State v. Miller

[Cite as State v. Miller, 2021-Ohio-684.]

COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 20CA009
:
JACOB MILLER :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Holmes County Court
of Common Pleas, Case No. 19CR027

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 9, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

SEAN WARNER JEFFREY G. KELLOGG
HOLMES COUNTY PROSECUTOR 5 S. Washington St.
Millersburg, OH 44654
ROBERT K. HENDRIX
164 E. Jackson St.
Millersburg, OH 44654
[Cite as State v. Miller, 2021-Ohio-684.]

Delaney, J.

{¶1} Defendant-Appellant Jacob Miller appeals the February 21, 2020 sentencing

entry of the Holmes County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶2} Deputy Brooke Yoder is an investigator with the Holmes County Sheriff’s

Department assigned to assist Children’s Services with child abuse complaints, child

neglect complaints, and welfare fraud investigations. On February 15, 2019, Deputy

Yoder was contacted by the Holmes County Children’s Services to investigate a burn

injury to a child. She and two Children’s Services case workers reported to the child’s

residence located in Millersburg, Holmes County, Ohio.

{¶3} Deputy Yoder met the owners of the residence. The owner told her that his

daughter, T.H. resided in the basement apartment with her boyfriend, Defendant-

Appellant Jacob Miller, and their two children. As they were speaking, Miller arrived at the

residence with the two children. Deputy Yoder saw that one of the children, identified as

Z.M., had a large white bandage covering the top of his left hand. Z.M. was four years

old.

{¶4} Miller, the children, Deputy Yoder, and the caseworkers went to the

basement apartment. The caseworkers spoke with the children in another room while

Deputy Yoder spoke with Miller. Deputy Yoder observed that the living area of the

basement apartment had a gas burning stove that was designed to look like a wood

burning stove. The top of the stove was attached to a metal chimney. The outside of the

stove was black metal with a glass window on the front. Through the glass window, she

could see fake wood logs and a gas flame. The gas stove was adjusted with a remote
[Cite as State v. Miller, 2021-Ohio-684.]

thermostat and would automatically ignite depending on the thermostat setting. The top

of the stove had multiple layers of casing and did not get as hot as the glass window on

the front of the stove.

{¶5} Deputy Yoder asked Miller what happened to Z.M.’s left hand. Miller said

on February 8, 2019, Z.M. walked up and put his hand on the stove for just a second. He

pulled Z.M. away but Z.M. burned his hand. He stated that Z.M. lies all the time. Miller

and T.H. did not seek medical attention for the burn, but used antibiotic ointment and

bandaged it.

{¶6} The caseworker took the bandage off Z.M.’s hand and Z.M. said his hand

hurt. Deputy Yoder said there was a large pealing wound across the top of his left hand,

about one and a half inches in diameter. The inside of the wound was pinkish and yellow,

there was some bloody areas, but it appeared the outside of the wound was starting to

heal.

{¶7} When asked how he burned his hand, Z.M. told the caseworker that Miller

caused it. Z.M. showed them the stove and touched the top of the stove. Deputy Yoder

asked Miller again how Z.M. burned his hand. Miller said they were playing a game and

Z.M. was running in the living area saying “roast me.” Miller took Z.M.’s hand and put it

on top of the stove, but it wasn’t hot, so he moved it to the glass window. Miller held Z.M.’s

hand to the glass for three to four seconds, long enough to cause a burn. He said Z.M.

tried to pull his hand away.

{¶8} He told Deputy Yoder that he did not tell her this first because of his past.

Miller had been previously convicted of domestic violence and child endangering, which

involved Z.M.
[Cite as State v. Miller, 2021-Ohio-684.]

{¶9} Deputy Yoder placed Miller under arrest for domestic violence.

{¶10} On March 4, 2019, Miller waived an indictment and he pled not guilty to a

Bill of Information:

1. Felonious assault, a felony of the second degree in violation of R.C.

2903.11(A)(1) and (D)(1)(a);

2. Domestic violence, a felony of the third degree in violation of R.C.

2919.25(A) and (D)(4);

3. Endangering children, a felony of the second degree in violation of R.C.

2919.22(B)(3) and (E)(3);

4. Endangering children, a felony of the second degree in violation of R.C.

2919.22(B)(3) and (E)(3);

5. Endangering children, a felony of the second degree in violation of R.C.

2919.22(B)(1) and (E)(2)(d); and

6. Endangering children, a felony of the second degree in violation of R.C.

2919.22(A) and (E)(2)(b).

{¶11} Miller filed a written plea of not guilty by reason of insanity. The case was

stayed pending a report from the Forensic Diagnostic Center. The trial court held a NGRI

hearing on June 26, 2019 where both parties stipulated to the evaluation report.

{¶12} The matter went to a jury trial on February 18, 2020.

{¶13} Deputy Yoder first testified to her investigation on February 15, 2019. After

she arrested Miller, Deputy Yoder followed up with T.H. in July 2019. When Deputy Yoder

first attempted contact with T.H., T.H. would not speak to her or let her speak with the

children. Deputy Yoder obtained a search warrant and served it on T.H. T.H. took the
[Cite as State v. Miller, 2021-Ohio-684.]

warrant, went back into the house, and then brought out Z.M. Deputy Yoder examined

his left hand and it appeared that he had makeup covering his left hand and blended into

his forearm. T.H. admitted to covering the scar on Z.M.’s hand with makeup and she was

charged with tampering with evidence, to which she pled guilty.

{¶14} The State next offered the testimony of Dr. Paul McPherson, a specialist in

child abuse pediatrics with Akron Children’s Hospital. In February 2019, Dr. McPherson

received photographs of Z.M.’s left hand from Children’s Services. He did not examine

Z.M. in person. Dr. McPherson referred Z.M. to a burn specialist in Cleveland, Ohio.

{¶15} Dr. McPherson testified it was his opinion to a reasonable degree of medical

certainty that Z.M. suffered a second degree burn and some portions could be a third

degree burn on the top of his left hand. The injury Z.M. suffered was consistent with a

contact burn. Z.M. would have been in pain at the time of the injury and the pain from a

burn continues to evolve after the withdrawal from an object. Miller did not seek medical

care for Z.M. after the injury. Dr. McPherson said Z.M. should have received medical

attention after the injury because the burn was deep enough to risk infection. The scar on

the top of Z.M.’s hand would leave some indication on his skin and could affect the

functionality of his hand in the future. Dr. McPherson reviewed the burn specialist report

from November 2019, which found no contractures and that the burn was likely a second

degree burn.

{¶16} Miller testified on his own behalf. On February 8, 2019, he and T.H. took

the children to McDonalds for dinner. He remembered it was a warm day. After they got

home from McDonalds, T.H. and one of the children went to bed. Z.M. and Miller were

watching television in the living area and then played with toys. They started a game of
[Cite as State v. Miller, 2021-Ohio-684.]

tag where Miller would run after Z.M. and catch him. Z.M. would get away and Miller would

catch him again. While they were playing, Miller said that Z.M.

started to say roast me, roast me and then in a joking manner and uh, he

ended up by the, by the stopping by the stove while we while I was chasing

him and uh, I jokingly laced his hand on top of the stove and uh, he laughed

and said, oh well that’s not even hot and then started running away again

and uh, I kept chasing him for a while and uh, he ended up in front of the

stove again and he was still saying roast me and um. * * *

(T. 143).

{¶17} Miller said Z.M. used the phrase “roast me” because he had told Z.M. to

stay away from the stove or he would get roasted. They continued to play tag and ended

up by the stove again, facing each other. Miller said, “the second time that we’re by the

stove I uh, had taken his hand again and uh, put it to the glass part of the stove.” (T. 144).

Z.M. immediately jerked back and Miller looked at his hand. He saw a red spot. Z.M.

started crying and Miller took him to the bathroom to run water over it. Miller was able to

get Z.M. calmed down and T.H. put antibiotic ointment on his hand.

{¶18} Miller did not think the stove had been running. He did not see flames in the

stove and the apartment did not feel warm. Miller did not adjust the thermostat for the gas

stove; T.H. controlled the temperature on the stove. Miller testified that he did not put

Z.M.’s hand on the stove to punish Z.M; they were just playing. When he punished the

children, he spanked them.

{¶19} When Miller spoke to Deputy Yoder, he was afraid to tell her that he put

Z.M.’s hand on the stove. He had previous experience with Children’s Services and was
[Cite as State v. Miller, 2021-Ohio-684.]

afraid to say anything that might get him into trouble. He had lost custody of his oldest

child for two years, but he successfully completed his case plan, which included

counseling and parenting classes.

{¶20} On the day of the injury, T.H. testified she had turned down the stove to 45

degrees. When the family got home from McDonalds right before Z.M. was injured, the

apartment was very warm and she saw the thermostat for the gas stove was turned up to

80 degrees. She set it back down to 45 degrees. She did not see the incident, but from

the bedroom, she could see Z.M. and Miller running in the living area. After Miller was

arrested, T.H. took Z.M. to Urgent Care, which gave Z.M. ointment for the burn.

{¶21} Based on the evidence presented, the jury rendered its decision. It could

not come to a unanimous written verdict on Count 1, Felonious Assault and the State

dismissed the charge. The jury found Miller not guilty of Count 3 and Count 4,

Endangering Children. The jury found Miller guilty of Count 2, Domestic Violence; and

Counts 5 and 6, Endangering Children. The trial court set the matter for a sentencing

hearing and ordered a pre-sentence investigation.

{¶22} At the sentencing hearing held on April 2, 2020, the trial court sentenced

Miller to two years in prison on Count 2, six years in prison on Count 5, and two years in

prison on Count 6. The sentences were to be served concurrently. (Sentencing Entry,

Feb. 21, 2020).

{¶23} It is from this sentencing entry that Miller now appeals.

ASSIGNMENTS OF ERROR

{¶24} Miller raises one Assignment of Error:
[Cite as State v. Miller, 2021-Ohio-684.]

{¶25} “I. THE APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

ANALYSIS

{¶26} Miller argues in his sole Assignment of Error that his convictions for

Domestic Violence and Endangering Children were against the manifest weight of the

evidence.

Standard of Review

{¶27} The criminal manifest-weight-of-the-evidence standard was explained in

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), in which the Court

distinguished between “sufficiency of the evidence” and “manifest weight of the evidence,”

finding that these concepts differ both qualitatively and quantitatively. Id. at 386. The

Court held that sufficiency of the evidence is a test of adequacy as to whether the

evidence is legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence's effect of inducing belief. Id. at 386–387. “In other

words, a reviewing court asks whose evidence is more persuasive -- the state's or the

defendant's?” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶

25. The Court noted that although there may be sufficient evidence to support a judgment,

it could nevertheless be against the manifest weight of the evidence. Thompkins, supra

at 387. “When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’

and disagrees with the factfinder's resolution of the conflicting testimony.” Id., citing Tibbs

v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
[Cite as State v. Miller, 2021-Ohio-684.]

{¶28} To evaluate a manifest-weight claim, a court must review the entire record,

weigh the evidence and all reasonable inferences, and consider the credibility of

witnesses. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶

328. The court must decide whether “ ‘the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed.’ ” Id., quoting State

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

Mens Rea

{¶29} Miller argues his convictions for domestic violence and endangering

children were against the manifest weight of the evidence because the jury lost its way

when it found he formed the requisite mens rea at the time of the alleged offense. We

disagree.

{¶30} The jury convicted Miller of domestic violence, in violation of R.C.

2919.25(A) and (D)(4). R.C. 2919.25 defines domestic violence as:

(A) No person shall knowingly cause or attempt to cause physical harm to

a family or household member.

***

(D)(4) If the offender previously has pleaded guilty to or been convicted of

two or more offenses of domestic violence or two or more violations or

offenses of the type described in division (D)(3) of this section involving a

person who was a family or household member at the time of the violations

or offenses, a violation of division (A) or (B) of this section is a felony of the

third degree, and, if the offender knew that the victim of the violation was

pregnant at the time of the violation, the court shall impose a mandatory
[Cite as State v. Miller, 2021-Ohio-684.]

prison term on the offender pursuant to division (D)(6) of this section, and a

violation of division (C) of this section is a misdemeanor of the first degree.

{¶31} R.C. 2901.22(B) defines when a person acts “knowingly”: “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.”

{¶32} The jury also convicted Miller of two counts of endangering children. Count

Five stated Miller violated R.C. 2919.22(B)(1) and (E)(2)(d). The statute reads:

(B) No person shall do any of the following to a child under eighteen years

of age * * *:

(1) Abuse the child;

***

(E)(2) If the offender violates division (A) or (B)(1) of this section,

endangering children is one of the following, and, in the circumstances

described in division (E)(2)(e) of this section, that division applies:

***

(d) If the violation is a violation of division (B)(1) of this section and results

in serious physical harm to the child involved, a felony of the second degree.

A successful conviction under R.C. 2919.22(B)(1) requires the State to prove beyond a

reasonable doubt that: (1) the child is under the age of 18 years of age; (2) an affirmative

act of abuse occurred; and (3) the defendant recklessly committed the act of abuse. State

v. Swain, 4th Dist. Ross No.01CA2591, 2002-Ohio-414, *7. R.C. 2901.22(C) provides:

A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk
[Cite as State v. Miller, 2021-Ohio-684.]

that the person's 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, the person

disregards a substantial and unjustifiable risk that such circumstances are

likely to exist.

{¶33} The jury also found Miller guilty of Count Six, endangering children, which

was in violation of R.C. 2919.22(A) and (E)(2)(b). The portions of the statute read:

(A) 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. * * *

***

(E)(2) If the offender violates division (A) or (B)(1) of this section,

endangering children is one of the following, and, in the circumstances

described in division (E)(2)(e) of this section, that division applies:

***

(b) If the offender previously has been convicted of an offense under this

section or of any offense involving neglect, abandonment, contributing to

the delinquency of, or physical abuse of a child, except as otherwise

provided in division (E)(2)(c) or (d) of this section, a felony of the fourth

degree;

{¶34} A successful conviction under R.C. 2919.22(A) requires the State to prove

that: (1) a person having custody or control over (2) a child under 18 years of age (3)

recklessly created a substantial risk to the health or safety of the child (4) by violating a
[Cite as State v. Miller, 2021-Ohio-684.]

duty of care, protection, or support. State v. Swain, 2002-Ohio-414, *7. “ ‘Substantial risk’

means a strong possibility, as contrasted with a remote or significant possibility, that a

certain result may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).

The culpable mental state under R.C. 2919.22(A) is recklessness.

{¶35} In his appellate brief, Miller states he does not challenge the evidence going

to other elements of domestic violence and/or endangering children. He does not dispute

the injury Z.M. incurred on February 8, 2019 meets the legal definition of “serious physical

harm.” Miller also does not dispute that he placed Z.M.’s hand on the stove, which caused

the serious physical harm to Z.M.

{¶36} Miller argues there was a conflict in evidence related to his state of mind at

the time of Z.M.’s injury. The State presented evidence that Miller placed Z.M.’s hand on

the stove’s glass window with the intention to burn his hand or in the alternative, he

perversely disregarded a known risk that the placing his son’s hand on the glass would

cause a burn. Miller states he presented evidence that he did not know the stove was

operating and therefore, he believed the stove was incapable of causing injury at that

time.

{¶37} As the trier of fact, the jury was required to determine the credibility of the

witnesses and the weight to be accorded their testimony. State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212, at paragraph one of the syllabus. Moreover, “[a] conviction is not

against the manifest weight of the evidence solely because the jury heard inconsistent

testimony.” State v. Gaver, 5th Dist. Stark No. 2015CA00204, 2016-Ohio-7055, 2016 WL

5610107, ¶ 58 citing State v. Humphries, 5th Dist. Stark No. 06CA00156, 2008–Ohio–
[Cite as State v. Miller, 2021-Ohio-684.]

388, ¶ 37, citing State v. Kendall, 10th District Franklin No. 00AP–1098, unreported (June

29, 2001).

{¶38} T.H. and Miller testified that Miller did not control the temperature of the

stove. T.H. stated when the family got home from McDonalds on the day of the injury, the

apartment was warm and the stove temperature was set at 80 degrees. She said she

turned the stove down to 45 degrees but it is unknown how long that was before the injury.

Miller testified he thought the stove was off because he did not see flames.

{¶39} 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. State v. Gaver, 5th Dist. Stark No. 2015CA00204, 2016-

Ohio-7055, 2016 WL 5610107, ¶ 54. “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.” R.C. 2901.22(B). The evidence in this case showed that Miller had

previously warned his child to stay away from the stove because it would burn him or, in

the words used by Miller, “roast him.” On the day of the injury, Miller stated that Z.M.

asked his father to play chase and “roast him.” According to this testimony, a four-year-

old child was aware the stove could burn him. Miller testified he intentionally placed his

son’s hand on the stove that he had warned his child to stay away from because he could

be burned. Deputy Yoder testified that Miller told her he took Z.M.’s hand and put it on

top of the stove, but it wasn’t hot, so he moved it to the glass window. Within seconds of

placing his hand on the glass window, Z.M. suffered a second degree burn.

{¶40} Based upon the entire record in this matter, we find Miller’s convictions are

not against the manifest weight of the evidence. To the contrary, the jury appears to have
[Cite as State v. Miller, 2021-Ohio-684.]

fairly and impartially decided the matters before them because Miller was acquitted upon

Counts Two and Three, Endangering Children, and could not reach a verdict on Count

One, Felonious Assault. The jury as a trier of fact can reach different conclusions

concerning the credibility of the testimony of the state's witnesses and the defendant's

witnesses. See, State v. Aeschilmann, 5th Dist. Stark No.2013CA00192, 2014–Ohio–

4462. This Court will not disturb the jury's finding if it is supported by competent evidence.

Id., citing State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the

witnesses, evaluated the evidence, and was convinced of Miller’s guilt.

{¶41} Miller’s sole Assignment of Error is overruled.

CONCLUSION

{¶42} The judgment of the Holmes County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.