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State v. D'Ostroph

Court of Appeals of Ohio, Fifth District, Coshocton

January 18, 2018

STATE OF OHIO Plaintiff-Appellee
NATHAN D'OSTROPH Defendant-Appellant

         Appeal from the Court of Common Pleas, Case No. 15 CR 0113

          For Plaintiff-Appellee JASON W. GIVEN Prosecuting Attorney

          For Defendant-Appellant DAN GUINN

          Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.


          WISE, EARLE, 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.


         {¶ 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 worked.

         {¶ 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 homicide.

         {¶ 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 for this."

         {¶ 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 ...

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