[Cite as State v. Bennett, 2013-Ohio-5524.]

                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )
                                              )    CASE NO.    12 MA 223
        PLAINTIFF-APPELLEE,                   )
                                              )
VS.                                           )    OPINION
                                              )
KATRINA BENNETT,                              )
                                              )
        DEFENDANT-APPELLANT.                  )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from County Court No.
                                                   4, Case No. 12CRB817.


JUDGMENT:                                          Reversed and Vacated.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Paul Gains
                                                   Prosecuting Attorney
                                                   Attorney Ralph Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Attorney Jay Blackstone
                                                   P.O. Box 3412
                                                   Youngstown, Ohio 44513


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                   Dated: December 13, 2013
[Cite as State v. Bennett, 2013-Ohio-5524.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Katrina Bennett appeals the decision of Mahoning
County Court No. 4, finding her guilty of child endangering in violation of R.C.
2919.22(A). Bennett raises a sufficiency of the evidence argument. Specifically, she
contends that the state failed to offer evidence that would prove beyond a reasonable
doubt that she created a substantial risk to the health or safety of the child. For the
reasons expressed below, her conviction and sentence are hereby reversed and
vacated.
                                   Statement of Case and Facts
        {¶2}     In late June 2012, K.B., an eight year old child diagnosed with epilepsy,
Landau-Kleffner syndrome, behavioral optometry, and PDD, which is on the autism
spectrum, was visiting his maternal grandmother Lori Hunter. Tr. 9, 14. During the
visit, Hunter was giving K.B. a bath and noticed bruising on K.B.’s butt, leg and
shoulder, scratches, and what appeared to be rug burn on his back. Tr. 14, 21. She
described the bruising on his butt as being a large hand print. Tr. 15-16.
        {¶3}     Because those injuries alarmed her, she went to her local police
department, Struthers, the next morning. Tr. 17. The Struthers police directed her to
go to the Austintown Police Department; K.B. lives with his mother in Austintown and
it was alleged that the injuries occurred at her home in Austintown. Tr. 18, 99, 131;
State’s Exhibit B - Bennett’s Voluntary Statement to Police. At the Austintown Police
Department Hunter made a statement, an officer took photographs of K.B.’s injuries,
and K.B. was questioned.
        {¶4}     As a result of the statement, questioning, and photographs, Austintown
Police Department asked Bennett and James Lamb, Bennett’s friend, to come to the
station for questioning. Both Bennett and Lamb voluntarily gave statements.
        {¶5}     Bennett indicated that she has asked Lamb to help her discipline K.B.
She explained that Lamb uses military exercises as punishment. These exercises
include an army crawl, and holding a broom while standing against a wall. She
stated on Monday June 25, 2013, Lamb spanked K.B., which consisted of three
swats on the buttock. She further explained that the scratches on K.B.’s stomach
                                                                                       -2-

and arms were from doing the army crawl and the rug burn on his back was probably
from him pushing himself on carpet during one of his temper tantrums.             State’s
Exhibit B.
          {¶6}   Lamb statement indicated that when K.B. gets “out of control”, Lamb
has him “low crawl” 24-30 feet or stand against a wall holding a broom for 30 to 45
seconds. He admitted to spanking K.B. and stated that it happened once. He also
indicated that when K.B. was low crawling, K.B. was scraping his chest/stomach on
the ground. State’s Exhibit C.
          {¶7}   Thereafter, Lamb was charged with child endangering in violation of
R.C. 2919.22(B)(1) and Bennett was charged with child endangering in violation of
R.C. 2919.22(A). 7/13/12 Indictments.
          {¶8}   Lamb and Bennett were tried together before the bench. At trial the
above information, including Lamb and Bennett’s statements and the photograph’s of
K.B.’s injuries, were admitted. Also discussed was K.B.’s behavior. Bennett and
Hunter both indicated that K.B. has temper tantrums. Tr. 11, 115. Hunter explained
that during the tantrums, K.B. tries to hit you and if he cannot get to you he will try to
hurt himself, he calls you names, and also beats his head on the floor. Tr. 30.
Bennett’s testimony confirms that and she also stated that during the tantrums he will
scream “at the top of his lungs,” and spit. Tr. 115-116. During her testimony a video
of one of the tantrums he had on June 25, 2013, the date that the acts which
constituted child endangering occurred, was played. This video confirms that he
does hit himself and others, scream, throw things, and push himself on the carpet a
little.
          {¶9}   Testimony from Lamb and Bennett also indicated on June 25, 2013,
Bennett was at her “wits end” and asked Lamb for help. Tr. 111, 126. K.B. had been
having tantrums almost all day long. Bennett indicated that she had tried the “burrito”
wrap that the doctors had suggested to help him calm down, but that had not worked.
Both Bennett and Lamb indicated that when Lamb arrived at her house, Lamb
spanked K.B., had him stand at the wall with a broom and had him do army crawls.
Tr. 96-97, 103, 136-142.
                                                                                        -3-

       {¶10} Bennett also testified that the bruise on K.B.’s butt had occurred prior to
June 25, 2013 and was the result of falling out of a bounce house and landing on his
butt on the cement sidewalk. Tr. 124.
       {¶11} After hearing all the evidence, the trial court found both Bennett and
Lamb guilty of the charge against them. Bennett was sentenced to 180 days, with
175 days suspended and was ordered to pay a $250 fine plus costs. The court also
indicated that she was only to have supervised visits with K.B.
       {¶12} Bennett appeals from that conviction and sentence.
                                 Assignment of Error
       {¶13} “There was insufficient evidence to sustain Appellant’s conviction under
R.C. 2919.22(A), and therefore the court committed a prejudicial error in not granting
Appellant’s motion for acquittal under Crim.R. 29 (See trial transcript pages 4-76).”
       {¶14} Following the state’s case in chief, Bennett moved for acquittal pursuant
to Crim.R. 29. Tr. 75-76. The trial court denied the motion. Tr. 76.
       {¶15} An appellate court reviews a denial of a motion to acquit under Crim.R.
29 using the same standard it uses to review a sufficiency of the evidence claim.
State v. Rhodes, 7th Dist. No. 99BA62, 2002–Ohio–1572, at ¶ 9; State v. Carter, 72
Ohio St.3d 545, 553, 651 N.E.2d 965 (1995).
       {¶16} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997).      In essence, sufficiency is a test of adequacy.         State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1977). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, 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. Smith at 113.
       {¶17} Bennett was charged with and convicted of child endangering in
violation of R.C. 2919.22(A), which states:
                                                                                      -4-

              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.
       {¶18} Therefore, a successful R.C. 2919.22(A) conviction requires the state to
prove that: (1) a person having custody or control over a child under eighteen years
of age (2) recklessly (3) created a substantial risk to the health or safety of the child
(4) by violating a duty of care, protection, or support. State v. Dillon, 4th Dist. No.
01CA2591, 2013-Ohio-614, ¶ 12.
       {¶19} “R.C. 2919.22(A) is aimed at preventing acts of omission or neglect.”
State v. Newman, 4th Dist. No. 94CA2079 (Aug. 18, 1995), citing State v. Sammons,
58 Ohio St.2d 460, 391 N.E.2d 713 (1979), and State v. Kamel, 12 Ohio St.3d 306,
308, 466 N.E.2d 860 (1984). Therefore, “[i]t 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).” Kamel at 308. “[A]n 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).”
Id. at 309.
       {¶20} The allegation in this case is that Bennett failed to stop the military
exercises and spanking and that this resulted in a substantial risk to K.B.’s health or
safety. Bennett focuses on the substantial risk language and insists that the state did
not provide evidence to show substantial risk.
       {¶21} R.C. 2901.01(A)(8) defines “substantial risk” as “a strong possibility, as
contrasted with a remote or significant possibility, that a certain result may occur or
that certain circumstances may exist.”
       {¶22} During the state’s case in chief, Hunter, K.B.’s grandma, testified.
Detective-Sergeant Jordan Yacovone testified.       Photographs of the injuries were
                                                                                  -5-

discussed and admitted into evidence, and the voluntary statements of Bennett and
Lamb were discussed and admitted into evidence.
       {¶23} Hunter testified that doctors had instructed her and Bennett that when
K.B. is having a temper tantrum to place him in a submissive hold and that would
help calm him down. Tr. 11-12, 39. Bennett, during her testimony, acknowledged
that she had been instructed as such. Tr. 126. The photographs of K.B.’s injuries
were discussed during the grandmother’s testimony. She explained that there were
scratches over his body and that the bruise on his bottom was in the shape of a large
handprint. Tr. 21. Hunter testified that Bennett had told her that the bruise on K.B.
butt was from falling out a bounce house. Tr. 24. She also indicated that during
K.B.’s temper tantrums he does not throw himself on the floor and push himself
around. Tr. 32. Therefore, she was asserting that the injury on K.B.’s back that
looked like rug burn was not caused by actions taken by K.B. during a temper
tantrum.
       {¶24} The photographs show some scratches on the child’s belly and arms,
bruising on his buttock, knee and arms, and what appears to be rug burn on the
child’s back. State’s Exhibit A and A-1.
       {¶25} During Detective Sergeant Yacovone’s testimony, the voluntary
statements from Bennett and Lamb were discussed. In Bennett’s statement, she
acknowledged that she asks Lamb to help her with discipline, which he does. She
stated that Lamb administers a military style discipline, such as making K.B. army
crawl or stand against a wall and hold a broom. She also admitted that on the day in
question, Lamb did spank K.B. on the buttock, which consisted of three swats. She
indicated that the scratches on K.B’s stomach/chest were from the army crawling and
that the rug burn on his back was from pushing himself across the carpet during one
of his temper tantrums. State’s Exhibit B. Her statement did not indicate what made
the bruise on K.B.’s butt.
       {¶26} In Lamb’s statement, he indicated that when K.B. “gets out of control”
he has him army crawl for 24-30 feet or makes him sit up against the wall for 30-40
seconds or makes him stand and hold a broom outward for 30-45 seconds. Lamb
                                                                                      -6-

explained that when K.B. was army crawling, he was scraping his chest and stomach
on the ground. State’s Exhibit C. Thus, Lamb was suggesting where the scratches
on K.B.’s stomach/chest came from. Lamb also stated that he spanked K.B. on the
butt once.
       {¶27} During cross-examination, Detective Sergeant Yacovone testified that
both Lamb and Bennett told him that they administered the military exercises as
punishment when K.B. was “acting out”, i.e. having a temper tantrum. Tr. 64. When
asked whether he believed this type of discipline is reasonable or effective for an
autistic child, he responded that it was his opinion that this type of discipline is not
reasonable for any child. Tr. 65. However, he qualified that statement by indicating
that he could not “say for a fact” that this type of discipline was unreasonable for an
autistic child because he is not an expert of autistic children. Tr. 65.
       {¶28} The state at oral argument conceded that the military exercises
administered in this case were not enough, by themselves, to meet the statutory
elements. However, it asserted that the exercises should be taken in conjunction
with the spanking. We agree with their concession that the evidence regarding these
military exercise alone is not enough for a reasonable trier of fact to find substantial
risk to the health or safety of the child, thereby violating a duty of protection. These
military exercises are sometimes performed in gym classes and/or for sports training.
Therefore, the only means in which it could be concluded that the element of
substantial right element was met is to view the exercises along with the spanking.
       {¶29} At the outset, it is noted that a parent has a fundamental liberty interest
in the care, custody and management of his or her children. In re D.P., 4th Dist. Nos.
11CA30, 11CA31, 2012–Ohio–3478, ¶ 11. Likewise, spanking is not illegal in Ohio
unless it constitutes corporal punishment that is prohibited under the language in
R.C. 2919.22. See State v. Suchomski, 58 Ohio St.3d 74, 75, 567 N.E.2d 1304
(1991) (the Supreme Court of Ohio has recognized that a parent may use corporal
punishment when disciplining his or her child, as long as they do not cause physical
harm); Glancy v. Spradley, 12th Dist. No. CA2012-02-024, 2012-Ohio-4224, ¶ 12 (a
child who has received corporal punishment is not an abused child so long as that
                                                                                        -7-

corporal punishment is not otherwise prohibited by R.C. 2919.22. That section of the
statute forbids parents from administering corporal punishment that creates a
substantial risk of serious physical harm, or repeatedly administering unwarranted
disciplinary measures to the child when such disciplinary measure would seriously
impair or retard the child's mental health or development.)
       {¶30} Here, Bennett was not the person spanking the child, rather it was
Lamb. While it is true that she asked him to help with discipline, she did not know the
velocity with which Lamb was going to spank the child. This spanking consisted of 3
swats. This is not a situation where she has previously watched him do alleged
excessive punishment and permitted him to continue such behavior. Nor was this a
prolong spanking that she failed to intervene and stop. A spanking that consisted of
three swats with a hand that may have left a bruise on the child’s buttock, even when
viewed in the light most favorable to the prosecution, is not enough, without more
evidence, to show a substantial risk to the health or safety of the child.
       {¶31} That said, we acknowledge that there is testimony that this child is
autistic and has other developmental and/or physical disabilities.              The most
problematic and glaring deficiency in the state’s case is its failure to expand upon
these disabilities and provide an opinion as to how the discipline used created a
substantial risk to the health and safety of this child. Admittedly, the officer did testify
that it was his opinion that this type of discipline was not reasonable, however, he
admitted that he was not an expert on autistic children. Given the facts of this case,
without more evidence as to the effect of these military exercises and a spanking
(which at most left a bruise on the child’s buttock) on this child’s health and safety,
we cannot find that the state has provided sufficient evidence on the element of
substantial risk to the health or safety to the child. Or, in other words, the type of
exercise and a spanking alone, even when viewed in the light most favorable to the
state, does not show a substantial risk, as opposed to a remote or significant
possibility, to the child’s health and safety.
       {¶32} Therefore, for those reasons, the sole assignment of error has merit.
The state did not meet its burden of production as to every element of the offense.
                                                                             -8-

      {¶33} For the foregoing reasons, the judgment of the trial court regarding
appellant’s conviction and sentence are hereby reversed and vacated.



Donofrio, J., concurs.
DeGenaro, P.J., concurs.
