[Cite as State v. Dougherty, 2014-Ohio-4760.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-12-014
: OPINION - vs - 10/27/2014 :
JOHN C. DOUGHERTY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 12CR011070
Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, Preble County Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee
Wayne C. Staton, Timothy J. Meloy, 110 North Beech Street, Oxford, Ohio 45056, for defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, John Dougherty, appeals his conviction in the Preble
County Court of Common Pleas for endangering children. For the reasons detailed below,
we affirm.
{¶ 2} This case involves the operation of a methamphetamine lab operated at 9644
Stephen Young Road, Camden, Ohio. Charles Wyatt lived on that property, which was Preble CA2013-12-014
owned by his father.
{¶ 3} On September 28, 2012, one of Wyatt's neighbors contacted police to report
that strong chemical smells were coming from the direction of the property. Deputy Paul
Plaugher of the Preble County Sheriff's Office interviewed the neighbor, and learned that
such odors had been coming from the Wyatt property for several months. The neighbor also
explained that cars would come and go from the property at all times of the day and night.
The neighbor also stated that there was a large barn on the property that was equipped with
an exhaust fan, and when the fan was turned on, the chemical smell emissions from the
Wyatt barn became much stronger.
{¶ 4} Deputy Plaugher then went to the back of the neighbor's property, and from
there could smell a strong chemical odor of what he believed to be ether. Based on this
information, Deputy Plaugher drafted an affidavit to obtain a search warrant of the Wyatt
property.
{¶ 5} A search warrant was subsequently granted and executed in the early morning
hours of September 29, 2012. When law enforcement officers entered the Wyatt barn they
discovered a methamphetamine lab with a substantial amount of finished methamphetamine,
as well as various components used in the manufacture of methamphetamine, including
lithium batteries, retrofitted propane tanks, and other chemicals necessary to the
manufacturing process.
{¶ 6} During execution of the search warrant, appellant was standing immediately
outside the barn containing the methamphetamine lab holding a flashlight. Appellant
admitted to looking out for police because of a phone call tip he received from Wyatt, who
was not on the property at the time of the search. Also on the property were Tennessa Miller
(Wyatt's girlfriend) and Miller's three young children (Miller's children) who were sleeping in a
trailer right next to the barn containing the methamphetamine lab.
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{¶ 7} In an interview with Deputy Plaugher, appellant admitted that he had been
inside the Wyatt barn that night and had handled the finished methamphetamine product.
However, appellant claimed that he had no knowledge of the methamphetamine lab and any
manufacture of methamphetamine was, in his mind, "out of sight, out of mind." Instead,
appellant maintained that he was "just a dope head" that was on the property to perform
chores in exchange for finished methamphetamine.
{¶ 8} Appellant was subsequently indicted on five counts for the illegal manufacture
of drugs, illegal assembly or possession of chemicals for the illegal manufacture of drugs
within the vicinity of a minor, aggravated possession of drugs, endangering children, and
having drug paraphernalia.
{¶ 9} The case proceeded to a jury trial. Following the close of the state's evidence,
appellant moved for acquittal based on insufficient evidence pursuant to Crim.R. 29 on all
five counts. Following argument, the trial court granted appellant's request for acquittal on all
counts except for the count of endangering children. At the conclusion of trial, the jury found
appellant guilty of endangering children. Appellant now appeals, raising five assignments of
error for review.
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL COURT ERRED BY DENYING APPELLANT'S CRIM. RULE 29
MOTION FOR ACQUITTAL ON THE CHARGE OF ENDANGERING CHILDREN UNDER
R.C. 2919.22(B)(6).
{¶ 12} Assignment of Error No. 3:
{¶ 13} THE STATE'S EVIDENCE WAS CONSTITUTIONALLY INSUFFICIENT TO
SUPPORT A CONVICTION FOR ENDANGERING CHILDREN UNDER R.C. 2919.22 (B)(6).
{¶ 14} Assignment of Error No. 4:
{¶ 15} APPELLANT'S CONVICTION FOR A VIOLATION OF R.C. 2919.22 (B)(6) IS
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AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 16} In his first, third, and fourth assignments of error, appellant argues the trial court
erred by denying his Crim.R. 29(C) motion for acquittal on the endangering children charge.
Appellant also argues that his conviction for endangering children is not supported by
sufficient evidence and is against the manifest weight of the evidence. We find no merit to
appellant's argument.
{¶ 17} Crim.R. 29(C) permits a trial court, upon motion, to set aside a guilty verdict and
enter a judgment of acquittal. State v. Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 9
(12th Dist.). "This court reviews a trial court's decision on a Crim.R. 29(C) motion for
acquittal using the same standard as that used to review a sufficiency-of-the-evidence claim."
Id; State v. Clements, 12th Dist. Butler No. CA2009-11-277, 2010-Ohio-4801, ¶ 17.
{¶ 18} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing
the sufficiency of the evidence underlying a criminal conviction, an appellate court examines
the evidence in order to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. State v. Williams, 12th
Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 29. Therefore, "[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., quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of
the syllabus.
{¶ 19} On the other hand, "a manifest weight challenge concerns the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other." State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970,
¶ 12.
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In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Hibbard, 12th Dist. Butler Nos. CA2001-12-276, CA2001-12-286, 2003-Ohio-707, ¶
10.
{¶ 21} While appellate review includes the responsibility to consider the credibility of
witnesses and the weight given to the evidence, "these issues are primarily matters for the
trier of fact to decide since the trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given the evidence." State v. Wyatt, 12th Dist. Preble No.
CA2013-06-005, 2014-Ohio-3009, ¶ 40. Therefore, an appellate court will overturn a
conviction due to the manifest weight of the evidence only in extraordinary circumstances to
correct a manifest miscarriage of justice, and only when the evidence presented at trial
weighs heavily in favor of acquittal. "A determination that a conviction is supported by the
manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v.
Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶ 22} Appellant was convicted on one count of endangering children. The crime of
endangering children is set forth in R.C. 2919.22(B)(6), which provides:
(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
***
(6) Allow the child to be on the same parcel of real property and within one hundred feet of, or, in the case of more than one housing unit on the same parcel of real property, in the same housing unit and within one hundred feet of, any act in violation of section 2925.04 or 2925.041 of the Revised Code when the person knows that the act is occurring, whether or not any person is prosecuted for or convicted of the violation of section
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2925.04 or 2925.041 of the Revised Code that is the basis of the violation of this division.
{¶ 23} Appellant does not dispute that the Wyatt barn contained a methamphetamine
lab, which constitutes an act in violation of R.C. 2925.04 or 2925.041. Appellant also does
not dispute that Miller's three young children were on the property and within 100 feet of the 1 methamphetamine lab. Instead, this case turns on whether appellant's actions meet the
definition of "allow" as contained in R.C. 2919.22(B)(6). Appellant argues that he cannot be
guilty of the offense because he did not own or live on the property containing the
methamphetamine lab and: (1) he had no knowledge that Miller's children were on the
property; (2) even if he had knowledge that Miller's children were on the property, he still
cannot be held responsible for endangering children because he did not have the relationship
or authority that would permit him to remove the children from the property within the
meaning of R.C. 2919.22(B)(6).
{¶ 24} The Ohio Revised Code does not specifically define the term "allow." "In
construing a statute, a court's paramount concern is the legislative intent in enacting the
statute." Id., quoting State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 11. Statutes
should be interpreted in a way that avoids unreasonable or absurd results. State v. Cabrales,
118 Ohio St.3d 54, 2008-Ohio-1625, ¶ 20. It is presumed that the General Assembly
intended a just and reasonable result in enacting a particular statute. R.C. 1.47. In
determining legislative intent, the court should look at the language of the statute and
ascertain the apparent purpose to be accomplished, and then adopt a construction that gives
effect to that purpose. State v. Martin, 12th Dist. Brown No. CA99-09-026, 2000 WL
1145465, *5 (Aug. 14, 2000). Where a particular word employed in a statute is not defined, it
1. According to Deputy Plaugher's testimony, the trailer where the children were sleeping "was so close to the barn you could not open the barn door that swung out without hitting the [trailer] with the door."
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will be accorded its common, ordinary, plain, everyday meaning. State ex rel. Pennington v.
Gundler, 75 Ohio St.3d 171, 173 (1996).
{¶ 25} Black's Law Dictionary provides one definition of the term "allow" as "[t]o
sanction, either directly or indirectly, as opposed to merely suffering a thing to be done; to
acquiesce in; to suffer; to tolerate." Black's Law Dictionary (6th Ed.1990). As defined by
Merriam-Webster's Online Dictionary and Thesaurus, the word "allow" means "to permit" or
"to forbear or neglect to restrain." Merriam-Webster's Online: Dictionary and Thesaurus,
http:// www.merriam-webster.com/dictionary/allow (accessed October 8, 2014).
{¶ 26} In the present case, the state first called Wyatt's neighbor, Mickey White, who
originally reported the suspicious behavior at the Wyatt property to police. White testified
that she had a clear view of the Wyatt property from her backyard and was aware who lived
on the property, including Miller and Miller's three young children. White also acknowledged
that, although appellant did not live on the Wyatt property, he was a frequent visitor of the
property and his estranged wife and 14-year-old son lived on the property owned by Wyatt's 2 father, albeit in a separate structure in a separate area of the property.
{¶ 27} Next, the state called the investigating law enforcement officers who uncovered
the methamphetamine lab in the Wyatt barn and also located the Miller children on the
property. Agent Dwight Aspacher from the Ohio Bureau of Criminal Identification and
Investigation presented testimony regarding the manufacture of methamphetamine and the
evidence discovered during a search of the Wyatt barn. According to Agent Aspacher, the
Wyatt barn was an active methamphetamine lab and the last manufacture of the drug
occurred, at the latest, within 48 hours of the execution of the search warrant. Agent
Aspacher's testimony, as well as photographs of the Wyatt barn confirm that the Wyatt barn
2. The record reflects that appellant is married to Wyatt's sister.
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held, in plain view, various containers and implements used in the manufacture of
methamphetamine, such as pseudoephedrine pills, batteries, coffee grinders, pill sludge, and
a large exhaust fan. In addition, Captain Dean Miller of the Preble County Sherriff's Office
testified that he detected the odor of anhydrous ammonia while walking through the barn.
{¶ 28} During Deputy Plaugher's testimony, the state played a recorded interview
between appellant and Deputy Plaugher after appellant asked to speak with the Deputy. In
his statements to Detective Plaugher, appellant admitted to entering the Wyatt barn on the
night of the police raid and handling a bowl of finished methamphetamine. Appellant also
stated that he knew Miller was asleep in the trailer adjoining the barn on the night of the
police raid and knew that Miller had three young children. In addition, appellant also admitted
that he would routinely perform work on the property in exchange for methamphetamine. On
the night of the police raid, appellant stated that he was installing an outside light on the
property in exchange for methamphetamine. Appellant also acknowledged that he had
previously built a children's swing set on the property. Photographs of the trailer and barn
introduced during appellant's jury trial show that the swing set was located next to the Wyatt
barn and the area was littered with children's toys.
{¶ 29} Based on our review of the evidence, we find that appellant's conviction for
endangering children is based on sufficient evidence and is not against the manifest weight
of the evidence. Although it is true that appellant was not convicted of any crime related to
the actual manufacture of the methamphetamine, the issue of whether appellant had an
active involvement in the manufacture of methamphetamine is separate from the issue of
whether appellant knew the manufacture of methamphetamine was occurring. Appellant
"allowed," through acquiescence, the Miller children to be within 100 feet of the
methamphetamine lab while he knew the manufacture of methamphetamine was occurring.
{¶ 30} A similar issue was addressed in State v. Bailey, 4th Dist. Highland No. 11CA7,
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2011-Ohio-6526. There, Bailey and his fiancée were "staying" with their friend, Porter, and
Porter's four children. Id. at ¶ 4. While Bailey and the fiancée were alone with the children, a
fire erupted in the house as a result of a methamphetamine lab, which Bailey allegedly
operated. Id. Bailey was later charged with one count of illegal manufacture of
methamphetamine and four counts of child endangering. Id. at ¶ 5. The jury found Bailey
guilty of the child endangering charges, but not guilty of the illegal manufacture of
methamphetamine charge. Id. at ¶ 15. On appeal, Bailey argued that he could not be found
guilty of endangering children because he was acquitted of the illegal manufacture charges.
Id. at ¶ 21.
{¶ 31} In affirming Bailey's conviction for endangering children, the Fourth District
Court of Appeals found R.C. 2919.22(B)(6) "does not require that [the offender] himself
committed the violation of R.C. 2925.04 or 2925.041." Id. at ¶ 24. Instead, R.C.
2919.22(B)(6) "only required that he knowingly allowed the children to be within 100 feet of
any violation." Id. Accordingly, the court affirmed Bailey's conviction because, even though
appellant was not convicted of the illegal manufacture of methamphetamine, the evidence
supported the jury's conclusion that appellant allowed the children to be within 100 feet of the
methamphetamine operation when he knew the act was occurring. Id. at ¶ 26.
{¶ 32} While appellant presents a novel argument on appeal, we disagree with his
suggestion that he cannot be found guilty of R.C. 2919.22(B)(6) because he did not live on
the property and did not have the "relationship or authority" to exclude the Miller children from
the property.
{¶ 33} First, this court has not previously imposed any requirement that a criminal
defendant have any interest in the property in order to be found guilty of endangering
children under R.C. 2919.22(B)(6). In State v. Grundy, 12th Dist. Warren No. CA2011-09-
099, 2012-Ohio-3133, Grundy lived in Tim Baker's home along with Michelle Eibeck and
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Eibeck's 14-year-old daughter. Grundy manufactured methamphetamine in Baker's garage.
Id. at ¶ 3-5. In affirming Grundy's conviction for endangering children, we considered
evidence that Grundy knew that the child resided in the house and the child was within 100
feet of the methamphetamine operation. Id. at ¶ 29-31. As such, we found that Grundy's
conviction was supported by the manifest weight of the evidence. Id. ¶ at 31.
{¶ 34} The facts in Grundy are analogous to the present case, as neither Grundy nor
appellant owned, leased, or rented the home, nor were the children involved in the case
under the supervision of the defendant. Although it is true that Grundy did live on the
property in question, which is distinguishable from the present case, the critical issue
remains, whether Grundy, or appellant, allowed children to be within 100 feet of a
methamphetamine lab when he knows the act is occurring.
{¶ 35} Second, the plain language of the statute does not impose a requirement for
the state to prove that appellant had a special relationship or form of authority over Miller's
children. Unlike subsection (A) of R.C. 2919.22, subsection (B) provides no corresponding
obligation that the state prove an offender is the "parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child." R.C. 2919.22; see also State v.
McDade, 6th Dist. Ottawa No. OT-06-001, 2007-Ohio-749, ¶ 54 (noting that the "conduct
normally constituting the offense is manufacturing the volatile methamphetamine in the
presence of (anyone's) children").
{¶ 36} Based on the facts of this case, we find appellant "allowed" the children to be
near the methamphetamine lab within the meaning of R.C. 2919.22(B)(6). This is not a case
involving an innocent bystander who happens to accidentally stumble across a
methamphetamine lab and identifies children in the vicinity. The undisputed record reflects
that the Wyatt barn contained an active methamphetamine lab and Miller's children were
within 100 feet of the methamphetamine lab. Appellant admitted that he knew Miller was
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asleep in the trailer on the night of his arrest and he knew that Miller had three young
children. Appellant frequently went to the Wyatt property to essentially encourage the
methamphetamine operation by "working for dope." Appellant admitted to being in the barn
on the night of the police raid and handling a large glass dish containing finished
methamphetamine. On the night of the raid, appellant was found standing directly outside of
the barn with a flashlight and he admitted later that he was looking for police. Various law
enforcement officers testified that the Wyatt barn had a distinct chemical smell consistent
with the manufacture of methamphetamine. Indeed, the chemical smell was noticed by
persons standing on the neighboring property. Photographs of the barn, which appellant
admitted to entering, clearly show that the barn was riddled with instrumentalities consistent
with a methamphetamine operation. Accordingly, we find there is more than sufficient
evidence to support a finding that appellant knew the manufacture of methamphetamine was
an ongoing operation and "allowed," through acquiescence, the Miller children to be within
the vicinity of the methamphetamine lab.
{¶ 37} Moreover, as noted by the state in its brief, application of R.C. 2919.22 (B)(6) in
the manner prescribed by appellant would lead to an absurd result. If appellant's contention
were correct that he could not be held liable because he did not own the property and had no
relationship or authority to exclude the children, applied to its logical extreme, "a person could
walk into a random daycare center, setup a meth lab, and because he was not the parent of
any child or an owner/administrator of the daycare, he could not be charged with child
endangering." Accordingly, appellant's conviction is supported by sufficient evidence and is
not against the manifest weight of the evidence. Appellant's first, third, and fourth
assignments of error are hereby overruled.
{¶ 38} Assignment of Error No. 2:
{¶ 39} THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON ALL
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THE ELEMENTS OF THE ALLEGED OFFENSE OF CHILD ENDANGERING UNDER [R.C.]
2919.22 (B)(6).
{¶ 40} In his second assignment of error, appellant raises two specific errors with
regard to the mens rea requirement for endangering children under R.C. 2919.22(B)(6),
which he asserts is "recklessness" by operation of R.C. 2901.21(B). First, appellant claims
that his due process rights were violated because the indictment did not specify a mens rea
requirement for endangering children. Second, appellant claims the trial court erred by failing
to instruct the jury of the culpable mental state of "reckless" for the element of "allow." We
find no merit to appellant's arguments.
{¶ 41} We begin by noting that R.C. 2919.22 does not explicitly or impliedly require
proof of any culpable mental state for the "allow" element in subdivision (B)(6). Pursuant to
R.C. 2901.21(B):
When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.
As a result, the Ohio Supreme Court, as well as other courts of appeals have found that
recklessness is the culpable mental state for various offenses constituting the crime of
endangering children. State v. O'Brien, 30 Ohio St.3d 122 (1987) (interpreting R.C.
2919.22[B][3]); State v. Adams, 62 Ohio St.2d 151 (1980) (interpreting R.C. 2919.22[B][2]);
see also State v. Colopy, 5th Dist. Knox No. 2011-CA-3, 2011-Ohio-6120, ¶ 34 (interpreting
R.C. 2919.22[A]).
{¶ 42} However, the Ohio Supreme Court recently clarified the applicability of R.C.
2901.21(B) in State v. Tolliver, Slip Opinion No. 2014-Ohio-3744. There, the Court specified:
R.C. 2901(B) * * * applies only if "the section defining an offense
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does not specify any degree of culpability." If the section already requires proof of a culpable mental state for any element of the offense in any division or subdivision, R.C. 2901.21(B) does not apply, and the state need prove culpability only as specified in the section.
Id. at paragraph one of the syllabus.
{¶ 43} Therefore, the text of R.C. 2901.21(B) identifies two conditions that must exist
before a court can read recklessness into an offense. "First, the 'section' defining the offense
must not specify 'any degree of culpability,' meaning that the section does not already require
proof of a culpable mental state for any element of the offense in any division or subdivision.
Second, the section must not plainly indicate a purpose to impose strict liability." Id. at ¶ 15
(citations omitted).
{¶ 44} In the present case, appellant was convicted of endangering children under
R.C. 2919.22(B)(6), which provides:
(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
(6) Allow the child to be on the same parcel of real property and within one hundred feet of, or, in the case of more than one housing unit on the same parcel of real property, in the same housing unit and within one hundred feet of, any act in violation of section 2925.04 or 2925.041 of the Revised Code when the person knows that the act is occurring, whether or not any person is prosecuted for or convicted of the violation of section 2925.04 or 2925.041 of the Revised Code that is the basis of the violation of this division.
(Emphasis added.) Thus, unlike O'Brien and Adams, which involved other offenses
constituting the crime of endangering children, R.C. 2919.22(B)(6) does specify a culpable
mental state. The state is required to prove the offender allowed the children on the property
* * * when the person knows that a violation of R.C. 2925.4 or 2925.041 is occurring. As a
result, R.C. 2901.21(B) does not apply and recklessness is not read into the offense because
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R.C. 2919(B)(6) does require proof of a culpable mental state for an element of the offense.
Accordingly, recklessness was not required in the indictment or in the jury instructions.
{¶ 45} However, even if we were to find that "reckless" is a required element of R.C.
2919.22(B)(6), we would still find appellant's arguments unpersuasive.
A. Indictment
{¶ 46} First, appellant's indictment provided him with effective notice of the charges
against him, even if the state had been required to prove "recklessness." The Ohio Supreme
Court has held that when an indictment fails to charge a mens rea element of the crime, but
tracks the language of the statute describing the offense, the indictment provides the
defendant with adequate notice of the charges against him and is therefore, not defective.
State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, ¶ 45; State v. Wesson, 137 Ohio St.3d
309, 2013-Ohio-4575, ¶ 24. In so doing, the Court reasoned that a "criminal offense must be
charged with reasonable certainty in the indictment so as to apprise the defendant of that
which he may expect to meet and be required to answer; so that the court and jury may know
what they are to try, and the court may determine without unreasonable difficulty what
evidence is admissible." Horner ¶ at 45; Wesson at ¶ 24.
{¶ 47} Here, the indictment "tracks" the language of R.C. 2919.22(B)(6) and specified:
That, John Chancey Dougherty, on or between the 1st day of July, 2012 and the 29th day of September, 2012, in the County of Preble and State of Ohio, aforesaid, to a child under eighteen years of age, did, allow the child to be on the same parcel of real property and within 100 feet of, or in the case of more than one housing unit on the same parcel of real property, in the same housing unit and within 100 feet of, any act in violation of section 2925.04 or 2925.041 of the Revised Code, when the person knows that the act is occurring, whether or not any person is prosecuted or convicted of the violation in section 2925.04 or 2925.041 of the revised code that is the basis of the violation of this division; this is in violation of Ohio Revised Code Section 2919.22(B)(6), entitled, "Endangering Children," a felony of the third degree, contrary to the statute in such case made and
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provided; and against the peace and dignity of the State of Ohio.
Accordingly, appellant was not denied adequate notice of the charges against him and the
indictment was not defective.
B. Jury Instruction
{¶ 48} Second, the trial court's jury instructions would not have amounted to plain
error. As previously noted, recklessness is not an element of R.C. 2912.22(B)(6). The trial
court's instruction for endangering children provided:
The Defendant is charged with Endangering Children. Before you can find the Defendant guilty, you must find beyond a reasonable doubt that on or between the 1st day of July, 2012 and the 29th day of September, 2012, and in Preble County, Ohio, the Defendant did allow a child under 18 years of age to be on the same parcel of real property and within 100 feet of any act in violation of section 2925.04 (Illegal Manufacture of Drugs) or 2925.041 (illegal Assembly or Possession of Chemicals for the Manufacture of Drugs) [sic] of the Revised Code when the person knows that the act is occurring, whether or not any person is prosecuted for or convicted of the violation of section 2925.04 or 2925.041 of the Revised Code that is the basis of the violation of this division.
Knowingly means that a person is aware of the existence of the facts and that his acts will probably cause a certain result to be of a certain nature.
Appellant did not object to this jury instruction at trial.
{¶ 49} "As a general rule, a defendant is entitled to have the jury instructed on all
elements that must be proved to establish the crime with which he is charged, and, where
specific intent or culpability is an essential element of the offense, a trial court's failure to
instruct on that mental element constitutes error." State v. Wamsley, 117 Ohio St.3d 388,
2008-Ohio-1195, ¶ 17, citing State v. Adams, 62 Ohio St.2d 151, 153 (1980). The Ohio
Supreme Court has held, however, that the failure to instruct on each element of an offense
is not necessarily reversible as plain error. State v. Cope, 12th Dist. Butler No. CA2009-11-
285, 2010-Ohio-6430, ¶ 56; Wamsley at ¶ 1. "This caution is born of sound policy. For to
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hold that an error is structural even when the defendant does not bring the error to the
attention of the trial court would be to encourage defendants to remain silent at trial only later
to raise the error on appeal where the conviction would be automatically reversed." Wamsley
at ¶ 28. Therefore, "[i]nstructions that, in their totality, are sufficiently clear to permit the jury
to understand the relevant law will not be the cause of a reversal upon appeal." State v.
Stevens, 5th Dist. Morgan No. 07-CA-0004, 2008-Ohio-6027, ¶ 44.
{¶ 50} In the present case, the trial court's failure to include recklessness in the jury
instruction would not have amounted to plain error because the instructions were sufficiently
clear to permit the jury to understand the relevant law. The central issue presented to the
jury was whether appellant allowed Miller's children to be on the property and within 100 feet
of the methamphetamine lab based on his knowledge of the situation. In addition to the
instructions provided by the trial court, which essentially mirrored the statutory language for
the offense, the issues were clearly defined and argued by the parties during closing
argument. Simply, the outcome of the trial would not clearly have been different but for the
alleged error. Cope, 2010-Ohio-6430 at ¶ 62 (affirming a conviction involving an allegedly
erroneous trial instruction where "the outcome of the trial would not clearly have been
different but for the alleged error"). Accordingly, appellant's second assignment of error is
overruled.
{¶ 51} Assignment of Error No. 5:
{¶ 52} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY COMMENTING
TO THE JURY ON THE SUFFICIENCY AND WEIGHT OF THE EVIDENCE PRIOR TO
VERDICT.
{¶ 53} In his fifth assignment of error, appellant alleges the trial court committed
reversible error by making improper comments regarding the sufficiency and weight of the
evidence. As support, appellant references a statement made by the trial court, which
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explained why the jury would only be considering one of the charges listed in the indictment:
THE COURT: Have a seat. All right. The State has indicated -- the State asked that its exhibits be admitted and they have been admitted. We had a conference. As a result of that conference, the Court has dismissed the charges contained in Counts 1, 2, 3, and 5 of the indictment.
It's simply been my judgment that the state has not proved the elements of each -- has not proved every element of each of those offenses beyond a reasonable doubt and it's my judgment that a finding of guilty based on the evidence presented is not possible.
There is one Count that remains. That is the charge of Child Endangering. So you're going to hear an argument -- of course the State doesn't agree with my decision with respect to Counts 1, 2, 3, and 5. That happens. But there's going to be an argument with respect to the law on Count 4 only and the case will be submitted to the jury with respect to that charge. And you will determine whether or not there's sufficient evidence -- you will determine whether or not the State has proved each and every element of that charge beyond a reasonable doubt.
{¶ 54} Because appellant's trial counsel failed to object to the trial court's statement,
this assignment of error is also subject to the plain-error standard of review. State v. McCoy,
12th Dist. Butler No. CA91-07-126, 1992 WL 185684, *3 (Aug. 3, 1992); State v. Sharp, 12th
Dist. Butler No. CA2009-09-236, 2010-Ohio-3470, ¶ 112. Under a plain error analysis, a
reviewing court will not reverse a conviction based on a trial court's instruction "unless, but for
the error, the outcome of the trial clearly would have been otherwise." State v. Underwood, 3
Ohio St.3d 12, 14 (1983).
{¶ 55} In exercising its duty to control criminal proceedings, a trial court must always
be aware of the effect of its comments or remarks upon the jury. Sharp at ¶ 113, citing State
v. Wade, 53 Ohio St.2d 182, 187 (1978), vacated and remanded on other grounds Wade v.
State, 438 U.S. 911, 98 S.Ct. 3138 (1978). This is because "[i]t is well known * * * that juries
are highly sensitive to every utterance by the trial judge." State v. Gilbert, 12th Dist. Butler
No. CA2010-09-240, 2011-Ohio-4340, ¶ 63.
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{¶ 56} Here, the trial court explained to the jury why they would only be considering
one charge instead of the five charges originally listed in the indictment. The trial court's
instruction further explained that the jury would have to determine whether the state proved
the elements of count four (endangering children) beyond a reasonable doubt. Although the
trial court could have used different words or further explained the process, it does not
appear that these comments denied appellant a fair trial, especially in light of the evidence
presented. See, e.g., Sharp at ¶ 117 ("While we believe that the trial court's instruction was
far from desirable, we are unable to say the instruction so prejudiced appellant as to warrant
reversal of his conviction").
{¶ 57} Moreover, the record reflects that the trial court did provide a cautionary
instruction during jury instructions: "[i]f during the course of the trial the Court said or did
anything that you consider an indication of the Court's view on the facts, you are instructed to
disregard it." This court has previously held that "[s]uch an instruction directs the jury to
disregard any statements that may have shown the trial court's view." State v. Vanloan, 12th
Dist. Butler No. CA2008-10-259, 2009-Ohio-4461, ¶ 26; Gilbert, 2011-Ohio-4340 at ¶ 65.
The presumption is the jury followed that instruction. Id. As such, appellant's fifth
assignment of error is overruled.
{¶ 58} Judgment affirmed.
S. POWELL, J., concurs.
M. POWELL, J., dissents.
M. POWELL, J., dissenting.
{¶ 59} I respectfully dissent from the majority's resolution of the first assignment of
error affirming the trial court's denial of appellant’s Crim. R. 29 motion for acquittal as I do not
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believe the state produced sufficient evidence that appellant "allowed" a child to be on the
same parcel of property and within 100 feet of the methamphetamine laboratory involved in
this case.
{¶ 60} To reiterate, R.C. 2919.22(B)(6) provides in pertinent part:
No person shall do any of the following to a child under eighteen years of age ***: *** Allow the child to be on the same parcel of real property and within one hundred feet of, or, in the case of more than one housing unit on the same parcel of real property, in the same housing unit and within one hundred feet of, any act in violation of section 2925.04 or 2925.041 of the Revised Code when the person knows that the act is occurring ***.
(Emphasis added.)
{¶ 61} As applied here, R.C. 2919.22(B)(6) prohibits a defendant from allowing a child
to be on a property and within 100 feet of an illegal drug manufacturing operation (the "allow"
element) when the defendant knows that the illegal operation is occurring (the "knowledge"
element). It is apparent from the juxtaposition of the two italicized phrases above that the
General Assembly did not equate "allow" with "knowledge" when it applied the former term to
the presence of a child on the property and the latter term to the presence of an illegal drug
manufacturing operation on the property. Something more than mere knowledge that a child
is upon the same parcel of property and within 100 feet of the illegal drug manufacturing
operation is required in order for one to violate the statute.
{¶ 62} The evidence is uncontroverted that appellant (1) was not a person with any
authority to exclude persons from the property upon which the methamphetamine laboratory
was located; (2) had no custodial or practical authority to remove Miller's three children from
the property; and (3) was not responsible for the establishment or operation of the
methamphetamine laboratory on the property (in fact, although not necessary under the
statute, it is relevant to the "allow" element that appellant was acquitted of illegal manufacture
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of drugs, and illegal assembly or possession of chemicals for the illegal manufacture of drugs
within the vicinity of a minor).
{¶ 63} Rather than articulating what is required in order to satisfy the "allow" element,
the majority instead focuses upon what the statute does not require (i.e., an interest in the
property or a special relationship with the children involved). I note that many Ohio criminal
statutes do not include the specifics as to how the statute may be violated. For instance, the
theft statutes do not specify how one must "obtain or exert control" over the property of
another, nor do the homicide statutes specify how one may "cause the death of another."
That R.C. 2919.22(B)(6) does not specify the precise status and conduct of one accused of
violating the statute does not mean that the accused's relationship with the child, his interest
in the property, or his involvement with the establishment and operation of the illegal drug
manufacturing are not relevant in determining whether the person "allowed" a child's
presence on the property.
{¶ 64} In support of their claim that having a special relationship with the children
involved is unnecessary to the commission of the offense, the majority cites the Sixth
Appellate District's opinion in McDade, 2007-Ohio-749, for the proposition that the "conduct
normally constituting the offense is manufacturing the volatile methamphetamine in the
presence of (anyone's) children." Id. at ¶ 54. Again, what is necessary and what is relevant
as to whether appellant "allowed" the children's presence on the property are entirely
separate concepts. Furthermore, two factors undermine the applicability of McDade to this
case. First, appellant, unlike the defendant in McDade, did not manufacture
methamphetamine in the presence of anyone's children. The trial court acquitted appellant
of involvement in the manufacturing of methamphetamine after finding the evidence against
him so weak, that even construing that evidence in a light most favorable to the prosecution,
no rational trier of fact could have found the essential elements of the offense proven beyond
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a reasonable doubt. Second, the quote cited by the majority from McDade did not in any
respect address the "allow" element of the offense. Rather, the Sixth Appellate District's
comment concerning the defendant's parental relationship with the children involved was in
connection with the court's rejection of such a relationship as a proper seriousness factor
under R.C. 2929.12(B)(6) for purposes of sentencing because it did not facilitate the offense.
{¶ 65} The majority relies upon three factors as having established the "allow" element
of the offense: (1) appellant's knowledge that methamphetamine was being manufactured on
the property, (2) appellant's acquiescence in the manufacture of methamphetamine on the
property, and (3) appellant's knowledge that the children were nearby. First, proof of the
separate and distinct "knowledge" element does nothing to establish the "allow" element.
Second, knowledge that someone has established a methamphetamine laboratory on their
property is not "acquiescence" in the operation of the drug laboratory. Finally, and as
discussed in more detail above, the statutory language belies any suggestion that mere
knowledge of the presence of children on the property is sufficient to satisfy the "allow"
element.
{¶ 66} The majority cites our opinion in Grundy for the proposition that it is
unnecessary that one charged with endangering children under R.C. 2919.22(B)(6) have a
special relationship with the child involved or an interest in the property in order to be
convicted. The majority also mentions with approval the state's argument that requiring an
interest in the property or a special relationship with the involved child would lead to an
absurd result such as the hypothetical that one may establish a methamphetamine laboratory
in a day care center and escape criminal liability under R.C. 2191.22(B)(6).
{¶ 67} Both Grundy and the state’s hypothetical are inapposite here. First, in Grundy,
the defendant was a resident of the property where the illegal drug laboratory was located
providing him with some physical control over the property. Additionally, and more
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significantly, in both Grundy and the state's hypothetical, the actor was responsible for the
establishment and operation of the illegal drug manufacturing operation. I do not necessarily
disagree that one who establishes and operates an illegal drug manufacturing operation on a
property where a child is present "allows" the child on the property, as such person may
prevent the violation by not operating the drug laboratory. In any event, neither Grundy nor
the state's hypothetical provide any guidance as appellant neither established nor operated
the methamphetamine laboratory here. Appellant clearly enjoyed the product of the illegal
drug manufacturing operation as he performed chores on the property in exchange for
finished methamphetamine. Nonetheless, appellant was nothing more than a lackey. He did
not have the authority or power to halt or end the illegal drug manufacturing operation.
{¶ 68} The definition of "allow" in either the Black's Law Dictionary or the Merriam-
Webster's Online Dictionary as set forth earlier likewise does not support the majority's
finding that appellant allowed the children to be on the property. Appellant did not "sanction,
either directly or indirectly," "acquiesce in," or "tolerate" the children's presence on the
property. Nor did appellant "permit," "forbear or neglect to restrain" the children to be on the
property. Appellant was merely aware that someone's children were present on a third
party's property where that third party operated a methamphetamine laboratory.
{¶ 69} There are apparently no decisions construing what constitutes "allow" for
purposes of R.C. 2919.22(B)(6). However, a review of decisions involving convictions under
the statute is instructive. See Wyatt, 2014-Ohio-3009 (defendant, the co-defendant to
appellant here, was the owner of the property upon which the methamphetamine was being
produced and the operator of the laboratory); State v. Highfield, 12th Dist. Brown No.
CA2013-05-007, 2014-Ohio-165 (defendant established and operated the methamphetamine
laboratory); Bailey, 2011-Ohio-6526, a case cited by the majority (defendant was a resident
of the premises where the methamphetamine manufacturing was occurring, was left in
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charge of the children, and was connected to the manufacture of methamphetamine or the
assembly of chemicals for that purpose); McDade, 2007-Ohio-749 (defendants were the
parents of the involved children and were operating the methamphetamine laboratory); State
v. Crosby, 5th Dist. Fairfield No. 13-CA-86, 2014-Ohio-3691 (defendant was the parent of the
child and residing in the home where methamphetamine was being produced); State v.
Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634 (defendant, the parent of the children
involved, resided at the home where the methamphetamine was manufactured and
established and operated the methamphetamine laboratory); State v. Williams, 9th Dist.
Summit No. 25716, 2011-Ohio-6604 (defendant resided in the residence and operated the
methamphetamine laboratory); State v. Lerch, 9th Dist. Summit No. 26684, 2013-Ohio-5305
(defendant moved her child into the home where methamphetamine was being
manufactured); and State v. Campbell, 11th Dist. Ashtabula No. 2013-A-0047, 2014-Ohio-
972 (defendant resided at the residence where the methamphetamine laboratory was located
and operated the laboratory).
{¶ 70} In all of these cases, the defendant had some interest in the property where the
illegal manufacturing of drugs was occurring by way of residence there or otherwise, had a
custodial, parental, or in loco parentis relationship with the children involved, was involved
with the establishment or operation of the illegal drug laboratory, or had some combination of
the foregoing. Here, none of those factors is present.
{¶ 71} In order to "allow" something, one must have a legal or practical ability to
prevent it. It defies logic that one can be charged with allowing something he or she is
powerless to prevent. I suggest, that at a minimum, satisfaction of the "allow" element of
R.C. 2919.22(B)(6) requires some showing that the accused has some authority to exclude
persons from the property where an illegal drug laboratory is located, some relationship with
the children involved pursuant to which the accused has the legal or practical authority to
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remove the children from the premises, or involvement with the establishment or operation of
the illegal drug laboratory such that he may cease its operation. Here, it was only proven that
appellant was aware of the presence of the children on the property where
methamphetamine was being manufactured. This evidence is insufficient to satisfy the
"allow" element of R.C. 2919.22(B)(6).
{¶ 72} I do not disagree with the majority's characterization of appellant as something
other than "an innocent bystander" in this situation. However, the trial court and this court
are not called upon to determine whether appellant enjoys general innocence here, but
rather, whether he engaged in conduct specifically proscribed by the statute.
{¶ 73} I would therefore reverse the trial court's denial of appellant's Crim. R. 29
motion for acquittal as set forth in the first assignment of error and discharge appellant (thus
rendering all other assignments of error moot).
{¶ 74} With regard and respect for my colleagues in the majority, I dissent.
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