State v. Ivey

Dyke, Judge,

dissenting.

I would respectfully dissent from the majority’s rulings as to assignments of error two and three. I would overrule those assignments of error and affirm the jury’s verdicts of guilty as to all three counts of the indictment.

The majority found that the injury to Nocías was “temporary and slight.” This is not what the jury determined after viewing the photos taken in the emergency room and after hearing the testimony of the school principal, the school nurse, and the emergency room doctor. After a thorough review of the record, I find that the jury had sufficient evidence before it to find appellant guilty of child endangerment and both counts of child abuse.

The majority correctly stated the standard of review applicable when determining whether the evidence was sufficient to overrule a motion for acquittal:

“When a defendant challenges the legal sufficiency of the state’s evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

State v. Waddy

(1992), 63 Ohio St.3d 424, 430 , 588 N.E.2d 819, 825 .

Given the testimony and medical records presented to the trier of facts below, viewed in a light most favorable to the prosecution, I must conclude that any rational trier of fact could have found that appellant exceeded the reasonable bounds in administering corporal punishment to Nocías, such that a substantial risk of serious harm to the boy existed.

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The school principal noticed Nocias’s black eye when he came to the office the day after the beating to request a bandage for his hand. After Nocías responded to the principal’s question regarding his eye to the effect that his father had hit him while sitting in the car, the principal called in the school nurse. Upon examining his body, the principal noted welts on his arms and legs, consistent with the photos taken later in the emergency room.

The nurse wrote on Nocias’s health card, kept on record at the school, that she “noted a left black eye. Student’s right and left arms had red welt marks over them. Right hand very swollen with reddened welts. Welt marks over both legs as well. Marks look linear. Student stated that his father beat him with a belt and punched him in his eye.”

The social worker called in by the principal testified that she first saw Nocías at three in the afternoon at his school. She testified that:

“Nocías had a dark purplish bruise under his left eye, his left hand was swollen and it had welt marks on it and open sores, and he had welt marks on his legs all the way down to his calfs, and on his arms.”

The social worker later made the decision to take Nocías to the hospital after first taking him to the Department of Human Services, because she decided he required treatment. She stated, “basically the bruises were so extensive on the child that we felt that he was at risk if he remained in his dad’s home.”

Dr. Lisa Baker and the medical history contained in the record both indicate that Nocías came to the emergency room the night after the beating with a “bruise under his left eye, he had multiple bruises on his arms and legs, his buttocks were both swollen, the left worse than the right, he had red areas and purplish areas on the sides of his arms, and the backs of his hands were also very swollen and very bruised with small cuts, he also had a single scrape mid-chest.”

The facts of this case are similar to those in

In re Schuerman

(1991), 74 Ohio App.3d 528 , 599 N.E.2d 728 . Amber was visiting her father when he noticed bruises on her legs and upper thighs. Amber told him that her mother sometimes hit her with a belt or paddle for not doing her chores. The trial court found Amber to be an abused child under R.C. 2919.22. The appellate court affirmed, ruling that:

“The Revised Code does not specifically define what actions constitute the abuse of a child. Thus, the trial court, in its broad discretion, is to make its determination of abuse on a case-by-case basis. * * * The court is to review the totality of the circumstances, looking for any form of cruelty to the child, either physical or mental. Specific factors to be considered by the trial court in making a determination of abuse include the circumstances giving rise to the harm to the

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child, the past history of the child, the nature and manner of the discipline administered to the child and the measure of discipline. * * *

“The law of Ohio has long recognized that parents have the right of restraint over their children and the duty of correcting and punishing them for misbehavior. However, such punishment must be reasonable and not exceed the bounds of moderation and inflict cruel punishment. See

State v. Liggett

(1948), 84 Ohio App. 225 , 39 O.O. 287 , 83 N.E.2d 663 . R.C. 2919.22 not only prohibits a parent from violating his or her duties of care, protection and support, but also prohibits a parent from administering to a child under eighteen years of age corporal punishment which is excessive and which creates a substantial risk of serious harm to the child. * * *”

In re Schuerman,

74 Ohio App.3d at 531 , 599 N.E.2d at 730 .

The photos of Amber showed severe bruising on the child’s buttocks, upper thighs, and around her ankles and wrists. The court held that:

“[F]rom the evidence presented in the case

sub judice,

the trial court could reasonably infer that Amber Schuerman was in substantial risk of serious physical harm from discipline administered with such force that bruising was caused. The severe bruising depicted in the photographs of Amber Schuerman could certainly be inferred to create pain that would be unbearable or nearly so to an eight-year-old. See

In re Rogers

[(Aug. 24, 1989), Putnam App. No. 12-89-5, unreported, 1989 WL 98423 ],

supra.

Admittedly, bruising alone is insufficient to establish abuse. However, the record contains substantial credible evidence corroborating the court’s finding.”

In re Schuerman,

74 Ohio App.3d at 532 , 599 N.E.2d at 731 .

In a claim brought by a child against her stepmother, where the trial court granted summary judgment to the defendant, this court held that:

“Where a fine line exists as to whether conduct constitutes ‘reasonable corporal punishment’ or a claim such as assault and battery, it is for the trier of fact to make a factual determination based on the evidence proffered and existing legal standards.”

Murray v. Murray

(1993), 89 Ohio App.3d 141, 146 , 623 N.E.2d 1236, 1240 .

Although I do believe that a fine line exists in this case where the punishment clearly appeared excessive, I would agree that it is an issue for the trier of fact to determine whether the conduct in this case exceeded reasonable corporal punishment. The trier of fact concluded that the conduct did in fact exceed the standard prescribed by the statute. I would affirm that finding as it is well supported by the testimony and record before us.