[Cite as State v. Litton, 2016-Ohio-7913.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             PREBLE COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2016-04-005
        Plaintiff-Appellee,                        :
                                                                OPINION
                                                   :            11/28/2016
    - vs -
                                                   :

COBY R. LITTON,                                    :

        Defendant-Appellant.                       :



                     CRIMINAL APPEAL FROM EATON MUNICIPAL COURT
                                 Case No. 2015-CRB-735



Martin P. Votel, Preble County Prosecuting, Kathryn M. West, Preble County Courthouse,
101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee

Wayne C. Staton, 110 North Beech Street, Oxford, Ohio 45056, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Coby R. Litton, appeals from his convictions in the Eaton

Municipal Court for domestic violence and endangering children. For the reasons outlined

below, we affirm.

        {¶ 2} On September 30, 2015, a sergeant with the New Paris Police Department filed

a complaint charging Litton with domestic violence in violation of R.C. 2919.25(A) and
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endangering children in violation of R.C. 2919.22(B)(1), both first-degree misdemeanors.1

According to the complaint, the charges stemmed from allegations that on September 18,

2015, Litton hit his son, A.L., with a rod and threw the child into a wall after A.L. failed to

complete his homework in a timely fashion. This caused A.L. to suffer bruising, some of

which was severe, to his buttocks, torso, leg, and forehead. The complaint further stated that

Litton acknowledged spanking A.L. once, "but claimed it was with a wooden spoon and that

he hadn't seen any bruises because A.L. takes a bath by himself[.]" At the time of the

alleged offense, A.L. was eight years old.

        {¶ 3} The matter ultimately proceeded to a one-day bench trial held on January 22,

2016. During trial, the trial court heard testimony from Cynthia Snyder, a social worker with

Preble County Job and Family Services, A.L., and Litton, among others. As part of this

testimony, Snyder testified that she interviewed A.L. on two occasions, once on September

21, 2015 and again on September 25, 2015. According to Snyder, during both of these

interviews, A.L. told her Litton had "spanked" him with a rod, threw him into the wall, and

dumped toys over his head after A.L. had "difficulty with his homework."

        {¶ 4} Snyder's testimony was similar to A.L.'s own trial testimony. A.L. testified that

Litton got mad and "spanked" him on his buttocks and legs with his hand, a rod, and a fishing

pole because he took too long to finish his homework. A.L. also testified Litton then "grabbed

me up by my hand and slammed me against the wall" and "threw toys on me." It is

undisputed that the prosecuting attorney did not provide Litton with a recording of the

September 21, 2015 interview as part of its responses to Litton's discovery requests.

Furthermore, when asked why a recording was not provided to the prosecuting attorney,




1. Litton claims the complaint omitted the subsection he was charged with under R.C. 2191.22, the endangering
children statute. The record does not support Litton's contention for the complaint explicitly states that the
endangering children charge was brought pursuant to R.C. 2919.22(B)(1).
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Snyder testified that they "do not make a hard copy of every interview we conduct," but that

one could be made available. Litton's trial counsel declined Snyder's offer for a copy and

proceeded with his cross-examination, albeit over his objection.

       {¶ 5} On March 7, 2016, the trial court issued a written decision finding Litton guilty

as charged. In so holding, the trial court determined that "[A.L.'s] testimony was consistent

with that he told [Snyder] on two occasions, his grandmother, and hospital personnel." The

trial court also stated that "[f]or a child of [A.L.'s] age to describe how he got those bruises so

consistently on many occasions and over a period of several months is compelling and

convincing." Implicit within this holding is the trial court's determination that Litton's testimony

that A.L. may have suffered his injuries as a result of wrecking his bicycle lacked credibility.

The same is true regarding Litton's claim that A.L.'s injuries were the result of permissible

parental discipline resulting from Litton spanking A.L. once with a wooden spoon.

       {¶ 6} On March 21, 2016, two weeks after the trial court issued its decision, Litton

filed a motion for a new trial pursuant to Crim.R. 33(A)(2) alleging that both the prosecuting

attorney and Snyder engaged in misconduct by failing to provide him with a recording of the

September 21, 2015 interview between Snyder and A.L. According to Litton, this prejudiced

his defense since he was unable to cross-examine A.L. regarding any inconsistencies he

may have made during this initial interview. Litton also argued that he should be granted a

new trial pursuant to Crim.R. 33(A)(4) since the trial court's verdict was not supported by

sufficient evidence.

       {¶ 7} On April 14, 2016, the trial court issued a decision denying Litton's motion for a

new trial. In so holding, the trial court stated that it had "listened to all of the evidence and

found no other explanation for the bruises and so forth to [A.L.]." The trial court further stated

that "[i]t's not a personal thing it's a matter of what the evidence is and how the evidence was

presented that led the [c]ourt to that decision." After denying Litton's motion, the trial court
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sentenced Litton to serve 90 days in jail, 75 days of which were suspended, ordered him to

pay a total fine of $300, and placed him on two years of probation. Litton now appeals from

his convictions, raising three assignments of error for review.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE STATE COMMITTED REVERSIBLE ERROR BY FAILING TO DISCLOSE

[A.L.'s] INITIAL INTERVIEW WITH CYNTHIA SNYDER BEFORE TRIAL.

       {¶ 10} In his first assignment of error, Litton argues the state violated Crim.R. 16(B)(7)

by failing to provide him with a recording of the September 21, 2015 interview between

Snyder and A.L. as part of its responses to his discovery requests. We disagree.

       {¶ 11} Crim.R. 16 governs discovery in a criminal case. State v. Hebdon, 12th Dist.

Butler Nos. CA2012-03-052 and CA2012-03-062, 2013-Ohio-1729, ¶ 47. As part of that rule,

Crim.R. 16(B)(7) requires the disclosure of "[a]ny written or recorded statement by a witness

in the state's case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal."

However, as noted by the Ohio Supreme Court, a violation of Crim.R. 16 constitutes

reversible error "only when there is a showing that (1) the prosecution's failure to disclose

was a willful violation of the rule, (2) foreknowledge of the information would have benefited

the accused in the preparation of his defense, and (3) the accused suffered some prejudicial

effect." State v. Joseph, 73 Ohio St.3d 450, 458 (1995), citing State v. Parson, 6 Ohio St.3d

442, 445 (1983). In this context, the term "willful" has been said to involve "intent, purpose or

design to injure." State v. Bowshier, 2d Dist. Clark No. 06-CA-41, 2007-Ohio-5364, ¶ 31.

       {¶ 12} As noted above, prior to trial, it is undisputed that the prosecuting attorney did

not provide Litton with a recording of the September 21, 2015 interview between A.L. and

Snyder. However, Litton's trial counsel explicitly stated that he could not place any blame on

the prosecuting attorney for that failure "because apparently, uh, the witness did not tell

them" so "I'm gonna move on[.]" As a result, while it certainly would have been better
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practice for Snyder to inform the prosecuting attorney of this interview so that the prosecuting

attorney could then disclose this interview to Litton prior to trial, this nondisclosure falls short

of what could be considered a willful violation of the prosecuting attorney's duties under

Crim.R. 16(B)(7). Rather, we believe this is something that was merely inadvertent and

unintentional. Again, as Snyder even testified, they "do not make a hard copy of every

interview we conduct," but that one could be made available.

       {¶ 13} Moreover, as the record reveals, Litton's trial counsel made no attempt to ask

for a continuance so that he could review the recording of the September 21, 2015 interview

even after Snyder offered to provide him with a copy. Instead, albeit over his objection,

Litton's trial counsel "moved on" and continued his cross-examination regarding A.L.'s

statements during both the September 21, 2015 and September 25, 2015 interviews,

statements that, just as the trial court found, remained generally consistent throughout.

Specifically, that Litton had caused A.L.'s injuries by hitting him with various objects multiple

times, throwing him into a wall, and dumping toys over his head. Therefore, even if the

prosecuting attorney could be said to have willfully violated its duties under Crim.R. 16(B)(7),

Litton still cannot show that foreknowledge of the September 21, 2015 interview would have

benefitted him in the preparation of his defense in any way, nor can Litton establish that he

suffered any resulting prejudice therefrom. Accordingly, while we caution the prosecuting

attorney to avoid similar situations in the future, we nevertheless find Litton's first assignment

of error to be without merit and overrule the same.

       {¶ 14} Assignment of Error No. 2:

       {¶ 15} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR

A NEW TRIAL.

       {¶ 16} In his second assignment of error, Litton argues the trial court erred by denying

his motion for a new trial raised pursuant to Crim.R. 33(A)(2) and (A)(4). We again disagree.
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               Standard of Review for Crim.R. 33 Motion for a New Trial

       {¶ 17} "Crim.R. 33 motions for a new trial are not to be granted lightly." State v.

Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 21, citing City of

Toledo v. Stuart, 11 Ohio App.3d 292, 293 (6th Dist.1983). The decision to grant or deny a

motion for a new trial pursuant to Crim.R. 33 rests within the sound discretion of the trial

court. State v. Hoop, 12th Dist. Brown No. CA2012-10-019, 2013-Ohio-3078, ¶ 11. An

abuse of discretion implies that the court's decision was unreasonable, arbitrary, or

unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio

St.3d 57, 2006-Ohio-160, ¶ 130.

  Crim.R. 33(A)(2): Misconduct of Prosecuting Attorney or Witnesses for the State

       {¶ 18} Pursuant to Crim.R. 33(A)(2), a new trial may be granted when the prosecuting

attorney or witnesses for the state engaged in misconduct that materially affected the

defendant's substantial rights. This inquiry consists of a two-step determination. State v.

Jalowiec, 9th Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 48. "The first determination

is whether misconduct actually occurred, and the second is whether that misconduct

materially prejudiced the defendant's substantial rights." Id. Misconduct will generally not be

grounds for reversal unless the misconduct is so pervasive as to deprive the defendant of a

fair trial. State v. Chambers, 12th Dist. Butler No. CA2006-07-178, 2007-Ohio-4732, ¶ 39.

       {¶ 19} Similar to his argument raised in his first assignment of error, Litton claims that

both prosecuting attorney and Snyder engaged in misconduct by failing to disclose the

existence of a recording of the September 21, 2015 interview between Snyder and A.L.

However, as noted above, we find this nondisclosure was something that can be classified as

merely inadvertent. Furthermore, even after learning of its existence, Litton's trial counsel

never requested a continuance to review the recording, nor did he accept Snyder's offer to

provide him with a copy of the recording. Under these circumstances, we simply cannot say
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that either the prosecuting attorney or Snyder engaged in misconduct that materially

prejudiced Litton's substantial rights. Litton's claim otherwise lacks merit.

            Crim.R. 33(A)(4): Verdict Not Sustained by Sufficient Evidence

       {¶ 20} Pursuant to Crim.R. 33(A)(4), a new trial may be granted where "the verdict is

not sustained by sufficient evidence or is contrary to law." Although technically distinct from a

Crim.R. 29 motion for acquittal, a motion for a new trial raised under Crim.R. 33(A)(4)

"nonetheless tests the legal sufficiency of the conviction." State v. Vitantonio, 11th Dist. Lake

No. 2012-L-144, 2013-Ohio-4100, ¶ 9; State v. Halsell, 9th Dist. Summit No. 24464, 2009-

Ohio-4166, ¶ 24 ("[o]ur concern is the same whether sufficiency is raised in the context of

Crim.R. 33[A][4] or Crim.R. 29"). Thus, Crim.R. 29 and Crim.R. 33(A)(4) motions are

reviewed under the same standard of review. State v. Stephens, 11th Dist. Trumbull No.

2001-T-0044, 2002-Ohio-2976, ¶ 26.

       {¶ 21} The standard of review for a denial of a Crim.R. 29 motion is the same used to

review a sufficiency of the evidence claim. State v. Robinson, 12th Dist. Clermont No.

CA2015-01-013, 2015-Ohio-4533, ¶ 37. When reviewing the sufficiency of the evidence

underlying a criminal conviction, an appellate court examines the evidence in order to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. State v. Intihar, 12th Dist. Warren No.

CA2015-05-046, 2015-Ohio-5507, ¶ 9. The relevant inquiry is "whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt." State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. In other words, "the test for

sufficiency requires a determination as to whether the state has met its burden of production

at trial." State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34, citing

State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 33. When
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evaluating the sufficiency of the evidence, this court must "defer to the trier of fact on

questions of credibility and the weight assigned to the evidence." State v. Kirkland, 140 Ohio

St.3d 73, 2014-Ohio-1966, ¶ 132.

       {¶ 22} As noted above, Litton was convicted of domestic violence in violation of R.C.

2919.25(A) and endangering children in violation of R.C. 2919.22(B)(1). Pursuant to R.C.

2919.25(A), "[n]o person shall knowingly cause or attempt to cause physical harm to a family

or household member." On the other hand, pursuant to R.C. 2919.22(B)(1), no person shall

"abuse" a child. The word "abuse" is not defined by the criminal statutes. State v. Hickman,

8th Dist. Cuyahoga No. 99442, 2013-Ohio-4192, ¶ 19. However, the juvenile statutes define

an "abused child" as one who "'suffers physical or mental injury that harms or threatens the

child's health or welfare.'" Newburgh Hts. v. Cole, 166 Ohio App.3d 826, 2006-Ohio-2463,

¶ 9 (8th Dist.), quoting R.C. 2151.031(D). The term "physical harm" means "any injury,

illness, or other physiological impairment, regardless of its gravity or duration."         R.C.

2901.01(A)(3).

       {¶ 23} Litton argues there was insufficient evidence to support his convictions because

A.L.'s testimony "is not consistent with the injuries he sustained" and more likely the result of

him wrecking his bicycle. However, A.L. specifically testified that the bruising was not caused

by him wrecking his bike. Rather, A.L. testified that his injuries occurred after Litton got mad

and "spanked" him on his buttocks and legs with his hand, a rod, and a fishing pole because

he was taking too long to finish his homework. This included testimony from A.L. that Litton

hit him with the rod so hard that "he broke it on my hiney." A.L. also testified that Litton then

"grabbed me up by my hand and slammed me against the wall" and "threw toys on me."

Pictures of A.L.'s injuries were admitted into evidence showing large, deep colored bruises on

his buttocks, legs, arm, and hand, as well as an abrasion on his forehead. This testimony, if

believed, coupled with the pictures of A.L.'s injuries, was more than sufficient to support
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Litton's convictions for domestic violence and endangering children.

       {¶ 24} Nevertheless, albeit as part of his third assignment of error, Litton argues his

convictions must be reversed because he testified that he merely spanked A.L. one time with

a wooden spoon, thus constituting permissible parental discipline. The trial court clearly

found Litton's claim that he only spanked A.L. once lacked credibility when compared to the

testimony of A.L. As noted above, the trial court found A.L.'s testimony regarding how he

received his injuries was both "compelling and convincing." As the trier of fact is in the best

position to judge the credibility of the witnesses, "we will not disturb the trial court's finding in

regard to which version of events was credible, and which was not." State v. Bonner, 12th

Dist. Butler No. CA2012-09-195, 2013-Ohio-3670, ¶ 13.

       {¶ 25} In order to use parental discipline as a defense, the discipline must be both

proper and reasonable. State v. Zielinski, 12th Dist. No. CA2010-12-121, 2011-Ohio-6535,

¶ 24, citing State v. Suchomski, 58 Ohio St.3d 74, 75 (1991). Taking A.L.'s testimony as

true, we find nothing about Litton's conduct that convinces this court he was engaged in

proper and reasonable parental discipline of A.L. Again, according to A.L.'s testimony, which

the trial court found credible, Litton got mad and hit A.L. with his hand, a rod, and a fishing

pole before throwing him into a wall and dumping his toys over his head after he failed to

complete his homework in a timely fashion. This caused A.L. to suffer bruising, some of

which was severe, to his buttocks, legs, arm, and hand, as well as an abrasion on his

forehead. Litton's reaction to A.L. not completing his homework more quickly was neither

proper, nor reasonable. State v. Luke, 3d Dist. Union No. 14-10-26, 2011-Ohio-4330, ¶ 21

(defining "proper" as "suitable or appropriate" and defining "reasonable" as "not extreme or

excessive"). Therefore, because there was sufficient evidence to support Litton's convictions

for domestic violence and endangering children, the trial court did not err by denying his

motion for a new trial.
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       {¶ 26} In light of the foregoing, having found no merit to any of Litton's claims herein,

Litton's second assignment of error is overruled.

       {¶ 27} Assignment of Error No. 3:

       {¶ 28} APPELLANT'S        CONVICTIONS          FOR   DOMESTIC        VIOLENCE      AND

ENDANGERING CHILDREN ARE BASED UPON LEGALLY INSUFFICIENT EVIDENCE

BECAUSE APPELLANT ENGAGED IN REASONABLE AND PROPER PARENTAL

DISCIPLINE.

       {¶ 29} In his third assignment of error, Litton argues his convictions for domestic

violence and endangering child were not supported by sufficient evidence and were

otherwise against the manifest weight of the evidence. As we have already determined that

there was sufficient evidence to support Litton's convictions when reviewing Litton's second

assignment of error, we will limit our analysis in this assignment of error to whether his

convictions were against the manifest weight of the evidence. After a thorough review of the

record, we find that they were not.

       {¶ 30} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372,

¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

conflicts in the 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.

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.

However, while appellate review includes the responsibility to consider the credibility of

witnesses and the weight given to the evidence, these issues are primarily matters for the
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trier of fact to decide. State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-

5226, ¶ 81. An appellate court will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances when the evidence presented at trial weighs

heavily in favor of acquittal. State v. Blair, 12th Dist. Butler No. CA2014-01-023, 2015-Ohio-

818, ¶ 43.

       {¶ 31} Litton claims his convictions were against the manifest weight of the evidence

because A.L.'s testimony was inconsistent and unreliable since it became "more elaborate

with every telling." Litton also claims his convictions were against the manifest weight of the

evidence since there was testimony A.L. may have received some of his bruising from

wrecking his bicycle. However, as noted above, the trial court heard all of the testimony and

determined that A.L.'s version as to how he received his injuries was "compelling and

convincing." This was well within the trial court's purview as the trier of fact. Moreover,

although faced with conflicting evidence, it is well-established that "a conviction is not against

the manifest weight of the evidence simply because the trier of fact believed the prosecution

testimony." State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.

Therefore, because this is not one of those extraordinary cases where the evidence

presented at trial weighs heavily in favor of acquittal, Litton's third assignment of error is

overruled.

       {¶ 32} Judgment affirmed.


       M. POWELL, P.J., and RINGLAND, J., concur.




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