Court of Appeals of Ohio, Fifth District, Coshocton
from the Court of Common Pleas, Case No. 15 CR 0113
Plaintiff-Appellee JASON W. GIVEN Prosecuting Attorney
Defendant-Appellant DAN GUINN
W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E.
Wise, Jr., J.
1} Defendant-Appellant Nathan D'Ostroph appeals
the March 6, 2017 judgment of conviction and sentence of the
Court of Common Pleas of Coshocton County, Ohio.
Plaintiff-Appellee is the state of Ohio.
AND PROCEDURAL HISTORY
2} Kimberly Brestle and Derek Tanner are the parents
of Raylei Tanner, born January 18, 2015. Raylie was
7-months-old at the time of the events herein.
3} In September 2015, Brestle and Tanner were both
working and in need of child care for Raylei. Appellant lived
nearby with his wife, Angel, and their two children, age 3
and 2. Brestle and Tanner met appellant and Angel through
family members, and the four later became friends. In
September of 2015, they had known them for approximately two
years. They hired appellant to watch Raylei while they
4} At seven months old, Raylei was a healthy child
and was just becoming mobile - not quite crawling, but able
to scoot. She was able to support her head, sit up, and hold
her own bottle.
5} Appellant watched Raylei approximately four times
in September of 2015. On September 5, 2015, when Tanner and
Brestle dropped Raylei off, she was in good health and had no
marks on her body. When they picked her up, however, Raylei
had a fever and there was a bruise on her temple.
6} Brestle immediately took Raylei to the Coshocton
County Memorial Hospital emergency room. Raylei was triaged,
given Tylenol, and returned to the waiting room. After four
hours of waiting to see a doctor, Raylei's fever had
subsided and Brestle decided to leave. Before she did,
Brestle spoke with a nurse who in turn spoke with a doctor.
She was advised to re-administer Tylenol if Raylei's
fever spiked again.
7} Over the following two days, Raylei's fever
remained low and Brestle did not feel the need to return to
the hospital. By September 8, the next day that Raylei was in
appellant's care, her fever was gone.
8} On the morning of September 8, Raylei was happy
and smiling. Tanner and Brestle dropped Raylei off at
appellant's apartment between 3:30 and 3:45 a.m.
Appellant answered the door and Tanner carried Raylie into
the living room in her car seat, setting her down on the
floor still in the seat. Angel was present, but asleep on a
mattress on the living room floor. Brestle gave Raylie a
bottle of juice. Raylie held the bottle and fed herself,
drinking about 3 ounces of the juice. She was still holding
the bottle and drinking when Brestle and Tanner left.
9} Angel woke up at 8:30 a.m. When she did,
appellant was on the mattress with her, and their two
children were in their room. Because she had an appointment,
Angel went into her and appellant's bedroom to get a
change of clothing. When she did, appellant wanted to know
what she was doing in there and seemed concerned that she was
in the bedroom. Angel grabbed clothing to change into in the
bathroom. While in the bedroom, Angel noticed that Raylei was
on the floor, but did not approach her or touch her.
Appellant told her Raylei went to sleep around 6:00 a.m, that
he did not get any sleep because she was up, and that this
made him angry.
10} Angel left the apartment at 9:00 a.m. and
returned at approximately 11:00 a.m. She noted that appellant
had returned the mattress to their bed and Raylei was on the
bed asleep. At some point during the morning, Angel texted
Brestle and asked if Raylei was still sick because she was
sleeping so much. Brestle responded that perhaps Raylei still
had a fever or was teething.
11} Angel made lunch for her children before she
left for a second appointment. While she was preparing lunch,
appellant came into the kitchen and got an ice cube. When
Angel asked why, appellant said Raylei was teething. Angel
followed appellant into the bedroom and saw him applying ice
to a bruise on Raylei's jaw. She also noted that
appellant had Raylei swaddled and that her face was flushed.
Angel turned on the air conditioner thinking Raylei was
flushed because the room was too hot. She then left the
apartment at 12:30 p.m. for her second appointment.
12} While Angel was gone, appellant's friend
Steve Eckelberry stopped by. He walked into the apartment to
find appellant giving Raylei a bath in the bathtub. Appellant
told Eckelberry Raylei had spit up and he was rinsing her
off. Eckelberry left within ten minutes, and had no physical
contact with Raylei.
13} Angel returned to the apartment around 2:00 p.m.
She found Raylei on the bed, no longer swaddled, and wearing
just a diaper. Angel asked appellant what he did while she
was gone and he said he gave Raylei a bath to try to wake her
up and cool her down because she was so warm.
14} Angel thought she should try to feed Raylei. She
sat in a chair by the air conditioner and appellant brought
Raylei to her after he had first swaddled her once again.
Angel had to support Raylei's head, and Raylei took very
little from the bottle over a 30-minute period. What she did
take dribbled out of her mouth.
15} Brestle and Tanner arrived to pick Raylei up
between 4 and 4:30 p.m. When they got there, appellant was
out on the porch. He had his head down, seemed angry, avoided
eye contact with Brestle, and would not talk to Tanner. This
was unusual as appellant was usually talkative. Tanner stayed
outside and Brestle went inside.
16} Brestle walked inside to see Raylei propped up
on the sofa with a pillow behind her back and head. There was
a blanket across her chest and her arms were positioned on
top of the blanket. Raylei's eyes were half open. Brestle
thought she was sleeping. When Raylei did not wake up,
Brestle picked her up. When she did, Raylei's arms
dangled and her head lolled backwards.
17} Brestle and Tanner rushed Raylei to the
Coshocton County Memorial Hospital. From there, Raylei was
transported via helicopter to Akron Children's Hospital
where she was admitted shortly before midnight. Raylei had
sustained a brain injury, which was causing her brain to
swell. Approximately seven hours after her admission to
Children's Hospital, when the swelling could not be
controlled through more conservative treatments, pediatric
neurosurgeon Dr. Gwyneth Hughes preformed a hemicraniectomy
on Raylei. This surgery involves the removal of half the
skull to permit the brain to swell unrestricted.
18} During the surgery Dr. Hughes observed injury to
Raylei's brain which included a subdural bleed and a torn
sagittal sinus - a vein that runs between the hemispheres of
the brain. Raylei's brain was extremely swollen and very
pale, which indicated a high level of injury to the brain and
a subsequent lack of blood flow due to swelling and
constricted by the skull. Based on what she observed, Dr.
Hughes knew Raylei's chances of survival were very low.
19} Following the surgery, Raylei was placed on life
support. When it became apparent that Raylei would never
recover, Tanner and Brestle made the decision to remove
Raylei from life support. She died on September 11, 2015.
20} Dr. Lisa Kohler of the Summit County
Coroner's Office preformed Raylei's autopsy.
Externally, Kohler observed multiple abrasions and bruising
to Raylei's head, indicating blunt force was applied to
multiple areas of Raylei's head. Internally, Kohler noted
subarachnoid and subdural brain bleeds as well as retinal and
optic nerve sheath hemorrhages. It appeared there were two
injuries - one occurring on September 8, 2015, and one before
that, although Kohler could not say with specificity when the
first injury occurred.
21} According to Kohler, the force needed to cause
Raylei's most recent injuries had to be significant. The
kind of force that would cause an observer to immediately
seek help for the child. Additionally, after receiving an
injury of the magnitude Raylei displayed, it would be
immediately obvious to an observer that she was no longer
encountering the world as she had beforehand. She would
likely be unconscious, appearing to sleep, be unable to sit
up unaided, and would have difficulty taking a bottle. While
Raylie may have been able to swallow a little bit, she would
not have been able to vigorously suck a bottle, nor hold the
bottle to feed herself.
22} Kohler ruled Raylei's cause of death
hypoxic-ischemic encephalopathy due to craniocerebral blunt
force trauma. In other words, brain damage due to a lack of
oxygen flow to the brain. Kohler ruled the manner of death as
23} Detective Wesley Wallace of the Coshocton County
Sheriff's Office investigated Raylei's death and
developed appellant as a suspect. Appellant was interviewed
several times and denied any wrongdoing. He did agree that he
took Raylei from her parents on the morning of September 8,
that Raylei took a bottle from Brestle before she and Tanner
left for work, and that Raylei held the bottle and fed
herself. He denied Angel could have any responsibility for
Raylei's injuries and sought to blame Tanner and Brestle.
24} After two interviews with appellant, Wallace
asked Angel to wear a recording device and engage her husband
in conversation about Raylei. Angel agreed. During her
conversation with appellant, he told Angel he "hit that
kid in the fucking face, " "hit her with a ball,
" and "was mean to her." He further stated he
"fucked up" and "did not purposely kill
Raylei." Appellant told Angel not to blame herself and
to be strong for her own children if he had to "go away
25} After listening to the conversation between
appellant and Angel, Wallace spoke with appellant a third
time. Confronted with his own statements, appellant continued
to deny any wrongdoing.
26} On October 16, 2015, the Coshocton County Grand
Jury returned an indictment charging appellant with one count
of felony murder in violation of R.C. 2903.02(B). A three-day
jury trial began on February 28, 2017. Appellant was found
guilty as charged. The trial court subsequently sentenced
appellant to incarceration for 15 years to life.
27} Appellant now brings this appeal, raising the