The trial court speculated that the locked door might prevent the children from escaping a fire or that a burglar might use the same sort of bolt cutters as Officer Harrell to access the apartment. These harms both require that the court engage in speculation about worst case scenarios and forbidden inference stacking.

 

State v. Jones

2023 – Ohio – 3862

First District Appellate Court

Hamilton County, Ohio

October 25, 2023

Ms. Nicole Jones is Charged with Endangering Children

On Wednesday June 29, 2022, Ms. Nicole Jones was charged with two counts of Endangering Children, in violation of O.R.C. §2919.22, misdemeanors of the first degree. The case was tried to the bench. The arresting officer, Officer Josh Harrell of the Norwood Police Department, provided the only testimony.

Case Worker Calls Police for Help

Officer Harrell arrived at Ms. Jones’s apartment in response to a call from a representative of 241-KIDS, the Hamilton County child abuse hotline. Officer Harrell and his partner met the 241-KIDS representative outside Ms. Jones’s second-floor apartment. The front door of Ms. Jones’s apartment was secured on the outside by a latch with a padlock.

Children Were Trapped Inside a Padlocked Exterior Door

Officers Forced Entry

Because the officers thought it was necessary to check on the well-being of children they believed were locked inside the apartment, Officer Harrell’s partner cut the padlock off the door with bolt cutters. Cutting the lock off took ten to fifteen seconds. The officers encountered further resistance when trying to open the door, which they eventually discovered was because a couch had been pushed against the door. With a few minutes’ effort, the officers were able to push the door open enough to enter the apartment.

On Wednesday June 29, 2022, Norwood Police enter Apartment #4 with a pair of bolt cutters.  The First District Appellate Court later held that this form of childcare did not create a substantial risk of harm.

Two Children were Hiding in the Main Bedroom

After entering Ms. Jones’s apartment, the officers looked around for the children. There was no one in the kitchen, bathroom, or children’s bedroom. The last door, which Officer Harrell eventually determined was the main bedroom, was locked from the inside. The sounds emanating from the room suggested that the children were inside. The children would not open the door for Officer Harrell until he slid one of his business cards under the door to prove to them that he was a police officer. After the children got Officer Harrell’s business card, they opened the door. Officer Harrell found two children, whom he guessed to be seven to ten years old.

Children Did Not Know Where Parents Were Located

Officer Harrell talked to the children and asked where their parents were. The children told him they did not know. Officer Harrell determined that the children seemed to be in good health and good spirits. They told Officer Harrell that they had pushed the couch in front of the door because they were scared. The children both had cell phones, and it appeared that they knew how to use them. Officer Harrell testified that the children were not crying, nor did they appear to be scared while he was talking with them. 

Marijuana Residue in the Main Bedroom

While looking around the apartment, Officer Harrell and his partner noticed firearm ammunition and an ashtray sitting on a dresser in the main bedroom. The ashtray contained what appeared to Officer Harrell to be marijuana residue and marijuana cigarettes. Officer Harrell testified that he did not see a firearm in the apartment. On cross-examination, Officer Harrell agreed that “[T]here were no readily apparent risks of harm to the children” in the apartment.

Ms. Jones is Arrested

While Officer Harrell was talking to the children, Ms. Jones returned home. After confirming that Ms. Jones was the children’s mother, Officer Harrell placed her under arrest.

Ms. Jones Argued that Secreting Children Behind a Padlock Door did Not Violate a Duty of Care

It is undisputed that Ms. Jones is the children’s mother, and that the two children are under eighteen years of age. Ms. Jones argues that the state failed to produce evidence that she violated a duty of care to her children, created a substantial risk to the safety of her children, or acted recklessly.

What is a Substantial Risk?

A “substantial 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.” O.R.C. §2901.01(A)(8). In order to show this substantial risk, the state must provide “some evidence beyond mere speculation as to the risk of harm that could potentially occur due to a single imprudent act.” State v. Morgan, 2022-Ohio-2932.

Children were Scared but In Good Spirits

As we have observed previously, “child endangerment cases are typically fact-specific.” Bush, 2020-Ohio-772. Here, the facts are that Officer Harrell arrived at Ms. Jones’s second-floor apartment to find the door padlocked on the outside. With ten to fifteen seconds of effort, another officer broke the padlock with bolt cutters. With some further effort, Officer Harrell was able to push back the couch the children had moved in front of the door. Officer Harrell testified that, after entering the apartment, he found ammunition and marijuana cigarettes on top of a dresser in the main bedroom, but that he saw no readily apparent risks of harm to the children. Officer Harrell testified that, although the children had claimed they moved the couch in front of the door because they were scared, the children appeared to be in good spirits and in good physical condition. Officer Harrell agreed that he had no reason to believe that the children had any health issues as a result of being left alone. The children had cell phones, which they knew how to use. While Officer Harrell was talking to the children, Ms. Jones returned home.

Established Case Law

Determination of a substantial risk necessarily depends on the specific circumstances in each case. In State v.Hughes, 2009 – Ohio – 4115 the Third District held that the risk to the child was merely speculative where a father left his five-year-old daughter alone in his locked truck, while he went into a store for approximately twenty-seven minutes. Hughes at ¶ 3, 32. The truck was running, with the air conditioner turned on, and the child was left with a DVD player and a cell phone, which she knew how to use. Id. at ¶ 5, 7.

Trial Court Determines that Since the Children were Scared they were At-Risk

The court finally concluded that the cases were distinguishable and found Ms. Jones guilty on both counts. The court reasoned that padlocking the children in their home created a substantial risk of harm to the children due to a risk of a fire. The court further found that “the children’s own actions show that they felt they were at risk” because they pushed the couch against the door out of fear of strangers.

One Year in Jail was Suspended

The court sentenced Ms. Jones to consecutive, 180-day jail terms for each count, which were suspended, along with an eleven-month term of community control.

Ms. Jones Appeals that the Children Were Not At-Risk

This appeal timely followed. In these circumstances, the court held that any of the potential risks identified by the state were speculative: that the child might exit from the car and be injured by another car in the parking lot; that the child could be kidnapped if she opened the door for a stranger; or that the child could have put the car into drive and struck another vehicle or object. Each of those potential risks would require a series of events to unfold, each of which was itself a purely speculative risk.

Established Case Law – A Three-Year-Old Boy Fell Down a Flight a Stairs with an Open Child Gate and Died But that was Not a ‘Substantial Risk’

Even if the child is actually injured as the result of some hazard, it is the substantial risk of injury that controls, not the outcome. In a recent decision, the Eleventh District found that the potentially dangerous condition that resulted in the unfortunate death of a child was not one that inherently posed a substantial risk to the child. State v. Olah, 2023-Ohio-2113. In that case, a three-and-a-half-year-old child tripped at the top of a set of stairs, where a safety gate had been opened. The child was badly injured by the fall down the stairs, and he eventually succumbed to his injuries. It is unclear whether the child tripped on a rug or other clutter at the top of the stairs or merely fell the way any toddler might. The court determined that while “the apartment generally was cluttered and posed some risks to occupants,” the evidence was that there was “at least 32 inches of open passageway” where a toddler and two adults could safely pass single file. Likewise, there was no evidence that the rug at the top of the stairs had ever previously presented any danger to the child or other occupants of the home. Under these circumstances, despite the resulting injury, the court found that the state failed to show a “substantial risk” to the child’s welfare.

First District Court Comes to the Defense of the Padlocking Mom

These cases illustrate how close a child can come to harm without the risk being judged a substantial one. And while we might think that certain parenting choices are imprudent, “[W]e as a society, cannot punish parents for every error in judgment, even if a child is injured, under a theory of strict liability.” Bush, 2020-Ohio-772.

First District Appellate Court Determines that the Worst-Case Scenario Does Not Violate the Law

Under the circumstances in Ms. Jones’s case, we believe that any risk to the children from being locked inside the apartment was merely speculative. The trial court speculated that the locked door might prevent the children from escaping a fire or that a burglar might use the same sort of bolt cutters as Officer Harrell to access the apartment. These harms both require that the court engage in speculation about worst case scenarios and forbidden inference stacking.

Accordingly, we hold that viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found beyond a reasonable doubt that Ms. Jones recklessly created a substantial risk to the health or safety of her children, and therefore, her convictions were not based on sufficient evidence. As a result, Ms. Jones’s manifest-weight issue is moot, and we do not reach it.

Conclusion

Ms. Jones’s sole assignment of error is sustained. We reverse Ms. Jones’s convictions as based on insufficient evidence, and she is discharged from further prosecution.

Judgments reversed and appellant discharged.

Judge Pierre Bergeron., concurs.

Common Sense Dissent

Judge Robert Winkler., dissenting.
I respectfully dissent from the majority’s opinion holding that the

evidence was insufficient to support Ms. Jones’s convictions. The evidence was sufficient to show that Ms. Jones recklessly created a substantial risk to the health and safety of her children.

O.R.C. §2919.22(A) Endangering Children

O.R.C. §2919.22(A) Endangering Children provides, “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.” A “substantial risk” is “a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.” O.R.C. §2901.01(A)(8).

Did the State Prove that the Existence of Substantial Risk?

Ms. Jones argues and the majority holds that she did not create a substantial risk to the children’s safety. To prove substantial risk, the state must present evidence beyond mere speculation as to the risk of harm that could potentially occur. While the state need not prove the child suffered actual harm, it must demonstrate the existence of circumstances that created the substantial risk of harm.

A Padlocked Door is a Substantial Risk

I don’t believe that the risk in this case is speculative. It is not speculative to say that the children, ages eight and ten, were trapped in the apartment. Because the apartment was on the second floor, the only escape was the front door, which was padlocked from the outside. Ms. Jones created a substantial risk that they would not be able to get out of the apartment in case of an emergency. They had a cell phone, and Officer Harrell stated that it was “fair to say” that they knew how to use it. He did not specify how he came to that conclusion. There was no evidence showing that they knew how to call 911 or another number in an emergency.

Padlocking a Door with Small Children Inside is a Substantial Risk

Even if they knew how to call 911, it would take time for the help to arrive. The court did not have to speculate whether the lock made it more difficult to get in the apartment. Officer Harrell testified that they were slowed down by the padlock. Even though it took only ten to fifteen seconds to cut the padlock with a bolt cutter, extra seconds can be precious time in case of an emergency and could make a difference in the safety of the apartment’s occupants. The officers also took extra time to determine that the couch was blocking the door and to push it out of the way so that they could enter the apartment.

The Door-Blocking Couch is Demonstrative of the Children’s State of Mind

The children pushed the couch in front of the door because they feared for their safety. They also would not respond to the police officers’ inquiry until Officer Harrell identified himself as a police officer by sliding his card under the door. The children’s actions showed that they felt that there was a risk of harm to themselves.

Ms. Jones Acted Recklessly

The evidence was also sufficient to show that Ms. Jones acted recklessly. In determining whether a defendant acted recklessly, courts generally consider the child’s age, the amount of time the child was left unsupervised, whether the parent had notice of the risk, and any precautions the parent took to mitigate the risk.

Padlocking the Door was a Substantial Risk to the Children

The children in this case were eight and ten. Leaving children of those ages alone, in and of itself, would not be sufficient to constitute the offense of endangering children. Certainly, the state’s case would have been stronger if it had presented evidence of how long Ms. Jones was gone and where she went. Nevertheless, Ms. Jones did more than simply leave her children alone to fend for themselves. She padlocked the door from the outside, leaving them no means of escape. I agree with the trial court when it stated, “It’s certainly a known risk that anything can go wrong when you padlock anybody …There’s a whole different risk when you padlock someone in.”

I would hold that the state presented sufficient evidence, when viewed in a light most favorable to the prosecution, from which a rational trier of fact could have found that the elements of endangering children were proved beyond a reasonable doubt. Therefore, the evidence was sufficient to support Ms. Jones’s convictions.

Therefore, I would overrule Ms. Jones’s assignment of error and affirm the trial court’s judgments.

Information for this article was obtained from State v. Ms. Jones, 2023 – Ohio – 3862 and the embedded You Tube video link.

State v. Ms. Jones, 2023 – Ohio – 3862 was issued by the First District Appellate Court on October 25, 2023 and is binding in Hamilton County, Ohio.

Link to YouTube video of body camera: https://www.youtube.com/watch?v=CIonzrZU5yE

Lessons Learned:

  1. Hardest Job In America – This case demonstrates how law enforcement is THE hardest job in America! Here, the sergeant and officer at scene, the trial judge and one First District Appellate Judge all reasonably determined that the padlocking ten- and eight-year children in an apartment created a substantial risk of harm.  Unfortunately, two appellate court judges determined that padlocking two young children behind an apartment door is good parenting as it held “[H]er convictions were not based on sufficient evidence.”.
  2. Forced Entry – I find it very interesting that the First District Appellate Court does not address the officer’s forcing entry into the apartment. Nothing. Crickets.  Here, the officers used bolt cutters to force entry.  Since the court does not address the forced entry, are we to assume that the court silently determined that there was an actual and on-going emergency inside that justified the forced entry?  The officers were called to the scene by a social worker who determined that the children were in danger.  The officers arrived and came to the same conclusion.  I believe the officers were Objectively Reasonable to force entry, given the limited facts known to them at the time the bolt cutters were used on the padlock. For more on Exigent Circumstances entries see: https://www.objectivelyreasonable.com/category/exigent-circumstance/
  3. Judge Robert Winkler – The dissenting Judge, Robert Winkler, provided a very measured legal analysis and identifies why Ms. Jones convictions should have been upheld. He states in pertinent part “I don’t believe that the risk in this case is speculative. It is not speculative to say that the children, ages eight and ten, were trapped in the apartment. Because the apartment was on the second floor, the only escape was the front door, which was padlocked from the outside. Ms. Jones created a substantial risk that they would not be able to get out of the apartment in case of an emergency.”.
  4. Pre-Sent Arms! Norwood Police Officer Josh Harrell and the unnamed sergeant should be highly commended for taking definitive action to force entry and assure the children were safe.  Though the First District Appellate Court determined that secreting children behind a padlocked door did not create a substantial risk of harm, NPD took reasonable immediate actions based on limited information.  Well done!

Does your agency train on Child Endangering?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.