State v. Middleton, Appellate Case No. 2019-CA-22

2020 Ohio 1308

STATE OF OHIO Plaintiff-Appellee v. DANIEL E. MIDDLETON Defendant-Appellant

Appellate Case No. 2019-CA-22

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

April 3, 2020

Trial Court Case No. CRB1801401

(Criminal Appeal from Municipal Court)

OPINION

MICHAEL A. MAYER, Atty. Reg. No. 0064079, City of Fairborn Prosecuting Attorney, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee

BENJAMIN W. ELLIS, Atty. Reg. No. 0092449, 805-H Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant

WELBAUM, J.

{¶ 1} Defendant-Appellant, Daniel Middleton, appeals from his convictions of domestic violence and child endangering, both first-degree misdemeanors. According to Middleton, the trial court erred in admitting evidence of other acts of violence because the stated purpose of the admission was to demonstrate a pattern of bad acts, which was prejudicial. Middleton further contends that R.C. 2919.25(A) and R.C. 2919.22(B)(1), as applied to parental discipline, are unconstitutional because they relieve the State of its burden of proof and presume that constitutionally-protected parental conduct is criminal.

{¶ 2} For the reasons discussed below, we find no merit in Middleton's arguments. However, the trial court did lack subject-matter jurisdiction to consider the misdemeanor charge of child endangering under R.C. 2919.22(B)(1), because R.C. 2151.23(A)(6) gives the juvenile court exclusive original jurisdiction over such charges. Accordingly, the conviction for child endangering is void and will be vacated. The conviction for domestic violence will be affirmed. Due to the trial court's merger of the domestic violence into the child endangering for purposes of sentencing, this case will be remanded for a new sentencing hearing on the domestic violence conviction.

I. Facts and Course of Proceedings

{¶ 3} On July 20, 2018, a citation was filed in the Fairborn Municipal Court charging Middleton with domestic violence in violation of R.C. 2919.25(A) and child endangering in violation of R.C. 2919.22(B)(1). The citation arose from events that occurred on July 5, 2018, when Middleton's nine-year old son, John,¹ was at Middleton's home forparenting time. Middleton was not at home during the day, because he was working. However, Middleton's fiancée, CJ, and some friends went to the Beach waterpark and took John along. They left home at about 8:00 a.m. and left the park at around 4:00 p.m.

{¶ 4} That day, CJ did not let John get in the water or play. Instead, John was required to sit and write sentences from the Bible because Middleton said that John had lied when talking to a guardian ad litem in a custody proceeding between John's parents. Middleton had initiated the custody proceeding, and it was resolved in favor of John's mother, J.J., in May 2018. During the proceedings, a guardian ad litem had visited both parties and John.

{¶ 5} The first complaint that J.J. made about how Middleton disciplined John occurred several months before April 2018, when Middleton texted J.J. to say he had hit John with a belt. At that time, J.J. told Middleton that he did not need to hit John with a belt, and that she did not want that to happen ever again. However, Middleton let her know that he was going to keep doing what he wanted to do and what he felt was appropriate.

{¶ 6} Subsequently, in April 2018, J.J. filed a police report because Middleton had hit John with a belt for a second time. J.J. also alerted the court in which she was awaiting a custody decision. The judge in that case then told Middleton that he could not hit John with a belt, but that he could spank with an open hand. According to John, his father also spanked him and imposed a sentence of 1,000 Bible verses after he (John) told the police about being hit with a belt. John was in trouble because Middleton said he had lied to the police. Thus, Middleton imposed punishment both after John spoke to a guardian ad litem and after John told the police about his father's actions.

{¶ 7} As noted, the events involved in this case occurred on July 5, 2018. That year, July 4 was on a Wednesday, and J.J. had parenting time with John from 9:00 a.m. to 9:00 p.m. that day. Because both parents attended a Dayton Dragons game that night, they exchanged John at the game. The water park excursion occurred the next day, on Thursday. J.J. testified that she had never spanked John and that she did not strike him or do anything that would cause bruising on his buttocks before he left with his father on July 4, 2018.

{¶ 8} On Thursday, July 5, 2018, John continued to write Bible verses after he got back from the water park. During the day, John also had some conflict with CJ at the water park. According to John, he looked at CJ a few times, and she indicated she was offended. She did not say why.

{¶ 9} When Middleton got home from work that night, he talked to John and tried to figure out the problem between John and CJ. When that did not work, Middleton told John to take off his shorts. Middleton then spanked John 25 times on his buttocks. John stated that it hurt a lot and that he cried. When John took a shower, there was a little bit of blood on his bottom.

{¶ 10} The next day (Friday), when J.J. picked John up at Middleton's house, Middleton and CJ approached the car. At that time, Middleton admitted that he had spanked John, saying that he had spanked John for "mean-mugging" CJ. After J.J. and John arrived back home, J.J. asked John if she could look at his bottom. It was deeply bruised, and John said it hurt. Because it was late, J.J. told John he could go to their family doctor, as the office was open the next morning. However, when J.J. called the doctor the next morning, she was told that she needed to take John to Dayton Children's Hospital ("DCH").

{¶ 11} John presented at DCH on Saturday, July 7, 2018, with a concern of physical abuse. After John arrived, a social worker gathered a history from J.J., took pictures of John's injuries, talked to a physician, and made mandated reports or referrals to both Children Services and the police. J.J. told the social worker that John had been "recurrently spanked," that he had been spanked two days before coming to the emergency room, and that she wanted him evaluated. Transcript of Proceedings ("Tr."), p. 18.

{¶ 12} The doctor who examined John, Dr. Drazner, had been an emergency attending physician at DCH since 1997. Dr. Drazner had been trained in recognizing pediatric child abuse and was a mandatory reporter who was required by law and ethics to report whenever he suspected abuse. John told Dr. Drazner that two days earlier, Middleton had struck him repeatedly with an open hand and that he was made to lay on the bed face down and take his pants down, but leave his underwear on.

{¶ 13} Dr. Drazner's examination revealed that John "had very extensive bruises on both buttocks and they were quite severe." Tr. at p. 119. The bruises were very deep, were on both buttocks, and were in a location that indicated John had been hit multiple times. According to the doctor, the injuries were consistent with the history he was given, and he made a medical diagnosis that John had been physically abused.

{¶ 14} The same day, Officer Keith Duncan of the Beavercreek Police Department was dispatched to DCH and spoke with the social worker and J.J. At that time, J.J. told Duncan that Middleton had a history of doing things she believed were very excessive in disciplining John. J.J. also told Duncan she had filed a report in the past about concerns about spanking and markings and abuse to John. In addition, she showed Duncan past pictures of J.J. with bruising to his bottom that appeared excessive.

{¶ 15} Officer Duncan did not speak with John at the hospital, but did talk to him later that day at the police station. After taking pictures of John's buttocks, Duncan asked John to tell him his side of the story. At no time did John indicate that anyone had spanked him other than his father.

{¶ 16} That day, Duncan tried to reach Middleton at his home, but was unsuccessful. However, he was able to contact Middleton by phone. Middleton admitted spanking John on Thursday, July 5, 2018. Middleton said that he spanked John because he was "mean-mugging" Middleton's fiancée and was giving her aggressive looks and an attitude. When Duncan asked Middleton how many times he had spanked John on July 5, 2018, Middleton stated that he had spanked John 25 times. Tr. at pp. 140-141.

{¶ 17} Later that day, Middleton also gave the police a written statement, again acknowledging that he had spanked John. After Duncan's investigation ended, there was no evidence that anyone other than Middleton had injured John.

{¶ 18} As noted, a citation was filed in the municipal court on July 20, 2018. A jury trial was then held on April 24, 2019. During the trial, the State presented testimony from J.J., John, Officer Duncan, Dr. Drazner, and the DCH social worker. Middleton did not present any witnesses or evidence, but relied on "the affirmative defense that he was engaged in reasonable and proper measures to discipline a child." Tr. at p. 235. After considering the evidence, the jury found Middleton guilty of both domestic violence and child endangering. At sentencing, the State elected sentencing on child endangering, and the court then sentenced Middleton to 180 days in jail, with 120 days suspended, supervised community control for a maximum of five years, a mental health assessment with follow-up treatment for anger management, parenting classes, and no contact directly or indirectly with John for five years. This timely appeal followed.

II. Other Acts Evidence

{¶ 19} Middleton's First Assignment of Error states that:

Other Acts Evidence Pervaded the Trial and Was Improperly Admitted Because the Explicitly Stated Purpose Was to Demonstrate a Pattern of Bad Acts.

{¶ 20} Under this assignment of error, Middleton contends that the...