Brooklyn v. Perna ( 2012 )

[Cite as Brooklyn v. Perna, 2012-Ohio-265.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96647
CITY OF BROOKLYN
PLAINTIFF-APPELLEE
vs.
ROSARIO PERNA, JR.
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND DISCHARGED
Criminal Appeal from the
Parma Municipal Court
Case No. 10 CRB 04319
BEFORE: E. Gallagher, J., Sweeney, P.J., and Jones, J.
RELEASED AND JOURNALIZED: January 26, 2012
ATTORNEYS FOR APPELLANTS
Gregory S. Costabile
2
Phillip J. Henry
Phillips, Mille & Costabile Co., LPA
7530 Lucerne Drive, Suite 200
Middleburg Hts., Ohio 44130
ATTORNEYS FOR APPELLEE
Hillary Goldberg
Prosecutor, City of Brooklyn
7619 Memphis Avenue
Cleveland, Ohio 44144
EILEEN A. GALLAGHER, J.:
{¶ 1} Rosario Perna appeals from the decision of the trial court, finding him
guilty of one count of domestic violence. Perna argues that the trial court’s decision
was not supported by sufficient evidence. Finding merit to this appeal, we reverse the
judgment of the trial court and vacate Perna’s conviction and sentence.
{¶ 2} On September 25, 2011, Perna spent the day with his 13-year old daughter,
J.P., and her friend, K.C.1 Perna, the non-custodial parent of J.P., took his daughter and
her friend to Ridge Park Square for lunch and shopping. Perna also took the girls to rent
movies for a sleepover at Perna’s house that evening, which was planned only after J.P.’s
mother refused her request to have K.C. sleep over at the mother’s house. This day was
1
The parties are referred to herein by their initials or title in accordance with this court’s
established policy regarding non-disclosure of identities in juvenile cases.
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not a scheduled parenting day for Perna but J.P. asked her mother if she could spend the
day with her father and all parties agreed.
{¶ 3} Prior to sleeping over at her father’s, J.P. indicated her need to go home to
pick up clothing. Upon arriving at her residence, J.P. asked Perna and her friend to wait
outside, as she would only need about five minutes to grab her clothing. Perna ignored
his daughter and both he and K.C. walked into the apartment and waited for J.P. Perna
turned on the television and laid down on the couch while he waited for J.P.
{¶ 4} While he was on the couch, J.P. told her father to turn off the television.
Perna told his daughter not to speak to him in that manner and the two began to argue.
J.P. testified as follows:
Like some parts I remember on what happened and some parts I don’t.
***
I remember him throwing me on the couch telling me to be quiet because I
was screaming.
***
Because I was scared and I wanted him to leave. Tr. 33-34.
{¶ 5} Perna then picked up a laptop computer, which he had purchased for J.P.
and left the apartment. Once outside, Perna called J.P.’s mother, Glenda Wilder, and
told her what happened and asked that she come home. After determining that Glenda
would come home to take care of J.P. and her friend, Perna left.
{¶ 6} Glenda arrived home shortly after Perna departed. She testified that her
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daughter was crying and complaining of pain in her upper right arm. Glenda took J.P.
to Fairview Hospital where she was treated and released that same day for a soft-tissue
injury. Because J.P.’s injury allegedly occurred at the hands of a family member,
hospital staff called the police and, a short time later, Officer Adam McQuaid arrived to
take statements.
{¶ 7} On September 27, 2010, Perna was charged in Parma Municipal Court
with one count of domestic violence in violation of R.C. 2919.25(A). Perna pleaded not
guilty and the case proceeded to a bench trial. The city presented the testimony of
Officer McQuaid, Glenda, J.P., and K.C. At the close of the city’s case, Perna moved
for a judgment of acquittal, which the trial court denied. The defense presented no
witnesses but argued to the court in closing that Perna was merely disciplining his
out-of-control teenager daughter and that his actions did not rise to the level of domestic
violence. The trial court disagreed, and found Perna guilty of domestic violence as
charged.
{¶ 8} The court sentenced Perna to serve 180 days in jail, suspended 85 of those
days and deferred 90 days; fined Perna $1,000, of which $750 was suspended and placed
him under probation supervision for three years.
{¶ 9} Perna appeals, raising the following two assignments of error:
I. The evidence is insufficient to sustain the conviction of domestic
violence.
II. The trial court abused its discretion by denying Appellant’s motion for
acquittal.
5
{¶ 10} Because Perna’s two assignments of error involve the same standard of
review, they will be addressed contemporaneously.
{¶ 11} The standard of review with regard to the sufficiency of the evidence is set
forth in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), as follows:
Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been
proved beyond a reasonable doubt.
{¶ 12} Bridgeman must be interpreted in light of the sufficiency test outlined in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,
in which the Ohio Supreme Court held:
An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
submitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable
doubt. 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. (Citation omitted.)
{¶ 13} The court found Perna guilty of domestic violence, which pursuant to R.C.
2919.25(A), provides as follows:
No person shall knowingly cause or attempt to cause harm to a family or
household member.
{¶ 14} Physical harm is defined by R.C. 2901.01 as “any injury, illness, or other
physiological impairment, regardless of its gravity or duration.”
{¶ 15} The Ohio Supreme Court has recognized that the domestic violence statute
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does not prevent “proper and reasonable parental discipline” of a child. See State v.
Suchomski, 58 Ohio St.3d 74, 75, 567 N.E.2d 1304 (1991); State v. Snyder, 8th Dist. No.
94755, 2011-Ohio-1062, 2011 WL 826292. “Clearly parents are entitled to utilize
disciplinary measures for their children, however, such discipline must not be of such
gravity that it becomes unreasonable in light of the underlying cause.” State v. Ivey, 98
Ohio App.3d 249, 648 N.E.2d 519 (1994). A determination as to whether particular
conduct constitutes proper and reasonable parental discipline must be made from the
totality of the circumstances in the case. Snyder; State v. Adaranijo, 153 Ohio App.3d
266, 792 N.E.2d 1138 (2003).
{¶ 16} In this case, the record reflects that the child was being disciplined by her
father for back-talking. Although the City elicited testimony from J.P. that Perna threw
J.P. down on the couch three to four times, and covered his daughter’s mouth with his
hands, all parties admit that J.P. suffered no bruises or lasting injuries. Additionally,
Perna argued that he warned his daughter that her continued poor behavior would result
in discipline and she chose to ignore him. Perna further argued that he acted only out of
an attempt to control his out-of-control teenage daughter. J.P. suffered a soft-tissue
injury and wore an ace bandage on and off for two weeks after the incident; however,
there was no evidence of substantial harm to the child.
{¶ 17} While we do not condone the use of excessive punishment against any
child, the conduct of Perna did not rise to that level. Thus, in view of the facts and
circumstances in this case, we find there was insufficient evidence for any rational trier
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of fact to conclude Perna’s actions were other than proper and reasonable. Upon our
review, we find the evidence was insufficient to convict Perna of domestic violence.
{¶ 18} Perna’s first and second assignments of error are sustained. We reverse
and vacate his conviction for domestic violence. See Suchomski; Snyder.
{¶ 19} This cause is vacated and appellant is ordered discharged.
It is ordered that appellant recover of said appellee 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
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
LARRY A. JONES, J., CONCUR