Mr. Brown struck his child across the kneecap in a fit of rage that appears disproportionate to the child’s offense.

 

State v. Brown

2023 – Ohio – 3604

Seventh District Appellate Court

Noble County, Ohio

September 28, 2023

 

Involved Parties

This matter involves a minor child, W.B., who received injuries caused by Mr. Brown in what he describes as an instance of parental discipline. For ease of understanding, some background information will be addressed. Mr. John Brown and his wife, L.B., have two daughters, W.B. (eleven years old) and J.B. (nine years old). A.C. is a neighbor who lives four houses away and her daughter is W.B.’s best friend. The neighborhood is located in Caldwell, Noble County. 

Mr. Brown’s Disciplinary Wooden Stick

On May 4, 2022, Mr. Brown and L.B. were preparing to leave the house to attend J.B.’s softball game. L.B. texted or phoned W.B. and asked her to come home. There is conflicting testimony as to how W.B. responded. According to L.B., W.B. refused to come home and said she would stay at A.C.’s house instead of going to the game. According to W.B., she told her mother that she would be home in a few minutes. Regardless, L.B. informed Mr. Brown that “she’s down the street and she said she’s not coming. She’s telling me no.” She testified that Mr. Brown responded by removing a wooden stick from the closet and walking to A.C.’s residence.

Angrily Pounded on the Door

Mr. Brown angrily pounded on A.C.’s door with such force that A.C. and her children had to hold it shut. Shortly thereafter, at least one of A.C.’s children “came barreling back through the door hysterical saying that [W.B.]’s day (sic)”. had a pipe and was going to hit them, or going to hit [W.B.]. And then [W.B.] must have taken off because I didn’t see her.” Concerned, A.C. called law enforcement.

Mr. Brown Struck his Daughter Across her Knee with the Wooden Stick

Meanwhile, W.B. ran home, leaving her shoes at A.C.’s residence. She sat on a couch next to her mother. Appellant struck her with the stick he was carrying across the kneecap area, producing a red mark. L.B. provided conflicting testimony, at one point saying the stick had missed W.B., and also claiming that Mr. Brown did not hit W.B. very hard. L.B. also testified that she did not remember the incident. Regardless, law enforcement observed a red mark on W.B.’s knee. Approximately ten minutes after she was struck, W.B. returned to A.C.’s residence to retrieve her shoes. She was crying, and informed A.C. and her family that Mr. Brown had hit her.

Mr. Brown Gives Feeble Orders to the Sergeant

Sgt. Daniel Connolly from the Noble County Sheriff’s Office testified that when he arrived at Mr. Brown’s residence, he observed a vehicle in the garage that was preparing to depart. He approached the vehicle and Appellant “exited the front seat of an SVU in the garage. He asked me what I was doing there. He told me that I needed to leave his property multiple times and he was on his way to his daughter’s softball game at Shenandoah.”

Request for Backup

The responding officers called for assistance due to the level of Mr. Brown’s anger and his demands that they leave his property. Investigations Commander McKee arrived sometime thereafter and noticed that W.B. was crying.

He also stated that he would do it again.

The officers asked Mr. Brown if he hit W.B. with a stick. He responded that he did, because that was how he was raised. He also stated that he would do it again. Sgt. Daniel Connolly testified that W.B. “was very upset. She was crying. She was scared. She did not want to be there.”  

Mr. Brown has Anger Issues

L.B. (wife) advised the officers that Mr. Brown “has anger issues and gets agitated easily.” She noted that W.B. “takes the brunt of [Mr. Brown]’s anger.” She elaborated that “[W.B.] [is] the child usually getting struck by [Mr. Brown] because the other child was running and hiding when [Mr. Brown]’s angry.” W.B. testified that her mother typically disciplined her by having her stand in a corner, whereas her father typically resorts to physical violence.

Conflicting Testimony on Missed Softball Games

There was conflicting testimony as to whether W.B. had previously been permitted to miss her sister’s softball games. L.B. testified that she sometimes allowed W.B. to miss the games but that she stayed with her grandmother at those times. W.B. testified that she has often missed the games and stays at A.C.’s residence.

Discipline Stick was Analogous to a Shovel Handle

L.B. and the couple’s younger child showed Detective Oakley where the wooden stick was typically located, which was inside an interior closet. They said that it was referred to by the family as “the [W.B.] stick.” The stick, which was admitted into evidence at trial, is between three and one-half to four feet in length and one and one-half to two inches thick. Investigations Commander McKee described the stick as similar to a shovel handle.

Mr. Brown was Convicted of Domestic Violence

On May 5, 2022, Mr. Brown was charged with one count of domestic violence, a misdemeanor of the first degree in violation of O.R.C. §2919.25(A). A jury convicted Mr. Brown of the sole offense as charged. Immediately following the verdict, the trial court sentenced Mr. Brown to 180 days in jail with 129 suspended and credit for 6 days served. The court also imposed a three-year term of probation. A no-contact order with the victim was also issued by the court. Mr. Brown’s sentence was stayed pending appeal. It is from this entry that Mr. Brown timely appeals.

Appeal 

Parental Discipline is an Affirmative Defense to Domestic Violence

Mr. Brown John A. Brown appeals an August 9, 2022 judgment entry of the County Court of Noble County. Mr. Brown argues that he satisfied his burden to prove the affirmative defense of reasonable parental discipline.

Mr. Brown Argues the Discipline was Appropriate and the Disciplinary Stick is Multi-Purposeful

Mr. Brown argues that he satisfied his burden to prove the affirmative defense of reasonable parental discipline. He argues that his wife testified W.B. had reoccurring problems with being late and refuses to obey her parents. He also argues that his wife testified he did not hit W.B. very hard and that the incident involved “appropriate discipline.” He claims that he uses the stick as an aid when he walks because he has mobility issues.

The Multi-Purposeful Stick Usage was ‘Unsupported Testimony’

The state responds that the facts do not support Mr. Brown’s claim, stating that an eleven-year-old girl was hit on the knees with a wooden stick measuring three and one-half to four feet long and one and one-half to two inches thick. The girl was still crying when law enforcement arrived, which was some time after the incident. The state contrasts the difference between the parents forms of discipline: the mother has her stand in a corner whereas Mr. Brown hits her. The state notes there was no evidence Mr. Brown uses the stick for assistance in walking, other than his own, unsupported testimony.

Established Case for Reasonable Parental Discipline

Reasonable parental discipline is an affirmative defense, here. Whether discipline is appropriate and reasonable is reviewed “based on the totality of the circumstances, considering the child’s age; the child’s behavior before the punishment; the child’s prior response to ‘non-corporal punishment’; the location and severity of the punishment; and the accused’s state of mind.” State v. Hart, 110 Ohio App.3d 250, 256 (3d Dist.1996).

Child’s Age

There is no bright-line rule as to the effect the child’s age must have on the trial court. However, it is apparent from the caselaw that the younger the age, the more the factor weighs against the defendant. W.B. was eleven years old at the time of this incident. Her age appears to fall somewhat in the middle of the spectrum. While W.B. is certainly better able to protect herself than an infant or a toddler, she is significantly more limited than a seventeen-year-old. The record is silent about W.B.’s size and physical abilities as compared to a typical eleven-year-old girl.

Child’s Behavior and Child’s Prior Response to Non-Corporal Punishment

This factor is reviewed in light of “[T]he corrective intent behind the use of corporal punishment and why [the parent] felt it necessary to resort to such means, including, for example, the child’s behavioral history and responses to prior discipline.” State v. Faggs, 2020-Ohio-523.

Note:  The Supreme Court of Ohio issued Faggs and held that Corporal Punishment may be claimed as an affirmative defense as

The record is devoid of any evidence demonstrating the progression of the corrective measures used to discipline W.B. and contains scant evidence of her behavior. The record does contain unrebutted testimony from W.B. that her mother disciplines her by making her stand in a corner, whereas her father hits her. Mr. Brown concedes that he uses corporal punishment on W.B. because that was how he was raised.

Although the record is limited in this respect, this factor weighs in favor of the state.

O.R.C. §2901.01(A)(3) defines “[P]hysical harm to persons” as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.

The Disciplinary Stick had a Family Name

This record reveals Mr. Brown did not merely use his hand to strike the child. Mr. Brown utilized a large wooden stick kept in a closet for that purpose. While Mr. Brown claims he also uses the stick for mobility purposes, there is nothing to support his claim. There was testimony that the family called this the “[W.B.] stick.” A.C., Mr. Brown’s neighbor, testified that she had never seen Mr. Brown using the stick to aid his mobility walking around the neighborhood.

 Re-Application of the Facts

The injury is to W.B.’s knee, apparently the kneecap area. The strike left a red mark but no bruising was detected at the time officers arrived at the house. It appears that the strike caused pain, as the child was seen crying long after the strike occurred.

Plethora of Established Case Law on Physical Harm

There is an abundance of caselaw regarding the types of injuries considered “severe” enough to be excessive for purposes of this analysis. There exists a plethora of holdings that temporary redness is sufficient to constitute physical harm under the statute. See State v. Bagwell, 2019-Ohio- 3187; State v. Ford, 2013-Ohio-1883; State v. Walters, 2010-Ohio-304; In re C.W., 2005-Ohio-3905.

Accused’s State of Mind – A Bombastic Tirade

The unrebutted testimony of all the witnesses was that Mr. Brown acted in a fit of anger on the day of the incident that did not deescalate even after multiple deputies attempted to calm him down. A.C. testified that she and her children had to “hold the door [because] he was pounding on it hard.”

Beat his daughters Ass

Sgt. Connolly testified that Mr. Brown ordered the officers to leave his property, even when he was informed about the purpose of their visit. Sgt. Connolly also testified that when asked about the stick, Mr. Brown stated “that he was going to beat his daughter’s ass with it.” 

Mr. Brown’s Wife Testified that the Eleven-Year-Old takes the Brunt of his Aggression

L.B. testified that Mr. Brown has anger issues and is easily agitated. She admitted that W.B. “takes the brunt”of Mr. Brown’s aggression. She told Mr. Brown W.B. refused to come home when L.B. asked, and L.B. knew Mr. Brown went to find W.B. with the stick. L.B. testified that she had a recurring problem with W.B.’s failure to obey.

Based on the record before us, the factors do not support Mr. Brown’s claim that he satisfied his burden of proof on the affirmative defense. Mr. Brown struck his child across the kneecap in a fit of rage that appears disproportionate to the child’s offense. Mr. Brown supported his actions merely by explaining that he struck his child for what amounts to a minor offense because he was raised on corporal punishment. And Mr. Brown used a weapon here, a fairly substantial stick. The record does not support Mr. Brown’s contention, thus, Mr. Brown’s first assignment of error is without merit and is overruled.

There was a second appeal made by Mr. Brown.  That appeal was also overruled though it is not evaluated in this article.

Information for this article was obtained from State v. Brown, 2023 – Ohio – 3604.

State v. Brown, 2023 – Ohio – 3604 was issued by the Seventh District Appellate Court on September 28, 2023 and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.

Lessons Learned:

  1. Domestic Violence or Corporal Punishment? Law enforcement is often faced with determining whether or not ‘discipline’ exceeds corporal punishment and rises to the level of Domestic Violence. Based on established case law courts will evaluate the following factors to evaluate corporal punishment, the child’s: 1) Age, 2) Behavior, 3) Response to non-corporal punishment, 4) The location and severity of the punishment and 5) The parent’s state of mind at the time of the punishment. See State v. Faggs, 2020-Ohio-523
  2. Suspect’s State of Mind – In this case the Seventh District Appellate Court evaluated each of the five factors and determined that Mr. Brown’s strike of his eleven-year-old daughter across the knee with the wooden stick exceeded corporal punishment and was Domestic Violence. One of the key factors in this analysis was Mr. Brown’s behavior prior to, during and after the knee strike.  Brown was enraged when he went to the neighbor’s home to direct his daughter home.  He was pounding on the door with such force “A.C. testified that she and her children had to “hold the door [because] he was pounding on it hard.”.  Thereafter, Mr. Brown struck his daughter on her knee, then when the deputies arrived, he ordered the deputies off his property … “exited the front seat of an SVU in the garage. He asked me what I was doing there. He told me that I needed to leave his property multiple times and he was on his way to his daughter’s softball game at Shenandoah.”. These after-the-discipline behaviors are to be factored into the corporal punishment analysis.  This provides the suspect’s state of mind that is the fifth factor established by the Supreme Court of Ohio in State v. Faggs, 2020-Ohio-523.
  3. Preponderance of the Evidence – To oppose a criminal charge of Domestic Violence with the claim of corporal punishment the defendant must rebut the criminal charge with an affirmative defense. To establish any affirmative defense, the defendant must do so to the legal threshold of a Preponderance of the Evidence.  This legal threshold is often explained as a fifty-one percent standard.  In this case Mr. Brown did not prove that his knee strike was to a Preponderance of the Evidence.
  4. Five-Part Corporal Punishment Test – At scene law enforcement must apply the five-part test to distinguish Corporal Punishment from Domestic Violence: 1) Age, 2) Behavior, 3) Response to non-corporal punishment, 4) The location and severity of the punishment and 5) The parent’s state of mind at the time of the punishment. See State v. Faggs, 2020-Ohio-523
  5. Pre-Sent Arms! Noble County Sheriff’s Office Daniel Connolly, Investigations Commander McKee and the unidentified responding deputies should be highly commended for both their legal and operational tactics to detain, investigate, charge and convict Mr. Brown of Domestic Violence. Well done!

Does your agency train on Domestic Violence?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.