[Cite as Brooklyn v. Perna, 2012-Ohio-265.]



               Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96647




                                CITY OF BROOKLYN

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                ROSARIO PERNA, JR.
                                                      DEFENDANT-APPELLANT




                                 JUDGMENT:
                           VACATED AND DISCHARGED


                                      Criminal Appeal from the
                                       Parma Municipal Court
                                       Case No. 10 CRB 04319

        BEFORE: E. Gallagher, J., Sweeney, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                     January 26, 2012

 ATTORNEYS FOR APPELLANTS

 Gregory S. Costabile
                                                 2

 Phillip J. Henry
 Phillips, Mille & Costabile Co., LPA
 7530 Lucerne Drive, Suite 200
 Middleburg Hts., Ohio 44130

 ATTORNEYS FOR APPELLEE

 Hillary Goldberg
 Prosecutor, City of Brooklyn
 7619 Memphis Avenue
 Cleveland, Ohio 44144




 EILEEN A. GALLAGHER, J.:

       {¶ 1} Rosario Perna appeals from the decision of the trial court, finding him

guilty of one count of domestic violence. Perna argues that the trial court’s decision

was not supported by sufficient evidence. Finding merit to this appeal, we reverse the

judgment of the trial court and vacate Perna’s conviction and sentence.

       {¶ 2} On September 25, 2011, Perna spent the day with his 13-year old daughter,

J.P., and her friend, K.C.1 Perna, the non-custodial parent of J.P., took his daughter and

her friend to Ridge Park Square for lunch and shopping. Perna also took the girls to rent

movies for a sleepover at Perna’s house that evening, which was planned only after J.P.’s

mother refused her request to have K.C. sleep over at the mother’s house. This day was


       1
         The parties are referred to herein by their initials or title in accordance with this court’s
established policy regarding non-disclosure of identities in juvenile cases.
                                              3

not a scheduled parenting day for Perna but J.P. asked her mother if she could spend the

day with her father and all parties agreed.

       {¶ 3} Prior to sleeping over at her father’s, J.P. indicated her need to go home to

pick up clothing. Upon arriving at her residence, J.P. asked Perna and her friend to wait

outside, as she would only need about five minutes to grab her clothing. Perna ignored

his daughter and both he and K.C. walked into the apartment and waited for J.P. Perna

turned on the television and laid down on the couch while he waited for J.P.

       {¶ 4} While he was on the couch, J.P. told her father to turn off the television.

Perna told his daughter not to speak to him in that manner and the two began to argue.

J.P. testified as follows:

       Like some parts I remember on what happened and some parts I don’t.

       ***

       I remember him throwing me on the couch telling me to be quiet because I
       was screaming.

       ***

       Because I was scared and I wanted him to leave. Tr. 33-34.

       {¶ 5} Perna then picked up a laptop computer, which he had purchased for J.P.

and left the apartment. Once outside, Perna called J.P.’s mother, Glenda Wilder, and

told her what happened and asked that she come home. After determining that Glenda

would come home to take care of J.P. and her friend, Perna left.

       {¶ 6} Glenda arrived home shortly after Perna departed. She testified that her
                                           4

daughter was crying and complaining of pain in her upper right arm. Glenda took J.P.

to Fairview Hospital where she was treated and released that same day for a soft-tissue

injury. Because J.P.’s injury allegedly occurred at the hands of a family member,

hospital staff called the police and, a short time later, Officer Adam McQuaid arrived to

take statements.

       {¶ 7} On September 27, 2010, Perna was charged in Parma Municipal Court

with one count of domestic violence in violation of R.C. 2919.25(A). Perna pleaded not

guilty and the case proceeded to a bench trial. The city presented the testimony of

Officer McQuaid, Glenda, J.P., and K.C. At the close of the city’s case, Perna moved

for a judgment of acquittal, which the trial court denied. The defense presented no

witnesses but argued to the court in closing that Perna was merely disciplining his

out-of-control teenager daughter and that his actions did not rise to the level of domestic

violence. The trial court disagreed, and found Perna guilty of domestic violence as

charged.

       {¶ 8} The court sentenced Perna to serve 180 days in jail, suspended 85 of those

days and deferred 90 days; fined Perna $1,000, of which $750 was suspended and placed

him under probation supervision for three years.

       {¶ 9} Perna appeals, raising the following two assignments of error:

       I. The evidence is insufficient to sustain the conviction of domestic
       violence.

       II. The trial court abused its discretion by denying Appellant’s motion for
       acquittal.
                                            5


       {¶ 10} Because Perna’s two assignments of error involve the same standard of

review, they will be addressed contemporaneously.

       {¶ 11} The standard of review with regard to the sufficiency of the evidence is set

forth in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), as follows:

       Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
       acquittal if the evidence is such that reasonable minds can reach different
       conclusions as to whether each material element of a crime has been
       proved beyond a reasonable doubt.

       {¶ 12} Bridgeman must be interpreted in light of the sufficiency test outlined in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

in which the Ohio Supreme Court held:

       An appellate court’s function when reviewing the sufficiency of the
       evidence to support a criminal conviction is to examine the evidence
       submitted at trial to determine whether such evidence, if believed, would
       convince the average mind of the defendant’s guilt beyond a reasonable
       doubt. The relevant inquiry is whether, after viewing the evidence in a
       light most favorable to the prosecution, any rational trier of fact could have
       found the essential elements of the crime proven beyond a reasonable
       doubt. (Citation omitted.)

       {¶ 13} The court found Perna guilty of domestic violence, which pursuant to R.C.

2919.25(A), provides as follows:

       No person shall knowingly cause or attempt to cause harm to a family or
       household member.

       {¶ 14} Physical harm is defined by R.C. 2901.01 as “any injury, illness, or other

physiological impairment, regardless of its gravity or duration.”

       {¶ 15} The Ohio Supreme Court has recognized that the domestic violence statute
                                           6

does not prevent “proper and reasonable parental discipline” of a child. See State v.

Suchomski, 58 Ohio St.3d 74, 75, 567 N.E.2d 1304 (1991); State v. Snyder, 8th Dist. No.

94755, 2011-Ohio-1062, 2011 WL 826292.           “Clearly parents are entitled to utilize

disciplinary measures for their children, however, such discipline must not be of such

gravity that it becomes unreasonable in light of the underlying cause.” State v. Ivey, 98

Ohio App.3d 249, 648 N.E.2d 519 (1994). A determination as to whether particular

conduct constitutes proper and reasonable parental discipline must be made from the

totality of the circumstances in the case. Snyder; State v. Adaranijo, 153 Ohio App.3d

266, 792 N.E.2d 1138 (2003).

       {¶ 16} In this case, the record reflects that the child was being disciplined by her

father for back-talking. Although the City elicited testimony from J.P. that Perna threw

J.P. down on the couch three to four times, and covered his daughter’s mouth with his

hands, all parties admit that J.P. suffered no bruises or lasting injuries. Additionally,

Perna argued that he warned his daughter that her continued poor behavior would result

in discipline and she chose to ignore him. Perna further argued that he acted only out of

an attempt to control his out-of-control teenage daughter. J.P. suffered a soft-tissue

injury and wore an ace bandage on and off for two weeks after the incident; however,

there was no evidence of substantial harm to the child.

       {¶ 17} While we do not condone the use of excessive punishment against any

child, the conduct of Perna did not rise to that level. Thus, in view of the facts and

circumstances in this case, we find there was insufficient evidence for any rational trier
                                             7

of fact to conclude Perna’s actions were other than proper and reasonable. Upon our

review, we find the evidence was insufficient to convict Perna of domestic violence.

       {¶ 18} Perna’s first and second assignments of error are sustained. We reverse

and vacate his conviction for domestic violence. See Suchomski; Snyder.

       {¶ 19} This cause is vacated and appellant is ordered discharged.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
LARRY A. JONES, J., CONCUR
