State v. Krull

Citation154 Ohio App.3d 219,796 NE 2d 979
Decision Date02 September 2003
Docket NumberNo. CA2002-06-146 and CA2002-06-153.,CA2002-06-146 and CA2002-06-153.
PartiesThe STATE of Ohio, Appellee, v. KRULL et al., Appellants.
CourtUnited States Court of Appeals (Ohio)

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Robin N. Piper, Butler County Prosecuting Attorney, and Randi E. Froug, Assistant Prosecuting Attorney, for appellee state of Ohio.

Mary K. Dudley, for appellant, Melissa Krull.

Christopher J. Pagan, for appellant Bart Hilt.

WILLIAM W. YOUNG, Judge.

{¶ 1} Defendants-appellants, Melissa Krull and Bart Hilt, appeal from their convictions in the Butler County Court of Common Pleas for endangering children.

{¶ 2} On September 12, 2001, Michelle Money, an intake social worker at Butler County Children Services ("BCCS"), received a referral regarding sixyear-old C.V. Because the referral was deemed an emergency, Money was escorted to the Krull residence by two Middletown police officers to investigate.

{¶ 3} When C.V.'s mother, Melissa Krull, answered the door, Money advised her that they were investigating allegations that her son had marks on him. According to Money, Krull became upset and said that she didn't abuse her kids, but stated, "We kicked his ass, we kicked his ass good."

{¶ 4} On further investigation, Money and the police officers observed marks on C.V.'s buttocks. Money described the marks as "slashes going through, side to side, inside of a bruised area" that appeared to be raised, along with a mark with blood on his leg.

{¶ 5} According to Money, Krull stated that C.V. had gotten into trouble at school and Krull had spanked him two to three times with a switch. When C.V. squirmed and laughed at her, she held C.V. down while her boyfriend, appellant Hilt, switched C.V. four to six more times. According to the officers, Hilt told them that he "may have hit C.V. too hard." Money and the officers removed C.V. from the home and took him to the hospital for an examination.

{¶ 6} Dr. Martin Dunskee examined C.V. at the hospital. Dr. Dunskee described C.V.'s injuries as linear contusions across the buttocks, upper back, and the back of his legs. He also described abrasion injuries. Dr. Dunskee stated that to break the capillaries, the blows had to be at least moderately hard and that more of a significant blow was necessary to make the contusions. He stated that it was doubtless that the contusions were painful because the strikes were hard enough to break and tear capillaries under the skin. According to Dr. Dunskee, the worst pain would be experienced while getting the bruise, but blood anywhere outside the body is irritating, and the bruises would continue to be painful when moving around. He stated that he generally tells patients to take Motrin or Tylenol for the pain.

{¶ 7} Appellants were each charged with one count of child endangering with a specification that they caused serious physical harm. They were found guilty of the charges and were sentenced accordingly by the trial court. Appellants separately appealed their convictions and the cases were consolidated on appeal. Appellants' assignments of error are each discussed individually below.

Melissa Krull's Appeal

{¶ 8} On appeal, Krull raises four assignments of error.

Assignment of Error No. 1

{¶ 9} "The trial court erred in overruling the Criminal Rule 29 motion where there was no evidence of serious physical harm."

Assignment of Error No. 2

{¶ 10} "The verdict is against the manifest weight of the evidence."

Assignment of Error No. 3

{¶ 11} "The trial court erred in not permitting the defense expert to testify whether the child was an abused child."

Assignment of Error No. 4

{¶ 12} "The trial court erred in excluding the daycare records of C.V.."

{¶ 13} In her first assignment of error, Krull contends that the trial court erred in denying her Crim.R. 29 motion. When reviewing the trial court's denial of a motion for acquittal under Crim.R. 29, this court applies the same test as it would in reviewing a challenge based upon the sufficiency of the evidence to support a conviction. State v. Thompson (1998), 127 Ohio App.3d 511, 525, 713 N.E.2d 456. 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. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

{¶ 14} Krull argues that her Crim.R. 29 motion should have been granted because the state failed to present sufficient evidence to establish that C.V. suffered serious physical harm. As mentioned above, appellants were charged with child endangering with a specification of serious physical harm. See R.C. 2919.22(E)(2)(d). The Ohio Revised Code defines "serious physical harm" as:

{¶ 15} "(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

{¶ 16} "(b) Any physical harm that carries a substantial risk of death;

{¶ 17} "(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

{¶ 18} "(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

{¶ 19} "(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain." R.C. 2901.01(A)(5).

{¶ 20} The state alleged that the evidence was sufficient to establish "temporary, serious disfigurement" and "acute pain resulting in substantial suffering." Krull argues that C.V. did not testify that he was in pain. She also argues that while the photographs show bruising, the state's expert could say only that there was pain at the time of bruising and while the bruise heals, but he did not discuss the extent of pain. She further argues that the doctor's records do not show that C.V. complained of pain or that the doctor prescribed anything to relieve pain. Krull also argues that the testimony of her medical expert was that the bruises were superficial.

{¶ 21} However, there was also testimony from Money and the police officers that when they investigated two days after the switching, there was extensive bruising on C.V.'s buttocks and legs, some of which involved raised linear marks, and a bloody cut. Several photographs were introduced at trial documenting the severity of the bruises. Dr. Dunkee testified at trial and described the extent of C.V.'s injuries and that the bruises would have been painful when inflicted and continued being painful for seven to ten days. He also stated that in this type of case, he would recommend Tylenol or Motrin for the pain.

{¶ 22} This court has previously found the evidence sufficient to establish serious physical harm where there were bruises around a child's buttocks and back, described as moderate, purple and red in color, and somewhat raised and swollen, and where the jury had the opportunity to view the photographs of the injuries and determine the extent of the injury. State v. Burdine-Justice (1998), 125 Ohio App.3d 707, 709 N.E.2d 551.

{¶ 23} We find the evidence in this case, viewed in a light most favorable to the prosecution, similar to that of Burdine-Justice. Accordingly, we find that the evidence was sufficient to establish the elements of child endangering, including the element of serious physical harm. Evidence was presented that C.V. suffered bruising and marks on his buttocks and thighs that caused pain that likely lasted several days after being inflicted. The bruises were severe enough for Money to remove C.V. from his mother's care and to take him to the emergency room for an examination. Appellant's first assignment of error is overruled.

{¶ 24} In her second assignment of error, appellant contends that the verdict was against the manifest weight of the evidence. An appellate court will not reverse a judgment as against the manifest weight of the evidence in a jury trial unless it unanimously disagrees with the fact-finder's resolution of any conflicting testimony. State v. Thompkins (1997), 78 Ohio St.3d 380, 389, 678 N.E.2d 541. The standard for reversal of a verdict that is against the manifest weight of the evidence has been summarized as follows:

{¶ 25} "The court, 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717. In making this analysis, the reviewing court must be mindful that the original trier of fact was in the best position to judge the credibility of the witnesses and the weight to be given to the evidence. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus.

{¶ 26} Appellant argues that the verdict was against the manifest weight of the evidence for the same reasons expressed in her first assignment of error, that there was insufficient evidence of serious physical harm. We disagree. As mentioned above, there was sufficient evidence which, if believed, could establish serious physical harm. Furthermore, the jury not only heard the testimony of the witnesses regarding C.V.'s injuries, but also had the opportunity to view the photographs and to see the extent of the injury. Thus, we cannot say that the jury clearly lost their way in determining that serious physical harm...

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