State v. Lewis

948 N.E.2d 487, 192 Ohio App. 3d 153
CourtOhio Court of Appeals
DecidedJanuary 12, 2011
DocketNo. 10-COA-023
StatusPublished
Cited by8 cases

This text of 948 N.E.2d 487 (State v. Lewis) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lewis, 948 N.E.2d 487, 192 Ohio App. 3d 153 (Ohio Ct. App. 2011).

Opinions

Gwin, Judge.

{¶ 1} Defendant-appellant, Wendy L. Lewis, appeals her conviction and sentence entered by the Ashland County Court of Common Pleas, Juvenile Division, on one count of child endangerment, a misdemeanor of the first degree, in violation of R.C. 2919.22(A). The plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On February 10, 2010, Rosanna Miller, a shopper at the Ashland, Ohio Walmart, discovered a young child alone in a vehicle crying loudly. This child was later identified as appellant’s two-year-old son, W.K. Out of concern for the child, Miller called the Ashland Police Department to report the situation. Before police arrived, appellant came out of the store, got the child out of the car, and returned to the store.

{¶ 3} Sergeant Darcy Baker of the Ashland City Police Department responded to the call. Before entering the store, Sergeant Baker looked inside appellant’s car. He later described the condition of the inside of that car as “filthy,” particularly that the vehicle contained more trash than he has seen in a vehicle in 18 years of police work. He noticed uneaten French fries all over the child’s car seat and a half-eaten burrito sitting within reach of the car seat. However, Sergeant Baker did not photograph the interior of the car.

{¶ 4} Sergeant Baker then entered the store and located appellant. Appellant initially stated that she had left the child alone for only a few minutes. When Sergeant Baker informed appellant that Walmart has excellent surveillance [157]*157systems, she revised her estimate and admitted that she had left the child alone for about 20 minutes.

{¶ 5} Appellant told Sergeant Baker that she and her son left their home in the Nova, Ohio area at about 2:30 p.m. that day to go to Walmart and they arrived at about 3:00 p.m. because the roads were “not the best.” They stopped at the GNC store in a strip mall adjacent to the Walmart store where she also left her son in the car for about five minutes. Appellant told the officer that she went to the Walmart store to get a birthday card or gift and that her son was asleep and she did not want to wake him. Appellant admitted repeatedly that she had made a bad decision that day by leaving her son alone.

{¶ 6} A Walmart surveillance videotape was introduced into evidence at appellant’s jury trial. The video showed appellant entering the Walmart store at 2:59:36 p.m. The video shows her leaving the store 29 minutes and 42 seconds later at 3:29:16 p.m. The same video shows her reentering the store with her son at 3:31:40 p.m. A separate video shows Sergeant Baker arriving at 3:35:14 p.m.

{¶ 7} Sergeant Baker testified over objection about his experience investigating crime, and supervising officers that investigate crime, at the Ashland Walmart. These investigations included shoplifting incidents, purse snatchings, and reports of people breaking into cars. Over objection, he also testified that the Ashland police had arrested persons at the store on “felony warrants.” Furthermore, and over objection, he testified that the Walmart parking lot was “absolutely not” a safe place to leave a child. On cross-examination, however, he admitted that in his 17 years on the Ashland police force, he had never investigated a child abduction at a Walmart or similar store in the city of Ashland, Ohio. Over objection, Sergeant Baker was permitted to testify that the “partially eaten burrito and the French fries in the car seat were within reach and could have been put in a child’s mouth.”

{¶ 8} Sergeant Baker testified that February 10, 2010, was a cold and snowy day. The state offered an exhibit, which was admitted by stipulation of the parties, that showed that the ambient temperature at 3:50 p.m. on February 10, 2010, at Mansfield Airport was 25 degrees. The wind speed at the time was 14 miles per hour.

{¶ 9} Amy Shenberger, an investigator for the Ashland County Department of Children and Family Services, testified about her qualifications in investigating instances of child neglect and discussed some of her concerns about the situation. The Ashland Police Department sent her a neglect complaint arising from the incident in question. She spoke with appellant at appellant’s home sometime after the incident at the Walmart store. Appellant told Shenberger that she had used very poor judgment that day and she was “glad” nothing had happened to her son. Over objection, Shenberger was permitted to testify that the presence [158]*158of French fries and/or a half-eaten burrito or taco within reach of a child could be seen as a choking hazard if the child were to eat them. Over objection, she also testified that by leaving the child in the car unattended, it was possible that the child could sustain hypothermia and he could “undo himself from a car seat and get out of the car and get into traffic, and could be abducted.”

{¶ 10} Appellant chose not to testify in this case. However, she called her mother, Judith Weatherman, to establish that appellant was 44 years old and that appellant’s son was two years old. Weatherman identified the child car seat kept in the appellant’s car. Weatherman also identified the child’s coat.

{¶ 11} The jury found appellant guilty of child endangerment. The trial court deferred sentencing pending the completion of a presentence-investigation report. At a hearing held July 14, 2010, the trial court sentenced appellant to pay a fine and imposed community-control sanctions. The trial court stayed execution of the sentence pending appeal.

{¶ 12} Appellant has timely appealed, raising the following four assignments of error:

{¶ 13} “I. The trial court erred by denying appellant’s motion for a judgment of acquittal.
{¶ 14} “II. The competent evidence in the record was not sufficient to sustain a conviction.
{¶ 15} “HI. The judgment was against the manifest weight of the evidence.
{¶ 16} “IV. The trial court erred by admitting incompetent, irrelevant, and speculative evidence.”

ASSIGNMENT OF ERROR IV

{¶ 17} Appellant’s fourth assignment of error concerns the admission of certain evidence at her jury trial. Because appellant’s first, second, and third assignments of error each require us to review the evidence, we shall address appellant’s fourth assignment of error first.

{¶ 18} In her fourth assignment of error, appellant argues that the trial court permitted the jury to hear irrelevant and speculative evidence offered by the state. Specifically, appellant contends that Sergeant Baker and Amy Shenberger were both permitted to speculate on possible risks to the child caused by appellant’s decision to leave her son in his car seat for nearly 30 minutes while she was in the Walmart store. We disagree.

{¶ 19} In Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056, the Supreme Court reaffirmed the long-standing test for appellate review of the admission of evidence:

[159]*159{¶ 20} “Ordinarily, a trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence. The admission of relevant evidence pursuant to Evid.R. 401 rests within the sound discretion of the trial court. E.g., State v. Sage

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Bluebook (online)
948 N.E.2d 487, 192 Ohio App. 3d 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-ohioctapp-2011.