COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70782 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ANTHONY CHRISTIAN : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-287182 JUDGMENT: AFFIRMED AND REMANDED FOR CORRECTION OF SENTENCE. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ARTHUR A. ELKINS Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN B. GIBBONS 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: On June 6, 1996, Anthony Christian, alleging that his court- appointed attorney, James Madden, never timely appealed his convictions, filed a delayed appeal from a March 16, 1992, judgment of the common pleas court entered pursuant to a bench trial finding him guilty of two counts of Endangering children. We allowed the appeal and the matter is now before us for our review. On August 24, 1992, Tina Neubauer took her six-week old son, Shawn Neubauer, to the Children's Ward of Cleveland's MetroHealth Medical Center because of her concern over Shawn's crying, irritability and loss of appetite. Linda Post, M.D., Director of the Residency Program in the Department of Family Practice, physically examined Shawn at that time but found no injury. Tina then returned to her home, which she shared with her boyfriend, Anthony Christian, and her two children from another relationship. The following evening, Shawn began to cry while lying in his bassinet in the home. Tina then yelled to Christian from another room, asking him to tend to the baby. At this point, Christian alerted Tina to a golf ball shaped lump on Shawn's right clavicle. Tina called her pediatrician, Dr. Anderson, who informed her to watch the lump overnight and bring the child to Metro Hospital, Family Practice, the next day. - 4 - The following morning, on August 26, 1992, Tina took Shawn to the hospital where an x-ray revealed that Shawn sustained a non-acute fracture of the clavicle, which means the clavicle had been broken at an earlier date but had been recently misaligned causing the bony callous bump to appear. Again, Tina took Shawn home after the hospital released him into her care. The next day, August 27, 1992, Tina noticed swelling and redness near Shawn's left ankle while bathing him. She called the MetroHealth Medical Center who advised her to bring the baby to the center for an examination. Post again examined Shawn and after viewing x-rays of the ankle, determined Shawn had sustained a fracture of the tibia and fibula, bones located on either side of his left ankle. After reviewing Shawn's medical records of August 24, 1992, which did not contain a reference to any ankle injury, Post concluded from the redness and swelling that the injury occurred recently and admitted Shawn into the hospital where he remained for several weeks. Because of concern over the injuries to the baby, Post referred the matter to the Cuyahoga County Department of Human Services for further investigation, and wrote a letter to a Mr. Farmer, the intake supervisor, about the possibility that a woman, later identified as Bonnie Woods, could be responsible for Shawn's injuries. Kathleen O'Malley, the social worker assigned to investigate the case, interviewed both Anthony Christian and Tina - 5 - Neubauer regarding Shawn's injuries. From those interviews, she learned that Tina and Christian were the only adults who spent time alone with Shawn on August 26 and 27, 1992. On September 14, 1992, the grand jury indicted both Anthony Christian and Tina Neubauer on two counts of Endangering children. Following arraignment, the court, sitting without a jury, jointly tried them. At the close of the states case, Christian moved for acquittal alleging that the state failed to establish that he perpetrated the crime, but the court denied the motion. Both Christian and Tina Neubauer testified in their cases, after which the court found them both guilty on both counts. The court then sentenced Christian to a term of two to ten years. This appeal raises the following assignment of error for our review. I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29(A) AS HIS CONVICTION IS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS THEREFORE CONTRARY TO LAW. Christian contends that the trial court erred in denying his motion for acquittal, because the state failed to establish that he injured Shawn. The state maintains that the trial court correctly denied the motion for acquittal because the state proved, using - 6 - circumstantial evidence, the essential elements of Endangering children. The issue for our resolution then is whether the state presented evidence on all of the elements of Endangering children to justify the court's denial of Christian's motion for acquittal. Crim.R. 29, provides in relevant part: (A) *** The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. *** In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court in its syllabus established the standard of review for challenges regarding the sufficiency of evidence, stating: 2. 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 trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, followed) Additionally, the determination of the credibility of witnesses, as well as the weight to be given the evidence, is a function of the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. - 7 - R.C. 2919.22 defines Endangering children, in relevant part, as follows: (B) No person shall do any of the following to a child under eighteen years of age ***: *** (2) Torture or cruelly abuse the child;*** *** (E)(3) If the offender violates division (B)(2) *** of this section *** [and] the violation results in serious physical harm to the child involved *** endangering children is a felony of the second degree. R.C. 2901.01(E) defines serious physical harm to persons as: (3) Any physical harm which *** involves some temporary, substantial incapacity; *** (5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain. In this case, the parties generally agree that Shawn Neubauer, a six week old infant, received serious physical harm on August 26 and 27, 1992. The record reflects a finding of a non-acute fracture of the right clavicle on August 26, 1992, and a fracture of Shawn's left tibia and fibula on August 27, 1992, which, according to the testimony of Dr. Post, occurred from a wrenching or twisting of his ankle and evidences child abuse because of the great amount of force required to break an infant's very flexible bones. The dispute here concerns whether the state provided evidence of Christian's participation in Shawn's injuries. In this regard, the record reflects that Christian himself first - 8 - observed the golf-ball-shaped lump on the baby's right clavicle and after advising Tina about it, she brought Shawn to the hospital where the non-acute fracture was discovered on August 16, 1992. Further, it contains testimony that Post learned from Tina Neubauer that only she and Christian had access to Shawn during the twenty-four hours that Shawn sustained his ankle fracture. Further, Post learned that Christian tended to irritate the baby by making loud noises and hitting the baby on the bottom of his feet, and that he had been emotionally and physically abusive toward Tina, having hit her the morning of August 27, 1992. The record further reflects that Kathleen O'Malley learned from her interview with Tina and appellant that both had access to Shawn during the time the baby sustained his fractures. From this evidence, the trial court could infer that Christian had the time, the place and the opportunity to participate in these injuries to the child. Although we have considered the argument advanced by the appellant that Bonnie Woods or others could have also perpetrated these injuries, the trial court acted properly in denying his motion for acquittal because the circumstantial evidence of his involvement. We conclude, therefore, that the trial court correctly denied appellant's motion for acquittal in this case because after viewing the evidence in a light most favorable to the - 9 - prosecution, any rational trier of fact could have found the state presented circumstantial evidence from which the trier of fact could conclude that Christian either tortured or cruelly abused Shawn Neubauer, a child under eighteen years of age, causing him serious physical harm. Accordingly, this assignment of error is not well taken and it is overruled. Finally, the state challenges the validity of the sentence imposed by the court in this case alleging that the trial court inadvertently imposed a sentence of two to ten years instead of two to fifteen years as required by R.C. 2919.22 and R.C. 2929.11(B)(5). The appellant has not challenged or responded to this argument. A trial court is obligated by oath to impose sentence according to law. Here, R.C. 2929.11(A) states in part: "***. The indefinite term of imprisonment shall consist of a maximum term as provided in this section and a minimum term fixed by the court as provided in this section.***" Thus, the court's obligation was to impose a fifteen-year maximum sentence for commission of these crimes because in this case, Endangering children is an aggravated felony of the second degree. In Colegrove v. Burns (1964), 175 Ohio St. 437, the court stated: "***. A court has no power to substitute a different sentence for that provided for by law." - 10 - The trial court here erred in imposing a sentence of two to ten years instead of two to fifteen years. Accordingly, this matter is remanded to the trial court for correction of that erroneous sentence. Affirmed but remanded for correction of sentence. - 11 - It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MATIA, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .