[Cite as State v. Graham, 2022-Ohio-3000.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-21-12
v.
MARQUIS J. GRAHAM, OPINION
DEFENDANT-APPELLANT.
PLAINTIFF-APPELLEE, CASE NO. 15-21-13
Appeals from Van Wert Municipal Court Trial Court Nos. CRB 2100082 and CRB 2100083
Judgments Affirmed
Date of Decision: August 29, 2022
APPEARANCES:
Thomas J. Lucente, Jr. for Appellant
Ben J. Bilimek for Appellee Case Nos. 15-21-12, 15-21-13
SHAW, J.
{¶1} Defendant-appellant, Marquis J. Graham (“Graham”), brings these
appeals from the November 29, 2021 judgment entries of the Van Wert Municipal
Court wherein Graham’s two convictions for endangering children were
journalized. On appeal, Graham argues that there was insufficient evidence
presented to convict him of both counts of endangering children, that his convictions
were against the manifest weight of the evidence, and that he received ineffective
assistance of trial counsel.
Background
{¶2} In late 2020/early 2021, Graham was in a romantic relationship with
Brittany F. They resided together along with Brittany’s 3-year old son, S.C., in the
village of Middle Point in Van Wert County. Generally, when Brittany went to work
for her 12-hour shifts, Graham took care of S.C. Although Graham was not S.C.’s
biological father, he was trying to be a “parent figure” for him. (Tr. at 153).
{¶3} On February 4, 2021, while Brittany was at work and S.C. was in
Graham’s care, S.C. sustained multiple injuries and was vomiting blood. Once
Brittany came home from work she took S.C. to the emergency room and he was
treated for his injuries. Graham claimed that S.C. was injured by falling; however,
the doctor that examined S.C. diagnosed S.C. with “nonaccidental trauma.” (State’s
Ex. 5). S.C. also told the doctor that Graham had “spanked” him in the head.
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{¶4} Law enforcement and children’s services investigated the matter and
during their investigation they learned of a prior incident wherein S.C. sustained
injuries while solely in Graham’s care. On December 10, 2020, Graham sent a text
message to Brittany indicating that he had “cracked [S.C.’s] ass legitimately[.]”
(State’s Ex. 13). Photographs of bruising to S.C. on multiple parts of his body were
taken near the date in question by S.C.’s step-great-grandmother.
{¶5} On March 2, 2021, Graham was charged in trial court case
CRB2100082 with endangering children in violation of R.C. 2919.22(A), a first
degree misdemeanor. This charge was related to the December 10, 2020 incident.
On that same date, Graham was charged in trial court case CRB2100083 with
endangering children in violation of R.C. 2919.22(A), a first degree misdemeanor.
This charge was related to the February 4, 2021 incident.
{¶6} Graham pled not guilty to the charges and he proceeded to a
consolidated bench trial wherein he was convicted in both cases. In trial court case
CRB2100082 Graham was placed on 2 years of probation and given a suspended
jail sentence of 180 days. In trial court case CRB2100083 Graham was sentenced
to serve 180 days in jail. Final judgment entries memorializing Graham’s sentences
were filed November 29, 2021. It is from these judgments that Graham appeals,
asserting the following assignments of error for our review.
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Assignment of Error No. 1 Appellant’s convictions for child endangerment were against the manifest weight of the evidence and contrary to law.
Assignment of Error No. 2 The defendant’s right to due process of law was violated inasmuch as the convictions for child endangerment w[ere] based on insufficient evidence.
Assignment of Error No. 3 Defendant was denied the effective assistance of counsel as required by the Sixth Amendment to the U.S. Constitution.
{¶7} We elect to address the assignments of error out of the order in which
they were raised.
Second Assignment of Error
{¶8} In his second assignment of error, Graham argues that there was
insufficient evidence presented to convict him in both endangering children cases.
Standard of Review
{¶9} “Whether the evidence is legally sufficient to sustain a verdict is a
question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Groce,
163 Ohio St.3d 387, 2020-Ohio-6671, ¶ 6. Therefore, our review is de novo. In re
J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, ¶ 3. In a sufficiency-of-the-evidence
inquiry, the question is whether the evidence presented, when viewed in a light most
favorable to the prosecution, would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus (superseded by constitutional
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amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102,
(1997), fn. 4) following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
Controlling Statute
{¶10} In this case Graham was convicted of two counts of endangering
children in violation of R.C. 2919.22(A), which reads as follows:
(A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. * * *
Evidence Presented by the State
{¶11} Brittany F. went to work shortly before 7 a.m. on February 4, 2021. At
the time she went to work, her 3-year old son, S.C., had no discernable injuries.
S.C. was left in the care of Brittany’s live-in boyfriend, Graham.
{¶12} According to Brittany, at around 10:40 a.m. she received a message
from Graham that S.C. had “thrown up a large amount.” (Tr. at 132). Graham
indicated that he and S.C. had been “roughhousing like they usually did” prior to
S.C. vomiting. Graham was worried because the vomit looked like “coffee
grounds,” which Brittany was concerned might be blood. (Id.)
{¶13} Brittany was unable to leave work to return home until 3 p.m. Because
she worked in the “Covid unit” that day, she showered immediately upon returning
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home. Afterward, when she observed S.C., she noticed a bruise on his forehead and
some discoloration with one of his eyes. Brittany asked S.C. what happened and
S.C. stated that he tripped over his slide. Brittany then took S.C. to the emergency
room. Graham did not go with her.
{¶14} S.C. was examined at the hospital and he was found to have bruising
to his face, and upper left foot. He had superficial excoriations on his face, the back
of his neck, and above and behind his left ear. S.C. had “deeper contusions at the
corner of the left eye, lateral to the right eye, chest, and top of foot.” (State’s Ex.
5).
{¶15} When the emergency room doctor asked S.C. how he was injured, S.C.
said that he was “spanked in the head.” (Tr. at 41). The doctor recalled S.C. stating
that he was held against a wall and at some point he was “thrown down on the floor.”
(Id.) S.C. identified “Marquis” as the culprit. (Id. at 40). Some tests were run on
S.C. and photographs of his injuries were taken.
{¶16} After examining S.C., the doctor felt that the blood in the child’s vomit
was most likely from blood in the nose dripping into the stomach. The doctor’s
ultimate diagnosis of S.C. was “nonaccidental trauma.” (State’s Ex. 5).
{¶17} Meanwhile, once Brittany left home to take S.C. to the emergency
room, Graham began sending Brittany text messages. At one point Graham sent a
message to Brittany that read, “* * * I just have a feeling that you think I’m beating
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your child and your [sic] trying to get answers on what you should do[.]” State’s
Ex. 13). He then added, “And it’s a strong feeling.” (Id.)
{¶18} While Brittany and S.C. were at the hospital, Graham sent a text
message asking for an update. Brittany was busy being interviewed and dealing with
S.C. so she did not respond often or quickly. Graham then sent a message saying
“Since you don’t wanna answer I’m packing my shit and I’m leaving I’ll bring your
car back in the morning or do you want me to find a ride[]?” (Id.) Brittany replied
that CPS had to be called because of the bruises on S.C. and she could not answer
at the moment.
{¶19} Both Brittany and Graham were interviewed by police. Law
enforcement felt that Graham’s explanations during his interview were not
consistent with the injuries to S.C. Further, while the matter was being investigated,
law enforcement became aware of another incident wherein S.C. had been injured
while in Graham’s care in December of 2020.
{¶20} S.C.’s “step-great grandmother” testified that in December of 2020 she
received S.C. to care for him and she found numerous bruises on S.C.’s body,
including one in a “belt pattern.” She took photographs of the injuries and they were
introduced into evidence at trial.
{¶21} Graham acknowledged that S.C. was in his care when he was injured
in December of 2020, but he claimed that the injuries occurred when S.C. fell off of
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a swiveling bar stool and hit his head. Despite telling this story to Brittany, S.C.’s
father, and law enforcement, Graham sent text messages in December that called
his story into question. On December 3, 2020, Graham sent the following message
to Brittany regarding S.C.:
If you want me to treat him the way I was treated growing up he’d be covered in bruises by the time you get home and my deal is you keep fucking questioning me like I don’t know what I’m doing I’m a grown ass man, who’s been down this road more time [sic] than you are old so none of this shit ain’t knew [sic] to me but fasho [sic] the doors locked and he’s in his room I’m gone[.]
(State’s Ex. 13).
{¶22} On December 10, 2020, the following text exchange occurred between
Graham and Brittany:
GRAHAM: I figured well I just talked to [S.C.] about yesterday and him putting his hands around your next [sic] and he wouldn’t give me any other answer besides cause I wanted to so I cracked his ass legitimately and he’s gonna spend the whole day in his room no toys no tv no nothing cause I don’t play that and if you got a problem with that you can find somebody else to play stepdad or you can go back to dealing with it yourself but I don’t play that shit what so ever [sic] I don’t care how old your [sic] never supposed to do that cause your [sic] not getting your way
***
BRITTANY: Babe I wasn’t going to say anything ? As long as he gets fed (which I know you’ll do) and gets to go pee, I understand his punishment
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GRAHAM: Okay that’s fine but we’re gonna have to make a new child because I’m gonna kill the one you got… he was supposed to be eating but instead he’s playing the fucking chair and ends up falling over with the damn chair and now he has a big bruise on the back of his head he said he’s okay and it didn’t hurt but it look kinda bad babe
I didn’t whoop him for it cause him falling was enough I just yelled at him for playing in the damn chair we’re gonna have to go back to him eating at his little table from now on cause this can’t happen again
Call me if you wanna know more[.]
(Id.)
{¶23} A few days later, on December 13, 2020, the following text exchange
occurred between Graham and Brittany:
GRAHAM: I already know you think I did it so why won’t you just tell me that ?
BRITTANY: Because I don’t think you did it ? I know you love my son and wouldn’t deliberately hurt him
You’ve claimed him as one of your own before, and I know you wouldn’t hurt your kids… it hurts me that you think that I think you did it
GRAHAM: Cause I know you… but whatever might as well get blamed for it since everybody already thinks I did it
BRITTANY: Babe listen to me, we will talk to him and get this figured out. You’re not the villain to our little Spider-Man
GRAHAM: I love the fact you think I be playing or love talking to hear myself talk…. So therefore like I said you can handle it all again from talkin to his daddy to everything else I’m not doing it anymore[.]
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{¶24} It was approximately sometime during the December 2020 dates that
these text messages were exchanged that the photographs of bruising on S.C.’s body
were taken by S.C.’s step-great-grandmother.
Analysis
{¶25} Graham contends that the preceding evidence presented at trial was
insufficient to convict him of endangering children as charged in the complaints.
Specifically, he argues that the evidence did not establish that he was acting “in loco
parentis” or that he “created a substantial risk to the health or safety of the child,”
by violating a duty of care, protection, or support. In fact, Graham argues that the
“bulk” of the evidence presented at trial was in an attempt to show that he abused
S.C., which he contends could be sufficient for a prosecution of endangering
children under R.C. 2919.22(B)’s specific “abuse” subsection,1 but the evidence
could not establish the different elements regarding creating an “environment” that
was a “substantial risk” to the child as contained in R.C. 2919.22(A). In essence,
Graham argues that he was charged with the wrong subsection of endangering
children and that his actions here, even when viewed in the light most favorable to
the State, did not satisfy the elements of the crimes he was convicted of.
1 Revised Code 2919.22(B)(1) reads, “No person shall do any of the following to a child under eighteen years of age * * * (1) Abuse the child[.]”
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{¶26} At the outset, we can readily reject Graham’s argument that he did not
stand in loco parentis to S.C. While living with Brittany and S.C. would not alone
make Graham in loco parentis of S.C., State v. Powers, 4th Dist. Scioto No.
19CA3868, 2020-Ohio-7042, ¶ 90, Graham undertook the role of sole caretaker of
S.C. while Brittany worked 12-hour shifts. During these times, Graham was solely
responsible for bathing the child, feeding the child, disciplining the child, and
otherwise caring for the child’s well-being. Brittany described S.C.’s relationship
with Graham as: “[S.C.] knew the difference between a dad and a father, but [S.C.]
knew that [Graham] was a parent figure that he could have gone to when he needed
something.” (Tr. at 153).
{¶27} “A person who stands in loco parentis to a child has assumed similar
duties to that of a guardian or custodian, only not through a legal proceeding.” State
v. Noggle, 67 Ohio St.3d 31, 1993-Ohio-189. When viewing the evidence in the
light most favorable to the State, we do not find that insufficient evidence was
presented to establish that Graham was acting in loco parentis of S.C.
{¶28} Next, Graham’s contention that acts of affirmative abuse are not
covered under R.C. 2919.22(A) and must be charged under R.C. 2919.22(B) has
been directly rejected by multiple Ohio Appellate Courts. In State v. Cook, 1st Dist.
Hamilton No. C-210142, 2021-Ohio-3841, ¶ 20, the First District Court of Appeals
determined that an individual recklessly created a substantial risk to a child’s health
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under R.C. 2919.22(A)—the same statute that was charged here—where the child
“was only four years old, [the defendant] lifted him by his neck, slammed him face-
first onto the trunk of a hot car, and hit him on the head.” In making its finding, the
First District reasoned that “Acts of affirmative abuse are covered within R.C.
2919.22(A), including ‘where a defendant has failed to protect the child from harm
inflicted upon the child while in the defendant's care,’ even when the defendant is
the person who inflicted the harm.” Id. at ¶ 15, quoting State v. Klofta, 2d Dist.
Montgomery No. 28690, 2020-Ohio-5032, ¶ 32; State v. Gaver, 5th Dist. Stark No.
2015CA00204, 2016-Ohio-7055.
{¶29} Cook, and the other Ohio appellate cases cited in Cook establish that
physical abuse can be properly charged under both R.C. 2919.22(A) and R.C.
2919.22(B) provided that the elements of the respective statutes are met.
Importantly, the elements of R.C. 2919.22(A) were found to be met in Cook where
the victim did not even have visible injuries. Here we have visible, documented,
injuries to the child that a doctor specifically determined were from “nonaccidental
trauma.” Thus the evidence in this case was even stronger than what was found to
be sufficient for a prosecution of R.C. 2919.22(A) in Cook.
{¶30} In sum, when viewing the evidence in the light most favorable to the
State as we are directed, we do not find that there was insufficient evidence
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presented to convict Graham of two counts of endangering children. For all of these
reasons, Graham’s second assignment of error is overruled.
First Assignment of Error
{¶31} In his first assignment of error, Graham argues that even if there was
sufficient evidence presented to convict him in both trial court cases, his convictions
were against the manifest weight of the evidence.
{¶32} In reviewing whether a verdict was against the manifest weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing
so, this Court must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses and determine whether
in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Id.
{¶33} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to 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
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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.
Evidence Presented by the Defense
{¶34} Graham testified in his own defense that he initially had a good
relationship with Brittany and that he was “trying to be [S.C.]’s father, without being
his father, if that makes sense.” (Tr. at 158). Graham described himself as the cook
of the house, and indicated that he regularly took care of S.C. while Brittany worked.
{¶35} As to the December 2020, incident, Graham stated that S.C. was alone
in the next room when Graham heard a “loud crash.” (Tr. at 159). Graham testified
that when he came into the room where he heard the crash S.C. was trying to “pick
the chair up.” (Id.) Graham claimed that he asked S.C. what was wrong and S.C.
said that he fell. Graham testified that after the incident he called Brittany and S.C.’s
father to tell them about it. As to his text message where he said that he
“legitimately” “cracked” S.C., he testified that he did not actually do that despite
what he said.
{¶36} Regarding the February 4, 2021 incident, Graham testified that he was
in the living room when he heard a “crash” from S.C.’s bedroom. Graham went in
and looked and S.C. was going to the bathroom. Graham testified that he thought
S.C. had fallen over the slide in his room but he was not sure. Graham emphasized
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that he had spanked the child and had roughhoused with him but he had never
intentionally harmed the child.
{¶37} In arguing that his conviction was against the manifest weight of the
evidence, Graham again argues that he was essentially charged with the wrong
endangering children subsection. We rejected this argument already and we do so
again now. State v. Cook, 1st Dist. Hamilton No. C-210142, 2021-Ohio-3841, ¶ 20.
{¶38} Graham also contends that even if there was sufficient evidence to
show that he was acting in loco parentis of S.C., such a finding was against the
weight of the evidence. However, Graham’s own testimony only further supported
the fact that he was acting in loco parentis. He stated that he was trying to be S.C.’s
father, that he was the cook and caregiver, that he disciplined S.C., and that he was
alone with S.C. when S.C. was injured. Therefore Graham’s argument is not well-
taken.
{¶39} Finally, as to Graham’s claim that he had never intentionally harmed
S.C., the mental culpability required for the crimes in question was recklessness,
not purposeful. State v. McGee, 79 Ohio St.3d 193, 1997-Ohio-156. The trial court,
acting as factfinder, was free to examine the evidence, weigh it, determine the
credibility of the witnesses, including Graham, and find beyond a reasonable doubt
that Graham acted at least in a reckless manner.
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{¶40} In sum, after reviewing all of the evidence, and giving deference to the
trial court’s credibility determinations, State v. DeHass, 10 Ohio St.2d 230, 231
(1967), we do not find that the trial court clearly lost its way or created a manifest
miscarriage of justice in this matter by convicting Graham of two counts of
endangering children. Therefore, Graham’s first assignment of error is overruled.
Third Assignment of Error
{¶41} In his third assignment of error, Graham argues that he received
ineffective assistance of trial counsel.
{¶42} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) 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, 104 S.Ct. 2052 (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 at 689; State
v. Harris, 3d Dist. Allen No. 1-21-30, 2021-Ohio-4559, ¶ 6.
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{¶43} Graham first argues that his counsel was deficient because his attorney
failed to make a Crim.R. 29 motion for acquittal. While it is certainly the better
practice for an attorney to make a Crim.R. 29 motion for acquittal in order to test
the evidence in the trial court, there is no resulting prejudice for the failure to make
such a motion.
{¶44} When an attorney makes a Crim.R. 29 motion for acquittal it
technically preserves the sufficiency of the evidence argument under the
“prejudicial” error standard of review rather than the “plain error” standard of
review; however, this difference regarding standards with respect to sufficiency of
the evidence has repeatedly been described as “academic” when considering
Crim.R. 29 motions on appeal. E.g. State v. Sepulveda, 3d Dist. Mercer No. 10-16-
03, 2016-Ohio-7177, ¶ 17; State v. Klein, 3d Dist. Union No. 14-12-09, 2013-Ohio-
2387, ¶ 30, citing Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-Ohio-4221, ¶
75 (6th Dist.). “Regardless of the standard used, ‘a conviction based on legally
insufficient evidence constitutes a denial of due process,’ and constitutes a manifest
injustice.” State v. Klein, 3d Dist. Union No. 14-12-09, 2013-Ohio-2387, ¶ 30,
quoting Thompkins, 78 Ohio St.3d at 386–387, citing Tibbs v. Florida, 457 U.S. 31,
45, 102 S.Ct. 2211 (1982), and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781
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(1979). Thus under either the prejudicial error standard or the plain error standard,
a conviction based upon insufficient evidence would result in reversal.
{¶45} Here, we have reviewed the evidence presented and found it to be
sufficient to support the convictions on the state’s evidence alone, even without
consideration of Graham’s testimony, thus a Crim.R. 29 motion would not have
been properly granted in this matter. Therefore we do not find ineffective assistance
of counsel for trial counsel’s failure to raise this issue.
{¶46} Graham next claims that his attorney was ineffective for failing to call
other potential witnesses. Specifically, he suggests that his attorney should have
called a witness to show that S.C. was anemic and prone to bruising. Notably,
Graham’s attorney asked questions at trial about whether S.C. was anemic and he
never received a response that S.C. was actually anemic. We do not find ineffective
assistance of counsel based on speculation that another witness would have testified
that S.C. was anemic. Moreover, even if S.C. was anemic and he did bruise easily,
it would not change the facts of what occurred, and we find no resulting prejudice.
Therefore, Graham’s argument is not well-taken, and Graham’s third assignment of
error is overruled.
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Conclusion
{¶47} For the foregoing reasons Graham’s assignments of error are overruled
and the judgments of the Van Wert Municipal Court are affirmed.
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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