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State v. Telego

Court of Appeals of Ohio, Seventh District, Mahoning

January 22, 2018


         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16 CR 531

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph Rivera Atty. Nicholas Brevetta Assistant Prosecuting Attorney.

          For Defendant-Appellant: Atty. Wesley Johnston, Atty. Eric Hall.


          ROBB, P.J.

         {¶1} 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.


         {¶2} 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).

         {¶3} 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).

         {¶4} 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).

         {¶5} 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).

         {¶6} 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).

         {¶7} 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, 158).

         {¶8} 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 additional testimony.

         {¶9} 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).

         {¶10} 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).

         {¶11} 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).

         {¶12} 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).

         {¶13} 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).

         {¶14} 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 ...

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