State v. Wilson

• Decision Date: 12 May 2015
• Docket Number: Case No. 13CA3542
• Citation: 2015 Ohio 2016
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. BRANDON J. WILSON, Defendant-Appellant.
• Court: Ohio Court of Appeals

2015 Ohio 2016

STATE OF OHIO, Plaintiff-Appellee, v. BRANDON J. WILSON, Defendant-Appellant.

Case No. 13CA3542

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

May 12, 2015

DECISION AND JUDGMENT ENTRY

APPEARANCES:

COUNSEL FOR APPELLANT: Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036

COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Hutchinson, Scioto County Assistant Prosecuting Attorney, 612 6^th Street, Portsmouth, Ohio 45662

CRIMINAL CASE FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. The jury found Brandon Wilson, defendant below and appellant herein, guilty of (1) murder in violation of R.C. 2903.02(B); and (2) child endangering in violation of R.C. 2919.22(A). The court sentenced appellant to serve consecutive prison terms of fifteen years to life for murder and three years for child endangering.

{¶ 2} Appellant raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"THE COURT ERRED IN REFUSING TO CHARGE THE JURY WITH LESSER INCLUDED OFFENSES."

SECOND ASSIGNMENT OF ERROR:

"THE COURT ERRED BY NOT MERGING THE CONVICTIONS FOR PURPOSES OF SENTENCING."

THIRD ASSIGNMENT OF ERROR:

"THE COURT ERRED IN RULING THAT [M.W.]'S

STATEMENTS WERE EXCITED UTTERANCES."

{¶ 3} On November 19, 2012, around 2:00 a.m., Tierra Simeona called 911 and requested an ambulance. She informed the dispatcher that her ten-month old child (N.W.) appeared to be "having a seizure or something," i.e., he had his fists closed and curled up to his chest, his legs were stiff, and his feet were out-stretched.

{¶ 4} Just after 2:00 a.m., paramedics arrived at Tierra's home and immediately noted that the child was in critical condition. The child was "posturing," which indicated that the child had a severe brain injury. They rushed the child to Southern Ohio Medical Center. When the emergency room doctor examined the child, he quickly assessed that the child was "near death." The doctor then stabilized the child for transfer to Nationwide Children's Hospital in Columbus. Subsequent testing at Nationwide revealed that the child had a fresh subdural hemorrhage, a skull fracture, severe retinal hemorrhaging in both eyes, and severe brain swelling. Despite efforts to save the child, he did not survive.

{¶ 5} After the child arrived at Nationwide, Dr. Mary Leder spoke with appellant (Tierra's live-in boyfriend) and Tierra to obtain a history. Tierra reported that the child had fallen downthree or four stairs earlier in the month. Tierra was not home when it happened, but appellant explained that he heard the child fall and then found the child on his back. Tierra and appellant told Dr. Leder that approximately two weeks earlier, the child fell from the seat of a grocery cart into the basket. Neither appellant nor Tierra informed Dr. Leder of any injuries or falls that had occurred during the past twenty-four hours.

{¶ 6} Scioto County Sheriff's detectives arrived at Nationwide and spoke with Tierra and appellant. They learned that appellant had been alone with the child during the approximately nine hours before Tierra called 911. Appellant stated that the child had been asleep at 1 a.m. and was fine. He explained that the child had fallen down the stairs a few weeks earlier, on November 1, and that the child had fallen from a grocery cart seat into the basket a couple of weeks earlier. Appellant stated that the child had been "a little out of it * * * the past couple of weeks" and was "not himself, just real tired acting." Appellant informed the detectives that on the night of the incident, he had given the child Pedialyte, and the child vomited. Appellant then gave the child a bath and placed him in his crib to sleep. Appellant claimed that the child was fine, except he was "wheezing a lot, and having trouble breathing." Appellant stated that after Tierra arrived home from work, he heard the child breathing heavily and went to check on him. When he saw the child, he thought the child was "seizing. Like his arms were curled in and his feet were straight out."

{¶ 7} Detective Jodi Conkle advised appellant that the medical evidence showed that the child had recently sustained the injuries and that the injuries were not from two weeks ago. She asked him if the child had hit his head on anything, if he fell, or if he was dropped. Appellant responded, "Not that I can remember." He continued, "He might have fallen when I wasn't in theroom * * * but if he had fallen when I was out I would have heard him cry or I would have known about it." Detective Conkle asked appellant on three occasions if the child had suffered any recent falls, drops, etc., and each time, appellant responded negatively. During this initial interview, appellant offered no explanation whatsoever as to how the child could have sustained the recent fatal injuries.

{¶ 8} Detective Conkle interviewed appellant again on December 3, 2012. Appellant explained that on the evening of November 18, the child had acted fussy. Appellant stated that he gave the child a bottle, and the child vomited. Appellant later placed the child in his crib, and the child fell asleep. He stated that when Tierra arrived home from work, she checked on the child and the child was fine. Appellant stated that approximately thirty minutes later, he heard the child breathing heavily and walked into the room. He found the child "seized up."

{¶ 9} Appellant eventually stated that the child fell off the couch during the evening of November 18. He explained that he had gone outside to smoke a cigarette and, when he returned, he found the child laying on the floor by the couch. Appellant comforted the child, but he did not observe any injuries that required medical assistance. Appellant denied shaking the child.

{¶ 10} During another interview with detectives, appellant claimed that "ever since [the child] fell off the couch * * * he was throwing up and * * * acting really weird." Appellant stated that when he found the child unresponsive in the early morning hours of November 19, he shook the child in an attempt to arouse him. Appellant did not remember how he shook the child but did not believe he shook him in a manner that would hurt him.

{¶ 11} The detectives also spoke with the child's doctors and learned that appellant's explanations could not possibly explain the child's severe and fatal injuries. Doctors surmisedthat the fatal injuries occurred somewhere in the six to twenty-four hours before the child presented to the emergency room.

{¶ 12} On December 18, 2012, a Scioto County grand jury returned an indictment that charged appellant with (1) aggravated murder in violation of R.C. 2903.01(C); (2) murder in violation of R.C. 2903.02(B); and (3) child endangering in violation of R.C. 2919.22(A). Appellant entered a not guilty plea, and on February 25, 2013, and continuing through March 5, 2013, the trial court held a jury trial.

{¶ 13} At trial, all of the state's medical experts testified that the child's pattern of injuries resulted from abusive head trauma and that the child's injuries—when considered in combination—could not have resulted from a fall from the couch.

{¶ 14} Dr. Mary Leder testified that she examined the child upon his arrival at Nationwide Children's Hospital. She unequivocally stated that the child's injuries were non-accidental. Dr. Leder explained: "The mechanism for producing subdural hemorrhages and retinal hemorrhages together is acceleration[-]deceleration in[jury] of the type that we see in forceful violent shaking." The prosecutor asked Dr. Leder if the injuries could have resulted from an accidental cause, and Dr. Leder responded:

"This child had severe retinal hemorrhages in all layers of the retina, not just in the center of the retina, but also to the * * * periphery of the retina. There have been numerous studies that have shown that this pattern of retinal injury, with splitting of the retinal layers, is strongly, highly, very strongly associated with abusive head trauma."

Dr. Leder further explained that "in the absence of a history of a severe motor vehicle crash * * * or a crush injury to the head, the only explanation for this type of retinal hemorrhaging is abusive head trauma."

{¶ 15} Dr. Leder testified that she has never seen a child's death result from a fall down the stairs, from a fall into a grocery cart basket, or from a fall off a couch that is eighteen inches high. When asked whether the child could have sustained the fatal injuries if he had pulled himself to a standing position while on the couch and then fell and hit his head, Dr. Leder stated that the child "would not have the massive retinal hemorrhages that this child had, nor would [the child] have the significant brain injuries that this child had." Dr. Leder testified that the studies of children who have had falls under four-feet high show that they do not suffer serious or fatal head trauma and that the chance of fatality from a short-distance fall is less than one in a million. Dr. Leder further explained that the child's eye injuries were not consistent with a short-distance fall and that a short-distance fall would not produce "massive, fatal head injury." She stated that a short-distance fall could cause a skull fracture or a small hemorrhage, "[b]ut [the child] could not have had the massive—the pattern of injury that he had."

{¶ 16} Dr. Leder further testified that "several hundred clinical studies" have "show[n] that when you have massive subdural hemorrhage, severe retinal hemorrhage, and a child who is in life threatening conditions, and nobody had any explanation for it, child abuse abusive head trauma, should be the number one diagnosis." Dr. Leder stated that the "child's pattern of injury, with the skull fracture, the subdural hemorrhage and the massive retinal hemorrhages was caused by shaking with impact." She explained that blunt impact...