[Cite as State v. Lee,
2024-Ohio-3080.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230619
TRIAL NOS. 23CRB-15990-A,B,C
Plaintiff-Appellee, :
:
VS. O P I N I O N.
:
ANDRE LEE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed in Part, Sentences Reversed in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: August 14, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Amber H. Daniel, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} A traffic stop for a red-light violation resulted in three charges for child
endangering when the responding officers discovered three children—ranging in age
from an infant to approximately five years of age—in the stopped van without seats or
seat belts. The back of the van (where the two younger children were situated)
contained broken glass, stacked wooden pallets, and tools. And the back window of
the van was completely shattered (without any temporary covering), leaving the
gaping hole exposed. Defendant-appellant Andre Lee was ultimately convicted of all
three counts. He now appeals, maintaining that the trial court erred when it found
him guilty of child endangering and failed to award him jail-time credit. Having
carefully reviewed the evidence and the record, we affirm his convictions but reverse
his sentences in part, remanding the matter for the limited purpose of calculating the
appropriate amount of jail-time credit to which he is entitled.
I.
{¶2} In September 2023, City of Cincinnati police officers stopped Mr. Lee
for a red-light violation. Upon their arrival at the scene, Officer Ian Sundberg and
Officer Collin Joyce encountered Mr. Lee’s utility van. The back windows of the van
were broken with jagged glass around the edges, and there was broken glass, wooden
pallets (which officers believed to be loose), tools, and a gas can inside the vehicle.
Three children—all estimated to be under the age of five—were also inside the vehicle.
The two older children were fully unrestrained, and the vehicle lacked seats apart from
the front driver’s and passenger’s seats. The infant sat in a car seat on the floor
between the front seats, but the car seat was not attached in any way to the vehicle.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Officers handcuffed Mr. Lee and the children’s mother (who was in the
vehicle at the time of the stop) while they investigated the matter further. The children
remained in the back of the vehicle as officers began searching for a family member to
take the children because the officers believed it was safer than removing them and
risking that they might dart into the busy road. Throughout the stop, the officers
considered how to charge the parents, vacillating between charges for child
endangering and lack of child safety restraint. Ultimately, they charged Mr. Lee with
three counts of child endangering in violation of R.C. 2919.22(C), a misdemeanor of
the first degree, and three traffic violations (unauthorized license plates, driving under
FRA suspension, and traffic light violation).
{¶4} Later, realizing that a violation under R.C. 2919.22(C) is only applicable
where the defendant is charged with operating a vehicle under the influence of drugs
or alcohol (an “OVI”), the state sought amendment of the child endangering charges
to violations under R.C. 2919.22(A), also misdemeanors of the first degree. The court
honored the state’s request.
{¶5} Mr. Lee eventually pleaded no contest to the three traffic offenses, but
the matter proceeded to a bench trial regarding the child endangering charges. Officer
Sundberg and Officer Joyce both testified. Officer Sundberg explained that the
children were able to move freely inside the van and could reach the broken glass
windows, the infant’s car seat did not appear attached to anything (though he did not
attempt to move the seat), and he believed it was safer for the children to remain in
the vehicle during the stop. Officer Joyce testified that he observed a gas can, glass,
and contaminants inside the vehicle where the children had been located and that the
children were sitting on broken glass. And like Officer Sundberg, he testified that he
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OHIO FIRST DISTRICT COURT OF APPEALS
believed the children were safest remaining in the vehicle for the duration of the 50-
minute traffic stop. The body-camera footage played at trial generally validated the
officers’ accounts.
{¶6} Relying in large part on the children’s ages, the trial court determined
that the conditions put the children’s health and safety at a substantial risk and found
Mr. Lee guilty. The court imposed $100 in costs, a suspended jail sentence of 180 days
on each count, and one year of probation and ordered Mr. Lee to comply with
Hamilton County Job and Family Services in its investigation. Mr. Lee now challenges
his convictions and sentences.
II.
{¶7} In his first assignment of error, Mr. Lee contests his convictions for
child endangering, lodging both sufficiency and manifest weight challenges.
Specifically, he claims the evidence failed to sufficiently and credibly prove that he
recklessly caused a substantial risk to the health and safety of his children.
{¶8} When this court reviews a sufficiency challenge, we ask “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 (1991), paragraph two of the syllabus.
“Where reasonable minds can reach different conclusions upon conflicting evidence,
determination as to what occurred is a question for the trier of fact.”
Id. at 279.
{¶9} When reviewing whether a conviction runs counter to the manifest
weight of the evidence, we sit as the “thirteenth juror.” State v. Thompkins, 78 Ohio
St.3d 380, 388 (1997). This court “review[s] the evidence, the credibility of witnesses,
and the entire record.” State v. Bryant,
2022-Ohio-4108, ¶ 10 (1st Dist.), citing
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OHIO FIRST DISTRICT COURT OF APPEALS
Thompkins at 388. And we will not reverse the conviction unless the trial court
“ ‘clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ”
Thompkins at 387, quoting
State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist. 1983).
{¶10} Here, the trial court convicted Mr. Lee of the offense of child
endangering pursuant to R.C. 2919.22(A), which provides: “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.”
Pursuant to R.C. 2901.01(A)(8), “ ‘[s]ubstantial 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.” While the state does not need to prove actual
harm, it must demonstrate that the circumstances created a strong possibility of harm.
{¶11} And the culpable mental state for child endangering is recklessness.
State v. McGee, 79 Ohio St.3d 193 (1997), syllabus; State v. Jones,
2023-Ohio-3862, ¶
14 (1st Dist.). “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.”
R.C. 2901.22(C). As this court has previously noted, “child endangerment cases are
typically fact-specific.” State v. Bush,
2020-Ohio-772, ¶ 8 (1st Dist.), citing City of
Beachwood v. Hill,
2010-Ohio-3313, ¶ 21 (8th Dist.).
{¶12} On appeal, Mr. Lee contests this “substantial risk” element of child
endangering, insisting that the state only presented evidence of a potential or
speculative risk of harm. Specifically, he maintains that without any testimony
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OHIO FIRST DISTRICT COURT OF APPEALS
regarding how he was driving when he was stopped, any risk of harm to the children
is speculative.
{¶13} But at trial, Mr. Lee pleaded no contest to all three traffic violations.
And thus, while he did not admit his guilt, he admitted to the truth of the facts alleged
in the complaint—including the fact that he ran a red light. Although the
circumstances surrounding Mr. Lee’s driving at the time of the red light violation may
increase or decrease the risk to the children, running a red light inherently creates
some risk of harm, particularly given the state of the van. And the additional
circumstances surrounding the incident increased the likelihood of harm to the
children: all three children were five years of age or younger and unrestrained (without
both seats and seat belts), the back windows of the vehicle were broken with a large
gaping hole, and broken glass, wooden pallets, and other items that could easily harm
the children were strewn throughout the back of the van.
{¶14} In State v. Strickling, the Ninth District affirmed the defendant’s
convictions for child endangering when, after he swerved off the road and struck a
mailbox, he drove his children (who were in the backseat) several miles with a “gaping
hole in the center” of the windshield and the remaining portion “shattered and
partially caved in.” State v. Strickling, 2014-Ohio-5713, ¶ 13, 17 (9th Dist.). The
children testified that after the accident they were covered in glass, scared, and did not
want to get back in the car. Id. at ¶ 12. While the defendant was also possibly
intoxicated, the Ninth District primarily relied on the shattered windshield and broken
glass in reaching its conclusion, noting that the children would not be protected from
objects flying on the roadway and that they were scared and covered in glass. See id.
at ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Like the defendant’s windshield in Strickling, the back windows of Mr.
Lee’s van were shattered with a gaping hole in the center and broken glass throughout
the back of the vehicle, creating both a risk of debris flying into the van and hitting the
children and a risk of the children getting cut on the shards of glass. And further,
where the children in Strickling were ages 15 and 11, the children here were much
younger at the time of the incident, which increased their risk given all of the
potentially dangerous items in the van.
{¶16} Mr. Lee posits that the officers contradicted themselves by leaving the
children in the van throughout the stop. In other words, if the van was so inherently
unsafe, why leave the children there? But unlike when Mr. Lee drove the vehicle,
during the stop, the vehicle was not moving, the children were mainly in the front of
the vehicle (and away from the pallets and broken glass), and the children were
supervised by the officers throughout the stop. And the officers had to weigh the
possibility of harm to the children by supervising them in the stopped vehicle against
the risks arising from removing them along a heavily trafficked road.
{¶17} Viewing the convictions through both sufficiency and manifest weight
lenses respectively, we cannot conclude that the trial court could not have found the
essential elements of child endangering proven beyond a reasonable doubt or that it
clearly lost its way or created a manifest miscarriage of justice in finding Mr. Lee guilty
of child endangering. Accordingly, based on these facts, we hold that his convictions
were supported by sufficient evidence and were not against the manifest weight of the
evidence and overrule his first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
III.
{¶18} Turning to his second assignment of error, Mr. Lee maintains that the
trial court failed to properly credit him with time served under R.C. 2949.08(C). The
state concedes the error.
{¶19} “When a trial court fails to include the appropriate amount of jail-time
credit in the sentencing entry, it commits plain error.” State v. Bowden, 2015-Ohio-
3740, ¶ 18 (1st Dist.). Here, Mr. Lee had a right to jail-time credit that the court
overlooked. Pursuant to R.C. 2949.08(C)(1), a suspended jail term sentence should
be reduced “by the total number of days the person was confined for any reason arising
out of the offense for which the person was convicted and sentenced, including
confinement in lieu of bail while awaiting trial[.]” And the “record of the person’s
conviction shall specify the total number of days, if any, that the person was confined
for any reason arising out of the offense.” R.C. 2949.08(B).
{¶20} At his sentencing hearing, defense counsel advised the court that Mr.
Lee had spent 22 days in custody. Mr. Lee was arrested and taken into custody on
September 12, 2023. And the following day, a bond of $10,000 at 10 percent was set.
On October 2, 2023, Mr. Lee appeared in court, and the court modified his bond,
allowing him to be released from custody. The record does not illustrate the exact date
Mr. Lee was released, but it is clear from the record that he was in pretrial custody,
and the trial court omitted jail-time credit from the sentencing entries. Thus, as the
state concedes, the trial court plainly erred by failing to include Mr. Lee’s jail-time
credit when it imposed the sentences for the child endangering charges.
{¶21} Based on these facts, we sustain Mr. Lee’s second assignment of error.
…
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} In light of the foregoing analysis, we overrule Mr. Lee’s first assignment
of error and sustain his second assignment of error. We reverse his sentences in part,
remand the matter for the limited purpose of calculating the appropriate amount of
jail-time credit that should be awarded, and affirm the trial court’s judgments in all
other respects.
Judgments affirmed in part, sentences reversed in part, and cause remanded.
WINKLER and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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