State v. GarnerState v. Garner
- Reporters:
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- Before:
- Belfance
BELFANCE, Judge.
{¶1} Defendant-Appellant Torrince Garner appeals from his conviction in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} In June 2010, Mr. Garner was indicted on one count of kidnapping in violation of
{¶3} Mr. Garner has appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT‘S CONVICTION.
{¶4} Mr. Garner asserts in his first assignment of error that his conviction was based on insufficient evidence. Specifically, he argues that there was insufficient evidence that Mr. Garner restrained the victim‘s liberty under circumstances that created a substantial risk of serious physical harm to the victim.
{¶5} In determining whether the evidence presented was sufficient to sustain a conviction, this Court reviews the evidence in the light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore:
An appellate court‘s function when reviewing thе 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. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
{¶6}
[n]o person, * * * in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall knowingly * * * under circumstances that
either create a substantial risk of serious physical harm to the victim or cause physical harm to the victim: * * * (2) [r]estrain another of the other person‘s liberty.
(Emphasis added.) We note that Appellant has not argued that there was no evidence of restraint, nor has asserted that the restraint only occurred during a narrow portion of his encounter with the victim. “`Substantial risk’ meаns a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.”
{¶7} “Serious physical harm to persons” means any of the following:
Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
Any physical harm that carries a substantial risk of death;
Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
Any physical hаrm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
{¶8} Mr. Garner‘s conviction for kidnapping stems from a series of events that took place on June 7, 2010, in and near the rooming house where Mr. Garner was living. The rooming house contained four bedrooms, and it appears from the record that four other people besides Mr. Garner lived there. The testimony indicated that people moved in and out of the
{¶9} The victim in the instant matter, nine-year-old D.A.S., lived a couple houses away from the rooming house where Mr. Garner livеd. That afternoon, D.A.S. left her home to meet her two cousins at the corner of her street. Mr. Garner‘s home is on that corner. D.A.S. testified that Mr. Garner stopped her and asked if she would agree to “act like [his] daughter” for $5. D.A.S agreed, and Mr. Garner showed her into the house and directed her into the basement. D.A.S. testified that she became afraid and was concerned that she would never see her family again. D.A.S.’ cousins saw her go into the house with Mr. Garner and hurried home to tell D.A.S.’ parents. D.A.S.’ parents and some оf her siblings ran to the house.
{¶10} While there was a kitchen shared by the residents in the basement, Mr. Garner took D.A.S. into the bedroom of Eugene Washington, one of the other tenants. Mr. Washington noticed someone going into the basement and headed down there to make sure his door was locked. He found Mr. Garner in his room with a little girl. He thought that maybe the little girl was one of his other roommates’ granddaughters. Mr. Washington was shocked to see them in his room and told them to get out.
{¶11} D.A.S.’ father got to the house first and began knocking on the front door. No one answered. D.A.S.’ father began walking around the house looking in the windows. At this point, Mr. Garner heard knocking at the door and went upstairs. He told D.A.S. to stay in the basement. D.A.S.’ brother went to the side door, encountered Mr. Garner and began asking him
{¶12} Mr. Garner asserts on appeal that his conduct did not create a substantial risk of serious physical harm to D.A.S. nor did he cause physical harm to D.A.S. as required by
{¶13} We initially note that Mr. Garner misreads the statute. The statute does not requirе that Mr. Garner‘s conduct created a substantial risk of serious physical harm to D.A.S.; instead the statute requires that the circumstances under which Mr. Garner restrained D.A.S.’ liberty created a substantial risk of serious physical harm to her. See
{¶14} The circumstances, when viewed in a light most favorable to the State, reveal a troubling picture, particularly given the young, tender age of the victim. Mr. Garner lured nine-
{¶15} While these particular circumstances might not create a substantial risk of serious physical harm to an adult, the victim in this case was only nine years old. Given Mr. Garner‘s strange request to D.A.S., his use of money to bring her into his residence, accompanied by his command to stay in the basement along with lies to her family about her whereabouts, Mr. Garner‘s motivations for spending time alone with D.A.S., when viewed in a light most favorable to the prosecution, creates an inference that D.A.S. was restrained under circumstances that created a substantial risk of serious physical harm. Moreover, Mr. Garner brought D.A.S. into surroundings that were far from a safe place for a child, particularly given the variety of adults with criminal backgrounds in the home, and the admitted drug and alcohol use that took plaсe there. Finally, we note that D.A.S’ liberty was restrained in an environment that Mr. Garner did not even feel was safe for his girlfriend. While this case presents a close call, we nonetheless conclude that sufficient evidence was presented whereby a reasonable trier of fact
ASSIGNMENT OF ERROR II
APPELLANT‘S CONVICTION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} Mr. Garner asserts in his second assignment of error that his conviction for kidnapping was against the manifest weight of the evidence.
{¶17} In reviewing a challenge to the weight of the evidence, the appellate court:
“[m]ust 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.”
State v. Thomas, 9th Dist. Nos. 22990, 22991, 2006-Ohio-4241, ¶ 7, quoting State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[T]his Court‘s `discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” Thomas at ¶ 8, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶18} Mr. Garner has failed to develop this argument. See
ASSIGNMENT OF ERROR THREE
THE COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE MORE SPECIFIC, LESSER INCLUDED CHARGE OF CRIMINAL CHILD ENTICEMENT.
{¶20} Mr. Garner argues in his third assignment of error that the trial court committed plain error in failing to instruct the jury on criminal child enticement as a lesser included offense of kidnapping. As Mr. Garner failed to object to the absence of suсh an instruction, he asserts the trial court‘s failure amounts to plain error. See
{¶21} To establish plain error,
“[f]irst, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be `plain’ within the meaning of Crim.R. 52(B), an error must be an `obvious’ defect in the trial proceedings. * * * Third, the error must have affected `substantial rights * * * ’ [to the extent that it] * * * affected the outcome of the trial.”
{¶22} This Court has previously stated that:
[w]hile a trial court does have a duty to include instructions on lesser included offenses, a defendant still retains the right, through counsel, to waive such instructions. Given this right to waive jury instructions on lesser-included offenses, plain error does not lie where trial counsel failed to request jury instructions on lesser included offenses as a matter of trial strategy.
(Internal citations and quotations omitted.) State v. Pigg, 9th Dist. No. 24360, 2009-Ohio-2107, ¶ 5.
{¶23} Nonetheless, even assuming that the failure to request the instruction was not trial strategy in this instance, we cannot say the trial court committed plain error. The Supreme Court of Ohio held in State v. Deem, 40 Ohio St.3d 205 (1988), paragraph three of the syllabus, that:
[a]n offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the othеr; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.
Subsequently in State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, paragraph one of the syllabus, the Supreme Court modified the test in Deem and stated that “[i]n determining whether an offense is a lesser included offense of another when a statute sets forth mutually exclusive ways of committing the greater offense, a сourt is required to apply the second part of the [Deem test], to each alternative method of committing the greater offense.”
{¶24} We note that Mr. Garner has not cited to any case law concluding that criminal child enticement as stated in
III.
{¶25} In light of the foregoing, we affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J. CONCURS
DICKINSON, J. DISSENTING.
{¶27} The Grand Jury indicted Mr. Garner for violating
{¶28} The State moved to amend the indictment, and the trial court granted its motion. Despite the amendment to include a charge under
{¶29} According to D.A.S., after Mr. Garner offered her the five dollars, she went with him to the basement of a house. He did not say anything to her while they walked to the basement. After they got to the basement, she saw another man, but could not remember whether he said anything to them. She then heard banging on an upstairs door, whereupon Mr. Garner told her to “stay right there . . . [i]n the back [of the basement].” D.A.S. testified that Mr. Garner pointed while he instructed her to stay in a regular tone of voice. She also testified that the place where Mr. Garner told her to stay was at the bottom of a staircase.
{¶30} According to Eugene Washington, he was the other man that D.A.S. saw in the basement. He testified that he was on the first floor of the house watching television when he saw Mr. Garner go downstairs with a little girl and that he went downstairs after thеm to make sure he had locked the door to his room. When he got downstairs, he saw Mr. Garner standing in the entryway of his (Mr. Washington‘s) room and the girl inside the room. According to Mr. Washington, he told Mr. Garner and the girl to get out and went into his room, where he stayed until he heard a commotion.
{¶31} Courts have held that “[a] person‘s liberty is restrained when the offender limits the victim‘s freedom of movement in any fashion for any period of time.” State v. Butcher, 11th Dist. No. 2011-P-0012, 2012-Ohio-868, at ¶ 71; see also State v. Martin, 10th Dist. Nos. 02AP33, 02AP34, 2002-Ohio-4769, at ¶ 32. Under the facts of this case, the only time that Mr. Garner limited D.A.S.‘s movement was when he told her to stay in the basеment while he went upstairs to answer the door. The question in this case, therefore, is whether Mr. Garner‘s leaving
{¶32} “Serious physical harm” is defined in the Ohio Revised Code as “(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (b) Any physical harm that carries a substantial risk of death; (c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; (d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; [or] (e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.”
{¶33} Other kidnapping cases analyzing whether circumstances presented a substantial risk of serious physical harm to the victim do not at all resemble the facts of this case. Rather, the closest case comparisons involve the offense of child endangerment under
{¶34} In State v. Hughes, 3d Dist. No. 17-09-02, 2009-Ohio-4115, a father left his five-year-old daughter inside a truck in a Wal-Mart parking lot for 27 minutes. He left the vehicle running with the keys in the ignition, and his daughter knew how to open the doors of the truck herself. The State argued that the circumstances presented a substantial risk to the girl‘s safety because she could have exited the vehicle and been injured in the parking lot, she could have
{¶35} In State v. Allen, 140 Ohio App. 3d 322 (1st Dist. 2000), a father left his seven-year-old son home alone for 20 minutes while he left “to see a woman.” Id. at 324. The First District Court of Appeals determined that, even though the State had speculated about things that might have occurred that could have injured the child, “such speculation failеd to demonstrate beyond a reasonable doubt that there was a strong possibility that [the child] would have been injured.” Id. at 325.
{¶36} In State v. Boone, 1st Dist. No. C-950427, 1996 WL 454813 (Aug. 14, 1996), a mother left her seven-year-old son in a K-mart parking lot for fifteen minutes after he threw a tantrum. The First District Court of Appeals wrote that, “[w]hile we may not agree with appellant‘s method of disciplining her child, we hold that her actions, as a matter of law, did not create a substantial risk to the child‘s health or safety. We recognize that appellant‘s behavior may have caused some speculative risk to her child; however, we hold that her conduct did not,
{¶37} In State v. McLeod, 165 Ohio App. 3d 434, 2006-Ohio-579 (2d Dist.), a babysitter let a five-year-old girl play by herself at an apartment complex playground that was 125 to 150 yards from the complex. Although the babysitter could see the playground from his apartment, his view was partially obstructed by brush. The Second District Court of Appeals concluded that, despite testimony that the playground had been a problem area for police with a history of juvenile assault activity, there was not a strong possibility that the girl would not be safe at the playground. Id. at ¶ 13. The Court also explained that it did “not share the state‘s view that an actor . . . creates a substantial risk to a five-year-old merely by allowing the child out of his or her direct line of sight for a brief period.” Id. at ¶ 14.
{¶38} The State has argued that the circumstances placed D.A.S. in substantial risk of serious harm because Mr. Garner lured her to the basement, because she was seen inside one of the bedrooms in the basement, because she was told to remain in the basement while he went upstairs to answer the door, because she was scared, and because Mr. Garner told D.A.S.‘s parents that she was not inside the house. As explained earlier, the analysis must be limited to the circumstances that existed at the time D.A.S. was restrained. The reason that she was in the basement and what Mr. Garner told D.A.S.‘s parents is not relevant to whether the circumstances posed a substantial risk of serious physical harm to her during the restraint.
{¶39} The majority has concluded that the surroundings were unsafe for D.A.S. given the “vаriety of adults with criminal backgrounds in the home, and the admitted drug and alcohol use that took place there.” Although some of the residents of the house had criminal records, the offenses were for theft and drug use, not any sort of violent or sexual crimes that might have
{¶40} The majority has also concluded that Mr. Garner‘s telephone conversations demonstrаte that he did not even feel the environment was safe for his girlfriend, who was an adult. Although Mr. Garner expressed concern that a roommate named “James” might try to “take advantage of” his girlfriend, there was no evidence that James was in the house, let alone the basement, at the time Mr. Garner left D.A.S. alone in the basement. Moreover, even construing Mr. Garner‘s “take advantage of” statement to imply that James would attempt sexual conduct with the girlfriend, there was no evidence that the roommate would be inclined to molest a child as opposed to seduce a grown woman.
{¶41} According to Mr. Washington, it was a mere thirty seconds between the time he told Mr. Garner and D.A.S. to exit his room to when he heard a commotion coming from upstairs, which, we can infer from the other evidence, was Mr. Garner‘s scuffle with D.A.S.‘s father. There was a remote possibility that someone could have attacked D.A.S. and caused serious physical harm to her as she stood in the basement for a minute or two while Mr. Garner answered the door. Under the totality of the circumstances, however, that possibility is well short of the “strong possibility” needed to find a “substantial risk” under
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.