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State v. Rivera

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga

July 25, 2013


Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-562101

Thomas A. Rein Leader Building, ATTORNEY FOR APPELLANT

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Jeffrey S. Schnatter Assistant County Prosecutor

BEFORE: McCormack, J., S. Gallagher, P.J., and Blackmon, J.



{¶l} Defendant-appellant, Marcos Rivera ("Rivera"), appeals from his conviction after the trial court found him guilty of domestic violence. For the reasons that follow, we affirm the trial court.

Substantive Facts and Procedural History

{¶2} On May 22, 2012, Marcos Rivera was indicted on three counts of endangering children in Counts 1, 2, and 3, and one count of domestic violence in Count 4. Codefendant, Nichole Langmack ("Langmack"), was also charged. Prior to trial, the court conducted a competency hearing regarding the child victim, N.L. Over the objection of Rivera's counsel, the court found N.L. competent to testify. Rivera and Langmack waived a jury, and the case proceeded to trial on October 10, 2012.[1]{¶3} At trial, N.L., who was five years old at the time of the trial, testified that his mother is "mommy" or "Nichole" (codefendant Langmack); his grandmother is "maw-maw" or "mama" (Langmack's mother); his biological father, James Stalker ("Stalker"), is "dad" or "Jimmy"; and Rivera is "Poppy." He stated that about a year ago, in the wintertime, he lived at his old home with mommy, mama, S-l, X, and S-2. He referred to S-l, who is ten years old, as his brother. S-l's father is Poppy, and his mother is Langmack. According to N.L., Rivera is like a father to him and that is why he calls him Poppy. His younger brother, X, is two years old, and they share the same father, James Stalker. N.L. stated that he did not know his little brother S-2's father. S-2, he said, is one month old.

{¶4} In March 2012, Langmack and Stalker shared custody of N.L. Stalker had N.L. every other weekend, every other holiday, and alternating Christmases at that time. On March 9, Stalker picked N.L. up from Langmack's house. He testified that he saw a cut on his chin. He called Langmack to inquire of the cut and got no answer. Stalker testified that he and Langmack were not on speaking terms at that time. He indicated that he saw no other injuries on N.L. that weekend other than "little scrapes and tiny scratches." Shannon Morrison, Stalker's niece, testified that she noticed the abrasion on his chin and did not think it was out of the ordinary, {¶ 5} On March 23, Stalker again picked N.L. up for the weekend. N.L. was wearing long pants and a long sleeved shirt at the time. Stalker testified that he noticed a bruise on N.L.'s ankle when his pant leg rose up as he was getting into Stalker's car. Stalker then dropped N.L. off at his son Shane Morrison's house because he had to work that evening. While at work, Stalker received a call from Amanda Morrison, Shane's wife. Amanda told Stalker that N.L. had multiple bruises on his body. Initially, Shannon discovered bruises on N.L.'s upper and lower legs when N.L. changed into shorts. Shannon later advised Amanda about the bruises. Shannon also noted that the cut on the chin looked like it was turning into a scar. When Amanda was giving N.L. a bath, Amanda discovered the bruises for herself.

{¶6} The following morning, Stalker picked N.L. up from Shane's house. It was then that he observed N.L.'s multiple bruises for himself. After speaking to N.L. about the bruises, Stalker went to the police station to advise the police of what he observed and learned about N.L.'s bruises. The police advised Stalker to take N.L. to the hospital. As advised, Stalker brought N.L. to the hospital for an examination.

{¶ 7} At the hospital, Dr. Maya Myslemski examined N.L. In the course of her examination, Dr. Myslemski noted that N.L. was pleasant and talkative and did not appear to be in physical pain or distress. Once N.L. was dressed in a hospital gown, she observed multiple bruises all over his body and a red mark on his chin.

{¶ 8} Dr. Myslemski testified as follows: the photographs submitted by the state fairly and accurately represent the bruising on N.L.'s thighs, arms, and back; some bruises were fresh and some were older, indicating different stages of healing; while she stated that it was difficult to determine exactly how old the bruises were, she approximated that some of the bruises were three days to one month old; some bruises were possibly accidental injuries, specifically those injuries on the front part of his body and areas of bony prominence that are typical locations for accidental injuries in children; other bruises were located in places not typical of an accidental injury and were suspicious and possibly defensive injuries, including the thigh area, backs of his legs, and both sides of the inner upper arm; and the injury on the chin was suspicious, because it was in a protected part of his face, he had no injury to his forehead, and he said he didn't fall.

{¶9} During the course of her examination of N.L., N.L. reported to Dr. Myslemski on multiple occasions that "Poppy hitting [him]." He specifically pointed to his chin. He did not, however, tell the doctor how the other injuries occurred. When the doctor specifically asked N.L. if he fell, he replied "no." She observed no abrasions to N.L.'s hands, which would be consistent with a fall. Dr. Myslemski testified that the bruises on N.L.'s right lower leg, specifically, may have been caused by fingertips grabbing, slapping, or holding with force, due to the oval shape of the bruising, {¶10} Dr. Myslemski opined that many of N.L.'s injuries were consistent with nonaccidental injuries and there was possible child abuse. She based this opinion on: her examination of the bruises; the existence of multiple bruises, the location of which were consistent with nonaccidental injuries; and her discussion with N.L. during which N.L. told the doctor that he got the bruises from Poppy hitting him with his hand. The discovery that N.L. was prescribed medication for attention deficit hyperactivity disorder and was prone to fits of rage did not change her opinion.

{¶ 11} Finally, Dr. Myslemski testified that none of N.L.'s noted injuries were serious enough to be life-threatening. She stated, however, that striking a child on the torso, abdomen, chest, and back can cause organ damage, internal bleeding, and death. She further stated that children who sustain abusive injuries are at risk for future abuse and injury, possibly even more severe. While she initially stated that the bruises indicated that child abuse was "possible, " she equated "possible" to "highly likely, " as later indicated.

{¶ 12} N.L. did not undergo any additional treatment that day beyond his examination. In giving the discharge instruction, the doctor advised that N.L. follow up with his primary care physician in one week. N.L. was discharged and went home with his dad, Stalker, {¶13} In response to an allegation of abuse concerning N.L., Emily Justice, a social worker, met with N.L. Ms. Justice testified that her purpose for meeting with N.L. was to assess his safety and any further medical needs, including his mental health. She testified that she observed a circular, pink mark below his lip and bruising on the front and back of his leg. She further testified that her evaluation of N.L. would include assessing whether there is a need for counseling. She testified that, in the course of determining whether counseling is appropriate, N.L. told her that Poppy hit him because he spilled his pop and he was being punished. Finally, she testified that N.L. demonstrated for her how Poppy hit him.

{¶ 14} According to N.L., he was at Poppy's house the week before he went to the hospital with his dad. He stated that he would sometimes spend more than one night at a time at Poppy's house. He testified that when he misbehaved at Poppy's house, Poppy would spank him or slap him with the belt. He also stated that Poppy would hit him with his hand on his "butt."

{¶ 15} N.L. testified that he told mommy, Detective Strickler, and the social worker, Ms. Justice the truth — that Poppy hit him because he spilled a drink. He also testified that it was a lie "because it hurts too much" and that the bruises were from falling. When asked what hurts too much, N.L. responded that Poppy "slapping and hitting me with the belt and hitting me on the butt" hurts too much. N.L. said that he lied to make the hurting stop. When asked how telling a lie would make the hurting stop, N.L. said that he did not know. Counting on his fingers, N.L. testified that Poppy hit him six times, and "in the lie, " Poppy hit him on his back and his sides.

{¶ 16} N.L. testified that he went to the hospital with his dad because he had bruises on both legs, his back, and a "boo-boo" on his chin. He acknowledged that the red mark present on his chin is from that same "boo-boo." When his dad asked him about the mark on his chin, N.L. told his dad that Poppy hit him. {¶17} Prior to closing arguments, the judge denied Rivera's renewed Crim.R. 29 motion for acquittal. At the conclusion of the bench trial, the court found Rivera not guilty of endangering children in Counts 1, 2, and 3. The court found Rivera guilty of domestic violence in Count 4. He was sentenced to 12-months incarceration, plus three years postrelease control, with credit for time served.

Assignments of Error

I. The trial court erred when it found the child to be ...

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