[Cite as State v. Cook, 2019-Ohio-3650.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A Delaney, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
ASHLEY COOK                                  :       Case No. 18-CA-43
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County
                                                     Municipal Court, Case No. CRB
                                                     1602531




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    September 9, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL E. COGLEY                                     APRIL F. CAMPBELL
Lancaster City Prosecutor's Office                   Campbell Law, LLC
P.O. Box 1008                                        545 Metro Place South, Ste. 100
Lancaster, Ohio 43130                                Dublin, Ohio 43017
Fairfield County, Case No. 18-CA-43                                                  2

Baldwin, J.


       {¶1}   Ashley Cook appeals her conviction for violations of R.C. 2919.22(A) and

2912.22(B)(1), (Endangering Children) and 2903.13(A) (Assault) all misdemeanors of the

first degree. Appellee is the State of Ohio.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellant was indicted on two counts of endangering children, two counts

of complicity to commit child endangering and one count of assault after a day care center

discovered what they described as serious bruising on three year old W.K.'s

buttocks. Appellant admitted to spanking W.K. on more than one occasion during a three

day period, but denied that contact could create any bruising. Instead, Appellant and her

fiancé, the child's father, blamed a collision with the large family dog that knocked W.K.

to the ground.

       {¶3}   The State offered the testimony of an emergency room doctor that rejected

Appellant's explanation. The doctor concluded the injuries were consistent with child

abuse. The State also provided evidence that W.K. had no bruises before he was left in

the custody of Appellant and that the bruises were noticed shortly after he left her custody.

       {¶4}   Appellant now asks for reversal of the verdict based upon alleged violations

of her state and federal right to confront her accuser, that impermissible hearsay was

admitted and that she was improperly prevented from presenting a "corporal punishment"

defense. She also contends the evidence was insufficient and against the manifest

weight of the evidence.

       {¶5}   W.K. is the son of Melissa Kish and Mathew Kish, born in June 2013. W.K.

had just turned three years old when he and his older sister were delivered to their father's
Fairfield County, Case No. 18-CA-43                                                 3


home on July 10, 2016 for normal visitation. (W.K.'s parents are divorced.) Appellant

was Mr. Kish's fiancé at that time and had three children of her own, living with her and

Mr. Kish. From July 10 through July 13, when Mr. Kish was at work, Appellant was

responsible for the care and supervision of all five children.

       {¶6}   W.K. was having difficulty with potty training and he had multiple accidents

during the three day period. His accidents frustrated Appellant and Mr. Kish. Appellant

was particularly frustrated with W.K.'s denial that he had soiled his clothing. A transcript

of Appellant's testimony from a custody hearing involving W.K. reflected Appellant's

frustration and confirmed that she spanked him for lying, complaining "That entire

weekend he kept peeing either on the floor or in his pants ***' and "I mean, after so many

times, it don't make sense why he keeps lying." (Exhibit 8, pp. 319-320). She attempted

to limit the number of times she spanked W.K. for this issue, but her testimony would

support a conclusion that she struck him several times and that she "*** just did it ***and

didn't really think about it." (Exhibit 8, p. 341). Later she acknowledged that she may

have been "too stressed" "upset" and acted in an "aggressive manner" but she denies

striking W.K. too hard. (Exhibit 8, p. 345).

       {¶7}   W.K. exhibited no injuries on his buttocks prior to being left in Appellant's

care, according to Mr. Kish. On Tuesday evening, July 12, Mr. Kish noted bruising that

had not been present prior to leaving W.K. with Appellant. W.K. did not tell Mr. Kish that

he was suffering from any soreness or that Appellant had caused him any pain.

(Transcript p. 125, lines 10-11; p.126, lines 13-18) and neither Mr. Kish nor Appellant took

any action regarding the bruising. (Transcript p. 125, lines 1-11) W.K. was knocked down
Fairfield County, Case No. 18-CA-43                                                 4


by the family dog during this time and it startled W.K., but Mr. Kish did not believe he

suffered any injuries.

       {¶8}   In the past, W.K. would have been in pre-school on Tuesday and returned

to his Mother's custody, but for reasons not fully disclosed in the record, W.K. stayed with

his Father and Appellant an additional day and did not go to preschool on Tuesday.

(Transcript p. 101, lines 21-23; p. 152, lines 19-22).

       {¶9}   W.K. was delivered to pre-school on Wednesday, July 13, and shortly after

arriving he soiled his pants. One of his teachers, Brittany Sutton, was cleaning him and

noticed severe, black, blue, purple and red bruising across his buttocks. Concerned that

these bruises might be painful, she asked W.K. if she was hurting while she cleaned and

he responded "no." She asked "how did you get your boo-boos" and W.K. responded that

"Ashley did it at daddy's house." When asked why, W.K. mentioned something about

pottying, but this issue was not pursued any further.

       {¶10} Ms. Sutton reported the incident to her supervisor and completed an

incident report. She called Mr. Kish and asked him about the bruising and he confirmed

he had seen it, but his response could be best described as indifferent. Ms. Sutton

concluded the injuries warranted a report to Child Protective Services.

       {¶11} W.K.'s mother came to the daycare that afternoon and for the first time was

told about the bruises. She examined her son, photographed the bruises and took him

to the emergency room at Nationwide Children's Hospital. The physicians at the hospital

examined W.K. and completed tests to rule out internal injuries. W.K. was free from

internal injuries, but had several contusions. The final assessment stated "Given the

location and number of the contusions on patient's buttocks, patient's injuries are
Fairfield County, Case No. 18-CA-43                                                5


consisted (sic) with nonaccidental injury." (Exhibit 6, p. 26). W.K.’s mother called the

Fairfield County Sheriff's Office and filed a report on July 14, 2016.

       {¶12} The Fairfield County Sheriff's Office contacted Appellant and she appeared

at the Sheriff's Office on September 28, 2016. Appellant explained how the family dog

had knocked W.K. down in the gravel driveway. Detective Meadows, the interviewing

officer, also spoke with them about the spanking administered for the potty training

accidents. Appellant described one incident where W.K. vomited and when cleaning that

mess discovered that he had soiled his pants. She recited the conversation she had with

W.K., asking "did you poop your pants" to which he consistently answered no. She said

that she had "had enough" and left W.K. in the room.

       {¶13} She explained to Det. Meadows that the collision with the dog caused the

bruises but admitted the spanking probably "did not help."

       {¶14} On October 5, 2016, the state filed a complaint charging Appellant with

violations of R.C. 2903.13, 2919.22 and 2923.03.

       {¶15} On May 30, 2017, Appellant filed a motion to suppress the testimony of W.K.

and his sister, contending they were not competent to testify due to their young age.

Appellant concluded the motion by requesting "an in-camera inspection (sic) of K.B. (sic)

to examine the witnesses’ ability to testify in the above listed matter or for statements

(that may otherwise qualify for a hearsay exception) made by either witness to be used

during trial." The record does not contain evidence of an "in camera inspection" of any

witness.

       {¶16} On June 5, 2017, Appellee filed "State's Pre-Trial Motion on Admissibility of

W.K.'s Out-Court-Statement" citing Ohio v. Clarke, 135 S. Ct. 2173, 192 L.E.2d 306, 83
Fairfield County, Case No. 18-CA-43                                                       6


USLW 4484 (2015) in support of its contention that W.K.'s statement should be admitted

as an exception to the hearsay rule under Evid. R. 807.

       {¶17} A hearing was conducted on June 29, 2017 and though the trial court opens

the hearing by referring to the Appellant's motion to suppress, it is evident that the trial

court and the parties conducted some discussions that are not part of the record as the

trial court notes:

       {¶18} “Mr. Shroy, you had filed a motion to suppress. When we were here last

time, Mr. Cogley presented the Court with the case of State vs. Clark. You wanted some

time to review that matter. What do you want to tell me?” June 29, 2017 Transcript, p. 3,

lines 5-9.

       {¶19} Appellant's counsel conceded that Ohio v. Clark was on point, but argued

that the statements were not reliable but it is not clear which statements are being

discussed. He does reference "a specific allegation that Ashley is the one who spanked

him" and seems to contend that because that statement does not appear in the incident

report completed by the daycare center, the statement must be deemed unreliable.

Counsel also contends the context of an ongoing custody battle undermines the reliability

of the statement. The Appellee responds and the court concludes:



               Well, that's for the jury to decide and the trier of fact. I find that State

               vs. Clark is very much on point. The Supreme Court of the United

               States has spoken on 807. I'm going to allow the testimony.
Fairfield County, Case No. 18-CA-43                                                   7


       {¶20} In response, Appellant's counsel states: “Your Honor, the Court's making

that ruling has not given the defense an opportunity to put on any testimony. I would just

note that for the record.” The transcript from that hearing contains no request to present

testimony, nor any proffer of testimony or evidence.

       {¶21} The trial court did not make any findings of fact or refer to the analysis

described in Evid. R. 807.

       {¶22} While the record is not clear, it is reasonable to conclude that the statement

discussed at the June hearing is W.K.'s response to the day care teacher: "Ashley did it

at daddy's." That statement is introduced at trial by appellee in its opening statement and

is repeated by witnesses from the day care center without any objection by Appellant. In

fact, Appellant cross examines one day care worker in such a manner as to suggest that

counsel has resigned himself to the admissibility of the statement and will attempt to use

it to his client's advantage. He challenges the day care worker's failure to call the

authorities after W.K. made this allegation. He continues this strategy of attacking the

statement by cross examining W.K.'s father, inquiring as to whether W.K. complained of

any pain or mistreatment by Appellant during that weekend. Appellant is also first to

reference the statement in closing argument. He states:



              You are hearing from them, well, he said Ashley might have done it.

              That is from what we can detect about 4:00 o'clock when the child's

              mom goes there to pick him up that that sort of statement first comes

              to light because no one talks to the mom, no one seems to do any
Fairfield County, Case No. 18-CA-43                                                    8


                investigation, no one calls Child Protective Services, no one calls the

                sheriff's deputies.

Transcript, p. 216, lines 10-16.

          {¶23} Later, Appellant's counsel mentions the statement once more in an

argument that can be interpreted as an attempt to discredit the people reporting the

statement and to undermine any weight the jury might give to the day care worker's

report:

                And when you look at the evidence and you think of what these

                witnesses said, and more importantly didn't say because you're not

                hearing that he repeated Ashley did this to me. You're not even

                hearing someone say we had a forensic examiner go in and talk to

                him. Nobody did that. You're not even hearing anybody talk about

                him saying his (indiscernible). You heard a few daycare teachers say

                he said Ashley spanked him. We know Ashley spanked him.

P. 222, lines 16-24; p. 223, line 1.



          {¶24} Appellee did not mention W.K.'s statement in closing, but did speak about

it in rebuttal, presumably because Appellant's counsel had used it in his client's defense.

          {¶25} Appellant's strategy failed and Appellant was convicted. Appellant filed a

timely notice of appeal and submitted five assignments of error:

          {¶26} “I. BECAUSE ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION

AFFORDS GREATER PROTECTION THAN THE SIXTH AMENDMENT, COOK'S
Fairfield County, Case No. 18-CA-43                                     9


RIGHT TO CONFRONT HER ACCUSER WAS VIOLATED AT TRIAL BY THE STATE'S

INTRODUCTION OF W.K.'S STATEMENTS TO HIS CHILDCARE WORKER.”

      {¶27} “II. COOK'S RIGHT TO CONFRONT HER ACCUSER UNDER THE

CONFRONTATION CLAUSE WAS LIKEWISE VIOLATED BY THE STATE'S

INTRODUCTION OF W.K.'S STATEMENTS TO HIS CHILDCARE WORKER.”

      {¶28} “III. COOK'S CONVICTIONS SHOULD BE REVERSED BECAUSE COOK

WAS DENIED HER RIGHT TO A FAIR TRIAL: THE TRIAL COURT PROHIBITED COOK

FROM ASSERTING A VIABLE DEFENSE; THE STATE'S (sic) INTRODUCED

SUBSTANTIVE INADMISSIBLE HEARSAY AT TRIAL; AND THE PROSECUTOR

ENGAGED IN MISCONDUCT IN CLOSING.”

      A. PROHIBITING      COOK        FROM   ASSERTING   A   CORPORAL

         PUNISHMENT DEFENSE, AND NOT INSTRUCTING THE JURY ON

         THE USE OF PARENTAL DISCIPLINE DENIED COOK HER RIGHT

         TO A FAIR TRIAL.

      B. THE STATE ADMISSION OF SUBSTANTIVE INADMISSABLE

         HEARSAY- W.K.’S STATEMENTS DENIED COOK HER RIGHT TO A

         FAIR TRIAL.

      C. THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT IN

         CLOSING AGRGUMENTS, WHICH PREJUDICIALLY AFFECTED

         COOK’S RIGHT TO A FAIR TRIAL.

      D. CUMULATIVE ERROR AT TRIAL DENIED COOK’S RIGHT TO A FAIR

         ONE.
Fairfield County, Case No. 18-CA-43                                                  10


       {¶29} “IV. COOK'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE

STATE'S EVIDENCE THAT COOK ASSAULTED W.K. OR ENDANGERED HIM, WAS

LEGALLY INSUFFICIENT.”

       {¶30} “V. COOK'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE

JURY FAILED TO CONSIDER THE DEFENSE OF PARENTAL DISCIPLINE, WHICH

MANIFESTLY WEIGHTS (SIC) AGAINST CONVICTING HER.”

                                  STANDARD OF REVIEW

       {¶31} Appellant’s Assignments of Error One through Three address matters that

were not brought to the attention of the trial court and thus limit our review to determining

whether the trial court committed plain error. We will discuss our standard of review for

the first three assignments in this section. Our standard of review for Assignments Four

and Five will be addressed within the analysis of those Assignments.

       {¶32} Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” We

apply the doctrine of plain error cautiously and only under exceptional circumstances to

prevent a manifest miscarriage of justice. State v. Rohaley, 5th Dist. Stark No.

1998CA00092, 1999 WL 4505, *7. In that regard, “[T]he test for plain error is stringent.”

State v. Ellison, 4th Dist. No. 16CA16, 2017-Ohio-284, 81 N.E.3d 853, ¶27. “To prevail

under this standard, the defendant must establish that an error occurred, it was obvious,

and it affected his or her substantial rights.” State v. Spaulding, 151 Ohio St.3d 378, 2016-

Ohio-8126, 89 N.E.3d 554, ¶ 64. An error affects substantial rights only if it changes the

outcome of the trial. Id. We notice plain error only to prevent a manifest miscarriage of

justice. State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, 2016 WL
Fairfield County, Case No. 18-CA-43                                                   11

1071457, ¶ 59, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. The defendant carries the burden to establish the

existence of plain error, unlike the situation in a claim of harmless error, where the burden

lies with the state.

                                        ANALYSIS

       {¶33} Appellant's First and Second Assignments of Error as well as subsection B

of her Third Assignment of Error focus upon W.K.'s statement to his day care teachers,

so we will address those assignments simultaneously.

       {¶34} Appellant asserts that the admission of W.K.'s statement violates her rights

under the Article I, Section 10, of the Ohio Constitution (First Assignment of Error), the

Sixth Amendment/Confrontation Clause of the United States Constitution (Second

Assignment of Error), and constitutes impermissible hearsay (Third Assignment of Error,

Subsection B). Though Appellant is claiming the trial court was wrong to permit the

Appellee to introduce W.K.'s statement at trial, Appellant did not object to its the use, so

our review is limited to determining whether the trial court committed plain error.

       {¶35} The trial court did conduct a hearing regarding the admission of the

statement in response to the Appellant's Motion to Suppress and Appellee's Notice of

intent to use the statement. The trial court concluded that the statement would be

permitted, but this ruling, focusing upon Evid. R. 807 is insufficient to preserve the

Appellant's purported objection. The ruling at the June 28, 2107 hearing was at best a

preliminary ruling on an evidentiary matter, not unlike the decision of a motion in limine.

The purpose of the Evid. R. 807 hearing includes reaching "***an initial determination as

to the admissibility of the child's statements***" and permitting the state to file an "***
Fairfield County, Case No. 18-CA-43                                                   12


interlocutory appeal if the trial court's ruling on the child's availability and/or the

admissibility of the child's extrajudicial statements so hinders the state's evidence that the

state cannot proceed with its case." State v. Storch, 66 Ohio St.3d 280, 293 1993-Ohio-

38, 612 N.E.2d 305, syllabus, paragraph 1. The language in Storch supports our

conclusion that the trial court’s ruling was a preliminary evidentiary ruling.

       {¶36} Evidence Rule 103(A)(1) requires a "timely objection or motion to strike***

stating the specific ground of objection, if the specific ground was not apparent from the

context" to preserve the errors alleged by Appellant. During the trial Appellant did not

renew her objections to the introduction of the statement of W.K. and thus waived all but

plain error. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 70.

We recognize that the motions at issue were not captioned as motions in limine, but the

ultimate goal and therefore, the resultant consequences, are indistinguishable. Appellant

was obligated to object to the use of the statement at trial and did not do so, waiving any

error except for plain error.

       {¶37} Appellant has not argued plain error and, after review of the file, we cannot

find plain error that would support the First or Second Assignment of Error or the Third

Assignment of Error, subsection B. With regard to the First and Second Assignments of

Error regarding the Appellant's right of confrontation, the statement at issue is not

testimonial and therefor fails to satisfy the requirements established in Ohio v. Clark. In

Clark, the Court found that "a statement cannot fall within the Confrontation Clause unless

its primary purpose was testimonial. “Where no such primary purpose exists, the

admissibility of a statement is the concern of state and federal rules of evidence, not the

Confrontation Clause.” Ohio v. Clark, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015)
Fairfield County, Case No. 18-CA-43                                                 13

quoting Michigan v. Bryant, 562 U.S. 344, 359, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93

(2011).The subject statement in Clark was a comment made by a three year old to his

pre-school teachers. The statement in this case is likewise that of a three year old to his

pre-school teachers. In both Clark and the case at bar, the teachers noted injuries and

were concerned for the safety of the child. Clark, supra at 2181; Trial Transcript. p. 53,

lines 10-14; p. 78, lines 18-22. Also, as in Clark, there is no indication that the primary

purpose of the conversation was to gather evidence for Appellant's prosecution. The

teacher’s first objective was to protect the child and they never informed him his answers

would be used to arrest or punish the appellant. The child never hinted that he intended

his statements to be used by the police or prosecutors and the conversation was informal

and spontaneous. The child was asked about his injuries immediately upon discovering

them while being cleaned after a bathroom accident. The conversation was quite unlike

any formalized stationhouse questioning or police interrogation. Id. at 2181.The Clark

court concludes that statements by very young children rarely, if ever, implicate the

confrontation clause because few preschool students understand the details of our

criminal justice system. The Supreme Court concluded and we are bound by the finding

that "it is extremely unlikely that a 3-year-old child in [W.K.'s] position would intend his

statements to be a substitute for trial testimony. On the contrary, a young child in the

circumstances would simply want the abuse to end, would want to protect other victims,

or would have no discernible purpose at all." Clark, supra at 2182.

       {¶38} We find no grounds to support a conclusion of any error that resulted in a

violation of Appellant's right to confrontation under the United States Constitution and we

reach the same conclusion with regard to the Ohio Constitution despite Appellant's
Fairfield County, Case No. 18-CA-43                                                     14

contention that her right to confrontation is heightened by the State of Ohio. In State v.

Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36, the court held that the

"objective witness" test would be adopted in Ohio. And, in determining whether statement

was testimonial for Confrontation Clause purposes, “courts should focus on the

expectation of the declarant at the time of making the statement." While described

differently, in the context of this case the "objective witness" test is sufficiently similar to

the Clark "primary purpose" test as both focus upon the intent of the declarant, and, when

the declarant is a three year old child questioned about the source of an injury, both tests

result in a conclusion that the child's statement is not testimonial. A three year old child

is not likely to have the capacity to intend or expect his testimony to be submitted at trial.

       {¶39} We hold that W.K.'s statement was not testimonial and that Appellant's

confrontation rights under the United States Constitution and the Ohio Constitution were

not violated by the admission of W.K.'s statement. We find no plain error with regard to

the First and Second Assignment of Error and deny the same.

       {¶40} Appellant’s Third Assignment of Error, subsection B, alleges the trial court

erred by admitting W.K.'s statement because it was hearsay and not admissible under

any exception listed in the Rules of Evidence. Appellant did not object to the admission

of the statement, so she has waived all but plain error.

       {¶41} W.K.’s statement was a simple response to the daycare teacher's question

when she noticed the bruising on W.K.'s buttocks. After asking whether she was hurting

him while cleaning the bruised area, she asked "how did you get your boo-boos?" and he

responded "Ashley did it daddy's house." (Trial Transcript, pp. 45-46).             No further

questions were posed to W.K. and the medical record of his visit to Nationwide Children's
Fairfield County, Case No. 18-CA-43                                                   15


Hospital shows that he did not respond to questions regarding the source of the bruises.

As Appellant did not object to the use of this statement by the Appellee in its opening

statement, during the trial or in rebuttal at closing, our review is limited to determining if

the trial court committed plain error. Appellant does not provide any argument to support

a finding of plain error and upon review of the record we cannot conclude that plain error

existed.

       {¶42} We cannot conclude that, in the absence of this statement the outcome of

the trial would have changed. W.K. was left in the care of Appellant and the record

contains sufficient evidence to support a conclusion that he did not have the bruises when

he was left with her. The bruises were noticed by W.K.'s father after Appellant had sole

access to W.K. and during that time Appellant did spank W.K. and was very frustrated

with W.K.'s failure to confess to potty training accidents. Appellant noticed the bruises

but did not consider them serious and attempted to blame a collision with the family dog.

Emily Sentman, MD, examined W.K. and concluded that the bruises were not consistent

with either a fall caused by the family dog or spanking, but could only have been the result

of forceful repeating striking with a hard object that had a round surface.

       {¶43} Appellee evidently did not find the statement significant as it did not include

any reference to the statement in its initial closing comments. Appellant used it in her

closing in what can be interpreted as an attempt to undermine the credibility of the state's

witnesses who were aware of the statement, but did not immediately contact the

authorities or the mother of the child. Appellant cross-examined the father of the child

regarding other statements that may have been made by W.K. regarding his bruises

presumably in an attempt to lessen the impact of W.K.'s statement to the day care
Fairfield County, Case No. 18-CA-43                                                16


workers. The record supports a conclusion that appellant had decided to weave the

admission of this statement into her defense strategy. Her counsel’s cross examination

regarding other statements by W.K. can be viewed as a tacit waiver of any objection to

the admission of the subject statement. State v. Miller, 56 Ohio App.3d 130, 565 N.E.2d

840, (1st Dist.1988), syllabus 1, State v. Steele, 5th Dist. Stark No. CA-8541, 1991 WL

270669, *3 (Dec. 9, 1991). Further, the record supports a conclusion that Appellant made

a strategic decision to not object to the admission of the statement in the presence of the

jury and risk a prejudicial response, and to use the fact that W.K. made no other statement

and that there was no concerted effort to obtain another statement to undermine the

significance of the single comment. We do not find plain error in this strategic decision.

“The Ohio Supreme Court has stated “[w]e will ordinarily refrain from second-guessing

strategic decisions counsel make at trial, even where counsel's trial strategy was

questionable. State v. Clayton, 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 402 N.E.2d 1189

(1980).” State v. Myers, 97 Ohio St.3d 335, 362, 780 N.E.2d 186, 217 (2002) as quoted

in State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, ¶ 133. “We will not

second-guess the strategic decisions counsel made at trial even though appellate counsel

now argue that they would have defended differently.” State v. Post, 32 Ohio St.3d 380,

388, 513 N.E.2d 754 (1987) as cited in State v. Mason, 82 Ohio St.3d 144, 169, 1998-

Ohio-370, 694 N.E.2d 932 (1998).

      {¶44} We cannot conclude that the exclusion of W.K.'s statement would have

changed the outcome of the trial or that there was a manifest miscarriage of justice at the

trial court and we conclude that appellant's failure to object and exploration of the
Fairfield County, Case No. 18-CA-43                                                    17


statements made or not made by W.K. were part of trial strategy. We hold that there was

no plain error and overrule Section B of the Third Assignment of Error.

                                              III A.


       {¶45} In subsection A of the Third Assignment of Error, Appellant asserts that the

trial court erred by prohibiting Cook from asserting a corporal punishment defense, and

not instructing the jury on the use of parental discipline. Appellant did not proffer any

evidence or argument regarding a corporal punishment defense, nor did Appellant comply

with Crim.R. 30 regarding jury instructions, so this court is limited to reviewing the record

for plain error.

       {¶46} The trial court and counsel discussed the issue of parental discipline and

jury instructions beginning on page five of the transcript, but it is difficult to discern

Appellant's position from trial counsel's comments. Prior to voir dire Appellant's trial

counsel states: "I hadn't really looked into an instruction on corporal punishment. I wanted

to see kind of how the evidence played out and if it was appropriate ***." The trial court

responds "We will consider that when it comes time." (Trial Transcript, p.5, lines 7-18).

The issue is revisited on page seven of the transcript when Appellee objects to allowing

it at trial because Appellant is not a parent. Appellant's counsel disagrees and contends

that the defense is available to anyone action in loco parentis, but then notes "it's not

going to be a centerpiece of our defense that there was corporal punishment used and

that it's totally legal. I don't want it to become a centerpiece of the prosecution that she's

not allowed to do it. If she was acting in loco parentis and I think that in this case she was,

I think she would have the same defenses. So if I'm wrong about case law, I'm happy to

review it. It might make this a moot point." (Trial Transcript, p.7, line 24; p. 8, lines 1-7).
Fairfield County, Case No. 18-CA-43                                                      18


Appellee again contends that only a parent has the right to administer discipline and the

trial court rules "that corporal punishment shall be excluded. She does not have the ability

to assert it and we'll proceed on that basis." (Trial Transcript, p.9, lines 5-7).

       {¶47} The trial court’s ruling on this issue was akin to a motion in limine as it was

a preliminary ruling and the final.      Appellant did not attempt to assert this defense

throughout the trial, nor did she proffer any evidence on the matter and therefor she has

waived all be plain error.

       {¶48} Parental discipline is an affirmative defense to a charge of child

endangering. See, State v. Snell, 5th Dist. Stark Nos.2002CA00181, 2002CA00190,

2003–Ohio–975, ¶ 30 as quoted in State v. Phillips, 5th Dist. Holmes No. 14-CA-003,

2014-Ohio-5322, ¶ 18, but this same opinion makes clear in several citations that the law

does not interfere with the parent's right to administer corporal punishment. The law

prohibits extreme or excessive discipline as a means to balance the competing interest

of the "the parents' fundamental, inalienable right to raise and control their children and

the state's legitimate interest in the protection and safety of children and in the reporting

of child abuse.” Phillips, supra at ¶ 19. (Emphasis added.) We cannot find plain error in

the trial court's initial ruling that Appellant was not entitled to the defense and the fact that

Appellant did not attempt to offer the defense at trial or proffer evidence or argument limits

our analysis to this conclusion.

       {¶49} We note that Appellant was able to present evidence that she was caring

for W.K., that she was participating in his training and, within the transcript from the

concurrent custody hearing, that W.K.'s mother consented to her spanking W.K. (Exhibit

8, p. 332). Without a proffer by Appellant it is difficult to imagine what additional evidence
Fairfield County, Case No. 18-CA-43                                                     19


could be introduced had the trial court permitted the assertion of the defense of parental

discipline.

       {¶50} As to the alleged failure to include a jury instruction regarding parental

discipline, we likewise find no plain error. Appellant did not submit a proposed jury

instruction nor did he object to the instructions given to the jury before the jury retired to

consider its verdict, "stating specifically the matter objected to and the grounds of the

objection." Crim. R. 30(A). Because we find that the trial court did not commit plain error

by not permitting the affirmative defense of parental discipline, we can only conclude that

there is no plain error when the court does not include a jury instruction on that same

issue, particularly when Appellant did not offer such an instruction.

                                               III C.


       {¶51} In Subsection C of the Third Assignment of Error, Appellant contends the

State engaged in prosecutorial misconduct in closing arguments, which prejudicially

affected Cook's right to a fair trial. Appellant did not object to these comments at trial, thus

waiving all but plain error. State v. White, 82 Ohio St.3d 16, 22, 1998–Ohio–363, 693

N.E.2d 772, quoting State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992). We

therefore review Appellant's allegations under the plain-error standard.

       {¶52} The test for prosecutorial misconduct is whether the prosecutor's remarks

and comments were improper and if so, whether those remarks and comments

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596

(1990). In reviewing allegations of prosecutorial misconduct, we must review the
Fairfield County, Case No. 18-CA-43                                                    20

complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S.

168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

       {¶53} Appellant relies upon the case of State v. Smith, 14 Ohio St.3d 13, 14, 470

N.E.2d 883, 885 (1984), but the behavior in that case was very different. In the case at

bar Appellant refers to isolated comments of the prosecutor allegedly expressing his

opinion or asking the jury to stand in the place of the victim. These comments bear little

resemblance to the comments in Smith, where "the assistant prosecutor referred to

defense evidence as “lies,” “garbage,” “garbage lies,” “[a] smoke screen,” and “a well

conceived and well rehearsed lie” and "intimated that defense counsel had suborned

perjury by manufacturing, conceiving and fashioning lies to be presented in court" where

"there was no evidence to substantiate these accusations." Smith, supra at 14. While the

comments of the prosecutor in the case at bar may have raised objection, we cannot

conclude that they were so outside the latitude generally granted the prosecution such

that they comprise plain error. Further, Appellant's trial counsel's decision to not object

to these comments and thus bring more attention to them can be viewed as a reasonable

trial strategy, which cannot serve as the basis for error.

       {¶54} For those reasons, we find no plain error and overrule subsection C of the

Third Assignment of Error.


                                              III D.


       {¶55} In Subsection D of the Third Assignment of Error, Appellant contends that

cumulative error at trial denied Cook's right to a fair trial contending that evidence of guilt

was not overwhelming and substantial rights were repeatedly violated.
Fairfield County, Case No. 18-CA-43                                                 21

       {¶56} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Supreme Court of Ohio addressed the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150, ¶

197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105

Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶ 103. In State v. DeMarco, 31 Ohio

St.3d 191, 196, 509 N.E.2d 1256, 1261 (1987) the court found that "[s]ignificant parts of

the testimony of these witnesses involved technical violations of the hearsay rule *** and

that "the cumulative effect of these witnesses' hearsay testimony was prejudicial.

Although violations of the Rules of Evidence during trial, singularly, may not rise to the

level of prejudicial error, a conviction will be reversed where the cumulative effect of the

errors deprives a defendant of the constitutional right to a fair trial." In the case before

us, we have not found violations of the Rules of Evidence or other error.

       {¶57} Where we have found that the trial court did not err, cumulative error is

simply inapplicable. State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003–Ohio–1313,

¶ 37. To the extent that we have found that any claimed error did not rise to the level of

plain error, we conclude that the cumulative effect of such claimed errors is harmless

because taken together, they did not materially affect the verdict. State v. Leonard, 104

Ohio St.3d 54, 89–90, 2004–Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185 as quoted in State

v. Bragg, 5th Dist. Licking No. 16-CA-95, 2017-Ohio-5726, ¶¶ 37-39, appeal not allowed,

151 Ohio St.3d 1457, 2017-Ohio-8842, 87 N.E.3d 223, ¶¶ 37-39 (2017).

       {¶58} Subsection D of Appellant's Third Assignment of Error is overruled.


                                            IV / V.
Fairfield County, Case No. 18-CA-43                                                   22


       {¶59} Appellant's Fourth and Fifth Assignments of Error claim that the evidence

was insufficient and against the manifest weight of the evidence. Appellants' argument

regarding manifest weight is uniquely tied to the alleged failure of the jury to consider the

defense of parental discipline.

       {¶60} 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 as follows:


       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.


       {¶61} 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
Fairfield County, Case No. 18-CA-43                                                       23

be overturned and a new trial ordered.” Thompkins, supra, 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.

       {¶62} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

       {¶63} Appellant was convicted of two counts of Child Endangering (R.C.

2919.22(A) and 2919.22(B)(1)) and one count of Assault (R.C. 2903.13(A)). The relevant

code sections require the following proof:


       (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.
Fairfield County, Case No. 18-CA-43                                                 24


      (B) No person shall do any of the following to a child under eighteen years

           of age or a mentally or physically handicapped child under twenty-one

           years of age:


      1. Abuse the child;


                                                 ***


      R.C. 2919.22.


      (A) No person shall knowingly cause or attempt to cause physical harm to

           another or to another's unborn.


      R.C. 2903.13.


      {¶64} The testimony in this case regarding the appearance of dark bruises on

W.K.'s buttocks is uncontroverted regarding their initial appearance.      W.K.'s father

testified that the child did not have any marks when he left the child with Appellant on

Tuesday and that he first noticed the bruises Tuesday evening during a bath. If believed,

the jury could conclude that the harm occurred while the child was in the Appellant's

custody.

      {¶65} Appellant and Appellee presented conflicting evidence regarding the cause

of the bruises. Appellant did not deny spanking M.K., but insisted W.K. was bruised when

the family dog knocked him down in a gravel driveway. Appellee responded by presenting

the testimony of Emily Sentman, M.D. the emergency room doctor responsible for W.K.'s

care. Dr. Sentman concluded the bruises were the result of repeated forceful blows by a
Fairfield County, Case No. 18-CA-43                                                 25


hard object with a rounded surface and unrelated to spanking. Dr. Sentman rejected

appellant's contention that the bruises were the result of fall, and compared the force

necessary to cause the injuries to the same force that would cause "seat belt" bruises in

an automobile accident. If believed, this evidence would support a conclusion that W.K.

was abused because he exhibited evidence of physical injury, inflicted other than by

accidental means, or which was at variance with the history given of it R.C. 2151.031(C),

and that he had been assaulted as he suffered physical harm. R.C. 2901.01 (A)(3). This

evidence, combined with the evidence placing the uninjured W.K. in the care and control

of Appellant and the discovery of the injuries immediately thereafter, as well as the

Appellant's description of her frustration with W.K.'s behavior provide sufficient basis for

the jury to find, beyond a reasonable doubt, that the Appellant committed the offenses

charged.

       {¶66} Further, after review of the entire record, weighing the evidence and all

reasonable inferences, we cannot conclude the jury clearly lost its way and created such

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

ordered. Appellant’s assertion that the jury should have acquitted Appellant because her

act of spanking W.K. was protected parental discipline is purely speculative.            The

physician’s testimony and the photographs of the bruises could just as easily be viewed

as evidence of excessive discipline. We hold this is not an “exceptional case in which the

evidence weighs heavily against the conviction.”
Fairfield County, Case No. 18-CA-43                                         26


       {¶67} Appellants Fourth and Fifth Assignments of Error are overruled and the

decision of the Fairfield County Municipal Court is affirmed.


By: Baldwin, J.

Delaney, P.J. and

Wise, Earle, J. concur.
