The opinion
[Cite as State v. D.F., 2017-Ohio-534.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104410
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
D.F.
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AC 15118072
BEFORE: Stewart, P.J., S. Gallagher, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: February 16, 2017
ATTORNEY FOR APPELLANT
Tyresha Brown-O’Neal
614 West Superior Avenue, Suite 1144
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Shannon M. Raley
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Having been convicted of a single count of interference with custody in
violation of R.C. 2919.23(A)(1), defendant-appellant D.F. requested that this appeal be
placed on this court’s accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. By
doing so, she has agreed that we may render a decision in “brief and conclusionary form”
consistent with App.R. 11.1(E).
{¶2} We sustain D.F.’s first assignment of error regarding the sufficiency of the
evidence to support the conviction. The state failed to prove that D.F. acted knowingly
or recklessly without privilege to keep her child beyond the terms of the parenting
schedule.
{¶3} The child’s father (the custodial parent) testified that he and D.F. often
deviated from the parenting schedule, including the incident forming the basis for the
complaint. Although the father testified that he did not give D.F. permission to keep
their child for the period in question, there was no evidence to prove that the parties
actually discussed the child’s return date. With no evidence of any specific
understanding as to when the child would be returned, and the fact that the parties
routinely deviated from the parenting schedule, the father’s testimony regarding his
subjective understanding of the matter did not prove what D.F. knew or should have
understood. And although the father testified that he attempted to call or text message
D.F. to inquire about the child’s return, he did so for only one day, with no evidence that
D.F. received those calls or messages. The father testified that the prosecuting attorney’s
office told him to stop trying to contact her after the first day.
{¶4} Unlike scenarios that demonstrate a defendant’s culpable mental state to
prove interference with custody, see, e.g., State v. Sprinkle, 12th Dist. Warren No.
CA2003-08-101, 2007-Ohio-4967, in this case, the state offered insufficient evidence to
prove beyond a reasonable doubt that D.F. knowingly or recklessly kept their child
without privilege to do so.
{¶5} Judgment vacated and remanded to the trial court for further proceedings
consistent with this opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court — juvenile
division 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.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR