Ohio Appellate Reports

Unpublished

STATE v. RICKEY, Unpublished Decision (12-21-2006)
2006-Ohio-6889 STATE OF OHIO, Plaintiff-Appellee v. MICHAEL
A. RICKEY, II, Defendant-Appellant. No. 05 CA 012. Court
of Appeals of Ohio, Fifth District, Coshocton County. DATE
OF JUDGMENT ENTRY: December 21, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal appeal from Cochocton County Common
Pleas Court, Case No. 04-CR-063.

JUDGMENT: Affirmed.

ROBERT J. BATCHELOR, Prosecuting Attorney, Coshocton, Ohio
43812, for Plaintiff-Appellee.

W. TODD DROWN, Coshocton, Ohio 43812, for
Defendant-Appellant.

JUDGES: Hon. JOHN W. WISE, P.J. HON. SHEILA G. FARMER, J.
HON. JOHN F. BOGGINS, J.

OPINION

BOGGINS, J.

{1} Appellant appeals his conviction and sentence
entered in the Coshocton County Common Pleas Court on one
count of endangering children.

{2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{3} On April 23, 2004, Defendant/Appellant was
indicted for one count of Endangering Children, R.C.
2919.22(B)(1)(E)(2)(d), Second Degree Felony.

{4} Such charge arose out of the following:

{5} Appellant lived with his girlfriend Melissa
Merck, the mother of Shalcey Rickey.

{6} On February 18, 2004, Shalcey Rickey, then
seven months old, was left alone with Appellant Michael A.
Rickey, II for approximately 15 minutes while Ms. Merck
left to pick up a babysitter. (T. at 122, 133).

{7} While Ms. Merck was in route to get the
babysitter, Appellant called 911 and indicated that the
child had stopped breathing and that the child’s eyes had
rolled back into her head.

{8} Appellant was directed by 911 operators to
give the child chest compressions. Medical records indicate
that approximately 15 compressions were given but no
breaths.

{9} Ms. Merck then returned home and immediately
thereafter an emergency medical team arrived on the scene.
Shalcey Merck was transported and admitted to the emergency
room of Coshocton Memorial Hospital.

{10} The emergency room records from Coshocton
Memorial Hospital indicated that there was no external
bruising on Shalcey. A CT scan of her head and body did not
indicate what was wrong. Based on the statements of
Appellant as to what had happened, the hospital followed
its standard protocols and conducted a spinal tap to rule
out possible meningitis. Because of the child’s size, no
anesthetic could be used and the child was held down while
a needle was inserted in the child’s spinal column and
fluid was withdrawn. The hospital ruled out a diagnosis of
meningitis.

{11} Because the exact cause of Shalcey’s
condition could not be determined, the child was
transferred immediately to the emergency room of Akron
Children’s Hospital. Medical records indicated that the
child vomited and wretched profusely in the waiting room at
the hospital. An MRI of the head and body cavity of the
child found evidence of both old and new subdural hematomas
and evidence of a genetic bone defect. Retinal hemorrhages
were also discovered. Authorities from Akron’s Children
Hospital almost immediately suspected abuse without taking
into account past medical records indicating a history of
falls.

{12} On May 24, 2004, Appellant was transported
from the Stark Regional Community Correction Center for
Arraignment and entered a plea of Not Guilty in the
presence of counsel.

{13} On June 4, 2004, Attorney W. Todd Drown was
appointed to represent Appellant.

{14} On July 28, 2004, by court order, Dr. Stephen
Guertin, M.D. was approved as an expert for the Appellant.

{15} The trial in this matter was originally
scheduled for November 16, 2004, but was continued to
January 11, 2005, at the request of Appellant.

{16} Appellant failed to appear for trial on
January 11, 2005, and a warrant was issued for his arrest.

{17} On February 15, 2005, Appellant was taken
into custody, and the trial was rescheduled for March 29,
2005.

{18} On March 28, 2005, Appellant was transported
from the Orient Correctional Institution to the Coshocton
County Justice Center, so that he could be available for
trial.

{19} The case proceeded to trial on March 29 and
30, 2005.

{20} By video deposition, Dr. Stephen Guertin, an
expert in pediatric critical care, testified that either
the chest compressions performed by Appellant or the
child’s violent vomiting could have increased the child’s
intracranial pressure in the brain and created the retinal
hemorrhages. Dr. Guertin also testified that the child
definitely had an old hematoma likely caused by a fall that
would have predated the alleged incident date. Dr. Guertin
testified that the old hematoma likely spontaneously
re-bled and would have led to the exact symptoms that
Appellant indicated he saw that caused him to call 911. Dr.
Guertin testified that such a re-bleed can be caused by no
action at all, or even the slightest, non-abusive, handling
of a child.

{21} Dr. Guertin also testified that the blood in
the child’s spinal column was caused by the spinal tap and
was not a result of any alleged violent activity upon the
child. Dr. Guertin further testified that the child had a
congenital defect of her skeletal system that was in no way
related to the alleged incident of abuse.

{22} Evidence was presented in the form of medical
records from Akron Children’s Hospital dated February 19,
2005, indicating that the child had a seizure while in the
Hospital’s care similar to that described by Appellant on
February 18, 2004. (T. at 145-146).

{23} Sabrina Holmes testified that while she had
been watching Shalcey on December 22, 2003, just a few
weeks prior to the alleged incident, Shalcey became
listless and stopped breathing for no reason. (T. at
191-192). The child was taken to the emergency room at
Coshocton Memorial Hospital for observation on that prior
occasion. No abuse was suspected as a result of the
December 22, 2003 incident.

{24} Dr. Steiner, the Prosecution’s medical
expert, testified that Shalcey had a brain sheer injury,
retinal hemorrhages, and injuries to her lower back. Dr.
Steiner opined that Shalcey’s injuries were the result of a
condition commonly known as shaken baby syndrome and were
the result of deliberate and intentional trauma. Dr. Steiner
ruled out the possibility of non-intentional or accidental
trauma as a cause of the injuries. Like Dr. Guertin, Dr.
Steiner did agree that Shalcey had an old hematoma that
pre-dated the alleged incident.

{25} During interviews with a hospital social
worker and a Coshocton County Sheriff’s Detective,
Appellant attempted to explain that he had left Shalcey
alone on a couch for a brief moment, and when he returned,
he found that Shalcey had stopped breathing and that her
eyes were rolled back. (T. at 172-173, 204). Appellant then
went on to explain that he had gently shaken Shalcey to see
if she would start breathing. (T. at 173, 204).

{26} At trial, Dr. Richard Daryl Steiner, Akron
Children’s Hospital, testified that Shalcey was admitted
for care in the intensive care unit of Akron Children’s
Hospital, and that his evaluation led to the conclusion
that Shalcey suffered harm in the form of bleeding over the
surface of her brain, and the loss of brain tissue that died
when it was sheared from her brain. Steiner also testified
that he observed extensive hemorrhage of the retina, with
bleeding on the surface and within the retina, as well as
soft tissue and muscle injuries to the lower spine. (T. at
221, 223). After ruling out causes such as motor vehicle
crashes and falls from great heights, Steiner concluded
that Shalcey’s injuries were caused by abuse that is
ordinarily referred to as Shaken Baby Syndrome. (T. at P.
227, L. 7 to L. 25). This is accomplished by grabbing a
baby and shaking it violently back and forth as hard as
possible. (T. at 229).

{27} At the conclusion of trial, after
deliberations, the jury returned a verdict of guilty as
charged. The matter was then referred for pre-sentence
investigation.

{28} On May 16, 2005, Appellant was transported
from the Tuscarawas County Justice Center for sentencing.

{29} The trial court ordered Appellant to serve
seven (7) years incarceration in a State Penal Institution.

{30} It is from this conviction and sentence that
Appellant now appeals, assigning the following errors:

ASSIGNMENTS OF ERROR

{31} “I. THE COURT ABUSED ITS DISCRETION BY NOT
SUSTAINING DEFENDANT’S OBJECTION AND MOTION FOR A MISTRIAL
REGARDING THE INTRODUCTION OF INADMISSIBLE EVIDENCE. IN THE
ALTERNATIVE, THE COURT ABUSED ITS DISCRETION BY NOT GIVING
A LIMITING INSTRUCTION.

{32} “II. THE COURT ERRED BY ENTERING A JUDGMENT
WHICH WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.

{33} “III. THE COURT ERRED BY ENTERING A JUDGMENT
WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{34} While Appellant did set out separate
assignments of error on Page 4 of his brief, Appellant did
not set forth separate arguments as required by App.R.
16(A). We may disregard any assignment of error if the
appellant fails to identify in the record the error on which
the assignment of error is based or fails to argue the
assignment separately in the brief, as required under
App.R. 16(A).” North Coast Cookies, Inc. v. Sweet
Temptations, Inc. (1984) 16 Ohio App.3d 342, 476 N.E.2d 388.

I.

{35} In his first assignment of error, Appellant
argues that the trial court abused its discretion in
overruling his objection, denying his motion for a mistrial
and in failing to give a limiting instruction. We disagree

{36} Appellant specifically argues that the trial
court erred in permitting the State, over objection, to
admit evidence of low back injuries based on the trial
court’s ruling on a motion in limine concerning same.
Appellant further argues that the trial court should have
issued a limiting instruction as to such issue.

{37} Appellant argues that during the trial, the
“State of Ohio hinted to the jury on two occasions about an
injury to the low back during its case in chief.” (T. at
222-223, 236). Appellant’s counsel objected to such
statement but the Court declined to see the Prosecution’s
statements as a violation of its limiting instruction. (T.
at 223-225). Appellant claims that the jury was presented
with statements from Dr. Steiner and the Prosecution that
there were low back injuries to the child in violation of
the ruling on the motion in limine.

{38} Upon review of Appellant’s motion in limine,
we find that same contained two branches. The first branch
asked the trial court for an order prohibiting the state
from eliciting testimony about any alleged abuse of
Appellant’s wife and child other than that which is alleged
to have occurred February 18th, 2004, the date recited in
the single count of the indictment. This branch of said
motion was not opposed by the State and the trial court
sustained same.

{39} The second branch of Appellant’s motion in
limine concerned testimony with regard to any low back
injuries or fractures sustained by the child based on the
fact that Appellant’s counsel did not timely receive the
medical records concerning such injuries.

{40} Initially, upon ruling on such, the trial
court held “that the State of Ohio’s prohibited from
eliciting testimony regarding a supposed fracture, spine
fracture of the child and all records indicating that there
was such a fracture.” (T. at 3).

{41} However, upon further consideration, the
trial court narrowed such ruling to only exclude testimony
as to evidence of an MRI, CT or X-ray showing a fracture or
low back injury, not testimony of a back injury or fracture
if there was independent basis for same. (T. at 16-18).

{42} Upon objection to Dr. Steiner’s testimony as
to trauma to the child’s lower back, the trial court found
that such testimony did not violate the spirit of the
letter of his ruling on the motion in limine.

{43} Initially, we must not that a motion in
limine is a precautionary request, directed to the inherent
discretion of the trial judge, to limit the examination of
witnesses by opposing counsel in a specified area until its
admissibility is determined by the court outside of the
presence of the jury. The sustaining of a motion in limine
does not determine the admissibility of the evidence to
which it is directed. Rather it is only a preliminary
interlocutory order precluding questions being asked in a
certain area until the court can determine from the total
circumstances of the case whether the evidence would be
admissible. * * * “. State v. Leslie (1984), 14 Ohio App.3d
343, 471 N.E.2d 503.

{44} “Thus, a motion in limine, if granted, is a
tentative, interlocutory, precautionary ruling by the trial
court reflecting its anticipatory treatment of the
evidentiary issue. In virtually all circumstances finality
does not attach when the motion is granted. Therefore,
should circumstances subsequently develop at trial, the
trial court is certainly at liberty “* * * to consider the
admissibility of the disputed evidence in its actual
context.” State v. White (1982), 6 Ohio App.3d 1, at 4, 451
N.E.2d 533.

{45} The admission or exclusion of evidence rests
in the sound discretion of the trial court. State v. Sage
(1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. As a
general rule, all relevant evidence is admissible. Evid.R.
402. Therefore, our task is to look at the totality of the
circumstances in the particular case under appeal, and
determine whether the trial court acted unreasonably,
arbitrarily or unconscionably in

allowing or excluding the disputed evidence. State v. Oman
(Feb. 14, 2000), Stark App. No. 1 999CA00027. We will not
disturb a trial court’s evidentiary ruling unless we find
said ruling to be an abuse of discretion. In order to find
an abuse of discretion, we must determine the trial court’s
decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219.

{46} Upon review, based on the foregoing, we find
the trial court did not abuse its discretion by admitting
Dr. Steiner’s testimony into evidence. Said testimony
concerned evidence of soft tissue injury and bleeding, not
a spinal fracture.

{47} For the same reasons, the trial court did not
err in overruling Appellant’s objection or in not giving a
limiting instruction as to such testimony.

{48} Appellant’s first assignment of error is
overruled.

II., III.

{49} In his second and third assignments of error,
Appellant argues that the evidence presented at trial was
insufficient to support his conviction and was against the
manifest weight of the evidence. We disagree.

{50} In State v. Jenks (1981), 61 Ohio St.3d 259,
the Ohio Supreme Court set forth the standard of review
when a claim of insufficiency of the evidence is made. The
Ohio Supreme Court held: “An appellate court’s function
when reviewing the sufficiency of the evidence to support a
criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed,
would convince the average mind of the defendant’s guilt
beyond a reasonable doubt. The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the
prosecution, any rational truer of fact could have found
the essential elements of the crime proven beyond a
reasonable doubt.” Id. at paragraph two of the syllabus.

{51} On review for manifest weight, a reviewing
court is to examine the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of
the witnesses and determine Awhether in resolving conflicts
in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the
judgment must be reversed. The discretionary power to grant
a new hearing should be exercised only in the exceptional
case in which the evidence weighs heavily against the
judgment.” State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, citing State v. Martin (1983), 20 Ohio App.3d
172, 175. Because the trier of fact is in a better position
to observe the witnesses’ demeanor and weigh their
credibility, the weight of the evidence and the credibility
of the witnesses are primarily for the trier of fact. State
v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1.

{52} Appellant was convicted of one count of child
endangering in violation of R.C. 2919.22(B)(1)(E)(2)(d), a
second degree felony, which states in pertinent part:

{53} “(B) No person shall do any of the following
to a child under eighteen years of age or a mentally or
physically handicapped child under twenty-one years of age:

{54} (“1) Abuse the child;

{55} “(E)(1) Whoever violates this section is
guilty of endangering children.

{56} “(2) If the offender violates division (A) or
(B)(1) of this section, endangering children is one of the
following:

{57} “(d) If the violation is a violation of
division (B)(1) of this section and results in serious
physical harm to the child involved, a felony of the second
degree.”

{58} At trial, the State presented evidence in the
form of testimony from several witnesses. The child’s
mother, Malissa Merck, testified that when she left to go
pick up the babysitter the child was fine and when she
returned the child was not fine.

{59} Michelle Mizda, a social worker with Akron
Children’s Hospital, testified that Appellant told her that
he shook the child.

{60} Sabrina Holmes, the family babysitter,
testified that on a prior occasion the child was crying
very hard and stopped breathing for a short period of time,
but that the child came back around after being patted on
the back. She also testified that she was with Malissa
Merck on the night in question.

{61} Deputy Tim Bethel, the investigating officer,
testified as to his observations of and his discussions
with Appellant.

{62} The jury also heard testimony from Dr. Daryl
Steiner, the child’s treating physician, with regard to her
injuries and his opinion as to how such injuries were
sustained.

{63} Based on the foregoing, we do not find that
the jury clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed
nor do we find, as a matter of law, that appellant’s
conviction was based upon insufficient evidence.

{64} Appellant’s second and third assignments of
error are overruled.

{65} For the foregoing reasons, the judgment of
the Court of Common Pleas of Coshocton County, Ohio, is
hereby affirmed.

By: Boggins, J.

Wise, P.J. and

Farmer, J. concur

JUDGMENT ENTRY

For the reasons stated in our accompanying
Memorandum-Opinion on file, the judgment of the Court of
Common Pleas of Coshocton County, Ohio, is affirmed. Costs
assessed to appellant.