[Cite as State v. Shannon, 2017-Ohio-31.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. Sheila G. Farmer, P.J.
                                              :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. CT2016-0017
LISA C. SHANNON                               :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Muskingum
                                                  County Court, Case No. 1500221



JUDGMENT:                                         Affirmed in part; reversed in part and
                                                  remanded


DATE OF JUDGMENT ENTRY:                           January 5, 2017

APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

GERALD ANDERSON II                                MILES FRIES
Assistant Prosecuting Attorney                    320 Main Street
27 North Fifth St., P.O. Box 189                  Zanesville, OH 43702
Zanesville, OH 43702-0189
[Cite as State v. Shannon, 2017-Ohio-31.]


Gwin, J.,

        {¶1}    Appellant Lisa C. Shannon [“Shannon”] appeals her convictions for Child

Endangering and Obstructing Official Business after a bench trial in the Muskingum

County Court.

                                        Facts and Procedural History

        {¶2}    Shannon has been a licensed foster parent and a teacher for a number of

years in Muskingum County. “Jane Doe,” a minor child was placed in Shannon’s care in

March 2015, residing in the home with Shannon’s two children, “Eve Doe” and “Adam

Doe.”

        {¶3}    In the summer 2014, Shannon asked Candy Emmert, a Muskingum County

Children Services (“MCCS”) adoption supervisor, if her boyfriend, W. L. would qualify to

be a household member. At that time, Emmert did a background check and due in part

to W.L.’s criminal conviction for a felony of the fourth degree in December of 2002,

Emmert informed Shannon that he would not qualify to become a member of her

household until June of 2017. (T. at 80-83). The background check did not reveal any

domestic violence convictions for W.L. nor any convictions for child abuse or child

endangering. (T. at 97). W.L. has not been accused, or convicted of any offenses

involving physical violence. The felony conviction was not an absolute bar to placement

of children in Shannon’s home. (T. at 98). Nor was the conviction one that would

prohibit W.L. from staying in the home several nights a week. (T. at 84-85). In fact,

MCCS have placed children in the homes of individuals who have been convicted of

felonies in the past. (T. at 99-100).
Muskingum County, Case No. CT2016-0017                                                   3


       {¶4}   Shannon knew that she would not be able to continue as a foster parent if

W.L. lived in the home or if she were to marry him. (T. at 83). Shannon married W. L.

in October 2014.

       {¶5}   On March 13, 2015, Shannon contacted Emmert to inform her of bruising

that she had found on Jane Doe’s buttocks. Shannon indicated that she noticed the

bruising in the morning when she got her up to change the child. Shannon was not sure

how the child got the mark on her bottom. Shannon could only recall that the child had

fallen off the couch and onto some “Mega Blocks.” After reporting this, Shannon called

the doctor's office to schedule a time to bring the child in to be examined.

       {¶6}   Dr. Gerald Tiberio examined Jane Doe on March 16, 2015. (T. at 118).

He was provided with an explanation that the child had fallen off a couch onto some

Mega Blocks. (T. at 118). Dr. Tiberio noted that the bruising had square angles, which

was consistent with blocks causing the bruising; however, due to the intensity of the

bruising he felt concerned and sent the child the Advocacy Center at Nationwide

Children's Hospital.

       {¶7}   Dr. Meagan Letson examined Jane Doe on March 17, 2015. (T. at 41;

44). Dr. Letson ran blood tests to rule out any bleeding disorders that would predispose

the child to bruising easily. Dr. Letson testified that the bruising was very extensive and

on two separate areas of the body which normally do not see accidental bruising or

injury. While Dr. Letson admitted that Jane Doe’s injuries could be accidental, she stated

the location is rare and she testified to a medical degree of certainty that physical abuse

caused the bruising on Jane Doe.
Muskingum County, Case No. CT2016-0017                                                     4


       {¶8}    Krista Decker, a preschool teacher at Zanesville City Schools testified she

worked with Shannon at Zane Grey Elementary for about eight years. On March 25, 2015,

Shannon told her that there was an investigation concerning the child that had been placed

with her. Shannon told Decker that Jane Doe had rolled off the couch and onto a block and

that there were some markings on her. Shannon said nothing about a detective coming

to talk to her nor did she ask her to say to the police that Jane Doe had been at the school.

       {¶9}    Rebecca Bracken, another preschool teacher at Zane Grey Elementary

testified she worked with Shannon and had known her for several months. Shannon told

her of the investigation. Bracken recalled Shannon telling her that one of the foster

children had fallen off the couch, had an emblem of blocks on her and that the child had

been taken to Columbus to check everything out and make sure everything was okay.

Bracken did not remember the entirety of the conversation.          Bracken did remember

Shannon saying that if a detective were to come to school would she let them know that

Shannon had the child with her on that Monday of the week being investigated. Bracken

did not tell the detective that Shannon had Jane Doe with her at school on the day in

question.

       {¶10} Detective Brad Shawger testified that Muskingum County Children Services

referred the matter to him. His investigation included interviews with Shannon, W. L.,

Shannon’s children, Children Services' workers at both Muskingum and Coshocton

counties, and the two teachers at Zane Grey Elementary. He went to Shannon’s home

and took photographs of the Mega Blocks that Shannon said had caused the injuries.

       {¶11} During her interview, Shannon initially stated that W. L. was her boyfriend

but during the course of the interview admitted that they had been married in October
Muskingum County, Case No. CT2016-0017                                                     5


2014. She explained that he does not reside with her full time but does stay there between

one to four days per week. Shannon first told Shawger W.L. had never watched the child

by himself. Shannon initially said that Jane Doe had been at school with her during the

week of the incident. However, she eventually admitted that had not been the case.

Shannon admitted that she had not taken Jane Doe to school and that W. L. had watched

her on Monday, Tuesday, part of Wednesday, part of Thursday, and part of Friday. She

also acknowledged that she had not disclosed to Children Services that she had been

married to W.L.

        {¶12} A complaint was filed against Shannon alleging that she committed Child

Endangering, one count in violation of R.C. 2919.22(A) and another count in violation of R.C.

2919.22(B)(1), misdemeanors of the first degree, two counts of Falsification, in violation of

R.C. 2921.13(A)(3), misdemeanors of the first degree and one count of Obstructing Official

Business, in violation of R.C. 2921.31(A), a misdemeanor of the second degree.

        {¶13} Shannon waived her right to a jury trial. The state dismissed the one count

of Child Endangering in violation of R.C. 2919.22(B)(1) that dealt specifically with child

abuse during the course of the bench trial. (T. at 113).

        {¶14} On March 16, 2016, the Court found Shannon guilty on the remaining count

of Child Endangering and on the count of Obstructing Official Business; Shannon was

found not guilty of both counts of Falsification.

                                        Assignments of Error

        {¶15} Shannon raises three assignments of error,

        {¶16} “I. THE CONVICTION FOR CHILD ENDANGERING WAS NOT

SUPPORTED BY SUFFICIENT EVIDENCE WHEN THE STATE FAILED TO PRODUCE
Muskingum County, Case No. CT2016-0017                                                     6


EVIDENCE THAT THE APPELLANT CREATED A SUBSTANTIAL RISK TO THE

HEALTH OR SAFETY OF A CHILD.

       {¶17} “II. THE CONVICTION FOR OBSTRUCTING OFFICIAL BUSINESS WAS

NOT SUPPORTED BY SUFFICIENT EVIDENCE BECAUSE THE STATE FAILED TO

PRODUCE EVIDENCE THAT A PUBLIC OFFICIAL WAS HAMPERED OR IMPEDED IN

THE PERFORMANCE OF OFFICIAL DUTIES.

       {¶18} “III. THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERT

WITNESS TO TESTIFY TO AN OPINION THAT HAD NOT BEEN DISCLOSED PRIOR

TO TRIAL.”

                                                 I.

       {¶19} In her first assignment of error, Shannon challenges the sufficiency of the

evidence. Shannon further contends her conviction for endangering children is against

the manifest weight of the evidence produced at trial.

       {¶20} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing

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

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶146;

State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.

       {¶21} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by
Muskingum County, Case No. CT2016-0017                                                          7

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89,

684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of the

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

rather than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue, which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in inducing

belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th

Ed. 1990) at 1594.

        {¶22} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting testimony.

Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982). However, an appellate court may not merely substitute its view for

that of the jury, but must find that “‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id.

               “[I]n determining whether the judgment below is manifestly against

        the weight of the evidence, every reasonable intendment and every
Muskingum County, Case No. CT2016-0017                                                    8


       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                            ***

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with

       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶23} In the present case, Shannon was charged with and convicted of child

endangering in violation of R.C. 2919.22(A). R.C. 2919.22(A) provides in relevant part:

              (A) 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…

       {¶24} R.C. 2919.22(A) is aimed at preventing acts of omission or neglect. See,

e.g., State v. Sammons, 58 Ohio St.2d 460, 391 N.E.2d 713(1979), appeal dismissed, 444

U.S. 1008, 100 S.Ct. 655, 62 L.Ed.2d 637(1980); State v. Kamel, 12 Ohio St.3d 306, 308,

466 N.E.2d 860(1984); Committee comment to R.C. 2919.22. Although not stated in R.C.

2919.22, recklessness is the culpable mental state for the crime of child endangering.

State v. O'Brien, 30 Ohio St.3d 122, 508 N.E.2d 144(1987).

       {¶25} Where a defendant is charged with a violation of R.C. 2919.22(A), the
Muskingum County, Case No. CT2016-0017                                                        9


prosecution must prove that the defendant: (1) was the parent, guardian, custodian,

person having custody or control, or person in loco parentis of the subject child; (2)

recklessly created a substantial risk to the health or safety of the child; and (3) created that

risk by violating a duty of protection, care or support.

        {¶26} R.C. 2901.02, provides,

                (C) A person acts recklessly when, with heedless indifference to the

        consequences, the person disregards a substantial and unjustifiable risk

        that the person’s conduct is likely to cause a certain result or is likely to be

        of a certain nature. A person is reckless with respect to circumstances

        when, with heedless indifference to the consequences, the person

        disregards a substantial and unjustifiable risk that such circumstances are

        likely to exist.

        {¶27} The Ohio Supreme Court has defined reckless conduct as,

                Reckless conduct is characterized by the conscious disregard of or

        indifference to a known or obvious risk of harm to another that is

        unreasonable under the circumstances and is substantially greater than

        negligent conduct. Thompson, 53 Ohio St.3d at 104–105, 559 N.E.2d 705,

        adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965);

        see also Black’s Law Dictionary 1298–1299 (8th Ed.2004) (explaining that

        reckless conduct is characterized by a substantial and unjustifiable risk of

        harm to others and a conscious disregard of or indifference to the risk, but

        the actor does not desire harm).

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶34.
Muskingum County, Case No. CT2016-0017                                                    10


       {¶28} To satisfy the second element of a violation of R.C. 2919.22(A),

recklessness must create a "substantial risk" to the health and safety of the child. A

"substantial risk" is "a strong possibility, as contrasted with a remote or significant

possibility, that a certain result or circumstance may occur." R.C. 2901.01(H). See, also,

Kamel, 12 Ohio St.3d 308, 466 N.E.2d 860.

       {¶29} The state’s circumstantial evidence does not prove that Shannon recklessly

violated a duty to protect Jane Doe from abuse or to seek treatment for the abuse. The

culpability element of a violation of R.C. 2919.22(A) is recklessness, which is the disregard

of a known risk. Therefore, for Shannon to have recklessly violated a duty to protect Jane

Doe from abuse, she had to either know of the abuse and do nothing or be reckless in not

discovering the abuse.

       {¶30} In the case at bar, the state infers that W.L. caused Jane Doe’s injuries.

The state further infers that Shannon was reckless in leaving the child alone with W.L.

because the “rules” prohibited W.L. from becoming a member of Shannon’s household

until 2017 and because he has a fourth degree felony conviction from June 2002.

       {¶31} The state presented no evidence that W.L. had abused or endangered any

child in the past. The state presented no evidence that Shannon should have known or

suspected that W.L. would injure the child. The particular rules upon which the MCCS

agency relied to exclude W.L. from Shannon’s household until 2017 were never identified

or admitted into evidence. What the evidence does disclose is MCCS was aware that

Shannon and W.L. had a relationship, he did stay at the home and he did have contact

with all of the children in the home. This did not cause MCCS to remove any child from
Muskingum County, Case No. CT2016-0017                                                    11


Shannon’s home nor would it prevent placement of additional foster children in Shannon’s

home.

        {¶32} We agree the injuries to Jane Doe are troublesome. However, the state

was required to produce sufficient evidence if it wished to convict Shannon of child

endangerment, and it has not done so. Shannon contacted MCCS and informed the

caseworker about the bruising. Shannon scheduled a doctor appointment for the child

and cooperated with the recommendations of the physicians.

        {¶33} While Shannon’s actions may have been imprudent or even negligent, we

cannot say that by leaving the child with W.L. Shannon consciously disregarded or was

indifferent to a known or obvious danger or with heedless indifference to the

consequences, she disregarded a substantial and unjustifiable risk. W.L. was not known

to Shannon to ever have caused injury to another child. As one Ohio Court of Appeals

noted, if “imprudent and possibly negligent” conduct were sufficient to expose a caregiver

to criminal liability for child endangerment, “undoubtedly the majority of parents in this

county would be guilty of child endangering—at least for acts of similar culpability.” State

v. Massey, 128 Ohio App.3d 438, 715 N.E.2d 235, 238–39 (1st Dist. 1998) (reversing child

abuse conviction where two-and-a-half-year-old child was left in a bathtub between thirty

seconds and four minutes, and stating that although there might have been some

speculative risk to child, the mother's conduct did not create a strong possibility of harm).

        {¶34} Further, the state was required to prove beyond a reasonable doubt a strong

possibility existed that Jane Doe would be injured by leaving her in W.L.’s care. While

Shannon’s actions may have created a speculative risk to Jane Doe's safety, mere

speculation about what might have happened is insufficient to show that there was a strong
Muskingum County, Case No. CT2016-0017                                                    12

possibility that an event might occur. Eastlake v. Corrao, 11th Dist. Lake No. 2002-L-094,

2003-Ohio-2373, ¶ 17.

       {¶35} After considering possible duties that Shannon may have recklessly

violated, we find that reasonable minds could only reach the conclusion that the evidence

failed to prove beyond a reasonable doubt that Shannon recklessly violated a duty of

protection, care, or support that created a substantial risk to the health or safety of Jane

Doe.

       {¶36} Accordingly, Shannon’s first assignment of error is sustained. Section 3(B)

(2), Article IV of the Ohio Constitution and R.C. 2953.07, give an appellate court the power

to affirm, reverse, or modify the judgment of an inferior court. Accordingly, Shannon’s

conviction and sentence on Counts 1, endangering children is vacated, and this case is

remanded for proceedings in accordance with our opinion and the law.

                                                   II.

       {¶37} In her second assignment of error, Shannon challenges the sufficiency of

the evidence. Shannon further contends her conviction for obstructing official business

children is against the manifest weight of the evidence produced at trial.

       {¶38} R.C. 2921.31, Obstructing Official Business provides,

                 (A) No 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.

       {¶39} In order to sustain a conviction for obstructing official business, the state
Muskingum County, Case No. CT2016-0017                                                   13


must prove beyond a reasonable doubt that the defendant acted purposely.               R.C.

2901.22(A) provides,

                A person acts purposely when it is his specific intention to cause a

       certain result, or, when the gist of the offense is a prohibition against

       conduct of a certain nature, regardless of what the offender intends to

       accomplish thereby, it is his specific intention to engage in conduct of that

       nature.

       {¶40} The Ohio Supreme Court has held,

                The making of an unsworn false oral statement to a public official

       with the purpose to mislead, hamper or impede the investigation of a crime

       is punishable conduct within the meaning of R.C. 2921.13(A)(3)

       [Falsification] and 2921.31(A). (Columbus v. Fisher [1978], 53 Ohio St.2d

       25, 7 O.O.3d 78, 372 N.E.2d 583, and Dayton v. Rogers [1979], 60 Ohio

       St.2d 162, 14 O.O.3d 403, 398 N.E.2d 781, overruled.)

State v. Lazzaro, 76 Ohio St.3d 261, 1996-Ohio-397, 667 N.E.2d 384, paragraph one of

the syllabus.

       {¶41} In the case at bar, Shannon was found not guilty of count 3 of the Complaint

alleging falsification with respect to her statements that her and W.L. were not married and

he was not living in the Shannon household. (T. at 213). Shannon was found not guilty

of count 4 of the Complaint alleging falsification with respect to her statements that she

had taken Jane Doe to school with her. (T. at 213-214).

       {¶42} Count 5 of the Complaint alleged obstructing official business with respect

to Shannon’s asking co-workers to tell the police that Jane Doe had been at school with
Muskingum County, Case No. CT2016-0017                                                  14


her when she had not been at school. (T. at 214).

       {¶43} In the case at bar, Krista Decker a co-worker of Shannon testified that she

has known Shannon to bring her children to school with her. (T. at 137). Decker testified

that Shannon “informed me that there was an investigation that there was some concerns

and things addressed that - - with the child that was placed with them at that time. Yes.”

(T. at 139). When asked what Shannon had told her, Decker testified, “Just that something

had happened, that the little [child] had rolled off the couch or something and rolled onto

like Lego or waffle blocks and there was some markings on the child…And so they started

an investigation.” (T. at 139). The following exchange then took place,

       Q.     Did she tell you about a possibly a detective coming to talk to you?

       A.     No, she didn’t.     I don’t recall her saying that there would be a

       detective. I –

        Q.    She didn’t say if someone asked about [Jane Doe] being at school

    of anything of that nature?

                                             ***

       Q.     On March 25th, did Lisa Shannon talk to you about or ask you to say

       anything specific about a child being with her that day or the day before?

       A.     I do not – no, she did not.

T. at 139-140.

       {¶44} Clearly, Shannon did not say anything to Decker and Decker not say

anything to Detective Shawger that misled, hampered or impeded the investigation.

       {¶45} Rebecca Braken, a co-worker of Shannon testified,

              Q.        Did Lisa say anything about a detective?
Muskingum County, Case No. CT2016-0017                                                    15


              A.     Yes. She asked me - -I do remember that she said, if a

       detective were to come to school, would you please let them know that I did

       have that said child with me on that Monday of the week or something like

       that. I think it was a Monday of that - - that week that I had been investigated

       or questioned.

(T. at 146-147). Braken testified that she did not lie to the police on Shannon’s behalf

and that she was completely honest with the detective. (T. at 148-149).

       {¶46} Detective Shawger testified that Shannon initially told him that she had

taken Jane Doe to school with her. Detective Shawger testified that he did not discuss

and was not given any names of co-workers by Shannon that would verify she had brought

the child to work. (T. at 158). Detective Shawger testified he did go to the school and

interview Braken and Decker. Detective Shawger then interviewed Shannon a second

time. The video of the second interview was played for the trial court.

       {¶47} Detective Shawger testified that Shannon’s statements that she had taken

the child to school impeded his investigation because,

              I wouldn’t have had to interview her twice. I wouldn’t have had to go

       - -wouldn’t have had to go back to the school and talk to the teachers and

       get them involved and talk to all those people. I mean, the investigation

       would have been - - at least she would have been honest, and it would have

       been a whole lot quicker.

(T. at 189-190). In the second interview, Shannon admitted to Detective Shawger that

she had not taken Jane Doe to school.

       {¶48} Accordingly, Shannon lied to Detective Shawger. She attempted to enlist
Muskingum County, Case No. CT2016-0017                                                      16


Braken to corroborate her lie. Detective Shawger testified his investigation was misled

and impeded. Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a reasonable

doubt that Shannon obstructed official business.

        {¶49} We hold, therefore, that the state met its burden of production regarding

each element of the crime of obstructing official business and, accordingly, there was

sufficient evidence to support Shannon’s conviction.

        {¶50} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going to

all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment and

the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d 517,

2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section

603, at 191–192 (1978). Furthermore, it is well established that the trial court is in the best

position to determine the credibility of witnesses. See, e.g., In re Brown, 9th Dist. No.

21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
Muskingum County, Case No. CT2016-0017                                                           17


212(1967).

        {¶51} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact finder

lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635, ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 (2nd

Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of the

evidence or two conflicting versions of events, neither of which is unbelievable, it is not our

province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA

149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d

125(7th Dist. 1999).

        {¶52} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

        {¶53} The judge as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the [trier of

fact] may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996
Muskingum County, Case No. CT2016-0017                                                   18


WL 284714 (May 28, 1996). Indeed, the [trier of fact] need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d

548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing

State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

          {¶54} In the case at bar, the judge heard the witnesses, viewed the evidence and

heard Shannon’s arguments.

          {¶55} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge

neither lost his way nor created a miscarriage of justice in convicting Shannon of the

charge.

          {¶56} Based upon the foregoing and the entire record in this matter, we find

Shannon’s conviction is not against the sufficiency or the manifest weight of the evidence.

To the contrary, the judge appears to have fairly and impartially decided the matters before

him. The judge as a trier of fact can reach different conclusions concerning the credibility

of the testimony of the state’s witnesses and Shannon’s arguments. This court will not

disturb the trier of fact’s finding so long as competent evidence was present to support it.
Muskingum County, Case No. CT2016-0017                                                    19

State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The judge heard the

witnesses, evaluated the evidence, and was convinced of Shannon’s guilt.

        {¶57} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime of obstructing official business for which Shannon was convicted.

        {¶58} Shannon’s second assignment of error is overruled.

                                                  III.

        {¶59} In her third assignment of error, Shannon contends the state called Dr.

Megan Letson as an expert witness to try to establish the element of causation regarding

the bruises. Dr. Letson stated to “a reasonable degree of medical certainty” that they were

the result of physical abuse. Shannon's counsel objected to her response, asking it be

stricken, because that opinion was inconsistent with what was set forth in the report

provided as part of the state's discovery responses. That opinion was not disclosed prior

to trial, which constituted a violation of Criminal Rule 16(K).

        {¶60} In light of our disposition of Shannon’s first assignment of error, we find

Shannon’s third assignment of error moot.         The established policy in Ohio prohibits

appellate courts from rendering advisory opinions.        White Consolidated Industries v.

Nichols, 15 Ohio St.3d 7, 471 N.E.2d 1375(1984); Cascioli v. Central Mut. Ins. Co., 4 Ohio

St.3d 179, 183, 448 N.E.2d 126(1983); Armco, Inc. v. Pub. Util. Comm., 69 Ohio St.2d

401, 406, 433 N.E.2d 923(1982).
Muskingum County, Case No. CT2016-0017                                                   20


       {¶61} For the foregoing reasons, the judgment of the Muskingum County Court is

affirmed in part, and reversed in part. Pursuant to Section 3(B) (2), Article IV of the Ohio

Constitution and R.C. 2953.07, the conviction and sentence on Counts 1, Endangering

Children, is vacated, and this case is remanded for proceedings in accordance with our

opinion and the law.

By Gwin, J.,

Farmer, P.J., and

Baldwin, J., concur
