[Cite as State v. Mabrey, 2011-Ohio-3849.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 96048




                                    STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  GENEVA MABREY
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                 Case No. CR-532828

        BEFORE:           Keough, J., Jones, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: August 4, 2011
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender

Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Jesse W. Canonico
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Geneva Mabrey (“Mabrey”), appeals from

the common pleas court’s judgment finding her guilty of child endangering.

For the reasons that follow, we affirm.

      {¶ 2} In January 2010, Mabrey was charged with felonious assault in

violation of R.C. 2903.11(A)(1) and child endangering, with a serious physical
harm specification, in violation of R.C. 2919.22(B)(1). The matter proceeded

to trial before the bench.     At the close of the State’s case, the trial court

granted Mabrey’s Crim.R. 29 motion for judgment of acquittal on the

felonious assault charge.         The court found Mabrey guilty of child

endangering, including the serious physical harm specification, and sentenced

her to two years of community control sanctions.

      {¶ 3} Mabrey appeals, contending that her conviction for child

endangering was not supported by sufficient evidence and was against the

manifest weight of the evidence. Mabrey does not contest the underlying

facts of the case, but maintained at trial and now on appeal that she did not

recklessly abuse the child, and that her actions and/or inactions were at most

a violation of a duty of care to the child.

      {¶ 4} The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, Cuyahoga

App. No. 92266, 2009-Ohio-3598, ¶12. 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 (1991), 61 Ohio St.3d 259, 574

N.E.2d 942, paragraph two of the syllabus.

      {¶ 5} A manifest weight challenge, on the other hand, questions

whether the prosecution met its burden of persuasion.         State v. Thomas
(1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356.        A reviewing court may

reverse the judgment of conviction if it appears that 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. Thompkins,

78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.         A finding that a

conviction was supported by the manifest weight of the evidence necessarily

includes a finding of sufficiency. Id. at 388.

      {¶ 6} Mabrey was convicted of child endangering in violation of R.C.

2919.22(B)(1), which provides that “no person shall [abuse] a child under

eighteen years of age or a mentally or physically handicapped child under

twenty-one years of age.”

      {¶ 7} The requisite culpable mental state for the crime of child

endangering is recklessness. State v. Adams (1980), 62 Ohio St.2d 151, 153,

404 N.E.2d 144. R.C. 2901.22(C) provides that “[a] person acts recklessly

when, with heedless indifference to the consequences, [s]he perversely

disregards a known risk that [her] 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, [s]he

perversely disregards a known risk that such circumstances are likely to

exist.”
      {¶ 8} Therefore, “[t]o establish a violation of R.C. 2919.22(B)(1), the

state must prove, beyond a reasonable doubt: (1) that the child is under

eighteen years of age or a mentally or physically handicapped child under

twenty-one years of age, (2) an affirmative act of abuse, and (3) which act was

reckless, that is, perpetrated with heedless indifference to the consequences

of the action.” (Internal citations omitted.) City of Newburgh Hts. v. Cole,

166 Ohio App.3d 826, 2006-Ohio-2463, ¶8, quoting State v. Bogan (June 14,

1990), Montgomery App. No. 11920. It is undisputed that the child in this

case was under eighteen years of age.       Accordingly, the issue on appeal

pertains to the second and third elements of the offense.

      {¶ 9} The State argues that “an affirmative act of abuse” is not an

element that must be proven in order to sustain a conviction under R.C.

2919.22(B)(1). In fact, the State asks this court to hold and declare that “an

affirmative act of abuse” is not an element of the offense under R.C.

2919.22(B).

      {¶ 10} “Abuse” is not defined by the criminal statutes.        However,

“abused child” is defined by the juvenile statutes as one who, “because of the

acts of his parents, guardian, or custodian, suffers physical or mental injury

that harms or threatens the child’s health or welfare.” Cole at ¶9, quoting

R.C. 2151.031(D).
      {¶ 11} The Legislative Service Commission Commentary to R.C. 2919.22

explained that child endangering under R.C. 2919.22(B) “deals with actual

physical abuse of a child, whether through physical cruelty or through

improper discipline or restraint, and regardless of by whom the offense is

committed.”

      {¶ 12} Additionally, the Ohio Supreme Court in State v. Kamel (1984),

12 Ohio St.3d 306, 308-309, 466 N.E.2d 860, identified that “[i]t is not

necessary to show an actual instance or pattern or physical abuse on the part

of the accused in order to justify a conviction under R.C. 2919.22(A).

Affirmative acts of torture, abuse, and excessive acts of corporal punishment

or disciplinary measures are expressly covered under division (B) of the

section.”   Accordingly, the Legislative Commentary and the decision in

Kamel differentiate between sections (A) and (B) of R.C. 2919.22 and

establish that an affirmative act of abuse is a required element for a

conviction under R.C. 2919.22(B).    Section (A) involves acts of omission,

whereas section (B) involves acts of commission. Kamel at 309, citing State

v. Sammons (1979), 58 Ohio St.2d 460, 391 N.E.2d 713.

      {¶ 13} Although we disagree with the State’s assertion that an

affirmative act of abuse is not an element of child endangering under R.C.

2919.22(B), we find that Mabrey’s conviction was supported by sufficient

evidence and was not against the manifest weight of the evidence.
      {¶ 14} The evidence and testimony established that Mabrey, a licensed

practical nurse, provided home care to J.L.,1 a special needs child, since he

was eight months old. J.L. was born prematurely and suffers from a variety

of health problems, as well as cognitive disability and impairment. Although

J.L. is somewhat verbal, he cannot comprehend and answer questions. As a

result of his conditions, J.L. was part of MetroHealth Medical Center’s

Comprehensive Care program, a multi-disciplinary program designed to

address the needs of children like J.L.

      {¶ 15} On April 23, 2008, Mabrey was providing care to J.L., then

five-years old, in her home.            Around 9:00 p.m. and after J.L. experienced

both bowel and urinary incontinence, Mabrey placed J.L. in the bathtub with

approximately ten inches of cool water, which was enough to cover the lower

part of his body. According to Mabrey’s statement to police, she bathed him

and then allowed him to play with his toys in the bathtub. J.L. turned the

cold water on while playing, adding an additional one to two inches of cold

water. Because J.L. kept “bothering the cold water,” Mabrey told J.L. that it

was time to get out of the bathtub. As he stood up, he lost his balance and

fell to the side of the bathtub, hitting his mouth, falling on his back, and

going under the water. As Mabrey pulled J.L. out of the bathtub, he was

spitting up water.        She wiped his face and he began to shake and then


      We use initials to protect the identity of the minor involved in this incident.
      1
became quiet. Because he would not stand up and kept spitting up water,

she took him to the kitchen and called 9-1-1. According to Mabrey, J.L. was

in the bathtub for approximately 15 to 20 minutes and she never left him

alone during this time.

      {¶ 16} Euclid dispatch received a 9-1-1 call from Mabrey at 10:12 p.m.

Mabrey told the dispatcher that J.L. had gone underwater.            When the

paramedics arrived, J.L. was naked and sitting on the counter cradled in

Mabrey’s arms.

      {¶ 17} Euclid firefighter and paramedic, Gregory Ivanovics, who was

first on the scene, testified that when he took J.L. from Mabrey, J.L. was

damp and “very cold to the touch through my [nonlatex] glove.” Ivanovics

immediately carried J.L. to the ambulance to begin treatment.         Ivanovics

testified that his assessment of J.L. was that he (1) was cold to the touch, (2)

had his teeth and jaw clenched and clamped on his tongue, (3) had saliva and

vomit around his mouth, (4) was “very cyanotic. His lips were very blue,”

and (5) had a fast and weak pulse. He testified that he did not observe any

blood, bruises, abrasions, or scratches on J.L.’s body. According to Ivanovics,

he “never experienced anything like that before.”

      {¶ 18} EMS transported J.L. to Euclid Hospital where Bridgette Stemple

(f.k.a. Davis) was a treating nurse. She testified that the initial call from

Euclid Fire and Rescue stated that they were transporting a child who was
“submerged in a tub for an unknown length of time.” When J.L. arrived at

Euclid Hospital, Stemple conducted a head to toe assessment and observed

that J.L. was small, very cold, had multiple abrasions and small scrapes on

his arm and buttocks, had clenched teeth, and had a rapid heart rate.

Stemple testified that J.L.’s core body temperature , which was taken

approximately thirteen minutes after the 9-1-1 call was placed, registered at

28.9 degrees Celsius, which is approximately 84 degrees Fahrenheit.

Stemple characterized J.L.’s temperature as “hypothermic, very, very low”

and testified that at that temperature, multiple systems within the body are

shutting down. J.L. was transported by Life Flight to MetroHealth

approximately 30 minutes later.

     {¶ 19} Euclid police officer Michael Walsh testified that at 10:14 p.m. on

April 23rd he responded to an emergency call at Mabrey’s residence. When

he arrived, EMS was treating a child in the ambulance on scene. Officer

Walsh testified that he spoke with an “upset” Mabrey who told him that J.L.

had gone underwater for a few seconds as she was giving him a bath.

Because J.L. was unresponsive, she called 9-1-1. Officer Walsh looked in the

bathroom, but saw no standing water in the bathtub.

     {¶ 20} Detective Brent Figueira testified that he received a call for a

child nearly drowning and he and his partner went to MetroHealth, where

they found Mabrey. After speaking with Mabrey, she gave them a written
statement regarding the incident. At that time, Detective Figueira treated

this case as a near-drowning incident. Approximately five days later, “the

drowning investigation changed to a case where the child suffered

hypothermia due to some mechanism.”

     {¶ 21} Angela   Colon,   special   investigator   for   Cuyahoga   County

Department of Children and Family Services, was assigned to investigate the

circumstances surrounding this incident. She testified that it was reported

to her that J.L. was found in the bathtub and that he almost drowned.

Accordingly, the case was classified as an allegation of neglect as an

emergency.

     {¶ 22} On April 24th, Colon interviewed Mabrey and informed her that

she was named as an alleged perpetrator for allegations of neglect regarding

the possible drowning of J.L. Colon testified that she did not learn of J.L.’s

injuries until after speaking with Mabrey on April 24th. According to Colon,

Mabrey was visibly upset and cried during the interview, but was cooperative

and respectful in answering all her questions. Mabrey told Colon that she

put J.L. in the bathtub to bathe him and that she made the water a little

cooler because it was a warm day. Mabrey told her that J.L. kept playing

with the faucet, drained the water out of the bathtub, and added more cold

water. Mabrey denied leaving J.L. unsupervised. Mabrey told Colon that

J.L. had a tendency to “duck under water” but when he went to get out of the
bathtub, he slipped.      When she got him out of the bathtub, he spit some

water out and his eyes appeared “funny.” Because he would not stand up, she

wrapped him up, and carried him to the kitchen to call 9-1-1. As she carried

him, J.L. was “fighting” and kicking her.

      {¶ 23} Colon testified that after learning J.L. suffered hypothermia

during the incident, she interviewed Mabrey again on May 22nd. During

this interview, Colon observed the bathroom and bathtub area and took the

temperature of the cold water from the bathtub faucet, which registered at 48

degrees Fahrenheit.        She asked Mabrey to go over the events again

regarding the incident.

      {¶ 24} Mabrey told her that she thought J.L. was in the bathtub for 20

minutes or more, but then later said she was unsure how long J.L. was in the

bathtub. In this interview, Mabrey told Colon that while J.L. played in the

bathtub, she sat doing her paperwork in the bathroom and never left him

unattended. She also told Colon that she had her cell phone with her in the

bathroom. Again Mabrey told her that J.L. was playing with the cold water

and that he drained the water out of the bathtub and refilled it with all cold

water.

      {¶ 25} Mabrey stated J.L. had a habit of throwing himself under the

water and when he would not stand up, she got concerned. Mabrey told her

that he fell getting out of the bathtub, but now stated that he fell forward and
hit his mouth. Mabrey assumed J.L. hit his mouth because she saw blood on

his lip. Mabrey said J.L. appeared to have swallowed some water, so she

grabbed him from the bathtub and he was grasping for breath. When she

got him out of the bathtub, his teeth were completely clenched and he was

trembling. She told Colon that he was not trembling in the bathtub and she

thought maybe he was trembling due to the fall. Mabrey told Colon that she

did not think J.L. had a seizure. He was unresponsive, so she took him to

the kitchen to call 9-1-1. She told Colon that she did not perform CPR on

J.L. because he was breathing. Mabrey told Colon that J.L. appeared “real

cold.”

         {¶ 26} Colon testified that she felt there were questionable actions and

inconsistencies in Mabrey’s different version of events, specifically (1) if

Mabrey had her cell phone in the bathroom, why Mabrey would use the

kitchen phone, (2) the amount of time J.L. was in the bathtub, and (3) the

event of J.L. falling.    Based on Colon’s investigation, CCDCFS ruled that

“allegations of neglect were indicated.”

         {¶ 27} The State’s trial theory was that Mabrey used a cold water bath

abusively or to punish J.L. The State called Dr. Mark Feingold, member of

MetroHealth’s Department of Pediatrics and Director of Child Protection

Services, as a pediatric expert in diagnosing child abuse.         Dr. Feingold

testified that he became involved in the case because J.L. was admitted into
the pediatric intensive care unit due to severe hypothermia. Dr. Feingold

testified that he reviewed J.L.’s medical records in connection with this

incident and conducted a physical examination of J.L., but the examination

revealed nothing specific for child abuse.

      {¶ 28} However, based on the medical records, he learned that J.L.

suffered hypothermia with a core body temperature of 28.6 degrees Celsius,

which translated to 83.5 degrees Fahrenheit. Dr. Feingold testified that the

event history provided by Mabrey was not consistent with J.L.’s core

temperature because “he was simply too cold.” According to Dr. Feingold, a

core body temperature to drop to 84 degrees Fahrenheit is indicative of two

plausible situations: (1) that the person has died and the temperature is

lowering as time passes, or (2) that the person was exposed to external cold.

Dr. Feingold testified that the first stage of hypothermia is just being cold, i.e.

shivering and teeth chattering. The next stage is more severe hypothermia

where the body temperature lowers and the person has mental confusion,

combativeness, unreasonable behavior, and loss of spontaneous movement.

      {¶ 29} Dr. Feingold indicated in his assessment notes that he was

unable to determine what happened to J.L.: “1. The precise nature of what

occurred on the evening of admission is still not clear. What is remarkable,

however, is the profound, life-threatening hypothermia present on arrival at
the local emergency department. Voluntarily playing in cold water would

not lower his core temperature to this extent.”

      {¶ 30} Dr. Feingold testified that there were several possibilities as to

how J.L.’s body temperature reached such a low level: “Was he being forced

into cold water as some sort of punishment? Possibly so. Was he under

water for longer than reported? Also possibly so, but his relatively benign

course does not suggest a lengthy immersion.       Was he slightly chilled by

playing in the water before he slipped and fell, and was the phone call for

EMS assistance postponed? Again, possibly so. There is no solid data on

exactly how fast a child’s core temperature will fall either with external

chilling or cardio-respiratory arrest, but a rectal temperature of 29 C (8

degrees below normal) would surely have to require a significant length of

time and not mere minutes.”

      {¶ 31} Dr. Feingold did not render an opinion regarding whether this

was a case of child abuse; however, he did render an opinion regarding the

amount of time J.L. was subjected to external cold. He opined that based on

J.L.’s body size, the temperature of the water, and the amount of water he

was immersed in, it would take approximately one hour for a core body

temperature to lower to the extreme suffered by J.L. He opined further that

a   person   experiencing   hypothermic   symptoms    in   a   bathtub   would
instinctively get up and get out of the situation or express serious objections

to the cold.

      {¶ 32} In this case, the evidence was undisputed.   J.L. was in a bathtub

of cool water for a period of time that caused his core body temperature to

lower to a life-threatening range. Whether the State satisfied its burden of

proving the elements of R.C. 2919.22(B)(1) is an issue for the trier of fact.

However, the proof for each element must be analyzed in light of the nature of

the physical act relative to the substantial risk of harm, whether the act was

justified by the underlying circumstances, and whether the act was recklessly

perpetrated. Bogan, citing In the Matter of Kimberly Noftz, Alleged Abused

Child (Aug. 22, 1986), Huron App. Nos. H-85-26 and H-86-11.

      {¶ 33} This court reviewed a similar case in State v. Parker (July 8,

1999), Cuyahoga App. No. 74294, where the defendant was charged with child

endangering after placing a child in a bathtub of hot water.        This court

stated that “[i]t is reckless to put a child into bath water that has not been

tested and abusive to immerse a child in scalding hot water.” Id.

      {¶ 34} Although J.L. did not suffer from burns like the child in Parker,

we find that Mabrey acted recklessly in failing to adequately supervise J.L.

while he played with the bathtub’s water faucet handles. J.L. could have

easily turned on the hot water and scalded himself.         The special needs

required by J.L., his limited verbal skills, and cognitive ability, demanded
more supervision than what Mabrey provided. We also find it abusive to sit

and watch a child freeze to the point that his body temperature lowers to a

life-threatening stage.        Based on the inconsistencies in Mabrey’s

different version of events, coupled with the undisputed medical evidence and

time frames in which these events occurred, any rational trier of fact could

have found that Mabrey acted recklessly perpetrating this act of abuse

without heed to the potentially grave and life-threatening consequences.

The uncontroverted medical evidence and testimony showed that the extreme

state of hypothermia J.L. suffered resulted from immersion in and lengthy

exposure to cold bath water.

      {¶ 35} The weight of the evidence also supports Mabrey’s conviction.

The evidence submitted at trial, which tended to show the child’s injuries

resulted through Mabrey’s recklessness, was reliable and credible. J.L. was

in Mabrey’s care when he suffered severe hypothermia. There was no other

logical explanation presented as to how J.L.’s core temperature reached this

life-threatening level. It is especially troubling that Mabrey was a licensed

practical nurse; due to Mabrey’s profession, she should have known and

appreciated the risk of allowing a child to remain in cold water for such a long

period of time.

      {¶ 36} Accordingly, we find that the trial court had before it sufficient

and substantial evidence from which it could reasonably find that the
requisite elements of child endangering were proved beyond a reasonable

doubt and that the court did not lose its way in finding Mabrey guilty of child

endangering in violation of R.C. 2919.22(B)(1).      Mabrey’s assignments of

error are overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, P.J., and
KENNETH A. ROCCO, J., CONCUR
