State v. Kamel

466 N.E.2d 860, 12 Ohio St. 3d 306, 12 Ohio B. 378, 1984 Ohio LEXIS 1216
CourtOhio Supreme Court
DecidedAugust 1, 1984
DocketNo. 83-1827
StatusPublished
Cited by116 cases

This text of 466 N.E.2d 860 (State v. Kamel) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kamel, 466 N.E.2d 860, 12 Ohio St. 3d 306, 12 Ohio B. 378, 1984 Ohio LEXIS 1216 (Ohio 1984).

Opinions

J. P. Celebrezze, J.

In reversing the judgment of the trial court, the court below relied upon four separate grounds. Appellant now asks us to review each of these issues.

I

It is a well-settled policy of law that, while this court will not ordinarily weigh the evidence adduced in a criminal matter, it will do so in order to ascertain whether there is sufficient evidence which, if believed, would support a finding of guilt beyond a reasonable doubt. State v. Kulig (1974), 37 Ohio St. 2d 157, 159 [66 O.O.2d 351]; State v. Jacobozzi (1983), 6 Ohio St. 3d 59, 61. It is also established that where proof of an essential element of a crime is based exclusively on circumstantial evidence, such evidence must be consistent only with a theory of guilt and irreconcilable with any reasonable theory of innocence. State v. Kulig, supra, at 160; State v. Sorgee (1978), 54 Ohio St. 2d 464, 465 [8 O.o.3d 452].

At the trial of the instant matter, the evidence presented against Dr. Kamel for elements of the offenses with which he was charged was entirely circumstantial in nature. The court of appeals found this evidence to be insufficient under the standards set forth above in that it failed to demonstrate that the doctor had personally inflicted the injuries sustained by his son.1

It is our view that this finding suffers from a misapplication of the Criminal Code sections under which-Dr. Kamel was charged. The first of these sections is R.C. 2919.22 which defines the offense of endangering children. It reads, in relevant part:

“(A) No person, being the parent * * * of a child under eighteen * * * shall create a substantial risk to the health or safety of such child, by violating a duty of care, protection, or support. * * *

“(C) Whoever violates this section is guilty of endangering children * * *. If a violation of this section results in serious physical harm to the child involved * * * endangering children is a felony of the fourth degree.”

The term “substantial risk” is defined in R.C. 2901.01(H) as follows:

“* * * a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.”

It is not necessary to show an actual instance or pattern of physical abuse on the part of the accused in order to justify a conviction under R.C. 2919.22(A). Affirmative acts of torture, abuse, and excessive acts of corporal [309]*309punishment or disciplinary measures are expressly covered under division (B) of the section. Division (A) is concerned with circumstances of neglect as is indicated by the Committee Comment to R.C. 2912.22.2 Manifestly, such neglect is characterized by acts of omission rather than acts of commission. See, e.g., State v. Sammons (1979), 58 Ohio St. 2d 460 [12 O.O.3d 384]. Accordingly, an inexcusable failure to act in discharge of one’s duty to protect a child where such failure to act results in a substantial risk to the child’s health or safety is an offense under R.C. 2919.22(A).

In applying these principles to the instant matter, the testimony of Drs. Cox and Spencer is of particular significance. Both men agreed that a major cause of Markey’s death was severe brain swelling due to a blunt force impact. Such injuries could not have been caused by a fall occurring on July 28 as they would have certainly resulted in death within a very short time.

The doctors also noted severe abdominal injuries, particularly to the liver and pancreas, and concluded that they too were the result of blunt force trauma. Some of these injuries must have been sustained days before' Markey’s death. While Cox determined that such injuries were a secondary cause of death, Spencer felt them to be a primary cause. At any rate, Spencer emphasized that the injuries to the pancreas involved painful nerve inflammation and must have caused the victim to complain.

Finally, Dr. Cox noted the existence of some sixty-six contusions as well as several related abrasions. These injuries were of varying age and severity. Based largely upon their location, the doctors determined that their presence was not attributable to the emergency treatment received by Markey. This fact was buttressed by the testimony of several individuals who observed bruises and marks on the child in the days preceding his death.

Based upon these findings, the doctors concluded that Markey’s injuries were entirely inconsistent with a fall down a flight of stairs. Such a fall would have more likely produced injuries to the extremities, particularly the knees and elbows. Moreover, the site of the injuries on the head and torso were more typical of blows than of a fall. Finally, the injuries were not sustained all at once but accumulated over some time, culminating in the victim’s death. In short, Cox determined this to be a classic case of child abuse.

This testimony, if believed, presents the picture of a child who suffered multiple injuries over a period of time. The plain evidence of such suffering was all over his body. During this period, the boy was in the control and custody of one or both of his parents.

By his own testimony, Dr. Kamel personally examined his son in his final hours. Yet, no steps were taken by the doctor to secure medical attention for [310]*310his son or to prevent any further injury to him. Certainly, this was not consistent with his parental duty of care.

Based upon the foregoing, we find that the evidence was sufficient to support a finding of Dr. Kamel’s guilt under R.C. 2912.22(A). Moreover, based upon the definition of involuntary manslaughter as set forth in R.C. 2903.04(A),3 his conviction for that offense was also warranted. The court of appeals erred in finding otherwise. However, for the reasons stated in Part II, infra, we affirm, and this cause is remanded to the trial court for a new trial as to Dr. Kamel.

II

At the trial of this matter, appellees were asked on cross-examination whether either of them had ever punished their children by grabbing the child’s ear and slapping him in the face. Both denied that either of them had ever taken such measures. Dr. Kamel was also specifically questioned as to whether a punishment of this nature had taken place in a Sears, Roebuck and Co. store. Kamel responded that he was unable to recall such an instance.

In order to rebut these denials, the state called H. Steven Russell to the stand. Russell testified that three or four years prior to the trial, at a Sears store in Belden Village in Canton, he observed Dr. Kamel pull one of his children upward by the ear and viciously beat the boy’s face with his free hand. According to Russell, Mrs. Kamel observed this take place but seemingly had no reaction.

The potential impact of such testimony was great as it related a specific example of child abuse on Dr. Kamel’s part. Moreover, it tied into testimony given by Dr. Cox that Markey had sustained ear injuries as a probable result of a grabbing force.

The court below concluded that evidence of the slapping incident was introduced by the state in order to prove the bad character of Dr. Kamel and to suggest that he had acted in conformity with the character by abusing Markey.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Brady
2024 Ohio 1169 (Ohio Court of Appeals, 2024)
State v. Sharier
2019 Ohio 3533 (Ohio Court of Appeals, 2019)
State v. Austin
2018 Ohio 3048 (Ohio Court of Appeals, 2018)
In re N.J.
2017 Ohio 7466 (Ohio Court of Appeals, 2017)
State v. Conyers
2016 Ohio 2952 (Ohio Court of Appeals, 2016)
State v. Phillips
2014 Ohio 5322 (Ohio Court of Appeals, 2014)
State v. Miller
2014 Ohio 261 (Ohio Court of Appeals, 2014)
State v. Bennett
2013 Ohio 5524 (Ohio Court of Appeals, 2013)
State v. Agee
2013 Ohio 5382 (Ohio Court of Appeals, 2013)
State v. Hickman
2013 Ohio 4192 (Ohio Court of Appeals, 2013)
State v. Hinojosa
2013 Ohio 4110 (Ohio Court of Appeals, 2013)
State v. Coonrod
2012 Ohio 6302 (Ohio Court of Appeals, 2012)
State v. Grad
2012 Ohio 1385 (Ohio Court of Appeals, 2012)
State v. Ray
2012 Ohio 840 (Ohio Court of Appeals, 2012)
State v. Colopy
2011 Ohio 6120 (Ohio Court of Appeals, 2011)
State v. Mabrey
2011 Ohio 3849 (Ohio Court of Appeals, 2011)
State v. Trimble
2009 Ohio 2961 (Ohio Supreme Court, 2009)
State v. Ward, 13-07-21 (1-14-2008)
2008 Ohio 84 (Ohio Court of Appeals, 2008)
State v. Stewart, 2007-Ca-00068 (11-19-2007)
2007 Ohio 6177 (Ohio Court of Appeals, 2007)
State v. Stewart, 2007-Ca-00059 (11-13-2007)
2007 Ohio 6118 (Ohio Court of Appeals, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
466 N.E.2d 860, 12 Ohio St. 3d 306, 12 Ohio B. 378, 1984 Ohio LEXIS 1216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kamel-ohio-1984.