State v. KloftaState v. Klofta
Rendered on the 23rd day of October, 2020.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Rеg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JOHN A. FISCHER, Atty. Reg. No. 0068346, 70 Birch Alley, Suite 240, Dayton, Ohio 45440 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 2} Klofta was indicted on July 18, 2019, and she pled not guilty. On September 11, 2019, she filed a motion to suppress statements made to the police, which the court overruled after a hearing. Trial commenced on November 4, 2019.
{¶ 3} At trial, the victim, E.S., then age 10, testified that she used to live with Klofta and “Mike,” her “dad.” She recounted an incident at their home where in which Klofta “tased” E.S. in the living room. E.S. testified that, earlier in the day, she and a friend had been loud in the car while Klofta was on the phone; as a result, Klofta made E.S. perform a “lean and rest” as a form of punishment when they arrived home. According to E.S., a “lean and rest” meant that she got “into a push-up position” and had to stay there until her “arms hurt.” E.S. stated that Klofta had said, “stop crying and I won‘t tase you.” Nonetheless, Klofta tased E.S. on her “butt.” E.S. testified that “[i]t hurt” and felt “like a hornet‘s sting” for “a few minutes.” E.S. stated that the Taser left marks on her skin, and she identified photos of her injury. E.S. also identified a photograph of the Taser and stated that Klofta sometimes kept it in her bra. E.S. testified that Klofta had never used the Taser on her before, but that she had previously shown it to her and turned it in on in her presence.
{¶ 4} On cross-examination, E.S. testified that Klofta took care of four other children in her home who did not reside there; three of them were younger than E.S., and one was older. She stated that Klofta used spanking and sitting in the corner as
{¶ 5} E.S. testified that she did not tell Mike that she had been tased because she “thought he already knew.” When asked if Klofta or Mike ever came to her and asked how she felt or if she was suffering any pain after being tased, E.S. responded, “No.” E.S. testified that she remained in Klofta‘s home for about seven days before she saw her mother at her mother‘s home in Lewisburg; E.S. told her mother about the tasing the next mоrning after she got home. E.S. stated that her mother took her to the police station, and an officer photographed the injury.
{¶ 6} E.S.‘s mother (“Mother“) testified that she used to be married to Mike, and that after they divorced, Mike married Klofta. Mother testified that Mike was not E.S.‘s biological father, but that he raised her as his own child. She stated that E.S. went to live with Mike and Klofta because she was having “some educational issues at our home school in Lewisburg.” Mother testified that, in August 2018, E.S. came home and reported something that resulted in Mother contacting the police. Mother testified that
{¶ 7} On cross-examination, when asked why she initially contacted law enforcement and not the hospital upon learning of E.S.‘s injury, Mother explained that “the marks were there,” but E.S. was not complaining of being in pain, and Mother did not think she needed medical attention. Mother testified that she took the photos of the injury on August 14, 2018.
{¶ 8} Detective Elizabeth Alley testified that she was employed in the special victims unit of the Dayton Police Department, and that she was stationed at Care House, having been assigned thеre for seven years and employed by the department for 13 years. Alley testified that she investigated physical and sexual abuse against children, and she was assigned to investigate Mother‘s complaint about E.S. Alley spoke to Mother and E.S., and she observed the injury on E.S.‘s “lower left butt cheek.” Alley testified that she was present when an evidence crew photographed the injury, and she identified the photos, which include her hand holding a ruler.
{¶ 9} Alley testified that she and another detective subsequently met with Klofta at her home. She testified that Klofta gave them consent to search the home, which allowed them to take photographs and to collect any evidence that was relevant to the case. Alley testified that the Taser was found in a kitchen cabinet, and she identified a photo of it on the cabinet shelf.
{¶ 10} Alley testified that Klofta was transported to the Safety Building and was read her rights; Klofta agreed to speak to Alley and another detective. During the interview, Klofta corroborated that E.S. got into to trouble and was made to perform a
{¶ 11} Alley explained the difference between a stun gun and a Taser, and she indicated that Klоfta‘s device was actually a stun gun. She testified that she was present when the stun gun was tested on Detective Joshua Spears’ bicep, over his shirt, and she identified photos of Spear‘s bicep after the gun was employed, with a ruler next to the marks it left. On cross-examination, Alley testified that “it was kind of scary” when Spears was tased; when asked about his reaction, she replied, “Shocked. Scared.”
{¶ 12} On redirect examination, Alley testified that the purpose of using the stun gun on Spears was to determine the distance between the probes when someone was actually stunned with it. She further testifiеd that the distance between the probes as evidenced on Det. Spears’ arm was consistent with the distance between the marks on E.S.‘s “bottom.”
{¶ 13} At the conclusion of the evidence, Klofta moved for a judgment of acquittal, asserting that the State had failed to prove beyond a reasonable doubt that Klofta had “failed to do something that she [was] supposed to do as the caretaker or custodian of the child.” Counsel directed the court‘s attention to State v. Kamel, 12 Ohio St.3d 306,
{¶ 14} In overruling the motion for a judgment of acquittal, the trial court relied on State v. Gaver, 5th Dist. Stark No. 2015CA00204, 2016-Ohio-7055, which discusses
{¶ 15} The jury found Klofta guilty of child endangering, as discussed above.
{¶ 16} Klofta asserts two assignments of error on appeal, which we will consider together:
THE TRIAL COURT ERRED BY DENYING MS. KLOFTA‘S RULE 29 MOTION FOR ACQUITTAL.
THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 17} In her first assignment of error, Klofta asserts that the jury improperly convicted her because there was no evidence that she violated a duty of care, protection, or support that created a substantial risk to the health or safety of E.S. Klofta asserts that the State charged her under
{¶ 18} Klofta further argues that the evidence was insufficient to show that she committed a crime of omission pursuant to
{¶ 19} Klofta further asserts that Cleveland v. Calhoun, 8th Dist. Cuyahoga No. 105521, 2018-Ohio-1758, which discusses distinctions between the subsections of the child endangering statute, “is dispositive of this case.” Klofta also argues that she “did not neglect any duty that she owed to the child.” Klofta asserts that, if this Court “accepts
{¶ 20} In hеr second assignment of error, Klofta asserts that the jury clearly lost its way in finding that [she] committed a violation of
{¶ 21} The State responds that Klofta “failed to protect E.S. from her own abuse” and further violated her duty of care to E.S. because she never inquired about E.S.‘s condition or pain after tasing her. According to the State, it presented sufficient evidence that Klofta recklessly created a substantial risk of harm to E.S.‘s health or safety by tasing her and violated the duty of care or protection she owed to E.S. The State asserts that, at trial, its position was that Klofta failed to protect E.S. from Klofta‘s own abuse, which constituted an act of omission under
{¶ 23} Klofta further argues that Gaver, 5th Dist. Stark No. 2015CA00204, 2016-Ohio-7055, “does not stand for the proposition that affirmative acts of abuse are cognizable” under
{¶ 24} Klofta argues that, in this case, there “can be no serious argument (and no jury could find)” that someone other than Klofta inflicted the injury and Klofta failed to protect the child from that person. Klofta asserts that this Court should nоt allow her “to be convicted under Section 2919.22(A) for her affirmative act of discipline.” Klofta also directs our attention to State v. Sammons, 58 Ohio St.2d 460, 391 N.E.2d 713 (1979),
{¶ 25} As this Court has previously noted:
An appellate court reviews a trial court‘s ruling on a motion under Crim.R. 29 by the same standard applicable to a claim based on the sufficiency of the evidence. State v. Scott, 2018-Ohio-198, 104 N.E.3d 143, ¶ 37 (2d Dist.), citing State v. Bailey, 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, ¶ 17. Sufficiency of the evidence “is the legal standard applied to determine whether * * * the evidence [in a given case] is [adequate] as a matter of law to support the jury[‘s] verdict.” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a challenge tо a conviction based upon the sufficiency of the evidence, 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., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
In a challenge based on the weight of the evidence, an appellate court must review the record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice warranting reversal and a new trial. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A trial court‘s “judgment should be reversed as being against the manifest weight of the evidence ‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Hill, 2013-Ohio-717, 2013 WL 784643, ¶ 8, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Because “a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency,” a determination that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency. (Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, 2011 WL 2536451, ¶ 11; State v. Miller, 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, ¶ 48, citing McCrary, 2011-Ohio-3161, ¶ 11. State v. Mattox, 2018-Ohio-992, 108 N.E.3d 1139, ¶¶ 23-24 (2d Dist.).
{¶ 26}
(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 * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. * * *
(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:
* * *
(3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prоlonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child;
* * *
(E)(1) Whoever violates this section is guilty of endangering children.
* * *
{¶ 27} The culpable mental state for endangering children is recklеssness. State v. Greenlee, 2d Dist. Montgomery No. 24660, 2012-Ohio-1432, ¶ 11.
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.
{¶ 28} ” ‘Substantial risk’ means a strong possibility, as contrasted with a remote
{¶ 29} In Kamel, 12 Ohio St.3d 306, 466 N.E.2d 860, on which Klofta relies, the Supreme Court of Ohio held:
It is not necessary to show an actual instance or pattern of physical abuse on the part of the accused in order to justify a conviction under
R.C. 2919.22(A) . Affirmative acts of torture, abuse, and excessive acts of corporal punishment or disciplinary measures are expressly covered under division (B) of the section. Division (A) is concerned with circumstances of neglect as is indicated by the Committee Comment toR.C. 2912.22 . Manifestly, such neglect is characterized by acts of omission rather than acts of commission. See, e.g., State v. Sammons (1979), 58 Ohio St.2d 460, 391 N.E.2d 713. Accordingly, an inexcusаble 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 underR.C. 2919.22(A) .
(Footnote omitted.) Id. at 308-09.
{¶ 30} In Calhoun, 8th Dist. Cuyahoga No. 105521, 2018-Ohio-1758, which Klofta asserts is dispositive, the defendant was charged with violating
{¶ 31} In Gaver, 5th Dist. Stark No. 2015CA00204, 2016-Ohio-7055, upon which the trial court relied, the defendant was charged with two counts of child endangering; according to the bill of particulars, Count I referenced his abuse of a child, “causing a subdural hematoma and retinal hemorrhages, serious physical harm,” and Count II referenced defendant‘s “creat[ing] a substantial risk to the health or safety” of the child, while being thе person in loco parentis, by violating a duty of care, protection, or support to the health or safety of the child, which resulted in serious physical harm. The jury found Gaver not guilty of Count I and guilty of Count II. Id. at ¶ 50.
{¶ 32} The Fifth District determined as follows:
The difference between Counts I and II can be summarized as inflicting an abusive injury (section B) versus violating a duty of care (section A). The former is a more serious offense in degree of penalty than the latter. We find the verdicts are not inconsistent. The jury could reasonably have found appellant guilty of violating a duty of care, protection and support (Count II) but not guilty of committing an аbusive act (Count I).
* * * [A]ppellant presents us with no authority in support of his premise that a conviction pursuant to
R.C. 2919.22(A) may only be supported where a defendant failed to seek medical care for a child.
Our review of relevant authority convinces us that
R.C. 2919.22(A) addresses a wider category of cases than those described by appellant in which a defendant fails to promptly seek medical attention for a child under his or her care. This section may also apply where a defendant has failed to protect the child from harm inflicted upon the child while in the defendant‘s care, even if the jury is not convinced the dеfendant personally inflicted the injury. UnderR.C. 2919.22(A) , appellee was required to prove beyond a reasonable doubt that (1) appellant was the parent, guardian, custodian, person having custody or control, or person in loco parentis of [the child], and (2) appellant recklessly violated a duty of protection, care or support imposed by law which created a substantial risk to [the child‘s] health or safety. State v. McGee, 79 Ohio St.3d 193, 680 N.E.2d 975 (1997), syllabus. * * *It is not necessary to show an actual instance or pattern of physical abuse on the part of the accused in order to justify a conviction under
R.C. 2919.22(A) . State v. Kamel, 12 Ohio St.3d 306, 309, 466 N.E.2d 860 (1984). A parent has a clear duty imposed by law to protect his or her child from abuse and to care for the child‘s injuries. See State v. Sammons, 58 Ohio St 2d 460, 463, 391 N.E.2d 713 (1979), appeal dismissed, 444 U.S. 1008, 100 S.Ct. 655, 62 L.Ed.2d 637 (1980)1. It is an offense underR.C. 2919.22(A) when one fails, without excuse, to act in discharge of one‘s duty
to protect one‘s child, where the result is a substantial risk to the child‘s health or safety. Kamel, 12 Ohio St.3d at 309. * * *
Appellant does not contest the jury‘s findings that he was the person having custody or control of [the child] or that [the child] sustained serious physical harm. He argues simply that appellee presented no evidence that he breached a duty of care to [the child]. We find sufficient credible evidence appellant breached his duty to protect [the child]. According to appellee‘s evidence, [the child] was a healthy two-year-old at the time he was entrusted to appellant‘s care, although he had some developmental delays. [The child‘s] doctors agreed he suffered one or more significant blunt force traumas to his head with a violent shaking or rotational component, resulting in injuries characteristic of inflicted head injury: significant subdural hematoma and retinal hemorrhages in both eyes. While in appellant‘s care, [the child] first exhibited symptoms of the injuries, including lethargy, an apparent seizure, and collapse. Appellee‘s expert opined the injuries did not result from an accident or other non-accidental cause; [the treating physician] unequivocally testified the injury resulted from an act of abuse.
Based on the evidence, the jury could have reasonably inferred appellant recklessly failed to protect [the child] from serious physical harm while he was in his care. Ample evidence was presented to allow the jury to rationally find [the child‘s] injuries occurred as the result of an intentional infliction of a signifiсant force. The jury could further rationally infer that
appellant, as the sole caregiver at the time [the child] became symptomatic, was the person responsible for [the child‘s] injuries, and that appellant either inflicted the injury to [the child‘s] head himself or failed to protect him from such injury. See, State v. Brooks, 10th Dist. Franklin No. 00AP–1440, 2001 WL 1117464, unreported (Sept. 25, 2001).2 The jury accordingly could have concluded appellant recklessly violated a duty of care to prevent serious harm to [the child] during the time he was in defendant‘s sole care. Id. Construed in favor of appellee, the evidence was suffiсient to allow the jury to find beyond a reasonable doubt that defendant violated
R.C. 2919.22(A) .
(Footnote added.) Id. at ¶¶ 52-57.
{¶ 33} The following was significant to the Gaver court:
Appellant offers no authority that a conviction pursuant to
R.C. 2919.22(A) is not supported in a case in which the state‘s theory is the child‘s injuries resulted from violent forceful trauma while in the defendant‘s care. The case law we have reviewed indicates thatR.C. 2919.22(A) applies when a child is injured while in a defendant‘s care, rising to the level of an inexcusable failure to act in discharge of a duty to protect a child. See,
e.g., State v. Humphries, 5th Dist. Stark No. 06CA00156, 2008-Ohio-388 [significant circumstantial evidence established child suffered from shaken baby syndrome; defendant failed to provide a reasonable explanаtion for child‘s injuries; defendant exhibited suspicious behavior both on the day child was admitted to the hospital and in the following days; defendant‘s account contained numerous inconsistencies; and expert testified that fall as described could not have caused the fatal injury, thus medical testimony and evidence demonstrate appellant created substantial risk of harm resulting in head injury]; State v. Cruz, 9th Dist. Lorain No. 99CA007411, 2000 WL 1026694, *2 (July 26, 2000) [defendant violated duty of care to child by shaking her violently]; State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶¶ 5-7 [defendant was only adult with child when she suffered severe brain injuries, extensive expert medical testimony established injuries were the result of non-accidental trauma, and injuries could not possibly have occurred from simple fall defendant described]; State v. Swain, 4th Dist. Ross No. 01CA2591, 2002-Ohio-4143 [defendant burned child‘s fingers, which he claimed was accidental]; State v. Scott, [3d]
Dist. Hardin No. 6-07-17, 2008-Ohio-86, ¶ 224 [injuries occurred when only defendant had access to the child; jury could have disbelieved defendant‘s explanation based upon expert testimony, and jury could have found defendant recklessly created a substantial risk of harm to child‘s health or safety by swinging him in forceful manner]; State v. Flory, 3d Dist. Van Wert No. 15-04-18, 2005-Ohio-2251, ¶ 7 [appellee‘s evidence established defendant‘s explanations of accidents did not explain extent of child‘s injuries, injuriеs were consistent with abuse, and reasonable juror could conclude defendant recklessly created substantial risk to health and safety of child by violating duty of care].
(Bracketed text sic; footnotes added.) Id. at ¶ 59.
{¶ 34} Having thoroughly reviewed all of the evidence herein, we conclude that there was sufficient evidence to support Klofta‘s conviction, and her conviction was not against the manifest weight of the evidence. Klofta recklessly violated a duty of care and thereby created a substantial risk to E.S.‘s health and safety, resulting in injury, when she used a stun gun to discipline E.S., a young child, and failed to attend to an injury that was visible a week thereafter.5 In other words, Klofta failed to act in discharge of her duty to
{¶ 35} Finally, we disagree with Klofta‘s argument that if excessive discipline is cognizable under
{¶ 36} Based upon the foregoing, Klofta‘s assigned errors are overruled, and the judgment of the trial court is affirmed.
HALL, J., and WELBAUM, J., concur.
Mathias H. Heck, Jr.
Lisa M. Light
John A. Fischer
Hon. Mary Katherine Huffman