Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 16 CR 531
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph Rivera Atty. Nicholas Brevetta
Assistant Prosecuting Attorney.
Defendant-Appellant: Atty. Wesley Johnston, Atty. Eric Hall.
Defendant-Appellant Devin Telego appeals his conviction of
felony child endangering in the Mahoning County Common Pleas
Court. He raises prosecutorial misconduct regarding certain
questions asked of him when he testified in his own defense.
He also contends his attorneys rendered ineffective
assistance of counsel by failing to retain a medical expert
and by failing to request a sanction after one of the
prosecution's medical experts was not present to testify
at the end of the first day of trial. For the following
reasons, Appellant's conviction is affirmed.
OF THE CASE
On January 10, 2016, Appellant and his girlfriend brought
their three-month-old child to the emergency room at St.
Elizabeth Health Center in Austintown. The emergency room
physician ordered a CAT scan of the head, which showed a
"brain bleed." (Tr. 166, 170). The scan showed
fresh blood and evidence of older blood. (Tr. 171). A
decision was made to transport the baby to Akron
Children's Hospital in Akron. The Austintown police were
called, and a detective interviewed the parents at the local
hospital. The mother showed the detective a photograph of the
smiling child taken one hour before they arrived at the
hospital. (Tr. 140).
Appellant told the detective the baby had been fussy for the
past few days. Just prior to coming to the hospital, his
girlfriend and her friend went to the store, and he stayed
home with the baby. He left his second floor apartment to let
his dog outside. (Tr. 137). When he came back, it appeared
something was wrong with the baby. He said the baby was not
breathing, and he performed CPR. (Tr. 138). He reported the
baby then seemed fine but was crying. (Tr. 139).
The director of pediatric neurosurgery at Akron
Children's Hospital observed the child in acute distress
from intracranial hypertension (high pressure in the head)
due to the subdural hematoma seen on the CAT scan. (Tr. 181).
The treatment for a subdural hematoma ranges from observation
to surgery, depending on the size and patient's symptoms.
(Tr. 183). The baby's condition was life threatening with
the bleeding and the clot pushing the brain over to suppress
respiratory and heart drive functions. (Tr. 187, 215). In
order to evacuate the hematoma, the neurosurgeon performed a
craniectomy (removing a section of skull bone), opened the
dura (the brain covering), suctioned the liquid blood, and
removed the clotted blood. (Tr. 183-184). During surgery, she
was able to confirm the presence of an older injury (the
blood clot) and a newer, acute injury (the active bleeding)
as seen in the CAT scan. (Tr. 184-185, 189).
The neurosurgeon explained how the older blood clot separated
the dura from the brain causing a space where large blood
vessels are located and stretching those vessels, which
contributed to the sheering of two blood vessels from their
anchor. (Tr. 197, 208-209). According to her opinion, the
older trauma may have occurred two to three weeks earlier,
and the new trauma occurred within hours of the baby coming
to the hospital. (Tr. 184-185, 188-189, 208). The
neurosurgeon opined, even if the prior injury made the blood
vessels more susceptible to a new bleed, the amount of force
required to rip the blood vessels from their anchor would be
enough to cause a subdural hematoma regardless of whether an
old subdural hematoma existed. (Tr. 210). The trauma required
to cause each condition is not something experienced in the
normal life of a three-month-old baby. (Tr. 212).
After surgery, the baby was evaluated by the director of the
Child Advocacy Center of Akron Children's Hospital
(Boardman). The baby's breathing was still being assisted
after surgery, and the baby exhibited an abnormal foot reflex
(clonus), which suggested a neurological injury from the
brain moving. (Tr. 292, 296-297). He believed the older brain
injury could have occurred as early as three to ten days
before the new injury. (Tr. 294). A violent shaking is the
predominant cause of subdural hematoma in children of this
age. (Tr. 293). In addition to the conditions noted in
radiology and surgery, retinal hemorrhages were found in a
pattern suggestive of a violent shaking; other causes were
not indicated by the blood work. (Tr. 294-295, 320-321). This
physician said the shaking necessary to cause the baby's
subdural hematoma was such that a reasonable person would
clearly know they are likely to harm or kill the baby. (Tr.
293). He diagnosed a shaking injury or abusive head trauma
(through child abuse). (Tr. 299).
The detective interviewed Appellant within a week of first
speaking to him at the emergency room. Appellant insisted he
did not shake the baby. (Tr. 142). He explained to the
detective how he played with or calmed the baby by playing
airplane. Appellant demonstrated the move for the detective,
and the detective demonstrated it for the jury. He would hold
the baby chest high, drop the baby in a free fall, and catch
the baby before he hit the floor. (Tr. 142-144). Appellant
said he would bounce while holding the baby close. (Tr. 143,
In May 2016, Appellant was indicted on three alternative
counts of child endangering for the injury occurring on or
about January 10, 2016: (1) creating a substantial risk to
his child by violating a duty, a third-degree felony due to
the serious physical harm; (2) child abuse, a second-degree
felony due to the serious physical harm; and (3) child abuse
by torture or cruelty, a second-degree felony due to the
serious physical harm. See R.C. 2919.22(A), (B)(1),
(B)(2), (E). The above testimony was presented by the state
at the October 2016 jury trial, along with the following
Appellant's girlfriend (the baby's mother) testified
she lived with Appellant and their baby in Austintown at the
time of the baby's injury. The baby's mother worked
until 1:00 or 2:00 p.m. on Sunday, January 10, 2016.
Appellant was off work on Sunday, and he stayed home with the
child. The baby's mother said: the baby was "really
fussy" when she got home; the baby fell asleep for 20
minutes after she fed him and woke up crying for hours; and
he was usually a "really good baby." (Tr. 221,
224). She got the baby to smile at 7:19 p.m. and took a
photograph of him smiling, which she showed to the detective
and which was introduced as an exhibit at trial. (Tr. 235).
Her friend came over to visit. Around 8:00 p.m., she put the
baby in an upright child seat in the living room and went to
the gas station with her friend; she estimated they were gone
for 20 minutes. (Tr. 221, 225).
When they returned from the store, Appellant was frantically
pacing between the living room and dining room; she said he
was trying to locate his phone to call 911. (Tr. 228, 245).
She asked if Appellant put the baby to bed, and he responded,
"no, he's freaking out." (Tr. 228). She heard
"weird noises" coming from the bedroom and ran to
find the baby with his eyes closed and producing a
"weird cry" or moan she "never heard
before." (Tr. 228-229). When she picked up the baby, his
head fell back and his eyes did not open. (Tr. 229). Her
first thought was to bring the baby to the emergency room.
She described Appellant as scared. (Tr. 230). At some point,
Appellant voiced the baby would be fine and told her he saw
the baby's eyes open. She did not see this occur. When
the baby made the noise again, she put him in his car seat
carrier to leave. When asked if she or Appellant ever abused
the child, she answered in the negative. (Tr. 246).
Her friend watched the child for them when they both worked.
The friend testified the baby seemed well when she stopped
over to visit that Sunday. When they returned from the short
trip to the gas station, Appellant was pacing in the living
room. The friend said Appellant did not say anything about
the baby. (Tr. 255). She followed the baby's mother who
ran into the bedroom upon hearing the baby. (Tr. 256, 259).
She said the baby was unconscious and struggling to breathe
by gasping. (Tr. 251, 256). The friend testified the
baby's mother kept asking Appellant what was wrong with
the baby, and he responded by punching a hole in the wall.
(Tr. 261-262). When the baby's mother placed the baby in
the car seat, the friend went to her vehicle to install the
car seat base. When she reentered the apartment, Appellant
had the baby out of the car seat saying he was fine, which
she found odd. The baby's mother put him back in the car
seat, and they all left for the emergency room. (Tr. 257).
Appellant took the stand in his own defense. He noted he
worked all day on Friday, and the baby's mother worked in
the morning, during which time the friend watched the baby.
(Tr. 337). Appellant retrieved the baby and the baby's
mother from her father's house at 9:30 p.m. on Friday. He
said the baby felt hot and did not eat well. (Tr. 338-339).
He was with the baby Saturday while the baby's mother
worked. He said the baby woke up every five minutes Saturday
night and he slept holding him in a chair. (Tr. 341-342). On
Sunday, the baby would only sleep in his arms. He retrieved
the baby's mother from work around 2:00 p.m. He said a
car ran a red light on their way home, causing him to slam on
the brakes; he said the baby slept through this. (Tr. 344).
The friend came over on Sunday. Appellant testified the three
of them all played with the baby using the airplane ride
described earlier. (Tr. 348).
When the girls left for the store, Appellant made the baby a
bottle and propped it up for the baby in the bedroom; he said
the baby was grumpy. (Tr. 350-351). When he returned from
letting the dog outside, the baby was crying, sweaty, and
hot. He said nothing would work to calm the baby, such as
rocking, bouncing on his shoulder, and airplane. He said the
baby then passed out and stopped breathing while he was
holding him. (Tr. 353). Appellant described how he performed
CPR with two presses of two fingers and a breath in the
mouth; he said the baby gasped for air after the second
sequence. He testified he put the baby in the playpen in
order to look for his phone to call for an ambulance, at
which point the baby's mother and the friend returned
from the store. (Tr. 355). He said the baby's mother
asked him what was wrong when she saw him with his hands on
his head and tears on his face, and he said the baby was in
the bedroom. (Tr. 355-356). He explained he removed the child
from the car seat when he saw him open his eyes for a second
and smile. Appellant attested he did not cause the trauma to
the baby. (Tr. 359). He also denied punching a hole in the
wall. (Tr. 362).
The jury found Appellant guilty of count one child
endangering for recklessly creating a substantial risk to the
health or safety of his child by violating a duty of care,
protection, or support which resulted in serious physical
harm. See R.C. 2919.22 (A), (E)(2)(c) (elevating a
first-degree misdemeanor to a third-degree felony where there
was serious physical harm). The jury could not reach a
verdict on counts two and three, the second-degree felony
child abuse charges. The state agreed no subsequent trial
would occur. (Tr. 432). The ...