[Cite as State v. Marek, 2022-Ohio-2044.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110977

v. :

A.M., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 16, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-652869-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Kerry Sowul, Assistant Prosecuting 

Attorney, for appellee. 

Law Office of Mark E. Porter, LLC, and Mark E. Porter,

for appellant.
CORNELIUS J. O’SULLIVAN, JR., J.:

Defendant-appellant, A.M.,1 (“appellant”) appeals her convictions for 

endangering her own child and tampering with evidence from the case. Our review 

reflects that appellant’s convictions were supported by sufficient evidence, were not 

contrary to the manifest weight of the evidence, and were not subject to any spousal 

exception. Accordingly, we affirm the trial court’s decision.

I. Procedural History and Facts

In 2019, appellant was charged with one count of endangering children 

(R.C. 2919.22(A)), one count of endangering children (R.C. 2919.22(B)(1)), and one 

count of tampering with evidence (R.C. 2921.12(A)(1)). The matter proceeded to a 

bench trial, at which the following pertinent evidence was presented.

In 2019, appellant met D.M. online and moved with her two minor 

children to the Cleveland area to live with him. Appellant and D.M. subsequently 

married. After they moved in, D.M. installed a hidden camera shaped like a clock to 

spy on appellant’s 11-year-old daughter, A.N., in the bathroom. D.M. would record 

videos of A.N. showering, using the bathroom, and in various states of undress, and 

download those videos to his iPad. He used the videos for his own illicit purposes. 

D.M. also began to sexually abuse A.N. While wrestling, D.M. put his 

hands on A.N., touching her chest and buttocks over her clothes. Appellant was 

occasionally present but, according to A.N., “unaware” when this occurred. The 

1 Pursuant to Loc.R. 13.2(B) of the Eighth District Court of Appeals, we refer to the 

parties by initials.
touching progressed to D.M. rubbing A.N.’s vagina and buttocks over her clothes, 

and her chest and buttocks under her clothes on several occasions. A.N. testified 

that D.M. would also shove her. On one occasion, in the presence of appellant, D.M. 

pushed A.N. with enough force to knock her over. 

At some point, appellant found the videos of her daughter on D.M.’s 

iPad. At this time, A.N. was not aware she was being recorded and appellant did 

nothing to protect her daughter. In April 2020, appellant discovered videos of a 

former girlfriend of D.M.’s on one of his electronic devices and was very upset. This 

prompted A.N. to look through appellant’s phone and it was then that she saw text 

messages that revealed that D.M. had placed a hidden camera inside a clock in the 

bathroom to secretly record the child. In the text messages, appellant discussed with 

D.M. and D.M.’s mother how they should dispose of the hidden camera and the 

incriminating videos. A.N. did not say anything to her mother about the text 

messages.

Appellant also told her online pastor, “Chuck,” about the hidden 

camera. Through text messages admitted at trial, Chuck told appellant that what 

D.M. did was a crime and she needed to get her daughter to a safe environment. 

Instead, appellant asked Chuck if he would counsel D.M. In June 2020, appellant 

told Chuck that A.N. was “suicidal.” During these conversations with Chuck, 

appellant still believed that her daughter had no knowledge of the camera or video 

recordings. 
In June 2020, appellant overheard A.N. talking on the phone to a 

relative about the hidden camera. Appellant confronted A.N., at which time A.N. 

asked appellant to call the police, but appellant refused. A.N. asked to see a 

therapist, but appellant also refused that request. A.N. wrote her mother a letter to 

advocate for counseling and, according to A.N., “to apologize for not being in the 

right state of mind.” At some point, appellant texted Chuck that her daughter found 

out about the camera and Chuck suggests D.M. write an apology letter. Appellant 

responded that she was concerned “someone would find the note that it wasn’t 

intended for.” 

In August 2020, appellant finally allowed A.N. to see a therapist. 

Appellant herself told the therapist about the hidden camera.

Cuyahoga County Division of Children and Family Services (hereinafter 

“CCDCFS” or “the agency”) social worker Deborah Mitchell testified that she

received a referral that A.N. was in imminent harm and responded to the family 

home on August 18, 2020. Appellant told Mitchell that she knew about the camera 

but, according to appellant, D.M. had put the camera in the bathroom for security 

reasons. Mitchell told appellant that D.M. had to leave the family home and was not 

to have any contact with the children. D.M. went to stay with his parents.

On the same day, after the social worker left, A.N. disclosed to her 

mother that D.M. had also been forcibly touching her. In response, instead of 

reporting the abuse, appellant took away A.N.’s Chromebook and phone and locked 
the child’s electronic devices in the basement. A.N. also overheard appellant telling 

a friend that she did not believe her daughter. 

On August 24, 2020, A.N. picked a lock and recovered her electronic 

devices. She contacted a friend out of state and asked that friend to call the police. 

The police responded to the house and found a visibly upset A.N., who told the police 

about the hidden camera and videos but did not disclose the abuse. Officer Matthew 

Ganska testified that he learned that the camera was no longer in the house and the 

videos had been erased.

A few days later, social worker Mitchell interviewed A.N. and found 

out that D.M. continued to have contact with her and her sibling even after he went 

to stay with his parents. The agency determined the children were no longer safe 

in appellant’s care, filed for emergency custody, and placed the children in a foster 

home. According to Mitchell, appellant’s response to the children’s removal was 

that she was “in the middle,” was not going to take sides, and “[w]hat happens, 

happens.” When Mitchell told appellant that A.N. had also disclosed that her 

stepfather had sexually abused her, appellant stated, “Well, you know, she walks 

around in her little pajamas and I can’t control him, and that’s on her.”

Mitchell testified that A.N. had been diagnosed with post-traumatic 

stress (“PTS”), depression, and borderline personality disorder. Mitchell testified 

that the children had to be removed from their first foster care placement after both 

A.N. and her three-year-old sibling exhibited signs of sexual trauma. According to 
Mitchell, appellant was trying to have A.N.’s biological father, who lived in another 

country, take custody of A.N. so that A.N. could not “pursue” the case against D.M. 

William Conn, a computer forensic examiner, testified that he 

recovered over 2,300 videos from four SD cards taken into evidence in the case. 

D.M. testified and admitted that he had used a hidden camera to spy 

on A.N. in the bathroom for his own sexual gratification and sexually abused the 

child. As to the hidden camera, D.M. testified that he threw it out after appellant 

confronted him. D.M. participated in one remote counseling session with an online 

pastor at appellant’s urging, after appellant found out about the hidden camera. 

Appellant never asked D.M. to move out of the house and he did not move out until 

CCDCFS ordered him to leave. 

Detective Buck Kidd testified that he has 24 years of experience as a 

police officer and has been a detective since 2008. He interviewed appellant and 

appellant admitted she knew about the hidden camera and downloaded videos. 

Appellant admitted to the detective that she deleted a video of A.N. going to the 

bathroom. According to the detective, when he asked appellant about the videos, 

she “sat there very calmly” and said, “I’m stuck in the middle. I’m between my 

husband and my daughter.” The detective testified that he found it strange that 

appellant was more focused on her young daughter’s behavior than on what her 

husband had done to her daughter: 

I’ve interviewed plenty of parents, parents of victims, child victims. 

None of them acted like that. None of them brought up 15 different 

times in a short period of time where, oh, my daughter dresses slutty, 
she drinks alcohol, she’s crazy, she bends over in front of people. That 

was just strange to me * * * in my experience.

Detective Kidd testified that the police took the following during the 

search of the house:

Apple Macbook, SD 18 card, LG cell phone, Motorola cell phone, a pad 

of 19 paper with writings on it about the case itself, [A.N.’s] diary, a blue 

binder, notes found in the trash, [ ] Chromebook, a thumb drive, photos 

of [D.M.], an HD WIFI covert clock camera box, camera, four more SD 

cards, a Gmail account, nine rolls of film, a thumb drive, a hard drive, 

a SanDisk SD card, more SD cards, more thumb drives, a Dell laptop 

computer, four more cell phones, plastic bag containing miscellaneous 

pictures and film, semiautomatic pistol, another semiautomatic pistol, 

box containing miscellaneous drives and memory cards, white cell 

phone, four more flash drives, white Samsung tablet, mini cassette 6 

tapes, and a white game controller.

When testifying about the images of A.N. that the police recovered, 

Detective Kidd testified that there were so many videos he could not go through

them all. Police also confiscated a notepad that appellant had used to make notes 

about the case with numerous derogatory statements about her daughter and pieces 

of paper from the trashcan where appellant had devised a “Plan A” and a “Plan B” of

how to dispose of A.N.’s Chromebook.

A.N. testified that she was in counseling and has been diagnosed with

PTS, depression, and anxiety. A.N. testified that she needed counseling to deal with 

what D.M. did to her and appellant’s refusal to do anything about him. According 

to A.N., after she discovered the hidden camera, D.M. wrote her two letters and her 

mother gave her a necklace that D.M. had bought for her.
The trial court found appellant not guilty of endangering children 

under R.C. 2919.22(B)(1), guilty of endangering children under R.C. 2919.22(A), 

and guilty of tampering with evidence under R.C. 2921.12(A)(1). The court

sentenced appellant to one year of community-control sanctions; appellant 

completed all terms and conditions of her sanctions, and her community control was 

terminated on April 27, 2022. 

Appellant filed a timely appeal and raises four assignments of error; 

we combine the first and fourth assigned errors for review.

I. The trial court erred in convicting Defendant/Appellant’s

endangering children on insufficient evidence.

II. The trial court erred in convicting Defendant/Appellant for

endangering children because its finding was contrary to the manifest

weight of the evidence.

III. The trial court erred in convicting Defendant/Appellant for

endangering children because of the spousal exception set forth in

R.C. 2921.22(G)(1).

I.V. The trial court erred in convicting Defendant/Appellant for

tampering with evidence because the evidence adduced at trial was

insufficient.

II. Law and Analysis

A. Sufficiency of the Evidence 

In the first and fourth assignments of error, appellant argues that 

there was insufficient evidence to support her convictions.

“A challenge to the sufficiency of the evidence supporting a conviction 

requires a determination of whether the state met its burden of production.” State 
v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. 

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Sufficiency of the 

evidence involves a review of the evidence admitted at trial and a determination of 

‘“whether such evidence, if believed, would convince the average mind of the 

defendant’s guilt beyond a reasonable doubt.’” State v. Goins, 8th Dist. Cuyahoga 

No. 109497, 2021-Ohio-1299, ¶ 13, quoting State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph two of the syllabus. We must determine, “whether, 

after viewing the evidence in a light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime proven beyond a 

reasonable doubt.” Id. The question is not ‘“whether the state’s evidence is to be 

believed, but whether, if believed, the evidence against a defendant would support a 

conviction.”’ Id., quoting Thompkins at 390.

1. Sufficient Evidence – Endangering Children

For appellant to be convicted of endangering children, the state had 

to prove beyond a reasonable doubt that appellant created a substantial risk to the 

health or safety of the child, by violating a duty of care, protection, or support. See

R.C. 2919.22(A). The state further alleged that the violation resulted in serious 

physical harm to A.N., making the offense a third-degree felony. See 

R.C. 2919.22(E)(2)(c). The definition of “serious physical harm” includes “any 

mental illness or condition of such gravity as would normally require hospitalization 

or prolonged psychiatric treatment.” R.C. 2901(A)(5)(a). 
The culpable mental state for endangering children is recklessness. 

State v. Klofta, 2d Dist. Montgomery No. 28690, 2020-Ohio-5032, ¶ 27, citing State 

v. Greenlee, 2d Dist. Montgomery No. 24660, 2012-Ohio-1432, ¶ 11. 

R.C. 2901.22(C) provides:

A person acts recklessly when, with heedless indifference to the 

consequences, the person disregards a substantial and unjustifiable 

risk that the person’s conduct is likely to cause a certain result or is 

likely to be of a certain nature. A person is reckless with respect to 

circumstances when, with heedless indifference to the consequences, 

the person disregards a substantial and unjustifiable risk that such 

circumstances are likely to exist.

‘“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.” R.C. 2901.01(A)(8).

Appellant contends that there was insufficient evidence that she 

created a substantial risk to the health and safety of A.N. or acted recklessly in that 

regard because once she discovered the videos D.M. had of A.N., she acted quickly 

by ensuring D.M. was never again alone with A.N., sought spiritual guidance from 

her online pastor, and arranged to have the pastor counsel D.M. Appellant further 

claims that the state was unable to prove the element of serious physical harm 

because A.N.’s mental issues were either preexisting or caused by D.M. 

The evidence presented at trial showed that appellant knew her 

husband was surreptitiously recording her daughter in the bathroom but did not 

protect the child from him. From April 2020, when appellant found out about the 

hidden camera, through August 28, 2020, D.M. lived in the home with access to the 
child. A.N. testified that, during this time, appellant left her alone with D.M. when 

she (appellant) would take her other child to the park or the store. D.M. also testified 

he was occasionally alone with A.N. between April and August 2020. A.N. testified 

that when appellant left her alone with D.M., she would barricade her bedroom door 

to protect herself from her stepfather because she was scared. 

Appellant discovered that A.N. knew about the hidden camera in June 

2020, when appellant overheard her daughter talking to a relative. Appellant

confronted A.N. A.N. asked her mother to call the police, but appellant refused. A.N. 

also asked her mother for counseling, but again appellant refused, even after A.N. 

wrote a letter to her mother to advocate for a therapist. In June 2020, appellant told

Chuck, her online pastor, that A.N. was “suicidal,” yet appellant did nothing to assist 

or protect her child; instead telling D.M. to write an apology letter and give A.N. a 

present. 

On August 24, 2020, after CCDCFS came to the house, A.N. finally 

disclosed to her mother that D.M. had also been inappropriately touching her. 

Instead of reporting the abuse, appellant took all of A.N.’s electronics and locked 

them in the basement so A.N. could not contact anyone. Appellant told a friend she 

did not believe A.N. and continued to let D.M. have contact with her children.

The agency social worker testified that after the agency removed the 

children from appellant’s care and placed them in a foster home, both children had 

to be removed and placed in a therapeutic foster home because they showed signs 

of sexual trauma. A.N. would be in weekly counseling for the foreseeable future.
Although there is little doubt that D.M. contributed to A.N.’s mental 

condition, the finder of fact could additionally find that A.N.’s mental condition was 

caused by appellant’s complete betrayal and abdication of her obligation to her child. 

D.M.’s crimes against his stepdaughter were horrific, but appellant failed to protect 

A.N. from her stepfather when she discovered the videos, conspired with D.M. and 

his mother to delete the videos, and refused to believe that D.M. sexually abused

A.N. 

Appellant’s failure to protect her daughter clearly could also be a 

contributing factor that caused A.N.’s mental condition requiring prolonged 

counseling; therefore, in looking at the evidence in a light most favorable to the state, 

the prosecution proved beyond a reasonable doubt that appellant acted recklessly, 

which created a substantial risk of serious physical harm to A.N.

2. Sufficient Evidence – Tampering with Evidence

For appellant to be convicted of tampering with evidence, the state 

had to prove beyond a reasonable doubt that appellant, knowing that an official 

proceeding or investigation is in progress, or is about to be or likely to be instituted,

shall do any of the following: alter, destroy, conceal, or remove anything, with 

purpose to impair its value or availability as evidence in such proceeding or 

investigation. See R.C. 2921.12.

Appellant argues that there was insufficient evidence that she 

tampered with any evidence in the case because D.M. testified that he was the one 

who deleted the videos and threw out the hidden camera. Appellant, however, told 
Detective Kidd that she deleted a video. She also exchanged text messages with 

D.M.’s mother, stating that she (appellant) would delete the videos and tell the police 

that she had done so. Appellant further told D.M. that she would tell the police that 

she deleted the videos to protect him. Finally, there were numerous text messages 

deleted from appellant’s phone including messages from appellant to D.M.

regarding the hidden camera, the video recordings of A.N., what to do about the 

videos, and the allegations of abuse. 

‘“When offering proof, both circumstantial and direct evidence have 

the same probative value, and in some instances, certain facts can be established 

only by circumstantial evidence.”’ State v. Pittman, 8th Dist. Cuyahoga No. 110272, 

2022-Ohio-300, ¶ 55, quoting State v. Crowe, 12th Dist. Warren No. CA2015-07-

065, 2016-Ohio-1579, ¶ 19. In sum, the state presented sufficient evidence that 

appellant acted alongside D.M. and his family with the same purpose — to protect 

D.M.

Based on this testimony there was sufficient evidence, if believed by 

the trier of fact, to support finding appellant guilty of endangering children and 

tampering with evidence beyond a reasonable doubt.

The first and fourth assignments of error are overruled.

B. Manifest Weight of the Evidence 
In the second assignment of error, appellant argues that her 

conviction for endangering children is against the manifest weight of the evidence.2

‘“[W]eight of the evidence involves the inclination of the greater 

amount of credible evidence.”’ State v. Harris, 8th Dist. Cuyahoga No. 109060, 

2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. 

Weight of the evidence relates to ‘“the evidence’s effect of inducing belief.”’ Harris 

at id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 

1264, ¶ 25, citing Thompkins at 386-387. The reviewing court must consider all the 

evidence in the record, the reasonable inferences to make from it, and the credibility 

of the witnesses to determine ‘“whether in resolving conflicts in the evidence, the 

factfinder clearly lost its way and created such a manifest miscarriage of justice that 

the conviction must be reversed [,] and a new trial ordered.”’ Harris at id., citing 

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st 

Dist.1983).

Furthermore, in examining the manifest weight of the evidence, “the 

weight to be given the evidence and the credibility of the witnesses are primarily for 

the finder of fact.” State v. Metz, 8th Dist. Cuyahoga Nos. 107212, 107246, 107259, 

and 107261, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 70, citing State v. DeHass, 10 Ohio 

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact 

may ‘“believe or disbelieve any witness or accept part of what a witness says and 

2 Appellant does not argue that her conviction for tampering with evidence was 

against the manifest weight of the evidence; therefore, we do not address it on appeal.
reject the rest.”’ Metz at id., quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 

548 (1964). ‘“[A]n appellate court may not substitute its own judgment for that of 

the finder of fact.”’ Harris at ¶ 33, quoting State v. Maldonado, 8th Dist. Cuyahoga 

No. 108907, 2020-Ohio-5616, ¶ 40, citing State v. Awan, 22 Ohio St.3d 120, 123, 

489 N.E.2d 277 (1986).

Appellant argues that her conviction was against the weight of the 

evidence because once she found out about the hidden camera, she confronted her 

husband, found counseling for her daughter and husband, confiscated her 

daughter’s electronic devices, and ensured that her husband was never again alone 

with her daughter.

Contrary to appellant’s recitation of the facts, the evidence showed 

that appellant delayed in confronting her husband, refused to put her daughter in 

counseling when A.N. asked to see a therapist, and, according to both her husband 

and daughter, left them alone even after appellant knew about the video recordings. 

Based on the foregoing, we find that appellant’s conviction was 

supported by the greater weight of the evidence. Accordingly, we overrule the 

second assignment of error.

C. No Spousal Exception

In the third assignment of error, appellant argues that the trial court 

erred in convicting her of endangering children due to the spousal exception as set 

forth in R.C. 2921.22, which is the offense of “failure to report a crime or knowledge 

of a death or burn injury.”
R.C. 2921.22 provides that no person, knowing that a felony has been 

or is being committed “shall knowingly fail to report such information to law 

enforcement authorities.” R.C. 2921.22(A). Disclosure of the information is not 

required if the information is privileged due to the relationship between, among 

others, wife and husband. R.C. 2921.22(G)(1). 

Appellant cites State v. Wardlow, 20 Ohio App.3d 1, 484 N.E.2d 276 

(1st Dist.1985), to argue that her conviction should be reversed. In Wardlow, the 

appellant was charged with the crimes of child endangering, R.C. 2919.22, and 

failure to report a crime, R.C. 2921.22. The court affirmed the appellant’s conviction 

for child endangering and reversed the appellant’s conviction for failure to report a 

crime. 

In this case, appellant was not charged with failure to report a crime 

under R.C. 2921.22. R.C. 2919.22, endangering children, the offense with which 

appellant was charged, contains no spousal exception or privilege nor does the 

exception found in R.C. 2921.22 apply to other offenses. 

The third assignment of error is overruled.

Appellant’s convictions for endangering children and tampering with 

evidence are supported by sufficient evidence and her conviction for endangering 

children is not against the manifest weight of the evidence. No spousal privilege 

exists for the crime of endangering children.

Judgment affirmed.

It is ordered that appellee recover from 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.

______________________________

CORNELIUS J. O’SULLIVAN, JR., JUDGE

ANITA LASTER MAYS, P.J., and

EMANUELLA D. GROVES, J., CONCUR