State v. Clark

2012 Ohio 4776

Opinion

[Cite as State v. Clark, 2012-Ohio-4776.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2011CA017 : : MELISSA CLARK : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Coshocton Municipal Court Case No. CRB 1100149(A)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 5, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTIE M. L. NELSON JEFFREY G. KELLOGG Assistant Law Director Assistant Public Defender, 760 Chestnut Street Coshocton County Coshocton, Ohio 43812 239 North Fourth Street Coshocton, Ohio 43812 [Cite as State v. Clark, 2012-Ohio-4776.]

Edwards, J.

{¶1} Defendant-appellant, Melissa Clark, appeals her conviction and sentence

from the Coshocton Municipal Court on one count of child endangering. Plaintiff-

appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 28, 2011, a complaint was filed alleging that appellant had

committed the offense of domestic violence in violation of R.C. 2919.25(A), a

misdemeanor of the first degree. On the same date, a complaint was filed alleging that

appellant had committed the offense of child endangering in violation of R.C.

2919.22(A), also a misdemeanor of the first degree. At her arraignment on March 31,

2011, appellant entered a plea of not guilty to the charges.

{¶3} Thereafter, a bench trial commenced on October 26, 2011. At the trial,

Sergeant Eric Demattio of the Coshocton County Sheriff’s Office testified that, on March

19, 2011, he responded to a call about a domestic incident between a mother and

daughter. When he arrived at appellant’s home, he observed appellant on top of her

daughter restraining her. The room was “a little disheveled” and a window was broken.

Transcript at 6. According to Sergeant Demattio, appellant told them that she had

attempted to give her daughter, who was hitting and biting appellant, pills to calm her

down. The Sergeant testified that “[s]he got on top of her [daughter] to restrain her and

tried to give her pills and put pills in her mouth.” Transcript at 7. Appellant told the

officers that the pills were her prescription pills for Ativan. The officers ordered

appellant to get off of her daughter, who was screaming and trying to get up. Coshocton County App. Case No. 2011CA017 3

{¶4} Appellant’s daughter, Brianna, was arrested for domestic violence and

appellant also was charged with domestic violence. Both had injuries. Appellant was

later charged with child endangering.

{¶5} Brianna Clark, appellant’s daughter, testified that she was 13 years old.

After reviewing the written statement that she gave on the night in question, Brianna

testified that she had a friend spend the night on March 19, 2011 and that the friend

sneaked a boy into Brianna’s bedroom. At the time, the bedroom door was locked. After

the door was opened, appellant threw the boy out and sent Brianna’s friend home.

According to Brianna, she got into a fight with appellant when appellant demanded her

cell phone. Brianna then stuffed the phone down her shirt and appellant tried to retrieve

the same. In her written statement to police, Brianna indicated that appellant hit her in

the mouth. When asked if the statement was true or false, she testified that appellant

had smacked her when she cussed at appellant. Brianna further testified that appellant

put one pill in her mouth to calm her after she threatened to kill herself. When asked

about appellant’s statement that Brianna had more than one pill in her mouth, Brianna

indicated that it was untrue and that appellant had lied in her statement. Brianna initially

denied that she wrote statements indicating that appellant told her that she would get in

trouble if she testified against appellant. However, she later testified that appellant “said

that they could bring up more charges” if Brianna testified. Transcript at 24.

{¶6} Brianna further testified that appellant covered her mouth so that she

could not spit out the pill and that she felt like she could not breathe. According to

Brianna, after she went to the hospital, she was told that she only had enough Coshocton County App. Case No. 2011CA017 4

milligrams in her system for one pill. Brianna testified that she felt “dizzy and

lightheaded” from the medication. Transcript at 42.

{¶7} At trial, appellant testified that, in March of 2009, she was diagnosed with

hereditary spasmodic paraplegia and was completely paralyzed for four days. She

testified that, on the day in question, after she asked Brianna for the cell phone, Brianna

put the phone down her shirt and told appellant that she could not have the same.

Brianna then ran downstairs. When appellant locked the front door, Brianna called her a

‘fucking bitch” and appellant smacked her in the mouth. Transcript at 71. According to

appellant, Brianna then punched her and split open her lip. Appellant then restrained

Brianna on the floor and, after Brianna quit struggling, appellant let her up. Appellant

testified that Brianna then ran upstairs, kicked out her bedroom window and threatened

to kill herself.

{¶8} Appellant testified that she started having muscle spasms and that she

yelled for her boyfriend to bring her medicine bag because she needed her Ativan.

Appellant, who testified that she was a licensed practical nurse, indicated that she was

worried that she was going to have a seizure and that, if she did, Brianna would be able

to get up and hurt herself. Appellant testified that she then put a one milligram Ativan pill

into Brianna’s mouth. The following testimony was adduced when appellant was asked

if she had indicated that she gave Brianna two pills:

{¶9} “A. Well, what happened was, when I put the Ativan in her mouth she spit

it out. And Ativan, when it is - - when it’s put in your mouth, because it can be given

sublingual, is where it actually melts in the mouth, it starts to melt. And she spit it out.

And I’m struggling. And when I went to pick it up it actually had a dog hair on it, you Coshocton County App. Case No. 2011CA017 5

know, so I got another one and I put it in her mouth. And then I went to get the bottle of

water and when I turned back around she was screaming and I seen she had three in

her mouth. And then I started doing a mouth swab to get them out. That’s how I got the

injuries on my fingernails and thumbnails. She bit through the nails.

{¶10} “Q. And those are on the pictures?

{¶11} “A. Yeah. I was doing a mouth swab to get them out.

{¶12} “Q. Were you able to get them out?

{¶13} “A. The majority of the, yes. But like I said, they melt pretty quickly. And I

did, there was Ativan I’m sure that was in her system, but I got the majority of it out.

And she had to have put the other pills in her mouth. And she was screaming that she

was going to kill herself.” Transcript at 77-78.

{¶14} At the conclusion of the evidence, the trial court found appellant guilty of

child endangering, but not guilty of domestic violence. The trial court, in finding

appellant guilty of child endangering, stated, in relevant part, as follows:

{¶15} “With regard to the endangering children, there’s no question that putting

pills in her daughter’s mouth, no question prescription medication is probably pretty

heavy duty stuff. The child is only 13, so she might not even need to take that. It might

not be prescribed for her. The daughter also indicated that she was dizzy after taking

the medication. When she was at the Detention Center after the deputies took her there.

The Defendant also testified that she knew she was wrong when she did it and tried to

get it out. And I think [t]he State has proved that case beyond a reasonable doubt and

gonna (sic) find her guilty of endangering children.” Transcript at 113-114.

{¶16} The trial court also found appellant guilty of disorderly conduct. Coshocton County App. Case No. 2011CA017 6

{¶17} Pursuant to Judgment Entries filed on October 27, 2011, the trial court

sentenced appellant to 60 days in jail with respect to the charge of child endangering.

The trial court suspended the jail sentence under specified conditions and ordered

appellant to pay a fine of $150.00 and court costs. With respect to the charge of

disorderly conduct, the trial court fined appellant $75.00 and ordered her to pay court

costs.

{¶18} Appellant now raises the following assignment of error on appeal:

{¶19} “THE TRIAL COURT ERRED BY CONVICTING THE APPELLANT OF

CHILD ENDANGERING UPON INSUFFICIENT EVIDENCE AND AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

I

{¶20} Appellant, in her sole assignment of error, argues that her conviction for

child endangering was not supported by sufficient evidence and is against the manifest

weight of the evidence. We disagree.

{¶21} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52, 678 N.E.2d 541, State v. Jenks, 61

Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after

viewing the probative evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jenks, supra. Coshocton County App. Case No. 2011CA017 7

{¶22} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

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 judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

only in the exceptional case in which the evidence weighs heavily against the

judgment.” Thompkins, supra at 387, citing State v. Martin, 20 Ohio App .3d 172, 175,

485 N.E.2d 717 (1st Dist. 1983). Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), syllabus 1.

{¶23} Appellant was convicted of child endangering in violation of R.C.

2919.22(A). R.C. 2919.22 states, in relevant part, as follows: “(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…” A “substantial risk” is “a

strong possibility, as contrasted with a remote * * * possibility, that a certain result may

occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).

{¶24} Appellant specifically contends that the State failed to present sufficient

evidence that ingestion of one Ativan pill created a substantial risk to the health and

safety of her daughter. Appellant notes that the only testimony concerning Ativan came

from her and that she is a licensed practical nurse with IV certification and has worked Coshocton County App. Case No. 2011CA017 8

as a psychiatric nurse. Appellant notes that she testified that she was familiar with

Ativan from her nursing and used the drug frequently, particularly while working as a

psychiatric nurse. Appellant specifically points to her following trial testimony:

{¶25} “Q. What kind of dosage is typical for someone?

{¶26} “A. Of her [Brianna’s] size and age?

{¶27} “Q. Yes.

{¶28} “A. A 13-year old weighing 135 pounds, you could go by weight, which is

0.05 milligrams per kilograms of weight, which if you calculate Bri weighs 64.1

kilograms, so it comes out to be three kilograms (sic). But if you go by the adult

dosage, you could give them anywhere from two to six milligrams at one time with the

maximum of 10 milligrams per day. And that’s only for anxiety and addiction. There are

not any other uses to the drug.

{¶29} “Q. Can you overdose on Ativan?

{¶30} “A. Yes, but you would have to take quite a bit, quite a bit of Ativan.

{¶31} “Q. How many pills do you think were in her mouth?

{¶32} “A. I saw three, but that would be three milligrams which is the correct

dosage for, you know, like I said, if you go by her weight. If you go by she’s not

considered with intents and purposes as an adult, she could have had more.

{¶33} “Q. Three milligrams cause her physical harm?

{¶34} “A. No. No. It would have just calmed her down.” Transcript at 79-80.

{¶35} According to appellant, these statements were not challenged by appellee

on cross-examination or by any other witness. Coshocton County App. Case No. 2011CA017 9

{¶36} Upon our review of the evidence, we find that any rational trier of fact,

construing the evidence in appellant’s favor, could have found that appellant committed

the offense of child endangering and that the trial court, as trier of fact, did not lose its

way in convicting appellant. As is stated above, there was testimony that appellant, who

is not a doctor, gave her daughter Ativan to try and calm her down. The Ativan had

been prescribed for appellant, not for her daughter. Appellant testified that she knew

that it was wrong to give Ativan to someone who does not have a prescription and that

she wished that she had not done it. As is stated above, Brianna testified that she felt

“dizzy and lightheaded” from the medication. Transcript at 42.

{¶37} While there was no medical testimony regarding the risks of Ativan, as

noted by the court in State v. Hartley, 194 Ohio App.3d 486, 2011-Ohio-2530, 957

N.E.2d 44 (1st Dist.), expert medical testimony is not required where the creation of a

risk to health or safety is within common knowledge. It is common knowledge that

administration of a prescription drug to a child who has not been prescribed the same

may cause an overdose and does not consider contraindication. See Hartley, supra.

While appellant, as a nurse, may have been familiar with Ativan, she lacked the medical

knowledge to adequately consider all of the factors that a physician would consider in

prescribing medication to a person, especially a child. It is common knowledge that

certain drugs require prescriptions, as opposed to being available over the counter,

because of the risks that are inherent in such drugs. Coshocton County App. Case No. 2011CA017 10

{¶38} Based on the foregoing, we find that the evidence supported a finding that

appellant’s act created a strong possibility of harm to the health or safety of her

daughter. Appellant’s sole assignment of error is, therefore, overruled.

{¶39} Accordingly, the judgment of the Coshocton Municipal Court is affirmed.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

JUDGES

JAE/d0711 [Cite as State v. Clark, 2012-Ohio-4776.]

IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MELISSA CLARK : : Defendant-Appellant : CASE NO. 2011CA017

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Coshocton Municipal Court is affirmed. Costs assessed to appellant.

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