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State v. Owens

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
URSULA OWENS, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615579-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anna M. Faraglia and Owen M. Patton, Assistant Prosecuting Attorneys, for appellee.

          Timothy F. Sweeney, for appellant.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, PRESIDING JUDGE.

         {¶ 1} Ursula Owens appeals her convictions for felony murder, with the predicate offense being felonious assault, and three counts of endangering children. Owens is serving an aggregate term of imprisonment of 25 years to life. The convictions are affirmed.

         {¶ 2} Owens was engaged to, and cohabitating with, codefendant Tequila Crump.[1] Crump was the birth mother of the victim, who was approximately five years old at the time of her death. Previously, Crump was romantically involved with a woman in North Carolina. The couple had lived together for a short period of time. During that time, the other woman took responsibility for the victim and was ultimately granted legal custody of the child, but she was committed to providing Crump with the opportunity to stay in the victim's life. Sometime after that, Crump relocated to Cleveland and became engaged to Owens. The victim accompanied Crump, although the victim's legal guardian believed that Crump was not intending to permanently move to the Cleveland area. Crump and the victim moved in with Owens. There are two separate incidents giving rise to the convictions.

         {¶ 3} In October 2016, the victim was admitted to the hospital for third-degree, deep tissue burns on her hand and wrist. Crump and Owens claim the child had been scalded with a hot water-soaked towel while washing her hands through a malfunctioning hot-water heater. It was claimed that the hot-water heater was not generally working, so the victim was unaware of the potential danger. Crump and Owens maintain that the victim somehow wrapped her wrist in the hot water-soaked towel causing the third-degree burns. Owens and Crump waited a full day before taking the child to the hospital. Although indicating that Owens and Crump's story was plausible, an investigation with children services was opened because the child needed multiple surgeries and skin grafts because of the severity of the burns. These facts led to the conviction against Owens for two counts of child endangerment, based on the injury itself and the failure to seek timely medical attention after the injury occurred.

         {¶ 4} On March 17, 2017, the child was again admitted to the hospital, but she died as a result of a traumatic brain injury the morning following her admission. Owens's biological son ("son") was staying with Owens the night of March 16 through the following day. The son's friend was staying as well. On the morning of March 17, the boys woke to screaming and yelling coming from the victim's bedroom, which was directly across from the boys' room. The son testified to being able to see into the victim's room, although his disclosure did not occur immediately. At trial, the son testified to seeing Crump "pop" the victim four or five times on her arm. The son visibly demonstrated in court what the word "pop" meant, but the description is not evident from the written record. According to the boys, Owens told Crump "that's not how you do it." According to the son, Owens then punched the victim, picked her up, and threw her into the wall and then a dresser. Both boys testified to hearing two loud "thumps." The son explained that the two thumps were the victim hitting the wall and the dresser. By that time, the son's friend went to the door of their room and saw the victim on the ground with Owens standing over the victim, yelling. Crump was standing behind Owens, with Crump telling Owens something to the effect of "that's enough." The victim was not moving or making any noises. The son's friend asked the son if the victim had been "body slammed" as the source of the two loud thumps. Crump took the victim to her bedroom, placed the victim in Crump's bed, and tried to wake the victim. The boys left the house at that point to get food at a nearby McDonald's. Owens admitted to police officers that she pushed the victim, who then fell, but claimed the punishments were not that severe.

         {¶ 5} Crump and Owens waited over 12 hours to take the victim to the hospital, after conducting an online search about seizures in young children. The couple claimed that the victim was having seizures throughout the morning and the afternoon and they read online that the best course of treatment was to allow the victim to sleep. After the victim's pulse became noticeably weak, Crump finally called for emergency services late in the evening. When the victim was first admitted to the hospital, Crump told the physician that the victim had one short seizure in the morning and no medical history of seizures.

         {¶ 6} The treating physician testified that the victim presented with a traumatic brain injury that in her experience could not be caused by a seizure. By the time the victim was admitted to the hospital, there were no viable treatment options - the injury and swelling in the brain tissue was too severe. The coroner determined that the death was caused by acute trauma, in part indicated by the existence of a severed blood vessel in the brain. Owens presented an expert in her defense, who claimed that the severed blood vessel was caused by the autopsy itself. The defense expert, Thomas William Young, M.D., claimed that the traumatic brain injury was caused by seizures the victim was experiencing the day she was admitted to the hospital. According to Dr. Young, the victim's seizures caused a blood clot to form that cut the flow of blood to the victim's brain and that caused the child's death. Dr. Young was unable to explain the cause of the seizures. Upon taking the victim to the hospital, Crump told the treating physicians that the child had no history of seizures and that the child experienced one short seizure in the morning. After the victim died from her injuries, someone told an unknown member of the medical staff that the victim had been experiencing seizures repeatedly throughout the day.

         {¶ 7} With respect to the March incident, Owens was convicted of felony murder under R.C. 2903.02(B), with the predicate offense being felonious assault, and child endangering for failing to seek immediate medical attention.

         {¶ 8} In the first assignment of error, Owens claims that error occurred in failing to sever the counts pertaining to the separate abuse. Owens claims that permitting the jury to consider the October and March allegations in one setting prejudiced her right to a fair trial.

         {¶ 9} Crim.R. 8(A) provides that "two or more offenses may be charged in the same indictment" if the offenses "are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." Joinder is generally permitted to "conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to the witnesses." State v. Schaim, 65 Ohio St.3d 51, 58, 1992-Ohio-31, 600 N.E.2d 661, citing State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). If offenses are properly joined under Crim.R. 8(A), the charges may be severed under Crim.R. 14 if the joinder will prejudice the moving party's rights. Id. In order to demonstrate prejudice, a defendant must affirmatively show that the evidence of the other crimes would not be admissible in the other trial if the counts were severed, and if the evidence would not be separately admitted, that the evidence of each crime is not simple and direct. Schaim at ¶ 42.

         {¶ 10} Owens focuses on whether the evidence of the October burning incident would have been admissible under Evid.R. 404(B) in a separate trial on the March assault incident that led to the victim's death. We need not address this argument because even if we accepted her claim, solely for the sake of this discussion, the evidence for each incident was separate and direct. According to Owens, the state's purpose behind joining the two incidents in one indictment was to present the jury with highly prejudicial and inflammatory evidence to invite the jury to speculate that the March 2017 incident was assault and abuse.

         {¶ 11} In State v. McKelton,148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 300, the Ohio Supreme Court addressed a similar argument, albeit one made in the context of an ineffective assistance of counsel claim for failing to seek severance of joined offenses. In McKelton, the defendant was charged with felonious assault and domestic violence for a May 2008 incident that resulted in the victim's broken ankle. Id. Two other counts charged the defendant with felonious assault and domestic violence that resulted in the victim's death and occurred in July 2008. Id. Both incidents were separate, but were related in that they demonstrated a pattern of conduct of the same type of abuse the defendant committed against the victim. Id. Further, each incident was demonstrated with separate ...


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