State v. Barr

[Cite as State v. Barr, 2026-Ohio-3570.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY STATE OF OHIO, : CASE NO. CA2025-10-087 Appellee, : OPINION AND vs. : JUDGMENT ENTRY 9/14/2026 JAMES BARR, : Appellant. : : CRIMINAL APPEAL FROM WARREN COUNTY COURT Case No. 2025CRB000230 David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee. Engel & Martin, L.L.C., and Josh A. Engel, for appellant. ____________ OPINION BYRNE, P.J. {¶ 1} James Barr appeals from his conviction for child endangering in the Warren County Court. For the reasons discussed below, we affirm Barr's conviction.  Warren CA2025-10-087 I. Factual and Procedural Background {¶ 2} This case arose after police were called to investigate a report alleging that James and Rachel Barr had left their young children alone in their home. The State charged James with child endangering. For reasons that are unclear from the record, Rachel was not charged. {¶ 3} The matter proceeded to a bench trial. The State elicited testimony from Rachel, Mark Sage (Rachel's father), and a police officer. James testified in his own defense and called two neighbors as witnesses. The following is a summary of the evidence admitted at trial. {¶ 4} The Barrs are married and have three children, a daughter and twin boys. On May 2, 2025—the date of the incident—the daughter was four years old and the twin boys were two years old. {¶ 5} Rachel and James had previously agreed that on May 2, 2025, Rachel would take the day off work and spend the day with the children at her parents' home, while James would work on home projects at the Barrs' home. James had also agreed to watch the children that evening so that Rachel could spend time with her friends outside the home. {¶ 6} After spending the day with her parents, Rachel returned home with the children sometime around 4:30 p.m. on May 2. On that day, around 6:00 p.m., James left the home in his white RAV4 vehicle. As he was leaving, neighbors observed Rachel outside the home yelling at James, telling him never to come back. James left and did not tell Rachel where he was going. {¶ 7} Rachel expected her friends to arrive to pick her up at around 7:30 p.m. that evening. The record contains the text conversation that occurred between Rachel and James as that time approached: -2-  Warren CA2025-10-087 7:06 p.m. Rachel: Get here by 7:30 James: Okay Rachel: They said 7:30 to 7:45 James: Okay 7:40 p.m. Rachel: Are you coming Hello My friends are on the way!!! 7:41 p.m. Rachel: [H]ello!!!!!!! Jim!!!!! 7:42 p.m. Rachel: JIM GET THE FUCK OVER HERE NOW!!!! 7:43 p.m. Rachel: You need to get here now!!!! 7:44 p.m. Rachel: JIM FUCKING BARR GET HERE NOW!!! You fucking promised me!!!! James: I'm coming 7:45 p.m. Rachel: I took this day off for YOU SO YOU COULD HELP -3-  Warren CA2025-10-087 WATCH THE KIDS James: Leave your good Rachel: They aren't here yet James: I'm on my way Relax 8:09 p.m. Rachel: They are on the way dude You told me you were just down the street James: I'm on my way Just leave if they beat me {¶ 8} At approximately 8:20 p.m., Rachel's friends arrived. Rachel testified that based upon James' representation that she should "just leave" with them and that he was "on [his] way," Rachel left with her friends, leaving the children alone. Rachel testified that she "thought [James] was right down the street." She believed he was either at a Kroger or a UDF, "somewhere really close." Why Rachel believed that James was nearby is not clear from the record. {¶ 9} James did not arrive and as will be made clear in the discussion of his testimony below, James never intended to come back home until later that evening. {¶ 10} Within minutes of Rachel leaving, the couple's four-year-old daughter contacted her grandparents over FaceTime using an iPad. Rachel's father, Mark Sage, testified that his granddaughter was "crying her eyes out like [he]'d never seen before" while they were videoconferencing, and she told them that she had been left alone. Sage asked his granddaughter to walk around the home and show that there were no adults present. After she did so, Sage called the police and reported that his grandchildren had been left alone in the home. He then drove to the home, which was an approximately two- -4-  Warren CA2025-10-087 three minute drive. He estimated that he arrived at 8:15 or 8:30 p.m. A police officer arrived on scene a few minutes later. {¶ 11} That night, Sage was not able to contact Rachel. During Rachel's testimony she explained that her cell phone bill had not been paid and she could only receive messages if she had access to WiFi. Sage did not attempt to contact James. {¶ 12} While Sage was at the Barrs' home for approximately half an hour, neither parent appeared. The police told Sage and his wife to take the children home with them that night. Later that evening, sometime after 10:00 p.m., Sage was able to contact Rachel through one of her friends. {¶ 13} A police officer with Hamilton Township testified that he responded to the scene and confirmed with Sage that there were no adults present in the home. The officer released the children to Sage and cleared the scene at approximately 8:45 p.m. {¶ 14} During the remainder of the police officer's shift, he drove by the Barrs' home on three occasions to see if James' white RAV4 returned. On his third drive-by, at around 11:00 p.m., he observed James' RAV4 parked outside the Barrs' home. Wanting to speak to James, he and another officer knocked on the door and announced "police department" for several minutes. No one answered the door and police left. {¶ 15} James testified in his defense. James stated that he left the home around 6:00 p.m. that evening and that Rachel had been yelling and screaming at him not to come back. When asked why he told Rachel to leave the home that evening with her friends, he explained: Well when I was leaving the house, she was yelling at me and telling me, you know, never to come back. And before I left the house I told her I'm not coming back, I'm not going to sit here and deal with the arguing and the fighting. And, and (sic) when I left then she was telling me, you know, you need to get here and this, and that and I was like, yeah, I'm five minutes away. Sarcastically. I never thought she would leave the kids -5-  Warren CA2025-10-087 home alone without at least seeing me show up at the house. {¶ 16} James agreed that he did not arrive home until shortly after 10:45 p.m. and that if the police had not been called, his children would have been left alone for two and a half hours. {¶ 17} Under questioning by the court, James admitted that he had no intention of allowing Rachel to leave with her friends that evening. He stated he never thought she would actually leave the children without confirming that he had arrived home. When asked why he would tell Rachel to go out and have fun with her friends when he did not want her to do so, James stated "because we were in a huge argument, we were fighting." {¶ 18} At the conclusion of the trial, the trial court judge made the following comments, addressing both James and Rachel: All right. We're dealing with three very young children, as counsel pointed out. There's no doubt these kids should not have been left home alone. Quite frankly, Mr. Barr, I don't believe you when you say that you said those things sarcastically. When spouses are having a disagreement or fight, it - - to me those texts show that that (sic) fight was well beyond that day. It was probably several days before then, if not months before then. And, and (sic) if it was just that day that is a horrible way to have spouses speak to each other. But man, you both endangered those children. I, [have] no doubt about it. It is clear that you both put those children in such substantial harm that it is totally inexcusable. Either one of you. You have both [acted] selfishly, and I'm looking at both of you. I know you're looking down, but I'll keep looking at you. You were both so selfish that day and your pain and hatred for each other allowed you to put your children in that position. It's unimaginable. I mean that's not parenting. I mean that, that's that's (sic) being as childish as two adults could possibly get. I - - hmm. So with that, with the standard that we have, you both would be guilty of this. You [referring to James] certainly, are, because you're the one charged. Finding the right sentence on this is not easy, but I can tell you, we will find the right sentence before we leave today. -6-  Warren CA2025-10-087 {¶ 19} The court found James guilty and imposed a jail sentence. James appealed, raising two assignments of error. II. Law and Argument A. Sufficiency of the Evidence {¶ 20} James' first assignment of error states: THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION. {¶ 21} James presents two arguments concerning the sufficiency of the evidence. First, he argues that the record contained insufficient evidence showing that his actions put his children at a substantial risk of harm to their health or safety and that the State impermissibly stacked inferences to demonstrate that James put his children at a substantial risk of harm. Second, he argues that the State failed to submit sufficient evidence to demonstrate that he acted recklessly. 1. Standard of Review – Sufficiency of the Evidence {¶ 22} The sufficiency-of-the-evidence standard of review "requires a determination as to whether the state has met its burden of production at trial." State v. Boles, 2013-Ohio-5202, ¶ 34 (12th Dist.), citing State v. Wilson, 2007-Ohio-2298, ¶ 24 (12th Dist.). When making this determination, "[t]he relevant inquiry is '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.'" State v. Roper, 2022-Ohio-244, ¶ 39 (12th Dist.), quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. When conducting this review, "appellate courts do not assess whether the prosecution's evidence is to be believed but whether, if believed, the evidence supports the conviction." State v. Carter, 2017-Ohio-5573, ¶ 71 (8th Dist.), citing State v. Yarbrough, 2002-Ohio-2126, ¶ 79-80. Therefore, when -7-  Warren CA2025-10-087 determining whether a defendant's conviction was supported by sufficient evidence, "[t]his court merely determines whether there exists any evidence in the record that the trier of fact could have believed, construing all evidence in favor of the state, to prove the elements of the crime beyond a reasonable doubt." State v. Brummett, 2024-Ohio-2332, ¶ 9 (12th Dist.), citing State v. Ell, 2023-Ohio-4583, ¶ 16 (12th Dist.). 2. Substantial Risk to Health or Safety and Inference Stacking {¶ 23} The State convicted James of child endangering, in violation of R.C. 2919.22(A). R.C. 2919.22(A) provides, in relevant part, No person, who is the parent . . . of a child under eighteen years of age . . . shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. {¶ 24} "Substantial risk" is defined as "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). {¶ 25} "In determining whether a defendant has committed child endangering, this statute does not permit the trier of fact to make an inference upon an inference in order to transform a speculative risk into a substantial risk." Middletown v. McWhorter, 2006- Ohio-7030, ¶ 11 (12th Dist.), citing State v. Caton, 137 Ohio App.3d 742, 751 (1st Dist. 2000). "To prove the requisite 'substantial risk' element . . . there must be some evidence beyond mere speculation as to the risk of harm that could potentially occur due to a single imprudent act." Id. {¶ 26} In McWhorter, police responded to a report that a two-year-old child had been left alone in an apartment. Id. at ¶ 2. A police officer responded and found that the building was a "two-family dwelling" that had two floors. Id. The officer spoke to McWhorter, the grandfather of the child, who was in the first-floor apartment, and stated -8-  Warren CA2025-10-087 that the child had not been left alone and was fine. Id. The officer then walked upstairs from the first-floor residence to the second-floor residence, which was separated by a door that was shut but not locked and found the two-year-old asleep in his crib. There were no adults in the second-floor residence at the time. Id. {¶ 27} Subsequently, McWhorter was charged and found guilty of child endangering. Id. at ¶ 3. On appeal, this court reversed his conviction, finding that the evidence was insufficient to prove that McWhorter had created a substantial risk to the health or safety of the child, because the second floor of the dwelling, where the child was sleeping, was easily and readily accessible from the first floor, where McWhorter visited with his wife and sister-in-law. Id. at ¶ 14. {¶ 28} Likewise, in the case before us, James argues that there was insufficient evidence for the trial court to find that his actions created a substantial risk to the health or safety of his three children. James argues that in order to find that his children's health and safety were at a substantial risk of harm from his actions, the factfinder was required to impermissibly stack inferences. He argues that the State's evidence only established that the children were left alone for a very brief period of time and no harm actually befell any of the children. James also argues that the only evidence presented at trial which could prove that the children faced a "substantial" risk to their health and safety were the answers elicited during James' cross-examination, in which he agreed with the prosecutor's suggestion that by leaving the children home alone, his three young children could have hurt themselves, started choking on food, fallen off furniture, and would not have had anyone available to attend to them medically. However, James argues that this discussion about potential risks was mere speculation and did not establish that the children were subject to a substantial risk to their health or safety by his actions. {¶ 29} Upon review, we find that the State presented sufficient evidence -9-  Warren CA2025-10-087 demonstrating that James' actions—directing Rachel to leave their three children (ages two, two, and four) home alone because he was "on [his] way home" and not coming home until hours later—created a substantial risk to his three children's health or safety, and that the trial court was not required to impermissibly stack inferences to make this finding. {¶ 30} At trial, the State presented evidence that James told Rachel, multiple times, to "just leave" the children at home alone because he was "on [his] way" home, even though he did not intend to return home that night until hours later. The State also presented testimony that the three children needed someone at home to supervise them at all times, especially the two-year-old twins, as the twins were "constantly into everything." All three children were walking and had the ability to "climb on things." When Rachel was present with the children, she had to watch them to make sure that they were not climbing on furniture or "hitting anything," and she would make sure that the electrical outlets were covered. James, in his own testimony, admits that his three children should not be left alone at home unsupervised for any amount of time, because "they can't take care of themselves." {¶ 31} On appeal, James cites several cases for the proposition that the evidence of harm presented at trial was too speculative to support a child endangering charge. James cites State v. Hughes, 2009-Ohio-4115 (3d Dist.); State v. Martin, 134 Ohio App.3d 41 (1st Dist. 1999); and State v. Jones, 2023-Ohio-3862 (1st Dist.). {¶ 32} In Hughes, a five-year-old child was left in a parking lot in a locked and air- conditioned vehicle for approximately 27 minutes while the father shopped in a nearby Wal-Mart. Hughes at ¶ 2. The father had also left the child in the car with a cell phone with instructions to call him if she had a problem. Id. at ¶ 7. In Martin, a mother left her almost nine-year-old child sleeping in the back of a locked vehicle in a parking lot while - 10 -  Warren CA2025-10-087 she shopped in a nearby store for 20 to 30 minutes. See generally Martin. In Jones, the mother left her eight- and ten-year-old children, both of whom had cell phones, at home alone with a padlock securing the door from the outside. See generally Jones. In all three cases the court of appeals found insufficient evidence to establish that the children were at a substantial risk to their health or safety. Hughes at ¶ 33; Martin at ¶ 44; Jones at ¶ 23. {¶ 33} We find the facts of these cases distinguishable from the case before us, as Hughes, Martin, and Jones all involved older children that were left in a safe or more controlled environment for a much shorter period of time, or in situations where the parent was more accessible to the children. {¶ 34} We agree with the State that the case before us is similar to Mason v. Rasmussen, 2001 WL 290248 (12th Dist. Mar. 26, 2001), wherein this court affirmed a child endangering conviction where the appellant left her sleeping three-and-a-half-year- old child on the couch at home for 25-30 minutes while she drove several miles away, running errands. Id. at *2. We noted that the facts in Mason differed greatly from other cases, like Martin, in which parents left significantly older children unattended for short periods of time while the parents remained nearby. Id. We also noted that those cases were dissimilar because "the act of leaving such a young child at home completely alone and totally unsupervised create[s] a strong probability of harm to the child" because "[c]hildren of such a young age are not competent to take care of themselves, either under ordinary or in emergency situations." Id. {¶ 35} Therefore, we find that the State presented sufficient evidence showing that James' actions—consistently directing Rachel to leave their three young children home alone, while intending to not come home for multiple hours—created a substantial risk to his children health and safety. - 11 -  Warren CA2025-10-087 3. Recklessness {¶ 36} James next argues the State presented insufficient evidence to demonstrate that he acted recklessly. Recklessness is the culpable mental state for the offense of child endangering. State v. Adams, 62 Ohio St.2d 151, 153 (1980). Pursuant to R.C. 2901.22(C), 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. {¶ 37} James argues that the State failed to prove that he believed that Rachel would "actually leave the children alone if he did not return." James points to his trial testimony in his defense, where he testified repeatedly that he never thought that Rachel would leave the children before confirming he had arrived home. James argues that the potential risks to the children from his not returning home were speculative and based upon an inference that Rachel would leave before he arrived. {¶ 38} James' argument disregards the fact that he repeatedly told Rachel to leave, and suggested that he was nearby and would arrive home imminently. James testified that his text messages telling Rachel to leave were intended to be sarcastic, but, upon our review, nothing about the text messages indicate sarcasm. Nor did Rachel's responses to James' texts suggest that she understood him to be speaking sarcastically. {¶ 39} By encouraging Rachel to leave with her friends before he arrived home while indicating he would be home imminently, and while also knowing that he had no intention of arriving home for hours, James, with heedless indifference to the consequences, disregarded a substantial and unjustifiable risk that his four-year-old - 12 -  Warren CA2025-10-087 daughter and two-year-old sons would be left home alone for hours. {¶ 40} James also argues that it was Rachel who acted recklessly and "certainly" committed child endangering in this case. We agree Rachel also acted recklessly and at least unconscionably, and the trial court agreed with this point as well. However, the fact that Rachel may have also acted recklessly and perhaps criminally is irrelevant to whether the facts also supported a conviction for James' conduct.1 {¶ 41} Accordingly, we overrule James' first assignment of error. B. Manifest Weight of the Evidence {¶ 42} James' second assignment of error states: THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 43} In James' second assignment of error, he argues, for the same reasons set forth in support of his first assignment of error, that even if his conviction was supported by legally sufficient evidence, it was nonetheless against the manifest weight of the evidence. 1. Standard of Review – Manifest Weight of the Evidence {¶ 44} "[T]he manifest-weight-of-the-evidence standard of review applies to the State's burden of persuasion." State v. McCollum, 2026-Ohio-393, ¶ 13 (12th Dist.), citing State v. Messenger, 2022-Ohio-4562, ¶ 26. When determining whether a jury's verdict is against the manifest weight of the evidence, this court, sitting as the "thirteenth juror," reviews the entire record, weighs the evidence and all reasonable inferences, and considers the credibility of the witnesses who testified at trial. State v. Brown, 2025-Ohio- 2804, ¶ 30. Following this review, we then determine, in resolving any conflicts in the evidence, whether the jury clearly lost its way and created a manifest miscarriage of 1. We do not reach the question of whether Rachel acted criminally because that issue is not before us. - 13 -  Warren CA2025-10-087 justice that requires reversal of the jury's verdict and the ordering of a new trial. State v. Jordan, 2023-Ohio-3800, ¶ 17. Such a determination is rare, however, arising only in exceptional cases where the evidence presented at trial weighs heavily against the jury's verdict and in favor of acquittal. State v. Nkoyi, 2024-Ohio-3144, ¶ 41 (12th Dist.). "This may occur only when there is unanimous disagreement with the jury's verdict." State v. Palma, 2025-Ohio-1318, ¶ 9 (12th Dist.), citing State v. Marcum, 2016-Ohio-263, ¶ 10 (12th Dist.). 2. Analysis {¶ 45} James argues that the greater weight of the evidence demonstrates that he was merely negligent, and not reckless, for failing to recognize that Rachel would leave the children. For the same reasons described above, we find that James' conviction was supported by the greater weight of the evidence. James acted recklessly, not negligently, by encouraging Rachel to leave the children while having no intention of actually returning home for several hours. Regarding his claim that his text messages were intended to be sarcastic, we note that the trial court specifically found that James was not credible when he testified that he intended for the text messages to be read as sarcastic. We find that the trial court's credibility determination is supported by the evidence. We overrule James' second assignment of error. C. Response to Dissenting Opinion {¶ 46} Our dissenting colleague argues that Rachel, not James, created the substantial risk to the children by actually leaving them home alone without confirming that James would arrive to watch the children. The dissent argues that James' conduct, misrepresenting his intentions to arrive home and to take care of the children, was too indirect to "create" the substantial risk the children faced in this incident. We find no support for this argument in the plain language of the statute. The statute does not - 14 -  Warren CA2025-10-087 differentiate between direct and indirect conduct that creates a risk of substantial harm to health or safety of children. James' conduct in falsely representing that he was returning home and encouraging Rachel to leave before he arrived created a substantial risk that Rachel would believe him and in fact leave the children. While we agree that the conduct of both parties contributed to the substantial risk the children faced, we see no reason why James' conduct could not satisfy the "creation" element of the statute. {¶ 47} Judgment affirmed. HENDRICKSON, P.J., concurs. SIEBERT, J., dissents. SIEBERT, J. dissenting. {¶ 48} In this case, a parent violated the duty of care owed to three young children and created a substantial risk to their health and safety by failing to ensure they were not left at home alone. That violation of the parental duty of care—the act of leaving—led to the children's health and safety being placed at substantial risk. The only remaining question relevant to this appeal is did James create this substantial risk by recklessly failing to ensure the children were not left at home alone? Unlike my colleagues in the majority, I do not think James created this substantial risk; Rachel did. Because the State chose to pursue charges only against James, Rachel's actions are not attributable to James. Therefore, I respectfully disagree and would find the State failed to present sufficient evidence of child endangering and would vacate James' conviction. {¶ 49} James asserts that the State did not show he acted recklessly because James never left the children alone, but Rachel did by actually leaving the children alone. James cited law for the proposition that the act of leaving children alone creates a substantial risk for children and cited to the trial court's observation that in its view, both - 15 -  Warren CA2025-10-087 James and Rachel endangered the children. While James analyzes his argument under whether he acted "recklessly" by disregarding a known risk, any criminal conviction requires the State to prove both the defendant had the culpable mental state (the "mens reas") and also committed the relevant act (the "actus reas"), with a nexus between the mental state and the act. See State v. Chute, 2022-Ohio-2722, ¶ 18 (3rd Dist.). In my view, the State failed to prove James committed the "actus rea" relevant to his conviction for child endangerment. This failure should not be ignored as it is fundamental to the State's burden of proof. {¶ 50} As applicable to James, the "Child Endangerment Statute" states "no parent . . . of a child under eighteen years of age . . . shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support." R.C. 2929.22(A). Neither the State nor James dispute that he is the parent of the three children at issue in this case. And neither the State nor James dispute that as the children's parent, James owed a duty of care to the children. See State v. Sammons, 58 Ohio St.2d 460, 463 (1979). {¶ 51} This duty of care is generally defined as the "norm in our society [ ] for a parent to strive to see that his children are reasonably well nourished, housed, and clothed and reasonably protected from harm, and provided with necessary health care." Id. James cites several cases for his argument that the harm was too speculative to support the child endangering charge. These cases are all factually or legally distinguishable on the question of substantial risk of harm because they involved older children being left unattended or younger children being left unattended while the parent was quickly or reasonably accessible. See McWhorter, 2006-Ohio-7030 (12th Dist.) (grandfather left child asleep in crib upstairs in two-family dwelling, while he was downstairs with other family members); Martin, 134 Ohio App.3d at 42-43 (1st Dist. 1999) - 16 -  Warren CA2025-10-087 (nine-year-old child in locked vehicle); Jones, 2023-Ohio-3862 (1st Dist.) (8- and 10-year old children, who had cell phones, at home with padlock securing door from outside). {¶ 52} Here, the children were not physically harmed (thankfully), although the record does support that at least the daughter sustained fear and emotional harm by being left alone. Despite the lack of physical harm to the children, I agree with my colleagues in the majority that a substantial risk to the health and safety of the children in this set of circumstances occurred—three children four years old and younger cannot be safely left at home alone, when the parent is not quickly or reasonably accessible. The "norm" of the parental duty of care in our society within this context is for a parent to reasonably protect three young children from harm by ensuring they are not left at home alone, without swift and ready access to a parent or other person equipped to reasonably ensure their safety (like a babysitter). With the questions of the appropriate parental duty of care and substantial risk answered, the only remaining question is who violated this duty and created the risk. In other words, who committed the act that endangered the children? {¶ 53} The facts applicable to the analysis of this question are undisputed in the record. First, James and Rachel engaged in a sometimes heated argument throughout the day. Second, this argument culminated in James leaving the house between 5:30 and 6:30, and he told her he was going to run down the street. Third, as James left the house that day, Rachel was screaming at him to leave and to not come back. Fourth, Rachel had plans to go out with friends that evening and James was supposed to stay home with their children while she went out. Finally, Rachel knew she could not make or receive calls or messages on her phone when she had no access to Wi-Fi service. {¶ 54} Rachel sent several texts to James after he left as the time was nearing for her friends to pick her up. The timeline and context of these texts are important and are - 17 -  Warren CA2025-10-087 detailed in the majority's opinion. See ¶ 7 above. {¶ 55} The most relevant texts between Rachel and James occurred over the course of a little over an hour (from 7:06pm to 8:09 pm). Rachel thought James was down the street. At 7:44pm, James told Rachel he was coming. At 8:09 (25 minutes later), he told her he was on his way and to leave if her friends arrived before he did. Eleven minutes later, James was still not home, and Rachel left the house with her friends. {¶ 56} Rachel was well aware of the context of the argument they had, in which she yelled at James to leave and not come back. Rachel said she thought he was down the street but also knew he had not shown up for over an hour since he left, was told for 25 minutes he was on the way, received no confirmation on how far away he was, and knew James had not arrived home. Eleven minutes later, with James still not home (and a total of 36 minutes after he said he was on his way from just down the street), Rachel left the house. The undisputed record shows Rachel was the only adult at home and is the parent who actually left the children unattended at home. {¶ 57} The State argues that James "caused" Rachel to leave because Rachel believed James' representations to her and trusted he would be home "in seconds" because he was "right down the street." From this, the State argues James acted with heedless indifference to the consequences, disregarded a substantial and unjustifiable risk that his conduct would cause his children to be left alone, which created a substantial risk to their health and safety. The question of whether Rachel's belief and trust in what James said was reasonable given his failure to show up from just "down the street" for at least 36 minutes is a question of credibility for the trier of fact. We give due deference to the trial court's finding of fact if it is supported by competent, credible evidence, but will independently review whether the trial court correctly applied the law to the facts of the case. See State v. Davis, 2026-Ohio-614, ¶ 12 (12th Dist.). I find the trial court erred in its - 18 -  Warren CA2025-10-087 application of the law here. {¶ 58} The trial court ignored the direct link between creation and substantial risk of harm required in the Child Endangerment Statute. The statute does not provide a path for the State to convict a person of child endangerment based upon allegations that the defendant indirectly created a substantial risk of harm by allegedly causing another person to actually create the substantial risk of harm to the children. After all, any number of previous circumstances can "cause" someone to commit a crime (a defendant is fired, gets angry, and hits his wife—the State cannot convict the employer who fired the defendant of domestic violence). {¶ 59} And none of the cases cited by either James or the State stand for this indirect causation path to conviction, as all of the defendants were alleged to have actually caused the substantial risk of harm. In other words, those defendants committed the requisite "actus reas." See McWhorter, 2006-Ohio-7030 (12th Dist.) (grandfather of child left child upstairs in two-family dwelling while he was downstairs); Mason v. Rasmussen, 2001 WL 290248 (12th Dist. Mar. 26, 2001) (mother left son home alone); Jones, 2023- Ohio-3862 (1st Dist.) (mother left children at home alone); State v. Morgan, 2022-Ohio- 2932 (1st Dist.) (father threw son at parole officers); State v. Bush, 2020-Ohio-772 (1st Dist.) (mother remained in house as older son and younger daughter in front yard, playing); Hughes, 2009-Ohio-4115 (3rd Dist.) (father left daughter in car alone); State v. Fretas, 2008-Ohio-4686 (10th Dist.) (father left son at home alone); State v. Allen, 140 Ohio App.3d 322 (1st Dist. 2000) (father left son at home alone); Martin, 134 Ohio App.3d 41 (1st Dist. 1999) (mother left son in car alone). {¶ 60} The State did not argue that if the grandmother in McWhorter called the grandfather downstairs, knowing he would leave the child upstairs, the grandmother would have endangered the child. For good reason. This court has held that the child - 19 -  Warren CA2025-10-087 endangerment statute does "not permit the trier of fact to make an inference upon an inference in order to transform a speculative risk into a substantial risk. McWhorter at ¶11, citing State v. Caton (2000), 137 Ohio App.3d 742, 751 (1st Dist.). While the question of substantial risk to the children is not in question here, the same "inference upon an inference" logic applies to the creation element of the statute. The State cannot infer one parent recklessly created a substantial risk of harm to the children becaus