State v. Wilson

[Cite as State v. Wilson, 

.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HIGHLAND COUNTY



State of Ohio,                               :       Case No. 23CA21

        Plaintiff-Appellee,                  :       DECISION AND
                                                     JUDGMENT ENTRY
        v.                                   :

Victoria F. Wilson,                          :       RELEASED 7/30/2024

        Defendant-Appellant.                 :

______________________________________________________________________
                            APPEARANCES:

K. Danielle Whitt, Hillsboro, Ohio, for appellant.

Anneka Collins, Highland County Prosecutor, and James Roeder, Highland County
Assistant Prosecutor, Hillsboro, Ohio, for appellee.
______________________________________________________________________
Hess, J.

        {¶1}     Victoria F. Wilson appeals from judgments of the Highland County Court

convicting her, following a jury trial, of four counts of endangering children. Wilson

presents two assignments of error asserting that her convictions are contrary to law

because there is insufficient evidence to support them and that her convictions are

against the manifest weight of the evidence. For the reasons which follow, we overrule

the assignments of error and affirm the trial court’s judgments.

                             I. FACTS AND PROCEDURAL HISTORY

        {¶2}     Wilson was charged via complaints under four case numbers with four

counts of endangering children in violation of R.C. 2919.22(A), first-degree

misdemeanors. She pleaded not guilty. The matters proceeded to a jury trial.
Highland App. No. 23CA21                                                                        2


       {¶3}    Sergeant Kevin Little, Sr., of the Greenfield Police Department testified that

he is the school resource officer for the Greenfield Exempted Village School District. On

September 18, 2023, he exited the high school to go outside for the bus release, which

is the “busiest part” of his day “in terms of traffic control.” Bus drivers alerted him to the

presence of a vehicle blocking some of the buses and the fact that there were children

inside of it. Sgt. Little located the vehicle on North Fifth Street, a city street right off State

Route 28, between a middle school, a playground, and a church with a preschool. Sgt.

Little testified that he has arrested kids and adults at the school. He has also investigated

crimes at the playground, like vandalism and sexual assault allegations. He testified that

“numerous contraceptive devices” and needles have been located there. He

acknowledged that crime in the area had not caused the school or church to stop using

North Fifth Street as a pick up and drop off area for children.

       {¶4}    Sgt. Little testified that the vehicle had three rows of seats, and there were

four children inside. There was an unsecured boy under five years old who was “out of

his seat” and between the first and second row of seats. The other three children were

secured in car seats. The unsecured boy looked at Sgt. Little and started smiling. The

vehicle was unlocked. Sgt. Little opened the front passenger door and noticed the boy

“got nervous” and “scared.” Sgt. Little also noticed a purse inside the vehicle. The vehicle

was not running, the air conditioner was not on, and it was “warm” inside the vehicle.

When asked if it was “a partly cloudy, approximately seventy-degree day,” he testified,

“Yeah, video will reflect that the sun was in and out of the clouds, yes sir.” The children

“were fine” and did not appear to need any medical assistance.
Highland App. No. 23CA21                                                                   3


       {¶5}   Sgt. Little ran the license plate and learned Wilson was the registered

owner. He unsuccessfully tried to locate her. After the buses had left, Wilson returned to

the vehicle from the rear of the church. Sgt. Little testified that according to the video

footage from the school surveillance system, Wilson had been gone for about 22 minutes

and 38 seconds. Wilson told Sgt. Little that she had been trying to get a child entered in

the preschool, but “a woman over there continually repeated herself due to the paperwork

not being submitted in the time frame that the church wanted,” and Wilson “lost track of

time.” Wilson told him two of the children in the vehicle were hers, and two were children

“she watches for friends or a friend.”

       {¶6}   Wilson testified that she has three children—a daughter and two sons. The

day of the incident, she went to the church preschool to take care of paperwork so one of

her sons could attend the next day. She had four children with her—her two sons, and

two children she was babysitting. The children were ages 4, 3, 2, and 20 months. After

parking, she noticed her children were napping and decided to go into the preschool

alone. She testified that her four-year old son had a means of communication—a tablet

with internet which he uses to FaceTime her “all the time.” Wilson testified that her vehicle

has a safety feature where if one exits with the key fob and leaves the vehicle running, “it

actually stays running for up to thirty minutes.” Wilson testified that when she returned to

the vehicle, a screen in the vehicle indicated the internal temperature was 74 degrees.

All the children were fine. Three were still secured in the car; one of her sons was in

someone’s arms “kind of crying.”

       {¶7}   Wilson acknowledged she could not see or hear the children while in the

church, that she left the vehicle unlocked, and that her four-year-old son could have gotten
Highland App. No. 23CA21                                                                              4


out of it. When asked if she felt she had put the children in a situation where there was

any risk, Wilson testified, “I surely hope not since I send my kids there every day.” Wilson

noted that when she returned to the vehicle, she saw her daughter at the playground with

friends. When asked if it would have been safer to bring the children with her, Wilson

testified, “I have two arms and I have four kids and I just needed paperwork.” She trusted

that nothing was going to happen and that one of her sons had a way to contact her if

something did happen.

        {¶8}     The mother of the children Wilson was babysitting testified that Wilson is an

attentive and caring mother and caregiver. The mother had no concerns about the safety

or well-being of her children under Wilson’s care. She opined that it was safer for Wilson

to leave the children in the vehicle than to “manage four children into that building.”

        {¶9}     The jury found Wilson guilty on all counts. The trial court sentenced her.

This appeal followed.

                                   II. ASSIGNMENTS OF ERROR

        {¶10} Wilson presents two assignments of error:1

        Assignment of Error No. One: The conviction of child endangerment was
        contrary to law as evidence was insufficient to support her conviction
        pursuant to ORC 2919.22.

        Assignment of Error No. Two: The conviction of child endangerment was
        against the manifest weight of the evidence.

                                       III. LAW AND ANALYSIS

        {¶11} In the first assignment of error, Wilson contends that her convictions are

contrary to law because there is insufficient evidence to support them. Wilson asserts



1 The assignments of error are taken from pages two and six of Wilson’s appellate brief; they are stated

somewhat differently in the table of contents of her brief.
Highland App. No. 23CA21                                                                   5


that she “weighed her actions and used her judgment as to whether she should wake the

sleeping children and bring the 4 children under 5 years old into the preschool, amongst

the bustle of the students and staff out and about … and through a busy parking lot, or

to run into the building with what she thought would just take a couple of minutes ….”

Wilson maintains that while she made an “error in judgment, it “is not equivalent to a

substantial risk to the health and safety of the children.” She asserts that “[t]his incident

occurred from 2:15-2:38 PM on a mild fall day with school personnel, [buses], and other

children present.” She asserts that “[t]hree of the four children were secured in car seats

and all of the children were content when Sgt. Little approached.” She notes that “the

oldest child had his iPad with him that he frequently uses for FaceTime with [her].” She

asserts the weather conditions were “not an issue.” Wilson maintains that aside from Sgt.

Little’s testimony regarding previous crimes investigated at the playground, which

occurred “over an unknown time period,” “no further evidence regarding substantial risk

of harm was introduced.” Wilson claims that based on these facts, the State “did not

establish a substantial risk of harm without the use of speculation and inference upon

inference.” She suggests this case is similar to State v. Hughes, 

 (3d

Dist.).

          {¶12} In the second assignment of error, Wilson contends that her convictions are

against the manifest weight of the evidence. She maintains that the State provided

inadequate evidence “to convince a rational trier of fact beyond a reasonable doubt” that

she “acted recklessly to the children when she contemplated the more safe option of

waking them up and handling all four children in a busy parking lot, rather than letting

them sleep while she ran her paperwork into the daycare that she parked immediately
Highland App. No. 23CA21                                                                     6


next to.” Wilson asserts that she “had no concerns of criminal activity, as her daughter

was inside the school building and playground that she parked next to.” She claims State

v. Martin, 

 (1st Dist. 1999), found “inadequate evidence to support a

claim that the appellant recklessly created a substantial risk to the child’s health or safety,

with a comparable fact pattern.”

                                   A. Standards of Review

       {¶13} In reviewing the sufficiency of the evidence for a conviction, “[t]he 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, 

 (1991), paragraph two

of the syllabus, superseded by constitutional amendment on other grounds as stated in

State v. Smith, 

 (1997), and following Jackson v. Virginia, 

 (1979). “A sufficiency assignment of error challenges the legal adequacy of the

state’s prima facie case, not its rational persuasiveness.” State v. Anderson, 2019-Ohio-

395, ¶ 13 (4th Dist.). “That limited review does not intrude on the jury’s role ‘to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.’ ” Musacchio v. United States, 

 (2016),

quoting 

. A reviewing court will not overturn a conviction based on

insufficient evidence “ ‘unless reasonable minds could not reach the conclusion that the

trier of fact did.’ ” State v. Cook, 

 (4th Dist.), quoting State v.

Bradshaw, 

 (4th Dist.).

       {¶14} In determining whether a conviction is against the manifest weight of the

evidence, an appellate court
Highland App. No. 23CA21                                                                      7


       must review the entire record, weigh the evidence and all reasonable
       inferences, consider the credibility of witnesses, and determine whether, in
       resolving conflicts in the evidence, the trier of fact clearly lost its way and
       created such a manifest miscarriage of justice that reversal of the conviction
       is necessary. In order to satisfy this test, the state must introduce
       substantial evidence on all the elements of an offense, so that the jury can
       find guilt beyond a reasonable doubt.

       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. However, we are
       reminded that generally, it is the role of the jury to determine the weight and
       credibility of evidence. “ ‘A jury, sitting as the trier of fact, is free to believe
       all, part or none of the testimony of any witness who appears before it.’ ”
       State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 

, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-
       1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and
       credibility issues because it is in the best position to gauge the witnesses’
       demeanor, gestures, and voice inflections, and to use these observations
       to weigh their credibility.

(Citations omitted.) Anderson at ¶ 14-15. “ ‘Ultimately, a reviewing court should find a

trial court’s decision is against the manifest weight of the evidence only in the exceptional

case where the evidence weighs heavily against the decision.’ ” State v. Allen, 2022-

Ohio-1180, ¶ 27 (4th Dist.), quoting State v. Gillian, 

, ¶ 28 (4th Dist.),

citing State v. McKelton, 

.

                           B. Elements of Endangering Children

       {¶15} R.C. 2919.22(A) states: “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.”

       {¶16} “No degree of culpability is specified on the face of R.C. 2919.22(A).” State

v. McGee, 

 (1997). However, the Supreme Court of Ohio has held

that the mens rea for the offense is recklessness. 

 at syllabus. See R.C. 2901.21(C)(1)
Highland App. No. 23CA21                                                                    8


(“When language defining an element of an offense that is related to knowledge or intent

or to which mens rea could fairly be applied neither specifies culpability nor plainly

indicates a purpose to impose strict liability, the element of the offense is established only

if a person acts recklessly”). R.C. 2901.22(C) states:

       A person acts recklessly when, with heedless indifference to the
       consequences, the person disregards a substantial and unjustifiable risk
       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.

       {¶17} R.C. 2901.01(A)(8) defines a “substantial risk” as “a strong possibility, as

contrasted with a remote or significant possibility, that a certain result may occur or that

certain circumstances may exist.”

       {¶18} “A child endangering conviction may be based upon isolated incidents or

even ‘a single rash decision’ in which a parent recklessly puts his or her child’s health or

safety at risk.” State v. Lucas, 

 (8th Dist.), quoting State v. James,

, *2 (12th Dist. Dec. 18, 2000). However, the State must present “

‘some evidence beyond mere speculation as to the risk of harm that could potentially

occur due to a single imprudent act.’ ” Middletown v. McWhorter, 

(12th Dist.). The trier of fact cannot “make an inference upon an inference in order to

transform a speculative risk into a substantial risk.” Id. at ¶ 11.

                                        C. Analysis

       {¶19} After viewing the evidence in a light most favorable to the prosecution, we

conclude that any rational trier of fact could have found the essential elements of child

endangering proven beyond a reasonable doubt. It is undisputed that Wilson was the
Highland App. No. 23CA21                                                                   9


parent, guardian, custodian, person having custody or control, or person in loco parentis

of 4 children under the age of 18 years old at the time of the incident. She is the parent

of two of the children and was babysitting the other two children, and the children were

ages four and under. Wilson left the 4 young children alone, in an unlocked vehicle

parked on a city street, right off a state route, for over 22 minutes, during a busy time of

day. The children were not within Wilson’s sight or hearing while she was in the church.

The four-year old, who was unsecured inside the vehicle when Sgt. Little saw him, could

easily exit the unlocked vehicle, and enter the street. See generally State v. Fretas, 2008-

Ohio-4686, ¶ 1-3, 17, 27 (in affirming child endangering conviction where defendant left

3-year old with ability to open door home alone for over 19 minutes on a snowy day while

the defendant went to a store, the court stated the fact that the child “could have exited

the house unsupervised and unable to care for himself presented a strong possibility of

harm”). Moreover, an individual with criminal intentions could easily access the four

children. See generally State v. Hawkins, 

, ¶ 2-4, 19 (5th Dist.) (where

defendant left 10-month old in vehicle in store parking lot for at least 20 minutes on an

84-degree day with the windows down enough that one could reach inside to unlock the

doors, child endangering conviction affirmed in part because defendant left the child

“unattended in [a] public parking lot where an individual with criminal intentions could have

kidnapped or harmed the child”). The four-year old had a way to contact Wilson if

something happened. But the suggestion that the young child had the capacity to remain

calm and collected during an emergency and seek help via FaceTime is undercut by the

fact that the child did not FaceTime with Wilson when he was scared and upset during

this non-emergency situation. Under the circumstances in this case, the jury could
Highland App. No. 23CA21                                                                    10


reasonably conclude that Wilson recklessly created a substantial risk to the health or

safety of each child by violating a duty of care, protection, or support.

       {¶20} We also reject Wilson’s contention that her convictions were against the

manifest weight of the evidence. After our review of the record, and after we consider the

evidence and all reasonable inferences therefrom, witness credibility, and the conflicts in

the evidence or lack thereof, we do not believe that the jury clearly lost its way so as to

create a manifest miscarriage of justice such that the convictions must be reversed and

a new trial ordered. Instead, we believe that the State introduced substantial evidence at

trial to prove all the elements of child endangering with respect to each count beyond a

reasonable doubt. This is not the exceptional case where the evidence weighs heavily

against the decision.

       {¶21} Wilson’s reliance on Martin and Hughes is misplaced.              In Martin, the

defendant left her son, who was almost nine years old, alone in a locked vehicle in a

crowded parking lot near a mall department store. Martin, 

 (1st

Dist.). The defendant testified that the child “had been sleeping in the back seat and did

not want to leave the car to go into the store” while she returned a gift, so she let him stay

in the car. 

. At one point, the car rolled out of its parking place and into the aisle

because according to the child, he “accidentally ‘hit the stick out of gear.’ ” 

 Witnesses

pushed the car back. 

 An officer responded to the scene, and after investigating about

15 minutes, had the store’s security personnel read the license plate number over the

store’s intercom. 

 A few minutes later, the defendant returned to the vehicle. 

 The

trial court found her guilty of endangering children under R.C. 2919.22(A). 

Highland App. No. 23CA21                                                                   11


       {¶22} The First District Court of Appeals concluded the evidence was insufficient

to support the conviction and reversed it. 

. The court found the State failed

to prove beyond a reasonable doubt that the defendant acted recklessly as defined under

a prior version of R.C. 2901.22(C), which stated that “ ‘[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.’ ” 

, quoting former R.C. 2901.22(C). The appellate court could not “say

that, by leaving an almost nine-year-old child sleeping in the back seat of a locked vehicle

approximately seventy feet from her destination, [the defendant] perversely disregarded

a known risk or acted with heedless indifference to the consequences.” 

. The

court also held that “as a matter of law,” the State failed to prove the defendant “created

a ‘substantial risk to the health or safety of the child.’ ” 

 quoting R.C. 2919.22(A). The

court explained that “the child was not injured, and the state failed to prove beyond a

reasonable doubt that there was a strong possibility that he would have been injured.” 

The appellate court stated that while the defendant “may have created some speculative

risk to her child,” the court could not “hold that she created a strong possibility that the

child would be injured. … To conclude otherwise would require an inference upon an

inference—that the car would strike another vehicle and that the child would also be

injured—which is legally impermissible.” 

.

       {¶23} Martin is inapposite. The duty to care for, protect, and support a child

“necessarily requires different actions depending on the age and ability of each child.”
Highland App. No. 23CA21                                                                      12


Cuyahoga Hts. v. Majors, 

 (8th Dist.). “An older child can most

often communicate more effectively, appreciate danger and verbally object if accosted,

[and] seek help from others ….” 

 Wilson did not leave one almost nine-year old alone

in a locked vehicle in a parking lot. She left four children, ages four and under, alone in

an unlocked vehicle parked on a city street, right off a state route.

       {¶24} In Hughes, the defendant left his 5-year old daughter alone in his vehicle in

a Wal-Mart parking lot for about 27 minutes with the air conditioner running. Hughes,

 (3d Dist.). An officer responded to a report about the child, who

opened the door when he approached the vehicle. Id. at ¶ 3. The officer testified that the

potential dangers to her were “ ‘[t]he multiple cars in the parking lot, the vehicle running,

keys in the ignition, the period of time that she was left alone, her age, and she was able

to open the car door herself.’ ” Id. at ¶ 4. The defendant testified that his daughter, who

was “ ‘very bright,’ ” was watching a cartoon on a DVD player and did not want to go in

the store, so he locked the doors, gave her a cell phone which she was capable of using,

and told her what number to call if she had a problem. Id. at ¶ 7. It was a hot day, so he

left the vehicle running so the air conditioner would operate. Id. at ¶ 8. He testified that

the child was secured in a booster seat, though she could get out of it, that she had not

inappropriately operated the vehicle before, and that he instructed her not to do so or

unlock the door for anyone. Id. at ¶ 8, 10. Following a bench trial, the trial court convicted

Hughes of child endangering under R.C. 2919.22(A). Id. at ¶ 1, 11.

       {¶25} The Third District Court of Appeals reversed in a 2-1 decision. The lead

opinion states that “the trial court found three substantial risks to the child’s safety: (1) the

child could have exited the vehicle and been injured in the busy parking lot; (2) the child
Highland App. No. 23CA21                                                                   13


could have been kidnapped if she would have exited the vehicle or opened the doors for

a stranger; and, (3) the child could have placed the vehicle in drive and struck another

vehicle or object.” Id. at ¶ 23. The lead opinion found that “[t]he problem with all three of

these scenarios is that none is fully supported by the facts presented, and each requires

multiple contingencies to occur and several inferences to be made before the actual harm

is brought to fruition.” Id. The lead opinion found the case analogous to Martin and found

that as in Martin, “any substantial risk to the child’s safety was merely speculative.” Id. at

¶ 30, 32.   The lead opinion also found that the fact that the defendant left the air

conditioner on because of the weather and “gave the child a cell phone so she could call

if she had a problem” demonstrated “sufficient concern to negate” a finding of

recklessness. Id. at ¶ 29.

       {¶26} Notably, two of the three panel members in Hughes did not join the lead

opinion—one judge concurred in judgment only without opinion, and one judge dissented

with an opinion. See id. at ¶ 40-49 (Preston, J., dissenting). However, even if we found

the lead opinion persuasive, this case is factually distinguishable from Hughes. Unlike

the defendant in Hughes, Wilson did not leave a five-year old in a locked vehicle in a

parking lot, with a cell phone, after giving safety instructions. She left four children, ages

four and under, alone in an unlocked vehicle, parked on a city street, right off a state

route. The four-year old had a tablet, but Wilson could not have given the child any safety

instructions just before her departure as the child was asleep when she left.

       {¶27} Child endangering cases “are intensely fact-specific and, therefore, do not

easily lend themselves to comparison to other child endangering cases.” Majors, 2014-

Ohio-3326, at ¶ 26 (8th Dist.). Under the specific facts of this case, we conclude that
Highland App. No. 23CA21                                                             14


there was sufficient evidence to support Wilson’s convictions and that her convictions

were not against the manifest weight of the evidence. Accordingly, we overrule the first

and second assignments of error, and we affirm the trial court’s judgments.

                                                             JUDGMENTS AFFIRMED.
Highland App. No. 23CA21                                                                 15


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENTS ARE AFFIRMED and that appellant shall pay
the costs.

       The Court finds there were reasonable grounds for this appeal.

    It is ordered that a special mandate issue out of this Court directing the HIGHLAND
COUNTY COURT to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.


                                          For the Court


                                          BY: ________________________
                                              Michael D. Hess, Judge



                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.