State v. Gurung

1

2024-Ohio-3202

STATE OF OHIO, Plaintiff-Appellee, v. GANGA GURUNG, Defendant-Appellant.

No. C-240073

Court of Appeals of Ohio, First District, Hamilton

August 23, 2024

Criminal Appeal From: Hamilton County Municipal Court Trial No. C-23CRB-16696

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, Joshua A Thompson, Assistant Public Defender, and Andrea Miceli, Legal Intern, for Defendant-Appellant.

OPINION

KINSLEY, JUDGE.

{¶1} Following a bench trial in the Hamilton County Municipal Court, defendant-appellant Ganga Gurung was convicted of one count of child endangerment in violation of R.C. 2919.22, a misdemeanor of the first degree. Gurung argues that his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence, and that the trial court erred in sentencing him. On the record before us, we hold that the State failed to present sufficient evidence that Gurung acted recklessly. We accordingly reverse the judgment of the trial court and discharge Gurung from further prosecution.

Factual and Procedural Background

{¶2} On September 24, 2023, Gurung's ten-year-old son N.G wandered naked into his neighbor's padlocked backyard and attempted to enter the neighbor's swimming pool. Unable to remove N.G. herself, the neighbor alerted another neighbor to contact the police, who then brought charges against Gurung for child endangerment.

{¶3} A bench trial took place on November 7, 2023. At the trial, the State called four witnesses: (1) the neighbor; (2) Officer Katie Long; (3) Sergeant Martin Case; and (4) Officer Louis Madecke.

{¶4} The neighbor testified that she lived next door to the Gurung family. She explained that, on September 24, 2023, she was in her backyard doing yard work when N.G. appeared naked through her open garage door and started walking toward her pool. She testified that she pulled him away from the pool, put him back in either his yard or garage, and returned to her home. According to the neighbor, N.G. returned and walked towards her pool again, this time heading toward the diving board. This behavior alarmed the neighbor because the pool was deeper at that end. As she explained, she again returned N.G. to his yard, but he later moved a chair against the chain linked fence that separated the two properties and attempted to climb over to once again gain access to her backyard. The neighbor then asked another resident of the neighborhood to call the police.

{¶5} According to the neighbor's testimony, she had spoken to Gurung about concerns with N.G. accessing her yard in the past. She had not, however, spoken to Gurung about the issue that day.

{¶6} On cross-examination, the neighbor testified that she and the Gurungs were not friendly, but that she knew Gurung lived there with his wife and three children. She admitted that she did not know if N.G. could swim, nor did she know what language N.G. spoke. The neighbor admitted that she did not attempt to notify Gurung while the child was outside. In describing her pool, the neighbor also conveyed that her yard is surrounded by a padlocked fence.

{¶7} Long testified that she worked for the Springfield Township Police Department. On the day of the incident, the department received a call that an unclothed child had been running around unsupervised for 45 minutes. She testified that she was the first officer to arrive at the scene. Long explained that when she arrived, N.G. was on the edge of the pool, and the neighbor was trying to pull the child away from the edge. The neighbor explained to Long that N.G. lived next door and that he was nonverbal. When Long attempted to assist the neighbor in removing N.G., he began pulling away and scratching and biting at them.

{¶8} Long further explained that other officers on the scene made entry into the Gurung home through the door that led to the home through the open garage. Officers entered the home, according to Long, because no one responded to their calls inside.

{¶9} On cross-examination, Long testified that she did not know when the Gurung's garage door was opened, how long it had been opened, or who opened it. She also conceded that the family likely did not use the front door, because there was a child gate covering it.

{¶10} Madecke testified that he was the second officer to arrive on the scene. When he arrived, Long was with N.G. in the driveway of his home. Madecke then yelled into the house through the garage in an attempt to locate an adult. Madecke testified that when no one replied, he entered the home and called out about eight to ten times, for about three to five minutes. When he received no response, he began to go up to the second floor of the home when he heard a voice and Gurung appeared. Gurung told Madecke that he had been sleeping.

{¶11} Madecke explained that two other children-a four- or five-year-old and a 17- or 19-year-old-were also in the home. Madecke also explained that the mother had been at the laundromat and returned home when she was contacted.

{¶12} Case testified that he was the fourth officer to arrive at the scene. Case testified that he had to step over a baby gate that was on the front porch to get to the front door. He further testified that Nepalese was Gurung's first language.

{¶13} Gurung testified on his own behalf. He explained that around 6 p.m. on the day of the incident, he went upstairs with his two younger children to get ready to take a bath. He testified that before they went upstairs, he closed the garage door. He explained that he later laid down in his bed with his youngest child and that N.G. was in his own room. Gurung disputed being asleep at the time the police arrived. Rather, he testified that in Nepali culture the word "sleeping" means lying down and that is what he was doing when N.G. wandered off.

{¶14} On cross-examination, Gurung agreed that N.G. previously went in and out of the home but had not been doing so lately. He also testified that N.G. was able to open the garage door. He further explained that the children's gate on his front porch was there to prevent his children from going on to the street.

{¶15} Ultimately, the trial court found Gurung guilty of one count of child endangering. In reaching its decision, the trial court explained that Gurung had a duty to attend to and supervise his child. The trial court questioned whether N.G.'s acts were foreseeable and whether Gurung acted with heedless indifference to the foreseeable circumstances of N.G.'s conduct. In resolving these questions, the trial court emphasized the fear of pool owners of an accidental drowning, thus implying that pools are inherently dangerous. The trial court also emphasized N.G.'s unique tendencies, noting that the child "gets out and does things." The trial court ultimately found that Gurung "was asleep; that his inattentiveness . . . created a substantial risk to this child. And for those reasons, . . . he's guilty of child endangering."

{¶16} The trial court sentenced Gurung to 180 days of incarceration, which it suspended. It also sentenced him to "$100 in costs" and one year of probation, and ordered him to cooperate with the Hamilton County Department of Job and Family Services.

{¶17} Gurung now appeals.

Sufficient Evidence {¶18} On appeal, Gurung raises two assignments of error. First, Gurung argues that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Second, Gurung argues that the trial court erred in sentencing him.

{¶19} To assess whether a conviction is supported by sufficient evidence, we ask "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. See State v. Curry, 2020-Ohio-1230, ¶ 11 (1st Dist). "'Where reasonable minds can reach different conclusions upon conflicting evidence, determination as to what occurred is a question for the trier of fact. It is not the function of an appellate court to substitute its judgment for that of the factfinder.'" (Citations omitted.) State v. Austin, 2021-Ohio-3608, ¶ 16 (1st Dist.).

{¶20} R.C. 2919.22(A) states 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 or a child with a mental or physical disability under twenty-one 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." To find a defendant guilty of child endangerment under this statute, the State must prove that the defendant: (1) was the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen; (2) violated a duty to that child; (3) created a substantial risk to the health or safety of the child; and (4) acted recklessly. State v. Miller, 2007-Ohio-6711, ¶ 12 (3d Dist.). Child endangerment cases are highly fact-specific. Beachwood v. Hill, 2010-Ohio-3313, ¶ 21 (8th Dist.).

{¶21} Gurung contends that the State failed to prove beyond a reasonable doubt that he violated his duty of care, created a substantial risk of harm to N.G., and possessed the required mental state of recklessness. We begin with Gurung's sufficiency argument as to recklessness, as it is dispositive of this appeal.

{¶22} Pursuant to R.C. 2901.22(C), a person acts recklessly when "with heedless indifference to the consequences, the person disregards...