[Cite as State v. Melton, 2024-Ohio-3125.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29877 : v. : Trial Court Case No. 2021 CR 01103 : MATTHEW DALE MELTON : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on August 16, 2024
J. DAVID TURNER, Attorney for Appellant
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
.............
EPLEY, P.J.
{¶ 1} Matthew Dale Melton appeals from his conviction in the Montgomery County
Court of Common Pleas for involuntary manslaughter (proximate result of endangering
children), a felony of the first degree. He claims that the trial court erred in denying his
motion to dismiss, because the endangering children charge should have been a -2-
misdemeanor and thus could not serve as the predicate felony offense for involuntary
manslaughter under R.C. 2903.04(A). For the following reasons, the trial court’s
judgment will be affirmed.
I. Procedural History
{¶ 2} On June 8, 2021, Melton was indicted on involuntary manslaughter (which
caused the death of K.M.), aggravated vehicular homicide, and endangering children
(parent/serious physical harm). Both aggravated vehicular homicide and endangering
children were charged as third-degree felonies. Because the underlying endangering
children offense was a felony, involuntary manslaughter was charged under R.C.
2903.04(A) as a first-degree felony. Melton initially pled not guilty to the charges.
{¶ 3} Melton filed several motions during the pendency of his case, including a
motion to dismiss the count of involuntary manslaughter. He argued that endangering
children is a felony when there is “serious physical harm,” but the language of the statute
is silent as to circumstances involving the death of a child. Melton contended, therefore,
that the proper predicate offense for an involuntary manslaughter charge was
endangering children as a misdemeanor. The trial court overruled the motion,
concluding that “death itself is encompassed within the definition of serious harm.”
{¶ 4} Melton subsequently pled no contest to the three charges. After merging
the offenses, the trial court imposed a minimum of eight years to a maximum of twelve
years in prison for involuntary manslaughter, the offense elected by the State. The court
also suspended Melton’s driver’s license for 15 years and ordered him to pay court costs.
{¶ 5} Melton appeals from his conviction. His sole assignment of error claims that -3-
the trial court erred in denying his motion to dismiss the count of involuntary manslaughter
as a felony of the first degree.
II. Review of Motion to Dismiss
{¶ 6} “Prior to trial, any party may raise by motion any defense, objection,
evidentiary issue, or request that is capable of determination without the trial of the
general issue.” State v. Fields, 2017-Ohio-400, ¶ 18 (2d Dist.), citing Crim.R. 12(C);
State v. Palmer, 2012-Ohio-580, ¶ 22. “[A] motion to dismiss ‘tests the sufficiency of the
indictment, without regard to the quantity or quality of evidence that may be produced by
either the state or the defendant.’ ” Id., quoting State v. Patterson, 63 Ohio App.3d 91,
95 (2d Dist. 1989).
{¶ 7} We review de novo a trial court’s decision on a motion to dismiss. Fields at
¶ 19; State v. Miles, 2018-Ohio-4444, ¶ 7 (2d Dist.). “De novo review requires an
independent review of the trial court’s decision without any deference to the trial court’s
determination.” State v. Clay, 2016-Ohio-424, ¶ 5 (2d Dist.).
{¶ 8} Melton was indicted for involuntary manslaughter in violation of R.C.
2903.04(A). That statute reads, “No person shall cause the death of another . . . as a
proximate result of the offender’s committing or attempting to commit a felony.” R.C.
2903.04(A). A violation of R.C. 2903.04(A) is a first-degree felony. R.C. 2903.04(C).
In contrast, when the death is a proximate result of the offender’s committing or attempting
to commit a misdemeanor (a violation of R.C. 2903.04(B)), the offense is a third-degree
felony. R.C. 2903.04(C).
{¶ 9} The predicate offense for Melton’s involuntary manslaughter charge was -4-
endangering children in violation of R.C. 2919.22(A). That statute provides, in relevant
part, that “[n]o person, who is the parent . . . 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.” R.C. 2919.22(A).
{¶ 10} R.C. 2919.22(E) establishes different degrees of the offense of endangering
children depending on the subsection and circumstances involved. Generally, a
violation of R.C. 2919.22(A) is a first-degree misdemeanor. R.C. 2919.22(E)(2)(a). It is
elevated to a third-degree felony if the violation “results in serious physical harm to the
child involved.” R.C. 2919.22(E)(2)(c). “Serious physical harm to persons” includes
“[a]ny physical harm that carries a substantial risk of death.” R.C. 2901.01(A)(5)(b).
{¶ 11} On appeal, Melton argues, as he did in the trial court, that the language in
the endangering children statute is silent as to circumstances involving the death of a
child. Citing State v. Hardy, 2017-Ohio-7635 (2d Dist.), he states that R.C. 2919.22
“does not contain an enhanced penalty provision addressing a situation where the offense
results in the death of a child.” Melton contends, therefore, that when endangering
children results in the child’s death, the offense is a misdemeanor. Thus, an involuntary
manslaughter charge predicated on such an endangering children offense falls under
R.C. 2903.04(B) (committing or attempting to commit a misdemeanor), not R.C.
2903.04(A) (committing or attempting to commit a felony).
{¶ 12} In our view, death clearly falls within the statutory definition of “serious
physical harm to persons.” Accord State v. Lloyd, 2022-Ohio-4259, ¶ 22 (“In this case,
the serious physical harm that occurred was the victim’s death.” (Emphasis in original)). -5-
It is axiomatic that a physical harm that causes death necessarily “carries a substantial
risk of death.” Although we have not previously addressed this issue directly, we have
consistently affirmed homicide and endangering children convictions involving the death
of a child when the predicate offense required “serious physical harm.” E.g., State v.
Pulley, 2023-Ohio-3277 (2d Dist.) (affirming convictions for felony murder (felonious
assault) and endangering children (parent/ serious physical harm) based on the death of
a five-week-old child); State v. St. John, 2019-Ohio-650 (2d Dist.) (affirming felony murder
(felonious assault) and child endangering (parent/serious physical harm) convictions
based on death of girlfriend’s young child); Hardy, 2017-Ohio-7635 (2d Dist.).
{¶ 13} Hardy does not support Melton’s position. In that case, the defendant’s
dog attacked and killed the defendant’s infant step-grandson, which led to the defendant’s
being charged with multiple counts of involuntary manslaughter under both R.C.
2903.04(A) and 2903.04(B), as well as endangering children in violation of R.C
2919.22(A) (parent-serious harm) and failure to confine a vicious dog. Prior to trial,
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[Cite as State v. Melton, 2024-Ohio-3125.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29877 : v. : Trial Court Case No. 2021 CR 01103 : MATTHEW DALE MELTON : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on August 16, 2024
J. DAVID TURNER, Attorney for Appellant
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
.............
EPLEY, P.J.
{¶ 1} Matthew Dale Melton appeals from his conviction in the Montgomery County
Court of Common Pleas for involuntary manslaughter (proximate result of endangering
children), a felony of the first degree. He claims that the trial court erred in denying his
motion to dismiss, because the endangering children charge should have been a -2-
misdemeanor and thus could not serve as the predicate felony offense for involuntary
manslaughter under R.C. 2903.04(A). For the following reasons, the trial court’s
judgment will be affirmed.
I. Procedural History
{¶ 2} On June 8, 2021, Melton was indicted on involuntary manslaughter (which
caused the death of K.M.), aggravated vehicular homicide, and endangering children
(parent/serious physical harm). Both aggravated vehicular homicide and endangering
children were charged as third-degree felonies. Because the underlying endangering
children offense was a felony, involuntary manslaughter was charged under R.C.
2903.04(A) as a first-degree felony. Melton initially pled not guilty to the charges.
{¶ 3} Melton filed several motions during the pendency of his case, including a
motion to dismiss the count of involuntary manslaughter. He argued that endangering
children is a felony when there is “serious physical harm,” but the language of the statute
is silent as to circumstances involving the death of a child. Melton contended, therefore,
that the proper predicate offense for an involuntary manslaughter charge was
endangering children as a misdemeanor. The trial court overruled the motion,
concluding that “death itself is encompassed within the definition of serious harm.”
{¶ 4} Melton subsequently pled no contest to the three charges. After merging
the offenses, the trial court imposed a minimum of eight years to a maximum of twelve
years in prison for involuntary manslaughter, the offense elected by the State. The court
also suspended Melton’s driver’s license for 15 years and ordered him to pay court costs.
{¶ 5} Melton appeals from his conviction. His sole assignment of error claims that -3-
the trial court erred in denying his motion to dismiss the count of involuntary manslaughter
as a felony of the first degree.
II. Review of Motion to Dismiss
{¶ 6} “Prior to trial, any party may raise by motion any defense, objection,
evidentiary issue, or request that is capable of determination without the trial of the
general issue.” State v. Fields, 2017-Ohio-400, ¶ 18 (2d Dist.), citing Crim.R. 12(C);
State v. Palmer, 2012-Ohio-580, ¶ 22. “[A] motion to dismiss ‘tests the sufficiency of the
indictment, without regard to the quantity or quality of evidence that may be produced by
either the state or the defendant.’ ” Id., quoting State v. Patterson, 63 Ohio App.3d 91,
95 (2d Dist. 1989).
{¶ 7} We review de novo a trial court’s decision on a motion to dismiss. Fields at
¶ 19; State v. Miles, 2018-Ohio-4444, ¶ 7 (2d Dist.). “De novo review requires an
independent review of the trial court’s decision without any deference to the trial court’s
determination.” State v. Clay, 2016-Ohio-424, ¶ 5 (2d Dist.).
{¶ 8} Melton was indicted for involuntary manslaughter in violation of R.C.
2903.04(A). That statute reads, “No person shall cause the death of another . . . as a
proximate result of the offender’s committing or attempting to commit a felony.” R.C.
2903.04(A). A violation of R.C. 2903.04(A) is a first-degree felony. R.C. 2903.04(C).
In contrast, when the death is a proximate result of the offender’s committing or attempting
to commit a misdemeanor (a violation of R.C. 2903.04(B)), the offense is a third-degree
felony. R.C. 2903.04(C).
{¶ 9} The predicate offense for Melton’s involuntary manslaughter charge was -4-
endangering children in violation of R.C. 2919.22(A). That statute provides, in relevant
part, that “[n]o person, who is the parent . . . 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.” R.C. 2919.22(A).
{¶ 10} R.C. 2919.22(E) establishes different degrees of the offense of endangering
children depending on the subsection and circumstances involved. Generally, a
violation of R.C. 2919.22(A) is a first-degree misdemeanor. R.C. 2919.22(E)(2)(a). It is
elevated to a third-degree felony if the violation “results in serious physical harm to the
child involved.” R.C. 2919.22(E)(2)(c). “Serious physical harm to persons” includes
“[a]ny physical harm that carries a substantial risk of death.” R.C. 2901.01(A)(5)(b).
{¶ 11} On appeal, Melton argues, as he did in the trial court, that the language in
the endangering children statute is silent as to circumstances involving the death of a
child. Citing State v. Hardy, 2017-Ohio-7635 (2d Dist.), he states that R.C. 2919.22
“does not contain an enhanced penalty provision addressing a situation where the offense
results in the death of a child.” Melton contends, therefore, that when endangering
children results in the child’s death, the offense is a misdemeanor. Thus, an involuntary
manslaughter charge predicated on such an endangering children offense falls under
R.C. 2903.04(B) (committing or attempting to commit a misdemeanor), not R.C.
2903.04(A) (committing or attempting to commit a felony).
{¶ 12} In our view, death clearly falls within the statutory definition of “serious
physical harm to persons.” Accord State v. Lloyd, 2022-Ohio-4259, ¶ 22 (“In this case,
the serious physical harm that occurred was the victim’s death.” (Emphasis in original)). -5-
It is axiomatic that a physical harm that causes death necessarily “carries a substantial
risk of death.” Although we have not previously addressed this issue directly, we have
consistently affirmed homicide and endangering children convictions involving the death
of a child when the predicate offense required “serious physical harm.” E.g., State v.
Pulley, 2023-Ohio-3277 (2d Dist.) (affirming convictions for felony murder (felonious
assault) and endangering children (parent/ serious physical harm) based on the death of
a five-week-old child); State v. St. John, 2019-Ohio-650 (2d Dist.) (affirming felony murder
(felonious assault) and child endangering (parent/serious physical harm) convictions
based on death of girlfriend’s young child); Hardy, 2017-Ohio-7635 (2d Dist.).
{¶ 13} Hardy does not support Melton’s position. In that case, the defendant’s
dog attacked and killed the defendant’s infant step-grandson, which led to the defendant’s
being charged with multiple counts of involuntary manslaughter under both R.C.
2903.04(A) and 2903.04(B), as well as endangering children in violation of R.C
2919.22(A) (parent-serious harm) and failure to confine a vicious dog. Prior to trial,
Hardy sought to dismiss all counts except failure to confine a vicious dog, arguing that
the more specific statute prevailed over the conflicting general statutes in the remaining
counts. The trial court denied the motion.
{¶ 14} In her direct appeal, Hardy raised the denial of her motion to dismiss.
While reviewing whether the various statutes presented an irreconcilable conflict, we
quoted the statutory language for involuntary manslaughter, both under R.C. 2903.04(A)
and 2903.04(B), as well as for endangering children and failure to confine a vicious dog.
We noted that “[e]ndangering children rises to a felony offense if the violation ‘results in -6-
serious physical harm to the child involved.’ R.C. 2919.22(E)(2)(c). The endangering
children statute does not contain an enhanced penalty provision addressing a situation
where the offense results in the death of the child. See R.C. 2919.22(E).” Hardy at ¶
53.
{¶ 15} Melton focuses on this last statement about the lack of an enhanced penalty
provision when a child dies. However, we do not read either that sentence or R.C.
2919.22(E)(2)(c) to mean that “serious physical harm” does not include death. To the
contrary, we later stated in Hardy that “[w]here serious physical harm results, as it did in
this case, the offense [of endangering children] is a felony of the third degree.”
(Emphasis added.) Hardy at ¶ 56. Our statement merely acknowledged that R.C.
2919.22(E) does not provide a penalty for death, the most severe form of harm, separately
from other types of serious physical harm.
{¶ 16} The trial court did not err in denying Melton’s motion to dismiss.
Accordingly, his assignment of error is overruled.
III. Conclusion
{¶ 17} The trial court’s judgment will be affirmed.
WELBAUM, J. and HUFFMAN, J., concur.