State v. M.H. , 2020 Ohio 4477 ( 2020 )

[Cite as State v. M.H., 2020-Ohio-4477.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-205
v. : (M.C. No. 18CRB-21854)
M.H., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 17, 2020
On brief: Christopher Shook, Reynoldsburg City Attorney,
and Kylie Keitch, for appellee.
On brief: Yeura Venters, Public Defender, and George M.
Schumann, for appellant.
APPEAL from the Franklin County Municipal Court
KLATT, J.
{¶ 1} Defendant-appellant, M.H.1, appeals from a judgment of the Franklin County
Municipal Court convicting her, following a bench trial, of assault and domestic violence.
Finding no merit to the appeal, we affirm.
{¶ 2} On October 23, 2018, appellant was charged by criminal complaints with
assault in violation of R.C. 2903.13(A), and domestic violence in violation of R.C.
2919.25(A), both first-degree misdemeanors. The complaints alleged that appellant
1The names of individuals other than law enforcement officers have been initialized to protect the identity
of the minor victim.
No. 19AP-205 2
knowingly caused physical harm to her son, S.D., Jr., by "lashing him with a belt and hitting
him with an open palm leaving welts and bruising on his person." Appellant entered a not
guilty plea, waived her right to a jury trial, and elected to be tried by the court.
{¶ 3} At the February 11, 2019 bench trial, the state presented the following
evidence. Appellant and S.D., Sr. are divorced and share parental responsibilities for their
twelve-year-old son, S.D., Jr. Over the years, S.D., Sr. has been the primary disciplinarian
for S.D., Jr. The discipline typically involved noncorporal punishment such as suspending
his cellphone, television, and videogame privileges and/or requiring him to do extra
schoolwork.
{¶ 4} S.D., Jr., a sixth-grade student, testified that while at school on October 23,
2018, a female classmate accused him of making an offensive bodily noise and struck him
in the shoulder and head. After school officials became aware of the situation, he received
an in-school suspension.2 At the end of the school day, he rode the bus to his father's home
and reported the incident to his paternal grandmother.3
{¶ 5} Shortly thereafter, appellant picked up S.D., Jr. and drove him to her home.
During the car ride, appellant "seemed angry" at him because he had been in trouble at
school. (Feb. 11, 2019 Tr. at 45.) When they arrived at the house, appellant instructed S.D.,
Jr. to wait in his bedroom. Shortly thereafter, appellant entered the bedroom holding a belt
and told him to pull down his pants4, place his hands on his bed, and bend over. Appellant
asked him what had happened at school. After he responded, appellant started shouting
and accusing him of preferring his father to her. Appellant then began "whooping" him
with the belt all over his body, including his head, face, arms, legs, back, and buttocks. Id.
at 49-52. She also slapped him across the face with her open hand. In an attempt to escape
appellant, he moved to the corner of his bedroom. Appellant continued to strike him with
the belt, causing him to scream out in pain.
{¶ 6} Later that afternoon, appellant returned S.D., Jr. to his father's house. S.D.,
Jr. told his father that appellant had "whooped" him and showed him the marks on his
2 The female student received an out-of-school suspension.
3 S.D., Sr. lived with his mother.
4 The record does not reveal whether S.D., Jr. was bare-bottomed or wearing underwear.
No. 19AP-205 3
body. Id. at 57. He cried while recounting the story because he was scared and in pain. He
told his father he did not want him to call appellant because he feared that she was "going
to come back and whoop me again." Id. at 58.
{¶ 7} S.D., Sr. testified that school officials did not inform him of the incident
regarding S.D., Jr.; rather, he learned about it from his mother, who called him after S.D.,
Jr. returned home from school. He called appellant immediately and asked her if she knew
what had happened at school. Appellant reiterated what she had been told by school
officials and averred that she was on her way to his house to pick up S.D., Jr. He told
appellant he would handle the situation when he got home from work; however, she did
not agree with his proposal. According to S.D., Sr., appellant seemed "angry" during this
discussion. Id. at 135. Appellant left with S.D., Jr. moments before S.D., Sr.'s arrival.
{¶ 8} S.D., Jr. returned approximately 30 minutes later. His face was "rosy red."
Id. at 136. He was crying and "very distraught and upset." Id. He told S.D., Sr. that
appellant "had slapped him in the face and whooped him with a belt all over." Id. S.D., Jr.
was "very scared" and asked him not to confront appellant because she had threatened to
"whoop him again" if he reported what she had done to him. Id. at 137. Despite this request,
S.D., Sr. called appellant and asked her about the red marks on their son's face; appellant
responded that he "was moving." Id. at 137.
{¶ 9} S.D., Sr. described S.D., Jr. as "a very lovable, kind kid." Id. at 137. He
acknowledged that S.D., Jr. had been in trouble at school in the past, but attributed it to
him being "a kid." Id. at 138. He believed that noncorporal punishment of S.D., Jr. had
been effective in the past. According to S.D., Sr., the marks on S.D., Jr.'s body were not
"consistent" with any discipline that had been imposed in the past. Id. at 139. He further
stated that the discipline imposed by appellant was improper and unreasonable under the
circumstances. Accordingly, he called the police.
{¶ 10} Reynoldsburg Police Officer Nathan Grodhaus testified that he arrived at S.D.
Sr.'s home at approximately 5:00 p.m. Another police officer, Officer Fisher, was there
when he arrived and had interviewed S.D., Jr. and his father. Officer Fisher reported that
S.D., Jr.'s mother had "whipped" him with both a belt and her hand. Id. at 11. Officer
Grodhaus noted that S.D., Jr., was "visibly upset," crying, and "slightly distraught." Id. at
15, 20. He observed red, raised welts on S.D., Jr.'s arms and back; the left side of his face
No. 19AP-205 4
was red and slightly swollen. S.D., Jr. told Officer Grodhaus that his mother had caused
the marks on his body. The officers took photographs, which were subsequently introduced
into evidence at trial. (State's Ex. 1-10.) According to Officer Grodhaus, the photographs
did not "represent in great detail the welts that were displayed on [S.D., Jr.]." Id. at 15.
{¶ 11} Officer Ashley Ronan testified that she assisted in the processing of appellant
following her arrest. During this interaction, appellant stated that she was simply trying to
punish S.D., Jr. for misbehaving at school, that she had spoken to S.D., Sr. before imposing
the punishment, and that he had given her permission to do so. Appellant further averred
that S.D., Sr. had punished S.D., Jr. similarly in the past and that she believed S.D., Sr.'s
decision to involve the police in the present incident resulted from their "rocky"
relationship. Id. at 33.
{¶ 12} The defense presented the following evidence. Appellant's seventeen-year-
old daughter, N.S., testified that she was in the bathroom across the hall from S.D., Jr.'s
bedroom and overheard appellant talking to him about what had occurred at school.
According to N.S., S.D., Jr. got "mouthy" with appellant during the conversation, which
lasted approximately ten minutes. Id. at 85. Thereafter, appellant "physical[ly]
disciplined" S.D., Jr. for approximately five minutes. Id. at 96. N.S. did not describe the
physical discipline imposed by appellant. She averred that S.D., Jr. was not crying when he
and appellant left the house; rather, he "just looked mad." Id. at 92. She further stated that
she never had seen appellant physically discipline S.D., Jr. prior to this incident.
{¶ 13} Appellant testified that she received a call from school officials reporting that
S.D., Jr. had been in an altercation with another student and was to receive an in-school
suspension for his "disruptive" behavior. Id. at 101. According to appellant, this was the
fourth time during the school year that S.D., Jr. had been in trouble. She informed S.D., Sr.
of the incident and proposed that she discipline S.D., Jr. because the punishment S.D., Sr.
had imposed in the past had not effectively deterred S.D., Jr. from misbehaving at school.
S.D., Sr. agreed that she should handle the discipline. Appellant did not testify as to the
form of punishment she proposed to S.D., Sr.
{¶ 14} After the discussion with S.D., Sr., appellant picked up S.D., Jr. and brought
him to her house. Upon arrival, she instructed him to wait in his bedroom. She entered
the bedroom a few minutes later and explained to S.D., Jr. that his past and present school
No. 19AP-205 5
behavior was unacceptable. She then permitted him to present his version of the events.
After he became verbally "combative," i.e., making excuses for his behavior, appellant
instructed him to pull down his pants; she then spanked him on the buttocks with the "long
part" of her belt five or six times over the course of the next five to six minutes. Id. at 105-
07. She did not strike S.D., Jr. with the belt buckle nor did she slap him in the face.
Appellant testified that S.D., Jr. was "really mad," "upset," and "in shock" that she had
spanked him because she had never done so before. Id. at 107-08. Appellant described
S.D., Jr. as approximately 5' 3" tall, weighing 200 pounds.
{¶ 15} On cross-examination, appellant testified that she was "upset," rather than
"angry," with S.D., Jr. about his ongoing misconduct at school. Id. at 116. Because verbal
reprimands and other noncorporal punishment had been ineffective, she believed physical
discipline was warranted. She acknowledged that she may have struck S.D., Jr. with the
belt on portions of his body other than his buttocks, including his back, arms, and face as
he moved around in an effort to get away from her. She further acknowledged that the welts
on his back, buttocks, and arms resulted from the spanking. She suggested, however, that
some of the bruises on S.D., Jr.'s body may have resulted from the physical altercation with
the female student earlier in the day.
{¶ 16} In closing arguments, the state maintained that appellant's actions in striking
S.D., Jr. multiple times with a belt, resulting in physical injury, constituted both assault and
domestic violence. Defense counsel conceded that appellant struck S.D., Jr. with a belt, but
argued that her actions constituted proper and reasonable parental discipline under the
totality of the circumstances.
{¶ 17} Following closing arguments, the trial court initially averred that "when I
started hearing the testimony of the young man and mom, I * * * pretty much concluded
that this was just a matter of discipline, that she certainly had no intent, it was not her
purpose to harm the child." Id. at 169. After noting that the offenses at issue proscribe
"knowingly" causing or attempting to cause "physical harm," and upon review of the
statutory definitions of those terms, the court concluded that "[appellant] knew that by
striking [S.D., Jr.] with the belt, * * * it could result in some harm." Id. at 170. The court
then found appellant guilty of both assault and domestic violence "for that reason." Id. at
170, 173. In a written decision and entry issued February 13, 2019, the court affirmed that
No. 19AP-205 6
the state had proven the elements of the offenses beyond a reasonable doubt and reiterated
its finding of guilt.
{¶ 18} At a subsequent sentencing hearing, the state elected sentencing on the
domestic violence count and the court imposed a 180-day jail sentence, credited appellant
with three days' time served, and suspended the remaining 177 days. In addition, the court
imposed, and immediately suspended, a $150 fine, which included court costs. The court
also imposed a two-year period of community control with conditions that appellant
complete a parenting program, refrain from violent and/or threatening acts, and have no
contact with S.D., Jr. pending the outcome of certain proceedings in domestic relations
court. The trial court memorialized its judgment and sentence on March 13, 2019.
{¶ 19} In a timely appeal, appellant sets forth the following two assignments of
error:
[I]. The trial court erred in entering judgment of convictions
for domestic violence and assault, because they were against
the manifest weight of the evidence, since the defendant-
appellant proved the affirmative defense of reasonable
parental discipline under the totality of the circumstances by
a preponderance of the evidence.
[II]. The trial court erred and abused its discretion in
imposing a no contact order as a condition of the defendant-
appellant's community control, where the order pertained to
the defendant-appellant's biological child, and had the effect
of terminating her constitutional rights to the care and
custody of her child without due process of law in violation of
the United States and Ohio Constitutions.
{¶ 20} In her first assignment of error, appellant contends her convictions for
assault and domestic violence were against the manifest weight of the evidence because she
proved the affirmative defense of reasonable parental discipline under the totality of the
circumstances.
{¶ 21} Appellant was convicted of assault in violation of R.C. 2903.13(A), which
provides that "[n]o person shall knowingly cause or attempt to cause physical harm to
another." Appellant was also convicted of domestic violence in violation of R.C. 2919.25(A),
which states that "[n]o person shall knowingly cause or attempt to cause physical harm to
a family or household member." Pursuant to R.C. 2901.22(B), "[a] person acts knowingly,
No. 19AP-205 7
regardless of purpose, when the person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances probably exist." R.C.
2901.01(A)(3) defines "[p]hysical harm to persons" as "any injury, illness, or other
physiological impairment, regardless of its gravity or duration."
{¶ 22} "[R]easonable parental discipline is an affirmative defense to a charge of
domestic violence under R.C. 2919.25(A) or assault under R.C. 2903.13(A), with the burden
of proof resting with the accused pursuant to R.C. 2901.05(A)." State v. Faggs, __ Ohio
St.3d __, 2020-Ohio-523, ¶ 29. The propriety and reasonableness of parental discipline
is a question that must be determined from the totality of all the relevant facts and
circumstances. State v. Phillips, 10th Dist. No. 12AP-57, 2012-Ohio-6023, ¶ 18, citing State
v. Thompson, 2d Dist. No. 04CA30, 2006-Ohio-582, ¶ 31; State v. O.A.B., 18AP-384, 2020-
Ohio-547, ¶ 58. In analyzing the totality of the circumstances, a court should consider:
(1) the child's age; (2) the child's behavior leading up to the discipline; (3) the child's
response to prior non-corporal punishment; (4) the location and severity of the
punishment; and (5) the parent's state of mind while administering the punishment."
Phillips at ¶ 18, citing State v. Hart, 110 Ohio App. 3d 250, 256 (1996); State v. Phillips, 5th
Dist. No. 14-CA-003, 2014-Ohio-5322, ¶ 19, quoting State v. Luke, 3d Dist. No. 14-10-26,
2011-Ohio-4330, ¶ 22. "This inquiry is necessary to protect and balance the competing
interests involved in these cases—the parents' fundamental, inalienable right to raise and
control their children and the state's legitimate interest in the protection and safety of
children and in the reporting of child abuse." Id., citing In re Horton, 10th Dist. No. 03AP-
1181, 2004-Ohio-6249, ¶ 13-14.
{¶ 23} In her assignment of error, appellant contends that her convictions were
against the manifest weight of the evidence because she proved the affirmative defense of
reasonable parental discipline. The parties agree that whether a defendant has proved an
affirmative defense is reviewed under a manifest weight of the evidence standard. See State
v. Thompson, 10th Dist. No. 16AP-812, 2017-Ohio-8375, ¶ 20. However, in the body of her
brief, appellant presents a different argument. Appellant contends that the trial court's
finding of guilt was based solely upon a finding that appellant knew that striking her son
with a belt could cause him physical harm without consideration of the totality of the
No. 19AP-205 8
circumstances factors pertaining to the merits of her affirmative defense of reasonable
parental discipline. Appellant asserts that "[t]he trial court did not address the legal issue
or proper and reasonable parental discipline, other than to recite the elements of domestic
violence." (Appellant's Brief at 22.) In essence, appellant maintains that the trial court
failed to apply the correct legal standard, i.e., consideration of the totality of the
circumstances applicable to her claim of reasonable and proper parental discipline, in
reviewing and weighing the evidence. Appellant claims that the trial court's failure in this
regard resulted in her convictions being against the manifest weight of the evidence.
{¶ 24} A challenge to the manifest weight of the evidence is both legally and
analytically distinct from a challenge involving a trial court's alleged failure to apply the
correct legal standard in reviewing and weighing evidence. When considering a challenge
to the manifest weight of the evidence, an appellate court reviews the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997). In contrast, a
determination as to whether the trial court applied the correct legal standard in reviewing
and weighing the evidence presents a question of law requiring de novo review. Luke at
¶ 19, citing State v. Moore, 161 Ohio App. 3d 778, 2005-Ohio-3311, ¶ 36 (7th Dist.).
{¶ 25} This court adheres to the maxim that an appellate court " 'rules on
assignments of error, not mere arguments.' " State v. Hughes, 10th Dist. No. 19AP-385,
2020-Ohio-3382, ¶ 17, citing Huntington Natl. Bank v. Burda, 10th Dist. No. 08AP-658,
2009-Ohio-1752, ¶ 21, citing App.R. 12(A)(1)(b). App.R. 12(A)(1)(b) provides that "a court
of appeals shall * * * [d]etermine the appeal on its merits on the assignments of error set
forth in the briefs." Here, appellant did not assert her claims regarding the trial court's
alleged failure to apply the correct legal standard as part of her assignment of error but
merely raised it in her argument. We note that the state does not address this argument in
its briefing. Rather, the state focuses solely on the argument raised in appellant's
assignment of error, i.e., that appellant's convictions were against the manifest weight of
the evidence because she proved the affirmative defense of reasonable parental discipline.
No. 19AP-205 9
{¶ 26} We further note that three of the four cases upon which appellant relies
addressed challenges to the trial court's alleged application of the wrong legal standard in
cases involving a defendant's assertion of reasonable parental discipline as an affirmative
defense to charges of domestic violence and are thus irrelevant to her manifest weight
argument. See State v. Hicks, 88 Ohio App. 3d 515, 520 (10th Dist.1993); Hart, 110 Ohio
App.3d 250; Luke, 2011-Ohio-4330. The fourth, State v. Mills, 1st Dist. No. C-960482
(Mar. 26, 1997), while postured as a challenge to the manifest weight of the evidence, relied
on Hicks and Hart in support of its conclusion that a trial court's failure to consider the
defense of parental discipline results in a conviction that is against the manifest weight of
the evidence. Mills' reliance on Hicks and Hart was improper because, as noted above,
those two cases analyzed a legal issue, i.e., the trial court's alleged application of the wrong
legal standard, that was different than that before the court in Mills.
{¶ 27} Because an appellate court rules on assignments of error and not mere
arguments, the sole question before this court is whether appellant proved the affirmative
defense of reasonable and proper parental discipline, rendering her convictions for assault
and domestic violence against the manifest weight evidence. As noted above, when
considering a challenge to the manifest weight of the evidence, an appellate court may not
merely substitute its view for that of the trier of fact, but must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. Thompkins; O.A.B., 2020-Ohio-547, ¶ 56. Reversal of a conviction as
being against the manifest weight of the evidence should be reserved for only the most
" 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
{¶ 28} In addressing a manifest weight of the evidence argument, an appellate court
may consider the credibility of the witness. State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6. However, in conducting such review, we are guided by the
presumption that the jury, or the trial court in the bench trial, " 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections and use these
observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons
No. 19AP-205 10
Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984). Accordingly, we afford great deference
to the trier of fact's determination of witness credibility. State v. Phillips, 10th Dist. No.
12AP-57, 2012-Ohio-6023, ¶ 17, citing State v. Redman, 10th Dist. No. 10AP-654, 2011-
Ohio-1894, ¶ 26.
{¶ 29} Here, the record contains testimony as to each of the factors to be considered
by a trial court in conducting a totality-of-the-circumstances analysis pursuant to
appellant's affirmative defense. Indeed, the record contains evidence of S.D., Jr.'s age (12);
his recurrent behavioral problems at school and his "mouthy" and "combative" response to
appellant's attempts to discuss the issue with him (all of which led up to the discipline); his
failure to respond to prior noncorporal punishment (suspending cellphone, television,
videogame privileges, and assigning extra schoolwork); the location and severity of the
punishment (5 to 6 strikes with a belt over a 5 to 6 minute period, resulting in redness,
welts, and bruising to S.D., Jr.'s buttocks, arms, legs, and face), and appellant's state of
mind while administering the punishment. The evidence as to S.D., Jr.'s age, recurrent
behavioral problems at school, negative response to appellant's attempt to discuss his
behavior, and location and severity of the punishment was largely uncontradicted.
Appellant and S.D., Sr. offered conflicting testimony, however, as to the effectiveness of
prior noncorporal punishment. The record also contains conflicting evidence regarding
appellant's state of mind while administering the punishment. Both S.D., Jr. and Sr.
testified that appellant seemed angry about S.D., Jr.'s misconduct at school, and S.D., Jr.
testified that while appellant administered the punishment, she shouted at him and accused
him of preferring his father to her. In contrast, appellant testified that she was upset rather
than angry with S.D., Jr., that her sole motivation was to discipline him for his misbehavior
at school, that she intended, albeit unsuccessfully, to confine the corporal punishment to
his buttocks, and that she had never before physically disciplined him.
{¶ 30} Essentially, appellant argues that the trial court should have discounted the
evidence that she was angry at S.D., Jr., that she struck him with a belt 5 or 6 times over the
course of 5 or 6 minutes, that she shouted at him about his father while doing so, and that
she struck him with such force that it resulted in welts, redness, and bruising to multiple
areas of his body. Appellant contends that the record more reasonably supports an
affirmative defense of reasonable parental discipline based on her testimony that she was
No. 19AP-205 11
upset, not angry at S.D., Jr., that S.D., Jr. had continually misbehaved at school, that the
physical discipline she imposed was aimed at deterring him from further problems at
school, that she struck him other than on the buttocks only because he was moving away
from her, and that this was the first time she had administered corporal punishment.
{¶ 31} As noted above, issues of witness credibility are primarily for the trier of fact,
and an appellate court must afford great deference to those credibility determinations.
Phillips at ¶ 17. Here, the trial court was at liberty to believe the testimony of the state's
witnesses, particularly that of S.D., Jr. and S.D., Sr., over that of appellant and N.S. "[A]
conviction is not against the manifest weight of the evidence because the trier of fact
believed the state's version of events over the defendant's version." State v. Johnson, 10th
Dist. No. 19AP-296, 2020-Ohio-4077, ¶ 20, citing State v. Lindsey, 10th Dist. No. 14AP-
751, 2015-Ohio-2169, ¶ 43, citing State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523,
¶ 19. The trial court was also entitled to find that the method and duration of appellant's
punishment, i.e., repeated strikes with a belt resulting in red, raised welts and bruising to
S.D., Jr.'s body, was inappropriate and excessive. See State v. Jones, 140 Ohio App. 3d 422,
430 (8th Dist.2000) (in a case where defendant struck children repeatedly with a belt as
she chased them around the room, "the fact that [defendant's] punishment raised welts
indicates its excessive nature").
{¶ 32} Based on the limited weighing of the evidence we are afforded in addressing
a manifest weight challenge, we cannot conclude that the trial court lost its way in
concluding that, under the totality of the circumstances, appellant failed to prove the
affirmative defense of reasonable and proper parental discipline and that the state proved
the offenses of assault and domestic violence beyond a reasonable doubt. Accordingly, we
find that appellant's convictions were supported by the manifest weight of the evidence.
{¶ 33} Appellant's first assignment of error is overruled.
{¶ 34} In her second assignment of error, appellant argues that the trial court erred
and abused its discretion in imposing a no contact order between appellant and S.D., Jr. as
a condition of her community control. Following the filing of her initial brief, the trial court
issued an entry modifying the no-contact order to permit family counseling between
appellant and S.D., Jr. as well as visitation as allowed by the domestic relations court.
Thereafter, the state filed, and we granted, a motion to supplement the record with the trial
No. 19AP-205 12
court's entry modifying the no-contact order. Pursuant to the trial court's modification
entry, appellant filed a notice of voluntary withdrawal of her second assignment of error as
moot. Accordingly, pursuant to the notice of voluntary withdrawal, appellant's second
assignment of error is moot.
{¶ 35} Having overruled appellant's first assignment of error and having
determined appellant's second assignment of error to be moot, we hereby affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
BROWN, J., concurs.
DORRIAN, J., dissents.
DORRIAN, J., dissenting.
{¶ 36} I respectfully dissent.
{¶ 37} Appellant contends the trial court's finding of guilt based solely upon a
finding that appellant knew that striking her son with a belt could cause him physical harm
and its failure to consider any of the "totality of the circumstances" factors pertaining to the
merits of her affirmative defense of reasonable parental discipline rendered her convictions
against the manifest weight of the evidence.
{¶ 38} The majority construes this argument as failure to apply the correct legal
standard and, thus, different from the assignment of error. I would construe the argument
as failure to consider the evidence regarding the affirmative defense of parental discipline
and, thus, consistent with the assignment of error.
{¶ 39} Appellant relies on several cases in support of her argument.
{¶ 40} In State v. Hicks, 88 Ohio App. 3d 515 (10th Dist.1993), a mother was
convicted of domestic violence based on testimony from her eight-year-old daughter that
her mother had slapped her hard on the back eight times to punish her for lying and
admissions by the mother that she struck her daughter on the shoulder instead of the
buttocks as she ran away from her, that she hit her daughter "too hard," and that she "lost
control." Id. at 519. The trial court instructed the jury that a parent has a right to discipline
his or her child, nothing in the domestic violence statute prevents a parent from doing so,
and the only prohibition is that a parent may not cause physical harm to the child. On
appeal, the mother argued that the last portion of the jury instruction was erroneous. We
No. 19AP-205 13
agreed, concluding that "[b]ecause the charge given by the trial court in essence told the
jury that any parental discipline which involved physical harm was beyond the bounds of
proper and reasonable parental discipline, we believe the charge misstated the applicable
law as to a critical issue." Id. at 520.
{¶ 41} In State v. Hart, 110 Ohio App. 3d 250 (3d Dist.1996), a father was convicted
of domestic violence after admitting during his bench trial that he slapped his daughter
twice as a means of corporal punishment after she stole money from him and then lied to
him about the theft. At the close of trial, the trial court found the state proved the elements
of domestic violence. Central to its determination was a finding that only spanking
qualified as corporal punishment; slaps to the face or head did not so qualify. On appeal,
the court defined corporal punishment more broadly to include physical punishment
inflicted on any portion of the body, including the head, arms, and legs. The court found
the trial court erred in considering only spanking to qualify as corporal punishment and
ignoring the possibility that corporal punishment to other parts of the body may also be
proper and reasonable parental discipline. The court averred that the propriety and
reasonableness of corporal punishment in each case must be judged in light of the totality
of the circumstances, including factors such as the child's age, behavior, response to non-
corporal punishment, as well as the location and severity of the punishment. The court
concluded that "[w]ithout first recognizing slaps to the face or the head as a means of
corporal punishment, the trial court never reached the issue of whether, under the
circumstances, the corporal punishment was proper and reasonable. Therefore, the court
did not consider the legitimate defense of Appellant to the charge before finding Appellant
guilty. Under the circumstances, we find the judgment of the trial court to be against the
manifest weight of the evidence." Id. at 256.
{¶ 42} State v. Mills, 1st Dist. No. C-960482 (Mar. 26, 1997), concerned a stepfather
charged with domestic violence after a verbal altercation with his stepdaughter escalated to
a physical altercation when he touched her on the neck, pushed her away from him, and
she hit him back. During his bench trial, the stepfather argued that his actions during the
dispute were the exercise of proper and reasonable parental discipline. The trial court found
the only issue posed by the evidence was whether the state had proved the element of
physical harm. On appeal, the stepfather argued the trial court's failure to consider his
No. 19AP-205 14
defense of parental discipline resulted in a conviction that went against the manifest weight
of the evidence. The appellate court agreed, stating:
[T]he record does not reflect a finding, or even a consideration
by the trial court, of whether Mills's act of touching his
stepdaughter near or on her neck and pushing her away fell
within the ambit of reasonable and proper parental discipline.
At the close of all the evidence, the trial court stated that the
only issue to be determined was whether the element of
physical harm had been proven. The trial court then noted
that, pursuant to the definition of that term in what was then
R.C. 2901.01(C) [now R.C. 2901.01(A)(3)], physical harm had
been shown. This inquiry was too narrow. Once a defendant
has presented evidence on the defense of parental discipline,
the trial court must weigh whether the actions constituted
proper and reasonable discipline, or whether they constituted
an injury within the meaning set forth in [State v. Suchomski,
58 Ohio St. 3d 74 (1991)]. A finding of guilty made by a trial
court that has failed to consider the defense of parental
discipline goes against the manifest weight of the evidence.
{¶ 43} The court cited both Hart and Hicks in support of its conclusion. The court
remanded the matter "for a new trial in which it is to be determined whether Mills's actions
toward his stepdaughter constituted proper and reasonable parental discipline, or whether,
falling outside of such discipline, the actions constituted injury and consequently physical
harm in violation of R.C. 2919.25(A)."
{¶ 44} Finally, in State v. Luke, 3d Dist. No. 14-10-26, 2011-Ohio-4330, the father
was convicted of domestic violence based on an incident during which he pushed his 15-
year-old son into a bar stool and slapped him in the face, causing his head to hit a wall. At
his bench trial, the father raised the affirmative defense of parental discipline. The trial
court found the father guilty, averring that his action in slapping his son was not discipline;
rather, after the son "mouthed off to him," the father just "flew off the handle and he hit
him." Id. at ¶ 15. The court further averred that "I didn't hear any testimony or evidence
that it was in any way meant to discipline him." Id.
{¶ 45} On appeal, the court first observed that a trial court's failure to apply the
totality of the circumstances analysis set forth in Hart "in its entirety" when addressing the
defense of parental discipline results in error. Id. at ¶ 29. The court found that the trial
court failed to apply the Hart analysis when addressing the reasonableness of the father's
No. 19AP-205 15
actions. In particular, the court found the trial court focused exclusively on the slap and
failed to consider the events leading up to and surrounding the slap. The court reasoned
that "[o]ne cannot determine the reasonableness of corporal punishment without also
considering the reason for which it was administered. Considering the factors set forth in
Hart, particularly the factor instructing the trier of fact to consider the child's behavior
leading up to the discipline, it is clear that addressing why a parent disciplined his or her
child is crucial to determining whether the discipline was reasonable." Id. at ¶ 30. The
court concluded the trial court's failure to consider why the father slapped his son
demonstrated the trial court's failure to apply the applicable law.
{¶ 46} The court also concluded the trial court failed to consider relevant evidence
proffered in support of the father's defense of parental discipline. Addressing the trial
court's finding that it heard no testimony or evidence that the father's slapping his son was
meant as discipline, the appellate court noted that the record contained evidence of the
son's age, his behavior leading up to the slap, the father's previous attempts at non-corporal
punishment, the location and severity of the slap, and the father's state of mind. The court
averred the trial court should have considered such evidence "as it is highly relevant in
determining the reasonableness of [the father's] actions." Id. at ¶ 32. The court further
observed that the trial court seemingly focused exclusively on only one of the factors, i.e.,
the father's state of mind, in finding that the father just "flew off the handle." Id. The court
concluded that "[c]onsideration of only one factor in a multi-factor analysis, especially
where there is evidence that goes to each factor, is error." Id.
{¶ 47} Finally, the court addressed a trial court's obligation to consider the form of
discipline imposed by the parent, including the child's response to prior non-corporal
punishment. "If a child has failed to respond to simple forms of discipline, such as loss of
privileges or additional chores, a reasonable progression of other forms of discipline may
be reasonable, including at some point, corporal punishment. Also, whether a progression
in the form of corporal punishment has occurred should be considered as a part of the
totality of the circumstances." Id. at ¶ 33. The court noted there was evidence presented at
trial establishing "a progression of types or forms of discipline had occurred." Id.
{¶ 48} I would find these cases relevant to the case before us, even though factually
distinguishable, "as they instruct that the proper approach in evaluating the reasonableness
No. 19AP-205 16
of a parent's disciplinary act is to examine not just the act itself, but rather, the totality of
the circumstances surrounding the act, and to assess those circumstances in light of each
factor of the Hart analysis." Id. at ¶ 27.
{¶ 49} Upon review of the record in the instant case, I would conclude the trial court
erred in two respects. First, the trial court's finding of guilt was based solely upon a finding
that appellant knew that striking her son with a belt could cause him physical harm.
Second, the trial court also failed to consider relevant evidence presented in support of
appellant's affirmative defense of proper and reasonable parental discipline.
{¶ 50} The majority has considered the manifest weight of the evidence and the
testimony as to each of the factors regarding parental discipline required to be considered
by a trial court in conducting a totality of the circumstances' analysis. (See Majority
Opinion at ¶ 27-32.) I would decline to conduct this analysis. Rather, I would remand the
case to the trial court to determine in the first instance whether appellant proved by a
preponderance of the evidence the affirmative defense of parental discipline.
{¶ 51} The trial court mentioned the word "discipline" only in its initial remarks at
the close of trial. Without any further discussion or analysis pertaining to "discipline," the
court shifted its focus to the fact that appellant struck her son with a belt and knew that in
doing so she could cause physical harm. The court found appellant guilty solely on that
basis. I would find the trial court's finding in this regard to be akin to those found to be
deficient in the foregoing case law. In essence, the trial court found that the only issue
posed by the evidence was whether the state had proved the element of physical harm. In
so finding, the trial court never reached the issue of whether, under the totality of the
circumstances, the corporal punishment administered by appellant was proper and
reasonable. Persuaded by the case law set forth above, I would find the trial court's failure
to consider her defense of reasonable parental discipline resulted in a conviction that was
against the manifest weight the of evidence.