State v. Durbin , 2013 Ohio 5147 ( 2013 )

[Cite as State v. Durbin, 2013-Ohio-5147.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13 CA 2
WAYNE A. DURBIN
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case Nos. CRB 1200226; CRB 1200265
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEVE KNOWLING DAVID M. HUNTER
PROSECUTING ATTORNEY 244 West Main Street
CHRISTINE C. WILLIAMS Loudonville, Ohio 44842
ASSISTANT PROSECUTOR
164 East Jackson Street
Millersburg, Ohio 44654
Holmes County, Case No. 13 CA 2 2
Wise, J.
{¶1} Appellant Wayne A. Durbin appeals from his misdemeanor conviction for
child endangering in the Municipal Court of Holmes County. The relevant facts leading
to this appeal are as follows.
{¶2} Appellant is the father of four children, and, at the times relevant to this
case, was the residential parent of three of them: son D.D., daughter A.D., and son T.D.
On the evening of May 26, 2012, appellant was at his home in Holmes County, Ohio
with these three children. Appellant wanted everyone to come outside for a bonfire, but
D.D. wanted to stay inside and play video games. An argument and physical altercation
ensued, resulting in D.D. receiving a bloody nose and A.D. being pushed onto the
couch by appellant. The children eventually called their mother, Robin K., and law
enforcement was contacted.
{¶3} By about 11:30 PM, Holmes County Sheriff Deputy Mike Myers and
Sergeant Wade Johnson had arrived at appellant’s residence. Based on their
investigation, appellant was arrested and charged with domestic violence (R.C.
2919.25(A)) and child endangering (R.C. 2919.22(A)), both first-degree misdemeanors.
Appellant entered pleas of not guilty to both charges.
{¶4} Prior to the commencement of trial, appellant filed, inter alia, a request for
jury instructions as to self-defense and parental discipline.
{¶5} The trial began on February 5, 2013. At the end of the State's case,
appellant moved to dismiss the matter pursuant to Crim.R. 29, which was overruled. Tr.
at 149. Appellant renewed the motion to dismiss at the close of the defense case. Said
motion was also overruled. Tr. at 187.
Holmes County, Case No. 13 CA 2 3
{¶6} After closing argument, the judge gave her instructions to the jury. Tr. at
202-208. Appellant was thereafter found guilty by the jury of child endangering, but not
guilty of domestic violence. The court thereupon sentenced appellant to 180 days in jail,
with 150 days suspended, and a fine of $250.00.
{¶7} Appellant filed a notice of appeal on March 6, 2013. He herein raises the
following four Assignments of Error:
{¶8} “I. THE TRIAL COURT ERRED IN NOT GIVING COMPLETE JURY
INSTRUCTIONS AS TO ALL ELEMENTS OF THE OFFENSE OF ENDANGERING
CHILDREN.
{¶9} “II. THE TRIAL COURT ERRED IN NOT GIVING INSTRUCTIONS AS TO
SELF-DEFENSE AND REASONABLE PARENTAL DISCIPLINE AS REQUESTED BY
DEFENDANT-APPELLANT.
{¶10} “III. THE CONVICTION FOR ENDANGERING CHILDREN, IN VIOLATION
OF OHIO REVISED CODE SECTION 2919.22(A), A MISDEMEANOR OF THE FIRST
DEGREE, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶11} “IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION
TO DISMISS UNDER CRIM.R. 29(A) AT THE CLOSE OF ALL EVIDENCE.”
I.
{¶12} In his First Assignment of Error, appellant contends the trial court erred
giving its instructions to the jury concerning the offense of child endangering. We
disagree.
Holmes County, Case No. 13 CA 2 4
{¶13} In the case sub judice, although appellant filed a pre-trial request for jury
instructions, he did not object to the specifics of the pertinent jury instructions regarding
child endangering. (See Tr. at 208.) An error not raised in the trial court must be plain
error for an appellate court to reverse. State v. Long (1978), 53 Ohio St. 2d 91, 372
N.E.2d 804; Crim.R. 52(B). In order to find plain error under Crim.R. 52(B), it must be
determined, but for the error, the outcome of the trial clearly would have been
otherwise. Long, supra, paragraph two of the syllabus. In State v. Cooperrider (1983), 4
Ohio St. 3d 226, 448 N.E.2d 452, the Ohio Supreme Court applied Long and the plain
error doctrine in the context of an allegedly erroneous jury instruction. The Court added
that “*** the plain error rule is to be applied with utmost caution and invoked only under
exceptional circumstances, in order to prevent a manifest miscarriage of justice.” Id. at
227, 372 N.E.2d 804. Finally, “a single jury instruction should not be judged in isolation
but, instead, must be considered in the context of the overall charge.” State v. Schlee,
Lake App.No. 2004–L–070, 2005-Ohio-5117, ¶ 32 (additional citations omitted).
{¶14} The child endangering statute at the center of this issue, R.C. 2919.22(A),
reads in pertinent part as follows: “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. ***.”
{¶15} Although not stated in R.C. 2919.22, recklessness is the culpable mental
state for the crime of child endangering. State v. Colopy, Knox App.No. 2011–CA–3,
Holmes County, Case No. 13 CA 2 5
2011-Ohio-6120, ¶ 34, citing State v. O'Brien (1987), 30 Ohio St. 3d 122, 508 N.E.2d
144 (additional citation omitted).
{¶16} The pertinent definition of “recklessness” is found in R.C. 2901.22(C),
which states:
{¶17} “(C) 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. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences, he perversely
disregards a known risk that such circumstances are likely to exist.”
{¶18} Appellant herein asserts that the trial court did not reference the
“recklessness” and “substantial risk” factors in instructing the jury on the child
endangering charge. See Appellant’s Brief at 8. The court's instruction, which includes
language from the Ohio Jury Instructions § 519.22, was as follows:
{¶19} "The defendant is charged with endangering children. Before you can find
the defendant guilty, you must find beyond a reasonable doubt that on or about the 26th
day of May of 2012 and in Holmes County, the defendant being the parent of the child
created a substantial risk either to the health or safety of that child by violating the duty
of care, protection or support or by recklessly administrating corporal punishment when
the punishment or discipline was excessive under the circumstances and created a
substantial risk of serious physical harm to the child."
{¶20} Tr. at 203.
{¶21} Upon review, we find no plain error under the circumstances of the case
sub judice for want of further instructions to the jury on the offense of child endangering.
Holmes County, Case No. 13 CA 2 6
{¶22} Appellant’s First Assignment of Error is therefore overruled.
II.
{¶23} In his Second Assignment of Error, appellant contends the trial court erred
in declining to give a “reasonable parental discipline” instruction to the jury.1 We
disagree.
{¶24} Our standard for appellate review of jury instructions is whether the trial
court's decision on giving a requested instruction constituted an abuse of discretion
under the facts and circumstances of the case. See State v. DeMastry, 155 Ohio
App.3d 110, 799 N.E.2d 229, 2003–Ohio–5588, ¶ 72, citing State v. Wolons (1989), 44
Ohio St. 3d 64, 68, 541 N.E.2d 443. In addition, because the failure to properly instruct
the jury is not in most instances structural error, the harmless-error rule of Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, applies to a failure to properly
instruct the jury, for it does not necessarily render a trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence. State v. Bleigh, Delaware App.No.
09–CAA–03–0031, 2010-Ohio-1182, ¶ 119, citing Neder v. United States (1999), 527
U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35.
{¶25} Appellant urges that his child endangering charge, which stemmed from
his actions of shoving his daughter, A.D., into the couch as he engaged in the
altercation with D.D., could have been interpreted by the jury as a reasonable measure
to discipline A.D. for interfering with his duty to properly control D.D. at that moment. In
Ohio, “[w]here an alleged incident of domestic violence occurs between a parent and
child, the parent may raise parental discipline as an affirmative defense.” State v. Luke,
1
The text of appellant’s argument in his brief does not revisit the issue of the requested
self-defense instruction.
Holmes County, Case No. 13 CA 2 7
Union App.No. 14-10-26, 2011-Ohio-4330, ¶ 21, citing State v. Suchomski (1991), 58
Ohio St. 3d 74, 75; State v. Hauenstein (1997), 121 Ohio App. 3d 511, 516.
{¶26} Whether parental discipline is “extreme or excessive” is determined in light
of the totality of the circumstances. Id., citing State v. Hart (1996), 110 Ohio App. 3d 250,
256. “In analyzing the totality of the circumstances, a court should consider the following
factors: (1) the child's age; (2) the child's behavior leading up to the discipline; (3) the
child's response to prior non-corporal punishment; (4) the location and severity of the
punishment; and (5) the parent's state of mind while administering the punishment.”
Luke at ¶ 22, citing In re J.L., 176 Ohio App. 3d 186, 199, 2008–Ohio–1488, ¶ 35, citing
Hart, supra; State v. Jones (2000), 140 Ohio App. 3d 422, 430.
{¶27} In the case sub judice, the evidence indicates that A.D. was trying to de-
escalate the altercation between her father and brother when appellant shoved her to
the point that the couch nearly overturned when she was forced into it. See Tr. at 54-55,
65-69, 81-101. Upon review of the record, we are unpersuaded that the trial court’s
refusal to give a parental discipline instruction at the request of defense counsel was
unreasonable, arbitrary, or unconscionable.
{¶28} Appellant’s Second Assignment of Error is therefore overruled.
IV.
{¶29} We will address the remainder of appellant’s arguments out of sequence.
In his Fourth Assignment of Error, appellant contends the trial court erred in denying his
motion for acquittal under Crim.R. 29. We disagree.
{¶30} An appellate court reviews a trial court's denial of a Crim.R. 29 motion for
acquittal using the same standard used for reviewing a sufficiency of the evidence
Holmes County, Case No. 13 CA 2 8
claim. State v. Barron, 5th Dist. Perry No. 05 CA 4, 2005–Ohio–6108, ¶ 38. In reviewing
a claim based on the sufficiency of the evidence, “[t]he 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. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the
syllabus.
{¶31} Appellant in the case sub judice was convicted of misdemeanor child
endangering. R.C. 2919.22(A), reads in pertinent part as follows: “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. ***.”
{¶32} Appellant specifically maintains that the State failed to prove that appellant
created a substantial risk to the health or safety of A.D. and that he violated a duty of
care. Appellant's Brief at 14. For purposes of child endangering cases, a “substantial
risk” is defined in R.C. 2901.01(A)(8) as “a strong possibility, as contrasted with a
remote or significant possibility, that a certain result may occur or that certain
circumstances may exist.” See State v. G.G., 10th Dist. Franklin No. 12AP-188, 2012-
Ohio-5902, ¶ 8.
{¶33} The trial transcript sets forth A.D.’s recollection of the events that occurred
after she observed appellant slap her brother, D.D.:
{¶34} “Prosecutor: Ok, and after the slap happen (sic) what happen (sic) next?
Holmes County, Case No. 13 CA 2 9
{¶35} “A.D: Well, he, my dad left the room, then he came back and they got into
it again and I got in the middle of them and my dad pushed me into the couch.
{¶36} “Prosecutor: What kind of push was it?
{¶37} “A.D: A hard push.
{¶38} “Prosecutor: Did it hurt?
{¶39} “A.D: Yeah, kind of.
{¶40} “Prosecutor: And did you fall over on the couch?
{¶41} “A.D: No, the couch, yeah, I fell over on the couch and the couch leaned
and it almost fell over.
{¶42} “Prosecutor: Did the couch almost fall on top of you?
{¶43} “A.D: No, it fell backwards.
{¶44} “Prosecutor: Ok, it fell backwards, ok. ***.”
{¶45} Tr. at 54-55.
{¶46} On cross-examination, A.D. added that appellant “liked [sic] pulled my
shirt and pushed me” and agreed that “the entire couch lifted up and then dropped back
down.” Tr. at 68-69.
{¶47} Upon review, we hold rational triers of fact could have found, beyond a
reasonable doubt, that appellant recklessly created a substantial risk to A.D.’s health or
safety for purposes of R.C. 2919.22(A). We recognize that R.C. 2919.22(A) is generally
aimed at preventing acts of omission or neglect. See Colopy, supra, at ¶ 31, citing State
v. Sammons (1979), 58 Ohio St. 2d 460. However, we find the State can, and in this
case did, sufficiently demonstrate a violation of the defendant’s duty of care in the
context of child endangering where the defendant is the actual perpetrator of physical
Holmes County, Case No. 13 CA 2 10
violence against the child victim. Cf. State v. Cruz, 9th Dist. Lorain No. 99CA007411,
2000 WL 1026694 (child endangering conviction supported by sufficient evidence as a
matter of law where the caretaker of an infant child violated his duty of care by violently
shaking her). We therefore hold appellant's conviction for child endangering was
supported by sufficient evidence, and the motion for acquittal under Crim.R. 29 was
properly denied.
{¶48} Appellant's Fourth Assignment of Error is overruled.
III.
{¶49} In his Third Assignment of Error, appellant argues his conviction for child
endangering was against the manifest weight of the evidence. We disagree.
{¶50} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, 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 be reversed
and a new trial ordered.” State v. Martin (1983), 20 Ohio App. 3d 172, 175, 485 N.E.2d
717. See also, State v. Thompkins (1997), 78 Ohio St. 3d 380, 678 N.E.2d 541. The
granting of a new trial “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶51} As an initial matter, we note appellant briefly points out that the child
endangering victim was identified in the complaint merely by date of birth, and that there
was a dearth of evidence at trial as to which child had that particular birthday. The jury
foreperson apparently raised a question in this regard during deliberations, which was
Holmes County, Case No. 13 CA 2 11
presented to the trial court judge. See Tr. at 212. However, the trial transcript indicates
that all three children testified concerning their respective ages. See Tr. at 51, 77, 151.
We are unpersuaded that any questions surrounding the age or identity of A.D. warrant
reversal of the child endangering conviction.
{¶52} Appellant next essentially argues that based on the evidence the jury
should have inferred that appellant was either legitimately disciplining A.D. for
interfering with his disciplining of D.D. or else that appellant was trying to protectively
keep her out of the middle of his confrontation with D.D. We note appellant testified that
he has a weak arm, i.e., that “half my muscle is gone in my arm.” Tr. at 163. He
maintained that he used his weak arm to push A.D. and thus could “barely push her that
hard.” Id. Appellant added: “I was trying to get her off of me, as she *** had her arms
wrapped around me.” Tr. at 164. D.D.’s testimony also supports appellant’s claim that
he pushed A.D. with one arm. See Tr. at 95.
{¶53} Nonetheless, upon review of the eight witnesses’ testimony at trial,
including that of appellant and all three children, we are unpersuaded the jury lost its
way in assessing the evidence in this case. The jurors, as the firsthand triers of fact,
were patently in the best position to gauge the truth. We hold the jury's decision did not
create a manifest miscarriage of justice requiring that appellant's conviction for child
endangering be reversed and a new trial ordered.
Holmes County, Case No. 13 CA 2 12
{¶54} Appellant's Third Assignment of Error is overruled.
{¶55} For the reasons stated in the foregoing opinion, the judgment of the
Municipal Court of Holmes County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. CRAIG R. BALDWIN
JWW/d 1031
Holmes County, Case No. 13 CA 2 13
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WAYNE A. DURBIN :
:
Defendant-Appellee : Case No. 13 CA 2
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Holmes County, Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. CRAIG R. BALDWIN