[Cite as State v. Bell,
2021-Ohio-899.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-P-0060
- vs - :
ASHLIE R. BELL, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No. K
2019 CRB 756.
Judgment: Affirmed in part; reversed and vacated in part; remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Charles Tyler, Sr., 137 S. Main Street, Suite 206, Akron, Ohio 44308 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Ashlie R. Bell, appeals her misdemeanor convictions of assault
and endangering children, following a bench trial in the Kent Division of the Portage
County Municipal Court. The trial court sentenced Bell on each count to 180 days in jail
to be served concurrently and a $1000.00 fine, with 120 days and $500.00 suspended
upon compliance with conditions. The trial court granted a stay of sentence pending
appeal. We reverse and vacate the conviction of endangering children, affirm the finding
of guilt as to assault, and remand for the trial court to enter sentence accordingly.
{¶2} R.C. 2151.23(A)(6) confers exclusive original jurisdiction on the juvenile
court to “hear and determine all criminal cases in which an adult is charged with”
endangering children in violation of R.C. 2919.22(B)(1), “provided the charge is not
included in an indictment that also charges the alleged adult offender with the commission
of a felony arising out of the same actions that are the basis of the alleged violation[.]”
{¶3} Here, the state of Ohio acknowledges that the trial court, a municipal court,
did not have jurisdiction to try Bell on the charge of endangering children. Accordingly,
Bell’s conviction for endangering children in violation of R.C. 2919.22(B)(1) is void and is
hereby vacated. See Patton v. Diemer, 35 Ohio St.3d 68,
518 N.E.2d 941 (1988),
paragraph three of the syllabus (“A judgment rendered by a court lacking subject matter
jurisdiction is void ab initio.”) and State v. Wilson,
73 Ohio St.3d 40,
652 N.E.2d 196
(1995), paragraph two of the syllabus (“The exclusive subject matter jurisdiction of the
juvenile court cannot be waived.”); see also State v. Taylor, 2d Dist. Montgomery No.
27731,
2018-Ohio-4048, ¶ 21 and State v. Reynolds, 12th Dist. Warren No. CA2019-08-
077,
2020-Ohio-4354, ¶ 5-6.
{¶4} We therefore proceed to Bell’s assignments of error solely as they pertain
to her conviction for assault. Bell advances two assignments of error:
[1.] The trial court erred to the substantial prejudice of the defendant-appellant by denying Ms. Bell’s motion for acquittal when at the close
of the state’s case the state failed to prove beyond a reasonable
doubt the essential elements of the offense.
[2.] The trial court committed error in finding that the appellant is
guilty of assault and child endangering against the weight of
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evidence when the prosecutor failed to proof [sic] all the essential
elements of the offense beyond reasonable doubt.
{¶5} Bell challenges the denial of her Crim.R. 29(A) motion for judgment of
acquittal and claims her conviction for assault is against the manifest weight of the
evidence.
{¶6} A Crim.R. 29(A) motion challenges the sufficiency of the evidence to
support a conviction. State v. Wright, 11th Dist. Portage No. 2000-P-0128, 2002 WL
480328, *2 (Mar. 29, 2002). “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. 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. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus,
citing Jackson v. Virginia,
443 U.S. 307 (1979). “In essence, sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” State v. Thompkins,
78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997).
{¶7} “Although a court of appeals may determine that a judgment of a trial court
is sustained by sufficient evidence, that court may nevertheless conclude that the
judgment is against the weight of the evidence.” Id. at 387. Further, a determination of
whether a conviction is against the weight of the evidence “necessarily rests on the
existence of sufficient evidence to support the conviction.” State v. McCrory, 11th Dist.
Portage No. 2006-P-0017,
2006-Ohio-6348, ¶ 40.
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{¶8} “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.
It indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater amount
of credible evidence sustains the issue which is to be established before them.’”
Thompkins at 386 (emphasis sic), quoting Black’s Law Dictionary 1594 (6th Ed.1990).
{¶9} “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. “‘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.”
Id.,
quoting State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1983).
{¶10} “The [factfinder] is the sole judge of the weight of the evidence and the
credibility of the witnesses. It may believe or disbelieve any witness or accept part of
what a witness says and reject the rest. In reaching its verdict, the [factfinder] should
consider the demeanor of the witness and the manner in which he testifies, his connection
or relationship with the prosecution or the defendant, and his interest, if any, in the
outcome.” State v. Antill, 176 Ohio St. 61, 67,
197 N.E.2d 548 (1964); accord State v.
Miller, 4th Dist. Hocking No. 18CA3,
2019-Ohio-92, ¶ 28 (“The trier of fact is free to believe
all, part, or none of the testimony of any witness, and we defer to the trier of fact on
evidentiary weight and credibility issues because it is in the best position to gauge the
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witnesses’ demeanor, gestures, and voice inflections, and to use these observations to
weigh their credibility.” (Citations omitted.)) Therefore, because “the weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of the facts,”
“‘the discretionary power to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction.’” State v. DeHass, 10
Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus;
Thompkins at
376, quoting
Martin at 175.
{¶11} Bell was convicted of assault, in violation of R.C. 2903.13(A): “No person
shall knowingly cause or attempt to cause physical harm to another ….” “Physical harm”
includes “any injury, illness, or other physiological impairment, regardless of its gravity or
duration.” R.C. 2901.01(A)(3). “A person acts knowingly, regardless of purpose, when
the person is aware that the person’s conduct will probably cause a certain result or will
probably be of a certain nature.” R.C. 2901.22(B). “[D]irect evidence of the accused’s
actual knowledge would not ordinarily be available and that knowledge could be imputed
by the use of circumstantial evidence.” State v. Rubal, 11th Dist. Lake No. 7-178, 1980
WL 352149, *1 (Mar. 31, 1980).
{¶12} A four-year-old nonverbal autistic student was part of an integrated pre-
kindergarten classroom taught by Bell at Brimfield Elementary. Relevant to the assault
charge, the state presented evidence of two incidents that occurred between Bell and the
child in February 2019.
{¶13} On February 13, Bell’s classroom assistant (Beth Fulst) and another
kindergarten teacher (Kaitlin Hess) witnessed an incident in the school’s gym. Fulst
testified the child had thrown a toy, and after he retrieved it, Bell attempted to remove the
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toy from the child’s hand. Fulst saw the child scratch Bell and try to bite her. “And at that
point she [Bell] kicked his legs out from behind him and he went down to the ground.”
Bell sat behind the child and started playing with him, tickling and scratching. Hess
observed the child biting Bell’s arm and recalled, “I did not see how she [Bell] got out of
the bite, but after that, I watched her kick his legs out, push him to the ground and she
gave the illusion of tickling.” Hess was across the gym but testified she could see where
Bell’s “hands had been on his stomach and there were red marks. So if it was tickling, it
was very hard tickling.” Her testimony further reported that Bell was laughing, but the
child was not laughing and was rolling on the ground.
{¶14} On February 27, Hess and an instructional aide assistant in Hess’
classroom (Rosalia Matos) observed another incident. Matos and Hess were in the gym
with their students when Bell’s student came in with black magic marker scribbled on his
arms and face. Matos inquired if the child colored on himself, to which Bell responded,
“No, I did it to him.” Matos testified she later learned the child was trying to draw on Bell,
so Bell drew on the child as a form of punishment. Hess specifically recalled a “smiley
face” drawn near his shoulder. Hess later heard the child screaming and heard Bell
yelling. She looked toward the commotion and saw Bell standing in the vicinity of the
child. Matos also recalled the child screaming and a struggle between him and Bell.
Matos testified that Bell was standing behind the child, and “one of her hands was holding
his arm up to his mouth. Her other hand was holding the back of his head.” The hand on
the back of the child’s head was “pushing it down towards his arm.” Matos stated it was
unclear what was happening, but the child was upset and crying, and it appeared that
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Bell was also upset. Matos testified that she later learned the child had bit Bell, “and she
[Bell] was trying to make him bite himself back.”
{¶15} In addition to these two incidents, Beth Fulst testified she witnessed Bell
make the child scratch himself when he was acting out. Fulst recalled their supervisor
Kim Meeker met with Bell on February 28, following which Bell told Fulst and another
assistant, “We have to stop making [the child] bite himself and scratch himself back.”
{¶16} After reporting the incidents, Bell received a formal letter of reprimand from
Meeker in a meeting with human resources. The letter referenced, inter alia, that Bell
had a child scratch himself and bite himself as means of behavior management within her
classroom setting. According to Meeker’s testimony, Bell responded that she felt her
behavior management techniques had been misconstrued. Bell was required to view
multiple online training sessions, including one on child abuse prevention. When asked
if this was because Meeker thought Bell was committing child abuse, she responded,
“Yes.”
{¶17} Shortly thereafter, Fulst, Hess, and Matos each reported Bell to Child
Protective Services.
{¶18} Bell testified that she never forced the child to bite or scratch himself, she
did not kick the child’s legs out from under him, and she never used a marker to draw on
the child. She further denied ever telling her assistants that they could no longer make
the child bite and scratch himself. Bell claimed the eyewitnesses of both incidents were
lying, wrong, or mistaken as to what occurred. The defense also presented testimony
from the child’s occupational therapy assistant and physical therapist at the school, as
well as a student teacher who had interned with Bell during the first half of the school
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year. None of these witnesses observed the February incidents or observed injuries to
the child.
{¶19} Bell argues the state failed to demonstrate the “knowingly” element of
assault and challenges the credibility of the state’s witnesses. Bell contends the evidence
shows she was merely executing her responsibilities as required by the Individualized
Education Plan (“IEP”) that was specially designed for the autistic child. She further
claims her efforts were misconstrued by one of her aides—who lacked experience,
knowledge, and an understanding of the child’s IEP—and who then spread rumors and
made multiple unfounded allegations. Bell’s arguments, however, are relevant to
purpose, not “knowingly.” Regardless of her purpose for acting, the eyewitness
testimony, if believed, is consistent with a conclusion that Bell knew her conduct would
probably cause physical harm to the child, regardless of its gravity or duration.
{¶20} Based on the foregoing, the evidence is more than sufficient to show that,
regardless of her purpose in doing so, Bell knowingly caused physical harm to the child
during their interactions in the gym on February 13 and February 27, 2019. The state
provided eyewitness testimony to the events that occurred in the gym and testimony,
including of the child’s father, as to visual observation of scratches and red marks on the
child’s person. Although there was conflicting testimony as to some points, the factfinder
evidently afforded more weight to the testimony of the state’s witnesses and found it more
credible than Bell’s testimony. This is not an exceptional case in which the factfinder
clearly lost its way and created a manifest miscarriage of justice.
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{¶21} The trial court did not err in denying Bell’s Crim.R. 29(A) motion for judgment
of acquittal or in finding Bell guilty of assault. Accordingly, Bell’s first and second assigned
errors lack merit.
{¶22} The judgment of the Portage County Municipal Court, Kent Division, is
reversed and vacated with respect to Bell’s endangering children conviction, due to lack
of subject matter jurisdiction. The finding of guilt with respect to Bell’s assault conviction
is affirmed. The matter is remanded for the trial court to enter sentence accordingly.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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