State v. Mallory

• Decision Date: 13 October 2022
• Docket Number: 111115
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. DEVON L. MALLORY, Defendant-Appellant.
• Court: Ohio Court of Appeals

2022-Ohio-3667

STATE OF OHIO, Plaintiff-Appellee, v. DEVON L. MALLORY, Defendant-Appellant.

No. 111115

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 13, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652296-A

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anna Faraglia, Assistant Prosecuting Attorney for appellee.

Buckeye Law Office and P. Andrew Baker, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE

{¶ 1} Defendant-appellant, Devon L. Mallory ("Mallory"), appeals from his convictions and sentence following a bifurcated trial. He raises the following assignments of error for review:

1. The trial court erred when it convicted defendant-appellant for felony domestic violence when the conviction was not supported by sufficient evidence and must be modified to a misdemeanor domestic violence conviction.

2. The trial court erred when it convicted defendant-appellant of child endangering under R.C. 2929.22(A) as the conviction was not supported by sufficient evidence.

3. The trial court erred when it improperly convicted defendant-appellant of involuntary manslaughter when a conviction was not supported by sufficient evidence.

4. The trial court erred when it convicted defendant-appellant under R.C. 2929.22(A), domestic violence as a felony, and involuntary manslaughter, when the facts were against the manifest weight of the evidence.

5. The trial court erred when it improperly convicted defendant-appellant on Counts 5, 6, and 7 as he did not receive effective assistance of counsel.

6. The trial court erred when it improperly imposed postrelease control and this term must be modified.

7. The trial court erred when it imposed a sentence pursuant to the Reagan Tokes Law.

{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for further proceedings before the trial court.

I. Procedural and Factual History

{¶ 3} In September 2020, Mallory was named in a seven-count indictment, charging him with aggravated murder in violation of R.C. 2903.01(C) (Count 1); murder in violation of RC. 2903.02(B) (Count 2); felonious assault in violation of R.C. 2903.11(A)(1), with a specification pursuant to R.C. 2941.1426(A) alleging that the victim suffered permanent disabling harm as a result of the offense and the victim was under ten years of age at the time of the offense (Count 3); endangering children in violation of R.C. 2919.22(B)(1), with a furthermore specification that the violation resulted in serious physical harm to the victim (Count 4); involuntary manslaughter in violation of R.C. 2903.04(A) (Count 5); endangering children in violation of R.C. 2929.22(A), with a furthermore specification that the violation resulted in serious physical harm to the victim (Count 6); and domestic violence in violation of R.C. 2919.25(A), with a furthermore specification that the offender previously pleaded guilty to or has been convicted of assault against a family or household member (Count 7). The indictment stemmed from allegations that Mallory caused the death of the minor victim, S.E. (d.o.b. 01/08/2019), on July 25, 2020.

{¶ 4} Mallory pleaded not guilty to the indictment, and the matter proceeded to a jury trial on Counts 1-6. Mallory voluntarily waived his right to a jury trial on Count 7 and elected to have the domestic violence charge tried before the bench. As pertinent to this appeal, the following facts were adduced at trial.

{¶ 5} On July 19, 2020, Christina Rosa ("Mother") moved into the home of her then boyfriend, Mallory, with her two minor daughters, S.E. and Su.E. Mother and her daughters lived in the home with Mallory, Mallory's three-year old son, J.M., and Mallory's teenaged brother, T.W. Mother testified that S.E. slept on a toddler bed that was located in the master bedroom where Mother and Mallory also slept. Su.E. slept in a nearby bedroom that also served as the children's toy room.

{¶ 6} On the morning of July 25, 2020, Mother woke up early to get ready for work. As part of her morning routine, Mother changed S.E.'s diaper, gave her a kiss, and tucked her back into bed. Mother then left for work at approximately 7:00 a.m. Throughout that day, Mother called Mallory on several occasions to see how Mallory and the children were doing. Mother testified that she last called Mallory at approximately 4:50 p.m. Mother summarized this conversation with Mallory as follows:

I asked him like, hey, how's the kids, do you or the kids need anything before I clock out of work? He told me, no, we don't need nothing, and the conversation kept going on until like me having to clock out. It lasted more than just a couple of minutes.

He did tell me like, hey, I have a question for you. The odd question was does [S.E.] hum in her sleep, and I told him what do you mean by humming in her sleep? That doesn't make sense to me. He said, well, she took a nap, she has been taking a nap for a while. And I'm like is she looking red in her face, and I'm like normally because she does cover her face. You should take [the blanket] off. She will be - like the redness will come down. He told me he did take it off, but she wasn't responding.

* * *

After a couple of times of me telling him to grab her, because you grabbing a child will wake her up or just call her name. She wasn't responding. I told him call 911, just hang up on me, and I ran out of work and was on my way.

(Tr. 411-412.)

{¶ 7} Mallory called 911 at approximately 5:23 p.m. The eight-minute 911 call was played for the jury in its entirety. (Tr. 370.) During the 911 call, Mallory informed the 911 operator that he learned from his son that S.E. fell on a toy while she was playing with the other children. (Tr. 372-373.)

{¶ 8} Emergency medical services arrived at the home at approximately 5:31 p.m. and discovered S.E. unresponsive in an upstairs bedroom. Matthew Kalas ("Kalas"), a firefighter and paramedic employed by the city of Euclid, testified that S.E. had a "golf ball size hematoma to the left side of her forehead and a smaller hematoma to the right side as well." (Tr. 242.) According to Kalas, the adult male present at the scene expressed that S.E. was "playing and tripped on a toy and hit her forehead on the floor." (Tr. 242.) Kalas further testified that another "EMS member on the scene was told by an additional child that [S.E.] fell off the bed and hit her head." (Tr. 242.)

{¶ 9} Patrolman Samuel J. Thirion ("Officer Thirion") of the city of Euclid Police Department testified that he responded to Mallory's home after receiving a dispatch for "an 18-month-old female who was breathing and unresponsive." (Tr. 266.) Officer Thirion testified that when he arrived at the scene, S.E. was quickly removed from the home by the EMS first responders for further emergency care. Officer Thirion stated that he remained at the scene and separately spoke with Mallory, J.M., and Su.E. According to Officer Thirion, Mallory reported that S.E. had tripped over a Nerf gun and hit her head on the floor. Officer Thirion testified that Mallory was "just very flat, not very emotional." (Tr. 273.) In turn, J.M. and Su.E. stated that S.E. "fell off the bed." (Tr. 274.)

{¶10} S.E. was transported to University Hospitals Rainbow Babies and Children's Hospital at approximately 5:50 p.m. Once at the hospital, doctors determined that S.E. sustained a significant brain bleed, leading to a subdural hematoma causing a midline shift of the brain. Due to her extensive injuries, Dr. Krystal Tomei ("Dr. Tomei") attempted a hemicraniectomy to relieve pressure on S.E.'s brain. The procedure required surgeons to remove a portion of S.E.'s skull to allow the brain room to swell and to evacuate the blood clot. Dr. Tomei confirmed that time was of the essence because "as time goes by, the situation becomes worse and worse unless you can hope to relieve the pressure." (Tr. 619.) Despite the emergency efforts of the surgeons, however, S.E. succumbed to her injuries and died on July 31, 2020.

{¶11} Mother testified that while S.E. was being treated in the hospital, she contacted Mallory in an effort to determine the cause of S.E.'s injuries. According to Mother, Mallory stated

that [S.E.] fell off the bed jumping - when [Su.E.] and [J.M.] were playing on the bed, [S.E.] jumped off the bed and hit her head on the Nerf gun.

(Tr. 415.) Subsequently, however, Mother began to press Mallory for the truth because "it wasn't making sense * * * especially when the doctors tell you whatever the reason that was given at the beginning, that cannot cause her injuries, so I'm confused." (Tr. 421.) Mother testified that Mallory initially maintained that S.E. "fell off the bed," but later stated that "she fell in the shower." (Tr. 421.) Following this conversation, Mother blocked Mallory's phone number and did not engage in further conversations with him.

{¶ 12} Mallory's younger brother, T.W. testified on behalf of the state. He testified that he was in the home with Mallory and the young children until he left to play basketball at approximately 4:00 p.m. T.W. stated that at the time he went upstairs to tell Mallory that he was leaving, S.E. was with Mallory and was "just playing on the bed laughing." (Tr. 346.) When T.W. came home at approximately 5:30 p.m., he learned that S.E. had been injured. T.W. testified that he asked Mallory what had happened and Mallory responded "that [S.E.] - they was all upstairs playing on the bed and she hit her head on top of a Nerf gun." (Tr. 349.)

{¶ 13} Detective Jennifer Kroczak ("Det. Kroczak") of the city of Euclid Police Department, testified that she was assigned to investigate the circumstances of S.E.'s injuries. In the course of...