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State v. Weaver

Court of Appeals of Ohio, Second District, Montgomery

March 30, 2018

STATE OF OHIO Plaintiff-Appellee
SHUREKA WEAVER Defendant-Appellant

          Criminal Appeal from Common Pleas Court T.C. NO.: 16-CR-2127/2

          MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          BYRON SHAW, Atty., Attorney for Defendant-Appellant


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the May 11, 2017 Notice of Appeal of Shureka Weaver. Shureka appeals from her May 9, 2017 Judgment Entry of Conviction on one count of endangering children (parent - serious harm), in violation of R.C. 2919.22(A), a felony of the third degree. The victim, ST., was the foster son of Shureka and her husband, Torace Weaver. Shureka received a sentence of 36 months. We hereby affirm the judgment of the trial court.

         {¶ 2} Shureka was indicted on November 1, 2016, and she pled not guilty on November 3, 2016. On November 15, 2016, Shureka filed a Motion to Suppress, and on December 14, 2016, she filed Defendant's Motion to Sever. The motion to sever provides in part that Shureka "has been charged with endangering children, a felony of the third degree. Her co-defendant, this Defendant's husband, is facing more serious charges, including two counts of murder, involuntary manslaughter, two counts of endangering children, and reckless homicide." Shureka argued that although she "is not charged with the death of the child, this Defendant will undoubtedly be prejudiced by the evidence adduced at a combined trial of the co-defendant's alleged conduct that resulted in the death of the child, and limiting instructions alone cannot protect this Defendant's constitutional right to a fair trial." She further asserted that "in the discovery previously provided by the State of Ohio, the co-defendant makes numerous statements about the child and injuries suffered by the child in the weeks prior to the child's death that could potentially implicate this Defendant in the alleged criminal history." The State opposed the motion on December 16, 2016.

         {¶ 3} On January 23, 2017, the trial court held a hearing on the motion to sever. Shureka and Torace were present, with respective counsel. The court initially confirmed that counsel for Torace did not join in the motion to sever. The court indicated receipt of the following authority via email from counsel for Shureka: State v. Dixon, 3d Dist. Logan No. 8-02-44, 2003-Ohio-2547. Counsel for Shureka argued that "joinder may not be permissible if it will cause substantial prejudice to the right of a Defendant's fair trial." Counsel noted that Shureka and Torace were indicted separately. He further noted that Shureka's indictment provides that she committed the offense of child endangering between September 24 and November 18, 2015, while the child endangering count in Count 6 in Torace's indictment is limited to November 18, 2015. Counsel for Shureka asserted that the indictments do not reflect "the same patterns of conduct, apparently, because one is talking about over a period of two months. And the other is talking about a single day."

         {¶ 4} Counsel further asserted that if "this Court holds a single trial, I can't subpoena Mr. Weaver to testify, " since "he would be in a position to invoke his Fifth Amendment right against self-incrimination. And Mrs. Weaver might be prejudiced by not being allowed to present relevant evidence that goes to her guilt or innocence on these charges."

         {¶ 5} Counsel asserted that Shureka "would be substantially prejudiced by having to proceed in a joint trial, where the jury is hearing facts that would otherwise have absolutely no relevance to Mrs. Weaver's guilt or innocence. The State has made clear their allegations are some burns that they believe would have caused the child pain, that were not treated." Counsel argued that the burns did not cause the child's death, and "yet, this jury is going to see autopsy photos, they're going to hear evidence how this child was hurt, and that those injuries, that had nothing to do with burns, is what led to the child's death." According to counsel, Shureka was at risk of prejudice if the court "allows both trials to be heard together, and to allow one jury to determine all the serious charges against Mr. Weaver, as well as, the one serious charge against Mrs. Weaver. And like I said, which on the face of the indictments are different charges."

         {¶ 6} The State responded that "primarily the charges that are identical, which are going to be the F3s, related to a violation of a duty of care that both Mr. and Mrs. Weaver had for the victim in this case. And what's interesting about that particular charge is it's not necessarily an act so much as a failure to act." According to the State, "we believe the testimony is going to be that the victim had sustained severe injuries in the form of burns that were on his right forearm, that those have been existing prior to the day of his death."

         {¶ 7} The State asserted as follows:

As far as the time frames and the indictment, I'll have to go back and take a look at that, but whether it gets amended or not, it still relates to both of these individuals and a legal duty to care for the child. And when they failed to obtain the proper medical treatment for these burns, they violated that duty. I'm not exactly sure what defenses all fit for this particular charge. I can't think of any affirmative defenses for a failure to act, which is the case.
We believe that the testimony and the evidence is going to be easily separated by the jury. The jury, we believe, will be able to make a differentiation - - difference between the burns, and then the head trauma that the child sustained.

         {¶ 8} The court asked the State to make a "professional statement" regarding "what the State believes the proof will be at trial. Obviously, that will be up to the jury to decide, but this is sort of that initial step of whether there should be joint or severe [sic]." The State indicated that as to the child endangering charge, the State would present the testimony of the deputy coroner, Dr. Susan Allen, who performed an autopsy on ST. and noted multiple injuries. Regarding the burns, the State indicated that "the testimony is going to be that there were severe burns. That they were either, first or second degree burns that required professional medical attention." The State asserted that "the testimony is going to be that no professional medical attention was ever sought by either one of the Defendants." The State indicated that Dr. Lori Vavul-Roediger will testify as an expert in the field of child abuse that "that failure to act is a form of abuse and neglect, and a violation of their legal duty to take care of this child." The State further indicated that it would produce photographs of the burns taken at the autopsy, as well as photographs of "the child in good shape" before he was transferred into the Weavers' care from a previous foster home.

         {¶ 9} The State advised the court that "there are numerous injuries" on the child's body, and "so that will begin what I'll call the second piece of the evidence that we will present, which will be how the child actually died." The State asserted that it would present photographic and medical evidence "that will substantiate extensive trauma to the head, * * * to the brain, internal bleeding, multiple contusions around the head. And that will obviously go to the cause of death part of the case."

         {¶ 10} The State asserted as follows:

But we believe that that evidence is so distinguishable from one another. And we will certainly make every attempt to argue that to the jury that these are two separate sets of injuries. Obviously, they're on two totally separate parts of the body. We believe the - - obviously, the burns occurred before the actual day of the death. And that will be substantiated through the Statements that were given by the Defendants themselves to the detectives.
And Judge, they were interviewed on two different occasions, and they both gave very similar versions, almost identical, in so far as they were aware of the burns, they do not know how the burns occurred on the victim. They don't know when exactly they occurred, and hence the - - the timeframe for Mrs. Weaver's indictment was stretched out a little bit, but looking - - it probably would behoove the State to maybe amend Mr. Weaver's too, just to make sure that's consistent, because really we don't know when the burns occurred, but the failure to act, and the failure to obtain proper medical attention ran the whole gamut, the whole span of that time frame.
* * *
It's an ongoing neglect theory on those F3 charges. So again, I think the jury will be able to distinguish Mrs. Weaver's case from Mr. Weaver's case, and again taking into consideration that they are charged with the exact same count for the failure to act, to - - to the violation of duty. That it will be the same witnesses for both of the Defendants. It will be the same evidence. It will be the same testimony, for the most part. And we believe that severance * * * would again cause undue hardship because really the prejudice that's being, I guess, presumed here is speculative.
It can be severed out, I think, appropriately at a joint trial. And we will make every attempt to do that. In fact, we made it very clear we don't have any evidence to suggest that Mrs. Weaver was responsible for the death of the victim. * * *

         {¶ 11} The State asserted that State v. Dixon, 3d Dist. Logan No. 8-02-44, 2003-Ohio-2547, is distinguishable. The State asserted that neither of the Defendants herein made any statements or provided any discovery implicating the other. He stated that both Defendants acknowledged awareness of the burns, and "other than the fact that there was some statements made of some home care that was attempted, neither one of them tries to lay blame on the other as to the causation of the burn, or the lack of - - failure to get the child the proper medical treatment."

         {¶ 12} Counsel for Shureka responded that "the fact that the child died has nothing to do with Mrs. Weaver's case." He argued that "to ask a jury, just focus on the burns, don't focus on the fact that the child was injured, and died, and she was the foster mom" is "asking a lot of a jury to disregard that, the same jury that's going to determine Mr. Weaver's guilt or innocence on those charges." Counsel further asserted that "it puts Mrs. Weaver in a difficult position to have her attorney vociferously argue to the jury that she is not responsible for this, which could perhaps encourage the jury to say, if you find someone responsible, find Mr. Weaver responsible." Finally, counsel asserted that "that's something Mrs. Weaver is very uncomfortable having her attorney do if that jury -- that same jury then is going to make a decision on Mr. Weaver's guilt or innocence as well."

         {¶ 13} At the conclusion of the hearing, counsel for Shureka indicated that she would withdraw her motion to suppress. According to counsel, "in both interviews, she was Mirandized. She was read her rights. She completed a form. She voluntarily agreed to speak to law enforcement. And at no time in those interviews did she ever ask for an attorney." On January 27, 2017, an "Order and Entry Withdrawing Motion [to Suppress]" was issued.

         {¶ 14} On February 15, 2017, the trial court overruled Shureka's motion to sever. The court noted the "indictment relating to Torace Weaver was amended on January 30, 2017 to reflect that the date of the offense as to Count 6[1] was alleged to be September ...

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