State v. Duncan

[Cite as State v. Duncan, 2026-Ohio-3463.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY STATE OF OHIO : : C.A. No. 2026-CA-1 Appellee : : Trial Court Case No. 25-CRB-001-0308 v. : : (Criminal Appeal from Municipal Court) AMANDA DUNCAN : : FINAL JUDGMENT ENTRY & Appellant : OPINION : ........... Pursuant to the opinion of this court rendered on September 4, 2026, the judgment of the trial court is affirmed. Costs to be paid as stated in App.R. 24. Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately send a copy of the court’s ruling to each party and note that action on the docket. Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note the service on the appellate docket. For the court, MICHAEL L. TUCKER, JUDGE LEWIS, P.J., and EPLEY, J., concur.  OPINION DARKE C.A. No. 2026-CA-1 ROBERT L. SCOTT, Attorney for Appellant MICHAEL A. RIEMAN, Attorney for Appellee TUCKER, J. {¶ 1} Amanda Duncan appeals from her conviction of endangering children. For the following reasons, we affirm. I. Factual and Procedural History {¶ 2} On September 18, 2025, Duncan was issued a misdemeanor citation charging her with endangering children in violation of R.C. 2919.22(A). The matter proceeded to a trial that was conducted on December 8, 2025. {¶ 3} At trial, Duncan’s child A.P. testified that on September 17, 2025, she, her mother, and siblings lived at a residence on East Third Street in Greenville. On September 17, Duncan left 14-year-old A.P. home alone with her 8-year-old sibling. According to A.P., Duncan left the residence at noon to work as a delivery person for DoorDash. Duncan said that she would return “sometime in the morning.” Duncan left two of her other children with a babysitter, and at some point during Duncan’s absence, the babysitter returned Duncan’s five-year-old to the house. According to A.P., the house did not have electricity or running water. At approximately 4:30 or 5:00 p.m., the children walked four blocks to the Boys & Girls Club of Greenville so that A.P. could charge her school iPad. While the children were out, they were observed by a teacher who was familiar with them. The teacher learned that A.P. and her siblings had been left alone, so the teacher contacted the police. {¶ 4} The State presented the testimony of Officer Seth Conway, the Greenville Police Department officer who was dispatched to meet with the teacher who called the 2 police. After meeting with the teacher and the children, Conway went to Duncan’s residence. According to Conway, the house was dark, but he was able to see inside the windows. He saw that the interior was disorderly and cluttered and that there were bugs visible in the windows. {¶ 5} Officer Ryan Slade also testified at trial. The day after the incident, he accompanied a representative from Child Protective Services to visit the Duncan residence. While in the home, he observed that the home was cluttered and dirty with trash strewed about the home. He testified that he saw moldy food in different locations in the home but that he did not see any edible food. He said that the home had no electricity, but it did have running water. Slade noticed roaches and flies throughout the home. He opened the refrigerator and found several half gallons of expired milk. {¶ 6} Finally, Duncan testified at trial. She testified that she left her home at 3:45 p.m. to work for DoorDash. Duncan stated that she left her two youngest children in the care of a babysitter. Duncan said that she instructed A.P. and the eight-year-old to go to the Boys & Girls Club and told them that she would pick them up at 8:00 p.m. According to Duncan, she planned to get money and take the children to a hotel for the night. She testified that she was working in Englewood but was in contact with A.P. during the evening. Duncan recounted that A.P. told her that the two older children intended to stay at a friend’s home. Duncan testified that she then decided to “stay out and work.” {¶ 7} Duncan admitted that the home had no electricity but claimed that it had been turned off just that day. She also claimed that there was food in the home located in the basement freezer and kitchen cabinets. Duncan testified that the children could have used hot plates to cook the food in the basement, because she had four solar-powered generators down there. She also claimed that the refrigerator had power, because it was plugged into 3 her brother’s outdoor electrical outlet in the adjoining duplex. Duncan testified that after she finished working, she slept in her car for the night. {¶ 8} Following trial, the court found Duncan guilty of child endangering and sentenced her accordingly. Duncan appeals. II. Sufficiency {¶ 9} Duncan asserts the following as her first and second assignments of error: THE TRIAL COURT ERRED IN ENTERING A CONVICTION WHERE THE STATE FAILED TO PROVE THAT APPELLANT ACTED RECKLESSLY, AS REQUIRED UNDER R.C. 2919.33(A). THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR ACQUITTAL UNDER CRIM.R. 29 AS THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE THAT APPELLANT CREATED A “SUBSTANTIAL RISK” TO THE CHILDREN’S HEALTH OR SAFETY. {¶ 10} In these assignments of error, Duncan challenges whether the State presented evidence sufficient to sustain a conviction for endangering children. {¶ 11} “[S]ufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Marshall, 2010-Ohio-5160, ¶ 52 (2d Dist.), quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, 4 any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. This same standard applies to motions for acquittal made in accordance with Crim.R. 29. State v. Carter, 72 Ohio St.3d 545, 553 (1995). {¶ 12} Duncan was convicted of endangering children in violation of R.C. 2919.22(A). That statute provides, in pertinent part: (A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age . . . , shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. R.C. 2919.22. {¶ 13} Although not stated in the statute, “the culpable mental state for child endangering is recklessness.” State v. Hardy, 2017-Ohio-7635, ¶ 56 (2d Dist.); State v. McGee, 79 Ohio St.3d 193, 195 (1997). “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.” R.C. 2901.22(C). “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). {¶ 14} While simply leaving children of this age home alone may not be sufficient to constitute child endangering, Duncan chose to leave them for an indeterminate amount of time from noon until “sometime the next morning.” Generally, parents are obligated to provide their minor children with “necessaries,” including food and appropriate shelter. 5 Basista v. Basista, 2004-Ohio-4078, ¶ 16 (8th Dist.). Here, there was sufficient evidence presented to demonstrate that Duncan intended to leave her children for more than 12 hours in a home that had no electricity, deplorable conditions (including bug infestations), or food. This lack of necessities, along with the amount of time the children were to be left home alone, constituted sufficient evidence that Duncan recklessly created a substantial risk to the health and safety of the children by violating a duty of care and protection. {¶ 15} Accordingly, the first and second assignments of error are overruled. III. Evidence {¶ 16} Duncan asserts the following for her third assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING STATE’S EXHIBITS 18 THROUGH 21 OVER DEFENSE OBJECTION. {¶ 17} In this assignment of error, Duncan contends the trial court erred by permitting the State to introduce videotapes depicting the home’s condition. {¶ 18} “The admission or exclusion of evidence is generally within the sound discretion of the trial court, and a reviewing court may reverse only on the showing of an abuse of that discretion.” R.T. v. Knobeloch, 2018-Ohio-1596, ¶ 68 (10th Dist.), citing Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296, 299 (1992). The term “abuse of discretion” has been defined as a decision that is unreasonable, arbitrary or unconscionable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). {¶ 19} The evidence at issue consists of videotapes allegedly made by A.P.’s older sibling at some unknown time before the date of the offense for which Duncan was cited. Duncan argues that the State failed to provide “a sufficient foundation to show the matter is what it is claimed to be.” She further argues that the State failed to demonstrate a “temporal 6 relationship between the conditions” observed in the videos and the conditions in the home at the time of the offense. {¶ 20} This court has previously discussed the authentication of videographic evidence in State v. Biswa, 2022-Ohio-3156 (2d Dist.), where we stated: Authentication is governed by Evid.R. 901. “Evid.R. 901(A) requires, as a condition precedent to the admissibility of evidence, a showing that the matter in question is what it purports to be.” State v. Simmons, 2d Dist. Montgomery No. 24009, 2011-Ohio-2068, ¶ 12; State v. Hatfield, 2d Dist. Montgomery No. 28990, 2022-Ohio-148, ¶ 84. “The threshold standard for authenticating evidence is low, meaning that the party seeking to introduce the disputed evidence need only demonstrate ‘a reasonable likelihood that the evidence is authentic.’” (Citations omitted.) State v. Shropshire, 2d Dist. Montgomery No. 28659, 2020-Ohio-6853, ¶ 11. Evid.R. 901(B) provides examples of several ways that the authentication requirement may be satisfied. The most common method is oral testimony that a matter is what it is claimed to be under Evid.R. 901(B)(1). E.g., State v. Quarles, 2015-Ohio-3050, 35 N.E.3d 616, ¶ 34 (2d Dist.); State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 30. A video is treated like a photograph under Ohio’s evidentiary rules. See Evid.R. 1001(2). Photographic evidence is admissible under two different theories. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 150; State v. Davis, 2d Dist. Montgomery No. 28923, 2021-Ohio-1833, ¶ 20. Under the “pictorial testimony” theory, the photographic evidence is “merely illustrative of a witness’ testimony and it only becomes admissible 7  when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness’ personal observation.” Id., quoting Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 129, 573 N.E.2d 98 (1991). Alternatively, under the “silent witness” theory, the photographic evidence is a “silent witness” which “speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness.” Id., quoting Midland Steel at 130. Id. at ¶ 27-29. {¶ 21} In this case, A.P. testified that her older sister had created the videotapes that were shown at trial. The four videos are quite short. Two last less than ten seconds, and in total, all four are less than a minute in duration. A.P. testified that the videos were of the residence. She further testified that the condition of the home as depicted in the videos was the same as the condition of the home on the date of the offense. The testimony of Officers Slade and Conway corroborated A.P.’s testimony. {¶ 22} Additionally, the trial court expressly stated that it understood Duncan’s objection to the videotape evidence and that it would take that into consideration in determining the appropriate weight to give the evidence. “Appellate courts presume that in a bench trial, a trial court considered only relevant and admissible evidence.” City of Beachwood v. Pearl, 2018-Ohio-1635, ¶ 30 (8th Dist.). There is nothing in this record to indicate that the trial court gave undue weight to the videotape evidence or that it even considered such evidence in reaching its judgment. Moreover, even without the video evidence, the record contains sufficient evidence to support the conviction. Thus, any error in admitting the videos was harmless. 8  {¶ 23} Based on the record before us, we find no merit in the claim that these videotapes were not properly authenticated prior to their admission into evidence. Accordingly, the third assignment of error is overruled. IV. Manifest Weight {¶ 24} The fourth assignment of error states as follows: APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 25} Duncan claims her conviction was against the manifest weight of the evidence, because A.P.’s testimony conflicts with Duncan’s testimony. She further claims that the “temporal uncertainties” surrounding the pictures taken and observations made by the police the day after the incident, along with the fact that the videotapes were made prior to the offense, affected the weight of the evidence regarding the conditions of the home on date of the offense. {¶ 26} When an appellate court reviews whether a conviction is against the manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A case should not be reversed as being against the manifest weight of the evidence except “‘in the exceptional case in which the evidence weighs heavily against the conviction.’” Id. {¶ 27} “The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts primarily to resolve.” State v. Wilson, 2009-Ohio-525, ¶ 15 9 (2d Dist.), citing State v. DeHass, 10 Ohio St.2d 230 (1967). “Because the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder’s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 1997 WL 476684, * 4 (2d Dist.). Thus, we will not substitute our judgment for that of the trier of fact on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. Wilson at ¶ 17, citing State v. Bradley, 1997 WL 691510 (2d Dist.). {¶ 28} Not surprisingly, Duncan’s testimony conflicted with A.P.’s testimony in some respects. But we find nothing inherently incredible about A.P.’s testimony, which in many respects was corroborated by the officers’ testimony and the photographs. {¶ 29} Further, Duncan’s claim of “temporal uncertainty” is without merit. Conway was able to observe the interior of the home through the windows the night of the incident. Slade entered the home the following day. There is no evidence, nor does Duncan claim, that anyone entered the home between the time the children left to go to the Boys & Girls Club and the time the police toured the home the following day. Thus, there is no evidence to support a claim that the pictures of the home admitted into evidence or the officer’s observations were not trustworthy or that they did not depict the actual state of the residence at the time of the offense. {¶ 30} We conclude the conviction is supported by the manifest weight of the evidence. The fourth assignment of error is overruled. 10  V. Minimal Sentence {¶ 31} The fifth assignment of error states: THE TRIAL COURT’S FINDING OF GUILT IS INTERNALLY INCONSISTENT WITH ITS MINIMAL SENTENCE AND RESULTS IN DISPROPORTIONATE COLLATERAL CONSEQUENCES, UNDERMINING THE RELIABILITY OF THE CONVICTION. {¶ 32} Duncan claims the conviction “cannot be said to rest on a sufficiently firm evidentiary foundation” given that the court imposed a minimal sentence. {¶ 33} Duncan was convicted of a first-degree misdemeanor, which is punishable by a jail term of “not more than one hundred eighty days.” R.C. 2919.22(E)(2)(a) and 2929.24(A)(1). The trial court imposed a sentence of 60 days that it suspended upon the conditions that Duncan not violate the law for a period of two years and that she “comply [with the] active case open [with] Childrens Services.” {¶ 34} Regardless of whether this constitutes a “minimal sentence,” we fail to discern how a trial court’s sentencing decision has any bearing on whether the State proved the elements of the offense. Given our disposition of the first, second, and fourth assignments of error finding that the State presented evidence sufficient to support the conviction and that the conviction is not otherwise against the manifest weight of the evidence, we find this argument lacks merit. {¶ 35} The fifth assignment of error is overruled. VI. Conclusion {¶ 36} All of Duncan’s assignments of error being overruled, the judgment of the Darke County Municipal Court is affirmed. ............. 11 LEWIS, P.J., and EPLEY, J., concur. 12