CITY OF WESTLAKE v. Y.O.
No. 107226
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 20, 2019
[Cite as Westlake v. Y.O., 2019-Ohio-2432.]
KATHLEEN ANN KEOUGH, J.
Criminal Appeal from the Rocky River Municipal Court Case No. 17-CRB-2896
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 20, 2019
Appearances:
Michael P. Maloney, City of Westlake Law Director, and John F. Corrigan, Assistant City of Westlake Prosecutor, for appellee.
Kandee S. Robinson, for appellant.
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Y.O., appeals his conviction for domestic violence. For the reasons that follow, we affirm.
{¶ 3} Y.O. and his ex-wife, A.O., operated under a shared parenting agreement regarding their ten-year-old son, D.O., with Y.O. as the residential-custodial parent. The shared parenting agreement provided for alternating weekly visitation. On Monday, December 5, 2017, D.O. was scheduled to begin visitation with A.O. following school; however, she was out of town on business until later that evening. It was agreed that A.O. would pick D.O. up from Y.O.s home after her flight home that night around 10:30 p.m., which was already beyond D.O.s normal 9:00 p.m. school-night bedtime. When A.O. was not at the house at 10:30 p.m., Y.O. sent D.O. to bed. D.O. testified that Y.O. was supposed to wake him when his mom arrived.
{¶ 4} Y.O. testified that around 11:15 p.m., A.O. sent a text message to D.O.s cell phone, which was charging in Y.O.s bedroom, stating that her flight had just landed, and questioning if she should still pick him up. Y.O. stated that he did not reply because D.O. was already in bed, and because it was a school night, it was too late to wake him. Around 2:00 a.m., D.O. woke Y.O., who was sleeping on the couch, inquiring about his mom. When Y.O. told his son that she had sent a text message, D.O. became angry, started crying, and asked why Y.O. did not wake him. Y.O. told D.O. that it was too late. According to D.O., Y.O. told him “that no one was that stupid to pick up a kid at 11:00 p.m.” Y.O. denied that he made that statement to
{¶ 5} Y.O. ordered D.O. to go back to his room and go to bed. D.O. testified that he cried himself back to sleep. The following morning, D.O. did not get ready for school. D.O. stated that he was upset and mad that his dad did not wake him when his mom texted. Y.O. came into D.O.s room and noticed that his son was not getting ready, but just sulking in front of his closet. D.O. became argumentative with Y.O. about why he did not wake him. According to D.O., Y.O. repeatedly stated that “no one is that stupid,” and when D.O. argued with him that his mom was not stupid, Y.O. grabbed D.O. by his face. D.O. stated that he was initially able to deflect his dads movements toward his face. D.O. testified that without warning, Y.O. slapped him on the left side of the face five times, the last time striking him in the eye area.
{¶ 6} Y.O. denied that he slapped D.O. He testified that as D.O. was arguing with him, Y.O. grabbed him by the shoulders, lifted up his head, and gave him his “marching orders.” Y.O. stated that when D.O. became argumentative and continued doing so for “three or four minutes,” he spanked D.O. on his bottom three or four times. Y.O. stated that after he spanked him, D.O. “went rigid and stopped.” D.O. denied that Y.O. spanked him.
{¶ 7} Both D.O. and Y.O. testified that following the physical altercation, D.O. got ready for school and ate breakfast. Y.O. testified that D.O. did not say anything during this time, and did not argue with him when Y.O. told him to change his shirt. D.O. left home and rode the bus to school.
{¶ 9} Brickman testified that she interviewed D.O. that day regarding the injury to his eye. She stated that D.O. told her that his dad had slapped him in the face five times. According to Brickman, D.O.s eye was a little puffy but not bruised. She called A.O. and advised her about D.O.s injury and allegation. According to Brickman, A.O. told her that she had a lawyer and they were “building a case for her to have custody.” Brickman also testified that A.O. told her the incident was “nothing new” and that they had gone to court over something similar in March. Brickman, as a mandatory reporter of abuse, also contacted the Cuyahoga County Department of Children and Family Services (“CCDCFS“). She testified that she later received a letter from CCDCFS that no investigation would be conducted regarding the allegation.
{¶ 10} A.O. testified that she picked up D.O. at the end of the school day and took him to the hospital later that evening. She explained that she did not immediately report the incident to police because she believed that the school or CCDCFS had already reported the incident, but because D.O. did not want to go back
{¶ 11} Emily Malley, a social worker at MetroHealth Medical Center testified that she spoke with D.O. and his mom on the evening of December 5. According to Malley, D.O.s left eye was more swollen than the other eye but she could not recall if there was any discoloration; she did not take any photographs. She stated that D.O. told her that his father slapped him five times after his father called D.O.s mom names. Malley stated that A.O. told her about visitation and custody. D.O. testified that his mom and stepdad told him that they were going to get custody of him. He admitted that if Y.O. hit him, it would help his mom get custody.
{¶ 12} Jason Carman, a Westlake police officer, testified that he took the domestic violence complaint from A.O. on December 11, 2017. He stated that after receiving the report, he called Y.O. and asked him to come to the station for an interview. During the interview, Y.O. gave Officer Carman a written statement, which the officer read aloud at trial. In the statement, Y.O. stated that he grabbed D.O.s shoulders to hold him still, and denied that he slapped D.O. in the face. Y.O., however, did not disclose in this statement that he spanked D.O.
{¶ 14} The trial court denied Y.O.s Crim.R. 29 motions for acquittal. The jury found Y.O. guilty of domestic violence and further answered the “juror interrogatory” that they believed that Y.O. slapped D.O. in the face. The trial court sentenced Y.O. to a one-year period of community control with relevant sanctions, and issued a no-contact order.
{¶ 15} Y.O. now appeals, raising six assignments of error for our review.
I. Sufficiency of the Evidence
{¶ 16} The test for sufficiency of the evidence requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. An appellate courts function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendants guilt beyond a
{¶ 17} In his first assignment of error, Y.O. contends there was insufficient evidence to support his conviction for domestic violence. Specifically, Y.O. maintains that the city failed to prove that his actions were beyond the reasonable parental discipline of a child. However, this assertion of “parental discipline” is an affirmative defense, and a sufficiency of the evidence challenge is not a proper vehicle to review an affirmative defense. State v. Mincy, 8th Dist. Cuyahoga No. 106224, 2018-Ohio-3565 ¶24, citing State v. Hancock, 108 Ohio St.3d 57, 2009-Ohio-160, 840 N.E.2d 1032, ¶ 37, quoting Caldwell v. Russell, 181 F.3d 731 (6th Cir.1999) (“[T]he due process ‘sufficient evidence’ guarantee does not implicate affirmative defenses, because proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime.“); State v. Simes, 8th Dist. Cuyahoga No. 103672, 2016-Ohio-7300, ¶ 20, citing Hancock (“[A] sufficiency challenge does not implicate affirmative defenses.“). Accordingly, Y.O.s affirmative defense will not be considered under this assignment of error.
{¶ 19} In this case, sufficient evidence was presented to support Y.O.s conviction for domestic violence. D.O. testified that Y.O., his father, slapped his face five times, the last time striking his left eye. He stated that each slap hurt more than the one before, and the last slap caused his eye to swell and become red. Moutous, Brickman, and Malley, all testified that they noticed swelling to D.O.s left eye and some redness. Courts have repeated held that a slap to the face, at the very least, is an attempt to cause bodily injury. See State v. Blonski, 125 Ohio App.3d 103, 707 N.E.2d 1168 (9th Dist.1997) (“By itself, an open-handed slap to the face has been considered an attempt to cause bodily injury, and, thus, constitute[s] domestic violence.“).
{¶ 20} Accordingly, viewing the evidence in the light most favorable to the prosecution, we find that sufficient evidence was presented to support Y.O.s conviction of domestic violence. His first assignment of error is overruled.
II. Manifest Weight of the Evidence
{¶ 21} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and
{¶ 22} In his second assignment of error, Y.O. contends that his conviction is against the manifest weight of the evidence because the use of corporal punishment or parental discipline was reasonable, justified, and created no imminent risk of serious physical harm.
{¶ 23} Proper and reasonable parental discipline can be an affirmative defense to a charge of domestic violence. State v. Hart, 110 Ohio App.3d 250, 254, 673 N.E.2d 992 (3d Dist.1996). In State v. Suchomski, 58 Ohio St.3d 74, 567 N.E.2d 1304 (1991), the Ohio Supreme Court 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 Blacks Law Dictionary (6 Ed.1990) 785 as “* * * [t]he invasion of any legally protected interest of another.” (Emphasis sic.) A child does not have any legally protected interest which is invaded by proper and reasonable parental discipline.
{¶ 25} In this case, no photographs were taken of D.O.s injuries. Accordingly, the jury was tasked with determining this case solely on the testimony and credibility of the witnesses. Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a witness‘s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶ 26} At trial, Y.O. maintained that he merely spanked D.O. whereas D.O. claimed that Y.O. slapped him in the face five times, causing injury to his eye. The
{¶ 27} In support of his argument, Y.O. cites to this courts decision in Brooklyn v. Perna, 8th Dist. Cuyahoga No. 96647, 2012-Ohio-265. In Perna, this court found that the defendants parental discipline of throwing his daughter down on the couch three to four times, and covering her mouth, which caused no bruising or lasting injuries, was insufficient to support a conviction of domestic violence.
{¶ 28} We find Perna distinguishable because D.O. testified his father slapped him in the face five times and suffered swelling and redness to his left-eye. Moreover, unlike the defendant in Perna who warned his 13-year old daughter that continued poor behavior would result in discipline, Y.O. gave his 10-year-old son no warning before repeatedly slapping him in the face.
{¶ 29} “The propriety and reasonableness of corporal punishment in each case must be judged in light of the totality of the circumstances. A child‘s age, behavior, and response to noncorporal punishment as well as the location and severity of the punishment are factors that should be examined.” Hart, 110 Ohio App.3d at 256, 673 N.E.2d 992. To this list must be added the parents state of mind while administering the discipline. Galion v. Martin, 3d Dist. Crawford No. 3-91-6, 1991 Ohio App. LEXIS 6092 (Dec. 12, 1991)
{¶ 30} After considering the factors set forth in Hart, the repeated slapping of D.O.s face was not proper and reasonable under the totality of the circumstances. Although D.O. was admittedly defiant and argumentative with Y.O., no testimony was presented that other noncorporal punishment attempts were exhausted or that prior instances of noncorporal punishment proved ineffective. The fact that Y.O. slapped D.O. repeatedly without any opportunity for him to become obedient or respectful, is excessive. Accordingly, this is not the exceptional case where the jury clearly lost its way and created a manifest miscarriage of justice. Y.O.s second assignment of error is overruled.
III. Denial of Crim.R. 29
{¶ 31} In his third assignment of error, Y.O. contends that the trial court abused its discretion when it denied his motions for acquittal. We review a trial courts denial of a defendant‘s motion for acquittal using the same standard we apply when reviewing a sufficiency-of-the-evidence claim. State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶ 21-23 (“Crim.R. 29(A) and sufficiency of evidence review require the same analysis.“), citing Cleveland v. Pate, 8th Dist. Cuyahoga No. 99321, 2013-Ohio-5571. Y.O. does not make any independent challenge under this assignment of error; he merely “incorporates the law and arguments as set forth in assignments of error I and II.”
IV. Incomplete Jury Instruction
{¶ 33} Y.O. contends in his fourth assignment of error that the trial court erred in failing to provide a definition of “totality of the circumstances” in the jury instructions.
{¶ 34} The record reflects that a lengthy discussion occurred regarding jury instructions and tailoring the instructions to include the affirmative defense of corporal punishment or parental discipline. However, the record does not reflect that a specific objection was raised regarding the omission of the definition of “totality of the circumstances.” Accordingly, we review this assignment of error for plain error.
{¶ 35} In order to prevail under a plain-error analysis, the appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus;
To find the defendant guilty of domestic violence, if you believe that parental discipline was administered, the State must prove beyond a reasonable doubt that the parents conduct was improper and unreasonable parental discipline in light of the totality of the circumstances.
* * *
(B)(2) REASONABLE PARENTAL DISCIPLINE. The defendant claims that he was engaged in reasonable and proper parental discipline of his child. The law permits a parent to use reasonable and proper measures to discipline his child.
(C) REASONABLE means not extreme or excessive under the circumstances.
(D) PROPER means suitable or appropriate under the circumstances.
If the parental discipline inflicted exceeded what was permissible as reasonable and proper under the circumstances, then it constitutes actionable domestic violence and you must find the defendant guilty.
{¶ 37} Y.O. contends that the trial court should have given an instruction similar to the one given in Hicks, 88 Ohio App.3d 515, 624 N.E.2d 332. Our review of Hicks, however, reveals that the instruction given to the jury in that case is substantially similar to the one Y.O. complains about on appeal, and contrary to Y.O.s argument on appeal, the Hicks court did not give a “totality of the circumstances” instruction to the jury.
{¶ 38} Y.O. contends that the instruction should have included the factors the jury should consider in determining whether the parental discipline used was reasonable and proper. Those factors include: the childs age, the childs behavior
{¶ 39} In this case, the jury was properly instructed to make this determination based on the “totality of the circumstances.” Although the trial court did not specifically define or identify the specific factors the jury should consider, the meaning of “totality of the circumstances” is relatively common and no legal definition is necessary to understand its everyday meaning. The jury heard testimony regarding all of the circumstances surrounding the incident, and accordingly, was able to determine if Y.O. used reasonable and proper parental discipline. Any specific factor that Y.O. wished the jury to focus on could have been included during closing argument to support his defense that his actions were reasonable and proper “under the totality of the circumstances.”
{¶ 40} Based on the foregoing, we find that the omission of a specific jury instruction on “totality of the circumstances” was not plain error; the outcome of the trial would not have yielded a different result if the requested instruction was given. Accordingly, Y.O.s fourth assignment of error is overruled.
{¶ 41} In his fifth assignment of error, Y.O. contends that the verdict form was inconsistent with the jury instruction given, amounting to structural error. The “verdict form” that Y.O. complains about is the jury “interrogatory” that was presented to the jury along with the general verdict form.
{¶ 42} Y.O. did not object to the verdict forms; accordingly, we review for plain error. In fact, when counsel for Y.O. was specifically asked about the jury interrogatory, she raised no objection and specifically acquiesced to the language used for the question.1 Accordingly, it could be argued that any error was invited error.
{¶ 43} Under either standard, the inclusion of the jury interrogatory does not rise to error despite the fact that our review of the law does not reveal any instance when the use of jury interrogatories in criminal cases was determined to be appropriate. The verdict forms in criminal cases reflect a jurys decision on counts in the indictment or complaint — guilt or innocence; and whether those offenses are lessened or enhanced for sentencing purposes — the finding of aggravating or mitigating circumstances, specifications, or notifications.
{¶ 44} In this case, the jury was presented with two general verdict forms and a jury interrogatory. The verdict forms allowed the jury to either find Y.O. guilty
{¶ 45} This court can only speculate why the jury interrogatory was included, but based on the discussion surrounding whether Y.O.s actions were corporal punishment or domestic violence, the parties seemed concerned that the jury would find that Y.O.s conduct of spanking — conduct that all parties and the court seemed to agree would be reasonable and appropriate parental discipline — could be actionable domestic violence. Accordingly, the jury interrogatory removed any doubt – the jury found that Y.O.s conduct of slapping D.O. was not reasonable and proper parental discipline.
{¶ 46} Although the use of jury interrogatories in criminal cases is questionable, its use here did not rise to the level of plain error under the facts and circumstances of this case. The verdict form was proper, and the jury interrogatory was only considered after the jury found beyond a reasonable doubt that Y.O. was guilty of domestic violence. Y.O.s fifth assignment of error is overruled.
{¶ 47} In this case, Officer James Carmen testified about his interaction and interview with Y.O. at the police station. Over objection, Officer Carmen read Y.O.s statement to the jury; the statement was also admitted as an exhibit over objection. Y.O. contends in his sixth assignment of error that the trial court erred in admitting his written statement because it was inadmissible hearsay. We disagree.
{¶ 48} An appellate court reviews the admission of evidence under an abuse of discretion standard. State v. Phillips, 8th Dist. Cuyahoga No. 104806, 2017-Ohio 1284, ¶ 26. A statement made by a defendant is considered an “admission,” and is governed by
{¶ 49} Y.O.s sixth assignment of error is overruled.
{¶ 50} Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Rocky River Municipal Court to carry this judgment into execution. The defendants conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR