State v. Bush

152 N.E.3d 892

2020 Ohio 772

STATE of Ohio, Plaintiff-Appellee,

v.Amanda BUSH, Defendant-Appellant.

NO. C-180625

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: March 4, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant.

OPINION.

Bergeron, Judge.

{¶1} Sometimes, even the best-behaved children prove incapable of following simple directions from their parents. A mother instructed her four-year-old daughter to play in their front yard with her elder brother. Wandering outside and seeing the brother nowhere, the girl left the premises to explore across the street. Police officers intercepted her moments later and returned her home, with the entire incident lasting about five minutes. Although the mother was convicted for child endangerment, on the record before us, we find that the state failed to present sufficient evidence of the mother's recklessness. We accordingly reverse her conviction.

I.

{¶2} In June 2018, during a routine patrol, Detective Chris Jones (accompanied by a training officer) observed a four-year-old girl darting across a two-lane road in the Mt. Healthy area and weaving in and out of parked cars as she went. Concerned about the child, the two officers stopped their patrol vehicle and approached her, noticing the child was shoeless and unsupervised. Though the child could not provide her address, she was able to lead the officers to her house, about 100 yards away from where the officers found her. Upon arriving at the child's home five minutes later, the officers knocked on defendant-appellant Amanda Bush's door, informing Ms. Bush they discovered her child alone and running across the street.

{¶3} Surprised, Ms. Bush explained that her ten-year-old son was supposed to be watching the child while they played in the front yard. The officer, however, relayed that they observed no child either in the front yard or in the vicinity where they first discovered the errant child. After speaking with Ms. Bush for a couple of minutes, Detective Jones requested that Ms. Bush accompany him to his patrol car, inquiring further about her unsupervised daughter. During this conversation, Ms. Bush repeatedly emphasized that her daughter had not previously run off on her own like this and that she knew the boundaries where she was allowed to play. Further, Ms. Bush maintained that her daughter had just come inside for a banana before she sent her back out to play with her brother (a child's bicycle rested on Ms. Bush's front lawn at the time). Nevertheless, Detective Jones issued a citation to Ms. Bush for child endangerment.

{¶4} At trial, Detective Jones testified to the events above, noting that he discovered the child unsupervised, observed her darting across the street and weaving between parked cars on the road, and never once noticed an elder child in the vicinity during the entire 20-minute interaction. Testifying in her own defense, Ms. Bush reiterated that, on the day in question, she instructed her daughter to go play in the front yard with her brother, who she had just seen outside. In describing the event, Ms. Bush noted that her daughter was not outside for even five minutes before the officers came knocking on her door. Ms. Bush also discussed the boundaries she sets for her children, maintaining that her daughter may not cross the street alone or venture anywhere by herself, and that her sons know they may not roam from the house with their sister in tow. In addition to these witnesses, both the state and Ms. Bush admitted into evidence the body cam footage of the events described above.

{¶5} At the end of trial, the court explained that it would watch the entire video and render a decision at a later date. A week later, the court found Ms. Bush guilty. During sentencing, the court made several references to a specific portion of the video where a young, unidentified man walks up to the officers while they are speaking to the four-year-old. Detective Jones specifically asks the man whether he "knows who she [the child] is," to which the man vaguely replies, "it's happened like twice." However, this young man never testified at trial, and in fact, defense counsel objected at trial to Detective Jones testifying about this conversation (presumably on hearsay grounds). Ultimately, the court sentenced Ms. Bush to 180 days in jail (all 180 days suspended), a $100 fine and court costs, and 18 months of probation. From this conviction, Ms. Bush raises a single assignment of error, challenging both the weight and sufficiency of her child endangerment conviction.

II.

{¶6} We begin with Ms. Bush's sufficiency argument since it is dispositive of this appeal. In evaluating the sufficiency of the evidence, the court must ask, after viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found all the necessary elements of the crime beyond a reasonable doubt. See State v. Conyers , 1st Dist. Hamilton No. C-150439, 2016-Ohio-2952, 2016 WL 2837615, ¶ 9, citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Ms. Bush contends the state failed to prove beyond a reasonable doubt that she possessed the requisite mens rea, recklessness, and that she created a substantial risk of harm to her child—both essential elements of a child endangerment conviction under R.C. 2919.22(A). Because Ms. Bush's mens rea challenge is determinative, we accordingly turn our attention first to whether Ms. Bush acted with reckless intent.

{¶7} R.C. 2919.22(A) provides 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." Although the language of the statute fails to set forth the specific culpable mental state, the necessary mens rea for the offense is recklessness. See State v. Hartley , 194 Ohio App.3d 486, 2011-Ohio-2530, 957 N.E.2d 44, ¶ 30 (1st Dist.), citing State v. McGee , 79 Ohio St.3d 193, 680 N.E.2d 975 (1997), syllabus ("The Ohio Supreme Court has held that recklessness is the required degree of culpability for a violation of R.C. 2919.22(A), although no degree of culpability is specified in the statute."). Pursuant to R.C. 2901.22(C), 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."

{¶8} Perhaps not surprisingly, child endangerment cases are typically fact-specific. See Beachwood v. Hill , 8th Dist. Cuyahoga No. 93577, 2010-Ohio-3313, 2010 WL 2783140, ¶ 21 ("[I]t seems that the outcome of child endangerment cases are highly fact-specific."); State v. Hughes , 3d Dist. Shelby No. 17-09-02, 2009-Ohio-4115, 2009 WL 2488102, ¶ 34 ("[W]e note that the outcome of this case is intensely fact-specific[.]"). When evaluating recklessness, courts generally review facts such as 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. See State v. Greenlee , 2d Dist. Montgomery No. 24660, 2012-Ohio-1432, 2012 WL 1079880, ¶ 15 (affirming the trial court's finding that the parent acted recklessly when the father did not realize his four-year-old son was missing for over an hour); State v. McLeod , 165 Ohio App.3d 434, 2006-Ohio-579, 846 N.E.2d 915, ¶ 14 (2d Dist.) (reversing the trial court's finding that the caregiver acted recklessly when he left a five-year-old on the playground alone for up to ten minutes); State v. Miller , 3d Dist. Logan Nos. 8-07-07 and 8-07-08, 2007-Ohio-6711, 2007 WL 4373231, ¶ 19 (finding the mother acted recklessly when "she was aware that [her three-year-old daughter] was leaving the home," since the officer had discovered the child unsupervised just four days prior); Hughes at ¶ 29 (reversing the trial court's finding that the father acted recklessly when leaving his five-year-old child in a running car for 27 minutes because the father left the child with a cell phone and kept the air conditioning on because of the weather, "demonstrate[ing] sufficient concern to negate the possibility of a finding that [father] exercised ‘heedless indifference’ and ‘perversely disregard[ed] a known risk[.]’ ").

{¶9} Turning to the evidence offered below, the state steers us to two pieces of evidence illustrating Ms. Bush's recklessness. First, the state emphasizes Detective Jones's testimony at trial, specifically his statements that, when discovered, the four-year-old was alone, and at no point during the 20-minute interaction did he view an older sibling in the vicinity. As to the second piece of evidence, the state points to a portion of the body cam footage where a young man makes a comment to the officers ("it's happened like twice"), wielding that comment to establish that Ms. Bush has lost track of her daughter before.

{¶10} However, viewing the evidence in the light most favorable to the state, we find this evidence insufficient to prove beyond a reasonable doubt that Ms. Bush acted recklessly. Turning to the caselaw, we find the Second District's decision in McLeod instructive. In McLeod , the Second District held the state failed to produce sufficient evidence that the caregiver acted recklessly when he left a five-year-old child on the playground alone while he walked around the apartment complex. McLeod at ¶ 16. In reversing the defendant's conviction, the court noted that the defendant left the...