[Cite as State v. Perez,
2020-Ohio-100.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108245
v. :
JEZEEL ACOSTA PEREZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 16, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-632418-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Paul, Assistant Prosecuting
Attorney, for appellee.
Michael E. Stepanik, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Jezeel Acosta Perez (“Perez”) appeals his
convictions and asks this court to reverse his convictions and remand for a new trial.
We affirm.
Perez was convicted of domestic violence, a fourth-degree felony, in
violation of R.C. 2919.25; and endangering children, a fourth-degree felony, in
violation of R.C. 2919.22(A). Perez was sentenced to 120 days in jail and placed on
two years of community control.
I. Facts and Procedural History
On the morning of August 25, 2018, Perez and his 16-year-old step-
son, V.S., went to the barbershop and Walmart. Upon returning home, V.S. noticed
that his little brothers had opened a box of Legos that Perez had previously told the
children not to touch. V.S. stated that the Legos were kept in his 11-year-old sister’s,
J.G., top dresser drawer. Once Perez saw the children playing with the Legos, V.S.
stated that Perez grabbed J.G., placed her on the couch, and began hitting her on
her back multiple times with a closed fist.
V.S. stated that J.G. was screaming and crying until their mother
Jesica, Perez’s wife, ran into the living room. According to V.S., Jesica told Perez to
let J.G. go, but when he did not, Jesica punched Perez in the eye. Jesica grabbed
J.G. and took her into the master bedroom and attempted to shut the door, but Perez
went after them. As Perez attempted to grab Jesica, V.S. got in between Perez and
Jesica, which allowed Jesica and J.G. to run to the bathroom. According to V.S.,
Perez followed them into the bathroom and grabbed J.G. by the neck from the back.
V.S. testified that Jesica pushed Perez away and Perez almost pushed Jesica into the
bathtub. V.S. then tried to separate Perez and Jesica, but Perez pushed him away.
Jesica then tried to run into V.S.’s room, but Perez grabbed Jesica by her neck, pulled
her down to the ground, and began hitting her.
V.S. grabbed Perez and placed him in a choke hold so that Jesica and
J.G. could escape out of the house. Jesica and J.G. ran downstairs to the neighbor’s
residence, while V.S. held Perez. Once V.S. let Perez go, V.S. testified that Perez ran
after Jesica. After a discussion between Jesica and Perez, Perez left the home. Later
on that evening, Perez, according to V.S., told Jesica that she must either “choose
your son or you choose me.” (Tr. 266.)
J.G. then testified that when Perez and V.S. returned from getting
haircuts and Walmart, Perez saw that the children were playing with his Legos.
Perez grabbed her arm, turned her over and with a regular hand started hitting her
on her butt and with his fist on her back. (Tr. 278.) J.G. stated that Jesica told Perez
to stop, and when he did not, Jesica hit Perez. Thereafter, J.G.’s testimony was
similar to V.S.’s testimony regarding Perez chasing her and Jesica throughout the
home until they were able to run outside. After the entire altercation, J.G. testified
that the family went to church to decorate for the Pastor’s anniversary. J.G.
complained to Jesica that her back hurt. The next morning, Jesica took J.G. to the
hospital because J.G. stated that her back still hurt. At the hospital, pictures and X-
rays were taken of J.G.’s back. J.G. stated that her back had bruises for a week.
Perez testified that when he and V.S. returned home from the
barbershop and Walmart, he saw the younger children playing with his Legos, and
J.G. was in the living room watching television. Perez testified that he observed
several damaged boxes and thousands of Legos on the floor. Perez had purchased
the retired Lego sets as an investment. Perez planned on keeping the Legos until
their value increased and use the profits for a down payment on a house for the
family.
When Perez asked J.G. about the children playing with the Legos, he
felt as if she was lying to him. This upset Perez, and he commenced with physically
disciplining her. According to Perez, he only struck J.G. on her buttocks, and as he
was spanking J.G., Jesica came out of the bedroom and punched Perez in the head
about four to six times. Perez stated that he only pushed Jesica away from him to
stop her from punching him in the head. He also stated that after Jesica told him to
stop hitting J.G., he stopped when he realized that he hit her more than he should
have.
Perez was charged with three counts of domestic violence and two
counts of endangering children. At the end of the state’s case, the defense’s motion
for acquittal as it pertains to Counts 4 and 5, domestic violence and endangering
children against V.S., was denied. At the conclusion of the trial, Perez’s motion for
acquittal pursuant to Crim.R. 29 was again denied. After a review of the jury
instructions with counsel, the trial court reversed its decision as it pertained to
Count 4. The trial court granted Perez’s motion for acquittal for the domestic
violence charge against V.S. Perez’s counsel did not request a jury instruction for
parental discipline. Additionally, the trial court did not provide a parental discipline
jury instruction to the jury. Perez was found guilty of one count of domestic violence
and one count of endangering children, both counts related to J.G. The jury found
Perez not guilty on the remaining charges. Perez filed this appeal assigning two
errors for our review:
I. Appellant was denied the effective assistance of counsel
guaranteed by the Sixth and Fourteenth Amendments to the
U.S. Constitution and Article I, Section 10 of the Ohio
Constitution when defense counsel failed to assert the
affirmative defense of parental discipline and request the
corresponding jury instruction; and
II. The trial court committed plain error by failing to give the jury
instructions regarding the affirmative defense of parental
discipline.
II. Ineffective Assistance of Counsel
A. Standard of Review
To establish a claim for ineffective assistance of counsel, Perez must
show his trial counsel’s performance was deficient, and that the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674
(1984); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373 (1989). To establish
prejudice, the defendant must demonstrate there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”
Strickland at 694.
In evaluating a claim of ineffective assistance of counsel, a court must
give great deference to counsel’s performance. Id. at 689. “A reviewing court will
strongly presume that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” State v.
Pawlak, 8th Dist. Cuyahoga No. 99555,
2014-Ohio-2175, ¶ 69. Thus, “[t]rial strategy
or tactical decisions cannot form the basis for a claim of ineffective counsel.” State
v. Foster, 8th Dist. Cuyahoga No. 93391,
2010-Ohio-3186, ¶ 23, citing State v.
Clayton,
62 Ohio St.2d 45,
402 N.E.2d 1189 (1980). Additionally, the failure to do a
futile act cannot be the basis for claims of ineffective assistance of counsel, nor could
such a failure be prejudicial. State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-
Ohio-1228, at ¶ 37.
B. Whether Appellant was Denied the Effective
Assistance of Counsel when Defense Counsel Failed to
Assert the Affirmative Defense of Parental Discipline
and Request the Corresponding Jury Instruction
In Perez’s first assignment of error, he contends that his defense
counsel was ineffective because counsel did not assert the affirmative defense of
parental discipline and request a jury instruction. “‘Proper and reasonable parental
discipline can be an affirmative defense to a charge of domestic violence.’”
Westlake v. Y.O., 8th Dist. Cuyahoga No. 107226, 2019-Ohio-2432, ¶ 23, quoting
State v. Hart,
110 Ohio App.3d 250, 254,
673 N.E.2d 992 (3d Dist.1996). Also,
“[p]arental discipline is an affirmative defense to a charge of child endangering.”
State v. Cook, 5th Dist. Fairfield No. 18-CA-43,
2019-Ohio-3650, ¶ 48.
At trial Perez’s defense counsel did not assert parental discipline as
an affirmative defense. During Perez’s direct examination, he testified that both he
and his wife would discipline the children by first giving a time out, then pulling an
ear, and then maybe spanking. However, spanking was always a last resort.
(Tr. 348-350.)
Perez asserted at trial that he was just disciplining J.G for allowing
the younger children to open the Lego boxes and play with them. However,
[n]othing in the domestic relations statute prevents a parent from
properly disciplining his or her child. State v. Suchomski, 58 Ohio
St.3d 74, 75,
567 N.E.2d 1304 (1991). The only prohibition is that a
parent may not cause “physical harm” as that term is defined in
R.C. 2901.01. Id. R.C. 2901.01(A)(3) states that: “Physical harm to
persons” means any injury, illness, or other physiological impairment,
regardless of its gravity or duration. Injury is defined as “… [t]he
invasion of any legally protected interest of another.” Suchomski,
citing Black’s Law Dictionary (6 Ed.1990) 785.
A child does not have any legally protected interest that is invaded by
proper and reasonable parental discipline. Suchomski; State v. Luke,
[3d Dist.] Union No. 14-10-26, 2011-Ohio-4330, ¶ 21. “Proper” has
been defined as “suitable or appropriate,” and “reasonable” has been
defined as “not extreme or excessive.” Luke.
State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, ¶ 23-24.
Nonetheless, the evidence introduced at trial demonstrates that Perez
did not give J.G. a time out, pull an ear or give a last resort spanking. V.S. testified
that Perez became furious and placed J.G. face down on the couch, hitting her on
the back with a closed fist. J.G. testified that Perez was mad, grabbed her arm
making “two marks” that “stayed for three days,” turned her over and hit her butt
with a “regular hand” and then Perez started hitting her back with a fist. (Tr. 278.)
J.G. stated that it hurt and she responded to the state’s question regarding being
punched before in the negative. (Tr. 278-279.) J.G. continued by stating that her
mom heard her crying, came out of the room, and instructed Perez to stop hitting
her, but Perez did not listen. The state introduced photo evidence of extensive
bruising on J.G.’s back. Also at trial, Perez stated, “[a]fter Jesica asked me to stop
hitting the child, after I stopped hitting the child, I had tried to apologize because I
knew at that time I realized you know that maybe I hit her more than I should have.
You know, I’m not proud of what happened. I’m not justifying anything that
happened.” (Tr. 354.) On cross, he stated, “I realized that I had spanked her more
than I should have and I apologized.” (Tr. 370.) Perez also admitted that he had
taken things too far. (Tr. 373.)
Perez’s counsel did not explicitly assert the defense of parental
discipline but had Perez talk about his methods of parental discipline before the jury.
However,
[b]ecause of the difficulties inherent in making the evaluation of
counsel effectiveness after the fact, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.
Strickland, 466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674, at 689-
690.
State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, ¶ 52. If
the trial court believed Perez caused physical harm to J.G., it might have rejected
the parental discipline defense. See Suchomski,
58 Ohio St.3d at 75. “We find the
challenged actions are nothing more than the product of sound trial strategy that
falls squarely within the wide range of reasonable professional assistance.
Strickland at 689.” Zielinski, at ¶ 57.
Perez also asserts that his trial counsel was deficient because counsel
failed to request the jury instruction regarding the affirmative defense of parental
discipline. Perez must demonstrate that counsel’s failure “fell below an objective
standard of reasonable representation and violated essential duties to the client,”
State v. Gaul, 5th Dist. Stark No. 1998CA00272, 2000 Ohio App. LEXIS 4601
(Sept. 25, 2000), and demonstrates “a showing of actual prejudice by counsel’s
ineffectiveness such that but for the counsel’s unprofessional error the outcome of
the trial would have been different.”
Id. A court may dispose of a case by considering
the second prong first, if that would facilitate disposal of the case. State v. Bradley,
42 Ohio St.3d 136, 143,
538 N.E.2d 373 (1989), citing Strickland,
466 U.S. at 697.
Perez does not demonstrate how the outcome of the trial would have
been different. Before the jury deliberated on the case, the trial court dismissed one
of the counts of domestic violence, and the jury found Perez not guilty of one count
of domestic violence and one count of endangering children. This demonstrates
that the trial court as well as the jury thoughtfully considered the evidence as it
related to each count of the indictment. However, the jury did find Perez guilty of
domestic violence and endangering children related to the evidence provided at trial
as it related to J.G. As such, we cannot not find that trial counsel was ineffective for
not requesting a jury instruction that was inappropriate in regards to the evidence
presented to the jury and an accurate statement of law. See Gaul, 5th Dist. Stark
No. 1998-CA-00272, 2000 Ohio App. LEXIS 4601.
Therefore, Perez’s first assignment of error is overruled.
III. Jury Instructions
A. Whether the Trial Court’s Failure to Give the Jury
Instructions Regarding the Affirmative Defense of
Parental Discipline was Plain Error
Perez argues that the trial court erred by not giving the jury
instruction to consider the defense of parental discipline. Perez’s counsel did not
request a jury instruction, so all but plain error is waived. State v. Edgerson, 8th
Dist. Cuyahoga No. 101283, 2015-Ohio-593, ¶ 15.
Under Crim.R. 52(B), a plain error affecting a substantial right may
be noticed by an appellate court even though it was not brought to the
attention of the trial court. However, an error rises to the level of plain
error only if, but for the error, the outcome of the proceedings would
have been different. State v. Harrison, 122 Ohio St.3d 512, 2009-
Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long,
53 Ohio St.2d 91, 97,
372 N.E.2d 804 (1978). “Notice of plain error … is to be taken with
the utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice.” Long at 97.
State v. Bouie, 8th Dist. Cuyahoga No. 108095,
2019-Ohio-4579, ¶ 42.
We find that the trial court did not commit plain error by not
providing the jury with the instruction that they could consider the affirmative
defense of parental discipline.
A trial court is provided the discretion to determine whether the
evidence adduced at trial was sufficient to require an instruction.
State v. Fulmer, 117 Ohio St.3d 319, 326,
2008-Ohio-936,
883 N.E.2d
1052. A trial court does not err in failing to instruct the jury on an
affirmative defense where the evidence is insufficient to support the
instruction. State v. Palmer, 80 Ohio St.3d 543, 564,
1997-Ohio-312,
687 N.E.2d 285.
Cleveland v. Beasley, 8th Dist. Cuyahoga No. 92539,
2010-Ohio-769, ¶ 33.
Additionally,
[i]n determining whether the presence of sufficient evidence exists in
the record to support the giving of a proposed jury instruction, an
appellate court should determine whether the record contains
evidence from which reasonable minds might reach the conclusion
sought by the instruction. State v. Risner, 120 Ohio App.3d 571, 574,
698 N.E.2d 511 (3d Dist.1997). However, a trial court does not err in
failing to instruct the jury on an affirmative defense where the
evidence is insufficient to support the instruction. State v. Melchior,
56 Ohio St.2d 15, 21-22,
381 N.E.2d 195 (1978).
State v. Hinton, 8th Dist. Cuyahoga
No. 99581, 2014-Ohio-490, ¶ 34.
Perez was charged with domestic violence and endangering children
with J.G. as the victim. The evidence presented at trial demonstrated that Perez
became furious after discovering that his Legos were opened. Perez grabbed J.G. by
the arm, bent her over the couch, and begin hitting her on the butt. Initially, Perez
hit J.G. with a “regular hand” but he then began to hit her on the back with a fist.
Upon hearing J.G. crying her mother, Jesica, attempted to stop Perez by requesting
him to “let her go. Don’t punch her.” (Tr. 292.) When Perez continued punching
J.G., Jesica stated that “I saw my daughter in danger facing even death I had to take
action to defend my daughter.” Id., Jesica punched Perez around the eye. Jesica
and J.G. ran into the bedroom but Perez followed. Jesica stated that she tried to
shut the door but Perez hit the door hard and it opened. Perez then stated “you know
I’m going to continue. You know that I’m mad.” (Tr. 293.) Perez continued
aggressively following them throughout the house until V.S. placed Perez in a choke
hold so that Jesica and J.G. could run out of the house. Perez testified that he went
too far and was apologetic.
We find nothing in the record that supports a jury instruction for
parental discipline as an affirmative defense.
The elements of the crime of domestic violence (R.C. 2919.25[A]) are
that a charged defendant must have knowingly caused, or attempted
to cause, physical harm to a family or household member.
R.C. 2901.01(C) provides that:
“‘Physical harm to persons’ means any injury, illness, or other
physiological impairment, regardless of its gravity or duration.”
(Emphasis added.)
State v. Suchomski, 58 Ohio St.3d 74,
567 N.E.2d 1304 (1991).
Therefore, we determine that the trial court did not commit plain
error by not instructing the jury to consider the affirmative defense.
Perez’s second assignment of error is overruled.
Judgment is affirmed.
It is ordered that the appellee recover from appellant 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
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
RAYMOND C. HEADEN, J., CONCUR
