        [Cite as State v. Conyers, 2016-Ohio-2952.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :   APPEAL NO. C-150439
                                                      TRIAL NO. 14CRB-34999
    Plaintiff-Appellee,                           :
                                                         O P I N I O N.
  vs.                                             :

NADINE CONYERS,                                   :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: May 13, 2016



Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Jacqueline Pham, Assistant City Prosecutor, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA SIEVE HENDON, Judge.

       {¶1}   Following a bench trial, the court found Nadine Conyers guilty of child

endangering and sentenced her to 180 days in jail.

       {¶2}   At trial, Conyers’ 15-year-old son C.S. testified that his stepfather

ordered him into a bedroom to do pushups. At the time, C.S. said, he could see his

mother in a bedroom across the hall.

       {¶3}   When C.S. failed to do proper pushups, his stepfather threw him into a

wall. According to C.S., the impact caused a dent in the wall and hurt his ribs. C.S.

testified that he yelled out “ow” and that he had “said it loudly.” The stepfather

ordered C.S. to go to his bedroom and stay there.

       {¶4}   For a week following the incident, C.S. said nothing to his mother

about the incident or his injury. C.S.’s grandparents picked him up at the end of the

week, and two days later, noticed that C.S. was rubbing his side.          When the

grandparents asked what was wrong, C.S. told them what his stepfather had done.

The grandparents took C.S. to the hospital.

       {¶5}   A hospital physician testified that C.S.’s right side, under the armpit,

was tender to palpation. An x-ray revealed tiny pleural effusions, or accumulations

of fluid between the tissues that line the lung and the chest. According to the

physician, the cause for the injury was consistent with C.S.’s story of trauma. And

she testified that the injury would resolve on its own.

       {¶6}   In denying Conyers’ Crim.R. 29 motion, the trial court noted that the

state had failed to present evidence that Conyers heard or should have heard that

C.S. had hit the wall and yelled out. The court told the prosecutor:




                                               2
                          OHIO FIRST DISTRICT COURT OF APPEALS



                 You did not demonstrate by distance. You did not demonstrate

                 by wall. You did not demonstrate that he was loud. You did not

                 demonstrate that the radio was or was not on, that it was a

                 silent house. You didn’t tell -- he didn’t know what she was

                 doing.    In fact, when he was in that room, he made an

                 assumption that she was [still] in the bedroom, but there was

                 no fact that she was actually in the bedroom.

          {¶7}   The defense rested without putting on evidence. At the conclusion of

the trial, the court found Conyers guilty of child endangering. The court found that

Conyers should have known that

                 if her son was involved in these physical activities and he did

                 not want to do that, that it was likely that there would be some

                 punishment in that[.] * * * When he yelled and was sent to his

                 room, she should have been on notice that something had

                 occurred because now he is sent to his room. He was not on a

                 punishment before. I have to assume that sending him to his

                 room and remaining in his room was a punishment. There was

                 no testimony that she had gone to his room to see about him.

          {¶8}   In three assignments of error, Conyers argues that the judgment was

not supported by sufficient evidence, that the court erred by excluding her husband

from the courtroom during her son’s testimony, and that her sentence was contrary

to law.

          {¶9}   In reviewing a challenge to the sufficiency of the evidence upon which

a conviction is based, the question is whether after viewing the evidence in a light




                                                3
                      OHIO FIRST DISTRICT COURT OF APPEALS



most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶10} To find Conyers guilty of child endangering under R.C. 2919.22(A), the

trier of fact had to find that she was the parent of a child under 18 and that she

created a substantial risk to the child’s health or safety by violating a duty of care,

protection, or support. A “substantial risk” is “a strong possibility, as contrasted with

a remote or significant possibility, that a certain result may occur or that certain

circumstances may exist.” R.C. 2901.01(A)(8). In order to be convicted of child

endangering under R.C. 2919.22(A), a person must act “recklessly” or with “heedless

indifference to the consequences” of her actions. R.C. 2901.22(C).

       {¶11} The trier of fact need not have found that Conyers actually caused

injury to her child. See State v. Kamel, 12 Ohio St.3d 306, 308, 466 N.E.2d 860

(1984). A parent’s failure to secure medical attention for her seriously injured child

is inconsistent with her parental duty of care. Id. at 309-310; State v. Legg, 89 Ohio

App.3d 184, 623 N.E.2d 1263 (9th Dist.1993); State v. Stewart, 5th Dist. Stark No.

2007-CA-00068, 2007-Ohio-6177, ¶ 64. Therefore, Conyers could be found guilty of

violating her parental duty of care if C.S. had been seriously injured and she had

recklessly failed to seek medical attention for him.

       {¶12} Conyers argues on appeal that the state produced no evidence that she

knew C.S. had been thrown into a wall by her husband or that she knew he had been

injured. Therefore, she argues, the state failed to prove the existence of the culpable

mental state of recklessness, an essential element of the crime of child endangering.




                                               4
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} Following our review of the record, we hold that the state failed to

prove beyond a reasonable doubt that Conyers had acted recklessly or that she had

created a substantial risk to her son’s health. As the trial court acknowledged, the

state failed to prove that Conyers knew or should have known that her son was

injured. The evidence did not demonstrate that Conyers heard or should have heard

her son cry out upon hitting the wall, that her son had shown any indications of pain

until he had been with his grandparents for several days, or that his injuries were

readily apparent.    C.S. testified that he had said nothing to Conyers about the

incident or the injury.

       {¶14} Therefore, we sustain the first assignment of error. We reverse the

judgment of the trial court and discharge Conyers from further prosecution. Our

disposition of the first assignment of error renders the second and third assignments

of error moot.

                                          Judgment reversed and appellant discharged.


FISCHER, P.J., and STAUTBERG, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                                 5
