[Cite as State v. Litton, 2016-Ohio-7913.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, : CASE NO. CA2016-04-005 Plaintiff-Appellee, : OPINION : 11/28/2016 - vs - :
COBY R. LITTON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM EATON MUNICIPAL COURT Case No. 2015-CRB-735
Martin P. Votel, Preble County Prosecuting, Kathryn M. West, Preble County Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee
Wayne C. Staton, 110 North Beech Street, Oxford, Ohio 45056, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Coby R. Litton, appeals from his convictions in the Eaton
Municipal Court for domestic violence and endangering children. For the reasons outlined
below, we affirm.
{¶ 2} On September 30, 2015, a sergeant with the New Paris Police Department filed
a complaint charging Litton with domestic violence in violation of R.C. 2919.25(A) and Preble CA2016-04-005
endangering children in violation of R.C. 2919.22(B)(1), both first-degree misdemeanors.1
According to the complaint, the charges stemmed from allegations that on September 18,
2015, Litton hit his son, A.L., with a rod and threw the child into a wall after A.L. failed to
complete his homework in a timely fashion. This caused A.L. to suffer bruising, some of
which was severe, to his buttocks, torso, leg, and forehead. The complaint further stated that
Litton acknowledged spanking A.L. once, "but claimed it was with a wooden spoon and that
he hadn't seen any bruises because A.L. takes a bath by himself[.]" At the time of the
alleged offense, A.L. was eight years old.
{¶ 3} The matter ultimately proceeded to a one-day bench trial held on January 22,
2016. During trial, the trial court heard testimony from Cynthia Snyder, a social worker with
Preble County Job and Family Services, A.L., and Litton, among others. As part of this
testimony, Snyder testified that she interviewed A.L. on two occasions, once on September
21, 2015 and again on September 25, 2015. According to Snyder, during both of these
interviews, A.L. told her Litton had "spanked" him with a rod, threw him into the wall, and
dumped toys over his head after A.L. had "difficulty with his homework."
{¶ 4} Snyder's testimony was similar to A.L.'s own trial testimony. A.L. testified that
Litton got mad and "spanked" him on his buttocks and legs with his hand, a rod, and a fishing
pole because he took too long to finish his homework. A.L. also testified Litton then "grabbed
me up by my hand and slammed me against the wall" and "threw toys on me." It is
undisputed that the prosecuting attorney did not provide Litton with a recording of the
September 21, 2015 interview as part of its responses to Litton's discovery requests.
Furthermore, when asked why a recording was not provided to the prosecuting attorney,
1. Litton claims the complaint omitted the subsection he was charged with under R.C. 2191.22, the endangering children statute. The record does not support Litton's contention for the complaint explicitly states that the endangering children charge was brought pursuant to R.C. 2919.22(B)(1). -2- Preble CA2016-04-005
Snyder testified that they "do not make a hard copy of every interview we conduct," but that
one could be made available. Litton's trial counsel declined Snyder's offer for a copy and
proceeded with his cross-examination, albeit over his objection.
{¶ 5} On March 7, 2016, the trial court issued a written decision finding Litton guilty
as charged. In so holding, the trial court determined that "[A.L.'s] testimony was consistent
with that he told [Snyder] on two occasions, his grandmother, and hospital personnel." The
trial court also stated that "[f]or a child of [A.L.'s] age to describe how he got those bruises so
consistently on many occasions and over a period of several months is compelling and
convincing." Implicit within this holding is the trial court's determination that Litton's testimony
that A.L. may have suffered his injuries as a result of wrecking his bicycle lacked credibility.
The same is true regarding Litton's claim that A.L.'s injuries were the result of permissible
parental discipline resulting from Litton spanking A.L. once with a wooden spoon.
{¶ 6} On March 21, 2016, two weeks after the trial court issued its decision, Litton
filed a motion for a new trial pursuant to Crim.R. 33(A)(2) alleging that both the prosecuting
attorney and Snyder engaged in misconduct by failing to provide him with a recording of the
September 21, 2015 interview between Snyder and A.L. According to Litton, this prejudiced
his defense since he was unable to cross-examine A.L. regarding any inconsistencies he
may have made during this initial interview. Litton also argued that he should be granted a
new trial pursuant to Crim.R. 33(A)(4) since the trial court's verdict was not supported by
sufficient evidence.
{¶ 7} On April 14, 2016, the trial court issued a decision denying Litton's motion for a
new trial. In so holding, the trial court stated that it had "listened to all of the evidence and
found no other explanation for the bruises and so forth to [A.L.]." The trial court further stated
that "[i]t's not a personal thing it's a matter of what the evidence is and how the evidence was
presented that led the [c]ourt to that decision." After denying Litton's motion, the trial court -3- Preble CA2016-04-005
sentenced Litton to serve 90 days in jail, 75 days of which were suspended, ordered him to
pay a total fine of $300, and placed him on two years of probation. Litton now appeals from
his convictions, raising three assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE STATE COMMITTED REVERSIBLE ERROR BY FAILING TO DISCLOSE
[A.L.'s] INITIAL INTERVIEW WITH CYNTHIA SNYDER BEFORE TRIAL.
{¶ 10} In his first assignment of error, Litton argues the state violated Crim.R. 16(B)(7)
by failing to provide him with a recording of the September 21, 2015 interview between
Snyder and A.L. as part of its responses to his discovery requests. We disagree.
{¶ 11} Crim.R. 16 governs discovery in a criminal case. State v. Hebdon, 12th Dist.
Butler Nos. CA2012-03-052 and CA2012-03-062, 2013-Ohio-1729, ¶ 47. As part of that rule,
Crim.R. 16(B)(7) requires the disclosure of "[a]ny written or recorded statement by a witness
in the state's case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal."
However, as noted by the Ohio Supreme Court, a violation of Crim.R. 16 constitutes
reversible error "only when there is a showing that (1) the prosecution's failure to disclose
was a willful violation of the rule, (2) foreknowledge of the information would have benefited
the accused in the preparation of his defense, and (3) the accused suffered some prejudicial
effect." State v. Joseph, 73 Ohio St.3d 450, 458 (1995), citing State v. Parson, 6 Ohio St.3d
442, 445 (1983). In this context, the term "willful" has been said to involve "intent, purpose or
design to injure." State v. Bowshier, 2d Dist. Clark No. 06-CA-41, 2007-Ohio-5364, ¶ 31.
{¶ 12} As noted above, prior to trial, it is undisputed that the prosecuting attorney did
not provide Litton with a recording of the September 21, 2015 interview between A.L. and
Snyder. However, Litton's trial counsel explicitly stated that he could not place any blame on
the prosecuting attorney for that failure "because apparently, uh, the witness did not tell
them" so "I'm gonna move on[.]" As a result, while it certainly would have been better -4- Preble CA2016-04-005
practice for Snyder to inform the prosecuting attorney of this interview so that the prosecuting
attorney could then disclose this interview to Litton prior to trial, this nondisclosure falls short
of what could be considered a willful violation of the prosecuting attorney's duties under
Crim.R. 16(B)(7). Rather, we believe this is something that was merely inadvertent and
unintentional. Again, as Snyder even testified, they "do not make a hard copy of every
interview we conduct," but that one could be made available.
{¶ 13} Moreover, as the record reveals, Litton's trial counsel made no attempt to ask
for a continuance so that he could review the recording of the September 21, 2015 interview
even after Snyder offered to provide him with a copy. Instead, albeit over his objection,
Litton's trial counsel "moved on" and continued his cross-examination regarding A.L.'s
statements during both the September 21, 2015 and September 25, 2015 interviews,
statements that, just as the trial court found, remained generally consistent throughout.
Specifically, that Litton had caused A.L.'s injuries by hitting him with various objects multiple
times, throwing him into a wall, and dumping toys over his head. Therefore, even if the
prosecuting attorney could be said to have willfully violated its duties under Crim.R. 16(B)(7),
Litton still cannot show that foreknowledge of the September 21, 2015 interview would have
benefitted him in the preparation of his defense in any way, nor can Litton establish that he
suffered any resulting prejudice therefrom. Accordingly, while we caution the prosecuting
attorney to avoid similar situations in the future, we nevertheless find Litton's first assignment
of error to be without merit and overrule the same.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR
A NEW TRIAL.
{¶ 16} In his second assignment of error, Litton argues the trial court erred by denying
his motion for a new trial raised pursuant to Crim.R. 33(A)(2) and (A)(4). We again disagree. -5- Preble CA2016-04-005
Standard of Review for Crim.R. 33 Motion for a New Trial
{¶ 17} "Crim.R. 33 motions for a new trial are not to be granted lightly." State v.
Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 21, citing City of
Toledo v. Stuart, 11 Ohio App.3d 292, 293 (6th Dist.1983). The decision to grant or deny a
motion for a new trial pursuant to Crim.R. 33 rests within the sound discretion of the trial
court. State v. Hoop, 12th Dist. Brown No. CA2012-10-019, 2013-Ohio-3078, ¶ 11. An
abuse of discretion implies that the court's decision was unreasonable, arbitrary, or
unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio
St.3d 57, 2006-Ohio-160, ¶ 130.
Crim.R. 33(A)(2): Misconduct of Prosecuting Attorney or Witnesses for the State
{¶ 18} Pursuant to Crim.R. 33(A)(2), a new trial may be granted when the prosecuting
attorney or witnesses for the state engaged in misconduct that materially affected the
defendant's substantial rights. This inquiry consists of a two-step determination. State v.
Jalowiec, 9th Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 48. "The first determination
is whether misconduct actually occurred, and the second is whether that misconduct
materially prejudiced the defendant's substantial rights." Id. Misconduct will generally not be
grounds for reversal unless the misconduct is so pervasive as to deprive the defendant of a
fair trial. State v. Chambers, 12th Dist. Butler No. CA2006-07-178, 2007-Ohio-4732, ¶ 39.
{¶ 19} Similar to his argument raised in his first assignment of error, Litton claims that
both prosecuting attorney and Snyder engaged in misconduct by failing to disclose the
existence of a recording of the September 21, 2015 interview between Snyder and A.L.
However, as noted above, we find this nondisclosure was something that can be classified as
merely inadvertent. Furthermore, even after learning of its existence, Litton's trial counsel
never requested a continuance to review the recording, nor did he accept Snyder's offer to
provide him with a copy of the recording. Under these circumstances, we simply cannot say -6- Preble CA2016-04-005
that either the prosecuting attorney or Snyder engaged in misconduct that materially
prejudiced Litton's substantial rights. Litton's claim otherwise lacks merit.
Crim.R. 33(A)(4): Verdict Not Sustained by Sufficient Evidence
{¶ 20} Pursuant to Crim.R. 33(A)(4), a new trial may be granted where "the verdict is
not sustained by sufficient evidence or is contrary to law." Although technically distinct from a
Crim.R. 29 motion for acquittal, a motion for a new trial raised under Crim.R. 33(A)(4)
"nonetheless tests the legal sufficiency of the conviction." State v. Vitantonio, 11th Dist. Lake
No. 2012-L-144, 2013-Ohio-4100, ¶ 9; State v. Halsell, 9th Dist. Summit No. 24464, 2009-
Ohio-4166, ¶ 24 ("[o]ur concern is the same whether sufficiency is raised in the context of
Crim.R. 33[A][4] or Crim.R. 29"). Thus, Crim.R. 29 and Crim.R. 33(A)(4) motions are
reviewed under the same standard of review. State v. Stephens, 11th Dist. Trumbull No.
2001-T-0044, 2002-Ohio-2976, ¶ 26.
{¶ 21} The standard of review for a denial of a Crim.R. 29 motion is the same used to
review a sufficiency of the evidence claim. State v. Robinson, 12th Dist. Clermont No.
CA2015-01-013, 2015-Ohio-4533, ¶ 37. 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. Intihar, 12th Dist. Warren No.
CA2015-05-046, 2015-Ohio-5507, ¶ 9. The 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. In other words, "the test for
sufficiency requires a determination as to whether the state has met its burden of production
at trial." State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34, citing
State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 33. When -7- Preble CA2016-04-005
evaluating the sufficiency of the evidence, this court must "defer to the trier of fact on
questions of credibility and the weight assigned to the evidence." State v. Kirkland, 140 Ohio
St.3d 73, 2014-Ohio-1966, ¶ 132.
{¶ 22} As noted above, Litton was convicted of domestic violence in violation of R.C.
2919.25(A) and endangering children in violation of R.C. 2919.22(B)(1). Pursuant to R.C.
2919.25(A), "[n]o person shall knowingly cause or attempt to cause physical harm to a family
or household member." On the other hand, pursuant to R.C. 2919.22(B)(1), no person shall
"abuse" a child. The word "abuse" is not defined by the criminal statutes. State v. Hickman,
8th Dist. Cuyahoga No. 99442, 2013-Ohio-4192, ¶ 19. However, the juvenile statutes define
an "abused child" as one who "'suffers physical or mental injury that harms or threatens the
child's health or welfare.'" Newburgh Hts. v. Cole, 166 Ohio App.3d 826, 2006-Ohio-2463,
¶ 9 (8th Dist.), quoting R.C. 2151.031(D). The term "physical harm" means "any injury,
illness, or other physiological impairment, regardless of its gravity or duration." R.C.
2901.01(A)(3).
{¶ 23} Litton argues there was insufficient evidence to support his convictions because
A.L.'s testimony "is not consistent with the injuries he sustained" and more likely the result of
him wrecking his bicycle. However, A.L. specifically testified that the bruising was not caused
by him wrecking his bike. Rather, A.L. testified that his injuries occurred after Litton got mad
and "spanked" him on his buttocks and legs with his hand, a rod, and a fishing pole because
he was taking too long to finish his homework. This included testimony from A.L. that Litton
hit him with the rod so hard that "he broke it on my hiney." A.L. also testified that Litton then
"grabbed me up by my hand and slammed me against the wall" and "threw toys on me."
Pictures of A.L.'s injuries were admitted into evidence showing large, deep colored bruises on
his buttocks, legs, arm, and hand, as well as an abrasion on his forehead. This testimony, if
believed, coupled with the pictures of A.L.'s injuries, was more than sufficient to support -8- Preble CA2016-04-005
Litton's convictions for domestic violence and endangering children.
{¶ 24} Nevertheless, albeit as part of his third assignment of error, Litton argues his
convictions must be reversed because he testified that he merely spanked A.L. one time with
a wooden spoon, thus constituting permissible parental discipline. The trial court clearly
found Litton's claim that he only spanked A.L. once lacked credibility when compared to the
testimony of A.L. As noted above, the trial court found A.L.'s testimony regarding how he
received his injuries was both "compelling and convincing." As the trier of fact is in the best
position to judge the credibility of the witnesses, "we will not disturb the trial court's finding in
regard to which version of events was credible, and which was not." State v. Bonner, 12th
Dist. Butler No. CA2012-09-195, 2013-Ohio-3670, ¶ 13.
{¶ 25} In order to use parental discipline as a defense, the discipline must be both
proper and reasonable. State v. Zielinski, 12th Dist. No. CA2010-12-121, 2011-Ohio-6535,
¶ 24, citing State v. Suchomski, 58 Ohio St.3d 74, 75 (1991). Taking A.L.'s testimony as
true, we find nothing about Litton's conduct that convinces this court he was engaged in
proper and reasonable parental discipline of A.L. Again, according to A.L.'s testimony, which
the trial court found credible, Litton got mad and hit A.L. with his hand, a rod, and a fishing
pole before throwing him into a wall and dumping his toys over his head after he failed to
complete his homework in a timely fashion. This caused A.L. to suffer bruising, some of
which was severe, to his buttocks, legs, arm, and hand, as well as an abrasion on his
forehead. Litton's reaction to A.L. not completing his homework more quickly was neither
proper, nor reasonable. State v. Luke, 3d Dist. Union No. 14-10-26, 2011-Ohio-4330, ¶ 21
(defining "proper" as "suitable or appropriate" and defining "reasonable" as "not extreme or
excessive"). Therefore, because there was sufficient evidence to support Litton's convictions
for domestic violence and endangering children, the trial court did not err by denying his
motion for a new trial. -9- Preble CA2016-04-005
{¶ 26} In light of the foregoing, having found no merit to any of Litton's claims herein,
Litton's second assignment of error is overruled.
{¶ 27} Assignment of Error No. 3:
{¶ 28} APPELLANT'S CONVICTIONS FOR DOMESTIC VIOLENCE AND
ENDANGERING CHILDREN ARE BASED UPON LEGALLY INSUFFICIENT EVIDENCE
BECAUSE APPELLANT ENGAGED IN REASONABLE AND PROPER PARENTAL
DISCIPLINE.
{¶ 29} In his third assignment of error, Litton argues his convictions for domestic
violence and endangering child were not supported by sufficient evidence and were
otherwise against the manifest weight of the evidence. As we have already determined that
there was sufficient evidence to support Litton's convictions when reviewing Litton's second
assignment of error, we will limit our analysis in this assignment of error to whether his
convictions were against the manifest weight of the evidence. After a thorough review of the
record, we find that they were not.
{¶ 30} 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." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372,
¶ 14. 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.
Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
However, 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 - 10 - Preble CA2016-04-005
trier of fact to decide. State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-
5226, ¶ 81. An appellate court will overturn a conviction due to the manifest weight of the
evidence only in extraordinary circumstances when the evidence presented at trial weighs
heavily in favor of acquittal. State v. Blair, 12th Dist. Butler No. CA2014-01-023, 2015-Ohio-
818, ¶ 43.
{¶ 31} Litton claims his convictions were against the manifest weight of the evidence
because A.L.'s testimony was inconsistent and unreliable since it became "more elaborate
with every telling." Litton also claims his convictions were against the manifest weight of the
evidence since there was testimony A.L. may have received some of his bruising from
wrecking his bicycle. However, as noted above, the trial court heard all of the testimony and
determined that A.L.'s version as to how he received his injuries was "compelling and
convincing." This was well within the trial court's purview as the trier of fact. Moreover,
although faced with conflicting evidence, it is well-established that "a conviction is not against
the manifest weight of the evidence simply because the trier of fact believed the prosecution
testimony." State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.
Therefore, because this is not one of those extraordinary cases where the evidence
presented at trial weighs heavily in favor of acquittal, Litton's third assignment of error is
overruled.
{¶ 32} Judgment affirmed.
M. POWELL, P.J., and RINGLAND, J., concur.
- 11 -