State v. G.G.

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State v. G.G.

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-5902

Case Date: 12/13/2012

Plaintiff: State

Defendant: G.G.

Preview:[Cite as State v. G.G., 2012-Ohio-5902.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,                                                                                   :
Plaintiff-Appellee,                                                                              :
                                                                                                                                    No. 12AP-188
v.                                                                                               :                                  (M.C. No. 2011 CRB 021093)
[G.G., Sr.],                                                                                     :                                  (REGULAR CALENDAR)
Defendant-Appellant.                                                                             :
D    E    C    I    S    I    O    N
Rendered on December 13, 2012
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, Chief
Prosecutor, Melanie R. Tobias, and Orly Ahroni, for appellee.
Yeura R. Venters, Public Defender, and David L. Strait, for
appellant.
APPEAL from the Franklin County Municipal Court.
BROWN, P.J.
{¶ 1}  G.G., Sr., defendant-appellant, appeals the judgment of the Franklin County
Municipal  Court,  in  which the  court  found him  guilty,  pursuant  to  a  jury  trial,  of
endangering  children,  which  is  a  violation  of  R.C.                                        2919.22(A)  and  a  first-degree
misdemeanor.
{¶ 2}  Appellant has a son, G.G., who was 11 years old at the time of the incident in
question. On June 10, 2011, appellant and G.G. were standing near each other in the
kitchen of appellant's home. Appellant was handling a handgun, and the gun discharged.
The bullet struck the kitchen table and exited the house through a wall.

No. 12AP-188                                                                                     2
{¶ 3}  On August 30, 2011, Columbus Police Sergeant J. Glen Branam, along with
two other officers, went to appellant's home and investigated the incident, after receiving
information from the county children's services department. Appellant initially denied
that he owned a gun or that the incident happened. Appellant eventually admitted what
happened and showed Sergeant Branam the bullet holes. Appellant claimed that the
handgun accidentally discharged while he was handling it.
{¶ 4}  On September 14, 2011, appellant was charged with endangering children.
On January 23, 2012, a jury trial was held. On January 30, 2012, the jury found appellant
guilty. A sentencing hearing was held on March 1, 2012. In its March 2, 2012 journal
entry,  the  court  sentenced  appellant  to                                                     180  days  of  incarceration  with   149  days
suspended. The court also imposed a three-year period of community control and a $500
fine.  Appellant  appeals  the  judgment  of  the  trial  court,  asserting  the  following
assignments of error:
[I.]  The  trial  court  erred  by  admitting  improper  opinion
testimony by the investigating police detective.
[II.]   Appellant's conviction is against the manifest weight of
the evidence.
{¶ 5}  We begin by addressing appellant's second assignment of error keeping in
mind appellant's argument in his first assignment of error that the trial court erred when
it  admitted  improper  opinion  testimony  of  Sergeant  Branam.  Specifically,  appellant
contends the trial court erred when it permitted Sergeant Branam to testify, without being
qualified as an expert, that the gun fired within "literally millimeters" of G.G. and that the
gun could not fire accidentally based upon its various features.
{¶ 6}  With these arguments under appellant's first assignment of error in mind,
we address appellant's second assignment of error. Appellant argues that the trial court's
judgment was against the manifest weight of the evidence. This court's function when
reviewing the weight of the evidence is to determine whether the greater amount of
credible evidence supports the verdict. State v. Thompkins,  78 Ohio St.3d  380,  387
(1997). In order to undertake this review, we must sit as a "thirteenth juror" and review
the  entire  record,  weigh  the  evidence  and  all  reasonable  inferences,  consider  the
credibility of the witnesses, and determine whether the trier of fact clearly lost its way and

No. 12AP-188                                                                                     3
created a manifest miscarriage of justice. Id., citing State v. Martin, 20 Ohio App.3d 172,
175 (1st Dist.1983). If we find that the fact finder clearly lost its way, we must reverse the
conviction and order a new trial. Id. On the other hand, we will not reverse a conviction so
long as the state presented substantial evidence for a reasonable trier of fact to conclude
that all of the essential elements of the offense were established beyond a reasonable
doubt. State v. Getsy, 84 Ohio St.3d 180, 193-94 (1998).
{¶ 7}  In addressing a manifest weight of the evidence argument, we are able to
consider the credibility of the witnesses. See Martin at 175. However, in conducting our
review, we are guided by the presumption that the jury is best able to view the witnesses
and observe their demeanor, gestures, and voice inflections, and use these observations in
weighing the credibility of the proffered testimony. Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80 (1984). Thus, a reviewing court must defer to the factual findings of the
jury regarding the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus.   Concerning the issue of assessing witness credibility, the
general rule of law is that "[t]he choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not substitute its
own judgment for that of the finder of fact." State v. Awan, 22 Ohio St.3d 120, 123 (1986).
The fact finder is free to believe all, part or none of the testimony of each witness
appearing before it. Hill v. Briggs, 111 Ohio App.3d 405, 412 (10th Dist.1996). If evidence
is  susceptible  to  more  than  one  construction,  reviewing  courts  must  give  it  the
interpretation that is consistent with the verdict and judgment. White v. Euclid Square
Mall, 107 Ohio App.3d 536, 539 (8th Dist.1995). Mere disagreement over the credibility of
witnesses is not sufficient reason to reverse a judgment. State v. Wilson, 113 Ohio St.3d
382, 387, 2007-Ohio-2202.
{¶ 8}  R.C. 2919.22(A) provides, in pertinent part:
No person, who is the parent * * * of a child under eighteen
years of age * * * shall create a substantial risk to the health or
safety of the child, by violating a duty of care, protection, or
support.

No. 12AP-188                                                                                       4
A "substantial risk" is defined in R.C. 2901.01(A)(8) as "a strong possibility, as contrasted
with a remote or significant possibility, that a certain result may occur or that certain
circumstances may exist."
{¶ 9}  An essential element  of the crime of  endangering children under R.C.
2919.22(A) is the existence of the culpable mental state of recklessness. State v. McGee,
79 Ohio St.3d 193 (1997), syllabus. R.C. 2901.22(C) provides:
A person acts recklessly when, with heedless indifference to
the consequences, he perversely disregards a known risk that
his 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, he perversely disregards a known risk that such
circumstances are likely to exist.
{¶ 10} Accordingly, the state of Ohio, plaintiff-appellee, had the burden to prove
beyond a reasonable doubt that appellant (1) was the parent of a child under 18 years of
age, (2) violated a duty toward that child, (3) created a substantial risk to the safety of that
child, and (4) acted with recklessness. See State v. Allen, 140 Ohio App.3d 322, 323 (1st
Dist.2000), citing State v. Caton, 137 Ohio App.3d 742 (1st Dist.2000).
{¶ 11} Appellant challenges only one of the elements of the charge under his
second assignment of error, claiming the state failed to prove recklessness. Appellant
asserts that the state's argument that he intentionally or recklessly discharged the weapon
is supported only by the speculative testimony of Sergeant Branam. Appellant also argues
that no evidence rebutted G.G.'s testimony that appellant did not point the gun at him and
that appellant did not have his finger on the trigger. Appellant contends that the evidence
presented by the state that indicated the child was close to the weapon at the time of
discharge may well demonstrate negligence, but it falls short of establishing recklessness.
{¶ 12} The state counters that, even disregarding the portion of Sergeant Branam's
testimony that appellant criticizes under his first assignment of error, appellant's conduct
was reckless. We agree. G.G. testified that appellant was cleaning his gun in the kitchen,
and he was standing next to appellant. He said appellant removed the magazine but did
not realize there was still a bullet in the chamber. G.G. testified that appellant pushed a
button on the side of the gun, and the gun fired. G.G. believed appellant's firing the gun

No. 12AP-188                                                                                   5
was accidental. G.G. testified that he and his father were about two feet away from each
other when the gun discharged, it hurt his ears a little bit, and he was scared. G.G. said
that his father did not have his finger on the trigger when he was cleaning the gun, and his
father did not point the gun at him. He also never felt like he was in danger of being shot,
and the bullet did not almost hit him. G.G. also denied that his father told him to lie to
police. Although G.G. initially testified that his father was pointing the gun away from
him, he later admitted that the bullet hole in the kitchen table shows that appellant must
have turned the gun toward G.G. before it discharged.
{¶ 13} With regard to the testimony of Sergeant Branam that appellant does not
contest under his first assignment of error, Sergeant Branam testified that appellant told
him that he was holding the gun and showing it to G.G., and as he was manipulating
something on the gun, it discharged. Appellant told him that G.G. was "standing right
beside" and "directly beside" him at the time. When Sergeant Branam asked appellant
how close G.G. was to him, appellant said he "just missed him. He was right beside me."
Appellant  indicated  to  Sergeant  Branam  that  he  was  standing  "almost  shoulder  to
shoulder" with G.G. Sergeant Branam said that appellant also told him that he had
instructed G.G. to lie to the police about the incident.
{¶ 14} After reviewing the above testimony, we find the jury verdict was not
against the manifest weight of the evidence. In determining whether appellant acted
recklessly, the key issue the jury faced was whether Sergeant Branam or G.G. was more
credible. Sergeant Branam testified that appellant told him G.G. was standing "right
beside" and "directly beside" him, almost shoulder to shoulder, and that the bullet just
missed G.G. Sergeant Branam's testimony on these issues was not "speculative," as
appellant claims; rather, his testimony was explicit and definite. Although this court is
permitted to weigh credibility in a manifest-weight review, appellant provides no basis for
us to question the jury's apparent determination that Sergeant Branam's testimony was
truthful. Furthermore, although G.G. first testified that appellant was pointing the gun
away from G.G. while handling it, G.G. later admitted that appellant must have turned the
gun in his direction because the bullet struck the kitchen table where G.G. was standing. A
known risk of handling and manipulating a gun while standing in very close proximity to
a child and while pointing it in the direction of that child, without checking the chamber

No. 12AP-188                                                                                         6
to see if a bullet is still in the firearm, is that the firearm will discharge in the direction of
the child, and the bullet will narrowly miss that child. Appellant's dangerous actions
under these circumstances demonstrate a perverse disregard of a known risk that his
conduct was likely to create a substantial risk to G.G.'s safety.
{¶ 15} Appellant protests that the state presented no evidence to rebut G.G.'s
testimony that appellant did not point the gun at G.G. and that appellant did not have his
finger  on  the  trigger.  However,  as  explained  above,  despite  his  initial  denial,  G.G.
eventually admitted that appellant must have pointed the gun in his direction because the
bullet  hit  the  kitchen  table  near  where  G.G.  stood.  Furthermore,  Sergeant  Branam
testified that appellant said he told G.G. to lie to police about the incident. Thus, the jury
may have fairly believed G.G. was not testifying truthfully and was still lying to protect his
father. Also, although G.G. testified that appellant fired the gun accidentally and that
appellant did not have his finger on the trigger when it discharged, there is no evidence in
the record to even hint that the gun had a malfunction, which is the necessary inference.
For the jury to believe the gun was malfunctioning would have been wholly without basis.
For these reasons, we find the jury did not lose its way and create a manifest miscarriage
of justice when it concluded that appellant's conduct was reckless. The state presented
substantial  evidence  for  the  jury  to  conclude  that  all  of  the  essential  elements  of
endangering a child were established beyond a reasonable doubt. Therefore, appellant's
second assignment of error is overruled. Also, because we have found the trial court's
judgment was not against the manifest weight of the evidence even without consideration
of the testimony appellant contests under his first assignment of error, we find appellant's
first assignment of error is moot.
{¶ 16} Accordingly,  appellant's  first  assignment  of  error  is  moot,  his  second
assignment of error is overruled, and the judgment of the Franklin County Municipal
Court is affirmed.
Judgment affirmed.
BRYANT and TYACK, JJ., concur.

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