[Cite as State v. Taylor, 2018-Ohio-4048.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 27731
                                                   :
 v.                                                :   Trial Court Case No. 2017-CRB-36
                                                   :
 LAKISHA R. TAYLOR                                 :   (Criminal Appeal from Municipal Court)
                                                   :
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 5th day of October, 2018.

                                              ...........

NOLAN C. THOMAS, Atty. Reg. No. 0078255, Prosecuting Attorney, City of Kettering,
2325 Wilmington Pike, Kettering, Ohio 45420
      Attorney for Plaintiff-Appellee

JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, P.O. Box 20368, Dayton, Ohio 45420
    Attorney for Defendant-Appellant

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




TUCKER, J.
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       {¶ 1} Defendant-appellant, Lakisha R. Taylor, appeared before the Kettering

Municipal Court on June 7, 2017, for a bench trial on charges of assault, a first degree

misdemeanor pursuant to R.C. 2903.13(A) and (C)(1), and endangering a child, a first

degree misdemeanor pursuant to R.C. 2919.22(B)(1) and (E)(2)(a).            Presenting two

assignments of error, Taylor argues that the trial court found her guilty of assault contrary

to the manifest weight of the evidence; that the State did not introduce sufficient evidence

to prove that she committed assault; and that the trial court lacked subject-matter

jurisdiction to adjudicate the charge of endangering a child, on which the court entered a

verdict of not guilty. Because we find that the evidence presented to the trial court

warranted the verdict on the charge of assault, Taylor’s conviction is affirmed. We further

find, however, that the trial court lacked subject-matter jurisdiction over the charge of

endangering a child; therefore, we vacate the judgment that found Taylor guilty of

endangering a child.

                            I. Facts and Procedural History

       {¶ 2} In December 2016, Taylor was the owner and operator of a day care facility

called “Green Apples Academy,” which was located in Washington Township. Trial Tr.

78:6-78:20 and 94:6-94:16. Among the children receiving day care at the facility were

R.F., who was nearly four years old, and his younger sister, K.F. Id. at 7:20-9:1 and

79:13-80:4.

       {¶ 3} On December 2, 2016, R.F. spit at another child in the facility, apparently not

for the first time.   See id. at 18:11-18:20 and 81:2-84:12.      Taylor testified that she

decided to deter R.F. from spitting at others by threatening to compel him to eat Sriracha
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sauce, a red or reddish-colored, spicy condiment made with chili peppers. Id. at 29:5,

80:5-82:8; see, e.g., Sriracha sauce, https://en.wikipedia.org/wiki/Sriracha_sauce

(accessed Oct. 2, 2018). By Taylor’s account, she intended merely to frighten R.F. with

the prospect that the sauce would “burn [his] mouth,” rather than actually force him to eat

any, but when she approached him with a bottle in hand, R.F. grabbed the bottle and

squeezed it, which dislodged the top and caused some of the sauce to spill onto him.

Trial Tr. 85:10-87:12 and 96:18-102:18. Although Taylor claimed that she and R.F.’s

mother had discussed her intention to use the sauce, R.F.’s mother denied that such a

discussion occurred. Id. at 9:17-11:19, 19:13-21:8 and 80:20-82:8.

       {¶ 4} When R.F.’s mother retrieved him and his sister later that day, she noticed

that R.F.’s shirt “was covered in red.” Id. at 9:21-10:10. The next morning, R.F.’s

mother dropped off his sister at the facility, but not R.F., and proceeded to the Washington

Township substation of the Montgomery County Sheriff’s Office to make a statement. Id.

at 13:12-14:4. A deputy then interviewed Taylor at the facility. Id. at 27:16-28:3. The

deputy testified that Taylor initially told him that she had put some of the sauce directly

into R.F.’s mouth, or at least onto his lips; Taylor testified that the officer lied. Id. at 28:4-

29:1 and 104:1-104:12.

       {¶ 5} On December 7, 2016, R.F. met with a licensed social worker at Dayton

Children’s Hospital.    Id. at 71:2-73:21.     R.F. told the social worker that Taylor had

poured hot sauce into his mouth, causing a burning sensation.1 See id. at 74:4-76:2 and

Ex. 10. Two days afterward, R.F. returned to Dayton Children’s Hospital to be examined



1 R.F. also indicated that some of the sauce came into contact with his eyes. See Trial
Tr., Ex. 10.
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by a pediatric nurse practitioner. Id. at 40:13-42:14. R.F. told the nurse that Taylor had

“hurt his lip” by putting hot sauce in his mouth. Id. at 42:21-44:1. The nurse did not find

signs of physical injury directly traceable to the incident, though she added that she would

not have expected to find signs of an injury caused by hot sauce after one week’s time.

See id. at 44:2-44:13 and 51:21-52:2.

       {¶ 6} Taylor was charged with endangering a child in violation of R.C.

2919.22(B)(1) and assault in violation of R.C. 2903.13(A). Her case was tried to the

bench on June 7, 2017. On June 26, 2017, the trial court entered its “Decision and

Judgment Entry,” in which it found Taylor guilty as charged but determined “that the [c]hild

[e]ndangering offense should be * * * merged into the conviction for [a]ssault.” Decision

& Judgment Entry 6, June 26, 2017.

       {¶ 7} In advance of her sentencing hearing, Taylor filed a memorandum on July

28, 2017, in which she argued that the trial court lacked subject-matter jurisdiction to

adjudicate the charge of endangering a child, and in a reply filed on August 1, 2017, the

State conceded the point, requesting that the trial court dismiss the charge. Instead, at

Taylor’s sentencing hearing on August 21, 2017, the trial court amended its verdict on the

charge to not guilty and sentenced Taylor to a suspended sentence of 180 days in the

Montgomery County Jail on the charge of assault. Taylor timely filed her notice of appeal

to this court on September 12, 2017.

                                        II. Analysis

       {¶ 8} For her first assignment of error, Taylor contends that:

              APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

       WEIGHT      OF    THE    EVIDENCE[,]      AND     THE    EVIDENCE       WAS
                                                                                             -5-


       INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION[.]

       {¶ 9} Taylor challenges her conviction for assault as contrary to the manifest

weight of the evidence, and in the alternative, as not supported by sufficient evidence.

See Appellant’s Br. 2. Specifically, Taylor argues that the evidence did not establish

either that she knowingly caused (or attempted to cause) physical harm to R.F., or that

R.F. actually suffered physical harm. See id. at 2-6. In addition, she faults the trial court

for “fail[ing] to address the [affirmative] defense of parental discipline” in its “Decision and

Judgment Entry” of June 26, 2017. See id. at 6-9.

       {¶ 10} Sufficiency of the evidence “is the legal standard applied to determine

whether * * * the evidence [in a given case] is [adequate] as a matter of law to support

the * * * verdict.” See State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997),

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review

of a challenge to a conviction based upon the sufficiency of the evidence, 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.’ ” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

       {¶ 11} By contrast, in a challenge based on the weight of the evidence, an

“appellate court acts as a ‘thirteenth juror.’ ” State v. Jackson, 2015-Ohio-5490, 63

N.E.3d 410, ¶ 49 (2d Dist.), quoting Thompkins at 387. Accordingly, the appellate court

must review the record; weigh the evidence and all reasonable inferences; consider the

credibility of witnesses; and determine whether in resolving conflicts in the evidence, the

jury clearly lost its way and created a manifest miscarriage of justice warranting a new
                                                                                          -6-

trial. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983); see also State v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717,

¶ 8. A trial court’s “judgment should be reversed as being against the manifest weight of

the evidence ‘only in the exceptional case in which the evidence weighs heavily against

the conviction.’ ” Hill at ¶ 8, quoting Martin at 175.

        {¶ 12} Although the appellate court “must defer to the factfinder’s decisions

whether, and to what extent, to credit the testimony of particular witnesses,” the court

nevertheless “may determine which of several competing inferences suggested by the

evidence should be preferred.”        (Citation omitted.)    State v. Cochran, 2d Dist.

Montgomery No. 27023, 2017-Ohio-216, ¶ 6.            A determination that a conviction is

supported by the manifest weight of the evidence is also dispositive of the issue of the

sufficiency of the evidence, because “a finding that a conviction is supported by the

manifest weight of the evidence necessarily includes a finding of sufficiency.” (Citation

omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11;

State v. Miller, 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, ¶ 48, citing McCrary at

¶ 11.

        {¶ 13} R.C. 2903.13(A) prohibits any person from “knowingly caus[ing] or

attempt[ing] to cause physical harm to another * * *.” In the first part of her argument,

Taylor maintains that the prosecution failed to prove that she caused or attempted to

cause physical harm to R.F. with the requisite mens rea—“knowingly.” Appellant’s Br.

2. A person “acts knowingly,” pursuant to the definition set forth in R.C. 2901.22(B),

“when [she] is aware that [her] conduct will probably cause a certain result or will probably

be of a certain nature.” Proof of knowledge is often circumstantial. See, e.g., State v.
                                                                                             -7-

Bowshier, 167 Ohio App.3d 87, 2006-Ohio-2822, 853 N.E.2d 1210, ¶ 60-68 (2d Dist.);

City of Huber Heights v. Gilreath, 2d Dist. Montgomery Nos. 19234 & 19235, 2002-Ohio-

4334, ¶ 25; State v. Whitmore, 8th Dist. Cuyahoga No. 56411, 1989 WL 150995, *1 (Dec.

14, 1989).

       {¶ 14} Here, Taylor herself testified that she sought to discourage R.F.’s

inappropriate expectorations by “intimidat[ing] him with the hot sauce bottle” and telling

him that the sauce would “burn [his] mouth.” Trial Tr. 84:14-85:6 and 97:9-97:16. She

also expressed her belief that ingestion of hot sauce could “harm [a child] if [he] were to

swallow it” or if it were to come into contact with his eyes. See id. at 98:11-99:3. Thus,

we hold that Taylor’s own testimony provided the trial court with evidence sufficient to

support a finding that she acted with the requisite mens rea.

       {¶ 15} In the second part of her argument, Taylor posits that in the absence of an

objectively observable physical injury, the pain R.F. experienced as a result of his

exposure to the Sriracha sauce should not be deemed a “physical injury” for purposes of

R.C. 2903.13(A). See Appellant’s Br. 5. She notes, in this respect, that the “hot sauce

at issue herein is a product specifically designed and intended to be ingested through the

mouth,” meaning that the “sensation of heat” produced by consumption of the sauce

should not “be classified as [an] injury or physiological impairment.” Id. According to

Taylor, her position is supported by our opinion in State v. Hill, 2d Dist. Montgomery No.

20678, 2005-Ohio-3701. Id., quoting Hill at ¶ 34.

       {¶ 16} The term “physical harm to persons” is defined by R.C. 2901.01(A)(3) as

“any injury, illness, or other physiological impairment, regardless of its gravity or duration.”

In Hill, we considered whether a “punch [to the] gut” constituted “physical harm,” for
                                                                                               -8-

purposes of the assault statute, under the foregoing definition. See Hill at ¶ 14-22 and

34. We “conclude[d] that a pain-inducing blow is sufficient to satisfy the ‘physical harm’

element of [a]ssault.”     Id. at ¶ 34.    Though we remarked further that we were “not

prepared to hold that any discomfort, however trivial,” would qualify as “physical harm,”

Taylor’s quotation of this remark in isolation from its context is misleading.               See

Appellant’s Br. 5. Notwithstanding our disinclination to hold that “any discomfort” would

qualify as “physical harm,” we indicated that on the record then before us, the trial court

had been presented with evidence justifying its finding that the “punch to [the victim’s]

‘gut’ was sufficiently painful” to constitute physical harm. Hill at ¶ 34. In other words,

contrary to the premise of Taylor’s argument, we decided in Hill that pain of sufficient

intensity can constitute physical harm and thereby satisfy the “physical harm” element of

assault pursuant to R.C. 2903.13(A). Consequently, we hold that the trial court in the

instant case received sufficient evidence to support its finding that R.F. suffered physical

harm.

        {¶ 17} Additionally, Taylor criticizes the trial court for failing “to address the defense

of parental discipline.” Appellant’s Br. 9. For her part, Taylor fails to acknowledge that

parental discipline is an affirmative defense for which she bore the burden of proof. State

v. Thompson, 2d Dist. Miami No. 04 CA 30, 2006-Ohio-582, ¶ 33; State v. Royster, 2d

Dist. Montgomery No. 25870, 2015-Ohio-3608, ¶ 25, fn.3, quoting Thompson at ¶ 33; see

Appellant’s Br. 6-9. Taylor did not raise the defense before the trial court—she declined

to make an opening statement, made an oral motion under Crim.R. 29 at the close of the

State’s case “without argument,” and did not refer to the defense in her closing statement

or in her sentencing memorandum of July 28, 2017. See Trial Tr. 9:9-9:15, 76:11-77:2
                                                                                          -9-


and 106:17-111:21. As a result, Taylor has waived her right to assert the defense on

appeal. State v. Castro, 2d Dist. Montgomery No. 14398, 1995 WL 558782, *15 (Sept.

20, 1995); State v. White, 10th Dist. Franklin No. 06AP-607, 2007-Ohio-3217, ¶ 20; State

v. Pimental, 8th Dist. Cuyahoga No. 84034, 2005-Ohio-384, ¶ 34.

       {¶ 18} We find that the State presented sufficient evidence with respect to each of

the elements of assault under R.C. 2903.13(A) to prove Taylor’s guilt. Furthermore, we

find that the trial court did not clearly lose its way in evaluating the evidence. Taylor’s

first assignment of error is overruled.

       {¶ 19} For her second assignment of error, Taylor contends that:

              THE COURT DID NOT HAVE JURISDICTION OF [SIC] THE CHILD

       ENDANGERING CHARGE[,] AND IT WAS ERROR TO MERGE THAT

       CHARGE WITH THE ASSAULT[.]

       {¶ 20} Finally, Taylor argues that because the trial court lacked jurisdiction to try

her on the charge of endangering a child under R.C. 2919.22(B)(1), this “case should be

remanded for the court to enter a dismissal.” Appellant’s Br. 10. The State agrees that

the trial court lacked jurisdiction but argues that because the court found Taylor not guilty

of the offense, the error “was harmless.” Appellee’s Br. 10-11.

       {¶ 21} Pursuant to R.C. 2151.23(A)(6), the “juvenile court has exclusive original

jurisdiction” to “hear and determine all criminal cases in which an adult is charged with a

violation of * * * division (B)(1) of section 2919.22” of the Revised Code. The trial court,

then, did not have jurisdiction to adjudicate the criminal complaint against Taylor for

endangering a child. Given that a “judgment rendered by a court lacking subject matter

jurisdiction is void ab initio,” we sustain Taylor’s second assignment of error. State v.
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Schooler, 2d Dist. Greene No. 2003 CA 65, 2004-Ohio-2430, ¶ 16, citing State v. Saxon,

4th Dist. Highland No. 02 CA 15, 2003-Ohio-1199, ¶ 25.

                                      III. Conclusion

       {¶ 22} We hold that the trial court received sufficient evidence to find Taylor guilty

of assault under R.C. 2903.13(A), and further, we hold that the trial court did not lose its

way in evaluating the evidence before it. The conviction of assault is affirmed. With

respect to the charge of endangering a child under R.C. 2919.22(B)(1), we hold that the

trial court did not have jurisdiction to try Taylor; therefore, the judgment related to

endangering a child is void and is hereby vacated.



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



WELBAUM, P.J. and DONOVAN, J., concur.



Copies mailed to:

Nolan C. Thomas
James S. Armstrong
Hon. Frederick W. Dressel
