[Cite as State v. Middleton , 2020-Ohio-1308.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO Plaintiff-Appellee

v. DANIEL E. MIDDLETON Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-22

Trial Court Case No. CRB1801401 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 3rd day of April, 2020.

. . . . . . . . . . . MICHAEL A. MAYER, Atty. Reg. No. 0064079, City of Fairborn Pros ecuting Attorney, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee BENJAMIN W. ELLIS, Atty. Reg. No. 0092449, 805-H Patterson Road , Dayton, Ohio 45419 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant-Appellant, Daniel Middleton, appeals from his convict ions of domestic violence and child endangering, both first-degree misd emeanors. According to Middleton, the trial court erred in admitting evidence of ot her acts of violence because the stated purpose of the admission was to demonstrate a patter n of bad acts, which was prejudicial. Middleton further contends that R.C. 2919.25(A) a nd R.C. 2919.22(B)(1), as applied to parental discipline, are unconstitutional because th ey relieve the State of its burden of proof and presume that constitutionally-protected par ental conduct is criminal. {¶ 2} For the reasons discussed below, we find no merit in Middleton’ s arguments. However, the trial court did lack subject-matter jurisdiction t o consider the misdemeanor charge of child endangering under R.C. 2919.22(B)(1), because R .C. 2151.23(A)(6) gives the juvenile court exclusive original jurisdiction over such ch arges. Accordingly, the conviction for child endangering is void and will be vacated. The conviction for domestic violence will be affirmed. Due to the trial court’s merger of the domestic violence into the child endangering for purposes of sentencing, this case will be remanded for a new sentencing hearing on the domestic violence conviction.

I. Facts and Course of Proceedings {¶ 3} On July 20, 2018, a citation was filed in the Fairborn Municipa l Court charging Middleton with domestic violence in violation of R.C. 2919.25(A ) and child endangering in violation of R.C. 2919.22(B)(1). The citation arose from ev ents that occurred on July 5, 2018, when Middleton’s nine-year old son, John, 1 was at Middleton’s home for

1 For purposes of privacy, we will use the pseudonym of “John” t o refer to the victim in this case.-3- parenting time. Middleton was not at home during the day, beca use he was working. However, Middleton’s fiancée, CJ, and some friends went to the Beach waterpark and took John along. They left home at about 8:00 a.m. and left th e park at around 4:00 p.m. {¶ 4} That day, CJ did not let John get in the water or play. Instea d, John was required to sit and write sentences from the Bible because Midd leton said that John had lied when talking to a guardian ad litem in a custody proceedin g between John’s parents. Middleton had initiated the custody proceeding, and it was reso lved in favor of John’s mother, J.J., in May 2018. During the proceedings, a guardian ad litem had visited both parties and John. {¶ 5} The first complaint that J.J. made about how Middleton discipli ned John occurred several months before April 2018, when Middleton texte d J.J. to say he had hit John with a belt. At that time, J.J. told Middleton that he di d not need to hit John with a belt, and that she did not want that to happen ever again. How ever, Middleton let her know that he was going to keep doing what he wanted to do and w hat he felt was appropriate. {¶ 6} Subsequently, in April 2018, J.J. filed a police report because Middleton had

hit John with a belt for a second time. J.J. also alerted the court in which she was awaiting a custody decision. The judge in that case then told Middleton that he could not hit John with a belt, but that he could spank with an open hand . According to John, his father also spanked him and imposed a sentence of 1,000 Bible v erses after he (John) told the police about being hit with a belt. John was in troub le because Middleton said he had lied to the police. Thus, Middleton imposed punishment both after John spoke to a guardian ad litem and after John told the police about his fa ther’s actions.-4- {¶ 7} As noted, the events involved in this case occurred on July 5, 2018. That year, July 4 was on a Wednes day, and J.J. had parenting time wi th John from 9:00 a.m. to 9:00 p.m. that day. Because both parents attended a Dayton Dragons game that night, they exchanged John at the game. The water park excursi on occurred the next day, on Thursday. J.J. testified that she had never spanked Jo hn and that she did not strike him or do anything that would cause bruising on his butt ocks before he left with his father on July 4, 2018. {¶ 8} On Thursday, July 5, 2018, John continued to write Bible verses after he got back from the water park. During the day, John also had some c onflict with CJ at the water park. According to John, he looked at CJ a few times, an d she indicated she was offended. She did not say why. {¶ 9} When Middleton got home from work that night, he talked to John and tried to figure out the problem between John and CJ. When that did n ot work, Middleton told John to take off his shorts. Middleton then spanked John 25 ti mes on his buttocks.

John stated that it hurt a lot and that he cried. When John to ok a shower, there was a

little bit of blood on his bottom. {¶ 10} The next day (Friday), when J.J. picked John up at Middleton’s house, Middleton and CJ approached the car. At that time, Middleton a dmitted that he had spanked John, saying that he had spanked John for “mean-mugging ” CJ. After J.J. and John arrived back home, J.J. asked John if she could look at hi s bottom. It was deeply bruised, and John said it hurt. Because it was late, J.J. told John he could go to their family doctor, as the office was open the next morning. Howeve r, when J.J. called the doctor the next morning, she was told that she needed to take J ohn to Dayton Children’s-5- Hospital (“DCH”). {¶ 11} John presented at DCH on Saturday, July 7, 2018, with a concern of physical abuse. After John arrived, a social worker gathered a history from J.J., took pictures of John’s injuries, talked to a physician, and made ma ndated reports or referrals to both Children Services and the police. J.J. told the social worker that John had been “recurrently spanked,” that he had been spanked two days before coming to the emergency room, and that she wanted him evaluated. Transcript of Proceedings (“Tr.”), p. 18. {¶ 12} The doctor who examined John, Dr. Drazner, had been an emergenc y attending physician at DCH sinc e 1997. Dr. Drazner had been tr ained in recognizing pediatric child abuse and was a mandatory reporter who was requ ired by law and ethics to report whenever he suspected abuse. John told Dr. Drazner t hat two days earlier, Middleton had struck him repeatedly with an open hand and that he was made to lay on the bed face down and take his pants down, but leave his underw ear on. {¶ 13} Dr. Drazner’s examination revealed that John “had very extensiv e bruises on both buttocks and they were quite severe.” Tr. at p. 119. The bruises were very deep, were on both buttocks, and were in a location that indica ted John had been hit multiple times. According to the doctor, the injuries were con sistent with the history he was given, and he made a medical diagnosis that John had been p hysically abused. {¶ 14} The same day, Officer Keith Duncan of the Beavercreek Police De partment was dispatched to DCH and spoke with the social worker and J.J. At that time, J.J. told Duncan that Middleton had a history of doing things she believe d were very excessive in disciplining John. J.J. also told Duncan she had filed a repor t in the past about concerns-6- about spanking and markings and abuse to John. In addition, sh e showed Duncan past pictures of J.J. with bruising to his bottom that appeared exce ssive. {¶ 15} Officer Duncan did not speak with John at the hospital, but did talk to him later that day at the police station. After taking pictures of John’s buttocks, Duncan asked John to tell him his side of the story. At no time did J ohn indicate that anyone had spanked him other than his father. {¶ 16} That day, Duncan tried to reach Middleton at his home, but was unsuccessful. However, he was able to contact Middleton by pho ne. Middleton admitted spanking John on Thursday, July 5, 2018. Middleton sa id that he spanked John because he was “mean-mugging” Middleton’s fiancée and was givin g her aggressive looks and an attitude. When Duncan asked Middleton how many ti mes he had spanked John on July 5, 2018, Middleton stated that he had spanked John 25 times. Tr. at pp.

140-141. {¶ 17} Later that day, Middleton also gave the police a written statem ent, again acknowledging that he had spanked John. After Duncan’s investi gation ended, there was no evidence that anyone other than Middleton had injured Jo hn. {¶ 18} As noted, a citation was filed in the municipal court on July 2 0, 2018. A jury trial was then held on April 24, 2019. During the trial, the State presented testimony from J.J., John, Officer Duncan, Dr. Drazner, and the DCH socia l worker. Middleton did not present any witnesses or evidence, but relied on “the affir mative defense that he was engaged in reasonable and proper measures to discipline a child .” Tr. at p. 235. After considering the evidence, the jury found Middleton guilty of bo th domestic violence and child endangering. At sentencing, the State elected sentencing on child endangering,-7- and the court then sentenced Middleton to 180 days in jail, wit h 120 days suspended, supervised community c ontrol for a maximum of five years, a men tal health assessment with follow-up treatment for anger management, parenting classe s, and no contact directly or indirectly with John for five years. This timely a ppeal followed.

II. Other Acts Evidence {¶ 19} Middleton’s First Assignment of Error states that: Other Acts Evidence Pervaded the Trial and Was Improperly Admitted Because the Explicitly Stated Purpose Was to Demonstra te a

Pattern of Bad Acts. {¶ 20} Under this assignment of error, Middleton contends that the tri al court failed to comply with Evid.R. 404(B) by allowing evidence of his prior bad acts. In addition, Middleton argues that he was prejudiced because this evidence c onvinced the jury that he was a bad, violent father. Middleton further contends that if the prior acts evidence is excised, it removes much of the history the social worker and p hysician referenced in their expert testimony on child abuse, and also casts doubts on J.J.’s credibility, given that she was embroiled in a bitter custody battle with Middleto n. {¶ 21} We review admission of other acts evidence for abuse of discret ion, and “should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice.” State v. Conway , 109 Ohio St.3d 412, 2006-Ohio- 2815, 848 N.E.2d 810, ¶ 62. Accord State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 110. Consequently, “our inquiry is confined to d etermining whether the trial court acted unreasonably, arbitrarily, or unconscionably in deciding the evidentiary-8- issues * * *.” Conway at ¶ 62. {¶ 22} Typically, “most instances of abuse of discretion will result i n decisions that are simply unreasonable, rather than decisions that are unconsc ionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable i f there is no sound reasoning process that would support that decision.” Id

. {¶ 23} Regarding “other acts” evidence, Evid.R. 404(B) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof o f motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. {¶ 24} R.C. 2945.59 further states: In any criminal case in which the defendant's motive or intent , the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendan t which tend to show his motive or intent, the absence of mistake or acciden t on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or su bsequent thereto, notwithstanding that such proof may show or tend to sh ow the commission of another crime by the defendant. {¶ 25} Evid.R. 404(B) “is in accord with R.C. 2945.59,” and both the r ule and statute adopt the common law to “preclude admission of other ac ts evidence to prove a-9- character trait in order to demonstrate conduct in conformity w ith that trait * * *.” (Citations omitted.) State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 16. Unlike R.C. 2945.59, however, Evid.R. 404(B) “cont ains no reference to materiality.” Id . at ¶ 17. “Rather, [Evid.R. 404(B)] precludes the admission o f evidence of crimes, wrongs, or acts offered to prove the character of an accused in order to demonstrate conforming conduct, and it affords the trial court discretion to admit evidence of other crimes, wrongs, or acts for ‘other purposes,’ includin g, but not limited to, those set forth in the rule. Hence, the rule affords broad discretio n to the trial judge regarding

the admission of other acts evidence.” Id

. {¶ 26} In Williams , the Supreme Court of Ohio prescribed a three-part analysis fo r considering other acts evidence. “The first step is to conside r whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evide nce. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate p urpose, such as those stated in Evid.R. 404(B). The third step is to consider whethe r the probative value of the other acts evidence is substantially outweighed by the danger o f unfair prejudice. See

Evid.R. 403.” Id. at ¶ 20. {¶ 27} There is no question that evidence about Middleton’s prior puni shment of John could be described as prior acts evidence. At trial, the State’s justification for offering the evidence was based on the fact that Middleton “had been charged under the broad section of abuse of a child, which takes into account the totality of circumstances,-10- which would be the child’s age, behavior leading up to the disc ipline, the response to noncorporal punishment and any other punishment in terms of est ablishing a pattern of abuse.” Tr. at p. 4. The trial court agreed with the State an d allowed the evidence. Tr. at p. 6. {¶ 28} The State’s argument is unavailing in the case before us, howev er, because the trial court lacked subject-matter jurisdiction over the chi ld endangering charge. Middleton did not raise this point in the trial court or on app eal, but we are allowed to raise subject-matter jurisdiction on our own motion at any time. Care Risk Retention Group v.

Martin , 191 Ohio App.3d 797, 2010-Ohio-6091, 947 N.E.2d 1214, ¶ 97 (2 d Dist.), citing State ex rel. White v. Cuyahoga Metro. Hous. Auth. , 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1979). The reason is that “[s]ubject-matter jurisdiction m ay not be waived or bestowed upon a court by the parties to the case.” White at 544. Notably, we have provided the parties with an opportunity to respond to this iss ue, and have considered their positions. In its response, the State has conceded the e rror. {¶ 29} The child endangering charge was brought in municipal court und er R.C. 2919.22(B)(1). However, R.C. 2151.23 confers exclusive origina l jurisdiction of such cases upon juvenile courts. Specifically, R.C. 2151.23 provide s, in pertinent part, that: (A) The juvenile court has exclusive original jurisdiction under the

Revised Code as follows : * * * (6) To hear and determine all criminal cases in which an adult is charged with a violation of * * * division (B)(1) of section 2919.22 , * * * provided the charge is not included in an indictment that also charges the-11- alleged adult offender with the commission of a felony arising out of the same actions that are the basis of the alleged violation of * * * division (B)(1)

of section 2919.22 * * * of the Revised Code. (Emphasis added.) The part of R.C. 2151.23(A)(6) exempting a f elony indictment from the juvenile court’s exclusive jurisdiction does not apply here , as all the charges filed in the Fairborn Municipal Court were misdemeanors. {¶ 30} We recently addressed a similar situation in State v. Taylor , 2d Dist. Montgomery No. 27731, 2018-Ohio-4048. In that case, the defen dant had been charged with two first-degree misdemeanor charges in Kettering Municipal Court –

assault under R.C. 290 3.13(A) and (C)(1), a nd child endangermen t under R.C. 2919.22(B)(1) and (E)(2)(a). Id . at ¶ 1. On appeal, the defendant argued, based on R.C. 2151.23(A)(6), that the case should be remanded for dismis sal because the trial court lacked jurisdiction to try her on the child endangering c harge. Id . at ¶ 20. While the State agreed about the lack of jurisdiction, it argued the error was harmless because the defendant was found not guilty of the child endangering cha rge. We disagreed, stating that: Pursuant to R.C. 2151.23(A)(6), the “juvenile court has exclusi ve original jurisdiction” to “hear and determine all criminal case s in which an adult is charged with a violation of * * * division (B)(1) of s ection 2919.22” of the Revised Code. The trial court, then, did not have jurisdict ion to adjudicate the criminal complaint against Taylor for endangerin g a child. Given that a “judgment rendered by a court lacking subject matt er jurisdiction is void ab initio,” we sustain Taylor’s second ass ignment of error.-12- State v. Schooler , 2d Dist. Greene No. 2003 CA 65, 2004-Ohio-2430, ¶ 16, citing State v. Saxon , 4th Dist. Highland No. 02 CA 15, 2003-Ohio-1199, ¶ 25.

We hold that the trial court received sufficient evidence to fi nd Taylor guilty of assault under R.C. 2903.13(A), and further, we hold t hat the trial court did not lose its way in evaluating the evidence before it . The conviction of assault is affirmed. With respect to the charge of endangering a child under R.C. 2919.22(B)(1), we hold that the trial court did not have jurisdiction to try Taylor; therefore, the judgment related to endangering a child is void and is hereby vacated.

Id. at ¶ 20-21. {¶ 31} The same reasoning applies here. As a result, the conviction o f child endangering is void and must be vacated, and the charge cannot be used to justify the

admission of other acts evidence. This is not the end of the a nalysis, however, because appellate courts may affirm judgments based on reasoning differ ent from that of a trial court. “A decision that achieves the right result must be affi rmed, even if the wrong reasoning is used to justify the decision, because an error in reasoning is not prejudicial.” John A. Becker Co. v. Jedson Eng., Inc ., 2018-Ohio-3924, 121 N.E.3d 788, ¶ 19 (2d Dist.). See also Englewood v. Turner , 178 Ohio App.3d 179, 2008-Ohio-4637, 897 N.E.2d 213, ¶ 19 (2d Dist.). {¶ 32} In this case, Middleton was also convicted of having violated R .C. 2919.25(A), which provides that “No person shall knowingly caus e or attempt to cause physical harm to a family or household member.” R.C. 2901.01(A )(3) defines “physical-13- harm” as “any injury, illness, or other physiological impairmen t, regardless of its gravity or duration.” “R.C. 2919.25 does not require the state to prove t hat a victim has sustained actual injury since a defendant can be convicted of domestic vi olence for merely attempting to cause physical harm to a family member.” State v. Nielsen , 66 Ohio App.3d 609, 612, 585 N.E.2d 906 (6th Dist.1990). Furthermore, “[a] slap or other physical contact that results in temporary redness is sufficien t to establish ‘physical harm’

under the domestic-violence statute.” State v. Walters , 2d Dist. Montgomery No. 22977, 2010-Ohio-304, ¶ 11. Here, obviously, there was more than a sl ap and temporary

redness. {¶ 33} In the trial court, Middleton did not dispute that he caused ph ysical harm or attempted to cause physical harm to John. In fact, he admitted to having struck John 25 times, and there was no evidence of any other cause for the chi ld’s significant bruising. Instead, Middleton’s affirmative defense at trial was that he e xercised reasonable parental disciple, and the jury was instructed about that defense. Tr. at p. 235. 2 Middleton has also not argued on appeal that the conviction was based on insu fficient evidence or was against the manifest weight of the evidence.

2 In a decision issued on February 19, 2020, the Ohio Supreme Co urt resolved a conflict among districts by holding that reasonable parental discipline is an affirmative defense to a charge of domestic violence under R.C. 2919.25(A), rather tha n a component of the physical harm element of the crime, and that an accused has the burden of proving the defense. State v. Faggs , Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, ¶ 1 and 6-7. This holding does not affect our decision about this assi gnment of error, because the issue was treated below as an affirmative defense. Further more, Faggs does not affect our own jurisprudence, because we have previously held t hat reasonable parental discipline is an affirmative defense. See State v. Smith , 2d Dist. Montgomery No. 28083, 2019-Ohio-2467, ¶ 25, fn.3, citing State v Thompson , 2d Dist. Miami No. 04CA30, 2006- Ohio-582, ¶ 33.-14- {¶ 34} Concerning the domestic violence statute, the Ohio Supreme Cour t has said that it does not prevent “a parent from properly disciplining h is or her child.” State v.

Suchomski , 58 Ohio St.3d 74, 75, 567 N.E.2d 1304 (1991). 3 “Clearly parents are entitled to utilize disciplinary measures for their children, however, s uch discipline must not be of such gravity that it becomes unreasonable in light of the under lying cause.” State v. Ivey , 98 Ohio App.3d 249, 258, 648 N.E.2d 519 (8th Dist.). Decisions about “whether particular conduct constitutes proper and reasonable parental d iscipline must be made from the totality of the circumstances in the case.” State v. Snyder , 8th Dist. Cuyahoga No. 94755, 2011-Ohio-1062, ¶ 23, citing State v. Adaranijo , 153 Ohio App.3d 266, 2003- Ohio-3822, 792 N.E.2d 1139, ¶ 13-14 (1st Dist.) {¶ 35} Faggs is consistent with the necessity to consider the totality of t he circumstances. In that case, the Supreme Court of Ohio noted t hat “[f]or reasonable parental discipline to constitute an affirmative defense, it mu st first fit the definition of either an ‘excuse’ or ‘justification.’ ” Faggs at ¶ 21, quoting R.C. 2901.05(D)(1)(b). The court further remarked that the “justification must be ‘peculia rly within the knowledge of

3 In Faggs , the Supreme Court of Ohio did stress that “[b]y supplying an overly legalistic and technical definition of the word ‘injury’ and linking that interpretation to the reasonableness of the discipline imposed,” Suchomski left courts “wondering whether the reasonableness of the discipline went toward the government’s b urden to prove the physical-harm element or a defendant’s establishment of an affi rmative defense.” Faggs , at ¶ 10. The court clarified that “[n]otably, nothing in eit her the text of Ohio’s domestic-violence statute or the definition of ‘physical harm’ indicates that the state must prove * * * that the accused’s actions while inflicting corpora l punishment were unreasonable. In fact, by including the phrase, ‘regardless of its gravity or duration,’ to modify the scope of injuries encompassed by the term ‘physical harm to persons,’ R.C. 2901.01(A)(3), it seems that just the opposite is true: reasona bleness or unreasonableness is not an element. Instead, to prove the crim e of domestic violence, the state is only required to show that a defendant ‘knowingly cause[d] or attempt[ed] to cause physical harm to a family or household member.’ ” Id . at ¶ 16.-15- the accused.’ ” Id . at ¶ 22, quoting R.C. 2901.05(D)(1)(b). In this regard, the court stressed that “[i]n cases involving corporal punishment, we con clude that it is [‘peculiarly within the knowledge of the accused’]. After all, only the cha rged parent or person acting in loco parentis knows and is able to describe the corrective i ntent behind the use of corporal punishment and why he or she felt it necessary to reso rt to such means, including, for example, the child’s behavioral history and responses to prior discipline .” (Emphasis added.) Id

. {¶ 36} In the case before us, Middleton raised the affirmative defense of reasonable parental discipline, and, therefore, placed John’s b ehavioral history and response to prior discipline at issue. Accordingly, the trial court did not err in allowing evidence concerning the discipline history, which was relevant and necessarily included Middleton’s prior acts of discipline. {¶ 37} Furthermore, even if this had been otherwise, any error would h ave been harmless. “Error in the admission of other act testimony is ha rmless when there is no reasonable possibility that the testimony contributed to the ac cused's conviction.” State v. Lytle , 48 Ohio St.2d 391, 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated in part on other grounds , 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978). “[A]n improper evidentiary admission under Evid.R. 404(B) may b e deemed harmless error on review when, after the tainted evidence is removed, th e remaining evidence is overwhelming.” State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 32, citing State v. Williams , 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983). (Other citation omitted.) In considering the effect of erroneous admi ssion, “an appellate court must consider both the impact of the offending evidence on the verdict and the strength-16- of the remaining evidence after the tainted evidence is removed from the record.” Id. at ¶ 33. {¶ 38} After considering the evidence remaining after the alleged tain ted evidence is removed, we find the evidence of Middleton’s guilt was overw helming. There is simply no dispute that Middleton knowingly caused or attempted to caus e physical harm to John. This was by his own admission to the police. As noted, no othe r evidence was presented to indicate that the child’s injuries were caused by anything o ther than the force that Middleton used. The severity of the force was clearly dispropo rtionate to the reason given for administering the punishment, i.e., that John had gla red at Middleton’s fiancée that day during a trip to a waterpark. Furthermore, regardless of the disciplinary issue involved, the punishment was clearly excessive and unreasonable

. {¶ 39} Accordingly, for the reasons stated, the First Assignment of Er ror is

overruled.

III. Reasonable Discipline as Affirmative Defense {¶ 40} Middleton’s Second Assignment of Error states that: R.C. 2919.25(A) and R.C. 2919.22(B)(1) as Applied to Parental Discipline Relieve the State of Its Burden and Presum[e] Consti tutionally

Protected Conduct Is Criminal Conduct. {¶ 41} Under this assignment of error, Middleton contends that requiri ng him to prove that his conduct was reasonable and proper corporal punis hment improperly shifted the burden and created a presumption that any corporal punishme nt was inherently wrong. Middleton urges us instead to adopt the position that u nreasonable parental-17- discipline was a component of physical harm that the State was required to prove. {¶ 42} In view of our disposition of the jurisdictional issue, we will not consider this issue as it relates to R.C. 2919.22(B)(1). However, we will di scuss R.C. 2919.25(A) and the issue of whether reasonable parental discipline is an affir mative defense or a component of the State’s burden. The decision of the Supreme C ourt of Ohio in Faggs directly answers these questions. {¶ 43} In Faggs , the court commented that it was being asked “to decide whethe r reasonable parental discipline is a component of the physical-h arm element in Ohio's

domestic-violence and assault statutes or whether it is an affi rmative defense to a charge

under those statutes.” Faggs , Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, at ¶ 1. {¶ 44} In that case, the defendant, Faggs, was charged with both domes tic violence under R.C. 2919.25(A) (a third-degree felony) and assa ult under R.C. 2903.13(A) (a first-degree misdemeanor). Id . at ¶ 2. The charges related to a beating that Faggs gave his son for acting out in school. Id . In the trial court, Faggs asserted that his conduct was based on “ ‘a reasonable and necessary exe rcise of parental discipline and corporal punishment.’ ” Id . at ¶ 3. After being convicted of both charges, Faggs appealed, arguing, as Middleton does here, that placing t he burden on him to prove reasonable parental control “violated his constitutionally prot ected ‘fundamental liberty interest in raising and contro lling his or her child.’ ” Id . at ¶ 4, quoting State v. Faggs , 5th Dist. Delaware No. 17 CAA 10 0072, 2018-Ohio-3643, ¶ 28. The F ifth District Court of Appeals rejected that position and affirmed the trial court’s j udgment. Faggs , 5th Dist. Delaware No. 17 CAA 10 0072, 2018-Ohio-3643, at ¶ 32.-18- {¶ 45} Subsequently, the Supreme Court of Ohio accepted a certified co nflict

between the Fifth District’s decision and the decision of the S eventh District Court of appeals in State v. Rosa , 2013-Ohio-5867, 6 N.E.3d 57 (7th Dist.), as well as Faggs’s jurisdictional appeal, which raised the same substantive issue. Faggs , Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, at ¶ 6-7. The certified issue was whether the State bore “the burden to prove unreasonable parental discipline” or whether “reasonable parental discipline” was in the nature of an affirmative defens e.” Id . at ¶ 7. {¶ 46} As we mentioned, the court first discussed its prior decision i n Suchomski , 58 Ohio St.3d 74, 567 N.E. 2d 1304, which had caused some confu sion “[b]y supplying an overly legalistic and technical definition of the word ‘inju ry’ and linking that interpretation to the reasonableness of the discipline imposed, ” which left courts “wondering whether the reasonableness of the discipline went to ward the government’s burden to prove the physical-harm element or a defendant’s esta blishment of an

affirmative defense.” Faggs at ¶ 10. In this vein, the court observed that many Ohio appellate districts had classified reasonable parental discipli ne as an affirmative defense, but the Seventh District had held otherwise by finding that und er Suchomski , reasonableness of corporal discipline was part of analyzing R.C . 2919.25(A)’s physical

harm element. Id . at ¶ 12. {¶ 47} Regarding R.C. 2919.25(A), the Supreme Court of Ohio found that R.C. 2919.25(A) is unambiguous and that “nothing in either the text of Ohio’s domesticviolence statutes or the definition of ‘physical harm’ indicate s that the State must prove * * * that the accused’s actions while inflicting corporal punish ment were unreasonable.”

Id . at ¶ 15-16. As we previously noted, the court went on to sta te that:-19- In fact, by including the phrase, “regardless of its gravity or duration,” to modify the scope of injuries encompassed by the term “physical harm to persons,” R.C. 2901.01(A)(3), it seems that just the opposite i s true: reasonableness or unreasonableness is not an element. Instead, to prove the crime of domestic violence, the state is only required to s how that a defendant “knowingly cause[d] or attempt[ed] to cause physical harm to a family or household member.” We therefore conclude that proof of unreasonable parental discipline is not a component of the phys ical-harm element of R.C. 2919.25(A). Faggs , Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, at ¶ 16. {¶ 48} After making these observations, the court found that reasonabl e parental discipline met all the elements for an affirmative defense unde r R.C. 2901.05(D)(1)(b): (1) it is a “justification” because it makes “otherwise unlawfu l conduct lawful when there is a sufficient reason for the defendant’s actions”; (2) the ju stification is “ ‘peculiarly within’ ” the accused’s knowledge because only the charged pers on “knows and is able to describe the corrective intent behind the use of corporal pu nishment and why he or she felt it necessary to resort to such means, including, for examp le, the child’s behavioral history and responses to prior discipline”; and (3) the accused can fairly be asked “to introduce evidence in the form of expert-witness testimony, lay -witness testimony, or his or her own testimony regarding the factors and surrounding circ umstances discussed above and why the level of discipline was justified.” Id . at ¶ 21-23. {¶ 49} Finally, the court addressed the “due process” issue, which is the issue Middleton presents, i.e., “that treating reasonable parental di scipline as an affirmative-20- defense violates a defendant's right to due process by unconsti tutionally placing the burden of proof on the defendant.” Id. at ¶ 25. In addressing this point, the court noted various decisions of its own, as well as those of United States Supreme Court, which had held such allocations of burden of proof constitutional. Id . at ¶ 27, citing State v. Ireland , 155 Ohio St.3d 287, 2018-Ohio-4494, 121 N.E.3d 285, ¶ 40; Patterson v. New York , 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); and Martin v. Ohio , 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), aff’g State v. Martin , 21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1986). {¶ 50} Based on the General Assembly’s choice about the burden of proo f and the extensive precedent, which suggested the legislature’s choice c omports with due process, the Supreme Court of Ohio held that requiring defendan ts “to prove the affirmative defense of reasonable parental discipline by a prep onderance of the evidence”

is constitutional. Faggs , Ohio Slip Opinion No. 2020-Ohio-523, __ N.E.3d __, at ¶ 28. {¶ 51} Accordingly, in light of the Supreme Court of Ohio’s recent dec ision in Faggs , the Second Assignment of Error has no merit and is overruled.

IV. Conclusion {¶ 52} Because the trial court lacked subject-matter jurisdiction with regard to the child endangering charge pursuant to R.C. 2151.23(A)(6), the co nviction for child endangering is void and is vacated. The domestic violence conv iction, however, is affirmed. Because the trial court merged the domestic violence charge into the child endangering charge, this case must be remanded for a new senten cing hearing on the

domestic violence conviction.-21-

. . . . . . . . . . . . .

FROELICH, J. and HALL, J., concur.

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