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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

ENDANGERING CHILDREN (115)

Basics

Sufficiency of proof

Other issues

R.C. 2919.22 -- Endangering children.

Basics

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 children under 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 endangerment under 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 unconstitutionally overbroad.

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 486, 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.

State v. 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 neighbor.

State v. Marzetti, Franklin App. Nos. 03AP-692. 693, 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 reckless.

State v. Lott (1999), 135 Ohio App. 3d 198 -- Endangering children conviction premised on "recklessly inflicted malnutrition" affirmed.

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 needed.

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 conviction affirmed.

State v. Willingham (1995), 100 Ohio App. 3d 325 -- Serious physical harm, for purposes of a felony violation of 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. Burdine-Justice (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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Other issues

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 R.C. 2941.25, 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 additional charges."

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 endangering children.

State v. Burdine-Justice (1998), 125 Ohio App. 3d 707 -- Endangering a child by means of abuse pursuant to R.C. 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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