Court of Appeals of Ohio, Twelfth District, Butler
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Michael T. Gmoser, Butler County Prosecuting Attorney,
Michael Greer, Government Services Center, 315 High Street,
11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
N. Blauvelt, 315 S. Monument Avenue, Hamilton, Ohio 45011,
1} Defendant-appellant, Phillip Cunningham, appeals
his convictions in the Butler County Court of Common Pleas
for one count of murder and one count of endangering
children. For the reasons outlined below, we affirm in part,
reverse in part, and remand for further proceedings.
2} On September 2, 2015, a Butler County grand jury
indicted Cunningham with one count of endangering children in
violation of R.C. 2919.22(B)(1), a second-degree felony under
R.C. 2919.22(E)(2)(d), and one count of murder in violation
of R.C. 2903.02(B), an unclassified felony. The charges
stemmed from allegations that Cunningham shook his
two-month-old daughter ("the victim"), causing her
to suffer traumatic and fatal brain injuries. The endangering
children charge was the predicate offense of the murder
3} At Cunningham's jury trial, the state's
evidence showed that on July 20, 2015, Cunningham was
watching his son and the victim at Cunningham's
parents' home in Hamilton, Ohio. Cunningham's wife
was away at work. Cunningham's parents were at the home.
4} At approximately 4:30 p.m., emergency responders
arrived at the home in response to Cunningham's
mother's 9-1-1 call reporting that the victim was not
breathing. Responders took the victim to a nearby hospital
where she was then transported to Cincinnati Children's
Hospital by helicopter.
5} The victim never resumed breathing on her own.
Medical staff intubated her to provide oxygen. A CT scan
revealed significant brain injuries. The victim passed away
from her injuries. Medical professionals pronounced her dead
on July 22, 2015.
6} Cunningham's wife testified that Cunningham
called her at work and, without providing context, said that
the victim "just died in the swing." On the car ride
to the hospital, Cunningham told his wife he did not know
what happened to the victim. Cunningham denied knowledge of
accidents, falls, or head trauma to the treating pediatrician
at the children's hospital.
7} A Hamilton police detective spoke with Cunningham
at the hospital. Cunningham denied any knowledge of what
caused the victim's injuries. The detective spoke with
Cunningham again the next day. Again, Cunningham denied any
knowledge of how the victim was injured. The following day,
Cunningham told detectives that he thought his mother may
have caused the victim's injuries.
8} Detectives spoke with Cunningham again several
days later. Cunningham said that his mother told him a
babysitter dropped the victim a week before the incident.
Cunningham also said that his mother admitted that she
dropped the victim earlier on the day of the incident while
he was away from the home.
9} Eventually, Cunningham admitted to detectives
that he dropped the victim. Cunningham said he was holding
the victim and she went backwards and fell out of his arms
and onto the crown of her head. Cunningham denied shaking or
throwing the victim.
10} Two days later, detectives interviewed
Cunningham once more. The detectives videotaped the
interview, which was later played for the jury. In the video,
Cunningham admitted to detectives that he would get
frustrated sometimes and would "snap." He confessed
to dropping the victim and then becoming frustrated when she
would not stop crying. He shook her "to the point where
she shut up." Cunningham estimated he shook the victim
with about half his strength for ninety seconds. He
demonstrated on a stuffed animal how he shook the victim.
Cunningham acknowledged that the victim's injuries were
caused by shaking.
11} The state introduced factual and expert opinion
testimony from several medical doctors involved in the
victim's care and the post-mortem investigation. Their
testimony revealed that the victim suffered blunt impacts to
her head, which caused fractures in her skull. The doctors
could not opine when the fractures occurred and there was
some indication that one of the fractures may have been from
an earlier injury. There was also bleeding deep within the
victim's brain. Doctors opined that this was caused by
significant acceleration and deceleration of the victim's
head relative to her neck. The brain injuries were so
traumatic that they caused the victim to die.
12} The doctors agreed that the victim's
injuries were the result of non-accidental trauma. The
doctors further agreed that substantial force would be
required to cause the victim's fatal brain injuries and
that the injuries were not consistent with a fall from chest
height onto the crown of the victim's head. The
pathologist who performed the autopsy opined that the manner
of death was homicide.
13} A jury returned guilty verdicts on both counts
of the indictment. The trial court merged the endangering
children count with the murder count. The court sentenced
Cunningham on the murder count to fifteen years to life in
prison. Cunningham assigns five errors for our review.
14} Assignment of Error No. 1:
15} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A
CONVICTION FOR ENDANGERING CHILDREN, AND THE VERDICT ON THIS
COUNT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
16} Assignment of Error No. 2:
17} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A
CONVICTION FOR MURDER, AND THE VERDICT ON THIS COUNT WAS
CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
18} In his first and second assignments of error,
Cunningham argues his convictions for murder and the
predicate offense of endangering children were not supported
by sufficient evidence and were otherwise against the
manifest weight of the evidence. Specifically, Cunningham
argues that the evidence was insufficient to establish that
his conduct resulted in the injuries suffered by the victim.
Cunningham also argues that the evidence failed to establish
that he acted recklessly.
19} When reviewing the sufficiency of the evidence
underlying a criminal conviction, an appellate court examines
the evidence to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt
beyond a reasonable doubt. State v. Intihar, 12th
Dist. Warren No. CA2015-05-046, 2015-Ohio-5507, ¶ 9. The
relevant inquiry is "whether, after viewing the evidence
in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt." State v.
Jenks,61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. In other words, "the test for sufficiency
requires a determination as to whether the state has met its
burden of production at trial." State v. Boles,
12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶
34, citing State v. Wilson, 12th Dist. Warren No.
CA2006-01-007, 2007-Ohio-2298, ¶ 33. When evaluating the
sufficiency of the evidence, this ...