[Cite as State v. Faggs, 2018-Ohio-3643.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 17 CAA 10 0072
CLINTON D. FAGGS, III

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 17 CR I 07 0386


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 11, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAROL HAMILTON O'BRIEN                         JONATHAN T. TYACK
PROSECUTING ATTORNEY                           RYAN L. THOMAS
KIMBERLY E. BURROUGHS                          HOLLY B. CLINE
ASSISTANT PROSECUTOR                           THE TYACK LAW FIRM CO., LPA
140 North Sandusky Street                      536 South High Street
Delaware, Ohio 43015                           Columbus, Ohio 43215
Delaware County, Case No. 17 CAA 10 0072                                                   2

Wise, P. J.

       {¶1}   Defendant-Appellant Clinton D. Faggs III appeals his convictions, in the

Court of Common Pleas, Delaware County, for domestic violence and assault. Appellee

is the State of Ohio. The relevant facts leading to this appeal are as follows:

       {¶2}   At the time of the events in question in this matter, appellant was living with

his girlfriend, H.K. in Delaware, Ohio. H.K. has a son, T.M., seven years old at the times

pertinent to this appeal, from a prior relationship. Appellant is also the non-custodial

parent of two children from another relationship. Appellant and H.K. also have a four-

year-old child together.

       {¶3}   In early 2017, T.M. had been having behavior issues at his school and at

home. Appellant generally acted as a disciplinarian and authority figure in the home, even

though he was not T.M.’s father.

       {¶4}   On January 11, 2017, T.M. misbehaved at school and was brought back

home by the principal while classes were still in session. Two days later, on January 13,

2017, officials at T.M.’s school directed that he go home early because he had damaged

a computer. H.K. went to the school and picked up T.M. at about 2:30 PM. When they

arrived back home, H.K. went upstairs to her bedroom. She heard appellant verbally

scolding T.M. and some “scuffling” noises.

       {¶5}   At some point, appellant grabbed T.M. and procured a cord from an Xbox

computer game system, as further discussed infra. Among other things, appellant

whipped the child with the cord several times, striking him in the arms and legs. H.K.

contacted law enforcement the next day. In addition, H.K. reported a few days later that

she had been involved in a physical altercation with appellant.
Delaware County, Case No. 17 CAA 10 0072                                                 3


       {¶6}   Via an indictment filed July 7, 2017, appellant was charged with domestic

violence and misdemeanor assault (Counts I and II) against T.M. The State also alleged

that appellant committed domestic violence and misdemeanor assault (Counts III and IV)

against his girlfriend H.K., the mother of T.M. The two domestic violence counts were

charged as felonies of the third degree based on appellant’s record of prior offenses, as

per R.C. 2919.25(D)(4).

       {¶7}   The matter proceeded to a bench trial on August 17, 2017. The State

presented four witnesses: H.K., T.M., Officer Derek Childs of the Delaware City Police

Department, and Officer Allison Castrilla of the Sunbury Police Department.1 Appellant

also testified in his own defense.

       {¶8}   After hearing the evidence and the arguments, the trial court found appellant

guilty of domestic violence and assault against the child, T.M., but not guilty of domestic

violence and assault against H.K. On September 27, 2017, the trial court sentenced

appellant to four years of community control.

       {¶9}   Appellant filed a notice of appeal on October 27, 2017. He herein raises the

following three Assignments of Error:

       {¶10} “I. THE TRIAL COURT'S VERDICT IS NOT SUSTAINED BY SUFFICIENT

EVIDENCE.

       {¶11} II.   THE TRIAL COURT'S VERDICT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.




1  Officer Castrilla’s testimony went to the alleged domestic violence against H.K. Those
incidents are not the focus of this appeal.
Delaware County, Case No. 17 CAA 10 0072                                                 4


      {¶12} “III.   THE    TRIAL    COURT'S     VERDICT      VIOLATES      A   PARENT'S

FUNDAMENTAL LIBERTY INTEREST IN RAISING AND CONTROLLING HIS CHILD

UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE NINTH

AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION.”

                                                I.

      {¶13} In his First Assignment of Error, appellant argues his convictions for

domestic violence and assault were not supported by sufficient evidence. We disagree.2

      {¶14} In reviewing a claim of insufficient evidence, “[t]he 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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus. It is well-established that the State bears the burden of

establishing each and every element of a charged crime and must do so with proof

beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010–Ohio–

15, 2010 WL 27862, ¶ 11.

      {¶15} R.C. 2919.25(A) states as follows: “No person shall knowingly cause or

attempt to cause physical harm to a family or household member.”

      {¶16} However, “*** proper and reasonable parental discipline can be employed

by a defendant as an affirmative defense to a charge of domestic violence.” State v. Hart,

110 Ohio App.3d 250, 254, 673 N.E.2d 992, 994 (3rd Dist.1996). But our analysis of this

issue in the present context is limited: “[T]he due process ‘sufficient evidence’ guarantee



2   The trial court merged the assault count into the domestic violence count by stating
that “[n]o sentence [is] imposed pursuant R.C. 2941.25” as to Count II. Sentencing Entry
at 4. Appellant’s arguments thus center on the offense of domestic violence.
Delaware County, Case No. 17 CAA 10 0072                                                      5


does not implicate affirmative defenses, because proof supportive of an affirmative

defense cannot detract from proof beyond a reasonable doubt that the accused had

committed the requisite elements of the crime.” State v. Hancock, 108 Ohio St.3d 57,

2006–Ohio–160, ¶ 37, citing Caldwell v. Russell (C.A.6, 1999), 181 F.3d 731, 740,

abrogated on other grounds (internal quotations omitted).

       {¶17} In the case sub judice, the State presented evidence during the bench trial

that on January 13, 2017, T.M.’s misbehavior interrupted appellant’s plans that day to

pick up his daughter in Marion, Ohio, who had become sick at her school. Appellant

decided to physically punish T.M., apparently at the behest of H.K. Testimonial evidence

was presented that appellant grabbed T.M. by the throat, lifted him from the floor by his

neck, “slammed” him against an interior wall, slapped him in the face five to six times,

and whipped him with a rubber-coated Xbox cord. See Tr. 94-123 (testimony of T.M.).

The State also presented photographic exhibits of the visible marks and bruising that T.M.

sustained, as well as photographs of slight damage to the apartment at the point where

T.M. testified he was slammed into a wall. See Exhibits 1-19.

       {¶18} It is not disputed that T.M. was a household member or that appellant was

acting in loco parentis during the events at issue. See Appellant’s Brief at 8. Appellant

seems in large measure to urge that the evidence was insufficient because of a lack of

medical treatment or a demonstration of “serious physical harm.” See Appellant’s Brief at

8, 16. However, the General Assembly has utilized the term “physical harm” in the

domestic violence statute, which is defined in R.C. 2901.01(A)(3), as to persons, as “any

injury, illness, or other physiological impairment, regardless of its gravity or duration.” See,

e.g., State v. Reynolds, 10th Dist. Franklin No. 03AP-701, 2004-Ohio-3692, ¶ 14.
Delaware County, Case No. 17 CAA 10 0072                                                   6


       {¶19} As summarized above, upon review of the record and transcript in a light

most favorable to the prosecution, we find that a reasonable factfinder could have found

appellant guilty beyond a reasonable doubt of the offense of domestic violence against

the child as charged.

       {¶20} Appellant's First Assignment of Error is overruled.

                                                 II.

       {¶21} In his Second Assignment of Error, appellant argues his convictions for

domestic violence and assault were against the manifest weight of the evidence. We

disagree.

       {¶22} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, 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 be reversed and

a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting

of a new trial “should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717. Even though a

manifest weight analysis may involve an appellate court's consideration of credibility (see

State v. Sanders, 76 N.E.3d 468, 2016–Ohio–7204 (5th Dist.), ¶ 38), the weight to be

given to the evidence and the credibility of the witnesses are primarily issues for the trier

of fact (see, e.g., State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180).
Delaware County, Case No. 17 CAA 10 0072                                                    7

       {¶23} In the case sub judice, the trial court acknowledged at the end of the case

that T.M. was "obviously a challenging child." Tr. at 249. It is also undisputed that prior to

the incident, appellant and H.K. had attempted other methods of disciplining T.M.,

including non-corporal punishment, positive reinforcement, “boot camp”, and medication.

Tr. at 175. T.M. testified that it did not hurt him when H.K. had "whooped" him on prior

occasions. Tr. at 119.

       {¶24} The record before us strongly suggests the trial court relied in large

measure upon the testimony of the child victim and correspondingly discounted the

testimony of H.K. and appellant for want of credibility. See, e.g., Tr. at 247. T.M. recalled

at trial: “I had marks on my arms from [appellant] whooping me with a controller cord, and

he picked me up, choked me, slammed my head against the wall, and made a hole in the

wall before he hit me with the controller cord.” Tr. at 97. We recognize the overall

testimony is inconsistent as to where the whipping took place: T.M. testified that it

happened downstairs in the living room, while H.K. and appellant placed this action

upstairs. Furthermore, appellant, in his defense testimony, insisted that he did not mean

to whip T.M.'s arms or lower legs, but the child’s movements and running caused the cord

to come into contact with those areas instead of the child’s backside. See Tr. at 186, 214.

       {¶25} In raising his “manifest weight” challenge, appellant emphasizes inter alia

that Officer Childs, who investigated the report the next day, did not observe marks

around the neck or throat of the child consistent with a choking assault, nor did he observe

petechiae on or near the eyes. Tr. at 145-146. The officer also did not observe marks or

bumps on the child’s head indicative of striking a wall. Id. Appellant also points out that

when T.M. reported to the officer that a small hole in the wall, about five feet up, had been
Delaware County, Case No. 17 CAA 10 0072                                                     8


caused by appellant “banging” the child’s head, it caught H.K. off guard, as she had not

heard T.M. say anything about the damage before that. See Tr. at 89.3 In essence,

appellant charges that a seven-year-old child who purportedly “has a history of lying,

being spiteful, and generally behaving in an unacceptable manner” might very well make

questionable accusations against a parental figure with whom he is angry, without

necessarily appreciating the effect of his actions. Appellant’s Brief at 21.

       {¶26} It is noteworthy in our analysis that the trial court orally reached the following

conclusions: "The court, as far as [the] burden of proof here, certainly I think that if the

burden of proof’s on the defense by a preponderance, they have not met the burden of

proof. If the State [sic] burden of proof is to show that it's unreasonable, the court would

find they have met that burden of proof." Tr. at 251. Upon review, despite the aforecited

discrepancies in the testimony, we find the trial court, in rejecting appellant’s claim of

reasonable parental discipline, did not clearly lose its way and create a manifest

miscarriage of justice requiring that appellant's conviction for domestic violence be

reversed and a new trial ordered.

       {¶27} Appellant's Second Assignment of Error is therefore overruled.

                                                 III.

       {¶28} In his Third Assignment of Error, appellant contends the trial court's verdict

violates a parent's fundamental liberty interest in raising and controlling his or her child.

       {¶29} Appellant’s present argument goes to the question of burden of proof in the

prosecution of charges of domestic violence (R.C. 2919.25(A)) and assault (R.C.




3  Appellant also proposes that the hole was caused by T.M. and/or his younger brother
throwing toy Matchbox cars at the wall.
Delaware County, Case No. 17 CAA 10 0072                                                      9


2903.13(A)), where parental corporal punishment is at issue. We note that “where the use

of corporal punishment is not descriptive of the offense and not even mentioned in the

statute, it is not a part of the state's burden of proof.” Hart, supra, at 254, f.n. 2. We have

recognized that 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. Durbin, 5th Dist. Holmes No. 13 CA 2, 2013-Ohio-5147, ¶ 25, citing State v. Luke, 3rd

Dist. Union No. 14–10–26, 2011–Ohio–4330, ¶ 21. See, also, State v. Dunlap, 5th Dist.

Licking No. 95-CA-2, 1995 WL 556990.

       {¶30} Appellant essentially urges that we overturn Durbin and Dunlap on the

theory that their “affirmative defense” approach violates the fundamental liberty interest

of parents in the care, custody and control of their children.

       {¶31} However, while both sides in the present appeal have commendably briefed

the issue, this Court has maintained that failure to raise at the trial court level the issue of

the constitutionality of a statute or its application, which issue is apparent at the time of

trial, constitutes a waiver of such issue on appeal. State v. Ivery, 5th Dist. Stark No.

2005CA00270, 2006–Ohio–5548, ¶ 44, quoting State v. Awan (1986), 22 Ohio St.3d 120,

489 N.E.2d 277, syllabus. In the instant case, we note the trial court judge, in response

to appellant’s motion for acquittal at the close of the State’s evidence, asked defense

counsel: “Who has the burden of proof on [the] reasonable parental discipline question?”

Tr. at 166. After some discussion, appellant’s defense counsel stated: “But in all candor,

I believe the Fifth District has spoken and said it’s an affirmative defense.” Tr. at 166-167.

Our review of the trial court file and the trial transcript reveals no attempt to otherwise

advance the constitutional challenges herein presented by appellant, other than the
Delaware County, Case No. 17 CAA 10 0072                                                10

general assertion of the holding of the Seventh District Court of Appeals in State v. Rosa,

7th Dist. Mahoning No. 12 MA 60, 2013-Ohio-5867, 6 N.E.3d 57.

      {¶32} Certainly, application of the Awan waiver doctrine is discretionary. See In re

M.D., 38 Ohio St.3d 149 (1988). However, the United States Supreme Court has held

that due process of law is not denied to a defendant by the State's placement of the

burden of proof or persuasion of an affirmative defense on the defendant, so long as the

prosecution remains required to prove all elements of the underlying criminal offense by

proof beyond a reasonable doubt. See Patterson v. New York, 432 U.S. 197, 202-07, 97

S.Ct. 2319, 53 L.Ed.2d 281 (1977). Moreover, appellant herein provides scant authority

for the proposition that an individual temporarily acting in loco parentis acquires a full

panoply of parental constitutional rights. Cf. In re Brown, 153 Wash.2d 646, 652, 105 P.3d

991, 994 (2005) (wherein the Washington Supreme Court stated that no case in that state

“recognizes that nonparents are guaranteed the fundamental rights of parents under the

doctrine of in loco parentis.”) Finally, the Ohio Supreme Court has aptly held that any

departure from the doctrine of stare decisis demands special justification. Westfield Ins.

Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 44 (internal

quotations omitted).

      {¶33} Accordingly, we presently decline to depart from our precedent set forth in

Durbin and Dunlap.
Delaware County, Case No. 17 CAA 10 0072                                           11


      {¶34} Appellant's Third Assignment of Error is therefore overruled.

      {¶35} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Delaware County, Ohio, is hereby affirmed.



By: Wise, P. J.

Gwin, J., and

Baldwin, J., concur.


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