[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Faggs, Slip Opinion No. 2020-Ohio-523.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2020-OHIO-523
              THE STATE OF OHIO, APPELLEE v. FAGGS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Faggs, Slip Opinion No. 2020-Ohio-523.]
Criminal law—Affirmative defenses—Domestic violence and assault—Corporal
        punishment—Reasonable parental discipline is an affirmative defense to a
        charge of domestic violence under R.C. 2919.25(A) or assault under R.C.
        2903.13(A), with the burden of proof resting on the accused pursuant to
        R.C. 2901.05(A)—Court of appeals’ judgment affirmed.
    (Nos. 2018-1501 and 2018-1592—Submitted October 23, 2019—Decided
                                    February 19, 2020.)
  APPEALED from and CERTIFIED by the Court of Appeals for Delaware County,
                        No. 17 CAA 10 0072, 2018-Ohio-3643.
                                   __________________
        FISCHER, J.
        {¶ 1} In this case, we are asked to decide whether reasonable parental
discipline is a component of the physical-harm element in Ohio’s domestic-
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violence and assault statutes or whether it is an affirmative defense to a charge
under those statutes. For the reasons that follow, we hold that reasonable parental
discipline is an affirmative defense and affirm the judgment of the Fifth District
Court of Appeals.
              I. FACTS AND PROCEDURAL BACKGROUND
       {¶ 2} Appellee, the state of Ohio, charged appellant, Clinton D. Faggs III,
with one third-degree-felony count of domestic violence under R.C. 2919.25(A)
and one first-degree-misdemeanor count of assault under R.C. 2903.13(A) for an
incident involving the seven-year-old son of Faggs’s then live-in girlfriend and the
alleged beating Faggs inflicted on the boy for acting out in school.
       {¶ 3} During his bench trial, Faggs’s attorney suggested that the allegations
against Faggs were exaggerated and that his conduct was merely “a reasonable and
necessary exercise of parental discipline and corporal punishment.” The court
found Faggs guilty of both charges and sentenced him to four years of community
control and ordered him to complete 100 hours of community service.
       {¶ 4} Faggs appealed his convictions, arguing in part that the trial court had
erroneously placed the burden of proving reasonable parental discipline on him and
had thereby violated his constitutionally protected “fundamental liberty interest in
raising and controlling his or her child.” 2018-Ohio-3643, ¶ 9-12, 28-30.
       {¶ 5} The Fifth District affirmed the trial court’s judgment, observing that
Faggs had “provide[d] scant authority for the proposition that an individual acting
in loco parentis acquires a full panoply of constitutional rights,” id. at ¶ 32, and
concluding that, so long as the state was required to prove each element of the
underlying offense beyond a reasonable doubt, treating reasonable parental
discipline as an affirmative defense and placing the burden of proving that defense
upon the accused does not violate due process, id. at ¶ 29-35.




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       {¶ 6} Upon Faggs’s motion, the Fifth District certified a conflict between
its decision and the Seventh District Court of Appeals’ decision in State v. Rosa,
2013-Ohio-5867, 6 N.E.3d 57 (7th Dist.).
       {¶ 7} We accepted the cause after determining that a conflict exists on the
following question:


       “In a criminal prosecution of a parent (or an adult acting in loco
       parentis) for domestic violence under R.C. 2919.25(A), where the
       defendant’s acts relate to corporal punishment of a child, does the
       State bear a burden to prove unreasonable parental discipline, or is
       reasonable parental discipline in the nature of an affirmative
       defense?”


154 Ohio St.3d 1476, 2019-Ohio-169, 114 N.E.3d 1204, quoting the court of
appeals’ November 2, 2018 judgment entry.             We also accepted Faggs’s
jurisdictional appeal, in which he set forth one proposition of law involving the
same substantive issue. 154 Ohio St.3d 1476, 2019-Ohio-169, 114 N.E.3d 1205.
We consolidated the two cases for review here. Id.
                                 II. ANALYSIS
       {¶ 8} In addressing the conflict question and proposition of law raised by
Faggs, we must address both Ohio’s domestic-violence statute, R.C. 2919.25(A),
and Ohio’s assault statute, R.C. 2903.13(A). As the briefing and arguments in this
case did, we focus our analysis first on R.C. 2919.25(A) before then turning to R.C.
2903.13(A). We begin with a discussion of our decision in State v. Suchomski, 58
Ohio St.3d 74, 567 N.E.2d 1034 (1991).
       {¶ 9} In Suchomski, this court made the following observations regarding
the right of a parent to discipline his or her child and the meaning of Ohio’s
domestic-violence statute, R.C. 2919.25(A).




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               Nothing in R.C. 2919.25(A) prevents a parent from properly
       disciplining his or her child. The only prohibition is that a parent
       may not cause “physical harm” as that term is defined in R.C.
       2901.01(C). “Physical harm” is defined as “any injury[.]” “Injury”
       is defined in Black’s Law Dictionary (6 Ed. 1990) 785 as “* * * [t]he
       invasion of any legally protected interest of another.” (Emphasis
       added.) A child does not have any legally protected interest which
       is invaded by proper and reasonable parental discipline.


(Brackets and ellipsis in Suchomski.) Id. at 75.
       {¶ 10} As the case before us today illustrates, our observations in
Suchomski caused considerable confusion when it came time for Ohio’s courts of
appeals to apply R.C. 2919.25(A) in situations like this—i.e., when a parent, or
person acting in loco parentis, uses corporal punishment to discipline a child. By
supplying an overly legalistic and technical definition for the word “injury” and
linking that interpretation to the reasonableness of the discipline imposed,
Suchomski at 75, courts were left wondering whether the reasonableness of the
discipline went toward the government’s burden to prove the physical-harm
element or a defendant’s establishment of an affirmative defense.
       {¶ 11} Following Suchomski, many of this state’s appellate courts,
including the court below, held that reasonable parental discipline is an affirmative
defense to a charge of domestic violence under R.C. 2919.25(A), with the defendant
bearing the burden to prove that defense. See Faggs, 5th Dist. Delaware No. 17
CAA 10 0072, 2018-Ohio-3643, ¶ 29; State v. Sellers, 12th Dist. Butler No.
CA2011-05-083, 2012-Ohio-676, ¶ 15; State v. Luke, 3rd Dist. Union No. 14-10-
26, 2011-Ohio-4330, ¶ 21; State v. Vandergriff, 11th Dist. Ashtabula, No. 99-A-
0075, 2001-Ohio-4327, ¶ 15-16; State v. Jones, 140 Ohio App.3d 422, 428-429,




                                          4
                                 January Term, 2020




747 N.E.2d 891 (8th Dist.2000); State v. Hicks, 88 Ohio App.3d 515, 518-520, 624
N.E.2d 332 (10th Dist.1993). The state argues in favor of this interpretation and
asks this court to affirm the decision below.
        {¶ 12} The Seventh District Court of Appeals, however, concluded that
given Suchomski, the reasonableness of the corporal punishment imposed by a
parent is “part of the analysis of the physical harm element” of R.C. 2919.25(A),
with the state having to “prove that the parental discipline was improper and
unreasonable, based upon the totality of the circumstances.” Rosa, 2013-Ohio-
5867, 6 N.E.3d 57, at ¶ 3. Faggs argues that this is the correct interpretation and
asks this court to reverse the Fifth District’s decision in his case.
        {¶ 13} We review this question of law on a de novo basis, State v.
Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 9, and, in the
process, seek to clarify any confusion our decision in Suchomski created.
              A. Reasonableness is not an Element of the Offenses
        {¶ 14} R.C. 2919.25(A) provides that “[n]o person shall knowingly cause
or attempt to cause physical harm to a family or household member.” R.C.
2901.01(A)(3) defines the term “physical harm,” as it relates to people, broadly to
mean “any injury, illness, or other physiological impairment, regardless of its
gravity or duration.”
        {¶ 15} Our goal when interpreting one of Ohio’s criminal statutes—as it is
with any other statute—is to give effect to the legislature’s intent. State v. Jordan,
89 Ohio St.3d 488, 491, 733 N.E.2d 601 (2000). To do this, we start with the text
of the statute. Id. at 492; see also State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-
2121, 767 N.E.2d 242, ¶ 10. When the text of the statute in question is plain and
unambiguous, as is the case here, we give effect to the legislature’s intent by simply
applying the law as written. State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-
2706, 848 N.E.2d 496, ¶ 12. The same goes for statutorily defined terms. Terteling
Bros., Inc. v. Glander, 151 Ohio St. 236, 85 N.E.2d 379 (1949), paragraph one of




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the syllabus (“Where a statute defines terms used therein which are applicable to
the subject matter affected by the legislation, such definition controls in the
application of the statute”).
       {¶ 16} Notably, nothing in either the text of Ohio’s domestic-violence
statute or the definition of “physical harm” indicates that the state must prove, as
Faggs suggests, that the accused’s actions while inflicting corporal punishment
were unreasonable. In fact, by including the phrase, “regardless of its gravity or
duration,” to modify the scope of injuries encompassed by the term “physical harm
to persons,” R.C. 2901.01(A)(3), it seems that just the opposite is true:
reasonableness or unreasonableness is not an element. Instead, to prove the crime
of domestic violence, the state is only required to show that a defendant “knowingly
cause[d] or attempt[ed] to cause physical harm to a family or household member.”
We therefore conclude that proof of unreasonable parental discipline is not a
component of the physical-harm element of R.C. 2919.25(A).
       {¶ 17} In his jurisdictional appeal, Faggs also asks us to consider whether
the same is true with respect to a charge of assault. Ohio defines assault as
“knowingly caus[ing] or attempt[ing] to cause physical harm to another.”
(Emphasis added.) R.C. 2903.13(A). Since the only difference between the
domestic-violence statute and the portion of the assault statute involved here is the
status of the victim (“family or household member” versus “another”), we hold that
the reasonableness or unreasonableness of a parent’s discipline is not a part of the
physical-harm element of this offense either.
       {¶ 18} Having answered these questions, we proceed to consider whether
reasonable parental discipline is an affirmative defense.
          B. Reasonable Parental Discipline is an Affirmative Defense
       {¶ 19} Under Ohio law, there are two types of affirmative defenses: (1)
those “expressly designated,” R.C. 2901.05(D)(1)(a), and (2) those “involving an
excuse or justification peculiarly within the knowledge of the accused, on which




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the accused can fairly be required to adduce supporting evidence,” R.C.
2901.05(D)(1)(b).
        {¶ 20} While some state legislatures have enacted provisions expressly
designating reasonable parental discipline as an affirmative defense, Ohio has not.
See, e.g., Ga.Code.Ann. 16-3-20(3); Ariz.Rev.Stat.Ann. 13-403(1). Consequently,
we must focus on the second type of affirmative defense and decide whether
reasonable parental discipline meets all the elements under R.C. 2901.05(D)(1)(b).
        {¶ 21} For reasonable parental discipline to constitute an affirmative
defense, it must first fit the definition of either an “excuse” or “justification.” R.C.
2901.05(D)(1)(b). The Revised Code does not define those terms, so we give each
its ordinary meaning. State v. Dorso, 4 Ohio St.3d 60, 62, 446 N.E.2d 449 (1983).
Black’s Law Dictionary defines “excuse” as a “reason that justifies an act or
omission or that relieves a person of a duty” or a “defense that arises because the
defendant is not blameworthy for having acted in a way that would otherwise be
criminal.” Black’s Law Dictionary 688 (10th Ed.2014). The word “justification”
is defined as a “lawful or sufficient reason for one’s acts or omissions; any fact that
prevents an act from being wrongful” or a “showing, in court, of a sufficient reason
why a defendant acted in a way that, in the absence of the reason, would constitute
the offense with which the defendant is charged.” Id. at 997. Because reasonable
parental discipline is a defense that would render otherwise unlawful conduct
lawful when there is a sufficient reason for the defendant’s actions, we conclude
that it is a justification. See 4 William Blackstone, Commentaries on the Laws of
England, 120 (Tucker Ed.1803) (“battery is, in some cases, justifiable or lawful:
as [where] one who hath authority, a parent or master, gives moderate correction to
his child, his scholar, or his apprentice”).
        {¶ 22} Next, that justification must be “peculiarly within the knowledge of
the accused.” R.C. 2901.05(D)(1)(b). In cases involving corporal punishment, we
conclude that it is. After all, only the charged parent or person acting in loco




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parentis knows and is able to describe the corrective intent behind the use of
corporal punishment and why he or she felt it necessary to resort to such means,
including, for example, the child’s behavioral history and responses to prior
discipline.
        {¶ 23} Finally, for reasonable parental discipline to serve as an affirmative
defense, it must also be true that “the accused can fairly be required to adduce
supporting evidence.” R.C. 2901.05(D)(1)(b). We think this final element is met
as well, since it is fair to ask the accused to introduce evidence in the form of expert-
witness testimony, lay-witness testimony, or his or her own testimony regarding
the factors and surrounding circumstances discussed above and why the level of
discipline imposed was justified.
        {¶ 24} Because reasonable parental discipline meets all three of R.C.
2901.05(D)(1)(b)’s requirements, we hold that it is an affirmative defense.
                                    C. Due Process
        {¶ 25} As a final matter, Faggs argues that treating reasonable parental
discipline as an affirmative defense violates a defendant’s right to due process by
unconstitutionally placing the burden of proof on the defendant. We disagree.
        {¶ 26} R.C. 2901.05(A) provides that once the state has met its burden of
proof for all the elements of a charged offense, “the burden of proof, by a
preponderance of the evidence, for an affirmative defense other than self-defense,
defense of another, or defense of the accused’s residence * * * is upon the accused.”
        {¶ 27} On numerous occasions, this court and the United States Supreme
Court have decided that allocating the burden of proof in this manner is
constitutional. See State v. Ireland, 155 Ohio St.3d 287, 2018-Ohio-4494, 121
N.E.3d 285, ¶ 40 (lead opinion) (“a state does not violate the Due Process Clause
by requiring the defendant to prove an affirmative defense by a preponderance of
the evidence”); Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53
L.Ed.2d 281 (1977) (“Proof of the non-existence of all affirmative defenses has




                                           8
                                January Term, 2020




never been constitutionally required”); see also Martin v. Ohio, 480 U.S. 228, 107
S.Ct. 1098, 94 L.Ed.2d 267 (1987) (affirming this court’s decision in State v.
Martin, 21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1986), that a prior version of R.C.
2901.05(A) was constitutional).
       {¶ 28} Considering the General Assembly’s choice here and the extensive
precedent suggesting that such a choice comports with due process, we cannot say
that requiring a defendant, like Faggs, to prove the affirmative defense of
reasonable parental discipline by a preponderance of the evidence is
unconstitutional.
                               III. CONCLUSION
       {¶ 29} Accordingly, we hold that reasonable parental discipline is an
affirmative defense to a charge of domestic violence under R.C. 2919.25(A) or
assault under R.C. 2903.13(A), with the burden of proof resting with the accused
pursuant to R.C. 2901.05(A). We therefore resolve the certified conflict in favor
of those district courts of appeals that have found similarly and affirm the judgment
of the Fifth District Court of Appeals in this case.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and FRENCH, DEWINE, and STEWART, JJ., concur.
       KENNEDY and DONNELLY, JJ., concur in judgment only.
                                _________________
       The Tyack Law Firm Co., L.P.A., Jonathan T. Tyack, and Holly B. Cline,
for appellant.
       Melissa A. Schiffel, Delaware County Prosecuting Attorney, and Douglas
N. Dumolt and Kimberly Burroughs, Assistant Prosecuting Attorneys, for appellee.
       Russell S. Bensing, urging reversal for amicus curiae, Ohio Association of
Criminal Defense Lawyers.
                                _________________




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