State v. Hrinko , 2017 Ohio 51 ( 2017 )

[Cite as State v. Hrinko, 2017-Ohio-51.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
SARAH HRINKO : Case No. CT2016-0015
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CRB-1501059
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 6, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX DAVID A. SAMS
Prosecuting Attorney Box 40
West Jefferson, Ohio 43162
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney ADAM J. GROSSHANDLER
Muskingum County, Ohio 38 N. 4th
27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43701
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0015 2
Baldwin, J.
{¶1} Defendant-appellant Sarah Hrinko appeals her conviction and sentence
from the Muskingum County Court on one count of child endangering. Plaintiff-appellee
is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 21, 2015, a complaint was filed in the Muskingum County
Court charging appellant with one count of child endangering in violation of R.C.
2919.22(A), a misdemeanor of the first degree. At her arraignment on January 8, 2016,
appellant entered a plea of not guilty to the charge.
{¶3} Thereafter, a bench trial was held on February 22, 2016. At the bench trial,
Detective Gary Hargraves of the Muskingum County Sheriff’s Office testified that he was
on duty on the afternoon of December 19, 2015 in a high crime and narcotics area when
he observed a man going up to the door of an apartment that was known for drug dealing.
He identified the man as Timothy Hrinko and noticed that he had a warrant for his arrest.
{¶4} The Detective testified that Timothy Hrinko was driving a red station wagon
and had been pacing outside the apartment complex for some time while talking on a cell
phone. Detective Hargraves then parked next to the station wagon and discovered that
appellant also was in the vehicle along with the couple’s seven year old child, who was
not in a safety seat. The station wagon contained clothing, blankets and pots and pans.
When Timothy Hrinko was patted down, the Detective discovered two hypodermic
syringes on him that looked like they had recently been used and arrested Timothy Hrinko
on the outstanding warrant.
Muskingum County, Case No. CT2016-0015 3
{¶5} Detective Hargraves testified that he spoke with appellant and learned that
she also had an outstanding warrant. Appellant told him that she and her husband had
been using heroin and that they were in the area to find a place to stay since they had
been living out of their vehicle. Detective Hargraves testified that he observed fresh
injection sites on appellant’s forearms. When asked about the child, he testified that she
did not look malnourished and was wearing clothes. After arresting appellant, the
Detective contacted Children’s Services to take custody of the child.
{¶6} On cross-examination, Detective Hargraves admitted that he had not
personally observed appellant inject heroin or any drug activity. He testified that Timothy
Hrinko went to the apartment of a known heroin dealer.
{¶7} At trial, Timothy Hrinko testified that he went to the apartment to spend the
night after appellant was molested by her grandfather and they had to leave where they
had been staying. He denied being at the apartment to buy heroin and denied ever using
heroin in front of his daughter. On cross-examination, he was unable to remember the
last name of the individual who lived at the specific apartment, but testified that he had
been to the apartment before to purchase heroin. He further denied that appellant had
any idea where they were going. Timothy Hrinko also testified that they were going to
lend their vehicle to the heroin dealer in exchange for a place to stay. He admitted that
both he and his wife had fresh track marks on their arms. When questioned by the trial
court, he testified that both he and appellant had used heroin the day before.
{¶8} At the conclusion of the trial, the trial court found appellant guilty. Appellant
was sentenced to 30 days in jail and placed on 12 months of probation.
{¶9} Appellant now appeals, raising the following assignment of error on appeal:
Muskingum County, Case No. CT2016-0015 4
{¶10} THE CONVICTION FOR CHILD ENDANGERING WAS BASED ON
INSUFFICIENT EVIDENCE AND WAS OTHERWISE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
I
{¶11} Appellant, in her sole assignment of error, argues that her conviction for
child endangering was against the manifest weight and sufficiency of the evidence. We
disagree.
{¶12} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at 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 admitted 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.”
{¶13} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, 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
Muskingum County, Case No. CT2016-0015 5
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶14} Appellant was found guilty of child endangering in violation of R.C.
2919.22(A). Such section states as follows:
(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. It is not a violation of a duty
of care, protection, or support under this division when the parent, guardian,
custodian, or person having custody or control of a child treats the physical
or mental illness or defect of the child by spiritual means through prayer
alone, in accordance with the tenets of a recognized religious body.
{¶15} R.C. 2901.01(A)(8) provides that “’Substantial risk’ means a strong
possibility, as contrasted with a remote or significant possibility, that a certain result may
occur or that certain circumstances may exist.” Although not stated in R.C. § 2919.22,
recklessness is the culpable mental state for the crime of child endangering. State v.
O'Brien, 30 Ohio St.3d 122, 508 N.E.2d 144 (1987); State v. Conley, 5th Dist. Perry App.
No. 03–CA–18, 2005–Ohio–3257 at ¶ 20. Recklessness is defined in R.C. 2901.22(C),
which states as follows:
Muskingum County, Case No. CT2016-0015 6
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk
that the person's conduct is likely to cause a certain result or is likely to be
of a certain nature. A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that such circumstances are
likely to exist.
{¶16} As noted by the trial court at the conclusion of the trial, there was testimony
that both appellant and her husband had recently used heroin and were driving around in
a high-risk drug area shortly thereafter with their child in the vehicle. Both had fresh track
marks on their arms and recently used hypodermic needles were found on Timothy
Hrinko’s person. The couple’s child was not in a safety seat and the couple was going to
lend their vehicle to a drug dealer in order to have a place to stay at a residence where
they had purchased drugs before. Up to that point, they had been living out of their vehicle
in December.
{¶17} Based on the foregoing, we find appellant’s conviction for child endangering
was not against the manifest weight and sufficiency of the evidence. We find that there
was sufficient evidence that appellant recklessly created a substantial risk to her child’s
health and safety by violating a duty of care or protection and that the trial court did not
create a manifest miscarriage of justice by convicting appellant of child endangering.
{¶18} Appellant’s sole assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2016-0015 7
{¶19} Accordingly, the judgment of the Muskingum County Court is affirmed.
By: Baldwin, J.
Farmer, P.J. and
Gwin, J. concur.