Opinion
No. 105841
04-19-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. TAMIRA JOHNSON DEFENDANT-APPELLANT
ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender Frank Cavallo Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Daniel T. Van Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-601839-A BEFORE: Stewart, J., E.T. Gallagher, P.J., and S. Gallagher, J. ATTORNEYS FOR APPELLANT Mark A. Stanton
Cuyahoga County Public Defender Frank Cavallo
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor Daniel T. Van
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Tamira Johnson appeals her conviction following a bench trial. The court found Johnson guilty of one count of endangering children in violation of R.C. 2919.22(A), a felony of the fourth degree. This case arose from Johnson's son, a toddler, being found outside by himself, clothed only in a diaper and near a busy street. In her two assignments of error, Johnson challenges her conviction as being based on insufficient evidence and against the manifest weight of the evidence. For the reasons that follow, we affirm.
This offense was elevated to a fourth-degree felony in light of Johnson's stipulation to a previous conviction for domestic violence involving a child victim. See R.C. 2919.22(E)(2)(b). --------
{¶2} The facts at trial established that one morning in October, when it was about 40 degrees outside, a man observed Johnson's nearly three-year-old son standing unattended in front of an apartment building, wearing only a diaper. The man did not know the boy, who was standing near a car, and he assumed that the boy was with someone in the car. However, the car left and the boy remained. The man testified that he watched for four or five minutes to see if anybody would come for the boy, but no one did. When the boy began walking towards the driveway, the man picked him up and asked about his mother. The boy, now crying, pointed towards the apartment building door.
{¶3} The man went to the front door and began pushing the buzzer for each apartment. A tenant let them in. The man testified that after they entered the building, the boy jumped out of his arms, went up the stairs to an apartment, opened the door, and went in. The man followed, calling out to see if anybody was there, and looking in each room. Because the apartment was empty, he brought the boy back downstairs to the tenant's apartment. The man then called the police. He testified that approximately 15 minutes elapsed from the time that he first observed the boy until he called the police.
{¶4} Before the police arrived, Johnson returned home, and took her child. The officer spoke with the man, the tenant, and Johnson. He made sure the child was okay and issued Johnson a citation for endangering children.
{¶5} Johnson testified as to the events that led to the man finding her son outside by himself. Earlier that morning, Johnson received a call from a neighbor who was having breathing trouble, but was not in the need of emergency assistance. The neighbor asked Johnson to check to see if she left her asthma medication in Johnson's car. Johnson was alone in her apartment except for her son who was sleeping. Before Johnson went downstairs to look for the medication, she stated that she checked to make sure her son was still asleep, even though, as she testified, it was her son's usual routine to sleep for another hour or more from the time she got the call.
{¶6} Johnson said she locked the apartment door behind her and went downstairs to check her car for the medication. She found the medication and took it to her neighbor. Johnson testified that although they live in the same building complex, she had to go outside to get to her neighbor's apartment. Johnson and the neighbor testified that it would take one to two minutes to go from one apartment to the other. The neighbor stated that Johnson did not simply drop off the medication and leave, but instead, came inside the apartment and talked for around five minutes. Apparently while Johnson was gone, her son woke up, managed to open the door, went down the stairs and outside.
I. Sufficiency of the Evidence
{¶7} Johnson argues in her first assignment of error that her conviction was based on insufficient evidence because the state did not prove that she was reckless in her actions.
{¶8} When determining whether the state presented sufficient evidence for a conviction, "'[t]he 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.'" State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 150, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "On review for sufficiency, courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring).
{¶9} The parent of a child under eighteen violates R.C. 2919.22(A) when he or she creates "a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support." A "substantial risk" is one in which there is a "strong possibility * * * that a certain result may occur," as opposed to a risk that involves only a "remote or significant possibility." R.C. 2901.01(A)(8). To secure a conviction for child endangering, the state need not prove the child suffered actual harm; it must only show that the circumstances which created the substantial risk of harm existed. Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31 N.E.3d 695, ¶ 27 (8th Dist.).
{¶10} Because R.C. 2919.22(A) neither specifies the requisite degree of culpability, nor evinces a legislative intent to make the crime a strict liability offense, R.C. 2901.21(B) imposes "recklessness" as the culpable mental state. State v. McGee, 79 Ohio St.3d 193, 195, 1997-Ohio-156, 680 N.E.2d 975. A person is reckless only if he or she acts, "with heedless indifference to the consequences, [and] 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." R.C. 2901.22(C). Implicit in the definition of recklessness is the requirement that the conduct be a "gross deviation from the standard of care which a reasonable person would exercise in the situation." State v. Hlavsa, 8th Dist. Cuyahoga No. 76220, 2000 Ohio App. LEXIS 2631, 11 (June 15, 2000), citing State v. Covington, 107 Ohio App.3d 203, 206, 668 N.E.2d 520 (1st Dist.1995).
{¶11} Falling short of reckless, a person is negligent if his or her action constitutes "a substantial lapse from due care, [and] fail[ure] to perceive or avoid a risk that the person's conduct may cause a certain result or may be of a certain nature." R.C. 2901.22(D). 2919While the reckless person and the negligent person both create a risk of harm, their conduct is nonetheless distinguishable: "[t]he reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it." State v. Peck, 172 Ohio App.3d 25, 2007-Ohio-2730, 872 N.E.2d 1263, ¶ 13 (10th Dist.), quoting Torcia, Wharton's Criminal Law, Section 27, 170 (15th Ed.1994). Thus in order to convict Johnson of child endangering, the state was required to prove that at the time Johnson left her son by himself in the apartment she understood that doing so created a substantial and unjustifiable risk of harm to him.
{¶12} The thrust of Johnson's argument is that the state failed to produce evidence of recklessness — that she consciously disregarded the risk in leaving her son alone. She argues that at most she was negligent for failing to perceive the risk. Johnson concedes that she created a substantial risk of harm to her son, but argues that risk, in and of itself, does not prove that she disregarded it. We disagree.
{¶13} The state presented evidence of a past incident where Johnson left her five-year-old daughter alone and the child was seriously injured. On cross-examination, Johnson was shown an Ohio Department of Job and Family Services report that was created following the injury. Johnson read aloud an excerpt from the report that concluded that her daughter was home alone when she found a lighter and burned herself, sustaining third-degree burns on various parts of her body. Johnson disputed that her daughter was left alone. Nevertheless, the report constituted evidence of Johnson's awareness of the significant harm that can befall a young child left alone. The trial court therefore had sufficient evidence to conclude that Johnson was reckless in leaving her son alone. See State v. Collins, 89 Ohio St.3d 524, 530, 2000-Ohio-231, 733 N.E.2d 1118 (circumstantial evidence may prove criminal intent). We overrule Johnson's first assignment of error.
II. Manifest Weight of the Evidence
{¶14} In her second assigned error, Johnson argues that her conviction is against the manifest weight of the evidence because the greater weight of the evidence showed that she was merely negligent and not reckless.
{¶15} A manifest weight challenge prompts a court of appeals to review the record, weigh the evidence and reasonable inferences drawn from it, and consider witness credibility. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. The court must determine whether, if by resolving conflicting evidence, the factfinder "'created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Witness weight and credibility determinations are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). "It may believe or disbelieve any witness or accept any part of what a witness says and reject the rest." State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). For this reason, reversal on manifest weight grounds is reserved for the "exceptional case in which the evidence weighs heavily against conviction." Thompkins at 387, quoting Martin at 175.
{¶16} Johnson argues that her trial testimony about the incident conclusively established that she was not reckless. At trial she stated that: her son had never awakened on his own at the time he did that day, he had never unlocked the door, he had never gone down the stairs by himself, and he had never left the building on his own. Johnson argues that the state, in contrast, offered no evidence to counter her testimony and establish that she disregarded a known risk.
{¶17} As discussed above, when Johnson left her toddler son alone in the apartment to go look for the neighbor's medication in the car, she chose to do so even though a child of hers had been seriously injured under similar circumstances of being alone or unattended. Johnson's testimony is not evidence that weighs heavily against conviction. This not an exceptional case where the trial court, sitting as the trier of fact, lost its way requiring a reversal. We overrule Johnson's second assignment of error.
{¶18} Judgment affirmed.
It is ordered that appellee recover of appellant 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
MELODY J. STEWART, JUDGE EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR