State v. McMillen, 2009 Ohio 210 (Ohio App. 1/20/2009), No. 2008-CA-00122.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtGwin
Citation2009 Ohio 210
PartiesState of Ohio, Plaintiff-Appellee, v. Mellissa Mcmillen, Defendant-Appellant.
Decision Date20 January 2009
Docket NumberNo. 2008-CA-00122.

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2009 Ohio 210
State of Ohio, Plaintiff-Appellee,
v.
Mellissa Mcmillen, Defendant-Appellant.
No. 2008-CA-00122.
Court of Appeals of Ohio, Fifth District, Stark County.
Date of Judgment Entry: January 20, 2009.

Criminal appeal from the Canton Municipal Court, Case No. 2008CRB00585.

Affirmed.

Joseph Martuccio, Canton Law Director, Francis G. Forchione, Canton City Prosecutor, Gabriel M. Wildman, Assistant City Prosecutor, Canton City Hall, Canton, OH 44702, for Plaintiff-Appellee.

Gregory L. Golub, 1340 Market Ave. North, Ste. 1, Canton, OH 44714, for Defendant-Appellant.

Before: Hon. Sheila G. Farmer, P.J., Hon. W. Scott Gwin, J., Hon. John W. Wise, J.

OPINION

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Gwin, J.


{¶1} Defendant-appellant, Mellissa M. McMillen, appeals from her conviction and sentence in the Canton Municipal Court on one count of patient endangering, a misdemeanor in violation of R.C. 2903.341(B). Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Betty Jo Shapiro is a profoundly retarded 57-year-old woman who resides at Hartville Meadows, an intermediate care facility that provides services to individuals with diagnoses ranging from mild mental retardation to profound mental retardation. Betty Jo has the level of understanding of a five-year-old. She is primarily non-verbal and is not able to speak in sentences or anything that is understandable.

{¶3} Betty Jo has a history of aggressive, non-complaint, and self-injurious behaviors. These behaviors include lowering herself to the floor, biting, hitting, kicking, and pulling other people's hair.

{¶4} Betty Jo has displayed these aggressive behaviors all her life, and she exhibits them on a daily basis. A behavioral support plan prepared by Jessica Stageman, Betty Jo's qualified mental retardation professional ("QRMP"), reported several months in which Betty Jo pulled other people's hair over 150 times. Sometimes Betty Jo is able to pull hard enough to knock the other person to the ground.

{¶5} According to Jacquella Bolden, who also served as Betty Jo's QRMP, Betty Jo may exhibit these behaviors for a variety of reasons. She may just want attention, or not want to take a bath or go to the dinner table, or she may be in pain.

{¶6} The appellant worked at Hartville Meadows in the unit where Betty Jo lives. On October 25, 2007, at approximately 6:20 a.m. Betty Jo approached Mellissa and

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then fell to the ground. Betty Jo was not injured in the fall. This incident was observed by Pamela Pike and Melissa Parkinson, who were also employees of Hartville Meadows. Ms. Pike and Ms. Parkinson both reported that Mellissa pushed Betty Jo, resulting in the fall. Ms. Pike further testified that as appellant pushed Betty Jo to the ground, appellant stated, "[t]his bitch is going to get me." Both Ms. Pike and Ms. Parkinson testified that on the day of the incident appellant was in a bad mood, stating "that she was just so sick of this fucking place.."

{¶7} Ms. Pike had been previously suspended from Hartville Meadows for verbally abusing a patient. During her testimony, she initially denied having any other work related suspensions; however, when confronted with her personnel record, Ms. Pike admitted having a prior suspension for permitting two clients to leave a swimming pool activity. Ms. Pike also admitted having had a four-day suspension for leaving a resident who required 24-hour supervision unattended in a van. Additionally, Ms. Pike's work record revealed that she had been written up close to sixty times.

{¶8} Jacquella Bolden testified that Ms. Parkinson has a bad reputation in the community for honesty. Ms. Bolden testified that she overheard Ms. Parkinson in a conversation state that she, Ms. Parkinson, wanted to get appellant fired. Ms. Bolden stated that she has "heard things that have come out of her mouth, so I know that she lies."

{¶9} On November 26, 2007, a complaint for assault, under R.C. 2903.13, a fourth degree felony, was filed against the appellant in the Canton Municipal Court, Case No. 2007 CRA 06041. On December 12, 2007, appellant waived the preliminary hearing, and the case was bound over to the Stark County Grand Jury.

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{¶10} On January 28, 2008, the Stark County Grand Jury, in Case No. 2007 CR 2174, indicted appellant on one count of patient endangering, a violation of R.C. 2903.341(B), a first degree misdemeanor, and the case was remanded to the Canton Municipal Court, and filed as Case No. 2008 CRB 00585.

{¶11} A two-day jury trial in this matter was commenced on April 10, 2008. Appellant was found guilty and sentenced by the trial court to 180 days in jail, with all but 32 days suspended, credit for two days served, and the remaining 30 days to be served on electronically monitored house arrest. Appellant was also ordered to serve two years probation. Sentence was stayed pending this appeal.

{¶12} Defense counsel filed a motion for a new trial for jury misconduct on April 25, 2008. An evidentiary hearing on the motion took place on May 25, 2008. By Judgment Entry filed April 11, 2008, the trial court denied appellant's motion for a new trial.

{¶13} Appellant timely appeals, raising the following five assignments of error:

{¶14} "I. THE DEFENDANT WAS DEPRIVED OF HER RIGHT TO DUE PROCESS UNDER THE OHIO AND U.S. CONSTITUTIONS BECAUSE THE INDICTMENT FAILED TO CHARGE A MENS REA ELEMENT OF THE OFFENSE OF PATIENT ENDANGERMENT.

{¶15} "II. THE JURY'S VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶16} "III. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT "RECKLESSNESS" IS AN ELEMENT OF THE OFFENSE OF PATIENT ENDANGERING.

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{¶17} "IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO DECLARE A MISTRIAL WHEN THE PROSECUTION INTIMATED THAT DEFENDANT'S FAILURE TO TESTIFY AT TRIAL SUPPORTS A FINDING OF GUILTY AND ENGAGED IN OTHER MISCONDUCT DURING CLOSING ARGUMENTS.

{¶18} "V. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GRANT A NEW TRIAL FOR JUROR MISCONDUCT.

I.

{¶19} Appellant argues in her first assignment of error that her indictment violated State v. Colon1, ["Colon I"] because it did not specify the requisite mens rea element for her patient endangerment charge. Appellant argues that the indictment was defective thereby resulting in structural error. We disagree.

{¶20} Colon I, supra, concerned an indictment for robbery in violation of R.C. 2911.02(A) (2), which provides:

{¶21} "No person, in attempting or committing a theft offense * * * shall do any of the following: * * *

{¶22} "(2) Inflict, attempt to inflict, or threaten to inflict physical harm."

{¶23} The Colon I court held:

{¶24} R.C. 2911.02(A) (2) does not specify a particular degree of culpability for the act of `inflict[ing], attempt[ing] to inflict, or threaten [ing] to inflict physical harm,' nor does the statute plainly indicate that strict liability is the mental standard. As a result, [pursuant to R.C. 2901.21(B),] the state was required to prove, beyond a reasonable doubt, that the defendant recklessly inflicted, attempted to inflict, or threatened to inflict physical harm. Colon, 2008-Ohio-1624, ¶ 14, 118 Ohio St.3d 26, 885 N.E.2d 917.

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{¶25} In the case at bar, appellant was indicted for patient endangerment in violation of R.C. 2903.341, which provides:

{¶26} "(B) No MR/DD caretaker shall create a substantial risk to the health or safety of a mentally retarded person or a developmentally disabled person.."

{¶27} The patient endangerment statute under which appellant was convicted does not specify a requisite degree of culpability.

{¶28} R.C. 2901.21(B) provides:

{¶29} "When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense."

{¶30} In State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, the Ohio Supreme Court stated:

{¶31} "[A] court must be able to answer in the negative the following two questions before applying the element of recklessness pursuant to R.C. 2901.21(B): (1) does the section defining an offense specify any degree of culpability, and (2) does the section plainly indicate a purpose to impose strict criminal liability? * * *" Id. at ¶ 21.

{¶32} The Ohio Supreme Court has construed statutory language similar to the language contained in R.C. 2903.341. The Ohio Supreme Court has held that an indictment for child endangering which does not contain the culpable mental state of

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recklessness is insufficient to charge that offense. State v. O'Brien (1987), 30 Ohio St.3d 122, 508 N.E.2d 144.

{¶33} R.C. 2919.22, endangering children provides, in relevant part:

{¶34} "(A) 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 or a mentally or physically handicapped child under twenty-one 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.." [Emphasis added].

{¶35} Like the child endangerment section reviewed in O'Brien, supra, patient endangerment does not specify a particular degree of culpability for the act of creating a substantial risk to the health or safety of a mentally retarded person or a developmentally disabled person, nor does the statute or case law plainly indicate that strict liability is the mental standard. Therefore, R.C. 2901.21(B) imports the default mental element of recklessness. Colon I, 2008-Ohio-1624, ¶¶ 11-15, 118 Ohio St.3d 26, 885 N.E.2d 917.

{¶36} Citing State v. Colon, supra, appellant argues that because the...

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