State v. Bell

2021 Ohio 899

• Court: Ohio Court of Appeals
• Decided: March 22, 2021
• Docket: 2020-P-0060
• Status: Published

Opinion

[Cite as State v. Bell, 2021-Ohio-899.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2020-P-0060 - vs - :

ASHLIE R. BELL, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No. K 2019 CRB 756.

Judgment: Affirmed in part; reversed and vacated in part; remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).

Charles Tyler, Sr., 137 S. Main Street, Suite 206, Akron, Ohio 44308 (For Defendant- Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Ashlie R. Bell, appeals her misdemeanor convictions of assault

and endangering children, following a bench trial in the Kent Division of the Portage

County Municipal Court. The trial court sentenced Bell on each count to 180 days in jail

to be served concurrently and a $1000.00 fine, with 120 days and $500.00 suspended

upon compliance with conditions. The trial court granted a stay of sentence pending appeal. We reverse and vacate the conviction of endangering children, affirm the finding

of guilt as to assault, and remand for the trial court to enter sentence accordingly.

{¶2} R.C. 2151.23(A)(6) confers exclusive original jurisdiction on the juvenile

court to “hear and determine all criminal cases in which an adult is charged with”

endangering children in violation of R.C. 2919.22(B)(1), “provided the charge is not

included in an indictment that also charges the alleged adult offender with the commission

of a felony arising out of the same actions that are the basis of the alleged violation[.]”

{¶3} Here, the state of Ohio acknowledges that the trial court, a municipal court,

did not have jurisdiction to try Bell on the charge of endangering children. Accordingly,

Bell’s conviction for endangering children in violation of R.C. 2919.22(B)(1) is void and is

hereby vacated. See Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988),

paragraph three of the syllabus (“A judgment rendered by a court lacking subject matter

jurisdiction is void ab initio.”) and State v. Wilson, 73 Ohio St.3d 40, 652 N.E.2d 196

(1995), paragraph two of the syllabus (“The exclusive subject matter jurisdiction of the

juvenile court cannot be waived.”); see also State v. Taylor, 2d Dist. Montgomery No.

27731, 2018-Ohio-4048, ¶ 21 and State v. Reynolds, 12th Dist. Warren No. CA2019-08-

077, 2020-Ohio-4354, ¶ 5-6.

{¶4} We therefore proceed to Bell’s assignments of error solely as they pertain

to her conviction for assault. Bell advances two assignments of error:

[1.] The trial court erred to the substantial prejudice of the defendant- appellant by denying Ms. Bell’s motion for acquittal when at the close of the state’s case the state failed to prove beyond a reasonable doubt the essential elements of the offense.

[2.] The trial court committed error in finding that the appellant is guilty of assault and child endangering against the weight of

2 evidence when the prosecutor failed to proof [sic] all the essential elements of the offense beyond reasonable doubt.

{¶5} Bell challenges the denial of her Crim.R. 29(A) motion for judgment of

acquittal and claims her conviction for assault is against the manifest weight of the

evidence.

{¶6} A Crim.R. 29(A) motion challenges the sufficiency of the evidence to

support a conviction. State v. Wright, 11th Dist. Portage No. 2000-P-0128, 2002 WL

480328, *2 (Mar. 29, 2002). “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.”

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

citing Jackson v. Virginia, 443 U.S. 307 (1979). “In essence, sufficiency is a test of

adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶7} “Although a court of appeals may determine that a judgment of a trial court

is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.” Id. at 387. Further, a determination of

whether a conviction is against the weight of the evidence “necessarily rests on the

existence of sufficient evidence to support the conviction.” State v. McCrory, 11th Dist.

Portage No. 2006-P-0017, 2006-Ohio-6348, ¶ 40.

3 {¶8} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

It indicates clearly to the jury that the party having the burden of proof will be entitled to

their verdict, if, on weighing the evidence in their minds, they shall find the greater amount

of credible evidence sustains the issue which is to be established before them.’”

Thompkins at 386 (emphasis sic), quoting Black’s Law Dictionary 1594 (6th Ed.1990).

{¶9} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

Id. “‘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.” Id.,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

{¶10} “The [factfinder] is the sole judge of the weight of the evidence and the

credibility of the witnesses. It may believe or disbelieve any witness or accept part of

what a witness says and reject the rest. In reaching its verdict, the [factfinder] should

consider the demeanor of the witness and the manner in which he testifies, his connection

or relationship with the prosecution or the defendant, and his interest, if any, in the

outcome.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); accord State v.

Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 28 (“The trier of fact is free to believe

all, part, or none of the testimony of any witness, and we defer to the trier of fact on

evidentiary weight and credibility issues because it is in the best position to gauge the

4 witnesses’ demeanor, gestures, and voice inflections, and to use these observations to

weigh their credibility.” (Citations omitted.)) Therefore, because “the weight to be given

the evidence and the credibility of the witnesses are primarily for the trier of the facts,”

“‘the discretionary power to grant a new trial should be exercised only in the exceptional

case in which the evidence weighs heavily against the conviction.’” State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; Thompkins at

376, quoting Martin at 175.

{¶11} Bell was convicted of assault, in violation of R.C. 2903.13(A): “No person

shall knowingly cause or attempt to cause physical harm to another * * *.” “Physical harm”

includes “any injury, illness, or other physiological impairment, regardless of its gravity or

duration.” R.C. 2901.01(A)(3). “A person acts knowingly, regardless of purpose, when

the person is aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B). “[D]irect evidence of the accused’s

actual knowledge would not ordinarily be available and that knowledge could be imputed

by the use of circumstantial evidence.” State v. Rubal, 11th Dist. Lake No. 7-178, 1980

WL 352149, *1 (Mar. 31, 1980).

{¶12} A four-year-old nonverbal autistic student was part of an integrated pre-

kindergarten classroom taught by Bell at Brimfield Elementary. Relevant to the assault

charge, the state presented evidence of two incidents that occurred between Bell and the

child in February 2019.

{¶13} On February 13, Bell’s classroom assistant (Beth Fulst) and another

kindergarten teacher (Kaitlin Hess) witnessed an incident in the school’s gym. Fulst

testified the child had thrown a toy, and after he retrieved it, Bell attempted to remove the

5 toy from the child’s hand. Fulst saw the child scratch Bell and try to bite her. “And at that

point she [Bell] kicked his legs out from behind him and he went down to the ground.”

Bell sat behind the child and started playing with him, tickling and scratching. Hess

observed the child biting Bell’s arm and recalled, “I did not see how she [Bell] got out of

the bite, but after that, I watched her kick his legs out, push him to the ground and she

gave the illusion of tickling.” Hess was across the gym but testified she could see where

Bell’s “hands had been on his stomach and there were red marks. So if it was tickling, it

was very hard tickling.” Her testimony further reported that Bell was laughing, but the

child was not laughing and was rolling on the ground.

{¶14} On February 27, Hess and an instructional aide assistant in Hess’

classroom (Rosalia Matos) observed another incident. Matos and Hess were in the gym

with their students when Bell’s student came in with black magic marker scribbled on his

arms and face. Matos inquired if the child colored on himself, to which Bell responded,

“No, I did it to him.” Matos testified she later learned the child was trying to draw on Bell,

so Bell drew on the child as a form of punishment. Hess specifically recalled a “smiley

face” drawn near his shoulder. Hess later heard the child screaming and heard Bell

yelling. She looked toward the commotion and saw Bell standing in the vicinity of the

child. Matos also recalled the child screaming and a struggle between him and Bell.

Matos testified that Bell was standing behind the child, and “one of her hands was holding

his arm up to his mouth. Her other hand was holding the back of his head.” The hand on

the back of the child’s head was “pushing it down towards his arm.” Matos stated it was

unclear what was happening, but the child was upset and crying, and it appeared that

6 Bell was also upset. Matos testified that she later learned the child had bit Bell, “and she

[Bell] was trying to make him bite himself back.”

{¶15} In addition to these two incidents, Beth Fulst testified she witnessed Bell

make the child scratch himself when he was acting out. Fulst recalled their supervisor

Kim Meeker met with Bell on February 28, following which Bell told Fulst and another

assistant, “We have to stop making [the child] bite himself and scratch himself back.”

{¶16} After reporting the incidents, Bell received a formal letter of reprimand from

Meeker in a meeting with human resources. The letter referenced, inter alia, that Bell

had a child scratch himself and bite himself as means of behavior management within her

classroom setting. According to Meeker’s testimony, Bell responded that she felt her

behavior management techniques had been misconstrued. Bell was required to view

multiple online training sessions, including one on child abuse prevention. When asked

if this was because Meeker thought Bell was committing child abuse, she responded,

“Yes.”

{¶17} Shortly thereafter, Fulst, Hess, and Matos each reported Bell to Child

Protective Services.

{¶18} Bell testified that she never forced the child to bite or scratch himself, she

did not kick the child’s legs out from under him, and she never used a marker to draw on

the child. She further denied ever telling her assistants that they could no longer make

the child bite and scratch himself. Bell claimed the eyewitnesses of both incidents were

lying, wrong, or mistaken as to what occurred. The defense also presented testimony

from the child’s occupational therapy assistant and physical therapist at the school, as

well as a student teacher who had interned with Bell during the first half of the school

7 year. None of these witnesses observed the February incidents or observed injuries to

the child.

{¶19} Bell argues the state failed to demonstrate the “knowingly” element of

assault and challenges the credibility of the state’s witnesses. Bell contends the evidence

shows she was merely executing her responsibilities as required by the Individualized

Education Plan (“IEP”) that was specially designed for the autistic child. She further

claims her efforts were misconstrued by one of her aides—who lacked experience,

knowledge, and an understanding of the child’s IEP—and who then spread rumors and

made multiple unfounded allegations. Bell’s arguments, however, are relevant to

purpose, not “knowingly.” Regardless of her purpose for acting, the eyewitness

testimony, if believed, is consistent with a conclusion that Bell knew her conduct would

probably cause physical harm to the child, regardless of its gravity or duration.

{¶20} Based on the foregoing, the evidence is more than sufficient to show that,

regardless of her purpose in doing so, Bell knowingly caused physical harm to the child

during their interactions in the gym on February 13 and February 27, 2019. The state

provided eyewitness testimony to the events that occurred in the gym and testimony,

including of the child’s father, as to visual observation of scratches and red marks on the

child’s person. Although there was conflicting testimony as to some points, the factfinder

evidently afforded more weight to the testimony of the state’s witnesses and found it more

credible than Bell’s testimony. This is not an exceptional case in which the factfinder

clearly lost its way and created a manifest miscarriage of justice.

8 {¶21} The trial court did not err in denying Bell’s Crim.R. 29(A) motion for judgment

of acquittal or in finding Bell guilty of assault. Accordingly, Bell’s first and second assigned

errors lack merit.

{¶22} The judgment of the Portage County Municipal Court, Kent Division, is

reversed and vacated with respect to Bell’s endangering children conviction, due to lack

of subject matter jurisdiction. The finding of guilt with respect to Bell’s assault conviction

is affirmed. The matter is remanded for the trial court to enter sentence accordingly.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.