State v. Phillips , 2014 Ohio 5322 ( 2014 )

[Cite as State v. Phillips, 2014-Ohio-5322.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 14-CA-003
JENNIFER A. PHILLIPS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County
Municipal Court, Case No. 13CRB327
JUDGMENT: Reversed, Vacated and Remanded
DATE OF JUDGMENT ENTRY: November 26, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTINE WILLIAMS JEFFREY KELLOGG
Assistant Prosecuting Attorney 5 South Washington Street
164 East Jackson Street Millersburg, OH 44654
Millersburg, OH 44654
[Cite as State v. Phillips, 2014-Ohio-5322.]
Gwin, P.J.
{¶1} Appellant Jennifer Phillips [“Phillips”] appeals her conviction and sentence
for one count of child endangering in violation of R.C. 2919.22(A), a first-degree
misdemeanor, following a bench trial in the Holmes County Municipal Court.
Facts and Procedural History
{¶2} On August 1, 2013, Phillips along with her five children went to the
Millersburg Wal-Mart so she could shop for groceries for her family. Upon entering the
store, Phillips' children were being unruly. Her oldest son Riley, age 9, was encouraging
the children to misbehave and ignore their mother's direction. Riley was also upset with
his mother because she would not buy him an iTunes card for his iPod.
{¶3} On August 1, 2013, Millersburg Police Captain Herman made contact with
Wal-Mart security officer Bob Noll. Mr. Noll advised Captain Herman that several
Walmart employees had witnessed a woman identified as Phillips grab her oldest son,
Riley J. Phillips around the neck and upper torso area and walk him to the family’s van.
Mr. Noll further advised Captain Herman that there was a Wal-Mart video of the
incident. Captain Herman watched the video, which showed Phillips put her arms
around her child's neck and upper torso area and walk him a short distance to the
family’s van.
{¶4} Captain Herman then made contact with Phillips inside the store. When
asked what had occurred in the parking lot, Phillips told the officer that she was having
trouble with her kids and her nine-year-old called her a "cunt, as well as other vulgar
and abhorrent names. Phillips related that she then grabbed her son and took him to
Holmes County, Case No. 14-CA-003 3
her vehicle. Phillips' version of her hold on her child was that she put both of her arms
under and not around his neck.
{¶5} Captain Herman took statements from four Wal-Mart employees who
witnessed the event. Ultimately, Phillips was charged with the offense of Child
Endangering, a misdemeanor of the first degree in violation of R.C. 2919.22(A). After a
bench trial, the trial court found Phillips guilty and sentenced Phillips to serve 180 days
in the Holmes County Jail. However, the jail time was suspended. Phillips was placed
on probation for two years.
Assignment of Error
{¶6} Phillips raises one assignment of error,
{¶7} “I. THE TRIAL COURT ERRED BY CONVICTING THE
DEFENDANT/APPELLANT WHEN THE WEIGHT AND SUFFICIENCY OF THE
EVIDENCE SUPPORTED ACQUITTAL.”
Analysis
{¶8} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St. 3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App. 3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶68.
Holmes County, Case No. 14-CA-003 4
{¶9} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶10} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S. Ct. 2211, 72 L. Ed. 2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
Holmes County, Case No. 14-CA-003 5
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶11} In the case at bar, Phillips was convicted of a misdemeanor Endangering
Children. Ohio Revised Code 2919.22(A),
No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen
years of age or a mentally or physically handicapped child under twenty-
one years of age, shall create a substantial risk to the health or safety of
the child, by violating a duty of care, protection or support.
{¶12} Although not stated in R.C. 2919.22, recklessness is the culpable mental
state for the crime of child endangering. State v. O'Brien, 30 Ohio St. 3d 122, 508 N.E.2d
144(1987); State v. Conley, 5th Dist. Perry No. 03-CA-18, 2005-Ohio-3257, ¶20. R.C.
2901.22(C) defines “recklessness,”
Holmes County, Case No. 14-CA-003 6
(C) A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is
likely to cause a certain result or is likely to be of a certain nature. A
person is reckless with respect to circumstances when, with heedless
indifference to the consequences, he perversely disregards a known risk
that such circumstances are likely to exist.
{¶13} To satisfy the second element of a violation of R.C. 2919.22(A),
recklessness must create a "substantial risk" to the health and safety of the child.
“Substantial risk” means a strong possibility, as contrasted with a remote or significant
possibility, that a certain result may occur or that certain circumstances may exist.
2901.01(A)(8).
{¶14} In State v. Stewart, 5th Dist. Stark No. 2007–CA–00068, 2007-Ohio-6177,
this court noted:
R.C. 2919.22(A) is aimed at preventing acts of omission or neglect
when the breach results in a substantial risk to the health or safety of a
child. See, e.g., State v. Sammons (1979), 58 Ohio St. 2d 460 [12 O.O.3d
384, 391 N.E.2d 713], appeal dismissed (1980), 444 U.S. 1008 [100 S. Ct.
655, 62 L. Ed. 2d 637]; State v. Kamel (1984), 12 Ohio St. 3d 306, 308 [12
OBR 378, 466 N.E.2d 860]; Committee comment to R.C. 2919.22.
Id., ¶59.
{¶15} Specifically, Phillips argues in the case at bar that the evidence did not
support a conviction of R.C. 2919.22(A) because there was no evidence that she
recklessly violated a duty of care, protection or support. We agree.
Holmes County, Case No. 14-CA-003 7
{¶16} “[P]arents have the right of restraint over their children and the duty of
correcting and punishing them for misbehavior.” In re Schuerman, 74 Ohio App. 3d 528,
531, 599 N.E.2d 728(3rd Dist. 1991). Parents have the right to use reasonable physical
discipline, or corporal punishment, to prevent and punish a child's misconduct. State v.
Hauenstein, 121 Ohio App. 3d 511, 516, 700 N.E.2d 378(3rd Dist. 1997), citing State v.
Suchomski, 58 Ohio St. 3d 74, 75, 567 N.E.2d 1304(1991). The right of parents to
administer reasonable corporal punishment is deeply rooted in the history and traditions
of this nation. See State v. Hoover, 5 Ohio App. 3d 207, 211, 450 N.E.2d 710(6th Dist.
1982), quoting Quinn v. Nolan, 7 Dec.Rep. 585, 586, 1879 WL 6389(1879) (“From the
time of Solomon to the present, parents have had the right, in a proper manner and to a
proper degree, of inflicting corporal punishment upon their children * * *”).
{¶17} We further note that Ohio law recognizes a parent’s right to administer
corporal punishment. Section 2919.22(B) of the Ohio Revised Code provides in relevant
part,
(B) No person shall do any of the following to a child under
eighteen years of age or a mentally or physically handicapped child under
twenty-one years of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child;
(3) Administer corporal punishment or other physical disciplinary
measure, or physically restrain the child in a cruel manner or for a
prolonged period, which punishment, discipline, or restraint is excessive
Holmes County, Case No. 14-CA-003 8
under the circumstances and creates a substantial risk of serious physical
harm to the child;
(4) Repeatedly administer unwarranted disciplinary measures to the
child, when there is a substantial risk that such conduct, if continued, will
seriously impair or retard the child's mental health or development
***
{¶18} In State v. Suchomski, the Supreme Court of Ohio found that prosecution
under R.C. 2919.25(A) does not interfere with a parent’s right to administer corporal
punishment. The Supreme Court stated:
Nothing in R.C. 2919.25(A) prevents a parent from properly
disciplining his or her child. The only prohibition is that a parent may not
cause ‘physical harm’ as that term is defined in R.C. 2901.01(C). ‘Physical
harm’ is defined as ‘any injury [.]’ ‘Injury’ is defined in Black’s Law
Dictionary (6th Ed. 1990) 785, as ‘ * * * [t]he invasion of any legally
protected interest of another.’ (Emphasis added.) A child does not have
any legally protected interest which is invaded by proper and reasonable
parental discipline.
58 Ohio St. 3d at 75, 567 N.E.2d at 1305. Accordingly, parental discipline is an
affirmative defense to a charge of child endangering. See, State v. Snell, 5th Dist. Stark
Nos. 2002CA00181, 2002CA00190, 2003-Ohio-975, ¶30.
{¶19} Whether parental discipline is “extreme or excessive” is determined in light
of the totality of the circumstances. State v. Hauenstein, 121 Ohio App. 3d at 516, citing
State v. Hart, 110 Ohio App. 3d 250, 256(3rd Dist. 1996). “In analyzing the totality of the
Holmes County, Case No. 14-CA-003 9
circumstances, a court should consider the following factors: (1) the child’s age; (2) the
child’s behavior leading up to the discipline; (3) the child’s response to prior non-
corporal punishment; (4) the location and severity of the punishment; and (5) the
parent’s state of mind while administering the punishment.” State v. Luke, 3rd Dist.
Union No. 14-10-26, 2011-Ohio-4330, ¶ 22, citing In re J.L., 176 Ohio App. 3d 186, 199,
2008–Ohio–1488(3rd Dist.), ¶ 35, citing Hart, supra; State v. Jones, 140 Ohio App. 3d
422, 430, 747 N.E.2d 891(8th Dist. 2000); State v. Durbin, 5th Dist. Holmes No. 13 CA
2, 2013-Ohio-5147, ¶26. This inquiry is necessary to protect and balance the competing
interests involved in these cases—the parents' fundamental, inalienable right to raise
and control their children and the state's legitimate interest in the protection and safety
of children and in the reporting of child abuse. In re Horton, 10th Dist. No. 03AP–1181,
2004-Ohio-6249, ¶¶13–14, citing State v. Hause, 2nd Dist. Montgomery No. 17614,
1999 WL 959184(Aug. 6, 1999), at *6–7; Santosky v. Kramer, 455 U.S. 745, 753, 102
S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
{¶20} In the present case, the trial judge failed to consider the reasonableness
or propriety of the corporal punishment employed by Phillips, finding only that,
They [the children] were running around. I mean there were stacks
of merchandise at Wal-Mart. They could run into that. They could run into
other areas and do harm to other people at Wal-Mart.
{¶21} The evidence, however, demonstrates that Phillips removed the children
from the store for misbehaving. Upon their return to the store, the children were under
control and were behaved. In the case at bar, the trial court simply found that the
elements of R.C. 2919.25 had been proven by the state.
Holmes County, Case No. 14-CA-003 10
{¶22} However, the evidence presented in the record shows the child suffered
no injuries. The record shows that the responding officer observed no bruising, red
marks or any indicia of injury on the child. Further, the child was allowed to return to
shopping with his mother and siblings.
{¶23} The evidence presented further establishes that the actions of Phillips
were the imposition of corporal punishment by a mother who judged her son’s conduct
and language warranted a physical disciplinary response. Black’s Law Dictionary (6th
Ed.1990) 339, has defined “corporal punishment” as “physical punishment * * * any kind
of punishment of or inflicted on the body.” This definition would include extremities of
the body such as the head, arms and legs. State v. Rogers, 44 Ohio App. 2d 289, 290,
337 N.E.2d 791, 793(1st Dist. 1975).
{¶24} Accordingly, we find the state failed to prove by sufficient evidence that
the type of discipline employed by Phillips resulted in physical harm or could result in a
substantial risk of physical harm to the child.
{¶25} We further find the state further failed to prove that Phillips actions were
reckless,
Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than
negligent conduct. Thompson, 53 Ohio St. 3d at 104–105, 559 N.E.2d 705,
adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965);
see also Black's Law Dictionary 1298–1299 (8th Ed.2004) (explaining that
reckless conduct is characterized by a substantial and unjustifiable risk of
Holmes County, Case No. 14-CA-003 11
harm to others and a conscious disregard of or indifference to the risk, but
the actor does not desire harm).
Anderson v. Massillon, 134 Ohio St. 3d 380, 983 N.E.2d 266, 2012–Ohio–5711, ¶34.
Conclusion
{¶26} We find that Phillips’ actions did not cause the child physical harm or
threaten substantial risk of same as defined by R.C. 2901.01(A)(3) and
R.C.2901.01(A)(8). We further find the state failed to prove that Phillips actions were
reckless. The impact of the child’s removal from the premises was disciplinary and
transitory.
{¶27} Given the circumstances presented in this case, we agree that Phillips’
conduct was not drastic or severe. Specifically, we find that the discipline meted out by
Phillips fell within the established parameters of “proper and reasonable parental
discipline.” Accordingly, Phillips’ sole assignment of error is sustained.
Holmes County, Case No. 14-CA-003 12
{¶28} The February 25, 2014 judgment of the Holmes County Municipal Court is
reversed and vacated, and this matter is remanded to that Court for further proceedings
consistent with this opinion.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur