Court of Appeals of Ohio, Twelfth District, Clermont
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No.
Vincent Faris, Clermont County Prosecuting Attorney, Nicholas
Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio
45103, for plaintiff-appellee
Stephen Haynes, Clermont County Public Defender, Robert F.
Benintendi, 302 East Main Street, Batavia, Ohio 45103, for
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. 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
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 ...