrections officer. Brittany Boitnott was a 24-year-old single parent of 2 1/2 year old Bri'Sean Gamble. A romance developed between Brittany and Aeschlimann in May of 2011 and in September of that same year Brittany and Bri'Sean moved into the residence occupied by Aeschlimann and Hannah. In August of 2013, at the time of the trial, Aeschlimann was married and residing with his wife Amanda Aeschlimann.

B. The Home

{¶3} Aeschlimann's home was small with a living room, kitchen, and three bedrooms, one of which was vacant because Aeschlimann's ex-wife had removed all the furnishings. Bri'Sean and Hannah slept in separate bedrooms at the end of the hall and across the hall from one another. Because they had no bedroom furniture of their own, Aeschlimann and Brittany slept on the living room couch together. Aeschlimann slept with his back to the backrest of the couch and Brittany with her back to Aeschlimann stomach, heads going the same direction.

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C. Wednesday, October 19, 2011

{¶4} During the period that Aeschlimann, Brittany and the two children lived together, their daily routines were consistent and predictable. Brittany was unemployed and stayed home with the two children except on those days Hannah attended preschool or visited her paternal grandparents. Hannah attended Oak Park Preschool three to four times per week.

{¶5} Wednesday, October 19, 2011 was no different. Aeschlimann awoke at approximately 7:30 a.m., as did Brittany. They ate breakfast together and Aeschlimann left for his usual work shift at 1:45 p.m. to 10:00 p.m. Hannah did not attend preschool that day. Brittany, Bri'Sean and Hannah stayed home all day. The only visitors were Aeschlimann parents who stopped by with groceries a little after 8:00 p.m. staying for approximately 20 minutes. According to Jody Aeschlimann, Hannah's grandmother, she noticed nothing unusual about the children but did observe that Brittany appeared upset.

{¶6} Brittany testified that she fed Bri'Sean, and gave him a bath around 9:15 p.m. She then put Bri'Sean to bed at between 10:00 and 10:15 p.m., which was his normal bedtime. She further testified that Aeschlimann was not yet home from work when she put Bri'Sean to bed and that was normal.

{¶7} Aeschlimann's memory of those events was consistent. He recalls leaving work at 10:00 p.m. and arriving home approximately 10 minutes later. An excited Hannah greeted him and, although he could see Brittany in the back of the hall, he did not see Bri'Sean at all. He further observed that Bri'Sean was usually already in bed when he returned from work.

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{¶8} Shortly after Aeschlimann's arrival home, and as he played with Hannah in the living room, Brittany left in Aeschlimann's car to go to Wal-Mart. The car was actually owned by Aeschlimann's parents, and Brittany was not insured to drive it. Aeschlimann testified that she had never driven his car before. Brittany testified that she had driven this car in the past. Aeschlimann testified Brittany had called him at work several times that day; however, she did not ask him to stop at Wal-Mart on his way home even though it was located across the street from his place of employment. Brittany testified that she left for Wal-Mart at "10:15, 10:20" -- "probably a little later" and "at the latest 10:20-10:25" returning home a little before 11:00 p.m.

{¶9} While Brittany was at Wal-Mart, Aeschlimann remained home with Hannah while Bri'Sean remained in his bedroom. Brittany and Aeschlimann each testified that Bri'Sean had "good sleeping habits". When Brittany returned Hannah was still awake. Hannah stayed awake until approximately 11:00 p.m. for two reasons. First, to give her time to interact with her father and second, because Aeschlimann's custody agreement included the right of her non-custodial mother to make a nightly phone call. In fact, her mother made her nightly call at approximately 10:20 p.m. and Aeschlimann monitored the content of the conversations.

{¶10} At 11:00 p.m., Brittany returned from Wal-Mart. Aeschlimann put Hannah to bed between 11:00 and 11:30 p.m. Aeschlimann and Brittany went to sleep on the couch and awakened together the next morning. Brittany concedes that no one got up during the night and Detective Von Spiegel concluded that no one had contact with Bri'Sean throughout the night.

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D. Bri'Sean's Body is Discovered

{¶11} The next morning Aeschlimann and Brittany awakened and resumed their predictable routines. Aeschlimann took Hannah to preschool at 9:00 a.m., where they both met and spoke with her teacher Samantha Carr. Ms. Carr testified that neither demonstrated unusual conduct. Aeschlimann returned home at 10:00 a.m. Bri'Sean had not awakened by the time Aeschlimann returned which was beyond his normal arising time of 9:30 a.m. Brittany entered his bedroom at 10:30 a.m. and found his lifeless body. A frantic and emotional 9-1-1 call was played for the jury.

E. EMS Arrives.

{¶12} EMS technicians arrived along with a Deputy from the Stark County Sheriff's Office. En route dispatch informed the technicians that a two-year old child might be in cardiac arrest and a possible choking. Upon arrival, Brittany came running from the house, followed by Aeschlimann. Brittany had Bri'Sean in her arms and was crying hysterically.

{¶13} EMS firefighter/paramedic Jennifer Mohler testified that the child was pulse less and apenic. (1T. at 62). He had rigor mortis or "stiffening of his jaw, his shoulder, his knees." (1T. at 63). According to Mohler, this meant that the child had been gone too long and resuscitation was futile. The medical personnel at the scene could find no "lividity" or pooling of the blood that occurs after death.

{¶14} When Mohler informed Aeschlimann that the child was gone, she testified, "he dropped to his knees and put his hands on his head." (1T. at 66).

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{¶15} While photographing the child's body at the direction of the deputy sheriff, Mohler observed what she believed could be a small bruise on the child's rib cage. (1T. at 68)

F. The Autopsy

{¶16} Stark County Coroner P.S. Murthy, M.D. testifed that he conducted an autopsy upon the body of Bri'Sean Gamble on October 21, 2011. (2T. at 428).

{¶17} During his external examination of the body, Dr. Murthy noted a one-half inch contusion or bruise in the left chest area, a contusion under the chin of less than half an inch and extremely small contusions at each eyebrow. (2T. at 446-447). No evidence of injury was noted on the surface of the skin in the area of the back of the head, front of the head and the scalp. (2T. at 452).

{¶18} During his internal examination of the body, Dr. Murthy observed a tiny contusion in the left chest area extending to the lung. (2T. at 449-451). Dr. Murthy observed more than two "maybe ten, twelve, thirteen in that range, multiple, prominent, subgaleal contusions." (2T. at 452; State's Exhibits 8G; 8H; 8I; 8N and 8J). The subgaleal contusions were "on the top of the head, right side, left side and the back." (2T. at 459-460). Dr. Murthy further observed "the massive accumulation of acute subdural hemorrhage." (2T. at 464). Dr. Murthy concluded that the primary cause of death was blunt impacts to the head. (Id.)

{¶19} Dr. Murthy also found bronchopneumonia in the lungs. (2T. at 472). Dr. Murthy testifed concerning this finding,

Well, to me, it indicates he sustained multiple, forceful blunt impacts injuries to the head. Again, to the best of my judgment and knowledge,

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two or three forceful impacts on the head, the kid is unconscious, he's lying there and then the brain gets swollen, the brain is injured and the respiratory system gets labored, he gets snoring, shallow respirations and the celia does not move the secretions, so he's a beautiful candidate to develop bronchopneumonia. So injury on top of injury—a chain of events starts.

2T. at 473-474.

{¶20} Dr....