Cuyahoga Hts. v. Majors

2014 Ohio 3326

• Court: Ohio Court of Appeals
• Decided: July 31, 2014
• Docket: 100687, 100689
• Status: Published

Opinion

[Cite as Cuyahoga Hts. v. Majors, 2014-Ohio-3326.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 100687 and 100689

VILLAGE OF CUYAHOGA HEIGHTS PLAINTIFF-APPELLEE

vs.

STEPHANIE A. JELENIC MAJORS, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Criminal Appeal from the Garfield Heights Municipal Court Case Nos. CRB-1300948 and CRB-1300949

BEFORE: Jones, J., Celebrezze, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: July 31, 2014 ATTORNEY FOR APPELLANTS

James A. Levin 2800 Euclid Avenue Suite 545 Cleveland, Ohio 44115

ATTORNEY FOR APPELLEE

Jonathan D. Greenberg Walter & Haverfield, L.L.P. 1301 East 9th Street Suite 3500 Cleveland, Ohio 44114 LARRY A. JONES, SR., J.:

{¶1} In these consolidated cases, defendants-appellants, Stephanie A. Jelenic

Majors and James A. Majors Jr., appeal from their endangering children convictions,

entered after a bench trial. We affirm.

{¶2} In 2013, the Majors were each charged with one count of endangering

children, a misdemeanor of the first degree. The matter proceeded to a bench trial, at

which the following pertinent evidence was presented.

{¶3} On April 15, 2013, Lieutenant Brian Sturgill of the Cuyahoga Heights Police

Department received a dispatch to assist in a possible domestic situation. Lieutenant

Sturgill testified that he arrived on scene approximately four minutes after he was

dispatched. Lieutenant Sturgill, who had been in the Majors’ house before, parked his

cruiser near the Majors’ car and observed that their car was parked on a public street,

approximately six to eight feet in front of their house.

{¶4} When he arrived on scene, two Garfield Heights police cruisers were already

there. The lieutenant walked down the street to where the officers were waiting and

conferred with them “for a minute,” before they all walked back towards the Majors’

house. When Lieutenant Sturgill looked into the Majors’ vehicle, he noticed a baby

sitting in its car seat. The baby had been there for some undetermined time period prior

to Lieutenant Sturgill’s arrival on the scene. Lieutenant Sturgill testified that the car was

unlocked and the windows were open.

{¶5} Lieutenant Sturgill removed the ten-month-old infant from the vehicle and

placed him in his cruiser. Lieutenant Sturgill testified that the baby did not exhibit any signs of physical distress with the exception of “an unusual skin condition” and “severe

diaper rash.”

{¶6} Lieutenant Sturgill stayed by his patrol vehicle with the infant while the other

police officers attempted to locate the child’s parents. The Garfield Heights officers

proceeded to knock on the Majors’ porch door for “two to four minutes” before someone

finally answered the door. Once the Majors were escorted out of their home, Lieutenant

Sturgill brought the baby to the front steps of the home. Lieutenant Sturgill testified that

while the Majors were being interviewed by the Garfield Heights police, he noted that

Stephanie seemed nervous, had delayed responses to questioning, and had noticeably

“pinpoint pupils,” that Lieutenant Sturgill testified were signs of heroin or opiate use.

Similarly, Lieutenant Sturgill testified that James exhibited slurred speech and delayed

responses to questioning that led Lieutenant Sturgill to believe that James was also under

the influence of drugs or alcohol.

{¶7} Thereafter, Stephanie was transported to a nearby hospital by EMS for an

injury to her hip or side. Because officers believed James was in an “inebriated state,” a

family member was contacted to take custody of the baby. The Majors were later

charged with child endangering.

{¶8} The trial court convicted both Stephanie and James of child endangering and

sentenced each to 180 days in jail, suspended, and one year of inactive probation.

{¶9} The Majors appeal, raising two assignments of error for review.

I. Assignments of Error

[I.] The trial court erred by denying appellants’ motion for judgment of acquittal pursuant to Rule 29.

[II.] The trial court erred by rendering a verdict in favor of the

plaintiff-appellee, Village of Cuyahoga Heights; such a verdict remains

against the manifest weight of the evidence.

II. Law and Analysis

{¶10} In the first assignment of error, the Majors argue that the trial court erred in

denying their Crim.R. 29 motion for judgment of acquittal. In the second assignment of

error, the Majors argue that their convictions were against the manifest weight of the

evidence. Although these assignments of error involve different legal standards, because

the facts are the same for both, we will discuss them together.

{¶11} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where

the state’s evidence is insufficient to sustain a conviction for the offense; Crim.R. 29(A)

and a sufficiency of the evidence review require the same analysis. State v. Tenace, 109

Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

{¶12} In analyzing whether a conviction is supported by sufficient evidence, the

reviewing court must view the evidence “in the light most favorable to the prosecution”

and ask whether “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965

(1995).

{¶13} When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether, in resolving

conflicts in the evidence, the trier of fact 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Reversing a conviction

as being against the manifest weight of the evidence should be reserved for only the

exceptional case in which the evidence weighs heavily against the conviction. Id. We

are reminded that “it is not the function of an appellate court to substitute its judgment for

that of the factfinder.” Jenks at 279.

{¶14} The Majors were convicted of endangering children, in violation of R.C.

2919.22(A), which provides, in relevant part:

No person who is the parent, guardian, custodian, person having custody or control, or a person in loco parentis of a child under eighteen 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.

{¶15} A “substantial risk” is defined as “a strong possibility, as contrasted with a

remote or significant possibility, that a certain result may occur or that certain

circumstances may exist.” R.C. 2901.01(A)(8).

{¶16} “The existence of the culpable mental state of recklessness is an essential

element of the crime of endangering children under R.C. 2919.22(A).” State v. McGee,

79 Ohio St.3d 193, 680 N.E.2d 975 (1997), syllabus. A person acts recklessly when,

with heedless indifference to the consequences, he or she perversely disregards a known

risk that his or her conduct is likely to cause a certain result or is likely to be of a certain nature. R.C. 2901.22(C). A person is reckless with respect to circumstances when, with

heedless indifference to the consequences, he or she perversely disregards a known risk

that such circumstances are likely to exist. Id.

{¶17} The Majors argue that the prosecution failed to offer sufficient evidence that

they recklessly created a substantial risk to the health or safety of their child. To support

their position, the Majors cite State v. Martin, 134 Ohio App.3d 41, 730 N.E.2d 386 (1st

Dist.1999), and State v. Boone, 1st Dist. Hamilton No. C-950427, 1996 Ohio App. LEXIS

3387 (Aug. 14, 1996). In Martin, the court found that a parent did not create a

substantial risk to her nine-year-old child’s safety when she left the child in the back of a

car while she went into a store, even though the child accidently knocked the car into gear

and the car rolled into the aisle of the parking lot; the child was not injured. In Boone,

the court found that a parent who intentionally drove away and left her seven-year-old

child in a public parking lot created only a speculative risk, not a substantial risk, to the

child.

{¶18} The prosecution relies on State v. Hawkins, 5th Dist. Stark No. 2008CA

00280, 2009-Ohio-5253, and State v. Lewis, 192 Ohio App.3d 153, 2011-Ohio-187, 948

N.E.2d 487 (5th Dist.), for the proposition that leaving an infant unattended in an

unlocked vehicle on a public street creates clear and substantial risks to the child’s safety,

including the risk of kidnapping and vehicle theft.

{¶19} As the Majors point out, in both Hawkins and Lewis, extreme temperatures

and public parking lots were cited as reasons for upholding the defendants’ convictions.

But Martin and Boone are distinguishable from this case as well. Martin and Boone both concerned older children who could independently act on their own, not a helpless baby

who relied on his parents to meet his basic needs. The statutory duty imposed by the

law upon parents to care, protect, and support their child necessarily requires different

actions depending on the age and ability of each child. The duty naturally requires

different actions with a ten-month-old baby than with an older child that can walk, talk,

and eat on his or her own. An older child can most often communicate more effectively,

appreciate danger and verbally object if accosted, seek help from others, or, if it had been

a situation like the one in this case, simply got out of the car and walk into his house.

The infant here was unable to do so. Moreover, in Boone, the testimony was that the

defendant pulled out of the parking lot, drove a short distance, and then came back and

watched her child in the parking lot. In this case, there was circumstantial evidence

presented at trial that the Majors were neither watching nor could see their baby in his car

seat.

{¶20} In Beachwood v. Hill, 8th Dist. Cuyahoga No. 93577, 2010-Ohio-3313, this

court upheld a child endangering conviction when the defendant left three children, ages

4, 7, and 8, alone in the car with a cell phone while she shopped for groceries. This court

expressly distinguished Martin and Hughes, stating:

Here Hill left three children alone, the youngest of whom was four years of

age. It was 9:00 p.m. Hill’s car window was open far enough for her

four-year-old to extend part of her body out the window, and someone

could have reached inside. The parking lot was on a busy street, very close

to Interstate 271, and had steady pedestrian and vehicular traffic. Any rational trier of fact could have found these factors presented a substantial

risk to the health or safety of the children.

***

Hill left her three very young children unattended in a public parking lot, on

a busy street, at 9:00 p.m., for 15 minutes.

{¶21} The facts in Hill are admittingly different from the facts in the case at bar,

but Hill was decided by this district and the cases the Majors and the prosecution rely on

were all decided by other appellate districts.

Rarely will we find earlier cases decided on facts that are identical to the ones we face presently; it seems that the outcome of child endangerment cases are highly fact-specific.

Id. at ¶ 21. Yet, because these cases are so fact-specific is all the more reason to find that

the prosecution presented sufficient evidence to support a conviction as charged; the court

must view the evidence in a light most favorable to the prosecution. Id.

{¶22} In this case, the Garfield Heights police officers were already on scene when

the lieutenant arrived but, to his knowledge, the Garfield Heights officers did not know

the baby was in the car. Lieutenant Sturgill parked his cruiser in front of the Majors’

house, walked down the street to where the other officers were located and conferred with

them “for a minute,” before he walked back to the house and discovered the unattended

baby. Although the Majors’ car was parked on the street only six to eight feet away

from the porch door, Lieutenant Sturgill testified that the baby was sitting behind the

driver’s side seat, so he estimated the child to be another three feet away from the porch

door. The house had an enclosed porch with a door and a second door that led to the main living area of the house so one would have to go through two doors in order to enter

the house. Additionally, the police had to knock on the porch door for “two to four

minutes” before someone finally answered the door.

{¶23} Lieutenant Sturgill testified that while it was neither too hot nor too cold

outside, the car was unlocked and the windows were open. He estimated the time that

the baby was alone in the car to be “approximately 10 minutes.” Although it is not

known what time the Garfield Heights police officers arrived on scene, based on the

timeline, it is likely the baby was left in the car for more than ten minutes.

{¶24} The evidence showed that, for at least a ten-minute period, the Majors, both

of whom appeared to be under the influence of drugs and/or alcohol, abandoned their

ten-month old baby in an unlocked car on a public street. They left the car windows

open and entered their house, going through two exterior doors. Neither parent

responded to a police officer removing their baby from the car and it took police two to

four minutes of knocking to get someone to answer the door.

{¶25} To support their argument that their convictions were against the manifest

weight of the evidence, the Majors again argue that there was no evidence that they acted

recklessly or that there was a substantial risk to the health or safety of their baby. We

disagree.

{¶26} Although these types of cases are intensely fact-specific and, therefore, do

not easily lend themselves to comparison to other child endangering cases, the facts of

this specific case show that the Majors created a substantial risk to the health and safety

of their child. Their actions were not simply an act of bad parenting or an error in judgment. The mother appeared high on “heroin or opiates” and the father was so

inebriated that another family member had to take custody of the baby. They left their

ten-month-old baby in an unlocked car on a public street with the windows down, went

into the house, and even after three police cars pulled up and a police officer removed

their baby from the car, it still took two to four minutes of the officers knocking on their

door for one of them to answer.

{¶27} In light of these facts, there was sufficient evidence to support the

convictions for child endangering. We further find that their convictions were not

{¶28} The assignments of error are overruled.

{¶29} Judgment affirmed.

It is ordered that appellee recover from appellants 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 Garfield

Heights Municipal Court 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. LARRY A. JONES, SR., JUDGE

EILEEN A. GALLAGHER, J., CONCURS; FRANK D. CELEBREZZE, JR., P.J., DISSENTS WITH SEPARATE OPINION

FRANK D. CELEBREZZE, JR., P.J., DISSENTING:

{¶30} I respectfully dissent from the majority’s position that the Village presented

sufficient evidence to establish that the appellants recklessly created a substantial risk to

the health or safety of their child. In my view, the factual circumstances involved in this

case, although troubling, did not rise to the level of criminal conduct.

{¶31} As stated by the majority, “substantial risk” is defined as “a strong

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

occur or that certain circumstances may exist.” Thus, there must be some evidence

beyond mere speculation as to the risk of harm that could potentially occur due to a single

imprudent act.

{¶32} In this case, the child was not injured, and the state failed to prove beyond a

reasonable doubt that there was a strong possibility that he would have been injured. The

majority makes much of the fact that the car was unlocked with the windows rolled down.

However, these factors alone are not sufficient to support a child endangering

conviction. See State v. Martin, 134 Ohio App.3d 41, 730 N.E.2d 386 (1st Dist.1999).

Lt. Sturgill’s testimony established that appellants were just a short distance away from

the child, that the vehicle was parked just “six to eight feet” in front of the appellants’ home, in a residential neighborhood with minimal pedestrian and vehicular traffic, and

that the weather was neither “particularly hot” nor “particularly cold.” Moreover, the

prosecution failed to present any evidence regarding the duration of time the child was

left unsupervised prior to the arrival of Lt. Sturgill.

{¶33} The majority further references Lt. Sturgill’s testimony that the mother’s

eyes were dilated, indicating use of “heroin or opiates,” and that the father appeared to be

slurring his words, indicating that he was inebriated. However, there was no evidence

presented to confirm that appellants were in fact under the influence of drugs or alcohol.

Lt. Sturgill was merely asked to speculate on this issue during his direct examination.

Thus, the trial court was left to speculate on numerous relevant factors and was only able

to find appellants guilty of child endangering by drawing inferences upon inferences.

{¶34} Under these circumstances, I would find that Lt. Sturgill’s testimony did not

prove, beyond a reasonable doubt, the existence of a substantial risk to the health or safety

of the child. Instead, Lt. Sturgill’s testimony merely presented potentially harmful

scenarios that, although might have been remotely or even significantly possible, did not

have a strong possibility of occurring.

{¶35} Accordingly, I believe that insufficient evidence exists to support the trial

court’s verdict pronouncing appellants guilty of child endangering.

{¶36} Based on the foregoing, I would sustain appellants’ first assignment of error

and reverse and vacate their child endangerment convictions.