State v. Reeves

2015 Ohio 363

Opinion

[Cite as State v. Reeves, 2015-Ohio-363.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, : CASE NOS. CA2014-03-003 Plaintiff-Appellee, : CA2014-03-004

: OPINION - vs - 2/2/2015 :

CHARLES A. REEVES, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case Nos. 13 CRI 00245, 13 CRI 00246

Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant- appellant

RINGLAND, P.J.

{¶ 1} Defendant-appellant, Charles A. Reeves, appeals from his convictions in the

Fayette County Court of Common Pleas for endangering children, receiving stolen property,

and violating a protection order. For the reasons outlined below, we affirm the decisions of

the trial court.

{¶ 2} On September 16, 2013, Reeves was arrested after it was reported his six- Fayette CA2014-03-003 CA2014-03-004

year-old son had black and blue marks all over his body. As a result, an ex parte civil

protection order was issued prohibiting Reeves from having contact with his son and also

barring Reeves from possessing deadly weapons. The next month, as a part of a sting

operation conducted by the Fayette County Sheriff's Office, Reeves purchased a firearm

from an undercover police officer who had represented to Reeves that the firearm had been

stolen.

{¶ 3} On October 21, 2013, Reeves was indicted in two separate cases. Relevant to

this appeal, in case number 13CRI00245, Reeves was indicted on two counts of endangering

children. In case number 13CRI00246, Reeves was indicted on one count of receiving stolen

property and one count of violating a protection order. The cases proceeded to separate jury

trials.

{¶ 4} At the trial held on March 13, 2014, for endangering children, several law

enforcement officers, medical professionals, and members of the child's family testified. The

facts revealed that the child's paternal grandmother discovered multiple bruises on him that

covered his backside. Grandmother called the police who took photos of the child's bruises

and arrested Reeves. Reeves admitted to the police to disciplining the child over the

weekend, and officers later recovered a paddle consisting of a piece of wood covered with

electrical tape at Reeves' residence. Numerous photos of the bruises were admitted into

evidence as well as a phone conversation made by Reeves from jail. During this phone call,

Reeves stated he was stressed at the time and maybe hit the child harder than was needed.

At trial, Reeves admitted to making such a statement.

{¶ 5} At the trial held on January 15, 2014, for receiving stolen property and violating

a protection order, Reeves' counsel stipulated to the admission of an ex parte civil protection

order limiting Reeves' contact with the child and prohibiting him from possessing or obtaining

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a deadly weapon. It was undisputed that an undercover police officer represented to Reeves

that the pistol was "hot" and stolen from a house in Pike County. In fact, the pistol had not

been stolen.

{¶ 6} In case number 13CRI00245, Reeves was found guilty of both counts of

endangering children, which were merged for the purposes of sentencing. Reeves was

sentenced to 36 months in prison. In case number 13CRI00246, Reeves was found guilty of

receiving stolen property and violating a protection order, which were also merged for the

purposes of sentencing. Reeves was sentenced to 12 months in prison to run consecutively

to his prison sentence in case number 13CRI00245.

{¶ 7} Reeves now appeals and asserts three assignments of error for review.

{¶ 8} Assignment of Error No. 1:

{¶ 9} [REEVES] RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN

CASE NO 13CRI00246, AS COUNSEL STIPULATED [TO] THE LAWFULNESS OF THE EX

PARTE ORDER OF PROTECTION WHICH WAS VOID AB INITIO AS IT DID NOT

CONTAIN THE SIGNATURE OF EITHER A JUDGE OR A MAGISTRATE.

{¶ 10} Reeves argues that his counsel was ineffective because counsel stipulated to

the validity of an ex parte civil protection order when the protection order was void.

Specifically, Reeves asserts that the protection order was void because it was only signed by

a clerk "per phone authorization" of the judge and not by the judge himself. To support his

argument, Reeves relies on case law holding that search warrants without a valid signature

by a judge or magistrate are void ab initio.

{¶ 11} To prevail on an ineffective assistance of counsel claim, an appellant must

show his trial counsel's performance fell below an objective standard of reasonableness and

that he was prejudiced as a result. State v. Ward-Douglas, 12th Dist. Warren No. CA2011-

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05-042, 2012-Ohio-4023, ¶ 96, citing Strickland v. Washington, 466 U.S. 668, 687-688, 693,

104 S.Ct. 2052 (1984). In order to demonstrate prejudice, it must be established that but for

trial counsel's errors, there is a reasonable probability that the result of trial would have been

different. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 42.

A "reasonable probability" is a probability that is "sufficient to undermine confidence in the

outcome." State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, ¶ 6, quoting Strickland at 694.

The failure to make an adequate showing on either prong is fatal to an ineffective assistance

of counsel claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535,

¶ 50. Additionally, trial counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment. State

v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14.

{¶ 12} While Reeves may be correct in stating that search warrants are void ab initio

without the signature of a judge or a magistrate before a search is conducted, the issue in the

case at bar does not relate to a search warrant. See, e.g., State v. Williams, 57 Ohio St.3d

24 (1991). Rather, the issue concerns an ex parte civil protection order issued pursuant to

R.C. 3113.31. According to this statute, after an ex parte hearing is held, the court issues

temporary orders. R.C. 3113.31(D)(1). For an ex parte civil protection order, the only 1 requirement is that the order be "issued" or "approved." See R.C. 3113.31(F)(1). The

statute does not prohibit the approval of the ex parte order where a clerk obtains

authorization to sign the order per phone instructions of the judge. As such, Reeves' trial

counsel stipulating to the admission of the ex parte civil protection order approved by the

1. We note for an order to be a formal judgment entry that is final and appealable, a judge's signature is needed pursuant to Civ.R. 58. Brackmann Communications, Inc. v. Ritter, 38 Ohio App.3d 107, 109 (12th Dist.1987). Whether the order was final and appealable is not an issue in this case because the ex parte civil protection order is only a temporary order. See R.C. 3113.31(G); Civ.R. 54. -4- Fayette CA2014-03-003 CA2014-03-004

judge did not fall below an objective standard of reasonableness. Reeves' first assignment of

error is overruled.

{¶ 13} Assignment of Error No. 2:

{¶ 14} THE TRIAL COURT ERRED IN CASE NO. 13CRI00246, BY DENYING

[REEVES'] MOTION TO DISMISS AND MOTION FOR ACQUITTAL AS R.C. 2913.51(B) IS

UNCONSTITUTIONALLY VOID FOR VAGUENESS.

{¶ 15} Reeves argues that the statute governing receiving stolen property, R.C.

2913.51, is unconstitutionally void for vagueness because its subsections are unclear such

that a person of ordinary intelligence cannot understand what conduct is prohibited by the

statute. Reeves asserts that R.C. 2913.51(A) and (B) are unclear when read together

because R.C. 2913.51(A) requires the property at issue to actually be stolen, while R.C.

2913.51(B) indicates otherwise.

{¶ 16} All legislative enactments enjoy a strong presumption of constitutionality. State

v. Hendrix, 144 Ohio App.3d 328, 332 (12th Dist.2001), citing State v. Collier, 62 Ohio St.3d

267, 269 (1991). "The party asserting that a statute is unconstitutional must prove this

assertion beyond a reasonable doubt in order to prevail." Collier at 269. When a statute is

alleged to be void for vagueness, if possible all doubts will be resolved in favor of the

constitutionality of the statute. Hendrix at 332. To survive a void-for-vagueness challenge,

the statute at issue must be written so that a person of common intelligence is able to

determine what conduct is prohibited. State v. Williams, 88 Ohio St.3d 513, 532 (2000),

citing Chicago v. Morales, 527 U.S. 41, 56-57, 119 S.Ct. 1849 (1999). Additionally, the

statute must provide sufficient standards to prevent arbitrary or discriminatory enforcement.

Id.

{¶ 17} Regarding the statute at issue, R.C. 2913.51(A) states:

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No person shall receive, retain, or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense.

(Emphasis added.) Furthermore, R.C. 2913.51(B) states:

It is not a defense to a charge of receiving stolen property in violation of this section that the property was obtained by means other than through the commission of a theft offense if the property was explicitly represented to the accused person as being obtained through the commission of a theft offense.

{¶ 18} We fail to see how these subsections are inconsistent or unclear. Contrary to

Reeves' argument, R.C. 2913.51(A) does not require the property at issue to actually be

stolen. Rather, it provides that a person may be found guilty of receiving stolen property

when he or she has reasonable cause to believe the property was obtained through a theft

offense. See State v. Bentz, 2 Ohio App.3d 352 (1st Dist.1981) (using the term "reasonable

cause" does not mean the property must be stolen). Other courts have determined that R.C.

2913.51(A) is not void for vagueness. See Bentz; State v. Meeks, 8th Dist. Cuyahoga No.

47852, 1984 WL 5596 (May 31, 1984). R.C. 2913.51(B) further clarifies R.C. 2913.51(A) by

stating it is not a defense of the accused if the property at issue was not stolen when it was

explicitly represented to the accused that the property was, in fact, stolen. By reading the

subsections together, it is clear that the property at issue does not have to be stolen in order

for a person to be found guilty of receiving stolen property under R.C. 2913.51. As such, we

find that the language utilized in R.C. 2913.51(A) and (B) gives persons of ordinary

intelligence notice that the property does not have to be stolen in order to violate the statute

and the language is sufficiently clear to prevent arbitrary enforcement. Reeves' second

assignment of error is overruled.

{¶ 19} Assignment of Error No. 3:

{¶ 20} THE TRIAL COURT ERRED IN DENYING [REEVES'] MOTION FOR

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ACQUITTAL UNDER CRIM. RULE 29 [sic] IN CASE NO. 13CRI00245 AS THE EVIDENCE

FAILS TO SUPPORT A COURSE OF CONDUCT AS REQUIRED BY THE STATUTE R.C.

2919.22(B)(4) BUT RATHER SUPPORTS ONLY A SINGLE INSTANCE OF PARENTAL

DISCIPLINE SUPPORTING ONLY A MISDEMEANOR OFFENSE.

{¶ 21} Reeves argues the incident underlying his conviction for child endangering only

involved a single occurrence of parental discipline, and as such, the trial court should have

granted his motion for acquittal. Specifically, he asserts that Reeves testified that he

spanked the child over the weekend and the bruises on the child were consistent with a

single disciplinary action.

{¶ 22} Pursuant to Crim.R. 29(A), "[t]he 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 of

acquittal of one or more offenses charged * * * if the evidence is insufficient to sustain a

conviction of such offense or offenses." This court reviews a trial court's denial of a Crim.R.

29 motion for acquittal using the same standard as that used for determining whether a

verdict is supported by sufficient evidence. State v. Rivera, 12th Dist. Butler No. CA2012-11-

220, 2013-Ohio-3203, ¶ 8.

{¶ 23} A determination as to whether the evidence presented at trial is legally sufficient

to sustain a verdict is a question of law. State v. Flores, 12th Dist. Warren No. CA2014-03-

037, 2014-Ohio-5751, ¶ 10. "When reviewing the sufficiency of the evidence to support a

criminal 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." Id. Accordingly, "[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.

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Dixon, 12th Dist. Clermont No. CA2007-01-012, 2007-Ohio-5189, ¶ 13, quoting State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶ 24} R.C. 2919.22(B)(4) prohibits a person from "[r]epeatedly administer[ing]

unwarranted disciplinary measures to the child, when there is a substantial risk that such

conduct, if continued, will seriously impair or retard the child's mental health or development."

{¶ 25} In the present case, Dr. Kristin McCallum, a family physician on contract with

the Ross County Child Protection Center, testified that the child told her that his dad "beat

[him] a thousand times" using a "one by four wrapped in electric[al] tape." Dr. McCallum

testified that while there is no exact science for determining the age of bruises, she estimated

that the bruises on the child were incurred four to five days previously. Julie Oates, a

professional clinical counselor, stated that when children are repeatedly exposed to abuse,

the children will have problems with maladaptive behaviors. Matt Pfeifer, a patrolman with

the Washington Court House Police Department, testified that Reeves admitted to

disciplining the child over the weekend. Adam Rummer, a patrol deputy with the Fayette

County Sheriff's Office, testified that Reeves admitted to "whipping" the child because he

would not listen. While Kathryn Reeves, the child's mother, testified that the child was not

spanked very often, Reeves testified that that he was stressed at the time and probably hit

the child harder than warranted. Reeves further testified that he told an officer that he had

spanked his child frequently, but did not specify an amount because the child had been

having several behavior problems at school. Photographs were admitted showing the extent

of the child's bruising, and Patrolman Pfeifer testified that when he arrived at Grandmother's

house he observed the child very bruised from the small of his back to the middle of his thigh

that reached across his backside.

{¶ 26} Based on the evidence presented at trial, we conclude the trial court's verdict

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was supported by sufficient evidence, and the trial court did not err in denying Reeves'

Crim.R. 29 motion. Specifically, a rational trier of fact could have found that Reeves

repeatedly administered unwarranted discipline to his child. While the child exaggerated by

stating he was beaten a thousand times, the child's statement indicates that multiple corporal

disciplinary measures occurred. Additionally, the bruising was on several locations of the

child's body. Furthermore, the testimony from medical personnel did not indicate that the

child's bruising stemmed from one event. As any rational trier of fact, when viewing the

evidence in a light most favorable to the prosecution, could have found the essential

elements of child endangering proven beyond a reasonable doubt, the jurors were free to

discern the evidence and evaluate the credibility of the witnesses. As such, Reeves' third

{¶ 27} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

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