[Cite as State v. Gribben, 2020-Ohio-3083.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-19-50

        v.

JONATHAN R. GRIBBEN,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 19 CR 0068

                                      Judgment Affirmed

                              Date of Decision: May 26, 2020




APPEARANCES:

        Jennifer L. Kahler for Appellant

        Angela M. Boes for Appellee
Case No. 13-19-50


SHAW, P.J.

       {¶1} Defendant-appellant, Jonathan R. Gribben (“Gribben”), brings this

appeal from the November 26, 2019 judgment of the Seneca County Common Pleas

Court sentencing him to serve a three year prison term after a jury convicted Gribben

of Felonious Assault in violation of R.C. 2903.11(A)(1), a second degree felony.

On appeal, Gribben argues that there was insufficient evidence presented to convict

him, and that his conviction was against the manifest weight of the evidence.

                                    Background

       {¶2} On April 3, 2019, Gribben was indicted for Felonious Assault in

violation of R.C. 2903.11(A)(1), a second degree felony. Gribben entered a plea of

not guilty and proceeded to a jury trial, which was held October 28-29, 2019.

Following the presentation of evidence, the jury found Gribben guilty as charged.

       {¶3} On November 26, 2019, Gribben was sentenced to serve three years in

prison. A judgment entry memorializing his conviction was entered that same day.

It is from this judgment that he appeals, asserting the following assignments of error

for our review.

                         Assignment of Error No. 1
       Appellant’s conviction is against the manifest weight of the
       evidence because he did not knowingly cause harm to the victim.

                        Assignment of Error No. 2
       Whether Appellant’s conviction is not supported by sufficient
       evidence when appellant did not knowingly cause harm to the
       victim.

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       {¶4} We elect to address the assignments of error out of the order in which

they were raised.

                            Second Assignment of Error

       {¶5} In his second assignment of error, Gribben argues that there was

insufficient evidence presented to convict him. Specifically, he contends that he did

not knowingly cause serious physical harm to the victim in this matter.

                                 Standard of Review

       {¶6} “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. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus. Accordingly, “[t]he 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.” Id. “In deciding if the evidence was

sufficient, we neither resolve evidentiary conflicts nor assess the credibility of

witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st

Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State

v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.); see also State

v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19, citing State v.

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Thompkins, 78 Ohio St.3d 380, 386 (1997) (“Sufficiency of the evidence is a test of

adequacy rather than credibility or weight of the evidence.”).

                                Controlling Statute

       {¶7} In this case, Gribben was convicted of Felonious Assault in violation of

R.C. 2903.11(A)(1), which reads as follows.

       (A) No person shall knowingly do either of the following:

       (1) Cause serious physical harm to another or to another’s
       unborn[.]

                         Evidence Presented by the State

       {¶8} On the evening of October 30, 2018, Gribben and his girlfriend were

drinking alcohol at the “R Place Sports Bar & Grill” in Fostoria. The bartender had

seen Gribben in the bar before, but not enough to know who he was; however, the

bartender was familiar with Gribben’s girlfriend.

       {¶9} At some point in the evening, Daniel S. came to the bar alone, ordered

a beer and sat by himself at a high-top table on a barstool that was approximately

six feet away from the bar. The barstool was roughly three feet high. Daniel

consumed his beer while watching television. He did not know Gribben and had

never met him.

       {¶10} While Daniel was seated at the high-top table, Gribben bumped into

him on three occasions as Gribben walked around the bar, even though the bar had

only around ten people inside and there was ample space for Gribben to maneuver.

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Daniel thought the first time might have been an accident, but the subsequent

incidents were with increased force. The third time Gribben bumped into Daniel,

Daniel’s arm was knocked forward. Daniel then asked Gribben why he had bumped

him, and Gribben turned and “growled” at him.

        {¶11} Daniel got the attention of the bartender and informed her of the issue.

The bartender had previously noted that Gribben appeared intoxicated when he

arrived at the bar, and she was aware that he had taken a drink from another patron’s

drink, perhaps mistakenly thinking it was his own. When Gribben tried to get

another drink, the bartender informed him that she would not serve him anymore.

Gribben asked why she would no longer serve him, and the bartender indicated that

it was partly because of Gribben’s actions bumping into Daniel.

        {¶12} Gribben then sat down by his girlfriend at the bar and tried to get her

to leave, but she was not ready. After a few minutes, Gribben got out of his seat

and walked toward the front door of the establishment. On his way, he powerfully

shoved Daniel with both arms, knocking Daniel out of his barstool and onto the

ground. Gribben walked quickly toward the exit, then began to jog away out the

door.

        {¶13} The bouncer, who had been playing pool because there were not many

patrons in the bar to observe, heard the commotion and ran outside and yelled for

Gribben to stop. Gribben looked back at the bouncer but then ran off.


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       {¶14} Daniel tried to stand after he was knocked to the ground, but was

unable. Police were called to the scene and they requested medical assistance due

to Daniel’s condition. Daniel was taken to the hospital and an x-ray revealed that

he had a hip fracture. The injury required surgery the next day, with three pins being

installed in Daniel’s hip. Unfortunately the bone later collapsed and Daniel had to

have a second surgery for a full hip replacement. As a result of the incident, Daniel

spent over a week total in the hospital, was in significant pain for weeks, underwent

physical therapy, and had a seven-inch scar.

       {¶15} The bar was equipped with numerous security cameras.              Video

recordings from two angles were introduced into evidence showing Gribben shove

Daniel off the barstool. From the forward angle the force appears significant. The

bartender described it like a linebacker hitting someone in a football game. Notably,

descriptions indicated that Gribben was approximately 250 pounds at the time and

Daniel was only around 165 pounds, making Gribben significantly larger. Gribben

was also much younger than Daniel.

                                      Analysis

       {¶16} Gribben claims that there was insufficient evidence presented to

establish that he knowingly caused serious physical harm to Daniel. He first argues

that he was extremely intoxicated and his intoxication prevented him from




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possessing the mental culpability necessary to commit felonious assault. Contrary

to his argument, R.C. 2901.21(E) states that

       Voluntary intoxication may not be taken into consideration in
       determining the existence of a mental state that is an element of a
       criminal offense. Voluntary intoxication does not relieve a person
       of a duty to act if failure to act constitutes a criminal offense.
       Evidence that a person was voluntarily intoxicated may be
       admissible to show whether or not the person was physically
       capable of performing the act with which the person is charged.

(Emphasis added.)

       {¶17} Based on R.C. 2901.21(E), Gribben’s intoxication could only be taken

into account to determine whether he was physically capable of performing the act

with which he was charged, specifically shoving Daniel out of his barstool. The

video evidence and testimony presented clearly established that Gribben did, in fact,

deliberately shove Daniel out of his barstool, thus his intoxication argument is

unavailing.

       {¶18} Notwithstanding the plain text of R.C. 2901.21, Gribben argues that

“Ohio appellate districts have been in disagreement” with regard to whether the

mental state of knowingly constitutes a specific intent crime for which voluntary

intoxication may constitute a defense, citing as support older appellate decisions

such as State v. Fugate, 12th Dist. Butler App. No. CA97-02-031, 1998 WL 281336,

State v. Williams, Greene App. No. 94 CA 65 (June 14, 1995), and State v. Norman,

7 Ohio App.3d 17, 19–20, 453 N.E.2d 1257 (1982). While there may have been


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some disagreement when those cases were decided, all of those cases predate the

amendments to R.C. 2901.21, which contain the preceding controlling statutory

language and thus the cases cited by Gribben have no persuasive value here. State

v. Hill, 10th Dist. Franklin No. 09AP-398, 2010-Ohio-1687, ¶ 28. However, even

if we ignored the plain statutory language regarding voluntary intoxication, the

evidence presented was sufficient to find that Gribben was not so intoxicated that

he was unable to form the culpable mental state of knowingly. Gribben had the

wherewithal to engage with the bartender regarding why he was prevented from

acquiring more alcohol and he directed his anger over the situation at the person

who he perceived had slighted him. The video also shows that Gribben’s shove was

very deliberate. Thus this argument is not well-taken.

       {¶19} Next, Gribben contends that the evidence did not establish that he

“knowingly” caused serious physical harm. In fact, he argues that there was no

indication his intent was to cause any harm at all.

       {¶20} Pursuant to R.C. 2901.22(B), “A person acts knowingly, regardless of

purpose, when he is aware that his conduct will probably cause a certain result or

will probably be of a certain nature.” “Additionally, a defendant acts knowingly,

when, although not intending the result, he or she is nevertheless aware that the

result will probably occur.” State v. Anderson, 10th Dist. Franklin No. 10AP-302,

2010-Ohio-5561, ¶ 13, citing State v. Edwards, 83 Ohio App.3d 357, 361, 614


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N.E.2d 1123 (10th Dist. 1992). Thus, “felonious assault under R.C. 2903.11(A),

combined     with     the    definition    of    ‘knowingly’     found     in    R.C.

2901.22(B), does not require that a defendant intend to cause ‘serious physical

harm,’ but that the defendant acts with an awareness that the conduct probably will

cause such harm.” Id.; State v. Gray, 2d Dist. Montgomery No. 26139, 2016-Ohio-

1419, ¶ 41; State v. Mpanurwa, 2d Dist. No. 27357, 2017-Ohio-8911, ¶ 11.

       {¶21} When viewing the evidence in the light most favorable to the State as

we are directed, we cannot find that there was insufficient evidence presented for a

juror to determine beyond a reasonable doubt that Gribben committed his actions

“knowingly.” Gribben bumped into Daniel on three occasions prior to the shoving

incident despite having plenty of room to maneuver about the bar. After Gribben

was told that he could not purchase any more drinks, he tried to get his girlfriend to

leave and she was not ready. Then Gribben got up, walked toward the door and

powerfully shoved Daniel off his barstool.

       {¶22} Daniel was a much smaller and older man, seated alone on a stool three

feet off the ground. He did not have time to defend himself. The video shows

Gribben using significant force when shoving Daniel and that Gribben then fled.

Under these circumstances, Gribben should have been aware that his conduct would

probably result in such harm. See State v. Mpanurwa, 2d Dist. Montgomery No.

27357, 2017-Ohio-8911, ¶¶ 11-13. The fact that he hurriedly fled the scene also


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indicates some consciousness of guilt. Therefore, we cannot find that there was

insufficient evidence presented to find that Daniel acted “knowingly,” and Daniel’s

second assignment of error is overruled.

                              First Assignment of Error

       {¶23} In Gribben’s first assignment of error, he contends that even if there

was sufficient evidence presented to convict him of Felonious Assault, his

conviction was against the manifest weight of the evidence.

                                 Standard of Review

       {¶24} In reviewing whether a verdict was against the manifest weight of the

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting

testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing

so, this Court must review the entire record, weigh the evidence and all of the

reasonable inferences, consider the credibility of witnesses and determine whether

in resolving conflicts in the evidence, the factfinder “clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Id.

       {¶25} Nevertheless, a reviewing court must allow the trier-of-fact

appropriate discretion on matters relating to the credibility of the witnesses. State

v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against


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the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

                         Evidence Presented by the Defense

       {¶26} Gribben testified on his own behalf at trial, indicating that on the

evening in question he was drinking with his girlfriend at a bar called “High Scores”

in Fostoria where he consumed numerous alcoholic beverages. Gribben and his

girlfriend later went to the “R” bar.

       {¶27} Gribben testified that he was extremely intoxicated, that he did not

know Daniel, and that he did not recall bumping into Daniel at all. Gribben testified

that he became angry when the bartender refused to serve him and he acknowledged

that he shoved Daniel while leaving the bar. Gribben acknowledged jogging out of

the bar and then running off. He also acknowledged that someone came outside the

bar and yelled after him.

       {¶28} Gribben testified that he did not think he had hurt Daniel, and that it

was months later, after his arrest, when he learned the extent of Daniel’s injuries.

He testified that he did not knowingly injure Daniel, and that he did not intend to

cause any harm, let alone serious physical harm.




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                                      Analysis

       {¶29} In contending that his conviction was against the manifest weight of

the evidence, Gribben again argues that he was too intoxicated to form the culpable

mental state, and that he did not knowingly cause serious physical harm.

       {¶30} As we stated in the previous assignment of error, R.C. 2901.21(E)

prevents voluntary intoxication from being taken into consideration when

considering a culpable mental state, thus this argument is unavailing. See also State

v. Hill, 10th Dist. Franklin No. 09AP-398, 2010-Ohio-1687, ¶ 28. Even if we did

consider it the jury was in the better position to determine the credibility regarding

Gribben’s intoxication and we must defer to the jury’s credibility determinations.

State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶31} Regarding Gribben’s contention that he did not knowingly cause

serious physical harm, the evidence does not weigh heavily against the conviction

and the evidence does not establish that the jury clearly lost its way in this matter.

Gribben forcefully shoved a smaller, older man out of a high-top barstool when the

older man was completely unprepared. Then, Gribben fled the scene indicating

consciousness of his actions.

       {¶32} Moreover, the jury was able to see and evaluate the testimony of both

Gribben and the victim and the jury was able to see video of the incident itself.

Based upon all of the evidence presented, we cannot find that Gribben’s conviction


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for Felonious Assault was against the manifest weight of the evidence. Therefore

his first assignment of error is overruled.

                                     Conclusion

       {¶33} For the foregoing reasons Gribben’s assignments of error are

overruled and the judgment of the Seneca County Common Pleas Court is affirmed.

                                                            Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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