[Cite as State v. Bagley, 2019-Ohio-3193.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 28195
                                                   :
 v.                                                :   Trial Court Case No. CRB 1700451
                                                   :
 ANTONETTE BAGLEY                                  :   (Criminal Appeal from
                                                   :    Municipal Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 9th day of August, 2019.

                                              ...........

CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 245 James Bohanan Memorial
Drive, Vandalia, Ohio 45377
       Attorney for Plaintiff-Appellee

KIRSTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717,
Liberty Tower, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

                                             .............
                                                                                        -2-


FROELICH, J.

       {¶ 1} Antonette Bagley was convicted after a bench trial in the Vandalia Municipal

Court of four counts of patient endangerment, a first-degree misdemeanor.          Bagley

appeals, claiming that her convictions were based on insufficient evidence. For the

following reasons, the trial court’s judgment will be affirmed.

                           I. Factual and Procedural History

       {¶ 2} The evidence at trial established the following facts.

       {¶ 3} In July 2015, Bagley was an employee of Good Samaritan Homes, which

provides care for people with developmental disabilities. Bagley was a staff person at a

group home with four women. Her duties consisted of ensuring the health and safety of

the residents, assisting them with their activities of daily living, providing medication,

transporting them to appointments, and the like. Bagley’s shift was from 4:00 p.m. to

midnight (second shift). Another staff person worked from 1:00 p.m. to 8:00 p.m., and

thus the home was double-staffed for the first four hours of Bagley’s shift. Bagley worked

alone from 8:00 p.m. to midnight. Bagley was relieved by Jennifer Wheeler, who worked

at the group home from midnight to 8:00 a.m. (third shift).

       {¶ 4} Roshawnda Smith, home manager at Good Samaritan Homes, testified that

staff persons were not supposed to leave until they were relieved by the next staff person.

When the next shift arrives, the two staff people were to count the money in the home, do

a walk-through of the house together, and discuss anything from the shift that the relief

staff needed to know. Smith stated that staff were trained to follow a chain of command

to obtain coverage if an emergency arose and the staff person needed to leave

unexpectedly. Smith emphasized that the residents were to be supervised at all times
                                                                                          -3-


and were not to be left alone. Consequently, a staff person was not allowed to leave

until a replacement arrived.

       {¶ 5} The group home where Bagley and Wheeler worked was a three-bedroom,

single-floor home. Wheeler described the home as having a foyer, living room, dining

room, den, and back patio. Staff were permitted to smoke at the end of the driveway

away from the house, but only if another staff person were present to supervise the

residents.

       {¶ 6} The women at the group home had individual service plans (ISPs), which

detailed their disabilities and how staff was to provide services for them; two of the ISPs

were admitted as exhibits. The ISP for one resident indicated that she had the following

diagnoses: mild mental retardation, spastic quadriplegia, history of seizure disorder,

cerebral palsy, flexion contractures of hips and knees, stasis edema, hypertension,

degenerative arthritis, dysfunctional uterine bleeding, hyperglobulinemia, constipation,

and osteoporosis. This resident’s condition rendered her entirely dependent on staff to

get up, dress, eat, shower, take medications, and address her bodily functions.

       {¶ 7} The other three women were ambulatory, but prone to falling; Smith testified

that “they trip and fall, they fall a lot.” The second ISP indicated that one of these three

residents had mental retardation, anxiety, panic attacks, hidradenitis, seizures, cellulitis,

and was recently diagnosed with Parkinson’s Disease. None of the women was able to

cook for herself. Staff assisted all the women with cooking, bathing, medication, and

when they needed to use the bathroom during the night.

       {¶ 8} On July 29, 2015, Bagley clocked in at 5:24 p.m., which was nearly 90

minutes late. She did not clock out. Smith testified that the women in the group home
                                                                                        -4-


took medicine at 7:00 p.m., went to bed at 8:00 p.m., and were asleep by 8:30 p.m.

Bagley’s time card was adjusted for payroll purposes to show that she left at 9:00 p.m.,

but Smith acknowledged that she did not know when Bagley actually left the home.

      {¶ 9} Wheeler testified that she arrived at the group home at 11:40 p.m. on July

29, 2015 in preparation for her midnight to 8:00 a.m. shift.1 Wheeler did not see Bagley’s

vehicle. Wheeler stayed in her car for a few minutes, and then approached the home.

She rang the doorbell and knocked on the door (the staff do not have keys to the home),

but Bagley did not answer. Wheeler continued to knock on the door and ring the doorbell

until one of the residents woke and acknowledged her. That resident called to one of the

other women, who let Wheeler in. Wheeler was in the home by 11:50 p.m. or 11:56 p.m.

Wheeler walked through the home and checked the patio door (a slider); she did not see

Bagley in the home or on the back patio when she arrived. Wheeler testified that the

residents were shocked, because they did not realize that they were alone. Wheeler

testified that Bagley was supposed to be watching them.

      {¶ 10} Wheeler received several text messages from Bagley that night. The first

two were received at 11:56 p.m. and 11:57 p.m. on July 29, 2015, and said, “Jennifer this

is [A]nnie from [group home’s name.]” At 12:05 a.m. on July 30, Bagley texted, “The

keys are under the mat. I had to leave[.]” At 12:09 a.m., Bagley texted, “Call me when

u can[.]” Finally, at 1:14 a.m., Bagley texted, “U can leave that laundry for me ill do it


1 The testimony was inconsistent about whether Wheeler clocked in for her shift. Her
time card (State’s Ex. 4) showed that she clocked in at 12:00 a.m. on July 30, 2015 and
clocked out at 8:09 a.m. that day; Wheeler’s time card for July 29 had no clock in or clock
out time. The testimony was confusing as to whether Wheeler’s time for the shift at issue
would have been recorded on July 29 or July 30. Regardless, Smith’s and Wheeler’s
testimony established that Wheeler arrived for her shift for the morning of July 30
(midnight to 8:00 a.m.), as scheduled.
                                                                                        -5-


2morrw[.]”

       {¶ 11} Wheeler testified that none of the women had suffered any injury. Wheeler

stated, however, that the woman with quadriplegia had a soiled diaper when Wheeler

arrived and needed to be changed.

       {¶ 12} Wheeler contacted Smith, and Smith advised her to call the police. After

receiving Wheeler’s call, Smith came to the scene and provided a statement to the

responding officer. Bagley’s employment was terminated due to her leaving early from

her shift.

       {¶ 13} Joseph Kaufman, an investigator with the Montgomery County Board of

Developmental Disabilities Services, conducted a neglect investigation concerning a

report that Bagley had left several individuals in a group home unsupervised. Kaufman

reviewed the residents’ ISPs, interviewed the residents, staff members, and Bagley.

Kaufman testified that Bagley stated that she was at the group home for her entire shift;

Bagley reported to Kaufman that she went onto the back patio at 11:15 p.m. and was

outside talking on her phone and smoking when Wheeler came to relieve her. Bagley

asserted that she clocked out at approximately 12:10 a.m. and then left to go home.

Kaufman testified that Bagley’s statements were not corroborated and were inconsistent

with his findings. On cross-examination, Kaufman stated that there was no indication or

sign that any of the residents was injured or had complications as a result of the neglect.

He also could not state with certainty how long the residents were left unsupervised.

However, based on his findings, Kaufman filed a complaint for patient endangerment

against Bagley with the police.

       {¶ 14} On February 23, 2017, Bagley was charged by complaint with four counts
                                                                                         -6-


of patient endangerment, in violation of R.C. 2903.341, first-degree misdemeanors. The

matter proceeded to a bench trial on July 24, 2018 and August 23, 2018, during which

Smith, Kaufman, and Wheeler testified for the State. Bagley did not testify or present

any witnesses on her behalf. The trial court found Bagley guilty of the charges.

       {¶ 15} On October 1, 2018, the trial court sentenced Bagley to 180 days in jail with

170 days suspended, five years of probation, a $50 fine, and court costs. The trial court

offered to allow Bagley to do 90 days of house arrest in lieu of jail, but Bagley elected to

serve the 10 days in jail. Bagley did not seek a stay pending appeal, and the record

reflects that Bagley has served her 10-day jail term. Nevertheless, it appears that she

has not completely paid her court costs and fine, and thus her appeal is not moot. See,

e.g., State v. Ruley, 2d Dist. Miami No. 2017-Ohio-10, 2018-Ohio-3201, ¶ 10; State v.

Laster, 2d Dist. Montgomery No. 25019, 2013-Ohio-621, ¶ 3, fn.1.

                         II. Sufficiency of the State’s Evidence

       {¶ 16} In her sole assignment of error, Bagley claims that the State’s evidence was

insufficient to convict her of patient endangerment.

       {¶ 17} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal
                                                                                       -7-

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.

      {¶ 18} In reviewing challenges based on the sufficiency (and/or manifest weight)

of the evidence, we are required to consider all of the evidence admitted at trial,

regardless of whether it was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202,

2009-Ohio-593, 903 N.E.2d 284; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-

Ohio-197, ¶ 16, citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.).

      {¶ 19} Bagley was found guilty of patient endangerment, in violation of R.C.

2903.341(B). At the time of the offense in 2015, R.C. 2903.341(B) provided: “No MR/DD

caretaker shall create a substantial risk to the health or safety of a mentally retarded

person or a developmentally disabled person.”2

      {¶ 20} An “MR/DD caretaker” was defined as “any MR/DD employee or any person

who assumes the duty to provide for the care and protection of a mentally retarded person

or a developmentally disabled person on a voluntary basis, by contract, through receipt

of payment for care and protection, as a result of a family relationship, or by order of a

court of competent jurisdiction.    ‘MR/DD caretaker’ includes a person who is an

employee of a care facility and a person who is an employee of an entity under contract

with a provider.” Former R.C. 2903.341(A)(1).

      {¶ 21} R.C. 2903.341(A)(3) incorporated the definitions of “mentally retarded

person” and “developmentally disabled person” from R.C. 5123.01. “Mentally retarded

person” meant “a person having significantly subaverage general intellectual functioning


2 R.C. 2903.341(B) now reads: “No developmental disabilities caretaker shall create a
substantial risk to the health or safety of a person with a developmental disability.” In
general, the October 2016 revisions to R.C. 2903.341 replace “mentally retarded person”
and “developmentally disabled person” with “person with a developmental disability.”
The term “developmental disability” now includes intellectual disability. R.C. 5123.01(Q).
                                                                                           -8-


existing concurrently with deficiencies in adaptive behavior, manifested during the

developmental period.” Former R.C. 5123.01(N). A “developmentally disabled person”

was a person with a developmental disability.               Former R.C. 5123.01(R).        A

“developmental disability” was (and is currently) defined as “a severe, chronic disability”

that is characterized by:

       (1) It is attributable to a mental or physical impairment or a combination of

       mental and physical impairments * * *.

       (2) It is manifested before age twenty-two.

       (3) It is likely to continue indefinitely.

       (4) It results in one of the following:

       ***

       (c) In the case of a person six years of age or older, a substantial functional

       limitation in at least three of the following areas of major life activity, as

       appropriate for the person’s age: self-care, receptive and expressive

       language, learning, mobility, self-direction, capacity for independent living,

       and, if the person is at least sixteen years of age, capacity for economic

       self-sufficiency.

       (5) It causes the person to need a combination and sequence of special,

       interdisciplinary, or other type of care, treatment, or provision of services for

       an extended period of time that is individually planned and coordinated for

       the person.

R.C. 5123.01(Q).

       {¶ 22} “Substantial risk” means a strong possibility, as contrasted with a remote or
                                                                                          -9-


significant possibility, that a certain result may occur or that certain circumstances may

exist. R.C. 2901.01(A)(8).

         {¶ 23} On appeal, Bagley claims that the State failed to present sufficient evidence

that she recklessly created a substantial risk to patients, because (1) there was no

evidence at trial regarding the creation and validity of each patient’s ISP and (2) there

was insufficient evidence that she left the group home prior to the end of her scheduled

shift.

         {¶ 24} Viewing the evidence in the light most favorable to the State, we conclude

that the State presented sufficient evidence to support Bagley’s convictions for patient

endangerment.        The State’s evidence established that Bagley was an “MR/DD

caretaker,” whose regular shift was 4:00 p.m. to midnight at a group home for people with

development disabilities. Smith’s, Kaufman’s, and Wheeler’s testimony, in addition to

the two ISPs submitted as evidence, indicated that at least two of the women had mental

retardation and that all four women in the group home had developmental disabilities.

         {¶ 25} Bagley argues that the State should have offered expert testimony about

the creation and validity of the ISPs, and that this evidence was necessary to link Bagley’s

early departure to an alleged substantial risk to the women’s health and safety. Bagley

has not cited to any authority that requires the State to present expert testimony as to the

accurate creation and validity of an ISP for the person with developmental disabilities,

and we have found none.

         {¶ 26} The State’s evidence indicated that the women in the group home required

constant supervision. Several witnesses testified that one women had quadriplegia, was

completely dependent on the caregiver for assistance with activities of daily living, and
                                                                                         -10-


required assistance in using the bathroom in the middle of the night. Other residents

required similar assistance during the night and were prone to falling. Due to Bagley’s

absence, one of the women, who was prone to falling, came to the door unsupervised to

let Wheeler into the home. Upon entering the home, Wheeler found that the woman with

quadriplegia was “soaking wet” and needed her diaper changed. Although there was no

evidence that the women suffered physical harm from Bagley’s absence, the State’s

evidence was sufficient for the trial court, as the finder of fact, to conclude that her

absence created a substantial risk of harm to the residents. We note that it was the

province of the trial court, as the fact-finder, to determine the weight to be given to the

testimony and the ISPs presented by the State in determining whether each woman at

the group home was either a “mentally retarded person or a developmentally disabled

person.”

      {¶ 27} The State’s evidence was also sufficient to establish that Bagley, in fact, left

the group home prior to the end of her scheduled shift. Wheeler testified that she arrived

at the group home at 11:40 p.m. She did not see Bagley’s vehicle while she was there.

Wheeler approached the home before midnight, and she repeatedly banged on the door

and rang the doorbell without any response from Bagley. Ultimately, one of the home’s

residents opened the door for Wheeler. Wheeler testified that she checked the house,

including the back patio door; she did not see Bagley there. The texts from Bagley to

Wheeler also indicated that Bagley left the residence prior to communicating with Wheeler

in person, as required by Good Samaritan Homes policy. Although the State was unable

to present evidence as to the exact time that Bagley left the group home, there was

sufficient evidence that Bagley left the home prior to both the end of her shift and
                                                                                   -11-


Wheeler’s arrival. Based on the evidence concerning the condition of the women in the

group home and that they required constant supervision, the trial court had sufficient

evidence to conclude that Bagley’s absence created a substantial risk of harm to the

women.

      {¶ 28} Bagley’s assignment of error is overruled.

                                     III. Conclusion

      {¶ 29} The trial court’s judgment will be affirmed.

                                    .............



DONOVAN, J. and TUCKER, J., concur.


Copies sent to:

Christopher B. Epley
Kristin L. Arnold
Hon. Cynthia M. Heck
