COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68039 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RONALD BENNETT, SR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 306645 JUDGMENT: Reversed. Conviction and Sentence Vacated. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender RALPH KOLASINSKI, ESQ. JEAN M. GALLAGHER, ESQ. Assistant County Prosecutor Assistant County Public Defender The Justice Center - 9th Floor The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - DYKE, J.: Appellant was indicted on one count of child endangering, R.C. 2919.22, for recklessly creating a substantial risk of harm to his four-year-old daughter, Tiffany, by violating a duty of care, protection or support. That alleged violation led to Tiffany's suffering substantial burns to her upper body. Tiffany's shirt caught fire while she played with a lighter. After a trial to the bench, appellant was convicted of the child endangering offense with a violence specification for a prior burglary conviction. The court sentenced appellant to three to five years of incarceration, plus costs, to run consecutive to another sentence currently being served. Appellant filed a timely appeal from his conviction for child endangering, asserting three assignments of error. II MR. BENNETT'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION IS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Because we find that this assignment of error is dispositive of the appeal, we will review its merits first. Appellant argues that the trial court actually imposed a strict liability standard upon him when the court determined that leaving the lighter on top of a five foot entertainment center is sufficient to support the child endangering offense. Appellant argues that the evidence indicated that he took steps to prevent the children from being - 3 - able to reach the lighters, which negates the mens rea of recklessness required by the offense. Appellant's arguments are well taken. The trial court improperly denied appellant's Crim.R. 29 motion for acquittal. R.C. 2919.22 renders it an offense to "create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support." The offense is a fourth degree felony if the child suffers serious physical harm, to which both parties stipulated in this case. The culpable mental state of recklessness is an essential element of this offense. State v. Adams (1980), 62 Ohio St.2d 151. "Recklessness" is defined by R.C. 2901.22(C) as follows: 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. The evidence and testimony presented in this case fail to support the elements of the offense that appellant was reckless in violating his duty to care for and protect his daughter from danger. On the contrary, the evidence indicated that appellant and his wife took steps to prevent their children from gaining access to lighters. Karen Russell left for work at approximately five o'clock in the evening, leaving her three children in the care of appellant, the children's father. She testified that no one had been drinking - 4 - alcohol or consuming marijuana in the house that day, although she did state that they smoked marijuana occasionally. Ms. Russell's testimony was that both she and appellant smoked cigarettes and habitually placed their lighters on top of a five and a half foot high entertainment center whenever they left the room. Ms. Russell testified that Tiffany, their four-year-old daughter, had never climbed the entertainment center to her recollection. She further testified that Tiffany has picked up lighters while in her parents' presence but had never actually lit the lighter and had been taught that lighters are dangerous. Pauline and Cy Heckathorne are next door neighbors who were present in the Russell-Bennett household earlier the day of the incident. Both neighbors admitted to smoking marijuana on occasion with appellant but had not smoked any that day and had not consumed alcohol either. Another neighbor, Allen Bogdan, claimed that he had sold appellant ten dollars worth of marijuana several hours before Tiffany was injured. Appellant's statement and testimony were consistent in relating the following events. Appellant had left the three children, ages four, three and two, in the play room adjacent to the living room to use the bathroom. The only bathroom in the household was on the second floor. He was in the bathroom for five minutes when Julia, the three-year-old, ran up the stairs yelling that Tiffany was on fire. Appellant ran downstairs, putting out the fire with his hands and tearing off the burning shirt. Tiffany - 5 - suffered third degree burns over her upper torso and arms. Appellant lifted her from below the waist and ran outside to use the phone at his mother's and father's home, two houses down the street. Pauline Heckathorne, after hearing Tiffany scream, ran outside and helped appellant by taking Tiffany on to the grandparents' while appellant went back to get the other two children. After situating Tiffany with grandmother, Pauline went to appellant's home to help with the other children, allowing appellant to be with Tiffany. Testimony from the neighbors indicated that appellant was crying and clearly upset during this time. EMS personnel arrived ten to fifteen minutes after Tiffany's arrival at her grandparents' home. By this time there were six adults and three children in the house, including the Heckathornes and Bogdan. EMS were on the scene for approximately five minutes. Appellant claimed that he never spoke to the woman who arrived as part of the EMS team. Regina Pantaleano was part of the EMS team which responded to the emergency. She testified that appellant was clearly intoxicated because he slurred his words, could not recite what had happened, had bloodshot, dilated eyes and had a stagger in his gait. Pantaleano further testified that the house was filthy, everyone in it reeked of alcohol and marijuana, and the children were not cared for. She testified that she was there for five minutes and did not realize until the day of trial that Tiffany was - 6 - in her grandparents' home, not the home in which the accident took place. The trial judge stated that he believed "that there was alcohol and marijuana involved. However, ...the alcohol and marijuana just aggravated the situation." (TR. p.283) The court determined that appellant was guilty of child endangerment because he: [K]new his daughter had a propensity to play with lighters, and the defendant knew his daughter could reach the lighter. Yet he left the lighter in a place where his daughter could get to it. He left her unattended for a sufficient period of time for this tragic event to have occurred in her life. (TR. p.284). We agree that this was a tragic event. Children should never be left alone with access to lighters or other dangerous objects. However, the evidence adduced during this trial did not indicate that appellant ever acted recklessly in leaving his lighter where his daughter had access to it. The evidence indicated that both appellant and his wife habitually took steps to prevent their children from gaining access to the lighters by placing them on the top shelf of an entertainment center, five and a half feet tall. This is not reckless behavior where appellant "acted with heedless indifference to the consequences," perversely disregarding "a known risk that his conduct is likely to cause a certain result." Taking steps to provide a safe environment is all that can be expected of parents. We can not live in a society which punishes parents each time a child is injured, under a theory of strict liability. The - 7 - law in Ohio specifically requires recklessness as the culpable mental state of the offender before he or she can be found guilty of child endangering. The prosecution argued below that this factual situation is similar to State v. Wright (1986), 31 Ohio App.3d 232. In that case a seventeen-year-old babysitter left a seven-month-old baby in a room alone for ten minutes. The babysitter also left a hot iron perched on the edge of a dresser with the cord within reach of the baby. The court found this to be reckless behavior and we would agree. Common sense tells us that babies have a propensity to pull at things at the age of seven months. Injury is nearly certain to occur where a hot iron is left within reach of a baby. Tiffany did not have a propensity to play with lighters. No testimony was ever presented that this was something she did on a regular basis. The testimony of her mother was that Tiffany had picked up a lighter before and was taught that it was dangerous at the time. Playing with lighters was not a problem Tiffany had, yet the parents took steps to keep the lighters out of her reach, nonetheless. In Wright the iron cord was within the baby's reach and infants are known to have a propensity to grab and pull at things within their reach. Furthermore, the evidence did not support the trial court's conclusion that appellant knew Tiffany could reach the lighter. No one had ever witnessed Tiffany climbing the shelves of the entertainment center. - 8 - We are compelled to reverse the trial court's ruling on appellant's Crim.R. 29 motion for acquittal. The Ohio Supreme Court has articulated the standard of review to be applied by appellate courts when determining the sufficiency of the evidence: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. Given the evidence presented in the record, we find that appellant's conduct in leaving lighters on the top of the entertainment center and using the bathroom for five minutes was not reckless. In reviewing the evidence in a light most favorable to the prosecution, a rational trier of fact could not have found recklessness. The trial court improperly denied appellant's Crim.R. 29 motion to acquit when the State failed to present sufficient evidence so that a rational trier of fact could have found the essential elements of child endangering proven beyond a reasonable doubt. Appellant's second assignment of error is sustained. I THE TRIAL COURT LACKED JURISDICTION AND THE JUDGMENT OF CONVICTION IS VOID WHEN MR. BENNETT WAS TRIED IN A FELONY CASE WITHOUT A JURY AND THE TRIAL COURT'S RECORD DOES NOT - 9 - REFLECT THAT A WRITTEN WAIVER, SIGNED BY MR. BENNETT, WAS FILED IN THIS CAUSE AND MADE A PART OF THE RECORD, AS REQUIRED BY R.C. 2945.05. III THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. We find that appellant's second assignment of error was dispositive of the case, therefore we will not address the merits of appellant's first and third assignments of error. App.R. 12(A)(1)(c). The trial court erred in denying appellant's Crim.R. 29 motion for acquittal. Appellant's conviction and sentence are hereby vacated. - 10 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., AND PORTER, J. CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .