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State v. Smith

Court of Appeals of Ohio, Second District, Montgomery

June 21, 2019

STATE OF OHIO Plaintiff-Appellee
CURTIS T. SMITH Defendant-Appellant

          Criminal Appeal from Municipal Court Trial Court Case No. 2018-CRB-385




          FROELICH, J.

         {¶ 1} Following a bench trial, the Municipal Court of Miamisburg found Curtis T. Smith guilty of assault, in violation of R.C. 2903.13, and sentenced him to 180 days in jail (177 days suspended), a $180 fine, and costs. Smith appeals from that judgment. The judgment of the trial court will be affirmed.

         Factual and Procedural Background

         {¶ 2} Smith and K.L.[1] began a romantic relationship sometime in 2014. About a year later, K.L. ("Mother") and her children from a previous marriage, T.L. ("Son") and C.L. ("Daughter"), moved in with Smith. The children lived with Mother and Smith during alternating weeks; they lived with their father ("Father") the other weeks. In December 2017, Smith, Mother, Son, and Daughter moved to a mobile home in Miamisburg, Ohio.

         {¶ 3} Monday, February 12, 2018 was Son's 11th birthday, and family members planned to celebrate that night at the home of Father's parents. According to Son, after he came home from school that day, Mother told him she had learned through an email from a teacher that Son had not given Mother his latest report card. Son testified that he had received some poor grades that quarter, and because Smith had "spanked" Son for bad grades in the past and Mother also had barred Son from playing baseball the previous year due to bad grades, Son had tried to conceal his grades from them.

         {¶ 4} At about 5 p.m., when Smith arrived home, Smith and Mother went outside to talk. Son testified that when Smith came back inside, Smith instructed Son to go to Son's room for a "spanking." When Smith entered Son's room, he said that Son was going to be spanked for lying about doing work for a book report due soon. Son testified that he turned around and Smith "took off his belt and started to spank me on the butt," over Son's pants (Tr. p. 10); Son said the belt hit him "10 to 12 times * * * on my butt and my right and left legs on the thigh." (Id., p. 11.) Smith then told Son to sit in a chair and again asked about the book report. According to Son, he had started reading for the book report, but "I lied to [Smith] and I said no, I didn't," because "I was scared that [Smith] would have whipped me more if I * * * said I read [the book for] the report." (Id., p. 13.)

         {¶ 5} Son said that his crying from the first spanking "was slowing down" by that time. (Id.) But with Son sitting in the chair, Smith "hit me on the right leg really hard with his belt." (Id., p. 14.) That strike, to the middle of Son's thigh, hurt, and renewed his crying. After directing Son back to his bed, Smith again hit Son with the belt on the back of his right leg, "then I started crying even more[, ] * * * so then I got whipped a few more times [with the belt] and then it stopped." (Id.) Smith told Son to get his homework, and Smith, Mother, Son, and Daughter headed to the birthday dinner.

         {¶ 6} Son spent that night at his grandparents' house, but he did not tell anyone there about the spanking because Smith also was there, and "I was just too scared to tell them." (Id.) He did not tell anyone at school or elsewhere over the next two days. On Wednesday evening, however, Son told Father about the incident. Son described having "bruises wrapped around my left and right leg" by that date. On Thursday, Father took Son to the police station. A police officer interviewed Son, had him write out a statement, and took photographs of his bruises. Son said the bruising lasted "a few weeks." (Id., p. 21.)

         {¶ 7} Officer Shawn Todd of the Miami Township Police Department testified that he was dispatched to Father's home on February 14, 2018. Both Father and Son reported that Son had been abused by Mother's boyfriend, Smith. Officer Todd identified several photographs he took that day, depicting bruising on Son's legs. Those photographs were admitted into evidence. Officer Todd stated that the marks he saw on Son were consistent with Son's description of the incident involving Smith. Officer Todd also took a written statement from Son.

         {¶ 8} Officer Todd then went to Smith's home to question Smith. Mother answered the door and said that Smith was not there; however, moments later, Smith "stepped out from behind the kitchen wall." (Tr. p. 42.) Smith "admitted that he had spanked" Son "with a braided leather belt," but said that he "did not feel that he had lost his temper or gone overboard" with the punishment. (Id., pp. 42-43.) Smith "had already printed out the O.R.C. for endangering children and presented that to me and told me he didn't feel it met the criteria for that." (Id., p. 43.) At the officer's request, Smith showed Officer Todd what Smith said was the belt used; Todd said "it appeared to be an adult belt to me." (Id., p. 45.) Officer Todd obtained written statements from both Smith and Mother; he did not interview Daughter.

         {¶ 9} Daughter testified that on Son's birthday, Son was upset "[b]ecause he had a bad grade and he knew he was going to be spanked." (Id., p. 53.) Daughter said she walked past Son's room and "took a quick glance" as Son was getting spanked. She said that Son "was bending over the bed" and Smith was "spanking" him. Daughter said that when Son came out of the room, "[h]e sniffled a little bit, but that was it." Afterward, they all went to the grandparents' house for Son's birthday party, where Son, Daughter, and a friend of Son's "just ran around and played." (Id., p. 55.)

         {¶ 10} Mother testified that Son's 11th birthday was going to be the first time that Mother, Father, Son, Daughter, and other family members "had really come together for a birthday" since Mother and Father separated. (Id., p. 63.) Mother said she had received an email from one of Son's teachers the previous Friday, but had decided "I wasn't going to do anything [in reaction to the email] the day of the birthday." (Id., p. 64.) However, as they were preparing to leave for Son's birthday dinner at his grandparents' house, Son "started acting a little * * * different and then I asked him what was wrong and he came clean that he had been lying, that he had gotten a report card and him [sic] and his dad had agreed not to show me so that he would not get kept from baseball again, like I had done the year previous." (Id.) Mother told Son that she was canceling the birthday party she had planned at their home and that he could not play baseball until his grades improved.

         {¶ 11} According to Mother, as she continued to confront Son about his teacher's email and Son denied having missed assignments, Smith arrived home. She and Smith talked outside, then told Son he would be spanked "if he didn't tell the truth," but Son "just kept to his story." (Id., p. 67.) Mother said she asked Smith to spank Son because her spankings had no effect. She said that Smith had spanked Son once previously, for bad grades, and Son's grades thereafter went "from F's to A's." (Id., p. 68.) Mother was in the living room while Smith spanked Son and she heard "[n]ot a lot" of crying; "it was just like a whimper." (Id., p. 70.) Mother said Son "sniffled a little bit" when he came out of his room (id, p. 71), but was ready to go to his grandparents' house for his birthday gathering, where he was "running around," "playing tag," and "climbing," and made no complaints. (Id., p. 72.)

         {¶ 12} When defense counsel asked whether Mother had experienced prior "discipline issues" with Son, the trial court sustained the State's objection, finding that the question ventured "outside the scope" of relevancy. (Id., p. 73.) However, Mother testified that lesser forms of discipline had not worked with Son. She also said she believed that Son bruises easily, and that she previously had seen Son have sports-related bruises similar to those depicted in the photographs admitted into evidence.

         {¶ 13} Smith then took the stand in his own defense. He testified that Son and Daughter "have been a big part of my life" since Smith's relationship with Mother began. (Tr. p. 86.) He said that on February 12, 2018, Mother met him in the driveway when he came home from work, saying she'd learned that Son had not been turning in assignments at school. Smith went to talk to Son in Son's room, where Son "got spanked for lying, it wasn't because he got a bad grade." (Id., p. 91.)

         {¶ 14} Smith said that before spanking Son, he told Son that Son's birthday party at their house was canceled and that Son would be expected to prepare a daily "essay" about the chapter he read each day for his book report. When Son "finally" admitted "he didn't even read the book," Smith told him to "bend over the bed." (Id., p. 92.) Smith testified that he "just grabbed a belt" out of Son's closet and "swatted [Son] two times on the butt." (Id., pp. 94-95.) Because Son then "kept denying the whole thing," Smith hit him "probably four or five times total maybe." (Id., p. 95.) Smith said Son "was crying, sobbing," but "it wasn't anything bad." (Id.) He denied hitting Son with the belt while Son was sitting in the chair or hitting Son across the leg. Smith said that after the spanking, he drove the group to the birthday party at the home of the children's grandparents, where Son did not seem to be in any discomfort or pain.

         {¶ 15} Smith testified that he had spanked Son on one other occasion, for getting an F on his report card, and that Son afterward "had A's at the end of the year." (Id., p. 99.) Smith said that when he was young, his grandmother "whipped me with a belt one time." (Id., p. 101.) He acknowledged "it hurt" (id.), but he said that the injuries depicted in the photographs of Son "wouldn't hurt me." (Id., p. 103.) Asked if those photographs showed "a reasonable result of discipline," Smith replied, "I don't think anybody would think that's reasonable." (Id., p. 104.) However, Smith denied that he caused the bruises depicted. (Id.)

         {¶ 16} Smith was charged with a single first-degree misdemeanor count of assault in violation of R.C. 2903.13. Following a bench trial at which witnesses presented the testimony and other evidence summarized above, the trial court found Smith guilty of that offense. (Doc. #13.) On August 1, 2018, the trial court sentenced Smith to 180 days in jail, with 177 days suspended; a $180 fine; and costs. (Doc. #15.) The trial court stayed that judgment pending Smith's appeal. (Doc. #17.)

         {¶ 17} Smith appeals from the trial court's judgment, setting forth three assignments of error:

1) The evidence was insufficient to support [Smith]'s conviction for assault;
2) [Smith]'s conviction for assault was contrary to the manifest weight of ...

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