{¶ 2} In February 2003, appellant was indicted on one count each of patient abuse in violation of R.C.
{¶ 3} The state of Ohio presented the testimony of Tara Sparks and April Gallaher. On November 30, 2002, appellant, Tarа, and April were resident specialists on duty at the center. A resident specialist provides day-to-day direct care to residents of the center. Appellant, Tara, and April had been employed at the center six months, six weeks, and 11 months respectively. That day, Tara was working from 3 to 11 p.m. and was responsible for the care of four residents, including Terry who was on a family outing. When Terry returned to the center at about 4 p.m., he was happy and in a good mood. Tara took him to the TV room to watch television until dinner time at 5 p.m. Tara then went to the nearby manager's office to look over her list of duties for the day. April was already in the office.
{¶ 4} Moments later, Tara and April heard Terry crying and yelling "stop, quit, yоu're fired." Tara and April immediately went to the TV room where they observed Terry sitting on a couch and appellant standing over him with a cordless phone in her hand. Appellant looked at Tara and April, told them Terry was acting up, and then hit Terry four or five times in the groin with the phone. Shocked, Tara and April did not react. Because Terry continued to cry, appellant told him to "shut up." As Terry then began to kick at her, appellant grabbed him by his ankles and pulled him off the couch onto his back. During the entire incident, Terry kept crying and telling appellant to stop and that she was fired. Tara and April helped Terry back on the couch, asked him if he was o.k., and went back to the office. When they left the TV room, apрellant was still in the room with Terry.
{¶ 5} About 15 minutes later, Tara and April again heard Terry crying. They found him in the hall lying on the floor face down. Appellant, who was standing over Terry, explained that after Terry once again started to act up, she was taking him to his room when he slid off his walker and fell to the ground. Another resident specialist, Brad, helped Terry get back to his feet. Appellant called the nurse and got some ice to put on Terry's eye. When the nurse checked Terry, he had a slight bruise to his left eye. Terry ended up having a black eye.
{¶ 6} Although required by protocol to immediately notify a supervisor and file a report upon witnessing an assault on a resident, Tara and April failed to either notify a supervisor or prepаre a report that day regarding the phone incident. Likewise, they did not tell the nurse about the phone incident that day. They did, however, tell their QMRP (qualified mental retardation professional) and prepare a report about the phone incident two days later when they returned to work. The nurse was then notified about the phone incident. Upon examining Tеrry's body, the nurse noted a "1/2 cm round red area in the [right] groin area" as well as a "1/2 cm bruise on the inner [left] thigh."
{¶ 7} Appellant testified on her behalf. On November 30, 2002, she was working from 7 a.m. to about 9 p.m., and had been working 21 hours in the past two days. That day, she was responsible for the care of two residents, Kevin C. and David P. Because David had a tendency to bite staff and other residеnts, he had to be kept in visual sight by a staff member at all times. According to appellant, she was walking David into the TV room when Terry got off the couch and approached them. This caused David to snap and get ready to bite Terry. Appellant intervened, stepping between Terry and David and redirecting David.
{¶ 8} While appellant was busy with David, Terry walked out of the room into the hallway. Moments later, appellant heard Terry screaming. She found him lying on the floor face down next to his walker and complaining about his eye hurting. Appellant called the nurse with a cordless phone. The nurse quickly responded. Appellant told her what had happened, and then got some ice for Terry's eye. After she returned with the ice, appellant was talking to Terry telling him everything would be okay when he began kicking at her. Although she had the cordless phone in her hand, appellant denied hitting him with it. Instead, she implemented what she had learned in training to prevent herself from being injured. Eventually, Terry calmed down, stopped kicking, apologized, and hugged appellant. That day, appellant filed a report regarding Terry's fall in the hallway.
{¶ 9} Appellant worked the rest of her shift that day without incident and worked a double shift the following day. Although off the next day, she was called into work because of Tara's and April's allegations. Initially, when confronted about what had happened, appellant thought it was because of Terry's eye incident. Likewise, when interviewed by thе police about a week later, appellant again thought it was about the eye incident. When asked about the phone incident during the police interview, appellant denied the allegation and continued to focus on the eye incident.
{¶ 10} On September 5, 2003, a jury found appellant guilty as charged. Several days later, appellant filed a Crim.R. 29(C) motion for acquittal which the trial court denied. The trial court subsequently sentenced appellant to six months in prison on the patient abuse count (the minimum prison term for a fourth-degree felony), and to a concurrent three-month jail term on the assault count. This appeal follows in which appellant raises three assignments of error.
{¶ 11} Assignment of Error No. 1:
{¶ 12} "The trial court erred to the prejudice of defendant-appellant when it sentenced her to prison instead of putting her on community control."
{¶ 13} R.C.
{¶ 14} Under R.C.
{¶ 15} In its sentencing entry and at the sentencing hearing, the trial court found that two of the factors in R.C.
{¶ 16} With regard to seriousness, the trial court found that (1) the injury to the victim was worsened by the mental condition of the victim, (2) the "victim suffered serious physical, psychological or economic harm as a result of the offense," (3) appellant "held a public office or position of trust and the offense was related to that office or position," (4) appellant's occupation or position obliged her to prevent the offense or is likely to influence future conduct of others, and (5) appellant's occupation facilitated the offense. On appeal, appellant takes issue with the court's findings that Terry suffered serious physical harm, and that appellant held a position of trust.
{¶ 17} After noting that Terry was a "mentally retarded" person "who really couldn't do much or express much for himself," the trial court found that he had suffered "serious physical, psychological or economical harm as a result of the offense. And this certainly could be argued as to what he suffered * * * because he is so unable to speak for himself. He's really unable to articulate what the injury was, but I make that finding." While we agree with appellant that the injuries suffered by Terry as described by the nurse do not fit the definition of "serious physical harm" under R.C.
{¶ 18} With regard to the trial court's finding that appellant held a position of trust, we find that the record supports the finding. Terry was a mentally handicapped patient with limited communication skills who resided in the center where appellant was employed as a caregiver. Appellant worked for a facility that was supposed to provide care, comfort, and security to Terry. Appellant's position as a caregiver at the center, regardless of whether Terry was her patient that day, therefore placed her in a position оf trust. See State v. Lehman,
Fairfield App. No. 01CA12,
{¶ 19} After reviewing the record before us, we find that the trial court did not err by sentencing appellant to prison rather than community control. Appellant's first assignment of error is overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} "The trial court erred to the prejudice of defendant-appellant when it did not grant a mistrial, or in the alternative, when it refused to instruct the jury regarding its inability to reach a just сonclusion."
{¶ 22} Two hours into their deliberations, the jury sent a note to the trial court asking for the testimony of appellant, Tara, and April. The trial court considered replaying these witnesses' testimony, but upon defense objection, simply decided to instruct the jury to rely on its collective memory. Later in the deliberations, the jury asked the trial court, "what is the proсedure if we are deadlocked?" After discussing the issue with both counsel for about 20 minutes, the trial court decided to give an Allen charge1 to the jury. Defense counsel objected to the Allen charge and moved for a mistrial. The trial court overruled the motion for a mistrial.
{¶ 23} Before the trial court could give the Allen charge, however, the jury asked for an additional ten minutes to deliberate, stating "we think we are close." Defense counsel again moved for a mistrial which the trial court denied. After a "brief recess," the foreperson addressed the trial court, stating "we have made some progress. Our request to review the transcripts is an integral part of a decision-making process at this point. And without those, we may, in fact, not be able to come to a conclusion." At that point, the trial court gave theAllen charge. After the jury resumed deliberations, defense counsel once again moved for a mistrial, which was denied by the trial court. At 8:15 p.m., the jury returned guilty verdicts. The record shows that the jury deliberated for about five hours.
{¶ 24} On appeal, appellant argues that the trial court abused its discretion when it gave the Allen charge, refused to declare a mistrial, and failed to issue a supplemental instruction taken from State v. Martens (1993),
{¶ 25} The grant or denial of an order of mistrial lies within the sound discretion of the trial court. State v.Garner,
{¶ 26} In State v. Howard (1989),
{¶ 27} Upon reviewing the Allen charge issued by the trial court, we find that it is balanced and neutral, and that it comports with the goals of Howard. The trial court encouraged the jurors to reach a unanimous verdict and left open the possibility that such a verdict might not bе reached. The court did not single out the jurors in the minority, but rather asked all jurors to consult with each other. The court did not instruct the jury to reach a verdict at any cost. Instead, the court stressed the importance and desirability of reaching a verdict.
{¶ 28} Whether a jury is irreconcilably deadlocked is essentially a discretionary determination for the trial court to make. State v. Brown,
{¶ 29} In the case at bar, while the jury deliberated for several hours, we are unwilling to find that the trial court abused its discretion by choosing to give the Allen charge rather than giving the Martens charge or declaring a mistrial. The jury never advised the trial court that reaching a verdict in this matter was impossible. Indeed, before the triаl court could initially give them the Allen charge, the jury asked for ten more minutes to deliberate. Even the foreperson merely indicated that they "may not be able to come to a conclusion." After hearing the Allen charge, the jury never informed the court that they continued to be deadlocked. Based upon the record before us, we cannot say that thе Allen charge coerced the jury into reaching a verdict. We therefore find that the trial court did not err by giving the Allen charge to the jury, and failing to give the Martens charge or declare a mistrial. Appellant's second assignment of error is overruled.
{¶ 30} Assignment of Error No. 3:
{¶ 31} "The trial court erred to the prejudice of defendant-appellant when it overruled her [Crim.R. 29(C)] motion for a judgment of acquittal."
{¶ 32} Crim.R. 29(C) allows a trial court, upon motion, to set aside a guilty verdict and enter a judgment of acquittal. The trial court applies the same standard in ruling on motions for acquittal presented either at trial or made after judgment.State v. Miley (1996),
{¶ 33} Appellant argues that considering the length of the jury deliberations, their indication it was deadlocked, their apparent difficulty in recalling the uncomplicated testimony of appellant, Tara, and April after a two-day trial, despite being able to take notes, their coerced verdict as a result of theAllen charge, and the fact that "the overwhelming evidence points to an acquittal," appellant's conviction was clearly questionable and the trial court should have granted her motion for acquittal.
{¶ 34} Appellant was convicted of violating R.C.
{¶ 35} Judgment affirmed.
Powell and Valen, JJ., concur.