[Cite as State v. Phillips, 2014-Ohio-5322.]


                                         COURT OF APPEALS
                                       HOLMES COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                          Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. 14-CA-003
JENNIFER A. PHILLIPS                            :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Holmes County
                                                    Municipal Court, Case No. 13CRB327

JUDGMENT:                                           Reversed, Vacated and Remanded




DATE OF JUDGMENT ENTRY:                             November 26, 2014

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTINE WILLIAMS                                  JEFFREY KELLOGG
Assistant Prosecuting Attorney                      5 South Washington Street
164 East Jackson Street                             Millersburg, OH 44654
Millersburg, OH 44654
[Cite as State v. Phillips, 2014-Ohio-5322.]


Gwin, P.J.

        {¶1}     Appellant Jennifer Phillips [“Phillips”] appeals her conviction and sentence

for one count of child endangering in violation of R.C. 2919.22(A), a first-degree

misdemeanor, following a bench trial in the Holmes County Municipal Court.

                                           Facts and Procedural History

        {¶2}     On August 1, 2013, Phillips along with her five children went to the

Millersburg Wal-Mart so she could shop for groceries for her family. Upon entering the

store, Phillips' children were being unruly. Her oldest son Riley, age 9, was encouraging

the children to misbehave and ignore their mother's direction. Riley was also upset with

his mother because she would not buy him an iTunes card for his iPod.

        {¶3}     On August 1, 2013, Millersburg Police Captain Herman made contact with

Wal-Mart security officer Bob Noll. Mr. Noll advised Captain Herman that several

Walmart employees had witnessed a woman identified as Phillips grab her oldest son,

Riley J. Phillips around the neck and upper torso area and walk him to the family’s van.

Mr. Noll further advised Captain Herman that there was a Wal-Mart video of the

incident. Captain Herman watched the video, which showed Phillips put her arms

around her child's neck and upper torso area and walk him a short distance to the

family’s van.

        {¶4}     Captain Herman then made contact with Phillips inside the store. When

asked what had occurred in the parking lot, Phillips told the officer that she was having

trouble with her kids and her nine-year-old called her a "cunt, as well as other vulgar

and abhorrent names. Phillips related that she then grabbed her son and took him to
Holmes County, Case No. 14-CA-003                                                        3


her vehicle. Phillips' version of her hold on her child was that she put both of her arms

under and not around his neck.

      {¶5}   Captain Herman took statements from four Wal-Mart employees who

witnessed the event. Ultimately, Phillips was charged with the offense of Child

Endangering, a misdemeanor of the first degree in violation of R.C. 2919.22(A). After a

bench trial, the trial court found Phillips guilty and sentenced Phillips to serve 180 days

in the Holmes County Jail. However, the jail time was suspended. Phillips was placed

on probation for two years.

                                      Assignment of Error

      {¶6}   Phillips raises one assignment of error,

      {¶7}   “I.   THE        TRIAL   COURT      ERRED       BY     CONVICTING        THE

DEFENDANT/APPELLANT WHEN THE WEIGHT AND SUFFICIENCY OF THE

EVIDENCE SUPPORTED ACQUITTAL.”

                                            Analysis

      {¶8}   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.
Holmes County, Case No. 14-CA-003                                                             4


       {¶9}   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 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.

       {¶10} 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.
Holmes County, Case No. 14-CA-003                                                      5


             “[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.

                                           ***

              “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).

      {¶11} In the case at bar, Phillips was convicted of a misdemeanor Endangering

Children. Ohio Revised Code 2919.22(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.

      {¶12} 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); State v. Conley, 5th Dist. Perry No. 03-CA-18, 2005-Ohio-3257, ¶20. R.C.

2901.22(C) defines “recklessness,”
Holmes County, Case No. 14-CA-003                                                      6


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

       consequences, he perversely disregards a known risk that his 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, he perversely disregards a known risk

       that such circumstances are likely to exist.

       {¶13}     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.

“Substantial risk” means a strong possibility, as contrasted with a remote or significant

possibility, that a certain result may occur or that certain circumstances may exist.

2901.01(A)(8).

       {¶14} In State v. Stewart, 5th Dist. Stark No. 2007–CA–00068, 2007-Ohio-6177,

this court noted:

               R.C. 2919.22(A) is aimed at preventing acts of omission or neglect

       when the breach results in a substantial risk to the health or safety of a

       child. See, e.g., State v. Sammons (1979), 58 Ohio St.2d 460 [12 O.O.3d

       384, 391 N.E.2d 713], appeal dismissed (1980), 444 U.S. 1008 [100 S.Ct.

       655, 62 L.Ed.2d 637]; State v. Kamel (1984), 12 Ohio St.3d 306, 308 [12

       OBR 378, 466 N.E.2d 860]; Committee comment to R.C. 2919.22.

Id., ¶59.

       {¶15} Specifically, Phillips argues in the case at bar that the evidence did not

support a conviction of R.C. 2919.22(A) because there was no evidence that she

recklessly violated a duty of care, protection or support. We agree.
Holmes County, Case No. 14-CA-003                                                     7


        {¶16} “[P]arents have the right of restraint over their children and the duty of

correcting and punishing them for misbehavior.” In re Schuerman, 74 Ohio App.3d 528,

531, 599 N.E.2d 728(3rd Dist. 1991). Parents have the right to use reasonable physical

discipline, or corporal punishment, to prevent and punish a child's misconduct. State v.

Hauenstein, 121 Ohio App.3d 511, 516, 700 N.E.2d 378(3rd Dist. 1997), citing State v.

Suchomski, 58 Ohio St.3d 74, 75, 567 N.E.2d 1304(1991). The right of parents to

administer reasonable corporal punishment is deeply rooted in the history and traditions

of this nation. See State v. Hoover, 5 Ohio App.3d 207, 211, 450 N.E.2d 710(6th Dist.

1982), quoting Quinn v. Nolan, 7 Dec.Rep. 585, 586, 1879 WL 6389(1879) (“From the

time of Solomon to the present, parents have had the right, in a proper manner and to a

proper degree, of inflicting corporal punishment upon their children * * *”).

        {¶17} We further note that Ohio law recognizes a parent’s right to administer

corporal punishment. Section 2919.22(B) of the Ohio Revised Code provides in relevant

part,

              (B) No person shall do any of the following to a child under

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

        twenty-one years of age:

              (1) Abuse the child;

              (2) Torture or cruelly abuse the child;

              (3) Administer corporal punishment or other physical disciplinary

        measure, or physically restrain the child in a cruel manner or for a

        prolonged period, which punishment, discipline, or restraint is excessive
Holmes County, Case No. 14-CA-003                                                       8


      under the circumstances and creates a substantial risk of serious physical

      harm to the child;

             (4) Repeatedly administer unwarranted disciplinary measures to the

      child, when there is a substantial risk that such conduct, if continued, will

      seriously impair or retard the child's mental health or development

                                           ***

      {¶18} In State v. Suchomski, the Supreme Court of Ohio found that prosecution

under R.C. 2919.25(A) does not interfere with a parent’s right to administer corporal

punishment. The Supreme Court stated:

             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 (6th 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.

58 Ohio St.3d at 75, 567 N.E.2d at 1305. Accordingly, parental discipline is an

affirmative defense to a charge of child endangering. See, State v. Snell, 5th Dist. Stark

Nos. 2002CA00181, 2002CA00190, 2003-Ohio-975, ¶30.

      {¶19} Whether parental discipline is “extreme or excessive” is determined in light

of the totality of the circumstances. State v. Hauenstein, 121 Ohio App.3d at 516, citing

State v. Hart, 110 Ohio App.3d 250, 256(3rd Dist. 1996). “In analyzing the totality of the
Holmes County, Case No. 14-CA-003                                                        9


circumstances, a court should consider the following factors: (1) the child’s age; (2) the

child’s behavior leading up to the discipline; (3) the child’s response to prior non-

corporal punishment; (4) the location and severity of the punishment; and (5) the

parent’s state of mind while administering the punishment.” State v. Luke, 3rd Dist.

Union No. 14-10-26, 2011-Ohio-4330, ¶ 22, citing In re J.L., 176 Ohio App.3d 186, 199,

2008–Ohio–1488(3rd Dist.), ¶ 35, citing Hart, supra; State v. Jones, 140 Ohio App.3d

422, 430, 747 N.E.2d 891(8th Dist. 2000); State v. Durbin, 5th Dist. Holmes No. 13 CA

2, 2013-Ohio-5147, ¶26. This inquiry is necessary to protect and balance the competing

interests involved in these cases—the parents' fundamental, inalienable right to raise

and control their children and the state's legitimate interest in the protection and safety

of children and in the reporting of child abuse. In re Horton, 10th Dist. No. 03AP–1181,

2004-Ohio-6249, ¶¶13–14, citing State v. Hause, 2nd Dist. Montgomery No. 17614,

1999 WL 959184(Aug. 6, 1999), at *6–7; Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388, 71 L.Ed.2d 599 (1982).

      {¶20} In the present case, the trial judge failed to consider the reasonableness

or propriety of the corporal punishment employed by Phillips, finding only that,

             They [the children] were running around. I mean there were stacks

      of merchandise at Wal-Mart. They could run into that. They could run into

      other areas and do harm to other people at Wal-Mart.

      {¶21} The evidence, however, demonstrates that Phillips removed the children

from the store for misbehaving. Upon their return to the store, the children were under

control and were behaved. In the case at bar, the trial court simply found that the

elements of R.C. 2919.25 had been proven by the state.
Holmes County, Case No. 14-CA-003                                                      10


       {¶22} However, the evidence presented in the record shows the child suffered

no injuries. The record shows that the responding officer observed no bruising, red

marks or any indicia of injury on the child. Further, the child was allowed to return to

shopping with his mother and siblings.

       {¶23} The evidence presented further establishes that the actions of Phillips

were the imposition of corporal punishment by a mother who judged her son’s conduct

and language warranted a physical disciplinary response. Black’s Law Dictionary (6th

Ed.1990) 339, has defined “corporal punishment” as “physical punishment * * * any kind

of punishment of or inflicted on the body.” This definition would include extremities of

the body such as the head, arms and legs. State v. Rogers, 44 Ohio App.2d 289, 290,

337 N.E.2d 791, 793(1st Dist. 1975).

       {¶24} Accordingly, we find the state failed to prove by sufficient evidence that

the type of discipline employed by Phillips resulted in physical harm or could result in a

substantial risk of physical harm to the child.

       {¶25} We further find the state further failed to prove that Phillips actions were

reckless,

              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
Holmes County, Case No. 14-CA-003                                                          11


       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, 983 N.E.2d 266, 2012–Ohio–5711, ¶34.

                                               Conclusion

       {¶26} We find that Phillips’ actions did not cause the child physical harm or

threaten      substantial   risk   of   same   as   defined   by   R.C.   2901.01(A)(3)   and

R.C.2901.01(A)(8). We further find the state failed to prove that Phillips actions were

reckless. The impact of the child’s removal from the premises was disciplinary and

transitory.

       {¶27} Given the circumstances presented in this case, we agree that Phillips’

conduct was not drastic or severe. Specifically, we find that the discipline meted out by

Phillips fell within the established parameters of “proper and reasonable parental

discipline.” Accordingly, Phillips’ sole assignment of error is sustained.
Holmes County, Case No. 14-CA-003                                                   12


       {¶28} The February 25, 2014 judgment of the Holmes County Municipal Court is

reversed and vacated, and this matter is remanded to that Court for further proceedings

consistent with this opinion.


By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
