[Cite as State v. Luke, 2011-Ohio-4330.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY



STATE OF OHIO,                                           CASE NO. 14-10-26
   PLAINTIFF-APPELLEE,
  v.
CHRISTOPHER LUKE,                                          OPINION
   DEFENDANT-APPELLANT.




                        Appeal from Marysville Municipal Court
                            Trial Court No. CRB 1000463

                       Judgment Reversed and Cause Remanded

                            Date of Decision: August 29, 2011




APPEARANCES:

        Alison Boggs for Appellant

        Anthony W. Eufinger for Appellee
Case No. 14-10-26



ROGERS, P.J.,

       {¶1} Defendant–Appellant, Christopher Luke (“Christopher” or “Father”),

appeals from the judgment of the Marysville Municipal Court sentencing him to a

one hundred eighty day jail term and ordering him to pay a $300.00 fine. On

appeal, Christopher contends that the trial court’s decision was against the

manifest weight of the evidence because it did not consider Christopher’s

affirmative defense of parental discipline; and, that the trial court applied the

wrong legal standard in reviewing the evidence. Based on the following, we

reverse the judgment of the trial court.

       {¶2} In June 2010, a criminal complaint was filed against Christopher

charging him with a single count of domestic violence against a family member in

violation of R.C. 2919.25(A), a misdemeanor of the first degree. The complaint

arose following an incident during which Christopher pushed his son, Coleton

Luke (“Cole”), into a bar stool and slapped him in the face. In that same month,

Christopher entered a plea of not guilty to the charge.

       {¶3} On August 25, 2010, the matter proceeded to a bench trial. The

following testimony and evidence were adduced at trial. Cole testified that on

June 8, 2010 (“the eighth”) and June 9, 2010 (“the ninth”), he was fifteen years old

and resided with his Father and his step-mother, Jennifer Luke (“Jennifer”). On

the eighth, he and his Father had two arguments. The first argument occurred after

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his Father informed him that he could not take drivers education classes. The

second argument stemmed from his failure to hang-up his clothes. As a result of

these arguments Christopher spanked Cole, and assigned Cole household chores

for the remainder of the summer.

       {¶4} Cole continued that on the morning of the ninth he helped his younger

brother dress for the day. Shortly thereafter, his Father began yelling at him about

how he dressed his younger brother. His Father also yelled at him for not hanging

up his clothes. As his Father was yelling at him for not hanging up his clothes, his

Father pushed him into a bar stool and slapped him in the face, with an open hand,

causing his head to hit the wall. Jennifer was in the room and witnessed the

incident. Cole testified that his face was red where his Father slapped him and that

he had a headache for the remainder of the day. Cole continued that his Father

stated that “the next time he hit [him] he was going to use a fist and hit [him]

between the eyes. And that he was going to put his fist through the back of [his]

skull.” Trial Tr., p. 13. Cole testified that he did not talk back to his Father or say

anything disrespectful to his Father on the eighth or the ninth. Cole further

testified that prior to the incident his Father had never slapped him in the face.

After the incident Jennifer took Cole to his mother’s residence.

       {¶5} On cross-examination, Cole testified that on the seventh or the eighth

of June, 2010, he and his Father had an argument about Cole traveling to Iowa to

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take pictures of livestock with his grandfather. Cole continued that his Father

prohibited him from traveling to Iowa because his Father did not think he was

responsible. As Cole was explaining why his Father would not let him travel to

Iowa, the State objected, resulting in the following colloquy.

       The Court: Yeah. I think we’re getting a little far afield, so.

       Mr. Holtschulte: Well, I’ll let it go at that and cover it later on,
       but I think we’re getting the string here of what’s going on as far
       as the parent/child relationship.

       The Court: I don’t think there’s - - either [he] hit him or he
       didn’t. I don’t see what’s the - -

Trial Tr., p. 22.

       {¶6} Jennifer testified that Christopher is her husband, and that Cole is her

step-son. Jennifer continued that after Cole was notified that he was not allowed

to take drivers education classes Cole’s attitude changed, and he became verbally

defiant. Jennifer continued that on the ninth, Christopher was yelling at Cole,

while Cole stood next to the bar. Christopher pushed Cole who landed in a bar

stool causing it to slide against the wall. After being pushed, Cole made what

Jennifer perceived to be a “smart” remark to Christopher. Although Jennifer could

not discern the exact contents of Cole’s remark, she stated that Cole said

“something like I didn’t care, you can’t make me.” Trial Tr., p. 26. After Cole’s

remark, Christopher slapped Cole in the face. Christopher then told Cole that he

was leaving and that he did not want Cole in the residence when he returned.
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Consequently, Jennifer drove Cole to his mother’s residence. Later that day,

Jennifer gave a written statement to the sheriff’s department. Jennifer’s written

statement explained that Christopher told Cole that “[t]he next time it will be a fist

blasting you right between the eyes.” Trial Tr., p. 30.

       {¶7} On cross-examination, Jennifer testified that it was difficult to punish

Cole, as he did not text on his cell phone, did not invite friends over, and did not

go out with friends.    Accordingly, Cole’s punishments were often limited to

household chores. Jennifer continued that a week prior to the incident she and

Christopher told Cole that he could not attend drivers education classes. As a

result of this prohibition, Jennifer testified that Cole became “mouthy” and

verbally defiant.

       {¶8} During cross-examination, Jennifer was asked whether Christopher

and Cole had an argument about traveling to Iowa. The State objected on grounds

of relevance. The trial court agreed, and the following colloquy took place.

       Mr. Holtschulte: This goes to counter the testimony of Cole
       himself who said we’ve already heard that there’s a different
       version of the drivers ed. We’ve already heard there’s a
       different version of whether or not he said anything to his father.
       I think it’s critical.

       The Court: What does it have to do with the domestic violence
       charge is my question. (sic)

       Mr. Holtschulte: Well, it has to do with parental discipline, your
       Honor.

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       The Court: Well, I think that, you know, that’s the issue. I don’t
       care - - I guess I’m not sure why - - I’m not sure I care why he
       disciplined him. The question for me is whether it was
       reasonable discipline. So I don’t know that all that has anything
       to do with the - - that it’s relevant.

Trial Tr., p. 34.

       {¶9} Officer Kelly Nauman, a deputy sheriff with the Union County

Sheriff’s Department, testified that on June 9, 2010, Officer Tom Morgan asked

her to meet with Jennifer and take her statement about the incident. Officer

Nauman testified that Jennifer was visibly upset. Officer Nauman further testified

that she met with Cole and noticed that he had red marks on both sides of his face.

As a result of her experience working on cases involving allegations of domestic

violence, Officer Nauman testified that based on Cole’s and Jennifer’s account of

the incident she concluded that Christopher had assaulted Cole.

       {¶10} Officer Morgan, a chief deputy with the Union County Sheriff’s

Department, testified that on June 9, 2010, he was dispatched to the Marysville

Police Department to investigate a domestic dispute complaint.             At the

department, Officer Morgan spoke with Jennifer and Christopher. Officer Morgan

testified that he spoke with Christopher, who was visibly upset and apologetic.

Officer Morgan continued that Christopher informed him about the arguments he

and Cole had on the eighth and the ninth, and that during one of the arguments he



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slapped Cole in the face with an open hand. Officer Morgan could not recall

whether Christopher attempted to justify his actions as disciplinary.

       {¶11} After Officer Morgan testified the State rested. Christopher moved

for an acquittal pursuant to Crim.R. 29(A), but the trial court denied his motion.

       {¶12} Christopher testified that he and Cole had two arguments on June 8,

2010. The first argument stemmed from an incident that occurred two weeks

prior. That incident involved Cole running over bicycles in the driveway and

admitting that he saw them but did not care to stop. As a result, Christopher and

Jennifer informed Cole that he was not mature enough to begin drivers education

classes and prohibited Cole from attending classes. Related to this argument was

an argument concerning Cole’s trip to Iowa. Christopher testified that Cole had

planned on traveling to Iowa to photograph livestock with his grandfather. Cole,

however, had not sought Christopher’s or his mother’s permission. Accordingly,

Christopher informed Cole that he could not travel to Iowa, to which Cole

responded that Christopher could not stop him from traveling to Iowa. The second

argument stemmed from Cole’s failure to do the laundry. Christopher testified

that on the morning of the eighth he came downstairs and found a basket of dirty

laundry, which had been sitting there for approximately three days. Christopher

asked Cole to do the laundry, but Cole became upset and argumentative, stating



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that he would do as he pleased. As a result of Cole’s behavior, Christopher

spanked Cole.

       {¶13} Christopher continued that on June 9, 2010, he asked Cole to dress

his younger brother. When Christopher checked on Cole’s brother he found him

wearing a winter windbreaker. Christopher asked Cole why he would dress his

brother in winter clothing in June. Cole responded that it was easier. Shortly

thereafter, Christopher discovered that Cole had not started the laundry from the

previous day. Christopher asked Cole to start the laundry, but Cole responded that

he would do it when he pleased. To ensure Cole started the laundry, Christopher

stood near Cole and watched him start the laundry. After Cole started the laundry

he sat down.    Christopher reminded Cole to complete his remaining chores.

Christopher testified that Cole stood up from his seat and got in his face and

stated, “I’ll do what I want to do. You ain’t going to stop me. I’m the man.”

Trial Tr., p. 66. Christopher continued that he grabbed Cole by the shoulder and

pushed him into a bar stool. Christopher demanded that Cole “knock it off,” to

which Cole responded that Christopher could not stop him from doing what he

wanted to do. Christopher warned Cole that if he continued to be verbally defiant

he was going to be slapped. Cole did not relent so Christopher slapped Cole in his

face, in an attempt to “control” Cole. Christopher testified that he had never

slapped any of his children in the face, and that he felt guilty and remorseful about

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the incident. Christopher further testified that he had tried other means to control

Cole such as taking his cell phone away, grounding him, or spanking him, but that

those means of control had not been effective in the weeks preceding the incident.

       {¶14} After the incident, Christopher testified that he left his residence

because he was angry and wanted to avoid further confrontation.           On cross-

examination, the State presented Christopher with a police report containing

Christopher’s statements to the police concerning the incident. At the State’s

request, Christopher read a portion of the report, which stated that the slap was not

Cole’s fault.    Christopher further testified that he had not made any of the

threatening statements discussed earlier during trial.

       {¶15} At the close of all the evidence the trial court found Christopher

guilty; however, the parties had not been permitted the opportunity of making

closing arguments. Defense counsel then requested closing arguments, which the

trial court allowed. After closing arguments, the trial court reasserted its finding

of guilt, stating:

       While the court does find the defendant guilty, I don’t think
       there was any issue of - - I don’t think there was - - this was
       discipline when Mr. Luke smacked his son. I don’t think - - I
       think he just flew off the handle. The boy mouthed off to him
       and he flew off the handle and he hit him. So I don’t - - I didn’t
       hear any testimony or evidence that it was in any way meant to
       discipline him. So the court has made a finding of guilty. * * *



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Trial Tr., p. 85. Thereafter, the trial court proceeded to sentence Christopher to a

one hundred eighty day jail term, with one hundred eighty days suspended on the

condition of successful completion of three years of probation, and ordered him to

pay a $300.00 fine, with $150.00 suspended on the condition of successful

completion of three years of probation.

       {¶16} It is from this judgment that Christopher appeals, presenting the

following assignments of error for our review.

                                Assignment of Error No. I

       THE TRIAL COURT’S DECISION WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE, HAD IT TAKEN
       INTO ACCOUNT APPELLANT’S AFFIRMATIVE DEFENSE
       OF PARENTAL DISCIPLINE.

                               Assignment of Error No. II

       THE TRIAL COURT APPLIED THE WRONG LEGAL
       STANDARD IN REVIEWING AND WEIGHING THE
       EVIDENCE.

       {¶17} Due to the nature of Christopher’s assignments of error, we elect to

address his second assignment of error first.

                                Assignment of Error No. II

       {¶18} In his second assignment of error, Christopher contends that the trial

court applied the wrong legal standard in reviewing and weighing the evidence.

We agree.


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        {¶19} Determining whether the trial court applied the wrong legal standard

in reviewing and weighing the evidence presents a question of law. Consequently,

we conduct a de novo review. See State v. Moore, 161 Ohio App.3d 778, 788,

2005-Ohio-3311, ¶36; Yost v. Yost, 4th Dist. No. 02CA2852, 2003-Ohio-3754, ¶6.

        {¶20} Christopher was convicted of violating R.C. 2919.25(A), which

provides:

        No person shall knowingly cause or attempt to cause physical
        harm to a family or household member.

        {¶21} Where an alleged incident of domestic violence occurs between a

parent and child, the parent may raise parental discipline as an affirmative defense.

See State v. Suchomski (1991), 58 Ohio St.3d 74, 75; State v. Hauenstein (1997),

121 Ohio App.3d 511, 516.1 The Supreme Court of Ohio has recognized that a

parent is not prohibited from using corporal punishment when disciplining his or

her child. Id. Rather:

        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 (6 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.


1
 An affirmative defense is one “involving an excuse or justification peculiarly within the knowledge of the
accused, on which he can fairly be required to adduce supporting evidence.” R.C. 2901.05(C)(2). “The
burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a
preponderance of the evidence, for an affirmative defense, is upon the accused.” R.C. 2901.05(A).
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Id. “Proper” has been defined as “suitable or appropriate,” and “reasonable” has

been defined as “not extreme or excessive.” Hauenstein, 121 Ohio App.3d at 516,

citing State v. Hicks (1993), 88 Ohio App.3d 515, 520.

           {¶22} Whether parental discipline is “extreme or excessive” is determined

in light of the totality of the circumstances. State v. Hart (1996), 110 Ohio App.3d

250, 256. In analyzing the totality of the 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.2 In re J.L., 176 Ohio App.3d 186, 199, 2008-Ohio-

1488, ¶35, citing Hart, supra; State v. Jones (2000), 140 Ohio App.3d 422, 430.

           {¶23} Christopher contends that the trial court did not consider the events

leading up to the incident in question, and, as a result, the trial court failed to

properly consider the merits of his defense of parental discipline. In support,

Christopher cites State v. Wagster, 1st Dist. No. C-950584, 1996 WL 134538;

State v. Hause, 2d Dist. No. 17614, 1999 WL 959184; and, In re J.L., 176 Ohio

App.3d 186, 2008-Ohio-1488.

           {¶24} In Wagster, the father was convicted of domestic violence, in

violation of R.C. 2919.25(A), after slapping his daughter with the back of his

2
    We will refer to this multi-factor analysis as “the Hart analysis.”

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hand. Prior to the incident, the daughter’s step-mother instructed her to put away

audio tapes that she had been using. The daughter began screaming and acting

uncontrollably. The father tried talking to his daughter, but the daughter continued

to scream and act out. The father slapped his daughter in the face in an attempt to

calm her down. The slap caused the daughter’s lip to bleed. On appeal, the father

argued that his conviction was against the manifest weight of the evidence. The

court of appeals agreed, stating, “taking into account all the facts and

circumstances in this particular case, we hold that the discipline administered by

appellant to [the daughter] was proper and reasonable.”        (Emphasis Added.)

Wagster, 1996 WL 134538, *3.

       {¶25} In Hause, the father was convicted of domestic violence, in violation

of R.C. 2919.25(A), after slapping his seventeen-year-old son in the face. The son

had a history of threatening his father and trouble with law enforcement. On the

night of the incident, the son and his sister got into an argument. The father told

the siblings to stop fighting, and ordered his son to bed. Instead of going to bed,

the son went into his father’s bedroom and called his mother with his father’s

phone. The father demanded that his son return the phone to his bedroom. The

son refused, and an argument ensued. During the argument, the father slapped his

son in the face with an open hand leaving a red mark. On appeal, the father

argued that his conviction was against the manifest weight of the evidence. The

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court of appeals agreed, stating that “[w]hether any given conduct is reasonable is

a question that must be determined with reference to all the relevant facts and

circumstances.” (Emphasis Added.) Hause, 1999 WL 959184, *3. Considering

all the relevant facts and circumstances, the court of appeals reversed the father’s

conviction.

       {¶26} In J.L., the trial court, having found that the mother had neglected

and abused her three-year-old child, granted the Allen County Children Services

Board permanent custody of the child. On appeal, the child’s mother argued that

the trial court erred in finding that she had abused the child. The record revealed

that the mother had repeatedly spanked the child with a belt causing severe

bruising on the child’s legs. This Court, citing the Hart analysis, found that the

trial court only considered one of the factors, i.e., the location and severity of the

punishment. As a result, this Court found that the trial court’s finding of abuse

was not supported by a proper legal analysis. Based on this and other findings of

error, this Court reversed the trial court’s judgment.

       {¶27} Although factually distinguishable from the present case, the

foregoing cases are relevant as they instruct that the proper approach in analyzing

the reasonableness of a parent’s disciplinary act is to examine not just the act

itself, but rather, the totality of the circumstances surrounding the act, and to

assess those circumstances in light of each factor of the Hart analysis.

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       {¶28} Upon review of the record, we find that the trial court erred in two

respects. First, the trial court failed to apply the applicable law, i.e., the Hart

analysis, when addressing the reasonableness of Christopher’s actions. Second,

the trial court failed to consider relevant evidence proffered in support of

Christopher’s defense of parental discipline.

       {¶29} We first consider the trial court’s failure to apply the applicable law.

Review of the record reveals two instances where the trial court, while ruling upon

evidentiary objections, failed to apply the applicable law. The first instance occurs

during Cole’s cross-examination. Defense counsel asked Cole about the argument

he had with Christopher concerning his trip to Iowa. The State objected on

grounds of relevance, and the trial court agreed, stating “I don’t think there’s - -

either [he] hit him or he didn’t.” Trial Tr., p. 22. This statement is contrary to the

holdings in Hart, Wagster, Hause, and J.L., which dictate that a trial court, in

addressing the defense of parental discipline, must consider the totality of the

circumstances. When considering the totality of the circumstances in a case where

a parent has raised the defense of parental discipline, the trial court must apply the

Hart analysis in its entirety. Failure to do so will result in error. See J.L, supra.

Here, we find that the trial court’s foregoing statement reveals that its

consideration was narrowly tailored to the slap, and not the events leading up to



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and surrounding the slap. By focusing its consideration on the slap, the trial court

failed to apply the applicable law.

       {¶30} The trial court also failed to apply the applicable law during

Jennifer’s cross-examination. During Jennifer’s cross-examination, Christopher’s

defense counsel questioned Jennifer about the argument between Christopher and

Cole concerning Cole’s trip to Iowa. The State objected on grounds of relevance,

and the trial court sustained the objection, stating “I guess I’m not sure I care why

[Christopher] disciplined [Cole]. The question for me is whether it was reasonable

discipline.” Trial Tr., p. 34. This statement is indicative of the trial court’s failure

to apply the applicable law set forth in the Hart analysis. One cannot determine

the reasonableness of corporal punishment without also considering the reason for

which it was administered. Considering the factors set forth in Hart, particularly

the factor instructing the trier of fact to consider the child’s behavior leading up to

the discipline, it is clear that addressing why a parent disciplined his or her child is

crucial in determining whether the discipline was reasonable.

       {¶31} Accordingly, the trial court’s failure to consider why Christopher

slapped Cole further demonstrates the trial court’s failure to apply the applicable

law.

       {¶32} In addition to failing to apply the applicable law, the trial court also

failed to consider relevant evidence proffered in support of Christopher’s defense

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of parental discipline. In summarizing its findings, the trial court stated that it

“didn’t hear any testimony or evidence that [the slap] was in any way meant to

discipline [Cole].” Trial Tr., p. 85. In spite of this finding, the record contains

testimony that goes to each factor of the Hart analysis. The record contains

evidence of Cole’s age, his behavior leading up to the slap, Christopher and

Jennifer’s attempts of non-corporal punishment (i.e., no drivers education classes,

no cell phone, and chores), the location and the severity of the slap, and

Christopher’s state of mind. The trial court should have considered this evidence

as it is highly relevant in determining the reasonableness of Christopher’s actions.

The trial court, however, seemingly focuses on only one of the factors,

Christopher’s state of mind, finding that “[Christopher] just flew off the handle.”

Trial Tr., p. 85. Consideration of only one factor in a multi-factor analysis,

especially where there is evidence that goes to each factor, is error. See J.L.,

2008-Ohio-1488, ¶37.

       {¶33} Further, in considering the child’s response to prior non-corporal

punishment, the trial court must consider the form of the discipline. If a child has

failed to respond to simple forms of discipline, such as loss of privileges or

additional chores, a reasonable progression of other forms of discipline may be

reasonable, including at some point, corporal punishment.         Also, whether a

progression in the form of corporal punishment has occurred should be considered

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as a part of the totality of the circumstances. There was evidence presented in this

case that a progression of types or forms of discipline had occured.

       {¶34} Having found that the trial court failed to apply the applicable law

and failed to consider evidence relevant in determining the reasonableness of

Christopher’s actions, we find that the trial court erred.

       {¶35} Accordingly, we sustain Christopher’s second assignment of error.

       {¶36} Our resolution of Christopher’s second assignment of error renders

his first assignment of error moot, and we decline to address it.           App.R.

12(A)(1)(c).

       {¶37} Having found error prejudicial to the Christopher herein, in the

particulars assigned and argued in his second assignment of error, we reverse the

judgment of the trial court and remand the matter for further proceedings

consistent with this opinion.

                                         Judgment Reversed and Cause Remanded

SHAW and PRESTON, J.J., concur.

/jnc




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