[Cite as State v. Foster , 2021-Ohio-393.]

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

STATE OF OHIO Plaintiff-Appellee

v. LARRY FOSTER Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-20

Trial Court Case No. CRB2000526 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 12th day of February, 2021.

. . . . . . . . . . . BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Prosecuting A ttorney, City of Fairborn Prosecutor’s Office, 510 West Main Street, Fairborn, O hio 45324 Attorney for Plaintiff-Appellee KAREN S. MILLER, Atty. Reg. No . 0071853, P.O. Box 341274, Dayto n, Ohio 45343 Attorney for Defendant-Appellant

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

WELBAUM, J.-2- {¶ 1} Defendant-appellant, Larry Foster, appeals from his aggravated menacing conviction following a bench trial in the Fairborn Municipal Co urt. In support of his appeal, Foster contends that the trial court erred in overrulin g his Crim.R. 29 motion for acquittal because his conviction was not supported by sufficien t evidence. For the reasons outlined below, we disagree with Foster’s claim; theref ore, the judgment of the

trial court will be affirmed.

Facts and Course of Proceedings {¶ 2} On March 27, 2020, Foster was charged by citation with one coun t of aggravated menacing in violation of R.C. 2903.21, a misdemeanor of the first degree. The charge stemmed from allegations that Foster spit at and mad e threats to the employees of an Arby’s restaurant located on Colonel Glenn High way in the city of Fairborn, Greene County, Ohio. Foster pled not guilty to the c harge and the matter proceeded to bench trial on April 16, 2020. {¶ 3} During trial, the State presented the testimony of Grant Gleaso n, the general manager of the Colonel Glenn Arby’s. Gleason testified that on the day in question, his restaurant only provided drive-thru and carry-out services due to the COVID-19 pandemic. Gleason testified that the restaurant’s dining room was closed, but that customers could come inside to register or pick up a carry-out order. {¶ 4} With regard to the incident in question, Gleason testified that at about 6:23 p.m., he was in his car getting some papers when he saw a gentlemen, later identified as Foster, walk into his restaurant. Gleason testif ied that he followed Foster into the restaurant, went behind the counter, and asked Foster what he would like to-3- order. Gleason testified that Foster became agitated and told him that he was not getting anything and that he was “not fucking leaving.” Trial Trans. ( Apr. 16, 2020), p. 12-13. Gleason then explained to Foster that if Foster were not going to purchase anything, he

would have to leave the restaurant due to the COVID-19 restrict ions. According to Gleason, Foster became further agitated and said “I can fucking be here if I want to, you know, I don’t have to leave. I’ll stay here as long as I want to.” Trial Trans., p. 13. {¶ 5} Gleason testified that, at this point, he told Foster that if F oster would not leave the restaurant, he would call the police to have Foster e scorted out. Gleason

testified that Foster then took a bite of a dinner roll that Fo ster was carrying in a Styrofoam cup and spit it out in Gleason’s direction. Gleason testified that, as he continued instructing Foster to leave, Foster turned around and spit agai n, this time at the restaurant’s soda machine. Foster then spit a third time in th e direction of an employee who was sitting in a nearby booth. Gleason testified that he w as very concerned about Foster’s spitting due to the COVID-19 pandemic. Gleason testif ied that Foster’s conduct was not only gross, but “almost threatening.” Trial Trans., p. 16. {¶ 6} After Foster’s spitting, Gleason pulled out his phone and start ed to call 9-1- 1. Gleason testified that when Foster saw him calling the poli ce, Foster said “I’m going to get my gun and I’m going to smoke your ass.” Trial Trans., p. 16. Gleason testified that Foster made this threat three times while fiddling around in his pocket. Gleason testified that Foster’s conduct placed him in fear and that he “had a reason to believe [Foster] had a gun and was going to pull it and shoot [him].” Trial Trans., p. 17. Gleason testified that Foster eventually left the restaurant when he sp otted the police approaching

from across the street.-4- {¶ 7} The State also presented the testimony of Arby’s employee Chels ea Wise. Wise testified that she was sitting in the lobby of the Colonel Glenn Arby’s when Foster

entered the restaurant. Wise testified that she heard Gleason politely ask Foster if he was going to purchase anything. Wise also heard Gleason tell F oster that Foster would have to leave the restaurant if he was not going to make a purc hase. Wise testified that Foster responded by saying that “he can do what the F he wants[ .]” Trial Trans., p. 29. {¶ 8} Wise testified that as Gleason kept asking Foster to leave, Fos ter was walking around the restaurant spitting food out of his mouth ev erywhere. Wise then testified that Foster “said something ‘bout that he was going t o smoke all of us.” Trial Trans., p. 30. Wise testified that Foster’s “smoke all of us” comment made her feel scared. Thereafter, on cross-examination, Wise testified that she did not attempt to call the police herself because she was not working at the time, and because she knew that Gleason was going to make the call as the general manager. {¶ 9} For its final witness, the State called Officer Kyle Blocher of the Fairborn Police Department. Blocher testified that he was right across the street from the Colonel Glenn Arby’s when he was dispatched to the restaurant on a call of an unwanted subject. Blocher testified that the Arby’s manager pointed to Foster as the suspect. Blocher testified that another officer, Officer Hiles, gave multiple co mmands for Foster to stop, but that Foster continued to walk away. Blocher testified that he went back to the Arby’s to investigate what had happened while Hiles continued pursuing Fo ster. Blocher testified that he spoke with both Gleason and Wise about the incident. F rom that investigation, Blocher determined that Foster was going to be charged with agg ravated menacing. Blocher then told Hiles about the charge, and Hiles thereafter placed Foster under arrest.-5- {¶ 10} Following this testimony, the State rested its case. Foster th en moved for a Crim.R. 29 acquittal of the aggravated menacing charge. The trial court overruled

Foster’s motion. {¶ 11} After his Crim.R. 29 motion was overruled, Foster testified in his defense.

Foster testified that he intended to order food at the Colonel Glenn Arby’s, but the employees discriminated against him by not letting him place an order and by threatening to call the police. Foster admitted to getting frustrated by t he employees’ alleged conduct, but denied making any threats. Foster specifically de nied saying that he was going to get a gun and “smoke their asses.” Trial Trans., p. 4 8. {¶ 12} After the defense rested, the trial court found Foster guilty a s charged. In reaching its verdict, the trial court noted that it found Gleas on’s testimony “quite credible.” Trial Trans., p. 50. The trial court then proceeded immediatel y to sentencing and ordered Foster to serve 180 days in jail. The trial court susp ended 90 of those days on the condition that Foster exhibit good behavior for two years. The trial court also gave Foster 20 days of jail-time cr edit for time served, waived cour t costs, and banned Foster from the Colonel Glenn Arby’s for two years. {¶ 13} Foster now appeals from his conviction, raising a single assign ment of error

for review.

Assignment of Error {¶ 14} Under his sole assignment of error, Foster contends that the tr ial court erred in overruling his Crim.R. 29 motion for acquittal because his c onviction was not supported by sufficient evidence. Specifically, Foster claims that the S tate failed to present-6- evidence establishing that he caused another person to believe that he would cause the person serious physical harm. We disagree. {¶ 15} “ ‘A motion for acquittal under Crim.R. 29(A) is governed by th e same standard as the one for determining whether a verdict is suppor ted by sufficient

evidence.’ ” State v. Myers , 2d Dist. Darke No. 2019-CA-22, 2020-Ohio-4325, ¶ 15, quoting State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. “When a defendant challenges the sufficiency of the evidence, [ he] is arguing that the State presented inadequate evidence on an element of the offens e to sustain the verdict

as a matter of law.” State v. Stutz , 2d Dist. Montgomery No. 28705, 2020-Ohio-6959, ¶ 11, citing State v. Hawn , 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “ ‘An appellate court’s function when reviewing the sufficiency of the evidence to support

a criminal conviction is to examine the evidence admitted at tr ial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.’ ” Id ., quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “ ‘The relevant inq uiry is whether, after viewing the evidence in a light most favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime proven bey ond a reasonable

doubt.’ ” Id

. {¶ 16} As previously noted, Foster was convicted of aggravated menacin g in violation of R.C. 2903.21(A). Pursuant to that statute: “No pe rson shall knowingly cause another to believe that the offender will cause serious physica l harm to the person or property of the other person[.]” R.C. 2903.21(A). “A person a cts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a-7- certain result or will probably be of a certain nature.” R.C. 2901.22(B). “Serious physical harm to persons” includes the following: (b) Any physical harm that carries a substantial risk of death; (c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, subs tantial incapacity; (d) Any physical harm that involves some permanent disfigureme nt or that involves some temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such duratio n as to result in substantial suffering or that involves any degree of prolonged or intractable pain. R.C. 2901.01(A)(5)(b)-(e). {¶ 17} After a thorough review of the record, we find that the State p resented legally sufficient evidence to support Foster’s aggravated mena cing conviction. The State’s evidence supported a finding that Foster threatened Gle ason multiple times by saying: “I’m going to get my gun and I’m going to smoke your as s.” Trial Trans., p. 16. The State’s evidence also established that Foster was agitated and fiddling around in his pocket when he made this threat. Foster also previously spit f ood at Gleason and at one of Gleason’s employees. Gleason testified that Foster’s conduc t placed him in fear and that he “had a reason to believe [Foster] had a gun and [that h e] was going to pull it and shoot [him].” Trial Trans., p. 17. {¶ 18} This evidence was legally sufficient to establish that Foster k nowingly caused Gleason to believe that Foster would cause serious physi cal harm to him in-8- violation of R.C. 2903.21(A). Foster’s threat that he was “goi ng to get [his] gun” and “smoke [Gleason’s] ass” could reasonably fit within any of the definitions of serious physical harm under R.C. 2901.01(A)(5)(b)-(e). Therefore, view ing the evidence in a light most favorable to the State, we believe that a rational t rier of fact could have found that the essential elements of aggravated menacing were proven beyond a reasonable

doubt. {¶ 19} Foster’s sole assignment of error is overruled.

Conclusion {¶ 20} Having overruled Foster’s sole assignment of error, the judgmen t of the trial

court is affirmed.

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

TUCKER, P.J. and HALL, J., concur.

Copies sent to: Betsy A. Deeds Karen S. Miller Hon. Beth W. Cappelli