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State v. Dawson

Court of Appeals of Ohio, Seventh District, Mahoning

May 23, 2017


         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 13 CR 492

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Rhys Cartwright-Jones

          JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro


          ROBB, P.J.

         {¶1} Defendant-Appellant Larry Dawson appeals from his conviction and sentence entered in Mahoning County Common Pleas Court for felony murder, a violation of R.C. 2903.02(B). Appellant asserts four arguments for why his conviction should be overturned. First, he argues the use of child endangering as the predicate offense to felony murder violated his due process rights. Second, he argues there is insufficient evidence Appellant abused the victim and proximately caused the death. Third, he asserts the conviction is against the manifest weight of the evidence. Lastly, he contends there were multiple instances of harmless error during the trial which resulted in cumulative error requiring a new trial. For the reasons expressed below, none of these arguments have merit. Thus, the conviction and sentence are affirmed.

         Statement of the Facts and Case

         {¶2} Appellant and Rhea Stewart had one child, RayVon; the child was born September 8, 2011. Tr. 259. Although Appellant and Steward were not together, Appellant spent time with the child. Tr. 266, 271. On Saturday, December 8, 2012 Stewart took the 15 month old toddler to stay with Appellant for a couple days; the toddler was scheduled to stay at Appellant's house on 3031 Oregon Street, Youngstown, Ohio from Saturday December 8, 2012 through Thursday, December 13, 2012. 12/13/12 Interview State's Exhibit 8. Appellant lived with his girlfriend, Ashlee Artist, and her son, who was a couple months older than RayVon.

         {¶3} Stewart described RayVon as a typical 15 month old who was walking and learning to talk. Both Appellant and Artist confirmed the toddler was walking. The child's pediatrician also testified the toddler was developmentally a normal 15 month old.

         {¶4} During the visit, Appellant was the child's primary caregiver. At approximately 3:00 pm on Wednesday, Artist called 911 requesting an ambulance because Appellant had found RayVon unresponsive in the crib and white foam was coming out of his nose and mouth. The 911 operator instructed them how to administer CPR and told them an ambulance was on the way.

         {¶5} Officer Assad Chaibi of the Youngstown Police Department arrived on the scene prior to the ambulance. When he arrived, Appellant and Artist were outside the home. Tr. 312. The officer described Appellant's demeanor as very odd for a father; he stated Appellant was not emotional and did not seem concerned. Tr. 315. The officer found the toddler lying on a couch with a liquid substance coming out of his mouth and nose. Tr. 132. The officer began administering CPR. Tr. 313.

         {¶6} Once the ambulance arrived, the paramedic, Kimberly Nosek, administered CPR. Tr. 339. Upon asking Appellant questions about the toddler, she noted Appellant seemed unattached to the situation. Tr. 343. She avowed she asked Appellant if the child had experienced any accidents, falls, or hit his head. Tr. 344. Appellant responded no. Tr. 344.

         {¶7} The child was taken to St. Elizabeth's Health Center in Youngstown and then was flown to Akron Children's Hospital in Akron, Ohio. Dr. Vivek Malhotra, a pediatric intensivist at Akron Children's Hospital, testified when RayVon arrived at the hospital there was no evidence of clinical brain function. Tr. 400. In examining his eyes, the doctor observed bilateral retinal hemorrhages, which is often found in shaken or abused children. Tr. 402-403. The doctor testified the injuries RayVon had are typically seen in "very high impact injuries, " such as high speed motor vehicle accidents or a child falling from a second story building onto concrete. Tr. 413. RayVon died at the hospital on the morning of Thursday, December 13, 2012.

         {¶8} That afternoon, Appellant and Artist were interviewed by Detective Sergeant Patton. The detective specifically asked, "Has the baby fallen lately, hit his head?" 12/13/12 Interview State's Exhibit 8. Appellant responded saying RayVon might have hit his head on the wall Monday. 12/13/12 Interview State's Exhibit 8. He described it as bumping his head on the drywall by sitting back real hard. 12/13/12 Interview State's Exhibit 8. Appellant stated the toddler laughed after bumping his head. 12/13/12 Interview State's Exhibit 8.

         {¶9} Artist told the detective Appellant informed her RayVon fell down a few steps on Monday. She testified she did not see the fall; she was at work.

         {¶10} An autopsy was performed by the Summit County Coroner's Office. Following the examination, the Chief Medical Examiner Dr. George Sterbenz determined the cause of death was craniocerebral blunt force trauma, and the manner of death was homicide. State's Exhibit 21. He testified there were multiple impacts to the back of the head causing a skull fracture and brain injury. Tr. 473, 490, 495, 505. He avowed this type of injury would result in immediate disability and quick death. Tr. 499.

         {¶11} Thereafter, Detective Patton asked the medical examiner if a fall down a couple of stairs could cause the injuries. He was told no, it could not happen from a fall. Tr. 385, 777.

         {¶12} Appellant was indicted on May 9, 2013 for felony murder in violation of R.C. 2903.02(B)(D), an unclassified felony; child endangering in violation of R.C. 2919.22(B)(1)(E)(2)(d), a second-degree felony; and child endangering in violation of R.C. 2919.22(A)(E)(2)(c), a third-degree felony. Appellant pled not guilty.

         {¶13} The case proceeded to a jury trial. The jury found Appellant guilty of all indicted charges. 6/29/15 Jury Verdict Forms; 7/7/15 J.E. For purposes of sentencing, the child endangering convictions were found to be allied offenses of similar import, and accordingly, merged with the felony murder conviction. 7/10/15 J.E. The trial court imposed the mandatory 15 years to life sentence for the felony murder conviction. 7/10/15 J.E.

         {¶14} Appellant appeals from his conviction and sentence. First Assignment of Error: Due Process

         {¶15} Appellant's first assignment of error contends:

         "Using child endangerment as a predicate offense for felony murder violates the due process clause of the U.S. Constitution."

         {¶16} Appellant acknowledges that under the plain text of the felony murder statute, child endangering may serve as a predicate offense for felony murder. However, he contends allowing it to serve as a predicate offense violates due process because it relieves the state of proving the culpable mental state. In asserting his argument, ...

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