Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-632418-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Paul, Assistant Prosecuting Attorney,
Michael E. Stepanik, for appellant.
JOURNAL ENTRY AND OPINION
LASTER MAYS, PRESIDING JUDGE
1} Defendant-appellant Jezeel Acosta Perez
("Perez") appeals his convictions and asks this
court to reverse his convictions and remand for a new trial.
2} Perez was convicted of domestic violence, a
fourth-degree felony, in violation of R.C. 2919.25; and
endangering children, a fourth-degree felony, in violation of
R.C. 2919.22(A). Perez was sentenced to 120 days in jail and
placed on two years of community control.
Facts and Procedural History
3} On the morning of August 25, 2018, Perez and his
16-year-old stepson, V.S., went to the barbershop and
Walmart. Upon returning home, V.S. noticed that his little
brothers had opened a box of Legos that Perez had previously
told the children not to touch. V.S. stated that the Legos
were kept in his 11-year-old sister's, J.G., top dresser
drawer. Once Perez saw the children playing with the Legos,
V.S. stated that Perez grabbed J.G., placed her on the couch,
and began hitting her on her back multiple times with a
4} V.S. stated that J.G. was screaming and crying
until their mother Jesica, Perez's wife, ran into the
living room. According to VS., Jesica told Perez to let J.G.
go, but when he did not, Jesica punched Perez in the eye.
Jesica grabbed J.G. and took her into the master bedroom and
attempted to shut the door, but Perez went after them. As
Perez attempted to grab Jesica, V.S. got in between Perez and
Jesica, which allowed Jesica and J.G. to run to the bathroom.
According to V.S., Perez followed them into the bathroom and
grabbed J.G. by the neck from the back. V.S. testified that
Jesica pushed Perez away and Perez almost pushed Jesica into
the bathtub. V.S. then tried to separate Perez and Jesica,
but Perez pushed him away. Jesica then tried to run into
V.S.'s room, but Perez grabbed Jesica by her neck, pulled
her down to the ground, and began hitting her.
5} V.S. grabbed Perez and placed him in a choke hold
so that Jesica and J.G. could escape out of the house. Jesica
and J.G. ran downstairs to the neighbor's residence,
while V.S. held Perez. Once V.S. let Perez go, V.S. testified
that Perez ran after Jesica. After a discussion between
Jesica and Perez, Perez left the home. Later on that evening,
Perez, according to V.S., told Jesica that she must either
"choose your son or you choose me." (Tr. 266.)
6} J.G. then testified that when Perez and V.S.
returned from getting haircuts and Walmart, Perez saw that
the children were playing with his Legos. Perez grabbed her
arm, turned her over and with a regular hand started hitting
her on her butt and with his fist on her back. (Tr. 278.)
J.G. stated that Jesica told Perez to stop, and when he did
not, Jesica hit Perez. Thereafter, J.G.'s testimony was
similar to V.S.'s testimony regarding Perez chasing her
and Jesica throughout the home until they were able to run
outside. After the entire altercation, J.G. testified that
the family went to church to decorate for the Pastor's
anniversary. J.G. complained to Jesica that her back hurt.
The next morning, Jesica took J.G. to the hospital because
J.G. stated that her back still hurt. At the hospital,
pictures and X-rays were taken of J.G.'s back. J.G.
stated that her back had bruises for a week.
7} Perez testified that when he and V.S. returned
home from the barbershop and Walmart, he saw the younger
children playing with his Legos, and J.G. was in the living
room watching television. Perez testified that he observed
several damaged boxes and thousands of Legos on the floor.
Perez had purchased the retired Lego sets as an investment.
Perez planned on keeping the Legos until their value
increased and use the profits for a down payment on a house
for the family.
8} When Perez asked J.G. about the children playing
with the Legos, he felt as if she was lying to him. This
upset Perez, and he commenced with physically disciplining
her. According to Perez, he only struck J.G. on her buttocks,
and as he was spanking J.G., Jesica came out of the bedroom
and punched Perez in the head about four to six times. Perez
stated that he only pushed Jesica away from him to stop her
from punching him in the head. He also stated that after
Jesica told him to stop hitting J.G., he stopped when he
realized that he hit her more than he should have.
9} Perez was charged with three counts of domestic
violence and two counts of endangering children. At the end
of the state's case, the defense's motion for
acquittal as it pertains to Counts 4 and 5, domestic violence
and endangering children against V.S., was denied. At the
conclusion of the trial, Perez's motion for acquittal
pursuant to Crim.R. 29 was again denied. After a review of
the jury instructions with counsel, the trial court reversed
its decision as it pertained to Count 4. The trial court
granted Perez's motion for acquittal for the domestic
violence charge against V.S. Perez's counsel did not
request a jury instruction for parental discipline.
Additionally, the trial court did not provide a parental
discipline jury instruction to the jury. Perez was found
guilty of one count of domestic violence and one count of
endangering children, both counts related to J.G. The jury
found Perez not guilty on the remaining charges. Perez filed
this appeal assigning two errors for our review:
I. Appellant was denied the effective assistance of counsel
guaranteed by the Sixth and Fourteenth Amendments to the U.S.
Constitution and Article I, Section 10 of the Ohio
Constitution when defense counsel failed to assert the
affirmative defense of parental discipline and request the
corresponding jury instruction; and
II. The trial court committed plain error by failing to give
the jury instructions regarding the affirmative defense ...