[Cite as State v. Kochensparger,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals Nos. E-14-132 E-14-133 Appellee E-14-134 E-14-135 v. Trial Court Nos. 2012-CR-480 Jonathon Kochensparger 2013-CR-052 2013-CR-094 Appellant 2013-CR-249

DECISION AND JUDGMENT

Decided: May 6, 2016

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Chief Assistant Prosecutor, for appellee.

Matthew H. Kishman, for appellant.

*****

YARBROUGH, J.

I. Introduction

{¶ 1} Appellant, Jonathon Kochensparger, appeals the judgment of the Erie

County Court of Common Pleas, convicting appellant of felonious assault, a felony of the second degree, endangering children, a felony of the second degree, two counts of

possession of heroin, felonies of the fifth degree, complicity to commit possession of

heroin, a felony of the fifth degree, and possession of drugs, a misdemeanor of the first

degree. For the following reasons, we affirm.

A. Facts and Procedural Background

{¶ 2} On December 12, 2012, an Erie County Grand Jury indicted appellant on

one count each of felonious assault pursuant to R.C. 2903.11(A)(1), and endangering

children pursuant to R.C. 2919.22(B)(1) and (E)(2)(d), both being felonies of the second

degree. The charges arose from an incident that occurred on October 12, 2012, when

appellant and his wife, Kristin Kochensparger (“Kristin”), were living at a homeless

shelter with Kristin’s four children. One of the children, O.P., the victim in the case, was

three months old at the time. Kristin left for work that morning around 5:30 a.m., leaving

appellant in charge of the children, including O.P. When Kristin returned home that

afternoon around 4:00 p.m., she noticed that O.P. was acting unusually lethargic. Kristin

observed blood in O.P.’s diaper and O.P. began to vomit profusely during a feeding. At

that time, Kristin took O.P. to the hospital where a CAT scan revealed bleeding on O.P.’s

brain.

{¶ 3} Five days later, an employee at the homeless shelter conducted an inspection

of appellant’s room. During this inspection, the employee recovered a bucket containing

a man’s trimmer, scissors, a spoon with residue, and a syringe. Trace amounts of heroin

were found on the spoon and the syringe. An Erie County Grand Jury indicted appellant

2. for possession of heroin, in violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the

fifth degree, on February 7, 2013.

{¶ 4} On November 1, 2012, appellant’s parole officer located appellant at 527

Pearl Street, where he had been staying with friends, Joshua and Nicole Hamm. Also

located in the kitchen of that residence was various drug paraphernalia, including spoons

with heroin residue and syringes. Appellant admitted recent heroin use to his parole

officer. On that day, authorities searched appellant’s vehicle and found a pill crusher

with heroin residue, a scale, a pill bottle, and a spoon. Consequently, appellant was

indicted on January 23, 2013, for complicity to commit possession of heroin, in violation

of R.C. 2923.02(A)(2), a felony of the fifth degree.

{¶ 5} The state filed a motion for joinder of the three cases for trial purposes on

May 2, 2013. Appellant filed a memorandum in opposition of joinder on May 23, 2013.

In his judgment entry granting the state’s motion for joinder, the court found that 1) the

two cases involving heroin were similar in nature, 2) the case involving felonious assault

and child endangering involves evidence that is simple and direct so that a jury would not

be confused, and 3) appellant did not demonstrate that he would be prejudiced by

consolidating the three cases into one trial.

{¶ 6} On June 12, 2013, the state brought a fourth indictment against appellant for

possession of heroin, in violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth

degree, and possession of drugs, in violation of R.C. 2925.11(A) and (C)(2)(a), a

misdemeanor of the first degree. This indictment relates to the evidence found in

3. appellant’s car on November 1, 2012. The state filed a separate motion for joinder of this

case on May 19, 2014. This motion was granted, without objection. After several other

pretrial issues, trial began for these matters on September 30, 2014, and spanned several,

partial days, concluding on October 9, 2014.

{¶ 7} For its first witness, the state called Kristin, the mother of O.P. She testified

that she was present in the parking garage at the hospital when appellant told a detective

that he shook the baby and tossed him on the bed. She further testified that she initially

did not believe appellant’s confession, however appellant’s nonchalant attitude in the

following days led her to question whether or not he was actually telling the truth.

{¶ 8} The state next called Joshua Hamm to testify. Hamm revealed to the court

that his friendship with appellant was “drug related.” Specifically, he stated “[Appellant]

would come to me to get, you know, drugs. I’d help him out.” The two were arrested

together as a result of the November 1, 2012 search, resulting in heroin related charges

for both appellant and Hamm. Subsequently, the two became cellmates in the Erie

County Jail. Hamm stated that while incarcerated, appellant discussed the incident

involving O.P. with him. Specifically, Hamm testified that appellant told Hamm that on

the day of O.P.’s hospitalization, appellant was “dope sick.” Hamm described the

concept of “dope sick” as, “after, you know, a certain amount of time you haven’t, from

your last shot of heroin, snort of heroin or whatever, you start to get really sick if you

can’t feed that fix. It’s like having the flu but a hundred times worse, you know. You’re

really restless, nauseated, you know, diarrhea, cold sweats, um every ounce of your body

4. aches really bad, very irritable.” Hamm went on to say that appellant confessed to him

that the baby would not stop crying, so he threw a pillow at the baby. When this did not

work, appellant stated that he grabbed the baby and shook it, in an attempt to get it to shut

up.

{¶ 9} Hamm testified that at some point on the first day at the jail, he was

approached by Detective Nixon, of the Sandusky Police Department, who asked if Hamm

had any information regarding the injuries to O.P. Hamm responded that he did not.

Subsequently, after the discussion with appellant regarding O.P., Hamm again saw Nixon

at the jail and this time, Hamm initiated a conversation. He told Nixon what appellant

had told him regarding O.P.’s injuries. He further told Nixon that he was not looking for

a deal in return for his statement. Hamm clarified at the trial that he was not receiving

any deal in exchange for his testimony and although he was initially angry with appellant

for his arrest, he since came to be thankful that he was arrested and that it gave him the

opportunity to turn his life around.

{¶ 10} Terry K., a resident of the shelter on October 12, 2012, then testified that

appellant initiated a conversation with him on that day. He stated that the main topic of

conversation was how burdensome O.P. was to him and that he was very frustrated that

he just could not get O.P. to shut up.

{¶ 11} Detective Nixon then testified that he spoke with appellant and Kristin at

the hospital the day after the injury. He spoke with appellant in a private room in the

hospital to get an idea of what happened. Appellant told him that O.P. had thrown up and

5. was not acting like himself. He denied shaking, dropping or striking O.P. Nixon again

spoke with appellant in the parking garage of the hospital. During this conversation,

appellant initially denied hitting, dropping, or shaking O.P. At some point during this

conversation, appellant changed his tone, stating that he saw one of the other kids slam

O.P. in the bouncy seat. Nixon confronted appellant with the fact that he had changed his

story and appellant then stated “fine, I threw him on the bed accidentally.” Nixon further

corroborated Hamm’s testimony that Hamm had approached him at the jail and explicitly

stated that he did not want any deals in exchange for his cooperation.

{¶ 12} The state then solicited expert medical testimony from Dr. Lolita McDavid.

Dr. McDavid testified, to a reasonable degree of medical certainty, that O.P.’s injuries

were caused by non-accidental trauma with shake mechanism. As a result of the trauma,

O.P. suffered subdural and subarachnoid hematomas and multiple retinal hemorrhages in

his left eye.

{¶ 13} Several police officers were then called to testify. The officers testified to

the search of Hamm’s residence on November 1, 2012. At the time of the search,

appellant was living at Hamm’s residence with Hamm and Hamm’s wife. Heroin and

drug paraphernalia were found in the common areas of the home, and in Hamm’s

personal belongings. The officers also testified to the chain of custody regarding

preservation of the evidence, as well as chemical test results regarding the narcotics.

{¶ 14} Finally, the state solicited testimony from appellant’s parole officer and her

partner. They testified that when appellant was located at Hamm’s residence on

6. November 1, 2012, they spoke with appellant. Appellant spoke with them and stated that

if he were to be drug tested, he would be positive for heroin. The parole officer went on

to testify that she searched appellant’s car, which was parked outside of Hamm’s

residence, and located additional narcotics and drug paraphernalia.

{¶ 15} In his defense, appellant first solicited testimony from J.P., O.P.’s nine-

year-old sister. J.P. testified that while her mother was at work, appellant took care of her

and her siblings. She admitted that she was not always in the same room as appellant.

However, she stated that she never saw appellant drop, strike, or get mad at O.P. She

could only recall one incident during the time appellant stayed at the shelter in which

appellant became visibly angry.

{¶ 16} Appellant next called Brittany H., another resident of the shelter. She

testified that she lived across the hall from appellant from April through December 2012.

She could not recall if she was present at the shelter during the day of October 12, 2012.

She would usually take her kids out for the day to get them away from the shelter. She

did state that when she was there, appellant appeared to be attentive to the children and

she never heard or saw him be physically or verbally abusive to any of the children.

{¶ 17} Appellant concluded his defense by calling Dr. John Galaznik. Ultimately,

Dr. Galaznik testified to a reasonable degree of medical certainty that non-abusive

explanations were the reason for O.P.’s illness. He opined that O.P. suffered from

cortical vein thrombosis.

7. {¶ 18} The state then called Dr. Randall Schlievert as a rebuttal witness. Dr.

Schlievert testified that O.P.’s injuries could not have been caused by cortical vein

thrombosis. He opined to a reasonable degree of medical certainty that O.P. was the

victim of non-accidental, abusive head trauma.

{¶ 19} After deliberating, a jury found appellant guilty on all counts. His timely

consolidated appeal followed.

B. Assignments of Error

{¶ 20} On appeal, appellant assigns the following errors for our review:

1) Appellant was deprived of his right to effective assistance of

counsel when his trial counsel failed to properly move to sever his drug-

related charges from the charges involving abusing a child.

2) The guilty verdicts for felonious assault, endangering children,

and complicity to commit possession of heroin are against the manifest

weight of the evidence in violation of appellant’s rights under the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution, and

Article I, Section 10 of the Ohio State Constitution.

3) Appellant was deprived of his right to cross-examine witnesses

against him in violation of the Fourteenth and Sixth Amendments to the

United States Constitution, and Article I, Section 10 of the Ohio State

Constitution when the trial court allowed the State to introduce medical

reports into evidence without requiring their authors to testify.

8. II. Analysis

Ineffective Assistance of Counsel

{¶ 21} In his first assignment of error, appellant asserts that he was deprived of his

right to effective assistance of counsel. Specifically, appellant argues that his trial

counsel was ineffective for failing to renew his motion to sever the indictments for trial

purposes at the close of appellee’s case in chief. We disagree.

{¶ 22} In order to prove ineffective assistance of counsel, appellant must show

defense counsel’s performance fell below an objective standard of reasonableness, and a

reasonable probability exists that, but for counsel’s error, the results of the trial would

have been different. Strickland v. Washington,

-688,

,

(1984). In Ohio, a properly licensed attorney is presumed competent. State

v. Hamblin,

,

(1988). “Debatable strategic and tactical

decisions may not form the basis of a claim for ineffective assistance of counsel.” State

v. Campbell, 6th Dist. Lucas No. L-05-1284,

, citing State v.

Phillips,

,

(1995).

{¶ 23} As noted above, the state filed a pretrial motion for joinder of the

indictments for trial purposes. Appellant objected to the motion, arguing that the

evidence presented at trial for the separate cases would not be simple and direct, would

be highly prejudicial to appellant, and the Ohio Rules of Criminal Procedure do not

provide a basis for joinder. The court granted the motion, reasoning that the evidence to

9. be presented would be simple and direct, and that appellant had failed to make a showing

of any prejudice.

{¶ 24} Crim.R. 13 authorizes the joinder of two or more indictments for a single

trial. Crim.R. 14 provides, however, that separate trials shall be ordered if it appears that

a defendant is prejudiced by joinder for trial of indictments. The burden of

demonstrating prejudice under Crim.R. 14 is on the defendant. State v. Torres,

,

(1981), syllabus. A claim of prejudice depends on whether

the salient advantages of joinder and avoidance of multiple trials are outweighed by the

right of a defendant to be tried fairly on each charge.

,

.

{¶ 25} The state can defeat a claim of prejudice under Crim.R. 14 using either the

“other acts” test, or the “joinder” test. Under the “other acts” test, the state must show

that pursuant to Evid.R. 404(B), evidence of the other charged offenses would be

admissible even if the counts or indictments had been severed for trial. The “joinder” test

merely requires the state to show that evidence of each crime joined at trial is simple and

direct. When the state shows that the evidence of each crime is simple and direct, it is not

required to meet the stricter “other acts” admissibility test. See State v. Lott,

,

(1990); State v. Hicks, 6th Dist. Nos. L-04-1021,

L-04-1022,

.

{¶ 26} In the present case, appellant is not arguing that his attorney was ineffective

for failing to object to the joinder of his separate cases, but rather his ineffectiveness

stemmed from his failure to renew his objection at the close of the state’s case in chief.

10. In order for this argument to succeed, appellant would need to show that he was

prejudiced by this action. He has not made such a showing.

{¶ 27} Counsel is not required to do a futile act. See State v. Martin,

,

(1st Dist. 1983); State v. Moorman,

,

(1st Dist. 1982); State v. Gibson,

,

(8th Dist. 1980). It is clear from the record in this case that appellant, in his initial

opposition to joinder, argued that the evidence would not be simple and direct. He noted

the existence of detailed medical evidence and expert witness testimony. He explained

that the evidence to be presented would be highly inflammatory and could prejudice

appellant in that regard. He argued that a jury would use that highly inflammatory

evidence, of shaking a child or using narcotics, to convict him of the unrelated charges.

It is fair to say that at that point, the court was aware of the nature of the evidence that

was to be presented. Taking that into consideration, the court determined that joinder

was proper.

{¶ 28} There is nothing in the record to indicate that the evidence presented at trial

was significantly different from what was purported to be the evidence when the motion

for joinder was initially argued. Therefore, renewing the objection to joinder of the cases

would have been futile, as the court would likely have denied the motion again. Because

appellant cannot show that the motion would have been granted, appellant cannot show

that the outcome would have been different had the objection been renewed.

11. {¶ 29} Because of the foregoing, appellant has not met the threshold for

ineffective assistance of counsel set forth in Strickland. Appellant’s first assignment of

error is therefore not well-taken.

Manifest Weight

{¶ 30} In his second assignment of error, appellant argues that his convictions for

felonious assault, child endangering and complicity to commit possession of heroin are

against the manifest weight of the evidence. When reviewing a manifest weight claim,

The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered. State v. Martin,

,

(1st Dist. 1983).

{¶ 31} “The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.”

It

has been long held that the weight to be given to the evidence and the credibility of the

witnesses is primarily for the trier of fact to decide. State v. Thomas,

,

(1982). The standard of review is therefore high, and the trial

court, with its unique position to resolve the factual issues, enjoys significant deference to

determine the credibility of witnesses. State v. Mills,

,

(1992).

12. {¶ 32} Pertaining to the felonious assault and child endangering convictions,

appellant’s manifest weight argument is twofold. He first argues that there was

insufficient evidence to support the finding that O.P.’s injuries were intentionally

inflicted. We disagree.

{¶ 33} The state solicited testimony from two medical experts: Dr. Lolita

McDavid, and Dr. Randall Schlievert. Dr. McDavid is the medical director of child

advocacy and protection at the Rainbow Hospital in Cleveland, Ohio. She testified to a

reasonable degree of medical certainty that O.P. suffered non-accidental injuries

consistent with shaking. Likewise, Dr. Schlievert, director of Mercy Health’s child abuse

program in Toledo, Ohio, testified that O.P.’s injuries were a result of abusive head

trauma. By looking at the specific nature of the damage sustained by O.P., Dr. Schlievert

was able to rule out any non-accidental conditions that would lead to O.P.’s condition.

{¶ 34} After hearing all of the testimony, including testimony from Dr. Galaznik,

who testified as a medical expert on behalf of appellant, a jury concluded that O.P.’s

injuries were intentionally inflicted. This conclusion is supported by sufficient evidence.

The jury, in its unique position to determine the credibility of witnesses, determined that

the state’s expert witnesses were more credible than the expert witness presented by the

appellant. This determination is not against the manifest weight of the evidence.

{¶ 35} Appellant next argues that even if the state was able to show that O.P.’s

injuries were intentionally inflicted, there is no reliable evidence that appellant was the

cause of the harm. We disagree.

13. {¶ 36} Appellant argues that the only person to offer testimony establishing him as

the cause of O.P.’s injuries was Joshua Hamm. Appellant paints Hamm as a disgruntled

former friend who blames appellant for his own arrest. A review of the record

demonstrates that this is simply not accurate. Although no one saw appellant injure the

child, several witnesses testified to circumstantial evidence that could convince a jury

that appellant was the cause of the injuries. “Circumstantial evidence and direct evidence

inherently possess the same probative value.” State v. Jenks,

,

(1991), paragraph one of the syllabus.

{¶ 37} It is undisputed that appellant was the sole caregiver for O.P. on the day in

question. Appellant’s wife testified that when she left for work on the morning of

October 12, 2012, O.P. had been acting normal and showed no signs of any injuries.

When she returned home, appellant left and she immediately noticed that O.P. was not

acting like himself. O.P. was vomiting and had blood in his diaper. She recalled that

appellant displayed a nonchalant attitude toward O.P. and questioned whether an

admission by appellant, made to a detective was truthful.

{¶ 38} Detective Nixon testified that appellant told him several stories about what

happened. First, appellant told him that nothing had happened that day to cause any

injuries. Appellant then stated that he saw the other kids playing rough with O.P. in the

bouncy seat and that could have caused the injuries. Appellant, upon threat of having the

children taken from their mother, then stated that he had accidentally thrown O.P. on the

bed.

14. {¶ 39} Hamm testified that appellant confessed to shaking O.P. on October 12.

Appellant confessed to him that he had been “dope sick” and could not get the baby to

stop crying. He confessed that he threw a pillow at O.P. while he was in the car seat, and

then picked him up and shook him. Although appellant argues that this testimony is not

reliable, Hamm testified that he was no longer upset about his arrest and that he did not

receive, nor want, any deal in exchange for his testimony. Two individuals living at the

shelter corroborated this testimony by testifying that appellant was complaining that O.P.

would not stop crying on October 12, 2012.

{¶ 40} After hearing all of the evidence, a jury made the determination that O.P.’s

injuries were intentionally inflicted by appellant. In reviewing the entire record, we

cannot say that determination was against the manifest weight of the evidence.

{¶ 41} Appellant also argues that his conviction for conspiracy to commit

possession of drugs was against the manifest weight of the evidence. His argument relies

on R.C. 2925.01(K) which reads, “‘Possess’ or ‘possession’ means having control over a

thing or substance, but may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing or

substance is found.” This argument is unpersuasive.

{¶ 42} Under the principle of complicity or accomplice liability, an individual may

be found guilty if he solicits, aids, abets or conspires with another individual to commit

an offense and shares the criminal intent of an individual who commits the principal

offense. State v. Johnson,

,

(2001), syllabus. The

15. mere presence of an accused at the scene of a crime is not sufficient to prove, in and of

itself, that the accused was an aider and abettor.”

citing State v. Widner,

,

(1982). This rule is to protect innocent bystanders who

have no connection to the crime other than simply being present at the time of its

commission.

.

{¶ 43} The record indicates that appellant was more than “merely present” when a

crime was committed. Hamm testified that appellant had been living with him for

approximately one week before the search of the home. Hamm stated that his

relationship with appellant was a “drug related” relationship, and that he and appellant

had used heroin at his home. Drug residue and paraphernalia were found in appellant’s

car at the time of the search, and appellant admitted that, if tested, he would be positive

for heroin.

{¶ 44} We cannot say that appellant’s conviction for complicity to commit

possession of drugs is against the manifest weight of the evidence. Appellant’s second

assignment of error is not well-taken.

Right to Cross-Examine

{¶ 45} In appellant’s third assignment of error, he argues that the trial court

improperly allowed the state to introduce medical reports into evidence without requiring

their authors to testify. For the following reasons, we disagree.

{¶ 46} The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the

16. right * * * to be confronted with the witnesses against him * * *.” The United States

Supreme Court has interpreted this language to mean that admission of an out-of-court

statement of a witness who does not appear at trial is prohibited by the Confrontation

Clause if the statement is “testimonial” unless the witness is unavailable and the

defendant has had a prior opportunity to cross-examine the witness. Crawford v.

Washington,

,

,

(2004). Although

Crawford did not define the term “testimonial statement,” the term has subsequently been

defined as a statement made for the “primary purpose of creating an out-of-court

substitute for trial testimony.” Michigan v. Bryant,

,

,

(2011).

{¶ 47} In determining whether the medical records in the current case are

testimonial, we must first determine the primary purpose of their creation. Appellant

argues that the primary purpose of these documents was for use in Dr. McDavid’s report.

In support of this argument, appellant cites to State v. Maxwell,

, 2014-

Ohio-1019,

. Maxwell was decided by the Ohio Supreme Court in 2014,

and clarified the “primary purpose test.” Maxwell held that “[a] key element in

evaluating the admissibility of the coroner’s testimony and the autopsy report in light of

the recent United States Supreme Court cases is the primary-purpose test, which

examines the reasons for and purpose of the record in question. To determine the

primary purpose, a court must “objectively evaluat[e] the statements and actions of the

parties to the encounter’ giving rise to the statements.” Id. at ¶ 49, citing

.

17. {¶ 48} In the case at bar, O.P. was taken to the hospital for vomiting, lethargy, and

blood in his diaper. The doctors performed an MRI which determined there was bleeding

on his brain. At that point, O.P. was seen by several other doctors who performed tests

and memorialized their findings in the form of notes. Appellant argues that much of this,

including the MRI, a skeletal survey and notes from a neurologist, ophthalmologist, and

pediatric emergency doctors, were done for the primary purpose of securing their ability

at a later prosecution. This argument is not persuasive.

{¶ 49} An objective evaluation of the tests that were conducted and the reports

that were generated, show that they were done for the primary purpose of evaluating

O.P.’s injuries and creating a treatment plan going forward. Consequently, the medical

records referenced by Dr. McDavid were not testimonial and the admission of such

records at trial did not violate appellant’s right to cross-examine witnesses against him.

{¶ 50} Therefore, appellant’s third assignment of error is not well-taken.

III. Conclusion

{¶ 51} Based on the foregoing, the judgment of the Erie County Court of Common

Pleas is affirmed. Costs are hereby assessed to appellant in accordance with App.R. 24.

Judgment affirmed.

18. State v. Kochensparger C.A. Nos. E-14-132 E-14-133 E-14-134 E-14-135

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Stephen A. Yarbrough, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

19.