State v. Burdine-Justice, Unpublished Decision (3-30-1998)

OPINION Defendant-appellant, Carolyn Burdine-Justice, appeals a decision by the Clermont County Municipal Court. The court found appellant guilty of child endangering, a violation of R.C. 2919.22(B)(1). We affirm the trial court's decision. Appellant allegedly endangered her daughter sometime in early October 1996. Appellant's daughter, born on November 16, 1993, was two years old at the time of the alleged incident. Appellant's father, Wayne Justice, testified that on or about October 4, 1996 while he and his wife were baby-sitting the child, they noticed bruising around and just above the child's buttocks. Justice notified the police who began an investigation. As part of their investigation, police took photographs of the child's bruises. Sometime in February 1997, Officer Sue Madsen interviewed appellant. Madsen testified that she showed appellant the photographs and that appellant told Madsen that she didn't know how the child received the bruises. Madsen stated that appellant guessed that the child may have received the bruises while playing and sliding down the stairs in her apartment. She further testified that: I continued to ask her, "Carolyn, who has done this to your child?" And she kept looking at the pictures and looking at the pictures and at that time, she broke down, and she was crying, and she stated that, "I must have done this. I didn't realize I hit her so hard." Appellant testified that the day before the child went to Justice's home, the child got into some perfume. Appellant claimed that because of the child's actions, appellant "tapped her on the butt" twice with her hand. On February 28, 1997, a complaint was filed claiming that appellant cruelly abused her child by administering physical punishment which was excessive under the circumstances, creating a risk of physical harm to the child. The numerical designation of the charge on the complaint was "R.C. 2919.22(B)." Appellant's trial was held on April 24, 1997. The prosecution attempted to proceed against appellant claiming that she violated R.C. 2919.22(A). The court advised the prosecution that they may not be able to proceed with a charge under R.C. 2919.22(A). Thereafter, the prosecution moved to amend the complaint charging appellant with a violation of R.C. 2919.22(B)(1). The court granted the prosecution's motion to amend the complaint. After hearing the evidence, the trial court found appellant guilty of violating R.C. 2919.22(B)(1). Appellant appeals this decision and presents three assignments of error. Assignment of Error No. 1: THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF MS. BURDINE BY ALLOWING THE STATE TO AMEND THE COMPLAINT AND ALLEGE A VIOLATION OF R.C. 2919.22(B)(1) INSTEAD OF A VIOLATION OF R.C. 2919.22(B)(3). Appellant argues that the complaint was improperly amended, allowing appellant to be charged with a violation of R.C.2919.22(B)(1). Appellant also argues that the legislature intended to establish a distinct offense involving corporal punishment with enactment of R.C. 2919.22(B)(3) and that the court created its own moral code which disallows corporal punishment. "It is well-established that a charging instrument, including a complaint, is sufficient if it tracks the language of the statute." State v. McNeese (Oct. 23, 1995), Warren App. No. CA93-12-108, unreported, at 8-9, following State v. Marcinsi (1921), 103 Ohio St.3d 613, 618. A charging instrument does not need to be in the exact language of the statute so long as all the essential elements are contained in language equivalent to that used in the statute. McNeese at 10, following State v. Oliver (1972), 32 Ohio St.2d 109, 111. In the present case, appellant was convicted of violating R.C.2919.22(B)(1). R.C. 2919.22(B) states in part: No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: (1) Abuse the child. When the trial court amended the complaint, it stated: I will, at the State's request then, amend the complaint to set forth then that language which is required to charge a violation of Ohio Revised Code Section 2919.22(B)(1). Specifically, it will state that the Defendant did, to a child under eighteen years of age or, a mentally or physically handicapped child under twenty-one years of age, abuse such child. A review of the trial court's statement shows that the language of the amended complaint closely follows the language of R.C.2919.22(B)(1). Therefore, the amended complaint was sufficient to charge appellant with a violation of R.C. 2919.22(B)(1). The next question we must address is whether the trial court properly amended the original complaint. A trial court may not amend a criminal complaint if the amendment changes the name or the identity of the crime charged. Akron v. Jaramillo (1994),97 Ohio App.3d 51, 53; Crim.R. 7(D). Under Crim.R. 7(D), the original indictment can be amended during trial if the amended charge is a lesser included offense of the original charge. State v. Briscoe (1992), 84 Ohio App.3d 569, 572, discretionary appeal not allowed (1993), 66 Ohio St.3d 1485. In the present case, the original complaint stated that appellant did: cruelly abuse Tea Burdine, administer physical punishment to Tea Burdine which discipline was excessive under the circumstances and created a risk of physical harm to her. Tea Burdine being a child under the age of 18 years of age, contrary to and in violation of Section 2919.- 22(B) of the Revised Code of Ohio, a Misdemeanor of the first degree. Although the original complaint misstated the degree of the offense as being a misdemeanor of the first degree,1 it contained elements of both R.C. 2919.22(B)(2) and (3): No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: * * * (2) Torture or cruelly abuse the child; (3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restrain is excessive under the circumstances and creates a substantial risk of serious physical harm to the child. R.C. 2919.22(B). A comparison of R.C. 2919.22(B)(1) and (2) shows that (B)(1) is a lesser included offense of (B)(2). State v. Johnson (Mar. 16, 1997), Hamilton App. No. C-960583, unreported, at 2. (B)(2) requires evidence that the defendant either tortured or cruelly abused the child, while (B)(1) requires evidence that the defendant abused the child. The original complaint alleged that appellant "did cruelly abuse Tea Burdine," and the amended complaint alleged that appellant did "abuse such child." Therefore, we find that the trial court properly amended the original complaint because it contained a lesser offense of the offense alleged in the original complaint. We also find no merit in appellant's argument that the legislature intended to establish a distinct offense involving corporal punishment with R.C. 2919.22(B)(3) and that the court created its own moral code which disallows corporal punishment. When determining whether a defendant has abused a child pursuant to R.C. 2919.22(B)(1), the trier of fact may consider "the circumstances giving rise to the harm to the child, [and] the disciplinary measures employed by the parent." State v. Ivey (1994), 98 Ohio App.3d 249, 258, discretionary appeal not allowed (1995), 71 Ohio St.3d 1476, quoting In re Noftz (Aug. 22, 1986), Huron App. Nos. H-85-26 and H-86-11, unreported. To hold otherwise would support the illogical conclusion that a person may administer corporal punishment that is considered child abuse pursuant to R.C. 2919.22(B)(1), and then may not be held to have violated R.C. 2919.22(B)(1) because 2919.22(B)- (3) holds a higher standard for corporal punishment. R.C. 2919.22(B)(3) has a higher standard than 2919.22(B)(1) because it also requires the element that the act was "excessive under the circumstances." Since R.C. 2919.22(B)(3) requires other elements, it logically carries a higher penalty. Accordingly, appellant's first assignment of error is overruled. Assignment of Error No. 2: THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE DEFENDANT-APPELLANT BY DENYING MS. BURDINE'S MOTION FOR ACQUITTAL WHEN AT THE CLOSE OF THE STATE'S CASE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENTS OF THE OFFENSE. Appellant argues that the trial court erred in overruling her motion for an acquittal pursuant to Crim.R. 29. Appellant's counsel at the end of the state's presentation of evidence offered a motion based upon Crim.R. 29, stating that the state failed to prove that appellant abused the child. Crim.R. 29(A) states: Motion for judgment or acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. A trial court's decision to deny a Crim.R. 29(A) motion for acquittal based upon the sufficiency of the evidence will be upheld if, construing the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the charge proven beyond a reasonable doubt. State v. Dennis (1997), 79 Ohio St.3d 421, 430-31, following Jackson v. Virginia (1979), 443 U.S. 307, 319,99 S.Ct. 2781, 2789, and State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. The essential elements for a violation of R.C. 2919.22(B)(1) are outlined in Ivey: To establish a violation of R.C. 2919.22(B)(1), the state must prove, beyond a reasonable doubt: (1) that the child is under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, (2) an affirmative act of abuse, and (3) which act was reckless, that is, perpetrated with heedless indifference to the consequences of the action. Ivey, 98 Ohio App.3d at 257, citations excluded, quoting State v. Bogan (June 14, 1990), Montgomery App. No. 11920, unreported, at 3-4. Therefore, the trial court's decision to overrule appellant's motion for an acquittal will be upheld if a review of the evidence shows that a rational trier of fact could find that these three essential elements were proven beyond a reasonable doubt. The parties do not dispute that the state provided sufficient evidence to satisfy the first element: that the child was under eighteen years of age. Therefore, we examine the evidence to determine whether sufficient evidence was presented concerning the second and third elements. The second element requires the state to prove that an affirmative act of abuse occurred. In making the determination of abuse, the trial court must look at the circumstances giving rise to the harm to the child, the disciplinary measures employed by the parent, the child's past history, and any other potential relevant factors. Ivey at 258. Child abuse is defined as "an act which inflicts serious physical harm or creates a substantial risk of serious harm to the physical health or safety of the child." Id. at 257. Serious physical harm is defined as any of the following: (a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (b) Any physical harm that carries a substantial risk of death; (c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; (d) Any physical harm that involves some permanent disfigurement, or that involves some temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such duration as to result in substantial suffering, or that involves any degree of prolonged or intractable pain. R.C. 2901.01(A)(5). In the present case, the following evidence was presented concerning the child's injuries. Wayne Justice, appellant's father, testified that he observed bruises on the child "above her buttocks, around her back, I guess where the kidneys would be located, on both sides." Justice stated that the bruises "were purple and red and a little black in it." Officer John Lucas testified that the child had "what I would term moderate bruising, starting at the lower back, going down onto her buttocks" that were "purple and red in color and appeared to be bruising that had not been there very long. Fairly recently sustained." Lucas stated that the bruises were somewhat raised so that they were swollen and that the child did not appear to be in pain. Michael Kolmer, an investigator for Clermont County Children Services, testified that he investigated the allegations of abuse, and met with appellant and the child on October 7, 1996. Kolmer testified that the child had "bruising on her lower back, in the buttocks." Kolmer further testified that the color of the bruises were: a yellowish and faint bluish kind of, yellowish, they were fading. They were, in my opinion, they're older bruises than, like real recent. They were a couple, three or four days old maybe * * * [and that] they were completely fading, fading away by the time I got there. The state also submitted photographs of the child taken by Kolmer. The eight photographs show bruising on the right hip and the buttocks of the child. The trial court, while reviewing appellant's Crim.R. 29 motion, discussed the statutory definition of serious physical harm contained in R.C. 2901.01(A)(5)(a-e). The court found that the evidence did not show serious physical harm according to R.C.2901.01(A)(5)(a-d). The court did find that: For purposes of your motion only, it would be the Court's beliefs, based upon the photographs that were presented, that the act which caused these bruises, involved acute pain of such duration, which involved prolonged or intractable pain for this child of two years of age. And for purposes of your motion only, in view of the fact that these bruises were visible for days after the event, that there may have been some temporary, serious disfigurement for this child, based upon the photographs, the Court has before it. Therefore, for purposes of your Rule 29 motion, it will be overruled. After having reviewed the complete record and considering the estandard of "serious physical injury" stated in R.C.2901.01(A)(5), we find that a rational trier of fact could conclude that the child received serious physical harm. The photographs of the child's injuries show profuse bruising across her buttocks extending into her back area. The force necessary to create such bruising must have been great, and was not accidental on the part of the perpetrator. Clearly, this amount of corporal punishment was unnecessary and unwarranted. Therefore, we find that the state presented sufficient evidence to satisfy the second element that appellant "committed an affirmative act of abuse." The third element to establish a violation of R.C. 2919.22-(B)(1) is recklessness. "Existence of the culpable mental state of recklessness is an essential element of the crime of endangering children." State v. Adams (1980), 62 Ohio St.2d 151, paragraph one of the syllabus. R.C. 2901.22(C) states: A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist. A review of the record shows that appellant told Officer Sue Madsen while being shown the photographs of her child that "I must have done this. I didn't realize I hit her so hard." A reasonable person could infer based upon appellant's statement, and a review of the photographs, that appellant's actions were more than negligent, but were in fact reckless because appellant acted with heedless indifference to the consequences of her actions. Accordingly, we find that the trial court did not err in overruling appellant's motion for an acquittal pursuant to Crim.R. 29 because the state provided sufficient evidence to establish all of the elements outlined in Ivey. Appellant's second assignment of error is sustained. Assignment of Error No. 3: THE JUDGMENT AND FINDING OF THE TRIAL COURT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant also argues that her conviction was against the manifest weight of the evidence. We disagree. "The weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other." State v. Smith (1997), 80 Ohio St.3d 89, 113, following State v. Thompkins (1997), 78 Ohio St.3d 380, 387. The weight to be given the evidence and the credibility of the witnesses are primarily issues to be decided by the trier of fact. State v. Bell (Jan. 26, 1998), Madison App. No. CA96-07-027, unreported, at 15. The trier of fact has the benefit of seeing and hearing the witnesses testify, and is in the best position to determine the facts of the case. In re Good (Feb. 24, 1997), Butler App. Nos. CA96-02-026, CA96-03-036, unreported, at 9, discretionary appeal not allowed (1997), 79 Ohio St.3d 1418. In order for a court of appeals to reverse the judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court must unanimously disagree with the fact finder's resolution of the conflicting testimony. Thompkins, 78 Ohio St.3d at 387. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. We have already outlined the evidence presented against appellant during her trial. Following a review of the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we find no basis to believe that appellant's convictions were against the manifest weight of the evidence. See Smith, 80 Ohio St.3d at 114. The testimony presented, combined with the photographs of the child's injuries, support the conclusion that appellant endangered her child pursuant to R.C. 2919.22(B)(1). Also, appellant's credibility is suspect when comparing her claim that she simply "tapped" the child on the buttocks with the photographs of the child's injuries. Therefore, we find that the greater amount of credible evidence, or the manifest weight of the evidence, supports appellant's conviction. Appellant's third assignment of error is overruled. Judgment affirmed. YOUNG, P.J., concurs. KOEHLER, J., dissents. 1 Violations of R.C. 2919.22(B)(2) (3) are felonies of the, third degree. R.C. 2919.22(E)(3).