State v. Guerra , 2022 Ohio 3609 ( 2022 )

[Cite as State v. Guerra, 2022-Ohio-3609.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-22-05
v.
ALEXANDRA A. GUERRA, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Municipal Court
Trial Court No. 2021 CRB 00212
Judgment Affirmed
Date of Decision: October 11, 2022
APPEARANCES:
Zachary D. Maisch for Appellant
Nichole M. Smith for Appellee
Case No. 12-22-05
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Alexandra A. Guerra (“Guerra”), appeals from
her conviction of one count of endangering a child following a bench trial in Putnam
County Municipal Court. We affirm.
{¶2} This case stems from injuries M.D. (a two-year old child) sustained
while Guerra babysat him. M.D. had injuries to his face, head, and body that were
discovered by M.D.’s mother when Guerra returned the child to his home.
{¶3} On December 13, 2021, a complaint was filed in Putnam County
Municipal Court against Guerra for child endangerment in violation of R.C.
2919.22(A), (E)(2)(a), a first-degree misdemeanor. On December 28, 2021, Guerra
was arraigned and entered a not-guilty plea.
{¶4} After a bench trial on February 24, 2022, the trial court found Guerra
guilty of child endangerment. On March 24, 2022, the trial court sentenced Guerra
to serve 45 days in jail.
{¶5} Guerra filed her notice of appeal on April 22, 2022 and raises two
assignments of error for our review, which we will discuss together.
Assignment of Error I
The Trial Court erred by finding against the weight of the
evidence that the defendant recklessly created a substantial risk
to the health or safety of a child, by violating a duty of care,
protection or support.
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Assignment of Error II
The trial court erred in determining that each essential element
of the crime was proven beyond a reasonable doubt due to the
insufficiency of the evidence.
{¶6} In her assignments of error, Guerra argues that her conviction is based
on insufficient evidence and that her conviction is against the manifest weight of the
evidence. In her first assignment of error, Guerra asserts that there was no evidence
presented (at trial) regarding the conduct that led to M.D.’s bruising, the age of the
bruises, or to explain M.D.’s mother’s delay in contacting law-enforcement officers
that is attributable to Guerra. In her second assignment of error, Guerra argues: that
the State failed to present evidence of recklessness; that she created a substantial
risk to the health or safety of M.D.; or that she violated her duty of care.
Standard of Review
{¶7} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997), superseded by state statute on other grounds, State v. Smith, 80 Ohio St.3d
89 (1997). Thus, we address each legal concept individually.
{¶8} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
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St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, Smith at 89. Accordingly, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both
are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos.
C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 1st Dist.
Hamilton No. C-110097, 2011-Ohio-6267, ¶ 25. See also State v. Berry, 3d Dist.
Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test
of adequacy rather than credibility or weight of the evidence.”), citing Thompkins
at 386.
{¶9} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine 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 at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
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to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence
{¶10} Here, Guerra was convicted of child endangerment under R.C.
2919.22(A). R.C. 2919.22 provides in its pertinent parts:
(A) No person, who is the * * * 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. * * *.
(E)(1) Whoever violates this section is guilty of endangering children.
(2) If the offender violates division (A) or (B)(1) of this section,
endangering children is one of the following, and, in the
circumstances described in division (E)(2)(e) of this section, that
division applies:
(a) Except as otherwise provided in division (E)(2)(b), (c), or (d) of
this section, a misdemeanor of the first degree;
R.C. 2919.22(A), (E)(1), (E)(2)(a). “Substantial risk” is defined to mean “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).
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{¶11} The requisite degree of culpability for a child-endangerment
conviction is recklessness. State v. Spivey, 1st Dist. Hamilton No. C-200125, 2021-
Ohio-2598, ¶ 12, quoting State v. McGee, 79 Ohio St.3d 193 (1997), syllabus.
Reckless-mental culpability is defined in R.C. 2901.22, which provides as follows:
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.
R.C. 2901.22(C).
{¶12} Thus, a conviction under R.C. 2919.22(A) requires the State to prove
that: (1) a person having custody or control over a child under eighteen years of age
(2) recklessly (3) created a substantial risk to the health or safety of the child (4) by
violating a duty of care, protection, or support. State v. Dillon, 4th Dist. Washington
No. 01 CA2591, 2013-Ohio-614, ¶ 12. We note, “these types of cases are intensely
fact-specific, and therefore, do not easily lend themselves to comparison to other
child-endangering cases”. Cuyahoga Hts. v. Majors, 8th Dist. Cuyahoga Nos.
100687 and 100689, 2014-Ohio-3326, ¶ 26.
{¶13} A review of the record reveals that Guerra raised an identity defense
at trial arguing that she was not the actual perpetrator of the physical harm that M.D.
suffered. Affirmative acts of abuse are considered acts of commission and are
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charged under R.C. 2919.22(B). However, Guerra was charged under R.C.
2919.22(A), which involves acts of omission or circumstances of neglect. See State
v. Kamel, 12 Ohio St.3d 306, 309 (1984). “R.C. 2919.22(A) is aimed at preventing
acts of omission or neglect when the breach results in a substantial risk to the health
or safety of a child.” State v. Stewart, 5th Dist. Stark No. 2007-CA-00068, 2007-
Ohio-6177, ¶ 59, citing State v. Sammons, 58 Ohio St.2d 460 (1979), appeal
dismissed, Sammons v. Ohio, 444 U.S. 1008, 100 S.Ct. 655 (1980) and Kamel at
308. Thus, “an inexcusable failure to act in discharge of one’s duty to protect a
child where such failure to act results in a substantial risk to the child’s health or
safety is an offense under R.C. 2919.22(A).” Kamel at 309.
{¶14} The allegations in the instant case are that M.D. suffered physical
harm (i.e., injuries to his face, head, and body) while in the custody or control of
Guerra who had a duty to care for or protect him from physical harm, thereby,
creating a substantial risk to the health or safety of M.D.
{¶15} Importantly, Guerra does not challenge the trial court’s factual finding
as to the first element of child endangerment (i.e., custody, control, or that she was
in loco parentis). Rather, Guerra argues that the State did not present any evidence
in support of the remaining elements of the offense. Thus, we look to the record to
determine whether or not the State met its burden of proof.
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{¶16} Indeed, the nature and extent of the injuries sustained by M.D. is
evidence itself that Guerra’s duty of care and protection owed to M.D. was breached.
According to the evidence presented at trial, M.D. was a healthy two-year-old at the
time he was entrusted into Guerra’s care. Even though M.D. did have a small
existing bruise on his forehead that appeared yellow in color, he was, otherwise,
injury free. After picking M.D. up and returning to her residence, Guerra contacted
M.D.’s mother regarding the existing bruise and stated that she would be giving
M.D. a bath before returning him home. Hours later, when Guerra returned with
M.D., M.D. lept from the front seat of the vehicle into his mother’s arms, clinging
to her, which was uncharacteristic.1 Guerra then told M.D.’s mother that M.D. had
fallen at the park. Importantly, Guerra failed to provide further information of
M.D.’s injuries including the location or severity of the same.
{¶17} After the mother entered her residence when Guerra left, she removed
M.D.’s coat and hat, and observed multiple, significant injuries about her child, none
of which existed when Guerra picked-up M.D. On him, she saw numerous bruises,
a split-lip, a ligature mark around his neck, and a severe bruise on the tip of his
genitals that ultimately required medical treatment.
{¶18} Contrary to Guerra’s argument, proof of an act of commission (i.e.,
abuse) is not an element of the offense of child endangerment as charged in this
1
Despite the fact that M.D. could not verbally communicate the circumstances involved in his injuries
because of his tender age and speech delays, he was able to engage in some non-verbal communication.
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case. However, the location, the nature, and the extent of M.D.’s injuries is evidence
that Guerra breached her duty to care for or to protect M.D. Here, the record
supports that M.D. suffered multiple injuries that were inconsistent with a fall,
which Guerra failed to discuss or reveal to M.D.’s mother. Hence, we conclude that
there was sufficient evidence to permit the trial judge to reach a determination that
Guerra breached her duty of care or protection owed to M.D.
{¶19} Next, we address whether Guerra’s breach created a substantial risk
to M.D.’s health or safety. “In determining whether a substantial risk to the health
or safety of the child exists, the trial court is not permitted to ‘make an inference
upon an inference in order to transform a speculative risk into a substantial risk.’”
State v. Hughes, 3d Dist. Shelby No. 17-19-02, 2009-Ohio-4115, ¶ 21, quoting
Middletown v. McWhorter, 12th Dist. Butler No. CA2006-03-068, 2006-Ohio-7030,
¶ 11. See also State v. Caton, 137 Ohio App.3d 742, 751 (1st Dist.2000).
{¶20} In this bench trial, the trial judge (as trier of fact) was permitted to
consider the location, the nature, and the extent of M.D.’s injuries since those
injuries were relevant to a determination as whether Guerra’s breach created a
substantial risk to the health or safety of M.D. See State v. Powell, 132 Ohio St.3d
233, 2012-Ohio-2577, ¶ 137. Regardless of who or what caused M.D.’s injuries,
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the location, the nature, and the extent of his injuries demonstrates a substantial risk
to his health and safety.2
{¶21} The question then is whether or not Guerra was reckless in her breach
of her duty of care or protection of M.D. Certainly, by failing to obtain prompt
medical treatment for M.D. or by failing to notify M.D.’s mother of his injuries so
she (M.D.’s mother) could seek medical treatment for her child, Guerra failed to act
where she had a duty to act. Any reasonably prudent babysitter would have sought
medical attention for a two-year-old child who had sustained multiple injuries to his
head, face, and body, or, at the very least, would have notified the parent of the
injuries so the parent could act accordingly. Given the location, the nature, and the
extent of M.D.’s injuries; the time period when those injuries occurred; and because
Guerra’s versions of the events regarding the child’s injuries was at variance with
the other testimony, we conclude that the failure to seek medical attention for the
child or to notify his mother of the injuries created a substantial risk to the child’s
health and safety. Consequently, we conclude the trial judge did not err by reaching
a determination that Guerra acted recklessly under the facts presented.
2
Notably, neither version that Guerra provided to M.D.’s mother or law enforcement explains M.D.’s
injuries to his genitals or neck. Significant to us, Guerra testified the only time she was alone with M.D. was
at the park and during their ride to his home, which preceded the discovery of the fresh bruises to his head,
face, and neck. (See State’s Exhibits A, B, C, D, E, F). Moreover, it is uncontroverted that Guerra spent
many hours with M.D. and gave M.D. a bath. Thus, M.D.’s genitals were exposed during diaper changes
and the bath. Indeed, Guerra was in a position to observe and report the obvious genital injury.
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{¶22} Viewing the evidence in the light most favorable to the prosecution,
we conclude that a rational trier of fact could have found beyond a reasonable doubt
that Guerra recklessly violated her duty of care or protection to M.D., and thus,
created a substantial risk to the health or safety of M.D. Accordingly, the State met
its burden of proof, and hence, there was sufficient evidence to support Guerra’s
child-endangerment conviction.
Manifest Weight of the Evidence Analysis
{¶23} Guerra raises several arguments with respect to the weight of the
evidence at trial. In the first portion of her argument, Guerra asserts that that the
weight of the evidence does not support her child-endangerment conviction since
no evidence was presented to establish the elements of the offense. In the second
portion of her argument, Guerra challenges the lack of State’s evidence regarding
the age or source of M.D.’s bruising. In the third portion, Guerra asserts that time
period before M.D.’s mother contacted law enforcement should not be attributed to
her (Guerra) acting recklessly or creating any risk to M.D.
{¶24} In a bench trial, the trial court assumes the fact-finding function of the
jury. Accordingly, to warrant reversal from a bench trial under a manifest-weight-
of-the-evidence challenge, we must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether in resolving conflicts in evidence, the trial court clearly lost its way and
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created such a manifest miscarriage of justice that the judgment must be reversed
and a new trial ordered. Thompkins, 78 Ohio St.3d at 387.
{¶25} Guerra’s first assertion, as to the weight of the evidence, is predicated
on the premise that we would conclude that there was not sufficient evidence
presented to support her child-endangerment conviction. This presumption is
contrary to the conclusion we reached in the second assignment of error. To us,
what Guerra is really arguing is that the trial judge should have viewed Guerra’s and
her nine-year old daughter’s testimonies as more credible than the State’s witnesses
because no one testified as to how M.D. was injured. Here, the trial judge heard the
State and defense witnesses testify (at trial) and stated that he was “judging the
credibility of those witnesses as they testified”. Thus, it is apparent to us that the
trial judge believed the State’s witnesses and not Guerra. See State v. Henderson,
3d Dist. Allen No. 1-18-30, 2018-Ohio-4550, ¶ 29. Under the facts presented, we
will not second-guess the trial court’s judgment. Hence, this portion of her first
assignment of error is without merit.
{¶26} In the second portion of her argument, Guerra asserts that the State
presented no evidence regarding the age or source of M.D.’s bruising.
{¶27} We begin by addressing Guerra’s argument related to the source of
the bruising. Because the State charged this as an act of omission (neglect) and not
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commission (abuse), the State was not required to show how M.D. developed his
injuries. Thus, the argument as to the source of the child’s bruising lacks merit.
{¶28} Next, we turn to the Guerra’s assertion as to the age of his bruises.
Even though the age of the bruising is relevant to the trial judge’s determination of
when the injuries could have occurred to establish whether M.D. sustained the
injuries while in Guerra’s custody or control, Guerra’s assertion that the State did
not present any evidence as to the foregoing is contrary to the evidence in the record.
The State presented the testimony of Chief Tammy Blunk (“Blunk”) in its case-in-
chief. Blunk testified that she arrived 20 minutes after M.D.’s mother reported his
injuries. According to Blunk, and based upon her first-aid training, experience in
law enforcement, and as a mother, the injuries to M.D.’s face, head, and neck were
fresh and continued to worsen, as she perceived them. She testified that the injuries
to the child were new occurring “within the first hour”. M.D.’s mother also testified
that the injuries to her son occurred while he was in the care of Guerra. On the
contrary, Guerra presented no evidence as to the age of the child’s bruising.
{¶29} To us, Guerra’s argument (i.e., that the trial judge should have
determined that Guerra’s testimony weighed more heavily than the testimony of
Blunk and M.D.’s mother) is a credibility determination for the trial judge in a bench
trial, in which the trial court is able to assign credibility as it deems appropriate. See
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Henderson at ¶ 29. We will not disturb the trial court’s credibility determination
under the facts presented.
{¶30} Finally, the third portion of Guerra’s argument is that the State failed
to establish a timeline of when M.D. was dropped-off by Guerra and when the police
arrived. This challenge is directly contradicted by the record recited above.
Nevertheless, Guerra asserts that the gap of time should not be attributable to her
acting recklessly or creating any risk to M.D. We note Guerra never fully develops
this issue and does not cite any case law in support of her argument. In our view,
Guerra’s contention could lead us in a variety of different directions. Since her
argument is not fully developed and because she did not explain how this constitutes
prejudicial error, we decline to address an extraneous argument. See App.R.
12(A)(2); App. R. 16(A)(7).
{¶31} Therefore, having weighed the evidence and all reasonable inferences,
and considering the credibility of the witnesses, we conclude that the trial court did
not clearly lose its way and create such a manifest miscarriage of justice that
Guerra’s conviction must be reversed. The weight of the evidence supports the
finding that Guerra was a person having custody or control, or in loco parentis of
M.D. who created a substantial risk to his health or safety by violating her duty of
care or protection. Consequently, Guerra’s child-endangerment conviction is not
against the manifest weight of the evidence.
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{¶32} Accordingly, Guerra’s first and second assignments of error are
overruled.
{¶33} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
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