Youngstown Daily Legal News

Appellate court orders resentencing for man who severely burned baby

JESSICA SHAMBAUGH
Special to the Legal News
Published: August 31, 2015

The 5th District Court of Appeals recently remanded a man’s felonious assault case after finding the trial court improperly relied on alleged other acts when imposing its sentence.

The three-judge appellate panel sustained an argument from Zachariah Keen that the Knox County Court of Common Pleas unlawfully considered allegations of past abuse when it imposed a seven-year prison term.

Keen was first indicted on charges of felonious assault and endangering children after a child he was babysitting was severely burned.

The child, identified only as H.H., was less than six months old when he suffered second-degree burns to his left arm and third-degree burns to his left leg.

The burn on the child’s leg went deep through his skin and muscle and down to his bone.

As a result of the injuries, the child’s leg had to be amputated and at the time of Keen’s sentencing he had undergone nine surgeries, including skin grafts.

The child’s family also noted that he struggled with ongoing pain and night terrors and would have to be fitted for a new prosthetic leg every two to three years.

Regarding the burns, Keen first told police he was babysitting the child when the incident occurred but was watching TV or in the bathroom and did not know how the burns occurred.

He later admitted to the officers and to an adult court services officer that he had accidentally burned the child.

Specifically, Keen claimed that he had heated seven ounces of water in the child’s bottle. As he carried the bottle from the microwave to the child, he said he tripped and spilled the water on the child.

Keen insisted the burns did not look that bad when he changed the boy’s clothes. He said the skin was only red and was not blistered so he applied a cold cloth and baby lotion.

To counter that theory, the physicians who treated H.H. also testified.

They stated that there was no sign of a spatter pattern to the child’s burns that would indicate an accidental spill and that seven ounces of hot water would not have been enough to cause such severe injuries.

They also explained that the burns were likely the cause of a long period of contact with a hot item or liquid and that if Keen had dropped the water it would have hit the child’s arm first and caused more serious burns there rather than on his leg and blistering would have occurred within mere seconds.

The physicians told the court H.H.’s burns were the worst they had seen on a living child and provided pictures of injuries the child seemed to have sustained prior to the burns.

Among those injuries were bruising to his chin, a fracture to his right leg and fractures to his ribs.

The doctors noted that the fractures seemed to have taken place seven to 10 days before the burns.

Keen ultimately pleaded guilty to one count of felonious assault and the trial court proceeded to sentencing on that charge.

At the sentencing hearing, the child’s mother testified Keen loved the child and was always there for him. She said she did not believe Keen would have intentionally harmed her son.

The boy’s step-grandmother also testified and described his pain and continued suffering.

On his own behalf, Keen stated that the incident was “a very tragic accident” and he was “very sorry.”

The trial court then noted that it was having two problems.

It explained the first concern was the evidence of prior abuse and the second was that Keen still had not been candid or confessed what had happened on the night the child was burned.

It then sentenced Keen to seven years in prison and he appealed to the 5th District.

“In his first assignment of error, appellant argues that his sentence is contrary to law because the trial court relied on unsubstantial facts outside of the record,” Judge John Wise wrote in his opinion for the court. “We agree.”

The appellate judges noted that a presentence investigation report may include details of previous conduct and any prior convictions.

However, they maintained that a trial court must consider evidence of other offenses for which there was no conviction with some discretion.

Mainly, they stated that a trial court cannot indicate a belief that the defendant is guilty of charges of which he or she was not convicted.

Based on those guidelines, the appellate judges held that the trial court was permitted to consider the allegations of Keen’s previous wrongdoings.

“However, in the present case, there is absolutely no evidence that H.H.’s prior injuries were caused by appellant,” Wise stated.

“While this court finds that the record and the severity of H.H.’s injuries fully support the sentence imposed by the trial court, due to the trial court’s reference to H.H.’s prior injuries immediately prior to its imposition of sentence, this court is unable to determine whether the trial court took such prior injuries into consideration when it imposed sentence.”

Based on that concern, the appellate judges remanded the matter for resentencing.

Keen next asserted that the trial court improperly allowed the state to call two witnesses to give victim impact statements on H.H.’s behalf.

The appellate judges noted that the state called both the child’s mother and his step-grandmother.

However, only his step-grandmother gave a victim impact statement because his mother testified in support of Keen.

“Based on the foregoing, we find the trial court did not abuse its discretion in allowing both statements to be read prior to sentencing,” Wise wrote.

Presiding Judge William Hoffman and Judge Patricia Delaney concurred.

The case is cited State v. Keen, 2015-Ohio-3200.

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