State v. Perez
This text of 2021 Ohio 2971 (State v. Perez) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Perez, 2021-Ohio-2971.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1153
Appellee Trial Court No. CR0201902569
v.
Melreona Perez DECISION AND JUDGMENT
Appellant Decided: August 27, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee
Laurel A. Kendall, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from an August 27, 2020 judgment of the Lucas County
Court of Common Pleas, sentencing appellant to an 18-month term of incarceration, with
credit for 340 days served, following appellant’s negotiated plea to one count of attempted endangering children, in violation of R.C. 2919.22(A) and R.C. 2923.02, a
felony of the fourth degree, as amended from one count of endangering children, in
violation of R.C. 2919.22(B), a felony of the second degree. For the reasons set forth
below, this court affirms the judgment of the trial court.
{¶ 2} Appellant, Melreona Perez, sets forth the following assignment of error:
“Did the court [err] when it sentenced appellant to serve the
maximum term of incarceration for a non-violent felony of the fourth
degree[,] which was her first felony conviction?”
{¶ 3} The following undisputed facts are relevant to this appeal. On April 22,
2019, appellant left her three-month-old infant daughter in the care of the child’s
biological father. Appellant did so despite her awareness of issues detrimental to the
infant occurring on previous occasions when the child was left alone in the care of the
father.
{¶ 4} Upon returning home later that day, appellant observed that her child was
“twitching” while sleeping, which appellant noted to be unusual. Nevertheless, appellant
did not seek medical assistance. Rather, appellant took the infant along when she went
out later that evening for dinner and a movie.
{¶ 5} The following morning, appellant observed her infant’s eyes and tongue all
rolling back. At this juncture, appellant called her mother. Following their
2. communications, appellant finally sought medical care for the infant. While en route to
the hospital, the infant suffered a seizure.
{¶ 6} Upon examination by emergency medical providers, it was determined that
in the three months since the infant had been born, the child had intermittently sustained
multiple serious bone fractures throughout her body.
{¶ 7} The injuries inflicted upon the infant included skull fractures, rib fractures,
fractures of both clavicles, fractures of both femurs, fractures of both tibia, fractures of
both humeri, and a spinal cord depression. The variable stages of healing of the above-
delineated injuries reflected that they occurred on multiple, separate occasions. The child
sustained permanent neurological damage.
{¶ 8} Follow-up investigation by law enforcement and related agencies
determined that the infant’s injuries had been inflicted by the co-defendant, the biological
father. They further found that appellant had continued to leave her child alone in the
care of the co-defendant despite her awareness of “issues” occurring when she did so.
{¶ 9} On September 6, 2019, appellant was indicted on one count of child
endangerment, in violation of R.C. 2919.22(B), a felony of the second degree.
{¶ 10} On August 13, 2020, following a series of pre-trials, the exchange of
discovery, and ongoing plea negotiations, appellant voluntarily entered a plea to one
amended count of attempted child endangerment, in violation of R.C. 2919.22(A) and
3. R.C. 2923.02, as reduced to a felony of the fourth degree. A presentence investigation
was ordered.
{¶ 11} On August 27, 2020, the case proceeded to sentencing. At sentencing, the
trial court noted that, “She [the victim] continues to suffer from her injuries, and she will
for the rest of her life * * * I find it appalling that you [appellant] fail to show any
remorse.” Appellant was sentenced to an 18-month term of incarceration, with credit for
340 days of time served. This appeal ensued.
{¶ 12} In the sole assignment of error, appellant maintains that the trial court erred
in determining that appellant caused physical harm to the victim, and argues that the
matter should be remanded for resentencing. We do not concur.
{¶ 13} We note that all parties concur that appellant satisfies the statutory
conditions for an initial, rebuttable presumption against the imposition of a prison term,
as set forth in R.C. 2929.13(B).
{¶ 14} The parties further concur that the statute permits the trial court to
overcome the presumption and impose a prison term upon a fourth degree felony
offender, such as appellant, if, “[T]he offender caused physical harm to another while
committing the offense.” R.C. 2929.13(B)(1)(b)(ii).
{¶ 15} The record encompasses irrefutable evidence demonstrating that the victim,
an infant, suffered a multitude of severe orthopedic and related injuries inflicted during
the infant’s first three months of life.
4. {¶ 16} In conjunction, the record reflects appellant’s awareness and
acknowledgement of issues adverse to the infant when left alone in the care of the father.
Appellant conveyed that she, “[D]oes worry because every time she leaves the two of
them alone together something happens.” (Emphasis added).
{¶ 17} The record reflects that despite the above, appellant elected not to seek
medical attention for the infant after observing unusual, twitching motions being made by
her child upon appellant’s return home after leaving the victim alone with the father.
{¶ 18} Rather than seek medical care for her child, who was exhibiting signs of
physical distress, appellant took the child out to a restaurant and a movie. Appellant only
sought medical attention the following day, upon observing the child’s eyes and tongue
rolling back.
{¶ 19} Given the totality of these facts and circumstances, the trial court
determined it sentencing, “This little baby suffered serious physical harm * * * and may
have suffered more, as evidenced by your statement that she was twitching the night
before, when you took her to dinner and to a movie. She continues to suffer from her
injuries, and she will for the rest of her life, as she has neurological damage, is legally
blind, and continues to suffer seizures.”
{¶ 20} Accordingly, the trial court concluded, “The court finds pursuant to R.C.
2929.13(B) that the defendant has caused physical harm to a person and, therefore, finds
5. that the defendant is not amenable to community control in that prison is consistent with
the purposes of sentencing.” (Emphasis added).
{¶ 21} We find that the record contains convincing evidence in support of the trial
court’s R.C. 2929.13(B)(1)(b)(ii) finding that appellant caused physical harm to the
victim by observing the infant’s unusual physical movements following the infant being
left alone for a considerable time with the father, yet failing to seek medical attention for
her child until the following day, during time which the infant’s manifest symptoms of
serious physical injury worsened.
{¶ 22} Wherefore, we find that appellant has failed to demonstrate that the
disputed sentence was clearly and convincingly based upon relevant statutory findings
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