State v. Primous

[Cite as State v. Primous, 2020-Ohio-912.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 108341
v. :

NATHANIEL PRIMOUS, IV, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART
RELEASED AND JOURNALIZED: March 12, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-633189-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Shannon Musson, Assistant Prosecuting
Attorney, for appellee.

Joseph V. Pagano, for appellant.

KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, Nathaniel Primous, IV, appeals his convictions

following a bench trial. For the reasons that follow, we affirm in part, and reverse in

part.
 In September 2018, Primous was named in a nine-count indictment

charging him with one count each of aggravated burglary (Count 1), felonious assault

(Count 2), domestic violence (Count 3), aggravated menacing (Count 4),

telecommunications harassment (Count 9), and four counts of endangering children

(Counts 5-8). Counts 1 and 2 also carried one- and three-year firearm specifications.

The case proceeded to trial where the following evidence was presented.

On September 28, 2018, the victim was sitting in her living room at

her Dove Avenue address when she heard a “booming” noise. Thinking it came from

her four children, who were playing upstairs, she yelled up to them. She walked

toward the kitchen and heard the sound of glass breaking. As the victim ran up the

stairs to her children, she heard the second windowpane of glass break. She ran into

the bedroom where her children were and attempted to barricade the door with

furniture. However, the door was pushed open by Primous, her estranged husband.

He stood in front of the door, pointed a handgun at the victim, and asked her about

the presence of another man. He then struck the victim with the gun on the side of

head causing injury to her eye area. The victim stated that Primous continued to

point the gun at her, so she dropped to her knees and apologized because she did

not want Primous to hurt her children. When she looked up, Primous had left the

room. After Primous left, the victim barricaded the door and called the police. The

911 recording was played for the court. The victim admitted that she did not identify

Primous as her assailant to the dispatcher or tell them that he had a gun.
 When the police arrived, the victim told them that Primous broke into

her home, and threatened and assaulted her with a gun. The victim testified that

although the injury to her eye was painful, she did not seek medical attention. A

photo of her injury was submitted to the court.

According to the victim, the police were supposed to wait outside for

her and her children to pack up their belongings; however, when the victim looked

outside, the police were gone. The victim then heard gun shots and discovered that

the shots were directed at her home. She stated that although she called the police,

she was fearful and left the residence with her children before the police arrived.

The victim identified photographs that she took two weeks prior to

trail of blood found on the walls inside her home. According to the victim, the blood

was from when Primous broke her window to gain entrance into her house.

The victim also testified about text messages she subsequently

received from Primous that night from 10:16 p.m. until 10:27 p.m. She identified a

photograph of the “screenshot” displaying the text messages as an accurate

reflection of the text messages she received. She identified that the messages were

sent by “N,” who, according to the victim, was Primous. The victim explained that

although she has Primous’s name saved in her phone, only the first letter of his name

appears on the text messages. In the messages, Primous threatened to kill “him”

and that no one was going to “touch you.” According to the victim, Primous thought

a male was in her house, which was why he believed she did not answer her

telephone earlier that evening.
 The victim testified that she and Primous were happily married for

two years, but separated in early January 2017; they have no children together.

Although she filed for divorce after the separation, she withdrew her petition

because they were attempting to reconcile. Nevertheless, they again separated in

2018 approximately five months prior to the assault. According to the victim,

Primous did not live with her and her children, he surrendered his keys when he

moved out, and his name was removed from the lease.

Even though the victim stated that all four of her children were

present during the assault, they were not interviewed by police. However, two of the

victim’s children testified at trial. Her older son, age 10, testified that he and his

siblings were upstairs watching television when he heard a “loud and bumpy” noise

from downstairs. He said their mother ran into the room and attempted to push the

television in front of the door but Primous, who he identified as his “step-dad,” came

into the room and pointed a gun at the victim. He described the gun as orange and

black. According to the witness, Primous asked about another man and then hit the

victim in the head.

The victim’s second oldest child, age 8, also testified about the

incident. He described the gun that Primous had as “gray and black.” According to

the witness, he knew Primous because “he sometimes comes over to [their] house,”

but was unsure if he and his mother were in a relationship or even friends.

Officer Victoria Przybylski testified that she responded to a call on

Dove Avenue for a burglary in progress. Upon arrival, she learned from a neighbor
that he had heard a couple of big booms and some glass breaking; the neighbor was

not identified or called as a witness. Officer Przybylski approached the home, and

observed the front door was ajar and glass on the floor from the front window.

According to Officer Przybylski, the victim came down the stairs and told her that

Primous broke into her home and assaulted her with a gun. Officer Przybylski

interviewed the victim, but did not interview the children because she was advised

by the victim that the children did not witness the incident. She stated that she

observed and photographed the cut and swelling around the victim’s eye. According

to Officer Przybylski, the victim was “terrified, shaking, crying, and upset.”

Officer Przybylski testified that she was waiting for the victim to leave

the residence when she received a call for a male at the Cleveland Clinic with a

gunshot wound. Upon speaking with the reporting officers, she learned the male

was identified as Primous. Officer Przybylski stated that she left the victim’s

residence to speak with Primous at the hospital. Once there, she observed cuts on

Primous’s hand, but Primous denied that he was at the victim’s home or that he had

recently seen her. Despite Primous telling Officer Przybylski that he was shot, she

later learned from the treating physician that Primous’s wounds were consistent

with cuts, and not a gunshot. Based on this information, Primous was arrested.

Dr. Damon Kralovic, a Cleveland Clinic medical physician, testified

that he responded to the emergency department for a male, identified as Primous,

with a gunshot wound. However, upon examination, he ascertained the injury was
to Primous’s right elbow. Dr. Kralovic described the injuries as a “laceration” and

“abrasion,” and not a puncture wound.

Detective John Freehoffer testified that he received the assignment

the following day and interviewed the victim. Detective Freehoffer identified the

photographs that he took of the exterior of the home, but admitted that he did not

take any photographs inside the home because he could not gain access into the

home. He admitted that he did not interview the victim’s children because he had

no further contact with the victim except for emailed photographs the victim took of

the blood that was inside the home and the bullet fragment the victim later provided.

Primous testified in his defense. He stated that he had been drinking

with friends prior to going to the victim’s house. According to Primous, he entered

through the unlocked front door and found the victim sitting on the couch. He

stated that after using the bathroom upstairs he and the victim went outside on the

front porch to drink and smoke. While on the porch, they began to argue about a

man she was talking to and the children Primous fathered with other women during

his and the victim’s marriage. Primous testified that out of anger, he “mooshed” the

victim in the face, causing her injuries; he denied possessing or using a gun. He

further admitted that he broke the window. When the victim ran inside stating she

was calling the police, Primous ran off and went to the hospital for the injury he

sustained to his elbow from breaking the window.

Primous testified that he lived at the Dove address, identifying an

overdue utility bill that was in his name. However, he admitted that he told the
police when he was arrested that evening that he lived at a different address — the

address where he “receives his mail.” Even though he initially testified that he paid

the November 2018 utility bill for the Dove Avenue address, he later stated he did

not pay October or November’s bill because he was incarcerated. Primous further

admitted that he lied to the physicians at the hospital about getting shot. He also

admitted to making calls from jail to the victim begging her not to press charges.

Finally, he denied that he sent the threatening text messages, but admitted he

argued with the victim about another male.

At the close of all evidence, the trial court found Primous guilty of all

counts. The court found that counts 1, 2, and 3 were allied offenses that merged for

sentencing, and the state elected that Primous be sentenced on Count 1, aggravated

burglary. The court imposed a three-year sentence on Count 1, consecutive with the

three-year firearm specification. The court ordered Primous to serve concurrent six-

month terms on each of Counts 4 through 9, and also ordered that those sentences

be served concurrently with Count 1, for a total prison sentence of six years.

Primous now appeals, raising four assignments of error, which will be

addressed out of order.

A. Text Message Authentication

In his third assignment of error, Primous contends that the trial court

erred by admitting, without proper authentication, state’s exhibit No. 4, a printout

of the text messages from the victim’s phone.
 Evidentiary rulings made at trial rest within the sound discretion of

the trial court. State v. Graham, 58 Ohio St.2d 350, 390 N.E.2d 805 (1979). “[T]he

threshold standard for authenticating evidence pursuant to Evid.R. 901(A) is low,

and ‘does not require conclusive proof of authenticity, but only sufficient

foundational evidence for the trier of fact to conclude that * * * [the evidence] is what

its proponent claims it to be.’” State v. Inkton, 2016-Ohio-693, 60 N.E.3d 616, ¶ 73

(8th Dist.), quoting State v. Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th

Dist.1991). Pursuant to Evid.R. 901(B)(1), the authentication requirement can be

satisfied by the “[t]estimony of a witness with knowledge * * * that a matter is what

it is claimed to be.”

“[I]n most cases involving electronic print media, i.e., texts, instant

messaging, and e-mails, the photographs taken of the print media or the printouts

of those conversations are authenticated, introduced, and received into evidence

through the testimony of the recipient of the messages.” State v. Roseberry, 197

Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233, ¶ 75 (8th Dist.).

In this case, the text messages were authenticated by the victim. She

testified that she received the messages from Primous after he broke into her home

and assaulted her. She identified that although Primous’s actual name is stored in

her cell phone, when a text message is sent only the first initial of his name appears.

Accordingly, under the low-threshold standard, the victim had personal knowledge

of the content of the text messages; thus, they were properly authenticated by the

victim’s testimony.
 Accordingly, Primous’s third assignment of error is overruled.

B. Sufficiency of the Evidence

A Crim.R. 29 motion challenges the sufficiency of the evidence. The

test for sufficiency requires a determination of whether the prosecution met its

burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency

of the evidence to support a criminal conviction is to examine the evidence admitted

at trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt. State v. Murphy, 91 Ohio

St.3d 516, 543, 747 N.E.2d 765 (2001). “‘The 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. Walker, 150 Ohio St.3d 409, 2016-Ohio-829, 82 N.E.3d

1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

In this case, Primous was found guilty of all charges — aggravated

burglary, with both one- and three-year firearm specifications, felonious assault,

with one- and three-year firearm specifications, domestic violence, aggravated

menacing, telecommunications harassment, and four counts of child endangering.

He contends in his first assignment of error that the trial court erred when it denied

his Crim.R. 29 motion for acquittal because the state failed to present sufficient

evidence to support his convictions.
 Primous was convicted of aggravated burglary. Pertinent to this

appeal, aggravated burglary is defined as trespassing by force in an occupied

structure when a person other than an accomplice is present with the intent to

commit a criminal offense inside the structure, and the offender inflicts, attempts,

or threatens to inflict physical harm on another. R.C. 2911.11(A)(1).

Primous contends that the trespass element of his aggravated

burglary conviction is not supported by sufficient evidence because he was married

to the victim, his name was on the lease, and a utility bill was still in his name. He

also contends that he did not break the window to gain access into the home; rather,

he claims he entered through an unlocked door, thus defeating the element of force.

We disagree.

Although Primous and the victim were married, “[a] spouse may be

criminally liable for trespass and/or burglary in the dwelling of the other spouse who

is exercising custody or control over that dwelling.” State v. Lilly, 87 Ohio St.3d 97,

717 N.E.2d 322 (1999), paragraph one of the syllabus. In this case, the evidence was

sufficient to demonstrate that the victim exercised custody and control of the Dove

Avenue residence. The victim testified that Primous had not lived at the Dove

Avenue residence for the past five months, when he surrendered his keys to the

residence and his name was removed from the lease. And, according to the victim,

Primous had not paid any of the utility bills despite them being his name.

Accordingly, sufficient evidence of the trespass element was presented.
 Additionally, even if we were to believe that Primous did not break

the window to gain access into the victim’s home, his admitted conduct of entering

through an unlocked door would still be sufficient to prove the force element of

aggravated burglary. “Ohio law has long held that the force element for an

aggravated burglary charge is established through the opening of a closed but

unlocked door.” State v. Johnson, 8th Dist. Cuyahoga No. 97698, 2012-Ohio-3812;

¶ 16, citing State v. Lane, 50 Ohio App.2d 41, 46, 361 N.E.2d 535 (10th Dist.1976).

Accordingly, sufficient evidence was presented to support the force element and his

overall conviction of aggravated burglary.

Primous contends that despite the trial court finding the offenses of

aggravated burglary, felonious assault, and domestic violence were allied and

merged for sentencing, and the state electing to sentence Primous for aggravated

burglary, this court should review the finding of guilt for felonious assault and

domestic violence under a sufficiency analysis as well. We disagree because when

counts in an indictment are allied offenses and there is sufficient evidence to support

the offense on which the state elects to have the defendant sentenced, this court need

not consider the sufficiency of the evidence on the merged counts because any error

would be harmless. State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-

7685, ¶ 14.

Even if we addressed the findings of guilt for felonious assault and

domestic violence, sufficient evidence was presented because Primous admitted, at

the very least, to “mooshing” the victim in the face and causing the injury depicted
in the photograph. Moreover, under a sufficiency standard the evidence is viewed

in the light most favorable to the state; accordingly, the victim and her children’s

testimony that Primous pointed a gun at the victim and hit her in the face with the

gun would be sufficient to support the finding of guilt for felonious assault and also

his convictions of both the one- and three-year the firearm specifications.

Primous also contends that his convictions for aggravated menacing

and telecommunications harassment were not supported by sufficient evidence

because the text messages the state used to prove the offenses were not

authenticated.

R.C. 2903.21(A) provides that no person shall knowingly cause

another to believe that the offender will cause serious physical harm to the person

or property of the other person. Telecommunications harassment pursuant to R.C.

2917.21(A)(3), prohibits a person from “knowingly mak[ing] or caus[ing] to be made

a telecommunication * * * to another, if the caller * * * during the

telecommunication, [commits the offense of aggravated menacing].” As previously

discussed, the text messages were properly authenticated by the victim.

Accordingly, Primous’s challenge to these offenses on appeal is without merit.

Moreover, the state did not need the text messages to prove the

aggravated menacing charge because Primous’s conduct of breaking into the

victim’s home and pointing a gun at her caused the victim to believe that he would

cause or attempt to cause her serious physical harm. State v. Goodwin, 10th Dist.

Franklin No. 05AP-267, 2006-Ohio-66, ¶ 25-26 (merely displaying a weapon
supports a conviction for aggravated menacing where the victim believed the

appellant would cause serious physical harm). In fact, the victim testified that she

was scared and terrified for her and her children’s safety. Accordingly, sufficient

evidence was presented supporting Primous’s conviction for aggravated menacing.

Primous was also charged with four counts of child endangering, in

violation of R.C. 2919.22(A), which provides that

No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis 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.

Primous contends on appeal that his convictions are not supported

by sufficient evidence because (1) he did not threaten the children, and (2) he is not

the children’s parent, guardian, custodian, person having custody or control, or

person in loco parentis of the children. The state maintains that Primous’s conduct

of entering the bedroom where the children were located and threatening their

mother with a gun created a substantial risk to the safety of the victim’s children.

We agree. However, we disagree with the state’s argument that Primous owed a

duty of care, protection, or support to the children because (1) he was the children’s

stepfather, and (2) he was in control of the children.

In order to be convicted of child endangering pursuant to R.C.

2919.22(A), the state must prove that the person who creates “a substantial risk to

the health or safety of the child, by violating a duty of care, protection, or support”
is a person “who is the parent, guardian, custodian, person having custody or

control, or person in loco parentis” of the child.1

The state first contends that Primous’s legal status as the children’s

stepfather places him a position to provide care, protection, and support to the child.

In support, the state cites to State v. Craig, 4th Dist. Gallia No. 01CA8, 2002-Ohio-

1433, ¶ 46, where the court simply stated, “[a]ppellant is [child victim’s] stepfather.”

However, a “stepparent” is not an identified relationship in R.C. 2919.22(A) that

automatically owes a duty of care. Rather, the identified relationships are “parents,

guardians, custodians, persons having custody or control, or person in loco

parentis.” This is not to say that “stepparents” cannot be included as one of these

classifications, but the legal status of “stepparent,” alone, does not subject an

individual to a criminal offense under R.C. 2919.22. The General Assembly could

have included stepparent as an identified class, but has chosen not to do so.

Compare R.C. 2907.03(A)(5), sexual battery, “offender is the other person’s natural

or adoptive parent, or a stepparent, or guardian, custodian, or person in loco

parentis of the other person”; R.C. 2919.25(F), domestic violence, defining “family

1 Subsection B expressly covers affirmative acts of torture, abuse or excessive acts
of corporal punishment, or disciplinary measures. Whereas subsection A is concerned
with circumstances of neglect, which is characterized as acts of omission rather than
commission. Accordingly, an inexcusable failure to act in discharge of one’s duty to
protect a child where such failure to act results in a substantial risk to the child’s health
or safety is an offense under R.C. 2919.22(A). State v. Kamel, 12 Ohio St.3d 306, 309,
466 N.E.2d 860 (1984); see also State v. Esper, 8th Dist. Cuyahoga No. 105069, 2017-
Ohio-7069, ¶ 12, quoting Committee Comment to R.C. 2919.22 (offense of neglect is “‘the
violation of a duty to care, protection, or support which results in a substantial risk to [the
child’s] health and safety.’”).
or household member” as “a parent or child of spouse, person living as a spouse, or

former spouse of the offender.”

Moreover, merely having the legal status as a stepparent does not

automatically cause the stepparent to stand in loco parentis to the stepchild. See

State v. White, 116 Ohio App. 522, 189 N.E.2d 160 (2d Dist.1962), paragraph five of

the syllabus; see also State v. Erwin, 1st Dist. Hamilton No. C-920293, 1993 Ohio

App. LEXIS 1127 (Feb. 24, 1992) (stepfather does not automatically stand in loco

parentis to the child of his wife, but if the stepfather takes the child into his home,

supports, educates, and assumes the duties of a parent, he consents to stand in loco

parentis to a stepchild).

R.C. 2919.22 does not define, “in loco parentis.” However, the Ohio

Supreme Court in State v. Noggle, 67 Ohio St.3d 31, 615 N.E.2d 1040 (1993), set

forth the following definitions:

The term “in loco parentis” means “charged, factitiously, with a
parent’s rights, duties, and responsibilities.” Black’s Law Dictionary
787 (6th Ed.1990). A person in loco parentis has assumed the same
duties as a guardian or custodian, only not through a legal proceeding.
A “person in loco parentis” was grouped with guardians and custodians
in the statute because they all have similar responsibilities.

The phrase “person in loco parentis” * * * applies to a person who has
assumed the dominant parental role and is relied upon by the child for
support. This statutory provision was not designed for teachers,
coaches, scout leaders, or any other persons who might temporarily
have some disciplinary control over a child. Simply put, the statute
applies to the people the child goes home to.

Id. at 33.
 The following factors should be considered when determining

whether a person is acting in loco parentis:

(1) the person is charged with a parent’s rights and responsibilities; (2)
the person has assumed the same duties as a guardian or custodian; (3)
the person has assumed a dominant parental role; (4) the child relies
upon the person for support; (5) the child “goes home” to the person;
(6) the person’s relationship with the child is close, supportive, and
protective; (7) the person has the intention of acting as a parent, which
is shown by the acts, conduct, and declaration of the person; (8) the
person intentionally assumes the obligations incidental to the parental
relationship; and (9) the person is the primary caretaker for the child
while the biological parent is absent due to, for example, employment.

State v. Abubakar, 10th Dist. Franklin No. 11AP-440, 2011-Ohio-6299, ¶ 10.

In this case, no testimony or evidence was presented that would

support any of these factors. Although Primous testified that he was married to the

children’s mother, paid a utility bill, and was on the lease of the residence, evidence

was also presented that Primous and the victim had an estranged relationship for

approximately five months, he did not pay the utility bills, he does not and had not

lived at the residence during those estranged months, he surrendered his keys to the

victim, and his name was removed from the lease. Absolutely no testimony was

presented regarding his interactions with the children on prior occasions, any

maintenance or supportive role he provided the children, or that he acted as a

“factitious” parent. Accordingly, the evidence is insufficient to find that Primous

was a person acting in loco parentis.

The state also contends that Primous “had control of the four children

as well as the victim” when he “forcefully gained entry to the home, without
permission, while in possession and brandishing a firearm.” (Emphasis added.)

The state seems to claim that the defendant’s actions or conduct satisfies the duty

element, i.e. custody or control, found in R.C. 2919.22(A). We disagree.

“[T]he phrase ‘custody or control,’ must mean something other than

in loco parentis, or the phrase becomes superfluous.” State v. Schoolcraft, 11th Dist.

Portage No. 91-P-2340, 1992 Ohio App. LEXIS 2782, 3 (May 29, 1992). “The

relationship must be more than a causal relationship, but something less than being

in loco parentis.” State v. Stout, 3d Dist. Logan No. 8-06-12, 2006-Ohio-6089, ¶ 17.

A “‘person having custody or control,’ can apply to someone physically entrusted

with the care of a child * * *.” State v. Kirk, 10th Dist. Franklin No. 93AP-726, 1994

Ohio App LEXIS 1189, 9 (Mar. 24, 1994). Moreover, the control over the child need

not be ongoing, but instead, may be temporary. State v. Brooks, 8th Dist. Cuyahoga

Nos. 75711 and 75712, 2000 Ohio App. LEXIS 1354, 25 (Mar. 30, 2000)

(grandmother who was providing temporary child care ignored child’s symptoms

and failed to seek medical care).

In cases where a person was found to have “custody or control” over

a child, a duty or an exercise of care to the children must be present. See, e.g., State

v. Curry, 8th Dist. Cuyahoga No. 105203, 2018-Ohio-4771 (defendant had custody

or control because he was babysitting the children, the children viewed him as an

authority figure); State v. Thompson, 2017-Ohio-9044, 101 N.E.3d 632 (7th Dist.)

(defendant exercised control over children despite mother’s presence because he

lived with the children, the children called him “dad,” he provided support in the
form of food stamps, and parental services such as cooking, household rule

enforcement, and child care); State v. Huffman, 8th Dist. Cuyahoga No. 93000,

2010-Ohio-5116, ¶ 30 (defendant had custody or control over nephew who was in

the backseat of the car); State v. Masterson, 8th Dist. Cuyahoga No. 88102, 2007-

Ohio-1145 (defendant in custody or control of child because he lived with the child

and child’s mother, and acted as if he were the child’s father); State v. Smith, 8th

Dist. Cuyahoga No. 68745, 1996 Ohio App. LEXIS 214 (Jan. 25, 1996) (grandfather

found to have “custody and control” over children where testimony showed children

and their mother lived with grandparents for over two years); Kirk (defendant who

saw and played with wife’s biological child on a daily basis, and the child referred to

defendant as his “buddy,” had more than a casual relationship, but less than a legal

relationship, sufficient evidence presented that defendant had control over the child

as they were playing on the swing set); Schoolcraft (person acting as a babysitter).

Based on the foregoing, we find that the term “custody or control”

refers to the relationship between the defendant and the child that creates the

defendant’s duty owed to the child. A person’s “custody or control” is not the action

or inaction that creates the substantial risk to the health or safety of the child.

In this case, no testimony was presented that Primous was a person

having custody or control over the children. Although Primous was married to the

victim and at one time lived with the victim and her children, no testimony was

presented that Primous took any responsibility or assumed any parental role toward

the children. Although one of the children testified that he considered Primous as
his “stepfather,” the other child did not refer to him as his stepfather, denied that

Primous ever lived with them, and denied that his mother and Primous were in a

relationship. Simply, the evidence was insufficient to prove that Primous was a

person who owed a duty to the children because he was a person having custody or

control over the children at the time of the incident as intended by R.C. 2929.22(A).

We find that Primous created a substantial risk to the health or safety

of the victim’s children, and arguably committed other criminal offenses. However,

in order to be convicted of child endangering, the additional element that he owed a

duty of care to the children by either his relationship to them or the role he

undertook to assume responsibility for them must also be proven beyond a

reasonable doubt. In this case, no such evidence was presented. Accordingly,

insufficient evidence was presented to support Primous’s convictions for child

endangering.

Primous’s first assignment of error is sustained in part and overruled

in part.

C. Manifest Weight of the Evidence

Primous contends in his second assignment of error that his

convictions are against the manifest weight of the evidence.

The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ * * *, declaring that ‘manifest weight’ and ‘legal sufficiency’

are ‘both quantitatively and qualitatively different.’” Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 10, quoting State v. Thompkins, 78

Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), paragraph two of the syllabus.

Weight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. * * * Weight is not a question of mathematics, but depends on its

effect in inducing belief.” Eastley at ¶ 12, quoting Thompkins at 387. In a manifest

weight analysis, this court sits as a ‘thirteenth juror,’ and reviews “‘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 [trier

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

conviction must be reversed and a new trial ordered.’” Thompkins at id., quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

We initially note that Primous makes no argument regarding his

conviction for aggravated burglary. Accordingly, we will not address this conviction

under this assignment of error. See App.R. 16(A)(7). Moreover, he does not

separately argue why his convictions for aggravated menacing and

telecommunications harassment are against the manifest weight evidence; rather he

asserts that those offenses should be reversed “for the same reasons that they are

not supported by sufficient evidence.” Accordingly, this court summarily rejects

Primous’s manifest-weight challenge to these convictions. Id.; State v. Sparent, 8th

Dist. Cuyahoga No. 96710, 2012-Ohio-586, ¶ 11.
 Primous, however, specifically challenges his convictions for the

firearm specifications because the victim did not disclose in her 911 dispatch calls

that Primous had a gun, and three different witnesses each provided a different

description of the gun.2 He further maintains that the victim was not believable and

his testimony was more consistent and credible.

Admittedly the victim did not tell 911 dispatch that Primous had a

gun. However, this detail does not render his convictions as being against the

manifest weight of the evidence. All three witnesses testified that Primous pointed

a gun at the victim. The children described the color of gun differently — gray and

black versus black with an orange handle — but each described it as being a

handgun. The children admitted that they were scared, and according to the victim,

were on the bedroom floor. These minor inconsistencies, compared with the

remaining unrefuted physical evidence, do not render Primous’s convictions as

being against the manifest weight of the evidence.

Primous admitted that he “mooshed” the victim in the face causing

her injuries. We note that the record before us does not explain how Primous

“mooshed” the victim’s face, but the record reveals that Primous demonstrated the

action during his testimony in front of the trial judge, who was the trier of fact in this

case. Accordingly, the trial judge was in the best position to determine whether the

2 Primous contends that his “conviction” for felonious assault is also against the
manifest weight of the evidence. However, as previously discussed, the felonious assault
offense merged with the aggravated burglary offense. Accordingly, this court will not
review the finding of guilt for felonious assault.
victim’s injury was more consistent with being “mooshed” or struck by a handgun in

the face.

Primous also places much emphasis on the fact that the court heard

testimony that shots were fired into the victim’s house after Primous fled from her

home. According to Primous, this testimony and evidence was irrelevant to the

charges against him and did not prove that he had a firearm on his person when he

assaulted the victim. Primous is correct. However, the firearm specifications

correlated with the aggravated burglary and felonious assault offenses; Primous was

not charged with any offense involving discharging a firearm into a residence.

Moreover, the evidence clearly demonstrates that the shots were fired into the

victim’s residence after the police were called to the hospital where Primous was

seeking medical treatment after allegedly getting shot himself. In a bench trial, the

trial judge is presumed to know the law and to consider only the relevant, material,

and competent evidence in arriving at a decision. See State v. Bays, 87 Ohio St.3d

15, 26-27, 716 N.E.2d 1126 (1999). The testimony about the subsequent gunshots

did not contribute to Primous’s convictions for the firearm specifications.

Accordingly, this is not the exceptional case where the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that Primous’s

convictions must be reversed.

D. Other Acts Evidence

In his fourth assignment of error, Primous contends that he was

deprived of a fair trial and due process by the admission of other acts and irrelevant
evidence. Specifically, he contends the testimony about shots being fired into the

victim’s home was irrelevant and prejudicial, and the state’s use of his prior

convictions was improper under Evid.R. 404(B).

As previously discussed, Primous was not charged with any offense

relating to the shots that were allegedly fired into the victim’s home, and the

evidence demonstrates that Primous was not in the area during this time. In fact,

the victim testified that she did not see who fired the shots into her home. Although

the testimony was irrelevant, we are again mindful that this was a bench trial where

the trial judge is presumed to know the law and to consider only the relevant,

material, and competent evidence in arriving at a decision. See Bays, 87 Ohio St.3d

at 26-27, 716 N.E.2d 1126.

Primous further contends that the state used improper and

prejudicial Evid.R. 404(B) other acts evidence during its closing when the state

remarked about Primous’s prior convictions for burglary and attempted carrying a

concealed weapon. Primous’s argument is without merit.

First, the state made these remarks during closing, which is not

evidence for the court to consider. See, e.g., State v. Manago, 38 Ohio St.2d 223,

227, 313 N.E.2d 10 (1974). Additionally, the state’s remarks in closing properly

referred to the prior convictions for impeachment. Reviewing the state’s entire

closing argument reveals that the state mentioned Primous’s prior convictions to

refute his credibility, and not as extrinsic evidence of Primous’s propensity to

commit the offenses charged. See, e.g., State v. Lane, 118 Ohio App.3d 230, 692
N.E.2d 634 (8th Dist.1997). Finally, the trial court heard Primous testify about his

prior convictions; thus, the court could consider those prior convictions in assessing

Primous’s credibility and whether to believe his version of events.

Accordingly, Primous was not denied a fair trial or due process. The

fourth assignment of error is overruled.

Judgment affirmed, in part, and reversed in part.

It is ordered that the parties share equally the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, in part, any bail pending is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., CONCURS; and
MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY