State v. Carmichael

[Cite as State v. Carmichael, 2026-Ohio-1473.]


                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                        :
                                                      :   C.A. No. 30618
       Appellee                                       :
                                                      :   Trial Court Case No. 2024 CR 00608
 v.                                                   :
                                                      :   (Criminal Appeal from Common Pleas
 PRECIOUS CARMICHAEL                                  :   Court)
                                                      :
       Appellant                                      :   FINAL JUDGMENT ENTRY &
                                                      :   OPINION

                                                 ...........

        Pursuant to the opinion of this court rendered on April 24, 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

serve notice of this judgment upon all parties and make a note in the docket of the service.

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 HANSEMAN, J., concur.
                                      OPINION
                               MONTGOMERY C.A. No. 30618


MICHAEL MILLS, Attorney for Appellant
MICHAEL P. ALLEN, Attorney for Appellee

TUCKER, J.

       {¶ 1} Precious Carmichael appeals from her conviction following a jury trial on

charges of strangulation, a fourth-degree felony, and child endangering, a first-degree

misdemeanor.

       {¶ 2} She contends the trial court erred by refusing to instruct the jury on reasonable

parental discipline as an affirmative defense to both charges and by overruling her motion

to exclude prior-bad-acts evidence. She also challenges the legal sufficiency and manifest

weight of the State’s evidence to sustain her convictions and alleges ineffective assistance

of counsel.

       {¶ 3} For the reasons set forth below, we find Carmichael’s assignments of error to

be unpersuasive. Accordingly, the trial court’s judgment is affirmed.

                                         I. Background

       {¶ 4} A grand jury indicted Carmichael on the above-referenced charges for

disciplining her six-year-old daughter by choking her and whipping her with a charger cord.

Carmichael pleaded guilty but later withdrew the plea. Prior to trial, she filed a notice of intent

to assert reasonable parental discipline as an affirmative defense. She also filed several

motions in limine, including a motion to exclude prior-bad-acts evidence about having

choked her daughter on other occasions. The trial court overruled the motion in limine shortly

before the State introduced the challenged evidence. As for the requested affirmative

defense instructions, the trial court concluded, as a matter of law, that reasonable parental

discipline was not an affirmative defense to strangulation. The trial court also determined

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that the evidence did not support a finding of reasonable parental discipline as to either

charge.

      {¶ 5} The jury found Carmichael guilty of both charges. The trial court sentenced her

to five years of community control sanctions with local incarceration for 45 days and other

conditions. Carmichael timely appealed, advancing four assignments of error.

                                        II. Analysis

      {¶ 6} The first assignment of error states:

      THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S

      PROPOSED JURY INSTRUCTIONS.

      {¶ 7} Carmichael challenges the trial court’s denial of her request for jury instructions

on the affirmative defense of reasonable parental discipline. After reviewing case law

governing the defense, she addresses it in the context of strangulation. Her substantive

argument is as follows:

      Strangulation, R.C. 2903.18, is a fairly new statute having been enacted in

      2023. Counsel can find no cases that reference parental discipline as an

      affirmative defense to this violation. However, the statute is broadly written and

      the Appellant argues that certain actions taken in the pursuit of parental

      discipline would necessarily overlap with the prohibitions of this statute.

      R.C. 2903.18 defines strangulation as “[. . .] any act that impedes the normal

      breathing or circulation of the blood by applying pressure to the throat or neck,

      or by covering the nose and mouth.” The concept of child restraint falls

      underneath the scope of parental discipline. In this case, [the child] testified

      the Appellant sat on top of her back while holding the back of her neck. Trial

      Trans. Pg. 198. The Appellant submits that the much larger weight of an adult


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       on top of a child would restrict breathing whether or not the child’s neck was

       being touched. Further, the statute separates the terms throat from neck in the

       definition. The Appellant submits that while it is possible to restrict breathing

       or blood flow by applying force to the front of the neck (throat) or the sides of

       the neck (where the arteries are located), applying pressure to the back of the

       neck does neither. If this Honorable Court finds that a parent’s right to restrain

       a child is a necessary power under parental discipline, then the Appellant

       submits she was entitled to an affirmative defense jury instruction as to both

       counts of strangulation and child endangerment.

Appellant’s Brief, p. 9-10.

       {¶ 8} “Requested jury instructions should ordinarily be given if they are correct

statements of law, if they are applicable to the facts in the case, and if reasonable minds

might reach the conclusion sought by the requested instruction.” State v. Adams, 2015-Ohio-

3954, ¶ 240. We “review a trial court’s determination that sufficient facts do or do not exist

to support a jury instruction for an abuse of discretion,” which means that the determination

was unreasonable, arbitrary, or unconscionable. State v. Chambers, 2024-Ohio-3341, ¶ 165

(6th Dist.).

       {¶ 9} Carmichael asks us to recognize reasonable parental discipline as an

affirmative defense to a charge of strangulation under R.C. 2903.18(B)(3), which provides

that no person shall knowingly “[c]ause or create a substantial risk of physical harm to

another by means of strangulation or suffocation.” “Physical harm” includes “any injury,

illness, or other physiological impairment, regardless of its gravity or duration.”

R.C. 2901.01(A)(3). “‘Strangulation or suffocation’ means any act that impedes the normal




                                               4
breathing or circulation of the blood by applying pressure to the throat or neck, or by covering

the nose and mouth.” R.C. 2903.18(A)(1).

       {¶ 10} An affirmative defense “is in the nature of a ‘confession and avoidance,’ in

which the defendant admits the elements of the crime, but seeks to prove some additional

fact that absolves the defendant of guilt.” State v. Rhodes, 63 Ohio St.3d 613, 625 (1992).

“A defendant in a criminal case must admit commission of the act constituting the criminal

offense before an affirmative defense may be submitted to the jury.” State v. Dadayev, 2023-

Ohio-2326, ¶ 22 (2d Dist.), citing State v. Morefield, 2015-Ohio-448, ¶ 30 (2d Dist.).

       {¶ 11} In her argument quoted above, Carmichael insists that she did not commit an

act of strangulation. She claims she restrained her daughter by sitting on the child’s back.

She attributes the child’s difficulty breathing to having this body weight on her back. Although

Carmichael also placed her hands around the back of the child’s neck, she maintains that

using her hands this way did not restrict the child’s breathing. Phrased in the language of

the strangulation statute, Carmichael contends she did not impede her daughter’s normal

breathing or circulation of blood by applying pressure to the child’s throat or neck. If the jury

accepted this argument, the proper response would have been a not-guilty verdict

predicated on deficiencies in the State’s evidence rather than her proof of an affirmative

defense.

       {¶ 12} Because Carmichael does not acknowledge that she impeded her daughter’s

breathing by applying pressure to the child’s throat or neck as an act of reasonable parental

discipline, she has not shown that she would have been entitled to the requested affirmative

defense instructions. Even if reasonable parental discipline theoretically could be an

affirmative defense in a strangulation case (an issue we need not decide), Carmichael has

not shown an abuse of discretion in the trial court’s refusal to give the instruction. As for the


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child-endangering charge, Carmichael makes no separate argument, relying instead on the

same argument about strangulation. Accordingly, the first assignment of error is overruled.

       {¶ 13} The second assignment of error states:

       THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S

       MOTION IN LIMINE TO EXCLUDE PRIOR BAD ACTS.

       {¶ 14} Carmichael contends the trial court erred in allowing the jury to hear part of a

recording of a forensic interview with her daughter. When discussing the incident at issue,

which involved Carmichael placing her hands around the back of the child’s neck, the

interviewer asked: “Has anyone else ever done that to the back of your neck before?” The

child shook her head “no” and said, “Only my mom.” In her motion in limine, Carmichael

argued that the child’s response alleged that she had choked the child on other occasions.

She asserted that this prior-bad-acts evidence was subject to exclusion under

Evid.R. 404(B). The State disagreed, noting that the question was whether anyone else had

choked the child. According to the State, the child’s negative response, with the clarifying

statement “only my mom,” meant that no prior choking incidents had occurred other than the

one at issue. The trial court agreed with the State, reasoning that the evidence was “not

intended to be used to show that the Defendant has any propensities to engage in abusive

conduct with respect to her children or her child.”

       {¶ 15} Although the child’s response could be read as an allegation that Carmichael

had choked her on other occasions, we have reviewed a video recording of the exchange

and believe it more reasonably should be read as suggested by the State. Immediately after

the child mentioned that her “paw pops” had a “hard hand” like her mother, the interviewer

asked whether anyone else ever had choked the child by placing hands around the back of

her neck. The interviewer appears to have been inquiring into whether the child’s “paw pops”


                                              6
or anyone else had done so previously. The child’s negative head shake combined with her

comment “only my mom” seems to us intended to convey that the incident at issue was the

only choking that had occurred. The prosecutor also never argued that Carmichael had

shown a propensity for choking her daughter. Under these circumstances, the trial court did

not abuse its discretion by refusing to exclude the evidence under Evid.R. 404(B). The

second assignment of error is overruled.

      {¶ 16} The third assignment of error states:

      THE STATE OF OHIO FAILED TO PRESENT SUFFICIENT EVIDENCE TO

      SUPPORT THE CONVICTION FOR R.C. 2903.18 AND R.C. 2919.22 AND

      THE APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

      WEIGHT OF THE EVIDENCE.

      {¶ 17} Carmichael challenges the sufficiency and weight of the evidence to sustain

her convictions for strangulation and child endangering. She claims the State’s evidence

established only that she restricted her daughter’s breathing by sitting on the child. She

argues that restricting airflow by sitting on her daughter’s back did not constitute

strangulation and was not an act of child endangering.

      {¶ 18} “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.




                                             7
       {¶ 19} Our analysis is different when reviewing a manifest-weight argument. When a

conviction is challenged on appeal as being against the weight of the evidence, an appellate

court must review the entire record, weigh the evidence and all reasonable inferences,

consider witness credibility, 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. Thompkins, 78 Ohio St.3d

380, 387 (1997). A judgment should be reversed as being against the manifest weight of the

evidence “only in the exceptional case in which the evidence weighs heavily against the

conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).

       {¶ 20} With the foregoing standards in mind, we reject Carmichael’s legal-sufficiency

and manifest-weight arguments.          She was      found    guilty   of   strangulation   under

R.C. 2903.18(B)(3) for impeding her daughter’s normal breathing by applying pressure to

the child’s throat or neck. Carmichael did not testify at trial, and the only witness with first-

hand knowledge of what occurred was her daughter, the victim. The child testified that she

was home with Carmichael and two younger siblings on the evening of September 27, 2023.

One of the boys told Carmichael that their sister had been “dancing dirty.” When

Carmichael’s daughter denied the allegation, Carmichael accused her of lying. Carmichael

proceeded to grab a charger cord to whip the child, who ran upstairs. Carmichael ordered

her daughter to return to the living room and “dragged” the child down the last two steps.

       {¶ 21} The victim fell to the floor on her stomach with Carmichael on top of her. It

appears from the record that she was straddling the child’s back. Carmichael’s daughter

testified that her mother’s hands were on the back of her neck, and her mother was “choking

[her] on the back of—from the back of [her] neck, and [she] couldn’t breathe.” Later in her

testimony, the child recalled Carmichael’s hands being on her neck for a minute or two. She


                                               8
felt like she was going to faint and thought she might have to go to the hospital. The child

testified that she sustained bruising from her mother’s hands on her neck. She added that

she was able to breathe again after her mother got off of her. On cross-examination, the

victim agreed that her mother had been on top of her back “grabbing” the back of her neck.

The child also agreed with defense counsel that her mother being on top of her made it hard

to breathe. She agreed that “all this weight on [her] was choking [her] ability to breathe.”

       {¶ 22} The victim’s testimony attributed her difficulty breathing to Carmichael doing

two things: (1) applying hands to the child’s neck and choking her “from the back of [her]

neck” and (2) sitting on the child’s back. Carmichael’s act of sitting on her daughter did not

constitute strangulation, but her act of choking the child from the back of the neck did. The

victim’s testimony about sustaining bruising to her neck and being choked from the back of

her neck supported a finding that Carmichael knowingly had caused physical harm by

impeding the child’s normal breathing by applying pressure to the child’s throat or neck.

       {¶ 23} In arguing otherwise, Carmichael claims it is impossible to choke a person by

applying pressure to the back of the neck. We note, however, that the victim testified about

her mother choking her “from the back of [her] neck.” (Emphasis added.) The jury reasonably

could have found that Carmichael’s adult hands wrapped around the sides of her six-year-

old child’s neck and consequently restricted the child’s breathing. This conclusion is

supported by the testimony of an examining physician who reviewed photographs of the

child and identified “abrasions and bruising on the chin and anterior neck and extending

down above the collarbone on the left.” This conclusion also is supported by the child’s

demonstration of the choking during a forensic interview. Carmichael concedes that

breathing can be impeded by applying pressure to the sides of the neck where arteries are

located.


                                               9
       {¶ 24} Having reviewed the record, we find legally sufficient evidence to support a

strangulation conviction under R.C. 2903.18(B)(3). Viewing the evidence in a light most

favorable to the prosecution, the jury could have found the essential elements of the crime

were proven beyond a reasonable doubt. Carmichael’s strangulation conviction also is not

against the weight of the evidence. In finding her guilty, the jury did not clearly lose its way

and create a miscarriage of justice. This is not an exceptional case in which the evidence

weighs heavily against the conviction.

       {¶ 25} As for child endangering, Carmichael was found guilty of violating

R.C. 2919.22(B)(1), which prohibits recklessly abusing a child under age 18. State v. Hoff,

2024-Ohio-5837, ¶ 23 (2d Dist.). For purposes of R.C. 2919.22(B)(1), “‘abuse’ includes acts

of the child’s parents causing ‘physical or mental injury that harms or threatens to harm the

child’s health or welfare.’” State v. Cantrell, 2024-Ohio-5406, ¶ 35 (applying

R.C. 2151.031(E)). Although a parent generally has a right to use corporal punishment, such

punishment is unlawful if it violates this definition of abuse. See R.C. 2151.031(D) (Emphasis

added.) (“Except as provided in division (E) of this section, a child exhibiting evidence of

corporal punishment or other physical disciplinary measure by a parent, guardian, custodian,

caretaker, person having custody or control, or person in loco parentis of a child is not an

abused child . . . .”). The nature of an injury resulting from corporal punishment may be

evidence that a defendant’s actions were not lawful parental discipline. Cantrell at ¶ 37.

       {¶ 26} In addition to evidence of strangulation, the State presented evidence that

Carmichael had whipped her daughter with a charger cord. The child testified that

Carmichael struck her multiple times with the cord, including a lash on her face. An

examining physician testified that the victim had linear bruises with loop marks on various

parts of her body, including her buttocks, flank, thigh, back, and face. The pattern was


                                              10
consistent with an injury caused by a cord. At the time of trial, the child continued to receive

mental-health counseling due to the incident.

       {¶ 27} Carmichael’s assignment of error fails to address the whipping aspect of the

State’s case. In addition to considering evidence of strangulation, the jury reasonably could

have found that whipping with a charger cord recklessly caused physical or mental injury

and harmed or threatened the victim’s welfare. This conclusion is supported by legally

sufficient evidence and is not against the manifest weight of the evidence. Accordingly, the

third assignment of error is overruled.

       {¶ 28} The fourth assignment of error states:

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS

       GUARANTEED BY ARTICLE I, SECTON 10 OF THE OHIO CONSTITUTION

       AND THE SIXTH AND FOURTEENTH AMENDMENTS.

       {¶ 29} Carmichael notes that after withdrawing her guilty plea, she did not testify at

trial and was unable to pursue the affirmative defense of reasonable parental discipline. She

asserts that her inability to present an effective defense constituted ineffective assistance of

counsel.

       {¶ 30} We review alleged instances of ineffective assistance of counsel under the

two-part analysis found in Strickland v. Washington, 466 U.S. 668 (1984), which the Ohio

Supreme Court adopted in State v. Bradley, 42 Ohio St.3d 136 (1989). To prevail on an

ineffective-assistance claim, a defendant must show that trial counsel rendered deficient

performance and that the deficient performance prejudiced the defense. Strickland at 687;

Bradley at paragraph two of the syllabus.

       {¶ 31} Carmichael has not specified what her attorney did or failed to do that

constituted deficient performance. Her assignment of error potentially implies deficient


                                              11
performance in connection with withdrawal of the guilty plea, her decision not to testify,

pursuit of the affirmative defense, or the failure to “effectively offer any defense.” But

Carmichael’s withdrawal of her guilty plea and decision not to testify were personal choices,

and the record does not reflect what, if anything, her attorney advised her on those issues.

Therefore, she cannot demonstrate deficient performance regarding them.

       {¶ 32} As for the failed affirmative defense and her lack of any effective defense, an

unfavorable outcome alone does not establish deficient performance. Defense counsel

advocated for the affirmative defense. Counsel also raised a defense to strangulation by

attributing the child’s inability to breathe to Carmichael being positioned on top of her. During

closing arguments, defense counsel told the jury:

              Now the biggest hurdle you’re going to have to jump over is that

       human—there’s no doubt that [Carmichael] grabbed her—or excuse me.

       [Carmichael] grabbed [the child] hard in the back of the neck. And there’s no

       doubt that during this incident, [the child’s] ability to breathe was impeded.

       Yeah. But you have to find beyond a reasonable doubt that grabbing the neck

       caused her to be unable to breathe. Even if you find that [Carmichael] caused

       [the child] to not be able to breathe clearly by some other action of hers, it’s

       the law, is the law, and it’s got to be by applying pressure to the throat or neck.

       And if not, you’ve got to find against the State. And that’s what we have.

              ...

              What did [the child] herself tell us when she was on the stand? I asked

       her several questions about this, and she was consistent. And I submit the

       truth that mom was on top of her, too heavy for a little girl like that and pressing

       the breath out of her. I may not be quoting her verbatim, but that is darn close


                                               12
       that she—it was mom sitting on top of her while she’s grabbing her back neck

       that kept her from breathing.

Tr. 305-307.

       {¶ 33} Although the jury ultimately found Carmichael guilty, she has not identified

anything more defense counsel could have done. Nor has she identified any act that counsel

performed deficiently. As a result, we see no ineffective assistance. The fourth assignment

of error is overruled.

                                       III. Conclusion

       {¶ 34} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                       .............

LEWIS, P.J., and HANSEMAN, J., concur.




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