[Cite as State v. Howe, 2024-Ohio-5143.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-10-014
: OPINION - vs - 10/28/2024 :
JAMES HOWE, :
Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. AD20230365
Jess Weade, Fayette County Prosecuting Attorney, and Andrew Sievers, Assistant Prosecuting Attorney, for appellee.
Steven H. Eckstein, for appellee.
BYRNE, J.
{¶ 1} James Howe appeals from his conviction for misdemeanor child
endangering in the Fayette County Court of Common Pleas, Juvenile Division. For the
reasons discussed below, we affirm. Fayette CA2023-10-014
I. Factual and Procedural Background
{¶ 2} In August 2023, a police officer filed a complaint in the Fayette County Court
of Common Pleas, Juvenile Division, charging Howe with endangering children in
violation of R.C. 2919.22(B)(1), a misdemeanor of the first degree. The charge stemmed
from allegations that Howe abused the minor victim, "William,"1 by grabbing and
squeezing William's face, leaving red marks. Howe is the boyfriend of William's mother
("Mother"). William's father ("Father") brought the matter to the attention of police.
{¶ 3} The matter proceeded to a bench trial in October 2023. We will summarize
the key trial testimony below.
A. The Trial - State's Case
1. Father's Testimony
{¶ 4} Father testified that William was born in September 2017 (meaning that he
was five years old on the date of the injury at issue in this case and six years old at the
time of trial). Father was divorced from Mother. Mother had custody of William and Father
had weekly visitation with William from Thursday to Monday.
{¶ 5} On Thursday, July 20, 2023, Father travelled to Mother's home in Fayette
County to pick up William for his visitation time. Father believed that only Howe was
present during the exchange. Father did not recall Mother being home. He had no
discussion with anyone and left with William.
{¶ 6} Father testified that he did not notice anything wrong at the time of the pick-
up, but he did notice that William was "messy," like he had been playing. After Father and
William arrived home, Father and his wife gave William a bath. Father's wife pointed out
that there was a bruise on William's face. The bruise was on his cheek underneath his
1. "William" is a pseudonym adopted in this opinion for the purposes of privacy and readability. In re D.P., 2022-Ohio-4553, ¶ 1, fn. 1 (12th Dist.). -2- Fayette CA2023-10-014
eye, and Father described it as a "pretty big, prominent bruise." There were two parts to
the bruise, upper and lower.
{¶ 7} Father contacted the police department where he lived in Greene County.
The police suggested he contact Fayette County. Father called Fayette County Children's
Services but he did not receive a return call. Eventually, on July 22, Father took William
to the police department in Fayette County, where the police took some photographs of
William and said that they were going to report the incident to Children's Services.
{¶ 8} Father identified State's Exhibit 1, which was a photograph of William taken
at the police station. The photograph consists of a profile view of the right side of William's
face. Adjacent to William's mouth, in the cheek area, there are two prominent red marks,
approximately penny-sized. One mark is on the same level as William's mouth and the
other mark is slightly below this mark, even with his chin. Less prominent redness appears
between the two prominent marks. It is apparent from the depth of the red color, as
compared to the rest of William's face, that it would take significant force to leave such
marks.
{¶ 9} Father stated that William complained that the bruise hurt and that it was
sore for about three days. The bruise lasted for one week.
2. Patrolman Adam Rummer's Testimony
{¶ 10} Patrolman Adam Rummer testified that he was dispatched to meet with
William and Father. He observed marks on William's right cheek and took a photograph.
No bruising had set in at that time. The mark was dark red, not black and blue. Patrolman
Rummer identified State's Exhibit 1 as the photograph he took.
{¶ 11} Patrolman Rummer directed Father to contact Children's Services. Later,
after speaking with Children's Services, Patrolman Rummer filed a criminal summons for
Howe.
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3. Taryn Fraley's Testimony
{¶ 12} Taryn Fraley testified that she was an investigator for Fayette County
Children's Services. Fraley was assigned to investigate William's case.
{¶ 13} Fraley met with Father and observed the marks on Wiliam's face on July
24, 2023. On that day, the marks were more "purple" than what was depicted in State's
Exhibit 1.
{¶ 14} Fraley also interviewed Howe on July 24, 2023. Howe told her that he knew
about the marks on William's face. Howe told Fraley that he was playing around with
William and "squeezed" William's face but did not mean to squeeze as hard as he did.
He said that it was an accident. Howe specifically said, "I squeezed his face playing
around Taryn. You know I play around with him. It was an accident."
{¶ 15} Fraley also spoke to Mother, who at that time was incarcerated.2 After Howe
made his admissions, Mother agreed to a safety plan in which William would stay with
Father.
{¶ 16} Fraley interviewed Howe a second time, with Mother present. Both told
Fraley the same story that Howe had initially told Fraley—that is, that Howe was "playing
around" with William and simply squeezed his face too hard.
B. The Trial – Defense Case
{¶ 17} Howe testified in his defense. Howe stated that he was not present when
Father picked up William on July 20. He said that he spent that week at the county fair
but clarified that he was only at the fair during the day, not at night.
{¶ 18} Howe demonstrated how he would play with children's faces, referring to
both William and his biological son. He admitted that he did leave marks on William's
2. On July 21, 2023, the day after Father picked up William, Mother and Howe were involved in a domestic violence incident that resulted in Mother going to jail. -4- Fayette CA2023-10-014
face "one time," but he claimed that those marks only lasted two hours.
{¶ 19} When confronted with State's Exhibit 1, Howe agreed that what was
depicted was consistent with abuse and that "It would take somebody to do it. Strong
and heavy-duty to do it, bigger fingers. No small fingers, looks like to me." But he denied
doing "it" and stated he did not know any reason why someone would do that to a child.
He added, "it's not right for a little kid to go through that kind of abuse."
C. Finding of Guilt and Appeal
{¶ 20} After hearing the evidence, the juvenile court found Howe guilty of
misdemeanor child endangering as charged. Howe appealed, raising two assignments
of error, which we will address together.
II. Law and Analysis
{¶ 21} Howe's first assignment of error states:
THE TRIAL COURT ERRED IN FINDING THE DEFENDANT- APPELLANT GUILTY AS THE EVIDENCE PRESENTED WAS INSUFFICIENT TO CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A REASONABLE DOUBT IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
{¶ 22} Howe's second assignment of error states:
THE TRIAL COURT ERRED WHEN IT FOUND THE DEFENDANT-APPELLANT GUILTY AS SUCH VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 23} Howe argues that the state failed to submit sufficient evidence of "abuse" to
support his conviction for child endangering. Howe argues that R.C. 2919.22(B)(1)'s
language making it a crime to "[a]buse [a] child," as interpreted by this court, requires
evidence of an act that (1) inflicts serious physical harm or creates a substantial risk of
serious harm to the physical health or safety of a child, or (2) involves any form of cruelty
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to a child's physical, moral, or mental well-being. Howe argues that the injuries to
William's face were "de minimis" and did not rise to the level of "abuse" as defined above.
For the same reasons, Howe argues that his conviction was not supported by the greater
weight of the evidence.
A. Applicable Law
{¶ 24} "When reviewing the sufficiency of the evidence underlying a conviction, an
appellate court examines the evidence to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt beyond a reasonable doubt."
State v. Madden, 2024-Ohio-2851, ¶ 31 (12th Dist.), citing State v. Paul, 2012-Ohio-3205,
¶ 9 (12th Dist.). 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." State v. Jenks, 61
Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 25} "A manifest weight of the evidence challenge examines the 'inclination of
the greater amount of credible evidence, offered at a trial, to support one side of the issue
rather than the other.'" Madden at ¶ 32, quoting State v. Barnett, 2012-Ohio-2372, ¶ 14
(12th Dist.). To determine whether a conviction is against the manifest weight of the
evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
in resolving the 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. Graham, 2009-Ohio-2814, ¶ 66 (12th Dist.).
{¶ 26} In reviewing the evidence, an appellate court must be mindful that the
original trier of fact was in the best position to judge the credibility of witnesses and
determine the weight to be given to the evidence. State v. Blankenburg, 2012-Ohio-1289,
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¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the manifest weight
of the evidence only in the exceptional case in which the evidence weighs heavily against
the conviction. State v. Zitney, 2021-Ohio-466, ¶ 15 (12th Dist.).
{¶ 27} "Although the legal concepts of sufficiency of the evidence and weight of
the evidence are both quantitatively and qualitatively different, '[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. Billingsley, 2020-Ohio-2673, ¶ 15 (12th Dist.), quoting
State v. Jones, 2013-Ohio-150, ¶ 19 (12th Dist.).
B. Analysis
{¶ 28} R.C. 2919.22 defines the crime of endangering children. As relevant here,
one of that statute's subsections, R.C. 2919.22(B), provides that "No person shall do any
of the following to a child under eighteen years of age or a child with a mental or physical
disability under twenty-one years of age: (1) Abuse the child; . . ." We have previously
held that, in order to prove a violation of R.C. 2919.22(B)(1), the prosecution must prove
beyond a reasonable doubt,
(1) that the child is under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, (2) an affirmative act of abuse, and (3) which act was reckless, that is, perpetrated with heedless indifference to the consequences of the action.
(Cleaned up.) State v. Haley, 2013-Ohio-4123, ¶ 10 (12th Dist.), citing State v. Burdine-
Justice, 125 Ohio App.3d 707,713 (12th Dist.1998). In this appeal, Howe solely
challenges the second element—that is, whether the state proved that he abused
William—so we do not need to address the first and third elements.
{¶ 29} The verb "abuse" is not defined in R.C. 2919.22(B)(1). "When a word is not
defined in a statute, we look to its ordinary meaning—that is, how it would commonly be
understood in the context in which it occurs." State v. Allen, 2019-Ohio-4757, ¶ 4 (2019).
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When determining the ordinary meaning of a word that is not defined by statute, we may
look to dictionaries for guidance. Id.; Centerville v. Knab, 2020-Ohio-5219, ¶ 24; State ex
rel. Internatl. Assn. of Fire Fighters, Local 1536, AFL-CIO v. Sakacs, 2023-Ohio-2976, ¶
17-18.
{¶ 30} R.C. 2919.22 was enacted in 1972. 1972 Am.Sub.H.B. No. 511. At the
time, R.C. 2919.22(B)(1) stated that no person shall "torture or cruelly abuse the child."
The version of Black's Law Dictionary then in use defined the verb "abuse" as "[t]o make
excessive or improper use of a thing, or to employ it in a manner contrary to the natural
or legal rules for its use; to make an extravagant or excessive use, as to abuse one's
authority." Black's Law Dictionary (4th Ed. 1968). The version of Webster's Dictionary
then in use defined the verb "abuse" as "to use so as to injure or damage: maltreat," and
the noun "abuse" as "improper use or treatment" or "physical maltreatment." Webster's
New Collegiate Dictionary (7th Ed. 1971).
{¶ 31} Taken together, these definitions refer to cruel or violent behavior or
maltreatment that may include causing injury, but that does not necessarily require an
injury, let alone "serious" injury. These definitions are consistent with the common usage
of "abuse," as demonstrated by common experience.3 See Allen at ¶ 4 (holding that we
3. Though the ordinary meaning of the verb "abuse" at the time R.C. 2919.22(B)(1) was enacted is what matters for purposes of determining the meaning of the statute, we note that the definitions we have cited above from the 1960s and 1970s are consistent with how the verb "abuse" is defined today. For example, the current version of Black's Law Dictionary defines the verb "abuse" as "[t]o damage (a thing)," "[t]o injure (a person) physically or mentally," and "[i]n the context of child welfare, to hurt or injure (a child) by maltreatment." Black's Law Dictionary (12th Ed. 2024). As relevant here, Merriam-Websters Dictionary now defines the verb "abuse" as "to use or treat so as to injure or damage." Merriam-Webster Online, https://www.merriam-webster.com/dictionary/abuse (accessed Oct. 21, 2024). And the Cambridge Essential American English Dictionary now defines the verb "abuse" as "to be cruel and violent with someone." Cambridge Dictionary Online, https://dictionary.cambridge.org/dictionary/essential-american- english/abuse (accessed Oct. 21, 2024). Though these definitions are phrased differently than those from the 1960s and 1970s we quoted above, they are still consistent with those definitions. They are also consistent with common understanding and use of "abuse," which is a commonly-understood, non-technical word. The verb "abuse," therefore, has not materially changed in meaning since R.C. 2919.22 was drafted.
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look to how words are commonly understood). For example, common experience
suggests that, in a hypothetical scenario, the average person would describe a parent
who intentionally strikes their child with a tire iron as having "abused" the child, regardless
of whether the strike caused no injury, a minor injury (such as a small bruise on the child's
arm), or a "serious" injury (such as a broken bone).
{¶ 32} We pause to note that the dictionary definitions cited above, our analysis of
those definitions, and our understanding of common usage are consistent with our
interpretation of "abuse" as used in R.C. 2919.22(B)(1) in State v. Litton, 2016-Ohio-7913
(12th Dist.). In Litton, we referred to the juvenile statutes and specifically R.C.
2151.031(D), which defines an "abused child" as one who "[e]xhibits evidence of any
physical or mental injury or death, inflicted other than by accidental means, or an injury
or death which is at variance with the history given of it." (Emphasis added.) Litton at ¶
22. We also noted that the term "physical harm" means "any injury, illness, or other
physiological impairment, regardless of its gravity or duration." Litton at ¶ 22, quoting
R.C. 2901.01(A)(3). In citing this definition in Litton, we appear to have concluded that
the term "physical harm" as defined in R.C. 2901.01(A)(3) was equivalent to the term
"physical . . . injury" as used in R.C. 2151.031(D). We need not explore that issue now;
rather, the important point is that our analysis regarding the ordinary meaning of "abuse"
in this opinion is consistent with Litton's conclusions regarding the meaning of "abuse."
{¶ 33} But, as stated above, Howe argues in part that it was necessary for the state
to establish "serious physical harm" for purposes of demonstrating "abuse" pursuant to
R.C. 2919.22(B)(1). (Emphasis added.) Howe is mistaken.
{¶ 34} First, the cases cited by Howe in support of this argument were all felony
child endangering offenses. State v. Haley, 2013-Ohio-4123, ¶ 9-10 (12th Dist.)
(defendant convicted of murder and felony child endangering); State v. Cooper, 2002-
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Ohio-617, ¶ 14 (12th Dist.) (defendant convicted of involuntary manslaughter with child
endangering as the predicate offense). The case before us, on the other hand, involves
a conviction for misdemeanor child endangering, not felony child endangering.
{¶ 35} Second, the plain text of R.C. 2919.22 belies Howe's argument. R.C.
2919.22(E)(2)(a) states that endangering children in violation of R.C. 2919.22(B)(1) is a
misdemeanor of the first degree, unless otherwise provided for in the section. R.C.
2919.22(E)(2)(d) provides that "[i]f the violation is a violation of division (B)(1) of this
section and results in serious physical harm to the child," then the violation is a felony of
the second degree. (Emphasis added.) Thus, the plain text of R.C. 2919.22 provides
that proof of "serious" physical harm is required for a felony charge of endangering a child
under R.C. 2919.22(B)(1) but proof of "serious" physical harm is not required for the
misdemeanor charge for which Howe was convicted. State v. Gravelle, 2009-Ohio-1533,
¶ 48 (6th Dist.) (noting R.C. 2919.22[E][2][a] language and concluding that when a
defendant is convicted of misdemeanor child endangering, the state is not required to
prove "serious" physical harm); State v. Shirey, 2006-Ohio-256, ¶18 (9th Dist.) (same).
{¶ 36} Third, all the dictionary definitions of "abuse" that we discussed above
undermine Howe's argument. None of those definitions require that the victim of abuse
be "seriously" injured. Nor does common experience and usage of the word "abuse"
support Howe's argument.
{¶ 37} Therefore, we conclude that to convict Howe on a charge of misdemeanor
child endangering, the factfinder was not required to find that Howe caused "serious"
physical or mental injury to William.
{¶ 38} Given the ordinary meaning of the term "abuse," the record contains
sufficient evidence to prove that that Howe abused William, as prohibited by R.C.
2919.22(B)(1). Howe admitted grabbing and squeezing William—a five year old at the
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time of the offense—by the cheeks. The grab or squeeze was sufficient to cause
prominent, deep red marks, which lasted several days, and subsequent bruising which
lasted for approximately one week. William complained of pain and soreness for three
days resulting from the grab. Howe therefore caused physical injury to William. The fact-
finder could conclude, based on the evidence, that he did so in a manner that was both
cruel and violent.
{¶ 39} The juvenile court could certainly conclude that Howe would have been
aware that he would be inflicting physical injury on a child by grabbing and squeezing a
child's face with such force as to leave red marks that caused pain and a bruise lasting a
week. This is not an act by an adult that is in any way consistent with an accident or
"playing around." Moreover, Howe conceded that State's Exhibit 1 depicted abuse, was
caused by someone with strength, and that he could not understand why anyone would
do such a thing to a child.
{¶ 40} Even if the cases on which Howe relies—which state a heightened standard
for "abuse" in the context of felony child endangering—applied here, which they do not,
those cases refer not only to causing "serious" physical harm as abuse, but also refer to
cruelty to a child's physical, moral, or mental well-being as abuse. Haley, 2013-Ohio-
4123 at ¶ 10; Cooper, 2002-Ohio-617 at ¶ 16. Any factfinder could have found beyond a
reasonable doubt that Howe's act towards William constituted a form of "cruelty to a
child's physical, moral or mental well-being." Cooper at ¶ 16. Thus, even if we were to
adopt Howe's proposed definition of "abuse," which we do not, his conviction of child
endangering would still be supported by sufficient evidence. Likewise, to the extent the
ordinary meaning of "abuse" includes "cruel" behavior, the factfinder could conclude that
Howe's actions towards William were cruel.
{¶ 41} Accordingly, the evidence, if believed, constituted abuse pursuant to R.C.
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2919.22(B)(1). Other than the issue of whether the state's evidence was sufficient to
demonstrate abuse, Howe challenges no other aspect of the state's proof in support of
his conviction. Accordingly, we find that the state presented sufficient evidence of abuse
to support a misdemeanor conviction of child endangering under R.C. 2919.22(B)(1).
{¶ 42} For the same reasons, we conclude that Howe's conviction for child
endangering was supported by the greater weight of the evidence. In fact, overwhelming
evidence supported Howe's conviction. Accordingly, we overrule Howe's first and second
assignments of error.
{¶ 43} Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.
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