State v. Spivey

2021 Ohio 2598

• Court: Ohio Court of Appeals
• Decided: July 30, 2021
• Docket: C-200125 C-200126 C-200127 C-200128 C-200129
• Status: Published

Opinion

[Cite as State v. Spivey, 2021-Ohio-2598.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-200125 C-200126 Plaintiff-Appellee, C-200127 : C-200128 vs. C-200129 TRIAL NOS. C-20CRB-1352A : NICOLE SPIVEY, C-20CRB-1352B C-20CRB-1352C Defendant-Appellant. : C-20CRB-1352D C-20CRB-1352E : O P I N I O N.

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in C-200128 and C-200129; Affirmed in Part, Sentences Vacated and Cause Remanded in C-200126 and C-200127; Appeal Dismissed in C- 200125

Date of Judgment Entry on Appeal: July 30, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

{¶1} Defendant-appellant Nicole Spivey1 (“Ball”) appeals her convictions

for theft, obstructing official business, falsification, and two counts of child

endangerment. In two assignments of error, she argues that her convictions for child

endangerment were not supported by sufficient evidence and were against the

manifest weight of the evidence and that the trial court erred in imposing separate

sentences for the offenses of obstructing official business and falsification because

they are allied offenses of similar import.

{¶2} Following our review of the record, we find that Ball’s convictions for

child endangerment were supported by both the sufficiency and the weight of the

evidence. But because the offenses of obstructing official business and falsification

were allied offenses of similar import, we hold that the trial court erred in imposing

sentences on both offenses, and we remand for resentencing. We dismiss the appeal

numbered C-200125, in which Ball has appealed her theft conviction, because she

has not assigned any error with respect to that conviction.

Factual and Procedural Background

{¶3} On January 19, 2020, Ball was stopped when she was leaving a Target

store by a security officer for the suspected theft of two pairs of headphones. After

being stopped, Ball informed the security officer that her two grandchildren were in

her vehicle in the store’s parking lot. The security officer called the police twice, first

regarding Ball’s shoplifting and again to alert them to the children’s presence in the

1 Spivey was also referred to as Nicole Ball throughout these proceedings. Because counsel referred to her as “Ball” at oral argument, we will refer to her as “Ball” throughout this opinion.

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car. When speaking with a police officer who responded to the scene, Ball refused to

provide identification and provided an incorrect social security number. Ball was

subsequently charged with theft, obstruction of official business, falsification, and

two counts of child endangerment.

{¶4} At a bench trial, the state presented testimony from Target security

officer Nicholas Roberts. Roberts testified that he observed Ball as she shopped in

the store, placed two pairs of headphones and two food items in her shopping basket,

and checked out utilizing the store’s self-checkout system. After witnessing Ball

place the headphones in a bag without scanning them, Roberts stopped Ball as she

was exiting from the store. He testified that Ball had all four items in her possession,

but her receipt documented that she only paid for the two food items. Roberts took

Ball to his office for questioning, where she informed him that she needed to leave

because she had two children in her car in the parking lot. Roberts was concerned

because it was extremely cold that day, and Ball told him that the children were six

years old and three years old and that her vehicle was not running. He called 911 to

report the children in the locked car. Roberts estimated that Ball had been in the

store for approximately ten to 15 minutes before he stopped her, and that she was in

his office for an additional five minutes before he called 911.

{¶5} Colerain Township police officer Anthony Hatcher testified that he

responded to a nonemergency dispatch regarding a shoplifter at Target, and that

when he was arriving on the scene he received an update regarding an additional call

from the store about two children inside a vehicle in the parking lot. Officer Hatcher

estimated that he arrived in the Target parking lot approximately five to ten minutes

after receiving the nonemergency dispatch. He met Roberts in the parking lot, where

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Roberts provided him with a description of Ball’s vehicle. Officer Hatcher

approached Ball’s vehicle, which was not running, and he saw two children in the

back seat. The children were wearing winter coats, but he did not see hats on them.

He additionally observed a plastic bag over the front-passenger window and frost on

the windows. Officer Hatcher testified that the outside temperature was

approximately 15 degrees, and that it was one of the coldest days that winter.

{¶6} After additional officers arrived on scene to assist with the children,

Officer Hatcher entered the store to speak with Ball. He asked her to provide

identification, and Ball responded that she did not have any. He then asked Ball to

provide her social security number, but the number Ball provided was incorrect and

matched a male. Ball subsequently provided at least four more incorrect social

security numbers to Officer Hatcher. Officer Hatcher ultimately ran a search on his

mobile computer with the address that Ball had earlier provided to Roberts, and

utilizing that address he obtained information for both Ball and someone named

“Nicole Whitaker” who had several open warrants. Ball told the officer that she did

not know anyone named Nicole Whitaker.

{¶7} Ball testified on her own behalf, stating that “Whitaker” was her

maiden name and that she had told this to Officer Hatcher. She explained that on

the day of these offenses she had been in Target with her grandchildren. After they

finished shopping and returned to her car, she realized that she had forgotten to

purchase something. She left her grandchildren in her car and went back into the

store. Ball estimated that she was in the store for approximately five minutes. She

testified that her grandchildren were six and three years old respectively, and that

they were wearing sweat suits, winter coats, boots, hats, and gloves. Ball addressed

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the plastic bag covering her front-passenger window, explaining that the window

would not roll all the way up and stopped approximately two to three inches from the

top. When questioned about the incorrect information that she provided to Officer

Hatcher, Ball denied attempting to conceal her identity from him, stating that she

became nervous when speaking with him and confused her own social security

number with those of her children.

{¶8} The trial court found Ball guilty of all offenses. At sentencing, defense

counsel asked the trial court to merge the offenses of obstruction of official business

and falsification. The trial court responded that “I will merge, though, I will merge

the falsification and the obstruction, even though I’m not sure I have to, but I will do

that.” On the theft offense, the trial court imposed a sentence of 180 days in the

Hamilton County Justice Center. It credited Ball with 45 days for time served and

suspended the remaining 135 days. It additionally imposed a fine and costs, and

placed her on one year of community control. For the offense of falsification, the

trial court similarly imposed a sentence of 180 days, credited Ball with 45 days for

time served and suspended the remaining 135 days, and additionally imposed costs

and a period of community control. For the offense of obstruction of official

business, the trial court imposed a sentence of 45 days, and credited Ball with 45

days for time served. And on the two child-endangerment offenses, the court

imposed sentences of 180 days and a period of community control. It again credited

Ball with 45 days for time served and suspended the remainder of the sentences.

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Child Endangerment

{¶9} In her first assignment of error, Ball argues that her convictions for

child endangerment were not supported by sufficient evidence and were against the

manifest weight of the evidence.

{¶10} In a challenge to the sufficiency of the evidence, the question is

whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. In contrast, when considering a challenge to

the weight of the evidence, the court must examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the court clearly lost its

way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997).

{¶11} Ball was convicted of two counts of child endangerment in violation of

R.C. 2919.22(A), which provides in relevant part that “[n]o person, who is the parent,

guardian, custodian, person having custody or control, or person in loco parentis 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.” A “substantial

risk” is defined in R.C. 2901.01(A)(8) as “a strong possibility, as contrasted with a

remote or significant possibility, that a certain result may occur or that certain

circumstances may exist.”

{¶12} The necessary mens rea for a conviction for child endangerment under

R.C. 2919.22(A) is recklessness. State v. McGee, 79 Ohio St.3d 193, 195, 680 N.E.2d

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975 (1997); State v. Bush, 2020-Ohio-772, 152 N.E.3d 892, ¶ 7 (1st Dist.). “A person

acts recklessly when, with heedless indifference to the consequences, the person

disregards a substantial and unjustifiable risk that the person’s conduct is likely to

cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C).

{¶13} Ball contends that the state failed to establish that she recklessly

created a substantial risk of harm to her grandchildren. As previously recognized by

this court, “child endangerment cases are typically fact-specific.” Bush at ¶ 8. In

determining whether a parent acted recklessly, courts generally consider “the period

of time the parent or guardian left the child unsupervised, the age of the child,

whether the parent or guardian had any notice of the substantial risk (such as

awareness of the child’s propensity to engage in risky behavior), and any precautions

the parent took to negate the risk.” Id.

{¶14} Following our review of the record, we find sufficient evidence that

Ball recklessly created a substantial risk of harm to her grandchildren. Ball elected to

leave her three- and six-year-old grandchildren in a vehicle with a plastic bag over a

window that did not close all the way in an extremely cold, subfreezing temperature,

for a minimum of 15 minutes. The children were wearing winter coats, but not hats.

There existed a strong possibility that the children would be harmed as a result of

being left in a vehicle on such a cold day. Frost had already formed on the windows

of the car by the time that the officer arrived. After leaving the children, Ball entered

Target and attempted to steal two pairs of headphones. In doing so, Ball knowingly

took the risk of getting caught and being detained for her actions, resulting in the

children being left unattended in the car for a potentially unknown amount of time.

Ball took the risk that she could have been put in a room by herself with no way to

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alert anyone to the children in the car. And, even though she was able to tell the

Target employee about the children, there was no guarantee of how quickly the

police could arrive to extricate the children from the car. Ball’s behavior

demonstrated a heedless indifference to the consequences of her actions. See R.C.

2901.22(C).

{¶15} Ball argues that the facts of this case are analogous to those in State v.

Martin, 134 Ohio App.3d 41, 730 N.E.2d 386 (1st Dist.1999), and that she did not

create a substantial risk of harm to her grandchildren. In Martin, this court reversed

a conviction for child endangerment where the defendant left her almost nine-year-

old son sleeping in the backseat of a locked vehicle in a parking lot while she entered

a nearby store to return a gift. In Martin, the child accidentally caused the car to

change gears and roll out of the parking spot. We held that the state failed to

establish that Martin acted recklessly, stating that while her actions may have been

imprudent or even negligent, she had not perversely disregarded a known risk or

acted with heedless indifference to the consequences. Id. at 43. We further held that

the state failed to prove that Martin created a substantial risk of harm to her child.

Id.

{¶16} We find Martin easily distinguishable from the case at bar. The child

in Martin was nearly nine years old, whereas Ball’s grandchildren were three and six

years old. Further, extreme temperatures were not at issue in Martin, and, contrary

to the facts before us, there was no evidence in Martin that the weather posed a risk

to the child. Whereas Ball left her grandchildren unattended in a car for the

purposes of committing a theft, Martin entered a store for the purposes of returning

a gift and did not face the possibility of being detained for her actions.

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{¶17} Because, when viewed in the light most favorable to the prosecution,

the record established beyond a reasonable doubt that Ball recklessly created a

substantial risk of harm to her grandchildren, we hold that her convictions for child

endangerment were supported by sufficient evidence. See Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492, at paragraph two of the syllabus. And, as this was not the rare case

in which the trial court, in resolving conflicts in the evidence, clearly lost its way and

created a manifest miscarriage of justice, we further hold that Ball’s convictions were

not against the manifest weight of the evidence. See Thompkins, 78 Ohio St.3d at

387, 678 N.E.2d 541.

{¶18} Ball’s first assignment of error is accordingly overruled.

Allied Offenses

{¶19} In her second assignment of error, Ball argues that the trial court erred

in imposing separate sentences for the offenses of obstructing official business and

falsification because they are allied offenses of similar import.

{¶20} Under R.C. 2941.25, separate sentences may be imposed on a

defendant whose conduct supports multiple offenses if the offenses were dissimilar

in import, were committed separately, or were committed with a separate animus.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of

the syllabus; State v. Pettus, 1st Dist. Hamilton No. C-170712, 2019-Ohio-2023, ¶ 74.

{¶21} The state concedes that these offenses are allied offenses of similar

import and that, at sentencing, the trial court stated that it would merge these

offenses. The trial court, however, failed to do so. We sustain Ball’s assignment of

error and hold that the trial court erred in imposing separate sentences for the

9 OHIO FIRST DISTRICT COURT OF APPEALS

offenses of obstructing official business and falsification because they are allied

offenses of similar import.

Conclusion

{¶22} For the reasons set forth above, we vacate the sentences imposed for

the offenses of obstructing official business and falsification, and remand for a new

sentencing hearing on those offenses at which the state must elect which allied

offense it will pursue. The appeal numbered C-200125 is dismissed. The judgments

of the trial court are otherwise affirmed.

Judgments affirmed in C-200128 and C-200129; sentences vacated in part and cause remanded in C-200126 and C-200127; appeal dismissed in C-200125.

WINKLER and BOCK, JJ., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.