State v. JourneyState v. Journey
APPEARANCES:
COUNSEL FOR APPELLANT: Marc E. May, 602 Chillicothe Street, Suite 237, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, 602 7th Street, Room 310, Portsmouth, Ohio 45662
CRIMINAL APPEAL FROM COMMON PLEAS COURT
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. The trial court found Clorissa Journey, defendant below and appellant herein, guilty of: (1) six counts of complicity to felonious assault; (2) eight counts of child endangering; (3) nine counts of complicity to child endangering; (4) one count of complicity to assault; and (5) one count of obstructing justice.
{¶ 2} Appellant raises the following assignments of error for review:
“THE TRIAL COURT ERRED WHEN IT CONVICTED AND SENTENCED APPELLANT SEPARATELY FOR ALLIED OFFENSES OF SIMILAR IMPORT UNDER
OHIO REVISED CODE 2941.25 .”
SECOND ASSIGNMENT OF ERROR:
“THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF FELONIOUS ASSAULT UNDER
OHIO REVISED CODE 2903.11(A)(1) AND ENDANGERING CHILDREN UNDEROHIO REVISED CODE 2919.22(A) AND (E)(2)(c) AND2919.22(B)(2) AND (E)(3) WITH REGARD TO AUSTIN‘S EAR INJURY BECAUSE IT DID NOT CONSTITUTE ‘SERIOUS PHYSICAL HARM.‘”
THIRD ASSIGNMENT OF ERROR:
“THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF OBSTRUCTING JUSTICE, A THIRD DEGREE FELONY, UNDER
OHIO REVISED CODE 2921.32(A)(5) AND (C)(4).”
{¶ 3} On September 5, 2008, appellant and her live-in boyfriend, Aaron Evans, took appellant‘s eleven-month old baby to Evans’ mother‘s (Susan Vernier) house. Vernier noticed that the child had obvious, multiple injuries and called the emergency squad. The emergency squad reported the baby‘s injuries as: (1) a swollen right arm that was double the size of the left arm; (2) bruises to the right temple; (3) bruises to the occipital region; (4) bruises below the right eye; (5) bruises below the neck; (6) “popknots” on right and left sides of the head; (7) abrasions around the mouth; (8) sunken eyes; (9) periorbital blood in the right eye; and (10) pale, dry skin. The emergency medical technician stated in the report that the baby appeared “very listless.”
{¶ 4} The emergency squad transported the baby to the Southern Ohio Medical
{¶ 5} On September 29, 2008, the Scioto County Grand Jury returned a twenty-five count indictment that charged three separate offenses for each of the baby‘s eight distinct injuries. For example, regarding the fractures to the baby‘s lower extremities, the indictment charged felonious assault, child endangering under
{¶ 6} On November 17, 18, 19, and 25, 2008, the trial court held a bench trial. At trial, appellant‘s almost-nine-year old daughter testified that she saw Evans poke the baby in the eye, burn his feet with cigarettes, bite his ear, twist the baby‘s arm, squeeze the baby, throw the baby, and place part of the couch on the baby‘s foot. She also testified that Evans tripped appellant when appellant had the baby in her arms. She stated that she told appellant that Evans was hurting the baby.
{¶ 7} Dr. Philip Scribano testified that on June 2, 2008 he evaluated the baby at Nationwide Children‘s Hospital due to a referral of multiple fractures and concern of abuse. Scribano interviewed appellant over the telephone. Appellant advised Scribano that on June 1, 2008, she tripped over a toy while carrying the baby and fell on top of the child. She stated that the baby did not cry, but let out a “slight whimper.” Appellant stated that she saw the baby smile shortly after the fall, so she had no concern that he had been injured. She reported that she and the baby then slept for several hours and that when they awoke, appellant noticed that the baby had a swollen leg. She took the baby to SOMC where x-rays revealed fractures. Appellant told Scribano that she did not believe the medical reports that found that the baby had suffered fractures. However, Scribano‘s report lists the following fractures: (1) left first metatarsal fracture, proximal (buckle)–acute; (2) right ulna midshaft greenstick fracture–acute; (3) left distal tibia (corner metaphyseal fracture–acute; (4) left distal fibula (torus) fracture–acute; (5) left tibia spiral fracture with evidence of periosteal reaction of the proximal portion of the left fibula (sub-acute); and (6) right distal tibia
{¶ 8} Dr. Mary Leder, Nationwide Children‘s Hospital attending physician and associate professor of clinical pediatrics, testified that she evaluated the baby on September 6, 2008. The child looked thin and pale and, upon weighing the baby, she discovered that he was in the third percentile for his age group and that he had lost approximately 3 kilograms (approximately 6.6 pounds) since his June 2008 examination. Testing also revealed that the baby was anemic, and he appeared exhausted and pale. These findings led Leder to believe that the child had suffered nutritional neglect. She also observed the baby‘s swollen upper lip and blood encrusted lower lip. Leder stated that her examination revealed that the baby had a torn sublingual frenulum (the piece of tissue that “anchors the tongue to the floor of the mouth“), that the roof of his mouth had been scraped, and that he had a cut in his mouth where the base of the tongue meets the back of the throat. She testified that the mouth injuries likely resulted from forcefully jamming an object into the baby‘s mouth. Leder also observed that the baby‘s right eye had a violet or purple
{¶ 9} Appellee also presented several video and audio taped interviews of appellant and one of Evans. At trial, it appears that the appellee did not play the entire taped interviews and the recordings were not transcribed into the record. Thus, we have no accurate method to determine the portions of the taped interviews that were admitted into evidence.
{¶ 10} On November 25, 2008, the trial court found appellant guilty of the following offenses and imposed the following sentences:
- Lower Extremities Fractures: (a) second-degree complicity to felonious assault, in violation of
R.C. 2903.11(A)(1) , five years; (b) third-degree felony child endangering, in violation ofR.C. 2919.22(A) , five years; and (c) second-degree felony complicity to child endangering, in violation ofR.C. 2919.22(B)(1) , five years. - Rib Fractures: (a) second-degree felony complicity to felonious assault, in violation of
R.C. 2903.11(A)(1) , four years; (b) third-degree felony child endangering, in violation ofR.C. 2919.22(A) , four years; and (c) second-degree felony complicity to childendangering, in violation of R.C. 2919.22(B)(1) , four years. - Malnutrition: (a) first-degree misdemeanor complicity to assault, six months in county jail; (b) first-degree misdemeanor child endangering, in violation of
R.C. 2919.22(A) , six months in county jail; and (c) first-degree misdemeanor complicity to child endangering, in violation ofR.C. 2919.22(B)(1) , six months in county jail. - Eye Injury: (a) second-degree felony complicity to felonious assault, in violation of
R.C. 2903.11(A)(1) , two years; (b) third-degree felony child endangering, in violation ofR.C. 2919.22(A) , two years; and (c) second-degree felony complicity to child endangering, in violation ofR.C. 2919.22(B)(2) , two years. - Ear Injury: (a) second-degree felony complicity to felonious assault, in violation of
R.C. 2903.11(A)(1) , two years; (b) third-degree felony child endangering, in violation ofR.C. 2919.22(A) , two years; and (c) second-degree felony complicity to child endangering, in violation ofR.C. 2919.22(B)(2) , two years. - Burns to Feet: (a) second-degree felony complicity to felonious assault, in violation of
R.C. 2903.11(A)(1) , five years; (b) third-degree felony child endangering, in violation ofR.C. 2919.22(A) , five years; and (c) second-degree felony complicity to child endangering, in violation ofR.C. 2919.22(B)(2) , five years. - Mouth Injury: (a) second-degree felony complicity to felonious assault, in violation of
R.C. 2903.11(A)(1) , three years; (b) third-degree felony child endangering, in violation ofR.C. 2919.22(A) , three years; and (c) second-degree felony complicity to child endangering, in violation ofR.C. 2919.22(B)(2) , three years. - Broken Arm: (a) second-degree felony complicity to felonious assault, in violation of
R.C. 2903.11(A)(1) , five years; (b) third-degree felony child endangering, in violation ofR.C. 2919.22(A) , five years; and (c) second-degree felony complicity to child endangering, in violation ofR.C. 2919.22(B)(2) , five years. - Obstructing justice, in violation of
R.C. 2921.32(A)(5) , three years.
The trial court ordered that the sentences for the counts that involved the same injury be served concurrently. The court then ordered appellant to serve the concurrent prison terms consecutively to one another for a total of twenty-seven years imprisonment. This appeal followed.
I
{¶ 11} In her first assignment of error, appellant asserts that the trial court erred by sentencing her for allied offenses of similar import. Specifically, she contends in a multi-part argument that the felonious assault offenses and the various child endangering offenses constitute allied offenses of similar import.
A
STANDARD FOR DETERMINING WHETHER OFFENSES CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT
{¶ 12}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
The Ohio Supreme Court has interpreted
“‘In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant‘s conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.‘”
State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, at ¶10, quoting State v. Blankenship, 38 Ohio St.3d 116, 117, 526 N.E.2d 816; see, also, State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154; State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶14.
{¶ 13} In determining whether offenses constitute allied offenses of similar import under
“Each count of robbery herein was charged under
R.C. 2911.02(A)(2) , which provides that no person, in attempting to commit or committing a theft offense, or fleeing immediately thereafter, shall ‘[i]nflict, attempt to inflict, or threaten to inflict physical harm on another.’ Each count of aggravated robbery was charged underR.C. 2911.01(A)(1) , which provides that no person, in attempting to commit or committing a theft offense, or in fleeing immediately thereafter, shall ‘[h]ave a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.’* * * *
* * * * The possession of a deadly weapon, used, shown, brandished, or made known to the victim during a theft or flight from a theft also constitutes a threat to inflict physical harm on that victim. Thus, robbery defined in
R.C. 2911.02(A)(2) and aggravated robbery defined inR.C. 2911.01(A)(1) are so similar that the commission of one offense will result in commission of the other.”
{¶ 15} In State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, the court held that kidnapping and aggravated robbery are allied offenses of similar import. The court first examined the elements of the offenses in the abstract and then concluded that the commission of one necessarily results in commission of the other. The court explained:
“In essence, the elements to be compared in the abstract are the restraint, by force, threat, or deception, of the liberty of another to ‘facilitate the commission of any felony’ (kidnapping,
R.C. 2905.01(A)(2) )
and having ‘a deadly weapon on or about the offender‘s person or under the offender‘s control and either display[ing] the weapon, brandish[ing] it, indicat[ing] that the offender possesses it, or us[ing] it’ in attempting to commit or committing a theft offense (aggravated robbery,
R.C. 2911.01(A)(1) ). It is difficult to see how the presence of a weapon that has been shown or used, or whose possession has been made known to the victim during the commission of a theft offense, does not also forcibly restrain the liberty of another. These two offenses are ‘so similar that the commission of one offense will necessarily result in commission of the other.’ Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, paragraph one of the syllabus.”
{¶ 16} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, the court held that aggravated assault under
{¶ 17} In Cabrales, the court compared the elements of possession of drugs and trafficking in drugs and held that they are allied offenses of similar import. Cabrales at ¶30. The court explained:
“To be guilty of possession under
R.C. 2925.11(A) , the offender must ‘knowingly obtain, possess, or use a controlled substance.’ To be guilty of trafficking underR.C. 2925.03(A)(2) , the offender must knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, knowing, or having reason to know, that the substance is intended for sale. In order to ship a controlled substance, deliver it, distribute it, or prepare it for shipping, etc., the
offender must ‘hav[e] control over’ it.
R.C. 2925.01(K) (defining ‘possession‘). Thus, trafficking in a controlled substance underR.C. 2925.03(A)(2) and possession of that same controlled substance underR.C. 2925.11(A) are allied offenses of similar import because commission of the first offense necessarily results in commission of the second.”
{¶ 18} In State v. Minifee, Cuyahoga App. No. 91017, 2009-Ohio-3089, at ¶¶88-89, the court summarized the current state of the law regarding allied offenses of similar import as follows:
“In sum, after reviewing the whirlwind of Cabrales, Brown, and Winn, we find that under the first step, courts must still ‘compare the elements in the abstract,’ but that the elements do not have to ‘exactly align’ (as courts had previously interpreted Rance to mean). If when comparing the elements, ‘the offenses are so similar that the commission of one will necessarily result in the commission of the other [but not both, meaning the opposite does not have to be true], then the offenses are allied offenses of similar import.’ That means that if either crime ‘is wholly subsumed within the other,’ then the offenses are of similar import. Cabrales, at ¶39 (Fain, J., concurring).
It may be helpful to state the test another way. When comparing the offenses, if either offense could not be committed without also committing the other * * * then the offenses are allied. But if both offenses require ‘proof of an element that the other does not,’ meaning both offenses can be committed without committing the other * * * then the offenses are not allied.”
{¶ 19} With the foregoing principles in mind, we turn to appellant‘s argument that several of the offenses of which the trial court convicted her constitute allied offenses of similar import.
B
{¶ 20} Appellant first argues that
{¶ 21}
{¶ 22}
(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child * * *.
{¶ 23} The penalty provisions in
{¶ 24} The elements to be compared in the abstract are: (1) “knowingly,” “cause,” “serious physical harm,” “to another,” (felonious assault); (2) “recklessly,”2 “child under
{¶ 25} Felonious assault and child endangering have different culpable mental states. Felonious assault requires knowing behavior, while child endangering requires reckless action. For this reason, courts have consistently found that the offenses of felonious assault under
“‘Although proof of knowledge may suffice to prove recklessness, proof of recklessness is not sufficient to prove knowledge.’ [State v.] Cudgel [(Mar. 9, 2000), Franklin App. No. 99AP-532]. Given these different culpable mental states, it cannot be said that an act of child endangering in violation of
R.C. 2919.22(B)(1) results in the commission of a felonious assault. In addition, one can commit an act of felonious assault on someone over the age of 18 and not be guilty of child endangering. State v. Anderson (1984), 16 Ohio App.3d 251, 254, 475 N.E.2d 492; State v. Potter, Cuyahoga App. No. 81037, 2003-Ohio-1338, fn. 4, overruled on other grounds, State v. Campbell (1991), 74 Ohio App.3d 352, 598 N.E.2d 1244.”
Id. at ¶41. We note that all of these cases relied upon pre-Cabrales allied offense law
{¶ 26} Upon comparing the elements of the offenses in the abstract without requiring an exact alignment, a defendant who abuses, tortures, or cruelly abuses a child so as to cause the child serious physical harm also necessarily causes serious physical harm to another (i.e., a child under the age of eighteen). The only difference is the requisite mental state. A defendant who recklessly abuses, tortures, or cruelly abuses a child so as to cause the child serious physical harm does not necessarily also knowingly cause serious physical harm to another. A defendant can act recklessly so as to abuse, torture, or cruelly abuse a child so as to cause the child serious physical harm without also acting knowingly so as to cause serious physical harm to another.
{¶ 27} Furthermore, the felonious assault statute protects a broader class of persons from serious physical harm. Thus, the statutes protect different societal interests and to this extent, the Ohio Supreme Court‘s decision in Brown states that when the statutes protect different societal interests, then the offenses are not allied offenses of similar import. Both the felonious assault and
{¶ 28} We therefore disagree with appellant that the trial court should have merged her felonious assault and second-degree felony
{¶ 29} Appellant asserts that the trial court should have merged her
{¶ 30} We begin by comparing the elements of the offenses in the abstract.
{¶ 31} The elements we must compare are: (1) “knowingly,” “cause or attempt to cause,” “physical harm,” “to another” (assault); and (2) recklessly, “abuse,” a “child” (
{¶ 32} Consequently, the trial court did not err by failing to merge appellant‘s
D
{¶ 33} Appellant also argues that
{¶ 34}
(A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one 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. * * *
{¶ 35}
No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under
twenty-one years of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child * * *.
{¶ 36} The elements we must compare are: (1) parent, guardian, custodian, person having custody of control, or person in loco parentis of a child under eighteen, “create a substantial risk,” “to the health or safety of the child,” “by violating a duty of care, protection, or support” (
{¶ 37}
{¶ 38} Appellant nevertheless asserts that her complicity convictions under
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
{¶ 40} Appellant asserts that “aid or abet” is synonymous with violating a legal duty when one exists. “To “aid” is to assist and to “abet” is to incite or encourage. Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not an aiding or abetting of the act. * * * [I]n order to aid or abet, whether by words, acts, encouragement, support or presence, there must be something more than a failure to object unless one is under a legal duty to object.” State v. Stepp (1997), 117 Ohio App.3d 561, 568-569, 690 N.E.2d 1342 (internal citations omitted). An aider or abettor need not necessarily violate a legal duty in order to be found guilty of offense by complicity. Aiding and abetting may be shown in multiple ways. Thus,
{¶ 41} Consequently, the trial court did not err by failing to merge the
E
MALNOURISHMENT AND MOUTH INJURY OFFENSES
{¶ 42} Appellant next argues that the trial court should have merged: (1) her assault and
{¶ 43} Consequently, the trial court did not err by failing to merge the malnourishment convictions with the mouth injury convictions.
F
ANIMUS
{¶ 44} Appellant next contends that she committed the offenses with the same animus and that the injuries arose simultaneously. Our disposition of the foregoing arguments renders moot the remainder of appellant‘s first assignment of error asserting that she committed the alleged allied offenses of similar import with the same animus. We therefore decline to address the remaining arguments. See
{¶ 45} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
II
{¶ 46} Appellant‘s second and third assignments of error challenge the sufficiency of the evidence. Because the same standard of review governs our
A
SUFFICIENCY OF EVIDENCE
{¶ 47} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. See State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (stating that “sufficiency is the test of adequacy“); State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Jenks, 61 Ohio St.3d at 273. Furthermore, a reviewing court is not to assess “whether the state‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶ 48} When reviewing sufficiency-of-evidence claims, appellate courts must construe the evidence in a light most favorable to the prosecution. See State v. Hill (1996), 75 Ohio St.3d 195, 205, 661 N.E.2d 1068; State v. Grant (1993), 67 Ohio St.3d 465, 477, 620 N.E.2d 50. Reviewing courts will not overturn convictions on sufficiency-of-evidence claims unless reasonable minds could not reach the conclusion that the trier of fact did. See State v. Tibbetts (2001), 92 Ohio St.3d 146, 749 N.E.2d 226; State v. Treesh (2001), 90 Ohio St.3d 460, 739 N.E.2d 749.
SERIOUS PHYSICAL HARM
{¶ 49} In her second assignment of error, appellant argues that the record does not contain sufficient evidence to support her
{¶ 50}
(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;
(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.
{¶ 51} In the case at bar, the question is whether the baby‘s laceration to his ear falls within the definition of serious physical harm set forth in
{¶ 52} “The degree of harm that rises to level of ‘serious’ physical harm is not an exact science, particularly when the definition includes such terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.‘” State v. Irwin, Mahoning App. No. 06MA20, 2007-Ohio-4996, at ¶37. Courts have held that when a victim‘s injuries “‘are serious enough to cause him or her to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by
{¶ 53} In the case at bar, we believe that the prosecution presented sufficient evidence to support the trial court‘s finding of “serious physical harm.” The evidence demonstrates that the baby suffered a laceration to his ear and that the baby subsequently received medical attention. The examining doctors suspected that someone had either bitten the baby‘s ear or that someone‘s fingernails cut the baby. Appellant‘s daughter stated that Evans bit the baby‘s ear. The photographs of the baby‘s ear show blood around the upper ear lobe and a cut to the back of the ear. Dr. Cheatham testified that a “marked amount of force” had to have been used to cause the injury and that it is difficult to “tear” flesh. It is difficult to imagine that an eleven-month old baby would not experience “acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain” upon
{¶ 54} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error.
C
OBSTRUCTING JUSTICE
{¶ 56} In her third assignment of error, appellant argues that the record does not contain sufficient evidence to support her obstructing justice conviction. She contends that she did not have a purpose to hinder the investigation but, rather, to protect herself and her family. She further asserts that the prosecution did not present any evidence that she knew or had reason to believe she was aiding Evans in committing a second degree felony.
{¶ 57}
(A) No person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for crime or to assist another to benefit from the commission of a crime * * * shall do any of the following:
* * * *
(5) Communicate false information to any person.
“[T]he making of an unsworn false oral statement to a law enforcement officer with the purpose to hinder the officer‘s investigation of a crime is punishable conduct within the meaning of
{¶ 58} Purposely is defined in
A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.
{¶ 59} In the case at bar, we believe that the prosecution presented sufficient circumstantial evidence to allow the trier of fact to conclude that appellant made an unsworn false oral statement to a law enforcement officer with the purpose to hinder the officer‘s investigation of a crime. Appellant admittedly was not truthful with law enforcement officials when she first spoke with them and she was not truthful out of fear for her and her children‘s safety. Other evidence, however, casts doubt on appellant‘s veracity. For instance, appellant claimed that Evans essentially held her prisoner during the time that he lived with her, yet other evidence contradicts her story. Moreover, appellant had several opportunities when Evans was not present to report the baby‘s injuries to friends or to family members. Perhaps most telling was the occurrence in June 2008 when appellant expressed her disbelief with the doctors’ report that the baby had suffered any fractures in his lower extremities. A mother who is trying to protect her child would not disagree with such a report. Rather, her actions
{¶ 60} We also conclude that the prosecution presented sufficient evidence to show that appellant knew, or had reason to believe, that at least some of the crimes Evans committed are second-degree felonies. Appellant should have known, or had reason to believe, that a severe penalty would be imposed upon Evans for breaking the bones of an eleven-month old baby and for causing some or all of the other extensive injuries. Even if she did not have precise knowledge that some of the offenses are labeled as second-degree felonies, in view of the severe nature of the injuries it is reasonable to conclude that she had reason to believe that Evans committed at least one second-degree felony.
{¶ 61} Accordingly, based upon the foregoing reasons, we overrule appellant‘s third assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
I concur in judgment and opinion except for that part of the decision affirming the imposition of a third degree felony penalty for obstructing justice. The penalty section of the statute is poorly drafted. In order to reach the conclusion that Journey “knows or has reason to believe that the crime committed by the person aided” is a second degree felony, we have to construe that statute broadly in favor of the State. Although I agree with the majority that Journey clearly knew or should have known that Evans had inflicted terrible injuries on the child and that he would suffer severe a penalty if caught, that is not the standard that the statute imposes. Moreover, the statute seems to require a lay person to have some technical knowledge of the penalty provisions of the Ohio Revised Code. I believe the current version is unworkable and should be revisited. Thus, I dissent in part.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to
Kline, J.: Concurs in Judgment & Opinion
Harsha, J.:
For the Court
BY: ____________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.