State v. Dayton

2018 Ohio 3003

• Court: Ohio Court of Appeals
• Decided: July 30, 2018
• Docket: 14-17-03
• Status: Published

Opinion

[Cite as State v. Dayton, 2018-Ohio-3003.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-17-03

v.

LUCKIE J. DAYTON, III, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2016-CR-0131

Judgment Affirmed

Date of Decision: July 30, 2018

APPEARANCES:

Natalie J. Bahan for Appellant

Melissa A. Chase for Appellee Case No. 14-17-03

PRESTON, J.

{¶1} Defendant-appellant, Luckie J. Dayton III (“Dayton”), appeals the

February 22, 2017 judgment entry of sentence of the Union County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} In April 2015, Dayton’s children, M.R.D., M.A.D., M.D., and I.D., as

well as Dayton’s stepdaughter, P.W., were removed from Dayton’s home following

an allegation by P.W. that Jessica Dayton (“Jessica”), Dayton’s wife, was physically

abusing M.R.D. and M.A.D. At first, Dayton was permitted to visit with his children

because only Jessica was charged with endangering children. However, following

a visit with M.A.D. in August 2015, Dayton was arrested for intimidation after

M.A.D. alleged that Dayton showed her a picture during the visit which stated

something to the effect of “Your Mother Did Not Abuse You.” On August 31, 2015,

the Union County Grand Jury indicted Dayton on one count of intimidation in

violation of R.C. 2921.03(A), a third-degree felony. (Case No. 2015-CR-162, Doc.

No. 1). On September 17, 2015, Dayton appeared for arraignment and entered a

plea of not guilty. (Case No. 2015-CR-162, Doc. No. 8).

{¶3} Although Dayton was not initially implicated in Jessica’s abuse of

M.R.D. and M.A.D., he was soon charged with offenses relating to the abuse. He

was also charged with offenses stemming from an allegation that Dayton sexually

abused P.W. and that he attempted to bribe M.R.D. and M.A.D. to give favorable

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testimony in proceedings against Jessica. On June 20, 2016, the Union County

Grand Jury indicted Dayton on ten counts, including: Counts One and Two of gross

sexual imposition in violation of R.C. 2907.05(A)(4), (C)(2), third-degree felonies;

Counts Three and Four of endangering children in violation of R.C. 2919.22(B)(2),

(E)(3), second-degree felonies; Counts Five and Six of endangering children in

violation of R.C. 2919.22(A), (E)(2)(c), third-degree felonies; Counts Seven and

Eight of permitting child abuse in violation of R.C. 2903.15(A), (C), third-degree

felonies; and Counts Nine and Ten of bribery in violation of R.C. 2921.02(C), (G),

third-degree felonies. (Case No. 16-CR-0131, Doc. No. 1). Although the

indictment charged Dayton with violations of R.C. 2919.22(B)(2) as the principal

offender as permitted under R.C. 2923.03(F), a subsequently filed bill of particulars

clarified that the State was pursing the charges against Dayton under the complicity

statute for involvement with Jessica’s abuse of two of his minor daughters, M.R.D.

and M.A.D., in violation of R.C. 2919.22(B)(2). (Case No. 16-CR-0131, Doc. No.

14A).

{¶4} On July 22, 2016, Dayton appeared for arraignment and entered pleas

of not guilty to the ten-count indictment. (Case No. 16-CR-0131, Doc. No. 8).

{¶5} On December 1, 2016, the State filed a motion to consolidate case

numbers 2015-CR-162 and 2016-CR-0131. (Case No. 16-CR-0131, Doc. No. 42);

(Case No. 2015-CR-162, Doc. No. 35). On December 2, 2016, the trial court

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granted the State’s motion and consolidated the cases under case number 2016-CR-

0131. (Case No. 16-CR-0131, Doc. No. 45); (Case No. 2015-CR-162, Doc. No.

36). The intimidation charge that was the subject of case number 2015-CR-162 was

later designated as Count Eleven in case number 16-CR-0131. (See Case No. 16-

CR-0131, Doc. Nos. 64, 74).

{¶6} On December 9, 2016, the State filed a motion requesting that the trial

court call Jessica as the court’s witness under Evid.R. 614(A). (Case No. 16-CR-

0131, Doc. No. 56). On December 12, 2016, the trial court granted the State’s

motion to call Jessica Dayton as the court’s witness. (Case No. 16-CR-0131, Doc.

No. 61).

{¶7} A jury trial was held on December 12-16, 2016. (Dec. 12-16, 2016 Tr.,

Vol. I, at 2-6). At the conclusion of the State’s case-in-chief on December 15, 2016,

Dayton moved for a Crim.R. 29 judgment of acquittal for Counts One through

Eleven of the indictment. (Dec. 12-16, 2016 Tr., Vol. VII, at 1302-1307). The trial

court granted Dayton’s motion as to Count One and denied his motion as to Counts

Two through Eleven. (Id. at 1307-1308, 1315); (Case No. 16-CR-0131, Doc. No.

64). The jury found Dayton guilty as to Counts Two through Eleven. (Dec. 12-16,

2016 Tr., Vol. VIII, at 1731-1738); (Case No. 16-CR-0131, Doc. Nos. 65, 66, 67,

68, 69, 70, 71, 72, 73, 74).

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{¶8} The trial court held a sentencing and sex-offender registration hearing

on February 22, 2017. (Feb. 22, 2017 Tr.); (Case No. 16-CR-0131, Doc. Nos. 81,

82). The trial court determined that Counts Three, Five, and Seven are allied

offenses of similar import and merged those counts. (Case No. 16-CR-0131, Doc.

No. 81). The trial court also determined that Counts Four, Six, and Eight are allied

offenses of similar import and merged those counts. (Case No. 16-CR-0131, Doc.

No. 81). The State elected to pursue Counts Three and Four for sentencing. (Case

No. 16-CR-0131, Doc. No. 81). The trial court sentenced Dayton to 54 months in

prison on Count Two, 4 years in prison on Count Three, and 4 years in prison on

Count Four, to be served consecutively for an aggregate prison term of 12 years and

6 months. (Case No. 16-CR-0131, Doc. No. 81). Dayton was also sentenced to 30

months in prison on Count Nine, 30 months in prison on Count Ten, and 30 months

in prison on Count Eleven, each of which is to be served concurrently with his

sentences for Counts Two, Three, and Four. (Case No. 16-CR-0131, Doc. No. 81).

The trial court also classified Dayton as a Tier II sex offender. (Case No. 16-CR-

0131, Doc. No. 81).

{¶9} Dayton filed his notice of appeal on March 24, 2017. (Case No. 16-

CR-0131, Doc. No. 89). He raises three assignments of error for our review. We

will address Dayton’s assignments of error in the order presented, and for the sake

of clarity, we will address Dayton’s second and third assignments of error together.

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Assignment of Error No. I

Defendant-appellant’s convictions are supported by insufficient evidence, and are against the weight of the evidence and therefore resulting [sic] in a denial of due process.

{¶10} In his first assignment of error, Dayton argues that his convictions are

based on insufficient evidence and against the manifest weight of the evidence. As

to his endangering-children, complicity-to-endangering-children, and permitting-

child-abuse convictions, Dayton argues that the State presented insufficient

evidence that he either had knowledge of the abuse occurring in his residence or that

he recklessly disregarded a substantial risk that abuse was taking place; he also

argues that the evidence weighs against the jury’s finding to the contrary. As to his

gross-sexual-imposition conviction, Dayton argues that the jury erred in crediting

the victim’s account of the alleged abuse and that, as a result, his gross-sexual-

imposition conviction is against the manifest weight of the evidence.1

{¶11} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). Accordingly, we address each legal concept individually.2

1 Dayton does not challenge his bribery or intimidation convictions. As such, we will not address the sufficiency or weight of the evidence supporting these convictions. See App.R. 12(A)(2); App.R. 16(A). See also State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-446, ¶ 7, fn. 1. 2 We note that Dayton combined two separate arguments into his first assignment of error. Loc.R. 11(A) states that “[e]ach assignment of error must be separately argued in the briefs unless the same argument, and no other, pertains to more than one assignment of error.” While Dayton’s combined argument is against our local rules, in the interest of justice, we elect to address Dayton’s arguments. See State v. Saltz, 3d Dist. Hancock No. 5-14-33, 2015-Ohio-3097, ¶ 31, 37.

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{¶12} “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.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).

Consequently, “[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.” Id. “In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor

assess the credibility of witnesses, as both are functions reserved for the trier of

fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-

4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25

(1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380,

¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or

weight of the evidence.”), citing Thompkins at 386.

{¶13} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

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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.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

{¶14} Dayton was convicted of two counts of endangering children in

violation of R.C. 2919.22(A), two counts of complicity to endangering children in

violation of R.C. 2923.03(A) and R.C. 2919.22(B)(2), two counts of permitting

child abuse in violation of R.C. 2903.15(A), and one count of gross sexual

imposition in violation of R.C. 2907.05(A)(4).

{¶15} The criminal offense of endangering children is codified in R.C.

2919.22, which provides, in relevant part:

(A) No person, who is the parent * * * 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.

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(B) No person shall do any of the following to a child under eighteen

years of age * * *:

***

(2) Torture or cruelly abuse the child

R.C. 2919.22(A), (B)(2).

{¶16} “‘To find the defendant guilty of child endangering under [R.C.

2919.22(A)], the state must prove beyond a reasonable doubt that the defendant: (1)

was the parent, guardian, custodian, person having custody or control, or person in

loco parentis of a child under eighteen; (2) violated a duty to said child; (3) created

a substantial risk to the health or safety of the child; and (4) acted recklessly.’” State

v. Miller, 3d Dist. Seneca No. 13-13-14, 2014-Ohio-261, ¶ 11, quoting State v.

Miller, 3d Dist. Logan Nos. 8-07-07 and 8-07-08, 2007-Ohio-6711, ¶ 12, citing R.C.

2919.22(A) and State v. McGee, 79 Ohio St.3d 193, 195 (1997). A “substantial

risk” means “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). The culpable mental state required to sustain a conviction for

endangering children under R.C. 2919.22(A) is recklessness. McGee at 195. “A

person acts recklessly when, with heedless indifference to the consequences, the

person disregards a substantial and unjustifiable risk that the person’s conduct is

likely to cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C).

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“A person is reckless with respect to circumstances when, with heedless

indifference to the consequences, the person disregards a substantial and

unjustifiable risk that such circumstances are likely to exist.” Id.

{¶17} On the other hand, to prove the offense of endangering children under

R.C. 2919.22(B)(2), the State must prove beyond a reasonable doubt that a

defendant recklessly tortured or cruelly abused a child under eighteen years of age.

See State v. Journey, 4th Dist. Scioto No. 09CA3270, 2010-Ohio-2555, ¶ 24, citing

R.C. 2919.22(B)(2). R.C. 2919.22 does not define the terms “torture” or “cruelly

abuse.” See State v. Wainscott, 12th Dist. Butler No. CA2015-07-056, 2016-Ohio-

1153, ¶ 24, quoting State v. Nivert, 9th Dist. Summit No. C.A. NOS. 16806, 1995

WL 608415, *2 (Oct. 18, 1995). “However, the word ‘torture’ as used in [R.C.

2919.22(B)(2)] has been defined as ‘the infliction of severe pain or suffering (of

body or mind),’ with the word ‘abuse’ being defined as ‘ill-use, maltreat; to injure,

wrong or hurt.’” Id., quoting State v. Surles, 9th Dist. Summit No. 23345, 2007-

Ohio-6050, ¶ 5. “Moreover, to treat someone ‘cruelly’ means to ‘demonstrate

indifference to or delight in another’s suffering,’ as well as to treat that person

‘severely, rigorously, or sharply.’” Id., quoting State v. Brown, 9th Dist. Summit

No. 23737, 2008-Ohio-2956, ¶ 12. As with R.C. 2919.22(A), the culpable mental

state required to sustain a conviction for endangering children under 2919.22(B)(2)

is recklessness. See id. at ¶ 25, citing State v. Ossege, 12th Dist. Clermont Nos.

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CA2013-11-086 and CA2013-11-087, 2014-Ohio-3186, ¶ 55 and State v. Adams,

62 Ohio St.2d 151 (1980), paragraph one of the syllabus.

{¶18} R.C. 2923.03, Ohio’s complicity statute, provides, in relevant part,

that “[n]o person, acting with the kind of culpability required for the commission of

an offense, shall * * * [a]id or abet another in committing the offense * * *.” R.C.

2923.03(A)(2).

To support a conviction for complicity by aiding and abetting

pursuant to R.C. 2923.03(A)(2), the evidence must show that the

defendant supported, assisted, encouraged, cooperated with, advised,

or incited the principal in the commission of the crime, and that the

defendant shared the criminal intent of the principal. Such intent may

be inferred from the circumstances surrounding the crime.

State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “‘“Evidence of aiding and

abetting may be shown by either direct or circumstantial evidence, and participation

in criminal intent may be inferred from presence, companionship, and conduct

before and after the offense is committed.”’” State v. Wright, 3d Dist. Hardin No.

6-15-14, 2016-Ohio-5465, ¶ 9, quoting State v. Rowe, 3d Dist. Seneca No. 13-10-

14, 2011-Ohio-5739, ¶ 32, quoting State v. Gragg, 173 Ohio App.3d 270, 2007-

Ohio-4731, ¶ 21 (12th Dist.). Accordingly, to sustain a conviction for complicity to

endangering children under R.C. 2923.03(A)(2) and 2919.22(B)(2), the State must

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prove beyond a reasonable doubt that a defendant recklessly aided or abetted

another’s violation of R.C. 2919.22(B)(2). See State v. Diggs, 10th Dist. Franklin

No. 14AP-18, 2014-Ohio-3340, ¶ 25-26 (applying the recklessness culpability

standard to the complicity statute).

{¶19} The criminal offense of permitting child abuse is codified in R.C.

2903.15, which provides, in relevant part, that “[n]o parent, guardian, custodian, or

person having custody of a child under eighteen years of age * * * shall cause serious

physical harm to the child, or the death of the child, as a proximate result of

permitting the child to be abused [or] to be tortured * * *.” R.C. 2903.15(A). The

culpable mental state required to sustain a conviction under R.C. 2903.15(A) is

recklessness. See State v. Ferguson, 2d Dist. Clark No. 08CA0050, 2011-Ohio-

4285, ¶ 27. “Serious physical harm” means:

(a) Any mental illness or condition of such gravity as would

normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity,

whether partial or total, or that involves some temporary, substantial

incapacity;

(d) Any physical harm that involves some permanent disfigurement

or that involves some temporary, serious disfigurement; [or]

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(e) Any physical harm that involves acute pain of such duration as

to result in substantial suffering or that involves any degree of

prolonged or intractable pain.

R.C. 2901.01(A)(5)(a)-(e).

{¶20} The criminal offense of gross sexual imposition is codified in R.C.

2907.05 which provides, in relevant part, that “[n]o person shall have sexual contact

with another, not the spouse of the offender * * * when * * * [t]he other person, or

one of the other persons, is less than thirteen years of age, whether or not the

offender knows the age of that person.” R.C. 2907.05(A)(4). “Sexual contact” is

defined in R.C. 2907.01(B) as meaning “any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or,

if the person is a female, a breast, for the purpose of sexually arousing or gratifying

either person.” “Whether touching is done for the purpose of sexual gratification is

a ‘question of fact to be inferred from the type, nature, and circumstances

surrounding the contact.’” State v. Todd, 3d Dist. Hardin No. 6-16-11, 2017-Ohio-

4355, ¶ 12, quoting In re K.C., 1st Dist. Hamilton No. C-140307, 2015-Ohio-1613,

¶ 32.

{¶21} At trial, the State first offered the testimony of Detective Nathan Stone

(“Detective Stone”) of the Marysville Division of Police. (Dec. 12-16, 2016 Tr.,

Vol. I, at 243-244). Detective Stone testified that he was present on the day that a

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search warrant was executed at Dayton’s residence and that he was tasked with

taking photographs of the residence and items seized. (Id.). Detective Stone

identified State’s Exhibits 1 through 11 as photographs depicting the residence as it

appeared on May 27, 2015 as well as items seized from the residence. (Id. at 245-

260) (See State’s Exs. 1-11).

{¶22} Next, Dayton’s then 14-year-old daughter, M.R.D., testified that when

she was living with Dayton, she recalled having fights with her sister, M.A.D.,

“almost every day” because “[Jessica] would force [M.R.D. and M.A.D.] to fight

over stupid stuff” like “not letting the dog out” and “keeping [their] brother and

sister from waking up [Jessica].” (Dec. 12-16, 2016 Tr., Vol. IV, at 748, 750, 759).

According to M.R.D., Jessica would tell M.R.D. and M.A.D. to “go into the

bathroom and sort it out * * * and by sort it out, she meant, * * * hit and punch and

stuff * * *.” (Id. at 750). She testified that she suffered “marks” from the fights and

“busted lips.” (Id. at 750-751). M.R.D. testified that she was often forced to fight

with M.A.D. during car trips. (Id. at 766-767). On one occasion, she was forced to

hit M.A.D. in the head with a lunchbox. (Id. at 767). M.R.D. stated that she has a

“few scars on [her] forehead” from fighting with M.A.D. but that her facial scars

were “mainly from [Jessica].” (Id. at 751). M.R.D. testified that Jessica once

hit her in the head with the “clip of a belt,” leaving a visible scar. (Id.). She testified

that the belt buckle “busted open” her head and that Jessica used super glue to close

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the wound without taking her to the doctor. (Id. at 751-752). She testified that her

head was repeatedly slammed into the walls of their residence by Jessica, that the

walls were damaged as a result, and that a hole in the wall, caused when Jessica

pushed M.A.D. into the wall, had to be covered over with a poster. (Id. at 754). She

testified that Dayton was at home the day Jessica pushed M.A.D. into the wall,

causing the hole. (Id. at 779).

{¶23} M.R.D. also testified that Jessica forced her and M.A.D. to “tuck in”

their toes because Jessica said their “feet were disgusting.” (Id. at 756). She

testified that they were forced to walk with their toes tucked under their feet “all

day.” (Id.). She testified that, on one occasion, Jessica “took a hammer to [their]

feet.” (Id.). M.R.D. testified that Jessica once pushed M.A.D., causing M.A.D. to

hit her head on the corner of a night stand. (Id. at 757). As a result, M.A.D. got a

“goose egg” on her head, which Jessica told M.R.D. to get rid of by pushing on it.

(Id.). M.R.D. testified that she complied with Jessica’s instruction and that M.A.D.

then had “two black eyes and her whole forehead was swollen” for approximately

two days. (Id. at 757-758). She also testified that Jessica forced them to “float”—

stand on their “tippy toes” and fall face forward without catching themselves with

their hands—“[a]lmost every day after [they] got home from school.” (Id. at 762).

She testified that one time, Jessica stood on M.A.D.’s stomach until M.A.D. lost

consciousness and stopped breathing, resulting in M.R.D. having to perform CPR

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on M.A.D. (Id. at 763-764). M.R.D. testified that Jessica would “quite often”

conceal her and M.A.D.’s injuries with makeup and that they would have cuts and

bruises “most of the time.” (Id. at 758-759). She testified that this pattern continued

for at least four years from the time that she was 8-years-old until she was placed in

foster care just before she turned 13-years-old. (Id. at 770).

{¶24} As to Dayton’s knowledge of what was happening, M.R.D. testified

that Jessica recorded M.A.D. and M.R.D. fighting so that she could show Dayton to

“prove to him that we were fighting with each other, and this would always happen

when he was gone.” (Id. at 755). She testified that she would interact with Dayton

when he would help with homework after school and that they would also eat

together. (Id. at 764-765). As to other people’s knowledge of what was happening

at home, M.R.D. stated that she would tell teachers only that she and M.A.D. were

fighting because Jessica instructed her to say no more than that. (Id. at 759-760).

She testified that she never told them the full extent of what was happening because

she was scared to do so. (Id. at 772).

{¶25} On cross-examination, M.R.D. testified that Dayton was “usually at

work” and not present when Jessica made M.R.D. and M.A.D. fight each other. (Id.

at 784). She testified that they “were forced to tell [Dayton] that we were fighting

with each other” without being instructed to do so by Jessica “so that’s what he

thought.” (Id. at 789). She stated that Jessica would threaten them so that they

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would not tell Dayton what was really going on and why she was fighting M.A.D.

(Id. at 784-785). M.R.D. identified State’s Exhibit 27 as a series of photographs

depicting bruises and other injuries. After reviewing State’s Exhibit 27, she stated

that Dayton was not present when those injuries were inflicted and that he was never

informed exactly how M.R.D. sustained those injuries. (Id. at 789). She testified

that Dayton never hit them and Jessica never hit her or M.A.D. in the presence of

Dayton. (Id. at 790).

{¶26} In addition, M.R.D. testified that Dayton was upstairs trying to sleep

when Jessica pushed M.A.D. into the wall causing the hole which was later covered

up by a poster. (Id. at 793-794). She testified that when Dayton inquired as to how

the wall was damaged, he was told that M.A.D. was being clumsy and fell into the

wall. (Id. at 795). M.R.D. then testified as to another hole in the bathroom wall

caused by Jessica repeatedly pushing M.R.D. and M.A.D. into it. (Id. at 796). She

testified that Jessica told Dayton that that hole was caused by M.A.D. and M.R.D.’s

fighting. (Id. at 797). Finally, M.R.D. opined that she did not think that Dayton

knew of Jessica’s abuse. (Id. at 801-802).

{¶27} The State also offered the testimony of M.A.D., who was 15-years-old

at the time of her testimony. (Dec. 12-16, 2016 Tr., Vol. V, at 842). M.A.D.’s

testimony was, in large part, identical to M.R.D.’s testimony. When asked what her

and her siblings did after school, M.A.D. replied that “usually [M.R.D.] and I fought

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and stuff.” (Id. at 844). M.A.D. testified that she and M.R.D. would fight and hit

each other “[a]nywhere [they] were told” by Jessica. (Id. at 845-846). She said that,

as a result, she suffered bloody lips and black eyes. (Id. at 846, 860). M.A.D. also

confirmed many of the details of M.R.D.’s account of the “goose egg” M.A.D.

sustained. (Id. at 846-847). She testified that she missed two days of school as a

result of that incident, and when she returned to school, makeup was applied to

conceal her injuries. (Id. at 848).

{¶28} M.A.D. identified State’s Exhibit 36 as a picture depicting a scar on

the back of her head. (Id. at 863-864). When asked how she got the scar, M.A.D.

responded that it could have happened when Jessica “stomped [her] head into the

floor[,] * * * slammed [her] head into the corner of walls[,] * * * [or] hit [her] in the

head with belts.” (Id. at 865).

{¶29} M.A.D.’s testimony complemented much of M.R.D.’s account of day-

to-day life in the Dayton household. (See id. at 850-853, 867-868). Like M.R.D.,

M.A.D. testified that Dayton was upstairs sleeping when she was shoved against the

wall, creating the hole that was later covered with a poster. (Id. at 854-855, 898-

899). She further testified that Jessica struck her and M.R.D. with belts and that

M.R.D. sustained a scar on her forehead from getting him the head with a belt buckle

by Jessica. (Id. at 866-867). She stated that Jessica instructed M.A.D. and M.R.D.

to fight during car trips. (Id. at 872-875). When asked how often she had bloody

-18- Case No. 14-17-03

lips and noses, M.A.D. responded that she had them “[a]ll the time.” (Id. at 869).

According to M.A.D., she was in pain “[a]lmost every day. * * * [I]t was every day

after I got home from school if [Dayton] wasn’t there.” (Id. at 851).

{¶30} M.A.D. also testified as to other people’s knowledge of, and suspicion

about, what was actually going on at home with Jessica. She testified that teachers

occasionally asked about her injuries and that she told them that she “fought with

[her] sister.” (Id. at 860). M.A.D. testified that “I told what I was told to tell them.”

(Id.). She stated that she did not actually tell teachers what was going on because

she was scared that no one would believe her. (Id.). Moreover, she testified that

caseworkers from the Union County Department of Job and Family Services

(“JFS”) investigated reports of abuse at the Dayton residence and that she would lie

to the caseworkers about how she actually sustained the injuries. (Id. at 885).

M.A.D. testified that Dayton would be upset when JFS would visit “because he

thought it was because of [M.R.D.] and [M.A.D.] fighting. * * * He just told us that

we need to stop.” (Id. at 886). When asked whether Dayton ever saw them fighting,

M.A.D. responded that he did and that “[h]e’d tell us to knock it off, and then he’d

ground us or something like that.” (Id.). She testified that when Dayton told them

to stop fighting, they would. (Id.). M.A.D. could not remember whether they would

fight to the point of being bloodied or seriously injured when Dayton was present.

(Id.). Finally, she testified that Dayton was not home when Jessica hit her or M.R.D.

-19- Case No. 14-17-03

but that he was “upstairs sleeping” when the “big hole” was made in the wall. (Id.

at 898-899).

{¶31} On cross-examination, M.A.D. testified that Dayton was usually at

work or refereeing soccer games when Jessica told her to fight with M.R.D. (Id. at

901). Further, M.A.D. stated that she was instructed to lie to Dayton and tell him

that her injuries were sustained simply through fighting with M.R.D. without

disclosing Jessica’s involvement. (Id. at 902). She testified that when Dayton found

out about the fighting, “[h]e got pretty upset and * * * said if this is going to keep

happening * * * we’d get in trouble, and [Dayton and Jessica] could get in trouble

[and] [g]o to jail.” (Id. at 908). M.A.D. stated that when her bruises and injuries

were bad enough, Jessica would conceal them with makeup before they went to

school but that she would not use makeup to conceal the injuries from Dayton

because the injuries were “usually blamed on [M.R.D.]” (Id. at 908). M.A.D.

testified that she did not believe that Dayton knew the truth about what was

happening. (Id. at 902).

{¶32} On re-direct examination, M.A.D. testified that Dayton was worried

about M.A.D. and M.R.D. fighting because it could lend to the appearance of abuse.

(Id. at 917). She also said that Dayton was aware of the large hole covered up by

the poster. (Id.).

-20- Case No. 14-17-03

{¶33} In addition to M.R.D.’s and M.A.D.’s testimony, the State offered the

testimony of M.D., then nine-years old, and I.D., then seven-years old, M.R.D. and

M.A.D.’s half-siblings. (See Dec. 12-16, 2016 Tr., Vol. IV, at 680, 718).

{¶34} I.D. testified that he witnessed M.R.D. and M.A.D. fighting but that

he also observed Jessica “hurt” M.R.D. and M.A.D. (Id. at 685). He testified that

M.R.D. and M.A.D. suffered bloody noses but he stated that he never saw bruises

on his sisters’ faces. (Id. at 686). I.D. stated that Jessica was “[s]ometimes” there

when M.R.D. and M.A.D. fought but that Dayton was not present. (Id.). He also

testified that he remembered seeing holes in the walls caused by M.R.D. and

M.A.D.’s fights and that one was covered over by a poster. (Id. at 687-688). I.D.

testified that Dayton never witnessed M.R.D. and M.A.D. fight. (Id. at 690).

{¶35} On cross-examination, I.D. testified that, before being placed in foster

care, Dayton was frequently absent from the home working at a Honda factory and

refereeing soccer games. (Id. at 696).

{¶36} Next, M.D. testified that she sometimes saw M.R.D. and M.A.D. fight.

(Id. at 721). M.D. also stated that she remembered seeing Jessica hit M.R.D. and

M.A.D. and that the “big hole” in the wall happened when “[Jessica] shoved

[M.A.D.’s] head into the wall.” (Id. at 727, 731). She testified that M.R.D. and

M.A.D. walked around “[m]ost of the time” with their “toes curled under” because

when “they would just walk normal,” Jessica would “yell at them.” (Id. at 728).

-21- Case No. 14-17-03

{¶37} In addition, M.D. testified as to the types of injuries M.R.D. and

M.A.D. sustained while living in the Dayton household. She testified that, on one

occasion, M.A.D. “fell, and * * * got a bump on her head, and my other sister * * *

kept pushing on it, and then the next morning [M.A.D.] had a black eye.” (Id. at

722). According to M.D., M.A.D.’s eye was “completely shut, and it was blue and

purple” and remained that way for a “couple of days.” (Id.). M.D. also testified

that M.R.D. and M.A.D. would “sometimes * * * get bloody noses and bloody lips.”

(Id. at 723).

{¶38} When asked whether Dayton was present when M.R.D. and M.A.D.

fought each other, M.D. testified that her “dad wasn’t home” and that M.R.D. and

M.A.D. never fought when Dayton was home. (Id. at 721). She testified that she

once tried to take a picture of M.R.D. and M.A.D. fighting so she could show

Dayton but her device “went dead” and she “kept forgetting” to tell Dayton about

the fighting. (Id. at 732).

{¶39} On cross-examination, M.D. was questioned about Dayton’s work

schedule and about how frequently Dayton was in the family home. M.D. testified

that Dayton would “go to work really early in the morning” at Honda and that he

would “come home after school.” (Id. at 734). M.D. testified that Dayton had a

second job refereeing soccer games. (Id.). She also confirmed that Dayton was not

present when M.R.D. and M.A.D. were fighting and that he was at work. (Id.).

-22- Case No. 14-17-03

M.D. stated that she never saw Dayton hit M.R.D. or M.A.D. but that he would

sometimes yell at them for things such as stealing Jessica’s jewelry and wearing it

to school. (Id. at 735). M.D. stressed that she had not been instructed by Jessica or

anyone else to lie about witnessing the fights between M.R.D. and M.A.D. (Id. at

734-735).

{¶40} The State also offered the testimony of P.W., Dayton’s then 12-year-

old stepdaughter. (Dec. 12-16, 2016 Tr., Vol. VI, at 1078). P.W.’s testimony

offered further support for M.R.D.’s, M.A.D.’s, I.D.’s, and M.D.’s accounts of the

abuse perpetrated by Jessica. She testified that when she was still living at the

residence with Dayton, Jessica, and her siblings, Jessica “was making [M.A.D. and

M.R.D.] fight each other, and she would abuse them in many other ways.” (Id. at

1082). After a video of one of M.R.D. and M.A.D.’s fights was played for the jury,

P.W. remarked that the fight depicted in the video was “one of the nicer fights that

they would have” and that the fights were usually “bloody.” (Id. at 1090).

{¶41} P.W. testified that Jessica once forced M.R.D. and M.A.D. to eat

SPAM, which Jessica videotaped. (Id. at 1083-1084). P.W. also confirmed that

M.R.D. and M.A.D. had to “curl [their] toes” when they walked around the family’s

house “every day, every second they were walking” and that if they failed to walk

like this, “[t]hey would either get their feet hit with a hammer or [Jessica] would

stomp on their feet.” (Id. at 1087). Moreover, P.W. testified that “[t]here were a lot

-23- Case No. 14-17-03

of times” that Jessica would hit them with belts and that, on one occasion, Jessica

struck M.R.D. with a belt buckle causing “a huge gash in her forehead.” (Id. at

1095, 1097).

{¶42} As concerning M.R.D.’s and M.A.D.’s injuries, P.W. testified that

“[t]here was never a time that” M.R.D. and M.A.D. did not have injuries or bruises.

(Id. at 1092). She testified that the abuse of M.R.D. and M.A.D. continued for

“[m]ore than at least three years” and that the girls had injuries every day during

that period. (Id. at 1111). P.W. testified that once, when P.W. returned home after

spending time at her biological father’s house, “[M.A.D.] looked like she was a

completely different person because her head was beaten so bad. * * * [S]he had *

* * a greenish brownish bruise that was a bump that had started just as a goose egg,

and her face was really widened at the sides. Really swollen.” (Id. at 1085, 1094).

P.W. testified that Jessica attempted to conceal M.A.D.’s extensive bruising and

swelling by giving her sunglasses to wear and putting her “hair * * * into her face

so much that you couldn’t tell at all.” (Id. at 1085). P.W. also described Jessica’s

attempts to conceal the girls’ injuries with makeup. (Id. at 1093).

{¶43} Portions of P.W.’s testimony focused on the extent to which Dayton

was aware of what was happening with M.R.D., M.A.D., and Jessica. When asked

whether Dayton saw the injuries on M.R.D. and M.A.D., P.W. responded that he

did but she stressed that she did not think that Dayton often witnessed M.R.D. and

-24- Case No. 14-17-03

M.A.D. fighting when he was home because he was “upstairs.” (Id. at 1091-1092).

However, she testified that Dayton once “saw [Jessica] bash [M.A.D.’s] head into

the wall.” (Id. at 1092). P.W. testified that after he saw this, Dayton yelled at Jessica

and “told her not to do that.” (Id.). In addition, she testified that M.R.D. and M.A.D.

were once forced to “hit each other in the private parts with [a] water bottle” while

riding in the backseat of the family vehicle. (Id. at 1096). She testified that,

afterward, they were “very swollen” and that “they were forced to show [Dayton].”

(Id. at 1096-1097).

{¶44} P.W. also testified about alleged sexual abuse perpetrated by Dayton

against her. She described three “uncomfortable” incidents with Dayton. (Id. at

1100-1102). In particular, P.W. testified that once “[w]hen [Jessica] went to get

Honeybell Oranges early in the morning, [Dayton] got into [P.W.’s] bed and

unzipped [her] footy pajamas and licked [her] chest.” (Id. at 1102). P.W. testified

that, during this incident, she “kept pretending to fake sleep because [she] didn’t

know what to do.” (Id.). While P.W. was uncertain as to her exact age when this

incident occurred, she estimated that she was less than ten years old at the time. (Id.

at 1109). She testified that she did not tell anyone about the incident until she visited

her grandmother, at which point she told her grandmother what had happened. (Id.

at 1102). P.W. testified that, after this incident, Jessica took her to Nationwide

Children’s Hospital (“Nationwide”) for a forensic interview. (Id. at 1103). She

-25- Case No. 14-17-03

testified that she did not disclose the incident in the interview at Nationwide because

“[Jessica] talked to [her] with [Dayton] in the room” and told her that disclosing

Dayton’s conduct would “ruin the family’s reputation, and it would make all [her]

other siblings unhappy.” (Id. at 1103-1104).

{¶45} On cross-examination, P.W. testified that she eventually told her

teachers about what was happening at home because the fighting between M.R.D.

and M.A.D. and Jessica’s abuse “started to not just be punching or hitting. It was

also kicking, stomping, hammers, belts, just everything she could think of.” (Id. at

1114-1115). Further, P.W. reaffirmed her testimony that Dayton licked her chest

and again acknowledged that she did not disclose the alleged abuse during the

interview at Nationwide. (Id. at 1120, 1123).

{¶46} On re-direct examination, P.W. further elaborated on the

circumstances surrounding Dayton’s alleged sexual abuse. She testified that no one

else was in the room when Dayton licked her chest because Jessica was out buying

oranges with M.R.D. and M.A.D. and M.D. and I.D. were in I.D.’s room. (Id. at

1127-1128). Finally, she identified the part of her body Dayton licked as her “B-O-

O-B.” (Id. at 1128-1129).

{¶47} Jessica was called as the court’s witness. (Dec. 12-16, 2016 Tr., Vol.

II, at 272, 275). On examination by the State, Jessica testified that she was convicted

of four counts of endangering children based on her abuse of M.R.D. and M.A.D.

-26- Case No. 14-17-03

(Id. at 276, 279, 286). Jessica testified that M.R.D. and M.A.D. had bruises “[a]

few times a week maybe” and that the bruises were “sometimes” visible. (Id. at

287). She testified that she sometimes caused the bruises to the girls’ bodies but

that at other times, they received their injuries from fighting each other. (Id. at 289-

290). Jessica resisted the characterization of her involvement in M.R.D. and

M.A.D.’s fights as “forcing” them to fight but she conceded that she “encouraged”

them to do so. (Id. at 290-291). Jessica testified that M.R.D. and M.A.D. were

injured multiple times per week and sometimes multiple times per day while in her

care. (Id. at 292). When asked whether she thought M.R.D. and M.A.D. were safe

in her care, Jessica responded that “[f]or the most part,” they were not. (Id. at 345).

{¶48} Jessica admitted to making the girls “float.” (Id. at 301). Further,

Jessica testified that M.A.D. once had a bump on her head which M.R.D. pushed on

but denied that she instructed M.R.D. to push on the bump. (Id. at 305). She stated

that, the next day, both of M.A.D.’s eyes were blackened and that M.A.D. was kept

home from school for two or three days. (Id. at 306). When asked whether Dayton

saw M.A.D.’s black eyes, Jessica responded: “I suppose he did. I don’t know how

he wouldn’t have. We all lived together.” (Id. at 306). Jessica acknowledged that

the holes in the walls of their residence were caused by the bodies or heads of the

girls. (Id. at 322). She admitted to applying makeup to conceal the girls’ bruises

and that she did so before the girls went to school. (Id.). When asked whether

-27- Case No. 14-17-03

M.R.D. would “go to school with black eyes that were caused by [Jessica],” she

responded: “On one or two occasions, yes.” (Id. at 323). She also testified that

M.R.D. went to school with black eyes that were caused by M.A.D. after Jessica

instructed her to hit M.R.D. (Id.). Jessica admitted to using glue to “fix” an injury

on M.R.D.’s head. (Id.). She testified that neither she nor Dayton sought medical

treatment for the girls’ injuries. (Id. at 314). She testified that she asked M.R.D.

and M.A.D. to keep the fact that she was instructing them to fight a secret. (Id. at

343).

{¶49} While Jessica’s testimony was consistent with many elements of the

children’s testimony, it differed in key respects. She denied striking M.R.D. in the

head with a belt buckle. (Id. at 292). She also denied that M.R.D. and M.A.D. were

force-fed SPAM, that she ever threw M.R.D. or M.A.D. into walls or furniture, or

that she ever sat or stood on M.A.D. until M.A.D. lost consciousness. (Id. at 287,

304-305, 315). Although Jessica contended that making the girls “walk around with

their toes curled under” began as a joke, she admitted that “had happened a few

times.” (Id. at 296). However, she denied that they had to walk like that at all times.

(Id. at 297). Further, she denied that they would be punished if they did not walk

this way and that she would make them stomp on each other’s feet. (Id. at 296).

{¶50} She testified that M.R.D. and M.A.D. were sent to Nevada to visit

family during a 2010 investigation by JFS and that the decision to do so was made

-28- Case No. 14-17-03

jointly between herself and Dayton. (Id. at 316-317, 319). She could not recall

M.A.D. or M.R.D. being interviewed by law enforcement during that investigation.

(Id. at 320).

{¶51} Jessica testified that she recorded instances of M.R.D. and M.A.D.

fighting and that in these recordings, she never attempted to stop them from fighting.

(See id. at 296-297, 303-304). When asked who saw the videos, Jessica stated that

“[Dayton] had seen maybe a few seconds of two of them, two or three of them” on

one occasion. (Id. at 304). She testified that she sometimes spoke to M.R.D. and

M.A.D. in a harsh, strident tone and that she was using an angry, abusive tone of

voice with M.R.D. and M.A.D. in the videos she showed to Dayton. (Dec. 12-16,

2016 Tr., Vol. III, at 381, 383). When asked why she showed Dayton videos of the

girls fighting, Jessica said she did so “that [Dayton] would see that there was so

much chaos in the house when he was gone.” (Dec. 12-16, 2016 Tr., Vol. II, at 331-

332). As to Dayton’s knowledge of the abuse perpetrated by Jessica and M.R.D.

and M.A.D.’s fighting, Jessica testified that M.R.D. and M.A.D. “[v]ery rarely”

fought when Dayton was at home and that Dayton would stop the fights when he

was present. (Id. at 329). Jessica described that although he was often absent,

Dayton still interacted with the children “two or three nights a week.” (Id. at 341).

{¶52} Finally, Jessica testified as to her knowledge concerning the sexual

abuse allegations made against Dayton. Jessica testified that she reported the

-29- Case No. 14-17-03

alleged sexual abuse of P.W. and that she took P.W. to Nationwide. (Id. at 335).

However, she testified that she does not believe P.W.’s allegations and that although

she initially supported P.W. in disclosing the alleged abuse, she subsequently did

not. (Id. at 348).

{¶53} On examination by Dayton’s trial counsel, Jessica reiterated her

beliefs about P.W.’s allegations of sexual abuse. She testified that although she

believed P.W.’s accusations at first, she had since come to doubt P.W.’s story

because P.W. “began to change her story quite a bit.” (Dec. 12-16, 2016 Tr., Vol.

III, at 394-395). She also testified that it was her understanding that P.W. retracted

her allegation. (Id. at 397).

{¶54} Jessica testified that she did “[e]verything [she] could” to conceal the

girls’ fighting and injuries from Dayton, including applying makeup and using

different hairstyles and clothes. (Id. at 403). She stated that she would conceal the

injuries “[p]robably a few times a week.” (Id. at 404). She insisted that Dayton did

not know about the extent of the abuse or that she was instructing M.A.D. and

M.R.D. to fight. (Id. at 407). When asked where Dayton was during the times that

she instructed M.R.D. and M.A.D. to fight, Jessica responded that he was “[g]one

at work mostly.” (Id. at 410). She testified that they never fought at her instruction

while Dayton was home. (Id.).

-30- Case No. 14-17-03

{¶55} On re-examination by the State, Jessica testified that the fights

between M.A.D. and M.R.D. depicted in the video recordings were “probably close

to some of the worst things” that they did to each other. (Id. at 421). She also

testified that she did not make any videos depicting herself actually striking or

otherwise injuring the girls. (Id.). She confirmed that M.R.D. and M.A.D. would

fight each other when Dayton was home but not at her instruction. (Id. at 422). She

testified that she never told Dayton, or anyone else for that matter, that she was

abusing M.R.D. and M.A.D. (Id. at 423-424).

{¶56} The State offered the testimony of Jonathan Robbins (“Robbins”), a

computer forensics specialist with the Cybercrimes Unit of the Ohio Bureau of

Criminal Investigation (“BCI”). (Dec. 12-16, 2016 Tr., Vol. III, at 439). He

testified that he extracted data from the SD card of Jessica’s phone, from the phone

itself, and from a digital camera. (Id. at 445-446). He identified State’s Exhibit 22

as a disc containing video files he extracted from the SD card used in Jessica’s phone

and from the digital camera. (Id. at 449, 457-461). Some of these video files depict

M.R.D. and M.A.D. fighting each other while others depict M.R.D. and M.A.D.

eating SPAM while Jessica yells at them. These videos were played for the jury at

different times throughout the course of the trial.

{¶57} The State also offered the testimony of Myra Lauharn (“Lauharn”),

Dayton’s grandmother. (Dec. 12-16, 2016 Tr., Vol. III, at 427-428). Lauharn

-31- Case No. 14-17-03

testified that she “knew something was going on” because she saw “[b]lack eyes on

the girls,” especially M.A.D. (Id. at 429). Lauharn testified that she observed the

injuries on the few occasions when the girls would visit. (Id.). She estimated that

she saw the girls with black eyes “three or four” times when she was visiting with

the family and that Dayton was present during these visits unless he had to work.

(Id. at 435-436). She testified that when she asked M.A.D. about the injury, M.A.D.

“just smiled” and said “[M.R.D.] and [she] were fighting.” (Id. at 431). Lauharn

remembered seeing that the bruises and black eyes were concealed with makeup.

(Id.). She also testified that Jessica showed her video footage of the girls fighting.

(Id. at 429-430). She testified that she suspected that Jessica was abusing the

children but never told Dayton about her suspicions because Jessica was always

“right there” with Dayton. (Id. at 433).

{¶58} Next, Barbara Hoffman (“Hoffman”), a former neighbor of the Dayton

family, testified that, when the Daytons were her neighbors, she observed injuries

on the children. (Dec. 12-16, 2016 Tr., Vol. III, at 547-548). She described the

“oldest child” as having “bruises and black eyes and swelling about the face” as if

“she’d been in a boxing match and lost.” (Id. at 548). When asked whether the

“child was able to go to school with the injury that she had,” Hoffman replied that

“[s]he was kept home.” (Id. at 549). She testified that Jessica kept a close eye on

M.R.D. and always kept her close by. (Id.). When asked whether she remembered

-32- Case No. 14-17-03

other injuries on the girls, she responded that she did not. (Id. at 549). Hoffman

testified that she was concerned about the facial injuries she observed. (Id. at 549-

550).

{¶59} The State then offered the testimonies of a series of teachers,

counselors, and principals who knew and interacted with M.R.D. and M.A.D.

Angela Quitar (“Quitar”), one of M.R.D.’s former teachers, testified that she

observed a bruise on one side of M.R.D.’s face and a cut on the other side. (Id. at

553, 556). Quitar testified that M.R.D. maintained that the injuries were caused by

“rough housing * * * with her sisters.” (Id. at 556). However, she stated that she

ultimately contacted JFS in part because M.R.D. could not give a consistent answer

as to how she suffered the injuries. (Id. at 554). Quitar testified that she met with

Dayton and Jessica to discuss M.R.D.’s injuries and that Dayton and Jessica

requested that they be informed of any concerns about injuries or abuse by phone or

email. (Id. at 554-555).

{¶60} Next, Chris Hoehn (“Hoehn”), a former guidance counselor who

worked with M.A.D., testified that one of M.A.D.’s teachers asked that he talk to

her because they were “concerned about some bruising on her face. Her eyes were

bloodshot, and [there was] a bump on her forehead.” (Id. at 563-564). Hoehn

testified that he did not communicate with Dayton concerning M.A.D.’s injuries.

(Id. at 564).

-33- Case No. 14-17-03

{¶61} Megan McDaniel (“McDaniel”), one of M.R.D.’s fifth-grade teachers,

testified that she interacted with M.R.D. on a daily basis throughout the 2013-2014

school year and that, on different occasions, she observed multiple injuries on

M.R.D., including black and blue marks above her eye, bruises on her wrists, and

bruises on her face. (Id. at 569-570). She testified that the injury to M.R.D.’s wrist

“looked like hand imprints.” (Id.). McDaniel testified that M.R.D. gave various

reasons for the injuries; however, she called JFS because M.R.D.’s “stories weren’t

all adding up and * * * the bruises kept on coming.” (Id. at 571-572). She testified

that she did not speak with Dayton about M.R.D.’s injuries. (Id. at 572-573).

{¶62} Bethany Bentz (“Bentz”) and Marguerite Hall (“Hall”), who were also

M.R.D.’s fifth-grade teachers, offered similar testimony. Bentz testified that she

frequently interacted with M.R.D. and that she observed injuries on M.R.D,

including a bruise that looked like a hand print on M.R.D.’s arm and a cut on

M.R.D.’s lip. (Id. at 576-577). She further testified that she reported M.R.D.’s

injuries to JFS because M.R.D. did not tell her a consistent story as to how the

injuries occurred and she had a “demeanor of fear” when discussing the injuries.

(Id. at 577-578).

{¶63} Likewise, Hall testified that although she was initially satisfied with

the explanation she received from M.R.D. concerning how she sustained an injury,

Hall grew concerned when she received an email from Dayton saying that she was

-34- Case No. 14-17-03

not to speak to M.R.D. directly without a parent present. (Id. at 582-583). Hall

testified that the email “raised a flag,” and she identified State’s Exhibit 26 as the

email from Dayton. (Id. at 583, 585) (See State’s Ex. 26).

{¶64} Angela Dillahunt (“Dillahunt”), a school counselor who interacted

“very frequently” with M.R.D., testified that she observed injuries on M.R.D.,

including “scratches all [over] her face and her arms, and a bruise * * * on her

cheek.” (Dec. 12-16, 2016 Tr., Vol. IV, at 604-606). She also testified that M.R.D.

offered inconsistent or contradictory explanations as to how she sustained the

injuries. (Id. at 607). Dillahunt testified that she eventually reported M.R.D.’s

injuries to JFS. (Id. at 606).

{¶65} On cross-examination, Dillahunt testified that she did not speak with

Dayton or Jessica despite repeated attempts to call them. (Id. at 609). She testified

that she received “a couple of E-mails back from Jessica” regarding her concerns

about M.R.D.’s injuries. (Id.).

{¶66} Timothy Kannally (“Kannally”), the principal of a school formerly

attended by both M.R.D. and M.A.D., testified that he was familiar with both

M.A.D. and M.R.D. (Id. at 611-612). Kannally testified that M.R.D. exhibited

injuries and told inconsistent stories about how she received the injuries. (Id. at

613-614). He identified State’s Exhibits 27, 31, and 32 as photographs taken of

M.R.D. by school officials which were submitted to JFS depicting bruises,

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abrasions, and other marks on M.R.D. (Id. at 614-615, 625-626). (See State’s Exs.

27, 31, 32). Kannally identified State’s Exhibit 28 as an email that he was forwarded

concerning M.R.D. and M.A.D. (Dec. 12-16, 2016 Tr., Vol. IV, at 618). In the

email, Dayton expresses his displeasure that M.R.D. and M.A.D. were taken out of

their classrooms by a “Mrs. Hobbs” and asked whether they had beds, whether they

were fed, whether they were left outside for long periods of time, and whether they

were spanked. (State’s Ex. 28). The email also indicates that Mrs. Hobbs “called

[JFS] on [Jessica]” and that he and Jessica would not live their lives “walking on

eggshells because [Mrs.] Hobbs wants to try to nail us for something.” (Id.).

Kannally identified State’s Exhibit 30 as an email from Dayton wherein Dayton

expressed dissatisfaction that school officials questioned M.R.D. about certain

injuries and reported the injuries to JFS without contacting either Dayton or Jessica

first to verify the cause of the injuries. (Dec. 12-16, 2016 Tr., Vol. IV, at 623-624).

(See State’s Ex. 30). He testified that the email concerned him because Dayton had

“established a pattern of * * * communicating with [school officials] his

dissatisfaction when we contacted [JFS] and several times his correspondence

indicated to me that he was just angry with us that we called [JFS].” (Dec. 12-16,

2016 Tr., Vol. IV, at 624). He identified State’s Exhibit 33 as a note written by

P.W. and given to her teacher identifying incidents of abuse perpetrated by Jessica

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and State’s Exhibits 34 and 35 as attendance records for M.R.D. and M.A.D,

respectively. (Id. at 626-629). (See State’s Ex. 33, 34, 35).

{¶67} On cross-examination, Kannally testified that the note that P.W. gave

her teacher did not mention Dayton and did not indicate that Dayton was responsible

for forcing M.R.D. and M.A.D. to hit each other. (Dec. 12-16, 2016 Tr., Vol. IV,

at 631).

{¶68} Another of the State’s witnesses, Dr. Monica Gilbert (“Dr. Gilbert”),

a pediatrician, testified that she was familiar with M.A.D. and M.R.D. because they

were “patients of [her] office for about five years” but that she “hadn’t seen them

frequently for the last couple years they were at [her] practice.” (Dec. 12-16, 2016

Tr., Vol. III, at 517-518). Dr. Gilbert testified that she received a report that M.A.D.

was engaging in self-harming behaviors, including “scratching herself until she

bled[,] * * * banging her face into * * * bed posts[,] [and] * * * consum[ing] at least

two bottles of ibuprofen.” (Id. at 520). She testified that M.A.D. was not brought

to the office to be treated for those injuries and that Dayton never asked for any

referrals for the girls to be treated for other injuries they may have suffered. (Id. at

519-520). She testified that Dayton was responsible for bringing the girls to their

appointments about ten percent of the time. (Id. at 521).

{¶69} On cross-examination, Dr. Gilbert testified that she did not notice

injuries on M.R.D. and M.A.D. on “the days that [she] saw them” and that she is

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required to report suspected child abuse. (Id. at 524). She also testified that the

girls appeared well-fed and well-dressed during their appointments. (Id. at 523).

{¶70} On re-direct examination, Dr. Gilbert testified that, based on Jessica’s

reports of M.A.D.’s potential self-harm, she submitted a report to JFS. (Id. at 524-

526).

{¶71} The State offered the testimony of former JFS investigators and

supervisors. Danielle Swendal (“Swendal”), a former intake investigator and

ongoing supervisor with JFS, testified that beginning in April 2010, JFS received

approximately 18 intake reports concerning the Dayton family, some of which were

received after the children were removed from Dayton and Jessica’s care in 2015.

(Dec. 12-16, 2016 Tr., Vol. III, at 484, 489). Swendal stated that many of these

reports concerned suspected physical abuse. (Id. at 493-494).

{¶72} Likewise, Kathleen Albanese (“Albanese”), a former intake

supervisor for JFS, testified that over the course of her employment with JFS, she

knew of 21 reports concerning the Dayton family. (Id. at 527-528). Albanese

testified that of those 21 reports, 11 were investigated further. (Id. at 529). She

testified that some of those investigations concerned “chronic bruising on the

children” and that sometimes “the allegation was that the children did it to each

other.” (Id. at 535). She testified that during the early stages of the investigations,

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“[Dayton] was not alleged to have been the person who did the abuse directly.” (Id.

at 534).

{¶73} Albanese stated that she conducted an interview with Dayton after the

children were removed from the home in 2015. (Id.). She testified that Dayton

“was adamant that he had no knowledge of any abuse by Jessica toward the

children” and that “he said he adamantly does not tolerate any abuse and would not

tolerate any child abuse in his home.” (Id. at 534-535). She also testified that

Dayton denied seeing injuries on the children. (Id. at 535). However, she testified

that, in connection with the removal and investigation in 2015, a caseworker learned

from one of the children that “[Dayton] had observed Jessica hitting [M.A.D.] on

one occasion, and that there was some threat of divorce over hitting the children.”

(Id. at 537). She found Dayton’s claims that he did not see the bruising hard to

believe because “[the] caseworkers saw bruises. There was [sic] even the school

pictures, in the school picture book with bruises on one of the girls. Caseworkers

saw bruises many times.” (Id. at 540).

{¶74} The State also offered the testimony of a series of witnesses with

experience and expertise in the area of child sexual and physical abuse. Dr. Farah

Brink (“Dr. Brink”) is a child-abuse pediatrician employed at Nationwide who saw

P.W. during her visit to Nationwide in 2013. (Dec. 12-16, 2016 Tr., Vol. VI, at

1014-1015, 1024). Dr. Brink testified that P.W. was brought to Nationwide over

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concerns of sexual abuse and that she underwent a forensic interview. (Id. at 1025).

Dr. Brink participated in physical examinations of P.W. which were “normal,”

meaning there was no evidence of “acute or old injury.” (Id. at 1026-1027).

However, she testified that a “normal” examination does not foreclose the

possibility that a child was sexually abused. (Id. at 1027). She testified that the

staff at Nationwide did not make any recommendations for a further course of

treatment for P.W. (Id. at 1029). Dr. Brink testified that children who come to

Nationwide on referrals of potential sexual abuse sometimes change their statements

once they arrive—that is, they will disclose sexual abuse before arriving at the

hospital but they may change their story or fail to further disclose abuse once they

arrive there. (Id. at 1032-1033). However, Dr. Brink emphasized that failure to

disclose at Nationwide “may not mean necessarily that their prior disclosure didn’t

occur.” (Id. at 1033).

{¶75} On cross-examination, Dr. Brink read from a portion of a report

produced at Nationwide which stated that “[P.W.] denied that something has

happened to her body or that she has had to touch somebody else’s body.” (Id. at

1035). She also reiterated that her physical exam of P.W. did not reveal evidence

of sexual abuse but that the absence of physical signs in an examination is not

conclusive evidence that sexual abuse did not occur. (Id. at 1036).

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{¶76} Jennifer Sherfield (“Sherfield”), a social worker employed as a

licensed forensic interviewer and mental health advocate at Nationwide, testified

that she conducted a forensic interview with P.W. when she was brought into

Nationwide in April 2013. (Id. at 1038-1039, 1042). Sherfield testified that it was

her understanding that P.W. disclosed sexual abuse prior to attending the forensic

interview. (Id. at 1043). She testified that although P.W. did not disclose any sexual

abuse during the course of the forensic interview which confirmed her earlier

disclosure, she said things during the course of the interview that were concerning

such as the “fact that she thought something had happened with [Dayton]. That she

was scared she wasn’t going to see [Jessica] again.” (Id. at 1043-1044). She

testified that “it wouldn’t necessarily be uncommon for a kid to have disclosed prior

to coming to [Nationwide] and then not disclose at [Nationwide].” (Id. at 1047).

{¶77} On cross-examination, Sherfield testified that no additional action was

taken following the interview with P.W. (Id. at 1050-1051).

{¶78} On re-direct examination, Sherfield testified that Jessica accompanied

P.W. to Nationwide for the interview. (Id. at 1051).

{¶79} The State next offered the testimony of Kerri Wilkinson

(“Wilkinson”), a licensed social worker employed at Nationwide, who conducted a

forensic interview with P.W. when she was brought to Nationwide by Jessica in

2010 following a different allegation of sexual abuse. (Id. at 1053-1056).

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Wilkinson identified State’s Exhibit 40 as a recording of her 2010 interview with

P.W., which was subsequently played for the jury. (Id. at 1067-1068). She

confirmed that P.W. did not disclose any instances of sexual abuse or of “anything

happening to her body” during the course of the interview. (Id. at 1070).

{¶80} On cross-examination, Wilkinson confirmed that P.W. made no

disclosure of abuse during the 2010 interview. (Id. at 1073).

{¶81} On re-direct examination, Wilkinson testified that any failure to

disclose during a forensic interview “just means during [the] interview with the

child, the child didn’t give any history of being abused.” (Id. at 1074). She testified

that a child could disclose before or after an interview even if they failed to disclose

during the interview. (Id.).

{¶82} Cindy Kuhr (“Kuhr”), a Victim Specialist Consultant who worked for

BCI, testified that victims of child-sexual abuse may, for a variety of reasons, delay

disclosing the abuse. (Id. at 1165). She testified that victims of child-sexual abuse

can recant their statements after having previously disclosed abuse despite the fact

that they were actually abused. (See id. at 1166-1168).

{¶83} On re-direct examination, Kuhr testified that “recantation can occur

primarily when they feel they’re not being supported.” (Id. at 1182).

{¶84} On re-cross-examination, Kuhr testified that it is possible that a “friend

or relative” could tell a child what to say concerning sexual abuse. (Id. at 1188).

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However, she testified that forensic interviews with suspected victims of child-

sexual abuse are designed to determine if “the information they’re giving is factual.”

(Id.). She testified that if a child does not disclose during a forensic interview, it “is

not safe to say” that no abuse occurred. (Id. at 1189).

{¶85} Thereafter, the State moved to admit its exhibits and rested. (Dec. 12-

16, 2016 Tr., Vol. VII, at 1266-1302). State’s Exhibits 1 through 12, 16 through 19,

26, 27, and 30 through 37 were admitted without objection. (See id. at 1266-1267,

1276-1277, 1279, 1284-1286). State’s Exhibits 14, 22, 24-25, 28, and 40 were

admitted over the defense’s objection. (See id. at 1270, 1279-1285, 1289-1291).

State’s Exhibits 13, 15, 20, 23, 29, 38, 39, 42, and 43 were excluded. (See id. at

1268, 1270-1271, 1276, 1278, 1282-1283, 1285, 1287-1288, 1293-1294). State’s

Exhibits 41 and 45 were proffered. (See id. at 1291, 1301-1302). The State did not

move to admit State’s Exhibits 21 or 44. (See id. at 1279, 1294). Next, Dayton

made a Crim.R. 29 motion, which the trial court granted as to Count One and denied

as to Counts Two through Eleven. (Id. at 1302, 1307-1308, 1315).

{¶86} As his first witness, Dayton offered the testimony of his mother,

Jacqueline Drukemiller (“Drukemiller”). (Id. at 1321-1322). When asked whether

she noticed anything “amiss” at Dayton’s residence when the family moved to

Union County, Drukemiller testified “[n]ot at first, no.” (Id. at 1354). However,

she testified that she eventually began to notice changes in M.R.D.’s and M.A.D.’s

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behavior around 2014. (Id. at 1355). She testified that whereas they once used to

give family members hugs, “they weren’t doing that anymore” and that they “kept

looking at Jessica.” (Id.). She also noticed that the children began sitting close to

Jessica where they had not previously done so. (Id.). When she asked the girls

whether anything was wrong, they told her that they were doing “fine.” (Id. at

1356). She testified that although she never previously observed any aggressive

behavior between M.R.D. and M.A.D., she began receiving phone calls from

Dayton that the girls had started fighting, that he was upset, and that he did not know

what to do. (Id. at 1356-1357). Drukemiller testified that when she visited Dayton’s

residence to speak to M.R.D. and M.A.D. about their fights, she observed M.R.D.

with a black eye; when she asked M.R.D. how she got the black eye, she said that

she was injured while fighting with M.A.D. (Id. at 1358).

{¶87} Drukemiller testified that Jessica showed her one of the videotaped

episodes of M.R.D. and M.A.D. fighting. (Id. at 1371). She stated that “in [her]

opinion it looked like it was being orchestrated.” (Id. at 1372). She testified that

she asked Jessica why she videotaped M.R.D. and M.A.D. fighting and why she did

not try to break up the fight. (Id.). She testified that, after hearing Jessica’s

explanation for recording the fight without attempting to break it up, she “was pretty

angry at [Jessica].” (Id.). Drukemiller testified that Jessica would not accept any

suggestions as to how to stop the girls from fighting and that Jessica’s stance on

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accepting advice was odd given how upset she said she was that the girls were

constantly fighting. (Id. at 1373). She testified that “[Dayton] wasn’t anywhere

around” when Jessica showed her the video. (Id. at 1372).

{¶88} Further, Drukemiller testified that M.R.D. and M.A.D. did not tell her

that they were being beaten or forced to fight one another. (Id. at 1375). When

asked whether she thought Dayton knew what was happening in his house and

whether he participated in the abuse, she responded “[a]bsolutely not.” (Id. at 1387-

1388).

{¶89} On cross-examination, Drukemiller testified that M.R.D. and M.A.D.

were sent to visit their biological mother in Nevada in 2010 and that she later learned

that Dayton was under investigation for the sexual abuse of P.W. during the same

approximate time period. (Dec. 12-16, 2016 Tr., Vol. VIII, at 1403). As to the

fights videotaped by Jessica, she testified that she “admonished” Jessica for not

breaking up the fights and told her that “[t]his needs to stop. You need to start

breaking these fights up.” (Id. at 1426). She also testified that, because she is

employed in a school, she is a “mandated reporter”—a person who must report

suspected child abuse to authorities. (Id. at 1425-1426). However, Drukemiller

testified that she did not report M.R.D.’s or M.A.D.’s injuries, even after she saw

the video recording of M.A.D. and M.R.D. fighting, because she was satisfied with

the answers she received as to how M.R.D. and M.A.D. sustained the injuries. (Id.

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at 1426). She testified that she did not initially believe M.R.D.’s and M.A.D.’s

allegations because she “didn’t hear [the allegations] from [her] grandchildren,” and

she suggested that she still did not believe P.W.’s allegations of sexual abuse

because Drukemiller thinks that P.W.’s “grandmother put her up to it.” (Id. at 1429-

1430).

{¶90} Finally, Dayton testified in his defense. (Id. at 1458). Dayton testified

about his work schedule and other responsibilities which took him away from home

and from M.R.D. and M.A.D. (See id. at 1486-1489, 1497-1499). Dayton testified

that, sometime in 2013, he began noticing that M.A.D. and M.R.D. started fighting

with each other. (Id. at 1499). He testified that the fighting started as verbal

confrontations and that neither girl sustained serious injuries. (Id. at 1500-1501).

He testified that he received reports from teachers and others about M.A.D.’s and

M.R.D.’s injuries but that he thought they were just fighting on their own. (Id. at

1503). Dayton said that, because Jessica and the other children consistently told

him that M.R.D. and M.A.D. were fighting, “who [was he] to question all these

people.” (Id. at 1510). According to Dayton, “[n]o one ever told [him] that [M.R.D.

and M.A.D.] were put up to fight.” (Id. at 1515). He remarked that “having six

people telling [him] the same story, what else [was he] supposed to believe [other

than] that two girls are fighting.” (Id. at 1510). He testified that he noticed injuries

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on the girls but “assumed it was from when the two girls were fighting.” (Id. at

1506). He also testified that he “saw the black eye.” (Id. at 1543).

{¶91} Dayton disputed P.W.’s account that he was there during some of the

abuse stating: “I was not there for any of it.” (Id. at 1539). He admitted that he was

present for some of the fighting between M.A.D. and M.R.D. and that he would try

to stop it. (Id. at 1539). (See also id. at 1503, 1512). He testified that he “never

[saw] Jessica hit the kids.” (Id. at 1501). Although he testified that he knew that

Jessica concealed M.R.D.’s and M.A.D.’s injuries with makeup, he stated that he

did not think that the injuries were caused by Jessica’s intentional abuse. (Id. at

1506). He acknowledged that Jessica showed him “a few seconds” of one of the

videos depicting M.R.D. and M.A.D. fighting. (Id. at 1539-1540). He testified that

he did not “know how [Jessica] would record all those videos and not step in and

stop them.” (Id. at 1541). He stated that he did not see the video of M.R.D. and

M.A.D. being forced to eat SPAM but that he had heard about the incident; he also

testified that he did not see the video of M.R.D. and M.A.D. stomping on each

other’s feet. (Id. at 1541-1542).

{¶92} Further, Dayton testified that he believed that the hole in the girls’

bathroom wall—as depicted in State’s Exhibit 2—was caused by M.R.D. and

M.A.D. fighting. (Id. at 1545-1547) (See State’s Ex. 2). He testified that he was at

home when the hole depicted in State’s Exhibit 4 was created. (Dec. 12-16, 2016

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Tr., Vol. VIII, at 1549). He stated that he was upstairs and that he came downstairs

after hearing the noise; he believed at the time that it was caused by someone falling

into the wall. (Id. at 1549-1550).

{¶93} Dayton denied that he unzipped P.W.’s pajamas and licked her breast.

(Id. at 1490-1491). (See also id. at 1574). He opined that P.W. fabricated the

accusations so that she could live full time with her biological father. (Id. at 1495-

1496).

{¶94} On cross-examination, Dayton confirmed that he sent M.R.D. and

M.A.D. to visit family in Nevada in 2010 and that this visit coincided with a JFS

investigation of Dayton and Jessica for medical neglect. (Id. at 1582). He testified

that he initially did not believe the children were being abused because he only heard

about the reports of abuse through JFS but that he would have believed the children

if they told him directly. (Id. at 1593-1594). He admitted that he witnessed

M.A.D.’s black eye but that he did not know that she was held back from school on

multiple days for her injuries, and he maintained that he believed the injury was

caused by M.A.D. fighting with M.R.D. (Id. at 1594-1595). (See also id. at 1616-

1617). He testified that he did not remember seeing the girls walk around “with

their toes curled under” when he was around. (Id. at 1606). He testified that he did

not see M.A.D.’s and M.R.D.’s injuries when they were forced to hit each other in

the “privates” with a water bottle, that he did not see the injury to M.R.D.’s head

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caused when she was struck with a belt buckle, and that he did not see the injuries

the girls suffered when their heads were banged into the bathroom wall. (Id. at

1612-1613). He denied that M.A.D. and M.R.D. were bruised “almost every day.”

(Id. at 1613). He admitted that he saw that some of M.A.D.’s and M.R.D.’s injuries

were concealed with makeup. (Id. at 1613). He admitted that he saw video footage

of the girls fighting but explained that he only saw “three or four seconds” of the

footage. (Id. at 1613). He further testified that he saw only one of the recordings

before Jessica’s sentencing hearing. (Id. at 1613-1614). He testified that he did not

suspect that the girls were being abused because he was told that the injuries were

caused by fighting between M.A.D. and M.R.D. and that he had no cause to believe

otherwise. (Id. at 1614). Dayton stated that he did not think that any of the injuries,

including the bruising and black eyes, were significant enough to require

hospitalization and that he did not think that the injuries “distorted” any of his

children’s appearances. (Id. at 1617-1618).

{¶95} Thereafter, the defense moved to admit Defendant’s Exhibits A-O,

which were admitted without objection.3 (Id. at 1623-1624). The State did not

present any additional witnesses on rebuttal, and Dayton renewed his Crim.R. 29(A)

motion, which the trial court denied. (Id. at 1624-1625). The matter was submitted

3 Defendant’s Exhibits A-O are identical to State’s Exhibits 2-12, 17-18, 25-28, and 31-32. Dayton appears to have used some letters multiple times to label his exhibits. Defendant’s Exhibit F corresponds with both State’s Exhibits 6 and 7, Defendant’s Exhibit L corresponds with both State’s Exhibits 17 and 26, and Defendant’s Exhibit M corresponds with State’s Exhibits 18, 27, and 28.

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to the jury, which found Dayton guilty as to Counts Two through Eleven of the

indictment. (Id. at 1731-1738).

{¶96} We first review the sufficiency of the evidence supporting Dayton’s

gross-sexual-imposition, endangering-children, complicity-to-endangering-

children, and permitting-child-abuse convictions. State v. Velez, 3d Dist. Putnam

No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No.

9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999).

{¶97} First, Dayton fails to make an argument as to how his gross-sexual-

imposition conviction is based on insufficient evidence. “‘App.R. 12(A)(2)

provides that an appellate court “may disregard an assignment of error presented for

review if the party raising it fails to identify in the record the error on which the

assignment of error is based or fails to argue the assignment separately in the brief,

as required under App.R. 16(A).”’” State v. Stevens, 3d Dist. Allen No. 1-14-58,

2016-Ohio-446, ¶ 82, quoting State v. Jackson, 10th Dist. Franklin No. 14AP-670,

2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “‘Moreover, “[i]f an argument

exists that can support [an] assignment of error, it is not this court’s duty to root it

out.”’” Id. at ¶ 81, quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-

6912, ¶ 7, quoting State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶

27. Accordingly, we will not address the sufficiency of the evidence supporting that

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conviction. See App.R. 12(A)(2); App.R. 16(A). See also State v. Olvera-Guillen,

12th Dist. Butler No. CA2007-05-118, 2008-Ohio-5416, ¶ 10.

{¶98} Second, turning to Dayton’s endangering-children, complicity-to-

endangering-children, and permitting-child-abuse convictions, Dayton argues only

that the State failed to prove that he possessed the requisite culpable mental states

to sustain those convictions. As such, we will address only the culpable-mental-

state requirement of each offense. See State v. Dillon, 4th Dist. Washington No.

11CA31, 2013-Ohio-614, ¶ 13.

{¶99} As previously noted, to sustain convictions under R.C. 2919.22(A) and

2903.15(A), the State was required to prove that Dayton was reckless. See McGee,

79 Ohio St.3d at 195; Ferguson, 2011-Ohio-4285, at ¶ 27. Similarly, because R.C.

2923.03(A)(2) requires the State to show that an aider or abettor acted with the same

kind of culpability required for the commission of an offense and because

recklessness is the culpable mental state required for endangering children under

R.C. 2919.22(B)(2), the State was required to prove that Dayton recklessly aided or

abetted Jessica’s abuse of M.R.D. and M.A.D. See Diggs, 2014-Ohio-3340, at ¶ 26.

See also State v. Thiel, 3d Dist. Wyandot No. 16-16-01, 2017-Ohio-242, ¶ 140-143.

{¶100} The State presented sufficient evidence from which any rational trier

of fact could conclude that Dayton violated his duty to protect M.R.D. and M.A.D.

from abuse by disregarding a substantial and unjustifiable risk that M.R.D. and

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M.A.D. were being abused, that, in failing to heed the substantial risk that Jessica

was abusing M.R.D. and M.A.D., Dayton recklessly assisted Jessica in her years-

long abuse of M.R.D. and M.A.D., and that his failure to intervene amounted to

recklessly permitting M.R.D.’s and M.A.D.’s abuse. See State v. Hinojosa, 3d Dist.

Seneca No. 13-12-41, 2013-Ohio-4110, ¶ 35-38. First, viewing the evidence in a

light most favorable to the prosecution, a rational trier of fact could have concluded

that Dayton actually knew that Jessica was abusing M.R.D. and M.A.D. P.W.

testified that Dayton once “saw [Jessica] bash [M.A.D.’s] head into the wall.” (Dec.

12-16, 2016 Tr., Vol. VI, at 1092). P.W. also testified that Jessica once made

M.R.D. and M.A.D. hit each other in the “private parts” with water bottles and that

they were later forced to show Dayton their injuries. (Id. at 1096-1097). Thus, from

P.W.’s testimony alone, a rational trier of fact could find that Dayton left M.R.D.

and M.A.D. in Jessica’s care knowing that Jessica had abused the girls and that the

girls were at further risk of abuse. See State v. Garcia, 10th Dist. Franklin No.

03AP-384, 2004-Ohio-1409, ¶ 28 (noting that “[w]hen recklessness is an element

of an offense, knowledge * * * is also sufficient culpability to establish this

element”), citing R.C. 2901.22(E). However, putting aside P.W.’s testimony as to

Dayton’s direct knowledge of incidents of abuse perpetrated by Jessica, the State

produced sufficient evidence that Dayton was aware of a substantial and

unjustifiable risk that Jessica was abusing M.R.D. and M.A.D.

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{¶101} The State offered the testimony of numerous witnesses who testified

about their suspicions and concerns regarding the injuries they observed on M.R.D.

and M.A.D. Teachers, counselors, and other educators familiar with M.R.D. and

M.A.D. testified that they frequently observed injuries on the two girls.

Representatives from JFS testified about the many reports that the agency received

regarding suspected physical abuse in the Dayton household. Dayton’s

grandmother testified that the injuries she observed on the girls led her to believe

they were being abused. Dayton himself conceded that he saw the girls’ injuries,

including black eyes on both, and that he knew Jessica actively attempted to conceal

the injuries with makeup. Dayton also testified that he viewed a segment of a video

recording of M.R.D. and M.A.D. fighting with each other. Drukemiller, Dayton’s

mother, testified that she viewed video recordings similar to the one viewed by

Dayton and that the recordings gave her the impression that Jessica was

orchestrating M.R.D. and M.A.D.’s fights. Viewing this evidence in a light most

favorable to the prosecution, a rational trier of fact could conclude that there was a

substantial, unjustifiable, and readily cognizable risk that M.R.D. and M.A.D. were

being abused by Jessica, that Dayton was aware of this risk, and that he disregarded

it over the course of many years. As such, we conclude that Dayton’s endangering-

children, complicity-to-endangering-children, and permitting-child-abuse

convictions are supported by sufficient evidence.

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{¶102} Having concluded that Dayton’s endangering-children, complicity-

to-endangering-children, and permitting-child-abuse convictions are based on

sufficient evidence, we next address Dayton’s argument that his gross-sexual-

imposition, endangering-children, complicity-to-endangering-children, and

permitting-child-abuse convictions are against the manifest weight of the evidence.

Velez, 2014-Ohio-1788, at ¶ 76. We will begin by addressing whether Dayton’s

gross-sexual-imposition conviction is against the manifest weight of the evidence,

then we will address together whether his endangering-children, complicity-to-

endangering-children, and permitting-child-abuse convictions are against the

manifest weight of the evidence.

{¶103} In support of his argument that his gross-sexual-imposition

conviction is against the manifest weight of the evidence, Dayton suggests that P.W.

fabricated her allegation of abuse in an effort to live with her father full-time in

Michigan and, as such, P.W.’s testimony is not credible. Further, Dayton argues

that P.W.’s testimony is rendered suspicious and unreliable because she did not

disclose the alleged sexual abuse during the 2013 forensic interview at Nationwide

despite having made an earlier allegation of sexual abuse. Dayton’s arguments lack

merit. Although P.W.’s trial testimony of sexual abuse was inconsistent with her

earlier nondisclosure of sexual abuse during the 2013 forensic interview, “‘“[a]

defendant is not entitled to a reversal on manifest weight grounds merely because

-54- Case No. 14-17-03

inconsistent evidence was presented at trial.”’” State v. Barrie, 10th Dist. Franklin

No. 15AP-848, 2016-Ohio-5640, ¶ 22, quoting State v. Jackson, 10th Dist. Franklin

No. 14AP-670, 2015-Ohio-3322, ¶ 17, quoting State v. Chandler, 10th Dist.

Franklin No. 05AP-415, 2006-Ohio-2070, ¶ 9. “A jury may take into consideration

a witness’s conflicting testimony in determining his or her credibility and the

persuasiveness of his or her account by either discounting or resolving the

discrepancies.” Id., citing Jackson at ¶ 17, citing State v. Taylor, 10th Dist. Franklin

No. 14AP-254, 2015-Ohio-2490, ¶ 34. “‘A jury, as finder of fact, may believe all,

part, or none of a witness’s testimony.’” Id., quoting Taylor at ¶ 34.

{¶104} Although P.W.’s trial testimony was inconsistent with her earlier

nondisclosures, she explained the inconsistency. P.W. testified that the reason she

did not disclose Dayton’s sexual abuse during the forensic interview at Nationwide

in 2013 was because Jessica spoke with her while Dayton was in the same room and

pressured her not to disclose the abuse by telling P.W. that the family’s reputation

would be tarnished if she followed through with the allegations. Because P.W.

offered an explanation for why she did not disclose the abuse during the 2013

forensic interview at Nationwide, the jury had more context with which to judge her

credibility. See State v. Stairhime, 3d Dist. Defiance No. 4-13-06, 2014-Ohio-1791,

¶ 36. Moreover, that P.W. did not disclose any sexual abuse during the course of

the forensic interview is consistent with the testimony offered by Dr. Brink,

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Sherfield, Wilkinson, and Kuhr that nondisclosure in a forensic interview does not

mean that abuse did not happen, that children often recant their earlier disclosures

of abuse, and that they often recant or delay disclosure after being pressured by a

family member to do so. See State v. J.E.C., Jr., 10th Dist. Franklin No. 12AP-584,

2013-Ohio-1909, ¶ 43 (suggesting that testimony concerning the “difficulty children

have in disclosing sex abuse and the fact that disclosure is a process whereby

children do not reveal all the facts at once” can be used by a jury to assess the

credibility of a testifying victim who earlier equivocated about or did not disclose

sexual abuse). Finally, P.W. was unwavering in her testimony that Dayton unzipped

her pajamas and licked her chest as she described, and ultimately, the testimony of

a single witness, if believed by the jury, can support a criminal conviction. Barrie

at ¶ 21.

{¶105} The jury was aware of Dayton’s assertions that P.W. fabricated her

allegations of sexual abuse. Dayton and Drukemiller testified to that theory.

Further, Jessica, P.W.’s mother, testified that she did not believe P.W.’s allegations

that Dayton sexually abused her. Finally, Dayton emphatically denied that he

sexually abused P.W. In the end, the jury elected to discount Dayton’s theory

concerning P.W.’s disclosure of sexual abuse, disbelieve Dayton’s testimony that

he did not abuse P.W., and credit P.W.’s testimony. See State v. Jackson, 8th Dist.

Cuyahoga No. 93235, 2010-Ohio-3716, ¶ 14-16; State v. Anderson, 9th Dist.

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Summit No. 23197, 2007-Ohio-147, ¶ 15, 27; State v. Hart, 57 Ohio App.3d 4, 8-9

(6th Dist.1988). Altogether, even when we do not view the evidence in a light most

favorable to the prosecution, “this is not an exceptional case where the evidence

weighs heavily against the convictions.” State v. Suffel, 3d Dist. Paulding No. 11-

14-05, 2015-Ohio-222, ¶ 33.

{¶106} Next, we consider whether Dayton’s endangering-children,

complicity-to-endangering-children, and permitting-child-abuse convictions are

against the manifest weight of the evidence. In attacking the weight of the evidence

supporting these convictions, Dayton makes the same argument that he makes in

support of his sufficiency-of-the-evidence argument. That is, Dayton argues that

the weight of the evidence supporting whether he possessed the requisite culpable

mental state—recklessness—for each offense is outweighed by the evidence that he

did not act recklessly. See State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio-

894, ¶ 56.

{¶107} In support of his argument, Dayton points to the considerable

testimony concerning his “ambitious work schedule and his frequent and prolonged

absences from the home.” (Appellant’s Brief at 8). He highlights that “[i]n addition

to working from 6:00 a.m. to 3:00 p.m. for Honda during the final years, he was

refereeing soccer games year-round” and that there was no “testimony by any of the

witnesses to suggest that he * * * spent the amount of quality time with his children

-57- Case No. 14-17-03

as the teachers and witnesses presented by the State.” (Id. at 9). Further, he argues

that “[M.A.D.], [M.R.D.], [I.D.] and [M.D.] all testified that [Dayton] was working

excessively and that he was not present when their mother was encouraging and/or

forcing [M.A.D.] and [M.R.D.] to fight or when she physically abused them.” (Id.

at 13). Finally, he notes that “[b]oth [M.A.D.] and [M.R.D.] testified they never

told their father what was happening to them. They both testified that they told their

father that they were fighting with no further elaboration as to why the fights were

occurring. The girls consistently told this story to everyone they knew.” (Id. at 8).

{¶108} Notwithstanding these arguments, Dayton gives little consideration

to the extensive testimony of neighbors, family members, teachers, counselors, and

social workers who expressed concerns to Dayton about the frequency and severity

of M.R.D.’s and M.A.D.’s injuries. While Dayton admits that he observed M.R.D.’s

and M.A.D.’s injuries “from time to time,” his argument omits a discussion of the

severity and chronic nature of M.R.D.’s and M.A.D.’s injuries. Although he

disputed that M.R.D. and M.A.D. were bruised every day, M.R.D., M.A.D., P.W.,

and Jessica testified that M.R.D. and M.A.D. were injured at least two to three times

a week. M.A.D. testified that she was in pain almost every day. In addition, while

there was considerable testimony that Dayton was frequently absent from the home,

multiple witnesses testified that Dayton would make it home a few nights a week to

eat dinner with the family and interact with his children.

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{¶109} Furthermore, the record is brimming with additional examples of

Dayton’s “willful blindness and heedless indifference to the strong possibility” that

M.R.D. and M.A.D. were being repeatedly abused. See Hinojosa, 2013-Ohio-4110,

at ¶ 36. Dayton admitted to viewing a clip of at least one of the videos depicting

M.R.D. and M.A.D. fighting. Jessica testified that she showed him segments of

multiple videos documenting the two girls fighting with each other. One of these

videos left Drukemiller with the impression that Jessica was orchestrating the fights.

The jury was given the opportunity to view these videos. Moreover, Dayton

testified that he was present in the home when the hole was made in the wall, a hole

which, according to the testimony of a few of the Dayton children, was caused when

Jessica pushed M.A.D.’s head into the wall. Finally, Dayton was aware that Jessica

often attempted to hide M.R.D.’s and M.A.D.’s injuries with makeup.

{¶110} The jury also considered evidence that Dayton expressed concerns

that people would think M.R.D. and M.A.D. were being abused and that, on multiple

occasions, he was angry with school personnel for talking to M.R.D. and M.A.D.

about their injuries without first talking to him or Jessica about the how the girls

sustained their injuries. Finally, the jury heard testimony suggesting that Dayton

may have had actual knowledge of Jessica’s abuse of M.R.D. and M.A.D. Jessica,

Drukemiller, and Dayton testified that M.R.D. and M.A.D. were sent to visit their

mother and aunt in 2010—a time which coincided with an ongoing JFS

-59- Case No. 14-17-03

investigation. In addition, P.W. testified that Dayton once saw Jessica “bash”

M.A.D.’s head into a wall and that M.R.D. and M.A.D. were forced to show Dayton

injuries they suffered when Jessica made them hit each other in the “private parts”

with water bottles.

{¶111} In sum, the State presented considerable evidence to the effect that

most everyone who regularly interacted with M.R.D. and M.A.D. during the period

in question strongly suspected that M.R.D. and M.A.D. were being abused. Thus,

because the jury could have reasonably inferred that Dayton either knew that

M.R.D. and M.A.D. were being abused or recognized a substantial risk that they

were being abused and because Dayton did not intervene, the jury’s conclusion that

Dayton was reckless is not against the manifest weight of the evidence.

{¶112} Therefore, having weighed the evidence and all reasonable

inferences, and considering the credibility of the witnesses, we cannot conclude that

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

Dayton’s gross-sexual-imposition, endangering-children, complicity-to-

endangering-children, and permitting-child-abuse convictions must be reversed.

{¶113} Dayton’s first assignment of error is, therefore, overruled.

Assignment of Error No. II

The Defendant-Appellant was Denied the Effective Assistance of Counsel at Trial, in Violation of his Sixth Amendment Rights.

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Assignment of Error No. III

The Trial Court Committed Plain Error by Failing to Include the Mandatory Accomplice Testimony Instruction under Ohio Rev. Code Ann. § 2923.03(D).

{¶114} In his second assignment of error, Dayton argues that he was denied

the effective assistance of counsel at his trial. Specifically, Dayton argues that by

failing to request an accomplice testimony jury instruction under R.C. 2923.03(D)

or object to its omission, his trial counsel’s performance fell below the standard of

competent legal representation and prejudiced the outcome of his trial. In his third

assignment of error, Dayton argues that, notwithstanding his trial counsel’s failure

to object to the omission of the R.C. 2923.03(D) instruction, the trial court

committed plain error by failing to include the instruction.

{¶115} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466

U.S. 668, 687 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment. Strickland, 466 U.S. at

689. Counsel is entitled to a strong presumption that all decisions fall within the

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wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255

(1991). Rather, the errors complained of must amount to a substantial violation of

counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-

142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on

other grounds, 438 U.S. 910 (1978).

{¶116} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Id. at 142, quoting Strickland at 694. “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

{¶117} “Ordinarily, the trial court has discretion to decide to give or refuse

a particular instruction, and an appellate court will not disturb that decision absent

an abuse of discretion.” State v. Teitelbaum, 10th Dist. Franklin No. 14AP-310,

2016-Ohio-3524, ¶ 127, citing Clark v. Grant Med. Ctr., 10th Dist. Franklin No.

14AP-833, 2015-Ohio-4958, ¶ 50. An abuse of discretion is more than a mere error

in judgment; it suggests that a decision is unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

-62- Case No. 14-17-03

{¶118} R.C. 2923.03(D) sets forth the jury instruction at issue. R.C.

2923.03(D) provides:

If an alleged accomplice of the defendant testifies against the

defendant in a case in which the defendant is charged with complicity

in the commission of or an attempt to commit an offense, an attempt

to commit an offense, or an offense, the court, when it charges the

jury, shall state substantially the following:

“The testimony of an accomplice does not become inadmissible

because of his complicity, moral turpitude, or self-interest, but the

admitted or claimed complicity of a witness may affect his credibility

and make his testimony subject to grave suspicion, and require that it

be weighed with great caution.

It is for you, as jurors, in the light of all the facts presented to you from

the witness stand, to evaluate such testimony and to determine its

quality and worth or its lack of quality and worth.”

“Courts have held that ‘despite the mandatory nature of R.C. 2923.03(D), the statute

only requires substantial, not strict, compliance.’” State v. Holton, 3d Dist. Logan

No. 8-17-02, 2017-Ohio-6934, ¶ 40, quoting State v. Woodson, 10th Dist. Franklin

No. 03AP-736, 2004-Ohio-5713, ¶ 17.

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{¶119} In this case, Dayton was charged with two counts of complicity to

endangering children under R.C. 2923.03(A) and 2919.22(B)(2). Jessica, Dayton’s

claimed accomplice, testified as the court’s witness under Evid.R. 614(A).

Therefore, to the extent that Jessica’s testimony could implicate Dayton as an aider

or abettor of her torture and abuse of M.R.D. and M.A.D., the trial court was

required to furnish the jury with an instruction substantially similar in form to the

one contained in R.C. 2923.03(D). See State v. Ramsey, 8th Dist. Cuyahoga No.

83026, 2004-Ohio-3618, ¶ 49 (noting that the policy behind the practice of giving

jury instructions like the one in R.C. 2923.03(D) is “to alert the jury to the possibility

of perjured testimony” such that “the charge should be given whether the

accomplice testifies for the defense or the prosecution”), citing United States v.

Nolte, 440 F.2d 1124, 1126 (5th Cir.1971).

{¶120} Here, the trial court failed to provide the jury with an instruction

substantially similar in form to the one set forth in R.C. 2923.03(D). However,

Dayton’s trial counsel did not ask the trial court to issue the R.C. 2923.03(D)

instruction or object to its omission. Because Dayton’s trial counsel failed to object

to the omission of the R.C. 2923.03(D) instruction, we review the trial court’s failure

to include the R.C. 2923.03(D) instruction for plain error.

{¶121} We recognize plain error “‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’”

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State v. Landrum, 53 Ohio St.3d 107, 110 (1990), quoting State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus. For plain error to apply, the trial

court must have deviated from a legal rule, the error must have been an obvious

defect in the proceeding, and the error must have affected a substantial right. State

v. Barnes, 94 Ohio St.3d 21, 27 (2002). Under the plain error standard, the appellant

must demonstrate that the outcome of his trial would clearly have been different but

for the trial court’s errors. State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing

State v. Moreland, 50 Ohio St.3d 58 (1990).

{¶122} Dayton contends that his trial counsel was ineffective for failing to

either request the R.C. 2923.03(D) jury instruction or object to its omission. Even

if Dayton’s trial counsel’s performance was deficient or unreasonable under the

circumstances, we conclude that Dayton’s claim of ineffective assistance of counsel

is without merit because Dayton cannot demonstrate that there is a reasonable

probability that, but for his trial counsel’s unprofessional errors, the result of his

trial would have been different. See Holton, 2017-Ohio-6934, at ¶ 48, citing

Bradley, 42 Ohio St.3d at 143, quoting Strickland, 466 U.S. at 697 (“[T]here is no

reason for a court deciding an ineffective assistance of counsel claim to approach

the inquiry in the same order or even to address both components of the inquiry if

the defendant makes an insufficient showing on one.”). Although Dayton points to

portions of Jessica’s testimony which he claims are harmful to his defense, the

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elements of Jessica’s testimony most detrimental to Dayton’s case are at least

partially corroborated by other witnesses, including Dayton himself. For example,

Jessica testified that she showed Dayton a few seconds of “two or three” of the

recordings she had made of M.R.D. and M.A.D. fighting each other. (Dec. 12-16,

2016 Tr., Vol. II, at 304). For his part, Dayton testified that he only saw “three or

four seconds” of one of the recordings Jessica made. (Dec. 12-16, 2016 Tr., Vol.

VIII, at 1539-1540, 1613). While it is true that Dayton’s testimony is somewhat at

variance with Jessica’s, Dayton’s testimony corroborates the most damaging aspect

of Jessica’s testimony: that Dayton knew that Jessica recorded M.R.D. and M.A.D.

fighting and that he viewed the footage. Additionally, Jessica testified that Dayton

almost certainly saw M.R.D.’s and M.A.D.’s injuries, including the black eyes. She

also testified that although Dayton was often working, he still interacted with the

girls “two or three nights a week.” (Dec. 12-16, 2016 Tr., Vol. II, at 341). Dayton’s

testimony that he saw M.R.D.’s and M.A.D.’s injuries, including the black eyes, and

that he spent time at the house with the family whenever he was not working or

refereeing soccer games supports Jessica’s testimony. Finally, Jessica testified that

she and Dayton jointly sent M.R.D. and M.A.D. out of state in 2010 and that the

time M.R.D. and M.A.D. were out of state coincided with an investigation by JFS.

Drukemiller and Dayton corroborated Jessica’s testimony in this respect. (See Dec.

12-16, 2016 Tr., Vol. VIII, at 1403, 1582).

-66- Case No. 14-17-03

{¶123} Moreover, Dayton completely ignores that Jessica’s testimony was

favorable to his defense. Jessica’s testimony, rather than implicating Dayton in her

abuse of M.R.D. and M.A.D., largely shielded Dayton and minimized any

knowledge Dayton may have had concerning the abuse that was taking place in his

home. For example, Jessica testified that M.R.D. and M.A.D. rarely fought when

Dayton was home. She stated that they never fought at her instruction while Dayton

was home. When asked where Dayton was during the times that she allowed or

encouraged M.R.D. and M.A.D. to fight, Jessica responded that he was “[g]one at

work mostly.” (Dec. 12-16, 2016 Tr., Vol. III, at 410). She testified that she asked

M.R.D. and M.A.D. to conceal that she was encouraging them to fight. She testified

that she did “[e]verything [she] could” to hide the girls’ fighting and injuries from

Dayton. (Id. at 403). Jessica also insisted that Dayton did not know about the extent

of the abuse or that she was the one encouraging M.R.D. and M.A.D. to fight. She

testified that she never told Dayton that she was abusing M.A.D. and M.R.D.

Because Jessica’s testimony was corroborated by other witnesses and generally

protective of Dayton, Jessica’s testimony was not unfavorable to Dayton; thus, the

trial court’s failure to give the R.C. 2923.03(D) instruction is harmless. State v.

Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 91. For this reason, we

conclude that Dayton’s trial counsel’s failure to request the R.C. 2923.03(D)

-67- Case No. 14-17-03

instruction or object to its omission did not constitute ineffective assistance of

counsel. See id.

{¶124} Turning to whether the trial court’s failure to include the accomplice

testimony jury instruction under R.C. 2923.03(D) amounted to plain error, we

conclude that, because Dayton’s trial counsel’s failure to request the R.C.

2923.03(D) instruction or object to its omission did not prejudice the outcome of

Dayton’s trial such that Dayton received ineffective assistance of counsel, the

omission of the instruction does not satisfy the prejudice requirement of the plain

error standard. “The prejudice required for ineffective assistance of counsel is

somewhat less than that required for plain error.” State v. Richmond, 2d Dist.

Greene No. 2005-CA-105, 2006-Ohio-4518, ¶ 163. “The plain error test is higher

and more difficult for a defendant to establish. While a finding of no prejudice in

an ineffective assistance of counsel claim would necessarily preclude a finding of

plain error based upon counsel’s alleged ineffectiveness, the same does not apply

inversely.” State v. Huff, 5th Dist. Stark No. 2006CA00081, 2007-Ohio-3360, ¶ 73

(Hoffman, P.J., concurring). Dayton failed to show that there is a reasonable

probability that, but for his trial counsel’s failure to object to the omission of the

R.C. 2923.03(D) instruction or to request that the instruction be given, the result of

his trial would have been different. Thus, we necessarily conclude that Dayton has

not shown that the result of his trial would clearly have been different had the jury

-68- Case No. 14-17-03

received the R.C. 2923.03(D) instruction. As such, Dayton has not demonstrated

plain error.

{¶125} Dayton’s second and third assignments of error are, therefore,

overruled.

{¶126} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr

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