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State v. Burch

Court of Appeals of Ohio, Seventh District

September 18, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SAMANTHA BURCH, DEFENDANT-APPELLANT.

Criminal Appeal from Common Pleas Court, Case No. 10CR164.

For Plaintiff-Appellee: Attorney Jane Hanlin Prosecuting Attorney

For Defendant-Appellant: Attorney Bernard Battistel

Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro

OPINION

VUKOVICH, J.

(¶1} Defendant-appellant Samantha Burch appeals after pleading no contest to child endangering in the Jefferson County Common Pleas Court. First, she argues that the trial court abused its discretion in sentencing her to the maximum of thirty-six months in prison for this felony of the third degree. Then, she contends that her counsel rendered ineffective assistance by recommending that she plead no contest rather than proceeding to a jury trial. For the following reasons, these arguments are without merit, and the trial court's decision is affirmed.

STATEMENT OF THE CASE

(¶2} On November 19, 2010, the police raided a methamphetamine-making house in Wells Township. During the investigation, the police learned that appellant's one year old child was in the area and in need of medical attention. The child was found with severe burns to her private areas and inner thighs. She was immediately transported to the local hospital and then transferred to a Columbus hospital where she stayed for nearly three weeks.

(¶3} The mother reported to the first hospital that the child had diaper rash, but the physicians stated that the injuries were burns, possibly caused by a liquid or substance. Besides the burns and the resulting infection, the child was severely dehydrated and her urine tested positive for methamphetamine. The child had also bruises on her arm and back and behind her left ear, which did not appear accidental.

(¶4} Appellant was arrested and later indicted for child endangering under R.C. 2919.22(A), which applies when a parent creates a substantial risk to the health or safety of their child by violating a duty of care, protection, or support. The offense was a third degree felony under R.C. 2919.22(E)(2)(c) because the child suffered serious physical harm.

(¶5} On September 12, 2012, appellant pled no contest to the charge. The prosecution recited a statement of the facts, and the court found appellant guilty. The child's paternal grandmother and appellant spoke at sentencing. The grandmother testified that upon the child's admission to the hospital, she was badly burned, bleeding, underweight, undernourished, and in severe pain. (Tr. 20-21, 23). The child had an infection, and she screamed as her wounds were scrubbed. The grandmother also explained that the child had to be placed on a feeding tube. (Tr. 20).

(¶6} Upon release from the hospital, the child went to live with this paternal grandmother, who was later granted custody. (Tr. 25, 31). The grandmother testified that the mother was entitled to visit with the child two hours per week but stopped visiting in November of 2011 and does not call her. (Tr. 25-26). The grandmother never saw the mother shed a tear over the child. (Tr. 26). She disclosed that when she once asked appellant to change the child's diaper, the mother refused. (Tr. 25).

(¶7} The child still suffers pain from her injury, especially during the required scar massages. (Tr. 23, 27). The grandmother explained that the child will need to undergo "slicing" as she grows because her scar will not grow with her skin. (Tr. 27-28). The grandmother also pointed out that the child had previously been hospitalized as a result of her handling a stripping solvent while under appellant's care. As a result of this exposure, the child was put on a ventilator and underwent a surgery requiring her to have an open abdomen for several days. (Tr. 29, 38).

(¶8} Appellant exercised her right of allocution. She stated that she did change the child's diaper once when the grandmother asked. (Tr. 40-41). With regards to visitation, she stated that it was hard to find a ride, and she complained that the grandmother started making comments that she was the mother now. (Tr. 41). She also stated that the child's father brings the child to her every couple months since she stopped visiting at the grandmother's house. (Tr. 41-42). She claimed that the grandmother stopped responding to her calls so she calls the child's father instead. (Tr. 42-43). Appellant stated that she received her GED several months ago but had no certificate because it costs extra. (Tr. 43). She then revealed that she has a ten-week old child. (Tr. 43).

(¶9} As for the incident at issue, she claimed that five or six days prior to the incident, a babysitter noticed diaper rash but thought it cleared up. When this babysitter was too sick to care for the child, she left her daughter with a man (who was the father of her nephew and who she called her child's "uncle") while she went to work at a strip bar and so that she could abuse methamphetamine. (Tr. 46, 55, 60). She stated that she and others had suspicions that this man was abusive to her daughter in the past as her daughter had previously suffered a burn from a space heater and a bruise on her check while with him. (Tr. 46-47). Still, it seems she left her daughter with him for days. (Tr. 46).

(¶10} She stated that she retrieved the crying child one night and slept with the child that night. She claimed that she noticed the injuries when she changed the child's diaper the next day and the police then "thankfully" arrived. (Tr. 48). She estimated that she had not changed her daughter's diaper ...


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