[Cite as State v. Gribben, 2011-Ohio-4900.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   Sheila G. Farmer, P.J.
                                              :   Julie A. Edwards, J.
                         Plaintiff-Appellee   :   Patricia A. Delaney, J.
                                              :
-vs-                                          :   Case No. 10AP100040
                                              :
                                              :
ADAM T. GRIBBEN                               :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from New
                                                   Philadelphia Municipal Court Case
                                                   No. 100854A

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            September 21, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GARRY O. HURLESS                                   NICOLE R. STEPHAN
P.O. Box 237                                       153 N. Broadway
New Philadelphia, Ohio 44663-0327                  New Philadelphia, Ohio 44663
[Cite as State v. Gribben, 2011-Ohio-4900.]


Edwards, J.

        {¶1}    Appellant, Adam Gribben, appeals a judgment of the New Philadelphia

Municipal Court convicting him of child endangering (R.C. 2919.22(A)) and sentencing

him to 180 days incarceration. Appellee is the State of Ohio.

                                   STATEMENT OF FACTS AND CASE

        {¶2}    Appellant and his live-in girlfriend Cassie are the parents of two daughters,

Alaina and Kylie. Cassie put Alaina, who was 16 months old at the time, to bed at

around 9:00 p.m. on June 11 or 12, 2010. Cassie was awakened by Alaina’s crying.

When she started crying louder, Cassie asked appellant what he did and he said he

smacked Alaina on the “behind.”               Tr. 18.   Cassie took Alaina into the kitchen and

noticed the child had a bloody nose and mouth. When she asked appellant why the

child’s nose and mouth were bloody he responded that “she was crying for no reason so

he gave her a reason to cry cause she was crying for no reason.” Tr. 18.

        {¶3}    The Department of Job and Family Services had become involved with

appellant and Cassie in May, 2009, filing a complaint for protective supervision. Both

Cassie and appellant participated in a voluntary diversion program but did not follow

through with services. Prior to adjudication on the complaint, Cassie decided to move

to Minnesota. She was notified by the Department that if she chose not to move or the

agency received reports of additional fighting between her and appellant, they would

immediately seek custody of the children.

        {¶4}    Cassie did not call the police after the incident involving appellant and

Alaina.    However, at 9:00 p.m. on June 27, 2010, following an incident between

appellant and Cassie, Cassie went to the Dover police station with her father and filed a
Tuscarawas County App. Case No. 10AP100040                                                3


report alleging domestic violence. Dover police contacted Children’s Services the next

day. Elisa Wanosik, a caseworker with the Department of Job and Family Services,

saw the children on June 28. Cassie relayed the incident with appellant and Alaina to

the caseworker. Ms. Wanosik noticed no injuries on the child’s mouth or nose, but

Alaina did have a broken blood vessel in her eye.

       {¶5}   Appellant was charged with domestic violence (R.C. 2919.25(A)), two

counts of child endangering in violation of R.C. 2919.22(A), and two counts of child

endangering in violation of R.C. 2919.22(B)(1) and (2). The case proceeded to bench

trial in the New Philadelphia Municipal Court. Following trial, the court dismissed the

two counts of child endangering in violation of R.C. 2919.22(B)(1) and (2) because

exclusive jurisdiction is in the juvenile court as to violation of that statute. The court

sustained appellant’s Criminal Rule 29 motion as to one count of child endangering in

violation of R.C.2919.22(A). The court found appellant not guilty of domestic violence.

The court found appellant guilty of the remaining count of child endangering concerning

Alaina, specifically finding Cassie’s testimony to be credible on this count:

       {¶6}   “Now, with regard to the little girl, on that issue in contrast to the other

issue, the other - - when she discussed what happened to herself and she kept

changing it in significant ways, with regard to the child it never changed.        And my

memory of the testimony was not that Cassie said Adam hit the child on the butt.

Cassie said she didn’t see anything. When she questioned Adam he’s the one who

said ‘Yeah, I hit her but it was on the butt.’

       {¶7}   “So, it bothers me that she didn’t see - - I mean it’s dark, it bothers me she

didn’t hear anything, but again, if the child’s already crying, that’s why you’re checking
Tuscarawas County App. Case No. 10AP100040                                                 4


on the child and then she does notice the child crying more severely, distressed, she

gets up, takes her to the kitchen, opens the fridge. That testimony was very - - I found

very credible, I found very realistic as to what you would do. You know, she didn’t try to

embellish it and say yeah, I saw him smack her and I heard him smack her. She I felt

was trying to be honest. ‘No, I didn’t know what happened until I got her into the kitchen

and she’s bleeding on the one side of her face, her little nose and underneath her lip

where he had hit her tooth’ which was very consistent with smacking the little child. I

think something like that could happen accidentally, Adam, but you took the stand and

you didn’t say it was dark. You basically denied that any of this even happened.

       {¶8}   “So, on that one, on that issue involving her child, I found Cassie’s

testimony to be credible. On the issue about what happened to her I don’t know if

Cassie knows for sure and I think maybe - - I don’t mean that she was trying to be

untruthful but you know, I think you think back on things and they change in your mind.

It doesn’t help when you get to court. But boy, with regard to her little girl she didn’t - -

to me it wasn’t rehearsed. If you’re gonna come up with a story you’re going to say

yeah, I saw him do this and I saw him do that. So even though she left those holes

there but that was because she wasn’t going to lie about it was my feeling on it.” Tr.

110-111.

       {¶9}   Appellant was sentenced to 180 days incarceration.           He assigns two

errors on appeal:

       {¶10} “I. THE CONVICTION FOR CHILD ENDANGERING OHIO REVISED

CODE 2919.22(A) IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Tuscarawas County App. Case No. 10AP100040                                               5


      {¶11} “II.   THE    CONVICTION       FOR        CHILD   ENDANGERING         IS   NOT

SUPPORTED BY SUFFICIENT EVIDENCE.”

                                              I, II

      {¶12} In his first assignment of error, appellant argues the judgment is against

the manifest weight of the evidence, arguing that Cassie’s testimony is not credible

because she didn’t call the police or take action to keep the children away from

appellant. He further argues that although Cassie was nearby, she didn’t see or hear

anything other than the child crying louder. In his second assignment of error, appellant

argues the judgment is supported by insufficient evidence because Cassie’s testimony

is not credible for reasons stated in the first assignment of error, and there were no

photographs of the injury or reports made to the police or Children’s Services.

      {¶13} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717.

      {¶14} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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
Tuscarawas County App. Case No. 10AP100040                                                   6

crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

       {¶15} Appellant was convicted of one count of child endangering, defined by

R.C. 2919.22(A):

       {¶16} “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 or a mentally

or physically handicapped child under twenty-one 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. It is not a violation of a duty of care, protection, or support under this division

when the parent, guardian, custodian, or person having custody or control of a child

treats the physical or mental illness or defect of the child by spiritual means through

prayer alone, in accordance with the tenets of a recognized religious body.”

       {¶17} Cassie testified that on June 11 or 12, 2010, she was awakened by

Alaina’s crying. When Alaina started crying louder, Cassie asked appellant what he did

and he said he smacked Alaina on the “behind.” Tr. 18. Cassie took Alaina into the

kitchen with her and noticed the child had a bloody nose and mouth. When she asked

appellant why the child’s nose and mouth were bloody he responded that “she was

crying for no reason so he gave her a reason to cry cause she was crying for no

reason.” Tr. 18. Cassie testified that she did not call the police because she was afraid

of appellant and she knew the police wouldn’t get there when she needed them. Tr. 47.

Further, Cassie had been notified by Job and Family Services that if there was another

report of fighting between her and appellant, they would immediately seek custody of

the children. The trial court, who was in a better position than this court to view the
Tuscarawas County App. Case No. 10AP100040                                                 7


demeanor of the witness and determine credibility, specifically found that while she

didn’t believe Cassie’s testimony concerning other incidents, she found her testimony

concerning this incident involving Alaina to be very credible. See Tr. 110-111, quoted

above. The judgment is supported by sufficient evidence to demonstrate that appellant

created a substantial risk to the health or safety of the child, by violating a duty of care

or protection. Further, the judgment is not against the manifest weight of the evidence.

       {¶18} The first and second assignments of error are overruled.

       {¶19} The judgment of the New Philadelphia Municipal Court is affirmed.




By: Edwards, J.

Farmer, P.J. and

Delaney, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES

JAE/r0705
[Cite as State v. Gribben, 2011-Ohio-4900.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
ADAM T. GRIBBEN                                  :
                                                 :
                        Defendant-Appellant      :       CASE NO. 10AP100040




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the New Philadelphia Municipal Court is affirmed.          Costs assessed to

appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
