State v. Ford

[Cite as State v. Ford, 

.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       28504

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DEMETRIUS FORD                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 16 08 2511

                                 DECISION AND JOURNAL ENTRY

Dated: December 29, 2017



        HENSAL, Presiding Judge.

        {¶1}     Demetrius Ford appeals his convictions and sentence from the Summit County

Court of Common Pleas. We affirm.

                                                 I.

        {¶2}     This appeal involves injuries that Mr. Ford’s four-month-old daughter

(“Daughter”) sustained while in Mr. Ford’s care and the criminal convictions associated

therewith. At trial, Mr. Ford testified that he and C.G. (“Mother”) had a brief relationship that

resulted in Mother becoming pregnant. Mr. Ford and Mother’s relationship ended prior to

Daughter’s birth, and Mr. Ford admitted that he only saw Daughter “like every blue moon * * *

[and] not that much.”

        {¶3}     During a visit to Mother’s apartment, Mr. Ford gave Daughter two baths. The

first bath did not result in injuries to Daughter, but Mr. Ford noticed that the bath water suddenly

became hot when Mother flushed the toilet. Later that evening, Mr. Ford woke up from a nap
                                                2


and decided to change Daughter’s diaper prior to catching a bus home. Mr. Ford then asked

Mother to give Daughter a bath and became frustrated and annoyed when she did not do it. He,

therefore, decided to bathe Daughter himself. Mother was not in the bathroom while Mr. Ford

bathed Daughter.

        {¶4}    According to Mr. Ford, he placed Daughter in a mesh baby seat in the bath tub

and used the detachable shower head to wash her. He noticed that the water started to steam, so

he immediately turned it off and left the bathroom to find a towel. Upon finding a blanket, he

returned to the bathroom and saw that Daughter’s skin was peeling. He then picked her up,

wrapped her in the blanket, used Mother’s phone to call 911, and then gave Mother the phone

back so that she could speak to the operator. He then placed Daughter on the couch. Shortly

thereafter, Mr. Ford heard a “thud” and saw that Daughter had fallen off of the couch. He picked

Daughter up, told her to “quit moving[,]” and waited for EMS to arrive. EMS transported

Daughter to the hospital where she received treatment for burns to her face, neck, and shoulders,

as well as fractures to her ribs and skull.

        {¶5}    A Grand Jury indicted Mr. Ford on two counts of felonious assault in violation of

Revised Code Section 2903.11(A)(1), two counts of endangering children in violation of

Sections 2919.22(B)(2), 2919.22(B)(1), respectively, and two counts of endangering children in

violation of Section 2919.22(A). The Court later dismissed the two counts of endangering

children under Section 2919.22(A). Mr. Ford pleaded not guilty, and the case proceeded to a

jury trial.

        {¶6}    At trial, two doctors testified that Daughter’s burns were consistent with an

immersion burn, meaning that Daughter must have been dunked face first into scalding water.

They reached this conclusion after noting the sharp line of demarcation on her body (i.e., from
                                                3


burned to not burned), and the absence of burns from splash marks, which they would have

expected to see if Mr. Ford had been using the shower head to bathe Daughter. One doctor

testified that Daughter’s burns were not medically possible according to Mr. Ford’s version of

the events, and the other doctor opined that Daughter’s injuries were not consistent with an

accidental burn.

       {¶7}    Regarding the rib fractures, the doctors testified that this type of injury is

consistent with abuse, and is “extraordinarily rare” otherwise. The doctors disagreed, however

as to when the rib fractures could have occurred; one opined that they occurred within 12 hours

or less by the time Daughter was medically evaluated, and the other opined that they could have

been up to 10 days old. Both doctors opined that the skull fracture resulted from some sort of

impact to Daughter’s head.

       {¶8}    The jury ultimately found Mr. Ford guilty of one count of felonious assault

relative to the burn injuries Daughter sustained, and two counts of endangering children, one of

which related to the burn injuries, the other of which related to the rib and skull injuries. The

jury found Mr. Ford not guilty of felonious assault with respect to the rib and skull injuries. The

trial court determined that the endangering-children counts merged with the felonious-assault

count for purposes of sentencing and sentenced Mr. Ford to eight years of incarceration. He now

appeals, raising three assignments of error for our review. For ease of consideration, we have

combined Mr. Ford’s first and second assignments of error.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE DEFENDANT’S CONVICTION WAS NOT SUPPORTED BY THE
       SUFFICIENCY OF THE EVIDENCE.
                                                 4


                                  ASSIGNMENT OF ERROR II

       THE DEFENDANT’S CONVICTION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶9}     In his first assignment of error, Mr. Ford argues that his convictions were not

supported by sufficient evidence. In his second assignment of error, Mr. Ford argues that his

convictions were against the manifest weight of the evidence. As explained below, we need not

address the merits of either assignment of error because Mr. Ford has failed to properly develop

arguments in support of his position.

       {¶10} We begin our analysis by noting that the appellant bears the burden of

establishing error on appeal. In re J.S., 9th Dist. Summit No. 28154, 

.

Appellate Rule 16(A)(7) requires an appellant’s brief to include “[a]n argument containing the

contentions of the appellant with respect to each assignment of error presented for review and the

reasons in support of the contentions, with citations to the authorities, statutes, and parts of the

record on which appellant relies.”

       {¶11} Here, aside from providing the applicable standards of review, Mr. Ford has cited

no authority in support of his position. Instead, both assignments of error contain conclusory

statements and Mr. Ford’s counsel’s own apparent theories as to how the events took place. For

example, the crux of Mr. Ford’s argument is that no direct evidence existed to support his

convictions, yet he cites no law to indicate that direct evidence is required – or, conversely, that

circumstantial evidence is insufficient – for purposes of establishing the underlying crimes.

Presumably, this is because the law states otherwise. State v. Jenks, 

 (1991),

paragraph one of the syllabus (“Circumstantial evidence and direct evidence inherently possess

the same probative value * * *.”). As this Court has consistently stated, “[i]f an argument exists

that can support [an] assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v.
                                                 5


Cardone, 9th Dist. Summit Nos. 18349, 18673, 

, * 22 (May 6,

1998), citing App.R. 12(A)(2) and 16(A)(7). Accordingly, this Court disregards Mr. Ford’s first

and second assignments of error.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       SENTENCED THE DEFENDANT TO THE MAXIMUM SENTENCE OF
       EIGHT YEARS WITHOUT CONSIDERING ALL OF THE RELEVANT
       SENTENCING FACTORS.

       {¶12} In his third assignment of error, Mr. Ford argues that the trial court erred when it

imposed a maximum sentence without considering all of the relevant sentencing factors

contained in Section 2929.12(E). We disagree.

       {¶13} The Ohio Supreme Court has held that “an appellate court may vacate or modify a

felony sentence on appeal only if it determines by clear and convincing evidence that the record

does not support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.”     State v. Marcum, 

, 

; R.C.

2953.08(G)(2). As previously noted, Mr. Ford argues that the trial court failed to consider the

statutory sentencing factors contained in Section 2929.12(E).          That Section provides the

following:

       The sentencing court shall consider all of the following that apply regarding the
       offender, and any other relevant factors, as factors indicating that the offender is
       not likely to commit future crimes:

       (1) Prior to committing the offense, the offender had not been adjudicated a
       delinquent child.
       (2) Prior to committing the offense, the offender had not been convicted of or
       pleaded guilty to a criminal offense.
       (3) Prior to committing the offense, the offender had led a law-abiding life for a
       significant number of years.
       (4) The offense was committed under circumstances not likely to recur.
       (5) The offender shows genuine remorse for the offense.
                                                 6


R.C. 2929.12(E).

       {¶14} Mr. Ford asserts that he had no prior juvenile adjudications or adult convictions,

and that he showed remorse for his conduct. He, therefore, argues that the trial court erred by

ignoring these factors and imposing a maximum sentence.

       {¶15} The Ohio Supreme Court has stated that, where the trial court does not put on the

record its consideration of Sections 2929.11 and 2929.12, it is presumed that the trial court gave

proper consideration to those statutes. State v. Kalish, 

, 

, ¶ 18,

fn. 4; see also State v. Beach, 9th Dist. Summit Nos. 26021, 27124, 

(stating same). Unless the record specifically shows that the trial court failed to consider these

factors, or shows that the sentence is strikingly inconsistent with these factors, the trial court is

presumed to have considered them if the sentence is within the statutory range.             State v.

Fernandez, 9th Dist. Medina No. 13CA0054-M, 

.

       {¶16} Here, Mr. Ford does not dispute that his sentence falls within the statutory range.

At the sentencing hearing, the trial court indicated that it considered the nature of the crimes, the

harm to Daughter, Mr. Ford’s poor prognosis for benefiting from treatment and making

meaningful life changes, his youth, and the reports it received. In its sentencing entry, the trial

court indicated that it considered the record, the oral statements, the principles and purposes of

sentencing under Section 2929.11, and the seriousness and recidivism factors under Section

2929.12. It indicated that not imposing a prison sentence would not adequately protect society

from future crimes by Mr. Ford, and would demean the seriousness of the offense. It also

indicated that the harm to Daughter was of great and continuing import, that Mr. Ford showed a

lack of significant change, and that he was not amenable to community control.
                                                  7


       {¶17} While the trial court did not expressly address Mr. Ford’s lack of prior juvenile

adjudications or adult convictions, or whether he showed remorse, it is presumed to have

considered those factors. Kalish at ¶ 18, fn. 4. Further, nothing in the record specifically shows

that the trial court failed to consider those factors, or that the sentence is strikingly inconsistent

with them. Fernandez at ¶ 8. Accordingly, we cannot say that the trial court erred when it

sentenced Mr. Ford to an eight-year prison sentence. Mr. Ford’s third assignment of error is

overruled.

                                                 III.

       {¶18} Demetrius Ford’s assignments of error are overruled.             The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                          8


      Costs taxed to Appellant.




                                              JENNIFER HENSAL
                                              FOR THE COURT



CARR, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

MICHAEL J. GOEBL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.