Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Sufficiency of proof
R.C. 2919.22 -- Endangering children.
State v. Pepka, 125
Ohio St. 3d 124,
2010-Ohio-1045 – Indictment failed to allege the victim
suffered serious physical harm, but did set forth that the
offense was a felony of the third degree. This was sufficient to
charge a felony, rather than a misdemeanor violation of the
endangering children statute. Court rejects claim that reference
to the offense as a third degree felony was merely a conclusion
of law. Undertone is that the defendant knew all along what he
had to defend against.
State v. McGee (1997), 79 Ohio St. 3d
193 -- Syllabus: "The existence of the culpable mental state of
recklessness is an essential element of the crime of endangering
R.C. 2919.22(A)." Also see
State v. McGee
(1998), 128 Ohio App. 3d 541 (Same case on remand.) (1) No error
in permitting amendment of indictment to allege recklessness.
(2) Reversal meant case should proceed forward as from
arraignment, not merely resume with the existing proof
reevaluated; State v. O'Brien (1987), 30 Ohio St. 3d 122;
State v. Adams (1980), 62 Ohio St. 2d 151; State v.
Williams (1984), 21 Ohio App. 3d 12.
State v. Gray (1992), 62 Ohio St. 3d
514 -- Syllabus: "A parent may not be prosecuted for child
R.C. 2919.22(A) for substance abuse occurring
before the birth of the child.
State v. Daniels (1980), 61 Ohio St. 2d
220 -- The endangering children statute is not
State v. Sammons (1979), 58 Ohio St. 2d
460 -- The endangering children statute is not
unconstitutionally vague. State v. Artis (1989), 46 Ohio
App. 3d 25; State v. Rogers (1975), 44 Ohio App. 2d 289.
State v. Wardlow (1985), 20 Ohio App.
3d 1 -- Prosecution of mother under the endangering children
statute for failure to report conduct amounting to a felony
violation of other portions of the statute was constitutionally
defective as it would have amounted to self-incrimination.
State v. Kamel (1984), 12 Ohio St. 3d
306 -- Paragraph one of the syllabus: "An inexcusable failure to
act in discharge of one's duty to protect a child where such
failure to act results in a substantial risk to the child's
health or safety is an offense under
R.C. 2919.22(A)." It is not
necessary to prove an actual instance or pattern of abuse.
State v. Schultz (1982), 8 Ohio App. 3d
352 -- Standing by while one's children suffer abuse at the
hands of another constitutes endangerment.
State v. Legg (1993), 89 Ohio App. 3d
184 -- Mother's failure to intervene when child was being beaten
by father was sufficient to constitute child endangerment, which
in turn supported involuntary manslaughter charge, as the death
of the child was proximately caused by that omission.
State v. Edwards (1997), 123 Ohio App.
3d 43 -- Without objection, several witnesses testified as to
the credibility of the victim in a prosecution for child
endangering. In view of State v. Boston (1989), 46 Ohio
St. 3d 108, counsel's failure to object amounted to ineffective
assistance of counsel.
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Sufficiency of proof
State v. Hartley, 194 Ohio App. 3d
2011-Ohio-2530 – Day care worker gave children melatonin wrapped in tootsie
rolls to get them to sleep. She was convicted of endangering children and
misrepresentation by a child-care provider. (1) OK for an officer to testify how
easy it is to find information about the harmful effects of melatonin online as
it went to proof of the defendant’s recklessness in administering the
supplement. (2) Misrepresentation by a child-care provider does not reach
omissions to inform, so those convictions are reversed. (3) Though acknowledging
medical testimony would have been helpful, the court deems the risks posed by
administering the supplement to be a matter of common knowledge.
State v. Weaver,
178 Ohio App. 3d 504,
2008-Ohio-5022 -- Mother was convicted of child endangerment premised on
ipecac poisoning. Defense was that the child‘s condition was the consequence of
mold poisoning. (1) Defense proposed calling an expert to testify that
mycotoxins had been detected following the mother‘s gall bladder surgery.
Witness was properly excluded because the identity of the expert was not
disclosed until the second day of trial and the state was not shown slides until
the final day of trial. This made it impossible for the state to seek an expert
or analysis in order to respond. (2) As to effort to have results of testing of
the apartment admitted through deposition, defendant did not establish
foundation that witness was unavailable. (3) Expert testimony that the child‘s
condition was consistent with "pediatric condition falsification (Munchausen
syndrome by proxy) by ipecac poisoning by his mother" was proper. Allowing
others, who might be medical experts, to opine the mother was the source was
improper. Reversed. (4) Impeachment of defense expert based on a stale
conviction went to his curriculum vitiae, not his credibility. (5) No
confrontation violation found in testimony of lab representative who did not
actually perform tests revealing ipecac markers.
King, 179 Ohio App. 3d 1,
2008-Ohio-5363 – Conviction was supported by sufficient
evidence where child had not history of health problems,
appeared to have suffered injuries while left in the sole care
of the defendant, and injuries were not consistent with
accident. Felonious assault conviction affirmed as well.
State v. Lewis, 192
Ohio App. 3d 153,
2011-Ohio-187 – Mother left two year old in the car for 29
minutes while she shopped at Wal-Mart on a twenty-five degree
day. Passer by heard the child crying an called the police.
Officer observed car filled with trash, with uneaten food within
reach of the car seat that could have posed a choking hazard. He
also testified he had made arrests at the store. Lay opinion
testimony by the officer and a Children and Family Services
investigator as to the hazards posed was properly admitted.
Conviction was supported by the evidence.
State v. McLeod, 165 Ohio App. 3d 434,
2006-Ohio-579 -- Defendant agreed to watch a five year old along with two year
old twins while their mothers went jewelry shopping. The five year old was on a
nearby playground, though some distance away from where the defendant was
tending to the toddlers. He told an officer he had checked on the five year old
within the half hour. Absent proof he should have recognized the playground as a
problem area or seen other risks, he was not shown to have recklessly created a
substantial risk of harm to the five year old.
State v. Caton (2000), 137 Ohio App. 3d
742 -- Grandmother's conviction affirmed upon finding sufficient evidence that
she shared an apartment with her daughter and her daughter's two year old
daughter, who was endangered by the filthy conditions.
State v. Martin (1999), 134 Ohio App. 3d
41 -- Mother allowed sleepy eight year old to remain in car while she returned
merchandise at a nearby store. Child bumped gear lever and car rolled backwards
a short distance, without damage to car or injury to child. Endangering
conviction reversed: (1) State failed to prove mother acted recklessly, though
she may have been negligent. (2) State failed to prove mother created a
substantial risk to the health of safety of the child.
State v. Martin (2000), 140 Ohio App.
3d 326 -- Endangering children conviction reversed where father left seven
year old alone for 2-20 minutes while he went to borrow butter from a
State v. Marzetti, Franklin App. Nos.
2004-Ohio-3376 -- Endangering conviction affirmed where three
children were left without parental supervision with the oven door left open to
supply heat to the kitchen.
State v. Morton 92000), 138 Ohio App.
3d 309 -- Endangering children conviction affirmed where three-week old child
was left locked in a van for 30-40 minutes on a hot summer day. See dissent
indicating failure to keep good count of children was negligent but not
State v. Lott (1999), 135 Ohio App. 3d
198 -- Endangering children conviction premised on "recklessly inflicted
State v. Miley (1996), 114 Ohio App. 3d
738 -- Father's felony child endangerment conviction not
supported by the evidence. Though parents were the only adults
around a child who suffered numerous and serious injuries, which
were not immediately apparent even to hospital staff, there was
no evidence that the father inflicted the injuries, or violated
duties to protect the child from abuse, and seek care, if
State v. Elliott (1996), 104 Ohio App.
3d 812 -- Felonious assault and child endangerment convictions
upheld where claim was that the defendant caused serious
physical harm, in the form of mental injury, to his six year old
son who left in a position to discover the body of his dead
mother. Father had been acquitted of murder, but confessed
several years after the fact.
State v. Hobbs (1996), 113 Ohio App. 3d
396 -- Granddaughter was directed to move marijuana to truck
during execution of search warrant. Endangering children
State v. Willingham (1995), 100 Ohio
App. 3d 325 -- Serious physical harm, for purposes of a felony
R.C. 2919.22 was established by evidence that one
and three year old children required hospitalization for the
disease of marasmus, which involves a state of malnutrition.
State v. Ivey (1994), 98 Ohio App. 3d
247 -- "Abuse" in the context of
R.C. 2919.22(B)(1) means abuse
threatening serious physical harm. Minor injuries resulting from
parental discipline which did not require continued treatment
did not constitute serious physical harm. Compare State v.
(1998), 125 Ohio App. 3d 707.
State v. Wright (1986), 31 Ohio App. 3d
232 -- Leaving a seven month old child alone in a room with a
plugged in iron standing on a dresser is sufficient to establish
both recklessness and a substantial risk to the health or safety
of the child.
State v. Massey (1998), 128 Ohio App.
3d 438 -- Potty training mishaps netted Cincinnati mother a four
year prison sentence. Two and a half year old was left
unattended in tub for between 30 seconds and four minutes and
was found submerged. Child then bumped head when placed on potty
chair. Mom called 911, and child was fine when squad arrived.
Slight bruise did not amount to serious physical harm, and
leaving child unattended in the tub while attending to twin
brother was imprudent, but did not create a strong probability
that child would be harmed.
State v. Schaffer (1998), 127 Ohio App.
3d 501 -- Two year old was out of sight of parent for 5-10
minutes and was found by an officer about to step into the
street. Majority affirms, finding evidence of recklessness.
Dissent find's parent's conduct merely negligent.
State v. Stewart (1996), 111 Ohio App.
3d 525, 534-536 --
R.C. 2907.05(A)(4) conviction for permitting
child to model or otherwise participate in the production of
sexually oriented matter was supported by the evidence, though
child did not appear in photos. Evidence was that the child was
forced to take nude photos of her mother and mother's boyfriend,
thus participating in the production of such materials.
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State v. Johnson, Slip Opinion No.
2010-Ohio-6314 – Syllabus: “When determining whether two offenses are allied
offenses of similar import subject to merger pursuant to
the conduct of the accused must be considered. (State v. Rance (1999),
85 Ohio St. 3d 632, 710 N.E. 2d 699, overruled.)” Methodology for analysis set
forth at ¶46-52. Court concludes that in this case the offenses of child
endangerment and felony murder merged. ¶56: “We decline the invitation of the
state to parse Johnson’s conduct into a blow-by-blow in order to sustain
multiple convictions for the second beating.”
State v. Reed, 192 Ohio App. 3d 657,
2011-Ohio-308 – Felonious assault and endangerment counts do not merge where
the failure to contact EMS was a distinct and separate act from the assault.
State v. Cooper, 104 Ohio St. 3d 293,
2004-Ohio-6553 -- Syllabus: "(1)
R.C. 2941.25(A) applies when the state obtains
multiple convictions arising out of the same conduct of a defendant that can be
construed to constitute two or more allied offenses of similar import. (2) Where
the state has not relied upon the same conduct of the defendant to support a
conviction for the offense of involuntary manslaughter involving child
endangering and a separate conviction for child endangering, the defendant may
be convicted of both crimes and sentenced on each." Defendant both shook the
child and slammed him against a hard surface. At ¶29: "Our decision does not
alter our holding in Rance, because Rance is not implicated by the
facts of this case.
State v. Homan (2000), 89 Ohio St. 3d 421
-- Child endangering charge was filed after OMVI charge, and after the filing of
a motion to suppress in those proceedings. Paragraph two of the syllabus: "When
a criminal defendant files a pretrial motion and the state later files against
the defendant additional, related criminal charges,
R.C. 2945.72(E) does not
extend the time within which the defendant must be brought to trial on those
In re Knight (1999), 135 Ohio App. 3d
172 -- Child welfare agency called mother as its first witness in a neglect
case. Held to be a Fifth Amendment violation as testimony she might provide
could subject her to prosecution for child endangering.
State v. Ross (1999), 135 Ohio App. 3d
262, 278-280 -- Child endangering and felonious assault are not allied offenses
of similar import. Also see State v. Lowe, 164 Ohio App. 3d 726,
2005-Ohio-6614 (endangering and involuntary manslaughter).
State v. Zupan (2000), 138 Ohio App.
3d 172 -- Child endangering is not a "sexually oriented offense."
State v. Krull, 154 Ohio App. 3d 219,
2003-Ohio-4611 -- While an expert may testify as to the ultimate
question whether or not the facts of the case constitute child
abuse, there was no abuse of discretion in forbidding such
testimony when no foundation had been laid as to whether the
legal or medical definition of abuse was being applied.
State v. Heebsh (1992), 85 Ohio App. 3d
551 -- (1) For purposes of the statute of limitations, a high
school tennis coach, charged with endangering children and
sexual battery, is a public servant, extending the time within
which prosecution must be commenced. (2) Whether or not the
defendant stood in loco parentis
to the student is a factual issue to be determined at trial and
not through a pretrial motion.
State v. Gary (1996), 117 Ohio App. 3d
286 -- Child endangerment is not a lesser included offense to
felonious assault. Court could not sua sponte amend
indictment at a bench trial to find defendant guilty of
State v. Burdine-Justice (1998), 125
Ohio App. 3d 707 -- Endangering a child by means of abuse
2919.22(B)(1) is a lesser included offense a
violation based on torturing or cruelly abusing the child under
(B)(2). Thus amending the complaint did not change the nature
and identity of the offense.
State v. Livingston (1976), 53 Ohio
App. 2d 195 -- Abuse of discretion and violation of the
constitutional right to privacy to make it a condition of
probation that a mother convicted of child endangerment have no
children during a five year period of probation.
State v. Brown (1982), 7 Ohio App. 3d
113 -- Endangering children and involuntary manslaughter are
allied offenses of similar import.
State v. Anderson (1984), 16 Ohio App.
3d 251 -- Endangering children and felonious assault are not
allied offenses of similar import.
State v. Miskimens (1984), 22 Ohio Misc.
2d 43 -- The treatment by prayer exemption in
R.C. 2919.22(A) is
unconstitutional under the First and Fourteenth Amendments and that subsection
of the statute, in its entirety, is unconstitutionally vague as applied to
parents who seek to treat their child's illness through faith healing.
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