Opinion
Case No. 14CA31 Case No. 14CA32
12-04-2015
STATE OF OHIO, Plaintiff-Appellee, v. JESSICA NEAL, Defendant-Appellant, AND TRAVIS NEAL, Defendant-Appellant.
APPEARANCES: Brian G. Jones, The Law Office of Brian Jones, Delaware, Ohio, for appellants. Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY APPEARANCES: Brian G. Jones, The Law Office of Brian Jones, Delaware, Ohio, for appellants. Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee. CRIMINAL CASE FROM COMMON PLEAS COURT ABELE, J.
{¶ 1} This is a consolidated appeal from two Lawrence County Common Pleas Court judgments of conviction and sentence. A jury found Jessica Neal and Travis Neal, defendants below and appellants herein, guilty of (1) assault in violation of R.C. 2903.13, and (2) endangering children in violation of R.C. 2919.22(B)(3).
{¶ 2} Appellants raise the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLANTS' MOTION TO SUPPRESS STATEMENTS WHERE THERE WAS NOT A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER OF MIRANDA, IN VIOLATION OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I SECTION 14 OF THE OHIO CONSTITUTION."
SECOND ASSIGNMENT OF ERROR:
"THE APPELLANTS' CONVICTIONS FOR CHILD ENDANGERING WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE RESULTING IN A MISCARRIAGE OF JUSTICE, IN VIOLATION OF SECTION 3, ARTICLE IV OF THE OHIO CONSTITUTION, BECAUSE THE MANIFEST WEIGHT OF THE EVIDENCE SHOWED THE APPELLANTS' [SIC] CREATED NO SUBSTANTIAL RISK OF HARM."
THIRD ASSIGNMENT OF ERROR:
"THE APPELLANTS' CONVICTIONS OF CHILD ENDANGERING WERE BASED UPON INSUFFICIENT EVIDENCE AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANTS CREATED A SUBSTANTIAL RISK OF HARM, THEREBY VIOLATING THE APPELLANTS' RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."
FOURTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY IMPOSING A DISPROPORTIONATE SENTENCE AND FAILING TO CONSIDER FAILURE TO CONSIDER [SIC] MITIGATING TESTIMONY AND EVIDENCE AT SENTENCING."
FIFTH ASSIGNMENT OF ERROR:
"TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO BE PREPARED TO PRESENT THE APPELLANT'S [SIC] CASE-IN-CHIEF AND TO DELIVER CLOSING ARGUMENT."
SIXTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN DENYING THE APPELLANTS' TRIAL COUNSEL A MOTION FOR A BRIEF CONTINUANCE TO FINISH PREPARATION OF THE DEFENDANT-APPELLANTS' CASE-IN-CHIEF AND CLOSING ARGUMENT DUE TO EXTRAORDINARY CIRCUMSTANCES."
{¶ 3} On December 11, 2013, six-year-old B.N.'s school nurse observed significant bruising on the child's back. The nurse suspected that the child's injuries resulted from abuse. The school contacted its school resource officer at the Lawrence County Sheriff's Office and Lawrence County Children Services. A Lawrence County Children Services caseworker, a sheriff's deputy, and a sheriff's detective responded to the school and spoke with the child. After speaking with the child, the detective, the deputy, and the caseworker went to the child's residence to speak with appellants, the child's mother and step-father.
{¶ 4} Lawrence County Sheriff's Detective Jason Newman separately interviewed each parent and gave each Miranda warnings before he began to ask questions about to the child's injuries. The parents informed the detective that on the evening of December 9, they had administered corporal punishment to the child. The parents stated that they spanked the child with their hands and hit him with a leather belt. Neither parent believed that they had inflicted any significant injury and expressed disbelief that their actions could have caused the amount of bruising that school officials and law enforcement officers subsequently observed.
Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
{¶ 5} On January 28, 2014, a Lawrence County Grand Jury returned separate indictments that charged appellants with child endangering, in violation of R.C. 2919.22(B)(3), and felonious assault, in violation of R.C. 2903.11(A)(1). Appellants entered not guilty pleas.
{¶ 6} On May 21, 2014, appellants filed separate, but substantively identical, motions to suppress the statements they made to Detective Newman. Appellants asserted that the detective obtained their statements in violation of Miranda. In particular, appellants claimed that the detective subjected them to custodial interrogations before he provided them with Miranda warnings and then continued to question them after he gave them the warnings. Appellants further argued that they did not validly waive their Miranda rights. Thus, appellants asserted that the detective's "question first technique" tainted their purported waivers.
{¶ 7} On May 27, 2014, the court held a hearing to consider appellants' motion to suppress. Detective Newman stated that he separately interviewed appellants. Detective Newman testified that before he started questioning appellants, he verbally advised appellants of their Miranda rights and presented them with a written Miranda rights form. He explained the Miranda rights form to each appellant, and asked them to place their initials beside each right to indicate that they had read it and understood it. The state introduced transcripts of the detective's interviews with appellants, as well as copies of the Miranda rights waiver forms that appellants signed.
{¶ 8} Detective Newman first spoke with Jessica. The transcript reveals that the detective obtained basic identifying information and then advised Jessica of her Miranda rights. The detective explained:
"Before I speak with anybody, okay, I'm just going to advise you or your rights, okay? You're not under arrest or anything like that. I'm just going to advise you or your rights, okay? And then I'll tell you what's going on, why we're here. What I'm going to do is I'm going to read these to you and once I read them if you'll just initial these lines here, okay, saying I read them to you. It says you have the right to remain silent and not to answer any questions at all. Anything you say can be used against you in a court of law. You have the right to your own lawyer and have him present during questioning. If you want a lawyer and cannot afford one, one will be appointed to you before questioning. If you decide to answer questions you may stop at any time. That just says do you understand these rights."Detective Newman then asked Jessica if she understood the rights, and she stated, "Yes."
{¶ 9} The Miranda rights form that the detective gave Jessica shows that she placed her initials next to the line corresponding to each of the following statements:
"1. You have the right to remain silent and not to answer any questions at all.Jessica also placed her initials next to the following questions, to which she answered, "yes:"
2. Anything you say will be used against you in a court of law.
3. You have the right to your own lawyer and to have him present during questioning.
4. If you want a lawyer and cannot afford one, one will be appointed for you before questioning.
5. If you decide to answer questions, you may stop at any time."
"6. Do you understand these rights?
7. Keeping these rights in mind, are you willing to answer questions?"The detective then stated:
"Keeping these rights in mind are you willing to answer questions? Basically I'm just going to let you know why I'm here and see what we can do about the situation that has occurred. You can stop at any time if you don't want to, okay? And if you'll sign here, that says I have read this statement of my rights and I understand what my rights are. I'm willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me. It basically just says I'm not sitting here beating you up."Jessica signed the "waiver of rights" section, which stated:
"I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me."The interview continued and Jessica subsequently made incriminating statements.
{¶ 10} Detective Newman next spoke with Travis. When Travis entered the detective's vehicle, the detective obtained basic identifying information and then advised Travis of his Miranda rights in the same manner that he had advised Jessica. The detective gave Travis the Miranda warnings form with the "waiver of rights" section at the bottom. Travis placed his initials next to each line on the form and responded, "yes," to the questions whether he understood his rights and whether he was willing to answer questions. Travis also signed the "waiver of rights" section. The detective asked Travis if he was willing to answer some questions and informed him, "just remember you can stop at anytime you want." The detective continued:
"You can just say hey, I'm done. If you would sign right there for me. It says I've read this statement of my rights and I understand what my rights are.
I'm willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, no pressure or coercion of any kind has been used against me. That's just pretty much saying I'm not old schooling it and beating you up, okay?"Travis then asked, "What's this all about?" and answered the detective's questions.
{¶ 11} Jessica and Travis also testified. They stated that they were "scared" and "nervous" and did not believe that they were free to stop answering the detective's questions. On May 30, 2014, the trial court overruled appellants' motions to suppress evidence.
{¶ 12} On July 17 and 18, 2014, the trial court held a jury trial. Sarah Cade, the child's school nurse, testified that the child's teacher expressed some concerns to her and asked her to examine the child. Cade stated that she spoke with the child and he indicated that he was having some back pain. Cade asked if she could look at his back, and the child lifted up his shirt. Cade testified that the child had bruising over the majority of his back. She thought the bruising "was very severe" and stated that it went from "just below his collar * * * approximately two-thirds of the back around to the right side." Cade suspected that the child's injuries resulted from child abuse. She explained that the school reported its concern to children services and to the school resource officer at the Lawrence County Sheriff's Office.
{¶ 13} Lawrence County Sheriff's Detective Jason Newman testified that he met with Deputy Wilson (the school resource officer) and the children services caseworker at the child's school. Detective Newman stated that he saw the child's bruises and described them as "probably the worst [bruising on a child] that I've seen in twelve years of law enforcement." Detective Newman spoke with the child, and the child "stated that his back was hurting that day and that Travis had hit him with a belt." After speaking with the child, Detective Newman decided to travel to the child's residence to speak with appellants.
{¶ 14} Detective Newman separately interviewed Jessica and Travis. He stated that he recorded their interviews, and the state played each interview during the trial. During their interviews, appellants admitted that they administered corporal punishment to the child by spanking him and using a belt to whip his back. Jessica stated that it was "[a]n accident that went too far." She claimed that she and Travis did not hit the child "that hard" and she did not "know why it bruised so badly." Travis stated that the discipline he and Jessica administered "did go over the line," but that it was "the first time that ever happened." Dr. Kim Oxley, the child's pediatrician, stated that on December 11, 2013, she examined the child. She described the child's injuries as follows:
"[The child] had extensive bruising across the upper back from one shoulder blade to the other. From the top of the shoulder blade or to the mid back. Um he had bruising across the, the lower rib cage, uh the right on the right side, on the right hip and the upper thigh and then uh more so across the buttocks. Um the bruising was uh fairly covered the buttocks, there was not any skin that wasn't bruised on the entire buttocks. Um on the upper back, there was some minute areas of uh normal colored skin but most of it was uh reddish to blueish to purple and there were some welts across the upper back and there were some welts and loop marks on the lower rib cage."Dr. Oxley testified that the amount of force that caused the child's bruising created a substantial risk of serious physical harm. She explained that due to the amount and location of the bruises, she ordered chest and rib x-rays in order to ensure the child did not have any broken bones. She additionally ordered a urinalysis to check for kidney damage. Dr. Oxley stated that these are the risks that the force used upon the child created. She further explained that the degree of the child's injuries indicated that "a substantial force" was used to inflict the injuries.
{¶ 15} After the state rested, the appellants moved for a judgment of acquittal. The trial court overruled the motion. The court then spoke with counsel "for scheduling purposes." Appellants' counsel stated that they had one witness ready to testify that day (Friday) but the remaining witnesses were not scheduled to testify until Monday. Appellant's counsel indicated that he had six character witnesses to present on Monday. The court stated that it had intended to complete the trial that day and not on Monday. The court stated that the case "was scheduled for a two day trial on Thursday and Friday and noone [sic] ever indicated that there was a need to spill in to Monday so uh your character witnesses need to be here this afternoon cause it was my uh intention to get this to [the jury] this afternoon." Appellants' counsel explained that he had not anticipated the state completing its case as early as it had and thus had not requested his witnesses to be available to testify until Monday. The court reiterated that it had scheduled the case for a two day trial and stated:
"[W]hy * * * anybody subpoenaed witnesses for Monday is beyond me but we're going to make every effort to be done today so if you want people here as character witnesses they better be coming after work so. * * * I know everybody that you listed on your * * * disclosure and they're all within a stones throw of here so surly [sic] to goodness you could get a few of those folks rounded up."
{¶ 16} Later, appellants' counsel informed the court that the hotel where counsel stayed the previous night had a bed bug infestation that required counsel to sleep in their vehicles. Counsel stated that they were unprepared to provide a closing argument that day. The court again stated that it intended to conclude the trial that day.
{¶ 17} Both appellants testified and admitted that they administered corporal punishment, however neither believed that they had hit the child hard enough to cause the bruises that the school nurse and others observed. Appellants also presented several character witnesses.
{¶ 18} After appellants finished presenting their defense, appellants' counsel again requested the court to continue the matter until Monday. Appellants' counsel stated that he had not been able to prepare a closing argument due to the bed bug infestation. The court denied appellant's request to continue and stated that closing argument "is something I would expect everyone to be preparing for the moment they walked in the Courtroom."
{¶ 19} On July 21, 2014, the jury found appellants (1) guilty of assault in violation of R.C. 2903.13, (2) not guilty of felonious assault, and (3) guilty of endangering children in violation of R.C. 2919.22(B)(3).
{¶ 20} On August 18, 2014, the trial court sentenced appellants to serve thirty months in prison. These appeals followed.
The trial court appears to have merged the assault and child endangering convictions for purposes of sentencing. We note, however, that this is not clearly indicated in the court's sentencing entry. Moreover, at the sentencing hearing the court stated that it sentenced appellants to thirty months for child endangering and to six months in jail for assault, and ordered the sentences to run concurrently. At a July 2, 2014 pretrial hearing, however, the court and the state indicated that child endangering and felonious assault (as originally charged) counts would merge for sentencing purposes. Thus, from a review of the entire record, we believe that the trial court's sentencing entry merges the assault and child endangering convictions, even though the court did not expressly so indicate and even though it stated at the sentencing hearing that it imposed a six-month jail term for the assault offense. See State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶47 (stating that the court speaks through its journal entries). To avoid final, appealable order issues that may otherwise arise, we caution trial courts to explicitly indicate in its sentencing entry whether offenses merge for sentencing purposes.
I
{¶ 21} In their first assignment of error, appellants assert that the trial court erred by denying their motions to suppress the statements they made to Detective Newman. Appellants argue that they did not knowingly, voluntarily, and intelligently waive their rights. Appellants contend that they "were questioned in a way that was designed to circumvent Miranda" and that Detective Newman used a "question-first" technique that renders their pre- and post-warning statements inadmissible.
{¶ 22} Appellants further complain that the trial court abused its discretion by failing to give adequate consideration to their motions. Appellants note that the court issued its ruling from the bench at the end of the hearing and did not issue any factual findings or legal conclusions.
A
STANDARD OF REVIEW
{¶ 23} Appellate review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶7; State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶40; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8; State v. Moore, 2013-Ohio-5506, 5 N.E.3d 41 (4th Dist.), ¶7. The Burnside court explained this standard as follows:
"When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard."Id. (citations omitted).
B
MIRANDA WAIVER
{¶ 24} The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." In order to safeguard a suspect's Fifth Amendment privilege against self-incrimination, law enforcement officers seeking to perform a custodial interrogation must warn the suspect "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda, 384 U.S. at 479. In the absence of these warnings, a suspect's incriminatory statements made during a custodial interrogation are inadmissible at trial. Michigan v. Mosley, 423 U.S. 96, 99-100, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (footnote and citation omitted) ("[U]nless law enforcement officers give certain specified warnings before questioning a person in custody, and follow certain specified procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary."); Miranda, 384 U.S. at 479 (stating that no evidence stemming from result of custodial interrogation may be used against defendant unless procedural safeguards employed); State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶113 (stating that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."). A suspect's incriminatory statements ordinarily are admissible, however, if law enforcement officers gave the suspect the Miranda warnings and if the suspect implicitly or explicitly waived the Fifth Amendment right against self-incrimination. Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (explaining that officers need not obtain an express waiver of Miranda rights before interrogating a suspect). If a defendant later challenges incriminating statements as involuntary, "the state must prove a knowing, intelligent, and voluntary waiver by a preponderance of evidence." State v. Wesson, 137 Ohio St.3d 309, 316, 2013-Ohio-4575, 999 N.E.2d 557, ¶34.
{¶ 25} A court that is considering whether a defendant validly waived Miranda rights must "'consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.'" Wesson at ¶35, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus. "[A] waiver is not involuntary unless there is evidence of police coercion, such as physical abuse, threats, or deprivation of food, medical treatment, or sleep." Id., citing State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895 (1989).
{¶ 26} In the case at bar, appellants claim that they did not effectively waive their Miranda rights. However, assuming, arguendo, that appellants were subjected to custodial interrogations and thus entitled to Miranda's protections, the record shows that each appellant received all of the Miranda warnings and that both knowingly, intelligently, and voluntarily waived his or her rights under Miranda. Our review of the record shows that Detective Newman thoroughly reviewed the Miranda rights form with each appellant and ensured that they understood their rights. He then asked each appellant whether they were willing to answer questions, and each appellant agreed to do so. Additionally, each appellant signed the "waiver of rights" section of the Miranda warnings form. Between Detective Newman's explanations and the Miranda warnings form, we fail to see how appellants could have had any confusion about their rights. Nothing in the record shows that either appellant lacks sufficient intelligence to have understood the Miranda warnings and the consequences of waiving their rights. Furthermore, nothing in the record shows that appellants' statements were the result of police overreaching by any means. Detective Newman did not subject either appellant to physical abuse, threats, or deprivation of food, medical treatment, or sleep. We fail to see how appellants' waivers were anything other than knowing, intelligent, and voluntary. While appellants may now regret making incriminating statements to Detective Newman, they have not pointed to any evidence to indicate that they failed to understand their rights or that any law enforcement tactics rendered their statements unknowing, unintelligent, or involuntary.
We note that Miranda does not protect every person who is subjected to police questioning; the rule protects only individuals subjected to "custodial interrogation." Miranda defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444; see also Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528, 128 L.Ed.2d 293 (1994); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (stating that the Miranda protection attaches "only where there has been such a restriction on a person's freedom as to render him in 'custody'"). --------
{¶ 27} Appellants nevertheless argue that their waivers are not valid because Detective Newman employed an improper "question-first" technique. Appellants cite Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), to support this argument. In Seibert, the court held that a "midstream recitation of [Miranda] warnings after interrogation and unwarned confession" does not "comply with Miranda's constitutional requirement." Id. at 604. In Seibert, an officer intentionally questioned a defendant without providing Miranda warnings. During this questioning, the defendant made an incriminating statement. The officer then gave the defendant a 20-minute break. After the break, the same officer gave the defendant Miranda warnings, obtained a signed waiver, and resumed questioning. During this second round of questioning, the officer confronted the defendant with the prewarning statements. The defendant repeated her incriminating statements. The court referred to the officer's "midstream" warning as a specifically designed police strategy of "question-first." Id. at 609-611. The court determined that "[t]he object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." Id. at 611. The court thus held that the defendant's postwarning statements were inadmissible. Id. at 617.
{¶ 28} We find Seibert inapplicable to the facts in the case sub judice. Appellants argue that Detective Newman engaged in some type of questioning before he advised them of their Miranda rights. Appellants do not, however, cite any portion of the record to demonstrate that Detective Newman asked either appellant a substantive question before he provided the Miranda warnings. Appellants also do not identify what alleged "prewarning" statements they made. Moreover, nothing in the record shows that Detective Newman asked either appellant any questions regarding the child's injuries until after he had administered the Miranda warnings. The questions he asked before he administered the warnings were designed to obtain basic identifying information, such as name, date of birth, social security number, etc. Thus, appellant's reliance on Seibert is misplaced in light of the facts in the case at bar.
{¶ 29} We additionally reject appellants' argument that the trial court abused its discretion by failing to issue factual findings and legal conclusions when denying appellants' motions to suppress. Crim.R. 12(F) states: "Where factual issues are involved in determining a motion, the court shall state its essential findings on the record." "[I]n order to invoke the rule, the defendant must request that the court state its essential findings of fact in support of its denial of a motion." State v. Benner, 40 Ohio St.3d 301, 317, 533 N.E.2d 701, 718 (1988); State v. Eley, 77 Ohio St.3d 174, 179, 1996?Ohio?323, 672 N.E.2d 640, 647 (1996). A defendant's failure to invoke the rule waives any error. Eley, 77 Ohio St.3d at 179.
{¶ 30} Additionally, even though the rule's language indicates that findings of fact are mandatory when the resolution of factual issues is necessary to determine the motion to suppress, such findings are not necessary when the record is sufficient for the reviewing court to independently determine whether the motion should have been granted. State v. Waddy, 63 Ohio St.3d 424, 443, 588 N.E.2d 819 (1992); accord State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶96.
{¶ 31} Therefore, in the case at bar because appellants did not request the trial court to issue Crim.R. 12(F) factual findings, appellants waived the issue. Additionally, the record is more than adequate to allow full review of the suppression issues and the lack of factual findings does not require us to reverse the court's judgment.
{¶ 32} Accordingly, based upon the foregoing reasons, we hereby overrule appellants' first assignment of error.
II
{¶ 33} Appellants' second and third assignments of error raise the related, but legally distinct, arguments that sufficient evidence does not support their convictions and that their convictions are against the manifest weight of the evidence. For ease of analysis, we have combined our review of the assignments of error.
{¶ 34} In their second assignment of error, appellants assert that their child endangering convictions are against the manifest weight of the evidence. Appellants claim that the evidence fails to show that they created a substantial risk of serious physical harm to the child. In their third assignment of error, appellants argue that their child endangering convictions are not supported by sufficient evidence because the state failed to prove beyond a reasonable doubt that they created a substantial risk of serious physical harm.
A
STANDARD OF REVIEW
{¶ 35} A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶ 36} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
{¶ 37} "Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence." Thompkins, 78 Ohio St.3d at 387.
"'Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief."'"Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶12, quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's Law Dictionary 1594 (6th ed.1990).
{¶ 38} When an appellate court considers a claim that a conviction is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the evidence, and consider the credibility of witnesses. The reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶31. "'Because the trier of fact sees and hears the witnesses and is particularly competent to decide "whether, and to what extent, to credit the testimony of particular witnesses," we must afford substantial deference to its determinations of credibility.'" Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶20, quoting State v. Konya, 2nd Dist. Montgomery No. 21434, 2006-Ohio-6312, ¶6, quoting State v. Lawson, 2nd Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley court explained:
"'[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * *Eastley at ¶21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978). Thus, an appellate court will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 2007-Ohio-6331, ¶6 ("We will not intercede as long as the trier of fact has some factual and rational basis for its determination of credibility and weight.").
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.'"
{¶ 39} Once the reviewing court finishes its examination, the court may reverse the judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in evidence, "'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court should find a conviction against the manifest weight of the evidence only in the "'exceptional case in which the evidence weighs heavily against the conviction.'" Id., quoting Martin, 20 Ohio App.3d at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
{¶ 40} When an appellate court concludes that the weight of the evidence supports a defendant's conviction, this conclusion necessarily includes a finding that sufficient evidence supports the conviction. State v. Pollitt, 4th Dist. Scioto No. 08CA3263, 2010-Ohio-2556, ¶15. "'Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.'" State v. Lombardi, 9th Dist. Summit No. 22435, 2005-Ohio-4942, ¶9, quoting State v. Roberts, 9th Dist. Lorain No. 96CA006462 (Sept. 17, 1997). In the case sub judice, therefore, we first consider appellants' argument that their convictions are against the manifest weight of the evidence.
B
ENDANGERING CHILDREN
{¶ 41} We recognize that "parents have the right of restraint over their children and the duty of correcting and punishing them for misbehavior." In re Schuerman, 74 Ohio App.3d 528, 531, 599 N.E.2d 728 (3rd Dist. 1991). "However, such punishment must be reasonable and not exceed the bounds of moderation and inflict cruel punishment." Id., citing State v. Liggett, 84 Ohio App. 225, 83 N.E.2d 663 (1st Dist. 1948). "[P]roper and reasonable parental discipline stops well short of corporal punishment which creates a substantial risk of serious physical harm to a child." State v. Hicks, 88 Ohio App.3d 515, 518, 624 N.E.2d 332 (10th Dist. 1993), citing State v. Suchomski, 58 Ohio St.3d 74, 567 N.E.2d 1304 (1991). Thus, R.C. 2919.22(B)(3) prohibits a parent from administering excessive corporal punishment that creates a substantial risk of serious physical harm. Id. R.C. 2919.22(B)(3) states:
(B) No person shall do any of the following to a child under eighteen years of age * * *:
* * *
(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
{¶ 42} In the case at bar, appellants do not dispute that they administered corporal punishment and do not dispute that it was excessive under the circumstances. Instead, appellants argue that the evidence does not show that their actions created a substantial risk of serious physical harm to the child.
{¶ 43} R.C. 2901.01(A)(5) defines "serious physical harm to persons" as follows:
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
{¶ 44} R.C. 2901.01(A)(8) defines a "substantial risk" as "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist."
{¶ 45} "Discipline methods on a child which leave recognizable bruising and cause pain which lasts beyond the time immediately following an altercation between parent and the child may establish a finding of substantial risk of serious harm." In re Kristen V., 6th Dist. Ottawa No. OT-07-031, 2008-Ohio-2994, ¶69. Bruising alone, however, is not sufficient to show that the discipline method created a substantial risk of serious physical harm. Schuerman, 74 Ohio App.3d at 532 (stating that "bruising alone is insufficient to establish abuse").
{¶ 46} In the case sub judice, after our review of the record we do not believe that the jury lost its way by determining that appellants' conduct created a substantial risk of serious physical harm to the child. The state introduced photographs of the child's bruises that show the child sustained a substantial amount of bruising. Detective Newman described the bruising as the worst he has seen in his twelve years of law enforcement. Dr. Oxley described the bruising as "extensive," and stated that the child's entire buttocks area was bruised. She also stated that the child had some welts across his upper back and "some welts and loop marks on the lower rib cage." Dr. Oxley testified that a substantial amount of force would have been required to cause the child's injuries. She additionally determined that the areas of the child's bruising created a substantial risk that he had suffered broken bones or kidney damage. She thus ordered additional testing to check for broken bones or kidney damage.
{¶ 47} We believe that the foregoing facts amply show that appellants' conduct created a strong possibility of serious physical harm to the child. The presence of welt marks, along with the extensive bruising across the child's back and buttocks, suggest that appellants hit the child with substantial force. Using substantial force to hit a six-year-old child with a belt almost certainly creates a substantial risk that the child would suffer prolonged or intractable pain. We cannot imagine that the child did not experience significant pain during the beating. Even if the child did not experience significant pain for days on end, the statute requires only that the conduct created a substantial risk of prolonged or intractable pain. R.C. 2919.22(B)(3) and 2901.05(A)(5)(e). Thus, we do not believe that the jury clearly lost its way by determining that appellants' conduct created such a risk. See State v. Krull, 154 Ohio App.3d 219, 2003-Ohio-4611 (12th Dist.), ¶¶20-23 (upholding child endangering conviction with serious physical harm specification when evidence showed child sustained "extensive bruising" with pain that would have lasted for seven to ten days); State v. Burdine-Justice, 125 Ohio App.3d 707, 709 N.E.2d 551 (12th Dist. 1998) (upholding child endangering conviction when evidence showed child sustained "profuse bruising across her buttocks extending into her back area"). Cf. Kristen V. at ¶76 (upholding trial court's abuse adjudication when evidence showed child sustained bruises after father hit her with a "rubber car part"); In re Horton, 10th Dist. Franklin No. 03AP-1181, 2004-Ohio-6249, ¶27 (concluding that whipping child with a belt created a substantial risk of serious physical harm when evidence showed child sustained "very deep" and "very red" bruises with pain that lasted from three to more than seven days); In re K.B., 9th Dist. Summit No. 21365, 2003-Ohio-3784, (upholding trial court's abuse adjudication when evidence showed the child sustained multiple bruises, including a hand-shaped bruise mark on her buttocks).
{¶ 48} Additionally, Dr. Oxley testified that the force used to cause the injuries created a substantial risk that the child sustained broken bones or even kidney damage. Certainly, broken bones would, at a minimum, constitute "physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain." R.C. 2901.01(A)(5)(e). Fortunately, however, the child did not suffer any broken bones or kidney damage. Yet, simply because appellants were fortunate enough that the child did not actually suffer these injuries does not mean that their conduct did not create a substantial risk that he could suffer these injuries. We thus believe that the jury appropriately considered the evidence, and its finding that appellants' conduct created a substantial risk of serious physical harm to the child is not against the manifest weight of the evidence.
{¶ 49} Appellants nevertheless assert that the facts in State v. Ivey, 98 Ohio App.3d 249, 648 N.E.2d 519 (8th Dist. 1994), demonstrate that the evidence fails to support the jury's verdict. In Ivey, the father whipped his ten-year-old son with a belt because the son failed to inform his father that he had received a detention at school. The child suffered a "bruised left eyelid, bruises, welts, and lacerations caused by a belt whipping on the buttocks and lower legs, and a swollen hand." Id. at 255-256. The court concluded that the evidence was insufficient to show that the father's conduct created a substantial risk of serious physical harm. The court explained that the "injuries did not result in hospitalization, substantial risk of death, permanent incapacity, disfigurement, or substantial pain or suffering * * *." The court noted that the child "was simply examined and released without medication or order to return for a checkup." Id. at 256. The court found that "[t]he impact of [the child's] whipping was disciplinary and transitory." Id. The court further explained:
"Although the punishment may have been excessive, the state produced no evidence that the bruises and welts caused by the strapping resulted in serious physical harm or created a substantial risk of serious physical harm. On the contrary, the evidence showed the boy went to school, without incident, the next day. There was no evidence he was in great pain or that he had trouble sitting or walking. The treating physician did not find it necessary to hospitalize the boy, order any type of painkiller (even aspirin), or to schedule another medical exam to check on his progress."Id. at 256.
{¶ 50} We find Ivey distinguishable. In Ivey, the state did not present any evidence that the father's conduct created a substantial risk of serious physical harm. In the instant case, however, Dr. Oxley testified that appellants' conduct created a substantial risk of serious physical harm and stated that those risks included broken bones and kidney damage. Additionally, in Ivey the child attended school the next day without incident, and no evidence existed that the child had any difficulty sitting or walking. In the case at bar, by contrast, the child did not attend school the next day. Although appellants offered an innocent explanation for the child's absence (they did not have a car seat available) the jury is free to disbelieve this explanation and instead infer that the child stayed home due to the injuries appellants inflicted. See, e.g., State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶37, citing State v. Browning, 4th Dist. Highland No. 09CA36, 2010-Ohio-5417, ¶41 (stating that trier of fact may believe "all, some, or none" of a witness's testimony). Two days after the incident, the child returned to school and his teacher apparently noted discomfort and sent the child to see the school nurse. Dr. Oxley's subsequent examination confirmed significant bruising, and she stated that the child's back was tender. Additionally, two days after the incident, the child informed the school nurse and Detective Newman that his back hurt. Thus, unlike Ivey when the child apparently had no outward signs of pain, in the case sub judice the child exhibited signs of pain two days after the incident. Furthermore, the Ivey treating physician did not find that the child's injuries necessitated any additional medical testing. In the instant case, however, Dr. Oxley determined that the child's injuries necessitated additional medical testing, including chest and rib x-rays and tests to check for kidney damage. Thus, we find Ivey inapposite.
{¶ 51} Additionally, we reject any assertion that the jury's verdict is unsustainable because the evidence fails to establish that the child actually suffered serious physical harm. R.C. 2919.22(B)(3) does not require the state to prove that the child actually suffered serious physical harm. Instead, the statute requires the state to prove that the conduct at issue created "a substantial risk of serious physical harm to the child." Thus, the state was not required to prove that appellants' conduct in fact caused the child to suffer serious physical harm, but only to show that appellants' conduct created a substantial risk of serious physical harm. Kristen V. at ¶69 (stating that "R.C. 2919.22(B)(3) requires only that the corporal punishment create a substantial risk, or strong possibility," of serious physical harm); State v. Sarver, 7th Dist. Columbiana No. 05-CO-53, 2007-Ohio-601, ¶49. Cf. State v. Harris, 8th Dist. Cuyahoga No. 78241 (June 7, 2001) (stating that "the jury's finding that [defendant] committed the offense of endangering children is not inconsistent with its further finding that [defendant] did not cause serious physical harm to [the child]"). Consequently, we disagree with appellants that their convictions are against the manifest weight of the evidence and that the state failed to sufficient evidence to support their convictions.
{¶ 52} Accordingly, based upon the foregoing reasons, we hereby overrule appellants' second and third assignments of error.
III
{¶ 53} In their fourth assignment of error, appellants assert that the trial court's thirty-month prison sentences are clearly and convincingly contrary to law.
{¶ 54} R.C. 2953.02(G)(2) defines our standard of review:
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 55} "[A] sentence is generally not contrary to law if the trial court considered the R.C. 2929.11 purposes and principles of sentencing as well as the R.C. 2929.12 seriousness and recidivism factors, properly applied post-release control, and imposed a sentence within the statutory range." State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶38 (4th Dist.). A sentence is contrary to law, on the other hand, if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. State v. Carrington, 8th Dist. Cuyahoga No. 100918, 2014-Ohio-4575, ¶22, citing State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶7.
{¶ 56} R.C. 2929.11 provides that a sentence imposed for a felony shall be reasonably calculated to achieve two "overriding purposes" of felony sentencing: (1) "to protect the public from future crime by the offender and others" and (2) "to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources." R.C. 2929.11(A), (B). R.C. 2929.11(A) states that "[t]o achieve these purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both." R.C. 2929.11(B) further requires that the sentence imposed be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim" and "consistent with sentences imposed for similar crimes committed by similar offenders."
{¶ 57} R.C. 2929.12 grants discretion to the trial court to determine the most effective way to comply with the purposes and principles set forth in R.C. 2929.11 when imposing a sentence. However, in exercising this discretion, the court must consider a non-exhaustive list of factors relating to the seriousness of the offender's conduct and the likelihood of recidivism and may, in addition, consider any other factors relevant to achieving these purposes and principles of sentencing.
{¶ 58} Although a trial court has a mandatory duty to consider the relevant statutory factors under R.C. 2929.11 and 2929.12, the trial court is not required to specifically analyze each factor on the record or to explain its reasoning before imposing a sentence. State v. Williams, 8th Dist. Cuyahoga No. 100042, 2014-Ohio-1618, ¶17 ("R.C. 2929.11 and 2929.12 do not require judicial fact-finding; rather, they direct trial courts to 'consider' the factors."); State v. Tate, 8th Dist. Cuyahoga No. 97804, 2014-Ohio-5269, ¶58 ("The sentencing court is not required * * * to engage in any factual findings under R.C. 2929.11 or 2929.12.). The sentencing court "need not make any specific findings in order to demonstrate its consideration of those factors, nor does it have to use the exact wording of the statute." State v. Sparks-Arnold, 2nd Dist. Clark No. 2014-CA-9, 2014-Ohio-4711, ¶8; accord State v. Lister, 4th Dist. Pickaway No. 13CA15, 2014-Ohio-1405, ¶15, quoting State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶49 ("'[T]here is still no "mandate" for the sentencing court to engage in any factual findings under R.C. 2929.11 or R.C. 2929.12.'").
{¶ 59} A trial court's statement in its sentencing journal entry that it considered the required statutory factors, without more, is sufficient to fulfill a trial court's obligations under R.C. 2929.11 and 2929.12. State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶9, citing State v. Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061, ¶61; see also State v. Saunders, 8th Dist. Cuyahoga No. 98379, 2013-Ohio-490, ¶4 ("[T]he sentencing entries in both cases state that 'the court considered all required factors of the law.' That statement, without more, is sufficient to fulfill the court's obligations under the sentencing statutes."). "[N]o further elaboration is required." State v. Glenn, 8th Dist. Cuyahoga No. 100726, 2014-Ohio-4084, ¶7, citing State v. Pickens, 8th Dist. Cuyahoga No. 89658, 2008-Ohio-1407, ¶6.
{¶ 60} In the case sub judice, the trial court stated that it considered R.C. 2929.11 and 2929.12. Nothing required the trial court to outline its specific findings regarding the factors delineated in each statute. The court did, however, set forth specific R.C. 2929.12 findings:
"[T]he Court finds the injury exacerbates the likelihood of physical or mental condition of the victim given the victim's age of 6 years old at the time of the offense. Further, the Court finds the victim suffered significant physical injuries and is likely to be affected psychologically from the events caused by the defendant. Further, when considering the less serious considerations found in [R.C.] 2929.12(C), the Court finds the victim did not induce of facilitate the events, given his young age nor did the offender act under strong provocation, nor should a reasonable person expect not to cause harm to a child with a leather belt. Further, the Court finds no substantial grounds to mitigate the offender's conduct."
{¶ 61} Moreover, a "'trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences." State v. Johnson, 2d Dist. Clark No.2013-CA-85, 2014-Ohio-2308, ¶8, citing State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶45 (2nd Dist.); accord State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶38 (stating that trial courts are "not required to make findings or give reasons for imposing more than the minimum sentence"). Thus, courts have "refused to find that a sentence is contrary to law when the sentence is in the permissible range and the court's journal entry states that it 'considered all required factors of the law' and 'finds that prison is consistent with the purposes of R.C. 2929.11.'" Williams at ¶17, quoting May at ¶16.
{¶ 62} In the instant case, appellants' thirty-month sentences fall within the permissible range for a third-degree felony. R.C. 2929.14(A)(3)(b) ("For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months."). Furthermore, the trial court's sentencing entry shows that it considered the appropriate statutory factors before imposing sentence. Accordingly, appellants' sentences are not contrary to law.
{¶ 63} Additionally, we believe that appellants' assertion that the record fails to support the trial court's sentence is meritless. R.C. 2953.02(G)(2)(a) permits an appellate court to take "authorized" action if it clearly and convincingly finds that (1) the sentence is contrary to law or (2) the record does not support the court's findings under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C. 2929.20(I), if any are relevant. None of these sections are relevant in the case at bar. See State v. Pettiford, 4th Dist. Ross No. 14CA3444, 2015-Ohio-1723, ¶¶10-16 (explaining that sections specified in R.C. 2953.02(G)(2)(a) apply to offenders convicted of fourth or fifth degree felonies, offenders convicted of first and second degree felonies who are sentenced to community control, repeat violent offenders, consecutive sentences, and judicial release). Consequently, appellants' argument that the record fails to support the trial court's sentence is not a specified reason that would permit us to take "authorized" action.
{¶ 64} Although appellants claim that the trial court deprived them of their due process rights by refusing to permit them to present mitigating testimony and evidence at the sentencing hearing, appellants do not cite any authority to support this argument. Furthermore, we observe that the court permitted appellants to speak on their own behalf. We therefore reject this argument.
{¶ 65} Accordingly, based upon the foregoing reasons, we hereby overrule appellants' fourth assignment of error.
V
{¶ 66} In their fifth assignment of error, appellants argue that trial counsel performed ineffectively by failing to be prepared to present their case-in-chief and to deliver closing argument.
{¶ 67} The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution provide that defendants in all criminal proceedings shall have the assistance of counsel for their defense. The United States Supreme Court has generally interpreted this provision to mean a criminal defendant is entitled to the "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Creech, 188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶39 (4th Dist.).
{¶ 68} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland, 466 U.S. at 687; State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶85. "In order to show deficient performance, the defendant must prove that counsel's performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶95 (citations omitted); accord State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶81. "Failure to establish either element is fatal to the claim." State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶14. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant's failure to satisfy one of the elements "negates a court's need to consider the other").
{¶ 69} When considering whether trial counsel's representation amounts to deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Thus, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. "A properly licensed attorney is presumed to execute his duties in an ethical and competent manner." State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).
{¶ 70} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel's errors, the result of the trial would have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶113; State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts may not simply assume the existence of prejudice, but must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002).
{¶ 71} In the case at bar, even if we assume for purposes of argument that trial counsel performed deficiently by failing to properly subpoena witnesses or by failing to timely prepare closing argument, appellants cannot show prejudice. Appellants presented testimony from the child's care provider and four character witnesses. Each appellant also testified. Appellants have not shown that testimony from additional witnesses would have changed the outcome of the proceedings or would have been anything other than cumulative testimony. Thus, appellants cannot show that trial counsel's alleged deficiency in failing to properly secure witnesses' attendance at trial prejudiced their defense.
{¶ 72} Appellants also cannot show that trial counsel's alleged deficiency in failing to be prepared for closing arguments prejudiced their defense. Trial counsel's closing argument spans thirteen pages of the trial transcript and adequately summarized appellants' defense theory. Even if the closing argument was not as cogently presented as trial counsel may have preferred, we cannot state that counsel's alleged deficiency affected the outcome of the trial court proceedings.
{¶ 73} Accordingly, based upon the foregoing reasons, we hereby overrule appellants' fifth assignment of error.
VI
{¶ 74} In their sixth assignment of error, appellants argue that the trial court abused its discretion by denying their motion to continue the trial in order to allow trial counsel time to secure the attendance of additional witnesses and time to prepare closing argument.
{¶ 75} "An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion." State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964) and State v. Bayless, 48 Ohio St.2d 73, 101, 357 N.E.2d 1035 (1976). "'[A]buse of discretion' [means] an 'unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action that no conscientious judge could honestly have taken.'" State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶23. "A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result." AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 76} "'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.'" Unger at 67, quoting Ungar, 376 U.S. at 589. "Weighed against any potential prejudice to a defendant are concerns such as a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice." Id. In evaluating a motion for a continuance, a court should consider (1) the length of the delay requested; (2) whether other continuances have been requested and received; (3) the inconvenience to litigants, witnesses, opposing counsel and the court; (4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; (5) whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and (6) other relevant factors, depending on the unique facts of each case. Id. at 67-68.
{¶ 77} In the case at bar, we find nothing unreasonable, arbitrary, or capricious about the trial court's decision to deny appellants' motion to continue. As the trial court noted, it had scheduled the trial for a two-day trial to be held on Thursday, July 17, and Friday, July 18, 2014. Before the May 27, 2014 motion to suppress hearing began, the court discussed the trial dates with both parties and asked, "What about the seventeenth and eighteenth of July?" Appellants' counsel stated that "those are good dates for our office." The court thus did not understand why appellants would have subpoenaed their defense witnesses for Monday. The court also determined that appellants should have been preparing for closing arguments since at least the start of the trial.
{¶ 78} Although appellants' counsel attempts to place blame upon the alleged bed bug infestation, counsel does not explain why the bed bug infestation prevented counsel from being prepared to try the case in the two days that the court had scheduled it, or why counsel could not have started preparing for closing arguments sooner. The trial court could have rationally determined that appellants' request for a brief continuance was unreasonable given that the court had scheduled the trial to conclude on Friday, not Monday, and when counsel had agreed to the dates. In short, we believe that the trial court appropriately exercised its discretion.
{¶ 79} Additionally, to the extent appellants could demonstrate that the trial court abused its discretion by denying their motion to continue, any error is harmless error that we must disregard. Crim.R. 52(A) provides: "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Thus, an appellate court may not correct an error unless the error affected the defendant's substantial rights, i.e., the error must have affected the outcome of the trial. State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N .E.2d 222, ¶7. In the case sub judice, nothing indicates that the result of the proceeding would have been any different if the trial court had continued the trial until Monday in order to allow appellants to present additional character witnesses and to allow trial counsel additional time to prepare closing argument.
{¶ 80} Accordingly, based upon the foregoing reasons, we hereby overrule appellants' sixth assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Lawrence County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & McFarland, A.J.: Concur in Judgment & Opinion
For the Court
BY:/s/_________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.