Beachwood v. HillBeachwood v. Hill
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
ATTORNEY FOR APPELLANT
Je‘nine Nickerson
Bartos and Rini
13363 Madison Avenue
Lakewood, Ohio 44107
Also listed
Janessa Hill
3656 Lindholm Road
Shaker Heights, Ohio 44120
ATTORNEY FOR APPELLEE
Thomas F. Greve
Rademaker, Matty, McClelland & Greve
55 Public Square
Suite 1775
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant Janessa Hill appeals her conviction and sentence from the Shaker Heights Municipal Court. For the reasons stated herein, we affirm in part and reverse in part and remand.
{¶ 2} On July 31, 2008, Beachwood police officer Charlene Traub issued a citation to Hill on a charge of child endangerment. Hill had left her three children, ages eight, seven, and four, in the car while she went inside a Giant Eagle store in Beachwood, Ohio, to shop for groceries. On August 19, 2008, Hill entered a not guilty plea. A bench trial commenced on December 16, 2008; it was continued until April 1, 2009, on which date the trial сoncluded.
{¶ 3} The evidence adduced at trial was as follows: at approximately 9:00 p.m. on July 31, 2008, Officer Traub was in the parking lot of the Giant Eagle on Chagrin Boulevard when she noticed a child extending the upper half of his body out of a car window. Officer Traub then noticed another child extending her head out of the same window. She approached the car, where she noticed three childrеn in the backseat and no adult present. She inquired of the oldest child where his parents were, and he explained to her that his mother was in the store shopping. He also told her that his mother had been in the store for about five minutes.
{¶ 4} Officer Traub called for backup at 9:02 p.m.; additional officers responded to the scene. Officer Traub and Officer Preston LaFrance testified they spoke with the сhildren and determined the children were not injured, were not afraid, and were by all accounts happy and well-mannered. The officers remained with the children until their mother, Hill, exited the store approximately fifteen minutes later. Officer LaFrance testified Hill was pushing a cart full of grocery bags. Officer Traub issued Hill a citation for child endangerment, pursuant to Beachwood Codified Ordinances 636.11(a), which is analogous to
{¶ 5} At the close of the state‘s case, Hill moved for a
{¶ 6} The defense presented three witnesses: Hill‘s oldest child; Selena Brown, a teacher who knew two of Hill‘s children; and Hill herself. Hill‘s son, who was eight years old at the time of the incident, testified that his mother left him and his sisters in the car while she went into Giant Eagle to shop. He testified he had not stuck any part of his body out of the window, and when his youngest sister stuck her head out of the window, he made her sit back down. Hill‘s son also testified he was not afraid to be in the car without an adult and that he had learned from school what to do in case a stranger approached the car. He testified the window was open far enough for his sister to stick her head out or for someone to reach inside.
{¶ 7} Brown testified she knew Hill because she had previously taught Hill‘s oldest and middle children. She testified Hill was a conscientious mother and she believed Hill would never do anything to harm her children or put them in any danger. She also testified Hill‘s son was very mature for his age.
{¶ 8} Hill testified she was in Giant Eagle getting a few items for her children‘s dinner. She parked her car approximately 40 feet from the entrance to the store. She stated she was in the store less than 15 minutes, and her sales receipt, which was admitted as an exhibit, reflected thаt she bought $8.70 worth of goods and that she checked out at 9:09 p.m. She also stated she trusted her son to watch his little sisters for a short period of time. Hill testified she had locked her children in the car with her cell phone, and she had left one window cracked open a small amount.
{¶ 9} At the close of Hill‘s case, defense counsel moved for a directed verdict, which the court denied. In a July 22, 2009, journal entry, thе court entered a guilty verdict on the child endangerment charge and pronounced sentence of 12 months inactive probation and a $250 fine, with the fine suspended as long as Hill did not violate her probation. Hill was not present when the court found her guilty and imposed sentence.
{¶ 10} Hill filed her notice of appeal, raising four assignments of error for our review.
{¶ 11} “I. The trial court‘s denial of appеllant‘s Criminal Rule 29 motion for acquittal and subsequent finding of guilt as to the charge of child endangerment was not supported by sufficient evidence.”
{¶ 12} In her first assignment of error, Hill argues that the city failed to present evidence she violated her duty of care, she acted recklessly, and she placed her children at a substantial risk of harm.
{¶ 13} Hill argues first that
{¶ 14} A motion for acquittal under
{¶ 15}
{¶ 16} Although this statute does not specify a culpable mental state, the Ohio Supreme Court has held that recklessness is an essential element of the offense. See State v. McGee (1997), 79 Ohio St.3d 193, 680 N.E.2d 975, syllabus; State v. Massey (1998), 128 Ohio App.3d 438, 715 N.E.2d 235.
{¶ 17} Further, the city must prove Hill created a “substantial risk to the health or safety of the child.”
{¶ 18} Hill argues that the city failed present sufficient evidence that she violated a duty of care to her children, acted recklessly, and created a substantial risk to her children‘s health and safety. She cites several cases in which Ohio appellate courts overturned convictions of defendants who left their child or children in a vеhicle without adult supervision, most notably State v. Martin (1999), 134 Ohio App.3d 41, 730 N.E.2d 386, and State v. Hughes, Shelby App. No. 17-09-02, 2009-Ohio-4115.
{¶ 19} In Martin, the defendant left her eight-year-old child asleep in a car, entered a department store to return a gift, and was gone for approximately 20 to 30 minutes; the child woke, accidentally dislodged the gear shift, and the car rolled into a parking lane. In Hughes, the defendant left his five-year-old in a locked car with the engine running while he went into a Wal-Mart for apрroximately 30 minutes; the child apparently unlocked the door for the policemen who found her.
{¶ 20} However, the facts in Martin and Hughes are distinguishable from the facts before us. Here Hill left three children alone, the youngest of
{¶ 21} Rarely will we find earlier cases decided on facts that are identical to the ones we face presently; it seems that the outcome of child endangerment casеs are highly fact-specific. Yet, this is all the more reason to find that the city presented sufficient evidence to support a conviction as charged. This court must view the evidence in a light most favorable to the prosecution. While it is fortunate that the children were not injured or harmed, we find there was sufficient evidence Hill acted recklessly and violated a duty of care by creating a substantial risk to the health and safety of her children.
{¶ 22} Hill‘s first assignment of error is overruled.
{¶ 23} “II. The trial court‘s finding of guilt as to the charge of child endangering is against the manifest weight of the evidence.”
{¶ 24} In her second assignment of error, Hill argues that the court lost its way given that much of the testimony from the police officers was in direct conflict with the evidence presented by the defense.
{¶ 25} In reviewing a claim challenging the manifest weight of the evidenсe, the question to be answered is whether “there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether 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.” (Internal citations and quotations omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
{¶ 26} Hill cites to several places in the record where the police officers’ testimony was in direct conflict with her own or her son‘s. In one instance, Hill notes that Officer Traub testified Hill was gone at least 15 minutes from the time the officer saw the children. Hill testified that she was in the store less than 15 minutes total, and that her sales receipt, showing she checked out at 9:09 p.m., suggests Officer Traub was mistaken as to how long the children were alone. In another instance, Officer LaFrance testified Hill returned with a cart full of groceries, implying Hill was in the store
{¶ 27} There is no question the evidence presented was contradictory on some points. However, the court, as fact finder, was in the best position to weigh the witnesses’ testimony and determine credibility. What is perhaps more significant here is that even if Hill‘s testimony were accurate and the officers’ testimony were exaggerated in any way, this does not mean the court lost its way finding her guilty of child endangerment. Hill left her three very young children unattended in a public parking lot, on a busy street, at 9:00 p.m., for 15 minutes.
{¶ 28} Although the record does not indicate whether diversion was considered, we find the court did not lose its way finding Hill guilty of child endangerment. Hill‘s second assignment of error is overruled.
{¶ 29} “III. The trial сourt violated the appellant‘s constitutional right to be present and be heard at sentencing.”
{¶ 30} In her third assignment of error, Hill argues the court violated her constitutional right by pronouncing its sentence without her being present and without giving her a chance to allocute. In its brief, the city conceded that Hill was not present when the court sentenced her, and that a criminal defendant has the right to be рresent when the court imposes its sentence; however, the city argued that with the facts before us, any error was harmless, and Hill did not demonstrated how she was prejudiced.3
{¶ 31} Section 10, Article I of the Ohio Constitution and
{¶ 32} The purpose of allocution is to allow the defendant an opportunity to state for the record any further information that the judge may take into consideration when determining the sentence to be imposed.
{¶ 33} We find it was error for the court to pronounce sentence in Hill‘s absence. Hill had a right to be present and allocute, if she chose. While it may not have made any difference in her sentence, the court should have notified Hill that it intended to pronounce its verdict and sentence, thereby giving Hill an opportunity to be present and address the court.4
{¶ 34} Hill‘s third assignment of error is sustained.
{¶ 35} “IV. The trial court failed to hear the trial on the merits within the guidelines as set forth by the Rules of Superintendence to the appellant‘s detriment.”
{¶ 36} In her fourth assignment of error, Hill argues the excessive length of time between her arraignment and the pronouncement of her sentence, a period of more than nine months, was a violation of her rights. She relies exclusively on Ohio Rule of Superintendence 39(B), which sets forth a time frame under which misdemeanor criminal cases should be tried.
{¶ 37} We note at the outset that the body of rules to which Hill cites does not confer upon her specifically protected individual rights, but instead provides guidance for common pleas courts in managing their dockets. The Rules of Superintendence “were intended as an administrative directive from
{¶ 38} On appeal, Hill has not raised a statutory speedy trial violation, nor has she raised a constitutiоnal speedy trial violation. Even so, such an argument would have been unsuccessful since Hill was brought to trial within the statutorily prescribed time period for a first degree misdemeanor, as set forth in
{¶ 39} Hill‘s argument is that the nine-month delay is, in and of itself, a violation of her rights. In fact, we have admonished the domestic relations court of the same need to conclude cases on a timely basis. Although it may not serve as a justification for the delay, the court acknowledged on the record
{¶ 40} Hill does not articulate any violation of her rights or prejudice she suffered as a result of the delays in concluding her trial. While this case underscores the importance of maintaining continuity during trials, the failure to do so in every instance is not reversible error.
{¶ 41} Hill‘s fourth assignment of error is overruled.
Judgment affirmed in part, reversed in part, and cause remanded for proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The cоurt finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
ANN DYKE, J., CONCURS IN JUDGMENT ONLY;
MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION
{¶ 43} Hill was convicted of violating
{¶ 44} Substаntial risk is defined as “a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.”
{¶ 45} The city‘s evidence showed that Hill was in the store for less than ten to fifteen minutes, and her sales receipt reflected she bought $8.70 worth of goods at 9:09 p.m., that Officer Traub called for backup at 9:02 p.m., and that she left her three children, ages 8, 7, and 4, in a locked car with a cell phone, giving the children the ability to contact their mother.
{¶ 46} The evidence further showed that the children “were not injured, were not afraid, and were by аll accounts happy and well-mannered.” Even viewing this evidence in a light most favorable to the prosecution, the city failed to prove Hill‘s conduct gave rise to a “substantial safety risk” to her children. The children were not injured, and the city failed to prove beyond a reasonable doubt that there was a strong possibility that they would be injured. While Hill‘s actions may have created a speculаtive risk to her children‘s safety, mere speculation about what might have happened is insufficient to show that there was a strong possibility that an event might occur. Eastlake v. Carrao, Lake App. No. 2002-L-094, 2003-Ohio-2373, at ¶17, citing State v. Allen (2000), 140 Ohio App.3d 322, 747 N.E.2d 315; State v. Martin (1999), 134 Ohio App.3d 41, 44, 730 N.E.2d 386; State v. Massey (1998), 128 Ohio App.3d 438, 715 N.E.2d 235.
{¶ 47} The city also failed to prove beyond a reasonable doubt that Hill acted recklessly. While her actions may have been inappropriate and imprudent, I cannot conclude that Hill perversely disregarded a known risk or acted with heedless indifference to the consequences.
{¶ 48} While not condoning Hill‘s inappropriate actions, as this court has recognized, parents and other child caregivers are not criminally liable for every error in judgment or act of bad parenting. State v. Bennett (July 13, 1995), Cuyahoga App. No. 68039. See, also, Allen, at 325. The city‘s evidence, even when viewed in a light most favorable to the prosecution, was insufficient to