[Cite as State v. Faggs, 2018-Ohio-3643.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 17 CAA 10 0072
CLINTON D. FAGGS, III
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 17 CR I 07 0386
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 11, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN JONATHAN T. TYACK
PROSECUTING ATTORNEY RYAN L. THOMAS
KIMBERLY E. BURROUGHS HOLLY B. CLINE
ASSISTANT PROSECUTOR THE TYACK LAW FIRM CO., LPA
140 North Sandusky Street 536 South High Street
Delaware, Ohio 43015 Columbus, Ohio 43215
Delaware County, Case No. 17 CAA 10 0072 2
Wise, P. J.
{¶1} Defendant-Appellant Clinton D. Faggs III appeals his convictions, in the
Court of Common Pleas, Delaware County, for domestic violence and assault. Appellee
is the State of Ohio. The relevant facts leading to this appeal are as follows:
{¶2} At the time of the events in question in this matter, appellant was living with
his girlfriend, H.K. in Delaware, Ohio. H.K. has a son, T.M., seven years old at the times
pertinent to this appeal, from a prior relationship. Appellant is also the non-custodial
parent of two children from another relationship. Appellant and H.K. also have a four-
year-old child together.
{¶3} In early 2017, T.M. had been having behavior issues at his school and at
home. Appellant generally acted as a disciplinarian and authority figure in the home, even
though he was not T.M.’s father.
{¶4} On January 11, 2017, T.M. misbehaved at school and was brought back
home by the principal while classes were still in session. Two days later, on January 13,
2017, officials at T.M.’s school directed that he go home early because he had damaged
a computer. H.K. went to the school and picked up T.M. at about 2:30 PM. When they
arrived back home, H.K. went upstairs to her bedroom. She heard appellant verbally
scolding T.M. and some “scuffling” noises.
{¶5} At some point, appellant grabbed T.M. and procured a cord from an Xbox
computer game system, as further discussed infra. Among other things, appellant
whipped the child with the cord several times, striking him in the arms and legs. H.K.
contacted law enforcement the next day. In addition, H.K. reported a few days later that
she had been involved in a physical altercation with appellant.
Delaware County, Case No. 17 CAA 10 0072 3
{¶6} Via an indictment filed July 7, 2017, appellant was charged with domestic
violence and misdemeanor assault (Counts I and II) against T.M. The State also alleged
that appellant committed domestic violence and misdemeanor assault (Counts III and IV)
against his girlfriend H.K., the mother of T.M. The two domestic violence counts were
charged as felonies of the third degree based on appellant’s record of prior offenses, as
per R.C. 2919.25(D)(4).
{¶7} The matter proceeded to a bench trial on August 17, 2017. The State
presented four witnesses: H.K., T.M., Officer Derek Childs of the Delaware City Police
Department, and Officer Allison Castrilla of the Sunbury Police Department.1 Appellant
also testified in his own defense.
{¶8} After hearing the evidence and the arguments, the trial court found appellant
guilty of domestic violence and assault against the child, T.M., but not guilty of domestic
violence and assault against H.K. On September 27, 2017, the trial court sentenced
appellant to four years of community control.
{¶9} Appellant filed a notice of appeal on October 27, 2017. He herein raises the
following three Assignments of Error:
{¶10} “I. THE TRIAL COURT'S VERDICT IS NOT SUSTAINED BY SUFFICIENT
EVIDENCE.
{¶11} II. THE TRIAL COURT'S VERDICT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
1 Officer Castrilla’s testimony went to the alleged domestic violence against H.K. Those
incidents are not the focus of this appeal.
Delaware County, Case No. 17 CAA 10 0072 4
{¶12} “III. THE TRIAL COURT'S VERDICT VIOLATES A PARENT'S
FUNDAMENTAL LIBERTY INTEREST IN RAISING AND CONTROLLING HIS CHILD
UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE NINTH
AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION.”
I.
{¶13} In his First Assignment of Error, appellant argues his convictions for
domestic violence and assault were not supported by sufficient evidence. We disagree.2
{¶14} In reviewing a claim of insufficient evidence, “[t]he 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus. It is well-established that the State bears the burden of
establishing each and every element of a charged crime and must do so with proof
beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010–Ohio–
15, 2010 WL 27862, ¶ 11.
{¶15} R.C. 2919.25(A) states as follows: “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.”
{¶16} However, “*** proper and reasonable parental discipline can be employed
by a defendant as an affirmative defense to a charge of domestic violence.” State v. Hart,
110 Ohio App.3d 250, 254, 673 N.E.2d 992, 994 (3rd Dist.1996). But our analysis of this
issue in the present context is limited: “[T]he due process ‘sufficient evidence’ guarantee
2 The trial court merged the assault count into the domestic violence count by stating
that “[n]o sentence [is] imposed pursuant R.C. 2941.25” as to Count II. Sentencing Entry
at 4. Appellant’s arguments thus center on the offense of domestic violence.
Delaware County, Case No. 17 CAA 10 0072 5
does not implicate affirmative defenses, because proof supportive of an affirmative
defense cannot detract from proof beyond a reasonable doubt that the accused had
committed the requisite elements of the crime.” State v. Hancock, 108 Ohio St.3d 57,
2006–Ohio–160, ¶ 37, citing Caldwell v. Russell (C.A.6, 1999), 181 F.3d 731, 740,
abrogated on other grounds (internal quotations omitted).
{¶17} In the case sub judice, the State presented evidence during the bench trial
that on January 13, 2017, T.M.’s misbehavior interrupted appellant’s plans that day to
pick up his daughter in Marion, Ohio, who had become sick at her school. Appellant
decided to physically punish T.M., apparently at the behest of H.K. Testimonial evidence
was presented that appellant grabbed T.M. by the throat, lifted him from the floor by his
neck, “slammed” him against an interior wall, slapped him in the face five to six times,
and whipped him with a rubber-coated Xbox cord. See Tr. 94-123 (testimony of T.M.).
The State also presented photographic exhibits of the visible marks and bruising that T.M.
sustained, as well as photographs of slight damage to the apartment at the point where
T.M. testified he was slammed into a wall. See Exhibits 1-19.
{¶18} It is not disputed that T.M. was a household member or that appellant was
acting in loco parentis during the events at issue. See Appellant’s Brief at 8. Appellant
seems in large measure to urge that the evidence was insufficient because of a lack of
medical treatment or a demonstration of “serious physical harm.” See Appellant’s Brief at
8, 16. However, the General Assembly has utilized the term “physical harm” in the
domestic violence statute, which is defined in R.C. 2901.01(A)(3), as to persons, as “any
injury, illness, or other physiological impairment, regardless of its gravity or duration.” See,
e.g., State v. Reynolds, 10th Dist. Franklin No. 03AP-701, 2004-Ohio-3692, ¶ 14.
Delaware County, Case No. 17 CAA 10 0072 6
{¶19} As summarized above, upon review of the record and transcript in a light
most favorable to the prosecution, we find that a reasonable factfinder could have found
appellant guilty beyond a reasonable doubt of the offense of domestic violence against
the child as charged.
{¶20} Appellant's First Assignment of Error is overruled.
II.
{¶21} In his Second Assignment of Error, appellant argues his convictions for
domestic violence and assault were against the manifest weight of the evidence. We
disagree.
{¶22} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting
of a new trial “should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717. Even though a
manifest weight analysis may involve an appellate court's consideration of credibility (see
State v. Sanders, 76 N.E.3d 468, 2016–Ohio–7204 (5th Dist.), ¶ 38), the weight to be
given to the evidence and the credibility of the witnesses are primarily issues for the trier
of fact (see, e.g., State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180).
Delaware County, Case No. 17 CAA 10 0072 7
{¶23} In the case sub judice, the trial court acknowledged at the end of the case
that T.M. was "obviously a challenging child." Tr. at 249. It is also undisputed that prior to
the incident, appellant and H.K. had attempted other methods of disciplining T.M.,
including non-corporal punishment, positive reinforcement, “boot camp”, and medication.
Tr. at 175. T.M. testified that it did not hurt him when H.K. had "whooped" him on prior
occasions. Tr. at 119.
{¶24} The record before us strongly suggests the trial court relied in large
measure upon the testimony of the child victim and correspondingly discounted the
testimony of H.K. and appellant for want of credibility. See, e.g., Tr. at 247. T.M. recalled
at trial: “I had marks on my arms from [appellant] whooping me with a controller cord, and
he picked me up, choked me, slammed my head against the wall, and made a hole in the
wall before he hit me with the controller cord.” Tr. at 97. We recognize the overall
testimony is inconsistent as to where the whipping took place: T.M. testified that it
happened downstairs in the living room, while H.K. and appellant placed this action
upstairs. Furthermore, appellant, in his defense testimony, insisted that he did not mean
to whip T.M.'s arms or lower legs, but the child’s movements and running caused the cord
to come into contact with those areas instead of the child’s backside. See Tr. at 186, 214.
{¶25} In raising his “manifest weight” challenge, appellant emphasizes inter alia
that Officer Childs, who investigated the report the next day, did not observe marks
around the neck or throat of the child consistent with a choking assault, nor did he observe
petechiae on or near the eyes. Tr. at 145-146. The officer also did not observe marks or
bumps on the child’s head indicative of striking a wall. Id. Appellant also points out that
when T.M. reported to the officer that a small hole in the wall, about five feet up, had been
Delaware County, Case No. 17 CAA 10 0072 8
caused by appellant “banging” the child’s head, it caught H.K. off guard, as she had not
heard T.M. say anything about the damage before that. See Tr. at 89.3 In essence,
appellant charges that a seven-year-old child who purportedly “has a history of lying,
being spiteful, and generally behaving in an unacceptable manner” might very well make
questionable accusations against a parental figure with whom he is angry, without
necessarily appreciating the effect of his actions. Appellant’s Brief at 21.
{¶26} It is noteworthy in our analysis that the trial court orally reached the following
conclusions: "The court, as far as [the] burden of proof here, certainly I think that if the
burden of proof’s on the defense by a preponderance, they have not met the burden of
proof. If the State [sic] burden of proof is to show that it's unreasonable, the court would
find they have met that burden of proof." Tr. at 251. Upon review, despite the aforecited
discrepancies in the testimony, we find the trial court, in rejecting appellant’s claim of
reasonable parental discipline, did not clearly lose its way and create a manifest
miscarriage of justice requiring that appellant's conviction for domestic violence be
reversed and a new trial ordered.
{¶27} Appellant's Second Assignment of Error is therefore overruled.
III.
{¶28} In his Third Assignment of Error, appellant contends the trial court's verdict
violates a parent's fundamental liberty interest in raising and controlling his or her child.
{¶29} Appellant’s present argument goes to the question of burden of proof in the
prosecution of charges of domestic violence (R.C. 2919.25(A)) and assault (R.C.
3 Appellant also proposes that the hole was caused by T.M. and/or his younger brother
throwing toy Matchbox cars at the wall.
Delaware County, Case No. 17 CAA 10 0072 9
2903.13(A)), where parental corporal punishment is at issue. We note that “where the use
of corporal punishment is not descriptive of the offense and not even mentioned in the
statute, it is not a part of the state's burden of proof.” Hart, supra, at 254, f.n. 2. We have
recognized that where an alleged incident of domestic violence occurs between a parent
and child, the parent may raise parental discipline as an affirmative defense. See State
v. Durbin, 5th Dist. Holmes No. 13 CA 2, 2013-Ohio-5147, ¶ 25, citing State v. Luke, 3rd
Dist. Union No. 14–10–26, 2011–Ohio–4330, ¶ 21. See, also, State v. Dunlap, 5th Dist.
Licking No. 95-CA-2, 1995 WL 556990.
{¶30} Appellant essentially urges that we overturn Durbin and Dunlap on the
theory that their “affirmative defense” approach violates the fundamental liberty interest
of parents in the care, custody and control of their children.
{¶31} However, while both sides in the present appeal have commendably briefed
the issue, this Court has maintained that failure to raise at the trial court level the issue of
the constitutionality of a statute or its application, which issue is apparent at the time of
trial, constitutes a waiver of such issue on appeal. State v. Ivery, 5th Dist. Stark No.
2005CA00270, 2006–Ohio–5548, ¶ 44, quoting State v. Awan (1986), 22 Ohio St.3d 120,
489 N.E.2d 277, syllabus. In the instant case, we note the trial court judge, in response
to appellant’s motion for acquittal at the close of the State’s evidence, asked defense
counsel: “Who has the burden of proof on [the] reasonable parental discipline question?”
Tr. at 166. After some discussion, appellant’s defense counsel stated: “But in all candor,
I believe the Fifth District has spoken and said it’s an affirmative defense.” Tr. at 166-167.
Our review of the trial court file and the trial transcript reveals no attempt to otherwise
advance the constitutional challenges herein presented by appellant, other than the
Delaware County, Case No. 17 CAA 10 0072 10
general assertion of the holding of the Seventh District Court of Appeals in State v. Rosa,
7th Dist. Mahoning No. 12 MA 60, 2013-Ohio-5867, 6 N.E.3d 57.
{¶32} Certainly, application of the Awan waiver doctrine is discretionary. See In re
M.D., 38 Ohio St.3d 149 (1988). However, the United States Supreme Court has held
that due process of law is not denied to a defendant by the State's placement of the
burden of proof or persuasion of an affirmative defense on the defendant, so long as the
prosecution remains required to prove all elements of the underlying criminal offense by
proof beyond a reasonable doubt. See Patterson v. New York, 432 U.S. 197, 202-07, 97
S.Ct. 2319, 53 L.Ed.2d 281 (1977). Moreover, appellant herein provides scant authority
for the proposition that an individual temporarily acting in loco parentis acquires a full
panoply of parental constitutional rights. Cf. In re Brown, 153 Wash.2d 646, 652, 105 P.3d
991, 994 (2005) (wherein the Washington Supreme Court stated that no case in that state
“recognizes that nonparents are guaranteed the fundamental rights of parents under the
doctrine of in loco parentis.”) Finally, the Ohio Supreme Court has aptly held that any
departure from the doctrine of stare decisis demands special justification. Westfield Ins.
Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 44 (internal
quotations omitted).
{¶33} Accordingly, we presently decline to depart from our precedent set forth in
Durbin and Dunlap.
Delaware County, Case No. 17 CAA 10 0072 11
{¶34} Appellant's Third Assignment of Error is therefore overruled.
{¶35} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Delaware County, Ohio, is hereby affirmed.
By: Wise, P. J.
Gwin, J., and
Baldwin, J., concur.
JWW/d 0824