[Cite as State v. Ford,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109087 v. :

ISRAEL FORD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 3, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-638091-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Caroline Nelson, Assistant Prosecuting Attorney, for appellee.

Friedman & Gilbert and Mary Catherine Corrigan, for appellant.

MICHELLE J. SHEEHAN, J.:

Appellant Israel Ford (“Ford”) appeals from a judgment of the

Cuyahoga County Court of Common Pleas that convicted him of domestic violence

after a bench trial. The domestic violence conviction stemmed from an incident where Ford struck his 17-year-old stepdaughter K.C. with a belt, leaving bruises

visible three days after the incident. Ford claims the record does not support his

conviction of domestic violence because he was administering parental discipline to

punish his stepdaughter’s misbehavior. While the courts in Ohio have recognized

proper and reasonable parental discipline as an affirmative defense to a charge of

domestic violence, we conclude that the trial court, in rejecting Ford’s claim that his

conduct constituted proper and reasonable parental discipline, did not clearly lose

its way and create a manifest miscarriage of justice in finding Ford guilty of domestic

violence. We therefore affirm Ford’s conviction.

Procedural History

Ford and his wife Lydia Ford were jointly indicted in a 15-count

indictment. The first 11 counts charged them with robbery, assault, and other

related offenses, which stemmed from an unrelated incident involving a different

victim, Latesha McFarland.

Counts 12, 13, 14, and 15 stemmed from the subject incident on

January 15, 2018, where Ford struck his stepdaughter with a belt purportedly as a

parental discipline to punish her for her misbehavior. In Count 12, Ford and his wife

were jointly charged with endangering children as defined in R.C. 2919.22(A), a

third-degree felony; in Counts 13 and 14, Ford alone was charged with endangering

children as defined in R.C. 2919.22(B)(1) and (B)(3), respectively, both a second-

degree felony; and in Count 15, Ford alone was charged with domestic violence as

defined in R.C. 2919.25(A). Regarding Counts 1 to 11, Ford and his wife pleaded guilty to several

offenses charged in the indictment pursuant to a plea agreement. However, they

opted for a bench trial regarding Counts 12 to 15.

Trial Testimony

At trial, the state presented the testimony of K.C.; her father; Latesha

McFarland (the victim of the first 11 counts in the indictment) to whom the Fords

revealed the belt incident; and two police officers. Lydia Ford called one witness, an

employee from the Cuyahoga County Department of Children and Family Services

(“CCDCFS”). Ford did not call any witnesses.

K.C., 17 at the time of the incident, provided extensive testimony

during direct and cross-examination. She acknowledged that her stepfather and her

mother had strict rules for her and expected her to “behave like a Christian.” She

would get “whooped” if she violated the rules — the punishment involved lying

across the bed, taking her pants off, and being struck with a belt. Her mother was

usually the one administering the punishment. A few days before the January 15,

2018 incident, Ford and K.C.’s mother Lydia inspected K.C.’s cell phone and

discovered highly inappropriate content posted on her Snapchat account, which

upset them. However, nothing happened on that day.

On January 15, 2018, her mother “whooped” her with a belt as a

punishment for her misbehavior in the Snapchat incident. After being “whooped”

by her mother, to “get the heat off” her, K.C. told her mother that Ford had been

sending text messages to his ex-wife. This infuriated Ford, and he told K.C. to go upstairs to get ready for a “whooping.” When K.C. refused to go upstairs for the

punishment, Ford grabbed her by the arm and pushed her down on the floor in the

living room, and held her down with his knee on her neck. She fought him off and

picked up a knife from the kitchen but soon put down the knife. Ford then pushed

her around. Tired of fighting with Ford, K.C. went upstairs eventually and was

struck by Ford with a belt. Afterwards, Ford told her she was not to go to school the

next day because she was “not going to school to be telling [her] teachers about this.”

When asked if she received any “injuries” from the whooping, K.C. testified that she

would not describe herself as “injured” but she did have bruises.

Three days after the belt incident, on January 18, 2018, K.C.’s aunt

took her to the hospital and the police to make a report. K.C. provided a statement

to the police, and a police officer took pictures of her bruises. The pictures were

admitted as exhibits, which showed bruises on her shoulder, arm, legs, and thigh.

K.C. also read the statement she provided to the police, which contained more

details regarding the incident. The statement reflects that after she told her mother

something about her stepfather, he told her to go upstairs to be “whooped.” When

she refused, he put her on the ground and choked her with his knee on her neck.

She ran to the kitchen to grab a knife to defend herself, but put it down in the sink.

Her stepfather then slammed her into the wall of the kitchen and then threw her

around in the living room. When she finally went upstairs, she resisted being

“whooped.” He then started beating her all over with a belt and slammed her to the ground. He beat her all over her body and pulled her by her hair to the ground. After

that, she laid down and let him “whoop” her.

K.C.’s father testified that she called him after the incident, crying and

upset, and told him what had happened. He saw her the next day and observed what

appeared to be fresh bruises on her lower body, back, shoulders, and neck.

Latesha McFarland, who knew the Fords and was the victim in the

first 11 counts of the indictment, testified that they told her that they “jumped [K.C.]

and beat her up really bad like she was a girl on the street.”

Officer Kyle Nyman, a police officer of the Euclid Police Department,

testified that he took a statement from K.C. regarding the incident. He observed

some bruises on her body but she refused an offer of medical attention. He reported

the incident to CCDCFS. Lieutenant Michael Knack, also of the Euclid Police

Department, testified that the police department did not take any further action on

K.C.’s report until it was investigating the case involving McFarland.

Ford’s wife called a witness, Brook Gaines, an employee of CCDCFS.

She received a referral regarding the incident and met with the Fords and K.C. on

January 18, 2018. K.C. told her what precipitated the belt incident was her revealing

to her mother that Ford was communicating with his ex-wife by text messages.

Gaines observed bruises on K.C.’s left leg about the size of a half dollar, a longer

bruise on her right knee about the size of a dollar bill, a bruise on her lower back

side, a bruise on upper left thigh the size of a nickel, and bruises on her left arm

looking like four fingerprints left by someone grabbing her arm hard. She testified that under the agency’s standards, discipling a child with a belt would be appropriate

provided it did not cause bruising. She testified K.C. did not require medical

attention; she referred the family for counseling; the family was cooperative; and the

agency had no concerns regarding physical abuse in the family and closed the case

in March 2018.

Verdict and Sentence

The trial court found the Fords not guilty of Count 12 (endangering

children in violation of R.C. 2919.22(A)), and also found Ford not guilty of Count 13

(endangering children in violation of R.C. 2919.22(B)(1)) and Count 14

(endangering children in violation of R.C. 2919.22(B)(3)). The court explained that

the state failed to prove beyond a reasonable doubt that the defendants’ conduct

resulted in serious physical harm, or created a substantial risk to the health or safety

of the child, or created a substantial risk of serious physical harm to the child, as

required by the endangering-children counts. However, the court found Ford guilty

of Count 15, domestic violence, a misdemeanor of the first degree, in violation of

R.C. 2919.25(A), which required a proof of physical harm instead of serious physical

harm.

At sentencing, the trial court remarked that Ford’s conduct exceeded

corporal punishment when he pushed her down and held her down with his knee on

her neck and then slammed her into a wall. While Ford did not testify at trial, he

disputed K.C.’s testimony regarding the incident when he spoke at the sentencing hearing. He denied putting his knee on her neck, pushing her down, or slamming

her into the wall.

The trial court sentenced Ford to a term of 120 days in county jail for

his convictions relating to Counts 1 to 11, and a concurrent term of 120 days in county

jail for his conviction of domestic violence as charged in Count 15 .

On appeal, appellant raises the following assignment of error for our

review:

The record does not support appellant’s conviction for domestic violence.

Applicable Law

Ford was convicted of domestic violence as defined in

R.C. 2919.25(A), which states: “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.”1 (Emphasis added.)

R.C. 2919.25(A) prohibits a person to knowingly cause or attempt to cause “physical

harm” to a family member. The term “physical harm” in the domestic violence

statute is defined in R.C. 2901.01(A)(3) as “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.”

Under the assignment of error, Ford argues his conviction is not

supported by the evidence because he proved the affirmative defense of parental

1 We note that Ford was charged under R.C. 2919.25(A), which requires a proof of “physical harm,” as opposed to R.C. 2919.25(B), which states that “[n]o person shall recklessly cause serious physical harm to a family or household member.” (Emphasis added.) discipline. He maintains that his striking of his stepdaughter with a belt was proper

and reasonable as a discipline for her misbehaver.

Ford claims that “the record does not support [his] conviction for

domestic violence” and that the state “must prove beyond a reasonable doubt that

[he] knowingly caused or attempted to cause physical harm to a household or family

member * * *,” without clearly framing it as a sufficiency-of-evidence challenge or a

manifest-weight challenge. Therefore, before evaluating the merit of Ford’s

argument, we first clarify the nature of his claim.

Suchomski and Faggs

In the seminal case on corporal punishment, State v. Suchomski,

,

(1991), the Supreme Court of Ohio recognized that

a parent has a right to administer proper and reasonable corporal punishment as a

method of parental discipline. In Suchomski, appellant was convicted of domestic

violence under R.C. 2919.25(A) for punching his child with a fist and pounding his

head against the wall. He argued that charging him with domestic violence pursuant

to R.C. 2919.25(A) would effectively prohibit a parent from using corporal

punishment to discipline a child. He contended that the General Assembly, in

enacting R.C. 2919.22,2 recognized a parent’s right to administer proper and

2 R.C. 2919.22 (“Endangering children) defines a type of child endangering where corporal punishment is excessive under the circumstances and creates a substantial risk of serious physical harm to a child. R.C. 2919.22(B) states, in pertinent part:

(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: reasonable corporal punishment as long as serious physical harm to the child did

not result. The Supreme Court of Ohio rejected appellant’s argument and affirmed

his conviction of domestic violence. The court stated the following:

Nothing in R.C. 2919.25(A) prevents a parent from properly disciplining his or her child. The only prohibition is that a parent may not cause “physical harm” as that term is defined in [R.C. 2901.01]. “Physical harm” is defined as “any injury[.]” “Injury” is defined in Black’s Law Dictionary (6 Ed. 1990) 785 as “*** [t]he invasion of any legally protected interest of another.” (Emphasis added.) A child does not have any legally protected interest which is invaded by proper and reasonable parental discipline.

.

Pursuant to Suchomski, therefore, a parent has a right to administer

proper and reasonable corporal punishment as a method of parental discipline.

State v. Hicks,

,

(10th Dist. 1993) (pursuant

to Suchomski, a parent may use corporal punishment without violating

R.C. 2919.25(A) as long as the parental discipline is proper and reasonable under

the circumstances).

However, the above passage caused much confusion among the

appellate districts as to whether reasonableness of the parental discipline goes

toward the state’s burden to prove the physical-harm element of domestic violence

*** (3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child[.]

(Emphasis added.) or goes toward a defendant’s establishment of an affirmative defense to the charge

of domestic violence.3 See State v. Rosa,

,

(7th Dist.),

¶ 20-26. If unreasonable parental discipline is a component of the element of

physical harm, then it is the state’s burden to prove the discipline is unreasonable

beyond a reasonable doubt; if reasonable parental discipline is an affirmative

defense, the parent bears the burden of proof, albeit under the lower preponderance

of the evidence standard. Id. at ¶ 20. In Rosa, the Seventh District held that the

issue of reasonable parental discipline is a component of the physical-harm element

of the domestic violence offense.

Recognizing a split among the appellate districts on this issue, the

Supreme of Ohio recently granted an interdistrict conflict certified by the Fifth

District between its decision in State v. Faggs, 5th Dist. Delaware No. 17 CAA 10

0072,

(analyzing the parental discipline issue as an affirmative

defense) and the Seventh District’s decision in Rosa. Resolving the conflict, the

Supreme Court of Ohio held that reasonable parental discipline is an affirmative

defense. State v. Faggs, Slip Opinion No.

.

While the Supreme Court of Ohio in Faggs did not specifically

address the issue of whether the assertion of parental discipline should be analyzed

3 An affirmative defense is “[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.” R.C. 2901.05(D)(1)(b). “The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, * * * is upon the accused.” R.C. 2901.05(A). under a sufficiently-of-the-evidence challenge or a manifest-weight challenge, the

court affirmed the Fifth District’s decision in Faggs,

, which upheld

the domestic violence conviction of a parent who claimed the affirmative defense of

parental discipline. In its decision, the Fifth District reasoned that because proper

and reasonable parental discipline was an affirmative defense, it should be analyzed

as a manifest-weight challenge. It concluded that the trial court, in rejecting

appellant’s claim of proper and reasonable parental discipline, did not clearly lose

its way and create a manifest miscarriage of justice. Id. at ¶ 26.

Our court has properly analyzed a parent’s claim of parental

discipline as an affirmative defense and evaluated it under a manifest-weight review.

See, e.g., Westlake v. Y.O., 8th Dist. Cuyahoga No. 107226,

(a

sufficiency challenge does not implicate affirmative defenses; rather, the claim of

parental discipline should be properly reviewed under a manifest-weigh-of-the-

evidence claim); and Cleveland v. Mincy, 8th Dist. Cuyahoga No. 106224, 2018-

Ohio-3565, ¶ 24 (whether defendant was entitled to a parental-discipline affirmative

defense has no bearing on the sufficiency of the evidence).

When evaluating a manifest-weight claim, an appellate court “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.” State v. Thompkins,

,

(1997). In evaluating a defendant-parent’s claim that the conviction of

domestic violence is against the weight of the evidence, we consider whether the

defendant sustains his or her burden of proof with regard to the affirmative defense

that he or she used only proper and reasonable parental discipline. State v. Jones,

,

(8th Dist. 2000).

“Proper” has been defined as “suitable or appropriate” and

“reasonable” as “not extreme or excessive.” State v. Hauenstein,

,

(3d Dist. 1997). Furthermore, the reasonableness of

corporal punishment in each case must be evaluated in light of all the relevant facts

and circumstances, including “the child’s age, the child’s behavior that led to the

parent’s action, the child’s response to non-corporal punishment, and the location

and severity of the punishment,” as well as “the parent’s state of mind while

administering the discipline.”

.

Analysis

While Ford asserted the affirmative defense of parental discipline and

claimed his striking K.C. with a belt was parental discipline in response to her

posting inappropriate content on the social media, K.C. testified that the belt

incident was not precipitated by her conduct in the social media but rather by Ford’s

anger over her revealing his communication with his ex-wife to her mother. Ford

did not present witnesses to refute K.C.’s testimony, and Lydia Ford’s witness

Brooke Gaines testified that K.C. had told her what immediately triggered the belt

incident was K.C.’s reporting of Ford’s communication with his ex-wife. Therefore, an analysis of whether the purported parental discipline was proper and reasonable

under the circumstances is not even warranted by the testimony presented in this

case.

Even if we were to consider Ford’s striking his stepdaughter with a

belt as parental discipline, the courts have upheld convictions of domestic violence

under R.C. 2919.25(A) when a parent punished a child with a belt leaving visible

marks. In

a parent spanked her 11-year-old son with a belt for being

dishonest at school and the spanking left welts and bruising on the child’s legs and

torso still visible the following day. This court upheld her conviction of domestic

violence, concluding the conviction did not create a manifest miscarriage of justice.

In State v. Cantwell, 5th Dist. Licking No. 2007 CA 00062,

, a

father struck his four-year-old daughter several times on the buttocks with a belt to

discipline her for crying and screaming and refusing to go to bed. The belting left

bruises on the child’s buttocks and legs. The Fifth District similarly concluded the

conviction of domestic violence was not against the manifest weight of the evidence.

Ford argues his punishment of K.C. was not excessive because K.C.

herself testified she was not “injured” and the CCDCFS had no concerns regarding

physical abuse in the family. However, the bruises on K.C.’s leg, knee, back, upper

thigh, and arm were visible three days after the incident, observed by both the police

officer who took the police report and the CCDCFS employee. The photographs

taken three days after the incident by a police officer, which showed visible bruises,

were admitted as exhibits. Ford was apparently aware of the excessiveness of the punishment as he instructed K.C. not to go to school the next day to avoid her

revealing the incident to her teachers. Ford’s claim is also belied by his own

characterization of the incident to Latesha McFarland; Latesha McFarland testified

that Ford and his wife Lydia told her that they “jumped” K.C. and “beat her up really

bad.” 4

Furthermore, even if Ford’s striking his stepdaughter with a belt

could be characterized as proper parental discipline in response to K.C.’s

misbehavior, Ford’s conduct significantly exceeded corporal punishment. K.C.’s

testimony showed that Ford grabbed her by the arm, pushed her to the floor, held

her down with his knee on her neck, and then slammed her to a wall in the kitchen

and threw her around in the living room, before striking her with a belt.

Having reviewed the evidence in this case, we conclude that the trial

court, in rejecting Ford’s claim that his conduct constituted proper and reasonable

parental discipline, did not clearly lose its way and create such a manifest

4 Ford cites State v. Ivey,

,

(8th Dist. 1994), to support his claim that the corporate punishment he administered on K.C. and the resulting harm was not excessive. In Ivey, a father whipped his ten-year-old son with a belt for not telling him about a detention at school and the child suffered bruises and welts on his buttocks and legs. The father was convicted of multiple counts of endangering children. This court reversed, concluding that the state failed to prove by sufficient evidence that the parent’s whipping resulted in serious physical harm or created a substantial risk of serious physical harm to the child. Ivey is not applicable to this case as it concerned child endangering, not domestic violence. The former requires a proof of “serious physical harm” and the latter “physical harm.” Notably, the trial court here acquitted Ford of the child endangering counts and only convicted of him of domestic violence. miscarriage of justice that his domestic violence conviction must be reversed and a

new trial ordered.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_______________________________ MICHELLE J. SHEEHAN, JUDGE

MARY J. BOYLE, P.J., and FRANK D. CELEBREZZE,, JR., J., CONCUR