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State v. Fitzgerald

Court of Appeals of Ohio, Twelfth District, Clermont

May 8, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL FITZGERALD, Defendant-Appellant.

         CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2015CR000317

          D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

          W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellant

          OPINION

          RINGLAND, J.

         {¶ 1} Defendant-appellant, Michael Fitzgerald, appeals his conviction in the Clermont County Court of Common Pleas for felony child endangering. For the reasons detailed below, we affirm Fitzgerald's conviction.

         {¶ 2} On June 4, 2015, a Clermont County grand jury indicted Fitzgerald for one count of endangering children, a violation of R.C. 2919.22(A). The indictment stemmed from allegations that Fitzgerald and his wife, Kaili, neglected their son, Z.F., by failing to provide him with adequate nourishment. The indictment specified that Z. F. suffered "serious physical harm." This specification elevated the charge from a misdemeanor to a third-degree felony. The grand jury indicted Kaili on an identical charge.

         {¶ 3} Z.F. was born June 5, 2014. The Fitzgeralds took him to a pediatrician for regular "well infant" visits through August 2014. In August 2014, Z.F.'s pediatrician determined that Z.F. was in the 25th percentile for infant weight.

         {¶ 4} For the next four months, the Fitzgeralds did not bring Z.F. to his pediatrician. Z.F.'s next appointment occurred on January 9, 2015 and the pediatrician observed that Z.F.'s weight now registered well below the third percentile for a seven-month-old child.[1] Z.F. had gained only nine ounces in the four months since his last check-up. A healthy child is expected to gain five to eight ounces a week.

         {¶ 5} The pediatrician sent Z.F. to Cincinnati Children's Hospital, where doctors admitted him and diagnosed him with failure to thrive. Z.F. remained at the hospital for five or six days. After receiving proper nutrition at the hospital, Z.F. quickly gained weight. Children's services became involved in the case and Z.F. was released to a relative. With proper care, Z.F. returned to a normal weight.

         {¶ 6} Fitzgerald told investigators that he worked, was away from the home most of the time, and was unaware that Kaili was not feeding Z.F. Kaili told investigators that she was depressed, that she would ignore Z.F. in favor of playing video games, and that she would leave Z.F. alone in his crib to cry. A text exchange between Fitzgerald and Kaili, introduced at trial, reflects them discussing and laughing about letting Z.F. "cry it out" in his crib and how long it would take before he would stop crying.

         {¶ 7} The WIC assistance program provided baby food to the Fitzgeralds. WIC records indicated that the Fitzgeralds received sufficient food to provide for Z.F.'s nutritional needs. Consequently, the Fitzgeralds simply were not feeding Z.F. regularly or in sufficient quantities.

         {¶ 8} The Fitzgeralds waived a jury trial and proceeded to a joint bench trial. Prior to trial, the Fitzgeralds stipulated to facts sufficient for the court to find them guilty of misdemeanor child endangering. However, the Fitzgeralds disputed that their failure to care for Z.F. caused him serious physical harm. Accordingly, the sole issue to be resolved by the trial court was whether Z.F. suffered serious physical harm.

         {¶ 9} At trial, each party called their own pediatric expert to testify. Although none of the experts personally treated Z.F., they had all reviewed his relevant medical records. Dr. Kathi Makoroff testified for the state. Dr. Makoroff was board certified in general pediatrics as well as child abuse pediatrics, a sub-specialty. The court recognized her as an expert in both specialties. Dr. Makoroff worked at the Mayerson Center, a child advocacy center at Cincinnati Children's Hospital. Dr. Makoroff opined that Z.F. suffered pain from starvation and that Z.F. would have experienced acute, severe, and prolonged pain for at least some of the time between August 2014 and January 2015. Dr. Makoroff described the pain as "hunger pains, " a "discomfort, " and an "emptiness." Dr. Makoroff testified that infants express pain through crying.

         {¶ 10} Dr. Lisa Prock, a pediatrician at Boston Children's Hospital, testified for Fitzgerald. The court recognized Dr. Prock as an expert in pediatric medicine. Dr. Prock testified that infants cry when they experience pain and that children who are being starved would feel pain. However, Dr. Prock could not offer a medical opinion as to whether Z.F. experienced any pain during the four months between pediatrics visits. Based on Z.F.'s medical records in ...


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