[Cite as State v. Walton-Kirkendoll, 2017-Ohio-237.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                               C.A. No.   16CA010907

        Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
TIMOTHY WALTON-KIRKENDOLL                                   COURT OF COMMON PLEAS
                                                            COUNTY OF LORAIN, OHIO
        Appellant                                           CASE No.   14CR089005

                                 DECISION AND JOURNAL ENTRY

Dated: January 23, 2017



        HENSAL, Judge.

        {¶1}     Timothy Walton-Kirkendoll appeals a judgment of the Lorain County Court of

Common Pleas that convicted and sentenced him for endangering children. For the following

reasons, this Court affirms.

                                                       I.

        {¶2}     On the evening of October 12, 2015, Latoya Tillman left three of her children

with her 20-year-old boyfriend, Mr. Walton-Kirkendoll, while she attempted to get her car out of

impound. Because the children had already been put to bed, Mr. Walton-Kirkendoll left Ms.

Tillman’s apartment and went across the hall to where several people had gathered for a party.

Mr. Walton-Kirkendoll brought a glass of vodka with him.

        {¶3}     After approximately 20 minutes of drinking and smoking marijuana, Mr. Walton-

Kirkendoll went downstairs, intending to smoke a cigarette outside.         Having forgotten his

cigarettes in Ms. Tillman’s apartment, he returned upstairs. When he entered the apartment, he
                                               2


noticed that Ms. Tillman’s two-and-a-half year old son, D.B., was lying on the floor with noodles

and a green substance coming out of his nose. He tried to rouse D.B., who was having difficulty

breathing, by bringing him into the bathroom, placing him in the bathtub, and splashing water on

him. About 20 minutes after Mr. Walton-Kirkendoll found D.B., Ms. Tillman called him. Upon

learning that D.B. was in distress, Ms. Tillman called 911. When she arrived back at the

apartment complex a few minutes later, she saw a police officer and got his attention. When the

officer entered the apartment and saw D.B., he told Mr. Walton-Kirkendoll not to perform CPR

on D.B. if D.B. was still breathing because it could cause injury. By the time paramedics

arrived, D.B. did not have a pulse, and the paramedics were unable to resuscitate him. An

autopsy revealed that D.B. had an ounce to an ounce and a half of alcohol in his system. He also

had experienced blunt force trauma to his trunk, causing the laceration of his mesentery and

loosening of his vertebrae.

       {¶4}    The Grand Jury indicted Mr. Walton-Kirkendoll for involuntary manslaughter and

three counts of endangering children. A jury acquitted him of the involuntary manslaughter

count, but found him guilty of the endangering children counts. The trial court sentenced him to

12 months imprisonment. Mr. Walton-Kirkendoll has appealed, assigning two errors.

                                                   II.

                                   ASSIGNMENT OF ERROR I

       THE VERDICTS FOR ENDANGERING CHILDREN, AS DEFINED BY THE
       TRIAL COURT, IN COUNTS TWO, THREE, AND FOUR WERE NOT
       SUPPORTED BY SUFFICIENT EVIDENCE AND WERE AGAINST THE
       MANIFEST WIEGHT OF THE EVIDENCE.

       {¶5}    Mr. Walton-Kirkendoll argues that his convictions were not supported by

sufficient evidence and are against the manifest weight of the evidence. Whether a conviction is

supported by sufficient evidence is a question of law, which we review de novo. State v.
                                                  3


Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view the

evidence in the light most favorable to the prosecution:

       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. The 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶6}    If, on the other hand, a defendant asserts that a conviction is against the manifest

weight of the evidence,

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d at 387. An appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶7}    The jury convicted Mr. Walton-Kirkendoll of endangering the three children that

Ms. Tillman asked him to watch while she attempted to retrieve her car. Revised Code Section

2919.22(A) provides, in relevant part, that “[n]o 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.” “‘Substantial risk’ means a strong possibility, as contrasted with a
                                                  4


remote or significant possibility, that a certain result may occur or that certain circumstances

may exist.” R.C. 2901.01(A)(8). Although Section 2919.22(A) does not specify the degree of

culpability required to commit the offense, the Ohio Supreme Court has concluded that “[t]he

existence of the culpable mental state of recklessness is an essential element of the crime of

endangering children[.]” State v. McGee, 79 Ohio St.3d 193 (1997), syllabus. “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.” R.C. 2901.22(C). “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.” Id.

       {¶8}    Mr. Walton-Kirkendoll argues that his convictions are not supported by sufficient

evidence because there was no evidence presented that he was aware of a substantial and

unjustifiable risk to the children. The record indicates, however, that Mr. Walton-Kirkendoll

told law enforcement that he left a cup with alcohol sitting out in the living room while he was at

the party. According to Mr. Walton-Kirkendoll, he poured two glasses of vodka for himself

before heading to the party, one that he mixed with blue Kool-Aid and the other that was straight

vodka. During an interview with law enforcement, Mr. Walton-Kirkendoll stated that he left the

cup containing the mixture at Ms. Tillman’s apartment. It was empty when he returned to the

apartment and D.B.’s breath smelled like alcohol.

       {¶9}    The evidence also indicates that D.B. was put to bed on the living room couch,

which is where he liked to sleep. Mr. Walton-Kirkendoll also told law enforcement that he left

the door of Ms. Tillman’s apartment unlocked while he was inside the apartment across the hall.

The ages of the children were five, two-and-a-half, and seven months. Viewing the evidence in a
                                                5


light most favorable to the prosecution, we conclude that the unlocked door and open cup of

alcohol that looked like Kool-Aid presented a substantial and unjustifiable risk to the health and

safety of Ms. Tillman’s children. Accordingly, we conclude that Mr. Walton-Kirkendoll’s

endangering children convictions are supported by sufficient evidence.

       {¶10} Regarding the weight of the evidence, Mr. Walton-Kirkendoll argues that the jury

lost its way when it found that he acted recklessly when he abandoned his duty of care.

According to the record, as soon as Ms. Tillman left for the impound lot, Mr. Walton-Kirkendoll

went over to the party. Although two of the children were sleeping at the time, Mr. Walton-

Kirkendoll told law enforcement that D.B. had only been put to bed on the couch and was not

sleeping at the time he left for the party.      The risks involved in leaving small children

unsupervised are common knowledge. City of Mason v. Rasmussen, 12th Dist. Warren No.

CA2000-08-077, 2001 WL 290248, *3 (Mar. 26, 2001). Upon review of the record, we cannot

say that the jury clearly lost its way when it found that Mr. Walton-Kirkendoll acted recklessly

when he left three small children in an apartment alone for 20 minutes and not only left the door

of the apartment unlocked, but also a cup of Kool-Aid containing vodka near one of the children.

Mr. Walton-Kirkendoll’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE STATE’S USE OF A PEREMPTORY CHALLENGE TO DISMISS
       PROSPECTIVE JUROR 19 CONSTITUTED A VIOLATION OF
       APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED TO HIM BY
       THE   SIXTH   AND   FOURTEENTH     AMENDMENTS   TO   THE
       CONSTITUTION OF THE UNITED STATES.

       {¶11} Mr. Walton-Kirkendoll also argues that the State improperly excused one of the

prospective jurors because of her race. He argues that the State failed to establish that it had a

race-neutral reason for excusing the juror.
                                                 6


       {¶12} “The Equal Protection Clause of the United States Constitution prohibits

deliberate discrimination based on race by a prosecutor in his exercise of peremptory

challenges.” State v. Campbell, 9th Dist. Summit No. 24668, 2010-Ohio-2573, ¶ 33, citing

Batson v. Kentucky, 476 U.S. 79, 89 (1986). “A court adjudicates a Batson claim in three steps.”

State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 61, quoting State v. Bryan, 101 Ohio

St.3d 272, 2004-Ohio-971, ¶ 106. “First, the opponent of the peremptory challenge must make a

prima facie case of racial discrimination.” Id., quoting Bryan at ¶ 106. “Second, if the trial court

finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral

explanation for the challenge.” Id., quoting Bryan at ¶ 106. “Finally, the trial court must decide

based on all the circumstances, whether the opponent has proved purposeful racial

discrimination.” Id., quoting Bryan at ¶106. “The judge must ‘assess the plausibility’ of the

prosecutor’s reason for striking the juror ‘in light of all evidence with a bearing on it.’” State v.

Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 63, quoting Miller-El v. Dretke, 545 U.S. 231,

252 (2005). “A facially neutral reason for a strike may indicate discrimination, if the state uses it

only to eliminate jurors of a particular cognizable group.” State v. Murphy, 91 Ohio St.3d 516,

529 (2001). “A trial court’s finding of no discriminatory intent will not be reversed on appeal

unless clearly erroneous.” Pickens at ¶ 64.

       {¶13} Mr. Walton-Kirkendoll objected to the State’s use of a preemptory challenge on

the prospective juror, noting that she would have been the only African-American on the jury. In

response, one of the prosecutors told the court that, because the juror had not been asked any

questions, they did not know much about her. The prosecutor also said that the juror had not

been very attentive during the questioning and had asked “[w]hy do I have to be here?” The

prosecutor also said that the State’s initial plan had been to waive its challenges, so that it would
                                                 7


not get to the people who had not been asked questions. After additional conversation about the

issue, the other prosecutor told the court that, when he attempted to make eye contact with the

juror, he “got the impression that she was very hostile to the State and hostile to my

questioning.” After Mr. Walton-Kirkendoll complained that the State’s reasons had changed, the

male prosecutor said that the reason for striking the juror “is because of * * * her mannerisms

and the way she acted, the way she responded to questions – even though she didn’t respond to

any questions, that could be a reason in and of itself.” After additional discussions, the female

prosecutor again explained that she was attempting to avoid going deep into the jury pool

because “the higher the number gets after 13, the less active these individuals are[.]” She also

explained that the African-American prospective juror was the first of a set of jurors who had not

spoken and that the subsequent juror had been attentive and “seems like a nice older lady.”

Finally, the male prosecutor told the court that, the fact that the African-American prospective

juror did not “volunteer any information is another reason why we’ve decided to exercise our

strike on this juror.” Following the discussion, the trial court found that the prosecutors had

offered a neutral explanation for the dismissal of the juror, which it found credible.

       {¶14} The United States Supreme Court has explained that the racially neutral

explanation that the prosecution is required to provide at the second step of the analysis “means

an explanation based on something other than the race of the juror. At this step of the inquiry,

the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”

Hernandez v. New York, 500 U.S. 352, 360 (1991). This Court has also recognized that,

“[u]nlike challenges for cause, a peremptory challenge may be exercised for any racially-neutral

reason.” (Emphasis sic.) State v. Moss, 9th Dist. Summit No. 24511, 2009-Ohio-3866, ¶ 12.
                                                 8


       {¶15} Although the prosecutors gave varied reasons for its use of a peremptory strike on

the African-American juror, there was no discriminatory intent inherent in any of their

explanations. Accordingly, we conclude that the State satisfied its obligation to provide a

“racially neutral explanation for the challenge” under the second step of the Batson analysis.

Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, at ¶ 106. Mr. Walton-Kirkendoll has not argued

that the trial court clearly erred when it found the prosecution’s explanation credible. We,

therefore, cannot say that the trial court erred when it allowed the State to strike the prospective

juror. Mr. Walton-Kirkendoll’s second assignment of error is overruled.

                                                III.

       {¶16} Mr. Walton-Kirkendoll’s assignments of error are overruled. The judgment of the

Lorain County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                         9


      Costs taxed to Appellant.




                                             JENNIFER HENSAL
                                             FOR THE COURT




CARR, P. J.
CONCURS IN JUDGMENT ONLY.

MOORE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

PATRICK M. HAKOS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.