State v. Cutright, 21CA3749
| Decision Date | 09 November 2021 |
| Docket Number | 21CA3749 |
| Citation | 2021 Ohio 4039 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Casey B. Cutright, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Paul Giorgianni, Giorgianni Law LLC, Columbus, Ohio for appellant.
Jeffrey C. Marks, Ross County Prosecutor and Pamela C. Wells Ross County Assistant Prosecutor, Chillicothe, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Casey B. Cutright appeals his conviction for felonious assault and endangering children. Cutright contends that there was insufficient evidence to support his conviction and his conviction was against the manifest weight of the evidence because there was insufficient evidence of: (1) "serious" physical harm or (2) that he "knowingly" caused serious physical harm. Cutright also contends that his conviction was barred by the corpus delicti rule, which requires physical evidence of a crime because he contends the state presented no evidence that the victim suffered serious physical harm beyond Cutright's own confession. Last, Cutright contends that he was deprived of his constitutional right to effective assistance of counsel because his trial attorney failed to object to the admission of his confession and the state's mischaracterization of his conduct.
{¶2} We find that the weight of the evidence supports Cutright's convictions on all counts. The state presented substantial evidence of the facts and circumstances surrounding the assaults to determine that Cutright was aware that his actions would result in serious physical harm to the infant victim J.C. and that his actions did, in fact, cause serious physical harm to J.C. In resolving conflicts in the evidence, the jury did not clearly lose its way or create such a manifest miscarriage of justice that reversal of his felonious assault and endangering children convictions is necessary. We overrule Cutright's first five assignments of error.
{¶3} We also find the corpus delicti rule did not bar the introduction of Cutright's audiotaped confession because the state presented expert medical evidence that J.C. suffered no less than 20 bone fractures that were caused by child physical abuse, not accidental trauma. Cutright was not convicted solely on his confession, but because J.C.'s body had non-accidental fractures on the arms, legs, and ribs, which were areas that Cutright admitted he applied physical force to during bouts of extreme anger. We overrule Cutright's sixth assignment of error.
{¶4} Cutright was not deprived of effective assistance of counsel when his attorney failed to object to the admission of his audiotaped confession on the corpus delicti ground because, as we found in addressing his sixth assignment of error, the state presented evidence that J.C. suffered serious physical harm from child physical abuse. Nor was his counsel deficient for failing to object to the prosecutor's characterization of the hand motions Cutright made in showing the way he applied force to J.C.'s limbs. A state's witness described the method Curtight used as a revving motion, and also a "downward pulling," which can be paraphrased as a "bending" motion. A prosecutor is entitled to considerable latitude in summarizing the evidence in opening and closing statements and defense counsel's decision whether to object is a trial tactic that we will not disturb. We overrule Cutright's seventh assignment of error and affirm the judgment of conviction.
{¶5} The Ross County grand jury indicted Cutright on three counts of felonious assault in violation of R.C. 2903.11, second-degree felonies, and two counts of endangering children in violation of R.C. 2919.22, one a second-degree felony and one a third-degree felony. Cutright pleaded not guilty. Prior to trial, the state moved to dismiss the second endangering children count, which was count five of the indictment, a third-degree felony. The trial court orally granted the motion to dismiss count five. A jury found Cutright guilty of three counts of felonious assault and one count of endangering children and the trial court sentenced him to a cumulative 21-year prison term. Cutright appealed, but we dismissed the appeal for lack of jurisdiction. See State v. Cutright, 4th Dist. Ross No. 20CA3718, 2021-Ohio-1582 (count five was not terminated by a journal entry, thus the hanging charge prevented the conviction from being a final order under R.C. 2505.02(B) and appeal was dismissed for lack of jurisdiction). Following our dismissal, the trial court issued a written entry dismissing count five. This appeal followed.
{¶6} At trial, Ross County Sheriff Deputy Zachary McGoye testified that shortly after midnight in the early morning hours of February 15, 2019, he was called to the Cutright residence on a disorderly conduct report. Defendant Casey Cutright, who was in a truck in the driveway about 100 yards from the residence, informed him that there had been a verbal altercation between himself and his wife Amber Cutright. Deputy McGoye went up to the residence and spoke to Amber, who asked Deputy McGoye if she could go with her three-month-old infant J.C. to the Adena Regional Medical Center. Deputy McGoye testified that Amber told him that there had been an argument and she wanted to go to the hospital for treatment for both herself and infant J.C. A squad car transported Amber and J.C. to the hospital. Casey Cutright did not go with them.
{¶7} Ross County Sheriff Detective Sergeant Jason Gannon testified that he and two other detectives executed a search warrant at the Cutright residence on February 15, 2019. Nobody was home when they arrived and Sergeant Gannon described the residence as a very dirty mobile home trailer. They were searching for evidence of child abuse and neglect. He found, photographed, and collected two ladies' style bloodied shirts, one white and one zebra print. Ross County Sheriff Detective Max Adair testified that he interviewed Amber at the Domestic Violence Coalition in Chillicothe and she told Detective Adair that a bloodied zebra print shirt would be at the residence.
{¶8} Sheriff Detective Martin Brooks testified that he also participated in the search of the Cutright residence and processed evidence and paperwork related to the search. Detective Brooks testified that he sent DNA swabs from Casey Cutright, Amber Cutright, and J.C. to the Ohio Bureau of Criminal Investigations (BCI) for processing.
{¶9} Detective Tony Wheaton testified that he was the lead detective on the case and learned through his discussion with officials at Adena Regional Medical Center that J.C. had been transported to Nationwide Children's Hospital in Columbus. Detective Wheaton traveled to Nationwide Children's Hospital and spoke to the staff and doctors. Detective Wheaton learned that J.C. suffered approximately 20 or more bone fractures in various states of healing. He photographed J.C. and documented the infant's external injuries. Detective Wheaton returned to Ross County and interviewed Casey Cutright. Because Detective Wheaton considered Casey Cutright to be a suspect, he advised Cutright of his Miranda rights. Cutright waived his Miranda rights and spoke with Detective Wheaton.
{¶10} Cutright told Detective Wheaton that he moved in with Amber in March 2018, while she was pregnant with J.C. He and Amber married sometime between March 2018 and November 21, 2018, the date that J.C. was born, but he was not J.C.'s biological father. Detective Wheaton testified that Cutright initially stated that neither he nor Amber ever caused any harm to J.C. and that neither of them were violent individuals. However, as Detective Wheaton began to explain J.C.'s injuries and the number and severity of the fractures, Cutright's story changed. Cutright stated that he observed Amber potentially cause injuries to J.C. on eight separate occasions because of her violent tendencies. Cutright continued to maintain that he never personally hurt J.C.
{¶11} Wheaton testified that later that same day he conducted a second interview of Casey Cutright that was audiotaped and during this second interview Cutright admitted harming J.C. on three occasions. Wheaton testified that during the first instance Cutright was holding J.C. when Amber began to yell at Cutright. Cutright told him that he became angry, may have had a flashback, and squeezed J.C.'s arms in a very strong and violent manner while pushing them down. While doing this, Cutright felt and heard a popping sound. Detective Wheaton asked Cutright to show him how this was done. Detective Wheaton testified that Cutright demonstrated Detective Wheaton testified that Cutright told him he was hoping the sound was just a dislocation and that he had not broken one or both of J.C.'s arms.
{¶12} Detective Wheaton testified that Cutright described a second incident that a similar rage came upon him while he was changing J.C.'s diaper. During that incident Cutright was holding J.C.'s legs above the knees and up into the thigh area. Cutright explained that while he was changing J.C.'s diaper, Amber yelled at him and threw a Hot Wheels car at him, which hit Cutright in the head. In a fit of rage Cutright squeezed and twisted J.C.'s legs as he pulled J.C. towards him. Detective Wheaton testified that Cutright showed him the manner in which Cutright inflicted the injury and it was "in the same fashion, he shows that...
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