State v. Palmer , 2022 Ohio 2955 ( 2022 )

[Cite as State v. Palmer, 2022-Ohio-2955.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110992
v. :
RICHARD PALMER, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 25, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-647468-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Debora Brewer, Assistant Prosecuting
Attorney, for appellee.
Lydia Evelyn Spragin, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Defendant-appellant Richard A. Palmer Jr. (“Palmer”) brings this
appeal challenging his convictions for domestic violence and endangering children.
Palmer argues that his convictions were not supported by sufficient evidence and
are against the manifest weight of the evidence; the trial court erred in not excluding
evidence that was outside of the scope of the indictment; the trial court erred in
concluding, after an in camera review, that records provided by the Cuyahoga
County Division of Children and Family Services (“CCDCFS”) did not contain any
exculpatory evidence; the trial court erred in failing to give a jury instruction on
parental discipline; the trial court erred in finding that domestic violence and
endangering children were not allied offenses of similar import; that Palmer did not
receive effective assistance of counsel; and that the trial court erred in denying
Palmer’s Crim.R. 29 motion. After a thorough review of the record and law, this
court affirms.
I. Facts and Procedural History
The sole minor child victim in this case, O.T.,1 was raised by her mother
and her mother’s live-in boyfriend, Palmer. Because her mother suffers from
significant medical conditions, Palmer was a fatherlike figure to O.T. and extremely
involved in her upbringing. O.T. testified as she grew older, Palmer became
increasingly violent with her. His abuse was also sexual in nature, which made O.T.
uncomfortable. The majority of this case was not premised on any singular event,
but rather, a culmination of events occurring specifically on January 1, 2019, and
further events happening between September 1, 2019, to November 1, 2019.
A Cuyahoga County Grand Jury returned a five-count indictment
charging Palmer with (1) rape, a first-degree felony in violation of R.C.
1 D.O.B. 7/4/2005
2907.02(A)(2) with a further finding of notice of prior conviction pursuant to R.C.
2929.13(F)(6) and a repeat violent offender specification pursuant to R.C.
2941.149(A); (2) sexual battery, a third-degree felony in violation of R.C.
2907.03(A)(5); (3) – (5) gross sexual imposition, a fourth-degree felony in violation
of R.C. 2907.05(A)(1); (6) endangering children, a second-degree felony in violation
of R.C. 2919.22(B)(1) with a further finding of notice of prior conviction pursuant to
R.C. 2929.13(F)(6) and a repeat violent offender specification pursuant to R.C.
2941.149(A); and (7) domestic violence, a first degree misdemeanor in violation of
R.C. 2919.25(A). The case proceeded to a jury trial where the following facts were
adduced.
Palmer first became physically violent with O.T. when she was in the
fifth grade. O.T. specifically recalled an incident from this time where Palmer used
a backscratcher to beat O.T. if she did not correctly answer a multiplication problem.
O.T. testified that as she got older, the abuse became worse because “the little things
like the backscratcher and things like that didn’t effect [sic] me anymore. * * *.”
(Tr. 367.) O.T. further testified that Palmer, on separate occasions, punched her
with a closed fist, beat her with a cord, choked her, and pushed her into walls.
Palmer’s conduct towards O.T. was also sexual in nature. O.T. recalled
an incident from January 1, 2019. On this date, Palmer provided her with alcohol.
She fell asleep on the floor and was awakened by Palmer sucking and touching her
breasts. O.T. also testified to an incident in November 2019 where she showed
Palmer her pre-report card. Palmer responded by hugging her and touching her
vaginal area. O.T.’s testimony also establishes that on a separate occasion, Palmer
rubbed his fingers on her vagina.
In November 2019, O.T. ran away from home to get away from Palmer.
O.T. informed a school counselor about the abuse and was thereafter placed in foster
care. O.T.’s foster mother testified that she observed O.T. engaging in self-harming
activity and having trouble sleeping. Caroline Hasse, O.T.’s counselor from Ohio
Guidestone, testified that O.T. was reluctant to report the abuse and felt guilty
because Palmer was the primary caretaker for her sick mother. She diagnosed O.T.
with depressive disorder and impulse disorder. Another one of O.T.’s therapists,
Jennifer Wagner, diagnosed O.T. with depression and mixed anxiety, specifically
noting that O.T. was having flashbacks and suicidal thoughts.
At the close of the six-day trial, defense counsel moved for a Crim.R. 29
judgment of acquittal on all charges, which the trial court denied. The jury returned
a verdict finding Palmer guilty of Counts 3-5 (gross sexual imposition); Count 6
(endangering children) with a specification of serious physical harm; and Count 7
(domestic violence). The jury returned a finding of not guilty on Count 1 (rape) and
Count 2 (sexual battery).
At the sentencing hearing, the trial court determined that Palmer was a
repeat violent offender.2 The court imposed an 18-month prison sentence for the
three counts of gross sexual imposition, which was to run concurrently with a 7-year
2At the time of sentencing, Palmer held two prior convictions for felonious assault
and aggravated robbery.
prison sentence for the endangering children conviction. The court also imposed a
6-month prison sentence for the domestic violence charge, which was suspended.
Palmer was further sentenced to three years of postrelease control and required to
register as a Tier I sex offender.
The instant appeal ensued. Palmer assigns seven errors for our review:
1. The jury verdict of guilty of endangering children is against the
manifest weight and sufficiency of the evidence thereby violating the
Due Process Clause of the 14th Amendment of the United States
Constitution and Article I, Section 10 of the Constitution of the State
of Ohio.
2. The trial court committed plain, prejudicial error when it failed to
properly exclude evidence which was outside of the dates contained
within the scope of the indictment.
3. In light of the fact that both Mr. Palmer and his attorneys had
already received full copies of the children services records,
extensively reviewed, and marked records beneficial to Mr. Palmer’s
theory of defense, exculpatory evidence, and fodder for cross-
examination, the trial court committed reversible error when it
decided, after in camera review, that the children services records did
not contain any exculpatory information.
4. Mr. Palmer was deprived of his rights to a fair trial and due process
of law by the trial court’s failure to instruct the jury on the issue of
parental discipline in violation of the 14th Amendment to the U.S.
Constitution and Article I, Section 10 of the Constitution of the State
of Ohio. The court committed plain error when it failed to give a jury
instruction on parental discipline.
5. The trial court erred when it failed to acknowledge the charge of
Child Endangerment and Domestic Violence are crimes of similar
import under R.C. § 2941.25 and sentenced on both.
6. Mr. Palmer was denied a fair trial, due process of law and his Sixth
Amendment right to effective assistance of counsel in violation of the
Sixth Amendment and 14th Amendments to the U.S. Constitution and
Article 1, Sections 10 and 16 of the Constitution of the State of Ohio.
7. Since evidence was presented which was outside the scope of the
indictment which could not be received as substantive proof of guilt,
the trial court erroneously overruled Mr. Palmer’s Cr. R. 29 motion.
II. Law and Analysis
A. Sufficiency and Manifest Weight
In his first assignment of error, Palmer argues that there was
insufficient evidence to convict him of endangering children. Palmer also argues
that his conviction of endangering children was against the manifest weight of the
evidence. Palmer appears to set forth the same argument for both claims, arguing
that the state did not prove that he acted recklessly, an element required to find
Palmer guilty of endangering children. Palmer further argues that the state did not
present any evidence demonstrating that his conduct resulted in serious physical
harm to O.T.
To convict Palmer of endangering children, the state was required to
prove beyond a reasonable doubt that he abused the child on or about September 1,
2019, to November 1, 2019. R.C. 2919.22(B)(1). To support a conviction under R.C.
2919.22(B)(1), ‘“the state must prove, beyond a reasonable doubt: (1) that the child
is under eighteen years of age * * *, (2) an affirmative act of abuse, and (3) which
was reckless, that is perpetrated with heedless indifference to the consequences of
the action.’” State v. Hickman, 8th Dist. Cuyahoga No. 99442, 2013-Ohio-4192,
¶ 17, quoting Newburgh Hts. v. Cole, 166 Ohio App.3d 826, 2006-Ohio-2463, 853
N.E.2d 689, ¶ 8 (8th Dist.). This court has previously noted that while R.C. 2919.22
does not define “abuse,” an abused child is defined in R.C. 2151.031(D) as one who
“suffers physical or mental injury that harms or threatens to harm the child’s health
or welfare.” State v. Moore, 8th Dist. Cuyahoga No. 94446, 2011-Ohio-454, ¶ 10.
The state further alleged that the abuse resulted in serious physical harm to O.T.,
making the offense a third-degree felony. R.C. 2919.22(E)(2)(c).
A manifest weight challenge and a sufficiency of the evidence
challenge are two distinct challenges to the evidence presented. State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
“A claim of insufficient evidence raises the question whether the
evidence is legally sufficient to support the verdict as a matter of law.” State v.
Parker, 8th Dist. Cuyahoga No. 110716, 2022-Ohio-1237, ¶ 7, citing State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry in
a sufficiency challenge is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime existed beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When making a
sufficiency determination, an appellate court does not review whether the state’s
evidence is to be believed but whether, if believed, the evidence admitted at trial
supports the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-
3375, ¶ 25, citing Thompkins at 387. Under a sufficiency challenge, witness
credibility is immaterial; the appellate court must defer to credibility determinations
of the trier of fact and only review issues of law. Parker at ¶ 7.
Palmer first argues that the jury could not have found him guilty of
endangering children because the prosecution did not present any evidence upon
which the jury could conclude that he acted recklessly, one of the elements that the
state was required to prove to convict him of endangering children.
The provided jury instructions defined “recklessly” as:
A person acts “recklessly” when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s 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,
the person disregards a substantial and justifiable risk that such
circumstances are likely to exist.
The jury heard multiple witnesses discuss instances of Palmer’s
physical and sexual abuse of O.T. During trial, the jury heard O.T. testify that in
November of 2019, Palmer pushed her against a wall when she tried to run away
from home because she wanted to get away from Palmer. O.T. also testified that
around this time, she showed Palmer her pre-report card and he hugged her,
eventually moving his hands down to her vagina and that the incident made her
uncomfortable. Regine Wells, a social worker from CCDCFS, noted that her
personal investigation resulted in a finding that Palmer was physically and sexually
abusive towards O.T. Sergeant Arnaldo Torres from the Cleveland Police
Department testified that Palmer told him that he hit her with an extension cord and
grabbed her by the neck and choked her to prevent her from leaving the home.
Caroline Hasse, O.T.’s counselor from Ohio Guidestone, noted that O.T. refused to
return home due to the abuse she was suffering by Palmer. The overwhelming
evidence presented at trial indicates that Palmer’s abuse was purposeful, and in fact
culminated in the form of both physical violence and unwanted sexual conduct on
more than one occasion during the scope of the indictment. Given this, we cannot
say that the evidence presented, if believed, does not reflect heedless indifference to
O.T.’s safety, security, and well-being.
Palmer also argues that the prosecution did not present any evidence
to substantiate a further finding of serious physical harm pursuant to R.C.
2919.22(E)(2)(c). The statutory definition of “serious physical harm” includes “any
mental illness or condition of such gravity as would normally require hospitalization
or prolonged psychiatric treatment.” R.C. 2901.01(A)(5)(a). Palmer argues that
“serious physical harm” requires expert testimony but cites no law supporting this
proposition. Indeed, serious physical harm does not require expert medical
testimony; it is simply an element that the state must prove beyond a reasonable
doubt. State v. Laney, 6th Dist. Williams No. WM-18-004, 2019-Ohio-2648, ¶ 27.
Our review of the evidence reveals that evidence presented at trial demonstrates that
O.T. suffers from serious mental health conditions as a result of Palmer’s abuse.
O.T. testified that after placement with a foster family, she began seeing counselors
once a week because she was depressed, not sleeping, and engaging in self-harm
activities. Regine Wells referred O.T. to mental health services after speaking with
O.T. Jennifer Wagner unequivocally noted, and testified at trial, that O.T. should
continue with psychiatric counseling as a result of her mental health diagnosis.
Further, O.T. testified that she tried to overdose on her depression medication after
she left the house. The evidence presented at trial overwhelmingly supports that
O.T. could require prolonged psychiatric treatment as a result of Palmer’s abuse. We
therefore find Palmer’s claim that there was no evidence of serious physical harm
completely unfounded.
Palmer also challenges the manifest weight of the evidence, setting
forth the same arguments used under the sufficiency challenge.
‘“[W]eight of the evidence involves the inclination of the greater
amount of credible evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060,
2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
Weight of the evidence examines ‘“the evidence’s effect of inducing belief.’” Id.,quoting Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, at ¶ 25,
citing Thompkins at 386-387. In reviewing a manifest weight claim, the court must
consider all of the evidence in the record, the reasonable inferences made from it,
and the credibility of the witnesses to determine “‘“whether in resolving conflicts in
the evidence, the factfinder clearly lost its way and created such a manifest
miscarriage of justice[.]”’” Id., quoting Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Finally, the discretionary power
to grant a new trial should be reserved for exceptional cases where “the evidence
weighs heavily against the conviction.” Thompkins at 387.
In the instant matter, Palmer does not distinguish his sufficiency
arguments from his manifest weight arguments and fails to point us to any issues of
witness credibility or unreasonable inferences that could have been drawn. In our
sufficiency analysis, we noted that an abundance of testimony was presented upon
which the jury could have concluded that Palmer endangered O.T., multiple times
and with multiple methods, between September 1, 2019, to November 1, 2019.
Our examination of the record reveals that this is not the exceptional
case where the evidence weighs heavily against conviction. The jury was free to
believe all witnesses and make reasonable inferences from all evidence presented,
and we cannot say that any of the evidence presented weighs heavily against
conviction. Accordingly, Palmer’s first assignment of error is overruled.
B. Scope of the Indictment
In his second assignment of error, Palmer argues that the trial court
committed plain error by failing to exclude testimony elicited at trial that exceeded
the scope of the indictments. In support of his argument, Palmer specifically states
that testimony about the backscratcher, a choking incident, and a TikTok video that
was played for the jury were outside of the scope of the indictment. Palmer argues
that the indictments for endangering children and domestic violence alleged that the
conduct occurred between September 1, 2019, to November 1, 2019, and those are
the dates that the defense utilized in preparing Palmer’s defense.
As a preliminary matter, we note Palmer failed to object to all of the
alleged errors at trial, so all error is waived unless it is plain error.
In the absence of objection, any error is deemed to have been waived
unless it constitutes plain error. To constitute plain error, the error
must be obvious on the record, palpable and fundamental so that it
should have been apparent to the trial court without objection. See
State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (1995).
Moreover, plain error does not exist unless the appellant establishes
that the outcome of the trial clearly would have been different but for
the trial court’s allegedly improper actions. State v. Waddell, 75 Ohio
St.3d 163, 166, 661 N.E.2d 1043 (1996). Notice of plain error is to be
taken with utmost caution, under exceptional circumstances, and only
to prevent a manifest miscarriage of justice. State v. Phillips, 74 Ohio
St.3d 72, 83, 656 N.E.2d 643 (1995).
State v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 43.
Palmer first cites O.T.’s testimony that Palmer repeatedly hit her with
a wooden backscratcher when she was in the fifth grade. Palmer notes that the dates
of the indictment were September 1, 2019, through November 1, 2019, which was
when O.T. was in the ninth grade. Palmer did not object to the testimony regarding
the backscratcher during the trial and elicited more information about the
backscratcher from O.T. on cross-examination, presumably in an attempt to
demonstrate to the jury that the backscratcher testimony was outside of the scope
of the indictment. Given the significant evidence other than the beatings with the
backscratcher already discussed herein, it seems impossible to conclude that the
limited exclusion of the testimony regarding the backscratcher would have changed
the outcome at trial. This argument is without merit.
Palmer also argues that any evidence that Palmer choked O.T. was
outside of the scope of the indictment. A review of the record actually reveals that
the jury heard conflicting testimony regarding the choking incident. O.T. testified
that the choking incident occurred when she was younger, in sixth or seventh grade.
Sergeant Torres, however, testified that Palmer admitted to choking O.T. and
grabbing her by the neck to prevent her from leaving the home, which could have
occurred when O.T. left the home in November 2019. Since the record does not
conclusively establish that Palmer choking O.T. was outside of the scope of the
indictment, this argument is also without merit.
Finally, Palmer cites a TikTok video that was played for the jury that
allegedly showed marks on O.T.’s body. The state noted that O.T. was significantly
younger in this video. After viewing it outside of the presence of the jury, Palmer
requested that the video be introduced into evidence and shown to the jury, even
after a lengthy sidebar discussion in which the court and state recognized that it may
be prejudicial because of the fact that it is outside of the scope of the indictment.
Plainly, Palmer cannot assign an error that he introduced. ‘“Under the settled
principle of invited error, a litigant may not take advantage of an error which he
himself invited or induced.’” State v. Frazier, 8th Dist. Cuyahoga No. 104596, 2017-
Ohio-470, ¶ 12, quoting State v. Murphy, 91 Ohio St.3d 516, 535, 747 N.E.2d 765(2001). We therefore find that because Palmer’s counsel moved to introduce the
TikTok video, any error relating to it is waived.
Given the foregoing, Palmer’s second assignment of error is overruled.
C. Child and Family Services Records
In his third assignment of error, Palmer argues that the trial court
erred in disallowing him from utilizing records from CCDCFS that he marked and
prepared for his defense.
At the outset, Palmer concedes that this assignment of error is likely
moot because he served his sentence for the three counts of gross sexual imposition.
We agree, but even if Palmer did not concede this statement, we still find that the
trial court did not err.
Trial courts are vested with broad discretion to admit or exclude
evidence, and this court will not disturb a trial court’s decision absent an abuse of
discretion. Cleveland v. Alrefaei, 2020-Ohio-5009, 161 N.E.3d 53, ¶ 27 (8th Dist.).
A trial court abuses its discretion only if its decision is unreasonable, arbitrary, or
unconscionable. State ex rel. DiFranco v. S. Euclid, 144 Ohio St.3d 571, 2015-Ohio-
4915, 45 N.E.3d 987, ¶ 13; Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). Palmer, as the appellant, bears the burden of demonstrating
error on appeal. Davis v. Wesolowski, 2020-Ohio-677, 146 N.E.3d 633, ¶ 29 (8th
Dist.), citing Stancik v. Hersch, 8th Dist. Cuyahoga No. 97501, 2012-Ohio-1955.
Palmer received the entirety of the CCDCFS records and states that he
marked applicable sections to aid in his defense. The trial court reviewed these
documents, ultimately concluding that they did not contain any exculpatory
evidence. We are, however, constrained in our review because Palmer fails to point
us to any specific portions of the documents that contain exculpatory evidence. In
failing to highlight specific exculpatory provisions, Palmer fails to demonstrate that
he was prejudiced by the trial court’s determination that he could not utilize the
CCDCFS records for his defense. Accordingly, Palmer’s third assignment of error is
overruled.
D. Parental Discipline
In his fourth assignment of error, Palmer argues that the trial court
committed plain error by failing to sua sponte instruct the jury on reasonable
parental discipline.
Reasonable parental discipline may be raised as an affirmative
defense to both domestic violence and endangering children. Westlake v. Y.O., 8th
Dist. Cuyahoga No. 107226, 2019-Ohio-2432, ¶ 23; State v. Perez, 8th Dist.
Cuyahoga No. 108245, 2020-Ohio-100, ¶ 12. Palmer concedes in his brief that
defense counsel did not raise the affirmative defense of parental discipline.
Appellant’s brief at 18. Further, the record is void of any requests for jury
instructions on reasonable parental discipline, and there are no objections to the
jury instructions as given. Since Palmer’s trial counsel did not request a jury
instruction, all but plain error is waived. State v. Edgerson, 8th Dist. Cuyahoga No.
101283, 2015-Ohio-593, ¶ 15.
We find that there was very limited discussion of parental discipline
during the trial. Palmer’s counsel suggested that Palmer’s actions could have been
parental discipline and briefly stated that Palmer acted as a disciplinarian in his
opening statement. While O.T. seemed to concede that the use of the backscratcher
was a form of discipline, none of Palmer’s other conduct towards O.T. was couched
as parental discipline. Palmer’s defense relied heavily on the credibility of O.T. —
portraying her as a young, inconsistent, and dishonest witness. Upon examination
of the record and the limited notions of parental discipline alluded to, we cannot say
that a jury instruction on reasonable parental discipline would have affected trial
outcome. Because parental discipline was not an overwhelming element of Palmer’s
defense and because parental discipline was only sparingly raised, and trial counsel
did not object to the issuance of the jury instructions, we find that the trial court did
not err in failing to order a jury instruction on reasonable parental discipline.
Accordingly, Palmer’s fourth assignment of error is overruled.
E. Allied Offenses of Similar Import
In his fifth assignment of error, Palmer argues that the trial court
erred in failing to acknowledge that the charges of endangering children and
domestic violence are crimes of similar import under R.C. 2941.25 and proceeded to
sentence on both offenses. Palmer argues that the backscratcher testimony, which
was outside of the scope of the indictment, was the sole basis for Palmer’s domestic
violence and endangering children convictions. We disagree.
Palmer did not object to the imposition of the separate sentences for
endangering children and domestic violence at sentencing. Therefore, he forfeited
all but plain error with respect to the arguments advanced in this appeal. State v.
Brownlee, 8th Dist. Cuyahoga No. 106395, 2018-Ohio-3308, ¶ 12, citing State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. However, the
Ohio Supreme Court has held that the imposition of multiple sentences for allied
offenses of similar import connotes plain error. State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.
Under R.C. 2941.25(A), “[w]here the same conduct by defendant can
be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the
defendant may be convicted of only one.” However,
[w]here the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his [or her] conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of all
of them.
R.C. 2941.25(B).
R.C. 2941.25(B) instructs courts to utilize a three-part inquiry to
determine whether a defendant can be convicted of multiple offenses if those
offenses arose from the same act or transaction:
(1) Were the offenses dissimilar in import or significance? (2) Were
they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and
the import must all be considered.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
The jury found Palmer guilty of endangering children under R.C.
2919.22(B)(1), which necessitated a finding that Palmer abused the child. While
R.C. 2919.22 does not define “abuse,” an abused child is defined in R.C. 2151.031(D)
as one who “suffers physical or mental injury that harms or threatens to harm the
child’s health or welfare.” Moore, 8th Dist. Cuyahoga No. 94446, 2011-Ohio-454, at
¶ 10. Palmer argues that because endangering children is not a sexually oriented
offense, the only evidence upon which this conviction was based could be the
backscratcher testimony. Palmer further alleges that one of the instances of
supposed physical abuse was actually Palmer and O.T. engaging in mutual combat.
First, we note that the evidence presented at trial indicates that numerous acts of
physical abuse occurred on separate occasions. Even excluding the backscratcher
incident and the testimony regarding mutual combat, the evidence demonstrated
multiple instances of physical abuse, as previously discussed.
Further, Palmer is correct that pursuant to R.C. 2950.01, a violation of
R.C. 2919.22(B)(1) is not considered a sexually oriented offense under which a
conviction could require an offender to register as a sex offender and follow other
statutory requirements. However, this does not mean that the abuse that forms the
basis for the conviction cannot be sexual in nature because sexual conduct could
certainly cause a child to suffer physical or mental injury that threatens the child’s
health or welfare. This court has previously upheld endangering children where
sexual conduct formed the basis of the conviction. See, e.g., State v. A.M., 8th Dist.
Cuyahoga No. 110977, 2022-Ohio-2044; State v. D.S., 8th Dist. Cuyahoga No.
109346, 2021-Ohio-1725; State v. Butts, 8th Dist. Cuyahoga No. 108381, 2020-
Ohio-1498; State v. Stephens, 8th Dist. Cuyahoga No. 104112, 2016-Ohio-7492;
State v. Jay, 8th Dist. Cuyahoga No. 91827, 2009-Ohio-4364, ¶ 17, remanded on
other grounds, 130 Ohio St.3d 239, 2011-Ohio-5161, 957 N.E.2d 276; State v.
Hlavsa, 8th Dist. Cuyahoga No. 76220, 2000 Ohio App. LEXIS 2631 (June 15,
2000). We therefore find that the incident where Palmer touched O.T.’s vagina, as
well as the numerous other acts of physical violence evinced at trial, could have been
the basis for Palmer’s endangering children conviction.
The jury also found Palmer guilty of domestic violence under R.C.
2919.25(A), which necessitated a finding that Palmer knowingly caused or
attempted to cause physical harm to a household member. Palmer argues that the
backscratcher testimony alone was used to convict Palmer of both domestic violence
and endangering children. We find this argument thoroughly without merit. As
previously stated, the state presented ample evidence demonstrating that Palmer
caused physical harm to O.T. well beyond the backscratcher and single incident of
mutual combat. Additional acts include pushing O.T. into walls, punching her,
choking her, and beating her with extension cords.
Both domestic violence and endangering children are supported by
separate and distinct conduct pursuant to R.C. 2941.25(B). As such, we cannot say
that the trial court erred in imposing sentences for both endangering children and
domestic violence.
Palmer had “the burden to demonstrate a reasonable probability that
the convictions are for allied offenses of similar import committed with the same
conduct and without a separate animus.” Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, at ¶ 3. Absent this showing, Palmer cannot demonstrate that
the trial court committed plain error by not inquiring whether the convictions
merge. Id. Plainly, Palmer failed to meet this burden and as such, his fifth
assignment of error is overruled.
F. Ineffective Assistance of Counsel
In his sixth assignment of error, Palmer argues that he was denied his
right to effective assistance of counsel.
Palmer, however, does not set forth a separate argument or make any
arguments regarding the effectiveness of his trial counsel pursuant to App.R. 16(A).3
Under App.R. 12(A)(2), this court may disregard any assignment of error if the
appellant fails to make a separate argument. Cleveland v. Taylor, 8th Dist.
Cuyahoga No. 109371, 2021-Ohio-584, ¶ 87, citing State v. Wells, 8th Dist.
Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 55. Furthermore, the burden is exclusively
on Palmer to establish that counsel’s performance fell below an objective standard
of reasonable representation and prejudiced the defense. State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. We, therefore, find
that Palmer has not complied with App.R. 16 and 12 and furthermore, has not met
his burden in failing to present any arguments. Palmer’s sixth assignment of error
is overruled.
G. Crim.R. 29
In Palmer’s final assignment of error, he argues that the trial court
erroneously overruled his Crim.R. 29 motion. In support of this argument, Palmer
notes that because evidence was presented that was outside of the scope of the
3In his brief, Palmer appears to concede that trial counsel was effective. He states,
“Now, Mr. Palmer admits that his counsel did not raise the affirmative defense below;
however, we believe that was not due to his ineffectiveness as counsel but to the State’s
proffering evidence that was outside the scope of the indictment and thus, caught the
defense by surprise.” Appellant’s brief at 18.
indictment, the trial court erred in denying the motion. Palmer confines his
assignment of error to the offense of endangering children and restates his exact
arguments from his second assignment of error.
A Crim.R. 29(A) motion for acquittal tests the sufficiency of the
evidence. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578,
¶ 13. Accordingly, we review a trial court’s denial of a defendant’s
motion for acquittal using the same standard we apply when reviewing
a sufficiency-of-the-evidence challenge. Id.State v. Williams, 8th Dist. Cuyahoga No. 105590, 2018-Ohio-845, ¶ 26.
Palmer’s entire basis for this assignment of error is a restatement of
his arguments from his second assignment of error. Because we overruled all of
Palmer’s claims in his second assignment of error, we do not find any reason to
sustain them here. Further, the sufficiency of the evidence presented for the claim
of endangering children was evaluated in Palmer’s first assignment of error, and we
found that sufficient evidence existed to support the conviction. Accordingly,
Palmer’s seventh assignment of error is overruled.
III. Conclusion
After thoroughly reviewing the record and law, we affirm the trial
court’s judgment. Palmer’s conviction for endangering children was based on
sufficient evidence and was not against the manifest weight of the evidence. Palmer
failed to demonstrate plain error regarding the evidence that he claimed was outside
of the scope of the indictment. Palmer conceded that the CCDCFS records were
likely moot because he has served his sentence for gross sexual imposition, but
regardless, Palmer failed to point out any specific portions of the records that were
exculpatory. The trial court did not err in presenting a jury instruction on parental
discipline when the defense never raised such an instruction or relied on parental
discipline as an affirmative defense. Domestic violence and endangering children
were not crimes of similar import because separate and distinct conduct could
support each conviction. Palmer failed to meet his burden and present any
arguments for ineffective assistance of counsel. Finally, the trial court did not
erroneously overrule Palmer’s Crim.R. 29 motion because the conviction for
endangering children was supported by sufficient evidence.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________________
FRANK DANIEL CELEBREZZE, III, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY