State v. Thompson , 101 N.E.3d 632 ( 2017 )

[Cite as State v. Thompson, 2017-Ohio-9044.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 16 CO 0031)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
JASON M. THOMPSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Columbiana County,
Ohio.
Case No. 2015 CR 414
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty Timothy McNicol
Columbiana County Prosecutor's
Office
105 S. Market St.
Lisbon, Ohio 44432
For Defendant-Appellant: Atty Ronald D. Yarwood
Edward A. Czopur
DeGenova & Yarwood, Ltd.
42 North Phelps St.
Youngstown, Ohio 44503
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 13, 2017
[Cite as State v. Thompson, 2017-Ohio-9044.]
ROBB, P.J.
{¶1} Defendant-Appellant Jason Michael Thompson appeals from his child
endangering convictions entered in the Columbiana County Common Pleas Court
after a bench trial. As to the abuse counts, he contends the indictment was required
to specify the affirmative act of abuse he allegedly committed and the evidence was
insufficient to prove an affirmative act of abuse. As to the alternative counts involving
violation of a duty, he raises sufficiency and weight of the evidence as to whether he
had an “in loco parentis” relationship with the children. For the following reasons, the
trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} Appellant met Jaime Emery (“the mother”) online in January 2015. At
the time, the mother lived with her daughter and three sons at a relative’s residence.
She and her four children moved to the first floor of a rental unit in Wellsville. At first,
Appellant lived in Pennsylvania and would visit the mother for days at a time.
Eventually, he began living with the mother and visiting his teenage son in
Pennsylvania. Appellant considered the mother to be his fiancée, and the children
called Appellant “dad.” (Tr. 30, 74, 101).
{¶3} Appellant obtained latches and key locks and convinced the
maintenance person, who lived in the upstairs unit, to help him install the latches on
the refrigerator and freezer. (Tr. 280-281). He told the maintenance man the
children were getting into the refrigerator in the middle of the night and leaving the
door open. (Tr. 281). The maintenance person testified this occurred at a time when
there was still snow on the ground. (Tr. 280). He considered Appellant his neighbor
and said Appellant lived at the rental unit with the mother and her children. (Tr. 286).
{¶4} At the beginning of 2015, a middle school teacher and the school
superintendent noticed the ten-year-old child (“Child A”) was often hungry. (Tr. 27,
40, 135). The school provided a free daily breakfast, lunch, and snack. Child A
would eat his classmates’ leftover breakfast items. (Tr. 27). Appellant attended a
school meeting with the mother in March 2015, where they were informed of the
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school’s concern about Child A’s hunger. (Tr. 28-30). Appellant responded that
Child A was a growing boy, and the mother did not comment. (Tr. 29-30, 56).
{¶5} At the end of the school year, Child A’s teacher did not notice any issue
with his appearance. An elementary school teacher noticed the eight-year-old child
(“Child B”) had “thinned out” but believed this was normal for a second-grader and
was not concerned with his appearance as the school year ended. (Tr. 65-66).
Around this time, the female child (who is not involved in the allegations at issue) was
placed in foster care for an unrelated matter.
{¶6} The school held a back-to-school function on Wednesday, August 26,
2015, where free supplies were distributed. Appellant attended with the mother and
her three sons. Child A had turned eleven over the summer. Child A and Child B
were to start school on Monday, and the seven-year-old child (Child C”) was to begin
kindergarten on Tuesday. Child A and Child B were assigned to the same teachers
as they had the prior year as they each had an individualized education plan (“IEP”)
calling for special education in the disability classroom.
{¶7} Child A’s teacher approached the family at the prompting of her
teacher’s aide. She said Child A did not communicate with her in his normal manner
but mumbled and stared ahead. (Tr. 35). The teacher was shocked by the
appearance of the three boys, testifying: “My first thought was remembering
documentaries I had saw of people who had survived concentration camps and just
the appearance of them physically.” (Tr. 34-35). She said their bones were very
prominent and they had dark circles under their eyes. She described the two
younger children as “skeletal-looking” as it appeared their skin was “clinging to their
bones basically.” (Tr. 35).
{¶8} When Child B’s teacher approached the family, she focused on Child B
as he was her student. She too referred to a “concentration camp” when describing
the child’s appearance. She said Child B’s cheekbones were “standing out” and you
could see his bones through his skin. His face looked long because it was “all
sunken in.” (Tr. 69). The tops of his arms were thin, and she could tell he suffered
“extreme weight loss.” (Tr. 69-70).
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{¶9} A teacher’s aide hugged Child B and testified his arms felt like “two little
chicken bones.” He appeared weak and did not act like himself. (Tr. 112). The
teacher’s aide asked if he had been sick as she believed he looked like he had
received chemotherapy; she was crying as she left the family. (Tr. 93, 112).
{¶10} The two teachers and their two aides approached the elementary
school principal. The decision was made to send the children to the school nurse
when school started on Monday and to contact the police immediately as they were
worried about the difference those five days could make.
{¶11} A police officer went to the house and conducted a welfare check. He
noticed latches but no locks on the doors of the refrigerator and freezer which he
described as fully stocked. (Tr. 194-195). The mother told the officer the two older
children’s Adderall prescription for attention-deficit/hyperactivity disorder (“ADHD”)
caused their appearance. (Tr. 194). The police contacted Columbiana County
Children Services. The next day, the caseworker assigned to the daughter’s case
went to the residence, but no one was home. She texted the mother and instructed
her not to lock the refrigerator. (Tr. 147).
{¶12} On the first day of school, August 31, 2015, Child B looked to be better
hydrated as his cheeks did not appear so sunken. (Tr. 96). He was hungry that day
and ate two breakfasts, lunch, and multiple snacks. (Tr. 120). The teacher’s aide
brought Child B to the nurse’s office when the police lieutenant assigned to juvenile
cases arrived. Child B said he had been eating only once a day at dinner. (Tr. 97,
208). He said he liked milk but was not allowed to drink it as the milk belonged to his
parents. (Tr. 97).
{¶13} The lieutenant took photographs of Child B with his shirt pulled up and
then went to the middle school to take photographs of Child A. (State’s Exhibit 1-5).
Child A’s teacher noticed he was quiet and did not interact as usual. He still had dark
circles under his eyes. (Tr. 38). The school superintendent testified Child A looked
gaunt and the area below his cheeks appeared “sucked” in. (Tr. 130). Child A
reported he received only one meal a day and sometimes, if he misbehaved, he
received nothing to eat. (Tr. 209).
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{¶14} Children Services obtained an emergency court order, and the children
were removed from the house after school. Before being transported to the local
hospital, the children were provided with fast food as they were hungry. (Tr. 150).
They also ate a plethora of food at the hospital, so much that Child B vomited upon
arrival at the foster home. (Tr. 150-151).
{¶15} The next day, September 1, 2015, the children were transported to the
Children’s Advocacy Center (“CAC”) in Boardman for evaluation by a pediatric
physician who specialized in child abuse. The children were interviewed for the
physician by a licensed social worker as is standard procedure at the CAC. (Tr. 296).
{¶16} During the interview, Child A reported that after Appellant came into
their lives, their food situation changed from three meals a day to “one meal a day
and two meals sometimes.” A meal would consist of a bun with one piece of
lunchmeat or a bowl of spaghetti. If he asked for food during the day, he was told to
wait for dinner; if he asked for more food at dinner, Appellant and his mother told him
he had to wait for the next day. (Tr. 298). Before Appellant came into their lives, the
children could ask for and receive additional food. (Tr. 298, 303). Child A reported
there was additional food in the house but he did not get to eat it because Appellant
says he eats “like a pig” and “says I got to starve.” (Tr. 298). The children’s meals
were served on the floor in the living room. (Tr. 302). Child A said his mother and
Appellant would eat wings and French fries but not share with the children. (Tr. 302-
303). Child A disclosed he was locked in his room at night and there was a latch and
key lock on the refrigerator. He said the children frequently got in trouble for getting
into the food. (Tr. 301).
{¶17} At trial, Child A testified that when Appellant lived with them, he would
eat one meal a day at supper and sometimes he would get lunch as well. (Tr. 240,
251). He said Appellant and his mother prepared the food together. (Tr. 254). A
typical meal was “sauce and noodles” or a sandwich but never at the same time. (Tr.
240, 254). He testified Appellant put a lock on the children’s bedroom door so they
could not get to the refrigerator. (Tr. 241). He confirmed Appellant put locks on the
refrigerator so the children could not get into it at night or during the day. (Tr. 240-
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241, 247-248). Child A told a story about Child C fitting through a vent to escape
their bedroom into the adults’ bedroom, scavenging for food from the kitchen
(including from the garbage can), and then bringing some bread back to the room
through the vent. (Tr. 242, 250).
{¶18} The physician from CAC testified the three children suffered from food
deprivation. (Tr. 307, 311, 316). He described the following weight loss: Child A
weighed 80 pounds on January 1, 2015 and less than 67 pounds on September 1,
2015; Child B weighed 53 pounds on April 2, 2015 and less than 45 pounds on
September 1, 2015; and Child C lost 3.3 pounds during the same period. (We note
the ending weights were taken a day after the children had been amply fed by the
school, an agency worker, the hospital, and the foster parents.)
{¶19} The physician identified photographs taken at the CAC which showed
some of the symptoms of food deprivation he identified. As for Child A, he had very
prominent scapula, his spine was visible while standing straight up, and his buttocks
were not as full as they would be in a child who is a healthy weight. (Tr. 305). Child
C had prominent scapula, visible ribs, and hollowed buttocks, but he seemed to have
suffered a lesser amount of food deprivation. (Tr. 309, 311).
{¶20} Child B was the most severe of the three children. (Tr. 314). The
physician stated the child looked acutely ill, with a sallow and narrow face. (Tr. 315).
Child B had prominent scapula, ribs showing through his skin, and vertebral
processes so visible that they could be individually counted, which the doctor could
not recall seeing in a healthy child. (Tr. 315, 317, 323). The hollowness of this
child’s buttocks was extremely noticeable in the photograph; the physician explained
this was a very abnormal sign and a strong indicator of food deprivation. (Tr. 323).
{¶21} The physician instructed the foster parents to offer an array of healthy
foods and allow the children to eat what they wanted from the array. (Tr. 307, 312).
In the next two weeks, the children gained weight in the following approximate
amounts: Child A gained 3.09 pounds; Child B gained 4.63 pounds; and Child C
gained 3.3 pounds. (Tr. 308, 312, 316). This fast weight gain by previously underfed
children is known as the “catch-up growth” phenomenon. (Tr. 312). The
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photographs taken at the September 15, 2015 visit to CAC show the children looking
better with a less prominent display of bones. The hollows in the buttocks of Child A
were resolved. (Tr. 309). The buttocks of Child B “still show depression, still show
evidence of caloric deprivation, but they’re not sagging” as they were in the
photograph from two weeks earlier. (Tr. 317).
{¶22} The physician acknowledged the children’s ADHD medication could
cause weight loss in the first year. He said the records suggested that any such
medication-induced weight dip already occurred in the first year they took the
medication and they had rebounded before the summer of food deprivation. (Tr. 318-
319). He also noted he could not rule out malnutrition as the cause of their prior
weight dip. (Tr. 337). He said the expected weight loss from the medication is not
usually to the extent seen here and it would be very unusual to see a second weight
dip from the medication. Additionally, if the medication was the cause and food
deprivation was not the cause, the weight loss would have persisted in the new foster
environment where the children had access to adequate food. (Tr. 319). There was
testimony the children required counseling due to food hoarding behavior in foster
care which was said to be a result of emotional insecurity about food availability
induced by the food deprivation. (Tr. 184-185, 319-320).
{¶23} After the children’s removal, the mother was arrested for child
endangering. Photographs were taken showing the latches on the refrigerator (the
locks had been removed) and the contents of the refrigerator, which included food
and alcoholic beverages. Appellant went to the police station to be interviewed on
September 3, 2015, and his statement was admitted at trial.
{¶24} Appellant reported he did not work and was trying to receive disability
for his kidney disease. (Int.Tr. 7). He received $357 per month in food stamps from
Pennsylvania; he had a teenage child who lived in Pennsylvania with Appellant’s
father and three other children with whom he did not communicate. (Int.Tr. 3, 21).
The mother received $430 per month in food stamps until her daughter was removed
in June 2015, at which point her amount was decreased to $360 per month. (Int.Tr.
21-22). Appellant said he used his food stamps to help the mother and there was
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always sufficient food in the house. (Int.Tr. 21-22). There was also testimony at trial
the mother received $1,466 per month in SSI (“Supplemental Security Income”) for
the two older boys. (Tr. 170).
{¶25} Appellant stated he did not move in to the mother’s house full-time but
stayed at the house most of August and would occasionally drive to Pennsylvania to
visit this family. (Int.Tr. 6-7). He acknowledged the children called him dad and they
had not seen their biological father since the month he met their mother. (Int.Tr. 11,
24). When the children did not listen to their mother, he would talk to them and calm
them down. (Int.Tr. 9). He imposed time-out when they misbehaved. (Int.Tr. 10).
He and the mother both took the children to the park and to the lake to swim. When
the children went outside, he helped watch them. The children were only allowed to
play outside two or three times in August as Appellant believed it was too hot (which
he attributed to medications he took). (Int.Tr. 12-13). Appellant went to medical
appointments with the children. (Int.Tr. 41-41). When asked who was the primary
caregiver or who was responsible for the care and control of the children (such as
waking the children and getting them ready), his answer indicated they both fulfilled
these roles. (Int.Tr. 15). They brought the children to school in the morning, picked
them up in the afternoon, and helped them with their homework. (Int.Tr. 16-18).
{¶26} Appellant disclosed he normally cooked dinner for the family and the
mother helped him serve the meals. (Int.Tr. 18-19). He claimed the children were
allowed to have second helpings if they had leftover food, but sometimes they saved
the leftovers for the next day. (Int.Tr. 19-20). Appellant admitted the children were
not permitted to have an afternoon snack, contending it ruined their appetite for
dinner. (Int.Tr. 23). If their behavior was bad, they would not get an after-dinner
snack in the evening. (Int.Tr. 24, 30). Child C (whom the physician said suffered the
least) was the child most likely to get a snack as he was the best behaved. (Int.Tr.
29). The children liked cereal, but if they did not awaken before 9:00 or 9:30 a.m. in
the summer, Appellant would not allow them to eat breakfast, asserting it was too
close to lunch time. (Int.Tr. 25-26).
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{¶27} Appellant described the children’s lunch as canned pasta rings, noodles
with broth, leftovers, or a lunch meat and cheese sandwich. (Int.Tr. 26-27, 31). He
said they were served water to drink as they asked for it but claimed they could have
milk if they asked. (Int.Tr. 57-58, 63). Appellant reported he never denied the
children lunch or supper. He admitted he would threaten food deprivation as
punishment but said he never followed through on the threat. (Int.Tr. 49). Appellant
noted he often ate only one meal a day (dinner) as he does not eat much. (Int.Tr.
27). He said, ever since he was a child, he would get sick if he ate breakfast. (Int.Tr.
49). He also revealed his childhood caregivers threatened to withhold food from him
as punishment but still gave him food, which caused him to learn he would still get
food even if he did not behave and which made his behavior worse. (Int.Tr. 59).
{¶28} Appellant claimed he had a hard time getting the mother to eat as she
slept and rested often since her daughter was removed from the house. (Int.Tr. 28,
40, 48). He noticed Child B suddenly looked thin after being sick recently. (Int.Tr.
44-46). They brought the children to an all-you-can-eat buffet the weekend before
school started (which was after the teacher’s aide asked if they had been sick).
(Int.Tr. 32-33). This was their only meal that day. (Int.Tr. 33).
{¶29} Appellant claimed he installed the latches on the refrigerator and
freezer because the doors would not stay shut when they purchased too many
groceries; he professed he did not use locks through the latches. (Int.Tr. 52). He
complained the children “would get up in the middle of the night and just go out and
do, get in to whatever they wanted to.” He acknowledged the children had a lock on
their bedroom door until “we was explained to why we couldn’t do it and then we
removed ‘em and Children Services gave us alarms to put on the door.” (Int.Tr. 55).
(A caseworker testified alarms were provided years before when one of the children
walked outside in the night as a toddler.)
{¶30} After Appellant’s interview, a child endangering complaint was filed
against him. He was thereafter indicted on six counts of child endangering; two types
of child endangering were charged as to each of the three children. The first three
counts charged child endangering under R.C. 2919.22(A), which prohibits a person
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who is the parent, guardian, custodian, person having custody or control, or person in
loco parentis of a child under 18 years of age from recklessly creating a substantial
risk to the health or safety of the child, by violating a duty of care, protection, or
support. These offenses were third-degree felonies due to the allegations of serious
physical harm. The next three counts charged child endangering under R.C.
2919.22(B)(1), which prohibits any person from recklessly abusing a child who is
under 18 years of age. These offenses were second-degree felonies due to the
allegations of serious physical harm.
{¶31} A bench trial was conducted October 11-12, 2016. The trial court found
Appellant guilty as charged, explaining the verdict in an October 21, 2016 decision.
The state elected to proceed on the three second-degree felonies at sentencing, and
the three other counts were merged. The court’s November 7, 2016 sentencing entry
imposed five years for the count involving Child B, four years for the count involving
Child A, and four years for the count involving Child C to run consecutively for a total
of 13 years in prison. The within appeal followed.
ASSIGNMENT OF ERROR ONE: SUFFICIENCY OF INDICTMENT
{¶32} Appellant sets forth four assignments of error, the first of which alleges:
“The indictment for the charges pursuant to R.C. 2919.22(B)(1) was defective
insomuch as it failed to allege an affirmative act in violation of Appellant’s due
process rights and rights pursuant to Section 10, Article I of the Ohio Constitution and
6th and 14th Amendments to the United States Constitution.”
{¶33} This assignment of error deals only with the three second-degree felony
counts of child endangering under R.C. 2919.22(B)(1), which provides: “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; * *
*.” See also R.C. 2919.22(E)(2)(d) (if the violation of division (B)(1) results in serious
physical harm to the child, the offense is a felony of the second degree).
{¶34} The indictment reads as follows as to each child: “On or about the
summer months of 2015, in Columbiana County, Ohio, [Appellant] did recklessly
abuse [child’s initials], a child under 18 years of age, when such abuse resulted in
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[child’s initials] suffering serious physical harm; in violation of Section 2919.22(B)(1)
of the Ohio Revised Code, being a felony of the second degree.”
{¶35} Appellant contends the indictment is deficient for failing to specify the
conduct resulting in the abuse allegations. He urges the act upon which the abuse
element was based was an essential element of a child endangering offense charged
under R.C. 2919.22(B)(1). He posits he did not waive the issue by failing to object
below because the deficiency constitutes a structural error which is per se prejudicial,
citing State v. Colon, 118 Ohio St.3d 26, 885 N.E.2d 917, 2008-Ohio-1624 (“Colon
I”). To show the alleged error permeated the criminal proceeding under Colon,
Appellant suggests the defect in the indictment was not mitigated by the bill of
particulars as it also failed to specify an affirmative act of abuse. The bill of
particulars referred to the failure to provide sufficient and appropriate nutrition, which
conduct Appellant claims (under the next assignment of error) is an omission and
insufficient to prove abuse.1
{¶36} We begin by reviewing why Appellant’s citation to Colon is
inappropriate. In Colon I, the Supreme Court held an indictment was defective where
it failed to provide a mens rea, an essential element of the offense, even though the
mens rea was not specified in the statute defining the offense. Id. at ¶ 19. The
Colon I Court then found the defendant did not waive the defect in the indictment by
failing to raise the issue at trial and the issue was a structural error which permeated
the entire criminal proceeding and was per se prejudicial. Id. at ¶ 23, 32. In finding
the error permeated the proceeding, the Court found: there was no evidence the
defendant had notice the state was required to prove he had been reckless; the state
did not argue the defendant's conduct was reckless; the jury instructions did not
include the mens rea; and the prosecutor’s closing argument treated the offense as
1 Note Appellant does not argue an insufficient bill of particulars alone requires reversal. If a
defendant seeks reversal of his conviction due to a lacking bill of particulars, he must show his
defense was prejudice by a lack of knowledge of facts which should have been included in the bill of
particulars. State v. Chinn, 85 Ohio St.3d 548, 569, 709 N.E.2d 1166 (1999). Also note a bill of
particulars is not designed to provide the accused with specifications of evidence or to serve as a
substitute for discovery. State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985).
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one of strict liability. Id. at ¶ 30-31.
{¶37} On reconsideration, the Supreme Court limited Colon I to the “rare”
facts and held: “In a defective-indictment case that does not result in multiple errors
that are inextricably linked to the flawed indictment such as those that occurred in
Colon I, structural-error analysis would not be appropriate.” State v. Colon, 119 Ohio
St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶ 7-8 (typically “when a defendant fails
to object to an indictment that is defective because the indictment did not include an
essential element of the charged offense, a plain-error analysis is appropriate.”).
{¶38} As in the case at bar, the “catchall culpable mental state” of
recklessness applied. R.C. 2901.21(C)(1) provides: “When language defining an
element of an offense that is related to knowledge or intent or to which mens rea
could fairly be applied neither specifies culpability nor plainly indicates a purpose to
impose strict liability, the element of the offense is established only if a person acts
recklessly.” See id. at ¶ 12-14, citing former R.C. 2901.21(B). See also State v.
Dawson, 7th Dist. No. 15 MA 0118, 2017-Ohio-2957, ¶ 25, citing State v. Adams, 62
Ohio St.2d 151, 404 N.E.2d 144 (1980), paragraph one of the syllabus. Unlike the
Colon indictment, the indictment in the case before us did charge recklessness as the
applicable mental state.
{¶39} Regardless, Colon I was overruled, and Colon II was overruled to the
extent it held an indictment is defective when it omits the mental state even though it
tracks the language of the statute. State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-
3830, 935 N.E.2d 26, ¶ 45. The Horner Court held: “When an indictment fails to
charge a mens rea element of the crime, but tracks the language of the criminal
statute describing the offense, the indictment provides the defendant with adequate
notice of the charges against him and is, therefore, not defective.” Id. “[A]n
indictment that charges an offense by tracking the language of the criminal statute is
not defective for failure to identify a culpable mental state when the statute itself fails
to specify a mental state.” (Emphasis added.) Id. at ¶ 54.
{¶40} Furthermore, the Horner Court held the failure to timely object to a
defect in an indictment waives the error. Id. at ¶ 46, citing Crim.R. 12(C)(2).
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Pursuant to Crim.R. 12(C)(2), “Defenses and objections based on defects in the
indictment, information, or complaint (other than failure to show jurisdiction in the
court or to charge an offense, which objections shall be noticed by the court at any
time during the pendency of the proceeding)[.]” Without a timely objection, the
defendant is limited to a plain error review on appeal, as opposed to a structural error
analysis. Horner, 126 Ohio St.3d 466 at ¶ 46. Upon such review, a bill of particulars
can mitigate the effect of an omission in an indictment. See, e.g., State v. Jackson,
141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 137-138 (2014) (“The state
provided a detailed bill of particulars that set out the location of the offenses. Thus,
no plain error exists as to any of these counts.”). However, the reviewing court does
not consider prejudice if the indictment was not defective in the first place.
{¶41} Article I, Section 10, of the Ohio Constitution guarantees that “no
person shall be held to answer for a capital, or otherwise infamous, crime, unless on
presentment or indictment of a grand jury.” An indictment shall contain “a statement
that the defendant has committed a public offense specified in the indictment.”
Crim.R. 7(B). “The statement may be made in ordinary and concise language
without technical averments or allegations not essential to be proved. The statement
may be in the words of the applicable section of the statute, provided the words of
that statute charge an offense, or in words sufficient to give the defendant notice of
all the elements of the offense with which the defendant is charged.” Id.{¶42} “Generally, the requirements of an indictment may be met by reciting
the language of the criminal statute.” State v. Childs, 88 Ohio St.3d 194, 199, 724
N.E.2d 781 (2000), citing State v. Murphy, 65 Ohio St.3d 554, 583, 605 N.E.2d 884(1992) (an indictment that otherwise tracks the statutory language is not defective for
failing to identify the elements of a predicate offense; an indictment for aggravated
murder is not defective for failing to name the elements of the predicate offenses of
aggravated robbery and aggravated burglary). The Childs court then found an
indictment charging conspiracy was insufficient where it alleged the defendant
committed a substantial overt act but failed to explain what the act was. Childs, 88
Ohio St.3d at 197-199.
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{¶43} However, Childs is limited to conspiracy cases and can be extended
only to offenses involving equivalent statutory language. The conspiracy statute,
R.C. 2923.01(B), specifically requires a substantial overt act in furtherance of the
conspiracy to be “alleged and proved.” Id. at 199. The Court found this plain
language requires an indictment for conspiracy to contain more than a mere
recitation of the exact wording of the statute defining the offense * * *.” Id. at 199.
{¶44} In contrast to the conspiracy statute at issue in Childs, the child
endangering statute does not require the specific act of abuse to be set forth in the
indictment. Appellant contends the indictment failed to charge an actus reus;
however, the statute defining the offense provides “abuse” is the actus reus element
of this type of child endangering. Essentially, Appellant is arguing the indictment was
required to specify how he abused the child.2 However, this is not the function of the
indictment. The indictment tracked the language of the statute defining the offense,
alleging Appellant abused a child under the age of 18. (In addition, the indictment
provided the mens rea of recklessness; although, this is no longer an absolute
requirement.) As the indictment contained the necessary elements and the statute
defining the offense does not add a requirement that the state must allege the
particular act of abuse, the indictment for child endangering under R.C. 2919.22(B)(1)
was not defective. This assignment of error is overruled.
ASSIGNMENT OF ERROR TWO: SUFFICIENT EVIDENCE OF ABUSE
{¶45} Appellant’s second assignment of error contends:
“The State failed to present sufficient evidence to support the convictions
pursuant to R.C. 2919.22(B)(1) as it failed to prove an affirmative act thereby
requiring reversal.”
{¶46} Sufficiency of the evidence is a question of law dealing with the legal
adequacy of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). A sufficiency review is distinct from an evaluation of the weight of the
evidence which reviews the persuasiveness of the evidence. Id. at 386-387. A
2Notably, Appellant does not contend the indictment for the other type of child endangering charge,
under R.C. 2919.22(A), was required to specify what duty of care he violated or how he violated it.
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conviction cannot be reversed on grounds of sufficiency unless the reviewing court
determines that no rational trier of fact could have found the elements of the offense
proven beyond a reasonable doubt upon evaluating the evidence in the light most
favorable to the prosecution. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916(1998).
{¶47} Like the first assignment of error, this assignment of error deals only
with the three second-degree felony counts of child endangering under R.C.
2919.22(B)(1). Again, this division provides: “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; * * * *.” R.C. 2919.22(B)(1). See
also R.C. 2919.22(E)(2)(d) (the offense is a felony of the second degree if the
violation of division (B)(1) results in serious physical harm to the child).
{¶48} Appellant challenges only the “abuse” element. He begins by asserting
abuse requires an act as opposed to an omission, in other words an affirmative act.
By way of comparison, he points to the merged child endangering counts filed under
R.C. 2919.22(A), which involves a certain class of person (e.g., parent or person in
loco parentis, as opposed to any person) creating a substantial risk to the health or
safety of the child by violating a duty of care, protection, or support. Appellant points
to the Supreme Court’s comparison of the statute’s divisions while the Court was
addressing an issue raised under division (A):
It is not necessary to show an actual instance or pattern of physical
abuse on the part of the accused in order to justify a conviction under
R.C. 2919.22(A). Affirmative acts of torture, abuse, and excessive acts
of corporal punishment or disciplinary measures are expressly covered
under division (B) of the section. Division (A) is concerned with
circumstances of neglect as is indicated by the Committee Comment to
R.C. 2912.22.2 Manifestly, such neglect is characterized by acts of
omission rather than acts of commission. See, e.g., State v. Sammons
(1979), 58 Ohio St.2d 460, 391 N.E.2d 713. Accordingly, an
inexcusable failure to act in discharge of one's duty to protect a child
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where such failure to act results in a substantial risk to the child's health
or safety is an offense under R.C. 2919.22(A).
State v. Kamel, 12 Ohio St.3d 306, 308-09, 466 N.E.2d 860 (1984). The Supreme
Court’s footnote within the above block quotation provides in pertinent part: “The first
part of the section defines the offense of neglect as the violation of a duty of care,
protection, or support of a child which results in a substantial risk to his health or
safety.” Id. at fn. 2, citing Committee Comment to R.C. 2919.22(A).
{¶49} As to division (B), the legislative commentary explains how this division
“deals with actual physical abuse of a child, whether through physical cruelty or
through improper discipline or restraint, and regardless of by whom the offense is
committed.” See, e.g., State v. Mabrey, 8th Dist. No. 96048, 2011-Ohio-3849, ¶11,
citing Legislative Service Commission Comment to R.C. 2919.22(B). This Comment
further states: “Examples of violations include: various actions resulting in the
“battered child syndrome;” reducing a child to a state of frightened withdrawal to the
point where he may become incapable of normal learning because of repeated
punishment inflicted with little or no cause; and chaining a child to his bed or locking
him in his room for prolonged periods so as to endanger his sanity or risk his arrested
development.” (Emphasis added.) Legislative Service Commission Comment to
R.C. 2919.22(B).
{¶50} The state cites Ohio Jury Instruction 591.22(5), which defines abuse as
“any act that causes physical or mental injury that harms or threatens to harm the
child's health or welfare.” (Emphasis added). Courts regularly refer to the abuse
element of child endangering under R.C. 2919.22(B)(1) as “an affirmative act of
abuse.” State v. Adkins, 4th Dist. No. 14CA3674, 2016-Ohio-7250, ¶ 17; Mabrey, 8th
Dist. No. 96048 at ¶ 8; State v. Carse, 10th Dist. No. 09AP-932, 2010-Ohio-4513, ¶
40; State v. Burdine-Justice, 125 Ohio App.3d 707, 713, 709 N.E.2d 551 (12th
Dist.1998); State v. Bogan, 2d Dist. No. 11920 (June 14, 1990).
{¶51} Appellant notes how the prosecution, in Mabrey, argued an affirmative
act of abuse was not required to show child endangering under R.C. 2919.22(B) but
the Eighth District disagreed and concluded an affirmative act was required to show
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abuse. See id. at ¶ 9, 13. Nevertheless, the court found there was sufficient
evidence showing an affirmative act of abuse was committed when the caretaker put
the disabled five-year-old in cool water and failed to adequately supervise him while
the child added cold water and suffered life-threatening hypothermia. Id. at ¶ 13-36.
The appellate court found the defendant “acted recklessly in failing to adequately
supervise [the child] while he played with the bathtub’s water faucet handles” and it
was “abusive to sit and watch a child freeze”. Id. at ¶ 34. We note “[t]he State's trial
theory was that Mabrey used a cold water bath abusively or to punish the child.” Id.
at ¶ 27.
{¶52} In the case at bar, it is not disputed there was evidence from which a
reasonable person could conclude the children suffered severely from food
deprivation which was attributable in part to Appellant and his rules and decisions.
See Statement of the Case. Child A reported he had one meal a day and sometimes
two meals per day. The meals prepared by Appellant were not substantial or
adequate. The state construes Appellant’s statement that he would not let the
children eat breakfast if they woke up late as an admission that he punished the
children by withholding breakfast. Appellant also admitted he withheld after-dinner
snacks as a form of discipline. The children’s bodies showed evidence that the
meals provided were insufficient, which was confirmed by their weight gain after
removal from the house.
{¶53} Appellant concludes the evidence of food deprivation (and the resulting
serious physical harm) does not satisfy the abuse element of division (B)(1) and only
constitutes an offense under division (A) of R.C. 2919.22 (if he occupied a required
relationship to the children under assignments of error three and four). Appellant
posits food deprivation can be an omission and neglect but is not an affirmative act of
abuse.
{¶54} The state responds by pointing to Appellant’s affirmative acts of
“actively preventing” the children from eating. Besides the regular food deprivation
and the serving of inadequate meals, which caused the children to show noticeable
effects of food deprivation, Appellant actively engaged in preventative measures to
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enforce his vision of the children’s meal plan. The children reported they would get in
trouble if they got into the food. Appellant locked the children in their room, which
Child B described as a method to prevent them from eating. This prompted the
youngest to squeeze through a vent to escape the confinement and scavenge for
food in the garbage, which he then brought back to his brothers. There were also
alarms on the bedroom door. Furthermore, Appellant installed latches on the
refrigerator and freezer. In order to further secure the refrigerator and freezer against
the children’s attempts to satisfy their hunger, he utilized locks which required keys to
be opened.
{¶55} This court concludes Appellant’s serving of inadequate meals and his
failure to feed the children enough times a day in combination with the above active
measures (some of which were based upon discipline) ensured the children’s regular
starvation. Viewed in the light most favorable to the prosecution, a rational fact-finder
could find the element of abuse was satisfied. This assignment of error is overruled.
ASSIGNMENT OF ERROR THREE: SUFFICIENCY ON “IN LOCO PARENTIS”
{¶56} In addition to three counts of child endangering by abuse of a child in
violation of R.C. 2919.22(B)(1), Appellant was found guilty of three counts of child
endangering under R.C. 2919.22(A). The trial court merged these lesser-degreed
felonies at sentencing. The next two assignments of error, raising sufficiency and
weight of the evidence, relate to the charges under division (A). As to sufficiency of
the evidence, Appellant’s third assignment of error alleges:
“The state failed to present sufficient evidence that Appellant was in loco
parentis relative to each of the three children for the charges pursuant to R.C.
2919.22(A) thereby defeating the guilty finding and requiring reversal.”
{¶57} Pursuant to R.C. 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.” See also R.C.
2919.22(E)(2)(c) (if violation of division (A) results in serious physical harm to the
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child, the offense is a third-degree felony). Appellant contends the state failed to set
forth sufficient evidence to show the relationship which would give rise to a duty
under the statute. For the definition of “in loco parentis,” Appellant cites the Supreme
Court’s Noggle case, which set forth the following definition of the phrase:
The term ‘in loco parentis’ means ‘charged, factitiously, with a parent's
rights, duties, and responsibilities.’ Black's Law Dictionary (6 Ed.1990)
787. A person in loco parentis has assumed the same duties as a
guardian or custodian, only not through a legal proceeding. A ‘person in
loco parentis’ was grouped with guardians and custodians in the statute
because they all have similar responsibilities.
State v. Noggle, 67 Ohio St.3d 31, 33, 615 N.E.2d 1040 (1993).
{¶58} The Court concluded the “in loco parentis” phrase “applies to a person
who has assumed the dominant parental role and is relied upon by the child for
support.” Noggle, 67 Ohio St.3d at 33. “This statutory provision was not designed for
teachers, coaches, scout leaders, or any other persons who might temporarily have
some disciplinary control over a child. Simply put, the statute applies to the people
the child goes home to.” Id. (We note the legislature thereafter added a division
applying to teachers and coaches where the other person is a minor.) Notably, the
Noggle Court was applying the incest division of the sexual battery statute, which
prohibited sexual conduct where “[t]he offender is the other person's natural or
adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of
the other person.” R.C. 2907.03(A)(3). Compare R.C. 2919.22(A) (the child
endangering statute at issue herein, which has an additional offender option of a
“person having custody or control”).
{¶59} Appellant asks us to consider the following list of factors set forth by the
Tenth District to assist in determining whether a person is acting “in loco parentis”:
(1) the person is charged with a parent's rights and responsibilities; (2)
the person has assumed the same duties as a guardian or custodian;
(3) the person has assumed a dominant parental role; (4) the child
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relies upon the person for support; (5) the child “goes home” to the
person; (6) the person's relationship with the child is close, supportive,
and protective; (7) the person has the intention of acting as a parent,
which is shown by the acts, conduct, and declaration of the person; (8)
the person intentionally assumes the obligations incidental to the
parental relationship; and (9) the person is the primary caretaker for the
child while the biological parent is absent due to, for example,
employment.
State v. Abubakar, 10th Dist. No. 11AP-440, 2011-Ohio-6299, ¶ 13 (also a case
involving sexual battery rather than child endangering). In setting forth the list of
factors, the Tenth District explained that financial support is not solely determinative
of a person's status as in loco parentis, stating “[a] close, supportive, and protective
in loco parentis relationship need not include provision for the material needs of the
child.” Id. at ¶ 10, citing State v. Funk, 10th Dist. No. 05AP-230, 2006-Ohio-2068, ¶
70. See also State v. Reinhardt, 10th Dist. No. 04AP-116, 2004-Ohio-6443, ¶ 34
(“support” of a child for purposes of in loco parentis status is not limited to financial
contributions; a person who fills the role of primary caretaker supports a child).
{¶60} Appellant argues: he was not the dominant parental figure; he was not
the primary caretaker; any caregiving acts were in concert with the mother; the
mother was in the home during the events of the case; although he did not work,
neither did the mother; there was no indication he was alone with the children; he had
a separate residence out of state; he had no authority relative to their education; and
he had no income to contribute to the children’s financial support as he was
unemployed.
{¶61} The state responds by urging Appellant’s statement alone provides
sufficient evidence on the “in loco parentis” element. Appellant disclosed: he used
his food stamps to help the mother; he was engaged to the mother; the children had
not seen their biological father since he met the mother; the children called him “dad”;
he installed the latches on the refrigerator and freezer; and he said “we” used locks to
lock the children’s bedroom (until Children’s Services explained why “we” must stop
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and gave “us” alarms instead). Appellant acknowledged he shared primary caregiver
responsibilities with the mother. He helped watch the children outside and suggested
it was his decision to keep them inside when it was too hot (as he referred to his own
medical condition). In addition, he went to the children’s medical appointments and
even called the children’s doctor seeking information on their medication after they
were removed. Notably, he normally cooked dinner for the children.
{¶62} Furthermore, Appellant took the role of disciplining the children. He
said he would talk to them and calm them down when they would not listen to the
mother. He would impose time-outs. He was involved in the discontinuation of after-
school snacks, the elimination of bed-time snacks as punishment, and the
withholding of breakfast as discipline for waking up too late. He admitted to
threatening the children and warning them he would withhold even more food due to
their behavior. Appellant also suggested the mother had been participating in child
care (and self-care) less since her daughter was removed in June 2015.
{¶63} In addition to Appellant’s own statement, there was other evidence as
to his role in the children’s life. Although Appellant said he initially stayed with the
mother and the children on occasion and began staying more continuously in August,
there were indications he spent more time at the house than he suggested. For
instance, he said they both helped the children get ready for school, transported them
to and from school, and helped with homework. (This would not have been occurring
over the summer, and the children were removed on the first day of the new school
year.) The maintenance person, who lived in the unit above the children, considered
Appellant his neighbor and believed Appellant lived there with the children (and left to
visit his father and child on occasion). Appellant asked the maintenance person for
help installing the latches and referred to locks he intended to use to keep the
children out of the refrigerator and freezer.
{¶64} Child A reported how the food deprivation started when Appellant came
into their lives, suggesting Appellant exercised control over the household. The
testimony presented by Child A suggested Appellant ruled the children’s lives,
especially their food situation and their movements. Finally, Appellant attended
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educational meetings for the children with the mother at the school. At one meeting,
he (rather than the mother) responded to the voiced concern over the children’s
hunger. He also attended the back-to-school function with the children.
{¶65} As aforementioned, a sufficiency review considers whether the
evidence was adequate to support the disputed element as a matter of law, as
opposed to a weight of the evidence review which considers the persuasiveness of
the evidence. Thompkins, 78 Ohio St.3d at 386-387. We must evaluate the
evidence in the light most favorable to the prosecution and ask whether there was
some evidence from which a rational fact-finder could find the elements of the
offense proven beyond a reasonable doubt. Goff, 82 Ohio St.3d at 138.
{¶66} There was evidence Appellant had more than “temporar[y] disciplinary
control over” the children. See Noggle, 67 Ohio St.3d at 33. He was one of “the
people [each] child goes home to.” See id. He lived with them, and they called him
dad. Viewing the evidence and rational inferences most favorably to the prosecution,
the trial court could rationally find Appellant should be “charged, factitiously, with a
parent's rights, duties, and responsibilities” as he has “assumed the same duties as a
guardian or custodian, only not through a legal proceeding” and he occupied a
“dominant parental role.” In addition, one can conclude he provided support to the
children, in the form of food stamps; he also supported the children in the form of
parental services such as cooking, household rule enforcement, and child care (even
if the mother was present). See id. We can conclude there was sufficient evidence
presented from which a rational person could conclude Appellant occupied the status
of “in loco parentis” as to the three child-victims. Contrary to Appellant’s argument,
the evidence was sufficient as a matter of law to demonstrate he occupied the
required role in the children’s life. Accordingly, this assignment of error is overruled.
{¶67} Moreover, there is an optional relationship in the child endangering
statute to satisfy this element: “person having custody or control.” See R.C.
2919.22(A). We note the sexual battery statute at issue in Noggle did not contain this
additional relationship option. The trial court’s opinion on the relationship element
focused on Appellant’s “in loco parentis” status. Nevertheless, in finding Appellant
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was the dominant parental figure, the court stated Appellant asserted authority over
the children even though the mother was present in the household.
{¶68} On the relationship element, the Legislative Service Commission
Comment following R.C. 2919.22 states, “in addition to the natural parents of the
child, the first part of the section also covers guardians and custodians, persons
having temporary control of a child and persons standing in the place of the parents.”
State v. Banks, 8th Dist. No. 97299, 2012-Ohio-2304, ¶ 22, quoting State v. Reed,
11th Dist. No. 89-L-14-130 (May 31, 1991). “[T]he phrase ‘custody or control,’ must
mean something other than in loco parentis, or the phrase becomes superfluous.”
State v. Schoolcraft, 11th Dist. No. 91-P-2340 (May 29, 1992) (a babysitter’s control
alone was sufficient to satisfy the statutory relationship element, and there was
evidence he continued to exercise control after mother returned home and they failed
to seek medical treatment). Compare State v. Amerson, 8th Dist. No. 78235 (July 5,
2001) (a babysitter acted “in loco parentis”).
{¶69} Viewing the evidence in the light most favorable to the state, a rational
person could alternatively conclude there was sufficient evidence Appellant exercised
control over the children, notwithstanding the mother’s presence in the house,
especially considering his statement as to the mother’s physical and mental state for
the two months prior to the children’s removal. For this additional reason, this
assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR: WEIGHT OF EVIDENCE ON RELATIONSHIP
{¶70} Appellant fourth and final assignment of error asserts:
“Appellant’s convictions for counts 1-3, pursuant to R.C. 2919.22(A), were
against the manifest weight of the evidence as the State failed to produce convincing
evidence that he had any duty to the children thereby defeating the guilty finding and
requiring reversal.”
{¶71} Even if a trial court's judgment is sustained by sufficient evidence, a
defendant can argue the judgment is against the weight of the evidence. Thompkins,
78 Ohio St.3d at 387. 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
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than the other.” Id. It is not a question of mathematics but depends on the effect of
the evidence in inducing belief. Id. Weight of the evidence involves the state's
burden of persuasion, whereas sufficiency involves the burden of production. Id. at
390 (Cook, J., concurring). The appellate court is to review the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, 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. Lang, 129 Ohio St.3d 512, 2011-Ohio-
4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, 78 Ohio St.3d at 387.
{¶72} This discretionary power of the appellate court is to be exercised only in
the exceptional case in which the evidence weighs heavily against the conviction. Id.
This is because “the weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact
occupies the best position to weigh the evidence and judge the witnesses' credibility
by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore generally
proceed under the premise that when there are two fairly reasonable views of the
evidence or two conflicting versions of events, neither of which is unbelievable, we do
not choose which one we believe is more credible. State v. Gore, 131 Ohio App.3d
197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶73} Appellant incorporates his arguments from the prior assignment of error
and concludes the decision to find him guilty of child endangering under division (A)
of R.C. 2919.22 was against the manifest weight of the evidence because the
evidence as to his parent-like relationship with the children was not weighty or
persuasive. He contends the evidence pertinent to his role in the children’s lives
(giving rise to a duty) does not “induc[e] belief that he assumed the primary caregiver
or dominant parental figure role.”
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{¶74} The state also incorporates the arguments set forth in responding to the
prior assignment and concludes there was overwhelming evidence showing
Appellant had assumed the role of “a person in place of a parent” at the time of the
alleged acts. The state urges the trial court did not clearly lose its way in finding
Appellant guilty of child endangering under division (A) of R.C. 2919.22.
{¶75} We too incorporate our observations set forth in the prior assignment of
error and our statement of the case set forth earlier. Upon reviewing all of the
evidence and the inferences reasonably drawn from the evidence, there is no
indication the trial court clearly lost its way and created such a manifest miscarriage
of justice that Appellant’s conviction must be reversed. The evidence as to
Appellant’s relationship with the children was worthy of inducing belief. The trial court
heard the testimony at trial and the recorded statement provided by Appellant. The
evidence carried weight and induced a belief in the trial court that Appellant occupied
a parent-like role in the children’s life and controlled them fully and on a daily basis,
all clearly satisfying the relationships of “in loco parentis” (and “person having
custody or control”). This is not the exceptional case in which the evidence weighs
heavily against the conviction. In accordance, Appellant’s final assignment of error is
overruled.
{¶76} For all of the foregoing reasons, the trial court’s judgment is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.