from Union County Common Pleas Court Trial Court No.
Natalie J. Bahan for Appellant.
Melissa A. Chase for Appellee
Defendant-appellant, Luckie J. Dayton III
("Dayton"), appeals the February 22, 2017 judgment
entry of sentence of the Union County Court of Common Pleas.
For the reasons that follow, we affirm.
In April 2015, Dayton's children, M.R.D., M.A.D., M.D.,
and I.D., as well as Dayton's stepdaughter, P.W., were
removed from Dayton's home following an allegation by
P.W. that Jessica Dayton ("Jessica"), Dayton's
wife, was physically abusing M.R.D. and M. A.D. At first,
Dayton was permitted to visit with his children because only
Jessica was charged with endangering children. However,
following a visit with M.A.D. in August 2015, Dayton was
arrested for intimidation after M.A.D. alleged that Dayton
showed her a picture during the visit which stated something
to the effect of "Your Mother Did Not Abuse You."
On August 31, 2015, the Union County Grand Jury indicted
Dayton on one count of intimidation in violation of R.C.
2921.03(A), a third-degree felony. (Case No. 2015-CR-162,
Doc. No. 1). On September 17, 2015, Dayton appeared for
arraignment and entered a plea of not guilty. (Case No.
2015-CR-162, Doc. No. 8).
Although Dayton was not initially implicated in Jessica's
abuse of M.R.D. and M.A.D., he was soon charged with offenses
relating to the abuse. He was also charged with offenses
stemming from an allegation that Dayton sexually abused P.W.
and that he attempted to bribe M.R.D. and M.A.D. to give
favorable testimony in proceedings against Jessica. On June
20, 2016, the Union County Grand Jury indicted Dayton on ten
counts, including: Counts One and Two of gross sexual
imposition in violation of R.C. 2907.05(A)(4), (C)(2),
third-degree felonies; Counts Three and Four of endangering
children in violation of R.C. 2919.22(B)(2), (E)(3),
second-degree felonies; Counts Five and Six of endangering
children in violation of R.C. 2919.22(A), (E)(2)(c),
third-degree felonies; Counts Seven and Eight of permitting
child abuse in violation of R.C. 2903.15(A), (C),
third-degree felonies; and Counts Nine and Ten of bribery in
violation of R.C. 2921.02(C), (G), third-degree felonies.
(Case No. 16-CR-0131, Doc. No. 1). Although the indictment
charged Dayton with violations of R.C. 2919.22(B)(2) as the
principal offender as permitted under R.C. 2923.03(F), a
subsequently filed bill of particulars clarified that the
State was pursing the charges against Dayton under the
complicity statute for involvement with Jessica's abuse
of two of his minor daughters, M.R.D. and M.A.D., in
violation of R.C. 2919.22(B)(2). (Case No. 16-CR-0131, Doc.
On July 22, 2016, Dayton appeared for arraignment and entered
pleas of not guilty to the ten-count indictment. (Case No.
16-CR-0131, Doc. No. 8).
On December 1, 2016, the State filed a motion to consolidate
case numbers 2015-CR-162 and 2016-CR-0131. (Case No.
16-CR-0131, Doc. No. 42); (Case No. 2015-CR-162, Doc. No.
35). On December 2, 2016, the trial court granted the
State's motion and consolidated the cases under case
number 2016-CR-0131. (Case No. 16-CR-0131, Doc. No. 45);
(Case No. 2015-CR-162, Doc. No. 36). The intimidation charge
that was the subject of case number 2015-CR-162 was later
designated as Count Eleven in case number 16-CR-0131.
(See Case No. 16-CR-0131, Doc. Nos. 64, 74).
On December 9, 2016, the State filed a motion requesting that
the trial court call Jessica as the court's witness under
Evid.R. 614(A). (Case No. 16-CR-0131, Doc. No. 56). On
December 12, 2016, the trial court granted the State's
motion to call Jessica Dayton as the court's witness.
(Case No. 16-CR-0131, Doc. No. 61).
A jury trial was held on December 12-16, 2016. (Dec. 12-16,
2016 Tr., Vol. I, at 2-6). At the conclusion of the
State's case-in-chief on December 15, 2016, Dayton moved
for a Crim.R. 29 judgment of acquittal for Counts One through
Eleven of the indictment. (Dec. 12-16, 2016 Tr., Vol. VII, at
1302-1307). The trial court granted Dayton's motion as to
Count One and denied his motion as to Counts Two through
Eleven. (Id. at 1307-1308, 1315); (Case No.
16-CR-0131, Doc. No. 64). The jury found Dayton guilty as to
Counts Two through Eleven. (Dec. 12-16, 2016 Tr., Vol. VIII,
at 1731-1738); (Case No. 16-CR-0131, Doc. Nos. 65, 66, 67,
68, 69, 70, 71, 72, 73, 74).
The trial court held a sentencing and sex-offender
registration hearing on February 22, 2017. (Feb. 22, 2017
Tr.); (Case No. 16-CR-0131, Doc. Nos. 81, 82). The trial
court determined that Counts Three, Five, and Seven are
allied offenses of similar import and merged those counts.
(Case No. 16-CR-0131, Doc. No. 81). The trial court also
determined that Counts Four, Six, and Eight are allied
offenses of similar import and merged those counts. (Case No.
16-CR-0131, Doc. No. 81). The State elected to pursue Counts
Three and Four for sentencing. (Case No. 16-CR-0131, Doc. No.
81). The trial court sentenced Dayton to 54 months in prison
on Count Two, 4 years in prison on Count Three, and 4 years
in prison on Count Four, to be served consecutively for an
aggregate prison term of 12 years and 6 months. (Case No.
16-CR-0131, Doc. No. 81). Dayton was also sentenced to 30
months in prison on Count Nine, 30 months in prison on Count
Ten, and 30 months in prison on Count Eleven, each of which
is to be served concurrently with his sentences for Counts
Two, Three, and Four. (Case No. 16-CR-0131, Doc. No. 81). The
trial court also classified Dayton as a Tier II sex offender.
(Case No. 16-CR-0131, Doc. No. 81).
Dayton filed his notice of appeal on March 24, 2017. (Case
No. 16-CR-0131, Doc. No. 89). He raises three assignments of
error for our review. We will address Dayton's
assignments of error in the order presented, and for the sake
of clarity, we will address Dayton's second and third
assignments of error together.
of Error No. I
convictions are supported by insufficient evidence, and are
against the weight of the evidence and therefore resulting
[sic] in a denial of due process.
In his first assignment of error, Dayton argues that his
convictions are based on insufficient evidence and against
the manifest weight of the evidence. As to his
endangering-children, complicity-to-endangering-children, and
permitting-child-abuse convictions, Dayton argues that the
State presented insufficient evidence that he either had
knowledge of the abuse occurring in his residence or that he
recklessly disregarded a substantial risk that abuse was
taking place; he also argues that the evidence weighs against
the jury's finding to the contrary. As to his
gross-sexual-imposition conviction, Dayton argues that the
jury erred in crediting the victim's account of the
alleged abuse and that, as a result, his
gross-sexual-imposition conviction is against the manifest
weight of the evidence.
Manifest "weight of the evidence and sufficiency of the
evidence are clearly different legal concepts."
State v. Thompkins, 78 Ohio St.3d 380, 389 (1997).
Accordingly, we address each legal concept
"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." State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus, superseded by
state constitutional amendment on other grounds, State v.
Smith, 80 Ohio St.3d 89 (1997). Consequently,
"[t]he 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."
Id. "In deciding if the evidence was
sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions
reserved for the trier of fact." State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,
2013-Ohio-4775, ¶ 33, citing State v. Williams,
197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist).
See also State v. Berry, 3d Dist. Defiance No.
4-12-03, 2013-Ohio-2380, ¶ 19 ("Sufficiency of the
evidence is a test of adequacy rather than credibility or
weight of the evidence."), citing Thompkins at
On the other hand, in determining whether a conviction is
against the manifest weight of the evidence, a reviewing
court must examine the entire record, "'weigh[ ] the
evidence and all reasonable inferences, consider[ ] the
credibility of witnesses and determine[ ] whether in
resolving conflicts in the evidence, the [trier of fact]
clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new
trial ordered.'" Thompkins at 387, quoting
State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). A reviewing court must, however, allow the trier
of fact appropriate discretion on matters relating to the
weight of the evidence and the credibility of the witnesses.
State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When
applying the manifest-weight standard, "[o]nly in
exceptional cases, where the evidence 'weighs heavily
against the conviction,' should an appellate court
overturn the trial court's judgment." State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233,
¶ 9, quoting State v. Hunter, 131 Ohio St.3d
67, 2011-Ohio-6524, ¶ 119.
Dayton was convicted of two counts of endangering children in
violation of R.C. 2919.22(A), two counts of complicity to
endangering children in violation of R.C. 2923.03(A) and R.C.
2919.22(B)(2), two counts of permitting child abuse in
violation of R.C. 2903.15(A), and one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4).
The criminal offense of endangering children is codified in
R.C. 2919.22, which provides, in relevant part:
(A) No person, who is the parent * * * 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.
(B) No person shall do any of the following to a child under
eighteen years of age * * *:
(2) Torture or cruelly abuse the child
R.C. 2919.22(A), (B)(2).
"'To find the defendant guilty of child endangering
under [R.C. 2919.22(A)], the state must prove beyond a
reasonable doubt that the defendant: (1) was the parent,
guardian, custodian, person having custody or control, or
person in loco parentis of a child under eighteen; (2)
violated a duty to said child; (3) created a substantial risk
to the health or safety of the child; and (4) acted
recklessly.'" State v. Miller, 3d Dist.
Seneca No. 13-13-14, 2014-Ohio-261, ¶ 11, quoting
State v. Miller, 3d Dist. Logan Nos. 8-07-07 and
8-07-08, 2007-Ohio-6711, ¶ 12, citing R.C. 2919.22(A)
and State v. McGee, 79 Ohio St.3d 193, 195 (1997). A
"substantial risk" means "a strong
possibility, as contrasted with a remote or significant
possibility, that a certain result may occur or that certain
circumstances may exist." R.C. 2901.01(A)(8). The
culpable mental state required to sustain a conviction for
endangering children under R.C. 2919.22(A) is recklessness.
McGee at 195. "A person acts recklessly when,
with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the
person's conduct is likely to cause a certain result or
is likely to be of a certain nature." R.C. 2901.22(C).
"A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, the
person disregards a substantial and unjustifiable risk that
such circumstances are likely to exist." Id.
On the other hand, to prove the offense of endangering
children under R.C. 2919.22(B)(2), the State must prove
beyond a reasonable doubt that a defendant recklessly
tortured or cruelly abused a child under eighteen years of
age. See State v. Journey, 4th Dist. Scioto No.
09CA3270, 2010-Ohio-2555, ¶ 24, citing R.C.
2919.22(B)(2). R.C. 2919.22 does not define the terms
"torture" or "cruelly abuse." See
State v. Wainscott, 12th Dist. Butler No. CA2015-07-056,
2016-Ohio-1153, ¶ 24, quoting State v. Nivert,
9th Dist. Summit No. C.A. NOS. 16806, 1995 WL 608415, *2
(Oct. 18, 1995). "However, the word 'torture' as
used in [R.C. 2919.22(B)(2)] has been defined as 'the
infliction of severe pain or suffering (of body or
mind),' with the word 'abuse' being defined as
'ill-use, maltreat; to injure, wrong or hurt.'"
Id., quoting State v. Surles, 9th Dist.
Summit No. 23345, 2007-Ohio-6050, ¶ 5. "Moreover,
to treat someone 'cruelly' means to 'demonstrate
indifference to or delight in another's suffering,'
as well as to treat that person 'severely, rigorously, or
sharply.'" Id., quoting State v.
Brown, 9th Dist. Summit No. 23737, 2008-Ohio-2956,
¶ 12. As with R.C. 2919.22(A), the culpable mental state
required to sustain a conviction for endangering children
under 2919.22(B)(2) is recklessness. See id. at
¶ 25, citing State v. Ossege, 12th Dist.
Clermont Nos. CA2013-11-086 and CA2013-11-087,
2014-Ohio-3186, ¶ 55 and State v. Adams, 62
Ohio St.2d 151 (1980), paragraph one of the syllabus.
R.C. 2923.03, Ohio's complicity statute, provides, in
relevant part, that "[n]o person, acting with the kind
of culpability required for the commission of an offense,
shall * * * [a]id or abet another in committing the offense *
* *." R.C. 2923.03(A)(2).
To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the evidence must show that
the defendant supported, assisted, encouraged, cooperated
with, advised, or incited the principal in the commission of
the crime, and that the defendant shared the criminal intent
of the principal. Such intent may be inferred from the
circumstances surrounding the crime. State v.
Johnson, 93 Ohio St.3d 240 (2001), syllabus.
"'"Evidence of aiding and abetting may be shown
by either direct or circumstantial evidence, and
participation in criminal intent may be inferred from
presence, companionship, and conduct before and after the
offense is committed."'" State v.
Wright, 3d Dist. Hardin No. 6-15-14, 2016-Ohio-5465,
¶ 9, quoting State v. Rowe, 3d Dist. Seneca No.
13-10- 14, 2011-Ohio-5739, ¶ 32, quoting State v.
Gragg, 173 Ohio App.3d 270, 2007- Ohio-4731, ¶ 21
(12th Dist.). Accordingly, to sustain a conviction for
complicity to endangering children under R.C. 2923.03(A)(2)
and 2919.22(B)(2), the State must prove beyond a reasonable
doubt that a defendant recklessly aided or abetted
another's violation of R.C. 2919.22(B)(2). See State
v. Diggs, 10th Dist. Franklin No. 14AP-18,
2014-Ohio-3340, ¶ 25-26 (applying the recklessness
culpability standard to the complicity statute).
The criminal offense of permitting child abuse is codified in
R.C. 2903.15, which provides, in relevant part, that
"[n]o parent, guardian, custodian, or person having
custody of a child under eighteen years of age * * * shall
cause serious physical harm to the child, or the death of the
child, as a proximate result of permitting the child to be
abused [or] to be tortured * * *." R.C. 2903.15(A). The
culpable mental state required to sustain a conviction under
R.C. 2903.15(A) is recklessness. See State v.
Ferguson, 2d Dist. Clark No. 08CA0050, 2011-Ohio-4285,
¶ 27. "Serious physical harm" means:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
(b) Any physical harm that carries a substantial risk of
(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
(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.
The criminal offense of gross sexual imposition is codified
in R.C. 2907.05 which provides, in relevant part, that
"[n]o person shall have sexual contact with another, not
the spouse of the offender * * * when * * * [t]he other
person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of
that person." R.C. 2907.05(A)(4). "Sexual
contact" is defined in R.C. 2907.01(B) as meaning
"any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic
region, or, if the person is a female, a breast, for the
purpose of sexually arousing or gratifying either
person." "Whether touching is done for the purpose
of sexual gratification is a 'question of fact to be
inferred from the type, nature, and circumstances surrounding
the contact.'" State v. Todd, 3d Dist.
Hardin No. 6-16-11, 2017-Ohio-4355, ¶ 12, quoting In
re K.C., 1st Dist. Hamilton No. C-140307,
2015-Ohio-1613, ¶ 32.
At trial, the State first offered the testimony of Detective
Nathan Stone ("Detective Stone") of the Marysville
Division of Police. (Dec. 12-16, 2016 Tr., Vol. I, at
243-244). Detective Stone testified that he was present on
the day that a search warrant was executed at Dayton's
residence and that he was tasked with taking photographs of
the residence and items seized. (Id.). Detective
Stone identified State's Exhibits 1 through 11 as
photographs depicting the residence as it appeared on May 27,
2015 as well as items seized from the residence.
(Id. at 245-260) (See State's Exs.
Next, Dayton's then 14-year-old daughter, M.R.D.,
testified that when she was living with Dayton, she recalled
having fights with her sister, M.A.D., "almost every
day" because "[Jessica] would force [M.R.D. and
M.A.D.] to fight over stupid stuff like "not letting the
dog out" and "keeping [their] brother and sister
from waking up [Jessica]." (Dec. 12-16, 2016 Tr., Vol.
IV, at 748, 750, 759). According to M.R.D., Jessica would
tell M.R.D. and M.A.D. to "go into the bathroom and sort
it out * * * and by sort it out, she meant, * * * hit and
punch and stuff * * *." (Id. at 750). She
testified that she suffered "marks" from the fights
and "busted lips." (Id. at 750-751).
M.R.D. testified that she was often forced to fight with
M.A.D. during car trips. (Id. at 766-767). On one
occasion, she was forced to hit M.A.D. in the head with a
lunchbox. (Id. at 767). M.R.D. stated that she has a
"few scars on [her] forehead" from fighting with
M.A.D. but that her facial scars were "mainly from
[Jessica]." (Id. at 751). M.R.D. testified that
Jessica once hit her in the head with the "clip of a
belt," leaving a visible scar. (Id.). She
testified that the belt buckle "busted open" her
head and that Jessica used super glue to close the wound
without taking her to the doctor. (Id. at 751-752).
She testified that her head was repeatedly slammed into the
walls of their residence by Jessica, that the walls were
damaged as a result, and that a hole in the wall, caused when
Jessica pushed M. A.D. into the wall, had to be covered over
with a poster. (Id. at 754). She testified that
Dayton was at home the day Jessica pushed M.A.D. into the
wall, causing the hole. (Id. at 779).
M.R.D. also testified that Jessica forced her and M.A.D. to
"tuck in" their toes because Jessica said their
"feet were disgusting." (Id. at 756). She
testified that they were forced to walk with their toes
tucked under their feet "all day." (Id.).
She testified that, on one occasion, Jessica "took a
hammer to [their] feet." (Id.). M.R.D.
testified that Jessica once pushed M.A.D., causing M.A.D. to
hit her head on the corner of a night stand. (Id. at
757). As a result, M.A.D. got a "goose egg" on her
head, which Jessica told M.R.D. to get rid of by pushing on
it. (Id.). M.R.D. testified that she complied with
Jessica's instruction and that M.A.D. then had "two
black eyes and her whole forehead was swollen" for
approximately two days. (Id. at 757-758). She also
testified that Jessica forced them to "float"-
stand on their "tippy toes" and fall face forward
without catching themselves with their hands-"[a]lmost
every day after [they] got home from school."
(Id. at 762). She testified that one time, Jessica
stood on M.A.D.'s stomach until M.A.D. lost consciousness
and stopped breathing, resulting in M.R.D. having to perform
CPR on M.A.D. (Id. at 763-764). M.R.D. testified
that Jessica would "quite often" conceal her and
M.A.D.'s injuries with makeup and that they would have
cuts and bruises "most of the time." (Id.
at 758-759). She testified that this pattern continued for at
least four years from the time that she was 8-years-old until
she was placed in foster care just before she turned
13-years-old. (Id. at 770).
As to Dayton's knowledge of what was happening, M.R.D.
testified that Jessica recorded M.A.D. and M.R.D. fighting so
that she could show Dayton to "prove to him that we were
fighting with each other, and this would always happen when
he was gone." (Id. at 755). She testified that
she would interact with Dayton when he would help with
homework after school and that they would also eat together.
(Id. at 764-765). As to other people's knowledge
of what was happening at home, M.R.D. stated that she would
tell teachers only that she and M.A.D. were fighting because
Jessica instructed her to say no more than that.
(Id. at 759-760). She testified that she never told
them the full extent of what was happening because she was
scared to do so. (Id. at 772).
On cross-examination, M.R.D. testified that Dayton was
"usually at work" and not present when Jessica made
M.R.D. and M.A.D. fight each other. (Id. at 784).
She testified that they "were forced to tell [Dayton]
that we were fighting with each other" without being
instructed to do so by Jessica "so that's what he
thought." (Id. at 789). She stated that Jessica
would threaten them so that they would not tell Dayton what
was really going on and why she was fighting M.A.D.
(Id. at 784-785). M.R.D. identified State's
Exhibit 27 as a series of photographs depicting bruises and
other injuries. After reviewing State's Exhibit 27, she
stated that Dayton was not present when those injuries were
inflicted and that he was never informed exactly how M.R.D.
sustained those injuries. (Id. at 789). She
testified that Dayton never hit them and Jessica never hit
her or M.A.D. in the presence of Dayton. (Id. at
In addition, M.R.D. testified that Dayton was upstairs trying
to sleep when Jessica pushed M.A.D. into the wall causing the
hole which was later covered up by a poster. (Id. at
793-794). She testified that when Dayton inquired as to how
the wall was damaged, he was told that M.A.D. was being
clumsy and fell into the wall. (Id. at 795). M.R.D.
then testified as to another hole in the bathroom wall caused
by Jessica repeatedly pushing M.R.D. and M.A.D. into it.
(Id. at 796). She testified that Jessica told Dayton
that that hole was caused by M.A.D. and M.R.D.'s
fighting. (Id. at 797). Finally, M.R.D. opined that
she did not think that Dayton knew of Jessica's abuse.
(Id. at 801-802).
The State also offered the testimony of M.A.D., who was
15-years-old at the time of her testimony. (Dec. 12-16, 2016
Tr., Vol. V, at 842). M.A.D.'s testimony was, in large
part, identical to M.R.D.'s testimony. When asked what
her and her siblings did after school, M.A.D. replied that
"usually [M.R.D.] and I fought and stuff."
(Id. at 844). M.A.D. testified that she and M.R.D.
would fight and hit each other "[a]nywhere [they] were
told" by Jessica. (Id. at 845-846). She said
that, as a result, she suffered bloody lips and black eyes.
(Id. at 846, 860). M.A.D. also confirmed many of the
details of M.R.D.'s account of the "goose egg"
M.A.D. sustained. (Id. at 846-847). She testified
that she missed two days of school as a result of that
incident, and when she returned to school, makeup was applied
to conceal her injuries. (Id. at 848).
M.A.D. identified State's Exhibit 36 as a picture
depicting a scar on the back of her head. (Id. at
863-864). When asked how she got the scar, M.A.D. responded
that it could have happened when Jessica "stomped [her]
head into the floor[, ] * * * slammed [her] head into the
corner of walls[, ] * * * [or] hit [her] in the head with
belts." (Id. at 865).
M.A.D.'s testimony complemented much of M.R.D.'s
account of day-to-day life in the Dayton household. (See
id. at 850-853, 867-868). Like M.R.D., M.A.D. testified
that Dayton was upstairs sleeping when she was shoved against
the wall, creating the hole that was later covered with a
poster. (Id. at 854-855, 898-899). She further
testified that Jessica struck her and M.R.D. with belts and
that M.R.D. sustained a scar on her forehead from getting him
the head with a belt buckle by Jessica. (Id. at
866-867). She stated that Jessica instructed M.A.D. and
M.R.D. to fight during car trips. (Id. at 872-875).
When asked how often she had bloody lips and noses, M.A.D.
responded that she had them "[a]ll the time."