STATE OF OHIO v. JENNIFER A. PHILLIPS
Case No. 14-CA-003
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 26, 2014
2014-Ohio-5322
Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County Municipal Court, Case No. 13CRB327. JUDGMENT: Reversed, Vacated and Remanded.
For Plaintiff-Appellee: CHRISTINE WILLIAMS, Assistant Prosecuting Attorney, 164 East Jackson Street, Millersburg, OH 44654
For Defendant-Appellant: JEFFREY KELLOGG, 5 South Washington Street, Millersburg, OH 44654
{¶1} Appellant Jennifer Phillips [“Phillips“] appeals her conviction and sentence for one count of child endangering in violation of
Facts and Procedural History
{¶2} On August 1, 2013, Phillips along with her five children went to the Millersburg Wal-Mart so she could shop for groceries for her family. Upon entering the store, Phillips’ children were being unruly. Her oldest son Riley, age 9, was encouraging the children to misbehave and ignore their mother‘s direction. Riley was also upset with his mother because she would not buy him an iTunes card for his iPod.
{¶3} On August 1, 2013, Millersburg Police Captain Herman made contact with Wal-Mart security officer Bob Noll. Mr. Noll advised Captain Herman that several Walmart employees had witnessed a woman identified as Phillips grab her oldest son, Riley J. Phillips around the neck and upper torso area and walk him to the family‘s van. Mr. Noll further advised Captain Herman that there was a Wal-Mart video of the incident. Captain Herman watched the video, which showed Phillips put her arms around her child‘s neck and upper torso area and walk him a short distance to the family‘s van.
{¶4} Captain Herman then made contact with Phillips inside the store. When asked what had occurred in the parking lot, Phillips told the officer that she was having trouble with her kids and her nine-year-old called her a “cunt, as well as other vulgar and abhorrent names. Phillips related that she then grabbed her son and took him to
{¶5} Captain Herman took statements from four Wal-Mart employees who witnessed the event. Ultimately, Phillips was charged with the offense of Child Endangering, a misdemeanor of the first degree in violation of
Assignment of Error
{¶6} Phillips raises one assignment of error,
{¶7} “I. THE TRIAL COURT ERRED BY CONVICTING THE DEFENDANT/APPELLANT WHEN THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE SUPPORTED ACQUITTAL.”
Analysis
{¶8} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), which requires a court of appeals to determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 (2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 2010-Ohio-2720, ¶ 68.
{¶10} When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder‘s resolution of the conflicting testimony. Id. at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). However, an appellate court may not merely substitute its view for that of the jury, but must find that “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.” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case in which the evidence weighs heavily against the conviction.” Id.
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.
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“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
{¶11} In the case at bar, Phillips was convicted of a misdemeanor Endangering Children.
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.
{¶12} Although not stated in
(C) 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. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.
{¶13} To satisfy the second element of a violation of
{¶14} In State v. Stewart, 5th Dist. Stark No. 2007-CA-00068, 2007-Ohio-6177, this court noted:
R.C. 2919.22(A) is aimed at preventing acts of omission or neglect when the breach results in a substantial risk to the health or safety of a child. See, e.g., State v. Sammons (1979), 58 Ohio St.2d 460, appeal dismissed (1980), 444 U.S. 1008; State v. Kamel (1984), 12 Ohio St.3d 306, 308; Committee comment toR.C. 2919.22 .
Id., ¶ 59.
{¶15} Specifically, Phillips argues in the case at bar that the evidence did not support a conviction of
{¶17} We further note that Ohio law recognizes a parent‘s right to administer corporal punishment.
(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;
(3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive
under the circumstances and creates a substantial risk of serious physical harm to the child; (4) Repeatedly administer unwarranted disciplinary measures to the child, when there is a substantial risk that such conduct, if continued, will seriously impair or retard the child‘s mental health or development
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{¶18} In State v. Suchomski, the Supreme Court of Ohio found that prosecution under
Nothing in
R.C. 2919.25(A) prevents a parent from properly disciplining his or her child. The only prohibition is that a parent may not cause ‘physical harm’ as that term is defined inR.C. 2901.01(C) . ‘Physical harm’ is defined as ‘any injury [.]’ ‘Injury’ is defined in Black‘s Law Dictionary (6th Ed. 1990) 785, as ‘* * * [t]he invasion of any legally protected interest of another.’ (Emphasis added.) A child does not have any legally protected interest which is invaded by proper and reasonable parental discipline.
58 Ohio St.3d at 75. Accordingly, parental discipline is an affirmative defense to a charge of child endangering. See, State v. Snell, 5th Dist. Stark Nos. 2002CA00181, 2002CA00190, 2003-Ohio-975, ¶ 30.
{¶19} Whether parental discipline is “extreme or excessive” is determined in light of the totality of the circumstances. State v. Hauenstein, 121 Ohio App.3d at 516, citing State v. Hart, 110 Ohio App.3d 250, 256 (3rd Dist. 1996). “In analyzing the totality of the
{¶20} In the present case, the trial judge failed to consider the reasonableness or propriety of the corporal punishment employed by Phillips, finding only that,
They [the children] were running around. I mean there were stacks of merchandise at Wal-Mart. They could run into that. They could run into other areas and do harm to other people at Wal-Mart.
{¶21} The evidence, however, demonstrates that Phillips removed the children from the store for misbehaving. Upon their return to the store, the children were under control and were behaved. In the case at bar, the trial court simply found that the elements of
{¶23} The evidence presented further establishes that the actions of Phillips were the imposition of corporal punishment by a mother who judged her son‘s conduct and language warranted a physical disciplinary response. Black‘s Law Dictionary (6th Ed.1990) 339, has defined “corporal punishment” as “physical punishment * * * any kind of punishment of or inflicted on the body.” This definition would include extremities of the body such as the head, arms and legs. State v. Rogers, 44 Ohio App.2d 289, 290 (1st Dist. 1975).
{¶24} Accordingly, we find the state failed to prove by sufficient evidence that the type of discipline employed by Phillips resulted in physical harm or could result in a substantial risk of physical harm to the child.
{¶25} We further find the state further failed to prove that Phillips actions were reckless,
Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct. Thompson [v. McNeill], 53 Ohio St.3d at 104-105, adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965); see also Black‘s Law Dictionary 1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of
harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm).
Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 34.
Conclusion
{¶26} We find that Phillips’ actions did not cause the child physical harm or threaten substantial risk of same as defined by
{¶27} Given the circumstances presented in this case, we agree that Phillips’ conduct was not drastic or severe. Specifically, we find that the discipline meted out by Phillips fell within the established parameters of “proper and reasonable parental discipline.” Accordingly, Phillips’ sole assignment of error is sustained.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur