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City of Westlake v. Y.O.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

CITY OF WESTLAKE, Plaintiff-Appellee,
Y.O., Defendant-Appellant.

          Criminal Appeal from the Rocky River Municipal Court Case No. 17-CRB-2896

          Michael P. Maloney, City of Westlake Law Director, and John F. Corrigan, Assistant City of Westlake Prosecutor, for appellee.

          Kandee S. Robinson, for appellant.



         {¶ 1} Defendant-appellant, Y.O., appeals his conviction for domestic violence. For the reasons that follow, we affirm.

         {¶ 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. spanked him.

         {¶ 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 school.

         {¶ 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 custody.

         {¶ 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.

         I. 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. ...

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