State v. Fannon, 17CA24

• Decision Date: 10 December 2018
• Docket Number: No. 17CA24, No. 17CA26,17CA24
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Kayla Ann FANNON, Defendant-Appellant. State of Ohio, Plaintiff-Appellee, v. Samuel A. Thompson, Defendant-Appellant.
• Court: Ohio Court of Appeals

117 N.E.3d 10

2018 Ohio 5242

STATE of Ohio, Plaintiff-Appellee,

v.Kayla Ann FANNON, Defendant-Appellant.

State of Ohio, Plaintiff-Appellee,

v.Samuel A. Thompson, Defendant-Appellant.

No. 17CA24

No. 17CA26

Court of Appeals of Ohio, Fourth District, Athens County.

RELEASED: December 10, 2018

DECISION AND JUDGMENT ENTRY

Harsha, J.{¶1} A jury found Kayla Ann Fannon and Samuel A. Thompson guilty of two counts of endangering children and one count of permitting child abuse of their three-month old infant A.T.. The trial court sentenced them each to prison.

{¶2} In this consolidated appeal Fannon and Thompson raise a combined total of eight errors. We reject all of them.

I. FACTS & PROCEDURAL HISTORY

{¶3} An Athens County Grand Jury initially indicted Fannon and Thompson on one count of Permitting Child Abuse in violation of R.C. 2903.15(A) and one count of Child Endangering in violation of R.C. 2919.22(A), both third-degree felonies. A superseding indictment added a second count of Child Endangering in violation of R.C. 2919.22(B)(1), a second-degree felony.

{¶4} The state moved for a joinder of the cases, which Fannon opposed. The trial court granted the state's motion and the case proceeded to a jury trial on Monday, May 8, 2017. On Friday, the fifth day of trial, Fannon and Thompson failed to appear. Trial counsel was unable to locate them or secure their appearance. The trial court recessed trial until Tuesday and issued warrants. At a status conference Monday, May 15, 2017 counsel for Thompson and Fannon advised they had no contact with their clients over the weekend and had no information about their whereabouts. The trial court granted the state's request to proceed without Thompson and Fannon.

{¶5} The jury returned verdicts finding Thompson and Fannon guilty on all counts. Five days after the jury verdict, authorities located Thompson and Fannon several counties away in a motel in Lockbourne, Ohio and took them into custody. Both Thompson and Fannon pleaded guilty to charges of failure to appear. The trial court refused to merge any of the counts and sentenced Thompson to an aggregate prison term of 15 and one-half years and Fannon to an aggregate prison term of 11 and one-half years, each defendant's sentence included an 18-month sentence for failure to appear.

{¶6} The trial testimony and exhibits established that A.T. was born healthy on November 12, 2013 to Fannon and Thompson. Her health was typical and normal during her first few weeks of life. At A.T.'s two-month appointment, her pediatrician Dr. Zidron identified a small healing bruise on A.T.'s jaw line that is unusual for nonmobile infants. She also diagnosed A.T. with an upper respiratory infection and a failure to thrive. Dr. Zidron scheduled a two-week follow-up appointment to monitor A.T.'s condition but Fannon and Thompson failed to bring A.T. to that appointment. Dr. Zidron did not see A.T. again.

{¶7} On Friday evening, February 28, 2014 at about 9:20 p.m., Fannon took A.T. to the emergency room at O'Blenness Memorial Hospital. Fannon told the emergency room physician, Dr. Nathan Lowien, that a two-year-old cousin had fallen on A.T. on Wednesday, February 26 and caused a bruise on her forehead and swelling of her right foot. Dr. Lowien noted that A.T. appeared more fatigued than normal. Dr. Lowien was concerned that A.T. was abnormal for her age and that her injuries did not add up with the reported event of a two-year-old child falling on her. Fannon did not give any other cause for A.T.'s injuries. Dr. Lowien notified Children's Protective Services because he was concerned that A.T. had suffered abusive injuries. Dr. Lowien testified that A.T.'s condition was serious, so he transferred her to Nationwide Children's Hospital by ambulance for further testing and evaluation. Fannon did not accompany A.T. in the ambulance.

{¶8} During the trip to Nationwide Children's Hospital, the emergency medical technician became concerned because A.T. would not wake up. The technician had to resort to flicking A.T.'s foot firmly to get her to wake up. When A.T. did finally wake up, the technician testified that A.T.'s left eye started moving to the left, which could be indicative of a brain injury. A.T. arrived at Nationwide Children's Hospital at approximately 1:45 am Saturday, March 1, 2014.

{¶9} A number of physicians treated A.T. during her hospitalization, including Dr. Brent Adler, a pediatric radiologist, and Dr. Megan Letson, a child abuse pediatrician. According to these physicians A.T. suffered a complex skull fracture, going in multi-directions, multiple healing rib fractures on both the front and back portions of the ribs, a healing fracture on the right femur, three broken fingers on her right hand, healing fractures of the pubic bone, a fracture of the left toe, fractured acromions (shoulder blade), a healing fracture on the left tibia, a frenulum tear (the tissue that connects the lip to the gum), and a significant, life-threatening brain injury with swelling and blood on the brain. A.T. suffered "metaphyseal fractures" resulting from a shaking or other non-accidental trauma and her brain injury resulted in global developmental delay, which includes delayed speech, gross motor, and fine motor skills.

{¶10} Dr. Adler was confident the brain injury was more than twelve hours old and probably twenty-four hours given the degree of definition in the scan and placed A.T. at risk of becoming brain dead. Other fractures were determined to be one week old to four weeks old, depending upon the specific bone fractured. Both doctors testified that the injuries were inconsistent with accidental trauma, extremely unusual in nonmobile infants, could not be explained by the incident involving the young toddler jumping or falling on A.T., and were the result of at least two separate traumatic incidents. Moreover, Dr. Adler determined that A.T. had no features that would indicate she had Osteogenesis Imperfecta (brittle bone disease ).

{¶11} Dr. Letson testified that frenulum tears in a nonmobile infant are caused by a blunt object to the mouth, such as forced bottle or spoon feeding or a punch to the mouth that is accompanied with sudden profuse bleeding. However, Fannon and Thompson told Dr. Letson that A.T. had no history of bleeding of the mouth. Dr. Letson considered A.T.'s injuries to be inflicted, rather than accidental, and her final diagnosis was "physical abuse which included abuse of [sic]¹ head trauma."

{¶12} A.T.'s adoptive mother, Melissa Trombley, testified that she was A.T.'s foster mother before adopting her. Trombley testified that A.T. continues to receive medical care after her release from Nationwide Children's, including orthopedic surgeons, a neurologist, a neurosurgeon, and several doctors at a traumatic brain injury clinic. A.T. suffers developmental delays in mobility and speech and was unable to crawl because she lacks the use of her right arm; she sees an occupational therapist to help her develop motor skills. Trombley testified that A.T. is legally blind, has no depth perception and has no peripheral vision. Trombley testified that A.T walks with her left foot down but on her right toes to the side and that she walks sideways because of her vision problems. Trombley testified that A.T. continues to receive therapy at a special preschool for children with disabilities. Trombley testified that since A.T. has been in Trombley's care A.T. has not broken any bones or suffered any injuries that would require hospitalization.

{¶13} Because of the abusive nature of A.T.'s injuries, Detective Brice Fick and Detective John Deak of the Athens County Sheriff's Office became involved. Detective Deak interviewed Fannon and Thompson on March 1, 2014; both detectives interviewed Fannon and Thompson again on March 7, 2014. Deak testified that from his interviews of Fannon and Thompson he learned that Thompson was unemployed. Fannon was employed at a Hocking Hills inn/restaurant but it was a slow period and she worked only 15 hours a week. Fannon and Thompson told both detectives that they were A.T.'s primary caregivers and that A.T. was in their care 98% of the time, though there was an occasional hour or two a week when Thompson would have his mother watch her.

{¶14} Thompson told Detective Deak that on Thursday, February 27, 2014, he had noticed A.T.'s eyes start to cross and slant downward. Thompson explained to Deak that he had learned that A.T.'s injuries were caused the previous day, Wednesday February 26, when an eighteen-month-old cousin had accidentally jumped on A.T. while Thompson's mother was watching her. Thompson told Deak that A.T. was in his mother's care from 11:00 am until 8:30 pm, while he and Fannon helped Thompson's brother move. Thompson told Deak that A.T. appeared normal on Wednesday evening when he picked her up from his mother. Fannon had gone to work at approximately 5 pm Wednesday and returned home at approximately 10:30 pm. Fannon told Deak that when she returned home from work that evening A.T. seemed fine and was sleeping.

{¶15} Thompson's mother, Teresa Tolliver, testified that A.T.'s injuries occurred when a seventeen-month-old cousin² jumped on her. Tolliver described how the cousin jumped from the coffee table to the couch, a distance of about one foot, and landed on A.T.'s lower body. Tolliver testified that she picked A.T. up and looked at her and did not believe A.T. had been hurt. Tolliver stated that A.T. was always under her supervision that day and neither Tolliver nor anyone else in the home caused any other injuries to A.T. The jumping incident was insignificant enough to Tolliver that she did not report it to Thompson when he came to pick up A.T. that evening.

{¶16} Both Fannon and Thompson denied causing A.T.'s injuries and, other than the jumping incident involving the young cousin, had no other explanation for her injuries. Other relatives testified that they did not cause the injuries to A.T. nor did they witness...