# State v. Kish

> Ohio Court of Appeals · June 25, 2026 · 2026 Ohio 2409

URL: https://www.frixlaw.com/law-library/cases/11347944

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** June 25, 2026
- **Citations:** 2026 Ohio 2409
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Ryan
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11347944

## How later opinions describe it (automated extraction)

- applying both Evid.R. 601(A)-(B), eff. July 1, 2020, and R.C. 2317.01

## Opinion text

[Cite as State v. Kish, 2026-Ohio-2409.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 115532
v. :

KALECA KISH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: June 25, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-696432-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Michael R. Wajda, Assistant Prosecuting
Attorney, and Sophie E. Kormos, Certified Legal Intern,
for appellee.

Joseph V. Pagano, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant Kaleca Kish (“Kish”) appeals her convictions for

three counts of endangering children and three counts of retaliation. Kish was
charged with a codefendant, Darwin Canales (“Canales”), her boyfriend. The

convictions were rendered after a joint bench trial.1 After a review of the facts and

pertinent law, we affirm the endangering children convictions but reverse the

retaliation convictions.

Procedural and Factual History

The indictment against Kish and Canales was filed in October 2024; it

consisted of 12 counts. Counts 1 through 6 charged both defendants with

endangering children; there were two counts for each of the three children. Counts

7 through 9 charged Kish with intimidation of an attorney, victim, or witness in a

criminal case. Counts 10 through 12 charged Kish with retaliation.

Competency of the Child Victims

At the time leading up to trial, the middle child was six years old, and

the youngest child was five years old. The defense challenged the competency of the

children.2 Prior to trial, the trial court conducted competency hearings with the

children.

The youngest child stated his first name, last name, and his age. He told

the court that he went to preschool, named his teacher and identified her as “a girl.”

(Tr. 76–77.) The youngest child also identified all of his siblings by name including

his half-siblings, whom he had just then-recently met after moving in with his father.

1 Canales was convicted on two counts of child endangering. He has appealed his
conviction, and his appeal, Case No. 115519, pends as a companion case to this appeal.

2 Kish does not challenge the competency of the oldest child on appeal; therefore,

we only address the competency of the youngest and middle children.
In response to the trial court asking him to count to ten and recite the alphabet, the

child nodded. (Tr. 82.) He told the trial court that a lie is bad and when he lies, he

gets in trouble; specifically, he gets a “whipping.” (Tr. 83.) The trial court asked the

youngest child, “So do you want to lie or tell the truth,” to which he replied, “Truth.”

(Tr. at id.) The child again assured the court that he could tell the truth and clarified

that the truth is good, and a lie is bad. When asked whether he would be able to tell

the truth, the youngest child nodded his head affirmatively.

The middle child spelled her first name and last name for the trial court.

She stated that she goes to half-day sessions of kindergarten and named her teacher.

The child counted to ten and recited the alphabet. She stated that there are five days

in a week. The middle child also told the trial court about her pets — two dogs and

two cats. She told the court her birthday is on Christmas Eve (which is true) and told

the court she had a birthday party but could not give specifics about it. The child told

the court that Santa brings her presents on Christmas, but “everybody” brings her

presents on her birthday. (Tr. 109.) The child also told the court that she knew the

difference between the truth and a lie. She explained that the truth is good and lies

are bad. The child promised the trial court that she would tell the truth. The court

asked her what would happen if she did not tell the truth in court, and she said she

did not know. The middle child also told the court that she did not know why she

was there that day and that she did not talk to anyone about the court proceedings.

She confirmed to the court that the truth is good and a lie is bad.
The trial court found the youngest and middle children competent to

testify.

Facts as Elicited at Trial

The charges were based on the children being disciplined by Kish and

Canales, including by being “whopped” with a belt and made to stay in a locked,

unfinished basement without food, water, or access to a bathroom for prolonged

periods of time. The basement was plagued by mice. The incidents came to light

after the children’s preschool reported injuries they observed on the children.

A teacher from the children’s day care testified about what she

observed. The teacher testified that the children would often have bruises and marks

in varying sizes, including on one occasion what she believed was in the shape of a

hand. Sometimes the bruises were long and “welt like.” The daycare staff noticed

that the children would often have the bruises when they came to school after the

weekend. The staff began documenting the children’s injuries by taking pictures of

them and including descriptions of how the marks occurred based on what the

children told them, which was that Kish and Canales were hurting them.

In addition to the bruising, the daycare staff noted other injuries to the

children. The staff noted, all on separate occasions, that the youngest child came to

daycare with a swollen upper lip; a large, dark purple bruise behind his ear; red and

inflamed fingers; and what the daycare worker believed to be a broken nose with

dried blood around his nose. Further, a mouse bit the youngest child and a spider bit

the middle child.
The Cuyahoga County Division of Children and Family Services

(“CCDCFS” or “the agency”) became involved with the family after the daycare

provider shared its concerns with the agency. Intake case worker Leah Najfach

(“Najfach”) was the initial investigator on the case. Najfach was unable to make

contact with anyone on her first visit to the family’s house and left a voicemail

message.

Kish returned the phone call; she denied the allegations, said that there

was nothing wrong with the children, and told Najfach that the agency was not

allowed to see the children. Najfach testified that Kish was aggressive and “on edge.”

According the Najfach, the agency required her to see the children in person. Najfach

was able to get Kish to agree to a visit, which occurred approximately one week later.

At the visit, Kish did not allow Najfach to speak with the children individually or

outside of her presence. When Najfach asked the children questions about the

discipline they received or what they eat, they looked at Kish before answering.

Further, Kish interjected as the children were attempting to answer. According to

Najfach, she could not conduct a proper interview of the children because of Kish’s

intervention. Najfach left the home with concerns that Kish and Canales were

physically abusing the children.

The case was next investigated by Tammy Wagner (“Wagner”), a

CCDCFS social worker in the sex abuse unit. Wagner visited Kish’s home to speak

with the children; however, Kish would not let her talk to the children alone. Wagner

explained that it was important to speak with the children without Kish or Canales
present because, if there was something inappropriate happening to them by Kish or

Canales, they likely would not say it in front of Kish and Canales.

Wagner testified that the oldest child fearfully looked at Kish before

answering certain questions. According to Wagner, the children’s fear of Kish was

evident; it led Wagner to conduct forensic interviews at the Canopy Child Advocacy

Center for all of them on the same day that she visited their home, which was not

standard practice. After conducting three separate interviews that same day, Wagner

believed the children were not completely forthcoming. Wagner also interviewed

Kish that day, who admitted to “whooping” her children.

In addition to Wagner’s interview of the children later on the same day

as her house visit, she also conducted additional forensic interviews for each child

throughout the course of several months. Throughout the course of these interviews,

Wagner learned from the youngest child that Kish and Canales locked him in the

basement without even a blanket. During an interview of the middle child, the child

walked into the interview room and immediately, without any questions having been

posed to the child, told Wagner that “nothing happened.” Wagner testified that she

believed, based on the child’s statement, that Kish was likely coaching the child on

how to answer questions.

However, during that same interview of the middle child, the child told

Wagner that Kish and Canales hit her with belts on her legs, arms, and thighs. The

child said that Kish hit her and her siblings because they would not always go to bed

on time. The middle child further told Wagner that Kish “whooped” her on the day
that Wagner visited their home and accused her of lying to Wagner. The child

explained to Wagner that Kish instructed her to lie and tell Wagner that nothing

happened. If the child did not lie, Kish said she would not be able to go to her

grandmother’s house for Easter.

A victim advocate at the Child Advocacy Center, Jasmine Carr (“Carr”),

testified about Kish’s disturbing behavior that she witnessed while the youngest child

was being interviewed the first time. Kish was on speakerphone with Canales, talking

to him in front of Carr and her two other children. During the conversation, Kish

told Canales and the two children that she was going to “beat their asses for lying

when they left.” (Tr. 491.)

When the youngest child finished his interview and the family was

leaving, Kish told the children that she would beat them at home. Carr immediately

reported this to Wagner. Both Carr and Wagner testified that Kish stormed out the

center and rushed to her car. The children got into the car, and without seatbelts on,

Kish sped out of the parking lot, barely stopping as she turned onto the street.

Wagner was so concerned that she called 911 and requested a wellness check for the

children. Wagner also sought a telephonic order of removal of the children, which

was granted.

Because of Kish’s hostility, Wagner requested the Cleveland police

meet her at Kish’s home to remove the children which, according to Wagner, was not

standard practice. Removal of the children took a few hours because Kish initially

would not answer the door and ordered the children to stay away from the windows,
so they were not seen. After hours of refusal, Kish finally opened the door and let the

children go. The children were taken to MetroHealth Hospital for standard physical

examinations and then released to their father.

The children’s father, who had not been involved in their lives until they

were released to him, testified that initially the children were “nervous” around him,

but quickly calmed down. (Tr. 610.) He admitted that he was essentially a “stranger”

to the children. (Tr. 622.) CCDCFS recommended counseling for the children and

father facilitated getting the counseling for them. Father testified that he learned that

the children had been abused. The children were diagnosed with posttraumatic

stress disorder (“PTSD”) and depression.

At the time of trial, father had legal custody of the children. Father

described them as “fun-loving” children. (Tr. 615.) They were still in counseling and

occasionally would talk about what happened to them with their mother and Canales;

father described them as looking “afraid” when they talked about it. (Tr. 616.)

Crim.R. 29, Verdict, and Sentence

At the conclusion of the State’s case, Kish made a motion for judgment

of acquittal under Crim.R. 29. The trial court granted the motion as it related to

Counts 7 through 9, intimidation of an attorney, victim, or witness in a criminal case.

The court denied the motion as it related to the remaining counts.

After its deliberations, the trial court found Kish not guilty of the

endangering children charges in Counts 4 through 6 of the indictment. The court

found Kish guilty of the endangering charges in Counts 1 through 3 of the
indictment. The trial court also found Kish guilty of the retaliation charges in Counts

10 through 12 of the indictment.

The trial court imposed nine-month prison terms on all the counts on

which it returned guilty verdicts. The court imposed consecutive terms on the

endangering children charges (Counts 1 through 3). All the other counts were

ordered to be served concurrently. The aggregate sentence imposed on Kish was 27

months.

Assignments of Error

Kish now raises the following five assignments of error for our review:

I. The trial court erred by finding the Middle Child and the Youngest
Child competent to testify and the admission of their testimony
violated appellant’s right to due process and a fair trial under the Ohio
Constitution and the United States Constitution.

II. The trial court erred when it denied appellant’s motion for acquittal
under Crim.R. 29 because the state failed to present sufficient evidence
to establish beyond a reasonable doubt the elements necessary to
support the convictions.

III. The trial court erred by admitting testimony over valid objections.

IV. Appellant’s convictions are against the manifest weight of the
evidence.

V. The court abused its discretion by denying Appellant’s request for a
mitigation of penalty report or presentence investigation report and the
consecutive sentences are contrary to law.

Law and Analysis

For ease of discussion, some of the assignments of error are

considered out of order and some are considered together.
The Trial Court Did Not Abuse its Discretion by Finding the Children
Competent to Testify

In her first assignment of error, Kish contends that the youngest and

middle children were not competent to testify; at the time of trial, they were five and

six years old, respectively.

Evid.R. 601(A) provides that every person is competent to testify

except, relevant to this case, persons:

(1) Incapable of expressing himself or herself concerning the matter as
to be understood, either directly or through interpretation by one who
can understand him or her; [or]

(2) Incapable of understanding the duty of a witness to tell the truth[.]

Evid.R. 601(A)(1) and (2).

R.C. 2317.01 further provides in relevant part that “[a]ll persons are

competent witnesses except . . . children under ten years of age who appear

incapable of receiving just impressions of the facts and transactions respecting

which they are examined, or of relating them truly.” The proponent of testimony

from a child under ten years old bears the burden of proving that the witness is

competent to testify. State v. Clark, 71 Ohio St.3d 466, 469 (1994).

In determining the competency of a child witness, a trial court must

consider whether the child is able to (1) receive accurate impressions of fact or

observe acts about which the child will testify, (2) recall those impressions or

observations, (3) communicate what was observed, (4) understand truth and falsity,
and (5) appreciate the responsibility to be truthful. State v. Frazier, 61 Ohio St.3d

247, 250-251 (1991).

A child is competent to testify even if the child fails to recollect some

facts or initially fails to recognize the concept of truth “so long as other answers

demonstrate that the child can perceive and recall generally and understands the

concept of truthfulness.” State v. Fry, 2010-Ohio-1017, ¶ 76 (holding that a child

was competent to testify despite initially answering some questions incorrectly

about the meaning of truthfulness, when he later demonstrated an understanding

that telling the truth is good and lying is bad). For example, this court upheld a

child’s competency where the record demonstrated that the child understood the

difference between a truth and a lie, promised to be truthful, identified her abuser,

and recalled the abuse. State v. Simmons, 2024-Ohio-3188, ¶ 23 (8th Dist.).

We will not reverse a trial court’s decision on a child’s competency to

testify absent an abuse of discretion. Clark, 71 Ohio St.3d at 469. An abuse of

discretion occurs when a court exercises “its judgment, in an unwarranted way, in

regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,

2021-Ohio-3304, ¶ 35.

Review of the youngest child’s competency hearing demonstrates the

child was able to receive accurate impressions of fact, recollect those facts, and

communicate them. Thus, the first three Frazier factors were satisfied. The

youngest child told the court his full name, his age, what grade he was in, and the
name and gender of his preschool teacher. He also named all his siblings, including

stepsiblings he had recently met after going to live with his father.

Kish calls our attention to the fact that the child initially forgot what

he had for breakfast. But the child subsequently told the court that he had a

blueberry Pop Tart that was warmed in the microwave. This record demonstrates

the child’s ability to receive accurate impressions of fact, recall those facts, and

communicate them to the court.

Regarding truth-telling, we are not persuaded, as suggested by Kish,

that the youngest child’s inability to recite the alphabet and count to ten called into

question his competency. The child told the court that if he lies, he gets “a

whipping.” (Tr. 83.) That the child was able to disclose that he gets “whipped”

whenever he tells a lie or gets into trouble demonstrates both his ability to recall and

communicate observations and his understanding of the truth and his obligation to

tell it. Moreover, the child told the trial court he was going to tell the truth. We are

not persuaded that the child’s inability to recite the alphabet affected his capacity to

perceive, recall, and communicate observed events; it merely reflected on an

academic skill. On this record, the fourth and fifth Frazier factors were satisfied.

The trial court did not abuse its discretion by finding the youngest child competent

to testify.

According to Kish, the middle child exhibited “fundamental

deficiencies” and was not competent because she did not satisfy the fourth and fifth

Frazier factors. We disagree.
According to Kish, the middle child failed to demonstrate the fourth

and fifth Frazier factors because the child said she did not know why she was in

court or what a judge does. Those responses did not make the child incompetent,

however. See In re J.J., 2019-Ohio-866, ¶ 24 (8th Dist.) (stating that “[i]t is no

surprise that a six-and-a-half-year-old might not understand why he is at court,”

and finding the lack of understanding did not make the child incapable of answering

questions about his own personal experiences and memorable events).

A child is competent when the totality of the record reflects the child’s

ability to receive impressions of fact and communicate them truthfully. In re J.J. at

id., citing State v. Spencer, 2015-Ohio-52, ¶ 56 (3d Dist.). The record must also

demonstrate that the child knows the difference between the truth and a lie and

understands the obligation to tell the truth. In re J.J. at ¶ 24. A child’s initial

confusion about the concept of truth does not preclude a finding of competency

when the child’s responses to other questions demonstrate an understanding of

truthfulness and the obligation to testify truthfully. Id.

Here, when initially asked by the trial court, the middle child said she

knew what the truth was and what a lie was and further elaborated that the truth is

good and a lie is bad. In response to the court’s question about what happens when

she lies, the child said she did not know. Shortly after, the trial court asked middle

child to promise to tell the truth in court, and the child said she would. The child

stated that telling the truth is good and lying is bad.
Moreover, the record demonstrates that the middle child had the

capacity to perceive, remember, and accurately communicate facts about herself,

her experiences, and familiar events. These abilities undermine Kish’s claim of

“fundamental deficiencies” and satisfied the first three Frazier factors. The middle

child spelled her first and last name for the court and stated that she was in

kindergarten and her birthday is on Christmas Eve. She named and described all

four of her pets. The child also counted to ten and recited the alphabet and told the

court she was learning how to count by tens at school.

Our review of the record demonstrates that the middle child

understood the difference between truth and falsity and the responsibility to be

truthful when testifying.

Moreover, even if the trial court did abuse its discretion by allowing

the youngest and middle children to testify, it was harmless error. The oldest child,

whose competency Kish does not challenge, testified in more detail than either the

youngest or the middle children. Additionally, the social workers involved with the

family, including the one worker who interviewed the children, all testified at trial

and in more detail than the youngest and middle children. Thus, the testimonies of

the youngest and middle children were cumulative to the other testimonies. In State

v. Bright, 2024-Ohio-2803 (8th Dist.), this court found no prejudice occurred when

the challenged testimony — the testimony of a child who was not subject to a

competency determination — was cumulative to other properly admitted evidence

that provided the same or greater detail.
On this record, the first assignment of error is without merit and

hereby overruled.

The Trial Court Did Not Abuse its Discretion by Allowing Certain
Testimony and Evidence

In her third assignment of error, Kish contends that the trial court

abused its discretion by allowing certain testimony and evidence over her objections.

Specifically, Kish takes exception with the following: (1) Najfach’s testimony about

her observations of Kish’s basement; (2) Najfach’s response to the questioning about

what she learned through her investigation; (3) Wagner’s testimony that the middle

and youngest children gave her more details about the basement; (4) Wagner’s

elaboration on additional injuries to one of the children; (5) Wagner’s testimony

about a bruise on the youngest child’s nose; (6) the admission of photographs of the

children taken by staff at their daycare; and (7) Wagner’s opinion testimony.

“A trial court has broad discretion regarding the admission of

evidence, including whether evidence constitutes hearsay and whether it is

admissible hearsay.” State v. Wingfield, 2019-Ohio-1644, ¶ 29 (8th Dist.), citing

Solon v. Woods, 2014-Ohio-5425, ¶ 10 (8th Dist.). A decision regarding the

admission of evidence will not be overturned absent an abuse of discretion. State v.

Payne, 2019-Ohio-4158, ¶ 38 (8th Dist.). As mentioned, an abuse of discretion

occurs when a court exercises “its judgment in an unwarranted way regarding a

matter over which it has discretionary authority.” Abdullah, 2021-Ohio-3304, at

¶ 35. “Moreover, in a bench trial, the judge is presumed capable of disregarding
improper hearsay evidence, and unless it is demonstrated that the court relied on

inadmissible hearsay, a conviction will not be reversed.” (Cleaned up.) State v.

Centers, 2026-Ohio-451 (8th Dist.).

We consider the seven challenged areas of questioning in turn. First,

the allegations against Kish included that she made the children stay in the

basement for extended periods of time for punishment. Social worker Najfach

testified that on her visit to the family’s home she paid particular attention to the

basement and observed that there was “nowhere to sit,” “no comforting items,” and

no “access to food [or] toys.” The testimony was germane to Najfach’s investigation

of the case, and it was not hearsay or otherwise improper. The trial court did not

abuse its discretion by allowing it.

Second, Kish contends that the trial court abused its discretion by

allowing Najfach’s response to questioning about what she learned through her

investigation. Her response was “[t]hat if the children were being bad, their

discipline was that they were put in the basement. And they were often left for very

long hours at a time, if not overnight.” (Tr. 187.)

Evid.R. 807 is a specific hearsay exception in Ohio law, often used in

abuse cases, that permits the admission of an out-of-court statement made by a child

under 12 years of age describing sexual or physical abuse. Specifically, Evid.R.

807(A) permits the admission of out-of-court statements made by a child under 12

years of age describing any sexual activity or abuse if the following conditions are

met: (1) the totality of the circumstances surrounding the making of the statement
provides particularized guarantees of trustworthiness; (2) the child’s testimony is

not reasonably obtainable by the proponent of the statement; (3) there is

independent proof of the activity or abuse; and (4) at least ten days before the trial

or hearing, the proponent of the statement has provided notice in writing of his or

her intent to use the statement.

Kish recognizes Evid.R. 807, but because it is her position that the

youngest and middle children were incompetent to testify, she contends that any out

of court statements they made were “equally unreliable.” As discussed in resolving

the first assignment of error, the record demonstrates that the youngest and middle

children were competent. Further, under the current state of the law in Ohio, there

is no competency requirement for the admission of a child’s hearsay statement

under Evid.R. 807. See State v. Silverman, 2009-Ohio-1576 (overruling the

competency requirement for an Evid.R. 807 statement previously set forth in State

v. Said, 71 Ohio St.3d 473 (1994)). On this record, there is no merit to Kish’s second

allegation of improper testimony.

For her third allegation of improper testimony, Kish cites social

worker Wagner’s testimony that the middle and youngest children gave her more

details about the basement. Kish’s objection was based on the fact that only the

youngest child discussed the basement during the interview with Wagner. After the

objection, the State changed its line of questioning. Therefore, the testimony was

not prejudicial.
Kish’s fourth and fifth allegations of improper testimony relate to

Wagner’s elaboration on additional injuries to one of the children. Specifically,

Wagner testified that the youngest child told her that he was bitten by a mouse in

the basement and that he had a bruise on his nose because Kish threw him to the

floor. At trial, the youngest child testified that he did not remember the incidents.

One of the other children testified that there were mice and spiders in the basement

and all three of the children testified about having to go to the basement for

punishment. Further, one of the children’s daycare providers testified about

bruising on the youngest child’s nose. Thus, the elements of trustworthiness and

independent truth were met and Wagner’s testimony fell under the ambit of Evid.R.

807.

For her sixth allegation of improper testimony, Kish cites the

admission of photographs taken by the children’s daycare provider. The

photographs purported to show injuries the children had, and the daycare provider

testified about how the children sustained the injuries.

Evid.R. 803(6) creates a hearsay exception for “records of regularly

conducted activity.” This rule excepts business records from exclusion at trial if they

are made in the course of a regularly conducted business activity “because the courts

presume that such records are trustworthy given the self-interest to be served by the

accuracy of such entries.” State v. Cassano, 2012-Ohio-4047, ¶ 21 (8th Dist.), citing

Weis v. Weis, 147 Ohio St. 416, 425-426 (1947).
In order to qualify for the business-records exception, a record must

meet the following criteria: (1) the record must be one recorded regularly in a

regularly conducted activity; (2) a person with knowledge of the act, event, or

condition recorded must have made the record; (3) it must have been recorded at or

near the time of the act, event, or condition; and (4) the party who seeks to introduce

the record must lay a foundation through testimony of the record custodian or some

other qualified witness. State v. Boiani, 2013-Ohio-1342, ¶ 29 (8th Dist.), citing

State v. Davis, 2008-Ohio-2, ¶ 171.

The daycare provider testified that it was the daycare’s practice to

document instances when children came to the provider with injuries they suspected

were sustained because of possible abuse; the documentation was retained as the

provider’s standard practice. Thus, the daycare provider, who had knowledge of the

photographs of the children’s suspected injuries, laid a foundation for the admission

of the photographs through the business-records exception and they were properly

admitted as such. Further, the daycare provider’s testimony that the children

described to her how they sustained the injuries was admissible under Evid.R. 807.

Kish’s final allegation of improper testimony relates to Wagner’s

opinion testimony. According to Kish, the State failed to lay a proper foundation for

her testimony. We disagree.

Wagner testified as a lay witness. Evid.R. 701 governs opinion

testimony by lay witnesses and states as follows: “If the witness is not testifying as

an expert, the witness’ testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (1) rationally based on the perception of the

witness and (2) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.”

This court has held that a State witness not presented as an expert can

properly testify under Evid.R. 701 when “(1) the testimony is based on the witness’s

training or experience, (2) the testimony relates to the witness’s personal

observations with the investigation, and (3) the testimony is helpful to determine a

fact at issue.” State v. Calhoun, 2017-Ohio-8488, ¶ 34 (8th Dist.), citing State v.

Wilkinson, 2014-Ohio-5791 (8th Dist.). Further, this court has held that “a trial

court may allow a social worker to testify to the general manner in which children

disclose . . . abuse so long as no opinion is offered as to the truth of the victim’s

statements.” State v. Peterson, 2024-Ohio-2903, ¶ 31 (8th Dist.).

Here, Wagner testified that she had been a social worker for five years.

She testified about her training and experience with young children, including

training about children’s development and memory recollection. Wagner testified

that the children were not initially completely forthcoming. Later, however,

particularly when they were not in Kish’s presence, they revealed more detail about

Kish’s abuse of them. Her testimony aided the factfinder in understanding the

children’s gradual disclosures and was properly admitted under Evid.R. 701.

The trial court did not abuse its discretion in allowing the challenged

testimony and the admission of the challenged evidence. The third assignment of

error is overruled.
Sufficient Evidence Supported the Endangering Children Convictions
and They Were Not Against the Manifest Weight of the Evidence

In her second assignment of error, Kish contends that the State failed

to present sufficient evidence to support her convictions. In her fourth assignment

of error, Kish contends that the convictions were against the manifest weight of the

evidence.

A sufficiency of the evidence analysis reviews whether, as a matter of

law, the evidence is adequate to support the factfinder’s verdict. State v. Mattox,

2018-Ohio-992, ¶ 23 (2d Dist.). 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

In contrast, an appellate court’s manifest-weight review requires the

court to “review the 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 a manifest miscarriage

of justice warranting reversal and a new trial.” (Citations omitted.) Mattox at ¶ 24.

A reversal based upon a manifest weight of the evidence analysis is reserved for the

“‘exceptional case in which the evidence weighs heavily against the conviction.’”

State v. Hill, 2013-Ohio-717, ¶ 8 (2d Dist.), quoting State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist. 1983).
A finding that a conviction is not against the weight of the evidence

“‘necessarily includes a finding of sufficiency.’” (Citations omitted.) Mattox at ¶ 24,

quoting State v. McCrary, 2011-Ohio-3161, ¶ 11 (10th Dist.). Thus, a finding that a

conviction is not against the manifest weight of the evidence is also a finding the

conviction is, as a matter of law, supported by sufficient evidence.

The State’s theory of this case was that Kish engaged in excessive

corporal punishment of the children. While Ohio law recognizes a parent’s right to

administer reasonable corporal punishment to his or her child, it prohibits any

person from abusing or administering excessive corporal punishment in disciplining

a child. State v. Suchomski, 58 Ohio St.3d 74, 75 (1991); R.C. 2919.22(B)(1) and (3).

Kish was convicted under R.C. 2919.22(B)(3), which provides that

[n]o person shall do any of the following to a child under eighteen years
of age . . .

...

[a]dminister corporal punishment or other physical disciplinary
measure, or physically restrain the child in a cruel manner or for a
prolonged period, which punishment, discipline, or restraint is
excessive under the circumstances and creates a substantial risk of
serious physical harm to the child[.]

It has been held that

[i]n evaluating the reasonableness of parental discipline, the totality of
the circumstances are to be considered, including factors such as: the
age of the child; the child’s behavior leading up to the discipline; the
child’s response to prior non-corporal punishment; the location of the
injury; the severity of the punishment; and the parent’s state of mind
while administering the punishment.
State v. Triplett, 2018-Ohio-5405, ¶ 29 (7th Dist.), citing State v. Rosa, 2013-Ohio-

5867, ¶ 35, 41 (7th Dist.), abrogated on other grounds, State v. Faggs, 2020-Ohio-

523.

The culpable mental state for child endangerment is recklessness.

State v. Miller, 2023-Ohio-1141, ¶ 28 (8th Dist.).

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. 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.

R.C. 2901.22(C).

Kish raises the same arguments in her sufficiency and weight-of-the

evidence assignments of error. Namely, Kish challenges her child endangerment

convictions on the grounds that there was no proof of injury and no medical-expert

testimony. But neither were required. “Expert medical testimony is not required

where the creation of a risk to health or safety is within common knowledge.” State

v. Hartley, 2011-Ohio-2530 ¶ 25 (1st Dist.), citing State v. Caton, 137 Ohio App.3d

742 (1st Dist. 2000). Likewise, it is not necessary to show an actual injury or a

pattern of physical abuse by the defendant to support a conviction under the statute.

Cleveland Hts. v. Cohen, 2015-Ohio-1636, ¶ 27 (8th Dist.). Rather, a child

endangering conviction may be based on isolated incidents or even a “‘single rash

decision’” in which a parent puts his or her child’s health or safety at risk. Id.,
quoting State v. James, 2000 Ohio App. LEXIS 5905, *6-7 (12th Dist. Dec. 18,

2000).

Child endangerment cases are typically fact-specific. See Beachwood

v. Hill, 2010-Ohio-3313, ¶ 21 (8th Dist.) (“[I]t seems that the outcome of child

endangerment cases are highly fact-specific.”); State v. Hughes, 2009-Ohio-4115,

¶ 34 (3d Dist. ) (“[W]e note that the outcome of this case is intensely fact-

specific[.]”). Here, when Kish spoke to Wagner she admitted to “whooping” the

children. The record demonstrates that Kish’s punishment of the children was

excessive, repeated, and reached the point where her conduct created a substantial

risk of serious harm to the children. The context of this case, as with any child

endangerment case, is important — the children were three-turning-four, five, and

six years old during the abuse. And although the State was not required to

demonstrate that the children sustained actual injuries, the record shows that they

did.

Specifically, Kish repeatedly beat the children on their thighs, legs,

and arms with belts and then would lock them in the basement for extended periods

of time. The basement had an unfinished dirt floor and did not have furniture, a

bathroom, food, water, or items of comfort for the children. There were mice — dead

and alive — and one bit the youngest child. A spider bit the middle child. The two

youngest children also reported that Kish threw them across the room.

Kish’s conduct came to light because the children’s daycare providers

noticed bruising on them — especially after the weekends or periods when they were
not at daycare for a while — and began documenting the injuries. In addition to the

physical injuries the children sustained, they were diagnosed with depression and

PTSD.

On this record, the weight of the evidence supports the three child

endangerment convictions, which necessarily means that the State presented

sufficient evidence for the convictions.

However, the State failed to present sufficient evidence of retaliation.

Under R.C. 2921.05(B), retaliation occurs when an offender, by force or threat of

harm, seeks retributory action against a victim of crime because the victim filed or

prosecuted criminal charges. The three counts of retaliation here related to Kish

telling the children she would beat them after their interviews with Wagner for what

she believed were their lies. Kish’s conduct was prior to charges being filed against

her and therefore cannot be the basis for the retaliation counts. The State concedes

the error.

The second and fourth assignments of error are overruled in part and

sustained in part. Sufficient evidence supported the child endangerment

convictions and the convictions were not against the manifest weight of the

evidence. The State failed to present sufficient evidence to sustain the retaliation

convictions. Having found insufficient evidence to sustain the convictions for

retaliation, those convictions are vacated. Consequently, we decline review of

question of manifest weight because it is moot.
The Trial Court Was Not Obligated to Order a Presentence-Investigation
Report; the Trial Court Made the Required Findings for the Imposition
of Consecutive Terms

Kish raises two issues in her fifth assignment of error. First, she

contends that the trial court abused its discretion by denying her request for a

presentence-investigation report. Second, she contends that the trial court’s

imposition of consecutive sentences was contrary to law. We do not find merit to

either of Kish’s contentions.

Regarding the denial of Kish’s request for a presentence-investigation

report, a trial court need not order a presentence report pursuant to Crim.R. 32.2(A)

in a felony case when probation is not granted. State v. Bonner, 2012-Ohio-2931,

¶ 12 (8th Dist.), citing State v. Cyrus, 63 Ohio St.3d 164 (1992), syllabus;

R.C. 2951.03. Because the trial court was not imposing community-control

sanctions or granting probation, it was not required to order a presentence-

investigation report. Further, the trial court did not have a duty to obtain a

mitigation-of-penalty report under R.C. 2947.06, which provides that a “trial court

may hear testimony in mitigation of a sentence . . . .” (Emphasis added.)

R.C. 2947.06(A). The section further provides that “[t]he court shall determine

whether sentence should immediately be imposed.” Id.

Thus, because the trial court imposed a prison term on Kish as

opposed to a term of community control or probation, it was not required to obtain

a presentence-investigation report, and it was well within its authority to

immediately proceed to sentencing.
Regarding the consecutive nature of Kish’s sentence, we review the

imposition of consecutive sentences using the standard set forth in R.C. 2953.08.

State v. Shephard, 2024-Ohio-2010, ¶ 26 (8th Dist.). Under R.C. 2953.08(G)(2), an

appellate court can overturn the imposition of consecutive sentences if the appellate

court, upon review, clearly and convincingly finds that “‘the record does not support

the sentencing court’s findings’” under R.C. 2929.14(C)(4), or the sentence is

“‘otherwise contrary to law.’” Id., quoting State v. Jones, 2024-Ohio-1083, ¶ 12. “In

order to reverse the imposition of consecutive sentences, the defendant must

demonstrate that the consecutive sentences are clearly and convincingly not

supported by the record. R.C. 2953.08(G)(2).” State v. Stiver, 2024-Ohio-65, ¶ 17

(8th Dist.).

A trial court can impose consecutive sentences by finding that (1)

consecutive sentences are necessary to protect the public from future crime or to

punish the offender; (2) consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the

public; and (3) at least one of the following applies: (a) the offender committed one

or more of the multiple offenses while awaiting trial or sentencing, while under a

sanction, or while under postrelease control for a prior offense; (b) at least two of

the multiple offenses were committed as part of one or more courses of conduct, and

the harm caused by two or more of the offenses was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender’s conduct; or (c) the offender’s
history of criminal conduct demonstrates that consecutive sentences are necessary

to protect the public from future crime by the offender. R.C. 2929.14(C)(4).

To impose consecutive sentences, the trial court must make each

finding required under R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate those findings into its sentencing journal entry. State v. Bonnell, 2014-

Ohio-3177, syllabus. A trial court “has no obligation to state reasons to support its

findings.” Id. at ¶ 37. However, a reviewing court must be able to determine from

the record evidence to support the trial court’s findings. Id. at ¶ 29.

Kish contends that her sentence is contrary to law because the trial

court failed to make the required findings. We disagree. The trial court stated the

following at the sentencing hearing:

[A] consecutive sentence is necessary to protect the public from future
crimes or to punish the offender. Consecutive sentences are not
disproportionate to the seriousness of the offense and to the danger.
And I do find that multiple offenses were committed as a part of course
of conduct; and that it was great and unusual that no single prison term
adequately reflects the seriousness of her conduct.

(Tr. 740-741.)

According to Kish, the trial court’s pronouncement at the sentencing

hearing was inadequate because instead of stating the precise language of

R.C. 2929.14(C)(4), “that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the

public,” the trial court stated, “Consecutive sentences are not disproportionate to

the seriousness of the offense and to the danger.” (Tr. 740.) However, it is well
established that “[t]he trial court need not recite the findings verbatim.” State v.

Pettus, 2019-Ohio-2023, ¶ 65 (1st Dist.), citing Bonnell, at ¶ 29; see also State v.

Saxon, 2023-Ohio-306, ¶ 17 (8th Dist.), and State v. Sheline, 2019-Ohio-528, ¶ 176

(8th Dist.). Rather, this court “must be able to discern from the record that the

court engaged in the requisite analysis and determine that the record contains

evidence to support the findings.” Pettus at id., citing Bonnell at id.

Our review of the record demonstrates that the trial court engaged in

the required analysis and, further, that the record contains evidence to support the

court’s findings. Specifically, the trial court noted that, although parents have

discretion to punish their children, the punishment that Kish inflicted on the

children was “troubling,” “clearly illegal; it was clearly against the law.” (Tr. 736.)

The court noted the children’s demeanor when testifying and its belief about “the

scarring that you [Kish] have caused them because of these acts.” Id.

Further, the trial court imposed consecutive terms on Counts 1, 2, and

3, which were one count of endangering children for each of the three children. This

court has repeatedly found “that consecutive sentences are appropriate where there

are multiple victims in order to ‘hold the defendant accountable for crimes

committed against each victim.’” State v. Akins, 2025-Ohio-5632, ¶ 54 (8th Dist.),

quoting State v. Thome, 2017-Ohio-963, ¶ 16 (8th Dist.). For example, in State v.

Sparks, 2024-Ohio-2362 (8th Dist.), the court found that “[t]he harm suffered by

each of the victims clearly factored into the trial court’s decision to impose

consecutive sentences.” Id. at ¶ 18. This court held that the existence of multiple
victims supported the trial court’s consecutive-sentence findings under

R.C. 2929.14(C)(4) with respect to the necessity of punishing the offender as well as

“the finding that consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public.” Sparks

at ¶ 18-19, citing State v. Batiste, 2020-Ohio-3673, ¶ 22 (8th Dist.), and State v.

Sexton, 2002-Ohio-3617, ¶ 67 (10th Dist.).

Finally, the trial court incorporated its findings into its sentencing

judgment entry as required under Bonnell. See Bonnell at syllabus.

The fifth assignment of error is overruled.

Judgment affirmed in part, reversed in part; case remanded. The

child endangering convictions are affirmed. The retaliation convictions (Counts 10

through 12) are vacated. On remand, the trial court shall issue a new judgment of

conviction with vacation of the retaliation counts and the sentence on those counts.

It is ordered that appellee and appellant split costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________
MICHAEL JOHN RYAN, JUDGE

LISA B. FORBES, P.J., and
ANITA LASTER MAYS, J., CONCUR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11347944. Public record. Not legal advice.