[Cite as State v. Hrinko, 2017-Ohio-51.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                 :       Hon. W. Scott Gwin, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
SARAH HRINKO                                 :       Case No. CT2016-0015
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CRB-1501059



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    January 6, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    DAVID A. SAMS
Prosecuting Attorney                                 Box 40
                                                     West Jefferson, Ohio 43162
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney                       ADAM J. GROSSHANDLER
Muskingum County, Ohio                               38 N. 4th
27 North Fifth Street, P.O. Box 189                  Zanesville, Ohio 43701
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0015                                                  2

Baldwin, J.

       {¶1}   Defendant-appellant Sarah Hrinko appeals her conviction and sentence

from the Muskingum County Court on one count of child endangering. Plaintiff-appellee

is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 21, 2015, a complaint was filed in the Muskingum County

Court charging appellant with one count of child endangering in violation of R.C.

2919.22(A), a misdemeanor of the first degree. At her arraignment on January 8, 2016,

appellant entered a plea of not guilty to the charge.

       {¶3}   Thereafter, a bench trial was held on February 22, 2016. At the bench trial,

Detective Gary Hargraves of the Muskingum County Sheriff’s Office testified that he was

on duty on the afternoon of December 19, 2015 in a high crime and narcotics area when

he observed a man going up to the door of an apartment that was known for drug dealing.

He identified the man as Timothy Hrinko and noticed that he had a warrant for his arrest.

       {¶4}   The Detective testified that Timothy Hrinko was driving a red station wagon

and had been pacing outside the apartment complex for some time while talking on a cell

phone. Detective Hargraves then parked next to the station wagon and discovered that

appellant also was in the vehicle along with the couple’s seven year old child, who was

not in a safety seat. The station wagon contained clothing, blankets and pots and pans.

When Timothy Hrinko was patted down, the Detective discovered two hypodermic

syringes on him that looked like they had recently been used and arrested Timothy Hrinko

on the outstanding warrant.
Muskingum County, Case No. CT2016-0015                                                       3


      {¶5}    Detective Hargraves testified that he spoke with appellant and learned that

she also had an outstanding warrant. Appellant told him that she and her husband had

been using heroin and that they were in the area to find a place to stay since they had

been living out of their vehicle. Detective Hargraves testified that he observed fresh

injection sites on appellant’s forearms. When asked about the child, he testified that she

did not look malnourished and was wearing clothes. After arresting appellant, the

Detective contacted Children’s Services to take custody of the child.

      {¶6}    On cross-examination, Detective Hargraves admitted that he had not

personally observed appellant inject heroin or any drug activity. He testified that Timothy

Hrinko went to the apartment of a known heroin dealer.

      {¶7}    At trial, Timothy Hrinko testified that he went to the apartment to spend the

night after appellant was molested by her grandfather and they had to leave where they

had been staying. He denied being at the apartment to buy heroin and denied ever using

heroin in front of his daughter. On cross-examination, he was unable to remember the

last name of the individual who lived at the specific apartment, but testified that he had

been to the apartment before to purchase heroin. He further denied that appellant had

any idea where they were going. Timothy Hrinko also testified that they were going to

lend their vehicle to the heroin dealer in exchange for a place to stay. He admitted that

both he and his wife had fresh track marks on their arms. When questioned by the trial

court, he testified that both he and appellant had used heroin the day before.

      {¶8}    At the conclusion of the trial, the trial court found appellant guilty. Appellant

was sentenced to 30 days in jail and placed on 12 months of probation.

       {¶9}   Appellant now appeals, raising the following assignment of error on appeal:
Muskingum County, Case No. CT2016-0015                                                     4


       {¶10} THE CONVICTION FOR CHILD ENDANGERING WAS BASED ON

INSUFFICIENT EVIDENCE AND WAS OTHERWISE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

                                                 I

       {¶11} Appellant, in her sole assignment of error, argues that her conviction for

child endangering was against the manifest weight and sufficiency of the evidence. We

disagree.

       {¶12} 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. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “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.”

       {¶13} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and 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 jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must
Muskingum County, Case No. CT2016-0015                                                      5

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶14} Appellant was found guilty of child endangering in violation of R.C.

2919.22(A). Such section states as follows:

              (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. It is not a violation of a duty

       of care, protection, or support under this division when the parent, guardian,

       custodian, or person having custody or control of a child treats the physical

       or mental illness or defect of the child by spiritual means through prayer

       alone, in accordance with the tenets of a recognized religious body.

       {¶15} R.C. 2901.01(A)(8) provides that “’Substantial risk’ means a strong

possibility, as contrasted with a remote or significant possibility, that a certain result may

occur or that certain circumstances may exist.” Although not stated in R.C. § 2919.22,

recklessness is the culpable mental state for the crime of child endangering. State v.

O'Brien, 30 Ohio St.3d 122, 508 N.E.2d 144 (1987); State v. Conley, 5th Dist. Perry App.

No. 03–CA–18, 2005–Ohio–3257 at ¶ 20. Recklessness is defined in R.C. 2901.22(C),

which states as follows:
Muskingum County, Case No. CT2016-0015                                                      6


               A person acts recklessly when, with heedless indifference to the

       consequences, the person disregards a substantial and unjustifiable risk

       that the person's conduct is likely to cause a certain result or is likely to be

       of a certain nature. A person is reckless with respect to circumstances

       when, with heedless indifference to the consequences, the person

       disregards a substantial and unjustifiable risk that such circumstances are

       likely to exist.

       {¶16} As noted by the trial court at the conclusion of the trial, there was testimony

that both appellant and her husband had recently used heroin and were driving around in

a high-risk drug area shortly thereafter with their child in the vehicle. Both had fresh track

marks on their arms and recently used hypodermic needles were found on Timothy

Hrinko’s person. The couple’s child was not in a safety seat and the couple was going to

lend their vehicle to a drug dealer in order to have a place to stay at a residence where

they had purchased drugs before. Up to that point, they had been living out of their vehicle

in December.

       {¶17} Based on the foregoing, we find appellant’s conviction for child endangering

was not against the manifest weight and sufficiency of the evidence. We find that there

was sufficient evidence that appellant recklessly created a substantial risk to her child’s

health and safety by violating a duty of care or protection and that the trial court did not

create a manifest miscarriage of justice by convicting appellant of child endangering.

       {¶18} Appellant’s sole assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2016-0015                                             7


      {¶19} Accordingly, the judgment of the Muskingum County Court is affirmed.

By: Baldwin, J.

Farmer, P.J. and

Gwin, J. concur.
