[Cite as State v. Jordan, 2014-Ohio-2857.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                           C.A. No.     27005

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
CRYSTAL JORDAN                                          BARBERTON MUNICIPAL COURT
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   12 CRB 02869

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2014



        HENSAL, Presiding Judge.

        {¶1}     Appellant, Crystal Jordan, appeals her convictions in the Barberton Municipal

Court. For the following reasons, this Court affirms in part and reverses in part.

                                                   I.

        {¶2}     Ms. Jordan was observed by a Target loss prevention employee entering the store

with her four-month-old infant, two of her sisters, her teenaged niece and her niece’s friend. The

employee monitored the group on video and in-person for approximately 45 minutes after his

suspicion was aroused when he witnessed Ms. Jordan and the rest of the individuals

indiscriminately place clothing into their shopping cart. When Ms. Jordan’s niece attempted to

push the shopping cart out of the store’s entrance without paying for the merchandise, the

employee apprehended her. Ms. Jordan was later arrested at a nearby restaurant after she and the

rest of the group were asked to leave the store.
                                                2


         {¶3}   She was charged with one count each of endangering children under Revised

Code Section 2919.22(A), a first-degree misdemeanor, theft under Section 2913.02, a first-

degree misdemeanor, and obstructing official business under Section 2921.31, a second-degree

misdemeanor. After the close of the State’s case-in-chief, the court granted the State’s request to

add an instruction on complicity to commit theft pursuant to Section 2923.03. The jury found

Ms. Jordan not guilty of the theft offense but guilty of the remaining charges including

complicity to commit theft. She was sentenced to a suspended jail sentence on the condition that

she serve six months of community control. Ms. Jordan appeals and raises five assignments of

error.

                                                II.

                                  ASSIGNMENT OF ERROR I

         THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
         CRYSTAL JORDAN HER RIGHTS UNDER THE CONFRONTATION
         CLAUSE OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION
         AND OHIO CONSTITUTION, ARTICLE I, SECTION 10.

         {¶4}   Ms. Jordan argues in her first assignment of error that her constitutional rights

were violated when the trial court allowed hearsay statements into evidence that implicated her

in the theft. This Court agrees with Ms. Jordan that the testimony was improperly admitted, but

concludes that the error was harmless.

         {¶5}   An accused’s right to confront and cross-examine witnesses against her is

guaranteed by the Sixth Amendment to the United States Constitution. Crawford v. Washington,

541 U.S. 36, 54 (2004). Out-of-court statements that are testimonial in nature implicate the

protections afforded by the Confrontation Clause. State v. Boone, 9th Dist. Summit No. 26104,

2013-Ohio-2664, ¶ 19, citing Melandez-Diaz v. Massachusetts, 557 U.S. 305, 309-310 (2009).

“An out-of-court statement is ‘testimonial’ when it ‘would lead an objective witness reasonably
                                                3


to believe that the statement would be available for use at a later time.’” Id., quoting Melandez-

Diaz at 310. “More fundamentally, however, a ‘testimonial statement’ must assert the truth of

the matter for which it is offered.” Id., quoting Melandez-Diaz at 310. “In other words, when

evidence is not intended for the purpose of establishing or proving some fact at trial, it does not

fall within the ambit of ‘testimonial statements’ covered by the Confrontation Clause.” Id.

However, “[t]estimonial statements of witnesses absent from trial have been admitted only where

the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-

examine.” Crawford at 59.

       {¶6}    Over the defense’s objection, the lead investigating officer, Deputy Elisha

Menefee, testified that, during questioning, Ms. Jordan’s niece stated that it was Ms. Jordan who

made her push the shopping cart out of the store’s entrance. There is no dispute that the State did

not produce the niece as a witness at trial. Accordingly, Ms. Jordan did not have an opportunity

to cross-examine her niece on the content of her statement to Deputy Menefee.

       {¶7}    The State argues that the niece’s statement was not hearsay as the statement was

not offered to prove the truth of the matter asserted, but rather to explain the officers’ conduct

during the course of the investigation. Evidence Rule 801(C) defines hearsay as “a statement,

other than one made by the declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted.” Statements that are offered into evidence to explain an

officer’s conduct while investigating a crime are not, however, hearsay. State v. Blevins, 36

Ohio App.3d 147, 149 (9th Dist.1987). The Ohio Supreme Court has recognized that, “in order

for testimony offered to explain police conduct to be admissible as nonhearsay, the conduct to be

explained should be relevant, equivocal, and contemporaneous with the statements; the probative

value of statements must not be substantially outweighed by the danger of unfair prejudice; and
                                                 4


the statements cannot connect the accused with the crime charged.” State v. Ricks, 136 Ohio

St.3d 356, 2013-Ohio-3712, ¶ 27.

       {¶8}    Assuming arguendo that Deputy Menefee’s testimony about the niece’s statement

was offered to explain her next steps in the investigation, and that the danger of unfair prejudice

did not outweigh any probative value, it still fails the test set forth in Ricks as the statement

directly implicates Ms. Jordan in the crime. Id. Accordingly, this Court concludes that the

statement concerning her role as the individual who allegedly told her niece to push the cart out

of the door was testimonial. Because the statement was testimonial in nature, its admission into

evidence violated Ms. Jordan’s constitutional rights under the Confrontation Clause.

       {¶9}     “Although the court committed constitutional error, such error can be harmless in

certain circumstances[.]” Ricks at ¶ 46. Criminal Rule 52(A) provides that “[a]ny error, defect,

irregularity, or variance which does not affect substantial rights shall be disregarded.”

       A constitutional error can be held harmless if we determine that it was harmless
       beyond a reasonable doubt. Whether a Sixth Amendment error was harmless
       beyond a reasonable doubt is not simply an inquiry into the sufficiency of the
       remaining evidence. Instead, the question is whether there is a reasonable
       possibility that the evidence complained of might have contributed to the
       conviction.

(Citations omitted.) Ricks at ¶ 46.

       {¶10} After reviewing the rest of the evidence offered against Ms. Jordan, this Court

concludes that the error was harmless beyond a reasonable doubt. The jury viewed the Target

surveillance video, which revealed that Ms. Jordan removed hangers from clothing and placed

items into the shopping cart without regard for their size, style or price. The video further

showed that, after a member of the group removed the infant from her carrier, Ms. Jordan

conspicuously pulled the baby’s blanket up over the carrier which another member of the group

then pulled down in an effort to conceal its interior from view. Ms. Jordan can be seen in the
                                                 5


video in the immediate vicinity of her niece and her niece’s friend while they concealed clothing

in the carrier under the blanket. Andrew Phillips, a Target loss prevention employee, testified

that, in his opinion, Ms. Jordan appeared to be the primary person who selected items and who

directed the other individuals’ selections. He further testified that he observed her gather around

the shopping cart with the rest of the group, sort the merchandise, and fold it either as small as

possible or roll it in a way that suggested the items were to be concealed. According to Mr.

Phillips, Ms. Jordan was standing at the cart when her sister and niece returned after taking infant

formula and diapers off of the store shelf which they then concealed in the baby’s diaper bag.

Mr. Phillips later witnessed Ms. Jordan take a cart that contained clothing from the fitting room.

In addition, the jury viewed video that showed Ms. Jordan assist another individual unlatch the

infant’s carrier from the initial cart it was in and place it in an empty cart, which her niece then

attempted to roll out of the store.

       {¶11} Given the video evidence and testimony from Mr. Phillips, who personally

witnessed Ms. Jordan’s actions in the store, this Court concludes that it was not reasonably

possible that the hearsay statement testified to by Deputy Menefee carried enough weight with

the jury to contribute to her complicity to commit theft conviction. Thus, the trial court’s

admission of the testimony was harmless error.

       {¶12} Ms. Jordan also challenges testimony from Mr. Phillips that he determined that

merchandise found in the trunk of the vehicle Ms. Jordan drove to the store was stolen as the

deputies told him “that a few of the subjects * * * admitted that it came from our Target.” He

reiterated his testimony during cross-examination when he affirmed that “in questioning by the

[d]eputies, * * * multiple * * * subjects * * * admitted that the merchandise was stolen from my

specific Target.” Ms. Jordan also maintains that testimony from Sergeant Patrick Hunt, who
                                                  6


testified that Deputy Menefee told him that Ms. Jordan’s niece stated that Ms. Jordan drove the

vehicle to the store, was hearsay. She argues that admission of these statements violated her

constitutional rights under the Confrontation Clause.

       {¶13} As she did not object to these statements at trial, she is limited to plain error

review. State v. Rini, 9th Dist. Medina No. 12CA0045-M, 2013-Ohio-745, ¶ 12. See also State

v. Habo, 11th Dist. Portage No. 2012-P-0056, 2013-Ohio-2142, ¶ 35, quoting State v. Scott, 10th

Dist. Franklin No. 05AP-1144, 2006-Ohio-4981, ¶ 11, fn. 4 (“Where preserved by objection,

review of Confrontation Clause claims is for harmless error. Confrontation Clause claims not

preserved by objection are viewed for plain error * * *.”). Criminal Rule 52(B) states that

“[p]lain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” “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.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

       To correct a plain error, all of the following elements must apply: ‘First, there
       must be an error, i.e., a deviation from the 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[ ]’ [to the extent that it] * * * affected the outcome of the trial.’

State v. Bennett, 9th Dist. Lorain No. 12CA010286, 2014-Ohio-160, ¶ 64, citing State v.

Hardges, 9th Dist. Summit No. 24175, 2008-Ohio-5567, ¶ 9.

       {¶14} Assuming arguendo that admission of both Mr. Phillip’s and Sergeant Hunt’s

testimony was plain error, this Court is not convinced that it affected the outcome of her trial due

to the nature of the other evidence introduced at trial, as detailed above, that suggested Ms.

Jordan was complicit in the theft from Target.

       {¶15} Accordingly, this Court overrules Ms. Jordan’s first assignment of error.
                                                7


                                 ASSIGNMENT OF ERROR II

        THE WARRANTLESS SEARCH OF THE CAR JORDAN DROVE VIOLATED
        HER RIGHTS UNDER THE FOURTH AMENDMENT OF THE UNITED
        STATES   CONSTITUTION,  MERITING    REVERSAL   OF   HER
        CONVICTIONS.

        {¶16} In her second assignment of error, Ms. Jordan argues that the impoundment and

subsequent inventory search of the vehicle she drove to the store violated her constitutional

rights. She concedes that this Court reviews her assignment of error under plain error as she did

not file a motion to suppress or otherwise object to the admission of the evidence at trial. We do

not agree that the impoundment and search of the vehicle amounted to plain error in violation of

her constitutional rights.

        {¶17} The Fourth Amendment to the United States Constitution and Section 14, Article

1 of the Ohio Constitution prohibit unreasonable searches and seizures. Subject to “a few

specifically established and well-delineated exceptions,” a search conducted without a warrant

issued upon probable cause is per se unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973), quoting Katz v. United States, 389 U.S. 347, 357 (1967).

        [A] routine inventory search of a lawfully impounded automobile is not
        unreasonable within the meaning of the Fourth Amendment when performed
        pursuant to standard police practice, and when the evidence does not demonstrate
        that the procedure involved is merely a pretext for an evidentiary search of the
        impounded automobile.

State v. Robinson, 58 Ohio St.2d 478, 480 (1979). “To determine if an inventory search is valid,

the court must first determine whether the police lawfully impounded the vehicle. A vehicle can

be lawfully impounded when the occupant of the vehicle is arrested.” State v. Harper, 9th Dist.

Medina No. 12CA0076-M, 2014-Ohio-347, ¶ 10, quoting State v. Robinson, 9th Dist. Summit

No. 19905, 2000 WL 1587007, *3 (Oct. 25, 2000). But see State v. Huddleston, 173 Ohio

App.3d 17, 2007-Ohio-4455, ¶ 22 (10th Dist.) (holding that defendant’s car was unlawfully
                                                  8


impounded when he was arrested for shoplifting as he was not in or near the vehicle when he

was arrested). “This Court has rejected a challenge to an impoundment when there was no

evidence of a pretextual motive and the impoundment was conducted pursuant to a standard

police procedure.” Harper at ¶ 10.

       {¶18} Ms. Jordan argues that the vehicle was not lawfully impounded as she was

arrested away from the vehicle, the vehicle was not left unattended for a significant amount of

time so as to constitute a hazard, and it could have been driven out of the parking lot by someone

else to avoid it being impounded. She advocates that, under these facts, the impoundment of the

car was a pretext for a warrantless search.

       {¶19} The Target store in question is located in Green, Ohio. Green Traffic Code

404.05(a)(7) authorizes law enforcement officers to remove and impound a vehicle when it is

“left unattended either on public or private property due to the removal of an * * * arrested

operator * * *[.]” Deputy Daniel Napier testified that, since he “knew that everyone was going

to be placed under arrest, * * * it’s our policy to tow any vehicles related to a crime.”

       {¶20} This Court concludes that the car was lawfully impounded. The plain language of

Green Traffic Code 404.05(a)(7) authorized the deputies to legally impound the car due to Ms.

Jordan’s arrest. He also testified that it was the department’s standard procedure to impound a

car when the operator is arrested. Further, the testimony from Deputy Napier does not reveal a

pretexual motive for impounding the car. According to Deputy Napier, he was not aware that

Ms. Jordan’s sister was seen on video leaving the store while carrying a purse and then re-

entering the store several minutes later without the purse she previously carried. This fact is

important because the subsequent inventory search of the vehicle revealed stolen merchandise.
                                                9


       {¶21} Having concluded that the car was lawfully impounded, we turn next to the

validity of the inventory search. “The justification for inventory searches stems from three

administrative caretaking functions: (1) protecting an individual’s property while it is in police

custody; (2) protecting the police from claims of lost, stolen, or vandalized property; and (3)

protecting the police from danger.” Harper, 2014-Ohio-347, at ¶ 11, quoting Robinson, 2000

WL 1587007, at *2 (Oct. 25, 2000). “[I]nventories pursuant to standard police procedures are

reasonable.” Id., quoting South Dakota v. Opperman, 428 U.S. 364, 372 (1976).

       {¶22} Deputy Napier testified that he inventoried the entire car “per policy” to protect

the department from civil liability for missing items and property damage. When he opened up

the trunk during the inventory search, he discovered clothing and jewelry with store tags still

attached to them. Deputy Napier also found a large purse underneath the clothing. According to

him, he did not find any store bags or receipts during his search which would have indicated that

the items were previously purchased. Mr. Phillips identified some of the items as coming from

his Target store. The investigation subsequently revealed that some of the items came from a

local Walmart store.

       {¶23} Deputy Napier testified in generalities concerning the department’s policy to

search impounded vehicles. He did not discuss any specifics about the policy nor was a written

copy of the policy submitted into evidence. Deputy Napier’s testimony, however, suggests that

the search was pursuant to the department’s policy and in satisfaction of the department’s

caretaking functions. This Court does not agree that the inventory search constituted plain error

in violation of Ms. Jordan’s constitutional rights. Accordingly, Ms. Jordan’s second assignment

of error is overruled.
                                                 10


                                     ASSIGNMENT OF ERROR III

       THE TRIAL COURT SUA SPONTE AMENDED THE COMPLAINT IN
       JORDAN’S CASE TO ADD A COMPLICITY TO THEFT CHARGE. THIS
       DID NOT COMPLY WITH CRIM.R. 7, AND DEPRIVED JORDAN OF HER
       DUE PROCESS RIGHTS.

       {¶24} In her third assignment of error, Ms. Jordan argues that the trial court erred when

it permitted the jury to be instructed on complicity.         She maintains that this instruction

constituted a de facto amendment to the complaint to add an additional charge in violation of her

due process rights. This Court disagrees.

       {¶25} Criminal Rule 7(D) permits a court to amend a complaint at any time before,

during, or after trial to correct a defect, imperfection, omission or any variance in the evidence as

along as the change does not alter the name or identity of the charged offense. If the amendment

changes the substance of the complaint, the defendant is entitled to a discharge of the jury, if

empaneled, unless it is clear that she was not misled or prejudiced, or that her rights will be fully

protected by either proceeding to trial or by a continuance to another date. Crim.R. 7(D).

       {¶26} Under Revised Code Section 2923.03(A), “[n]o person, acting with the kind of

culpability required for the commission of an offense, shall do any of the following: (1) Solicit

or procure another to commit the offense; (2) Aid or abet another in committing the offense; * *

* [or] (4) Cause an innocent or irresponsible person to commit the offense.” The statute further

provides that “[a] charge of complicity may be stated in terms of this section, or in terms of the

principal offense.” R.C. 2923.03(F). This Court has previously determined that “when the

prosecution charges and tries an aider and abettor as a principal, a jury instruction on complicity

may be given if the evidence adduced at trial reasonably indicates that the defendant was an aider

and abettor rather than a principal offender.” State v. Adcox, 9th Dist. Lorain No. 98CA007049,

2000 WL 422400, *3 (Apr. 19, 2000).
                                                11


        {¶27} The criminal complaint in this matter charged Ms. Jordan with theft under

Revised Code Section 2913.02. At the close of the State’s evidence, and over Ms. Jordan’s

objection, the trial court granted the prosecutor’s motion to add a complicity instruction in

conformity with the evidence introduced at trial. While Ms. Jordan argues that the State’s

request was a de facto amendment of the complaint to add a complicity charge, the transcript

reveals that the State made it clear it was not seeking to amend the complaint. The jury was

presented with a separate verdict form for the complicity charge, which they signed in finding

her guilty.

        {¶28} This Court concludes that the trial court did not effectively amend the complaint

under Criminal Rule 7 to add a new charge as the instruction did not change the name or identity

of the crime charged. Revised Code Section 2923.02(F) permits a complicity charge to be

brought either on its own under the statute or as stated in terms of the principal offense. Further,

our review of the evidence introduced at trial demonstrated that Ms. Jordan was complicit with

the juveniles in carrying out the theft so as to warrant the instruction. Accordingly, her third

assignment of error is overruled.



                                    ASSIGNMENT OF ERROR IV

        JORDAN’S CONVICTIONS FOR CHILD ENDANGERING AND
        OBSTRUCTING OFFICIAL BUSINESS WERE NOT SUPPORTED BY
        SUFFICIENT EVIDENCE, AND MUST BE REVERSED.

                                    ASSIGNMENT OF ERROR V

        JORDAN’S CONVICTIONS FOR CHILD ENDANGERING AND
        OBSTRUCTING OFFICIAL BUSINESS [ARE] AGAINST THE MANIFEST
        WEIGHT OF THE EVIDENCE, AND MUST BE REVERSED.
                                                 12


       {¶29} Ms. Jordan argues in her fourth and fifth assignments of error that her convictions

for child endangering and obstructing official business were not supported by sufficient evidence

and were against the manifest weight of the evidence.            As her assignments of error are

interconnected, we will address them together.

Child Endangerment

       {¶30} This Court reviews a question of whether there is sufficient evidence to support a

conviction de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted 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 reviewing 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, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Collmar, 9th Dist. Summit No. 26496, 2013-Ohio-1766, ¶ 7.

       {¶31} Ms. Jordan was convicted of violating Revised Code Section 2919.22, which

provides in part that “[n]o person, who is the parent * * * of a child under eighteen 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.” A “substantial risk” is defined as a “strong possibility, as contrasted with

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

may exist.” R.C. 2901.01(A)(8).

       {¶32} The State argues that Ms. Jordan violated her duty of care to her child by risking

arrest when she participated in the shoplifting offense.        Deputy Menefee testified that she

charged Ms. Jordan with child endangering based on her involvement in the theft and the fact
                                                  13


that she left the store without any child-care supplies, like the carrier or the blanket, for her

infant. According to Deputy Menefee, if a parent commits a crime, such as theft, in the presence

of a child, the parent risks having that child placed in the custody of Children’s Services. She

admitted, however, that Children’s Services determines if a child is taken into custody and that

being arrested does not necessarily mean a defendant will lose custody of her child.

       {¶33} Viewing the evidence in a light most favorable to the State, this Court concludes

that there was sufficient evidence to convict Ms. Jordan of child endangering in violation of

Revised Code Section 2919.22. Deputy Menefee’s testimony could establish that Ms. Jordan

violated her duty of care, protection or support to her child by committing a crime in the

presence of her child and by leaving the store without the necessary provisions with which to

keep her infant warm and safe. A rational trier of fact could have found that her actions

presented a substantial risk to the health or safety of the child by subjecting the infant to a risk of

harm or a potential threat to the infant’s immediate safety due to her mother’s arrest and by

going out into the cold weather without adequate clothing or a safety seat, which would be

needed if Ms. Jordan were to drive them back home from the store.

       {¶34} We turn next to Ms. Jordan’s argument that her child endangering conviction was

against the manifest weight of the evidence. To make such a determination, this Court:

       [M]ust review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d at 387. The appellate court should only exercise its power to reverse a
                                                14


judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340. “While the test for

sufficiency requires a determination of whether the state has met its burden of production at trial,

a manifest weight challenge questions whether the state has met its burden of persuasion.” State

v. Carr, Summit No. 26661, 2014-Ohio-806, ¶ 28, quoting State v. Adams, 9th Dist. Summit No.

26009, 2012-Ohio-4382, ¶ 8.

        {¶35} The State relied upon Deputy Menefee’s testimony to establish the basis for Ms.

Jordan’s child endangering charge. She testified that she charged Ms. Jordan due to the fact that

the child was present when Ms. Jordan participated in the theft. Because the child was present,

according to Deputy Menefee, Ms. Jordan chanced her daughter’s placement with Children’s

Services when she was arrested. She further testified that she also based the child endangering

charge on the fact that Ms. Jordan left the store without the necessary items with which to care

for her daughter. The State argues that this testimony demonstrates the presence of a substantial

risk to the child’s health and safety.

        {¶36} While Deputy Menefee based the child endangering charge in part on the fact that

Ms. Jordan left the store without any supplies for her infant, she acknowledged on cross-

examination that she did not know that Mr. Phillips had asked Ms. Jordan to leave the store. Mr.

Phillips testified that he asked Ms. Jordan and the rest of the group to leave the store because she

was “get[ting] loud.” Deputy Menefee further testified that Target took possession of the

infant’s carrier and blanket because it was in the cart that Ms. Jordan’s niece attempted to push

outside the store’s doors. She acknowledged that the store would not release those items to

anyone as they were evidence of the crime. Deputy Menefee’s testimony reveals that her

decision to charge Ms. Jordan with child endangering was made without knowledge of all the
                                                  15


relevant facts. Most importantly, she was not aware that Mr. Phillips asked Ms. Jordan to leave

the store.

        {¶37} We are mindful that the weight to be given the evidence is primarily within the

province of the jury. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). However, Deputy

Menefee’s testimony exposes the fact that she based the child endangering charge in part on

incomplete information. This Court cannot say, in this instance, that the jury was correct in

crediting her testimony in convicting Ms. Jordan. “Credibility, intelligence, freedom from bias

or prejudice, opportunity to be informed, the disposition to tell the truth or otherwise, and the

probability or improbability of the statements made, are all tests of testimonial value.”

(Emphasis added.) State v. Parish, 5th Dist. Stark No. 2013CA00141, 2014-Ohio-1410, ¶ 27,

quoting Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Deputy Menefee’s testimony lacked

facts that were critical to make an informed decision whether or not Ms. Jordan’s acts violated a

duty of care constituting a substantial risk to the health and safety of her child.

        {¶38} Further, this Court notes that neither Deputy Menefee nor the other deputies

testified that the child’s physical safety was ever at risk during the crime itself. There was no

evidence that the child was in distress, neglected or abandoned at any time during or after the

theft or Ms. Jordan’s complicity therein. While we cannot condone Ms. Jordan’s actions, which

occurred in the presence of her four-month-old infant and utilized the baby’s supplies to conceal

stolen merchandise, we conclude that the connection between the risk of potential placement

with Children’s Services and the existence of a substantial risk to the child’s health and safety is

too tenuous and speculative to support Ms. Jordan’s conviction for child endangering. There was

no evidence that Ms. Jordan’s actions during the complicity in theft constituted a substantial risk

to the health or safety of her child. Deputy Menefee’s testimony demonstrated that the risk that
                                                 16


the child would be placed in the custody of Children’s Services was speculative as that

determination was made by that agency rather than by the investigating deputies. Her testimony

revealed that being arrested does not automatically result in Children’s Services taking custody

of the child; it just means that a referral is made to the agency. Further, the potential for a

parent’s arrest cannot form the sole basis for a finding of substantial risk. See State v. Allen, 140

Ohio App.3d 322, 325 (1st Dist.2000) (concluding that father’s arrest, while leaving seven-year

old home alone for two minutes while he walked down the street to borrow butter, was an

unexpected intervening event which did not demonstrate that he acted recklessly or created a

substantial risk to the child.).

        {¶39} After a careful review of the entire record, this Court concludes that this is the

exceptional case where the jury clearly lost its way resulting in a manifest injustice. The State

had to prove that there was a strong possibility that the health or safety of Ms. Jordan’s child was

at risk when she violated a duty of care, protection, or support.            R.C. 2919.22(A) and

2901.01(A)(8). The State did not satisfy its burden of persuasion with competent evidence to

establish these elements. Accordingly, we conclude that Ms. Jordan’s conviction for child

endangering was against the manifest weight of the evidence.

Obstructing Official Business

        {¶40} Ms. Jordan was convicted of violating Revised Code Section 2921.31(A), which

states that “[n]o person, without privilege to do so and with purpose to prevent, obstruct, or delay

the performance by a public official of any authorized act within the public official’s official

capacity, shall do any act that hampers or impedes a public official in the performance of the

public official’s lawful duties.” The Ohio Supreme Court has held that “[t]he making of an

unsworn false oral statement to a public official with the purpose to mislead, hamper or impede
                                               17


the investigation of a crime is punishable conduct within the meaning of R.C. * * * 2921.31(A).”

State v. Lazzaro, 76 Ohio St.3d 261 (1996), syllabus. This Court has concluded that, in order to

have sufficient evidence to affirm an obstruction of official business conviction, there must be

evidence that the defendant’s actions hampered or impeded a law enforcement investigation and

that the defendant intended such a result to occur. See State v. Purdue, 9th Dist. Summit No.

25766, 2012-Ohio-689, ¶ 18.

        {¶41} Sergeant Hunt testified that he was the first officer to arrive on the scene. After

Mr. Phillips gave him a “quick synopsis” of what occurred at the store, he drove around in an

attempt to locate “four black females with a baby” in the immediate vicinity. Sergeant Hunt

noticed a group matching that description at a nearby restaurant. He approached Ms. Jordan and

asked her if she was just at the Target store, to which she answered, “[n]o.” According to

Sergeant Hunt, he next inquired how the group got to the restaurant, and Ms. Jordan replied that

they arrived via bus. Based on her answers, which he believed to be untruthful, he detained the

group in his police cruiser until the deputies could further investigate what had happened earlier

at the store.

        {¶42} Viewing the evidence in a light most favorable to the prosecution, this Court

concludes that there was sufficient evidence from which a rational trier of fact could have found

that the State proved beyond a reasonable doubt that Ms. Jordan violated Revised Code Section

2921.31(A). The evidence offered by the State supports a conviction that Ms. Jordan falsely told

Sergeant Hunt that she neither drove to the store nor that she was at the store. Given the

testimony about what occurred at the store and what was discovered in the trunk of the car, it is

reasonable to infer that she did not want the deputies to know that she was connected to either in

any way. Further, Sergeant Hunt’s testimony demonstrated that her false answers impeded the
                                                 18


investigation as he had to detain the group pending further confirmation of what occurred earlier

at the store.

        {¶43} We turn next to Ms. Jordan’s argument that her conviction is against the manifest

weight of the evidence. Ms. Jordan argues that her conviction for obstructing official business is

against the manifest weight of the evidence because she “arguably gave incorrect information” to

Sergeant Hunt and that she did not undertake any affirmative acts to hamper or impede the

investigation.

        {¶44} Ms. Jordan testified in her own defense at trial. Her testimony conflicts with

Sergeant Hunt’s testimony on the circumstances of their encounter. According to Ms. Jordan,

after the group was asked to leave Target, they went to the restaurant to call her niece’s mother

and to wait for her to arrive. She testified that Sergeant Hunt asked each member of the group

whether they were all together. Her niece’s friend told him “[m]aybe, maybe not,” her one sister

did not answer, and her other sister stated that they were not together. According to Ms. Jordan,

she told the group to stop lying. She denies that she told Sergeant Hunt that she took the bus to

the restaurant. Ms. Jordan testified that she told him that they arrived in a four-door car, but that

she could not remember the make and model because she did not own the car.

        {¶45} “A jury is free to believe or reject the testimony of each witness, and issues of

credibility are primarily reserved for the trier of fact.” State v. Wilson, 9th Dist. Summit No.

26683, 2014-Ohio-376, ¶ 31, quoting State v. Rice, 9th Dist. No. 26116, 2012-Ohio-2174, ¶ 35.

“A conviction is not against the manifest weight because the jury chose to credit the State’s

version of the events.” Id., quoting State v. Minor, 9th Dist. Summit No. 26362, 2013-Ohio-558,

¶ 28. Based on our review of the record, this Court cannot say that the jury clearly lost its way in
                                                19


crediting the testimony of Sergeant Hunt over Ms. Jordan’s testimony on the issue of what she

told him.

       {¶46} Ms. Jordan’s fourth assignment of error is overruled. Her fifth assignment of

error is sustained solely on the basis that her conviction for child endangering was against the

manifest weight of the evidence.

                                                III.

       {¶47} Ms. Jordan’s fifth assignment of error is sustained insofar as her conviction for

child endangering was against the manifest weight of the evidence. Her remaining assignments

of error are overruled. The judgment of the Barberton Municipal Court is affirmed in part,

reversed in part, and the cause is remanded for a new trial.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Barberton

Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                  20


       Costs taxed equally to both parties.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



WHITMORE, J.
CONCURS.

CARR, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶48} I concur in the majority’s resolution of the first, second, and third assignments of

error in full. I further agree with respect to the fourth assignment of error that, while the State

presented sufficient evidence regarding the charge of child endangering, Jordan’s conviction for

that offense was against the manifest weight of the evidence. I dissent from the majority’s

conclusion, however, that Jordan’s conviction for obstruction of official business was supported

by sufficient evidence. Accordingly, I dissent from that portion of the opinion.

       {¶49} I agree with the majority’s recitation of the elements of the charge of obstruction

of official business. R.C. 2921.31(A). “Every defendant is entitled to the unqualified right to

have the prosecution prove every element of the offense charged beyond a reasonable doubt. If

the state is not able to do so, the accused is entitled to an acquittal.” State v. Kilby, 50 Ohio St.2d

21, 24 (1977). The State, therefore, must prove both that Jordan acted with purpose to hamper

the investigation and that her actions in fact hampered the investigation. See State v. Perdue, 9th

Dist. Summit No. 25766, 2012-Ohio-689, ¶ 18. In this case, I believe that the State failed to

present any evidence to establish that Jordan’s false statement to Sergeant Hunt impeded the

investigation. Although he testified that he had to detain the group involved in the incident
                                               21


pending confirmation of his suspicions, the police would have detained the group irrespective of

Jordan’s false statement. The police already believed that they had apprehended the proper

suspects; that belief formed the basis of their continued detention. In the absence of any

evidence showing how the investigation was actually hampered, I would conclude that Jordan’s

conviction for obstruction of official business was not supported by sufficient evidence. I would,

therefore, reverse her conviction.


APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

MICHELLE L. BANBURY, Attorney at Law, for Appellee.
