STATE OF OHIO v. KIEL GREENLEE
Appellate Case No. 24660
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 30, 2012
[Cite as State v. Greenlee, 2012-Ohio-1432.]
Trial Court Case No. 10-CRB-1102-A; (Criminal Appeal from Miamisburg Municipal Court)
Rendered on the 30th day of March, 2012.
CHRISTINE L. BURK, Atty. Reg. #0050559, City of Miamisburg Prosecutor‘s Office, 10 North First Street, Miamisburg, Ohio 45342 Attorney for Plaintiff-Appellee
SCOTT BLAUVELT, Atty. Reg. #0068177, 246 High Street, Hamilton, Ohio 45011 Attorney for Defendant-Appellant
HALL, J.
{1} Kiel Greenlee appeals a trial court‘s verdict finding him guilty of child endangerment. He contends that the verdict is not supported by sufficient evidence. Greenlee alternatively contends that the verdict is contrary to the manifest weight of the evidence. We
A. The Facts
{2} One morning in May 2010, Greenlee was doing various household chores and his four-year-old son, T.G., was watching cartoons. Greenlee‘s mother, Gloria Greenlee, also a resident at the home, had already left for work.1 Greenlee went upstairs to the bathroom, where he stayed for 10-15 minutes. When he came down, T.G. was gone.
{3} Greenlee looked for his son in the house for about 10 minutes. He then looked outside in the front and back yards and checked at a neighbor‘s house. Not finding him, Greenlee walked toward a park at a school down the street. On his way, Greenlee met a friend, Doug Tussey, and he asked Tussey to help him look. Tussey searched the neighborhood in his car. At the school, Greenlee asked teachers and students if they had seen his son. No one had. At some point, Greenlee called his mother to tell her that T.G. was missing. Gloria left work to come home.
{4} Four to six houses away from Gloria‘s house, David Lambert was working in his back yard. He looked up and saw a small boy whom he did not recognize peering over the edge of a retaining wall into a ravine 8 feet below. Worried that the boy might tumble over and get hurt, Lambert quickly went over to the boy and led him to Lambert‘s front porch. He and the boy sat on his front porch for 15 minutes or so with the hope that someone would soon come looking for him. When no one did, Lambert took him around to neighbors’ houses, trying to find the boy‘s parents. After 45 minutes or so, Lambert called the police.
{5} Officer Neer arrived at Lambert‘s house about 10 minutes after he was
{6} Greenlee, taking the stand in his own defense, testified that the total time from when he discovered T.G. was gone until they were reunited was about 25 minutes. But the trial court expressly found that Greenlee had no idea where his son was for about 1 hour and 40 minutes. The record supports the finding of the trial court. It is undisputed that, during that time, Greenlee never called the police. He testified that he did not call “because of the time frame if I found him it would be a waste of the police‘s time at that point.” (Tr. 41).
{7} Greenlee was charged with one count of endangering children under
{8} Greenlee appealed.
B. The Sufficiency of the Evidence
{9} Greenlee alleges in the first assignment of error that the trial court erred by overruling his motion for acquittal and erred by finding him guilty of child endangerment. He contends that the evidence is insufficient to find him guilty.
{10} “A sufficiency-of-the-evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury
{11} “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
{12} Greenlee contends that the evidence is not sufficient to find that he created a substantial risk to his son‘s health or safety, or to find that he violated one of the duties
{13} The evidence supports the trial court‘s finding that by failing to call the police Greenlee created a substantial risk to his son‘s safety. “Endangering children may be committed by an omission resulting in a substantial risk of injury to a child.” (Citation omitted.) McLeod, 165 Ohio App.3d 434, 2006-Ohio-579, 846 N.E.2d 915, at ¶ 12. “‘Substantial risk’ means a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.”
{14} The evidence also supports the trial court‘s finding that Greenlee created the risk to his son‘s safety by violating a duty of protection. It cannot seriously be disputed that, given the dangers that exist, noted above, a parent‘s duty to protect his young child requires keeping the child from wandering around outside unsupervised. To be clear, a four-year-old child wandering off, by itself, is not necessarily indicative of child endangerment. But if the
{15} Finally, the evidence supports the court‘s finding that Greenlee‘s failure to call the police was reckless. “A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.”
{16} Greenlee asserts that not calling the police was entirely reasonable. He claims that he believed that he would find his son soon, and he points out that Lambert did not contact police for at least 45 minutes after discovering T.G. Given the strong possibility for harm, we think that a rational factfinder could find it unreasonable that Greenlee did not call the police, at all, when his 4-year-old child went missing for an extended time. That Lambert did not contact police sooner is irrelevant. Lambert knew where T.G. was and knew that, while T.G. was with him, T.G. was not in any danger. Additionally, Greenlee testified that he did not call the police because he did not want to waste their time. But the trial court could have rejected this explanation based on the fact that, at the time, there was an outstanding warrant for Greenlee‘s arrest. A rational factfinder could find that it was not his concern for the police but the warrant that played the key role in Greenlee‘s decision not to involve the police.
{17} The first assignment of error is overruled.
C. The Manifest Weight of the Evidence
{18} Although the evidence may be sufficient, its manifest weight may nevertheless be against the verdict. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Greenlee, in the second assignment of error, alternatively contends that the trial court‘s guilty verdict was erroneous because it is contrary to the manifest weight of the evidence.
{19} Greenlee says in his brief that he is not challenging the trial court‘s credibility determinations. He indicates that there is no real conflict in the trial testimony. “This case is not about a question of credibility,” Greenlee says, “but, instead, about a conviction not
{20} The second assignment of error is overruled.
{21} The judgment of the municipal court is affirmed.
DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Christine L. Burk
Scott M. Blauvelt
Hon. Robert E. Messham, Jr.