State v. Spivey

2021-Ohio-2598

STATE OF OHIO, Plaintiff-Appellee, v. NICOLE SPIVEY, Defendant-Appellant.

Nos. C-200125, C-200126, C-200127, C-200128, C-200129

Court of Appeals of Ohio, First District, Hamilton

July 30, 2021

Criminal Appeals From: Hamilton County Municipal Court Trial Nos. C-20CRB-1352A C-20CRB-1352B C-20CRB-1352C C-20CRB-1352D C-20CRB-1352E

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.

OPINION

MYERS PRESIDING JUDGE

{¶1} Defendant-appellant Nicole Spivey^[1] ("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 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 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 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.

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 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...