State v. Messenger
| Decision Date | 18 August 2022 |
| Docket Number | 21 CO 0017 |
| Citation | 195 N.E.3d 200 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Joseph S. MESSENGER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Atty. Vito Abruzzino, Columbiana County Prosecutor and Atty. Tammie M. Jones, Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee.
Atty. Mary Catherine Corrigan, Friedman Gilbert Gerhardstein, 50 Public Square, Suite 1900, Cleveland, Ohio 44113, and Atty. Allison F. Hibbard, The Brownhoist Building, 4403 St. Clair Avenue, Cleveland, Ohio 44103, for Defendant-Appellant.
BEFORE: David A. D'Apolito, Gene Donofrio, Carol Ann Robb, Judges.
OPINION AND JUDGMENT ENTRY
D'APOLITO, J.
{¶1} Appellant, Joseph S. Messenger, appeals his convictions for one count of endangering a child in violation of R.C. 2919.22(A), a felony of the third degree, and one count of assault in violation of R.C. 2903.13(B), a misdemeanor of the first degree, following a trial by jury in the Columbiana Court of Common Pleas. The trial court imposed a prison sentence of thirty months for the felony conviction, and a thirty-day jail sentence for the misdemeanor conviction, to be served concurrently, for an aggregate sentence of thirty months.
{¶2} Appellant advances four assignments of error. First, Appellant challenges the trial court's decision allowing the alleged victim, I.S., Appellant's then-eight-year-old daughter, to testify from a different courtroom by way of closed-circuit television. Next, Appellant asserts that the trial court abused its discretion when it prohibited the defense from offering testimony that I.S.’s mother had abused I.S. in the past. Third, Appellant contends that the trial court abused its discretion when it permitted repeated references to abuse during the trial, despite the fact that the indictment charged reckless, not intentional, conduct. Finally, Appellant argues that the trial court abused its discretion when it admitted expert testimony of a nurse practitioner, when a summary of her qualifications was not appended to her expert report.
{¶3} Having reviewed the record, we find that Appellant's first assignment of error has merit. Based upon the absence of a demonstration of good cause by the state for its failure to timely comply with R.C. 2945.481, and the prejudicial effect of the admission of I.S.’s testimony, Appellant's convictions are reversed and vacated, and this matter is remanded to the trial court for further proceedings.
LAW
{¶4} R.C. 2919.22, captioned "Endangering children," reads, in relevant part: "No person, who is the parent * * * of a child under eighteen years of age * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support." R.C. 2919.22(A). A violation of division (A) of this section that results in serious physical harm to the child constitutes a felony of the third degree. R.C. 2919.22(E)(2)(c). R.C. 2903.13, captioned "Assault," reads, in relevant part: "No person shall recklessly cause serious physical harm to another * * * *" R.C. 2903.13(B).
{¶5} R.C. 2901.22, captioned "Culpable mental states," provides in relevant part:
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
"Substantial risk" means a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist. R.C. 2901.01(A)(8).
FACTS
{¶6} Neither Appellant nor I.S.’s mother testified at trial. They were the only persons present and awake when I.S., their then-seven-year-old daughter (d.o.b. 6/13/12) suffered second-degree burns
as a result of a scalding incident in the bathroom tub at their apartment located at 1133 Prospect Street, Salem, Ohio, on October 2, 2019. As a consequence, the accounts of the events leading to I.S.’s injuries at trial, other than her own account, were taken from Appellant's conflicting narratives of the evening as reported on two separate occasions to the investigating police detective and a medical professional at the hospital where I.S. was transferred for treatment.
{¶7} I.S. was first seen at her local emergency room in Salem, Ohio, but due to the severity of her injuries, she was transferred by ambulance and admitted to the main campus of the Akron Children's Hospital.
{¶8} Paul McPherson, M.D., a pediatrician specializing in the diagnosis of child abuse at Akron Children's Hospital in Akron, Ohio, assessed I.S.’s injuries. Dr. McPherson was qualified as an expert witness at the trial without objection from the defense. Dr. McPherson explained that he was tasked with an assessment of I.S.’s injuries for child abuse and/or neglect because the medical professionals that provided I.S.’s treatment had concluded that "the history provided to medical providers did not seem to make sense in conjunction with the burn injuries, they were worried that something else might have happened." (Trial Tr., p. 529.)
{¶9} Appellant provided the following account of the events leading to I.S.’s injuries to Dr. McPherson. I.S. was prescribed a sleep aid, Trazadone, which was administered prior to her bedtime. At 10:00 p.m., I.S. awakened and Appellant and I.S.’s mother discovered that I.S. had urinated on the mattress on which she slept. The mattress is located in the closet of the master bedroom. Appellant sent I.S. to the bathroom to bathe, while he and her mother changed the sheets on the mattress.
{¶10} At some point, Appellant heard I.S. scream, then found her in the tub. Shortly after removing her from the tub, Appellant noticed that the skin on the top of I.S.’s feet was starting to blister. Appellant applied aloe to the top of I.S.’s feet and she was given a sponge bath to remove the odor of urine. Appellant and I.S. were driven to the emergency room by Appellant's grandparents, because neither of I.S.’s parents owned an automobile.
{¶11} Dr. McPherson's examination revealed second degree burns
to the skin on the top, but not the bottom, of I.S.’s feet, burns to her right mid-back, the back of her right elbow, and to her left upper-buttocks. He posited that the bottom of I.S.’s feet were not burned because they were pressed against the basin of the tub, which would have been markedly cooler than the water in the basin, while the top of her feet were directly exposed to the scalding water.
{¶12} Dr. McPherson testified that the injuries, especially to the skin on the top of I.S.’s feet, were severe and required hospitalization and significant pain management. I.S. was prescribed a combination of fentanyl
, morphine, and oxycodone "to deal with the pain of [the injuries] and the pain of dressing changes." (Id. , p. 542.) Appellant's grandmother testified that I.S. appeared to be in shock when she was being transported to the hospital.
{¶13} Detective Jordan Reynolds of the Perry Township Police Department conducted the police investigation. When he arrived at the Prospect Street apartment, Detective Reynolds activated the faucet in the tub without adjusting the water temperature. After fifteen to twenty seconds, the water temperature registered 127 degrees. The faucet, which is depicted in State's Exhibit three, is a large crystal knob, which tilts up and down to turn the water on and off, and turns to the left or the right to adjust the temperature of the water.
{¶14} Detective Reynolds further testified that the hot water tank, located in the hallway of the apartment, had three temperature settings, "A, B, and C," (VERY HOT). The tank was set on the highest temperature. A warning on the knob of the tank reads, "CAUTION: RISK OF SCALDING INCREASES WITH HOTTER WATER."
{¶15} After Detective Reynolds discovered the setting on the hot water tank, he asked I.S.’s mother, who was present with her other children at the apartment, if she had set it. She responded that she did not set it, as she "was not allowed to touch it." (Id. , p. 262.) Detective Reynolds contacted the maintenance supervisor at the apartment complex, who stated that he was the only individual with authority to adjust the temperature settings on the hot water tanks, and that he set every tank in the complex to "B."
{¶16} According to Dr. McPherson, 127-degree water is "well above adult pain threshold levels." (Id. , p. 539.) Further, when asked the length of time that the "submersion or contact with a hot liquid would be required before second degree burns
would be sustained," Dr. McPherson opined that one minute of exposure to 127-degree water would cause a third-degree burn. (Id. , p. 540.) While it is not clear whether Dr. McPherson meant one minute of submersion would result in second or third-degree burns, Dr. McPherson plainly stated that "the water would have been too hot for [I.S.] to want to stay in there at 127 degrees."
{¶17} More specifically, Dr. McPherson testified, "so if the water is coming out at 127 degrees or the water was 127 degrees in the bath, then [I.S.] has the developmental capabilities of removing herself from that before sustaining second degree burns
." (Id. , p. 539.) He further explained that "if [I.S.] was exposed to water hot enough to cause second degree burns from a bath or shower that she drew herself, she would have likely moved out of that bath or that shower before the skin was exposed long enough to have second degree burns
." (Id. )
{¶18} However, Dr. McPherson offered no testimony regarding the impact that the sleeping medication had on I.S.’s cognition or reaction time. He testified that sedatives affect children in differing degrees:
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