COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78235 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ANTOINETTE AMERSON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-387596 JUDGMENT : AFFIRMED AND REMANDED : FOR RE-SENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Cuyahoga County Prosecutor BY: James E. Valentine, Esq. Assistant County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James A. Draper, Esq. Cuyahoga County Public Defender BY: John T. Martin, Esq. Assistant Public Defender 1200 West Third Street 100 Lakeside Place Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: Defendant Antoinette Amerson was tried before the court and found guilty of one count of child endangering. The state concedes that the court erred in several respects when sentencing defendant, so the primary issue on appeal is whether the state presented sufficient evidence to support a conviction. The state's evidence showed that defendant had been hired to babysit two young children: the victim, who was eighteen months old at the time of the offense, and the victim's cousin, who was about two years old at the time of the offense. The victim's mother, who was away at the time, said that she received a telephone call informing her to come home immediately. When she arrived, she saw that the victim had red marks and blistering on his penis, scrotum and buttocks. Defendant said that she entered the kitchen to pour herself a glass of water and heard the victim's screams coming from another room. She saw the victim's cousin holding the victim's ankle and dragging him along the carpet. She explained that the victim had been undressed from the waist down because she removed a soiled diaper, but could not find any fresh diapers. A physician who treated the victim said the victim suffered second degree burns that were consistent with scalding, not rug burns. A police detective testified that she measured the temperature of the hot tap water in the house at one hundred fifty degrees, noting that the hot water heater had been left in its highest temperature setting. Some witnesses testified that -3- defendant asked that the victim not be treated at the hospital because they would take the baby away from her. Still other witnesses said that after returning to the house shortly after the burns were discovered, the victim refused to be placed near defendant. Defendant conceded at trial that the markings on the victim were ordinary burns, not rug burns, but denied having any knowledge of how the victim might have been burned. She also said that the children often were left undiapered, although the mother of the victim contradicted this point. The rest of her testimony tried to show the victim's mother was unfit as a parent, but the relevance of this testimony to the charge of child endangerment remains obscure. I The first assignment of error complains the court erred by finding defendant guilty of child endangering because the evidence was insufficient to show that she created a substantial risk of injury or that she acted recklessly. R.C. 2919.22, the child endangerment statute, provides: (A) 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 or a mentally or physically handicapped child under twenty-one 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. *** A substantial risk is defined in R.C. 2901.01(H) as a strong possibility, as contrasted with a remote or significant -4- possibility, that a certain result may occur or that certain circumstances may exist. R.C. 2919.22(A) requires proof of a culpable mental state of recklessness as an essential element of the crime of endangering children. State v. McGee (1997), 79 Ohio St.3d 193, 195. R.C. 2901.22(C) provides: 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 law places upon parents, guardians and those acting in loco parentis a duty to protect children from harm. State v. Sammons(1979), 58 Ohio St.2d 460, 463. 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). State v. Kamel (1984), 12 Ohio St.3d 306, 309. We review claims of insufficient evidence by considering the evidence in a light most favorable to the state and determining whether any reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Waddy(1992), 63 Ohio St.3d 424, 430. With this standard in mind, we find a rational trier of fact could look at the evidence presented in this case and find all the elements of child endangering proved beyond a reasonable doubt. -5- There is no question that defendant, as a babysitter, was acting in loco parentis. See State v. Wright (1986), 31 Ohio App.3d 232. There is equally little question that the state presented sufficient evidence to satisfy the element of a substantial risk of harm by proving its theory that defendant burned the victim by exposing him to scalding water. This theory was entirely consistent with evidence showing beyond a reasonable doubt that the victim suffered burns to his lower private parts. The state's expert firmly ruled out any possibility that the burns were caused by a rug or carpet. Photographs of the victim tended to support this point, as the burn marks had fluid contours seemingly consistent with exposure to water. Other evidence showed that the hot water in the victim's house ran at very high temperatures. In fact, the cousin's mother testified that she lived at the house and, upon first moving into the house, burned herself on the hot water. It was left to the court to infer that an eighteen month old would not have independent access to water in a manner suggested by the burn marks thus forcing the conclusion that the child had been placed in the water. Defendant claims that some of our decisions have considered that substantial risk and recklessness are two sides of the same coin. This claim is not entirely accurate. One can be placed at substantial risk through pure negligence. Our decisions have sought to insulate from criminal culpability acts in which the accused either did not act recklessly or did not place the child in -6- a substantial risk of harm. Hence, in City of Warrensville Heights v. Walker-Parnell (Nov. 25, 1998), Cuyahoga App. No. 73634, unreported, we held that leaving a child unattended in a playpen for thirty to forty seconds did not amount to placing the child at substantial risk of harm, particularly when the very minor injury suffered by the child was caused by another child who had not been known to hurt other children. Our decision in Walker-Parnell is easily distinguished from this case in that the state's evidence here compelled the conclusion that defendant must have been responsible for placing the victim in the water, for it would have been a physical impossibility for him to do so alone. There were only two water outlets in the house: the kitchen sink and the bathtub. Defendant claimed to have been in the kitchen at the time the victim suffered his burns, so the bathroom was the only place where he could have been burned. Although there was no testimony on this point, a reasonable trier of fact could conclude that an eighteen month old could neither operate the faucets nor climb unassisted into water. Moreover, even assuming that the victim had managed to climb into the tub unattended, it is difficult to see how the victim, after having been severely burned, would be able to climb out. A reasonable trier of fact could find that defendant created the risk of harm by exposing the child to scalding water and recklessly failing to test the temperature of that water before exposing the child to it. -7- Our conclusion dispels defendant's primary argument that she cannot be held accountable for creating a substantial risk of harm when the victim suffered unintended consequences. At this point we stress that we decide this assignment on the basis of the court's finding that defendant acted recklessly by exposing the victim to scalding water not that she was reckless merely for turning her attention away from the victim for a brief moment. Hence, we have no occasion to consider defendant's argument that leaving two young children unattended for a few moments is sufficient to place them in a substantial risk of harm, although we do note that several decisions take a contrary view when the brief lack of attention occurs under circumstances when that brief lack of attention is reckless. See, e.g., State v. Schaffer (1998), 127 Ohio App.3d 501 (child endangerment shown where parent lost sight of her two-year- old child for five to ten minutes and the child wandered one hundred yards out into a frequently traveled street); State v. Wright, 31 Ohio App.3d 232 (child endangerment shown when a child left alone in a room with a plugged-in iron and the iron falls onto the child causing burns). The first assignment of error is overruled. -8- II The second assignment of error complains that the court's judgment of conviction is against the manifest weight of the evidence. Defendant maintains the court failed to state a basis for its judgment, other than to say that the judgment was based on the evidence. The court had no obligation to state its reasons for entering a judgment of conviction, anymore than a jury would be called upon to explain its verdict. That it did choose to comment that it based its judgment on all the exhibits and testimony from this witness stand and the applicable facts is of no significance at all. An appellate court will not reverse a judgment as being against the manifest weight of the evidence in a bench trial where the trial judge could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, 59. The court, as the sole judge of credibility at trial, apparently found defendant lacked credibility when she tried to explain the burn marks on the victim as coming from rug or carpet burns. This conclusion was compelled by expert medical testimony which established that carpet or rug burns would be more in the nature of abrasions rather than the clean, fluid contours of the burn mark found on the victim. Defendant ultimately conceded this point at trial, but claimed to have no knowledge of when the victim -9- had been burned, other than to say it happened in the brief time that she entered the kitchen to pour herself a glass a water. Photographs show the burning localized to the victim's buttocks, scrotum and penis in a manner consistent with being dipped into water. The absence of burns elsewhere reinforces this conclusion and also serves to explain why defendant herself was not burned, as she could have grasped the victim under his arms to place him in the water. Finally, defendant now argues for the first time on appeal that embalming fluid left in the house could have caused the burns. Aside from the obvious failure to raise this at trial, we see nothing in this argument to show that embalming fluid could cause the type of burns suffered by the victim. The second assignment of error is overruled. III In her third assignment of error, defendant complains the court decided the case under the misapprehension that the intent element could be satisfied by a mental state less than recklessness. Although she admits the court did not explicitly state that the culpable mental element was less than recklessness, she claims that the court's judgment of acquittal leaves open no other possibility than that the court imposed a lesser standard of mental culpability. We are unimpressed with arguments that claim the court must have disregarded or ignored a point of law merely because the court rendered a decision adverse to that party. McNeil v. Case Western -10- Reserve Univ. (1995), 105 Ohio App.3d 588, 592-593. It is incumbent upon a party trying to show error that the party actually show this court where the error lies. See App.R. 12(A)(2). This requires affirmative proof, not conjecture or, as in this case, something far less than conjecture. As defendant notes, the court did not indicate what standard of a culpable mental state it employed during its deliberations. Because this was a bench trial, we presume the court employed the correct standard of law, unless the record clearly demonstrates otherwise. State v. Coombs (1985), 18 Ohio St.3d 123, 125; In re Watson (1989), 47 Ohio St.3d 86, 91. There is no clear indication to the contrary. Defendant underscores her inability to point to evidence showing that the court considered the incorrect state of mental culpability with her suggested disposition of this assignment of error. Rather than asking for a new trial, defendant merely asks that we remand the case so the court can determine whether it understood that recklessness was required. The futility of this suggested disposition speaks for itself. The third assignment of error is overruled. IV The fourth assignment of error complains that defendant was denied the effective assistance of counsel because counsel failed to ensure that the court applied the correct mental element. Given our finding that defendant failed to demonstrate that the court applied the wrong culpable mental element, it follows that counsel could not have violated an essential duty to defendant. -11- V The remaining four assignments of error all challenge various aspects of defendant's sentencing. The state concedes the court erred when imposing sentence, and our review of the sentencing confirms this fact. We therefore sustain the fifth, sixth, seventh and eighth assignments of error and remand for re-sentencing in conformity with R.C. Chapter 2929. Affirmed and remanded for re-sentencing. -12- It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN JUDGE TIMOTHY E. McMONAGLE, P.J., and TERRENCE O'DONNELL, J., CONCUR. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .