State v. Klofta , 2020 Ohio 5032 ( 2020 )

[Cite as State v. Klofta, 2020-Ohio-5032.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28690
:
v. : Trial Court Case No. 2018-CR-3269
:
HOLLY L. KLOFTA : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 23rd day of October, 2020.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JOHN A. FISCHER, Atty. Reg. No. 0068346, 70 Birch Alley, Suite 240, Dayton, Ohio
45440
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Holly L. Klofta appeals from her conviction, following a jury trial, on one
count of endangering children, in violation of R.C. 2921.22(A), a felony of the fourth
degree due to a prior conviction. The court imposed a sentence of 18 months. We
hereby affirm the judgment of the trial court.
{¶ 2} Klofta was indicted on July 18, 2019, and she pled not guilty. On September
11, 2019, she filed a motion to suppress statements made to the police, which the court
overruled after a hearing. Trial commenced on November 4, 2019.
{¶ 3} At trial, the victim, E.S., then age 10, testified that she used to live with Klofta
and “Mike,” her “dad.” She recounted an incident at their home where in which Klofta
“tased” E.S. in the living room. E.S. testified that, earlier in the day, she and a friend had
been loud in the car while Klofta was on the phone; as a result, Klofta made E.S. perform
a “lean and rest” as a form of punishment when they arrived home. According to E.S., a
“lean and rest” meant that she got “into a push-up position” and had to stay there until her
“arms hurt.” E.S. stated that Klofta had said, “stop crying and I won’t tase you.”
Nonetheless, Klofta tased E.S. on her “butt.” E.S. testified that “[i]t hurt” and felt “like a
hornet’s sting” for “a few minutes.” E.S. stated that the Taser left marks on her skin, and
she identified photos of her injury. E.S. also identified a photograph of the Taser and
stated that Klofta sometimes kept it in her bra. E.S. testified that Klofta had never used
the Taser on her before, but that she had previously shown it to her and turned it in on in
her presence.
{¶ 4} On cross-examination, E.S. testified that Klofta took care of four other
children in her home who did not reside there; three of them were younger than E.S., and
one was older. She stated that Klofta used spanking and sitting in the corner as
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punishments. E.S. also stated that she had been made to perform the “lean and rest”
two or three other times prior to the tasing incident. In the course of the latest “lean and
rest,” E.S. testified that she “didn’t want to get tased, so I tried to stop crying. But then I
kept on crying because I couldn’t stop.” She testified that she had been stung by a wasp
when she was in kindergarten, and the Taser felt “just like that.” E.S. acknowledged that
she did not actually see Klofta touch her with the Taser. E.S. testified that the Taser was
the size of a “full-size Hershey bar” and pink, it made “like a firecracker sound” when it
was turned on, and it made her “jump a little.” According to E.S., the “tasement (sic) was
punishment because I was just like, begging her to let me rest, and then I couldn’t stop
crying.”
{¶ 5} E.S. testified that she did not tell Mike that she had been tased because she
“thought he already knew.” When asked if Klofta or Mike ever came to her and asked
how she felt or if she was suffering any pain after being tased, E.S. responded, “No.”
E.S. testified that she remained in Klofta’s home for about seven days before she saw
her mother at her mother’s home in Lewisburg; E.S. told her mother about the tasing the
next morning after she got home. E.S. stated that her mother took her to the police
station, and an officer photographed the injury.
{¶ 6} E.S.’s mother (“Mother”) testified that she used to be married to Mike, and
that after they divorced, Mike married Klofta. Mother testified that Mike was not E.S.’s
biological father, but that he raised her as his own child. She stated that E.S. went to
live with Mike and Klofta because she was having “some educational issues at our home
school in Lewisburg.” Mother testified that, in August 2018, E.S. came home and
reported something that resulted in Mother contacting the police. Mother testified that
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she had photographed marks on E.S.’s “left butt cheek,” and she identified the photos
that she had taken.
{¶ 7} On cross-examination, when asked why she initially contacted law
enforcement and not the hospital upon learning of E.S.’s injury, Mother explained that
“the marks were there,” but E.S. was not complaining of being in pain, and Mother did not
think she needed medical attention. Mother testified that she took the photos of the injury
on August 14, 2018.
{¶ 8} Detective Elizabeth Alley testified that she was employed in the special
victims unit of the Dayton Police Department, and that she was stationed at Care House,
having been assigned there for seven years and employed by the department for 13
years. Alley testified that she investigated physical and sexual abuse against children,
and she was assigned to investigate Mother’s complaint about E.S. Alley spoke to
Mother and E.S., and she observed the injury on E.S.’s “lower left butt cheek.” Alley
testified that she was present when an evidence crew photographed the injury, and she
identified the photos, which include her hand holding a ruler.
{¶ 9} Alley testified that she and another detective subsequently met with Klofta at
her home. She testified that Klofta gave them consent to search the home, which
allowed them to take photographs and to collect any evidence that was relevant to the
case. Alley testified that the Taser was found in a kitchen cabinet, and she identified a
photo of it on the cabinet shelf.
{¶ 10} Alley testified that Klofta was transported to the Safety Building and was
read her rights; Klofta agreed to speak to Alley and another detective. During the
interview, Klofta corroborated that E.S. got into to trouble and was made to perform a
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“lean and rest,” but she did not admit that she tased E.S. Alley testified that Klofta said
that E.S. “was crying out of control. She was not able to contain or control her anger at
that time or her crying at that time.” Klofta told Alley that she bought the Taser at a flea
market; she also “corroborated” that she kept the Taser in her bra sometimes or in the
kitchen cabinet. Alley testified that Klofta told her that E.S. sometimes had “a problem
with lying.” Alley also testified that Klofta had a prior conviction for child endangering
“out of [the] Xenia Police Department” in 2003. Alley identified a certified judgment entry
of conviction for that conviction.
{¶ 11} Alley explained the difference between a stun gun and a Taser, and she
indicated that Klofta’s device was actually a stun gun. She testified that she was present
when the stun gun was tested on Detective Joshua Spears’ bicep, over his shirt, and she
identified photos of Spear’s bicep after the gun was employed, with a ruler next to the
marks it left. On cross-examination, Alley testified that “it was kind of scary” when Spears
was tased; when asked about his reaction, she replied, “Shocked. Scared.”
{¶ 12} On redirect examination, Alley testified that the purpose of using the stun
gun on Spears was to determine the distance between the probes when someone was
actually stunned with it. She further testified that the distance between the probes as
evidenced on Det. Spears’ arm was consistent with the distance between the marks on
E.S.’s “bottom.”
{¶ 13} At the conclusion of the evidence, Klofta moved for a judgment of acquittal,
asserting that the State had failed to prove beyond a reasonable doubt that Klofta had
“failed to do something that she [was] supposed to do as the caretaker or custodian of
the child.” Counsel directed the court’s attention to State v. Kamel, 12 Ohio St.3d 306,
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466 N.E.2d 860 (1984), which discussed acts of omission versus acts of commission, and
argued that “there was nothing that [Klofta] was accused of not doing that contributed to
* * * a substantial risk to the child’s health or safety. The healing process of the marks
on the child happened naturally.”
{¶ 14} In overruling the motion for a judgment of acquittal, the trial court relied on
State v. Gaver, 5th Dist. Stark No. 2015CA00204, 2016-Ohio-7055, which discusses R.C.
2919.22(A) and (B). R.C. 2919.22(A) prohibits “creat[ing] a substantial risk to the health
or safety of the child, by violating a duty of care, protection, or support * * *,” and R.C.
2919.22(B) prohibits, among other things, “abus[ing]” a child or “[a]dminister[ing] corporal
punishment or other physical disciplinary measure * * * which punishment * * * is
excessive under the circumstances and creates a substantial risk of serious physical
harm to the child.” The trial court agreed with defense counsel that subsection (A) deals
with an act of omission, but also indicated that subsections (A) and (B) are “not mutually
exclusive,” and that an omission could be the failure to protect a child from one’s own
actions. The court concluded that Gaver was “very similar” to this case, although it did
not involve a Taser, because the defendant was found to have failed to protect the child
from her own abuse. The court characterized the State’s theory of the case as being
that Klofta “failed to protect the child from being tased.”
{¶ 15} The jury found Klofta guilty of child endangering, as discussed above.
{¶ 16} Klofta asserts two assignments of error on appeal, which we will consider
together:
THE TRIAL COURT ERRED BY DENYING MS. KLOFTA’S RULE
29 MOTION FOR ACQUITTAL.
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THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 17} In her first assignment of error, Klofta asserts that the jury improperly
convicted her because there was no evidence that she violated a duty of care, protection,
or support that created a substantial risk to the health or safety of E.S. Klofta asserts
that the State charged her under R.C. 2919.22(A), but it presented evidence attempting
to show that she disciplined the child excessively as prohibited by R.C. 2919.22(B)(3).
Klofta asserts that the “trial court erred when it permitted the jury to consider the case”
under a theory that was different from “the crime for which she was indicted,” and that the
State “cannot now correct its failure to indict [her] under the proper section of the criminal
code.”
{¶ 18} Klofta further argues that the evidence was insufficient to show that she
committed a crime of omission pursuant to R.C. 2919.22(A). According to Klofta,
evidence “tending to prove a violation of Section 2919.22(B) cannot constitute evidence
of a violation of Section 2919.22(A)”; she relies on Kamel, 12 Ohio St.3d 306, 466 N.E.2d
860, as she did in the trial court. She argues that “an act of omission – like failing to seek
medical attention” -- falls under R.C. 2919.22(A), whereas “[a]ffirmative acts (acts of
commission) – like the excessive disciplinary measures” she was alleged to have
committed, fall under R.C. 2919.22(B).
{¶ 19} Klofta further asserts that Cleveland v. Calhoun, 8th Dist. Cuyahoga No.
105521, 2018-Ohio-1758, which discusses distinctions between the subsections of the
child endangering statute, “is dispositive of this case.” Klofta also argues that she “did
not neglect any duty that she owed to the child.” Klofta asserts that, if this Court “accepts
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the trial court’s reasoning that affirmative acts of excessive discipline are cognizable
under Section 2919.22(A), then an indictment under Section 2919.22(B) would never be
necessary and Section (B) becomes superfluous.”
{¶ 20} In her second assignment of error, Klofta asserts that the jury clearly lost its
way in finding that [she] committed a violation of R.C. 2919.22(A). She points out that
E.S. testified that the level of pain from the tasing “was merely that of a wasp sting,” that
it lasted “only a few minutes,” and that E.S. “resumed her normal, everyday life” with Klofta
afterward. Klofta argues that, “by permitting the charge to proceed under Section
2919.22(A) instead of Section 2919.22(B)(3), the trial court denied Ms. Klofta her due
process rights * * * because it denied her the opportunity to even inquire into the
excessiveness of the discipline.” Accordingly, Klofta asserts, “trial counsel was forced
to defend against the Section 2919.22(A) charge with the only defense available to her –
by claiming that Ms. Klofta was not the person who committed the act – a ridiculous
assertion given the facts of the case.”
{¶ 21} The State responds that Klofta “failed to protect E.S. from her own abuse”
and further violated her duty of care to E.S. because she never inquired about E.S.’s
condition or pain after tasing her. According to the State, it presented sufficient evidence
that Klofta recklessly created a substantial risk of harm to E.S.’s health or safety by tasing
her and violated the duty of care or protection she owed to E.S. The State asserts that,
at trial, its position was that Klofta failed to protect E.S. from Klofta’s own abuse, which
constituted an act of omission under R.C. 2912.22(A). Finally, the State asserts that
Klofta’s due process argument is not properly before this Court because it was not raised
in the trial court.
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{¶ 22} In reply, Klofta asserts that the State “concedes that this is an excessive
punishment case,” and that Calhoun, 8th Dist. Cuyahoga No. 105521, 2018-Ohio-1758,
remains dispositive.
{¶ 23} Klofta further argues that Gaver, 5th Dist. Stark No. 2015CA00204, 2016-
Ohio-7055, “does not stand for the proposition that affirmative acts of abuse are
cognizable” under R.C. 2919.22(A). She argues that, if the State’s and the trial court’s
views are accepted, “then Gaver stands for the proposition that a defendant may be
convicted under Section 2919.22(A) for his affirmative acts of abuse while at the same
time be acquitted under Section 2912(B) for his acts of abuse,” an outcome that she
characterizes as “internally inconsistent and irrational.” Klofta argues that R.C.
2919.22(A) “does not apply when a defendant stands accused of committing the act of
abuse herself; rather, it applies only when it is unknown who committed the act of abuse;
in which case Section 2919.22(A) permits a defendant to be convicted for failing to protect
the child from that abuse – [by] whoever * * * inflicted it – which is the classic case of a
neglect of a duty to protect the child.” Conversely, according to Klofta, “when all the
evidence goes to the fact that the defendant herself committed the act of abuse, then only
Section 2919.22(B) can apply - the section that prohibits an affirmative act of abuse
against a child.”
{¶ 24} Klofta argues that, in this case, there “can be no serious argument (and no
jury could find)” that someone other than Klofta inflicted the injury and Klofta failed to
protect the child from that person. Klofta asserts that this Court should not allow her “to
be convicted under Section 2919.22(A) for her affirmative act of discipline.” Klofta also
directs our attention to State v. Sammons, 58 Ohio St.2d 460, 391 N.E.2d 713 (1979),
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which held that an affirmative act of abuse is an element of R.C. 2919.22(B).
{¶ 25} As this Court has previously noted:
An appellate court reviews a trial court's ruling on a motion under
Crim.R. 29 by the same standard applicable to a claim based on the
sufficiency of the evidence. State v. Scott, 2018-Ohio-198, 104 N.E.3d
143, ¶ 37 (2d Dist.), citing State v. Bailey, 2d Dist. Montgomery No. 27177,
2017-Ohio-2679, ¶ 17. Sufficiency of the evidence “is the legal standard
applied to determine whether * * * the evidence [in a given case] is
[adequate] as a matter of law to support the jury['s] verdict.” State v. Smith,
80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a challenge
to a conviction based upon the sufficiency of the evidence, 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.’ ” Id., quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two
of the syllabus.
In a challenge based on the weight of the evidence, an appellate
court must review the 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
a manifest miscarriage of justice warranting reversal and a new trial.
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin, 20
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Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist.
Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A trial court's “judgment
should be reversed as being against the manifest weight of the evidence
‘only in the exceptional case in which the evidence weighs heavily against
the conviction.’ ” Hill, 2013-Ohio-717, 2013 WL 784643, ¶ 8, quoting
Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
Because “a finding that a conviction is supported by the manifest
weight of the evidence necessarily includes a finding of sufficiency,” a
determination that a conviction is supported by the manifest weight of the
evidence is also dispositive of the issue of sufficiency. (Citation omitted.)
State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, 2011
WL 2536451, ¶ 11; State v. Miller, 2d Dist. Montgomery No. 25504, 2013-
Ohio-5621, ¶ 48, citing McCrary, 2011-Ohio-3161, ¶ 11.
State v. Mattox, 2018-Ohio-992, 108 N.E.3d 1139, ¶ 23-24 (2d Dist.).
{¶ 26} R.C. 2919.22 provides:
(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 * * * shall create a substantial risk to the health or safety of the child,
by violating a duty of care, protection, or support. * * *
(B) 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:
***
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(3) Administer corporal punishment or other physical disciplinary
measure, or physically restrain the child in a cruel manner or for a prolonged
period, which punishment, discipline, or restraint is excessive under the
circumstances and creates a substantial risk of serious physical harm to the
child;
***
(E)(1) Whoever violates this section is guilty of endangering children.
***
R.C. 2919.22(E)(2)(b) further provides that, If the offender previously has been convicted
of an offense under this section or of any offense involving neglect, abandonment,
contributing to the delinquency of, or physical abuse of a child, the offense is a felony of
the fourth degree, subject to certain exceptions.
{¶ 27} The culpable mental state for endangering children is recklessness. State
v. Greenlee, 2d Dist. Montgomery No. 24660, 2012-Ohio-1432, ¶ 11. R.C. 2901.22(C)
provides:
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.
{¶ 28} “ ‘Substantial risk’ means a strong possibility, as contrasted with a remote
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or significant possibility, that a certain result may occur or that certain circumstances may
exist.” R.C. 2901.01(A)(8).
{¶ 29} In Kamel, 12 Ohio St.3d 306, 466 N.E.2d 860, on which Klofta relies, the
Supreme Court of Ohio held:
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.
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 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).
(Footnote omitted.) Id. at 308-09.
{¶ 30} In Calhoun, 8th Dist. Cuyahoga No. 105521, 2018-Ohio-1758, which Klofta
asserts is dispositive, the defendant was charged with violating R.C. 2919.22(A) and (B)
after he grabbed his son’s arm, shook him, removed him from a vehicle, and poked him
in the chest. Id. at ¶ 4. The Eighth District began its analysis, citing Kamel, “by ruling
out a violation of subsection (A).” It noted: “The Ohio Supreme Court has distinguished
between the two types of child endangering by explaining that division (B) deals with
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affirmative acts of physical abuse whereas division (A) is concerned with circumstances
of neglect.” Id. at ¶ 13. The court reversed the defendant’s conviction under subsection
(B), noting that the record reflected “a frustrated and angered parent confronting his child
over a perceived infraction in a manner that was imperfect but ultimately not harmful.”
Id. at ¶ 16.
{¶ 31} In Gaver, 5th Dist. Stark No. 2015CA00204, 2016-Ohio-7055, upon which
the trial court relied, the defendant was charged with two counts of child endangering;
according to the bill of particulars, Count I referenced his abuse of a child, “causing a
subdural hematoma and retinal hemorrhages, serious physical harm,” and Count II
referenced defendant’s “creat[ing] a substantial risk to the health or safety” of the child,
while being the person in loco parentis, by violating a duty of care, protection, or support
to the health or safety of the child, which resulted in serious physical harm. The jury
found Gaver not guilty of Count I and guilty of Count II. Id. at ¶ 50.
{¶ 32} The Fifth District determined as follows:
The difference between Counts I and II can be summarized as
inflicting an abusive injury (section B) versus violating a duty of care (section
A). The former is a more serious offense in degree of penalty than the
latter. We find the verdicts are not inconsistent. The jury could
reasonably have found appellant guilty of violating a duty of care, protection
and support (Count II) but not guilty of committing an abusive act (Count I).
* * * [A]ppellant presents us with no authority in support of his
premise that a conviction pursuant to R.C. 2919.22(A) may only be
supported where a defendant failed to seek medical care for a child.
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Our review of relevant authority convinces us that R.C. 2919.22(A)
addresses a wider category of cases than those described by appellant in
which a defendant fails to promptly seek medical attention for a child under
his or her care. This section may also apply where a defendant has failed
to protect the child from harm inflicted upon the child while in the defendant's
care, even if the jury is not convinced the defendant personally inflicted the
injury. Under R.C. 2919.22(A), appellee was required to prove beyond a
reasonable doubt that (1) appellant was the parent, guardian, custodian,
person having custody or control, or person in loco parentis of [the child],
and (2) appellant recklessly violated a duty of protection, care or support
imposed by law which created a substantial risk to [the child’s] health or
safety. State v. McGee, 79 Ohio St.3d 193, 680 N.E.2d 975 (1997),
syllabus. * * *
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). State v. Kamel, 12 Ohio St.3d 306, 309, 466 N.E.2d 860 (1984).
A parent has a clear duty imposed by law to protect his or her child from
abuse and to care for the child's injuries. See State v. Sammons, 58 Ohio
St 2d 460, 463, 391 N.E.2d 713 (1979), appeal dismissed, 444 U.S. 1008,
100 S.Ct. 655, 62 L.Ed.2d 637 (1980) 1 . It is an offense under R.C.
2919.22(A) when one fails, without excuse, to act in discharge of one's duty
1
In Sammons, the defendant took no action when his wife burned their children with hot
scissors, and he then failed to seek medical care for their injuries. Id.-16-
to protect one's child, where the result is a substantial risk to the child's
health or safety. Kamel, * * * 12 Ohio St.3d at 309.
Appellant does not contest the jury's findings that he was the person
having custody or control of [the child] or that [the child] sustained serious
physical harm. He argues simply that appellee presented no evidence that
he breached a duty of care to [the child]. We find sufficient credible
evidence appellant breached his duty to protect [the child]. According to
appellee's evidence, [the child] was a healthy two-year-old at the time he
was entrusted to appellant's care, although he had some developmental
delays. [The child’s] doctors agreed he suffered one or more significant
blunt force traumas to his head with a violent shaking or rotational
component, resulting in injuries characteristic of inflicted head injury:
significant subdural hematoma and retinal hemorrhages in both eyes.
While in appellant's care, [the child] first exhibited symptoms of the injuries,
including lethargy, an apparent seizure, and collapse. Appellee's expert
opined the injuries did not result from an accident or other non-accidental
cause; [the treating physician] unequivocally testified the injury resulted
from an act of abuse.
Based on the evidence, the jury could have reasonably inferred
appellant recklessly failed to protect [the child] from serious physical harm
while he was in his care. Ample evidence was presented to allow the jury
to rationally find [the child’s] injuries occurred as the result of an intentional
infliction of a significant force. The jury could further rationally infer that
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appellant, as the sole caregiver at the time [the child] became symptomatic,
was the person responsible for [the child’s] injuries, and that appellant either
inflicted the injury to [the child’s] head himself or failed to protect him from
such injury. See, State v. Brooks, 10th Dist. Franklin No. 00AP–1440,
2001 WL 1117464, unreported (Sept. 25, 2001). 2 The jury accordingly
could have concluded appellant recklessly violated a duty of care to prevent
serious harm to [the child] during the time he was in defendant's sole care.
Id. Construed in favor of appellee, the evidence was sufficient to allow the
jury to find beyond a reasonable doubt that defendant violated R.C.
2919.22(A).
(Footnote added.) Id. at ¶ 52-57.
{¶ 33} The following was significant to the Gaver court:
Appellant offers no authority that a conviction pursuant to R.C.
2919.22(A) is not supported in a case in which the state's theory is the
child's injuries resulted from violent forceful trauma while in the defendant's
care. The case law we have reviewed indicates that R.C. 2919.22(A)
applies when a child is injured while in a defendant's care, rising to the level
of an inexcusable failure to act in discharge of a duty to protect a child. See,
2
Brooks was convicted of violating R.C. 2919.22(A) and (B), and the Tenth District
concluded that “the jury could have reasonably inferred defendant recklessly abused [the
child] or failed to protect him from serious physical harm while he was in her care. Ample
evidence was presented to allow the jury to rationally find [the child’s] injuries,
characteristic of shaken baby syndrome, occurred as the result of an intentional infliction
of a significant force. The jury could further rationally infer that defendant, as the sole
caregiver at the time [the child] became symptomatic, was the person responsible for [the
child’s] injuries, and that defendant either inflicted the injury herself * * * or failed to protect
[the child] from such injury.” Brooks at *6.
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e.g., State v. Humphries, 5th Dist. Stark No. 06CA00156, 2008-Ohio-388[significant circumstantial evidence established child suffered from shaken
baby syndrome; defendant failed to provide a reasonable explanation for
child's injuries; defendant exhibited suspicious behavior both on the day
child was admitted to the hospital and in the following days; defendant's
account contained numerous inconsistencies; and expert testified that fall
as described could not have caused the fatal injury, thus medical testimony
and evidence demonstrate appellant created substantial risk of harm
resulting in head injury]; State v. Cruz, 9th Dist. Lorain No. 99CA007411,
2000 WL 1026694, *2 (July 26, 2000) [defendant violated duty of care to
child by shaking her violently]; State v. Calise, 9th Dist. Summit No. 26027,
2012-Ohio-4797, ¶¶ 5-7 [defendant was only adult with child when she
suffered severe brain injuries, extensive expert medical testimony
established injuries were the result of non-accidental trauma, and injuries
could not possibly have occurred from simple fall defendant described];
State v. Swain, 4th Dist. Ross No. 01CA2591, 2002-Ohio-4143 [defendant
burned child's fingers, which he claimed was accidental]; State v. Scott, [3d]
3
In Swain, the defendant was convicted of violating R.C. 2919.22(A) and (B), and the
appellate court concluded that the jury had before it sufficient evidence from which to
conclude, beyond a reasonable doubt, that the defendant had committed the offenses.
With respect to the R.C. 2919.22(A) conviction, the court concluded that the evidence
established that defendant had burned the child’s fingers. Defendant had claimed that he
caused the burns by accident and that no evidence of recklessness existed, but the jury
heard both parties' evidence and arguments and rejected his claim.
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Dist. Hardin No. 6-07-17, 2008-Ohio-86, ¶ 224 [injuries occurred when only
defendant had access to the child; jury could have disbelieved defendant's
explanation based upon expert testimony, and jury could have found
defendant recklessly created a substantial risk of harm to child's health or
safety by swinging him in forceful manner]; State v. Flory, 3d Dist. Van Wert
No. 15-04-18, 2005-Ohio-2251, ¶ 7 [appellee's evidence established
defendant's explanations of accidents did not explain extent of child's
injuries, injuries were consistent with abuse, and reasonable juror could
conclude defendant recklessly created substantial risk to health and safety
of child by violating duty of care].
(Bracketed text sic; footnotes added.) Id. at ¶ 59.
{¶ 34} Having thoroughly reviewed all of the evidence herein, we conclude that
there was sufficient evidence to support Klofta’s conviction, and her conviction was not
against the manifest weight of the evidence. Klofta recklessly violated a duty of care and
thereby created a substantial risk to E.S.’s health and safety, resulting in injury, when she
used a stun gun to discipline E.S., a young child, and failed to attend to an injury that was
visible a week thereafter.5 In other words, Klofta failed to act in discharge of her duty to
4
In Scott, the appellate court held that the “facts as to counts one and two were clear.
[The child] sustained fractures to his collar bone, humerus, and shoulder blade. The
injury occurred during a time when only [defendant] had access to the child. Although
[defendant] had an explanation, which appears to be plausible, for why [the child] had
been favoring his right arm, the jury could have easily disbelieved such theory after
hearing * * * expert testimony and viewing the physical evidence showing [the child’s]
injuries. If the jury believed [the State’s expert], which it apparently did, it could have
easily found that [defendant] had recklessly created a substantial risk of harm to [the
child’s] health or safety by swinging him in such a forceful manner.”
5 See State v. Smith, 11th Dist. Portage No. 2013-P-0083, 2014-Ohio-4300, ¶ 35.
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protect E.S. while the child was in her sole care. As in Gaver, Brooks, Swain, and Scott,
E.S.’s injury was the result of an intentional act, and as Klofta acknowledges in her brief,
any suggestion that it was committed by someone other than Klofta would have been “a
ridiculous assertion given the facts of the case.”
{¶ 35} Finally, we disagree with Klofta’s argument that if excessive discipline is
cognizable under R.C. 2921.11(A), then an indictment under R.C. 2921.11(B) would
never be necessary and R.C. 2921.11(B) would be superfluous. While Klofta asserts
that the State acknowledged that this was “an excessive discipline case” under R.C.
2921.11(B)(3), that subsection requires a finding that the discipline “create[d] a
substantial risk of serious physical harm.”6
{¶ 36} Based upon the foregoing, Klofta’s assigned errors are overruled, and the
judgment of the trial court is affirmed.
............
HALL, J., and WELBAUM, J., concur.
(“Although temporary in nature, the use of a stun gun can cause substantial physical pain.
* * * We note that many courts, as well as legislatures, have deemed it appropriate to
characterize stun guns as dangerous or deadly weapons, possible of inflicting substantial
physical injury.”)
6“ R.C. 2901.01(A)(5) states: ‘Serious physical harm to persons’ means any of the
following: (a) Any mental illness or condition of such gravity as would normally require
hospitalization or prolonged psychiatric treatment; (b) Any physical harm that carries a
substantial risk of death; (c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial incapacity; (d) Any
physical harm that involves some permanent disfigurement or that involves some
temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves any degree of prolonged or
intractable pain.”
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Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
John A. Fischer
Hon. Mary Katherine Huffman