State v. Tenney, 031819 OHCA11, 2018-T-0019

Docket Nº:2018-T-0019
Opinion Judge:MARY JANE TRAPP, J.
Party Name:STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL RUSSELL TENNEY, Defendant-Appellant.
Attorney:Dennis Watkins, Trumbull County Prosecutor, Gabriel M. Wildman, Assistant Prosecutor, and Ashleigh Musick, Assistant Prosecutor, (For Plaintiff-Appellee). Stephen A. Turner, Turner, May & Shepherd, (For Defendant-Appellant).
Judge Panel:TIMOTHY P. CANNON, J., MATT LYNCH, J., concur.
Case Date:March 18, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-927

STATE OF OHIO, Plaintiff-Appellee,

v.

MICHAEL RUSSELL TENNEY, Defendant-Appellant.

No. 2018-T-0019

Court of Appeals of Ohio, Eleventh District, Trumbull

March 18, 2019

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR 159.

Dennis Watkins, Trumbull County Prosecutor, Gabriel M. Wildman, Assistant Prosecutor, and Ashleigh Musick, Assistant Prosecutor, (For Plaintiff-Appellee).

Stephen A. Turner, Turner, May & Shepherd, (For Defendant-Appellant).

OPINION

MARY JANE TRAPP, J.

{¶1} Appellant, Michael Russell Tenney, appeals his convictions for felonious assault and two counts of endangering children following a jury trial in the Trumbull County Court of Common Pleas. After a careful review of the record and pertinent law, we affirm.

Substantive History and Procedural Background

{¶2} K.T. and his 20-month old brother were visiting their grandfather, Mr. Tenney, at his home in Champion Township. K.T. and his brother were playing. At some point, Mr. Tenney became angry and sent K.T. to his room. Mr. Tenney then grabbed KT.'s arm with two hands and yanked it hard.

{¶3} Following the incident, Mr. Tenney contacted KT.'s father, Zach Tenney, who arrived shortly thereafter. Zach Tenney then called KT.'s mother, Kristin Starkey, who is an EMT. She requested K.T. be taken to Trumbull Memorial Hospital.

{¶4} Ms. Starkey met K.T. and Zach Tenney in the waiting room of the emergency department. K.T. initially told her he had accidentally jumped off the couch. Upon viewing KT.'s arm, she immediately obtained medical assistance for him.

{¶5} Dr. Mark Swift, medical director of the emergency department at Trumbull Memorial Hospital, examined K.T. The x-rays showed K.T. experienced a supracondylar fracture, or a fracture at the elbow. The bones were completely displaced, resulting in a Grade 3 fracture, which is the most severe. Based on the extent of the injury, Dr. Swift did not believe K.T. jumped off the couch. As a mandatory reporter under the law, Dr. Swift directed his nurse to contact children services and the police for suspected child abuse.

{¶6} Sergeant Michael Platt of the Trumbull County Sheriff's Department was dispatched to Trumbull Memorial Hospital as a result of the hospital's report. Sergeant Platt spoke with K.T., who initially claimed he fell off the couch. During further conversation, K.T. told Sergeant Platt that Mr. Tenney had hurt his arm by "pulling on it too hard." K.T. further told Sergeant Platt that Mr. Tenney had instructed him to say he fell off the couch so Mr. Tenney would not get in trouble.

{¶7} Due to the severity of the fracture, K.T. was transferred to Akron Children's Hospital. Shannon Smith, a licensed social worker at the hospital, interviewed K.T. He initially told her he injured his arm after jumping off the couch. During further conversation, however, K.T. told her Mr. Tenney "yanked" his arm because Mr. Tenney thought K.T. had hit his little brother.

{¶8} K.T. underwent surgery at Akron Children's Hospital and received three pins in his elbow.

{¶9} Toni Thompson, a former investigator at the Trumbull County Children's Services, interviewed K.T. at the Child Advocacy Center in Boardman, Ohio. Patrolman Daniel Wasko, Jr., of the Champion Police Department was also present and watched through a one-way mirror. Throughout the interview, K.T. indicated that Mr. Tenney had pulled his arm too hard.

{¶10} Following a medical exam, Ms. Thompson prepared a report that was presented to the Child Assault Prosecution Team, which is comprised of law enforcement, children services, special counselors, and Trumbull County prosecutors.

{¶11} On March 8, 2017, the Trumbull County Grand Jury indicted Mr. Tenney on (1) felonious assault, a second degree felony, in violation of R.C. 2903.11(A)(1) and (D)(1)(A), (2) endangering children, a third degree felony, in violation of R.C. 2919.22(A) and (E)(2)(C), and (3) endangering children, a second degree felony, in violation of R.C. 2919.22(B)(3) and (E)(3). Mr. Tenney pleaded not guilty and was held without bond.

{¶12} The state and Mr. Tenney's initial trial counsel filed a joint stipulation for use of a polygraph examination to be conducted at a later date. It was agreed that the polygraph would be admissible unless the results were "inconclusive." The examination was conducted on April 30, 2017, and the August 29, 2017 report noted "physiological changes indicative of deception."

{¶13} At a subsequent pretrial hearing, the state placed a plea offer on the record recommending a two-year prison sentence in exchange for a guilty plea to the indictment. Mr. Tenney's trial counsel told the trial court Mr. Tenney rejected the offer.

{¶14} The trial court then informed Mr. Tenney that if the jury were to convict him at trial, the sentencing range was two to eight years in prison. In response, Mr. Tenney stated, "My attorney has advised me not to, not to take the plea." The trial court engaged Mr. Tenney in the following colloquy:

{¶15} "[MR. TENNEY]: I don't feel I should plead guilty for something I didn't do.

{¶16} "[TRIAL COURT]: Well, I'm not telling you to do that. I just want to make sure that you understand the offer that was expressed to you, and that you know what you're rejecting so you know what you're giving up.

{¶17} "[MR. TENNEY]: I understand that."

{¶18} The trial court gave Mr. Tenney and his trial counsel additional time to discuss the plea offer regarding a separate probation violation. Subsequently, the following exchange occurred:

{¶19} "[TRIAL COUNSEL]: Thank you, Your Honor, for giving me a few minutes to inquire with my client. He maintains his innocence and wants to proceed to trial.

{¶20} "* * *

{¶21} "[TRIAL COURT]: Mr. Tenney, you understand as of today...

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