## Facts

- Elliott J. Cherry was at his girlfriend Jocola Martin’s apartment while Martin was at work, caring for Martin’s thirteen-month-old son, Elijah Kimbrough, and Cherry’s approximately eighteen-month-old daughter.
- Cherry called 911 and reported that Elijah had fallen down a stairway and stopped breathing.
- Emergency responders transported Elijah to a children’s hospital, where he was pronounced dead later that night.
- Cherry told responding officers that he was doing laundry when he heard a “thud,” then found Elijah near the bottom steps; Cherry said the child gasped as Cherry carried him upstairs, and Cherry then called 911.
- The coroner determined that Elijah died from blunt-force trauma to the abdomen and that the internal injuries were inconsistent with an accidental short fall down stairs.
- Cherry was indicted on multiple charges, including murder under R.C. 2903.02(B). A supplemental indictment added a felony-murder count using child endangering as the predicate offense and added an additional child-endangering count under R.C. 2919.22(B)(1).
- Before trial, Cherry moved to suppress oral statements he made to police and moved to dismiss the felony-murder counts as unconstitutional; the trial court denied both motions.
- A jury found Cherry guilty of child endangering under R.C. 2919.22(B)(1) and felony murder under R.C. 2903.02(B) predicated on that child-endangering offense.

## Issues

1. Whether R.C. 2903.02(B) is unconstitutional because it does not require the predicate felony to be independent of the conduct that caused the death.
2. Whether R.C. 2903.02(B) is unconstitutional because it permits a murder conviction without proof that the defendant purposely caused the victim’s death.
3. Whether the overlap between felony murder and involuntary manslaughter, coupled with different penalties, violates due process and/or equal protection.
4. Whether the trial court erred in denying Cherry’s motion to suppress his oral statements to police (including Miranda/custody and voluntariness).
5. Whether the evidence was sufficient, and the verdicts were not against the manifest weight of the evidence, to support child endangering under R.C. 2919.22(B)(1) and felony murder under R.C. 2903.02(B).

## Decision

- The court of appeals affirmed the judgment of conviction and sentence.
- The court upheld R.C. 2903.02(B) against Cherry’s constitutional challenges, including the lack of an “independent felony” limitation, the absence of a purpose-to-kill requirement, and the claimed equal-protection/due-process problem created by overlap with involuntary manslaughter.
- The court upheld the denial of Cherry’s motion to suppress his oral statements.
- The court held the evidence legally sufficient and the convictions not against the manifest weight of the evidence.

## Legal Principles

- Under R.C. 2903.02(B), felony murder is proven by showing (1) the defendant committed or attempted to commit a qualifying first- or second-degree felony, and (2) the victim’s death was the proximate result of that felony.
- Ohio’s felony-murder statute does not require an additional “independent felony” element beyond what the statute states; courts will not add a merger-style limitation as a constitutional requirement.
- Felony murder under R.C. 2903.02(B) does not require proof that the defendant acted with a purpose to kill; the culpable mental state comes from the predicate felony, along with proof of proximate causation.
- Overlapping criminal statutes with different penalties are not unconstitutional merely because the same conduct can satisfy both offenses; the legislature may assign different punishments so long as the statutory classification has a rational basis.
- On review of a suppression ruling, an appellate court accepts the trial court’s factual findings if supported by competent, credible evidence and independently reviews the legal conclusions (including whether an interrogation was custodial for Miranda purposes and whether statements were voluntary).
- Sufficiency review asks whether, viewing the evidence in the light most favorable to the state, any rational juror could find all elements proven beyond a reasonable doubt; manifest-weight review considers the entire record and whether the jury clearly lost its way.

## Conclusion

State v. Cherry affirmed Cherry’s convictions for child endangering and felony murder predicated on child endangering after Elijah Kimbrough died from blunt-force abdominal trauma inconsistent with an accidental stair fall, holding that Ohio’s felony-murder statute is constitutional as written, that Cherry’s statements were properly admitted, and that the medical and circumstantial evidence supported the jury’s findings beyond a reasonable doubt.


State v. Cherry, 2002-Ohio-3738 (2002)