Cleveland v. Taylor , 2021 Ohio 584 ( 2021 )

[Cite as Cleveland v. Taylor, 2021-Ohio-584.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 109371
v. :
LAVELL TAYLOR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 4, 2021
Criminal Appeal from the Cleveland Municipal Court
Case No. 2019 CRB 014948
Appearances:
Barbara A. Langhenry, Cleveland Director of Law,
Aqueelah A. Jordan, Chief Prosecuting Attorney, and
Leslie C. Weston, Assistant Prosecuting Attorney, for
appellee.
Anzelmo Law and James A. Anzelmo, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant Lavell Taylor brings this appeal challenging his
convictions and sentence for endangering children and criminal damaging.
Appellant argues that the trial court lacked jurisdiction to convict him of
endangering children, the trial court violated his right to confrontation, his
convictions were not supported by sufficient evidence and are against the manifest
weight of the evidence, and that the trial court erred in ordering appellant to pay
$400 in restitution. After a thorough review of the record and law, this court
affirms.
I. Factual and Procedural History
The instant matter arose from an incident that occurred on August 28,
2019, between appellant, his son M.I.,1 and the mother of his son, I.D. The son was
ten years old at the time of the incident. It is undisputed that while at a restaurant,
appellant was looking through the son’s phone and discovered pornographic photos
or pornographic websites that had been accessed by the son. The pornographic
content was homosexual. As set forth in further detail below, the parties dispute
events that transpired following appellant’s discovery.
Appellant was upset about his observations. He confronted his son, and
after taking his son to I.D.’s house, confronted I.D. about his discovery. Appellant
was angry that I.D. knew about the issue, either the pornography on the cell phone
or the son’s sexual orientation, but had not told him. When appellant arrived at
I.D.’s house, he was yelling at I.D. and calling the son names, including a “f[*****].”
Appellant was also arguing with, yelling, and swearing at I.D. I.D.
asked appellant to leave several times, but appellant did not comply. The altercation
1 D.O.B. December 4, 2008.
between appellant and I.D. escalated from a verbal argument to a physical
altercation.
At some point during the altercation, I.D. threw water in appellant’s
face. She later threw the empty water bottle at appellant. I.D. attempted to enter
her house, but appellant prevented her from doing so. Appellant shoved I.D. into
the house. I.D. grabbed a hammer in the kitchen and ran outside towards appellant.
At this point, appellant was already in his vehicle. He backed out of the driveway
and left the scene. Later the same day, I.D. reported the altercation to the police.
On September 3, 2019, appellant was charged in a three-count
complaint for his involvement in the August 28, 2019 altercation. Appellant was
charged with (1) domestic violence, a first-degree misdemeanor in violation of R.C.
2919.25, (2) endangering children, a first-degree misdemeanor in violation of
Cleveland Codified Ordinances (“CCO”) 609.04, and (3) criminal damaging or
endangering, a second-degree misdemeanor in violation of CCO 623.02.
On September 4, 2019, following a hearing, the trial court issued an ex
parte temporary protection order under which I.D. and the child were listed as
protected persons. Appellant pled not guilty during his September 21, 2019
arraignment.
Trial commenced on November 6, 2019. I.D. testified on behalf of the
prosecution. Appellant testified on behalf of the defense.
I.D.’s Trial Testimony
I.D. testified that appellant is the father of M.I., and that she has
another son that was two-years-old at the time of the incident. I.D. was not in a
relationship with appellant at the time of the incident. They were coparenting their
son, M.I.
Appellant picked up their son from I.D.’s mom’s house. I.D. did not
expect appellant to pick their son up from her mom’s house. I.D. contacted
appellant and asked when he was dropping her son off. Appellant asserted that they
were going to have a conversation when they arrived at I.D.’s house. I.D. was sitting
on the porch with her younger son. I.D. provided the following account of what
transpired when appellant arrived at her house: “[Appellant] pulls up about maybe
an hour, 45 minutes after I got off the phone with him. He proceeded to get out the
car in my driveway and says, * * * ‘So you f[*****]g knew.’ * * * ‘You knew. You
f[*****]g knew.’ * * * ‘My son’s a f[*****]g f[**].’” (Tr. 7.)
I.D. told appellant he needed to calm down. I.D. testified that she had
seen “gay photos in [her] son’s phone[.]” She thought she deleted the photos, but
appellant saw the content when he went through the son’s cell phone.
I.D. testified that she informed appellant that she already addressed
the issue and that she discussed the issue with her mother and appellant’s mother.2
Appellant was mad that I.D. knew about either the pornographic content, the son’s
2I.D. did not specify whether the “issue” to which she was referring was the
pornographic content on the son’s cell phone or the son’s sexual orientation.
sexual orientation, or both, and did not tell him. I.D. explained that she did not
discuss the photos with appellant because “I already knew what type of person he
was when it came to issues like that.”
Appellant and I.D. got into an argument at her house. She asked him
to leave because he was calling the son names in front of I.D.’s younger son. The
older son “broke down in tears and ran into the house[.]” (Tr. 8.) The son had been
sitting in the car for the “first half” of the argument between appellant and I.D.
Then, appellant told the son to get out of the car. The son was on the porch and
started crying, at which point I.D. told him to take the two-year-old inside.
Appellant and I.D. continued to argue. She asked him to leave several
times. Although appellant began to leave a couple of times, he ended up coming
back and continuing to argue with I.D.
Appellant was calling I.D. names, including b***h, and he was calling
the son names, including “f[**].” (Tr. 9.) I.D. kept asking appellant to leave but he
would not. I.D. was holding a water bottle and threw the water at appellant. He still
would not leave, so she threw the empty water bottle at him.
I.D. began walking towards her house and she tried to enter the house
through the front door. Appellant threatened her, saying, “I should punch you in
your f[*****]g face.” (Tr. 10.) I.D. tried to close the door behind her, but appellant
grabbed the door handle and pushed I.D. back into her house, causing her to fall
back approximately three feet. After appellant pushed I.D. into the house, he closed
the front door. I.D. was upset and she ran towards the front door. She grabbed
something to try and hit appellant with. She was unable to open the front door. As
a result, she ran through the house and exited through a side door.
Before going back outside, she grabbed a hammer that was in the
kitchen. She explained that she grabbed the hammer because “I wanted him to
leave, just to try [to] get him to leave.” (Tr. 12.) Appellant got into his vehicle and
pulled out of the driveway.
After appellant left, I.D. contacted appellant and inquired where her
son’s cell phone was. Appellant advised her that the son’s phone was “gone” and
“over with.” Appellant stated that he broke the phone. I.D. testified at trial that the
son has an “LG Aristo” cell phone from T-Mobile. I.D. was still paying for the phone
at the time of the incident. When asked about the value of the phone, I.D. testified,
“[w]ith all the accessories and everything I had on it and stuff I bought for him, it
was like $400, three, $400.” (Tr. 13.)
After appellant left, I.D. went into the house and found her sons. The
older son was in a room crying. I.D. testified, over defense counsel’s objection, that
“I grabbed my son which I had a talk to in the room because he was under his covers
in tears crying saying that his daddy didn’t love him. And he proceeded to tell me
that [appellant] grabbed him by his arm, threw him on the ground and told him that
he is not a part of his family, he does not have f[***] in his family.” (Tr. 15.)
I.D. testified that she talked to her son in the room and calmed him
down. After she calmed him down, they gathered themselves and went to the police
station to file a report. They went to the police station approximately 20 minutes
after the altercation ended.
I.D. testified on cross-examination that when she tried to enter her
house, she never made it all the way inside because appellant grabbed the door
before she entered the residence. She acknowledged that she tried to open the front
door to hit appellant after he pushed her inside. When she was unable to open the
front door to do so, she locked the door and ran out of the house through a back
door. After she grabbed the hammer from the kitchen, she ran towards appellant
who was in his vehicle pulling out of her driveway.
On redirect examination, I.D. confirmed that the altercation between
her and appellant did not start when she threw water on appellant. Rather,
appellant had been “in [her] face” before she threw water on him. I.D. opined that
she asked appellant to leave five or six times before she first threw water at him. He
began to leave approximately three times, but ended up coming back to continue the
argument. After she threw water at appellant, they continued to argue for another
five to ten minutes. Then, she threw the empty water bottle at appellant and
attempted to go inside the house.
Following I.D.’s testimony, defense counsel moved for a Crim.R. 29
judgment of acquittal. Regarding the endangering children offense, the city argued
that the defense’s motion should be overruled based on appellant calling his son a
“f[*****]” and appellant’s conduct of bringing the fight to I.D.’s house and fighting
in front of the two children. (Tr. 28.) Regarding the criminal damaging offense, the
city argued that the motion should be overruled based on I.D.’s testimony that
appellant told her he destroyed the son’s phone and that she never got the phone
back from appellant. (Tr. 28.) The trial court denied defense counsel’s motion.
Appellant’s Trial Testimony
Appellant testified at trial that he picked his son up from I.D.’s mom’s
house. They went to his brother’s restaurant and were hanging out. He had the
son’s phone and saw that the son had been visiting “several porn sites for months.”
Appellant testified that he talked to the son about it, and that they “just had a
conversation.”
Appellant knew his son was lying because the son told him that the
site was accessed within the last couple of weeks, rather than months. Appellant
confronted the son about the lie, telling him that the websites dated back six or seven
months. The son continued to lie.
Appellant asserted that he was “already on the ground” with his son.
Thereafter, appellant testified,
And I did proceed to whip my son with a belt because, I mean, he was
lying to me about what was going on. I never once called my son a
f[*****] at all. I was explaining to him. And my son is very, of course
— of course, everybody don’t want his father see that, I guess. So he
was scared. And I was talking to him normally like anybody would do
with their son. He — of course, we proceeded to go to his mom’s house.
(Tr. 31.)
Appellant left the restaurant with the son and they went to I.D.’s
house. He got out of the car and the son stayed in the car. He proceeded to talk to
I.D. about the internet sites. I.D. told him that she already knew about the websites
and she spoke to appellant’s mom about the issue.
Initially, he was conversing with I.D. The conversation escalated into
an argument. Appellant provided the following account of the argument with I.D.:
As the argument went on, I guess she got offended by some of this [sic]
things I called her. I didn’t say called her out her name. I called her
miserable because she was mad at the fact that I had a child and she
wouldn’t let me see my son for all that time. So upon that she was
already standing.
I was on the ground. I wasn’t even on the steps. I was on the — on the
grass. She was standing on her steps. That’s when she poured water
on me once, poured it on me again. It was still water on there, and then
she hit me with the water bottle. That’s when I got hit with the water
bottle.
She was standing up at that time. I had my head down walking up the
steps approaching her. Upon me looking and seeing what was going on
is when I seen [sic] her with the broom in her hand and the door was
open. My son was — my son was already — he’s outside.
[My son] was in the doorway. The door was wide open. There was no
grabbing of the door. She was in the doorway. And when she
approached me, I put my hands up to defend myself as if somebody
would do when somebody’s approaching them. So, of course, she’s a
lot less — weigh a lot less than me.
[I.D.] fell. She fell back, and I shut the door because she was trying to
get up and come to me. So I shut the door and that’s when I left. There
was no going back and forth in the car or nothing.
(Tr. 33-34.)
Appellant explained that he shut the front door on I.D. because she
was coming to attack him. He denied locking the door or preventing I.D. from
opening it. He was laughing when he left because “[I.D.] approached me and she
fell.” (Tr. 35.)
When appellant started pulling out of the driveway, I.D. came outside
with a hammer. He continued driving away from the residence.
On cross-examination, appellant testified that prior to the August 28
incident, appellant had not seen his son for approximately one month. He alleged
that I.D. prevented him from seeing the son.
Appellant was upset about what he saw on his son’s phone. He felt
that someone should have spoken to him about the issue.3 Appellant stated that he
was not angry when he called I.D. and told her that they needed to talk. He explained
that he was disappointed, not angry. Appellant testified that he did not became
angry until he was hit with the water bottle I.D. threw at him. He did not approach
I.D. until he was hit with the water bottle. Appellant confirmed that he was mad at
I.D. for not informing him about the issue involving the websites.
Verdict and Sentence
At the close of trial, the trial court found appellant not guilty of
domestic violence, and guilty of endangering children and criminal damaging. On
December 2, 2019, the trial court sentenced appellant to 180 days in jail on the
endangering children count, with 176 of the 180 days suspended. The trial court
sentenced appellant to a suspended 90-day jail term on the criminal damaging
count. The trial court placed appellant on three years of active probation with the
following terms: complete 100 hours of community work service, pay $400 in
3Appellant did not specify whether the “issue” to which he was referring was the
pornographic content on the son’s cell phone, the type of pornographic content on the cell
phone (homosexual content), or the son’s sexual orientation.
restitution to I.D., complete a substance abuse and alcohol assessment, and
complete the domestic intervention education training program.
On December 26, 2019, appellant filed the instant appeal challenging
the trial court’s judgment. Appellant assigns five errors for review:
I. The trial court lacked jurisdiction to convict [appellant] of child
endangerment.
II. The trial court erred by allowing I.D. to testify about N.’s out of court
statements, in violation of [appellant’s] right to confrontation under
the Sixth Amendment to the United States Constitution.
III. [Appellant’s] convictions are based on insufficient evidence, in
violation of the Due Process Clause of the Fifth and Fourteenth
Amendments to the United States Constitution and Sections 10 & 16,
Article I of the Ohio Constitution.
IV. [Appellant’s] convictions are against the manifest weight of the
evidence in violation of the Due Process Clause of the Fifth and
Fourteenth Amendments to the United States Constitution and
Sections 10 & 16, Article I of the Ohio Constitution.
V. The trial court erred by ordering [appellant] to pay $400 in
restitution because the evidence fails to support the amount of that
order.
II. Law and Analysis
A. Jurisdiction
In his first assignment of error, appellant argues that the Cleveland
Municipal Court lacked jurisdiction to convict him of child endangerment. In
support of his argument, appellant contends that he was charged with and convicted
of CCO 609.04(b) and R.C. 2919.22(B)(1) for “‘beating’ [his son] after [appellant]
caught [his son] looking at pornography.” Appellant’s brief at 4. Based on his
assertion that he was convicted of CCO 609.04(b) and R.C. 2919.22(B)(1), appellant
contends that the juvenile court, not the municipal court, had exclusive jurisdiction
over the matter pursuant to R.C. 2151.23(A)(1) and (6).
As an initial matter, we note that appellant did not raise his
jurisdictional argument in the trial court. However, “[s]ubject-matter jurisdiction
may not be waived or bestowed upon a court by the parties to the case. State v.
Wilson, 73 Ohio St.3d 40, 46, 652 N.E.2d 196 (1995). It may be raised sua sponte
by an appellate court. State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d
82, 84, 661 N.E.2d 728 (1996).” State ex rel. White v. Cuyahoga Metro. Hous. Auth.,
79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997).
CCO 609.04(b) provides, “[n]o person shall abuse a child under
eighteen (18) years of age or a mentally or physically handicapped child under
twenty-one (21) years of age.” The language of CCO 609.04(b) is set forth in R.C.
2919.22(B)(1), which provides, “[n]o person shall [abuse a child] under eighteen
years of age or a mentally or physically handicapped child under twenty-one years
of age[.]”
R.C. 2151.23, governing the jurisdiction of the juvenile court,
provides, in relevant part,
(A) The juvenile court has exclusive original jurisdiction under the
Revised Code as follows:
(1) Concerning any child who on or about the date specified in the
complaint, indictment, or information is alleged to have violated
section 2151.87 of the Revised Code or an order issued under that
section or to be a juvenile traffic offender or a delinquent, unruly,
abused, neglected, or dependent child and, based on and in relation to
the allegation pertaining to the child, concerning the parent, guardian,
or other person having care of a child who is alleged to be an unruly
child for being an habitual truant or who is alleged to be a delinquent
child for violating a court order regarding the child’s prior adjudication
as an unruly child for being an habitual truant;
***
(6) To hear and determine all criminal cases in which an adult is
charged with a violation of division (C) of section 2919.21, division
(B)(1) of section 2919.22, section 2919.222, division (B) of section
2919.23, or section 2919.24 of the Revised Code, provided the charge is
not included in an indictment that also charges the alleged adult
offender with the commission of a felony arising out of the same actions
that are the basis of the alleged violation of division (C) of section
2919.21, division (B)(1) of section 2919.22, section 2919.222, division
(B) of section 2919.23, or section 2919.24 of the Revised Code[.]
(Emphasis added.)
Appellant directs this court to State v. Middleton, 2d Dist. Greene No.
2019-CA-22, 2020-Ohio-1308. In Middleton, the Second District held that the
defendant’s child endangerment conviction was void and must be vacated because
the charge was brought in municipal court and the juvenile court had exclusive
jurisdiction over the case pursuant to R.C. 2151.23(A)(6). Id. at ¶ 29-31. Appellant’s
reliance on Middleton is misplaced.
In Middleton, the defendant was charged with child endangerment in
violation of R.C. 2919.22(B)(1). In the instant matter, the city argues that appellant
was charged with child endangerment in violation of CCO 609.04(a) and R.C.
2919.22(A), not 2919.22(B)(1), and as a result, the Cleveland Municipal Court had
jurisdiction over the proceedings.
After reviewing the record, we agree with the city and find that the
juvenile court did not have exclusive jurisdiction over the proceedings. Accordingly,
the municipal court had jurisdiction to preside over the city’s prosecution.
First, appellant’s reliance on R.C. 2151.23(A)(1) is misplaced because
the matter did not involve any allegations involving appellant’s son. It was
appellant’s conduct, not the conduct of his son, that was at issue in the proceedings.
Furthermore, appellant’s assertion that he was convicted of CCO
609.04(b) and R.C. 2919.22(B)(1) is unsupported by the record. The city’s
complaint charged appellant with endangering children in violation of CCO
609.04(a). The language of CCO 609.04(a) is set forth, verbatim, in R.C.
2919.22(A). Therefore, the provision set forth in R.C. 2151.23(A)(6) giving the
juvenile court exclusive jurisdiction over criminal cases involving violations of R.C.
2919.22(B)(1) is inapplicable.
Based on the foregoing analysis, we find that the municipal court had
jurisdiction over the criminal proceedings. Appellant’s first assignment of error is
overruled.
B. Right to Confrontation
In his second assignment of error, appellant argues that the trial court
erred by allowing I.D. to testify, over defense counsel’s objection, about the son’s
out-of-court statements. Appellant contends that the trial court’s ruling violated his
constitutional right to confrontation.
As noted above, I.D. testified that after appellant left her house, she
went into the house and found her sons. The older son was in a room crying. I.D.
testified, “I grabbed my son which I had a talk to in the room because he was under
his covers in tears crying saying that his daddy didn’t love him. And he proceeded
to tell me that [appellant] grabbed him by his arm, threw him on the ground and
told him that he is not a part of his family, he does not have f[**]s in his family.”
(Tr. 15.)
Defense counsel raised a general, unspecified objection to I.D.’s
testimony about the son’s statements. The city argued that the statements were
admissible as an excited utterance. The trial court overruled defense counsel’s
objection.
In support of his argument that the trial court erred by permitting
I.D.’s testimony, appellant directs this court to Crawford v. Washington, 541 U.S.
36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Appellant appears to argue that the
child’s statements were testimonial under the Crawford standard because the child
made the statements to I.D. before she contacted the police to press charges against
appellant. As a result, appellant contends that “I.D. made the statements [to police]
to establish or prove events potentially relevant to later criminal prosecution.”
Appellant’s brief at 7. Appellant emphasizes that the test is whether an objectively
reasonable person would believe the statements were testimonial, and as a result,
the son’s young age is inconsequential in the Crawford analysis.
As an initial matter, we note that the relevant inquiry is whether the
son’s statements to I.D. were testimonial — not whether the statements that I.D.
made to the police at the time she was filing the report were testimonial.
“The Sixth Amendment to the United States Constitution provides
that ‘in all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him [or her].’” State v. Barnes, 8th Dist.
Cuyahoga Nos. 108857, 108858, and 109321, 2020-Ohio-3184, ¶ 14.
In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), the United States Supreme Court held that the
Confrontation Clause of the Sixth Amendment to the United States
Constitution permits testimonial statements of witnesses absent from
trial where the declarant is unavailable, only where the defendant has
had a prior opportunity to cross-examine. Testimonial statements
include statements “that were made under circumstances which would
lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Id. at 52. See also Davis v.
Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224(2006). “Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that
the primary purpose of interrogation is to enable police assistance to
meet an ongoing emergency.” Davis at 823. See also State v. Eicholtz,
2d Dist. Clark No. 2012-CA-7, 2013-Ohio-302, ¶ 26.
State v. Renode, 8th Dist. Cuyahoga No. 109171, 2020-Ohio-5430, ¶ 24,
In Crawford, the Supreme Court found that at a minimum,
testimonial evidence includes prior testimony at a preliminary hearing, before a
grand jury, or at a former trial, and statements made during police interrogations.
Id. at 68.
The Confrontation Clause does, however, not bar the admission of
hearsay statements that are not testimonial. Davis at 823; State v. Siler, 116 Ohio
St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶ 21. The Confrontation Clause is not
implicated by, and need not be considered when nontestimonial hearsay is at issue.
Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).
Appellant also appears to argue that the child’s statements were not
admissible under the excited utterance exception to the hearsay rule because they
were made after appellant left the scene.
Evid.R. 803 sets forth certain exceptions to the rule against hearsay,
including the “excited utterance” exception. Evid.R. 803(2). In order
for a statement to be admissible as an excited utterance, four
prerequisites must be satisfied: (a) the occurrence of an event startling
enough to produce a nervous excitement in the declarant that stills his
reflexive faculties so that his declarations are spontaneous and the
unreflective and sincere expressions of his impressions and beliefs; (b)
a statement made while still under the stress of excitement caused by
the event; (c) a statement related to the startling event; and (d) the
declarant had an opportunity to personally observe the matters in his
declaration. State v. Taylor, 66 Ohio St.3d 295, 300-301, 612 N.E.2d
316 (1993); State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984
N.E.2d 948, ¶ 166.
Renode, 8th Dist. Cuyahoga No. 109171, 2020-Ohio-5430, at ¶ 27.
After reviewing the record, we find no basis upon which to conclude
that the trial court abused its discretion in permitting I.D. to testify about the son’s
statements.
First, the record reflects that the son’s statements were not
testimonial. The son was upset about what had transpired between him and
appellant, and appellant and I.D. The son made the statement in the context of his
belief that appellant did not love him based on the content appellant found on his
cell phone.
We cannot conclude that the son’s statement, made to his mother in
the privacy of her home following a traumatic event was made under circumstances
that would lead an objective witness to reasonably believe that the statement would
be available for use at a later trial. Finally, I.D. testified that the son made the
statement to her while he was upset and crying. She calmed him down after he made
the statement, and then told him to get ready to go to the police station. The son did
not make the statement after I.D. told him that they were going to the police station
to file a report.
Second, the record reflects that the son’s statements were admissible
as an excited utterance. Appellant’s (1) discovery of the pornographic content on the
son’s cell phone, (2) ensuing physical action directed towards the son (throwing him
to the ground by his arm and “whipping” him), (3) verbal berating of the son and
I.D., and (4) participation in the verbal and physical altercation with I.D. were
startling enough to produce a nervous excitement in the son, who was ten years old
at the time. Although appellant was no longer at the residence at the time the son
made the statements to I.D., the statements were made less than 20 minutes after
the verbal and physical altercation between appellant and I.D., and less than 20
minutes after appellant had been berating the son for accessing the pornography on
his cell phone. I.D. testified that she went to the police station approximately 20
minutes after the altercation with appellant ended.
The record reflects that the son was still under the stress of excitement
caused by appellant’s discovery on his cell phone. I.D. testified that she found the
son crying in his room, underneath the covers. The son was upset because appellant
“didn’t love him.” I.D. had to calm the son down. The son’s statement was related
to the startling event — appellant’s reaction after finding pornographic material on
the son’s cell phone. Finally, the son personally observed the matters in his
declaration because appellant’s actions were directed at him.
For all of the foregoing reasons, appellant’s second assignment of
error is overruled. The trial court did not err or abuse its discretion in admitting
I.D.’s testimony.
C. Sufficiency
In his third assignment of error, appellant argues that his
endangering children and criminal damaging convictions were not supported by
sufficient evidence.
Crim.R. 29 mandates that the trial court issue a judgment of acquittal
where the prosecution’s evidence is insufficient to sustain a conviction for the
offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis.
State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134. “An appellate
court’s function when reviewing the sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt.” State v. Driggins, 8th Dist. Cuyahoga No. 98073,
2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997).
The relevant inquiry 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 proven beyond a reasonable doubt. State v. Vickers,
8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991).
Initially, we note appellant’s arguments that I.D.’s testimony was not
credible and that she “has demonstrated her hostility and bias against [appellant]
given her interference with [appellant’s] ability to see his own son” are not properly
raised in a sufficiency context. These arguments pertain to the manifest weight of
the evidence.
1. Endangering Children
CCO 609.04(a) and R.C. 2919.22(A), governing the offense of
endangering children, provide, in relevant part,
No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen
(18) years of age or a mentally or physically handicapped child under
twenty-one (21) 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.
Proof of recklessness is also required. State v. McGee, 79 Ohio St.3d
193, 680 N.E.2d 975 (1997), syllabus (“The existence of the culpable
mental state of recklessness is an essential element of the crime of
endangering children under R.C. 2919.22(A).”). A “[s]ubstantial risk”
is “a strong possibility, as contrasted with a remote or significant
possibility, that a certain result may occur or that certain circumstances
may exist.” R.C. 2901.01(A)(8). “A person acts recklessly when, with
heedless indifference to the consequences, he perversely disregards a
known risk that his conduct is likely to cause a certain result, or is likely
to be of a certain nature.” R.C. 2901.22(C). Thus, to support a
conviction for child endangering under R.C. 2919.22(A), it must be
established, beyond a reasonable doubt, that [the defendant] (1)
recklessly (2) created a substantial risk to the health or safety of one or
more of his children (3) by violating a duty of care, protection or
support.
Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31 N.E.3d 695, ¶ 25 (8th Dist.).
Appellant raises several arguments in support of his sufficiency
challenge that pertain to the offenses of endangering children in violation of R.C.
2919.22(B)(1) and (3). For instance, appellant argues that his son did not sustain
injuries as a result of appellant’s conduct nor seek medical attention after the
incident, and that appellant had the right to discipline and punish his son. Appellant
also reiterates his argument that the municipal court lacked jurisdiction over the
child endangerment offense because the juvenile court had exclusive jurisdiction
over the criminal proceedings. Appellant was charged with and convicted of
violating R.C. 2919.22(A). Therefore, appellant’s arguments are misplaced.
Appellant reiterates his argument that I.D.’s testimony that appellant
threw the son down to the ground and “told [the son] that he is not a part of his
family, [appellant] does not have f[***] in his family” was inadmissible. (Tr. 15.)
Based on our resolution of appellant’s second assignment of error, we find no merit
to appellant’s assertion. The trial court properly permitted I.D. to testify about the
son’s statement.
Finally, appellant argues that he cannot be convicted of child
endangerment, in violation of R.C. 2919.22(A), based on the altercation between
him and I.D. pursuant to this court’s holding in Cohen, 2015-Ohio-1636, 31 N.E.3d
695.
The city, on the other hand, argues that appellant’s child
endangerment conviction was supported by sufficient evidence because appellant
became enraged after discovering the pornography on his son’s phone, and rather
than talking to I.D. about his discovery, appellant “immediately whipped his son
whom he had not seen for at least a month, told his son that he was no longer part
of his family and repeatedly called his son a f[*****].” Appellee’s brief at 9. The city
argues that Cohen is distinguishable because in Cohen, the verbal and physical
altercation between the parents was based on their relationship issues, whereas
here, the son was the “central figure and subject” of the argument between appellant
and I.D. In sum, the city argues that appellant “expressed several things in front of
his son, that couldn’t help but effect the mental and emotional health of [his son].”
Appellee’s brief at 9.
In Cohen, the defendant-husband got into a physical altercation with
his wife in front of their children. During the argument, the defendant pushed his
wife into a wall, causing her to hit her head on a closet. The children witnessed the
head injury sustained by the wife. The husband was convicted at trial of two counts
of child endangerment, violations of R.C. 2919.22(A).
On appeal, this court reversed the child endangerment convictions,
concluding that the prosecution failed to establish that defendant’s conduct created
a substantial risk to the health and safety of the children that were present and
witnessed the physical altercation. Cohen, 2015-Ohio-1636, 31 N.E.3d 695, at ¶ 30.
This court explained, that there was no evidence in the record that the children were
“in any way part of the altercation involving their parents,” and as a result, there
was “no evidence in the record that the children were at any risk of harm — much
less a substantial risk of harm — to their mental or physical health or safety” as a
result of defendant’s actions. (Emphasis added.) Id. at ¶ 29. Furthermore, this
court concluded,
Although we have little doubt that (1) hearing one’s parents argue about
getting a divorce and leaving the family’s home and (2) viewing the type
of inappropriate and irresponsible behavior exhibited by the parents in
this case could have an emotional impact on a child, we cannot say,
based on the record before us, that the city met its burden of proof.
Simply because the two children were present in the home at the time
of the altercation, may have witnessed part of the dispute and may have
been (understandably) upset or confused by their parents’ words and
actions does not establish that Cohen violated a duty of care, protection
or support to his children or that he, with heedless indifference to the
consequences of his actions, perversely disregarded a known risk and
thereby created a substantial risk to the health or safety of his children.
As such, the evidence was insufficient to support Cohen’s conviction for
child endangering pursuant to R.C. 2919.22(A).
Id. at ¶ 30.
After reviewing the record, we find this case to be distinguishable from
Cohen. In Cohen, the children were merely present at the time of the altercation
between their parents. The children were not, however, involved in the altercation
“in any way.” Id. at ¶ 29. In the instant matter, unlike Cohen, appellant’s son was a
part of, and directly involved in, an ongoing altercation that began when appellant
discovered the pornography on his son’s phone and confronted him, and continued
to I.D.’s house where the altercation eventually ended. The ongoing dispute
occurred between appellant, I.D., and their son. Unlike Cohen, where the subject of
the parents’ altercation was their marriage and the wife’s assertion that she wanted
a divorce, the subject of the ongoing altercation in this case was the son’s sexual
orientation.
In addition to throwing his son to the ground, appellant verbally
berated both his son and I.D. during the altercation about the ten-year-old son’s
sexual orientation. Unlike Cohen, where this court concluded that the defendant’s
actions could emotionally impact the children, appellant’s actions in this case
created a substantial risk to the son’s emotional and mental health or safety. For all
of these reasons, appellant’s reliance on Cohen is misplaced.
After reviewing the record, we find that appellant’s child
endangerment conviction is supported by sufficient evidence. I.D. testified that her
son advised her that appellant grabbed his arm and threw him on the ground after
discovering the pornography on the son’s cell phone. Appellant told his son that “he
is not a part of his family, [and appellant] does not have f[***] in his family.”
Appellant’s actions directly involved the son in the ongoing altercation.
The son continued to be involved in the altercation after arriving at
I.D.’s house. Appellant directed anger towards both I.D. and his son at I.D.’s house.
Appellant was yelling at I.D., “‘[m]y son’s a f[*****]g f[**].’” I.D. testified that
appellant “kept proceeding to call [his son a] f**.]”
Appellant’s son was directly involved in the ongoing altercation, and
the son’s sexual orientation was the subject of the altercation. Appellant directed
anger, both physical and verbal, towards his son throughout the altercation.
The ten-year-old son’s sexual orientation, whether it was established
or undecided, is certainly a delicate, sensitive, and personal issue. Rather than
inquiring about the issue and protecting or supporting his son, appellant — who had
not seen his son for one month prior to the incident — became angry, berated his
son, and led his son to believe he would no longer be a part of appellant’s family or
life. Appellant’s reckless conduct upon first discovering the content on his son’s cell
phone created a substantial risk to his son’s mental and emotional health or safety.
Appellant’s actions created a strong possibility that his son’s mental
and emotional health or safety would be harmed. The immediate harm that
appellant’s actions caused his son is evident from the record. When the son was
outside of the home on the porch and appellant was calling him names, the son
“broke down in tears and ran in the house[.]” When the altercation between
appellant and I.D. ended, I.D. found her son in a room inside the house “under his
covers in tears crying saying that his daddy didn’t love him.” Rather than supporting
his son and making him feel comfortable, the record reflects that appellant’s actions
made the son feel scared, ashamed, and embarrassed.
For all of the foregoing reasons, and based on the son’s involvement
in the ongoing altercation, we find that the evidence presented at trial by the city, if
believed, sufficiently established that appellant’s actions created a substantial risk
of harm to the mental and emotional health or safety of the son. Accordingly,
appellant’s endangering children conviction for violating R.C. 2919.22(A) was
supported by sufficient evidence.
Appellant’s third assignment of error is overruled with respect to his
endangering children conviction.
2. Criminal Damaging
CCO 623.02(a)(1), governing the offense of criminal damaging or
endangerment, provides “[n]o person shall [knowingly, by any means] cause, or
create a substantial risk of physical harm to any property of another without his or
her consent[.]” CCO 623.02 references R.C. 2909.06.
In support of his sufficiency challenge, appellant argues that his
criminal damaging conviction must be reversed because appellant “made no
admission that he broke [his son’s] phone.” Appellant’s brief at 9. Appellant’s
argument is misplaced.
I.D. testified at trial that she contacted appellant after he left her
residence and inquired where her son’s cell phone was. Appellant advised her that
the son’s phone was “gone” and “over with.” Appellant stated that he broke the
phone. I.D. testified at trial that the son has an “LG Aristo” cell phone from T-
Mobile. I.D. paid for the phone at the time of the incident. When asked about the
value of the phone, I.D. testified, “[w]ith all the accessories and everything I had on
it and stuff I bought for him, it was like $400, three, $400.” (Tr. 13.)
I.D.’s testimony, if believed, was sufficient to support appellant’s
criminal damaging conviction. Accordingly, appellant’s third assignment of error is
overruled with respect to his criminal damaging conviction.
D. Manifest Weight
In his fourth assignment of error, appellant argues that his
convictions were against the manifest weight of the evidence.
A manifest weight challenge questions whether the state met its
burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-
3598, ¶ 12. A reviewing court “‘weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines 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.’” Thompkins,
78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed as against the
manifest weight of the evidence only in the most “exceptional case in which the
evidence weighs heavily against the conviction.” Id.Although appellant raises separate assignments of error challenging
the sufficiency and manifest weight of the evidence, appellant does not develop an
argument in support of his manifest weight challenge with citations to the record
and supporting authorities, as required by App.R. 16(A)(7). Rather, appellant
merely references the arguments raised in his third assignment of error. See
Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14, citing
App.R. 16(A)(7) (overruling appellant’s assignment of error relating to a sufficiency
challenge pursuant to App.R. 16(A)(7) because the appellant did not make a specific
argument regarding why the convictions were not supported by sufficient evidence,
and only addressed the issues relating to the manifest weight challenge).
“Sufficiency” and “manifest weight” challenges present two distinct legal concepts.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23.
App.R. 16(A) requires a party to separately argue each assignment of
error. Pursuant to App.R. 12(A)(2), an appellate court may disregard any
assignment of error, or portion thereof, if the appellant fails to make a separate
argument. State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 55.
Notwithstanding appellant’s failure to develop his manifest weight
challenge, we find that appellant’s endangering children and criminal damaging
convictions are not against the manifest weight of the evidence.
Appellant appears to challenge the credibility of I.D. and her trial
testimony. Specifically, appellant contends that I.D. is not a credible witness and
that her interference with appellant’s ability to see his son demonstrates her hostility
and bias towards appellant.
The defense’s theory of the case at trial was that I.D., not appellant,
was responsible for the altercation that transpired at I.D.’s house. The defense
suggested that I.D. assaulted appellant by throwing water on him and chasing him
with a hammer. The city’s theory, on the other hand, was that appellant was the
primary aggressor and that he was responsible for the verbal argument that
escalated into a physical altercation.
At the close of evidence at trial, the trial court found that appellant was
“not credible at all.” “‘[A] conviction is not against the manifest weight of the
evidence simply because the [finder of fact] rejected the defendant’s version of the
facts and believed the testimony presented by the [prosecution].’” State v. Jallah,
8th Dist. Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th
Dist. Ross No. 13CA3391, 2014-Ohio-2959, ¶ 2. The trial court, as the finder of fact,
did not lose its way in resolving the conflicting theories based on the evidence
presented at trial.
After reviewing the record, we find appellant’s convictions are not
against the manifest weight of the evidence. The record reflects that I.D. testified
consistently about the important aspects of the August 28, 2019 incident and
appellant’s involvement therein. We do not find in resolving conflicts in the
evidence that the trial court, as the trier of fact, clearly lost its way in finding
appellant guilty of endangering children and criminal damaging. Furthermore, this
is not the exceptional case in which the evidence weighs heavily against appellant’s
convictions.
For all of the foregoing reasons, appellant’s fourth assignment of error
is overruled. Appellant’s convictions are not against the manifest weight of the
evidence.
E. Restitution Order
In his fifth assignment of error, appellant argues that the trial court
erred in ordering him to pay $400 in restitution to I.D. for damaging his son’s phone
because the trial court did not receive any evidence verifying the phone’s value and
instead “relied on I.D.’s estimated value of the phone in combination with the court’s
own recollection for how much it paid for a smart phone.” Appellant’s brief at 13.
Without documentary evidence establishing the value of the phone, appellant
contends that the trial court’s restitution order is not supported by competent and
credible evidence in the record.
The criminal damaging or endangering count pertained to appellant’s
conduct of destroying the son’s cell phone that I.D. paid for. The phone was an LG
Aristo smart phone.
An order of restitution is generally reviewed for an abuse of discretion.
State v. Santorella, 8th Dist. Cuyahoga No. 105475, 2018-Ohio-274, ¶ 27. Where an
appellant fails to object to the order of restitution or the amount of restitution,
however, the appellant waives all but plain error. State v. McLaurin, 8th Dist.
Cuyahoga No. 103068, 2016-Ohio-933, ¶ 10.
Under Crim.R. 52(B), plain error affecting substantial rights may be
noticed even though it was not brought to the court’s attention. Id. at ¶ 11.
“[A]ppellate courts are to notice plain error only in ‘exceptional circumstances’ in
order to prevent ‘a manifest miscarriage of justice.’” State v. Keslar, 8th Dist.
Cuyahoga No. 107088, 2019-Ohio-540, ¶ 21, quoting State v. Long, 53 Ohio St.2d
91, 95, 372 N.E.2d 804 (1978).
In the instant matter, neither appellant nor defense counsel objected
to the trial court’s restitution order. Accordingly, appellant has waived all but plain
error.
R.C. 2929.18, governing payment of restitution, provides, in relevant
part,
(A)(1) Restitution by the offender to the victim of the offender’s crime
or any survivor of the victim, in an amount based on the victim’s
economic loss. * * * If the court imposes restitution, at sentencing, the
court shall determine the amount of restitution to be made by the
offender. If the court imposes restitution, the court may base the
amount of restitution it orders on an amount recommended by the
victim, the offender, a presentence investigation report, estimates or
receipts indicating the cost of repairing or replacing property, and
other information, provided that the amount the court orders as
restitution shall not exceed the amount of the economic loss suffered
by the victim as a direct and proximate result of the commission of the
offense.
(Emphasis added.)
Before imposing an order of restitution, a sentencing court must
determine that “‘the amount of restitution bears a reasonable relationship to the loss
suffered.’” McLaurin, 8th Dist. Cuyahoga No. 103068, 2016-Ohio-933, at ¶ 13,
quoting State v. Borders, 12th Dist. Clermont No. CA2004-12-101, 2005-Ohio-
4339, ¶ 36. The amount of restitution must be determinable to a reasonable degree
of certainty and supported by competent, credible evidence. Id., citing State v.
Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990).
In the instant matter, I.D. testified at trial that the son had an “LG
Aristo” cell phone from T-Mobile. I.D. paid for the phone at the time of the incident.
When asked about the value of the phone, I.D. testified, “[w]ith all the accessories
and everything I had on it and stuff I bought for him, it was like $400, three, $400.”
(Tr. 13.)
During the sentencing hearing, the trial court inquired about the
phone’s value. The prosecutor asserted that the phone was “purported to be $400.”
(Tr. 3.) The prosecutor explained that she did not have a receipt for the phone. After
learning about the specific phone that was destroyed, the trial court stated, “I just
bought one of those for my step grandson this summer. I know what they cost,
unfortunately.” (Tr. 4.)
After reviewing the record, we find no error, plain or otherwise, with
respect to the trial court’s restitution order. The trial court did not commit plain
error in determining the amount of restitution based on the victim’s testimony that
the phone’s estimated value was $400, and the prosecutor’s assertion that the phone
had an approximate value of $400. Furthermore, the trial court was familiar with
the cost of the specific phone that was destroyed based on its firsthand, personal
experience of purchasing the phone for a relative. Contrary to appellant’s assertion,
the amount of the phone was not required to be established with absolute certainty
by documentary evidence or a receipt.
Based on the foregoing analysis, appellant’s fifth assignment of error
is overruled.
III. Conclusion
After thoroughly reviewing the record, we affirm the trial court’s
judgment. Appellant’s endangering children conviction was not void for lack of
jurisdiction. The trial court did not err or violate appellant’s confrontation rights by
permitting I.D. to testify about the statements her son made following the
altercation. Appellant’s convictions were supported by sufficient evidence and are
not against the manifest weight of the evidence. The trial court did not commit plain
error in ordering appellant to pay $400 in restitution to I.D. for damaging the son’s
cell phone.
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
Cleveland Municipal Court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending 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 D. CELEBREZZE, JR., JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY