[Cite as State v. Westley,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104847

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JAZMINE WESTLEY DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND VACATED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-592508-B

BEFORE: E.A. Gallagher, P.J., Stewart, J., and Laster Mays, J.

RELEASED AND JOURNALIZED: September 21, 2017 ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender BY: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor BY: Khalilah A. Lawson Assistant County Prosecutor Justice Center, 9th Floor Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:

{¶1} Defendant-appellant Jazmine Westley appeals her conviction for

endangering children in the Cuyahoga County Court of Common Pleas. For the

following reasons, we reverse and vacate.

Facts and Procedural Background

{¶2} Westley was charged with two counts of endangering children and one count

of permitting child abuse stemming from a December 27, 2014 incident in which she

brought her ten-week old infant, D.H., to Fairview Hospital for treatment of flu-like

symptoms. Chest x-rays revealed multiple healing rib fractures and a healing fracture of

D.H.’s left femur. D.H. was transferred, at appellant-mother’s request, to Rainbow

Babies and Children’s Hospital for further treatment. Further examination at Rainbow

confirmed the presence of healing fractures to D.H.’s ribs and femur.

{¶3} At trial, the state alleged that Westley had knowledge that co-defendant,

Dionte Hamilton, had been physically abusive to Westley and Westley’s older children

and, despite that knowledge, recklessly entrusted D.H. to the care of Hamilton. The

state introduced the testimony of Dr. Lolita McDavid, the medical director of child

advocacy and protection at Rainbow. McDavid was qualified as an expert in child abuse

pediatrics at trial and evaluated D.H. during her admission to Rainbow. McDavid

opined that the injuries to D.H. were nonaccidental in nature, explaining that posterior rib

fractures in infants are considered high specificity fractures for abuse in pediatric

radiology. McDavid stated that babies should not have any fractures and opined that she didn’t believe D.H.’s injuries came from sibling play because siblings “don’t break

things” and “rib fractures in particular are force.” McDavid testified that posterior rib

fractures are seen with people who squeeze babies, often with children who are also

shaken.

{¶4} The jury returned a verdict of guilty on all three counts against Westley.

The trial court merged the three counts as allied offenses and the state elected to proceed

to sentencing on the first count of endangering children. The trial court imposed a prison

term of two years and later, granted judicial release.

Law and Analysis

{¶5} Westley argues that her convictions are against the manifest weight of the

evidence, that the trial court erred in improperly admitting other acts evidence in violation

of Evid.R. 404(B) and that her due process rights were violated by the prosecutor

deliberately misleading the jury.

{¶6} We need not reach Westley’s assignments of error because we find plain error

on the face of the record in that her conviction, as well as the guilty findings pertaining to

the merged counts, were not supported by sufficient evidence. The record reflects that

Dr. McDavid failed to offer any testimony to establish that her ultimate opinion, that the

injuries suffered by D.H. were the result of nonaccidental child abuse, was offered to a

reasonable degree of medical or scientific certainty.

{¶7} Ordinarily, expert opinion testimony is only competent if it is held to a

reasonable degree of medical certainty. State v. Benner,

,

(1988), citing State v. Holt,

,

(1969), syllabus. In

Benner, “reasonable certainty” was defined to mean “probability.” Id. at 313. In Stinson

v. England,

(1994), the Ohio Supreme Court held that

expert medical opinion testimony must be excluded if it is not stated as a probability— an

event or result that is more likely than not to occur.

{¶8} However, in State v. Thompson,

,

,

, the court clarified that “expert witnesses in criminal cases can testify in

terms of possibility rather than in terms of a reasonable scientific certainty or probability.”

Id. at ¶ 129, citing State v. D’Ambrosio,

,

,

. The court explained in Thompson that, “[i]n the criminal context, questions

about certainty go not to admissibility but to sufficiency of the evidence; they are matters

of weight for the jury.” Id. at ¶ 129, quoting State v. Lang,

,

,

, ¶ 77.

{¶9} In this instance, the state failed to elicit testimony from Dr. McDavid

establishing that her opinions were based even on possibilities much less reasonable

certainty or probability. Even assuming that we could infer from the circumstances that

Dr. McDavid’s testimony satisfied the D’Ambrosio “possibility” standard for criminal

cases, such a conclusion would merely allow for the admissibility of the testimony.

However, Dr. McDavid’s opinions were the sole source of evidence to establish that the

injuries suffered by D.H. were caused by nonaccidental child abuse. Without more, the

state failed to meet its burden in offering sufficient evidence to establish that reckless conduct by Westley resulted in harm to D.H. A necessary predicate to the state’s case

against Westley was the theory that Hamilton abused D.H. and, therefore, Westley was

reckless in causing D.H.’s injuries because she should have known that Hamiton was a

physical threat to D.H. While Dr. McDavid’s testimony appears to be admissible

pursuant to D’Ambrosio and Thompson, pursuant to the same authority an opinion based

on mere possibility cannot unilaterally satisfy the state’s burden to offer sufficient

evidence to demonstrate an essential element of an offense beyond a reasonable doubt.

{¶10} Pursuant to Thompson, questions about certainty are relevant to the question

of the sufficiency of the evidence. Where, as here, the state failed to establish such

certainty in an expert’s testimony and that testimony was the sole evidence to establish an

element of an offense, the conviction cannot stand.

{¶11} We find Westley’s remaining assignments of error to be moot.

{¶12} The judgment of the trial court is reversed. Westley’s convictions are hereby

vacated.

It is ordered that appellant recover from appellee the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

______________________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

MELODY J. STEWART, J., and ANITA LASTER MAYS, J., CONCUR