[Cite as State v. Middleton, 2020-Ohio-1308.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2019-CA-22
                                                     :
 v.                                                  :   Trial Court Case No. CRB1801401
                                                     :
 DANIEL E. MIDDLETON                                 :   (Criminal Appeal from Municipal Court)
                                                     :
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                                OPINION

                              Rendered on the 3rd day of April, 2020.

                                                ...........

MICHAEL A. MAYER, Atty. Reg. No. 0064079, City of Fairborn Prosecuting Attorney, 510
West Main Street, Fairborn, Ohio 45324
      Attorney for Plaintiff-Appellee

BENJAMIN W. ELLIS, Atty. Reg. No. 0092449, 805-H Patterson Road, Dayton, Ohio
45419
      Attorney for Defendant-Appellant

                                                .............



WELBAUM, J.
                                                                                           -2-


       {¶ 1} Defendant-Appellant, Daniel Middleton, appeals from his convictions of

domestic violence and child endangering, both first-degree misdemeanors. According

to Middleton, the trial court erred in admitting evidence of other acts of violence because

the stated purpose of the admission was to demonstrate a pattern of bad acts, which was

prejudicial. Middleton further contends that R.C. 2919.25(A) and R.C. 2919.22(B)(1), as

applied to parental discipline, are unconstitutional because they relieve the State of its

burden of proof and presume that constitutionally-protected parental conduct is criminal.

       {¶ 2} For the reasons discussed below, we find no merit in Middleton’s arguments.

However, the trial court did lack subject-matter jurisdiction to consider the misdemeanor

charge of child endangering under R.C. 2919.22(B)(1), because R.C. 2151.23(A)(6) gives

the juvenile court exclusive original jurisdiction over such charges. Accordingly, the

conviction for child endangering is void and will be vacated. The conviction for domestic

violence will be affirmed. Due to the trial court’s merger of the domestic violence into the

child endangering for purposes of sentencing, this case will be remanded for a new

sentencing hearing on the domestic violence conviction.



                              I. Facts and Course of Proceedings

       {¶ 3} On July 20, 2018, a citation was filed in the Fairborn Municipal Court charging

Middleton with domestic violence in violation of R.C. 2919.25(A) and child endangering

in violation of R.C. 2919.22(B)(1). The citation arose from events that occurred on July

5, 2018, when Middleton’s nine-year old son, John, 1 was at Middleton’s home for



1 For purposes of privacy, we will use the pseudonym of “John” to refer to the victim in
this case.
                                                                                        -3-


parenting time. Middleton was not at home during the day, because he was working.

However, Middleton’s fiancée, CJ, and some friends went to the Beach waterpark and

took John along. They left home at about 8:00 a.m. and left the park at around 4:00 p.m.

       {¶ 4} That day, CJ did not let John get in the water or play. Instead, John was

required to sit and write sentences from the Bible because Middleton said that John had

lied when talking to a guardian ad litem in a custody proceeding between John’s parents.

Middleton had initiated the custody proceeding, and it was resolved in favor of John’s

mother, J.J., in May 2018. During the proceedings, a guardian ad litem had visited both

parties and John.

       {¶ 5} The first complaint that J.J. made about how Middleton disciplined John

occurred several months before April 2018, when Middleton texted J.J. to say he had hit

John with a belt. At that time, J.J. told Middleton that he did not need to hit John with a

belt, and that she did not want that to happen ever again. However, Middleton let her

know that he was going to keep doing what he wanted to do and what he felt was

appropriate.

       {¶ 6} Subsequently, in April 2018, J.J. filed a police report because Middleton had

hit John with a belt for a second time. J.J. also alerted the court in which she was

awaiting a custody decision. The judge in that case then told Middleton that he could not

hit John with a belt, but that he could spank with an open hand. According to John, his

father also spanked him and imposed a sentence of 1,000 Bible verses after he (John)

told the police about being hit with a belt. John was in trouble because Middleton said

he had lied to the police. Thus, Middleton imposed punishment both after John spoke to

a guardian ad litem and after John told the police about his father’s actions.
                                                                                        -4-


       {¶ 7} As noted, the events involved in this case occurred on July 5, 2018. That

year, July 4 was on a Wednesday, and J.J. had parenting time with John from 9:00 a.m.

to 9:00 p.m. that day. Because both parents attended a Dayton Dragons game that

night, they exchanged John at the game. The water park excursion occurred the next

day, on Thursday. J.J. testified that she had never spanked John and that she did not

strike him or do anything that would cause bruising on his buttocks before he left with his

father on July 4, 2018.

       {¶ 8} On Thursday, July 5, 2018, John continued to write Bible verses after he got

back from the water park. During the day, John also had some conflict with CJ at the

water park. According to John, he looked at CJ a few times, and she indicated she was

offended. She did not say why.

       {¶ 9} When Middleton got home from work that night, he talked to John and tried

to figure out the problem between John and CJ. When that did not work, Middleton told

John to take off his shorts. Middleton then spanked John 25 times on his buttocks.

John stated that it hurt a lot and that he cried. When John took a shower, there was a

little bit of blood on his bottom.

       {¶ 10} The next day (Friday), when J.J. picked John up at Middleton’s house,

Middleton and CJ approached the car. At that time, Middleton admitted that he had

spanked John, saying that he had spanked John for “mean-mugging” CJ. After J.J. and

John arrived back home, J.J. asked John if she could look at his bottom. It was deeply

bruised, and John said it hurt. Because it was late, J.J. told John he could go to their

family doctor, as the office was open the next morning. However, when J.J. called the

doctor the next morning, she was told that she needed to take John to Dayton Children’s
                                                                                       -5-


Hospital (“DCH”).

         {¶ 11} John presented at DCH on Saturday, July 7, 2018, with a concern of

physical abuse. After John arrived, a social worker gathered a history from J.J., took

pictures of John’s injuries, talked to a physician, and made mandated reports or referrals

to both Children Services and the police. J.J. told the social worker that John had been

“recurrently spanked,” that he had been spanked two days before coming to the

emergency room, and that she wanted him evaluated. Transcript of Proceedings (“Tr.”),

p. 18.

         {¶ 12} The doctor who examined John, Dr. Drazner, had been an emergency

attending physician at DCH since 1997. Dr. Drazner had been trained in recognizing

pediatric child abuse and was a mandatory reporter who was required by law and ethics

to report whenever he suspected abuse. John told Dr. Drazner that two days earlier,

Middleton had struck him repeatedly with an open hand and that he was made to lay on

the bed face down and take his pants down, but leave his underwear on.

         {¶ 13} Dr. Drazner’s examination revealed that John “had very extensive bruises

on both buttocks and they were quite severe.” Tr. at p. 119. The bruises were very

deep, were on both buttocks, and were in a location that indicated John had been hit

multiple times. According to the doctor, the injuries were consistent with the history he

was given, and he made a medical diagnosis that John had been physically abused.

         {¶ 14} The same day, Officer Keith Duncan of the Beavercreek Police Department

was dispatched to DCH and spoke with the social worker and J.J. At that time, J.J. told

Duncan that Middleton had a history of doing things she believed were very excessive in

disciplining John. J.J. also told Duncan she had filed a report in the past about concerns
                                                                                        -6-


about spanking and markings and abuse to John. In addition, she showed Duncan past

pictures of J.J. with bruising to his bottom that appeared excessive.

      {¶ 15} Officer Duncan did not speak with John at the hospital, but did talk to him

later that day at the police station. After taking pictures of John’s buttocks, Duncan

asked John to tell him his side of the story. At no time did John indicate that anyone had

spanked him other than his father.

      {¶ 16} That day, Duncan tried to reach Middleton at his home, but was

unsuccessful.   However, he was able to contact Middleton by phone.             Middleton

admitted spanking John on Thursday, July 5, 2018. Middleton said that he spanked John

because he was “mean-mugging” Middleton’s fiancée and was giving her aggressive

looks and an attitude. When Duncan asked Middleton how many times he had spanked

John on July 5, 2018, Middleton stated that he had spanked John 25 times. Tr. at pp.

140-141.

      {¶ 17} Later that day, Middleton also gave the police a written statement, again

acknowledging that he had spanked John. After Duncan’s investigation ended, there

was no evidence that anyone other than Middleton had injured John.

      {¶ 18} As noted, a citation was filed in the municipal court on July 20, 2018. A

jury trial was then held on April 24, 2019. During the trial, the State presented testimony

from J.J., John, Officer Duncan, Dr. Drazner, and the DCH social worker. Middleton did

not present any witnesses or evidence, but relied on “the affirmative defense that he was

engaged in reasonable and proper measures to discipline a child.” Tr. at p. 235. After

considering the evidence, the jury found Middleton guilty of both domestic violence and

child endangering. At sentencing, the State elected sentencing on child endangering,
                                                                                         -7-


and the court then sentenced Middleton to 180 days in jail, with 120 days suspended,

supervised community control for a maximum of five years, a mental health assessment

with follow-up treatment for anger management, parenting classes, and no contact

directly or indirectly with John for five years. This timely appeal followed.



                                    II. Other Acts Evidence

       {¶ 19} Middleton’s First Assignment of Error states that:

              Other Acts Evidence Pervaded the Trial and Was Improperly

       Admitted Because the Explicitly Stated Purpose Was to Demonstrate a

       Pattern of Bad Acts.

       {¶ 20} Under this assignment of error, Middleton contends that the trial court failed

to comply with Evid.R. 404(B) by allowing evidence of his prior bad acts. In addition,

Middleton argues that he was prejudiced because this evidence convinced the jury that

he was a bad, violent father. Middleton further contends that if the prior acts evidence is

excised, it removes much of the history the social worker and physician referenced in

their expert testimony on child abuse, and also casts doubts on J.J.’s credibility, given

that she was embroiled in a bitter custody battle with Middleton.

       {¶ 21} We review admission of other acts evidence for abuse of discretion, and

“should not disturb evidentiary decisions in the absence of an abuse of discretion that has

created material prejudice.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848

N.E.2d 810, ¶ 62. Accord State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89

N.E.3d 554, ¶ 110. Consequently, “our inquiry is confined to determining whether the

trial court acted unreasonably, arbitrarily, or unconscionably in deciding the evidentiary
                                                                                         -8-


issues * * *.” Conway at ¶ 62.

      {¶ 22} Typically, “most instances of abuse of discretion will result in decisions that

are simply unreasonable, rather than decisions that are unconscionable or arbitrary.”

AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if there is no sound

reasoning process that would support that decision.” Id.

      {¶ 23} Regarding “other acts” evidence, Evid.R. 404(B) provides that:

             Evidence of other crimes, wrongs, or acts is not admissible to prove

      the character of a person in order to show action in conformity therewith. It

      may, however, be admissible for other purposes, such as proof of motive,

      opportunity, intent, preparation, plan, knowledge, identity, or absence of

      mistake or accident.

      {¶ 24} R.C. 2945.59 further states:

             In any criminal case in which the defendant's motive or intent, the

      absence of mistake or accident on his part, or the defendant's scheme, plan,

      or system in doing an act is material, any acts of the defendant which tend

      to show his motive or intent, the absence of mistake or accident on his part,

      or the defendant's scheme, plan, or system in doing the act in question may

      be proved, whether they are contemporaneous with or prior or subsequent

      thereto, notwithstanding that such proof may show or tend to show the

      commission of another crime by the defendant.

      {¶ 25} Evid.R. 404(B) “is in accord with R.C. 2945.59,” and both the rule and

statute adopt the common law to “preclude admission of other acts evidence to prove a
                                                                                         -9-


character trait in order to demonstrate conduct in conformity with that trait * * *.”

(Citations omitted.) State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d

1278, ¶ 16. Unlike R.C. 2945.59, however, Evid.R. 404(B) “contains no reference to

materiality.” Id. at ¶ 17. “Rather, [Evid.R. 404(B)] precludes the admission of evidence

of crimes, wrongs, or acts offered to prove the character of an accused in order to

demonstrate conforming conduct, and it affords the trial court discretion to admit evidence

of other crimes, wrongs, or acts for ‘other purposes,’ including, but not limited to, those

set forth in the rule. Hence, the rule affords broad discretion to the trial judge regarding

the admission of other acts evidence.” Id.

       {¶ 26} In Williams, the Supreme Court of Ohio prescribed a three-part analysis for

considering other acts evidence. “The first step is to consider whether the other acts

evidence is relevant to making any fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence. Evid.R. 401. The

next step is to consider whether evidence of the other crimes, wrongs, or acts is presented

to prove the character of the accused in order to show activity in conformity therewith or

whether the other acts evidence is presented for a legitimate purpose, such as those

stated in Evid.R. 404(B). The third step is to consider whether the probative value of the

other acts evidence is substantially outweighed by the danger of unfair prejudice. See

Evid.R. 403.” Id. at ¶ 20.

       {¶ 27} There is no question that evidence about Middleton’s prior punishment of

John could be described as prior acts evidence. At trial, the State’s justification for

offering the evidence was based on the fact that Middleton “had been charged under the

broad section of abuse of a child, which takes into account the totality of circumstances,
                                                                                           -10-


which would be the child’s age, behavior leading up to the discipline, the response to

noncorporal punishment and any other punishment in terms of establishing a pattern of

abuse.” Tr. at p. 4. The trial court agreed with the State and allowed the evidence. Tr.

at p. 6.

       {¶ 28} The State’s argument is unavailing in the case before us, however, because

the trial court lacked subject-matter jurisdiction over the child endangering charge.

Middleton did not raise this point in the trial court or on appeal, but we are allowed to raise

subject-matter jurisdiction on our own motion at any time. Care Risk Retention Group v.

Martin, 191 Ohio App.3d 797, 2010-Ohio-6091, 947 N.E.2d 1214, ¶ 97 (2d Dist.), citing

State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d

72 (1979).    The reason is that “[s]ubject-matter jurisdiction may not be waived or

bestowed upon a court by the parties to the case.” White at 544. Notably, we have

provided the parties with an opportunity to respond to this issue, and have considered

their positions. In its response, the State has conceded the error.

       {¶ 29} The child endangering charge was brought in municipal court under R.C.

2919.22(B)(1). However, R.C. 2151.23 confers exclusive original jurisdiction of such

cases upon juvenile courts. Specifically, R.C. 2151.23 provides, in pertinent part, that:

              (A) The juvenile court has exclusive original jurisdiction under the

       Revised Code as follows:

       ***

              (6) To hear and determine all criminal cases in which an adult is

       charged with a violation of * * * division (B)(1) of section 2919.22, * * *

       provided the charge is not included in an indictment that also charges the
                                                                                           -11-


       alleged adult offender with the commission of a felony arising out of the

       same actions that are the basis of the alleged violation of * * * division (B)(1)

       of section 2919.22 * * * of the Revised Code.

(Emphasis added.) The part of R.C. 2151.23(A)(6) exempting a felony indictment from

the juvenile court’s exclusive jurisdiction does not apply here, as all the charges filed in

the Fairborn Municipal Court were misdemeanors.

       {¶ 30} We recently addressed a similar situation in State v. Taylor, 2d Dist.

Montgomery No. 27731, 2018-Ohio-4048.              In that case, the defendant had been

charged with two first-degree misdemeanor charges in Kettering Municipal Court –

assault under R.C. 2903.13(A) and (C)(1), and child endangerment under R.C.

2919.22(B)(1) and (E)(2)(a). Id. at ¶ 1. On appeal, the defendant argued, based on

R.C. 2151.23(A)(6), that the case should be remanded for dismissal because the trial

court lacked jurisdiction to try her on the child endangering charge. Id. at ¶ 20. While

the State agreed about the lack of jurisdiction, it argued the error was harmless because

the defendant was found not guilty of the child endangering charge. We disagreed,

stating that:

                Pursuant to R.C. 2151.23(A)(6), the “juvenile court has exclusive

       original jurisdiction” to “hear and determine all criminal cases in which an

       adult is charged with a violation of * * * division (B)(1) of section 2919.22” of

       the Revised Code. The trial court, then, did not have jurisdiction to

       adjudicate the criminal complaint against Taylor for endangering a child.

       Given that a “judgment rendered by a court lacking subject matter

       jurisdiction is void ab initio,” we sustain Taylor’s second assignment of error.
                                                                                          -12-


       State v. Schooler, 2d Dist. Greene No. 2003 CA 65, 2004-Ohio-2430, ¶ 16,

       citing State v. Saxon, 4th Dist. Highland No. 02 CA 15, 2003-Ohio-1199,

       ¶ 25.

               We hold that the trial court received sufficient evidence to find Taylor

       guilty of assault under R.C. 2903.13(A), and further, we hold that the trial

       court did not lose its way in evaluating the evidence before it.           The

       conviction of assault is affirmed. With respect to the charge of endangering

       a child under R.C. 2919.22(B)(1), we hold that the trial court did not have

       jurisdiction to try Taylor; therefore, the judgment related to endangering a

       child is void and is hereby vacated.

Id. at ¶ 20-21.

       {¶ 31} The same reasoning applies here.         As a result, the conviction of child

endangering is void and must be vacated, and the charge cannot be used to justify the

admission of other acts evidence. This is not the end of the analysis, however, because

appellate courts may affirm judgments based on reasoning different from that of a trial

court. “A decision that achieves the right result must be affirmed, even if the wrong

reasoning is used to justify the decision, because an error in reasoning is not prejudicial.”

John A. Becker Co. v. Jedson Eng., Inc., 2018-Ohio-3924, 121 N.E.3d 788, ¶ 19 (2d

Dist.). See also Englewood v. Turner, 178 Ohio App.3d 179, 2008-Ohio-4637, 897

N.E.2d 213, ¶ 19 (2d Dist.).

       {¶ 32} In this case, Middleton was also convicted of having violated R.C.

2919.25(A), which provides that “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.” R.C. 2901.01(A)(3) defines “physical
                                                                                           -13-


harm” as “any injury, illness, or other physiological impairment, regardless of its gravity or

duration.” “R.C. 2919.25 does not require the state to prove that a victim has sustained

actual injury since a defendant can be convicted of domestic violence for merely

attempting to cause physical harm to a family member.” State v. Nielsen, 66 Ohio

App.3d 609, 612, 585 N.E.2d 906 (6th Dist.1990).           Furthermore, “[a] slap or other

physical contact that results in temporary redness is sufficient to establish ‘physical harm’

under the domestic-violence statute.” State v. Walters, 2d Dist. Montgomery No. 22977,

2010-Ohio-304, ¶ 11.     Here, obviously, there was more than a slap and temporary

redness.

       {¶ 33} In the trial court, Middleton did not dispute that he caused physical harm or

attempted to cause physical harm to John. In fact, he admitted to having struck John 25

times, and there was no evidence of any other cause for the child’s significant bruising.

Instead, Middleton’s affirmative defense at trial was that he exercised reasonable parental

disciple, and the jury was instructed about that defense. Tr. at p. 235.2 Middleton has

also not argued on appeal that the conviction was based on insufficient evidence or was

against the manifest weight of the evidence.



2 In a decision issued on February 19, 2020, the Ohio Supreme Court resolved a conflict
among districts by holding that reasonable parental discipline is an affirmative defense to
a charge of domestic violence under R.C. 2919.25(A), rather than a component of the
physical harm element of the crime, and that an accused has the burden of proving the
defense. State v. Faggs, Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, ¶ 1 and
6-7. This holding does not affect our decision about this assignment of error, because
the issue was treated below as an affirmative defense. Furthermore, Faggs does not
affect our own jurisprudence, because we have previously held that reasonable parental
discipline is an affirmative defense. See State v. Smith, 2d Dist. Montgomery No. 28083,
2019-Ohio-2467, ¶ 25, fn.3, citing State v Thompson, 2d Dist. Miami No. 04CA30, 2006-
Ohio-582, ¶ 33.
                                                                                          -14-


       {¶ 34} Concerning the domestic violence statute, the Ohio Supreme Court has said

that it does not prevent “a parent from properly disciplining his or her child.” State v.

Suchomski, 58 Ohio St.3d 74, 75, 567 N.E.2d 1304 (1991).3 “Clearly parents are entitled

to utilize disciplinary measures for their children, however, such discipline must not be of

such gravity that it becomes unreasonable in light of the underlying cause.” State v. Ivey,

98 Ohio App.3d 249, 258, 648 N.E.2d 519 (8th Dist.).            Decisions about “whether

particular conduct constitutes proper and reasonable parental discipline must be made

from the totality of the circumstances in the case.” State v. Snyder, 8th Dist. Cuyahoga

No. 94755, 2011-Ohio-1062, ¶ 23, citing State v. Adaranijo, 153 Ohio App.3d 266, 2003-

Ohio-3822, 792 N.E.2d 1139, ¶ 13-14 (1st Dist.)

       {¶ 35} Faggs is consistent with the necessity to consider the totality of the

circumstances. In that case, the Supreme Court of Ohio noted that “[f]or reasonable

parental discipline to constitute an affirmative defense, it must first fit the definition of

either an ‘excuse’ or ‘justification.’ ” Faggs at ¶ 21, quoting R.C. 2901.05(D)(1)(b). The

court further remarked that the “justification must be ‘peculiarly within the knowledge of



3 In Faggs, the Supreme Court of Ohio did stress that “[b]y supplying an overly legalistic
and technical definition of the word ‘injury’ and linking that interpretation to the
reasonableness of the discipline imposed,” Suchomski left courts “wondering whether the
reasonableness of the discipline went toward the government’s burden to prove the
physical-harm element or a defendant’s establishment of an affirmative defense.”
Faggs, at ¶ 10. The court clarified that “[n]otably, nothing in either the text of Ohio’s
domestic-violence statute or the definition of ‘physical harm’ indicates that the state must
prove * * * that the accused’s actions while inflicting corporal punishment were
unreasonable. In fact, by including the phrase, ‘regardless of its gravity or duration,’ to
modify the scope of injuries encompassed by the term ‘physical harm to persons,’ R.C.
2901.01(A)(3), it seems that just the opposite is true: reasonableness or
unreasonableness is not an element. Instead, to prove the crime of domestic violence,
the state is only required to show that a defendant ‘knowingly cause[d] or attempt[ed] to
cause physical harm to a family or household member.’ ” Id. at ¶ 16.
                                                                                         -15-


the accused.’ ” Id. at ¶ 22, quoting R.C. 2901.05(D)(1)(b). In this regard, the court

stressed that “[i]n cases involving corporal punishment, we conclude that it is [‘peculiarly

within the knowledge of the accused’]. After all, only the charged parent or person acting

in loco parentis knows and is able to describe the corrective intent behind the use of

corporal punishment and why he or she felt it necessary to resort to such means,

including, for example, the child’s behavioral history and responses to prior discipline.”

(Emphasis added.) Id.

       {¶ 36} In the case before us, Middleton raised the affirmative defense of

reasonable parental discipline, and, therefore, placed John’s behavioral history and

response to prior discipline at issue. Accordingly, the trial court did not err in allowing

evidence concerning the discipline history, which was relevant and necessarily included

Middleton’s prior acts of discipline.

       {¶ 37} Furthermore, even if this had been otherwise, any error would have been

harmless. “Error in the admission of other act testimony is harmless when there is no

reasonable possibility that the testimony contributed to the accused's conviction.” State

v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976), paragraph three of the syllabus,

vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978).

“[A]n improper evidentiary admission under Evid.R. 404(B) may be deemed harmless

error on review when, after the tainted evidence is removed, the remaining evidence is

overwhelming.” State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,

¶ 32, citing State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983). (Other

citation omitted.) In considering the effect of erroneous admission, “an appellate court

must consider both the impact of the offending evidence on the verdict and the strength
                                                                                       -16-


of the remaining evidence after the tainted evidence is removed from the record.” Id. at

¶ 33.

        {¶ 38} After considering the evidence remaining after the alleged tainted evidence

is removed, we find the evidence of Middleton’s guilt was overwhelming. There is simply

no dispute that Middleton knowingly caused or attempted to cause physical harm to John.

This was by his own admission to the police. As noted, no other evidence was presented

to indicate that the child’s injuries were caused by anything other than the force that

Middleton used. The severity of the force was clearly disproportionate to the reason

given for administering the punishment, i.e., that John had glared at Middleton’s fiancée

that day during a trip to a waterpark. Furthermore, regardless of the disciplinary issue

involved, the punishment was clearly excessive and unreasonable.

        {¶ 39} Accordingly, for the reasons stated, the First Assignment of Error is

overruled.



                       III. Reasonable Discipline as Affirmative Defense

        {¶ 40} Middleton’s Second Assignment of Error states that:

              R.C. 2919.25(A) and R.C. 2919.22(B)(1) as Applied to Parental

        Discipline Relieve the State of Its Burden and Presum[e] Constitutionally

        Protected Conduct Is Criminal Conduct.

        {¶ 41} Under this assignment of error, Middleton contends that requiring him to

prove that his conduct was reasonable and proper corporal punishment improperly shifted

the burden and created a presumption that any corporal punishment was inherently

wrong. Middleton urges us instead to adopt the position that unreasonable parental
                                                                                            -17-


discipline was a component of physical harm that the State was required to prove.

       {¶ 42} In view of our disposition of the jurisdictional issue, we will not consider this

issue as it relates to R.C. 2919.22(B)(1). However, we will discuss R.C. 2919.25(A) and

the issue of whether reasonable parental discipline is an affirmative defense or a

component of the State’s burden. The decision of the Supreme Court of Ohio in Faggs

directly answers these questions.

       {¶ 43} In Faggs, the court commented that it was being asked “to decide whether

reasonable parental discipline is a component of the physical-harm element in Ohio's

domestic-violence and assault statutes or whether it is an affirmative defense to a charge

under those statutes.” Faggs, Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, at

¶ 1.

       {¶ 44} In that case, the defendant, Faggs, was charged with both domestic

violence under R.C. 2919.25(A) (a third-degree felony) and assault under R.C.

2903.13(A) (a first-degree misdemeanor). Id. at ¶ 2. The charges related to a beating

that Faggs gave his son for acting out in school. Id. In the trial court, Faggs asserted

that his conduct was based on “ ‘a reasonable and necessary exercise of parental

discipline and corporal punishment.’ ” Id. at ¶ 3. After being convicted of both charges,

Faggs appealed, arguing, as Middleton does here, that placing the burden on him to prove

reasonable parental control “violated his constitutionally protected ‘fundamental liberty

interest in raising and controlling his or her child.’ ” Id. at ¶ 4, quoting State v. Faggs, 5th

Dist. Delaware No. 17 CAA 10 0072, 2018-Ohio-3643, ¶ 28. The Fifth District Court of

Appeals rejected that position and affirmed the trial court’s judgment. Faggs, 5th Dist.

Delaware No. 17 CAA 10 0072, 2018-Ohio-3643, at ¶ 32.
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       {¶ 45} Subsequently, the Supreme Court of Ohio accepted a certified conflict

between the Fifth District’s decision and the decision of the Seventh District Court of

appeals in State v. Rosa, 2013-Ohio-5867, 6 N.E.3d 57 (7th Dist.), as well as Faggs’s

jurisdictional appeal, which raised the same substantive issue. Faggs, Ohio Slip Opinion

No. 2020-Ohio-523, __ N.E.3d __, at ¶ 6-7. The certified issue was whether the State

bore “the burden to prove unreasonable parental discipline” or whether “reasonable

parental discipline” was in the nature of an affirmative defense.” Id. at ¶ 7.

       {¶ 46} As we mentioned, the court first discussed its prior decision in Suchomski,

58 Ohio St.3d 74, 567 N.E. 2d 1304, which had caused some confusion “[b]y supplying

an overly legalistic and technical definition of the word ‘injury’ and linking that

interpretation to the reasonableness of the discipline imposed,” which left courts

“wondering whether the reasonableness of the discipline went toward the government’s

burden to prove the physical-harm element or a defendant’s establishment of an

affirmative defense.” Faggs at ¶ 10. In this vein, the court observed that many Ohio

appellate districts had classified reasonable parental discipline as an affirmative defense,

but the Seventh District had held otherwise by finding that under Suchomski,

reasonableness of corporal discipline was part of analyzing R.C. 2919.25(A)’s physical

harm element. Id. at ¶ 12.

       {¶ 47} Regarding R.C. 2919.25(A), the Supreme Court of Ohio found that R.C.

2919.25(A) is unambiguous and that “nothing in either the text of Ohio’s domestic-

violence statutes or the definition of ‘physical harm’ indicates that the State must prove *

* * that the accused’s actions while inflicting corporal punishment were unreasonable.”

Id. at ¶ 15-16. As we previously noted, the court went on to state that:
                                                                                        -19-


      In fact, by including the phrase, “regardless of its gravity or duration,” to

      modify the scope of injuries encompassed by the term “physical harm to

      persons,” R.C. 2901.01(A)(3), it seems that just the opposite is true:

      reasonableness or unreasonableness is not an element. Instead, to prove

      the crime of domestic violence, the state is only required to show that a

      defendant “knowingly cause[d] or attempt[ed] to cause physical harm to a

      family or household member.”         We therefore conclude that proof of

      unreasonable parental discipline is not a component of the physical-harm

      element of R.C. 2919.25(A).

Faggs, Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, at ¶ 16.

      {¶ 48} After making these observations, the court found that reasonable parental

discipline met all the elements for an affirmative defense under R.C. 2901.05(D)(1)(b):

(1) it is a “justification” because it makes “otherwise unlawful conduct lawful when there

is a sufficient reason for the defendant’s actions”; (2) the justification is “ ‘peculiarly

within’ ” the accused’s knowledge because only the charged person “knows and is able

to describe the corrective intent behind the use of corporal punishment and why he or she

felt it necessary to resort to such means, including, for example, the child’s behavioral

history and responses to prior discipline”; and (3) the accused can fairly be asked “to

introduce evidence in the form of expert-witness testimony, lay-witness testimony, or his

or her own testimony regarding the factors and surrounding circumstances discussed

above and why the level of discipline was justified.” Id. at ¶ 21-23.

      {¶ 49} Finally, the court addressed the “due process” issue, which is the issue

Middleton presents, i.e., “that treating reasonable parental discipline as an affirmative
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defense violates a defendant's right to due process by unconstitutionally placing the

burden of proof on the defendant.” Id. at ¶ 25. In addressing this point, the court noted

various decisions of its own, as well as those of United States Supreme Court, which had

held such allocations of burden of proof constitutional. Id. at ¶ 27, citing State v. Ireland,

155 Ohio St.3d 287, 2018-Ohio-4494, 121 N.E.3d 285, ¶ 40; Patterson v. New York, 432

U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); and Martin v. Ohio, 480 U.S. 228,

107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), aff’g State v. Martin, 21 Ohio St.3d 91, 94, 488

N.E.2d 166 (1986).

       {¶ 50} Based on the General Assembly’s choice about the burden of proof and the

extensive precedent, which suggested the legislature’s choice comports with due

process, the Supreme Court of Ohio held that requiring defendants “to prove the

affirmative defense of reasonable parental discipline by a preponderance of the evidence”

is constitutional. Faggs, Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, at ¶ 28.

       {¶ 51} Accordingly, in light of the Supreme Court of Ohio’s recent decision in

Faggs, the Second Assignment of Error has no merit and is overruled.



                                          IV. Conclusion

       {¶ 52} Because the trial court lacked subject-matter jurisdiction with regard to the

child endangering charge pursuant to R.C. 2151.23(A)(6), the conviction for child

endangering is void and is vacated.       The domestic violence conviction, however, is

affirmed. Because the trial court merged the domestic violence charge into the child

endangering charge, this case must be remanded for a new sentencing hearing on the

domestic violence conviction.
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                                 .............



FROELICH, J. and HALL, J., concur.



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Michael A. Mayer
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