Appeals court upholds child endangering convictions

Ohio's Fourth District Court of Appeals has upheld the convictions of a jury against a Hillsboro man who was convicted on charges of endangering children, after he was charged with manufacturing meth in his home.

In February, a jury in Highland County Common Pleas Court found David Bailey guilty on four counts of endangering children, all felonies of the third degree. However, the jury found him not guilty on one first-degree felony charge of illegal manufacture of drugs. 

During the trial, Bailey was represented by attorney Jim Boulger, and in the appeal he was represented by attorney Carol Ann Curren. In the appeal, the state was represented by Highland County Prosecutor Anneka Collins. The trial was presided over by Highland County Common Pleas Court Judge Rocky Coss. 

In the appeal, Bailey alleged that the endangering children convictions were "against the manifest weight of the evidence." He alleged three assignments of error, regarding the convictions; that the court should not have imposed consecutive sentences for the convictions because consecutive sentences were not warranted; and that his codefendant only received community control sanctions, despite having the same convictions. 

Bailey's co-defendant, Casey Scarberry, was also charged in the incident with four counts of child endangering, felonies of the third degree, and manufacturing drugs, a felony of the first degree. In February, Scarberry entered into a plea agreement with the Highland County Prosecutor's Office. She testified against Bailey during the trial, and as a result, the charge of manufacturing drugs was dismissed. She was sentenced to three years of community control and ordered to be evaluated by Scioto Paint Valley Mental Health. 

The two were indicted on the charges in November 2011, following a Sept. 24 fire in his home in the 100 block of Pleasant Street in Hillsboro. Four children, who were ages 3, 4, 7 and 9, were in the home at the time of the incident. The 9-year-old ultimately testified at trial. 

Bailey, Scarberry and the four children escaped the fire without injury. 

In a decision posted online this week, the court of appeals overruled the assignment of error, stating that, "In order to convict Bailey, the state did not have to prove he actually manufactured the drug himself. Rather, it only had to prove that he allowed the children to be within 100 feet of any illegal manufacture of methamphetamine when he knew the act was occurring. Because the state satisfied that burden by proof beyond a reasonable doubt, there was sufficient evidence to convict him of endangering children."

The court of appeals also found that the trial court did not abuse its discretion by sentencing Bailey to two years for each of the four convictions, for a total of eight years in prison. 

During the trial, Scarberry testified that the day the fire began, she was in the downstairs portion of the home, while Bailey was in a bedroom upstairs. 

The court summarized Scarberry's testimony, stating that, "About one-half hour before the fire started, she heard someone enter the house, yell for Bailey and go upstairs. However, Scarberry admitted that she never saw the person and didn’t know who it was. After the fire began, she stated that Bailey came running downstairs alone. She also admitted to taking a sleeping aid that day and had 'little recollection' of that afternoon. She further testified that Bailey was 'in the business' of methamphetamine, but she never witnessed him cook the drug."

Hillsboro Police Department Officers Todd Whited and Jeff Murphy testified that they found items at the location that were "consistent" with the manufacture of methamphetamine. Murphy also testified on cross examination that "he was instructed not to submit the items associated with methamphetamine production to the lab for forensic analysis. He testified that no samples were taken from the items to determine whether methamphetamine was present because he didn’t suspect any of the items contained 'finished product.'"

Bailey also testified during the hearing, and according to the court, "claimed that approximately two to three minutes before the fire began, two individuals ... arrived at the home. Both men knocked on the bedroom door. (One of the individuals) then entered the bedroom and took a jar out of a bag he brought with him. (The individual) unscrewed the lid, and it 'immediately burst into flames.' Bailey said (the individual) dropped the burning jar and ran out of the bedroom. Bailey testified he picked up the jar and threw it out the open bedroom window, but the fire had already spread throughout the room. He then ran downstairs and told Scarberry and the kids to get out of the house. Bailey admitted he had a 'personal history' with methamphetamine but denied ever manufacturing it or ever witnessing anyone manufacture the drug in (the) home."

The court of appeals wrote that, "The testimony of Bailey himself, along with the testimony Officers Whited and Murphy, support the conclusion that Bailey allowed (the) children to be within 100 feet of either the manufacture of methamphetamine or one or more chemicals that may be used to manufacture methamphetamine, when he knew the act was occurring. Accordingly, we cannot say that the trial court lost its way or created a manifest miscarriage of justice when it found Bailey guilty of four counts of endangering children. Therefore, we overrule Bailey’s second assignment of error."

The court also found regarding sentencing that, "The trial court’s decision was not contrary to law. The sentencing entry from which Bailey appeals confirms that “the court has considered the record, oral statements, any victim impact statements, and the pre-sentence report, as well as all factors (required by Ohio statutes). The sentencing entry also states that “[a]fter weighing the seriousness and recidivism factors, prison is consistent with the purposes and principles of (the law)."

Regarding the trial court's ruling that the sentences should be served consecutively, the court of appeals found that, "Bailey’s sentence is within the permissible statutory range. Moreover, the court imposed the mandatory minimum sentence for each victim. At the sentencing hearing, the trial court stated 'I think that it is appropriate to impose sentence [sic] for each of the victims in this offense. And it is also I think appropriate given the circumstances of the fact that these children were all placed in danger by [Bailey’s] actions.' 

"We find nothing in the court’s application (of the law) that can be considered irrational, arbitrary or capricious. To the contrary, the courts analysis and conclusion are logical and fact based," the court of appeals wrote.

Regarding the disparity between the sentences received by Bailey and Scarberry, the court wrote that Scarberry followed the terms of the plea agreement, and "there is nothing in the record regarding Scarberry’s drug usage or prior convictions." 

Bailey, however, the court wrote, had previous felony convictions and an admitted history with drugs. 

In conclusion, the court overruled all of Bailey's assignments of error and upheld the decisions of the trial court.