author: Myers, Judge. Mock, P.J., concurring in part and dissenting in part.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Anthony LOVE, Defendant-Appellant.
    NO. C-160651
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 13, 2017
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
    Arenstein & Gallagher, William R. Gallagher, Cincinnati, and Elizabeth Conklin, for Defendant-Appellant.
    OPINION.
   Myers, Judge.

{¶ 1} Defendant-appellant Anthony Love appeals his convictions for felonious assault. In five assignments of error, he argues that the trial court's failure to give the jury instructions required by law resulted in plain error; that the trial court erred in admitting irrelevant evidence and prejudicial testimony about his motorcycle-club affiliation; that his convictions were not supported by sufficient evidence; that his convictions were against the manifest weight of the evidence; and that the cumulative effect of defense counsel's errors violated his right to the effective assistance of counsel.

{¶ 2} Because the trial court failed to instruct the jury on how to apply any finding on Love's asserted affirmative defense of defense of others, we must reverse the trial court's judgment and remand the cause for a new trial.

Factual Background

{¶ 3} Love was involved in a street fight that took place in Mt. Adams, and was subsequently charged with six counts of felonious assault relating to three separate victims, Carlos Liranzo, Luke Thibodeaus, and Josea Hernandez. He was tried before a jury with his codefendant, Alexander Mazzaro. The following evidence was adduced at trial.

{¶ 4} On the evening of September 25, 2015, Liranzo, Thibodeaus, and Hernandez had been out together in Mt. Adams. After leaving a bar around 2:15 a.m. on September 26, the group walked down a street to find a cab. Love, Mazzaro, and a third man, Michael Sansone, approached them on the street from the opposite direction. As the groups passed each other, Mazzaro brushed shoulders with Thibodeaus, causing Thibodeaus to be turned around. From there, a conflict ensued.

{¶ 5} Sensing trouble, Liranzo told the entire group that everyone should relax. Mazzaro then punched Liranzo in the face. In response, Liranzo took Mazzaro to the ground and pinned him there. Liranzo and Mazzaro traded punches from that position. While straddling Mazzaro, Liranzo felt a blow to his back. In addition to that blow, he testified that someone tried to "fishhook" him while he had Mazzaro pinned down. He explained that an individual stuck a finger in his mouth, and that he bit down on the finger and took out a chunk of the person's skin. Liranzo remained on top of Mazzaro until police arrived to break up the fight and threatened to tase him if he did not stand up. Upon standing, he noticed blood running down his back and discovered that he had been stabbed.

{¶ 6} While Liranzo and Mazzaro were fighting, Thibodeaus saw Love approach Hernandez as Hernandez attempted to back away. He then saw Love take a few steps back, put his hand in his pocket, and lunge at Liranzo. He did not see what Love had taken out of his pocket. Thibodeaus attempted to push Love off Liranzo, and he felt what he described as "a punch there in my chest." He later realized that he had been stabbed in the chest. He was bleeding and could see a gap in his chest where muscle was protruding.

{¶ 7} Michael Sansone was called by the prosecution to testify and was declared a hostile witness. While testifying, Sansone admitted that he had told a detective that after the street fight had ended, Love had stated to him, "I stuck that guy because I thought he had you." Sansone testified that he had attempted to pull Liranzo off Mazzaro because Liranzo was out of control and it looked like Mazzaro was getting "his butt kicked." Sansone denied that he had deliberately put his finger in Liranzo's mouth to "fishhook" him, and explained that he had tried to grab Liranzo's head and Liranzo had bitten his finger.

{¶ 8} Cincinnati Police Lieutenant Andrew Heyob had been working an off-duty uniformed detail in Mt. Adams on the evening of September 25, and had responded to the street fight. When he arrived on the scene, Lieutenant Heyob saw Love standing over two individuals grappling on the ground. Love was striking the person on top with his fists and kicking at him.

{¶ 9} Liranzo and Thibodeaus were transported to the hospital. Liranzo suffered a stab wound to his back with complications. He remained hospitalized for three days and had to have a tube placed in his lung to drain fluids. Thibodeaus received 12 staples to treat his wound and has a scar.

{¶ 10} At the close of evidence, Love made a Crim.R. 29 motion for an acquittal. The trial court granted Love's motion on the two counts of felonious assault relating to Josea Hernandez. The remaining four counts were submitted to the jury. During closing arguments, Love's counsel argued to the jury that Love's actions were justified, as he had been acting in defense of Mazzaro.

{¶ 11} The jury found Love not guilty of felonious assault as to Liranzo in violation of R.C. 2903.11(A)(1). But it returned guilty verdicts on two counts of felonious assault, as to both Liranzo and Thibodeaus, in violation of R.C. 2903.11(A)(2), and on one count of felonious assault as to Thibodeaus in violation of R.C. 2903.11(A)(1).

{¶ 12} Love has appealed his convictions, raising five assignments of error for our review. We address these assignments out of order.

Sufficiency of the Evidence

{¶ 13} In his third assignment of error, Love argues that his convictions were not supported by sufficient evidence.

{¶ 14} When considering a challenge to the sufficiency of the evidence, we must view all evidence and reasonable inferences in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the elements of the offenses proven beyond a reasonable doubt. State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 15} Love was convicted of felonious assault under both R.C. 2903.11(A)(1) and (2). R.C. 2903.11(A)(1) provides that "[n]o person shall knowingly * * * [c]ause serious physical harm to another or another's unborn." And R.C. 2903.11(A)(2) provides that "[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another or another's unborn by means of a deadly weapon or dangerous ordnance."

{¶ 16} Viewed in the light most favorable to the prosecution, the evidence presented at trial established that Love had stabbed both Liranzo and Thibodeaus with a knife. Liranzo's injuries required three days of hospitalization and a tube placed in his lungs to drain fluids. Thibodeaus's injuries required staples and left him with a scar. A trier of fact could reasonably have found the elements of felonious assault proven beyond a reasonable doubt.

{¶ 17} We hold that Love's convictions were supported by sufficient evidence. The third assignment of error is overruled.

Jury Instructions

{¶ 18} In his first assignment of error, Love argues that the trial court committed plain error by failing to give the jury instructions that were required by law.

{¶ 19} Love raises several challenges to the jury instructions. We begin with his argument that the trial court failed to instruct the jury on how to apply its finding on his asserted affirmative defense of defense of others, as it is dispositive.

{¶ 20} Love failed to object to the jury instructions and consequently has forfeited all but plain error. State v. Hilliard , 1st Dist. Hamilton No. C-160263, 2017-Ohio-2952, 2017 WL 2265463, ¶ 10 ; Crim.R. 30(A). To establish plain error pursuant to Crim.R. 52(B), Love must show "(1) that an error occurred, (2) that the error was obvious, and (3) that the error affected the outcome of the trial." State v. Bandy , 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, 2017 WL 2829431, ¶ 70. "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. , quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 21} The trial court gave the jury an instruction on the affirmative defense of defense of others. In that instruction, the jury was informed that Love had the burden of proving the affirmative defense by a preponderance of the evidence. The trial court gave the following instruction to the jury describing the circumstances under which it should return a verdict of guilty or not guilty:

If you find that the State proved beyond a reasonable doubt all the essential elements of any one or more of the offenses charged in the separate counts in the indictment, your verdict must be guilty as to such offense or offenses according to your findings as to each defendant.
If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of any one or more of the offenses charged in the separate counts of the indictment, your verdict must be not guilty as to such offense or offenses according to the findings as to each defendant.

While the court clearly told the jury how to proceed if it found that the state had proved, or failed to prove, the essential elements of the offenses beyond a reasonable doubt, it omitted any instruction as to how the jury should proceed upon a finding that Love had proved, or failed to prove, the asserted affirmative defense by a preponderance of the evidence. See 2 Ohio Jury Instructions , CR Section 425.03 (Sept.2017). We hold that the trial court erred by omitting such an instruction, because the jury was not instructed how to proceed upon its finding on the affirmative defense.

{¶ 22} The Second District has likewise held that it was error for a trial court to provide an incomplete jury instruction that omitted direction on how a jury should apply its finding on an asserted affirmative defense. State v. Hmidan , 2d Dist. Montgomery No. 17161, 1999 WL 318366 (May 7, 1999). The court stated that the omission of such an instruction "left the jury uninformed as to how proof of the affirmative defense operates in relation to the verdict which that proof requires." Id. at *3.

{¶ 23} We further hold that Love has shown that the trial court's error was obvious. Bandy , 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, 2017 WL 2829431, at ¶ 70. "Trial courts must give all jury instructions that are relevant and necessary for the jury to properly weigh the evidence and perform its duty as the fact finder." Id. at ¶ 71. The trial court's failure to instruct the jury on how to apply its finding on Love's affirmative defense left the jury uninformed as to how to perform its duty. We hold that it also affected the outcome of the trial and resulted in a manifest miscarriage of justice. Id. at ¶ 70. The incomplete instruction prevented the jury from properly applying the law to reconcile any finding on the affirmative defense with its finding that the state had proved the elements of felonious assault beyond a reasonable doubt. See State v. Roberts , 109 Ohio App.3d 634, 639, 672 N.E.2d 1053 (6th Dist.1996).

{¶ 24} Because Love has established that the trial court committed plain error by failing to properly instruct the jury, we sustain his first assignment of error. Our resolution of this assignment of error renders his remaining assignments of error moot.

{¶ 25} The judgment of the trial court is reversed, and this cause is remanded for a new trial.

Judgment reversed and cause remanded.

Mock, P.J., concurs in part and dissents in part.

Zayas, J., concurs.

Mock, P.J., concurring in part and dissenting in part.

{¶ 26} While I agree with all other aspects of the majority opinion, I believe that the trial court's failure to give the complete jury instruction on the affirmative defense of defense of another did not rise to the level of plain error warranting reversal of Love's conviction. And it is from that portion of the majority opinion that I dissent.

{¶ 27} The majority correctly points out that this issue was not preserved for appellate review because Love failed to object to the trial court's jury instruction. Crim.R. 30(A). Accordingly, any error in those jury instructions has been waived unless it rises to the level of "plain error." State v. Underwood , 3 Ohio St.3d 12, 13, 444 N.E.2d 1332 (1983). Under Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The Ohio Supreme Court has outlined the implementation of this rule.

By its very terms, the rule places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule. Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. Third, the error must have affected "substantial rights." We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.
Even if a forfeited error satisfies these three prongs, however, Crim.R. 52(B) does not demand that an appellate court correct it. Crim.R. 52(B) states only that a reviewing court "may" notice plain forfeited errors; a court is not obliged to correct them. We have acknowledged the discretionary aspect of Crim.R. 52(B) by admonishing courts to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice."

(Citations omitted.) State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 28} I agree that the trial court erred when it failed to inform the jury that "if you find that the defendant proved by a preponderance of the evidence the defense of [defense of another], then you must find the defendant [not guilty]." 2 Ohio Jury Instructions , CR Section 425.03 (Sept.2017). I also agree that the error was an obvious defect in the proceeding. But this record does not support the conclusion that Love's substantial rights have been violated to the point that the outcome of the trial was affected.

{¶ 29} This court has held that the evidence presented at trial was sufficient to support Love's convictions, and I would further conclude that his convictions were not against the manifest weight of the evidence. Additionally, during his closing argument, Love's counsel centered his argument on the premise that the state had failed to prove its case beyond a reasonable doubt. Only as an afterthought did counsel raise the affirmative defense. Further, while the jury was presented with the definition of defense of another and Love's burden of proof on that affirmative defense, it asked no questions about its implementation. This indication that the jury did not reach the issue-along with the paucity of the evidence to support it and the lack of emphasis by counsel-solidifies, in my mind, that this case does not represent such exceptional circumstances that a reversal is required to prevent a manifest miscarriage of justice.

{¶ 30} I agree that the failure to properly instruct the jury was error, but the error was harmless and does not warrant reversal of Love's conviction.


source: Caselaw Access Project

author: Cunningham, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jarrard HARPER, Defandant-Appellant.
    NOS. C-170084 C-170086 C-170087
    Court of Appeals of Ohio, First District, Hamilton County.
    December 13, 2017
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Brian T. Goldberg, Cincinnati, for Defendant-Appellant.
   Cunningham, Judge.

{¶ 1} In these consolidated appeals, defendant-appellant Jarrard Harper appeals the sentences entered in three separate cases, but imposed at one sentencing hearing. The trial court imposed three two-year prison terms resulting from two separate high-speed chases where Harper had fled from police and imposed a single two-year prison term for the related violation of a community-control sanction. The trial court ordered the prison terms to be served consecutively. Because the trial court entered a prison term outside the statutory range available for Harper's violation of the prior community-control sanction, the two-year sentence imposed for attempted tampering with evidence in the case numbered B-1505049 must be vacated. But because the trial court was required, by operation of law, to impose the prison terms for Harper's failure-to-comply offenses consecutively to the other prison terms imposed, it was not required to make consecutive-sentencing findings before doing so.

{¶ 2} Harper's sentences resulted from three separate incidents. First, in early 2016, Harper entered pleas of guilty to trafficking in heroin, punishable as a third-degree felony, and attempted tampering with evidence, punishable as a fourth-degree felony, in the case numbered B-1505049. The trial court accepted his pleas, found him guilty of the charges, and imposed three-year terms of community control as the sentence for each offense.

{¶ 3} Two weeks later, in the second incident, Harper took a vehicle from a Ford dealer's car lot. Police pursued Harper in the stolen vehicle at speeds in excess of 110 miles per hour. Harper ultimately abandoned the vehicle and successfully fled on foot.

{¶ 4} In the third incident, in August 2016, Cincinnati police officers executing a search warrant in a heroin-trafficking investigation spotted Harper arriving at the scene of the search in a friend's vehicle. The officers attempted to take Harper into custody. Harper forcefully dragged the driver from her vehicle, commandeered the vehicle, and again fled from the police at high speed. He was ultimately apprehended.

{¶ 5} As a result of the two high-speed chases, the Hamilton County Grand Jury returned two new multicount indictments against Harper. For his actions in the first chase from the car dealership, Harper was charged in count two of the case numbered B-1600603 with failure to comply with an order or signal of a police officer while fleeing from the officer in violation of R.C. 2921.331(B), a felony of the third degree. The indictment further provided that Harper's operation of the vehicle had caused a substantial risk of serious physical harm to persons or property.

{¶ 6} For his second flight from police, Harper was charged in count four of the case numbered B-1604506 with having a weapon under a disability, and in count five with failure to comply with an order or signal of a police officer while fleeing from the officer, in violation of R.C. 2921.331(B). This count also alleged that, in committing the offense, Harper's operation of the vehicle had caused a substantial risk of serious physical harm to persons or property. Both offenses were punishable as third-degree felony offenses.

{¶ 7} On January 11, 2017, Harper entered pleas of guilty to the two then-pending cases, and the state dismissed four other felony charges raised in the two indictments. Harper also entered a no-contest plea to violating the community-control sanctions imposed in early January 2016.

{¶ 8} At a sentencing hearing, the trial court revoked the community-control sanctions and imposed a two-year prison term for each offense, including the fourth-degree-felony attempted-tampering offense. The court ordered the two terms to be served concurrently to each other, but consecutively to the sentences imposed for the new offenses. For the January high-speed chase, the trial court imposed a two-year prison term for violating R.C. 2921.331(B), and ordered this term to be served consecutively to each prison term imposed in the other two cases. For the August incident, the trial court imposed two-year prison terms for having a weapon under a disability and for violating R.C. 2921.331(B). These terms were to be served consecutively to each other and consecutively to the other prison terms imposed against Harper. The aggregate prison term was eight years.

{¶ 9} At the hearing, the trial court detailed Harper's criminal history, including his heroin trafficking and flights from police, took note that he had committed these serious offenses while on community control, and concluded that Harper lacked remorse or an appreciation of the seriousness of his offenses. It did not refer to the findings necessary under R.C. 2929.14(C)(4) to impose consecutive sentences. It did, however, include those findings in its sentencing entries. Harper appealed from each of the three entries, claiming that the sentences imposed were contrary to law. See R.C. 2953.08(A)(4).

{¶ 10} In his first assignment of error, Harper challenges the two-year prison term imposed for Harper's violation of community control for the attempted-tampering-with-evidence offense. He argues that the trial court erred by imposing a sentence outside the statutory range for that offense. The attempted-tampering offense was punishable as a fourth-degree felony. See R.C. 2923.02(E). Thus, the maximum prison term that the trial court could have imposed was 18 months. See R.C. 2929.14(A)(4).

{¶ 11} As the state concedes, the trial court imposed a two-year prison term for that offense. Since the imposed sentence was outside the permissible statutory range, it was clearly and convincingly contrary to law. See R.C. 2953.08(G)(2)(b) ; see also State v. Andrew, 1st Dist. Hamilton No. C-110141, 2012-Ohio-1731, 2012 WL 1380372, ¶ 8-10. The first assignment of error is sustained.

{¶ 12} In his second assignment of error, Harper asserts that the trial court erred by imposing consecutive sentences without making the findings required by R.C. 2929.14(C)(4) at the sentencing hearing. See State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. R.C. 2929.14(C)(4) gives trial courts discretion to impose consecutive sentences under certain circumstances and requires them to engage in a three-step analysis and to make specific findings before exercising that discretion. See State v. Alexander , 1st Dist. Hamilton No. C-110828, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15. When a trial court imposes consecutive prison terms under R.C. 2929.14(C)(4) without making the required findings at the sentencing hearing, the court's sentence is contrary to law. See State v. Simmons , 2014-Ohio-3695, 19 N.E.3d 517, ¶ 119 (1st Dist.).

{¶ 13} The state does not dispute that the consecutive-sentences-finding provisions of R.C. 2929.14(C)(4) apply in this case. Rather, it argues that the trial court's comments at sentencing concerning Harper's actions and his lack of remorse were sufficient to justify the trial court's decision to impose consecutive sentences. The state also notes that each of the court's three sentencing entries contained the mandated findings.

{¶ 14} While Harper maintains that the trial court erred to his prejudice by failing to make the statutorily required findings, he notes that "some courts" have held that the consecutive-sentence findings are not necessary when a prison term is imposed for a failure-to-comply conviction. This court is one of them.

{¶ 15} Fourteen years ago, we held that when a trial court has properly imposed a prison term for certain felony violations under R.C. 2921.331(B), by operation of law the term is required to be served consecutively to any other prison terms. State v. Burgin , 1st Dist. Hamilton No. C-020755, 2003-Ohio-4963, 2003 WL 22149325, ¶ 10. Since the trial court in Burgin had no discretion in imposing other than consecutive sentences for certain violations of R.C. 2921.331(B), it was not required to make consecutive-sentencing findings then mandated by former R.C. 2929.14(E)(4). See id.

{¶ 16} The rationale of Burgin still controls. The consecutive-sentencing provisions of R.C. 2929.14(C)(4) are inapposite when the trial court is required to impose consecutive sentences by operation of law under R.C. 2921.331(B). See Burgin at ¶ 10 ; see also State v. Back , 2d Dist. Clark No. 2013-CA-62, 2014-Ohio-1656, 2014 WL 1515869, ¶ 10 ; State v. Foster , 8th Dist. Cuyahoga No. 98869, 2013-Ohio-2199, 2013 WL 2380961, ¶ 6 ; State v. June , 10th Dist. Franklin No. 12AP-901, 2013-Ohio-2775, 2013 WL 3356670, ¶ 7 ; State v. Wells , 11th Dist. Ashtabula No. 2013-A-0014, 2013-Ohio-5821, 2013 WL 6874329, ¶ 32. We note that the sentencing provisions of former R.C. 2929.14(E)(4) at issue in Burgin are identical to those now found in R.C. 2929.14(C)(4).

{¶ 17} As we noted in Burgin , R.C. 2921.331(B) proscribes operating a motor vehicle so as to willfully elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the motor vehicle to a stop. See Burgin at ¶ 10. Under section (C)(5)(a)(ii) of the statute, an offense is punishable as a third-degree felony if the operation of the motor vehicle by the offender "caused a substantial risk of serious physical harm to persons or property." If an offender has caused that substantial risk of physical harm "and the offender is sentenced to a prison term for that violation, the offender shall serve the prison term consecutively to any other prison term or mandatory prison term imposed upon the offender." (Emphasis added.) R.C. 2921.331(D).

{¶ 18} R.C. 2929.14(C)(3), not relied upon in Burgin , also requires a trial court to impose consecutive sentences for violations of R.C. 2921.331(B). It provides that "[i]f a prison term is imposed for * * * a felony violation of division (B) of section 2921.331 of the Revised Code, the offender shall serve that prison term consecutively to any other prison term or mandatory prison term previously or subsequently imposed on the offender." (Emphasis added.)

{¶ 19} Here, Harper entered pleas of guilty to two separate failure-to-comply offenses in violation of R.C. 2921.331(B). In entering those pleas, he also admitted that his operation of the vehicles had caused a substantial risk of serious physical harm to persons or property. The trial court accepted those pleas, found Harper guilty, and imposed prison terms for those offenses and for the weapons-under-a-disability offense and the community-control violation resulting from the attempted-tampering offense. Thus, Harper was charged with and pled guilty to a violation of R.C. 2921.331(B) and 2921.331(C)(5)(ii). Pursuant to R.C. 2921.331(D) and 2929.14(C)(3), the prison terms imposed for the failure-to-comply offenses were required, by operation of law, to be served consecutively to the other prison terms. This is precisely what the trial court did.

{¶ 20} Since the trial court had no discretion in imposing other than the challenged prison terms consecutively, it was not required to make consecutive-sentencing findings under R.C. 2929.14(C)(4). The court's alleged failure to make the findings at sentencing could not constitute prejudicial error. Thus, the second assignment of error is overruled.

{¶ 21} Because the trial court erred in imposing a sentence outside the statutory range available for the attempted-tampering-with-evidence offense alleged in count three of the case numbered B-1505049, challenged in the appeal numbered C-170084, we vacate that sentence and remand the matter to the sentencing court for resentencing on that count only. See R.C. 2953.08(G)(2). We affirm in all other respects the remainder of the trial court's judgment, along with the judgments entered in the cases numbered B-1604506 and B-1600603, challenged in the appeals numbered C-170087 and C-170086 respectively.

Judgment accordingly.

Mock, P.J., and Deters, J., concur.


text:
    STATE of Ohio, Plaintiff-Appellee, v. Jason M. THOMPSON, Defendant-Appellant.
    NO. 16 CO 0031
    Court of Appeals of Ohio, Seventh District, Columbiana County.
    Dated: December 13, 2017
    Atty. Timothy McNicol, Columbiana County Prosecutor's Office, 105 S. Market St., Lisbon, Ohio 44432, For Plaintiff-Appellee.
    Atty. Ronald D. Yarwood, Edward A. Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown, Ohio 44503, For Defendant-Appellant.
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Defendant-Appellant Jason Michael Thompson appeals from his child endangering convictions entered in the Columbiana County Common Pleas Court after a bench trial. As to the abuse counts, he contends the indictment was required to specify the affirmative act of abuse he allegedly committed and the evidence was insufficient to prove an affirmative act of abuse. As to the alternative counts involving violation of a duty, he raises sufficiency and weight of the evidence as to whether he had an "in loco parentis" relationship with the children. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 2} Appellant met Jaime Emery ("the mother") online in January 2015. At the time, the mother lived with her daughter and three sons at a relative's residence. She and her four children moved to the first floor of a rental unit in Wellsville. At first, Appellant lived in Pennsylvania and would visit the mother for days at a time. Eventually, he began living with the mother and visiting his teenage son in Pennsylvania. Appellant considered the mother to be his fiancée, and the children called Appellant "dad." (Tr. 30, 74, 101).

{¶ 3} Appellant obtained latches and key locks and convinced the maintenance person, who lived in the upstairs unit, to help him install the latches on the refrigerator and freezer. (Tr. 280-281). He told the maintenance man the children were getting into the refrigerator in the middle of the night and leaving the door open. (Tr. 281). The maintenance person testified this occurred at a time when there was still snow on the ground. (Tr. 280). He considered Appellant his neighbor and said Appellant lived at the rental unit with the mother and her children. (Tr. 286).

{¶ 4} At the beginning of 2015, a middle school teacher and the school superintendent noticed the ten-year-old child ("Child A") was often hungry. (Tr. 27, 40, 135). The school provided a free daily breakfast, lunch, and snack. Child A would eat his classmates' leftover breakfast items. (Tr. 27). Appellant attended a school meeting with the mother in March 2015, where they were informed of the school's concern about Child A's hunger. (Tr. 28-30). Appellant responded that Child A was a growing boy, and the mother did not comment. (Tr. 29-30, 56).

{¶ 5} At the end of the school year, Child A's teacher did not notice any issue with his appearance. An elementary school teacher noticed the eight-year-old child ("Child B") had "thinned out" but believed this was normal for a second-grader and was not concerned with his appearance as the school year ended. (Tr. 65-66). Around this time, the female child (who is not involved in the allegations at issue) was placed in foster care for an unrelated matter.

{¶ 6} The school held a back-to-school function on Wednesday, August 26, 2015, where free supplies were distributed. Appellant attended with the mother and her three sons. Child A had turned eleven over the summer. Child A and Child B were to start school on Monday, and the seven-year-old child (Child C") was to begin kindergarten on Tuesday. Child A and Child B were assigned to the same teachers as they had the prior year as they each had an individualized education plan ("IEP") calling for special education in the disability classroom.

{¶ 7} Child A's teacher approached the family at the prompting of her teacher's aide. She said Child A did not communicate with her in his normal manner but mumbled and stared ahead. (Tr. 35). The teacher was shocked by the appearance of the three boys, testifying: "My first thought was remembering documentaries I had saw of people who had survived concentration camps and just the appearance of them physically." (Tr. 34-35). She said their bones were very prominent and they had dark circles under their eyes. She described the two younger children as "skeletal-looking" as it appeared their skin was "clinging to their bones basically." (Tr. 35).

{¶ 8} When Child B's teacher approached the family, she focused on Child B as he was her student. She too referred to a "concentration camp" when describing the child's appearance. She said Child B's cheekbones were "standing out" and you could see his bones through his skin. His face looked long because it was "all sunken in." (Tr. 69). The tops of his arms were thin, and she could tell he suffered "extreme weight loss." (Tr. 69-70).

{¶ 9} A teacher's aide hugged Child B and testified his arms felt like "two little chicken bones." He appeared weak and did not act like himself. (Tr. 112). The teacher's aide asked if he had been sick as she believed he looked like he had received chemotherapy; she was crying as she left the family. (Tr. 93, 112).

{¶ 10} The two teachers and their two aides approached the elementary school principal. The decision was made to send the children to the school nurse when school started on Monday and to contact the police immediately as they were worried about the difference those five days could make.

{¶ 11} A police officer went to the house and conducted a welfare check. He noticed latches but no locks on the doors of the refrigerator and freezer which he described as fully stocked. (Tr. 194-195). The mother told the officer the two older children's Adderall prescription for attention-deficit/hyperactivity disorder ("ADHD") caused their appearance. (Tr. 194). The police contacted Columbiana County Children Services. The next day, the caseworker assigned to the daughter's case went to the residence, but no one was home. She texted the mother and instructed her not to lock the refrigerator. (Tr. 147).

{¶ 12} On the first day of school, August 31, 2015, Child B looked to be better hydrated as his cheeks did not appear so sunken. (Tr. 96). He was hungry that day and ate two breakfasts, lunch, and multiple snacks. (Tr. 120). The teacher's aide brought Child B to the nurse's office when the police lieutenant assigned to juvenile cases arrived. Child B said he had been eating only once a day at dinner. (Tr. 97, 208). He said he liked milk but was not allowed to drink it as the milk belonged to his parents. (Tr. 97).

{¶ 13} The lieutenant took photographs of Child B with his shirt pulled up and then went to the middle school to take photographs of Child A. (State's Exhibit 1-5). Child A's teacher noticed he was quiet and did not interact as usual. He still had dark circles under his eyes. (Tr. 38). The school superintendent testified Child A looked gaunt and the area below his cheeks appeared "sucked" in. (Tr. 130). Child A reported he received only one meal a day and sometimes, if he misbehaved, he received nothing to eat. (Tr. 209).

{¶ 14} Children Services obtained an emergency court order, and the children were removed from the house after school. Before being transported to the local hospital, the children were provided with fast food as they were hungry. (Tr. 150). They also ate a plethora of food at the hospital, so much that Child B vomited upon arrival at the foster home. (Tr. 150-151).

{¶ 15} The next day, September 1, 2015, the children were transported to the Children's Advocacy Center ("CAC") in Boardman for evaluation by a pediatric physician who specialized in child abuse. The children were interviewed for the physician by a licensed social worker as is standard procedure at the CAC. (Tr. 296).

{¶ 16} During the interview, Child A reported that after Appellant came into their lives, their food situation changed from three meals a day to "one meal a day and two meals sometimes." A meal would consist of a bun with one piece of lunchmeat or a bowl of spaghetti. If he asked for food during the day, he was told to wait for dinner; if he asked for more food at dinner, Appellant and his mother told him he had to wait for the next day. (Tr. 298). Before Appellant came into their lives, the children could ask for and receive additional food. (Tr. 298, 303). Child A reported there was additional food in the house but he did not get to eat it because Appellant says he eats "like a pig" and "says I got to starve." (Tr. 298). The children's meals were served on the floor in the living room. (Tr. 302). Child A said his mother and Appellant would eat wings and French fries but not share with the children. (Tr. 302-303). Child A disclosed he was locked in his room at night and there was a latch and key lock on the refrigerator. He said the children frequently got in trouble for getting into the food. (Tr. 301).

{¶ 17} At trial, Child A testified that when Appellant lived with them, he would eat one meal a day at supper and sometimes he would get lunch as well. (Tr. 240, 251). He said Appellant and his mother prepared the food together. (Tr. 254). A typical meal was "sauce and noodles" or a sandwich but never at the same time. (Tr. 240, 254). He testified Appellant put a lock on the children's bedroom door so they could not get to the refrigerator. (Tr. 241). He confirmed Appellant put locks on the refrigerator so the children could not get into it at night or during the day. (Tr. 240-241, 247-248). Child A told a story about Child C fitting through a vent to escape their bedroom into the adults' bedroom, scavenging for food from the kitchen (including from the garbage can), and then bringing some bread back to the room through the vent. (Tr. 242, 250).

{¶ 18} The physician from CAC testified the three children suffered from food deprivation. (Tr. 307, 311, 316). He described the following weight loss: Child A weighed 80 pounds on January 1, 2015 and less than 67 pounds on September 1, 2015; Child B weighed 53 pounds on April 2, 2015 and less than 45 pounds on September 1, 2015; and Child C lost 3.3 pounds during the same period. (We note the ending weights were taken a day after the children had been amply fed by the school, an agency worker, the hospital, and the foster parents.)

{¶ 19} The physician identified photographs taken at the CAC which showed some of the symptoms of food deprivation he identified. As for Child A, he had very prominent scapula, his spine was visible while standing straight up, and his buttocks were not as full as they would be in a child who is a healthy weight. (Tr. 305). Child C had prominent scapula, visible ribs, and hollowed buttocks, but he seemed to have suffered a lesser amount of food deprivation. (Tr. 309, 311).

{¶ 20} Child B was the most severe of the three children. (Tr. 314). The physician stated the child looked acutely ill, with a sallow and narrow face. (Tr. 315). Child B had prominent scapula, ribs showing through his skin, and vertebral processes so visible that they could be individually counted, which the doctor could not recall seeing in a healthy child. (Tr. 315, 317, 323). The hollowness of this child's buttocks was extremely noticeable in the photograph; the physician explained this was a very abnormal sign and a strong indicator of food deprivation. (Tr. 323).

{¶ 21} The physician instructed the foster parents to offer an array of healthy foods and allow the children to eat what they wanted from the array. (Tr. 307, 312). In the next two weeks, the children gained weight in the following approximate amounts: Child A gained 3.09 pounds; Child B gained 4.63 pounds; and Child C gained 3.3 pounds. (Tr. 308, 312, 316). This fast weight gain by previously underfed children is known as the "catch-up growth" phenomenon. (Tr. 312). The photographs taken at the September 15, 2015 visit to CAC show the children looking better with a less prominent display of bones. The hollows in the buttocks of Child A were resolved. (Tr. 309). The buttocks of Child B "still show depression, still show evidence of caloric deprivation, but they're not sagging" as they were in the photograph from two weeks earlier. (Tr. 317).

{¶ 22} The physician acknowledged the children's ADHD medication could cause weight loss in the first year. He said the records suggested that any such medication-induced weight dip already occurred in the first year they took the medication and they had rebounded before the summer of food deprivation. (Tr. 318-319). He also noted he could not rule out malnutrition as the cause of their prior weight dip. (Tr. 337). He said the expected weight loss from the medication is not usually to the extent seen here and it would be very unusual to see a second weight dip from the medication. Additionally, if the medication was the cause and food deprivation was not the cause, the weight loss would have persisted in the new foster environment where the children had access to adequate food. (Tr. 319). There was testimony the children required counseling due to food hoarding behavior in foster care which was said to be a result of emotional insecurity about food availability induced by the food deprivation. (Tr. 184-185, 319-320).

{¶ 23} After the children's removal, the mother was arrested for child endangering. Photographs were taken showing the latches on the refrigerator (the locks had been removed) and the contents of the refrigerator, which included food and alcoholic beverages. Appellant went to the police station to be interviewed on September 3, 2015, and his statement was admitted at trial.

{¶ 24} Appellant reported he did not work and was trying to receive disability for his kidney disease. (Int.Tr. 7). He received $357 per month in food stamps from Pennsylvania; he had a teenage child who lived in Pennsylvania with Appellant's father and three other children with whom he did not communicate. (Int.Tr. 3, 21). The mother received $430 per month in food stamps until her daughter was removed in June 2015, at which point her amount was decreased to $360 per month. (Int.Tr. 21-22). Appellant said he used his food stamps to help the mother and there was always sufficient food in the house. (Int.Tr. 21-22). There was also testimony at trial the mother received $1,466 per month in SSI ("Supplemental Security Income") for the two older boys. (Tr. 170).

{¶ 25} Appellant stated he did not move in to the mother's house full-time but stayed at the house most of August and would occasionally drive to Pennsylvania to visit this family. (Int.Tr. 6-7). He acknowledged the children called him dad and they had not seen their biological father since the month he met their mother. (Int.Tr. 11, 24). When the children did not listen to their mother, he would talk to them and calm them down. (Int.Tr. 9). He imposed time-out when they misbehaved. (Int.Tr. 10). He and the mother both took the children to the park and to the lake to swim. When the children went outside, he helped watch them. The children were only allowed to play outside two or three times in August as Appellant believed it was too hot (which he attributed to medications he took). (Int.Tr. 12-13). Appellant went to medical appointments with the children. (Int.Tr. 41-41). When asked who was the primary caregiver or who was responsible for the care and control of the children (such as waking the children and getting them ready), his answer indicated they both fulfilled these roles. (Int.Tr. 15). They brought the children to school in the morning, picked them up in the afternoon, and helped them with their homework. (Int.Tr. 16-18).

{¶ 26} Appellant disclosed he normally cooked dinner for the family and the mother helped him serve the meals. (Int.Tr. 18-19). He claimed the children were allowed to have second helpings if they had leftover food, but sometimes they saved the leftovers for the next day. (Int.Tr. 19-20). Appellant admitted the children were not permitted to have an afternoon snack, contending it ruined their appetite for dinner. (Int.Tr. 23). If their behavior was bad, they would not get an after-dinner snack in the evening. (Int.Tr. 24, 30). Child C (whom the physician said suffered the least) was the child most likely to get a snack as he was the best behaved. (Int.Tr. 29). The children liked cereal, but if they did not awaken before 9:00 or 9:30 a.m. in the summer, Appellant would not allow them to eat breakfast, asserting it was too close to lunch time. (Int.Tr. 25-26).

{¶ 27} Appellant described the children's lunch as canned pasta rings, noodles with broth, leftovers, or a lunch meat and cheese sandwich. (Int.Tr. 26-27, 31). He said they were served water to drink as they asked for it but claimed they could have milk if they asked. (Int.Tr. 57-58, 63). Appellant reported he never denied the children lunch or supper. He admitted he would threaten food deprivation as punishment but said he never followed through on the threat. (Int.Tr. 49). Appellant noted he often ate only one meal a day (dinner) as he does not eat much. (Int.Tr. 27). He said, ever since he was a child, he would get sick if he ate breakfast. (Int.Tr. 49). He also revealed his childhood caregivers threatened to withhold food from him as punishment but still gave him food, which caused him to learn he would still get food even if he did not behave and which made his behavior worse. (Int.Tr. 59).

{¶ 28} Appellant claimed he had a hard time getting the mother to eat as she slept and rested often since her daughter was removed from the house. (Int.Tr. 28, 40, 48). He noticed Child B suddenly looked thin after being sick recently. (Int.Tr. 44-46). They brought the children to an all-you-can-eat buffet the weekend before school started (which was after the teacher's aide asked if they had been sick). (Int.Tr. 32-33). This was their only meal that day. (Int.Tr. 33).

{¶ 29} Appellant claimed he installed the latches on the refrigerator and freezer because the doors would not stay shut when they purchased too many groceries; he professed he did not use locks through the latches. (Int.Tr. 52). He complained the children "would get up in the middle of the night and just go out and do, get in to whatever they wanted to." He acknowledged the children had a lock on their bedroom door until "we was explained to why we couldn't do it and then we removed 'em and Children Services gave us alarms to put on the door." (Int.Tr. 55). (A caseworker testified alarms were provided years before when one of the children walked outside in the night as a toddler.)

{¶ 30} After Appellant's interview, a child endangering complaint was filed against him. He was thereafter indicted on six counts of child endangering; two types of child endangering were charged as to each of the three children. The first three counts charged child endangering under R.C. 2919.22(A), which prohibits a person who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under 18 years of age from recklessly creating a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. These offenses were third-degree felonies due to the allegations of serious physical harm. The next three counts charged child endangering under R.C. 2919.22(B)(1), which prohibits any person from recklessly abusing a child who is under 18 years of age. These offenses were second-degree felonies due to the allegations of serious physical harm.

{¶ 31} A bench trial was conducted October 11-12, 2016. The trial court found Appellant guilty as charged, explaining the verdict in an October 21, 2016 decision. The state elected to proceed on the three second-degree felonies at sentencing, and the three other counts were merged. The court's November 7, 2016 sentencing entry imposed five years for the count involving Child B, four years for the count involving Child A, and four years for the count involving Child C to run consecutively for a total of 13 years in prison. The within appeal followed.

ASSIGNMENT OF ERROR ONE: SUFFICIENCY OF INDICTMENT

{¶ 32} Appellant sets forth four assignments of error, the first of which alleges:

"The indictment for the charges pursuant to R.C. 2919.22(B)(1) was defective insomuch as it failed to allege an affirmative act in violation of Appellant's due process rights and rights pursuant to Section 10, Article I of the Ohio Constitution and 6th and 14th Amendments to the United States Constitution."

{¶ 33} This assignment of error deals only with the three second-degree felony counts of child endangering under R.C. 2919.22(B)(1), which provides: "No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: (1) Abuse the child; * * *." See also R.C. 2919.22(E)(2)(d) (if the violation of division (B)(1) results in serious physical harm to the child, the offense is a felony of the second degree).

{¶ 34} The indictment reads as follows as to each child: "On or about the summer months of 2015, in Columbiana County, Ohio, [Appellant] did recklessly abuse [child's initials], a child under 18 years of age, when such abuse resulted in [child's initials] suffering serious physical harm; in violation of Section 2919.22(B)(1) of the Ohio Revised Code, being a felony of the second degree."

{¶ 35} Appellant contends the indictment is deficient for failing to specify the conduct resulting in the abuse allegations. He urges the act upon which the abuse element was based was an essential element of a child endangering offense charged under R.C. 2919.22(B)(1). He posits he did not waive the issue by failing to object below because the deficiency constitutes a structural error which is per se prejudicial, citing State v. Colon , 118 Ohio St.3d 26, 885 N.E.2d 917, 2008-Ohio-1624 (" Colon I "). To show the alleged error permeated the criminal proceeding under Colon , Appellant suggests the defect in the indictment was not mitigated by the bill of particulars as it also failed to specify an affirmative act of abuse. The bill of particulars referred to the failure to provide sufficient and appropriate nutrition, which conduct Appellant claims (under the next assignment of error) is an omission and insufficient to prove abuse.

{¶ 36} We begin by reviewing why Appellant's citation to Colon is inappropriate. In Colon I , the Supreme Court held an indictment was defective where it failed to provide a mens rea, an essential element of the offense, even though the mens rea was not specified in the statute defining the offense. Id. at ¶ 19. The Colon I Court then found the defendant did not waive the defect in the indictment by failing to raise the issue at trial and the issue was a structural error which permeated the entire criminal proceeding and was per se prejudicial. Id. at ¶ 23, 32. In finding the error permeated the proceeding, the Court found: there was no evidence the defendant had notice the state was required to prove he had been reckless; the state did not argue the defendant's conduct was reckless; the jury instructions did not include the mens rea; and the prosecutor's closing argument treated the offense as one of strict liability. Id. at ¶ 30-31.

{¶ 37} On reconsideration, the Supreme Court limited Colon I to the "rare" facts and held: "In a defective-indictment case that does not result in multiple errors that are inextricably linked to the flawed indictment such as those that occurred in Colon I , structural-error analysis would not be appropriate." State v. Colon , 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶ 7-8 (typically "when a defendant fails to object to an indictment that is defective because the indictment did not include an essential element of the charged offense, a plain-error analysis is appropriate.").

{¶ 38} As in the case at bar, the "catchall culpable mental state" of recklessness applied. R.C. 2901.21(C)(1) provides: "When language defining an element of an offense that is related to knowledge or intent or to which mens rea could fairly be applied neither specifies culpability nor plainly indicates a purpose to impose strict liability, the element of the offense is established only if a person acts recklessly." See id. at ¶ 12 -14, citing former R.C. 2901.21(B). See also State v. Dawson , 2017-Ohio-2957, 91 N.E.3d 140, ¶ 25, citing State v. Adams , 62 Ohio St.2d 151, 404 N.E.2d 144 (1980), paragraph one of the syllabus. Unlike the Colon indictment, the indictment in the case before us did charge recklessness as the applicable mental state.

{¶ 39} Regardless, Colon I was overruled, and Colon II was overruled to the extent it held an indictment is defective when it omits the mental state even though it tracks the language of the statute. State v. Horner , 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45. The Horner Court held: "When an indictment fails to charge a mens rea element of the crime, but tracks the language of the criminal statute describing the offense, the indictment provides the defendant with adequate notice of the charges against him and is, therefore, not defective." Id. "[A]n indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state." (Emphasis added.) Id. at ¶ 54.

{¶ 40} Furthermore, the Horner Court held the failure to timely object to a defect in an indictment waives the error. Id. at ¶ 46, citing Crim.R. 12(C)(2). Pursuant to Crim.R. 12(C)(2), "Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding)[.]" Without a timely objection, the defendant is limited to a plain error review on appeal, as opposed to a structural error analysis. Horner , 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26 at ¶ 46. Upon such review, a bill of particulars can mitigate the effect of an omission in an indictment. See, e.g., State v. Jackson , 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 137-138 (2014) ("The state provided a detailed bill of particulars that set out the location of the offenses. Thus, no plain error exists as to any of these counts."). However, the reviewing court does not consider prejudice if the indictment was not defective in the first place.

{¶ 41} Article I, Section 10, of the Ohio Constitution guarantees that "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury." An indictment shall contain "a statement that the defendant has committed a public offense specified in the indictment." Crim.R. 7(B). "The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged." Id.

{¶ 42} "Generally, the requirements of an indictment may be met by reciting the language of the criminal statute." State v. Childs , 88 Ohio St.3d 194, 199, 724 N.E.2d 781 (2000), citing State v. Murphy , 65 Ohio St.3d 554, 583, 605 N.E.2d 884 (1992) (an indictment that otherwise tracks the statutory language is not defective for failing to identify the elements of a predicate offense; an indictment for aggravated murder is not defective for failing to name the elements of the predicate offenses of aggravated robbery and aggravated burglary). The Childs court then found an indictment charging conspiracy was insufficient where it alleged the defendant committed a substantial overt act but failed to explain what the act was. Childs , 88 Ohio St.3d at 197-199, 724 N.E.2d 781.

{¶ 43} However, Childs is limited to conspiracy cases and can be extended only to offenses involving equivalent statutory language. The conspiracy statute, R.C. 2923.01(B), specifically requires a substantial overt act in furtherance of the conspiracy to be "alleged and proved." Id. at 199, 724 N.E.2d 781. The Court found this plain language requires an indictment for conspiracy to contain more than a mere recitation of the exact wording of the statute defining the offense * * *." Id. at 199, 724 N.E.2d 781.

{¶ 44} In contrast to the conspiracy statute at issue in Childs , the child endangering statute does not require the specific act of abuse to be set forth in the indictment. Appellant contends the indictment failed to charge an actus reus; however, the statute defining the offense provides "abuse" is the actus reus element of this type of child endangering. Essentially, Appellant is arguing the indictment was required to specify how he abused the child. However, this is not the function of the indictment. The indictment tracked the language of the statute defining the offense, alleging Appellant abused a child under the age of 18. (In addition, the indictment provided the mens rea of recklessness; although, this is no longer an absolute requirement.) As the indictment contained the necessary elements and the statute defining the offense does not add a requirement that the state must allege the particular act of abuse, the indictment for child endangering under R.C. 2919.22(B)(1) was not defective. This assignment of error is overruled.

ASSIGNMENT OF ERROR TWO: SUFFICIENT EVIDENCE OF ABUSE

{¶ 45} Appellant's second assignment of error contends:

"The State failed to present sufficient evidence to support the convictions pursuant to R.C. 2919.22(B)(1) as it failed to prove an affirmative act thereby requiring reversal."

{¶ 46} Sufficiency of the evidence is a question of law dealing with the legal adequacy of the evidence. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A sufficiency review is distinct from an evaluation of the weight of the evidence which reviews the persuasiveness of the evidence. Id. at 386-387, 678 N.E.2d 541. A conviction cannot be reversed on grounds of sufficiency unless the reviewing court determines that no rational trier of fact could have found the elements of the offense proven beyond a reasonable doubt upon evaluating the evidence in the light most favorable to the prosecution. State v. Goff , 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998).

{¶ 47} Like the first assignment of error, this assignment of error deals only with the three second-degree felony counts of child endangering under R.C. 2919.22(B)(1). Again, this division provides: "No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: (1) Abuse the child; * * * *." R.C. 2919.22(B)(1). See also R.C. 2919.22(E)(2)(d) (the offense is a felony of the second degree if the violation of division (B)(1) results in serious physical harm to the child).

{¶ 48} Appellant challenges only the "abuse" element. He begins by asserting abuse requires an act as opposed to an omission, in other words an affirmative act. By way of comparison, he points to the merged child endangering counts filed under R.C. 2919.22(A), which involves a certain class of person (e.g., parent or person in loco parentis, as opposed to any person) creating a substantial risk to the health or safety of the child by violating a duty of care, protection, or support. Appellant points to the Supreme Court's comparison of the statute's divisions while the Court was addressing an issue raised under division (A):

It is not necessary to show an actual instance or pattern of physical abuse on the part of the accused in order to justify a conviction under R.C. 2919.22(A). Affirmative acts of torture, abuse, and excessive acts of corporal punishment or disciplinary measures are expressly covered under division (B) of the section. Division (A) is concerned with circumstances of neglect as is indicated by the Committee Comment to R.C. 2912.22.2 Manifestly, such neglect is characterized by acts of omission rather than acts of commission. See, e.g., State v. Sammons (1979), 58 Ohio St.2d 460, 391 N.E.2d 713. Accordingly, an inexcusable failure to act in discharge of one's duty to protect a child where such failure to act results in a substantial risk to the child's health or safety is an offense under R.C. 2919.22(A).

State v. Kamel , 12 Ohio St.3d 306, 308-09, 466 N.E.2d 860 (1984). The Supreme Court's footnote within the above block quotation provides in pertinent part: "The first part of the section defines the offense of neglect as the violation of a duty of care, protection, or support of a child which results in a substantial risk to his health or safety." Id. at fn. 2, citing Committee Comment to R.C. 2919.22(A).

{¶ 49} As to division (B), the legislative commentary explains how this division "deals with actual physical abuse of a child, whether through physical cruelty or through improper discipline or restraint, and regardless of by whom the offense is committed." See, e.g., State v. Mabrey , 8th Dist. No. 96048, 2011-Ohio-3849, 2011 WL 3425645, ¶ 11, citing Legislative Service Commission Comment to R.C. 2919.22(B). This Comment further states: "Examples of violations include: various actions resulting in the "battered child syndrome;" reducing a child to a state of frightened withdrawal to the point where he may become incapable of normal learning because of repeated punishment inflicted with little or no cause; and chaining a child to his bed or locking him in his room for prolonged periods so as to endanger his sanity or risk his arrested development ." (Emphasis added.) Legislative Service Commission Comment to R.C. 2919.22(B).

{¶ 50} The state cites Ohio Jury Instruction 591.22(5), which defines abuse as "any act that causes physical or mental injury that harms or threatens to harm the child's health or welfare." (Emphasis added). Courts regularly refer to the abuse element of child endangering under R.C. 2919.22(B)(1) as "an affirmative act of abuse." State v. Adkins , 4th Dist. No. 14CA3674, 2016-Ohio-7250, 2016 WL 5887354, ¶ 17 ; Mabrey , 8th Dist. No. 96048 at ¶ 8 ; State v. Carse , 10th Dist. No. 09AP-932, 2010-Ohio-4513, 2010 WL 3722763, ¶ 40 ; State v. Burdine-Justice , 125 Ohio App.3d 707, 713, 709 N.E.2d 551 (12th Dist.1998) ; State v. Bogan , 2d Dist. No. 11920, 1990 WL 80572 (June 14, 1990).

{¶ 51} Appellant notes how the prosecution, in Mabrey , argued an affirmative act of abuse was not required to show child endangering under R.C. 2919.22(B) but the Eighth District disagreed and concluded an affirmative act was required to show abuse. See id. at ¶ 9, 13. Nevertheless, the court found there was sufficient evidence showing an affirmative act of abuse was committed when the caretaker put the disabled five-year-old in cool water and failed to adequately supervise him while the child added cold water and suffered life-threatening hypothermia. Id. at ¶ 13-36. The appellate court found the defendant "acted recklessly in failing to adequately supervise [the child] while he played with the bathtub's water faucet handles" and it was "abusive to sit and watch a child freeze". Id. at ¶ 34. We note "[t]he State's trial theory was that Mabrey used a cold water bath abusively or to punish the child." Id. at ¶ 27.

{¶ 52} In the case at bar, it is not disputed there was evidence from which a reasonable person could conclude the children suffered severely from food deprivation which was attributable in part to Appellant and his rules and decisions. See Statement of the Case. Child A reported he had one meal a day and sometimes two meals per day. The meals prepared by Appellant were not substantial or adequate. The state construes Appellant's statement that he would not let the children eat breakfast if they woke up late as an admission that he punished the children by withholding breakfast. Appellant also admitted he withheld after-dinner snacks as a form of discipline. The children's bodies showed evidence that the meals provided were insufficient, which was confirmed by their weight gain after removal from the house.

{¶ 53} Appellant concludes the evidence of food deprivation (and the resulting serious physical harm) does not satisfy the abuse element of division (B)(1) and only constitutes an offense under division (A) of R.C. 2919.22 (if he occupied a required relationship to the children under assignments of error three and four). Appellant posits food deprivation can be an omission and neglect but is not an affirmative act of abuse.

{¶ 54} The state responds by pointing to Appellant's affirmative acts of "actively preventing" the children from eating. Besides the regular food deprivation and the serving of inadequate meals, which caused the children to show noticeable effects of food deprivation, Appellant actively engaged in preventative measures to enforce his vision of the children's meal plan. The children reported they would get in trouble if they got into the food. Appellant locked the children in their room, which Child B described as a method to prevent them from eating. This prompted the youngest to squeeze through a vent to escape the confinement and scavenge for food in the garbage, which he then brought back to his brothers. There were also alarms on the bedroom door. Furthermore, Appellant installed latches on the refrigerator and freezer. In order to further secure the refrigerator and freezer against the children's attempts to satisfy their hunger, he utilized locks which required keys to be opened.

{¶ 55} This court concludes Appellant's serving of inadequate meals and his failure to feed the children enough times a day in combination with the above active measures (some of which were based upon discipline) ensured the children's regular starvation. Viewed in the light most favorable to the prosecution, a rational fact-finder could find the element of abuse was satisfied. This assignment of error is overruled.

ASSIGNMENT OF ERROR THREE: SUFFICIENCY ON "IN LOCO PARENTIS"

{¶ 56} In addition to three counts of child endangering by abuse of a child in violation of R.C. 2919.22(B)(1), Appellant was found guilty of three counts of child endangering under R.C. 2919.22(A). The trial court merged these lesser-degreed felonies at sentencing. The next two assignments of error, raising sufficiency and weight of the evidence, relate to the charges under division (A). As to sufficiency of the evidence, Appellant's third assignment of error alleges:

"The state failed to present sufficient evidence that Appellant was in loco parentis relative to each of the three children for the charges pursuant to R.C. 2919.22(A) thereby defeating the guilty finding and requiring reversal."

{¶ 57} Pursuant to R.C. 2919.22(A) : "No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support." See also R.C. 2919.22(E)(2)(c) (if violation of division (A) results in serious physical harm to the child, the offense is a third-degree felony). Appellant contends the state failed to set forth sufficient evidence to show the relationship which would give rise to a duty under the statute. For the definition of "in loco parentis," Appellant cites the Supreme Court's Noggle case, which set forth the following definition of the phrase:

The term 'in loco parentis' means 'charged, factitiously, with a parent's rights, duties, and responsibilities.' Black's Law Dictionary (6 Ed. 1990) 787. A person in loco parentis has assumed the same duties as a guardian or custodian, only not through a legal proceeding. A 'person in loco parentis' was grouped with guardians and custodians in the statute because they all have similar responsibilities.

State v. Noggle , 67 Ohio St.3d 31, 33, 615 N.E.2d 1040 (1993).

{¶ 58} The Court concluded the "in loco parentis" phrase "applies to a person who has assumed the dominant parental role and is relied upon by the child for support." Noggle , 67 Ohio St.3d at 33, 615 N.E.2d 1040. "This statutory provision was not designed for teachers, coaches, scout leaders, or any other persons who might temporarily have some disciplinary control over a child. Simply put, the statute applies to the people the child goes home to." Id. (We note the legislature thereafter added a division applying to teachers and coaches where the other person is a minor.) Notably, the Noggle Court was applying the incest division of the sexual battery statute, which prohibited sexual conduct where "[t]he offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person." R.C. 2907.03(A)(3). Compare R.C. 2919.22(A) (the child endangering statute at issue herein, which has an additional offender option of a "person having custody or control").

{¶ 59} Appellant asks us to consider the following list of factors set forth by the Tenth District to assist in determining whether a person is acting "in loco parentis":

(1) the person is charged with a parent's rights and responsibilities; (2) the person has assumed the same duties as a guardian or custodian; (3) the person has assumed a dominant parental role; (4) the child relies upon the person for support; (5) the child "goes home" to the person; (6) the person's relationship with the child is close, supportive, and protective; (7) the person has the intention of acting as a parent, which is shown by the acts, conduct, and declaration of the person; (8) the person intentionally assumes the obligations incidental to the parental relationship; and (9) the person is the primary caretaker for the child while the biological parent is absent due to, for example, employment.

State v. Abubakar , 10th Dist. No. 11AP-440, 2011-Ohio-6299, 2011 WL 6152854, ¶ 13 (also a case involving sexual battery rather than child endangering). In setting forth the list of factors, the Tenth District explained that financial support is not solely determinative of a person's status as in loco parentis, stating "[a] close, supportive, and protective in loco parentis relationship need not include provision for the material needs of the child." Id. at ¶ 10, citing State v. Funk , 10th Dist. No. 05AP-230, 2006-Ohio-2068, 2006 WL 1102803, ¶ 70. See also State v. Reinhardt , 10th Dist. No. 04AP-116, 2004-Ohio-6443, 2004 WL 2757839, ¶ 34 ("support" of a child for purposes of in loco parentis status is not limited to financial contributions; a person who fills the role of primary caretaker supports a child).

{¶ 60} Appellant argues: he was not the dominant parental figure; he was not the primary caretaker; any caregiving acts were in concert with the mother; the mother was in the home during the events of the case; although he did not work, neither did the mother; there was no indication he was alone with the children; he had a separate residence out of state; he had no authority relative to their education; and he had no income to contribute to the children's financial support as he was unemployed.

{¶ 61} The state responds by urging Appellant's statement alone provides sufficient evidence on the "in loco parentis" element. Appellant disclosed: he used his food stamps to help the mother; he was engaged to the mother; the children had not seen their biological father since he met the mother; the children called him "dad"; he installed the latches on the refrigerator and freezer; and he said "we" used locks to lock the children's bedroom (until Children's Services explained why "we" must stop and gave "us" alarms instead). Appellant acknowledged he shared primary caregiver responsibilities with the mother. He helped watch the children outside and suggested it was his decision to keep them inside when it was too hot (as he referred to his own medical condition). In addition, he went to the children's medical appointments and even called the children's doctor seeking information on their medication after they were removed. Notably, he normally cooked dinner for the children.

{¶ 62} Furthermore, Appellant took the role of disciplining the children. He said he would talk to them and calm them down when they would not listen to the mother. He would impose time-outs. He was involved in the discontinuation of after-school snacks, the elimination of bed-time snacks as punishment, and the withholding of breakfast as discipline for waking up too late. He admitted to threatening the children and warning them he would withhold even more food due to their behavior. Appellant also suggested the mother had been participating in child care (and self-care) less since her daughter was removed in June 2015.

{¶ 63} In addition to Appellant's own statement, there was other evidence as to his role in the children's life. Although Appellant said he initially stayed with the mother and the children on occasion and began staying more continuously in August, there were indications he spent more time at the house than he suggested. For instance, he said they both helped the children get ready for school, transported them to and from school, and helped with homework. (This would not have been occurring over the summer, and the children were removed on the first day of the new school year.) The maintenance person, who lived in the unit above the children, considered Appellant his neighbor and believed Appellant lived there with the children (and left to visit his father and child on occasion). Appellant asked the maintenance person for help installing the latches and referred to locks he intended to use to keep the children out of the refrigerator and freezer.

{¶ 64} Child A reported how the food deprivation started when Appellant came into their lives, suggesting Appellant exercised control over the household. The testimony presented by Child A suggested Appellant ruled the children's lives, especially their food situation and their movements. Finally, Appellant attended educational meetings for the children with the mother at the school. At one meeting, he (rather than the mother) responded to the voiced concern over the children's hunger. He also attended the back-to-school function with the children.

{¶ 65} As aforementioned, a sufficiency review considers whether the evidence was adequate to support the disputed element as a matter of law, as opposed to a weight of the evidence review which considers the persuasiveness of the evidence. Thompkins , 78 Ohio St.3d at 386-387, 678 N.E.2d 541. We must evaluate the evidence in the light most favorable to the prosecution and ask whether there was some evidence from which a rational fact-finder could find the elements of the offense proven beyond a reasonable doubt. Goff , 82 Ohio St.3d at 138, 694 N.E.2d 916.

{¶ 66} There was evidence Appellant had more than "temporar[y] disciplinary control over" the children. See Noggle , 67 Ohio St.3d at 33, 615 N.E.2d 1040. He was one of "the people [each] child goes home to." See id. He lived with them, and they called him dad. Viewing the evidence and rational inferences most favorably to the prosecution, the trial court could rationally find Appellant should be "charged, factitiously, with a parent's rights, duties, and responsibilities" as he has "assumed the same duties as a guardian or custodian, only not through a legal proceeding" and he occupied a "dominant parental role." In addition, one can conclude he provided support to the children, in the form of food stamps; he also supported the children in the form of parental services such as cooking, household rule enforcement, and child care (even if the mother was present). See id. We can conclude there was sufficient evidence presented from which a rational person could conclude Appellant occupied the status of "in loco parentis" as to the three child-victims. Contrary to Appellant's argument, the evidence was sufficient as a matter of law to demonstrate he occupied the required role in the children's life. Accordingly, this assignment of error is overruled.

{¶ 67} Moreover, there is an optional relationship in the child endangering statute to satisfy this element: "person having custody or control." See R.C. 2919.22(A). We note the sexual battery statute at issue in Noggle did not contain this additional relationship option. The trial court's opinion on the relationship element focused on Appellant's "in loco parentis" status. Nevertheless, in finding Appellant was the dominant parental figure, the court stated Appellant asserted authority over the children even though the mother was present in the household.

{¶ 68} On the relationship element, the Legislative Service Commission Comment following R.C. 2919.22 states, "in addition to the natural parents of the child, the first part of the section also covers guardians and custodians, persons having temporary control of a child and persons standing in the place of the parents." State v. Banks , 8th Dist. No. 97299, 2012-Ohio-2304, 2012 WL 1884858, ¶ 22, quoting State v. Reed , 11th Dist. No. 89-L-14-130, 1991 WL 95227 (May 31, 1991). "[T]he phrase 'custody or control,' must mean something other than in loco parentis, or the phrase becomes superfluous." State v. Schoolcraft, 11th Dist. No. 91-P-2340, 1992 WL 276661 (May 29, 1992) (a babysitter's control alone was sufficient to satisfy the statutory relationship element, and there was evidence he continued to exercise control after mother returned home and they failed to seek medical treatment). Compare State v. Amerson , 8th Dist. No. 78235, 2001 WL 755902 (July 5, 2001) (a babysitter acted "in loco parentis").

{¶ 69} Viewing the evidence in the light most favorable to the state, a rational person could alternatively conclude there was sufficient evidence Appellant exercised control over the children, notwithstanding the mother's presence in the house, especially considering his statement as to the mother's physical and mental state for the two months prior to the children's removal. For this additional reason, this assignment of error is overruled.

ASSIGNMENT OF ERROR FOUR: WEIGHT OF EVIDENCE ON RELATIONSHIP

{¶ 70} Appellant fourth and final assignment of error asserts:

"Appellant's convictions for counts 1-3, pursuant to R.C. 2919.22(A), were against the manifest weight of the evidence as the State failed to produce convincing evidence that he had any duty to the children thereby defeating the guilty finding and requiring reversal."

{¶ 71} Even if a trial court's judgment is sustained by sufficient evidence, a defendant can argue the judgment is against the weight of the evidence. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. 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." Id. It is not a question of mathematics but depends on the effect of the evidence in inducing belief. Id. Weight of the evidence involves the state's burden of persuasion, whereas sufficiency involves the burden of production. Id. at 390, 678 N.E.2d 541 (Cook, J., concurring). The appellate court is to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541.

{¶ 72} This discretionary power of the appellate court is to be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. This is because "the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position to weigh the evidence and judge the witnesses' credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore generally proceed under the premise that when there are two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, we do not choose which one we believe is more credible. State v. Gore , 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

{¶ 73} Appellant incorporates his arguments from the prior assignment of error and concludes the decision to find him guilty of child endangering under division (A) of R.C. 2919.22 was against the manifest weight of the evidence because the evidence as to his parent-like relationship with the children was not weighty or persuasive. He contends the evidence pertinent to his role in the children's lives (giving rise to a duty) does not "induc[e] belief that he assumed the primary caregiver or dominant parental figure role."

{¶ 74} The state also incorporates the arguments set forth in responding to the prior assignment and concludes there was overwhelming evidence showing Appellant had assumed the role of "a person in place of a parent" at the time of the alleged acts.

The state urges the trial court did not clearly lose its way in finding Appellant guilty of child endangering under division (A) of R.C. 2919.22.

{¶ 75} We too incorporate our observations set forth in the prior assignment of error and our statement of the case set forth earlier. Upon reviewing all of the evidence and the inferences reasonably drawn from the evidence, there is no indication the trial court clearly lost its way and created such a manifest miscarriage of justice that Appellant's conviction must be reversed. The evidence as to Appellant's relationship with the children was worthy of inducing belief. The trial court heard the testimony at trial and the recorded statement provided by Appellant. The evidence carried weight and induced a belief in the trial court that Appellant occupied a parent-like role in the children's life and controlled them fully and on a daily basis, all clearly satisfying the relationships of "in loco parentis" (and "person having custody or control"). This is not the exceptional case in which the evidence weighs heavily against the conviction. In accordance, Appellant's final assignment of error is overruled.

{¶ 76} For all of the foregoing reasons, the trial court's judgment is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.

      Note Appellant does not argue an insufficient bill of particulars alone requires reversal. If a defendant seeks reversal of his conviction due to a lacking bill of particulars, he must show his defense was prejudice by a lack of knowledge of facts which should have been included in the bill of particulars. State v. Chinn , 85 Ohio St.3d 548, 569, 709 N.E.2d 1166 (1999). Also note a bill of particulars is not designed to provide the accused with specifications of evidence or to serve as a substitute for discovery. State v. Sellards , 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985).

      Notably, Appellant does not contend the indictment for the other type of child endangering charge, under R.C. 2919.22(A), was required to specify what duty of care he violated or how he violated it.


author: Myers, Judge. Miller, J., separately concurring.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Steven Allen CRAIG, Defendant-Appellant.
    NO. C-160816
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 13, 2017
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.
   Myers, Judge.

{¶ 1} In this opinion, we address an issue that was not addressed by the Supreme Court of Ohio in its recent decision in State v. Jackson , 151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1227, that is, whether, in a criminal action involving a multicount indictment, the trial court's failure to dispose of a count on which the jury fails to reach a verdict prevents the judgment of conviction on the other counts from being final and appealable. We answer the question in the affirmative.

{¶ 2} In this case, Steven Allen Craig was indicted on one count of rape and two counts of felonious assault. Craig pleaded not guilty to all counts, and the case proceeded to a jury trial. The jury returned guilty verdicts on the felonious-assault counts, but was unable to reach a verdict on the rape count. The trial court sentenced Craig on the felonious-assault counts and declared a mistrial on the rape count. The rape charge was not dismissed and remains pending. This appeal followed.

{¶ 3} Our jurisdiction is limited to the review of final orders and judgments. Ohio Constitution, Article IV, Section 3 (B)(2); R.C. 2505.03. In Jackson , the Supreme Court of Ohio held that a dismissal without prejudice of a count in a multicount indictment does not prevent the judgment of conviction on the remaining counts from being a final, appealable order. Jackson at ¶ 9. The court further held that "a judgment of conviction is a final, appealable order if it complies with Crim.R. 32(C) and State v. Lester , 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14, and that counts that are dismissed are resolved and do not prevent the judgment of conviction from being final and appealable." (Emphasis added.) Id.

{¶ 4} In Jackson , the defendant was convicted after a jury trial of some, but not all, of the counts in the indictment. The jury was unable to reach a verdict on two counts of kidnapping, but found the defendant guilty of grand theft and aggravated robbery. The trial court imposed sentence on the theft and robbery counts, and declared a mistrial on the kidnapping counts. On the state's motion, the court dismissed the kidnapping counts without prejudice. On appeal, the Eighth District held that the dismissal without prejudice rendered the judgment a nonfinal order, and sua sponte dismissed Jackson's appeal for lack of a final, appealable order. State v. Jackson , 8th Dist. Cuyahoga No. 103035, 2016-Ohio-704, 2016 WL 763114, ¶ 14.

{¶ 5} The Supreme Court reversed, holding that a dismissal without prejudice of a count in a multicount indictment does not prevent the judgment of conviction on the remaining counts from being a final, appealable order where the judgment complied with Crim.R. 32(C) and Lester at ¶ 14. Jackson , 151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1227, at ¶ 9, 16. The court noted that a valid judgment of conviction requires a full resolution of all counts for which there were convictions, but does not " 'require a reiteration of those counts and specifications for which there were no convictions, but were resolved in other ways, such as dismissals , nolled counts, or not guilty findings.' " (Emphasis sic.) Id. at ¶ 11, quoting State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas , 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2. The court held that counts that are dismissed are resolved and, therefore, do not prevent a judgment of conviction from being final and appealable. Id. at ¶ 9-10. And it concluded that "[t]he prosecution of the kidnapping counts terminated once the trial court dismissed those counts." Id. at ¶ 16.

{¶ 6} The court in Jackson noted that allowing a dismissal without prejudice to prevent an order in a criminal action from being a final, appealable order would effectively stay appellate review of convictions on charges for which the defendant had been found guilty and sentenced until the state either sought a new indictment or the statute of limitations for the dismissed counts expired. Id. at ¶ 15. As this court has explained, "A conditional dismissal in a criminal matter would allow a prosecutor to keep a defendant perpetually indicted, without any idea concerning, or control over, when the matter would be resolved." State ex rel. Flynt v. Dinkelacker , 156 Ohio App.3d 595, 2004-Ohio-1695, 807 N.E.2d 967, ¶ 15 (1st Dist.).

{¶ 7} Here, like Jackson , the trial court declared a mistrial on a count upon which the jury could not reach a verdict and sentenced the defendant on the counts upon which the jury returned guilty verdicts. Unlike Jackson, however, this charge remains pending. It has not been dismissed or otherwise resolved in any way. The granting of a mistrial "has long been held not to be a final appealable order 'for the basic reason that it is not a judgment or order in favor of either of the parties which gives finality to the case.' " State v. Nixon , 5th Dist. Richland No. 2016 CA 0008, 2017-Ohio-8, 2017 WL 35497, ¶ 16, quoting Mack v. Gulf Oil Co., Inc. , 10th Dist. Franklin No. 76AP-299, 1976 WL 190161 (Aug. 24, 1976), citing Kauffman v. Schauer , 121 Ohio St. 478, 169 N.E. 566 (1929). Here, the trial court's granting of a mistrial on the rape count did not resolve that count, and therefore, prevented the court's judgment from being a final, appealable order.

{¶ 8} A long line of cases from Ohio courts, including this one, have held that an order in a criminal case is not final where the trial court fails to dispose of all the charges that are brought against the defendant in an action. See State v. Pippin , 1st Dist. Hamilton No. C-150061, 2016-Ohio-312, 2016 WL 524355, ¶ 5, citing State ex rel. McIntyre v. Summit Cty. Court of Common Pleas , 144 Ohio St.3d 589, 2015-Ohio-5343, 45 N.E.3d 1003, ¶ 4, 9-10 (plurality opinion); State v. Pace , 1st Dist. Hamilton No. C-970546, 1998 WL 293850 (June 5, 1998) ; State v. Allman , 2d Dist. Montgomery No. 24693, 2012-Ohio-413, 2012 WL 368057 ; State v. Gillian , 4th Dist. Gallia No. 15CA3, 2016-Ohio-3232, 2016 WL 3058444 ; State v. Huntsman , 5th Dist. Stark No. 1999-CA-00282, 2000 WL 330013 (Mar. 13, 2000) ; State v. Ocasio , 8th Dist. Cuyahoga No. 103972, 2017-Ohio-88, 2017 WL 123361 ; State v. Heavilin , 9th Dist. Medina No. 15CA0034-M, 2016-Ohio-1284, 2016 WL 1192793 ; State v. Garner , 11th Dist. Trumbull No. 2002-T-0025, 2003-Ohio-5222, 2003 WL 22235385. Jackson did not alter this law, but rather explained that a dismissed charge resolves the matter, even if it is dismissed without prejudice.

{¶ 9} Recently, this court in State v. Pippin , dismissed an appeal for lack of jurisdiction. We stated, "Importantly, however, the trial court neglected to dispose of four other charges against Mr. Pippin. A long line of authority tells us that a trial court's entry is not a 'final order' where the court fails to dispose of all the charges in an action against a criminal defendant." Pippin at ¶ 1. We recognized that "[a] 'hanging charge' prevents the conviction from being a final order under R.C. 2505.02(B) because it does not determine the action, i.e., resolve the case." Id. at ¶ 6, quoting State v. Johnson , 4th Dist. Scioto No. 14CA3660, 2015-Ohio-3370, 2015 WL 4987992. Finally, we stated, "A number of courts, including this one, have held that a court fails to comply with its mandatory duty under Crim.R. 32(C) when it leaves a charge unresolved, and that because of this failure such a judgment is not a final order." Id. at ¶ 7.

{¶ 10} We find that Jackson does not alter this conclusion. We join other Ohio courts that have held that in a criminal case involving a multicount indictment, a trial court's order that fails to dispose of a count on which the jury failed to reach a verdict is not a final, appealable order. See State v. Purdin , 4th Dist. Adams No. 11CA909, 2012-Ohio-752, 2012 WL 605592 ; State v. Sherman , 5th Dist. Richland No. 2011-CA-0012, 2011-Ohio-5794, 2011 WL 5445172 ; State v. Bourdess , 8th Dist. Cuyahoga No. 70541, 1997 WL 284777 (May 29, 1997) ; State v. Sims , 8th Dist. Cuyahoga No. 85608, 2005-Ohio-5846, 2005 WL 2882937, fn. 1 ; State v. Clay , 11th Dist. Trumbull No. 2009-T-0126, 2010-Ohio-4558, 2010 WL 3733569 ; see also McIntyre at ¶ 4, 9-10. This result is entirely consistent with the Supreme Court's decision in Jackson and established Ohio law.

{¶ 11} Moreover, the concern expressed in Jackson that the state might allow a defendant to languish without appellate review of his conviction is not present where a count remains pending following the declaration of a mistrial upon the jury's inability to reach a verdict on the count. Constitutional speedy-trial standards of reasonableness apply to a retrial following a mistrial because of a hung jury. State v. Fanning , 1 Ohio St.3d 19, 20-21, 437 N.E.2d 583 (1982) ; see State v. Echols , 146 Ohio App.3d 81, 91, 765 N.E.2d 379 (1st Dist.2001). These standards balance the conduct of the state and that of the defendant by considering the length of delay, the reasons for the delay, whether the defendant has asserted her or his speedy-trial rights, and any resulting prejudice. Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ; Echols at 91, 765 N.E.2d 379. Therefore, the defendant's rights are protected, and he must be brought to trial within a reasonable time.

{¶ 12} In this case, the trial court's failure to dispose of the rape count upon which the jury failed to reach a verdict prevented the judgment of conviction on the other counts from being a final, appealable order. Without a final order, we lack jurisdiction. Therefore, we dismiss the appeal.

Appeal dismissed.

Mock, P.J., concurs.

Miller, J., concurs separately.

Miller, J., separately concurring.

{¶ 13} The majority opinion accurately cites and follows established precedent from Ohio appellate courts prohibiting a convicted criminal defendant from appealing while other charges remain pending. The rule sometimes results, as it does here, in the defendant being sent to prison, but not being permitted to appeal the convictions for which he is serving time. A particularly egregious example of such a scenario had a defendant serve over 14 years before the Supreme Court of Ohio ordered the trial court to resolve the "hanging charge." See State ex rel. McIntyre v. Summit Cty. Court of Common Pleas , 144 Ohio St.3d 589, 2015-Ohio-5343, 45 N.E.3d 1003. Because I believe Craig's due-process rights are implicated, this case requires further analysis.

{¶ 14} I have previously expressed concerns regarding systemic issues that can harm a defendant's right to meaningful appellate review. State v. McKenna , 1st Dist. Hamilton No. C-160683, 2017-Ohio-6986, 2017 WL 3207229, ¶ 12 (Miller, J., concurring) (opining that the "single document rule" may prejudicially hinder a defendant's right to appeal), citing Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) ; United States v. Gould, 672 F.3d 930, 936 (10th Cir.2012) ; Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994) ; Rheuark v. Shaw, 628 F.2d 297, 302-303 (5th Cir.1980). I am similarly concerned here.

{¶ 15} "[T]he Due Process Clause does provide some minimum guarantee of a prompt appeal to [criminal] defendants." United States v. Smith, 94 F.3d 204, 205 (6th Cir.1996). The relevant test has been borrowed from "the speedy trial analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)." Id. at 207. The four factors to balance are "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. With respect to appellate delay, the prejudice factor encompasses "three parallel interests: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person's grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired." (Citation and quotation omitted.) Id.

{¶ 16} The first factor, length of delay, is applied on a case-by-case basis. Id. at 209. There is a general agreement that a delay of more than one year is presumptively prejudicial to a defendant. United States v. Westcott , S.D.Ohio No. 3:06-po-097, 2014 WL 5513514 (Oct. 31, 2014) ; see State v. Echols , 146 Ohio App.3d 81, 91, 765 N.E.2d 379 (1st Dist.2001). In this case, the jury verdict was entered on September 9, 2016. Craig was sentenced and remanded to the Ohio Department of Rehabilitation and Correction on October 11, 2016. It has been over one year since these convictions, and Craig cannot appeal due to the "hanging charge." This length of delay weighs in favor of Craig and triggers further inquiry. Westcott at *2.

{¶ 17} The reason for the delay is the second factor. Here, every continuance for the retrial has been at Craig's request, and Craig has waived the computation of time. This factor weighs decisively against Craig. Craig has voluntarily delayed his retrial on the "hanging charge" while pursuing his appeal. Had he instead insisted on the retrial occurring timely, he likely would have been retried by now, and possibly would have a final order from which to appeal. His waiver applies to his due-process right to a prompt appeal. Accordingly, his due-process rights have not been violated. There is no occasion to visit the remaining factors.

{¶ 18} Having conducted the Smith analysis, I concur with the result.

{¶ 19} I, nevertheless, wish to express the unfortunateness of the result. Both the defendant and the state want this appeal to be heard. In the context of this case, judicial economy would be better served by affording an opportunity to appeal. As the law exists now, there could be two trials before there is an appeal, perhaps a remand for a new trial if there was error in the initial convictions, potentially followed by a third trial and second appeal. If this appeal was allowed to go forward, then any error that might have occurred below could be avoided at the second trial-not a third. The judicial economy of the current system further decreases if there are additional hung juries. Moreover, the appetite of the parties for a retrial on the "hanging charge" might be satiated by resolution of this appeal. If we were to affirm the current convictions, then maybe the parties would decide to resolve the hanging charge by agreement.

{¶ 20} The Commission on the Rules of Practice and Procedure should consider whether the Rules of Criminal Procedure should be amended to include a provision equivalent to Civ.R. 54(B), which affords the ability to appeal the resolution of some claims. This would afford the parties and the trial court the discretion to permit appeals from final judgments of conviction when there are "hanging charges" as the circumstances may demand.