[Cite as State v. Sternbach, 2014-Ohio-4203.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100653




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               JENNIFER STERNBACH
                                                      DEFENDANT-APPELLANT




                                    JUDGMENT:
                               REVERSED AND VACATED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-566339-A

        BEFORE: Rocco, J., Jones, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 25, 2014
                                  -i-



ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Joseph J. Ricotta
        Brett Hammond
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Jennifer Sternbach appeals from her convictions after

the trial court found her guilty of two counts of aggravated assault and one count of child

endangering.

       {¶2} Sternbach presents two assignments of error; each challenges the sufficiency

of the evidence relating to her convictions. Because a review of the record demonstrates

the state presented insufficient evidence to prove her guilt on all of the charges, her

assignments of error are sustained.

       {¶3} Sternbach’s convictions result from an incident that occurred on the night of

August 14, 2012. The incident was recorded on videotape, and the state’s witnesses

provided the following account of the events surrounding the incident.

       {¶4} The two alleged victims, Marquise Butler and Mylez Owens, were traveling

with two of their friends, Isiah and Rahiem, in Rahiem’s car when they stopped to obtain

fuel at a gas station located at the corner of Lee and Superior Roads in Cleveland Heights.

 The gas station was equipped with a video camera facing the gas pumps that recorded

events taking place there.

       {¶5} Another car, gray in color and containing three young women and two young

children, was already there at one of the gas pumps when Rahiem pulled in. Rahiem

proceeded into the station’s store to pay for his gas. After eying the women, Butler, who

smelled of alcohol, got out of the car with Isiah and approached the gray car. Butler

attempted to “flirt” with the women. Sternbach, who was driving the gray car, rebuffed
Butler’s efforts. One of Sternbach’s passengers, Theresa Wells, went further; she began

insulting Butler.

       {¶6} Rahiem came outside, noticed an exchange was occurring, and joined Butler

and Isiah to see what was happening.        With his friends thus around him, Butler

responded to the insults angrily. He exchanged additional words with Wells but she was

unintimidated by him.

       {¶7} By this time, Owens observed that the situation might require someone to

“mediate.”    He exited Rahiem’s car, walked up to the gray car’s gas pump, and

persuaded Butler to accompany him back. However, Wells continued her tirade and

followed Butler with Sternbach and Regina Robinson, the other passenger from the gray

car, behind her. Owens attempted to put himself between the women and Butler as he

walked Butler to Rahiem’s car.

       {¶8} Wells’s taunts further enraged Butler. Believing that he had done what he

could for his friend, Owens returned to the other gas pump and told the women that they

should just get into their car and leave.

       {¶9} Butler refused to stay at Rahiem’s car and could not remain still; instead,

Butler stalked nearby Rahiem’s car and waved his arms around in his agitation. His

friends surrounded him and attempted to calm him down. At one point, Isiah went from

simply restraining Butler to lifting him off his feet to carry him to Rahiem’s car. Once

again, Butler failed to stay there. Thus, as Sternbach finally drove her car away from the

gas pump toward the facing access driveway, Butler chased after it and kicked it.
       {¶10} Sternbach stopped and began to exit her car to check on the damage.

Owens advised her to just “get back in the car.” She took the advice, but as Owens tried

to hustle Butler around the car and away from it, Butler struck the hood with his hand.

Wells told Sternbach she should “just hit him with the car.”

       {¶11} As Sternbach approached the gas station’s egress, she “saw a car coming”

toward her, so she stopped her car again, allowing Butler to arrive at it, closely followed

by Owens. She put her car in reverse briefly. Then she began a turn, back toward the

gasoline pumps, that placed Butler and Owens in front of her car.

       {¶12} Sternbach’s car struck Butler in the shins and lifted him onto the hood.

Owens also flew onto the car’s hood for a moment. Sternbach completed her turn,

causing the men to fall off, as she drove the car out of the gas station, using the opposite

access driveway. Butler lost a shoe in the collision but managed to run after Sternbach’s

car and punch his fist through a rear window before the car left. After the window

shattered, he saw that a child was seated on that side.

       {¶13} Sternbach drove a short distance away from the gas station, then stopped to

assess the situation. She could hear that police officers were responding to the scene.

Butler and Owens fled but the police apprehended them within minutes. When the

young men were returned to the scene, Sternbach identified Butler as the person who had

shattered her car window. He and Owens were arrested and charged with disorderly

conduct.
       {¶14} Sternbach, Wells, and Robinson each provided a written statement to the

police about the incident. None mentioned the collision of Sternbach’s car with the men.

 However, in speaking with a police officer, Sternbach mentioned that she “may have

made contact with the boys who were involved in the argument” while she was exiting

the gas station’s lot. The police thus obtained the gas station’s surveillance videos from

that night.

       {¶15} As a result of a review of the video depicting the incident, Sternbach was

indicted on three counts. She was charged with committing felonious assault on Butler

and Owens and with child endangering.

       {¶16} Sternbach took the case to a bench trial. After considering all the evidence,

the trial court determined that Sternbach was guilty of two counts of felonious assault and

of the child endangering count, but also found that the evidence was sufficient to support

“the elements of    * * * the affirmative defense of aggravated assault.”       The court

sentenced her accordingly.

       {¶17} This court granted Sternbach’s request to file a delayed appeal of her

convictions. She presents the following two assignments of error for review.

              I. The evidence was insufficient as a matter of law to support a

       finding beyond a reasonable doubt that Appellant was guilty of aggravated

       assault.

              II. The evidence was insufficient as a matter of law to support a
       finding beyond a reasonable doubt that Appellant was guilty of endangering
       children.
        {¶18} Sternbach argues that the trial court erred in denying her Crim.R. 29 motions

for acquittal because the state failed to present sufficient evidence as to all the elements

of the offenses.

        {¶19} As to her convictions for aggravated assault in violation of R.C.

2903.12(A)(2), although she does not challenge the trial court’s finding that she acted

“under the influence of sudden passion or in a sudden fit of rage,” she contends the

evidence failed to prove that she acted “knowingly” and that she used her car as a “deadly

weapon.”

        {¶20} As to her conviction for child endangering in violation of R.C. 2918.22(A),

she contends that the evidence failed to prove that she “recklessly” created “a substantial

risk to the health or safety of [her] child, by violating a duty of care [or] protection.”

R.C. 2901.22(C) defines “recklessly” in pertinent part as acting            “with heedless

indifference to the consequences, * * * perversely disregard[ing] a known risk that [the]

conduct is likely to cause a certain result * * * .”

        {¶21} In reviewing the sufficiency of the evidence, this court noted as follows in

State v. McDuffie, 8th Dist. Cuyahoga No. 88662, 2007-Ohio-3421,

¶ 21:

              A challenge to the sufficiency of the evidence supporting a

        conviction requires a court to determine whether the state has met its burden

        of production at trial.     State v. Thompkins, 78 Ohio St.3d 380, 390,

        1997-Ohio-52, 678 N.E.2d 541.* * * [C]ourts are to assess not whether the
      state’s evidence is to be believed, but whether, if believed, the evidence

      against a defendant would support a conviction. Id. 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. State v. Jenks

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

      The motion “should be granted only where reasonable minds could not fail

      to find reasonable doubt.”     State v. Apanovitch (1987), 33 Ohio St.3d 19,

      23, 514 N.E.2d 394.

      {¶22} R.C. 2901.22(B) states:

             A person acts knowingly, regardless of his purpose, when he is
      aware that his conduct will probably cause a certain result or will probably
      be of a certain nature. A person has knowledge of circumstances when he is
      aware that such circumstances probably exist.

      {¶23} As the court observed in State v. Huff, 4th Dist. Jackson No. 06CA7,

2006-Ohio-5081, ¶ 9:

             Whether a person acts knowingly can only be determined, absent a

      defendant’s admission, from the surrounding facts and circumstances,

      including the doing of the act itself.

      {¶24} Furthermore, an automobile, when used in a manner likely to produce death

or great bodily harm, can be classified as a “deadly weapon” under R.C. 2923.11. State

v. Tate, 8th Dist. Cuyahoga No. 87008, 2006-Ohio-3722, ¶ 23, citing State v. Troyer, 8th

Dist. Cuyahoga No. 61983, 1993 Ohio App. LEXIS 1791 (Apr. 1, 1993).
       {¶25} In this case, the trial court denied Sternbach’s motions for acquittal of the

charges against her. The trial court’s decision was incorrect.

       {¶26} Butler testified that he saw “some infants in the back seat” when he was

arguing with Wells. Butler admitted that he became “enraged” by Wells’s comments to

him. He acknowledged that he kicked Sternbach’s car as it was leaving the gas station

and that he chased after it. Butler also stated that he believed Sternbach’s car was “not

gonna’ hit” him as Sternbach made her turn.

       {¶27} Owens remembered “seeing a baby in [Sternbach’s] car” during Butler’s

confrontation with Wells.     Owens testified that he and his friend Isiah physically

restrained Butler because Butler became so aggressively angry at Wells.            Owens

remembered that Sternbach took no action to defend Wells; rather, Sternbach appeared

only to want Wells to leave the situation. Owens further acknowledged that the gas

station was located at a busy intersection. He stated that, as Sternbach’s car was leaving

the gas station, Sternbach stopped and backed the car, then began making a turn so that it

pointed at him and Butler, but Owens was not in fear because he “thought she wasn’t

gonna’ hit us.” Owens characterized the collision as “an accident.”

       {¶28} Neither of the men was seriously injured; in fact, Butler testified that he

recovered his balance, chased Sternbach’s car through the gas station, and “punched the

window” where Sternbach’s child was seated before Sternbach’s car left. Butler struck

the window hard enough to shatter it. Although the gas station attendant testified that,
from her perspective, she believed Sternbach deliberately “ran him over,” the attendant

also stated she saw two Hispanic males in the back seat of Sternbach’s car.

       {¶29} Wells and Robinson both testified that Sternbach’s two-year-old daughter

and Wells’s one-year-old son were in the back seat of Sternbach’s car when the incident

occurred. When asked if either of the children was in danger that night by anything

Sternbach did, Wells answered, “No.”          Wells stated that     she was the one who

exchanged heated words with Butler, and that Sternbach did not engage in the argument.

Butler testified that he recovered his balance after Sternbach’s car collided with him,

chased her car through the gas station, and “punched the window” where Sternbach’s

child was seated before her car left.

       {¶30} The video depicts the incident and proves that Sternbach was not guilty of

committing either aggravated assault or child endangering. The group of young men at

several points surrounded Sternbach’s car with Butler being in a state of violent agitation.

 Sternbach drove away from the pumps with the young men chasing her car.                She

stopped at the egress to the station because she “saw a car coming.” The young men had

caught up to her car. Sternbach stated that she “panicked.” In an effort to escape them,

she backed up, and then proceeded to make a turn back toward the gasoline pumps.

Butler and Owens happened to be in the way.             The video also shows Sternbach

completing her turn after striking Butler and Owens and then proceeding away using the

other driveway. As the video demonstrates, Butler’s reaction to getting hit by the car

was to chase after it and to punch one of the rear windows as it left.
      {¶31} In reviewing all the evidence presented in this case in a light most favorable

to the prosecution, the surrounding facts and circumstances indicate that Sternbach

neither acted “knowingly” nor intended to use her car as a “deadly weapon” in striking

the alleged victims. State v. Copley, 8th Dist. Cuyahoga No. 92784, 2010-Ohio-2340.

Instead, she accidently collided with them while attempting to flee what she perceived to

be a dangerous situation.       Compare State v. Williams, 9th Dist. Medina No.

09CA0042-M, 2010-Ohio-1248; State v. Matthews, 8th Dist. Cuyahoga No. 97916,

2012-Ohio-5174; State v. Tate, 8th Dist. Cuyahoga No. 87008, 2006-Ohio-3722. For the

same reasons, a rational trier of fact could not find beyond a reasonable doubt that she

recklessly placed her child in danger. Compare State v. Dover, 5th Dist. Stark No.

2007-CA-00140, 2008-Ohio-1071.

      {¶32} Sternbach’s assignments of error, accordingly, are sustained.

      {¶33} Her convictions are reversed and vacated.

      It is ordered that appellant recover from 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 common

pleas court to carry this judgment into execution. Case remanded to the trial court for

proceedings consistent with this opinion.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
________________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR
