State v. Hartley

[Cite as State v. Hartley, 194 Ohio App.3d 486, 2011-Ohio-2530.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

THE STATE OF OHIO, : APPEAL NOS. C-100515
C-100516
Appellee, : C-100517
C-100518
v. : C-100519
C-100520
HARTLEY, : TRIAL NOS. C-10CRB-6732A
C-10CRB-6732B
Appellant. : C-10CRB-6732C
C-10CRB-6734A
: C-10CRB-6734B
C-10CRB-6734C
:
: D E C I S I O N.

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed from Are: Affirmed in C-100515, C-100516, and C-100517;
Reversed and Appellant Discharged in C-100518,
C-100519, and C-100520

Date of Judgment Entry on Appeal: May 27, 2011

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for appellee.

Michael W. Welsh, for appellant.

Please note: This case has been removed from the accelerated calendar.
 OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

{¶1} In these consolidated appeals, defendant-appellant, Pamela Hartley,

challenges her convictions on three counts of endangering children1 and three counts

of misrepresentation by a child-care provider.2

{¶2} Hartley, the director of a licensed child-daycare center, repeatedly

gave young children under her care pills containing a supplement of the hormone

melatonin to cause them to sleep in the afternoon. Although Hartley failed to

disclose to the children’s parents that she was administering the supplement, she did

not affirmatively misrepresent its use.

{¶3} For the reasons that follow, in the appeals numbered C-100515, C-

100516, and C-100517, we affirm Hartley’s child-endangering convictions, but in the

appeals numbered C-100518, C-100519, and C-100520, we reverse Hartley’s

convictions for misrepresentation by a child-care provider.

Background Information

{¶4} On December 14, 2009, Lieutenant David Schaefer of the Springfield

Township Police Department went to the Covenant Church Day Care Center to

investigate allegations from two employees that Hartley had been giving

supplements of the hormone melatonin to children at the daycare center to make

them sleep. Melatonin is a hormone naturally produced by the body in greater

quantities when it is dark to help maintain a regular sleep pattern.

{¶5} When Schaefer asked Hartley about the allegations, she had already

denied the same allegations to the pastor of the Covenant Church. But Hartley

1 C-10CRB-6732A, C-10CRB-6732B, and C-10CRB-6732C.
2 C-10CRB-6734A, C-10CRB-6734B, and C-10CRB-6734C.

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admitted to Schaefer that she had given melatonin pills to three children on several

occasions by placing a pill in the center of a folded-over Tootsie Roll. The three

children whom Hartley identified were under the age of three.

{¶6} Hartley told Schaefer that she had purchased the bottle of

supplements at the grocery store and that the bottle was located in her desk drawer.

Detective Rob Merkle, who had accompanied Schaefer to the daycare center, located

a Tootsie Roll stuffed with a white pill in the garbage can below Hartley’s desk. But

Merkle could not find Hartley’s bottle of melatonin supplements in her desk.

{¶7} Schaefer and Merkle interviewed Hartley two days later at the

Springdale Township Police Department. In this recorded interview, Hartley again

admitted to giving the hormonal supplements to three children within her care on

multiple occasions because the children would not sleep during naptime. She

claimed that she had begun administering the supplement in late August 2009 on

the advice of a subordinate, later identified as Donna Scott, who was in charge of the

infant room at the daycare center. Hartley claimed that she stopped giving the

supplement after a few weeks. Later in the interview, however, she admitted that

before leaving on a vacation scheduled for the first week of October 2009, she had

left a bag of adulterated Tootsie Rolls with an employee for the employee to use in

her absence.

{¶8} Hartley further stated that she had read “a little” about the

supplement and learned that it was “supposed to be totally safe.” She “believe[d]”

that she had purchased 3 mg pills, but she was not certain if she had given a whole

pill or half of a pill, and she admitted that she had increased the dosage when a lower

dosage had not worked. Hartley told Merkle and Schaefer that she had ceased

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administering the pills because she had not obtained consent from the children’s

parents.

{¶9} Hartley admitted that the supplements, which she stored in her office

desk, were accessible to the other providers at the daycare center to give to the

children. She knew that Scott, who stored her own bottle of the supplement in

Hartley’s desk, had given the supplement on one occasion to a child in the infant

room. And she strongly suspected that Scott had continued to give the supplements

to infants. Although Hartley considered it unsafe to give the supplement to infants,

she did no more than to tell Scott to stop.

{¶10} Hartley was subsequently arrested and charged with three counts of

endangering children, in violation of R.C. 2919.22(A), and three counts of

misrepresentation by a child-care provider, in violation of R.C. 2919.224.

{¶11} At a bench trial, Aimee Coyle and Ashlee Jerrigan, the two daycare-

center employees who had alerted the police to Hartley’s conduct, testified against

Hartley. Coyle testified that in late July or early August 2009, after she had been

promoted to the lead teacher for the toddler room, which was used for children aged

18 months to 3 years, Hartley told her, “We’re putting melatonin in the Tootsie Rolls

for the kids.” Coyle further contended that she had repeatedly observed Hartley give

to the toddlers the adulterated candy containing a full pill each day before lunch

from late July or early August until December 2009, when Coyle contacted the

police.

{¶12} According to Coyle’s observations, on the days that the children were

given the supplement, they would nap longer and sometimes fall asleep while eating

lunch. Coyle brought to the police a small bag containing what she believed were 5

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mg supplements of melatonin, given to her by Scott, but the pills were not marked

and their contents were not confirmed by a report of forensic testing.

{¶13} Jerrigan testified that in December 2009, she had seen Hartley give a

Tootsie Roll to a toddler. When Hartley left the room, Jerrigan removed the candy

from the child’s mouth and found a white pill in it. She brought the candy and the

pill to the Springdale police.

{¶14} Schaefer and Merkle testified about Hartley’s admissions during her

two interviews, and the recording of her second interview was offered into evidence.

Over Hartley’s objection, Merkle testified that while doing research for the case, he

had learned from a University of Maryland website that the use of melatonin

supplements could cause sleepiness during the day. With respect to children

specifically, he learned that the supplement could cause side effects such as high

blood pressure and seizures. According to Merkle, the website also included a

representation that “it was bad if a child up to the age of 15 had any more than .3

milligrams.”

{¶15} The state also presented testimony about the effects of the

supplements from the parents of the three children to whom Hartley had admittedly

given the supplement. These parents recalled that during the time period at issue,

the children seemed “groggy” in the afternoon and that the children’s sleep pattern

had become disturbed. In addition, one parent testified that her son’s language skills

had regressed and that he would awaken screaming in the middle of the night before

she removed him from the daycare center.

{¶16} All of these parents testified that they had not given Hartley

permission to give the supplement to their children and claimed that they would not

have given her permission to do so.

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{¶17} Shelly Hendricks, the pastor of the Covenant Church and Hartley’s

superior, testified that under a state-mandated protocol the daycare center could not

administer any medication to a child without signed authorization from a parent.

Further, he claimed to have been unaware that Hartley, who never sought

reimbursement for her purchase of the supplement, had been giving it to the

children. Finally, he testified that Hartley had denied administering the

supplements to the children when he asked her about it on the morning of December

13, 2007, and that he had fired Hartley later that day, after learning of her

admissions at the police interview.

{¶18} The trial court found Hartley guilty on all counts of endangering

children and misrepresentation by a child-care provider. Concerning the

endangering-children counts, the court acknowledged that the state had failed to

present any expert medical evidence establishing the harmful effects of taking the

supplement, but it determined that the other evidence supported a finding of a

substantial risk to the health or safety of the children. And with respect to the

misrepresentation counts, the court found no affirmative representation by Hartley

that was actionable under the misrepresentation statute. But the court held that the

statute criminalized Hartley’s failure to disclose to the parents of the children in her

care that she was giving the children melatonin supplements. These appeals

followed.

Evidentiary Issues

{¶19} In her second and third assignments of error, which we address first,

Hartley challenges Detective Merkle’s testimony concerning the potential harmful

effect of melatonin on small children that he had learned from the University of

Maryland website. Specifically, in her second assignment, she contends that this

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testimony was not admissible lay or expert testimony as defined under Evid.R. 701

and 702; in her third assignment of error, she argues that the testimony was

inadmissible hearsay.

{¶20} The state argues that Merkle’s testimony was not offered for the truth

of the matter asserted but rather to explain the course of Merkle’s investigation and

to demonstrate the recklessness of Hartley’s conduct in failing to discover and heed

warnings about the use of the supplement in children.

{¶21} We agree with the state that Merkle’s testimony on the potential

harmful effects of giving melatonin supplements to small children was admissible to

demonstrate the ease of obtaining this information about the supplement. As a

person who had actually researched the issue and therefore had the foundational

personal knowledge, Merkle was competent to offer this testimony. And part of the

state’s case against Hartley was that she had been reckless in giving the children the

supplement without determining whether it was accepted as safe.

{¶22} Further, the trial court clarified that it had not considered the

testimony as substantive medical evidence of a substantial risk to health. Thus, we

hold that this part of Merkle’s testimony was not offered or accepted for the truth

and therefore that it was not hearsay and was not lay or expert opinion that fell

outside Evid.R. 701 and 702. The second and third assignments of error are

meritless, and we overrule them.

Sufficiency-of-the-Evidence Claim

{¶23} In her first assignment of error, Hartley argues that her convictions

for the offenses of endangering children and misrepresentation by a child-care

provider were not supported by sufficient evidence. On a sufficiency-of-the-evidence

review, the relevant inquiry is whether, after viewing the evidence in the light most

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favorable to the state, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.3

Endangering Children

{¶24} With respect to the three counts of endangering children, the state

was required to prove that Hartley, while having control or serving in loco parentis of

a child, had recklessly created a “substantial risk to the health or safety of the child,

by violating a duty of care, protection, or support.”4 Hartley contends that her

conduct was not reckless and did not create a substantial risk to the health or safety

of the children.

1. Substantial Risk to Health or Safety

{¶25} Hartley contends that the state failed to present sufficient evidence

that her actions created any risk to the health or safety of the children, much less a

substantial risk. We have already held that Merkle’s testimony concerning the

harmful effects of the supplement that he found on the website was not admissible

for its truth. Certainly if the state had presented testimony from a qualified medical

expert, the case against Hartley would have been much stronger, because the website

information detailed specific and more serious side effects of the supplement such as

seizures. But the statute does not require such testimony to support a conviction in

all cases. Expert medical testimony is not required where the creation of a risk to

health or safety is within common knowledge.5

3 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus,
following Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781.
4 R.C. 2919.22(A).
5 See State v. Caton (2000), 137 Ohio App.3d 742, 751-752, 739 N.E.2d 1176 (holding that in an
endangering-children prosecution, the state is not required to present expert testimony to prove
that feces and insects were potential sources of disease that constituted a substantial risk to the
health of a child).

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{¶26} We consider it to be within common knowledge that adding to the

natural production of a hormone that contributes to sleepiness may cause unnatural

sleepiness and disrupt natural sleep patterns, resulting in less than normal awake

time for development and the intake of nutrition. And it is within common

knowledge that the administration of any supplement to induce sleep to a young

child without a doctor’s supervision, without knowledge of medications

simultaneously taken by the child and the child’s medical conditions, and without

accurate knowledge of dosing may cause an overdose and fails to consider

contraindication. Further, it is common knowledge that choking can occur if a child

falls asleep while eating and that a sleepy young child is more likely to fall and injure

himself. All of these scenarios involve risks to health or safety.

{¶27} The question ultimately is whether all of these factors combined to

put the children’s health and safety at substantial risk. A substantial risk involves a

“strong possibility, as contrasted with a remote or significant possibility.”6 A finding

of substantial risk may not be based on “ ‘an inference upon an inference’ in order to

transform a speculative risk into a substantial risk.”7

{¶28} Hartley repeatedly and indiscriminately administered the

supplements to young children, without knowledge of the precise dosage

requirements for each child’s much smaller blood-stream, and that she did so

without the consent or knowledge of the parents, in violation of the daycare center’s

protocol. The children repeatedly fell asleep during lunch, they were constantly

sleepy, and their sleep patterns were disrupted for months. Further, parents testified

that their children’s sleep patterns had returned to normal after they stopped

6 R.C. 2901.01(A)(8).
7 Caton, supra, at 751, quoting State v. Martin (1999), 134 Ohio App.3d 41, 44, 730 N.E.2d 386.

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attending the daycare center. And one parent even testified that after she had pulled

her child from the daycare center, not only had her child’s sleep pattern returned to

normal, but the child had also resumed developing linguistically. This evidence

supported a finding that Hartley’s acts and omissions created a strong possibility of

harm to the health or safety of the children.

{¶29} Hartley compares this case to other cases from this district in which

the state’s evidence on substantial risk was too speculative to support a conviction for

endangering children under R.C. 2919.22(A). But evaluating the likelihood of a risk

involves a fact-intensive inquiry.8 And this case is distinguishable because the state

presented evidence that Hartley had actually harmed the health of the children, and

that she did so repeatedly.9 Therefore, we hold that the evidence, if believed,

established that the risk to health or safety was not speculative but substantial.

2. Recklessness

{¶30} The Ohio Supreme Court has held that recklessness is the required

degree of culpability for a violation of R.C. 2919.22(A), although no degree of

culpability is specified in the statute.10 “A person acts recklessly when, with heedless

indifference to the consequences, he perversely disregards a known risk that his

8 See Id.
9 Compare State v. Allen (2000), 140 Ohio App.3d 322, 747 N.E.2d 315 (holding that a father’s
conduct in leaving his seven-year-old child unsupervised at home for 20 minutes while he left to
borrow butter from a neighbor did not, as a matter of law, create a substantial risk to the child’s
health or safety); State v. Boone (Aug. 14, 1996), 1st Dist. N0. C-950427 (holding that a mother’s
method of disciplining her seven-year-old child by driving away and leaving him in a K-Mart
parking lot for 15 minutes did not, as a matter of law, create a substantial risk to the child’s health
or safety); State v. Graves (1992), 62 Ohio Misc.2d 358, 598 N.E.2d 914 (holding that a father’s
operation of a motor vehicle while intoxicated and while his children were unbuckled in the back
seat did not, as a matter of law, create a substantial risk to the children’s health or safety).
10 State v. McGee (1997), 79 Ohio St.3d 193, 680 N.E.2d 975, syllabus.

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conduct is likely to cause a certain result or is likely to be of a certain nature.”11

“[S]omething is likely when there is merely good reason for expectation or belief.”12

{¶31} A reckless act involves a more culpable mental state than a negligent

act: “A person acts negligently when, because of a substantial lapse from due care, he

fails to perceive or avoid a risk that his conduct may cause a certain result or may be

of a certain nature.”13 But a reckless act involves less culpability than a knowing act:

“A person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature.”14

{¶32} Hartley contends that the state failed to prove recklessness. The issue

then is whether the state presented evidence from which any rational trier of fact

could have found beyond a reasonable doubt that Hartley, as a child-daycare

provider, had been more than just negligent and was actually reckless in her

administration of the supplements to the children. We hold that it did.

{¶33} First, Hartley’s own statement to the police that she realized that the

use of the supplements in infants was too dangerous demonstrates that she was

reckless in administering the supplements to children who were only months older,

as she failed to articulate how this danger was different for the older children.

Moreover, Merkle testified that he had easily found on the Internet information

warning about the use of the supplements in all children. The ready availability of

the warnings created an inference that Hartley either ignored the warnings or did not

11 R.C. 2901.22(C).
12 1974 Legislative Service Commission staff comment to H.B. No. 511.
13 R.C. 2901.22(D).
14 R.C. 2901.22(B).

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undertake any research, both of which demonstrated recklessness under the

circumstances of this case.

{¶34} Additionally, Hartley was not sure of the dosage that she had

introduced into the bloodstream of the children, and she had used the pills

indiscriminately, without regard for any medical conditions of the children. Finally,

Hartley even acknowledged that she should have obtained parental consent before

giving the supplements. This acknowledgement, along with her initial denial of the

conduct to the pastor and the evidence that she had never sought reimbursement for

the bottle of supplements, indicated that she knew the wrongfulness of her conduct

and had acted recklessly in administering the supplements.15

{¶35} After reviewing the evidence at trial in the light most favorable to the

state, as we are required to do, we conclude that a reasonable trier of fact could have

found beyond a reasonable doubt all the elements of endangering children.

Misrepresentation by a Child-Care Provider

{¶36} Hartley was convicted of misrepresentation by a child-care provider,

in violation of R.C. 2919.224, for failing to disclose to parents that she had

administered the melatonin supplements to their children while in her care. R.C.

2929.224 provides: “No child care provider shall knowingly misrepresent any factor

or condition that relates to the provision of child care and that substantially affects

the health or safety of any child or children in that provider’s facility or receiving

child care from that provider to * * * [a] parent * * *.” The phrase “any factor or

condition that relates to the provision of child care” includes such matters as “the

15 Compare State v. Massey (1998), 128 Ohio App.3d 438, 715 N.E.2d 235 (holding that a
mother’s conduct in leaving a two-and-one-half-year-old child in bathtub for 30 seconds to four
minutes to care for another child and positioning child on potty seat after child had just fallen off
the seat without knowing that he was likely to fall again was arguably negligent but not reckless).

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person or persons who will provide child care to the child of the parent” and “[t]he

conditions or safety features of the child care facility,” but the statute does not create

an exhaustive list.

{¶37} Hartley challenges her misrepresentation convictions on the ground

that her failure to disclose was an omission and therefore was not a

misrepresentation under the statute. Hartley further contends that any potential

misrepresentation did not relate to any matter substantially affecting the health or

safety of any child for whom she provided care.

{¶38} Does R.C. 2919.224 Criminalize Omissions?

{¶39} The issue of whether, for purposes of R.C. 2919.224, the proscribed

act of knowingly misrepresenting any factor or condition that relates to the provision

of child care includes the failure to disclose is one of first impression in Ohio.

{¶40} The General Assembly enacted R.C. 2919.223 through 2919.227,

including R.C. 2919.224, as part of 2004 Am.Sub. H.B. No. 11, which became

effective in 2005. R.C. 2919.223 sets forth definitions that apply to R.C. 2919.224

through 2919.227, but it does not define the phrase “knowingly misrepresent.”

{¶41} The main goal of statutory construction is to determine and give effect

to the intent of the legislature. To that end, we first look to the words used by the

General Assembly, remembering that “words and phrases in Ohio statutes are to be

construed ‘according to the rules of grammar and common usage.’ ”16 Additionally,

we are mindful that the criminal statutes are to be strictly construed against the state

and in favor of the accused.17

16 State v. Gray (1992), 62 Ohio St.3d 514, 515, 584 N.E.2d 710, quoting R.C. 1.42.
17 Id., citing R.C. 2901.04.

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{¶42} As we have noted, the term “misrepresent” is not defined in R.C.

Chapter 2919. But the plain and ordinary meaning of the term is “[t]o represent

incorrectly; as: a To give a false, improper, or imperfect representation (of). b To

disserve or act counter to as a representative.”18 The only meaning relevant to this

case is the first meaning. And that meaning involves the giving of a representation,

not an omission or a nondisclosure. In light of this definition, we conclude that the

legislature did not intend to give the statute the broad interpretation that the trial

court gave to it.

{¶43} The Ohio Supreme Court in State v. Warner addressed a similar issue

of statutory interpretation.19 The court held that two subdivisions of the securities-

fraud statutes, R.C. 1707.44(B)(4) and 1707.44(J), prohibit only affirmative

misrepresentation and that they do not apply to fraudulent nondisclosure.20 R.C.

1707.44(B)(4) states that a defendant commits a violation when he or she “knowingly

make[s] or cause[s] to be made any false representation[s]”; R.C. 1707.44(J) states

that “[n]o person, with purpose to deceive, shall make, issue, publish, or cause to be

made, issued, or published any statement or advertisement as to the value of

securities, * * * or as to the financial condition of any issuer of securities, when such

person knows that the statement or advertisement is false in any material respect.”

{¶44} The Warner court noted that “[t]he elements of a crime must be

gathered wholly from the statute,” and it then presumed that “if the General

Assembly intended that a party be held accountable for a failure to disclose under

18 Webster’s Second New International Dictionary (1959) 1570.
19 State v. Warner (1990), 55 Ohio St.3d 31, 564 N.E.2d 18.
20 Id. at paragraph two of the syllabus.

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R.C. 1707.04(B)(4) or 1707.44(J), it would have included the appropriate language

in the statute.”21

{¶45} Likewise, in this case, if the legislature had intended the broad reach

adopted by the trial court and advocated by the state, it could have done so by

including the following emphasized language in R.C. 2919.224: “No child care

provider shall knowingly misrepresent any factor or condition or knowingly fail to

disclose any factor or condition that relates to the provision of child care * * *.” As

proof of its ability to accomplish this, the legislature criminalized the failure to

disclose in R.C. 2919.225 and 2919.227. Because the legislature did not include this

language in R.C. 2919.224, the misrepresentation statute, we presume that it did not

intend for the statute to apply to a child-care provider’s failure to disclose to a parent

a factor or condition that relates to the provision of child care.

{¶46} We have determined that R.C. 2919.224 does not apply to omissions,

and there is no legally sufficient evidence in this record to support a violation of the

statute based on an affirmative misrepresentation. Although the daycare center had

a protocol of notifying and receiving consent from parents before administering

“anything” to the children, there was no testimony that Hartley had communicated

this policy to any parent. Testimony from one parent that Hartley had asked for his

consent before she had administered Benadryl to his child did not demonstrate that

Hartley had affirmatively misrepresented the daycare center’s policy. Accordingly,

on this basis, we sustain the first assignment of error in part, reverse Hartley’s

misrepresentation convictions, and discharge her from further prosecution for those

offenses.

Weight-of-the-Evidence Challenge

21 Id. at 52.

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{¶47} In her fourth assignment of error, Hartley argues that her

endangering-children convictions were against the manifest weight of the evidence.

But our review of the record fails to persuade us that the trial court, sitting as the trier of

fact, clearly lost its way and created such a manifest miscarriage of justice that the

endangering-children convictions must be reversed and a new trial ordered.22 The weight

to be given the evidence and the credibility of the witnesses were primarily for the trier of

fact to determine.23

{¶48} Hartley’s contention, also raised under the fourth assignment of error,

that her misrepresentation convictions were against the manifest weight of the evidence is

rendered moot by our holding that the record does not contain sufficient evidence to

support these convictions. In all other respects, the fourth assignment of error is

overruled.

Conclusion

{¶49} The state was not required to present medical evidence that Hartley’s

repeated administration of melatonin supplements to young children was a violation

of her duty of care or protection that created a substantial risk to the health or safety

of the children. Further, the evidence supported a finding that Hartley acted

recklessly under the circumstances in creating this substantial risk. Accordingly, in

the appeals numbered C-100515, C-100516, and C-100517, we affirm Hartley’s

endangering-children convictions.

{¶50} The misrepresentation by a child-care provider, under R.C. 2919.224

on its face, does not apply to omissions. The record contains insufficient evidence to

22 See Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211; see also State v. Thompkins (1997), 78
Ohio St.3d 380, 387, 678 N.E.2d 541.
23 See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.

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support a conviction under this statute. Accordingly, in the appeals numbered C-

100518, C-100519, and C-100520, we reverse Hartley’s misrepresentation

convictions and discharge her from further prosecution for those offenses.

Judgment accordingly.

SUNDERMANN, P.J., and HENDON and CUNNINGHAM, JJ., concur.

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