Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Rocky River Municipal Court Case No.
Michael P. Maloney, City of Westlake Law Director, and John
F. Corrigan, Assistant City of Westlake Prosecutor, for
S. Robinson, for appellant.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE.
1} Defendant-appellant, Y.O., appeals his conviction
for domestic violence. For the reasons that follow, we
2} In December 2017, Y.O. was charged with one count
of domestic violence in violation of R.C. 2929.25(A), a
first-degree misdemeanor. The case proceeded to a jury trial
where the following evidence was presented.
3} Y.O. and his ex-wife, A.O., operated under a
shared parenting agreement regarding their ten-year-old son,
D.O., with Y.O. as the residential-custodial parent. The
shared parenting agreement provided for alternating weekly
visitation. On Monday, December 5, 2017, D.O. was scheduled
to begin visitation with A.O. following school; however, she
was out of town on business until later that evening. It was
agreed that AO. would pick D.O. up from Y.O.'s home after
her flight home that night around 10:30 p.m., which was
already beyond D.O.'s normal 9:00 p.m. school-night
bedtime. When A.O. was not at the house at 10:30 p.m., Y.O.
sent D.O. to bed. D.O. testified that Y.O. was supposed to
wake him when his mom arrived.
4} Y.O. testified that around 11:15 p.m., A.O. sent
a text message to D.O.'s cell phone, which was charging
in Y.O.'s bedroom, stating that her flight had just
landed, and questioning if she should still pick him up. Y.O.
stated that he did not reply because D.O. was already in bed,
and because it was a school night, it was too late to wake
him. Around 2:00 a.m., D.O. woke Y.O., who was sleeping on
the couch, inquiring about his mom. When Y.O. told his son
that she had sent a text message, D.O. became angry, started
crying, and asked why Y.O. did not wake him. Y.O. told D.O.
that it was too late. According to D.O., Y.O. told him
"that no one was that stupid to pick up a kid at 11:00
p.m." Y.O. denied that he made that statement to D.O. or
that he called A.O. stupid. Y.O. testified that he told D.O.
that "I would be a stupid parent to wake [him] up."
5} Y.O. ordered D.O. to go back to his room and go
to bed. D.O. testified that he cried himself back to sleep.
The following morning, D.O. did not get ready for school.
D.O. stated that he was upset and mad that his dad did not
wake him when his mom texted. Y.O. came into D.O.'s room
and noticed that his son was not getting ready, but just
sulking in front of his closet. D.O. became argumentative
with Y.O. about why he did not wake him. According to D.O.,
Y.O. repeatedly stated that "no one is that
stupid," and when D.O. argued with him that his mom was
not stupid, Y.O. grabbed D.O. by his face. D.O. stated that
he was initially able to deflect his dad's movements
toward his face. D.O. testified that without warning, Y.O.
slapped him on the left side of the face five times, the last
time striking him in the eye area.
6} Y.O. denied that he slapped D.O. He testified
that as D.O. was arguing with him, Y.O. grabbed him by the
shoulders, lifted up his head, and gave him his
"marching orders." Y.O. stated that when D.O.
became argumentative and continued doing so for "three
or four minutes," he spanked D.O. on his bottom three or
four times. Y.O. stated that after he spanked him, D.O.
"went rigid and stopped." D.O. denied that Y.O.
7} Both D.O. and Y.O. testified that following the
physical altercation, D.O. got ready for school and ate
breakfast. Y.O. testified that D.O. did not say anything
during this time, and did not argue with him when Y.O. told
him to change his shirt. D.O. left home and rode the bus to
8} When he arrived at school, D.O. asked the school
secretary, Megan Moutous, if he could get some ice for his
eye, which was hurting from when Y.O. slapped him in the
face. Moutous testified that she asked him how he hurt his
eye, and that D.O. told her that his father had slapped him
three times. According to Moutous, D.O.'s left eye area
was noticeably swollen and slightly red, but not bruised. She
stated that she did not take any photographs of D.O.'s
injury, but discussed the disclosure with Carrie Brickman,
the school's counselor.
9} Brickman testified that she interviewed D.O. that
day regarding the injury to his eye. She stated that D.O.
told her that his dad had slapped him in the face five times.
According to Brickman, D.O.'s eye was a little puffy but
not bruised. She called A.O. and advised her about D.O.'s
injury and allegation. According to Brickman, A.O. told her
that she had a lawyer and they were "building a case for
her to have custody." Brickman also testified that A.O.
told her the incident was "nothing new" and that
they had gone to court over something similar in March.
Brickman, as a mandatory reporter of abuse, also contacted
the Cuyahoga County Department of Children and Family
Services ("CCDCFS"). She testified that she later
received a letter from CCDCFS that no investigation would be
conducted regarding the allegation.
10} A.O. testified that she picked up D.O. at the
end of the school day and took him to the hospital later that
evening. She explained that she did not immediately report
the incident to police because she believed that the school
or CCDCFS had already reported the incident, but because D.O.
did not want to go back to his father's house, she needed
to make a report and get a protection order. She also
explained that she did not take pictures of D.O.'s injury
but saw that his eye was swollen. A.O. also testified about a
prior incident from "the last instance of physical
abuse." She stated that the use of physical discipline
should be "[on] the butt," and she had told Y.O.
that he was not allowed to use physical discipline on D.O.
"in the face" - "he's not allowed to hit
him in the face."
11} Emily Malley, a social worker at MetroHealth
Medical Center testified that she spoke with D.O. and his mom
on the evening of December 5. According to Malley, D.O.'s
left eye was more swollen than the other eye but she could
not recall if there was any discoloration; she did not take
any photographs. She stated that D.O. told her that his
father slapped him five times after his father called
D.O.'s mom names. Malley stated that A.O. told her about
visitation and custody. D.O. testified that his mom and
stepdad told him that they were going to get custody of him.
He admitted that if Y.O. hit him, it would help his mom get
12} Jason Carman, a Westlake police officer,
testified that he took the domestic violence complaint from
A.O. on December 11, 2017. He stated that after receiving the
report, he called Y.O. and asked him to come to the station
for an interview. During the interview, Y.O. gave Officer
Carman a written statement, which the officer read aloud at
trial. In the statement, Y.O. stated that he grabbed
D.O.'s shoulders to hold him still, and denied that he
slapped D.O. in the face. Y.O., however, did not disclose in
this statement that he spanked D.O.
13} Y.O. testified that he had no knowledge of
D.O.'s injuries or allegations; he was never notified by
the school. After D.O. did not arrive for his weekly
visitation the following week, Y.O. went to the school. When
he received the call from Officer Carman, who told him about
the allegations, Y.O. stated that "this is the same crap
that she pulled the last time." He testified that there
was no agreement between him and A.O. about discipline. He
stated that at times, A.O. has asked him to help her with
disciplining D.O. Y.O. stated that he used physical
discipline that day because D.O. was talking back, and
spanking him was the right thing to do.
14} The trial court denied Y.O.'s Crim.R. 29
motions for acquittal. The jury found Y.O. guilty of domestic
violence and further answered the "juror
interrogatory" that they believed that Y.O. slapped D.O.
in the face. The trial court sentenced Y.O. to a one-year
period of community control with relevant sanctions, and
issued a no-contact order.
15} Y.O. now appeals, raising six assignments of
error for our review.
Sufficiency of the Evidence
16} The test for sufficiency of the evidence
requires a determination of whether the prosecution met its
burden of production at trial. State v. Bowden, 8th
Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d
765 (2001). "'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. Walker, 150 Ohio St.3d
409, 2016-Ohio-829, 82 N.E.3d 1124, ¶ 12, quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
17} In his first assignment of error, Y.O. contends
there was insufficient evidence to support his conviction for
domestic violence. Specifically, Y.O. maintains that the city
failed to prove that his actions were beyond the reasonable
parental discipline of a child. However, this assertion of
"parental discipline" is an affirmative defense,
and a sufficiency of the evidence challenge is not a proper
vehicle to review an affirmative defense. State v.
Mincy, 8th Dist. Cuyahoga No. 106224, 2018-Ohio-3565
¶24, citing State v. Hancock, 108 Ohio St.3d
57, 2009-Ohio-160, 840 N.E.2d 1032, ¶ 37, quoting
Caldwell v. Russell,181 F.3d 731 (6th Cir.1999)
("[T]he due process 'sufficient evidence'
guarantee does not implicate affirmative defenses, because
proof supportive of an affirmative defense cannot detract
from proof beyond a reasonable doubt that the accused had
committed the requisite elements of the crime.");
State v. Simes, 8th Dist. ...