[This opinion has been published in Ohio Official Reports at
79 Ohio St.3d 193.]
THE STATE of OHIO, APPELLEE, v. MCGEE, APPELLANT.
[Cite as State v. McGee, 1997-Ohio-156.]
Criminal law–Endangering children–Existence of culpable mental state of
recklessness is an essential element under R.C. 2919.22(A).
The existence of the culpable mental state of recklessness is an essential element of
the crime of endangering children under R.C. 2919.22(A).
(Nos. 96-210 and 96-387–Submitted March 4, 1997–Decided July 16, 1997.)
APPEAL from and CERTIFIED by the Court of Appeals for Logan County, No.
8-94-38.
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{¶ 1} On February 22, 1994, DeAnna McGee learned that her twentymonth-old son Chad could remove the grate that covered the heating duct in his
bedroom. Chad had thrown toys into the duct and tried to retrieve them. McGee,
concerned for Chad’s safety, called her landlord to inform him that the grate was
not securely fastened.
{¶ 2} The landlord told McGee that she would be charged a fee if a
maintenance man secured the grate and removed the toys. McGee decided to ask
her boyfriend to help her. McGee’s boyfriend removed the toys, but neither she
nor he secured the grate.
{¶ 3} On February 24, 1994, Chad removed the grate, climbed into the
heating duct and became trapped. The heat emitted by the furnace severely burned
his lower extremities. The resulting loss of body fluid caused his heart to stop. He
died while still trapped within the heating duct.
{¶ 4} McGee was indicted for endangering children in violation of R.C.
2919.22(A). The case proceeded to a bench trial. When the prosecution concluded
its case-in-chief, McGee moved for a judgment of acquittal on the basis that the
SUPREME COURT OF OHIO
indictment did not allege and the evidence did not show recklessness, which,
McGee argued, is an essential element of child endangering under R.C. 2919.22(A).
The trial court overruled the motion, holding that negligence, not recklessness, is
the culpable mental state under R.C. 2919.22(A). McGee was found guilty and
sentenced to a definite term of imprisonment of one and one-half years. The court
of appeals affirmed the conviction, finding that “the culpable mental state described
in R.C. 2919.22(A) is negligence” and that “there [was] sufficient evidence before
the court to meet the negligence standard.”
{¶ 5} The court of appeals entered an order certifying its judgment as in
conflict with the judgments of the First, Fourth, Sixth, Ninth, Tenth, and Eleventh
District Courts of Appeals in State v. Barton (1991), 71 Ohio App.3d 455,
594
N.E.2d 702; State v. Meeker (Sept. 15, 1986), Ross App. No. 1146, unreported,
1986 WL 11029; State v. Gray (Apr. 29, 1988), Lucas App. No. L-87-204,
unreported,
1988 WL 39727; State v. Williams (1984),
21 Ohio App.3d 12, 21 OBR
13,
486 N.E.2d 113; State v. Wright (1986),
31 Ohio App.3d 232, 31 OBR 515,
510
N.E.2d 827; and State v. Schoolcraft (May 29, 1992), Portage App. No. 91-P-2340,
unreported,
1992 WL 276661. This court found that a conflict existed and ordered
that the cause, case No. 96-387, be consolidated with the discretionary appeal, case
No. 96-210.
75 Ohio St.3d 1424,
662 N.E.2d 26.
{¶ 6} The cause is now before this court.
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Gerald L. Heaton, Logan County Prosecuting Attorney, and Mark A. Losey,
Assistant Prosecuting Attorney, for appellee.
Marc S. Triplett, for appellant.
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PFEIFER, J.
{¶ 7} In this case, we are asked to determine whether recklessness is an
essential element of the crime of endangering children pursuant to R.C. 2919.22(A).
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January Term, 1997
We conclude that it is. Accordingly, we reverse the judgment of the court of
appeals and remand the cause to the trial court for further proceedings consistent
with this decision.
{¶ 8} R.C. 2919.22(A) states that “[n]o 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.”
{¶ 9} No degree of culpability is specified on the face of R.C. 2919.22(A).
R.C. 2901.21(B) states that “[w]hen the section [defining an offense] neither
specifies culpability nor plainly indicates a purpose to impose strict liability,
recklessness is sufficient culpability to commit the offense.”
{¶ 10} This court has previously held that the “[e]xistence of the culpable
mental state of recklessness is an essential element of the crime of endangering
children.” State v. Adams (1980), 62 Ohio St.2d 151,
16 O.O.3d 169,
404 N.E.2d
144, paragraph one of the syllabus (construing R.C. 2919.22[B][2]); State v.
O’Brien (1987),
30 Ohio St.3d 122, 30 OBR 436,
508 N.E.2d 144, paragraph one
of the syllabus (construing R.C. 2919.22[B][3]). In each case, the relevant statute
did not specify the required degree of culpability or plainly indicate that the General
Assembly intended to impose strict liability. The language of R.C. 2901.21(B) was
dispositive, and the required degree of culpability was held to be recklessness. See
Adams,
62 Ohio St.2d at 152-153,
16 O.O.3d at 170,
404 N.E.2d at 145-146;
O’Brien,
30 Ohio St.3d at 124, 30 OBR at 437,
508 N.E.2d at 146.
{¶ 11} While Adams and O’Brien involved R.C. 2919.22(B)(2) and
2919.22(B)(3), respectively, and this case involves R.C. 2919.22(A), we find no
reason to depart from their logic. R.C. 2919.22(A) neither specifies a degree of
required culpability nor plainly indicates that the General Assembly intended to
impose strict liability. Accordingly, we hold that the existence of the culpable
mental state of recklessness is an essential element of the crime of endangering
children under R.C. 2919.22(A).
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SUPREME COURT OF OHIO
{¶ 12} “[T]he Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged.” In re Winship (1970), 397 U.S. 358, 364,
90
S.Ct. 1068, 1073,
25 L.Ed.2d 368, 375; State v. Wilson (1996),
74 Ohio St.3d 381,
393,
659 N.E.2d 292, 306; State v. Jenks (1991),
61 Ohio St.3d 259, 263,
574
N.E.2d 492, 496. Recklessness is an essential element of the crime charged, and
the defendant was not found to have acted recklessly. Accordingly, we reverse the
judgment of the court of appeals and remand the cause to the trial court for further
proceedings consistent with this decision.
Judgment reversed
and cause remanded.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur.
RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in part.
DOUGLAS, J., dissents.
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ALICE ROBIE RESNICK, J., concurring in part and dissenting in part.
{¶ 13} I concur in the syllabus and the majority’s determination that
recklessness is the correct standard of proof in a child-endangering case. However,
I disagree with the majority’s statement that “the defendant was not found to have
acted recklessly.” The evidence in this case supports not only a negligence
standard, but also a reckless standard.
{¶ 14} “Reckless” is defined in R.C. 2901.22(C):
“(C) A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to
cause a certain result or is likely to be of a certain nature. A person is reckless with
respect to circumstances when, with heedless indifference to the consequences, he
perversely disregards a known risk that such circumstances are likely to exist.”
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January Term, 1997
{¶ 15} The appellant was well aware that her son was capable of removing
the grate and that he had placed items in the heating duct. In spite of this
knowledge, she left the child alone in this environment. The court could have found
from the evidence that appellant, with heedless indifference to the consequences,
had perversely disregarded a known risk.
{¶ 16} I would find not only that appellant acted negligently, but that she
acted recklessly, and I would affirm the conviction.
F.E. SWEENEY, J., concurs in the foregoing dissenting opinion.
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