COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73634 CITY OF WARRENSVILLE HEIGHTS : : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : HOPE WALKER-PANNELL : OPINION : Defendant-Appellant : Date of Announcement of Decision: NOVEMBER 25, 1998 Character of Proceeding: Criminal appeal from Bedford Municipal Court Case No. 97-CRB-1467 Judgment: REVERSED AND VACATED. Date of Journalization: Appearances: For Plaintiff-Appellee: HOWARD S. STERN, ESQ. 75 Public Square, #1400 Cleveland, Ohio 44113-2001 For Defendant-Appellant: CLARENCE B. RADER, III, ESQ. Melling, Melling & Bell 31 Columbus Road Bedford, Ohio 44146 -2- JAMES M. PORTER, P.J.: Defendant-appellant Hope Walker-Pannell appeals from her conviction following a bench trial in the Bedford Municipal Court for child endangering (R.C. 2919.22(A)) in the injury of a three- month-old child for whom she was providing daycare. Defendant contends the conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. We find merit to the appeal and reverse. Defendant is a certified child care provider in Cuyahoga County who maintains a child care facility in her home in Warrensville Heights. On or about May 8, 1997, Nikai Lynn Charleston met with defendant to discuss child care for her three-month-old baby, Sydney Nicole Owens. Ms. Charleston left the child with the defendant that day for a few hours while she went to an interview. The following Monday, May 12, 1997, Ms. Charleston again brought her daughter to the defendant's home for daycare. Although there was conflicting testimony as to whether defendant authorized or was expecting the child to be dropped off, it is undisputed that at the time Ms. Charleston dropped off her child, defendant was not home. In spite of this fact, Ms. Charleston elected to leave the baby there with defendant's adult daughter. While at defendant's home, the baby did receive an injury in the nature of a minor scrape to her forehead. There were no witnesses to the actual incident which caused the injury to the child except defendant who testified to the circumstances -3- surrounding the incident. The prosecution, in its case-in-chief, presented no evidence to show: what caused the injury; what an appropriate duty of care was under the circumstances; that defendant breached any duty of care to the child; or that defendant created a substantial risk of harm to the child. Ms. Charleston did not immediately notify the police of this incident. She waited until the evening of the next day, May 13, 1997. Sgt. Daniel Bambrick, the Warrensville Heights detective who investigated this case, met with her at that time and viewed the injury to the baby. Sgt. Bambrick did not interview defendant or view her home until May 16, 1997, some four days after the injury. In viewing the premises, the detective did not observe anything that he considered to be dangerous. Defendant testified that when she returned home and discovered the baby had been dropped off in her absence, she immediately looked in the child's baby bag for a telephone number to call the mother and tell her that she had to come and pick up the child. However, no telephone number was left with the baby. After calming and feeding the child, defendant put her in a playpen because her other regular daycare children were arriving. Defendant went to the kitchen (about 5 to 6 feet from the baby's playpen) and began fixing breakfast for the other three children (ages three, two and one) who were seated at the breakfast table. At that time, one of the children, Trey, who was approximately one year of age, got up and went into the dining room where the baby was in the playpen. Defendant looked into the room -4- to see what Trey was doing and noticed that he was playing with some toys. She went back to fixing breakfast and when she was placing it on the table, she heard the baby scream. She immediately ran into the room and observed Trey in the playpen with the baby. She removed him from the playpen and tended to the baby who had a little blood on its head. Defendant had never previously witnessed Trey in any way injure other children. Defendant testified that the total time that elapsed between the time Trey went into the dining room and the baby's scream was approximately a minute to a minute and one half. The time that elapsed between when defendant looked in on the children and when she heard the scream was approximately thirty to forty seconds. The prosecution did not submit any evidence to the contrary. Defendant was always within hearing range of the baby and the other children. Defendant was arrested and charged with child endangering, a misdemeanor of the first degree. At her bench trial, the trial judge denied defendant's motion for acquittal at the end of the City's case. Defendant was found guilty as charged. The trial court imposed a fine of $100.00 plus court costs. Execution of sentence was stayed pending the ensuing appeal. Defendant asserts the following assignments of error: I. THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY OF CHILD ENDANGERING AS THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO ESTABLISH ALL OF THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT. II. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -5- III. THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S CRIMINAL RULE 29(A) MOTION FOR ACQUITTAL. We will address these assignments of error together as they are closely related. The Supreme Court has recently summarized the test we must apply in such cases in State v. Clemons (1998), 82 Ohio St.3d 438, 444: In proposition XVI, defendant asserts that the evidence is insufficient to sustain his convictions and, further, that his convictions are against the manifest weight of the evidence. Defendant fails to articulate anything to support his assertions beyond the legal standards applicable to such analysis. As we noted in State v. Smith (1997), 80 Ohio St.3d 89, 113, 684 N.E.2d 668, 691, [S]ufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the jury verdict, State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 546. The [w]eight 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.' (Emphasis sic.) Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d at 546. When reviewing a claim of insufficient evidence, the relevant inquiry is whether any rational factfinder, after viewing the evidence in a light most favorable to the state, could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. Jenks, supra, 61 Ohio St.3d at 273, 574 N.E.2d at 503. -6- The defendant was convicted of child endangering in violation of R.C. 2919.22(A), which states in pertinent part: No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen 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. The term substantial risk is defined in R.C. 2901.01(A)(8) as meaning a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist. Although no culpable mental state is set forth in the statute, it is well established that the City was required to prove recklessness in order to sustain a child endangering conviction under R.C. 2919.22(A). See State v. McGee (1997), 79 Ohio St.3d 193, 195: No degree of culpability is specified on the face of R.C. 2919.22(A). R.C. 2901.21(B) states that [w]hen the section [defining an offense] neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense. This court has previously held that the [e]xistence 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, 16 O.O.3d 169, 404 N.E.2d 144, paragraph one of the syllabus (construing R.C. 2919.22[B][2]); State v. O'Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, paragraph one of the syllabus (construing R.C. 2919.22[B][3]). In each case, the relevant statute did not specify the required degree of culpability or plainly indicate that the General Assembly intended to impose strict liability. The -7- language of R.C. 2901.21(B) was dispositive, and the required degree of culpability was held to be recklessness. See Adams, 62 Ohio St.2d at 152-153, 16 O.O.3d at 170, 404 N.E.2d at 145-146; O'Brien, 30 Ohio St.3d at 124, 30 OBR at 437, 508 N.E.2d at 146. While Adams and O'Brien involved R.C. 2919.22(B)(2)and 2919.22(B)(3), respectively, and this case involves R.C. 2919.22(A), we find no reason to depart from their logic. R.C. 2919.22(A) neither specifies a degree of required culpability nor plainly indicates that the General Assembly intended to impose strict liability. Accordingly, we hold that 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). 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. R.C. 2901.22(C). Upon a review of the record, we find that the prosecution did not prove that defendant created a substantial risk to the health or safety of the child beyond a reasonable doubt. There was no evidence tending to show that the acts of defendant created even a remote chance that injury was going to result, much less that it was a strong possibility. The prosecution did establish that a minor injury to the child occurred. However, both the child's mother and Sgt. Bambrick testified that they viewed the living quarters, furniture and playpens and found nothing dangerous about the arrangements for the care of the children. Neither of these witnesses could provide anything more than a condensed version of defendant's statement as to what had happened. Furthermore, the -8- Cuyahoga County officials responsible for defendant's child care certificationinvestigated this incident and concluded that it was merely an accident. There was no evidence that the actions of the defendant created a substantial risk of harm to the minor child as a matter of law. Defendant placed the child in a playpen and did not leave the general area. The playpen was only six feet away from the kitchen area where defendant was preparing breakfast for her other wards. Defendant had looked in on the baby only thirty seconds prior to the incident and everything was calm and in order. Within thirty seconds, the other child (Trey) crawled into the baby's playpen and apparently caused a minor scrape to the baby's head. There was no evidence introduced tending to show that defendant disregarded any known risk that her conduct would likely result in injury to the child. The child, Trey, was not known to the defendant to ever have caused injury to another child. Under these circumstances, it is difficult to conclude defendant was negligent much less reckless in the care of the baby. The prosecution did not meet its burden of establishing recklessness. See State v. Bennett(July 13, 1995), Cuyahoga App. No. 68039, unreported; State v. Massey (June 19, 1998), Hamilton App. No. C-970617, unreported. For the same reasons, we find the defendant's conviction was also against the manifest weight of the evidence. Assignments of Error I, II and III are sustained. Judgment reversed and vacated; defendant discharged. -9- It is ordered that appellant recover of appellee her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Bedford Municipal 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. KARPINSKI, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .