Monday, December 22, 2014

Mixup? Neglect? Judge finds guilt in wandering child case


“I sat down in a rocker to take a rest,” Ottawa resident Justin Vogeler said of the home he was remodeling into the wee hours of July 23. “I woke up [the next morning] when my dad called. He said the police had Scotty.”

“I sat down in a rocker to take a rest,” Ottawa resident Justin Vogeler said of the home he was remodeling into the wee hours of July 23. “I woke up [the next morning] when my dad called. He said the police had Scotty.”

The 28-year-old father whose 2-year-old son was found wandering in the street in July was found guilty Monday of one misdemeanor count of endangering a child.

District Magistrate Judge Kevin Kimball set Vogeler’s sentencing for 10:30 a.m. April 2 in Franklin County District Court, 301 S. Main St., Ottawa.

An Ottawa resident found Vogeler’s toddler about 10:30 a.m. July 24, 2013, at the intersection of East Fifth and South Mulberry streets, Ottawa police said previously.

The story of the events leading to the child wandering a couple of blocks from Vogeler’s home at 516 S. Sycamore St. took a new turn Monday during the bench trial when Vogeler testified he had left the children in the care of his 20-year-old cousin, Zach Vogeler, the night before the incident. Zach Vogeler had moved into Justin Vogeler’s home about a month before the July incident, both Vogelers testified Monday.

Justin Vogeler admitted on the stand Monday he had lied to Ottawa police investigators in July when he told them he had left the house about 7 a.m. to go work on cars the day his son was found in the street. Vogeler told the court that when the incident happened last summer he was earning a living by repairing cars and doing various maintenance work. 

Vogeler said he was renovating a home he owned near Sixth and Walnut streets July 23 — about six or seven blocks from his house on Sycamore — when his cousin agreed to watch Vogeler’s two sons, the toddler and a 7-month-old infant.

“I was working on the house 10 to 20 hours a week,” Vogeler said, in addition to his other work. “I was renovating it, and it needed a lot of work.”

Vogeler, who was separated from the mother of the children at that time and was caring for both boys, told the court his father had purchased the home at Sixth and Walnut streets in the 1970s and that it was paid for. 

“I was trying to renovate it and move there so I wouldn’t have to make rent payments,” Vogeler said. 

Vogeler testified he was financially strapped and struggling to keep up with bills.

The boys had been with Vogeler while he was working on the house at Sixth and Walnut, he testified, and he asked Zach Vogeler to take the boys back to their home on Sycamore Street and watch them while he continued to work on the house.

Zach Vogeler told defense attorney Bryan Hastert that his cousin had asked him to watch the children that evening. 

James Ward, assistant Franklin County attorney and lead prosecutor of the case, asked Justin Vogeler if he had provided instructions for his cousin about how to care for the children, especially with regard to feeding a bottle to the infant. Vogeler said he had not provided specific instructions for the children’s care, but that Zach had watched the children before and he was confident his cousin knew how to care for them.

Ward asked Justin Vogeler if Zach Vogeler had ever watched the children overnight before.

“No,” Vogeler said. “But I hadn’t intended to be gone overnight.”

That’s when Justin Vogeler recounted falling asleep in the rocker at the home he was renovating. Vogeler told the court he knew his cousin had to go to work at 5 a.m. at Ottawa Sanitation Service, 211 W. Wilson St., Ottawa.

“I had planned to be home long before then,” Vogeler said.

Upon investigating the incident on the morning of July 24, police found the sleeping infant and Vogeler’s other roommate, Rod Michael, in the Sycamore Street home.

During the first half of the bench trial, Feb. 7, Matthew Rogers, who was assigned to the Ottawa police detective division at the time of the incident, testified that he had knocked on the back door, identifying himself as the police, he said, when Vogeler’s roommate, Michael, came to the door.

“I was trying to figure out if [Michael] was supposed to be responsible for the child, and he told me he came home like any other day, nobody spoke to him and he went to bed,” Rogers said. “At the time I had woke him up, he didn’t have a clue what was going on, just that I’d woken him up and I was asking him questions.”

Michael said Vogeler wasn’t home, but that he might be across town, Rogers said, and he asked Michael to drive with him to where Vogeler might have been. Before leaving, Rogers said, he heard a baby crying inside the house. After asking, Michael said there was an infant inside, but didn’t know who was responsible for caring for the young child.

Ward also noted Monday that when Justin Vogeler was interviewed by detectives, Vogeler made no mention that Zach Vogeler was living at the residence, nor that he had been asked to watch the children the night before the incident.

Regardless, defense attorney Hastert said, it had been clearly established that Zach Vogeler was living in the home. He also pointed out that Zach Vogeler had gone to file a report with the Ottawa Police Department the day after the incident.

“Did Justin Vogeler ask you to file the report?” Hastert asked Zach Vogeler.

“No,” Zach Vogeler said.

Zach Vogeler testified Monday that when he left to go to work that morning Michael was just arriving at the residence. Vogeler said he had said “Hi” to Michael but wasn’t sure if he had heard him. Vogeler said he didn’t recall asking Michael to watch the children.  

Justin and Zach Vogeler were the only two witnesses for the defense Monday. During the first half of the trial Feb. 7, the prosecution called seven witnesses to the stand. One of them was a neighbor who had found the 2-year-old boy crying in the alley just a few weeks before the July 24 incident.

Justin Vogeler testified Monday that his two-year-old son liked to be outside and usually wanted him to take him outside, but that the boy wasn’t afraid to go outside without him. He told Hastert the house was equipped with child-proof locks. But the locks must not have been set the morning of the incident, Vogeler said.

In his closing remarks, Hastert said Michael and Zach Vogeler were grown men who should have been able to care for the children that morning until Justin Vogeler returned. He said it was reasonable for his client to assume the children were in good hands.

Regardless of which story is to be believed, Ward said in his closing remarks — that Justin Vogeler had left at 7 a.m. the morning of the incident or had entrusted the children into the care of his cousin, Zach Vogeler, the night before — the fact remains the children had been left without adult supervision and Justin Vogeler had endangered the child’s life by leaving him unattended to wander away from the home down a busy street where he could have been killed or received severe bodily injury if he had been struck by a passing vehicle.

In his ruling, Kimball determined that the prosecution had met its burden of proof and that Justin Vogeler was guilty of one misdemeanor count of endangering a child. The judge ordered a pre-sentence investigation into Vogeler’s background, which could factor into the range of sentence Vogeler is eligible for at the April 2 sentencing hearing.

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