State v. Gribben

[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