State v. Christon , 2020 Ohio 1524 ( 2020 )

[Cite as State v. Christon, 2020-Ohio-1524.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-43
:
v. : Trial Court Case No. 2018-CR-346
:
KALI N. CHRISTON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of April, 2020.
...........
MARCY VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
P.J. CONBOY, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Kali N. Christon appeals from his conviction of murder following a jury trial on
charges of murder and felonious assault; the offenses were merged for sentencing.
{¶ 2} In his sole assignment of error, Christon contends the jury’s verdicts were
against the manifest weight of the evidence.
{¶ 3} The record reflects that Christon was charged with the offenses set forth
above for allegedly abusing his six-week-old son by inflicting blunt-force injuries to the
child’s head, resulting in hemorrhaging that proved fatal. At trial, police dispatcher Steffi
Lutz testified that Christon called 911 at 3:17 a.m. on March 8, 2018 and reported that his
child had not been breathing for approximately 30 minutes. During the call, the dispatcher
heard Christon say, “I probably f***ed him up.” On cross-examination, the dispatcher
acknowledged that she did not know the context of the statement. She conceded it was
possible that Christon was referring to performing CPR improperly.
{¶ 4} Fairborn police officer Sam Fullen was the first to arrive on the scene. He
proceeded to an upstairs bedroom of Christon’s residence and saw the child lying on the
floor on his back. The child was not breathing, and Fullen could not detect a pulse. Fullen
proceeded to perform CPR. Fairborn police officers John Hood and Matthew Haytas
arrived shortly after Fullen. Hood spoke with Christon at the scene and asked what had
happened. Christon responded that he woke up to the baby crying and went downstairs
to prepare a bottle. He came back upstairs and tried to feed the child. Christon told the
officer that the baby would not take the bottle and went “limp.” Christon stated that he
performed CPR on the child for about 40 minutes before calling 911. Hood and Haytas
both described Christon’s demeanor as “very calm.”
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{¶ 5} The next witness at trial was Kent Depue, an emergency-room doctor at
Dayton Children’s Hospital. He testified that the victim had no pulse and was not breathing
upon arrival at the hospital. Resuscitation efforts were unsuccessful, and Depue
pronounced the child dead after about 30 minutes. On cross-examination, Depue agreed
that performing CPR improperly could cause injury. On redirect examination, he explained
that the expected injury primarily would involve broken ribs. He testified that he never had
seen subdural or subarachnoid hemorrhaging due to improper administration of CPR.
{¶ 6} Kasey Hockett, the mother of the deceased child, also testified as a
prosecution witness. Hockett testified that she and Christon had two children together.
They were separated at the time in question. She lived with the children in Huber Heights,
and Christon lived with his aunt in Fairborn. Hockett sometimes stayed with Christon at
the Fairborn residence. On March 6, 2018, she dropped the children off to stay with
Christon for a couple of days. Hockett testified that the victim had no health problems
when she left him with Christon. At six weeks of age, the child was not able to roll over
by himself. Hockett had not seen the child fall and had not dropped the child. Hockett
stated that Christon called her at 3:14 a.m. on March 8, 2018 and reported that the six-
week-old child was not breathing. Christon hung up when Hockett asked whether he had
called 911.
{¶ 7} Hockett testified that on prior occasions Christon became angry and
frustrated when the child would cry. She explained that he would yell and hold the child’s
mouth closed for a couple of seconds until she would tell him to stop. Sometime after the
child’s death, Hockett made a recorded telephone call to Christon and asked him about
an autopsy report identifying blunt-force trauma to the head as the cause of death.
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Christon responded by calling the report “bulls**t” and saying “they make everything up.”
Hockett also testified that Christon previously had complained about the child needing to
learn to stop crying so much. According to Hockett, Christon had told her that the child
needed to learn to “be a man” and not cry. Hockett acknowledged, however, that she
never had seen Christon hit the child.
{¶ 8} Christon’s aunt, Tonya Watkins, testified that Christon had his own bedroom
at her house. He shared the bedroom with his two children and sometimes Hockett. She
stated that she never saw him act inappropriately with his children. In the early morning
hours of March 8, 2018, he awoke her and told her that there was something wrong with
the baby and that he had been performing CPR. Watkins then assisted with performing
CPR until police arrived and took over.
{¶ 9} Fairborn detective Ryan Whittaker testified about interviewing Christon with
another detective on March 8, 2018. At that time, Christon told the detectives that he
awoke around 2:00 a.m. or 2:30 a.m. to find his six-week-old child crying in his bed. He
went downstairs and prepared the child a bottle. He then returned and attempted to feed
the child. Christon told the detectives the baby refused the bottle and went “limp.”
According to Whittaker, Christon claimed that he performed CPR for approximately 30
minutes before getting his aunt. Christon told the detectives that everyone else was
asleep when he went to make the bottle and that it took him no more than five minutes.
Christon also denied that anyone had dropped the child or that the child had rolled off of
the bed. He claimed that he had been with the child the entire time and that no one else
had cared for him. Christon also stated that he had not left the house the prior day and
that he had been with the child the whole time. When asked why he did not call 911
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sooner, Christon responded that he thought he could revive the child.
{¶ 10} Detectives Whittaker and Shane Hartwell interviewed Christon a second
time on April 30, 2018. By that time, the detectives knew that blunt-force trauma to the
head was the cause of the child’s death. When confronted with these findings, Christon
responded that someone else in the house might have dropped the child. He also
suggested that other children in the house might have watched the infant while he stepped
outside to smoke. He continued to insist, however, that the child was not exhibiting any
signs of injury prior to going limp and stopping breathing. When Whittaker accused
Christon of shaking the child, he responded “damn” but did not admit shaking or striking
the infant.
{¶ 11} Detective Hartwell also testified as a prosecution witness. He essentially
corroborated detective Whittaker’s testimony about the two interviews. In particular, he
testified that Christon initially denied that anyone else had cared for the child. Christon
also told Hartwell that the only other person in the bedroom besides himself and the six-
week-old infant was his other child, who was almost two years old. Christon told Hartwell
that this other child had been asleep throughout the time in question. After being
confronted with evidence about blunt-force trauma during the second interview, Christon
told Hartwell that someone else might have been watching the infant and might have
dropped him.
{¶ 12} The next witness at trial was forensic pathologist Susan Brown. She testified
that she performed an autopsy on the deceased infant. The autopsy revealed that the
child exhibited subdural and subarachnoid hemorrhaging, which involved bleeding
around the brain. Brown also noted hemorrhaging involving both eyes as well as bruising
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on the child’s back and contusions on the scalp, cheek, lip, and forearm. In addition, the
child had a laceration of the upper frenulum, which is a small piece of tissue inside the
mouth connecting the lip to the gums. Brown also noted the existence of rib fractures
without hemorrhaging, which indicated that the fractures were post-mortem and
attributable to CPR. Brown opined that the child’s cause of death was blunt-force trauma
to the head and that the manner of death was homicide. She explained that pressure from
bleeding on the brain caused problems with the child’s breathing and heartbeat and
resulted in death.
{¶ 13} The final witness was Dr. Kelly Liker, the chief of the division of child
advocacy at Dayton Children’s Hospital. Liker was board-certified in pediatric child abuse.
She opined that a six-week-old child would not be able to crawl, walk, or sit up
independently. Nor could a child that age inflict the type of injuries at issue. For that
reason, Liker stated that a care giver would be expected to be aware of the cause of such
injuries. Based on her review of available records, Liker opined that the infant would have
exhibited symptoms and acted abnormally immediately after sustaining the subdural and
subarachnoid hemorrhaging. Symptoms might include vomiting, seizures, going limp, not
moving, and being non-responsive to stimuli. Liker stated that a loss of consciousness
would occur within minutes. In her medical opinion, the injuries at issue were not the result
of a fall or being dropped. Rather, the trauma to the child’s head resulted from multiple
impacts. Liker added that the tear to the child’s frenulum was consistent with something
forcibly being inserted into the mouth. Liker also opined that the child was incapable of
causing 15 observed bruises on his body by himself. Liker testified that she never had
seen a case in which CPR caused subdural or subarachnoid hemorrhaging. She agreed,
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however, that the child’s rib fractures could have been caused by CPR. She also opined
that Christon’s other child, who was almost two years old, would have been incapable of
inflicting the severe injuries at issue. Liker noted too that, according to Christon, this child
was asleep during the entire incident. In Liker’s view, the victim’s injuries resulted from
physical abuse.
{¶ 14} On cross-examination, Liker dismissed the notion that Christon’s nearly
two-year-old child repeatedly could have hit the victim in the head and thrown the victim
on the floor while Christon was downstairs preparing a bottle. Liker also noted that, by
Christon’s own admission, this other child was asleep when he went downstairs and
remained asleep when he returned upstairs. On redirect examination, Liker observed that
Christon claimed the victim was still in bed, and not on the floor, when he returned
upstairs. Liker added that she never had seen brain hemorrhaging caused by blows
inflicted by a two-year-old child. On recross-examination, Liker was informed that four
other children between the ages of 10 and 16 years old also lived in the house. She noted,
however, that there was no reported history of any of these people being in the bedroom
with the victim at the time of the injuries. To the contrary, the case history reflected that
the only people present were the victim, the two-year-old child, and Christon.
{¶ 15} Based on the evidence presented, a jury found Christon guilty of felonious
assault and murder as a proximate result of committing felonious assault. The trial court
merged the two counts as allied offenses of similar import. The State elected to proceed
to sentencing on the murder conviction. The trial court imposed a prison term of 15 years
to life. This appeal followed.
{¶ 16} In his assignment of error, Christon contends the jury’s guilty verdicts on the
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felonious assault and murder charges were against the manifest weight of the evidence.
Christon asserts that he never before had injured either of his children. With regard to the
incident in question, he claims he went downstairs to prepare a bottle and does not know
whether someone else entered the bedroom and injured the infant during his five-minute
absence. He also suggests that someone else in the house might have cared for the child
earlier when he went outside to smoke and might have dropped the child. In addition,
Christon notes that Dr. Liker could not say specifically how the child’s injuries occurred.
He notes too that the coroner did not determine specifically what caused the blunt-force
trauma to the child’s head, who caused the injuries, or precisely when they occurred.
Under these circumstances, Christon maintains that the jury’s guilty verdicts were against
the weight of the evidence.
{¶ 17} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “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. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). A
judgment should be reversed as being against the manifest weight of the evidence “only
in the exceptional case in which the evidence weighs heavily against the conviction.”
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 18} With the foregoing standards in mind, we conclude that the jury’s verdicts
finding Christon guilty of felonious assault and murder were not against the weight of the
evidence. The trial court instructed the jury that felonious assault required proof that
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Christon knowingly caused serious physical harm to his infant child. See R.C.
2903.11(A)(1). The trial court instructed the jury that murder required proof that Christon
caused the death of his infant child as a proximate result of committing an offense of
violence, namely felonious assault. See R.C. 2903.02(B). The weight of the evidence
supported the jury’s verdict that the State proved both offenses beyond a reasonable
doubt.
{¶ 19} Christon initially told police that no one but him had watched or cared for his
infant child. He asserted that the child had no prior injuries, had not been dropped, and
had not rolled out of bed. He also claimed everyone else was asleep when he went
downstairs to prepare a bottle. After being confronted with evidence that the child died
from multiple blunt-force trauma injuries to the head, Christon changed his story. He
theorized that other people in the house might have harmed the child while he was
downstairs. The record contains no evidence, however, that anyone else in the house
entered the bedroom or was even awake. The infant’s mother, Kasey Hockett, also
testified that she was at Christon’s residence on March 6, 2018, and, at that time,
everything he needed to prepare a bottle was kept in his bedroom, suggesting that he
had no need to go downstairs. Dr. Liker also rejected any possibility that the infant may
have injured himself, that Christon’s two-year-old child may have inflicted the injuries, or
that the brain hemorrhaging may have occurred when Christon performed CPR. Liker
opined that the infant’s various injuries were the result of physical abuse. The jury also
heard testimony about Christon having a history of being frustrated by the infant crying
and trying to stop the crying. The 911 operator overheard him say “I probably f***ed him
up” in an apparent reference to the infant. In short, the jury reasonably could have
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concluded that Christon was the only person who reasonably could have caused the
child’s injuries and that those injuries were the result of child abuse, including multiple
blows to the head that caused subdural and subarachnoid hemorrhaging and resulted in
death. The present case was not one in which the evidence weighed heavily against
Christon’s conviction. The jury’s guilty verdicts on the charges of felonious assault and
murder were not against the weight of the evidence. Christon’s assignment of error is
overruled.
{¶ 20} The judgment of the Greene County Common Pleas Court is affirmed.
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TUCKER, P.J. and FROELICH, J., concur.
Copies sent to:
Marcy Vonderwell
P.J. Conboy
Hon. Michael A. Buckwalter