State v. Kouame ( 2020 )

[Cite as State v. Kouame, 2020-Ohio-3118.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108559
v. :
GUY C. KOUAME, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 28, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634167-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Anthony T. Miranda and Hannah Smith,
Assistant Prosecuting Attorneys, for appellee.
John F. Corrigan, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant Guy Kouame1 brings the instant appeal
challenging his convictions and the trial court’s sentence for domestic violence and
1 Appellant also goes by the name “Claude.” (Tr. 380.)
endangering children. Appellant argues that his convictions were not supported by
sufficient evidence and are against the manifest weight of the evidence, the trial
court erred in admitting prejudicial evidence, the trial court erred in denying
defense counsel’s motion for a mistrial, he was denied a fair trial based on the
cumulative-error doctrine, and the trial court abused its discretion in imposing an
18-month jail sentence. After a thorough review of the record and law, this court
affirms.
I. Factual and Procedural History
The instant matter arose from an altercation that occurred on
October 4, 2018, between appellant and his wife, R.K. (hereinafter “Mother”). This
altercation occurred in the presence of their three children: (1) J.H., referenced in
the indictment as John Doe, d.o.b. July 3, 2002 (16 at the time of the incident);
(2) R.H., referenced in the indictment as Jane Doe I, d.o.b. December 23, 2003 (14
at the time of the incident); and (3) J.K., referenced in the indictment as Jane Doe
II, d.o.b. January 31, 2017 (less than 2 years old at the time of the incident).
The altercation began as a verbal argument that escalated to a physical
altercation. The altercation took place inside appellant’s and Mother’s bedroom.
Mother went to bed with J.K. Between 11:30 p.m. and midnight, appellant came
into the bedroom and was yelling about money and Mother’s financial contributions
to the household. As the argument escalated, appellant grabbed Mother’s neck and
began choking her. Mother was pregnant at the time.
Mother testified, “[appellant] grabbed my throat and he grabbed it very
firmly and he was squeezing it.” (Tr. 386.) Appellant was blocking mother’s airway
and at the time she was unable to breathe. Mother began punching appellant in the
stomach to defend herself.
Mother’s older children, J.H. and R.H., heard the altercation between
Mother and appellant escalating. They were standing in the hallway outside of
appellant’s and Mother’s bedroom. They began to record the altercation on their
cell phones. J.H. captured an audio recording on his cell phone, and R.H. recorded
a video on her cell phone. These recordings were played at trial.
During the altercation, appellant opened the bedroom door and tried to
take J.K. downstairs. Mother took J.K. from appellant. Appellant closed and locked
the bedroom door. When he did so, J.H. and R.H. were in the hallway outside of the
room, and appellant, Mother, and J.K. were inside the bedroom.
Appellant struck Mother in the head with an object she assumed was
his cell phone. R.H. testified that she was in the hallway outside of the bedroom and
heard “[a] big bang and [Mother] was crying and yelling for [J.H.] and I.” (Tr. 455.)
J.H. testified that he heard Mother yelling for him to come in the bedroom.
J.H. forcibly broke open the locked bedroom door. Upon entering the
room, J.H. and R.H. both observed blood on Mother’s head. The children called 911
and reported the incident. Mother was transported to Fairview Hospital where she
received treatment for her head injury.
Appellant left the residence after J.H. and R.H. forcibly entered the
bedroom and called 911. He turned himself into the North Olmsted Police
Department the day after the physical altercation.
On November 8, 2018, a Cuyahoga County Grand Jury returned a five-
count indictment charging appellant with (1) felonious assault, a second-degree
felony in violation of R.C. 2903.11(A)(1); (2) domestic violence, a first-degree
misdemeanor in violation of R.C. 2919.25(A), and (3) – (5) endangering children,
first-degree misdemeanors in violation of R.C. 2919.22(A). Count 3 pertained to
J.H., Count 4 pertained to R.H., and Count 5 pertained to J.K. Appellant pled not
guilty to the indictment at his November 14, 2018 arraignment.
A jury trial commenced on April 2, 2019. J.H., R.H., and Mother,
among others, testified on behalf of the state. At the close of the state’s case, defense
counsel moved for a Crim.R. 29 judgment of acquittal. The trial court denied
defense counsel’s motion.
Appellant testified on his own behalf. Appellant denied choking or
striking Mother in the head. The defense rested and renewed the Crim.R. 29 motion.
The trial court denied the renewed motion.
The jury returned its verdict on April 5, 2019. The jury found appellant
not guilty on Count 1, and guilty on Counts 2-5.
On April 5, 2019, appellant filed a “post-verdict motion for acquittal of
his convictions on Counts 3 and 4.” Therein, appellant argued that the state failed
to establish that J.H. and R.H. sustained any physical or mental harm from the
incident. In support of his argument, appellant asserted that the two children were
standing on the opposite side of a locked door, neither child was injured, and that
their sadness or anger about appellant’s assault on their mother did not constitute
physical or mental harm. Appellant cited Cleveland Hts. v. Cohen, 2015-Ohio-1636,
31 N.E.3d 695 (8th Dist.), in support of his argument.2
The trial court held a sentencing hearing on April 8, 2019. The trial
court imposed a six-month jail term on the domestic violence count and all three
endangering children counts. The trial court ordered Counts 2 and 5 to run
concurrently with one another. The trial court ordered Counts 3 and 4 to run
consecutively with one another and consecutively to the six-month concurrent
sentence on Counts 2 and 5, for an aggregate jail term of one and one-half years
(18 months). Subsequently, on remand from this court, the trial court credited
appellant with 158 days of jail-time credit on September 19, 2019.
On May 13, 2019, appellant filed the instant appeal challenging the
trial court’s judgment. He assigns six errors for review:
I. Appellant’s child endangering convictions in Counts III and IV were
not supported by legally sufficient evidence as required by state and
federal due process.
II. All of appellant’s convictions were against the manifest weight of
the evidence.
III. The trial court erred in repeatedly allowing the jury to be inundated
with prejudicial evidence of sympathy.
2 The trial court did not specifically rule on this motion. However, the trial court’s
April 12, 2019 sentencing journal entry provided, in relevant part, “[a]ll motions not
specifically ruled on prior to the filing of this judgment entry are denied as moot.”
IV. The trial court abused its discretion in lauding a state’s witness for
his testimony and further erred in overruling appellant’s motion for a
mistrial.
V. Cumulative error denied appellant a fair trial.
VI. Appellant’s sentence was an abuse of discretion.
II. Law and Analysis
A. Sufficiency
In his first assignment of error, appellant argues that his endangering
children convictions on Counts 3 and 4 were not supported by sufficient evidence.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
In the instant matter, appellant is challenging his endangering
children convictions on Count 3, pertaining to his stepson J.H., and on Count 4,
pertaining to his stepdaughter R.H.
Appellant was convicted of endangering children in violation of R.C.
2919.22(A), which provides, in relevant part, “[n]o 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.”
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.
Cohen, 2015-Ohio-1636, 31 N.E.3d 695, at ¶ 25.
In support of his sufficiency challenge, appellant argues that the state
failed to establish that appellant, either by violating a duty of care or omission,
endangered J.H. and R.H. In fact, appellant contends that when he locked J.H. and
R.H. out of the room, he “took affirmative measures to see that [the children] were
not at risk.” Appellant’s brief at 9.
Appellant directs this court to Cohen, in which a husband and wife
engaged in a physical altercation. During the physical altercation, the husband
pushed the wife into a wall, causing her to hit her head on a closet. The parties’
children witnessed the physical altercation and the head injury sustained by the
wife. The husband was convicted at trial of two counts of child endangerment. 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. Id. at ¶ 30. This court explained, that there was no evidence in the
record or claim 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 in this case, we find Cohen to be
distinguishable. Unlike the children in Cohen, J.H. and R.H. were not merely
present in the home or witnesses to the argument and physical altercation between
appellant and Mother — they were involved in the altercation.
First, R.H. became involved in the altercation after appellant choked
Mother inside the bedroom. Mother testified that after appellant choked her and
she punched appellant in the stomach to defend herself, R.H. came into the bedroom
and asked Mother if she was “good.” (Tr. 385.)
R.H. testified that appellant opened the bedroom door and Mother
was holding J.K. inside the room. Appellant took J.K. from Mother and tried to leave
the bedroom to go downstairs. Mother would not let appellant go downstairs with
J.K. R.H. asserted that appellant was yelling at Mother, “you’re not taking my baby,”
and Mother was yelling at appellant, “I want my baby back, you’re not taking him
downstairs.” (Tr. 454.) J.H. testified that Mother took J.K. back from appellant and
handed J.K. to R.H.
The evidence presented by the state demonstrated that after Mother
took J.K. from appellant and handed him to R.H., appellant acted aggressively
towards R.H. while she was holding J.K. R.H. testified that she was holding J.K. and
he was crying. At this point, appellant approached R.H., coming within
approximately two-and-one-half feet of her and J.K., and told R.H. to “get the F out
of my room.” (Tr. 463.) R.H. asserted that she felt scared for herself when appellant
got in her face and ordered her to leave the bedroom. Mother testified that after she
took J.K. from appellant and handed him to R.H., appellant began yelling and
swearing at R.H., telling her to “Get the F out, get the F out” of the bedroom.
(Tr. 389.) Finally, regarding R.H.’s involvement in the altercation, J.H. testified that
R.H. tried to break open the bedroom door from the hallway, but was unable to do
so. (Tr. 344.)
Second, J.H. became involved in the physical altercation between
appellant and Mother when he heard Mother calling out for him inside the bedroom
and he broke down the bedroom door out of fear for Mother’s safety. J.H. testified
about what transpired after appellant locked the bedroom door:
Afterwards my mom starting yelling for me to come in. And so [R.H.]
tried to bang open the door, and she couldn’t do it, [R.H.] said for me
to go ahead and bang open the door.
So I rushed right through the door.
(Tr. 342.)
When J.H. broke down the door, he saw Mother’s head bleeding. J.H.
explained,
[appellant] was just standing there next to [Mother], with her head just
bleeding, gushing blood around her forehead like near her eye. And
there was a lot of blood everywhere. And I think she had it on her hands
and — so I called the — the cops were — I pretty much pushed
[appellant] down on the bed and said what — and I was yelling: What
did you do to my mother?
(Tr. 344.)
Accordingly, the record reflects that J.H. and R.H. were not merely
bystanders or witnesses to the physical altercation. Based on J.H.’s and R.H.’s
involvement and participation in the physical altercation between appellant and
Mother, appellant’s reliance on Cohen is misplaced.
We further find this case to be distinguishable from State v. Jackson-
Williams, 8th Dist. Cuyahoga Nos. 108516 and 108611, 2020-Ohio-1118, in which
this court applied the Cohen rationale. Jackson-Williams involved a verbal and
physical altercation between the defendant-appellant and his wife in a parking lot.
During the altercation, the defendant attempted to push the victim into the car and
threatened to choke her and drag her across the ground if she did not get out of his
face. Id. at ¶ 8. The defendant also grabbed the victim and twisted her arm behind
her back, and held the victim in this position for several minutes. The parties
continued to argue, at which point the defendant grabbed and squeezed the victim’s
other hand, causing her to scream out. During the altercation, the victim sustained
sprains to both of her hands, her left hand was swollen, and she sustained cuts
between her fingers.
The altercation took place outside of the vehicle in which the parties’
two children were seated. The two children witnessed the altercation. Defendant
was convicted of child endangerment in violation of R.C. 2919.22(A). On appeal,
defendant challenged his endangering children convictions, arguing that there was
no evidence that his actions posed any risk to the health or safety of his children.
Defendant asserted that the children were secured in their car seats during the
altercation with the victim, and as a result, they were never endangered. Id. at ¶ 28.
The Jackson-Williams court applied the Cohen rationale and
determined that there was no evidence that defendant’s aggressive behavior toward
the victim created a substantial risk to the health and safety of the children inside
the vehicle:
[t]he struggle between Jackson-Williams and [the victim] was
relatively brief and occurred outside of [the victim’s] car while the
children were safely secured inside the car. Although witnessing their
parents fight probably had a negative emotional impact on the children,
their mere presence at the scene of their parents’ domestic dispute did
not create a substantial risk to their health or safety. Therefore, there
is insufficient evidence in the record to sustain Jackson-Williams’s two
child-endangering convictions.
Id. at ¶ 35.
After reviewing the record, we find Jackson-Williams to be
distinguishable. As noted above, unlike Jackson-Williams, J.H. and R.H. were not
merely witnesses to or present at the scene of the physical altercation between
appellant and Mother. The children were directly involved in the physical
altercation. Furthermore, although J.H. and R.H. were locked outside of the
bedroom for a period of time during the altercation, they were not “safely secured”
in the hallway or out of harm’s way during the entirety of the altercation.
As noted above, when R.H. was holding J.K. to prevent appellant from
taking J.K. downstairs, appellant aggressively approached her, got in her face, and
threatened her to leave the bedroom. The evidence presented at trial also
demonstrates that after appellant locked them out of the bedroom, J.H. and R.H.
were so concerned for the safety of Mother that they felt they had no choice but to
exert enough force using their own bodies to break into the bedroom to save Mother
from further abuse.
Based on J.H.’s and R.H.’s involvement in the physical altercation
between appellant and Mother, we find that the state’s evidence, if believed,
established that appellant’s actions created a substantial risk of harm to the physical
health or safety of J.H. and R.H. We further find that appellant’s actions created a
substantial risk of harm to the mental or emotional health or safety of J.H. and R.H.
In State v. Jay, 8th Dist. Cuyahoga No. 91827, 2009-Ohio-4364,
remanded on other grounds, 130 Ohio St.3d 239, 2011-Ohio-5161, 957 N.E.2d 276,
this court affirmed the defendant-father’s child endangering conviction pertaining
to his nine-year-old son, J.W., who witnessed defendant sexually abuse his three-
year-old sibling. In rejecting the defendant’s argument that there was insufficient
evidence to support his conviction of child endangerment, this court recognized that
the state’s case was predicated on the substantial risk of emotional harm that
defendant’s actions caused to J.W., who witnessed the defendant sexually abuse his
younger brother. Id. at ¶ 15. This court concluded that the state presented sufficient
evidence to establish that:
(1) J.W. witnessed an act of sexual abuse being performed on his three-
year old brother perpetrated by appellant; (2) while J.W. was in the
care and custody of appellant; (3) that appellant owed J.W. a duty of
care and custody; and (4) that this created a substantial risk to the
health or safety of J.W., there is sufficient evidence to support
appellant’s conviction for child endangerment. Sexual abuse creates a
substantial risk to the health and safety of a child, whether victim or
witness.
(Emphasis added.) Id. at ¶ 17.
After reviewing the record, although J.H. and R.H. were not victims of
physical abuse, we find that Jay rationale applies to the physical abuse and domestic
violence involved in this case that was witnessed by J.H. and R.H. Here, the state
presented sufficient evidence to establish that (1) J.H. and R.H. witnessed an act of
physical abuse or domestic violence appellant perpetrated against Mother, (2) J.H.
and R.H. witnessed the act of physical abuse or domestic violence while they were
in the care and custody of appellant, (3) appellant owed J.H. and R.H. a duty of care
and custody, and (4) this created a substantial risk to the emotional health or safety
of J.H. and R.H.
Both J.H. and R.H. were in their bedrooms when appellant began
yelling at Mother in their bedroom. Both children came out of their bedrooms and
began recording the altercation as it escalated. R.H. contemplated calling 911 before
appellant struck Mother in the head. She asked J.H. if he thought they should
intervene or call 911. (Tr. 453.)
J.H. explained why he began recording the altercation between
appellant and Mother: “I felt like something bad might happen later on, I wasn’t
really sure.” (Tr. 336.) J.H. continued, “I was a little nervous, so like I was — if
anything bad did happen I would have called the cops, and I wanted to at least have
evidence that — for yelling and stuff.” (Tr. 338.)
The testimony of J.H. and R.H. establishes that both children were so
concerned about the escalating nature of the altercation between appellant and
Mother that they began recording the altercation on their cell phones. Both J.H. and
R.H. contemplated intervening in the escalating altercation and calling police before
appellant struck Mother in the head.
In Cohen, 2015-Ohio-1636, 31 N.E.3d 695, it was unclear where the
children were at in the house at the time the victim sustained injuries to her nose
and forehead, and whether the children were present when the victim sustained her
injuries. Id. at ¶ 7, fn. 2. In this case, J.H. and R.H. were present when appellant
choked Mother and struck her in the head.
J.H. and R.H. were in the hallway outside of the bedroom when
appellant choked Mother. J.H. testified that he observed red markings on Mother’s
neck. Mother testified that R.H. entered the bedroom to check on her after appellant
choked her. Both children heard the initial physical altercation that transpired
inside the bedroom: appellant choking Mother, and Mother punching appellant in
the stomach to defend herself. Similarly, both children heard the physical
altercation that transpired inside the bedroom after appellant locked them in the
hallway: appellant striking Mother in the head. After they forced their way into the
bedroom, both J.H. and R.H. observed blood emanating from Mother’s head.
In Jackson-Williams, 8th Dist. Cuyahoga Nos. 108516 and 108611,
2020-Ohio-1118, where the children were secured inside a vehicle and the parents
engaged in a physical fight outside the vehicle in the parking lot, the victim sustained
hand injuries including sprains, swelling, and cuts, during the altercation. In this
case, unlike Jackson-Williams, the head injury sustained by Mother was much more
readily apparent to J.H. and R.H. Both J.H. and R.H. testified that they observed
Mother’s head bleeding when they forcibly entered the bedroom. J.H. and R.H. also
confirmed that they saw the treatment Mother received for her head injury — six
staples — when she returned from the hospital. Accordingly, based on (1) J.H.’s and
R.H.’s presence for the entirety of the physical altercation between appellant and
Mother, (2) the fact that both children heard the physical altercation that was
occurring inside the bedroom, and (3) the fact that the children observed the red
marks on Mother’s neck, blood flowing from Mother’s head, and the staples Mother
received for her head injury, we find that appellant’s actions created a substantial
risk of harm to the mental or emotional health or safety of J.H. and R.H.
Finally, appellant appears to argue that J.H. and R.H. were at fault for
creating any substantial risk to their health or safety because they “interjected
themselves into the situation.” Appellant’s brief at 10. We unequivocally and
categorically reject appellant’s argument that J.H. and R.H. were in any way at fault
for the events that transpired. Both children testified at trial that they intervened in
the altercation between appellant and Mother because they were worried about
Mother and feared for her safety.
For all of the foregoing reasons, and based on J.H.’s and R.H.’s
involvement in the physical altercation between appellant and Mother, we find that
the evidence presented at trial by the state, if believed, sufficiently established that
appellant’s actions created a substantial risk of harm to the mental and physical
health or safety of J.H. and R.H. Accordingly, appellant’s endangering children
convictions on Counts 3 and 4 are supported by sufficient evidence in the record.
Appellant’s first assignment of error is overruled.
B. Manifest Weight
In his second assignment of error, appellant argues that his
convictions for domestic violence and endangering children are against the manifest
weight of the evidence.
In contrast to sufficiency of the evidence, “weight of the evidence
involves the inclination of the greater amount of credible evidence.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of
the evidence is a test of adequacy as to whether the evidence is legally sufficient to
support a verdict as a matter of law, * * * weight of the evidence addresses the
evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words,
a reviewing court asks whose evidence is more persuasive — the state’s or the
defendant’s?” Id. The reviewing court must consider all the evidence in the record,
the reasonable inferences, and the credibility of the witnesses to determine
“‘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 at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
1. Counts 3 and 4
First, regarding his endangering children convictions on Counts 3 and
4, appellant appears to argue that these convictions were against the manifest weight
of the evidence because he did not go after J.H. or R.H., did not throw anything at
them, or commit a separate assault against either child. Appellant’s argument is
misplaced.
As noted above, the state was not required to demonstrate that
appellant assaulted or attempted to assault either J.H. or R.H. Rather, the state had
to demonstrate that appellant’s actions created a substantial risk of harm to the
health or safety of J.H. and R.H.
Appellant also appears to argue that the evidence presented at trial
established that he did not endanger J.H. or R.H., but, in fact, established that
appellant protected these children during the altercation with Mother: “[t]he
undisputed facts of this case are that Appellant did everything in his power to
separate [J.H. and R.H.] from the spousal dispute.” Appellant’s brief at 12. As noted
above, appellant contends that he “took affirmative measures to see that [the
children] were not at risk.” Appellant’s brief at 9. Once again, appellant appears to
blame J.H. for intervening in the dispute between him and Mother. Appellant’s
argument is entirely unsupported by the record.
To the extent that appellant contends that he “protected” the children
by locking them out of the bedroom, the record reflects that J.H. and R.H. were not
locked out of the bedroom for the entirety of the altercation between appellant and
Mother. J.H. and R.H. were not separated from the altercation, they were directly
involved in the altercation, and intervened out of fear for Mother’s safety.
Nevertheless, appellant’s convictions are not against the manifest
weight of the evidence merely because the jury rejected the defense’s theory that
appellant took affirmative actions to protect and ensure the safety of J.H. and R.H.,
and found the state’s theory of the case — that appellant’s actions during the
altercation created a substantial risk to the health and safety of J.H. and R.H. — to
be more believable. “‘[A] conviction is not against the manifest weight of the
evidence simply because the jury rejected the defendant’s version of the facts and
believed the testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga
No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No.
13CA3391, 2014-Ohio-2959, ¶ 28.
The jury did not lose its way in resolving the conflicting theories based
on the evidence presented at trial. Accordingly, appellant’s second assignment of
error is overruled with respect to his endangering children convictions on Counts 3
and 4.
2. Counts 2 and 5
Second, in support of his manifest weight challenge on Counts 2 and
5, appellant appears to argue that Mother was not a credible witness because she
provided conflicting testimony. Specifically, appellant contends that although
Mother testified that appellant turned the bedroom lights off after locking the
bedroom door, neither J.H. nor R.H. testified that the bedroom lights were off when
they forcibly entered the room, and the cell phone video recorded by R.H.
contradicts Mother’s testimony about the bedroom lights being off.
Mother testified on direct examination that appellant locked the
bedroom door and turned off the lights in the bedroom. (Tr. 390.) Mother
acknowledged on cross-examination that she did not mention appellant turning off
the lights in her statement to medical personnel or the police. There was no
testimony presented at trial regarding who, if anyone, turned the bedroom lights
back on after they had been turned off by appellant.
Although R.H. recorded the altercation on her cell phone, she was in
the hallway when appellant purportedly turned the bedroom lights off. J.H. testified
on cross-examination that to the best of his recollection, the bedroom lights stayed
on during the entire altercation. (Tr. 263.)
Appellant’s convictions are not against the manifest weight of the
evidence based on any inconsistencies in the trial testimony regarding whether the
lights in the bedroom had been turned off when appellant struck Mother in the head.
Mother testified that the altercation began between 11:30 p.m. and midnight.
Therefore, there would not have been any natural light coming into the house during
the altercation. The important aspects of Mother’s testimony remained largely
consistent over time, including appellant choking her, and striking her in the head
inside the bedroom while she was holding J.K.
Appellant appears to argue that Mother’s head injury was not caused
by appellant striking Mother with a cell phone, but rather caused when Mother was
struck by the door that J.H. forced open. Appellant testified at trial that he did not
strike Mother in the head.
Mother testified at trial that appellant struck her in the head with an
object he was holding in his hand, and that appellant struck her before the children
forcibly entered the room. J.H. testified that he did not hear a noise as he forced the
door open and the door swung into the bedroom. The only noise he heard when he
forced the door open was crying. J.H. asserted that he did not feel as if he hit anyone
inside the bedroom when he forced the door open. He heard Mother scream before
he forced his way into the bedroom. R.H. testified that she heard a “bang” inside the
bedroom after which Mother cried out for her and J.H. R.H. heard this “bang”
before J.H. forcibly opened the bedroom door.
As noted above, appellant’s convictions are not against the manifest
weight of the evidence merely because the jury rejected the defense’s theory that
Mother’s head injury was caused by the bedroom door, and found Mother’s
testimony — that appellant struck her in the head with an object — to be more
believable than appellant’s testimony. See Jallah, 8th Dist. Cuyahoga No. 101773,
2015-Ohio-1950, at ¶ 71. The jury did not lose its way in resolving the conflicting
theories based on the evidence presented at trial.
Finally, appellant appears to argue that Mother’s account of the
incident was not credible because she had breakfast the next morning and ran
errands with appellant.
Mother testified on direct examination that the morning after the
altercation, appellant called her and asked her to bring him his work cell phone, his
socks, and his shoes. Appellant told Mother that he was going to turn himself in.
Mother explained,
I walked up to the local dollar store that was by our house, Dollar
General, where I met [appellant]. I then got in the driver’s side.
I had a doctor’s appointment that day for our baby. And [appellant]
wanted to go with us — me, to hear his daughter’s heartbeat for the last
time before he turned himself in.
But I told him, “We’re not running Claude, we’re not running.”
(Tr. 398.) After the doctor’s appointment, Mother drove appellant to the North
Olmsted Police Department where appellant was detained.
Appellant testified on direct examination that on the way to the police
station, he and Mother stopped at Dunkin’ Donuts where they had coffee, breakfast,
and talked. (Tr. 619.) Appellant alleged that they had an agreement to go into the
police station and tell the officers that Mother’s injuries were caused by an accident.
(Tr. 622.)
The testimony of Mother was supported by the testimony of J.H. and
R.H., and consistent with the video recording captured by R.H.’s cell phone, and
consistent with the audio recording captured by J.H.’s cell phone. Mother’s
testimony about appellant choking her is consistent with J.H.’s testimony that he
observed red markings on Mother’s neck.
For all of the foregoing reasons, we find no basis upon which to
conclude that appellant’s domestic violence and child endangering conviction
pertaining to J.K. are against the manifest weight of the evidence. This is not an
exceptional case in which the evidence weighs heavily against appellant’s
convictions or that the jury clearly lost its way in finding appellant guilty.
Appellant’s second assignment of error is overruled with respect to his
domestic violence conviction on Count 2 and his endangering children conviction
pertaining to J.K. on Count 5.
C. Evidence of Sympathy
In his third assignment of error, appellant argues that the trial court
erred by “allowing the jury to be inundated with prejudicial evidence of sympathy.”
Appellant’s brief at 15. Appellant specifically challenges aspects of J.H.’s, R.H.’s, and
Mother’s trial testimony, arguing that the testimony was irrelevant and improperly
presented to inflame the passions of the jury.
Pursuant to Evid.R. 402, only relevant evidence is admissible. Evid.R.
401 defines “relevant evidence” as any “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
The admission of evidence “lies within the broad discretion of the trial
court, and a reviewing court should not disturb evidentiary decisions in the absence
of an abuse of discretion that has created material prejudice.” State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio
St.3d 49, 64, 752 N.E.2d 904 (2001). Accordingly, this court’s review is limited to
determining whether the trial court’s evidentiary rulings were unreasonable,
arbitrary, or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23, 759 N.E.2d 1240(2002).
First, appellant takes issue with the testimony of J.H. and R.H.
regarding their observations during and after the incident. J.H. testified that when
Mother returned from the hospital, he saw six staples in Mother’s head. J.H.
testified, over defense counsel’s objection, about how he felt when he saw his
Mother’s head injury: “I was just happy that she was okay. I was happy that
everything was all right, that she was back home the very same night that she got
injured. I was glad that [the medical staff] helped her get all fixed up, you know,
stitches and stuff. I was upset because it looked like it hurt.” (Tr. 356.) Appellant
argues that J.H.’s testimony was not relevant and a “tactical ploy for the hearts of
the jurors.” Appellant’s brief at 15.
The record reflects that defense counsel elicited testimony from J.H.
regarding how he felt about his mother’s injuries on cross-examination:
[Defense Counsel]: And the idea of your mother being injured, that
probably hurts you a great deal, am I right?
[J.H.]: Yeah.
(Tr. 357.)
After the video that R.H. recorded on her cell phone was played in
court, the prosecutor asked R.H. if it was hard for her to watch the video. R.H.
simply responded in the affirmative, “[y]es.” (Tr. 406.) R.H. also testified that she
felt “sad” when her and J.H. forced their way into the bedroom and she saw blood
on Mother’s head. (Tr. 456.) Defense counsel did not object to the prosecutor’s
questions or R.H.’s responses, and as a result, appellant has waived all but plain
error with respect to this challenged testimony.
Pursuant to Crim.R. 52(B), plain errors or defects that affect
substantial rights may be grounds for reversal even though they were not brought to
the attention of the trial court. Notice of plain error is only to be taken under
exceptional circumstances to prevent a manifest miscarriage of justice. State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
Plain error does not exist unless it can be shown that but for the error, the outcome
of the trial would clearly have been different. State v. Moreland, 50 Ohio St.3d 58,
62, 552 N.E.2d 894 (1990).
R.H. testified that when Mother returned from the hospital, she
noticed Mother received some treatment to her head. R.H. testified, over defense
counsel’s objection, that she was “sad” when she saw Mother received treatment at
the hospital for her head injury. (Tr. 465.)
After reviewing the record, we are unable to conclude that the trial
court abused its discretion or committed plain error in permitting the testimony of
J.H. and R.H. with which appellant takes issue. The state’s theory of the case
regarding the child endangerment offenses charged in Counts 3 and 4 was that
appellant created a substantial risk to the emotional or mental health and safety of
J.H. and R.H. when he assaulted Mother while the children were present.
Accordingly, the children’s testimony about how they felt as the verbal argument
was escalating, during the physical altercation, and immediately after the physical
altercation, was arguably relevant to the determination of whether appellant’s
conduct created a substantial risk to the health or safety of the children.
Second, appellant challenges aspects of Mother’s testimony. Mother
testified that the altercation began when appellant came into the bedroom and
started talking about money, the fact that he makes more money than Mother, and
suggesting that Mother does not contribute enough to the family. Mother testified,
over defense counsel’s objection, about how she felt about appellant’s comments
about money: “[w]ell, I always felt I was contributing to the household. I always —
so as a wife should contribute. I can’t necessarily make more or as much money as
him if what my employer offers me — what they pay me is what they pay me. And
that’s what I brought. What I could bring in is what I supplied to the family.”
(Tr. 384.) Appellant contends that the state’s line of questioning was “an attempt to
make the jurors want to drive a stake through the heart of a Neanderthal.”
Appellant’s brief at 16.
We are unable to conclude that the trial court abused its discretion in
permitting Mother’s testimony in this respect. Mother’s testimony was relevant
background information, explaining how the altercation started in the first place.
Furthermore, J.H. testified that when he was in his bedroom, he heard both
appellant and Mother yelling. The jury could have reasonably inferred from this
testimony that Mother was upset about appellant’s financial comments.
Mother testified, over defense counsel’s objection, about whether she
feared for the safety of her children during the altercation. Mother answered
affirmatively, “[y]es” and “[a]bsolutely.” (Tr. 399.) As noted above, the endangering
children offenses on Counts 3 and 4 were predicated, in part, on whether appellant’s
conduct created a substantial risk to the emotional or mental health and safety of
J.H. and R.H. Accordingly, Mother’s testimony in this respect was relevant, and the
trial court did not abuse its discretion in overruling defense counsel’s objection.
Mother testified about the threats appellant made to her during the
argument, including appellant’s statement “I’m going to knock you out” to Mother.
(Tr. 388.) Mother asserted that she felt uncomfortable and terrified when she heard
this threat. Mother opined, over defense counsel’s objection, that appellant could,
in fact, knock her out. Mother testified, over defense counsel’s objection, that it was
“painful” to hear the recording of the 911 call that was played at trial.
After reviewing the record, we are unable to conclude that the trial
court abused its discretion in permitting Mother’s testimony. Although Mother’s
opinion testimony about whether appellant could “knock her out” is arguably
irrelevant to the elements of the felonious assault and domestic violence offenses
charged in Counts 1 and 2, any error in the trial court’s admission of this testimony
was, at best, harmless error pursuant to Crim.R. 52(A).
An error is harmless if it did not affect the accused’s “substantial
rights.” Crim.R. 52(A). Otherwise stated, the accused has a
constitutional guarantee to a trial free from prejudicial error, not
necessarily a trial free of all error. See United States v. Hasting, 461
U.S. 499, 508-509, [103 S.Ct. 1974, 76 L.Ed.2d 96 (1983)]. Before
constitutional error can be considered harmless, however, a reviewing
court must be able to “declare a belief that it was harmless beyond a
reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, [87 S.Ct.
824, 17 L.Ed.2d 705 (1967)]. Where there is no reasonable possibility
that unlawful testimony contributed to a conviction, the error is
harmless and therefore will not be grounds for reversal. State v. Lytle[,
48 Ohio St.2d 391, 358 N.E.2d 623 (1976), paragraph three of the
syllabus, vacated on other grounds, 438 U.S. 910, 98 S.Ct. 3135, 57
L.Ed.2d 1154 (1978)].
State v. Johnson, 8th Dist. Cuyahoga No. 80857, 2003-Ohio-1826, ¶ 24.
In the instant matter, we are unable to find that the aforementioned
testimony of J.H., R.H., and Mother with which appellant takes issue contributed to
appellant’s domestic violence conviction and child endangerment conviction
pertaining to J.K. The record contains substantial and independent evidence
supporting appellant’s convictions on Counts 2 and 5.
Finally, the trial court provided multiple instructions to the jury to
refrain from being influenced by bias or sympathy. In its preliminary instructions,
the trial court instructed the jury, “[y]ou must not be influenced in your decision by
sympathy, prejudice, or passion toward any party, witness, or attorney in this case.”
(Tr. 313.) Following the presentation of evidence, the trial court instructed the jury,
“in strict keeping with your oaths you must refuse absolutely to have your judgment
influenced by sympathy, bias or prejudice, either for or against the government or
the defendant in this case.” (Tr. 696.) This court presumes that the jury heeded the
trial court’s instructions. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818
N.E.2d 229, ¶ 157.
For all of the foregoing reasons, appellant’s third assignment of error
is overruled.
D. Trial Court’s Remarks and Motion for Mistrial
In his fourth assignment of error, appellant argues that the trial court
abused its discretion in “lauding [J.H.] for his testimony” and denying defense
counsel’s motion for a mistrial. Appellant’s brief at 19.
First, appellant takes issue with the trial court’s comments to J.H.
following his testimony on redirect examination. Before dismissing J.H., the trial
court made the following remarks to J.H.:
Before you leave, I want to tell you something: I want to tell you how
much I appreciate you coming and sharing your story with us. And I
don’t want you to leave with a bad impression about the courtroom,
okay?
***
It’s a search for the truth. So [the prosecutor] has to present certain
things, so that [the jury] can see it and evaluate it. And we’re not here
to try and make you uncomfortable.
***
I appreciate you coming and I think you’re very brave. I hope one day
you’re a lawyer and you can take my seat, okay?
(Tr. 372.)
Appellant argues that the trial court “invaded the province of the jury
by declaring J.H. a brave witness” and portrayed defense counsel as obstructing the
search for the truth. In this appeal, appellant appears to argue that the trial court’s
remarks conveyed to the jury that only the prosecutor’s questioning and arguments
were important.
Initially, we find no merit to appellant’s argument that the trial court’s
remarks to J.H. were in any way disparaging, either explicitly or implicitly, to
defense counsel. The trial court gave J.H. — not the jury — a brief, one sentence
explanation of how a criminal trial works: the prosecutor presenting evidence to the
jury, and the jury evaluating that evidence.
Furthermore, after reviewing the record, we are unable to conclude
that the trial court’s remarks were unreasonable, arbitrary, or unconscionable. J.H.
was 16 years old at the time of trial. He came into court and testified openly about a
situation that was at the very least upsetting and uncomfortable, if not traumatic —
a physical altercation between his mother and stepfather that escalated to a point
where he feared for the safety of his mother and felt compelled to intervene. To
make matters even more uncomfortable for J.H., Mother was in the process of
divorcing appellant. (Tr. 438.) Under these circumstances, the trial court did not
abuse its discretion in thanking J.H. for testifying openly and candidly.
Second, appellant argues that the trial court abused its discretion in
denying defense counsel’s motion for a mistrial. Defense counsel moved for a
mistrial based on the trial court’s statements to J.H. following his testimony. In
support of the motion, defense counsel argued, “this is an adversarial witness, he’s
a critical eyewitness in this case, but the way you talked him up about being brave
and, you know, demonstrating that you were proud of him, you know, I think that
prejudiced [appellant]. I understand you were just being polite to him, but to do so
right in front of the jury, Judge, it does prejudice my client.” (Tr. 375.)
The trial court denied defense counsel’s motion for a mistrial,
concluding, in relevant part,
Well, I took into consideration that [J.H.] was a young person, I saw his
struggle as he was testifying. I thought that the video was graphic. I
did not want him to leave with a bad impression, so I made [the
remarks].
I do not think that this prejudiced your client at all. And I never said
anything about the basis of the truth or untruth of what he testified to.
(Tr. 375-376.)
The trial court should declare a mistrial “only when the ends of justice
so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d
118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463,
93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). A trial court enjoys broad discretion in ruling
on a motion for a mistrial. State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937(2001). This court will not reverse a trial court’s ruling on a motion for a mistrial
absent an abuse of that discretion. State v. Benson, 8th Dist. Cuyahoga No. 87655,
2007-Ohio-830, ¶ 136.
After reviewing the record, we find no basis upon which to conclude
that the trial court’s ruling denying defense counsel’s motion was unreasonable,
arbitrary, or unconscionable. As noted above, given the uncomfortable, if not
traumatic circumstances of this case, the trial court’s remarks to J.H. were not
inappropriate. The trial court did not comment on J.H.’s credibility or the veracity
of his trial testimony. Because this court is confined to a written transcript of the
proceedings, we defer to the trial court’s determination that J.H. was struggling at
points during his testimony.
For all of the foregoing reasons, appellant’s fourth assignment of error
is overruled. The trial court did not abuse its discretion in issuing the remarks to
J.H. following his testimony or in denying defense counsel’s motion for a mistrial.
E. Cumulative Error
In his fifth assignment of error, appellant argues that the cumulative
effect of the trial court’s errors denied him a fair trial.
Pursuant to the cumulative-error doctrine, a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial, even though each of the errors does not
individually constitute cause for reversal. State v. Obermiller, 8th Dist. Cuyahoga
No. 101456, 2019-Ohio-1234, ¶ 52, citing State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶ 132. The cumulative-error doctrine is inapplicable,
however, when the alleged errors are found to be harmless or nonexistent. Id., citing
id.Based on our resolution of appellant’s third and fourth assignments of
error, the cumulative-error doctrine is inapplicable in this case. The trial court did
not abuse its discretion or commit prejudicial error in admitting irrelevant, victim
impact evidence, and the trial court did not abuse its discretion in denying defense
counsel’s motion for a mistrial.
Appellant’s fifth assignment of error is overruled.
F. Trial Court’s Sentence
In his sixth assignment of error, appellant argues that the trial court
abused its discretion in sentencing appellant to a jail term of 18 months.
As an initial matter, we note that it is unclear whether appellant is
still serving his 18-month jail sentence. Appellant was sentenced to 18 months in
jail during the April 8, 2019 sentencing hearing. On September 19, 2019, the trial
court granted appellant 158 days of jail-time credit. The trial court’s docket indicates
that appellant was “leaving jail” on April 24, 2020.
In the event that appellant has completed service of his 18-month jail
term, his sixth assignment of error would be moot. See State v. Wright, 8th Dist.
Cuyahoga No. 83781, 2004-Ohio-4077, ¶ 18 (“Any appeal of a sentence already
served is moot.”); see also State v. Santiago, 8th Dist. Cuyahoga No. 101612, 2015-
Ohio-1301, ¶ 9 (“[B]ecause [the defendant] is no longer serving his sentence, there
is no remedy this court may provide.”). Accord State v. Gates, 8th Dist. Cuyahoga
No. 108067, 2019-Ohio-4783, ¶ 3.
In the event that appellant has not completed service of his 18-month
sentence, we find appellant’s sixth assignment of error fails on the merits.
Misdemeanor sentencing is governed by R.C. 2929.21 through
2929.28. N. Olmsted v. Rock, 8th Dist. Cuyahoga No. 105566, 2018-
Ohio-1084, ¶ 32. In imposing a sentence for a misdemeanor
conviction, a trial court must consider the overriding purposes of
misdemeanor sentencing, “to protect the public from future crime by
the offender and others and to punish the offender,” set forth in R.C.
2929.21, and the factors set forth in R.C. 2929.22(B) regarding the
appropriate method of achieving those purposes. Lakewood v. Dobra,
8th Dist. Cuyahoga No. 106001, 2018-Ohio-960, ¶ 9.
A trial court enjoys broad discretion in imposing sentence on a
misdemeanor offense. Dobra at ¶ 8, citing Cleveland v. Meehan, 8th
Dist. Cuyahoga No. 100202, 2014-Ohio-2265, ¶ 7. Accordingly, this
court reviews a trial court’s misdemeanor sentence for an abuse of
discretion. Cleveland v. Peoples, 8th Dist. Cuyahoga No. 100955, 2015-
Ohio-674, ¶ 13. “A trial court abuses its discretion when it makes a
decision that is unreasonable, unconscionable, or arbitrary.” Id., citing
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
State v. Gaines, 8th Dist. Cuyahoga No. 106784, 2019-Ohio-639, ¶ 20-21.
A trial court abuses its discretion when it imposes a sentence for a
misdemeanor conviction without considering the sentencing factors under R.C.
2929.21 and 2929.22. Dobra at ¶ 10, citing Maple Hts. v. Sweeney, 8th Dist.
Cuyahoga No. 85415, 2005-Ohio-2820, ¶ 7. R.C. 2929.21 and 2929.22 are not,
however, fact-finding statutes. Accordingly, a trial court need not make factual
findings on the record regarding its consideration of the factors set forth in the
statutes. Sweeney at ¶ 8. “[W]hen a misdemeanor sentence is within the statutory
limits, the trial court is presumed to have considered the required factors [under
R.C. 2929.22], absent a showing to the contrary by the defendant.” Id.In the instant matter, appellant appears to argue that the trial court
imposed a jail term of two years during the sentencing hearing, but reduced the jail
term in its sentencing journal entry to 18 months. Appellant’s argument is
unsupported by the record.
During the sentencing hearing, the trial court sentenced appellant to
180 days in jail on Count 2, and 180 days in jail on the three child endangering
convictions (Counts 3, 4, and 5). (Tr. 760.) The trial court ordered the 180-day
sentences on Counts 3, 4, and 5 to run consecutively with one another. (Tr. 760.)
Contrary to appellant’s assertion, the trial court did not order the 180-day sentence
on Count 2 to also run consecutively. Accordingly, the trial court imposed an
aggregate jail term of 18 months in open court during the sentencing hearing. The
trial court’s April 12, 2019 sentencing journal entry provides, in relevant part,
[t]he court considered all required factors of the law. * * * [Appellant]
is sentenced to the Cuyahoga County jail for a term of 18 month(s).
Count 2 — 6 months. Count 3 — 6 months. Count 4 — 6 months.
Count 5 — 6 months. Count 2 and Count 5 are concurrent. Count 3
and Count 4 are consecutive to each other and consecutive to Count 2
and Count 5.
Appellant’s convictions on Counts 2, 3, 4, and 5 were first-degree
misdemeanors. Pursuant to R.C. 2929.24(A)(1), a jail term for a misdemeanor of
the first degree shall not exceed 180 days (six months). The trial court sentenced
appellant to 180 days in jail on all four convictions. Accordingly, the trial court’s
sentence was within the permissible statutory range under R.C. 2929.24(A)(1).
Because the trial court’s sentence was within the permissible
statutory range, this court presumes that the trial court considered the sentencing
factors set forth in R.C. 2929.21 and 2929.22. See Sweeney, 8th Dist. Cuyahoga No.
85415, 2005-Ohio-2820, at ¶ 8; Dobra, 8th Dist. Cuyahoga No. 106001, 2018-Ohio-
960, at ¶ 10. Furthermore, appellant has failed to demonstrate that the trial court
failed to consider the sentencing factors at sentencing.
Appellant appears to argue that the trial court did not consider the
factors under R.C. 2929.21 and 2929.22, and that the trial court had made “a
preordained decision to impose the max[imum sentence].” Appellant’s brief at 27.
In support of this allegation, appellant references the two-year sentence purportedly
imposed by the trial court during the sentencing hearing. As noted above, the record
reflects that the trial court imposed an 18-month jail term, not a two-year jail term,
during the sentencing hearing.
Appellant further argues that the trial court’s decision to run Count 5
concurrently “evinces an arbitrary sentence.” Again, appellant’s argument is
unsupported by the record. As noted above, the trial court ordered the three
endangering children convictions — Counts 3, 4, and 5 — to run consecutively.
Finally, appellant argues that the trial court erred by ordering the
endangering children convictions on Counts 3 and 4, pertaining to J.H. and R.H., to
run consecutively because the children were not inside the bedroom. Appellant’s
argument is misplaced. R.C. 2929.41(B)(1), governing the imposition of consecutive
sentences for misdemeanors, provides that in order to impose consecutive
sentences, the trial court simply needs to “specify” that the sentences would be
served consecutively. See State v. Jones, 8th Dist. Cuyahoga No. 108438, 2020-
Ohio-1273, ¶ 19. Here, the trial court specified that all three endangering children
convictions, including Counts 3 and 4, were to run consecutively.
For all of the foregoing reasons, we find no basis upon which to
conclude that the trial court abused its discretion in imposing an aggregate jail term
of 18 months. Appellant’s sixth assignment of error is overruled.
III. Conclusion
After thoroughly reviewing the record, we affirm the trial court’s
judgment. Appellant’s domestic violence and endangering children convictions
were supported by sufficient evidence and are not against the manifest weight of the
evidence. The trial court did not abuse its discretion in admitting irrelevant and
prejudicial testimony, and the trial court did not abuse its discretion in denying
defense counsel’s motion for a mistrial. The trial court did not abuse its discretion
in sentencing appellant to 18 months in jail.
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
common pleas 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
MICHELLE J. SHEEHAN, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
OPINION
SEAN C. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
I respectfully concur in judgment only. The majority’s decision
highlights an issue on the application of R.C. 2919.22(A) as to whether a child-
endangering conviction can be sustained solely based on a presumption that the
defendant created a substantial risk to the mental health or safety of the child based
on the child’s witnessing the defendant’s acts of violence, or other deviant behavior,
against another family member. In light of the limited arguments presented for
review, we should avoid rendering any conclusions furthering the chasm between
the cases identified by the majority.
In Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31 N.E.3d 695, ¶ 30
(8th Dist.), it was concluded that evidence demonstrating that a child heard or
viewed a defendant verbally and physically attack his spouse, although it was
acknowledged that witnessing such an event could have a negative emotional impact
on the child, was not sufficient evidence to sustain a conviction under R.C.
2919.22(A). According to Cohen, the fact that the children witnessed and were near
the physical assault did not demonstrate that the attacking spouse created a
substantial risk to the mental or physical health of the children. Id. at ¶ 30. The
panel in State v. Jackson-Williams, 8th Dist. Cuyahoga Nos. 108516 and 108611,
2020-Ohio-1118, ¶ 36, reiterated that a child’s observation of a spouse’s aggressive
behavior toward another spouse was insufficient evidence demonstrating that the
belligerent spouse created a substantial risk to the health or safety of the child as a
matter of law. According to a combined reading of those two decisions, whether a
defendant creates a substantial risk to the mental or physical health of the child
cannot be presumed solely based on the child’s proximity to an altercation.
The majority factually distinguishes Cohen and Jackson-Williams on
the basis that two children in this case were “involved” in the altercation. I cannot
join that conclusion in light of the fact that their involvement was limited to their
proximity to the altercation after the defendant physically attacked the children’s
mother (the daughter first entered the room after Kouame choked her mother, and
the son entered after Kouame caused the head injury) or while the children observed
the altercation from behind a locked bedroom door. There is no evidence that
Kouame continued the physical assault while the children were in the bedroom. In
addition, there is no evidence that Kouame assaulted or threatened to assault the
children or escalated the incident to such a degree that posed any physical danger to
the children.
In both Cohen and this case, the children were present during at least
part of the altercation. Cohen at ¶ 19. Similar to Jackson-Williams, the child victims
in this case also observed part of the assault from behind a closed door. Thus, the
children in this case were just as “involved” in altercation as the child victims in the
conflict cases, that is to say, they were all present at some point during the
altercation but were not actively involved in, or the subject of, the physical attack.
But see, e.g., Allan v. Allan, 8th Dist. Cuyahoga No. 101212, 2014-Ohio-5039, ¶ 41
(finding evidence of child endangerment based on the spouse’s continued physical
assault while the children were near their mother or hanging on the offending
spouse in an attempt to end the attack); State v. Florencio, 8th Dist. Cuyahoga No.
107023, 2019-Ohio-104, ¶ 11 (for the purposes of R.C. 2919.22(A), defendant
instigated the hostile situation by pointing an unloaded firearm at the mother’s
head, causing the daughter to fire a firearm in defense of her mother, thereby
creating a substantial risk of harm to herself); State v. Durbin, 5th Dist. Holmes No.
13 CA 2, 2013-Ohio-5147, ¶ 47 (physically assaulting the child constituted the
creating of a substantial risk to the health of the child).
On this point, the state entirely relies on the children’s fear attributed
to Kouame’s expletive-laced command, ordering the daughter to leave the room.
The state, however, does not cite any case in support of the claim that aggressively
yelling at a child can create a substantial risk to the health and safety of a child —
such a broad conclusion adopted as a proposition of law could lead to unintended
consequences. It is true that R.C. 2919.22(A) is broadly worded such that the mental
and physical health of the endangered child falls under its purview. See, e.g., State
v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 13-15 (the
absence of a modifier preceding the word “harm” demonstrates the legislative intent
that harm encompasses both mental and physical harm). However, the state has
not presented any evidence that Kouame’s conduct created a substantial risk to the
children’s mental health. At best the state asks us to presume such a risk based
solely on the fact that the children witnessed Kouame’s deviant behavior — a
presumption that was tacitly rejected in Cohen and Jackson-Williams. As a result,
I cannot agree that Cohen or Jackson-Williams are factually distinguishable from
this case.
Further, State v. Jay, 8th Dist. Cuyahoga No. 91827, 2009-Ohio-
4364, further highlights the discord between the potential conflict cases. In Jay, the
state claimed that the defendant created a substantial risk to the mental health of a
child by allowing that child to witness the defendant sexually abusing a sibling. The
divided panel presumed that witnessing the sexual abuse of a sibling could affect the
mental health of the child, but no evidence was discussed to support such a
conclusion. Jay at ¶ 43 (Stewart, J., dissenting). Although mental health can be
considered under R.C. 2919.22(A), the state must present evidence of the substantial
risk to the mental health that was created by the defendant’s conduct. Simply
presuming that the witnessing of an incident can cause such harm is insufficient.
See Cohen, 2015-Ohio-1636, 31 N.E.3d 695, at ¶ 29; Jackson-Williams, 8th Dist.
Cuyahoga Nos. 108516 and 108611, 2020-Ohio-1118, at ¶ 35.
Notwithstanding the foregoing, Kouame does not contend that
Cohen is dispositive, nor does he even cite Jackson-Williams or Jay. App.R.
16(A)(7). As such, the issue is not squarely before this panel. The sole argument
advanced by Kouame is that there is insufficient evidence of the child endangerment
when the facts are considered in the light most favorable to his perspective. Since
all reasonable inferences under the sufficiency standard inure to the state’s benefit,
we could summarily reject Kouame’s claim. Hyper-analyzing legal precedent and
resolving potential conflicts best occurs under the crucible of advocacy. In light of
the limited arguments provided by the parties, I would refrain from offering any
conclusions with respect to the interplay between the above-cited cases.
Accordingly, I concur in judgment only.