[Cite as State v. D.F., 2017-Ohio-534.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104410



                                          STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                              D.F.
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                               VACATED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AC 15118072

        BEFORE: Stewart, P.J., S. Gallagher, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 16, 2017
ATTORNEY FOR APPELLANT

Tyresha Brown-O’Neal
614 West Superior Avenue, Suite 1144
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Shannon M. Raley
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

      {¶1} Having been convicted of a single count of interference with custody in

violation of R.C. 2919.23(A)(1), defendant-appellant D.F. requested that this appeal be

placed on this court’s accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. By

doing so, she has agreed that we may render a decision in “brief and conclusionary form”

consistent with App.R. 11.1(E).

      {¶2} We sustain D.F.’s first assignment of error regarding the sufficiency of the

evidence to support the conviction. The state failed to prove that D.F. acted knowingly

or recklessly without privilege to keep her child beyond the terms of the parenting

schedule.
       {¶3} The child’s father (the custodial parent) testified that he and D.F. often

deviated from the parenting schedule, including the incident forming the basis for the

complaint. Although the father testified that he did not give D.F. permission to keep

their child for the period in question, there was no evidence to prove that the parties

actually discussed the child’s return date.            With no evidence of any specific

understanding as to when the child would be returned, and the fact that the parties

routinely deviated from the parenting schedule, the father’s testimony regarding his

subjective understanding of the matter did not prove what D.F. knew or should have

understood. And although the father testified that he attempted to call or text message

D.F. to inquire about the child’s return, he did so for only one day, with no evidence that

D.F. received those calls or messages. The father testified that the prosecuting attorney’s

office told him to stop trying to contact her after the first day.

       {¶4} Unlike scenarios that demonstrate a defendant’s culpable mental state to

prove interference with custody, see, e.g., State v. Sprinkle, 12th Dist. Warren No.

CA2003-08-101, 2007-Ohio-4967, in this case, the state offered insufficient evidence to

prove beyond a reasonable doubt that D.F. knowingly or recklessly kept their child

without privilege to do so.

       {¶5} Judgment vacated and remanded to the trial court for further proceedings

consistent with this opinion.

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

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate be sent to the common pleas court — juvenile

division 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.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
