Cleveland v. Johns

2024 Ohio 3301

• Court: Ohio Court of Appeals
• Decided: August 29, 2024
• Docket: 113329
• Status: Published

Opinion

[Cite as Cleveland v. Johns, 2024-Ohio-3301.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, : No. 113329 v. :

KRISTINA JOHNS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 29, 2024

Criminal Appeal from the Cleveland Municipal Court Case No. 2022CRB010529

Appearances:

Mark Davis Griffin, City of Cleveland Director of Law, Aqueelah Jordan, Chief Prosecutor, and Matthew Bezbatchenko, Assistant City Prosecutor, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, Erika B. Cunliffe and Michael S. Kan, Assistant Public Defenders, for appellant. MICHAEL JOHN RYAN, J.:

Defendant-appellant Kristina Johns appeals her endangering children

conviction, which was entered after a jury trial. After a thorough review of the facts

and pertinent law, we affirm.

The incident giving rise to the conviction occurred at a childcare center

where Johns was employed. Plaintiff-appellee the City of Cleveland presented four

witnesses at trial. One of the witnesses, Monique Kaiser, was the sole adult witness

to the incident.

Kaiser was a substitute teacher who had been at the center on a long-

term assignment for approximately one month before the subject incident; she

served as an assistant to the “lead teacher.” Prior to the incident, Kaiser had worked

with Johns on five or six other occasions. On those prior occasions, Kaiser observed

that, in general, Johns, seemed “[v]ery overwhelmed, stressed out.” Kaiser

explained that “[i]n a situation where you’re supposed to be patient, [she] didn’t see

that” from Johns.

Kaiser testified that on the day of the incident, she was assigned to the

three-year-old room with Johns where they were supervising approximately seven

children. The children were seated for “circle time” while Johns was reading to

them. One child, the victim in this case, “was not listening, wouldn’t come to circle

time to sit.” Rather, the child “was playing around, running and playing with toys.”

According to Kaiser, Johns, frustrated, went over to the victim,

“grabbed” the child by the legs, and with the child’s head directed downward, lifted the child so that the victim’s head was three to five feet from the ground, and then

dropped the child’s headfirst onto the uncarpeted hardwood floor. Kaiser testified

that Johns then returned to the other children and acted as if nothing had happened.

Meanwhile, the child victim was “screaming in agony, crying” so Kaiser

comforted the child. After a few minutes, another employee from the center came

to the room and Kaiser informed the employee about what had transpired.

Kaiser was asked on direct examination if she was aware of any injuries

Johns may have had that would have impacted her ability to pick up children. Kaiser

responded: “Uh, I was told that she had a shoulder injury, which was not the truth.”

The defense objected, and the trial court struck the response. Kaiser did testify

without objection, however, that in her prior occasions working with Johns she did

not observe her having difficulty lifting children of various sizes.

Although Kaiser’s answer about Johns’s alleged shoulder injury was

stricken on direct examination, defense counsel questioned Kaiser about Johns’s

alleged injury on cross-examination: “And you had mentioned prior that you knew

of my client’s shoulder injury, right?” Kaiser responded, “Yes.”

Kaiser completed an incident report the day of the occurrence.

The city also presented the testimony of Queen Baker, another

employee at the center. At the time of the incident, Baker had been employed at the

center for only approximately two-and-a-half weeks. Kaiser told Baker about the

incident shortly after it occurred. Baker examined the victim, but she did not

provide any aid to the child. Baker described Kaiser as “angry” about the incident. Unbeknownst to Baker, the victim’s mother was also employed at the

center; the mother was at work the day of the incident. The mother overheard Baker

talking about the incident and inquired about it. When the mother heard the name

of the child involved, she realized her child was the victim.

In addition to not knowing the victim’s mother, Baker testified that

she also did not know either Kaiser or Johns. Kaiser did know that the victim’s

mother worked at the center; however, she never had any contact with the mother.

The victim’s mother testified. The mother testified that when she saw

her child after the incident, the child was upset and crying. She took her child to the

hospital for evaluation. The emergency room doctor advised the mother to watch

the child for the signs and symptoms of a concussion.

The mother testified that although she “knew of” Kaiser, she had never

spoken to her and did not have any type of relationship with her.

On cross-examination, defense counsel questioned the mother as to

whether she knew about an alleged injury Johns had to her shoulder. The mother

testified that she was unaware of the alleged injury. The mother also testified that it

would not surprise her to know that Johns was 5′2″ tall.

The doctor who treated the victim at the hospital emergency

department on the day of the incident testified. According to the doctor, the child

looked well, she did not find any marks on the child, and saw no sign of a head injury.

The doctor testified that the child weighed 29 pounds. The doctor explained the concerns about the type of injury that could

occur based on the reported incident. The main concern would be a head injury,

which sometimes can manifest as a concussion or a skull fracture. The doctor also

explained that in a child the victim’s age, neck injuries are a concern because

children that age have do not have the strongest neck muscles. The doctor further

testified that it would be possible for a child to be dropped in the manner reported

that the victim was and not have any bruising or markings. According to the doctor,

the victim’s mother “was concerned, worried . . . very focused on [the child’s]

medical care, making sure [the child] was healthy and safe.” According to the

mother, the victim was “pretty emotional” and “super clingy” in the aftermath of the

incident.

After the city rested its case, the defense made a Crim.R. 29 motion for

judgment of acquittal, contending that Johns’s alleged injured shoulder injury and

diminutive stature made it impossible for her to lift a nearly 30-pound child in the

manner alleged. The trial court denied the motion. The defense rested without

presenting any witnesses.

The defense argued to the jury in its closing argument that it was

impossible for Johns, given her stature and alleged shoulder injury, to have

committed the act. The jury returned a guilty verdict on the sole charge of

endangering children. The trial court sentenced Johns to 180 days in jail with 175

days suspended and three years of active community control with conditions. Johns

presents the following two assignments of error for our review: I. Kristina Johns was deprived of her liberty without due process of law where her conviction for endangering children is contrary to the weight of the evidence presented.

II. Ms. Johns was denied effective assistance of counsel because trial counsel failed to develop[,] present and argue evidence that supported her claim that she was physically unable to perform the physical act alleged.

In her first assignment of error, Johns challenges her conviction as

being against the manifest weight of the evidence.

“[W]eight of the evidence involves the inclination of the greater

amount of credible evidence.’” State v. Harris, 2021-Ohio-856, ¶ 32 (8th Dist.),

quoting State v. Thompkins, 1997-Ohio-52. Weight of the evidence relates to “‘the

evidence’s effect of inducing belief.’” Harris at id., quoting State v. Wilson, 2007-

Ohio-2202, ¶ 25, citing Thompkins. The reviewing court must consider all the

evidence in the record, the reasonable inferences to make from it, and the credibility

of the witnesses to determine “‘whether in resolving conflicts in the evidence, the

factfinder clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” Harris at id., citing

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172 (1st Dist.1983).

For Johns to be convicted, the city had to prove beyond a reasonable

doubt that she created a substantial risk to the health or safety of the child by

violating a duty of care, protection, or support. See Cleveland Cod.Ord. 609.04(a). Johns contends that her conviction is “incredible.” According to

Johns, it is incredible that “a 59-year-old lady of small stature” was physically able

to commit the act as described by Kaiser.

The defense argued to the jury that Kaiser’s rendition of the event was

impossible. “[T]he weight to be given the evidence and the credibility of the

witnesses are primarily for the finder of fact.” State v. Metz, 2019-Ohio-4054, ¶ 70

(8th Dist.), citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the

syllabus. The trier of fact may “‘believe or disbelieve any witness or accept part of

what a witness says and reject the rest.’” Metz at id., quoting State v. Antill, 176 Ohio

St. 61, 67 (1964). “‘[A]n appellate court may not substitute its own judgment for that

of the finder of fact.’” Harris at ¶ 33, quoting State v. Maldonado, 2020-Ohio-5616,

¶ 40 (8th Dist.), citing State v. Awan, 22 Ohio St.3d 120 (1986).

That the jury disregarded the defense’s impossibility defense was not

incredible. The sole adult witness to the event, Kaiser, was a neutral witness who

had no incentive to fabricate the incident. Indeed, all the witnesses in this case were

neutral as it related to one another and the victim. Kaiser testified that the victim

was crying after the incident, and the victim’s mother corroborated that. Further,

Kaiser testified that she was upset by the incident and that was corroborated by

Baker.

Moreover, that the victim did not sustain a physical injury is

inconsequential. The city merely had to prove that Johns’s act created a substantial

likelihood of resulting in serious physical harm. The emergency department doctor testified about the substantial risk of physical harm that could have manifested

based on Johns’s act.

The manifest weight of the record supports the endangering

conviction. The first assignment of error is overruled.

For her second assignment of error, Johns contends that her trial

counsel was ineffective for failing to obtain her medical records, which would have

shown her alleged shoulder injury.

This court reviews alleged instances of ineffective assistance of trial

counsel under the two-prong analysis set forth in Strickland v. Washington, 466

U.S. 668 (1984), which was adopted by the Supreme Court of Ohio in State v.

Bradley, 42 Ohio St.3d 136 (1989). As stated in those cases, an ineffective assistance

claim requires the defendant to show that his or her trial counsel rendered deficient

performance that resulted in prejudice. Strickland at paragraph two of the syllabus;

Bradley at paragraph two of the syllabus. The failure to make a showing of either

deficient performance or prejudice defeats a claim of ineffective assistance of

counsel. Strickland at 697.

To establish deficient performance, Johns must show that her trial

counsel’s performance fell below an objective standard of reasonable

representation. Id. at 688. In evaluating counsel’s performance, a reviewing court

“must indulge in a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689. “The adequacy of counsel’s

performance must be viewed in light of all of the circumstances surrounding the trial court proceedings.” State v. Jackson, 2005-Ohio-6143, ¶ 29 (2d Dist.), citing

Strickland.

To establish prejudice, Johns must show that there is “a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 2008-Ohio-3426, ¶ 204. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Bradley at 142.

As mentioned, Johns’s claim of ineffective assistance of counsel is

based on counsel’s failure to obtain her medical records to document her alleged

chronic shoulder injury. The record shows that counsel questioned the witnesses

about the alleged injury and argued that theory — that, based on the injury, along

with Johns’s diminutive stature — it was an impossibility for her to have committed

the act as alleged. On this record, counsel’s performance was not deficient.

Further, Johns has failed to demonstrate that, even had the medical

records been in evidence, the outcome of the trial would have been different. Kaiser

testified that she had not observed that Johns had difficulty lifting children on the

prior occasions she had worked with her. The jury was aware of Johns’ alleged

injury, and still chose to find her guilty.

Johns’s ineffective assistance of counsel claim is without merit. The

second assignment of error is overruled.

Judgment affirmed. It is ordered that appellee recover from 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. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________ MICHAEL JOHN RYAN, JUDGE

MARY EILEEN KILBANE, P.J., and LISA B. FORBES, J., CONCUR