[Cite as State v. Spangler, 2017-Ohio-268.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                                :   Hon. Patricia A. Delaney, J.
 -vs-                                           :
                                                :   Case No. 16-CA-12
                                                :
 JAYMZ O. SPANGLER                              :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County
                                                    Municipal Court, Case No. CRB
                                                    1502114



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             January 24, 2017




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 RANDAL ULLON                                       THOMAS R. ELWING
 CITY OF LANCASTER LAW                              60 West Columbus St.
 DIRECTOR                                           Pickerington, OH 43147

 DANIEL E. COGLEY
 136 W. Main St.
 Lancaster, OH 43130
Fairfield County, Case No. 16-CA-12                                                      2

Delaney, J.

       {¶1} Defendant-Appellant Jaymz O. Spangler appeals his conviction for

endangering children in violation of R.C. 2919.22(B)(1), a first-degree misdemeanor, in

the Fairfield County Municipal Court. Plaintiff-Appellee is the State of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On September 8, 2015, criminal complaints were filed with the Fairfield

County Municipal Court charging Defendant-Appellant Jaymz O. Spangler with one count

of endangering children, a first-degree misdemeanor in violation of R.C. 2919.22(A), and

one count of endangering children, a first-degree misdemeanor in violation of R.C.

2919.22(B)(1). Spangler appeared in court and entered a plea of not guilty. The matter

was set for a jury trial on March 8, 2016.

       {¶3} At trial, the State elected to proceed on only the complaint charging

Spangler with a violation of R.C. 2919.22(B)(1), alleging Spangler “did abuse M.S., a child

when said child is under eighteen or is a physically or mentally handicapped child under

twenty-one, * * *.” The following facts were adduced at trial.

                                   The Initiating Event

       {¶4} Spangler is married to Mother, the biological mother of M.S. On July 5,

2015, M.S. was one-year-old.

       {¶5} On July 5, 2015, Spangler brought M.S. from their home to Mother, who

was at a neighbor’s house. The neighbor was holding M.S. when she noticed bruising on

the child. The neighbor encouraged Mother to take the child to the hospital.
Fairfield County, Case No. 16-CA-12                                                       3


                              Officer Malone’s Testimony

       {¶6} The Lancaster Police Department received a call from the Fairfield Medical

Center on July 5, 2015 about a possible child abuse. Patrol Officer Brian Malone was

dispatched to the hospital. At the hospital, Officer Malone spoke with Mother. Spangler

did not accompany Mother to the hospital. Officer Malone observed injuries on the child,

including bruising and scratch marks on the child’s buttocks and on the right side of her

face and forehead.

       {¶7} Officer Malone then spoke with Spangler about the child’s injuries.

Spangler, Mother, and M.S. share a bedroom. Spangler told the officer that he was asleep

and woke up. He left the room, came back in, and M.S. fell off the bed. He picked her up

and brought her to Mother because he felt M.S. was acting really weird. Spangler did not

notice any bruising on the child.

       {¶8} Officer Malone completed his report and listed R.H. as a suspect. Based on

the information provided by Mother and Spangler, R.H. was the only person believed to

be alone with the child.

       {¶9} On July 7, 2015, Officer Malone came in contact with R.H. during a traffic

stop. R.H. was identified as the driver of the vehicle. Because Officer Malone happened

to run into R.H., he asked him about the incident. R.H. told Officer Malone he didn’t notice

any bruising on the child. He stated that Mother left M.S. with him for approximately thirty

to sixty minutes on July 4, 2015.

                                    R.H.’s Testimony

       {¶10} R.H. was staying at the residence of Spangler and Mother on July 4 and 5,

2015. R.H. and Mother had a previous relationship. R.H. testified that while he was
Fairfield County, Case No. 16-CA-12                                                       4


staying with Spangler and Mother, other people were living there, including Spangler’s

sister and two other individuals.

       {¶11} On July 4, 2015, R.H. testified Mother and Spangler took M.S. to see the

fireworks. When they returned, Mother told R.H. that M.S. was running a fever. She asked

R.H. for his advice on how to treat the fever because R.H. had a child. He recommended

they wrap her in a blanket and give her water to let her sweat the fever out. He testified

M.S. did not wake up until 12:00 or 12:30 p.m. on July 5, 2015.

       {¶12} R.H. observed that M.S. slept in the bedroom with Spangler and Mother.

On July 5, 2015, R.H. left the residence at around 8:00 a.m. to go fishing and returned

around 12:00 p.m. R.H. said Mother left the residence around 3:30 p.m. R.H. was in the

living room. At 4:00 p.m., R.H. heard M.S. screaming in the bedroom. Spangler was in

the bedroom and the door was shut. He heard Spangler scream at the child, “Shut the

fuck up, little whiny bitch.” R.H. next heard Spangler smack M.S. at least three to six

times. He said M.S. stopped crying after the third smack. R.H. paced in the living room

and saw Spangler leave the bedroom and walk out of the residence. Spangler did not

have M.S. with him and Spangler did not speak to R.H. when he left. R.H. left the

residence, told a neighbor to tell Mother that he left, and walked to a friend’s home forty-

five minutes away.

                               Dr. Creighton’s Testimony

       {¶13} M.S. was admitted to Nationwide Children’s Hospital in July 2015. Trauma

surgery service consulted Dr. Kristen Creighton, a child abuse pediatrician, to evaluate

M.S. for concerns of non-accidental trauma.
Fairfield County, Case No. 16-CA-12                                                           5


       {¶14} Based on Dr. Creighton’s evaluation, she determined M.S.’s injuries were

caused by abusive trauma. M.S. had lineal parallel bruising to both sides of her face and

buttocks. The lineal parallel bruising was consistent with a slap mark.

                           Detective Underwood’s Testimony

       {¶15} Detective Underwood of the Lancaster Police Department was assigned to

the case. He interviewed Spangler and Mother on July 15, 2015. Spangler told Detective

Underwood that he did not notice any bruising on M.S. On July 5, 2015, Spangler and

M.S. were asleep in the bedroom. Around 4:00 p.m., M.S. woke up screaming. Spangler

told Detective Underwood he picked her up off the floor and he dropped her,

approximately six to eight inches off the ground. Spangler then took M.S. to Mother, who

was at the neighbor’s. Detective Underwood asked Spangler who caused the bruising

and Spangler named R.H., who he said was alone with the child for 45 minutes on July

4, 2015.

                            Mother and the Fifth Amendment

       {¶16} Prior to the start of trial, the State informed the trial court that it intended to

call Mother as a witness and she might try to raise the Fifth Amendment. If Mother refused

to testify based on the Fifth Amendment, the State would make a written request to have

a common pleas judge grant her immunity and compel her testimony.

       {¶17} The State called Mother to the stand. The trial court excused the jury.

Mother immediately invoked her Fifth Amendment privilege. The trial court swore Mother

in and informed her of her rights to counsel and to invoke the Fifth Amendment. Mother

stated she understood her rights and the State continued:
Fairfield County, Case No. 16-CA-12                                                      6


       I mean, I guess I won’t know until we get to the area where she wants to

       invoke it. * * * Cause I’m not sure if she wants to invoke it if that actually

       applies (inaudible.)

       Court: Right. Because it doesn’t apply to everything, okay? There are

       certain general questions that can be asked that don’t violate your rights,

       however, there are certain areas, and she doesn’t have counsel with her,

       so I guess as the Court I will intercede? Or does counsel wish to enter

       objections at that time?

       {¶18} The trial court found that Mother was invoking her Fifth Amendment right

and was not going to testify that day. The judge called a recess so the State could seek

immunity for Mother and compel her testimony.

       {¶19} The jury trial reconvened on March 9, 2016. Before the jury was brought to

the courtroom, the trial court heard the matter of Mother’s testimony. Present in the

courtroom were the parties and Mother’s appointed counsel. The State told the trial court

it would not call Mother as a witness, but the defense stated it intended to call Mother as

a witness on behalf of Spangler. Counsel for Spangler stated that because he knew

Mother was going to invoke the Fifth Amendment, he agreed not to question her regarding

the events on July 4 or 5, 2015. He would, however, ask her questions about her mental

health issues:

       The relevance, your Honor, we would ask that, uh, it certainly gives open

       the possible, some of the, I’ll just put, be blunt. Some of the issues that we

       feel that she would testify to is that she does blackout, uh, when she gets

       irritated or crying. The baby irritates her, uh, she suffered from postpartum
Fairfield County, Case No. 16-CA-12                                                    7


      depression, uh, she doesn’t have a connection to this child. She’s very

      detached from this child, uh, and I think that the jury can draw conclusions

      from that. My understanding was that [Mother] was willing to admit to those

      aspects without, uh, indicating that in fact she believes she did anything.

      The Court: But with the inference that she did do something, by her testimony?

      The Defense: That would be the inference the defense would ask the jury

      to draw, correct.

      ***

      {¶20} The State responded to the defense’s intended line of questioning:

      I mean, I think, based on those, on the sense that by her own, the defense’s

      own admission, they’re hoping that they get testimony that would actually

      infer her and incriminate herself and inferences reasonably drawn that

      would incriminate her and that’s the whole purpose of the defense putting

      her on the stand in front of the jury is so that they can infer that she’s the

      one who actually committed the crime and that’s the whole purpose of her

      invoking her right against self-incrimination, your Honor. I believe defense

      counsel will state that she (inaudible) testify at all and wants to revoke.

      {¶21} Mother’s appointed counsel informed the trial court that Mother would not

testify on any matters other than her name and address. Her counsel believed that even

if the issues were not directly related to the events on July 4 or 5, inferences could be

drawn that would incriminate her, so she would be exercising her Fifth Amendment right

under any circumstances.
Fairfield County, Case No. 16-CA-12                                                     8


       {¶22} The trial court ruled that based on her counsel’s indication that Mother

would invoke her Fifth Amendment right to all questions, he would not allow her to take

the stand.

       {¶23} Upon the defense’s request, the trial court included a jury instruction

ordering the jurors to make no inference as to why or why not a party had not been called

as a witness.

                                    The Conviction

       {¶24} On March 9, 2016, the jury found Spangler guilty of endangering children,

in violation of R.C. 2919.22(B)(1). The trial court sentenced Spangler to 180 days in jail

with 90 days suspended, two years of community control sanctions, and imposed a

$200.00 fine via a sentencing entry filed on March 28, 2016.

       {¶25} It is from this judgment Spangler now appeals.

                               ASSIGNMENT OF ERROR

       {¶26} Spangler raises one Assignment of Error:

       {¶27} “THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM

CALLING [MOTHER] AS A WITNESS IN VIOLATION OF APPELLANT’S RIGHTS TO

COMPULSORY PROCESS AND DUE PROCESS OF LAW UNDER BOTH OHIO AND

UNITED STATES CONSTITUTIONS.”

                                       ANALYSIS

       {¶28} Spangler argues in his sole Assignment of Error that the trial court erred by

ruling Mother was not required to testify as a defense witness because she could

potentially incriminate herself. We disagree.
Fairfield County, Case No. 16-CA-12                                                          9


       {¶29} The Fifth Amendment to the United States Constitution and Article I, Section

10 of the Ohio Constitution declare that no person shall be compelled in any criminal case

to be a witness against himself. State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62

N.E.3d 153, ¶ 30.

       {¶30} The Ohio Supreme Court has held that when a witness asserts a privilege

against self-incrimination, a court may not rely upon the witness's claim alone, but has a

duty to determine whether the witness's refusal to answer is justified. State v. Arnold,

2016-Ohio-1595, ¶ 45 citing Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814,

95 L.Ed. 1118 (1951). The trial judge must determine if a proposed witness's testimony

would be self-incriminating. Id.; State v. Landrum, 53 Ohio St.3d 107, 120-121, 559

N.E.2d 710 (1990); McGorray v. Sutter, 80 Ohio St. 400, 89 N.E. 10 (1909), paragraph

two of the syllabus. A valid assertion exists where a witness has reasonable cause to

apprehend a real danger of incrimination. United States v. Apfelbaum, 445 U.S. 115, 127,

100 S.Ct. 948, 63 L.Ed.2d 250 (1980); In re Morganroth, 718 F.2d 161, 167 (C.A.6 1983);

State v. Linkous, 4th Dist. Scioto No. 12CA3517, 2013-Ohio-5853, ¶ 55. “To sustain the

privilege, it need only be evident from the implications of the question, in the setting in

which it is asked, that a responsive answer * * * might be dangerous because injurious

disclosure could result. * * *.” Hoffman, 341 U.S. at 486-487. The privilege extends to

answers which would furnish a link in the chain of evidence, exposing the witness to

criminal liability. Id. at 486; Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed.

70 (1950); State v. Landrum, 53 Ohio St.3d at 120-121.

       {¶31} The Ohio Supreme Court recently stated in State v. Arnold that the “trial

court’s inquiry into the basis of a witness’s assertion of the privilege is critical, even when
Fairfield County, Case No. 16-CA-12                                                        10


the purported basis seems implausible, frivolous, or suspect. The trial court must tread

lightly, of course, because ‘if the witness, upon interposing his claim, were required to

prove the hazard in the sense in which a claim is usually required to be established in

court, he would be compelled to surrender the very protection which the privilege is

designed to guarantee.’ Hoffman, 341 U.S. at 486, 71 S.Ct. 814, 95 L.Ed. 1118. Thus,

the trial court ‘must carefully balance the interests of the party claiming protection against

self-incrimination and the adversary's entitlement to equitable treatment’ in its analysis of

the propriety of the claim. Sec. & Exchange Comm. v. Graystone Nash, Inc. 25 F.3d 187,

192 (3d Cir.1994). And the record of the trial court's proceedings should clearly reflect the

court's inquiries into the bases of the claim of privilege and the proponent's responses.”

State v. Arnold, 2016-Ohio-1595, ¶ 47.

       {¶32} In State v. Turner, this court outlined the extent and type of inquiry the trial

court must conduct as stated in McGorray v. Sutter, 80 Ohio St. 400, 411, 89 N.E. 10:

       Certainly, the modes of inquiry to which the trial judge may resort to

       ascertain that the claim of the witness is not well founded must not invade

       his immunity. He must not extort from the witness a statement which would

       be a plenary confession of guilt, or the statement of a circumstance which

       in connection with other circumstances would establish his guilt. But if, in

       any mode consistent with the immunity, he may acquire the basis of a clear

       conviction that the claim of the witness is ill founded, he may require him to

       answer.

2014-Ohio-4678, ¶ 33.
Fairfield County, Case No. 16-CA-12                                                         11


       {¶33} If the court determines that a witness is mistaken about the danger of

incrimination, the court must then require the witness to answer the question. Hoffman,

341 U.S. at 486. When the court is satisfied that the witness’s refusal to answer is justified,

a court may either excuse the witness from testifying or, upon the written request of the

prosecuting attorney, may compel the witness to answer by granting that person immunity

from prosecution for any criminal act about which the person may testify. State v. Turner,

2014-Ohio-4678, ¶ 32, 34.

       {¶34} In the case at bar, the transcript shows that when called to the stand as the

State’s witness, Mother immediately invoked her Fifth Amendment privilege. The trial

court informed Mother of her rights and told her that not every question asked of her could

violate her right against self-incrimination. The trial court recessed the trial for the day to

allow the State to seek immunity and compel her testimony.

       {¶35} When the trial reconvened the next day, Mother was represented by

appointed counsel. The State informed the trial court it was not going to call Mother as a

witness. Defense counsel stated he intended to call Mother as a witness. Counsel

elaborated that he would not ask Mother about the events of July 4 and 5, but would

instead inquire as to Mother’s mental health issues and how they related to her

relationship with her child. Counsel stated the intention was to have the jury draw the

inference that Mother did something to the child. Mother’s appointed counsel spoke on

Mother’s behalf:

       I spoke with my client about this quite extensively. It is her intention not to

       testify at all on any matters other than her name and address if she is forced

       to. I believe that even if the issues were not directly related to the situation
Fairfield County, Case No. 16-CA-12                                                          12


       at hand, cross-examination or other questions, inferences could be drawn

       that would incriminate her, so she will be, uh, exercising her rights under

       the Fifth Amendment under any questioning.

       {¶36} Upon this record, we find the trial court conducted a sufficient inquiry to

determine the information the defense sought to elicit from Mother would violate Mother’s

right to self-incrimination. Defense counsel outlined his line of questioning to the trial court

and the intended impact of the questions upon the jury. While Mother herself was not

directly subject to the trial court’s inquiry, Mother’s interests were represented by her

appointed counsel. The implications of the defense counsel’s questions about Mother’s

mental health issues and how they related to her alleged poor relationship with her child

could incriminate Mother or furnish proof of an element or link in the chain of evidence

necessary to convict Mother of a crime. The record in this case supports the trial court’s

determination that Mother’s refusal to answer was justified.

       {¶37} Our decision is further supported by the Ohio Supreme Court’s opinion in

State v. Kirk, 72 Ohio St.3d 564, 651 N.E.2d 981 (1995). In Kirk, the defendant wanted to

call a witness as part of his defense even though the witness made it clear to the court

and to counsel that the witness would claim Fifth Amendment protection. The trial court

excused the witness from answering a subpoena and the defendant appealed. The

Supreme Court of Ohio found no error in the trial court's refusal to permit the defendant

to call the witness. The Kirk court held:

       A trial court may exclude a person from appearing as a witness on behalf

       of a criminal defendant at trial if the court determines that the witness will

       not offer any testimony, but merely intends to assert the Fifth Amendment
Fairfield County, Case No. 16-CA-12                                                      13

      privilege against self-incrimination. (Columbus v. Cooper [1990], 49 Ohio

      St.3d 42, 550 N.E.2d 937, distinguished and limited.)

Kirk, paragraph one of syllabus.

      {¶38} The trial court in this case further followed the holding in Kirk by providing a

jury instruction that the jury should draw no inference from the absence of the witness

because the witness was not available to either side. Kirk, paragraph two of syllabus.

      {¶39} We conclude the trial court was justified in finding that Mother was faced

with some authentic, objectively reasonable danger of incrimination. Upon so finding, the

trial court properly excluded Mother from appearing as a witness on behalf of the defense

because Mother was not going to offer any testimony, but merely intended to assert the

Fifth Amendment privilege.

      {¶40} Spangler’s sole Assignment of Error is overruled.

                                     CONCLUSION

      {¶41} The judgment of the Fairfield County Municipal Court is affirmed.

By: Delaney, J.,

Farmer, P.J. and

Hoffman, J., concur.
