State v. Jones

227 N.E.3d 329

2023-Ohio-3862

STATE of Ohio, Plaintiff-Appellee,

v.Nicole JONES, Defendant-Appellant.

APPEAL NO. C-220624

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

Date of Judgment Entry on Appeal: October 25, 2023

Criminal Appeal From: Hamilton County Municipal Court, TRIAL NOS. C-22CRB-10919A, C-22CRB-10919B.

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Raymond T. Faller, Cincinnati, Hamilton County Public Defender, Krista Gieske, Assistant Public Defender, and Spencer Hattemer, for Defendant-Appellant.

OPINION.

Crouse, Presiding Judge.

{¶1} Defendant-appellant Nicole Jones was convicted after a bench trial of two counts of endangering children after she left her eight- and ten-year-old children at home alone, with a padlock securing the door from the outside. In a single assignment of error, Jones argues that her convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. We agree that the evidence was insufficient to support her convictions, and therefore, we reverse the judgments of the trial court.

I. Factual and Procedural History

{¶2} In June 2022, Jones was charged with two counts of endangering children, in violation of R.C. 2919.22, misdemeanors of the first degree. The case was tried to the bench. The arresting officer, Officer Josh Harrell of the Norwood Police Department, provided the only testimony.

{¶3} Harrell arrived at Jones’s apartment in response to a call from a representative of 241-KIDS, the Hamilton County child abuse hotline. Harrell and his partner met the 241-KIDS representative outside Jones’s second-floor apartment. The front door of Jones’s apartment was secured on the outside by a latch with a padlock.

{¶4} Because the officers thought it was necessary to check on the well-being of children they believed were locked inside the apartment, Harrell’s partner cut the padlock off the door with bolt cutters. Cutting the lock off took 10 to 15 seconds. The officers encountered further resistance when trying to open the door, which they eventually discovered was because a couch had been pushed against the door. With a few minutes’ effort, the officers were able to push the door open enough to enter the apartment.

{¶5} After entering Jones’s apartment, the officers looked around for the children. There was no one in the kitchen, bathroom, or children’s bedroom. The last door, which Harrell eventually determined was the main bedroom, was locked from the inside. The sounds emanating from the room suggested that the children were inside. The children would not open the door for Harrell until he slid one of his business cards under the door to prove to them that he was a police officer. After the children got Harrell’s business card, they opened the door. Harrell found two children, whom he guessed to be seven to ten years old.

{¶6} Harrell talked to the children and asked where their parents were. The children told him they did not know. Harrell determined that the children seemed to be in good health and good spirits. They told Harrell that they had pushed the couch in front of the door because they were scared. The children both had cell phones, and it appeared that they knew how to use them. Harrell testified that the children were not crying, nor did they appear to be scared while he was talking with them.

{¶7} While looking around the apartment, Harrell and his partner noticed firearm ammunition and an ashtray sitting on a dresser in the main bedroom. The ashtray contained what appeared to Harrell to be marijuana residue and marijuana cigarettes. Harrell testified that he did not see a firearm in the apartment. On cross-examination, Harrell agreed that "there were no readily apparent risks of harm to the children" in the apartment.

{¶8} While Harrell was talking to the children, Jones returned home. After confirming that Jones was the children’s mother, Harrell placed her under arrest.

{¶9} In announcing its verdict, the trial court discussed briefly the distinctions between the case at bar and our prior decisions in State v. Martin, 134 Ohio App.3d 41, 730 N.E.2d 386 (1st Dist.1999), and State v. Allen, 140 Ohio App.3d 322, 747 N.E.2d 315 (1st Dist.2000), in which we held that the evidence was insufficient to show child endangerment:

So the differences in these cases are: One, the mother in Martin made a conscious decision[,] Oh, do I wake up this kid and lug him in with me, or do I just leave him sleeping, I’m just running in for 20 minutes. In this case, and that’s – that’s Martin – actually 30 minutes we think. Allen is, My kid[’]s doing his homework, I’m going across the street, presumably, I’m in sight of my house. What could happen? I’m gone for 20 minutes to make dinner, and my kid’s doing homework. In this case, number one, we don’t know how long the children were left alone. And number two, we don’t know what their mother’s reasoning was. So the other two, I know, and the Court of Appeals knew when they were balancing known perverse substantial risks, you know, versus just bad judgment. Judgment is always, always, always a balancing decision. And we don’t know why Ms. Jones left her * * * 8 year old, and ten year old alone padlocked in. Was it to go and get butter from the neighbor across the street when her house is always in sight? Was it to run across the street and return a gift because her kids were sleeping? I don’t have that other piece, and I can’t speculate on what it is. But to me, when you’re talking about whether it’s a known substantial risk perversely disregarding a significant substantial risk of harm, I need to know what you’re balancing it against, and I don’t know what that is. So I suppose you would say, well that burden falls to the state, they didn’t prove to the court why she felt the need to leave her two children alone. So I’m just working through it in my head.

{¶10} The court finally concluded that the cases were distinguishable and found Jones guilty on both counts. The court reasoned that padlocking the children in their home created a substantial risk of harm to the children due to a risk of a fire. The court further found that "the children’s own actions show that they felt they were at risk" because they pushed the couch against the door out of fear of strangers.¹

{¶11} The court sentenced Jones to consecutive, 180-day jail terms for each count, which were suspended, along with an 11- month term of community control. This appeal timely followed.

II. Analysis

{¶12} In her sole assignment of error, Jones argues that her convictions were not supported by sufficient evidence and that her convictions were against the manifest weight of the evidence.

[1] {¶13} When reviewing for sufficiency of the evidence, an appellate court asks whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt. State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16. Essentially, the court "asks whether the evidence against a defendant, if believed, supports the conviction." (Emphasis sic.) Id.

[2] {¶14} Jones was convicted of two counts of child endangerment under R.C. 2919.22(A), one count for each of her children. The statute 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." R.C. 2919.22(A). The necessary mens rea for the offense is recklessness. State v. McGee, 79 Ohio St.3d 193, 680 N.E.2d 975 (1997), syllabus; State v. Bush, 2020-Ohio-772, 152 N.E.3d 892, ¶ 7 (1st Diet.). "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).

[3] {¶15} It is undisputed that Jones is the children’s mother, and that the two children are under 18 years of age. Jones argues that the state failed to produce evidence that she violated a duty of care to her children, created a substantial risk to the safety of her children, or acted recklessly.

[4, 5] {¶16} A "substantial risk" means "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist." R.C. 2901.01(A)(8). In order to show this substantial risk, the state must provide "some evidence beyond mere speculation as to the risk of harm that could potentially occur due to a single imprudent act." State v. Morgan, 1st Dist. Hamilton No. C-210509, 2022-Ohio-2932, 2022 WL 3641738, ¶ 18, quoting Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31 N.E.3d 695, ¶ 27 (8th Dist.), quoting State v. Hughes, 3d Dist. Shelby No. 17-09-02, 2009-Ohio-4115, 2009 WL 2488102, ¶ 21, quoting Middletown v. McWhorter, 12th Dist. Butler No. CA2006-03-068, 2006-Ohio-7030, 2006 WL 3833916, ¶ 11. In finding that such a substantial risk to the child exists, "the trial court is not permitted to ‘make an inference upon an inference in order to transform a speculative risk into a substantial risk.’ " Hughes at ¶ 21, quoting McWhorter at ¶ 11, citing State v. Caton, 137 Ohio App.3d 742, 751, 739 N.E.2d 1176 (1st Dist.2000), citing Martin, 134 Ohio App.3d at 44, 730 N.E.2d 386.

[6] {¶17} As we have observed previously, "child endangerment cases are typically fact-specific." Bush, 2020-Ohio-772, 152 N.E.3d 892, at ¶ 8. Here, the facts are that Harrell arrived at Jones’s second-floor apartment to find the door padlocked on the outside. With 10 to 15 seconds of effort, another officer broke the padlock with bolt cutters. With some further effort, Harrell was able to push back the couch the children had moved in front of the door. Harrell...