[Cite as State v. Graves, 2012-Ohio-5630.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

STATE OF OHIO, : Case No. 12CA13 

 : 

Plaintiff-Appellee, : 

: DECISION AND 

v. : JUDGMENT ENTRY

 : 

MATTHEW F. GRAVES, : 

 : RELEASED 11/26/12 

 Defendant-Appellant. : 

______________________________________________________________________ 

APPEARANCES: 

William B. Summers, Parkersburg, West Virginia, for appellant. 

Paul G. Bertram, III, Marietta City Law Director, and Daniel Everson, Marietta City 

Assistant Law Director, Marietta, Ohio, for appellee. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Following a bench trial, the trial court convicted Matthew Graves of 

disorderly conduct while intoxicated under Marietta City Ordinance 509.03(b)(2). 

Graves contends that his conviction is against the manifest weight of the evidence 

because the State failed to prove that he engaged in conduct or created a condition that 

presented a risk of physical harm to himself. However, the State presented evidence 

that in his intoxicated state, Graves refused to pay for drinks at a bar and mocked the 

bartender, prompting Graves’ forcible removal from the bar and an injury to his hands. 

Instead of caring for the cuts on his bloody hands, Graves crossed a street to smoke a 

cigarette. He crossed this street by himself even though the alcohol negatively 

impacted his balance. Moreover, an officer testified that Graves was too intoxicated to 

care for himself. Based on this evidence, the trial court could reasonably conclude that 

the State proved Graves’ guilt beyond a reasonable doubt. Therefore, we cannot say 
Washington App. No. 12CA13 2 

that the court clearly lost its way and created such a manifest miscarriage of justice that 

we must reverse the conviction. 

I. Facts 

{¶2} After Graves was charged by citation with a violation of a Marietta City 

Ordinance for disorderly conduct while intoxicated, he pleaded not guilty and the matter 

proceeded to a bench trial. 

{¶3} Benjamin Smith, a bartender at the Locker Room, testified that around 

1:10 a.m. Graves told Smith to hurry up and give him the drinks he ordered. Smith told 

Graves to hold on and that he would come right back. Smith gave Graves his drinks 

and told him that he owed nine dollars. Graves looked at him and laughed. Smith told 

Graves he needed the money right now. Graves said he would pay when he was ready 

to pay. Smith told Graves to pay him now or leave. Graves laughed, and Smith told 

Graves he was serious. Graves asked Smith who would make him leave. Smith told 

Graves that he would if Graves did not pay. Graves laughed, put his wallet in his 

pocket, and turned around. Smith pushed Graves out of the bar, and Graves fell on the 

ground. Graves told Smith, “I’ll see you again, ‘cause I’m a lawyer, and you messed up 

* * *.” Then Smith called the Marietta Police Department. Smith testified that he 

thought both men used profanity during the encounter and that he thought Graves was 

“a little drunk.” On cross-examination, Smith acknowledged that Graves never 

threatened him or anyone else at the bar. 

{¶4} Patrolman B.H. Chapman, a Marietta police officer, testified that he 

responded to the call from the Locker Room. When he arrived at the scene, Graves 

was already talking to another patrolman. Chapman spoke to Graves, who claimed he 
Washington App. No. 12CA13 3 

did nothing wrong and wanted to file a lawsuit for assault and battery. Chapman 

noticed a strong odor of alcohol coming from Graves. Chapman testified that Graves’ 

speech was slurred, he had problems pronouncing words, he was unbalanced, and he 

could not find his I.D. Graves had blood on his hands. Chapman testified that Graves 

was in no condition to be outside on the street because he was too intoxicated to take 

care of himself. According to Chapman, Graves was not fit to drive anywhere and had 

no friends around. On cross-examination, Chapman admitted that he never asked how 

Graves planned to get home or checked to see if Graves had car keys. He also never 

asked if Graves went to the Locker Room by himself or had friends there. In addition, 

Chapman acknowledged that he had no evidence that Graves threatened anyone or 

tried to damage any property. 

{¶5} Graves admitted that he consumed alcohol before he went to the Locker 

Room with three friends. Graves testified that one of the friends drove the group to the 

bar. Once there, he ordered a drink for each member of his party. The bartender told 

him he had to pay for the drinks “in a rather aggressive and hostile manner.” Graves 

told the bartender he would pay. First, he turned to give the drinks to his friends, and 

the bartender yelled at him. Graves told the bartender he would get his money when 

Graves gave it to him. Graves did not recall putting his wallet away; he intended to pay 

for the drinks. He was upset and angry when the bartender threw him out. Graves 

landed on the ground and cut his hands. He got up and walked across a four or six lane 

street to a parking lot to smoke a cigarette and calm down. According to Graves, there 

“wasn’t much traffic” given the time of day. Graves told one of his friends where he was 

going before he did this. He planned to go back to the bar later and politely ask to come 
Washington App. No. 12CA13 4 

back inside. Before he could, he saw an officer and approached him about pressing 

charges. Graves testified that he planned to ride home with the designated driver 

unless that person “ended up drinking more than what they should have,” in which case 

the group would call a cab. On cross-examination, Graves acknowledged that after he 

was taken to the police station, he might have threatened to sue an officer. 

{¶6} The trial court found Graves guilty of the charged offense. After 

sentencing, this appeal followed. 

II. Assignment of Error 

{¶7} Graves assigns one error for our review: “The Defendant was wrongly 

convicted of ‘Disorderly Conduct’ as the evidence failed to establish that defendant’s 

intoxication posed a risk of harm to himself or others as required in Marietta Municipal 

Ordinance 509.03.” 

III. Manifest Weight of the Evidence. 

{¶8} Graves contends that the State failed to prove an essential element of its 

case against him. We interpret this argument as a manifest weight of the evidence 

argument.1

 “In determining whether a criminal conviction is against the manifest weight 

of the evidence, an appellate court must review the entire record, weigh the evidence 

and all reasonable inferences, consider the credibility of witnesses 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.” 

State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, ¶ 24, citing State v. Thompkins, 

 

1

 Even if we interpreted Graves’ argument as a challenge to sufficiency of the evidence, his argument 

would fail because of our conclusion that the weight of the evidence supports his conviction. “When an 

appellate court concludes that the weight of the evidence supports a defendant’s conviction, this 

conclusion necessarily includes a finding that sufficient evidence supports the conviction.” State v. 

Puckett, 191 Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 34 (4th Dist.). 
Washington App. No. 12CA13 5 

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A reviewing court “may not reverse a 

conviction when there is substantial evidence upon which the trial court could 

reasonably conclude that all elements of the offense have been proven beyond a 

reasonable doubt.” State v. Johnson, 58 Ohio St.3d 40, 42, 567 N.E.2d 266 (1991), 

citing State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph two of the 

syllabus. 

{¶9} We must still remember that the weight to be given evidence and the 

credibility to be afforded testimony are issues to be determined by the trier of fact. State 

v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d 1000 (1995), citing State v. Grant, 67 

Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). The fact finder “is best able to view the 

witnesses and observe their demeanor, gestures, and voice inflections, and use these 

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v. 

City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Thus, we will only 

interfere if the fact finder clearly lost its way and created a manifest miscarriage of 

justice. 

{¶10} Graves was convicted of disorderly conduct while intoxicated, in violation 

of Marietta City Ordinance 509.03(b)(2), which provides: “No person, while voluntarily 

intoxicated shall * * * [e]ngage in conduct or create a condition that presents a risk of 

physical harm to the offender or another, or to the property of another.” “ ‘Risk’ means a 

significant possibility, as contrasted with a remote possibility, that a certain result may 

occur or that certain circumstances may exist.” Marietta City Ordinance 501.01(g). 

{¶11} Graves does not dispute the fact that he was voluntarily intoxicated. The 

State implicitly concedes, and we agree, that no evidence suggests Graves presented a 
Washington App. No. 12CA13 6 

risk of physical harm to another or the property of another. The issue in this case is 

whether he engaged in conduct or created a condition that presented a risk of physical 

harm to himself. 

{¶12} Graves complains that Chapman did not observe him do anything that 

made him a danger to himself. He argues that he was “just intoxicated -- which is not 

enough.” (Appellant’s Br. 6). 

{¶13} The State argues in part that Graves engaged in conduct that presented a 

risk of physical harm to himself when he “attempted to re-enter The Locker Room after 

having originally being bounced out for his threatening and disrespectful conduct 

inside.” (Appellee’s Br. 4). Aside from the lack of evidence that Graves threatened 

anyone that night, Graves never actually tried to re-enter the bar. He testified that he 

planned to make a polite effort to go back inside but then approached an officer instead. 

Thus, we reject this argument. 

{¶14} Nonetheless, we conclude that substantial evidence supports Graves’ 

conviction. Smith testified that Graves laughed the first time he asked Graves to pay for 

the drinks at the bar. The second time, Graves said he would pay when he was ready. 

The third time, the bartender told Graves to pay or leave, and Graves laughed again. 

When Smith told Graves he was serious, Graves asked Smith who would make him 

leave. Smith told Graves that he would if Graves did not pay, suggesting Smith would 

use force. Graves responded by laughing, putting his wallet away, and turning around. 

Smith then pushed Graves out of the bar, and Graves cut his hands. 

{¶15} From this testimony, the court could conclude that in his intoxicated state, 

Graves did not merely create a risk of physical harm to himself but actually suffered 
Washington App. No. 12CA13 7 

physical harm because he refused to pay for drinks and goaded the bartender into using 

physical force. And instead of caring for the cuts on his bloody hands, Graves crossed 

the street to smoke a cigarette. He crossed this street by himself in spite of the 

alcohol’s negative impact on his balance. Moreover, Chapman testified that based on 

his observations, Graves was too intoxicated to take care of himself. Chapman noticed 

a strong odor of alcohol coming from Graves, whose speech was slurred. Chapman 

indicated Graves had poor balance and had a problem finding his I.D. Based on this 

evidence, the trial court could have reasonably concluded that Graves engaged in 

conduct or created a condition that presented a risk of physical harm to himself while he 

was alone on the street after 1:10 a.m. 

{¶16} After reviewing the entire record, we cannot say that the trial court lost its 

way or created a manifest miscarriage of justice when it found Graves guilty of 

disorderly conduct while intoxicated. Accordingly, we overrule the sole assignment of 

error and affirm the trial court’s judgment. 

JUDGMENT AFFIRMED. 
Washington App. No. 12CA13 8 

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Marietta 

Municipal Court to carry this judgment into execution. 

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as 

of the date of such dismissal. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. Exceptions. 

Kline, J. & McFarland, J.: Concur in Judgment and Opinion. 

For the Court 

BY: ____________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.