Case Number: CA2017-01-001

Judge: Robert Hendrickson

Court: IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY

Plaintiff's Attorney: Valerie Sargent-Wood

Defendant's Attorney: Brian Muenchenbach

Description: In May 2016, appellant was arrested and indicted on one count of endangering
children in violation of R.C. 2919.22(A), a felony of the third degree, and one count of
involuntary manslaughter in violation of R.C. 2903.04(A), a felony of the first degree. The
charges arose out of the death of appellant's infant son, Sylas, who was 21 months old at the
time of his death on December 14, 2015.
{¶ 3} Sylas was born drug dependent in February 2014, as a result of appellant's
ongoing drug abuse. At the time of his birth, Sylas was removed from appellant's care by
Children Services and placed in a foster home. In May 2015, Sylas was returned to
appellant's care, and in September 2015, Children Services closed its case involving Sylas
and appellant. Less than three months later, on December 13, 2015, Sylas was transported
by an ambulance to a Preble County emergency room after appellant called 9-1-1 upon
finding Sylas unresponsive in her home. Sylas was then careflighted to Dayton Children's
Hospital, where he was determined to be nonresponsive and in a vegetative state. He was
malnourished, had significant head trauma, and his body was covered with bruises and burn
marks. Sylas died shortly after being admitted to Dayton Children's Hospital.
{¶ 4} On October 24, 2016, appellant pled guilty as charged to child endangering and
involuntary manslaughter. The trial court accepted appellant's plea, set the matter for
sentencing, and ordered that a presentence investigation report ("PSI") be prepared.
{¶ 5} Appellant appeared for sentencing on November 30, 2016. To provide some
context for the court as to the nature and severity of appellant's crimes, the state called Dr.
Lori Vavul-Roediger, the medical director for the Department of Child Advocacy at Dayton
Children's Hospital. Dr. Vavul-Roediger had performed a medical evaluation on Sylas on
December 13, 2015, and rendered an expert opinion as to the cause and nature of Sylas'
injuries. Dr. Vavul-Roediger wrote a report detailing her findings, and this report was
provided to the trial court.
{¶ 6} Dr. Vavul-Roediger testified that Sylas arrived at the hospital malnourished and
Preble CA2017-01-001

- 3 -
weighing only 9.8 kilograms, or 21.6 pounds. Sylas had extensive injuries to his mouth, as
he was missing a central incisor, his upper gum line was open and had a clot of blood, and
his lower lip and gum line were injured and oozing blood. Dr. Vavul-Roediger opined that the
oral injuries were caused by a "very violent, forceful, blunt trauma to the child's oral cavity."
Sylas also had significant head trauma, including an acute subdural hemorrhage and
extensive cerebral swelling, which Dr. Vavul-Roediger opined resulted from multiple blows to
his head. Dr. Vavul-Roediger also observed bruising to Sylas' ears, forehead, jaw, chin,
back, legs, and arms, as well as healing or healed burn marks to Sylas' back and his
scrotum. Skeletal x-rays showed healing and acute fractures to Sylas' jaw, collarbone, and
ribs and compressive injuries to his spinal column.
{¶ 7} Dr. Vavul-Roediger spoke with appellant after examining Sylas. Appellant told
Dr. Vavul-Roediger that Sylas had not seen a doctor since April 2015. Appellant informed Dr.
Vavul-Roediger that Sylas had harmed himself by banging his head on various objects.
Appellant also commented that Sylas had become thinner recently, but appellant attributed
this to Sylas growing taller. Appellant stated Sylas ate all the time and had to be stopped
from over eating as he would eat until he vomited.
{¶ 8} Appellant informed Dr. Vavul-Roediger that she made three videos of Sylas on
her cellphone on December 6, 2015 to show the injuries Sylas had inflicted on himself.
These videos were played at the sentencing hearing. After viewing the videos, Dr. Vavul
Roediger testified that Sylas "appear[ed] malnourished * * * appear[ed] to be clearly acutely
distressed * * * [and] clearly non-responsive to the adult who [was] taping and continue[d] to
tape while he [stood], essentially, motionless and crie[d]." Dr. Vavul-Roediger stated Sylas'
injuries were "extremely" and "exorbitantly" uncommon of injuries sustained from self-induced
"head-banging." Rather, given the severity and type of injuries Sylas experienced, Dr. Vavul
Roediger opined that Sylas was "unfortunately, physically abused and died as a result of the
Preble CA2017-01-001

- 4 -
physical maltreatment he sustained."
{¶ 9} In addition to Dr. Vavul-Roediger's testimony, and the three December 6, 2015
videos taken from appellant's phone, the state also introduced a video of Sylas that was
taken by his former foster parents. The video depicted a healthy 11-month-old Sylas.
Following the presentation of this video, the state asked the trial court to impose maximum,
consecutive sentences on appellant.
{¶ 10} Appellant declined the opportunity to speak at sentencing, but defense counsel
spoke on her behalf. Defense counsel noted appellant had substance abuse issues and had
been diagnosed with post-traumatic stress disorder and an adjustment disorder with
depressive mood. Defense counsel stated that although appellant denied intentionally
harming Sylas, she took responsibility for her recklessness in caring for her son and was
"deeply remorseful" that she did not provide or seek better care for Sylas.
{¶ 11} After considering the information presented at the sentencing hearing,
sentencing memoranda prepared by the parties, a letter submitted by appellant's daughter,
and the PSI, the trial court determined that the presumption of a prison term had not been
overcome. The court sentenced appellant to a nine-year prison term on the involuntary
manslaughter charge, which was run concurrently to a three-year prison term on the
endangering children charge.
{¶ 12} Appellant appealed her sentence, raising two assignments of error.
{¶ 13} Assignment of Error No. 1:
{¶ 14} DEFENDANT-APPELLANT WAS DENIED HER DUE PROCESS RIGHTS AND
THE TRIAL COURT VIOLATED THE MANDATORY REQUIREMENT OF R.C. 2951.03
WHEN IT SENTENCED DEFENDANT-APPELLANT WITHOUT PROVIDING HER OR HER
COUNSEL ANY ACCESS TO THE PRESENTENCE REPORT.
{¶ 15} In her first assignment of error, appellant argues she was denied due process
Preble CA2017-01-001

- 5 -
and her rights under R.C. 2951.03 were violated when the trial court sentenced her without
providing her with a copy of the PSI.
{¶ 16} "A PSI report serves to inform the sentencing judge of relevant aspects of the
defendant's history, so that the court will sentence the defendant in an informed, responsible,
and fair manner." State v. Posey, 6th Dist. Ottawa No. OT-10-044, 2012-Ohio-1108, ¶ 4,
citing State v. Liming, 2d Dist. Greene No. 03CA43, 2004-Ohio-168, ¶ 41. The PSI report
and its contents are governed by Crim.R. 32.2 and R.C. 2951.03.
{¶ 17} Crim.R. 32.2 provides that in felony cases "[u]nless the defendant and the
prosecutor * * * agree to waive the presentence investigation report, the court shall * * * order
a presentence investigation and report before imposing community control sanctions or
granting probation."
{¶ 18} R.C. 2951.03(B)(1) provides that if a PSI is prepared, "the court, at a
reasonable time before imposing sentence, shall permit the defendant or the defendant's
counsel to read the report." However, neither the defendant nor defense counsel are
permitted to read any recommendation as to the sentence, any diagnostic opinions that the
court believes might seriously disrupt a program of rehabilitation for the defendant, any
sources of information obtained upon a promise of confidentiality, or any other information
that if disclosed might result in harm, physical or otherwise, to the defendant or any other
person. R.C. 2951.03(B)(1)(a)-(d). If a PSI report is prepared and its contents shared with
the defendant or defense counsel, then, "[p]rior to sentencing, the court shall permit the
defendant and the defendant's counsel to comment on the [PSI] and, in its discretion, may
permit the defendant and the defendant's counsel to introduce testimony or other information
that relates to any alleged factual inaccuracy contained in the report." R.C. 2951.03(B)(2). If
the trial court believes that any of the information contained in the PSI should not be
disclosed in accordance with R.C. 2951.03(B)(1)(a)-(d), the court, "in lieu of making the
Preble CA2017-01-001

- 6 -
report or any part of the report available, shall state orally or in writing a summary of the
factual information contained in the report that will be relied upon in determining the
defendant's sentence." R.C. 2951.03(B)(3). The court must then give the defendant or the
defendant's counsel the opportunity to comment upon the oral or written summary. Id.
{¶ 19} Appellant contends that although a PSI report was prepared and utilized by the
trial court at sentencing, it was not shared with her or her defense counsel. In support of her
argument that the failure to provide her or her counsel with the PSI constitutes reversible
error, appellant cites to Liming, 2004-Ohio-168; and Posey, 2012-Ohio-1108.
{¶ 20} In Liming, the defendant pled guilty to aggravated vehicular homicide. Liming at
¶ 7. The defendant and his counsel were provided with access to the PSI shortly before the
sentencing hearing. Id. at ¶ 8. The PSI contained information that the defendant had tested
above the legal limit for alcohol shortly after he wrecked his motor vehicle. Id. at ¶ 6, 10.
The defendant asked for a continuance of his sentencing hearing in order to present
evidence rebutting the test results indicating an elevated blood alcohol level. Id. at ¶ 13. The
trial court denied the defendant's request for a continuance and proceeded to sentence him
to a five-year prison term. Id. at ¶ 14, 17. On appeal, the Second District Court of Appeals
found that the trial court abused its discretion in denying the continuance as the defendant
was denied the opportunity to present evidence regarding factual inaccuracies in the PSI in
accordance with R.C. 2951.03(B)(2). Id. at ¶ 52. That is, the defendant was not given the
chance to present witnesses or evidence that he was sober at the time of the accident and
that the alcohol pads applied to his injuries were responsible for his elevated blood alcohol
level. Id. at ¶ 53.
{¶ 21} In Posey, after the defendant pled no contest to two counts of assault, the trial
court requested that a PSI report be prepared. Posey, 2012-Ohio-1108, ¶ 2. In accordance
with the trial court's "standard procedure" of denying all defendants and defense attorneys
Preble CA2017-01-001

- 7 -
access to a PSI report, neither the defendant nor the defendant's counsel were permitted to
view the PSI prior to sentencing. Id. at ¶ 2, 6-7. On appeal, the Sixth District Court of
Appeals concluded that the trial court erred as the court's "'standard' procedure of
automatically denying all defendants and defense attorneys access to a PSI report does not
comply with the statutory due process and requirements provided by R.C. 2951.03(B)(3)." Id.
at ¶ 7.
{¶ 22} The present case is distinguishable from Liming and Posey. Unlike in Liming
and Posey, there is nothing in the record demonstrating that appellant or her defense
counsel were denied access to the PSI. Neither appellant nor defense counsel objected at
the sentencing hearing to not receiving the opportunity to review the PSI; nor did appellant or
defense counsel ask for a continuance or recess to review the PSI. Further, there is nothing
in the record indicating the trial court had a "standard procedure" of not providing criminal
defendants or their attorneys with access to the PSI. Rather, the record reflects the trial
court ordered that a PSI be prepared, it was prepared, and the court referenced the PSI at
the sentencing hearing without any objection or comment from appellant or appellant's
counsel.
{¶ 23} Accordingly, as there is nothing in the record to suggest that the trial court failed
to provide appellant or defense counsel with access to the PSI or the factual information
contained therein, we find no merit to appellant's arguments that she was denied due
process or that her rights under R.C. 2951.03 were violated. See, e.g., State v. Richardson,
2d Dist. Montgomery No. 23879, 2013-Ohio-1374, ¶ 16-17 (finding no merit to defendant's
argument that his rights under R.C. 2951.03 were violated by the trial court's alleged failure to
give him the opportunity to rebut information contained in the PSI where neither the
defendant nor his counsel objected to the court's recitation of the PSI and there was "nothing
in the record to suggest the court 'refused' [the defendant] the opportunity to rebut any
Preble CA2017-01-001

- 8 -
purported inaccuracies contained therein").
{¶ 24} Appellant's first assignment of error is, therefore, overruled.
{¶ 25} Assignment of Error No. 2:
{¶ 26} DEFENDANT-APPELLANT WAS DENIED HER DUE PROCESS RIGHTS AS
A RESULT OF PROSECUTORIAL MISCONDUCT.
{¶ 27} In her second assignment of error, appellant argues she was denied due
process when the prosecutor had an improper ex parte communication with the sentencing
judge. Specifically, appellant contends the prosecutor provided the judge with a "letter" for
purposes of sentencing without also providing a copy of the letter to defense counsel. She
further argues the prosecutor acted improperly and denied her of her due process rights
when he failed to give her notice of his intent to present video evidence and testimony from
Dr. Vavul-Roediger at sentencing.
{¶ 28} The right to procedural due process is found in the Fourteenth Amendment to
the United States Constitution and Section 16, Article I of the Ohio Constitution. Youngstown
v. Traylor, 123 Ohio St.3d 132, 2009-Ohio-4184, ¶ 8. "At a minimum, due process requires
notice and the opportunity to be heard." State v. Koller, 12th Dist. Warren No. CA2013-07
069, 2014-Ohio-450, ¶ 25. "'A hearing before judgment, with full opportunity to present all
evidence and arguments which the party deems important, is * * * vital under the guaranty of
due process of law.'" Id., quoting Reed v. Morgan, 12th Dist. Butler No. CA2011-03-065,
2012-Ohio-2022, ¶ 11.
Ex Parte "Letter"
{¶ 29} Appellant contends "the prosecutor submitted a letter to the court for
consideration in sentencing without disclosing the letter to defense counsel" and references
the following statement by the court at sentencing in support of her claim that an ex parte
communication took place:
Preble CA2017-01-001

- 9 -
THE COURT: When I look at the pre-sentence report, the State's memorandum that was submitted yesterday, the attachments to it, the Defendant's memorandum submitted, I believe, yesterday also, and the attachments to it, and I think a letter that was given to the court today from, I believe, the Defendant's daughter who says the Defendant was a great mother and would never harm her child.

{¶ 30} "[L]etters from interested parties attempting to persuade the judge to their
viewpoint or to bring some information to the judge's attention constitute improper ex parte
communications." State v. Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, ¶ 20 (10th
Dist.). However, the only "letter" mentioned by the trial court at sentencing is a letter that was
submitted by appellant's daughter – not by the prosecutor, and no "letter" authored by the
state was included in the record on appeal. Furthermore, although appellant purports to
have knowledge of an ex parte "letter" allegedly being provided to the trial court by the
prosecutor, the record demonstrates appellant did not object at the sentencing hearing to the
supposed ex parte communication. "A failure to object to alleged prosecutorial misconduct
waives all but plain error." State v. Lamb, 12th Dist. Butler Nos. CA2002-07-171 and
CA2002-08-192, 2003-Ohio-3870, ¶ 13. Pursuant to Crim.R. 52(B), "[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of
the court." Plain error does not exist unless the error is obvious and but for the error, the
outcome of the proceeding would have been different. State v. Yanez, 12th Dist. Butler No.
CA2016-10-190, 2017-Ohio-7209, ¶ 23.
{¶ 31} If an ex parte communication has occurred, "the complaining party must still
show some prejudicial impact from the ex parte communication." Sanders at ¶ 21, citing
State v. Lyons, 11th Dist. Ashtabula No. 2001-A-0056, 2003-Ohio-3494, ¶ 28, reversed on
other grounds in State v. Lyons, 101 Ohio St.3d 94, 2004-Ohio-27. Here, appellant claims
she was prejudicially impacted by the "letter" as it "adversely influenced the trial judge without
giving defense counsel or [appellant] an opportunity to be heard in response." We find no
Preble CA2017-01-001

- 10 -
merit to appellant's argument as there is no evidence in the record that the trial court relied
on the supposed ex parte "letter" in imposing appellant's sentence. The PSI and the
testimony and information presented at the sentencing hearing supports the trial court's
decision. Appellant cannot demonstrate prejudice as the trial court imposed a concurrent
nine-year prison term and not maximum, consecutive prison terms totaling an aggregate of
14 years as the state requested at sentencing and, presumably, would have requested in the
ex parte "letter."
{¶ 32} Furthermore, appellant had an opportunity to be heard with respect to
sentencing. Not only did appellant's counsel file a sentencing memorandum, but defense
counsel was given the opportunity to present mitigation, rebut the information presented by
the state at the sentencing hearing, and present an argument as to why the court should
have imposed a community control sanction rather than a prison term. As appellant was not
denied due process and has not established a prejudicial impact from the prosecutor's
alleged ex parte communication, she has not demonstrated plain error and her arguments
are without merit.
Video Evidence and Testimony at Sentencing
{¶ 33} Appellant also argues the prosecutor engaged in misconduct when he failed to
give her counsel notice that the state intended to present video evidence and testimony from
Dr. Vavul-Roediger at sentencing. Appellant contends that had the prosecutor given such
notice, defense counsel would have had "more time to appropriately prepare potential cross
examination and/or rebuttal witnesses."
{¶ 34} The record demonstrates that after Dr. Vavul-Roediger was called as a witness
and began to testify about Sylas' physical appearance upon his arrival at the hospital,
defense counsel objected to the prosecutor's "line of questioning * * * [as] superfluous and
Preble CA2017-01-001

- 11 -
unnecessary."1 The objection was overruled. At no point did appellant or defense counsel
object to the prosecutor's use of the four videos or the presentation of Dr. Vavul-Roediger's
testimony on the basis of surprise or lack of notice. As a result, appellant has waived all but
plain error on review. Lamb, 2003-Ohio-3870 at ¶ 13.
{¶ 35} R.C. 2929.19(A) provides, in relevant part, that at a sentencing hearing, "the
offender, the prosecuting attorney, the victim or the victim's representative * * * and, with the
approval of the court, any other person may present information relevant to the imposition of
sentence in the case." Dr. Vavul-Roediger's testimony and the videos of Sylas taken from
appellant's cell phone and from Sylas' former foster family were relevant to showing Sylas'
physical health while in Mother's care and at the time of his death. Furthermore, the record
demonstrates that the state identified Dr. Vavul-Roediger as an expert during discovery and
her report, as well as Sylas' records from Dayton Children's Hospital, were provided to
defense counsel in May 2016. Moreover, the videos introduced by the state at the
sentencing hearing were also identified and provided to defense counsel during discovery.
1. Defense counsel objected as follows:

[PROSECUTOR]: And with respect to the hair that you noted, what is the importance of the hair? What condition was the hair in and what does that suggest to you in terms of his nourishment?

[DEFENSE COUNSEL]: Your Honor, I'm going to object to the line of questioning here. We're not – this isn't a trial. This is a sentencing. She's admitted to the guilt. Interactions at this point I think the questioning is superfluous and unnecessary.

[PROSECUTOR]: The Rules of Evidence don't apply and this court is being asked to impose a fair and just sentence based upon this Defendant's crimes. She has been charged with Child Endangering, which includes the general manner in which she cared for this child up to and including any abuse she effected on the child or permitted.

And his physical condition on the date in question is central in the State's judgment to the court's ability to evaluate the severity of her conduct.

THE COURT: And I agree. I have no context because there was a plea. There was no trial. There was no presentation of evidence. So the court will grant some leeway with respect to the State's attempt to present evidence to put this in context.
Preble CA2017-01-001

- 12 -
As defense counsel was provided with all this information more than six months before the
sentencing hearing was held, appellant cannot claim she or her counsel were not given
notice or were surprised by the materials used at sentencing.2
{¶ 36} Moreover, appellant and her counsel were given some notice by the prosecutor
of the state's intent to introduce Dr. Vavul-Roediger's testimony at sentencing. When
appellant moved to continue her sentencing hearing from November 30, 2016 to a later date,
the prosecutor filed a memorandum in opposition. The prosecutor indicated he had
previously sought to have appellant sentenced on November 30, 2016 "to accommodate
professional witness testimony, given the witness' limited unavailability [sic]. This date/time
was scheduled nearly one month ago and a subpoena issued accordingly." The court's
docket indicates that on November 1, 2016, the state subpoenaed Dr. Vavul-Roediger to
appear at appellant's sentencing hearing.
{¶ 37} As the prosecutor subpoenaed Dr. Vavul-Roediger, thereby giving some notice
of his intent to present her testimony at the sentencing hearing, and provided all the materials
introduced at the sentencing hearing to defense counsel during discovery, we find no
impropriety in the prosecutor's conduct. Appellant's prosecutorial misconduct claim fails as
she cannot establish that she was prejudiced by the prosecutor's presentation of the videos
or Dr. Vavul-Roediger's testimony. Additionally, appellant's claim that her due process rights
were violated also fails as she was given advance notice of the materials used at sentencing,
her defense counsel had the opportunity to cross-examine Dr. Vavul-Roediger, and she was
permitted to present mitigation, information, and argument at the sentencing hearing as to
the severity of her conduct and the type and duration of sentence she believed was
2. We further note that the introduction of the videos and Dr. Vavul-Roediger's testimony was permissible and not in violation of any evidentiary rules, as Evid.R. 101(C) "clearly identifies sentencing hearings as among those certain criminal proceedings in which the rules of evidence, including the hearsay rule, do not apply." State v. Bene, 12th Dist. Clermont No. CA2005-09-090, 2006-Ohio-3628, ¶ 21.
Preble CA2017-01-001

- 13 -
appropriate for her crimes. Appellant's arguments are, therefore, without merit and her
second assignment of error is overruled.

Outcome: Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: