Youngstown Daily Legal News

Appeal denied for man who burned handicapped stepdaughter with frying pan

JESSICA SHAMBAUGH
Special to the Legal News
Published: December 23, 2014

A man convicted of assaulting his mentally handicapped stepdaughter with a hot frying pan recently lost his appeal when a three-judge appellate panel found that the jury relied on proper evidence.

The 10th District Court of Appeals rejected an appeal from a man identified only as S.S.

In his appeal, S.S. asserted that his convictions for felonious assault and felony child endangering were against the manifest weight of the evidence.

Upon review, the appellate judges determined that the state presented testimony from multiple witnesses during S.S.’s trial.

First to testify was the alleged victim, M.K., who was determined to be cognitively disabled.

Due to her disability, M.K. was unable to live on her own as she cannot manage her finances, obtain a driver’s license or navigate public transportation, according to testimony from her biological father.

After graduating high school, M.K. began living with her mother, C.S., and her stepfather.

She told the court “at first it was OK,” but eventually she started “getting abused” whenever S.S. “lost his temper” or was “angry.”

She stated that happened almost everyday and he would hit her with “objects he had next to him” on her arms and the backs of her legs.

M.K. said she told her mother about the abuse, which only worsened it. Based on that outcome and threats from S.S. she said she did not tell anyone else.

Eventually, M.K. tried to put an end to the abuse by fleeing to a neighbor’s house.

She said she did so because “I was getting abused constantly” and “I was feared for my life.”

Two days prior to her fleeing, M.K. said she was cleaning the stove when S.S. got mad and burned her with a hot frying pan on her arm and the back of her neck.

She said she screamed and told him to get it off but it hurt when he did. She also recalled him telling her mother that he “did it on accident.”

After M.K. fled to her neighbor’s home, she told her neighbor that she had escaped from her home.

The neighbor testified that M.K. was “balled up on the floor crying and scared and saying, please don’t let (S.S.) get me.”

Seeing bruises and burns on M.K., the neighbor called the police.

Responding officer Gregory Casanova described M.K. as crying and “very, very emotional.”

He told the court that when he asked her to speak to him outside she panicked about S.S. seeing her and retreated into the house.

He also testified about seeing clear, visible injuries, including burns on her neck and arm and bruises on her arms and legs.

M.K. was then taken to the hospital where her burns were treated. Her records describe her injuries being in various stages of healing.

Photographs revealed that her second-degree burns had scabbed over.

They also depicted bruising on her arms, chest and the backs of her legs. She testified that those bruises came from S.S. hitting her with a brass cane and a toilet brush.

Her mother, C.S. testified that M.K. sometimes lied but she did not “think she would lie about something like this.”

Based on that evidence, the jury found S.S. guilty of felonious assault and two counts of child endangering.

The common pleas sentenced him to an aggregate term of 12 years in prison and he promptly filed his appeal.

The reviewing judges noted that there was no debate that M.K. was a mentally handicapped child under the age of 21 or that she suffered serious physical harm.

Instead, S.S. only argued that there was no direct testimony that he knowingly caused that harm.

“Here, M.K. testified that appellant would hit her with objects when he ‘lost his temper’ and was ‘angry,’” Presiding Judge Lisa Sadler wrote for the court.

She also noted that M.K. said the abuse happened almost daily and that her burns were from a recent incident involving a hot frying pan.

“Though M.K. testified that she heard appellant tell C.S. that he ‘did it on accident,’ the jury was free to believe M.K.’s testimony that appellant would strike her when he lost his temper and that he would strike her with ‘objects he had next to him,’” Sadler wrote.

The judges held that the jury was free to assess M.K.’s credibility and refused to overturn the jury’s judgment simply because it chose to believe the state’s witnesses.

Finding that M.K.’s testimony supported the elements of felonious assault, the judges therefore overruled S.S.’s first assignment of error.

He next argued that his convictions should have merged for sentencing because they stemmed from the same conduct.

In response, the state asserted that his felonious assault charge was based on the incident with the frying pan, the first child endangering charge stemmed from M.K.’s allegations regarding a brass cane and a toilet brush and the second child endangering charge was because S.S. failed to take M.K. for burn treatments.

The judges elected to believe the state’s reasoning.

“Accordingly, we do not find that appellant has demonstrated the alleged offenses were committed with the same conduct,” Sadler stated.

“Having overruled both of appellant’s asserted assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.”

Judges Susan Brown and Betsy Luper Schuster concurred.

The case is cited State v. S.S., 2014-Ohio-5352.

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