State v. TurnerState v. Turner
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-581904-A
BEFORE: Stewart, J., Jones, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: February 26, 2015
Ruth Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland, OH 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Sherrie S. Royster
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶2} The charges in this case arose out of an incident whereby Turner’s 18-month-old daughter sustained serious burns while in Turner’s care. On the evening of January 18, 2014, the child’s mother dropped her off to Turner for visitation. Turner then took the child to his sister’s house. While there, he proceeded to draw his daughter a bath, place her in the tub, and then leave her there for a period of time. When he returned, his daughter was badly burned on her lower abdomen, buttocks, vaginal area, and feet. The burns were so severe that most of the skin in the affected areas had detached from her body and was floating in the tub around her. Turner immediately sent pictures of the burns to the mother via cell phone messaging and explained to her that he did not know how the daughter sustained the injuries. Turner denied placing the daughter in hot water and told the mother that the bath he drew was more cold than hot. Turner then took his daughter to the hospital for treatment.
{¶3} Turner was later arrested and charged with third-degree felony child endangering, in violation of
{¶4} In his sole assignment of error, Turner argues that the offenses of third-degree felony child endangering and domestic violence are allied offenses of similar import that should have merged under
{¶5} The Double Jeopardy clause of the
{¶6}
(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 suсh offenses, and the defendant may be convicted of all of them.
{¶7}
{¶8} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct thаt is ‘a single act, committed with a single state of mind.’” Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., concurring). “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.” Johnson at ¶ 50.
{¶9} Based on the Ohio Supreme Court’s holding in Johnson, we must examine whether it is possible to commit the offenses of third-degrеe felony child endangering,
{¶10} In cases where the criminal actor is a parent, and the victim is his or her minor child, the parent may simultaneously commit the offense of domestic violence and child endangering if the parent recklessly creates a substantial risk to the health or safety of the child, which causes serious physical harm to the child. In that situatiоn, the parent-child relationship serves to satisfy both the duty element of the child endangering charge and the familial relationship required of the domestic violence charge. Further, it is clear from the language of these offenses, that the legislature intended to prevent those in a close relationship to the victim from recklessly causing the victim serious physical harm. Therefore, we find that an offender can commit the offenses of third-degree child endangering under
{¶11} Having determined that the offenses can be committed with the same conduct, we must next determine whether the offenses were committed with the same conduct — that is, “a single act committed with a single state of mind.” Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 49.
{¶12} The record before us demonstrates that at the sentencing hearing, the state asked the court not to merge the offenses because each charge applied to separate and distinct conduct. At sentencing, the prosecutor explained to the court that there were multiple children in Turner’s care at the home on the day of the incident, aside from the child burn victim, and that they were also
{¶13} We first note that, although Turner apparently had multiple children in his care that day, both counts of the indictment only indicate one victim in this case: Jane Doe DOB 07-14-2012, Turner’s 18-month-old daughter. Therefore, we will not consider the state’s argument against merger based on a multiple-victim theory.
{¶14} Additionally, although we agree that Turner could have been charged with child endangering based on having his child in such dangerous and deplorable conditions, it appears that those conditions were not considered by the grand jury when it charged Turner. While the
{¶15} It is undisputed that the only serious physical harm that befell Turner’s daughter resulted from the burns that she sustained while in the bath, not from any harmful conditions that the house might have posed. Therefore, the serious physical harm component contained in the furthermore specification on the child endangering count, like the serious physical harm comрonent of the domestic violence charge, must necessarily refer to the child’s burn injuries. Since the record demonstrates that Turner’s placement of his daughter in the bath was a single act, committed with a single animus, we find that the offenses merge under
{¶16} Judgment reversed and remanded to the trial court for resentencing where the state can elect which of Turner’s charges it chooses to proceed on for sentencing. See Maumee v. Geiger, 45 Ohio St.2d 238, 244, 344 N.E.2d 133 (1976) (explaining that under Ohio’s merger doctrine an accused сan be tried on both allied offenses, but may be convicted and sentenced on only one).
It is ordered that appellant recover of said appellee 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 common pleas court to carry this judgment into execution.
MELODY J. STEWART, JUDGE
LARRY A. JONES, SR., P.J., CONCUR;
EILEEN A. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION)
EILEEN A. GALLAGHER, J., CONCURRING WITH SEPARATE OPINION:
{¶17} Although I concur with the judgment of my colleagues, I write separately to express my concern that it was the position of the state of Ohio at sentencing that the condition of the home dictated the charges of child endangering.
{¶18} Specifically, the prosecuting attorney stated:
Now, as it relates to endangering the children * * * there were five children in the home. The children appeared to be starving but not malnourished, sharing one bag of potato chips to the point where thе officer took out his own personal lunch and began to feed the children and they were kind of fighting to get to the food. He had additional officers bring McNugget meals from McDonald’s along with something for the children to drink later because they were starving. Also in the home was a red-nosed pitbull that was barking and being held behind a door. As it relates to endangering the children, which states that it created a substantial risk of harm, the state would submit to the court that the environment in which the children were in created а substantial risk of harm.
{¶19} The assistant prosecuting attorney presented to the court photographs which depict “a makeshift smoking bong” which she indicated was for drug abuse and a second photo of one of the sinks in the home in which there were human feces.
{¶20} I am incredulous, therefore, as to why there were not multiple charges of endangering children filed against Turner.