COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69517 CITY OF SHAKER HEIGHTS : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DARNAY C. WRIGHT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 27, 1996 CHARACTER OF PROCEEDING: Civil appeal from Shaker Heights Municipal Court, No. 95-CRB-09148. JUDGMENT: REVERSE, VACATE THE SENTENCE AND DISCHARGE THE DEFENDANT. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Gary Williams, Esq. Chief Prosecutor, Shaker Heights Lisa M. Gale, Esq. Assistant Prosecutor 3400 Lee Road Shaker Heights, OH 44120 For Defendant-Appellant: Bruce L. Mielziner, Esq. Christina M. Janice, Esq. Kabat, Mielziner, Sobel & Janice 25550 Chagrin Boulevard, No. 403 Beachwood, OH 44122 -2- JAMES D. SWEENEY, P.J.: Defendant-appellant Darnay C. Wright ("Wright") appeals from his jury trial conviction of one count of Child Endangering, a first degree misdemeanor, in violation of Shaker Heights Codified 1 Ordinance 737.07(b). For the reasons adduced below, we reverse, vacate the sentence and discharge the defendant. 1 Shaker Heights Codified Ordinance 737.07 provides the following: 737.07 ENDANGERING CHILDREN (a) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under 18 years of age or a mentally or physically handicapped child under 21 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. It is not a violation of a duty of care, protection or support under this subsection when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body. (b) No person shall abuse a child under eighteen years of age or a mentally or physically handicapped child under twenty- one years of age. (c) Whoever violates this section is guilty of endangering children, a misdemeanor of the first degree, if the violation of this section does not result in serious physical harm to the child involved, or if the offender has not previously been convicted of an offense under this section, Ohio R.C. 2919.22 or of any offense involving neglect, abandonment, contributing to the delinquency of or physical abuse of a child. (ORC 2919.22) (Underline added.) -3- A review of the record on appeal indicates that Wright was originally charged with the named offense on March 11, 1995, through the issuance of a charging instrument alleging the following: The undersigned, being duly sworn says: On Friday, the 5th day of August, 1994, at 7:30 p.m., at 3261 Warrensville Center Road, #205, Shaker Heights, Ohio 44122 unlawfully in the City of Shaker Heights, Cuyahoga County, State of Ohio did: Beat his son Darnay D. Wright, age 10, with a belt, causing welts on his legs from which scars remain six (6) months thereafter. In violation of Codified Ordinance 737.07(B). Wright pled Not Guilty at his arraignment and a trial was scheduled for July 13, 1995. On July 7, 1995, six days before the trial date, the plaintiff-appellee City of Shaker Heights ("City") identified new witnesses for the approaching trial and filed a motion to amend the complaint. The amended charging instrument alleged the following in pertinent part: Darnay C. Wright did abuse a child under 18 years of age or a mentally or physically handicapped child under 21 years of age, to wit: Darnay C. Wright did physically and psychologically abuse Darnay D. Wright (d.o.b. 3/30/84) to such an extent that the beating which he gave him on or about August 5, 1994 left scars which remained on Darnay D. Wright for more than six months and to the extent that Darnay C. Wright's mental and physical abuse against Darnay D. Wright required him to receive prolonged psychological treatment, in violation of Section 737.07(b) of the Shaker Heights Codified Ordinances. (Emphasis added.) On July 10, 1995, Wright filed a brief in opposition to the amendment of the complaint on the basis that the proposed amendment -4- was one of substance and not in conformity with Crim.R. 7(D). Wright also filed on this date a motion to continue the trial on the grounds of the amendment of the complaint and the identification of new witnesses by the City. The trial court granted the amendment of the complaint and denied the continuance of the trial. At the scheduled trial, the defense centered on the identity of the person who endangered the child: whether it was the defendant, as argued by the prosecution or, as argued by the defense, whether it was the child's mother. The first witness to testify on behalf of the prosecution was Ms. Sondra R. Saddler, who testified in pertinent part as follows: (1) she is employed as a speech language pathologist by the Shaker Heights Board of Education, and has provided speech therapy services to the victim, Darnay C. Wright, between one to two times per week for the past two school years to help the child overcome his stuttering problem; (2) she first examined the victim in October of 1993; (3) she classified the victim's stuttering problem as severe to profound; (4) the victim's speech problem was demonstrating steady improvement until after the Christmas holiday period in December, 1994, at which point the improvement stopped and the child would not interact with the other children during group therapy sessions on Wednesdays; (5) in April, 1995, the victim came to her sobbing, did not want to talk to her about what was bothering him but did want to talk to someone else, so she took the child to the school psychologist, Mr. Bonkley. -5- The second witness for the prosecution was Dr. Domingo Tugaoen, M.D., who testified in pertinent part as follows: (1) he is a specialist in emergency room medicine; (2) on August 19, 1994, while on duty in the emergency room of Meridia Suburban Hospital (n.k.a. Southpointe Hospital), the witness examined and treated the victim in this case; (3) the witness observed four linear dark areas on the child's right hip; (4) the child told him that the father beat him with a belt about two weeks prior to the emergency room visit; (5) the dark areas, which were slightly discolored and not freshly made and were consistent with having been made about two weeks ago, were consistent with injuries caused by an impact with a blunt object, and were further consistent with being caused by a belt; (6) the witness examined the child's hip just before the start of the trial and noticed the area still had marks evident, which were old marks in nature and appearance; (7) at the time of the emergency room treatment, the witness believed that the marks should last, at most, for approximately a couple of weeks; (8) the marks seen at the emergency room had no abrasions and no scars 2 (T.R.Vol. 1, at 44 ), and the witness thought that there should not be any permanent marks, but he could be mistaken; (9) based on the witness's observations of the child on August 19, 1994, he did not feel that there was any child abuse evident; (10) the emergency 2 In the record on appeal there are four transcript volumes, hereinafter delineated as "T.R." (Trial Record) accompanied with the Volume and page number(s). -6- room record indicates that the child's mother reported the beating incident to the county welfare department. The third witness for the prosecution was Ms. Bernadette Lowe, who stated the following in pertinent part: (1) she is the victim's natural mother and presently has custody of the boy; (2) she and the defendant had a relationship but never married; (3) she and the defendant's relationship ended when she discovered that the defendant was married to another woman; (4) the break-up of the relationship was not amicable; (5) the defendant threatened her with taking the child/victim and not letting her see the boy again; (6) the victim is a bright student who is on the honor roll at his elementary school; (7) in the Summer of 1994, the defendant had, and exercised, court-ordered visitation with the victim; (8) the victim was angry and upset when sent to the father during these visitation periods; (9) when the child returned on August 17, 1994, to the mother from a visitation period with the father, the boy appeared very depressed and stated that he had something to show and tell her; (10) the boy showed the witness his right hip which displayed red, bruised lashes, and stated that his father had beaten him with a belt for not calling the father while the boy was in the mother's custody for a brief period of time; (11) after being told by the child of the beating and seeing the severity of the bruises, the witness notified social services; (12) social service employee Jason Johnson visited the witness's home the next day, at which time the witness recounted the boy's information to him; (13) on the advice of Mr. Johnson, the witness then took the -7- boy to Meridia Suburban Hospital's emergency room for an examination; (14) the marks from the beating are still on the boy as of the time of trial; (15) following the break-up of their relationship, the defendant has taken the boy out of town several times without her knowledge or consent; (16) the boy was referred, prior to August of 1994, by the social worker to a psychiatrist, Dr. Politzer, whom the boy sees every two weeks for counseling; (17) there are numerous instances in the past where the defendant made unsubstantiated reports to child services alleging that the witness had abused the boy, likewise, the witness made one other prior report to child services concerning abuse by the father which 3 was not ultimately proven ; (18) except for a few day periods around August 15, 1994, the boy was visiting his father for approximately one month from July 20 to August 17, 1994. The fourth witness for the prosecution was the boy's psychologist, Dr. Rita J. Politzer, Ph.D., who stated in pertinent part the following: (1) the witness is a clinical and forensic psychologist who has treated the boy approximately once every two weeks since February of 1994, the referral for such treatment coming from the social worker; (2) only the witness and the boy are in the room during a treatment session; (3) she is treating the boy for an adjustment disorder with mixed features of depression and anxiety, which she diagnosed in March of 1994; (4) the boy is very 3 As the record demonstrates, custody of the child has been a bitterly fought issue between the witness and the defendant since the time they ended their relationship. -8- anxious and depressed concerning his relationship with his father; (5) the boy was extremely upset at the August 24, 1994 counseling session, revealing to the witness that the father had struck him with a belt; (6) when first seen by the witness in early 1994, the boy's symptoms included sleeplessness, tearfulness, increased stuttering, nightmares, crying spells, thoughts of suicide and running away, resentment over being dragged into court over his parents' custody fights, and resentment over some of his father's actions regarding custody matters which negatively impacted the boy's school activities; (7) the boy expressed fear of communicating with his father about practically anything, complaining that the father would accuse the boy of lying and that if the boy did not stop lying, that the father would threaten to beat the boy, or tell the boy that he was going to hell, or tell the boy that the court battles over custody were the boy's fault and caused by the boy's lying; (8) the boy wished that his father would leave him alone and stop hurting him; (9) the boy told the witness that the beating episode at issue occurred on approximately August 5, 1994; (10) the fact that the diagnosis was made in March of 1994 and the beating episode was in August of 1994 does not change the diagnosis. The fifth witness for the prosecution was the previously mentioned county social worker, Mr. Jason Johnson, who corroborated the testimony of the mother and additionally testified in pertinent part as follows: (1) he has been involved with the family at issue since December 27, 1993; (2) he first saw the marks at issue on the -9- boy when he physically examined the boy's hip area on August 18, 1994; (3) at the time of this observation, the witness saw three marks two-to-three inches in length, with two sets of marks perpendicular to one another, and the third mark was located just above the other two; (4) the boy told the witness that while the boy was visiting with the father for a month, the boy visited the mother for a short period of time and the father beat him with a belt on August 5, 1994, because the boy did not call the father so that the father could pick up the boy at the mother's house; (5) the defendant denied beating the boy on August 5, 1994, but did admit to practicing corporal punishment with a belt; (6) based on the witness's investigation, the witness referred the matter, which he classified as substantiated, to the Shaker Heights Police Department on September 23, 1994 (the witness explained that the stated date on the referral report, August 23, 1994, was a misprint). The sixth witness for the prosecution was Shaker Heights Police Detective Matthew Tompkins, who testified in pertinent part as follows: (1) he has been on the force for twenty-three years and is assigned to the Juvenile Unit; (2) the boy's mother made a complaint to the witness concerning abuse by the father; (3) the witness received an abuse complaint report on the boy from the Department of Human Services on August 18, 1994, which triggered an investigation by the witness with the boy, the mother and the social worker; (4) on September 26, 1994, the witness observed two striation marks on the boy's buttocks which were consistent with -10- having been made by a belt; (5) the witness reinterviewed the boy on February 10, 1995, at which time the boy's story had not changed from his earlier September allegations and the witness observed what appeared to be the same striated marks which had previously been observed on the buttocks; (6) the witness attempted to talk with the father and the guardian ad litem in the investigation but the father refused to meet at the police station and the guardian did not return the officer's telephone calls; (7) this incident is not the first incident which the witness is aware of involving the boy and his parents; (8) the length of time the marks were present on the boy indicated to the witness that the physical injury was serious in nature. The seventh witness for the prosecution was the victim, eleven-year-old Darnay D. Wright, who corroborated the testimony of the other witnesses concerning his allegations and added in pertinent part the following: (1) he normally visits his father, the defendant, on Tuesdays and every other weekend; (2) he does not like visiting his father because the witness receives no encouragement; (3) in August of 1994, the witness spent approximately one month on an extended period of visitation with the father; (4) during this period of extended visitation, the witness went to see his mother for two days, at the end of which the father was to pick the witness up at the mother's home; (5) the father did not appear at the agreed time to pick the witness up, instead appearing on the third day; (6) the father was angry with the witness for not having telephoned the father to pick the -11- witness up on the second day: that the boy does not recall having been so instructed; (7) after arriving back at the father's apartment, the father, still angry, ordered the witness to take off his pants and lay down on the bed, at which time the witness was beaten with a black belt on his bare buttocks; (8) the beating caused the witness to cry from the pain; (9) before going to bed that same night, the boy observed in his reflection in the bathroom mirror the marks from the belt; (10) the father has struck the witness with a belt for other transgressions in the past; (11) the father has told the witness that the mother is confused and needs help, statements which make the witness sad; (12) the father forced the witness to be absent for the witness's graduation ceremony from the fourth grade, after which the witness was returned to the mother with the assistance of the police; (13) the father took the witness to the doctor because of the August of 1994 marks, at which time the witness, in a state of fear over what his father might do to him, lied by telling the doctor that the mother had caused the marks; (14) the August of 1994 marks are still present, but only "a little bit," on the witness's body (T.R.Vol. 2, at 84); (15) the witness is aware of the custody fights over him between his parents; (16) the witness does not recall the precise day of the offense; (17) the site of the beating marks was sore the night of the offense, but the day after the beating he was able to do everything he wanted without pain (T.R.Vol. 2, at 90-91). At this point the prosecution rested. The defense motioned the court for acquittal pursuant to Crim.R. 29(A). Subsequent to -12- oral argument by the parties, the court overruled the motion for acquittal. The defense then offered the testimony of one witness, Dr. Daniel A. Breitenbach, M.D., who testified in pertinent part as follows: (1) the witness met the boy on March 15, 1995, at which time the father brought the boy to the witness for an examination: the father expressed fear of being accused of abusing his son and that the mother had committed some form of abuse to the boy; (2) this examination revealed a two-inch long mark of increased pigmentation on the boy's right thigh/hip area; (3) the witness could not tell what caused the mark; (4) from reviewing the medical record of the August 1994 right hip marks, the witness described those marks as abrasions, even though that report identifies the mark as a bruise or contusion; (5) the mark the witness observed in the examination is not a scar; (6) based on his expert opinion and experience, one would not expect the abrasion described in the medical record from August of 1994 to last until the time of the witness's examination; (7) the father told the witness that the mark observed during the examination was the same mark which happened in August of 1994. At this point the defense rested its case. (T.R.Vol. 4, at 1.) The defense then renewed its motion for acquittal pursuant to Crim.R. 29(A). Relying on the parties' prior arguments relative to this motion, the trial court denied the renewed motion. The prosecution next offered in rebuttal the testimony of Mr. George Kovacs, the boy's Juvenile Court appointed guardian ad -13- litem, who testified in pertinent part as follows: (1) the witness was appointed as the boy's guardian ad litem in December of 1993; (2) in the Spring of 1994, the witness had a conversation with the boy's psychologist, Dr. Politzer, at which time the psychologist expressed concern over the boy's feelings toward his father; (3) the psychologist requested that the witness contact the father and attempt to obtain the father's involvement in a joint counselling program with the psychologist and the boy; (4) the witness did contact the father, as requested, but to the best knowledge of the witness the father refused to involve himself in the counselling program on the advice of his counsel at that time. The defense again renewed its motion for acquittal, which was again denied by the trial court. The court then heard closing arguments and instructed the jury accordingly. The jury deliberated and returned its verdict of guilty to the charged offense on July 27, 1995. The defendant was then referred to the probation department for the preparation of a presentence investigation report. The defendant was ultimately sentenced to the following on April 8, 1996: (1) 30 days imprisonment; (2) a fine of $700 plus court costs; (3) twenty-four months of active probation with the condition that defendant obtain psychiatric counselling; (4) imprisonment and $300 of the fine suspended. This appeal followed presenting three assignments of error. I -14- THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY OVERRULING APPELLANT'S MOTION FOR ACQUITTAL, WHERE THE CITY FAILED TO INTRODUCE SUFFICIENT EVIDENCE GOING TO ONE OF THE ESSENTIAL ELEMENTS OF THE CRIME OF CHILD ENDANGERING, TO WIT: THE CREATION OF A SUBSTANTIAL RISK TO THE HEALTH OR SAFETY OF THE CHILD. The standard of review for an argument based on error associated with a ruling on a motion for acquittal made pursuant to Crim.R. 29(A) was recently provided by this court in State v. Tolbert (May 16, 1996), Cuyahoga App. No. 69158, unreported, at 8, wherein the following was stated: In reviewing a Crim.R. 29(A) motion for acquittal, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. Bridgeman (1978), 55 Ohio St.3d 261. When reasonable minds could not convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not be given to the jury. Id. Also see State v. Waddy (1992), 63 Ohio St.3d 424, 430; State v. Perkins (Cuyahoga, 1993), 93 Ohio App.3d 672. Appellant was charged and convicted of abusing a child under eighteen years of age in violation of Shaker Heights Codified Ordinance 737.07(b). This ordinance section does not define the term "abuse of a child" or even what constitutes child abuse. However, we note that the section (b) of the ordinance is practically a verbatim reproduction of Ohio's Endangering Children -15- statute, R.C. 2919.22(B)(1), which statute includes abuse of a child as an act endangering children, and is expressly noted by general reference at the end of the ordinance by its authors. Therefore, we look to the Revised Code and pertinent case law for guidance as to whether the corporal punishment in this case was excessive and constituted child abuse. The following was stated in In re Schuerman (Paulding, 1991), 74 Ohio App.3d 528, 531 (eight- year-old child adjudicated to have been abused pursuant to R.C. 2919.22[B][1] where the parent beat the child with a belt or a wooden paddle for alleged misbehavior causing severe bruising on the child's buttocks, upper thighs, and around the child's ankles and wrists): An "abused child" is defined in R.C. 2151.031 as any child who: "(B) Is endangered as defined in section 2919.22 of the Revised Code, except that the court need not find that any person has been convicted under that section in order to find that the child is an abused child ***." The Revised Code does not specifically define what actions constitute abuse of a child. Thus, the trial court, in its broad discretion, is to make its determination of abuse on a case-by-case basis. See In re Noftz (Aug. 22, 1986), Huron App. No. 85-10696, unreported, 1986 WL 9098. The court is to review the totality of the circumstances, looking for any form of cruelty to the child, either physical or mental. Specific factors to be considered by the trial court in making a determination of abuse include the circumstances giving rise to the harm to the child, the past history of the child, the nature and manner of the discipline administered to the child and the measure of discipline. Id. -16- The law of Ohio has long recognized that parents have the right of restraint over their children and the duty of correcting and punishing them for misbehavior. However, such punishment must be reasonable and not exceed the bounds of moderation and inflict cruel punishment. See State v. Liggett (1948), 84 Ohio App. 225, 39 O.O. 287, 83 N.E.2d 663. R.C. 2919.22 not only prohibits a parent from violating his or her duties of care, protection and support, but also prohibits a parent from administering to a child under eighteen years of age corporal punishment which is excessive and which creates a substantial risk of serious physical harm to the child. In re Rogers (Aug. 24, 1989), Putnam App. No. 12-89-5, unreported, 1989 WL 98423. (Emphasis added.) Also see State v. Ivey (Cuyahoga, 1994), 98 Ohio App.3d 249, discretionary appeal disallowed in (1995), 71 Ohio St.3d 1476 (viewing the totality of the circumstances, a ten-year-old boy's injuries of a bruised left eyelid, bruises, welts, and lacerations caused by a disciplinary belt whipping on the buttocks and lower legs, and a swollen hand, did not cause the child serious physical harm or threaten substantial risk of same as defined by R.C. -17- 4 2901.01[E] , thus the sufficiency of the evidence did not support the offense of child endangering). In the present case, the City-appellee argues that the father, viewing the totality of the circumstances, placed the child at a substantial risk of serious physical harm in two ways: first, for prolonged psychiatric treatment as a result of the disciplinary whipping (R.C. 2910.01[E][1]), and second, for permanent disfigurement or temporary, serious disfigurement based on the longevity of the marks on the boy's hip (R.C. 2901.01[E][4]). Appellee's brief at 12. 4 Serious physical harm is defined under R.C. 2901.01(E) as follows: (E) "Serious physical harm to persons" means any of the following: (1) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (2) Any physical harm which carries a substantial risk of death; (3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; (4) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement; (5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain. -18- As to the issue of psychiatric treatment, the record contains no evidence to conclude that the child herein was the subject of any psychiatric treatment as a result of the August 1994 whipping. Instead, any psychiatric treatment by Dr. Politzer subsequent to the offense herein was a continuation of treatment for the conditions and symptoms which were present prior to the offense herein. There is nothing in the medical evidence to suggest that any portion of the child's continuing psychiatric care was the result of the whipping herein. Accordingly, the trial court erred in not granting the motion for acquittal based on the mental treatment of the child. The remaining basis advanced by the City, that of permanent disfigurement or temporary, serious disfigurement, is more problematic. It is beyond dispute that the child's hip evidenced two small striated bruises, each approximately two-to-three inches in length. However, we recognize that the mere presence of bruising alone is insufficient to establish abuse. In re Schuerman, supra at 532. Thus the City maintains that the marks were (1) a permanent disfigurement or (2) were a temporary and serious disfigurement to defeat the motion for acquittal and send the issue of guilt to the jury. The record demonstrates that the marks were observable on the boy's hip at the time of trial in July of 1995, approximately eleven months after the offense. However, the emergency room physician testified that the marks were slightly discolored at the time of the August 19, 1994 examination and the victim testified -19- that the bruises were only visible "a little bit" at the time of trial. (T.R.Vol. 2, at 84.) This description of the nature of the bruises by the treating physician and the victim indicates that the observable marks were lessening with time, and were therefore temporary in nature. Certainly, there was no testimony that the marks would remain observable in some degree on the boy's body despite the passage of any measure of time. This precludes classifying the marks as permanent disfigurement. Being temporary in nature, the question which must be answered is whether the marks were, not just temporary, but also serious disfigurement. In light of the plethora of severe injuries sustained in State v. Ivey, supra, which were deemed not to constitute abuse, we must conclude that the whipping, though somewhat harsh and certainly not condoned by the members of this court, did not cause temporary and serious disfigurement to the boy. This conclusion, that the element of seriousness was lacking, is buttressed by the following: (1) the marks were small and were receding over time; (2) the emergency room physician testified that he thought that there was no scarring at the site of the marks and did not feel there had been any abuse; (3) the emergency room report identified the marks as bruises or contusions, not scars; (4) while the injury site was sore the evening it was inflicted, the injury did not prevent the boy from sleeping and the victim experienced no pain at the site of the injury the morning after the injury was inflicted and thereafter enjoyed his normal activities without pain or difficulty; (5) the injury required no follow-up medical care or physical therapy; and, -20- (6) the treating physician did not hospitalize the boy. Accordingly, the City failed to prove by sufficient evidence that this type of whipping resulted in serious physical harm or could result in a substantial risk of serious physical harm to the child. The first assignment of error is sustained. The second and third assignments provide the following: II THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY THAT ONE OF THE REQUIRED ELEMENTS OF CHILD ENDANGERING, THAT BEING SUBSTANTIAL RISK TO THE HEALTH OR SAFETY OF THE CHILD, MAY BE DEMONSTRATED BY EVIDENCE OF PROLONGED "PSYCHOLOGICAL," RATHER THAN PROLONGED "PSYCHIATRIC" TREATMENT OF THE CHILD, AS DEFINED IN SECTION 2901.01(E) OF THE REVISED CODE. III THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING APPELLANT'S EMERGENCY MOTION FOR CONTINUANCE WHEN THE CITY MADE A SUBSTANTIVE AMENDMENT OF ITS CRIMINAL CHARGE AND NAMED NEW WITNESSES WITHIN SIX (6) DAYS PRIOR TO THE COMMENCEMENT OF TRIAL. By virtue of our holding in the first assignment of error, which mandates a reversal of the conviction and vacation of the sentence, these two remaining assignments of error are moot and will not be discussed. See App.R. 12(A)(1)(c). Judgment reversed, sentence vacated and defendant is discharged. -21- This cause is reversed, vacating the sentence and discharging the defendant, consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee 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. PATRICIA BLACKMON, J. and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .