[Cite as State v. Knepley, 2012-Ohio-406.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-11-02
v.
DAVID E. KNEPLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court Trial Court No. 08-CR-0033
Judgment Affirmed
Date of Decision: February 6, 2012
APPEARANCES:
Nicole M. Winget for Appellant
John H. Hanna for Appellee Case No. 7-11-02
PRESTON, J.
{¶1} Defendant-appellant, David E. Knepley (hereinafter “Knepley”),
appeals the Henry County Court of Common Pleas’ judgment of conviction and
sentence entered against him following a jury trial where Knepley was found
guilty of one count of endangering children and one count of involuntary
manslaughter. For the reasons that follow, we affirm.
{¶2} On the evening of August 14, 2007, Knepley was at Candlelite
Apartments with Jayme Schwenkmeyer (hereinafter “Schwenkmeyer”) and her
thirteen month old child, G.K. (Video of Knepley’s interview with police, Ex. 12).
G.K. had hiccups and could not sleep. (Ex. 12). Schwenkmeyer went to bed while
Knepley stayed up with G.K. (Feb. 16, 2011 Tr. at 1535).
{¶3} Knepley put G.K in her crib around 5:30 a.m. on August 15, 2007.
(Feb. 14, 2011 Tr. at 1277). Knepley left the apartment to run errands shortly
thereafter. (Feb. 16, 2011 Tr. at 1277). Knepley returned to the apartment a few
hours later. (Id.). Schwenkmeyer was still asleep at that time. (Id.). Knepley
checked on G.K. and could tell something was wrong. (Feb. 15, 2011 Tr. at 1348).
Schwenkmeyer and Knepley took G.K. to the hospital where she was pronounced
dead at 2:10 p.m. (Feb. 14, 2011 Tr. at 1236). A subsequent autopsy revealed that
G.K. had a byproduct of Xanax in her urine and a byproduct of Oxycodone in her
blood and urine. (Feb. 16, 2011 Tr. at 1504-10). The Henry County Coroner
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concluded that G.K. had consumed a toxic amount of Oxycodone and Xanax,
causing her death. (Id.).
{¶4} On April 24, 2008, the Henry County grand jury indicted
Schwenkmeyer and Knepley on one count each of endangering children in
violation of R.C. 2919.22(A)(E)(1)(c), a felony of the third degree, and one count
each of involuntary manslaughter in violation of R.C. 2903.04(A), a felony of the
first degree. (Doc. No. 1).
{¶5} On July 14, 2008, Schwenkmeyer filed a motion to sever her trial
from Knepley’s trial. (Doc. No. 32). The State filed its response to the motion to
sever on August 27, 2008. (Doc. No. 41). On September 5, 2008, Knepley filed a
request for relief from prejudicial joinder. (Doc. No. 46). Schwenkmeyer filed a
second motion to sever the trials on September 15, 2008. (Doc. No. 49). On
February 13, 2009, the trial court ordered that the trials of Schwenkmeyer and
Knepley be severed. (Doc. No. 69).
{¶6} The Henry County Court of Common Pleas held a jury trial on
Knepley’s case from February 7, 2011 through February 17, 2011. (Doc. Nos.
479-487). On March 8, 2011, the jury found Knepley guilty on both counts. (Doc.
No. 443-444).
{¶7} The trial court held a sentencing hearing on April 12, 2011. (Doc. No.
464). The trial court determined the offenses of endangering children and
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involuntary manslaughter were allied offenses of similar import and merged the
endangering children conviction into the involuntary manslaughter conviction.
(Id.). The trial court sentenced Knepley to eight years imprisonment on the
involuntary manslaughter conviction and five years of mandatory post-release
control. (Id.).
{¶8} On April 22, 2011, Knepley filed a timely notice of appeal and now
raises eight assignments of error. For purposes of our discussion, we will address
some of the assignments of error out of the order presented in the briefs and
combine them where appropriate.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY GIVING INCOMPLETE AND MISLEADING JURY INSTRUCTIONS.
{¶9} In his first assignment of error, Knepley argues the trial court erred
when it used its standard in loco parentis jury instruction rather than the
instruction Knepley had requested. Knepley had requested the trial court instruct
the jury that the definition for in loco parentis is “a relationship in which a person
has voluntarily assumed the dominant parental role and is responsible for the
financial maintenance, care, and education of the child in the same manner as an
actual parent.” (Doc. No. 334). Instead, the trial court instructed the jury that “[i]n
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loco parentis means standing in the place of a parent and assuming parental duties
or responsibilities.” (Feb. 17, 2011 Tr. at 1777).
{¶10} A trial court’s decision whether to use the jury instructions the
defendant requested is reviewed for an abuse of discretion. State v. Guster, 66
Ohio St.2d 266, 271, 421 N.E.2d 157 (1981). The Supreme Court of Ohio has
held that “it is prejudicial error in a criminal case to refuse to administer a
requested charge which is pertinent to the case, states the law correctly, and is not
covered by the general charge.” State v. Scott, 26 Ohio St.3d 92, 101, 497 N.E.2d
55 (1986). However, this Court has held that a trial court is not required to use the
defendant’s requested instruction verbatim. State v. Smith, 3d. Dist. No. 1-05-39,
2006-Ohio-1661, ¶ 29. Instead, the trial court may use its own language to present
the requested jury instruction. Id. This Court “must examine the context of the
overall charge to determine if the court properly instructed the jury on the issues
requested.” Id., citing State v. Sneed, 63 Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992).
{¶11} The Supreme Court of Ohio has defined in loco parentis as “a person
who has assumed the dominant parental role and relied upon by the child for
support.” State v. Noggle, 67 Ohio St.3d 31, 615 N.E.2d 1040, paragraph one of
the syllabus (1993). This person “has assumed the same duties as a guardian or
custodian, only not through a legal proceeding.” Id. at 33. The Ohio Jury
Instructions define in loco parentis as “standing in the place of a parent and
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assuming parental duties or responsibilities.” 2 Ohio Jury Instructions, Section
507.03, at 10 (2011).1
{¶12} We cannot find that the trial court erred by instructing the jury that in
loco parentis “means standing in the place of a parent and assuming parental
duties or responsibilities.” This jury instruction states, verbatim, the Ohio Jury
Instruction for in loco parentis. It also fairly reflects Ohio case law, which holds a
person stands in loco parentis to a child when that person has assumed the
dominant parental role. Noggle at paragraph one of the syllabus. Furthermore,
“parental duties or responsibilities” would include financial maintenance, care,
and education, the specific responsibilities Knepley requested the trial court
include. Since the jury instructions accurately explain the definition of in loco
parentis according to Ohio case law, we cannot find that the trial court abused its
discretion by using the Ohio Jury Instructions rather than Knepley’s requested
instruction.
{¶13} Knepley’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED AS A MATTER OF LAW IN ALLOWING A FINDING THAT THE APPELLANT SHARED AN IN LOCO PARENTIS RELATIONSHIP WITH THE MINOR CHILD.
1 The 2011 Ohio Jury Instruction for in loco parentis is the same as the 2007 Jury Instruction for in loco parentis, the year the offense occurred.
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{¶14} In his second assignment of error, Knepley argues the jury erred in
finding he had an in loco parentis relationship with G.K. Knepley relies on State
v. White, where the Second District Court of Appeals affirmed the trial court’s
ruling that the defendant did not have an in loco parentis relationship with the
victim when he had only been the victim’s stepfather for sixteen days, was
unemployed, lived in the mother’s home, and did not provide financial support for
the mother or children. 116 Ohio App. 522, 189 N.E.2d 160 (1962). Knepley
argues the jury should not have found he had an in loco parentis relationship with
G.K., because even if they did find he lived with Schwenkmeyer and G.K., he only
lived with them for fifteen days. Additionally, Knepley argues he was not married
to Schwenkmeyer, so he had not taken on any parental obligations.
{¶15} Whether a person stands in loco parentis to a child is a question of
fact. State v. Caton, 137 Ohio App.3d 742, 750, 739 N.E.2d 1176 (1st Dist. 2000).
“It is well settled that an appellate court will not reverse a trial court’s finding of
fact based on insufficient evidence where the finding is supported by some
competent, credible evidence.” Id. The evidence must be viewed “in the light
most favorable to the prosecution.” Id., citing State v. Martin, 20 Ohio App.3d
172, 485 N.E.2d 717 (1st Dist. 1983).
{¶16} According to the Supreme Court of Ohio, in loco parentis means
“‘charged, factitiously, with a parent’s rights, duties, and responsibilities.’”
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Noggle, at 33, quoting Black’s Law Dictionary 787 (6 Ed. 1990). As previously
stated, a person stands in loco parentis to a child when he “has assumed the
dominant parental role and is relied upon by the child for support.” Id. The term
applies to a person who has “put himself in the situation of a lawful parent
assuming the obligations incident to the parental relation, without going through
the formalities necessary to a legal adoption.” Evans v. Ohio State Univ., 112 Ohio
App.3d 724, 736, 680 N.E.2d 161 (10th Dist. 1996).
{¶17} The State presented sufficient evidence to support the trial court’s
judgment that Knepley stood in loco parentis to G.K. First, the evidence presented
at trial established that Knepley lived with Schwenkmeyer and G.K. Robin
Thornton (hereinafter “Thornton”), Candlelite Apartments’ office manager,
testified that Knepley had signed a lease with Schwenkmeyer on July 30, 2007.
(Feb. 15, 2011 Tr. at 1334); (Ex. 6). Thornton testified that Knepley could live at
the apartment as long as Candlelite Apartments received the rent, even if the lease
only listed one adult and one child. (Feb. 15, 2011 Tr. at 1340). Thornton believed
Knepley did live at the apartment with Schwenkeyer. (Id. at 1335). Thus,
Thornton provided competent, credible evidence that Knepley lived with
Schwenkmeyer and G.K. prior to, and on the date of, G.K.’s death.
{¶18} The State also provided competent, credible evidence that Knepley
cared for G.K. and provided financial support. During an interview with law
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enforcement personnel, Knepley said he normally put G.K. to bed by rocking her
to sleep and that he loved Schwenkmeyer and G.K. (Ex. 12). Knepley nodded in
response to the officer’s question of whether he lived with Schwenkmeyer. (Id.).
Knepley further agreed that he shared the costs of rent, utilities, and food with
Schwenkmeyer. (Id.).
{¶19} In addition to Knepley’s own statements, Lisa Belcher, a friend of
Schwenkmeyer’s, testified that Knepley lived with Schwenkmeyer at Candlelite
Apartments and that she saw him make bottles for G.K. (Feb. 14, 2011 Tr. at
1299-1301). Jill Critchet-Burdue, Schwenkmeyer’s co-worker, testified that
Knepley would check G.K.’s diaper and get juice for G.K. when she “walked up to
him and held her cup to him.” (Feb. 15, 2011 Tr. at 1428). Barron and Kathryn
Beard (hereinafter “the Beards”), family friends of Knepley, testified that Knepley
had stayed up with G.K. during the night before her death, giving her Orajel
because she was teething. (Id. at 1345, 1358). The Beards further testified that
Knepley would not permit G.K.’s biological father, Alvin Gerken (hereinafter
“Gerken”), to visit G.K. (Id. at 1347-1348, 1357). Gerken corroborated the
Beards’ testimony regarding Knepley’s refusal to let him visit G.K. when Knepley
was present. (Id. at 1384-1385).
{¶20} Viewing this evidence in the light most favorable to the State, this
evidence demonstrates that Knepley lived with Schwenkmeyer and G.K.; Knepley
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provided financial support to Schwenkmeyer and G.K.; Knepley provided physical
care for G.K. by putting her to bed, checking her diapers, and giving her bottles
and juice; and that Knepley had enough control over G.K. to prevent her
biological father from visiting her when Knepley was present. This case is clearly
distinguishable from White, where the trial court did not find any evidence that the
defendant provided support to the mother or her children. As a result, we find that
this evidence is sufficient to support the jury’s verdict determining that Knepley
stood in loco parentis to G.K.
{¶21} Knepley’s second assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. VIII
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S CRIMINAL RULE 29 MOTION TO DISMISS ALL OF THE CHARGES AT THE CONCLUSION OF THE STATE’S CASE IN CHIEF.
{¶22} In his eighth assignment of error, Knepley contends that the State
presented insufficient evidence to support his child endangering and involuntary
manslaughter convictions. Knepley argues the trial court erred in failing to grant
his Crim.R. 29 motion to dismiss the charges against him.
{¶23} Crim.R. 29(A) provides:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment
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of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a
conviction for such offense or offenses.
“Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved
beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d
184, syllabus (1978). This court has previously found that the Bridgeman standard
“must be viewed in light of the sufficiency of evidence test * * *.” State v. Foster,
3d Dist. No. 13-97-09, at *2 (Sept. 17. 1997). When reviewing the sufficiency of
the evidence, “[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, 574 N.E.2d 492, paragraph two of the syllabus (1981),
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1991).
{¶24} Knepley was convicted of endangering children under R.C. 2919.22.
A person violates this provision if he or she is a “person in loco parentis of a child
under eighteen years of age” and creates “a substantial risk to the health or safety
of the child, by violating a duty of care, protection, or support.” R.C. 2912.22.
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The person is guilty of a felony if the violation results in “serious physical harm”
to the child. R.C. 2919.22(E)(1)(d). Knepley was also convicted of involuntary
manslaughter under R.C. 2903.04(A), which states, “[n]o person shall cause the
death of another or the unlawful termination of another’s pregnancy as a
proximate result of the offender’s committing or attempting to commit a felony.”
{¶25} We have already found the State presented sufficient evidence for a
rational trier of fact to determine Knepley stood in loco parentis to G.K. The
question remaining is whether the State presented sufficient evidence that Knepley
violated his duty of care to G.K., causing her serious physical harm.
{¶26} Neither party disputes that G.K. was thirteen months old at the time
of her death and clearly within the range of the child endangering offense. (Ex. 1).
During the trial, the State introduced competent, credible evidence that Knepley
violated his duty of care to G.K., causing her serious physical harm. Melvin
Reinboldt (hereinafter “Reinboldt”), a friend of Knepley’s, testified that Knepley
had admitted giving G.K. Xanax and Oxycodone. (Feb. 16, 2011 Tr. at 1576-
1578). Melvin testified that “it was basically driving [Knepley] nuts because he’d
be left with the baby all the time, and he gave her some medicine to put her to
sleep.” (Id. at 1577). Reinboldt further testified that, “he told me he squashed
them and put them in the bottle,” referring to Oxycodone and Xanax. (Id.).
Reinboldt testified that “[Knepley] said he had done it before and it * * * just put
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the baby to sleep, so he [did] it again.” (Id.). According to Reinboldt, Knepley
said “[h]e might have [gone] overboard” on the night of G.K.’s death. (Id. at
1578).
{¶27} Additionally, the evidence demonstrated that before anyone knew the
cause of G.K.’s death, Knepley asked two different family friends whether they
thought the hospital would have the test results back before G.K.’s funeral if G.K.
had died from drugs in her system. (Feb. 15, 2011 Tr. at 1431, 1476).
Furthermore, Robert Forney testified that his toxicology department had run tests
on G.K.’s blood and urine. (Feb. 16, 2011 Tr. at 1604). The test results showed
that G.K. had consumed the Xanax within twelve hours of her death and the
Oxycodone between two and ten hours before her death. (Id. at 1619). This time
frame included the period when Knepley had stayed up with G.K. (Feb. 16, 2011
Tr. at 1535); (Feb. 14, 2011 Tr. at 1277). The test results further demonstrated
that G.K. died from an overdose of Xanax and Oxycodone. (Feb. 16, 2011 Tr. at
1504-1510). Viewing this evidence in the light most favorable to the prosecution,
we find that a rational trier of fact could have found that the elements of each of
the offenses were met beyond a reasonable doubt.
{¶28} Knepley’s eighth assignment of error is, therefore, overruled.
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ASSIGNMENT OF ERROR NO. V
BY ALLOWING THE PROSECUTION TO ATTEMPT TO CONVICT TWO DEFENDANTS FOR THE SAME CRIME WHILE DENYING THE DEFENDANT’S ABILITY TO MENTION PREVIOUS STATEMENTS, THE TRIAL COURT DENIED THE DEFENDANT’S RIGHT TO DUE PROCESS UNDER BOTH THE UNITED STATES AND OHIO CONSTITUTION.
{¶29} In his fifth assignment of error, Knepley argues the State used
irreconcilable theories to prosecute Knepley and Schwenkmeyer for the same
offense. Knepley contends the trial court violated his right to due process by
excluding statements the State made during Schwenkmeyer’s trial.
{¶30} Knepley relies on Stumpf v. Houk, a case from the Sixth Circuit
Court of Appeals.2 C.A. No. 01-3613, unreported (6th Cir. Aug. 11, 2011). In
Stumpf, the prosecutor used the same evidence to prove each of the co-defendants
was the principal offender and subject to the death penalty. Id. at 430-431. In one
case, the prosecutor argued his main witness was reliable and the witness’
testimony demonstrated that one of the co-defendants, Clyde Daniel Wesley, was
the principal offender. Id. In the second case, the prosecutor argued the same
witness was unreliable and the evidence proved that the other co-defendant, John
David Stumpf, was the principal offender. Id. The Sixth Circuit took issue with
the prosecutor’s conduct, stating “[t]o allow a prosecutor to advance irreconcilable
2 As a procedural matter, we note the opinion was vacated on October 26, 2011 after an en Banc rehearing.
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theories without adequate explanation undermines confidence in the fairness and
reliability of the trial and the punishment imposed and infringes upon the
petitioner’s rights.” Id. at 437.
{¶31} In the present case, the State provides an adequate explanation for
the prosecution of both Schwenkmeyer and Knepley, and offers a theory
consistent with the outcome of the two cases. Schwenkmeyer was tried and
convicted for G.K.’s death before the State was aware that Reinbolt had
information regarding the case. As a result of this new evidence, the trial court
granted Schwenkmeyer a new trial. The State then tried the case against Knepley
based on the information it received from Reinbolt. Schwenkmeyer ultimately
entered a guilty plea to reckless homicide after Knepley’s trial. Unlike in Stumpf,
the State did not attempt to use Reinbolt’s testimony to convict both
Schwenkmeyer and Knepley as the principal offenders of the same offense.
{¶32} Knepley’s fifth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED IN ALLOWING TESTIMONY OF A WITNESS WHO WAS NOT DISCLOSED TO THE DEFENDANT PRIOR TO TRIAL WHEN THE TESTIMONY OF THE WITNESS WAS HIGHLY PREJUDICIAL TO THE DEFENSE.
{¶33} In his third assignment of error, Knepley argues the trial court abused
its discretion by permitting the State to introduce testimony from Reinbolt when
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the State had failed to disclose Reinbolt on the witness list. Knepley claims the
State did not reveal that it would call Reinbolt as a witness until the second day of
trial. Consequently, Knepley contends he was unfairly prejudiced because he did
not have sufficient time to prepare his defense.
{¶34} Crim.R. 16 states, “[e]ach party shall provide to opposing counsel a
written witness list, including names and addresses of any witness it intends to call
in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal.”
The Supreme Court of Ohio has held a trial court does not abuse its discretion in
permitting a witness to testify when a prosecutor has failed to provide the witness’
name as required by Crim.R. 16 “where the record fails to disclose (1) a willful
violation of the rule, (2) that foreknowledge would have benefited the accused in
the preparation of his or her defense, or (3), that the accused was unfairly
prejudiced.” State v. Scudder, 71 Ohio St.3d 263, 269, 643 N.E.2d 524 (1994),
citing State v. Heinish, 50 Ohio St.3d 231, 553 N.E.2d 1026, syllabus (1990).
{¶35} Knepley fails to demonstrate the trial court abused its discretion by
permitting Reinbolt to testify. First of all, Knepley does not allege the State
willfully violated Crim.R. 16. Secondly, there is ample evidence in the record that
Knepley did have notice that the State intended to call Reinbolt as a witness.
Reinbolt testified on February 16, 2011. (Tr. at 1563-1599). On February 3, 2011,
Knepley filed a motion to permit defendant to impeach Melvin Reinbolt with his
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pending indictment. (Doc. No. 400). The motion stated, “[a]t pretrial of this
matter, the Court indicated a hesitancy to allow Defendant to question or
otherwise impeach Melvin Reinbolt (a Henry County career felony criminal) as to
his current pending indictment.” (Id.). Based on his own motion, Knepley had
notice the State intended to call Reinbolt prior to February 3, 2011 and was
preparing to impeach him.
{¶36} At trial, Knepley admitted he had received Reinbolt’s recorded
phone conversation from the State in November. (Feb. 16, 2011 Tr. at 1572-1573).
The record also reveals that the trial court held two hearings regarding Reinbolt’s
testimony prior to the trial. (Id.). Additionally, Knepley’s counsel discussed
Reinbolt’s testimony during his opening statement on February 14, 2011. (Feb. 14
Tr. at 1214-1215). Thus, the record clearly demonstrates that Knepley knew the
State anticipated calling Reinbolt as a witness prior to the second day of trial as
Knepley contends, and that Knepley also knew the content of Reinbolt’s
anticipated testimony. Finally, Knepley had the opportunity to cross-examine
Reinbolt at length regarding his criminal history and presented two witnesses,
Penny Arps and Cherilynn Stott, to rebut Reinbolt’s testimony. (Feb. 16, 2011 Tr.
at 1582-1597); (Feb. 17, 2011 Tr. at 1674-1697). We cannot find that Knepley
suffered undue prejudiced or that the trial court abused its discretion by admitting
Reinbolt’s testimony.
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{¶37} Knepley’s third assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. IV
THE APPELLANT WAS DENIED A FAIR TRIAL WHEN CHARACTER EVIDENCE WAS ADMITTED THAT FAILED TO MEET ANY EXCEPTIONS THAT WOULD ALLOW SUCH AN ADMISSION.
ASSIGNMENT OF ERROR NO. VI
THE TRIAL COURT ERRED TO THE DEFENDANT’S PREJUDICE WHEN IT ALLOWED THE ADMISSION OF EVIDENCE OBTAINED AS A RESULT OF A STALE SEARCH.
ASSIGNMENT OF ERROR NO. VII
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE TO BE ADMITTED DURING TRIAL.
{¶38} In his remaining assignments of error, Knepley contends the trial
court erred by improperly admitting evidence. First, Knepley argues the trial court
erred by admitting an aggravated menacing complaint and resulting telephone
harassment conviction because the complaint and conviction are character
evidence that do not fall under any exception. Second, Knepley argues the trial
court erred when it admitted evidence obtained from a search of the apartment on
November 9, 2007 because the search was stale, occurring nearly three months
after G.K.’s death. Finally, Knepley argues the trial court erred when it admitted
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evidence of the medications Knepley took other than Xanax and Oxycodone
because such evidence was irrelevant and highly prejudicial.
{¶39} A trial court has discretion to determine whether to admit or exclude
evidence. Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991).
As such, we will not disturb the trial court’s decision on that issue unless the trial
court abused its discretion. Id. An abuse of discretion suggests the trial court’s
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶40} Generally, evidence of other crimes, wrongs, or acts is inadmissible
to prove character or show the defendant acted in conformity therewith. Evid.R.
404(B). However, such evidence may be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake. Id.
{¶41} In this case, the trial court admitted evidence of Knepley’s
aggravated menacing charge and final telephone harassment conviction to show
Knepley’s intention to create an in loco parentis relationship with G.K. Gerken
testified that Knepley continually called, harassed, and threatened him and
Schwenkmeyer when Gerken was with Schwenkmeyer. (Feb. 15, 2011 Tr. at
1381-1382). The State offered this evidence, combined with Knepley’s refusal to
permit Gerken to visit G.K., to demonstrate that Knepley intended to have an in
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loco parentis relationship with G.K. and did not want Gerken to have contact with
Schwenkmeyer or G.K. Consequently, the evidence was not offered as character
evidence, but to prove an element of the offense. However, even if the evidence
was character evidence, it shows Knepley’s intent to create an in loco parentis
relationship with G.K., thus meeting an exception of Evid.R. 404(B). We cannot
find that the trial court abused its discretion by admitting Knepley’s aggravated
menacing charge and final telephone harassment conviction.
{¶42} Knepley further contends the trial court erred by admitting evidence
from a November 9, 2007 search of the apartment. Knepley argues the search was
stale and any resulting evidence inadmissible.
{¶43} On March 10, 2009, Knepley filed a motion in limine requesting that
the trial court suppress evidence from the November 9, 2007 search. (Doc. No.
77). The trial court granted Knepley’s motion, in part, ruling that the State could
only admit evidence of “the pill bottles for [X]anax and/or [O]xycodone with a
date filled prior to August 15, 2007.” (Doc. No. 215). The trial court explicitly
ruled the State could not admit evidence of any medications or drugs with dates on
or after August 15, 2007, the date of G.K.’s death. (Id.). Furthermore, after
reviewing the trial transcripts, we cannot find that the State introduced any
evidence of medications dated after August 15, 2007 in violation of the trial
court’s order. In fact, it was Knepley, not the State, that introduced evidence of
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straws and Oxycodone found under Schwenkmeyer’s bed during the November 9,
2007 search. (Feb. 16, 2011 Tr. at 1551-1553). Since the trial court limited the
evidence that the State could admit from the search to those medications filled
prior to August 15, 2007, we cannot find that the trial court erred.
{¶44} Finally, Knepley argues the trial court erred by admitting evidence of
medications he used other than Oxycodone and Xanax because such evidence was
irrelevant and highly prejudicial.
{¶45} Generally, relevant evidence is admissible. Evid.R. 402. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Evid.R. 401. However, relevant evidence
is inadmissible where “its probative value is outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403.
{¶46} During the course of his interview with law enforcement personnel,
Knepley answered questions regarding his prescription medications. (Ex. 12).
Knepley listed the medications he took, which included Oxycodone, Trazodone,
Elavil, Xanax, and Methadone. (Id.). Knepley further explained the reason why he
took each medication, including back pain, pain relief, anxiety, and sleep aids.
(Id.). Knepley told the officer he kept all of his medications in a pill box. (Id.).
The State introduced this evidence to prove G.K. did not accidentally consume
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Oxycodone and Xanax because it is unlikely she would have consumed only those
two drugs when all five were kept in the pill box together. Rather, the evidence
tended to show that Knepley administered the Oxycodone and Xanax to G.K.,
consistent with his admission to Reinbolt. The evidence of Knepley’s medications
was highly relevant because it demonstrated Knepley had the requisite mental
state for the endangering children and involuntary manslaughter charges.
Additionally, we cannot find that the probative value of the evidence was
outweighed by the danger of unfair prejudice since the State presented evidence of
the purpose for each medication and that Knepley did have valid prescriptions for
each one. Consequently, the trial court did not abuse its discretion by admitting
evidence regarding the medications Knepley used at the time of G.K.’s death.
{¶47} Knepley’s fourth, sixth, and seventh assignments of error are,
therefore, overruled.
{¶48} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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