[Cite as Cleveland v. Kirkpatrick, 2011-Ohio-2257.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 94950




                              CITY OF CLEVELAND
                                                            PLAINTIFF-APPELLEE

                                                      vs.


                                 HOLLY KIRKPATRICK

                                                            DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                     Criminal Appeal from the
                                    Cleveland Municipal Court
                                    Case No. 2008 CRB 032004

        BEFORE: Jones, J., Stewart, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                             May 12, 2011
FOR APPELLANT

John H. Lawson
Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Shannon Millard
         Bridget E. Hopp
Assistant Prosecuting Attorneys
The Justice Center, 8 Floor
                    ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Holly Kirkpatrick (“Kirkpatrick”), appeals her conviction

for endangering children.   Finding no merit to the appeal, we affirm.

                                    Procedural History and Facts

       {¶ 2} In September 2008, the city of Cleveland (“City”) charged Kirkpatrick in

Cleveland Municipal Court with endangering children.      The matter proceeded to a jury trial,

at which the following evidence was adduced.
       {¶ 3} At 3:00 p.m. on August 1, 2008, Ebony Bridges dropped off her

seven-month-old baby boy at Brightside Academy Daycare Center in Cleveland.              Bridges

forgot to sign the baby in, which she was supposed to do anytime she brought the child into

the daycare.     The baby was assigned to Infant Room 2 and had a crib with his name on it.

       {¶ 4} At the time, Brightside employed Kirkpatrick as the center’s director.           The

center closed every day at 6:30 p.m.      On August 1, Kirkpatrick and the assistant director,

Tanika White (“White”), were in charge of closing the center.      At 6:30 p.m. there were still

ten children at the center, five of whom belonged to staff.   White brought all the children into

the office and Kirkpatrick began to call the children’s parents to find out why the children had

not yet been picked up.    Bridges’s baby was not part of this group.

       {¶ 5} As part of closing the center, the employees were to “sweep the hall [and] go in

the room [and] check everywhere possible that a child may hide.”        Employees were to check

every crib, cabinets, bathrooms, and the staff lounge.        The closing procedure was to be

conducted by two staff people every night and the employees checked each room three times.

       {¶ 6} White testified that she checked “down the hall” and Kirkpatrick checked “up

the hall.”     White testified that Kirkpatrick was the last person to check Infant Room 2.

Kirkpatrick testified that she knew Bridges had not properly signed the baby in and admitted

she knew the baby was there that day because his teacher told her at 6:00 p.m. that he had not

been picked up.
         {¶ 7} Kirkpatrick testified that she called the baby’s aunt, who told her that the baby’s

father, Eddie Humphrey, would be there before 6:30 p.m. to pick up the baby.

         {¶ 8} After the last child was picked up, Kirkpatrick and White left Brightside

between 7:00 and 7:15 p.m., with the baby still in his crib in Infant Room 2.         Kirkpatrick

testified that it was White who had the duty to do the final sweep of the building to check for

children and that White went back in the building to do a final sweep, telling Kirkpatrick that

it was “all clear.”

         {¶ 9} When Bridges returned home from work, she discovered her baby was not

there.   She thought the baby’s father or another relative was going to pick the baby up at

Brightside.    Bridges went to the police station to report her son missing.   Humphrey met her

there.   The parents and a police officer drove to Brightside but the center was locked down

with steel security doors and the officer was unable to gain entry into the building.       They

returned to the police station, where officers tracked down Kirkpatrick’s home phone number.

         {¶ 10} Officer Richard Delvecchio (“Delvecchio”) testified that he called Kirkpatrick

around 10:30 p.m., informing her that a child may be trapped inside the building.         He told

Kirkpatrick that she needed to immediately return to the center so the police could get into the

building.     Officer Delvecchio testified that his understanding from talking with Kirkpatrick

was that she would meet him at Brightside and that she would keep her cell phone on her in

case police needed to reach her.      Officer Delvecchio returned to Brightside with two other
police officers and the baby’s parents.       Conversely, Kirkpatrick testified that she had no

contact from the Cleveland police that evening.

         {¶ 11} White testified that around 12 a.m., Kirkpatrick called her to see if she could

return to Brightside because “there may be a child in there.”        White said she would go to

Brightside but when she got into her car, it would not start.      White testified that she called

Kirkpatrick back to inform her that he car would not start and told Kirkpatrick that she would

call Delphine Landrum (“Landrum”), the employee in charge of opening up the center in the

mornings.     Kirkpatrick testified that she called White and told her to go check the sign-in

logbook because Bridges’s baby was missing; at that time, Kirkpatrick said she did not think

the baby was in the building.

         {¶ 12} The police returned to Brightside, but discovered that Kirkpatrick had not

arrived to open the center.     Officer Delvecchio repeatedly tried to call Kirkpatrick on her cell

phone.    Kirkpatrick finally answered but immediately hung up on the officer.          The police

sergeant on the scene also tried to call Kirkpatrick but she hung up on the sergeant too.

         {¶ 13} About 11 p.m., the Cleveland police contacted the Euclid police to see if they

would send a car to Kirkpatrick’s house.        Officer Krysiak was dispatched to Kirkpatrick’s

house.    He knocked upon arrival, but she did not answer.       The officer left her a note to call

Cleveland police.    He returned a second time at 1 a.m.        Kirkpatrick finally answered the

door, in her bathrobe, and told the officer she had sent someone to the child care center.
Officer Krysiak testified that Kirkpatrick did not appear “real intent on going to meet

Cleveland whenever they wanted her to go.”

        {¶ 14} Cleveland police were ultimately able to get in contact with Landrum who let

officers into Brightside at 12:30 a.m.    Officers found the baby in his crib in Infant Room 2.

The baby was standing up, with dried tears and mucus on his face, and his blanket had fallen

out of his crib.   Witnesses testified that it was    cold inside the center.   The baby was

transported to the hospital and was checked out by a doctor; he did not sustain any physical

injuries.

        {¶ 15} While the police were at Brightside, the phone rang and Landrum answered.

On the other end of the phone was Kirkpatrick, who said “Ms. White?”        Landrum answered

that it was her, not White.      Kirkpatrick screamed and immediately hung up.     Kirkpatrick

called back and Landrum told her “Ms. Holly, do not hang this phone up.         Don’t hang the

phone up, the police need to speak with you.”

        {¶ 16} At no time that evening did Kirkpatrick return to the daycare center or inquire

about the welfare of the baby.

        {¶ 17} Brightside Academy terminated Kirkpatrick and White, who were both charged

with endangering children.       White entered the municipal court’s diversion program and the

charges against her were dismissed when she completed the program.
       {¶ 18} The jury convicted Kirkpatrick of endangering children and the trial court

sentenced her to one day in jail as well as 700 hours of community service and one year of

probation.

       {¶ 19} Kirkpatrick appeals, raising the following assignments of error for our review:

       {¶ 20} “I.  The jury’s guilty verdict was against the sufficiency of the evidence and
must be overruled in that three elements were not proven beyond a reasonable doubt.

       {¶ 21} “II. Appellant was denied her Sixth Amendment right to effective assistance of

trial counsel when her trial attorney failed to ask the trial [court] to compel the City of

Cleveland to respond to her ‘Request for Bill of Particulars.’”

                          Sufficiency and Manifest Weight of the Evidence

       {¶ 22} In the first assignment of error, Kirkpatrick contends that the City failed to

present sufficient evidence to sustain the endangering children conviction and her conviction

was against the manifest weight of the evidence.

       {¶ 23} The legal concepts of sufficiency of the evidence and weight of the evidence are

both quantitatively and qualitatively different.    State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus.      In State v. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 492, the Ohio Supreme Court delineated the role of an appellate

court presented with a sufficiency of the evidence argument as follows:

       {¶ 24} “An appellate court’s function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt.     The relevant inquiry is whether, after viewing the evidence in a

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

elements of the crime proven beyond a reasonable doubt. * * * ”        Id. at paragraph two of the

syllabus.

       {¶ 25} A manifest weight of the evidence claim requires a different review.             The

weight of the evidence concerns the inclination of the greater amount of credible evidence

offered to support one side of the issue rather than the other. State v. Brindley, Franklin App.

No. 01AP-926, 2002-Ohio-2425, ¶16.          When presented with a challenge to the manifest

weight of the evidence, an appellate court, after “‘reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’”   Thompkins, supra at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172,

175, 485 N.E.2d 717.      An appellate court should reserve reversal of a conviction as being

against the manifest weight of the evidence for only the most “‘exceptional case in which the

evidence weighs heavily against the conviction.’”     Id.

       {¶ 26} Although sufficiency and manifest weight are different legal concepts, manifest

weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction

is supported by the manifest weight of the evidence necessarily includes a finding of
sufficiency.    State v. Braxton, Franklin App. No. 04AP-725, 2005-Ohio-2198, ¶ 15.

“[T]hus, a determination that a conviction is supported by the weight of the evidence will also

be dispositive of the issue of sufficiency.” Id.

       {¶ 27} The jury convicted Kirkpatrick of endangering children, in violation of R.C.

2919.22, which provides in pertinent part:

       {¶ 28} “(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.”

       {¶ 29} Kirkpatrick claims that the City was unable to show: 1) that she had custody or

control over the baby, 2) that she acted recklessly, or 3) that she created a substantial risk to

the baby’s health or safety.   We disagree.

       {¶ 30} The evidence presented at trial shows that Kirkpatrick was the director of the

daycare and the supervisor in charge on the day the baby was left at the daycare.          Both White

and Landrum testified that Kirkpatrick was responsible for the children and was a “hands-on”

director.   Kirkpatrick was the last person who was supposed to check Infant Room 2 and left

the building with White that evening.      As the director of the daycare who was present and

closed the building, Kirkpatrick had custody and control over the child.

       {¶ 31} As to whether Kirkpatrick acted recklessly, the City provided sufficient

evidence that she acted recklessly by not properly following closing procedures and by
refusing to assist the police officers in gaining access to the daycare center.     A person acts

recklessly when, with heedless indifference to the consequences, she perversely disregards a

known risk that her conduct is likely to cause a certain result or is likely to be of a certain

nature.     R.C. 2901.22(C).    White testified that Kirkpatrick was the last person charged with

checking Infant Room 2.        Moreover, once Kirkpatrick learned that a child may have been left

at Brightside, she did nothing to assist police other than call another employee of the center.

She evaded multiple attempts by two police departments to contact her.         Once she knew that

a child might have been left behind in the daycare center, it was another three hours before

police could access the center, even though Kirkpatrick only lived 35 minutes from the center.

          {¶ 32} Finally, the city provided sufficient evidence that Kirkpatrick created a

substantial risk to the baby’s health and safety.    A “substantial risk,” however, requires only

a “strong possibility * * * that a certain result may occur * * *,” not that a certain result

actually occurred or definitely would occur.      R.C. 2901.01(A)(8).      Thus, although the baby

was not harmed, an actual showing of harm is not required.       Certainly, a rational trier of fact

could find that Kirkpatrick’s behavior created a substantial risk of harm to the baby.

          {¶ 33} Therefore, we find the city presented sufficient evidence of endangering

children.    We further find that the conviction was not against the manifest weight of the

evidence.     The first assignment of error is overruled.

                                   Effective Assistance of Trial Counsel
       {¶ 34} In the second assignment of error, Kirkpatrick alleges that her counsel was

ineffective for failing to ask the trial court to compel the city to respond to the bill of

particulars.

       {¶ 35} To reverse a conviction for ineffective assistance of counsel, the defendant must

prove “(1) that counsel’s performance fell below an objective standard of reasonableness, and

(2) that counsel’s deficient performance prejudiced the defendant resulting in an unreliable or

fundamentally unfair outcome of the proceeding.”      State v. Madrigal, 87 Ohio St.3d 378,

388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland v. Washington (1984), 466 U.S.

668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674.

       {¶ 36} As to the second element of the test, the defendant must establish “that there

exists a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different.”    State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373,

paragraph three of the syllabus; Strickland at 686. In evaluating whether a petitioner has been

denied effective assistance of counsel, the Ohio Supreme Court held that the test is “whether

the accused, under all the circumstances, had a fair trial and substantial justice was done.”

State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304, paragraph four of the syllabus.

       {¶ 37} This court must presume that a licensed attorney is competent and that the

challenged action is the product of sound trial strategy and falls within the wide range of

professional assistance.      Strickland at 689.      Courts must generally refrain from

second-guessing trial counsel’s strategy, even where that strategy is questionable, and
appellate counsel claims that a different strategy would have been more effective. State v.

Jalowiec, 91 Ohio St.3d 220, 237, 2001-Ohio-26, 744 N.E.2d 163.

         {¶ 38} Kirkpatrick claims that if her attorney had motioned the court to compel the city

to answer a bill of particulars filed by her previous attorney, the outcome of the trial would

have been different because the city relied so heavily on Kirkpatrick’s actions after she left the

baby in the daycare center.      Had the bill of particulars been filed, Kirkpatrick argues her

counsel would have been more fully prepared to counter allegations that Kirkpatrick was

unresponsive to police inquiries.    But a criminal defendant is generally not prejudiced by the

state’s failure to provide a bill of particulars where the underlying indictment clearly identifies

the criminal statute that a defendant is being charged with violating, the exact time frame

during which the crimes occurred, and the county or location where the alleged crimes took

place.    See State v. Brown (1993), 90 Ohio App.3d 674, 682, 630 N.E.2d 397.           Moreover,

by proceeding to trial without a bill of particulars, a defendant waives any claim of error

concerning the failure to receive a bill of particulars. State v. Roy (Oct. 12, 1995), Cuyahoga

App. No. 67462.

         {¶ 39} We find that based on the foregoing, Kirkpatrick has not shown to a reasonable

degree of probability that but for her counsel’s failure to file a motion to compel, the outcome

of the trial would have been different.      Simply put, defense counsel’s performance did not

rise to the level of ineffective assistance of counsel.

         {¶ 40} Therefore, the second assignment of error is overruled.
     Accordingly, judgment is affirmed.

     It is ordered that appellee recover of appellant costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

Cleveland Municipal Court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
