Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Cunningham

Court of Appeals of Ohio, Twelfth District, Butler

June 19, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
PHILLIP CUNNINGHAM, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2015-08-1217

          Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

          Scott N. Blauvelt, 315 S. Monument Avenue, Hamilton, Ohio 45011, for defendant-appellant

          OPINION

          S. POWELL, J.

         {¶ 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 charge.

         {¶ 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."[1] 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, ΒΆ 33. When evaluating the sufficiency of the evidence, this ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.