[Cite as State v. Zink, 2023-Ohio-1250.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF LORAIN )

STATE OF OHIO

Appellee

v.

STEVEN ZINK

Appellant

C.A. No. 21CA011813

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF LORAIN, OHIO

CASE No. 19CR101802

DECISION AND JOURNAL ENTRY

Dated: April 17, 2023

HENSAL, Presiding Judge.

{¶1} Steven Zink appeals a judgment of the Lorain County Court of Common Pleas that 

convicted and sentenced him for one count of felonious assault. For the following reasons, this 

Court affirms.

I.

{¶2} Mr. Zink worked as a bouncer at a bar in Lorain. One evening, S.S. was at the bar 

with his wife and another couple for dancing. When the disc jockey began playing music S.S. did 

not like and refused to play his requested songs, S.S. gave him a thumbs down gesture. The disc 

jockey walked over to S.S.’s table, got into a verbal confrontation with him, and continued giving 

the group dirty looks after returning to his station. According to S.S., the couples decided to leave 

the bar shortly thereafter, but, when he got up, Mr. Zink was standing there. Mr. Zink told S.S. 

that he had to leave and began pushing him down the hallway, even as S.S. repeatedly told Mr. 

Zink that they were leaving. S.S. testified that Mr. Zink pushed him all the way to the entrance of 
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the bar, including off a small flight of stairs. After being pushed down the stairs, his wife attempted 

to intervene, but Mr. Zink threw her aside. When S.S. objected, Mr. Zink punched him in the face, 

knocking him unconscious and causing him to fall onto the ground outside the bar.

{¶3} The Grand Jury indicted Mr. Zink for felonious assault against S.S. and assault 

against S.S.’s wife. At trial, Mr. Zink testified that he did not forcefully push S.S. to the door of 

the bar, but only stood behind him and made a sweeping motion with his hand, indicating that S.S.

had to leave. When they reached the door of the bar, S.S. suddenly struck him in the face, causing 

him to react with a punch. A jury found Mr. Zink guilty of the felonious assault charge but not 

guilty of the assault charge. The trial court sentenced him to three years of community control, 

including 90 days in jail. Mr. Zink has appealed, assigning three errors.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY 

COMMENTING ON THE EVIDENCE IN VIOLATION OF APPELLANT’S 

RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND 

ARTICLE ONE, SECTION 10 OF THE OHIO STATE CONSTITUTION.

{¶4} In his first assignment of error, Mr. Zink argues that the trial court improperly 

commented on the evidence, in violation of his right to a fair trial. Recognizing that juries are 

“highly sensitive to every utterance by the trial judge,” the Ohio Supreme Court has determined 

that improper remarks by a trial judge may prejudice a defendant’s right to a fair trial and 

representation by counsel. State v. Wade, 53 Ohio St.2d 182, 188 (1978), quoting State v. Thomas, 

36 Ohio St.2d 68, 71 (1973). 

Generally, in determining whether a trial judge’s remarks were prejudicial, the 

courts will adhere to the following rules: (1) The burden of proof is placed upon 

the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in 

the best position to decide when a breach is committed and what corrective 
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measures are called for, (3) the remarks are to be considered in light of the 

circumstances under which they are made, (4) consideration is to be given to their 

possible effect upon the jury, and (5) to their possible impairment of the 

effectiveness of counsel.

Id.

{¶5} During cross-examination of S.S., Mr. Zink’s counsel asked S.S. about his medical 

records from the night of the incident. One of the things counsel asked about was whether the 

records indicated that S.S. had “[a]cute alcohol intoxication.” S.S. agreed that the records stated 

so. Summarizing S.S.’s diagnosis from the records, Mr. Zink’s counsel asserted that S.S. had a 

severe concussion and was highly intoxicated. After S.S. disagreed, because the records only 

indicated “acute” alcohol intoxication, the State objected, noting that S.S. was not an expert who 

had knowledge of the meaning of that phrase. The court interjected that the term “acute” does not 

suggest that a condition is severe, only that it is current, and contrasted it with a chronic condition. 

Mr. Zink’s counsel objected to the court explaining a term in front of the jury. Following a 

discussion at sidebar, the court concluded that a mistrial was not warranted.

{¶6} Overnight, Mr. Zink’s counsel uncovered a European medical journal that defined 

acute alcohol intoxication as having a blood-alcohol content of more than .08. After noting that 

S.S.’s medical records indicated that his blood alcohol content had been .085, the court offered to 

provide a curative instruction to the jury. Mr. Zink’s counsel stated that he did not object to a 

curative instruction and suggested that the court refer the jury to the page of the medical records 

with the blood-alcohol content measurement. Once the jury was seated, the court stated:

[T]here was a time during the cross-examination of [S.S] where [a] phrase * * * in 

the medical records referred to acute intoxication. And to give context to that, I 

had counsel check the medical records, and they have stipulated as to what the 

blood alcohol content was of [S.S.] at the hospital so that then you can conclude[ ] 

his level of intoxication, and have context [as] to what acute intoxication meant at 

that time.
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The legal standard for intoxication is .08. If you test .08 you’re not supposed to be 

driving, and at page 53 of the medical records, the level was .085. So it was over 

the legal limit. That’s what his level of intoxication was.

So, you can figure out from there I guess how many beers or whatever it was that 

led to that level of blood alcohol. And that’s been stipulated to by both sides so 

hopefully that clears up any confusion[.]

Mr. Zink did not object to the content of the curative instruction. 

{¶7} Upon consideration of the Wade factors, we conclude that Mr. Zink has not 

established that he was prejudiced by the court’s statements about the definition of “acute.” Mr. 

Zink correctly notes that S.S.’s level of intoxication was a factor that could have affected his ability 

to remember the incident and, consequently, influenced his credibility to the jury. Whether S.S.’s 

blood alcohol content qualified as “high” or “acute,” however, was not as important as providing 

the jury with context about how inebriated S.S. was at the time of the incident. The court’s curative 

instruction clarified that S.S.’s blood-alcohol content at the hospital was .085, which it noted was 

above the legal limit to operate a motor vehicle. It also explained that that was the context under 

which the hospital staff diagnosed S.S. as having acute alcohol intoxication. A jury is presumed to 

follow curative instructions given to it by a trial judge. State v. Garner, 74 Ohio St.3d 49, 59 

(1995). In light of the court’s instruction, combined with S.S.’s acknowledgement that he “had a 

buzz” at the time of the incident, we conclude that the trial court’s initial statements that an acute 

condition is not “severe” and contrasting an acute condition from a chronic one did not violate Mr. 

Zink’s right to a fair trial. Mr. Zink’s first assignment of error is overruled. 
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ASSIGNMENT OF ERROR II

THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE 

EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE 

FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE 

CONSTITUTION OF THE STATE OF OHIO.

{¶8} In his second assignment of error, Mr. Zink argues that his felonious assault 

conviction is not supported by sufficient evidence. Whether a conviction is supported by sufficient 

evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 

386 (1997). In carrying out this review, our “function * * * 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. “The 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.

{¶9} Mr. Zink argues that the State failed to prove that he did not act in self-defense 

when he punched S.S. “Self-defense requires that a defendant: (1) was not at fault in creating the 

situation giving rise to the affray; (2) had a bona fide belief that he was in imminent danger of * * 

* great bodily harm and that his only means of escape * * * was in the use of such force; and (3) 

did not violate any duty to * * * avoid the danger.” State v. Warren, 9th Dist. Summit No. 29455, 

2020-Ohio-6990, ¶ 12, citing State v. Barnes, 94 Ohio St.3d 21, 24 (2002). “All three of these 

elements must be present to establish self-defense.” Id. 

{¶10} The Ohio Supreme Court has recently clarified that “a defendant charged with an 

offense involving the use of force has the burden of producing legally sufficient evidence that the 

defendant’s use of force was in self-defense.” State v. Messenger, __ Ohio St.3d __, 2022-Ohio-
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4562, ¶ 25. If the defendant satisfies that burden, the State then has the “burden of disproving the 

defendant’s self-defense claim beyond a reasonable doubt[.]” Id. at ¶ 27. The Ohio Supreme 

Court has also held that “a manifest-weight-of-the-evidence standard of review applies to the 

state’s burden of persuasion” on the issue of self-defense. Id. at ¶26. When considering a 

challenge to the manifest weight of the evidence, this Court is required to consider 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 and a new 

trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “A reversal on this basis 

is reserved for the exceptional case in which the evidence weighs heavily against the conviction.” 

State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26. 

{¶11} Mr. Zink testified that S.S. struck him in the face as he was escorting S.S. from the 

bar, which is what prompted him to punch S.S. He testified that S.S.’s strike not only left red 

marks on his face but also bent the glasses he was wearing. Accordingly, there was evidence that 

tended to support that Mr. Zink acted in self-defense.

{¶12} The State, however, presented evidence that Mr. Zink created the situation that gave 

rise to the affray and that he did not have a bona fide belief that he was in imminent danger. 

Contrary to Mr. Zink’s testimony, S.S. testified that, after he stood up to leave, Mr. Zink grabbed 

his shoulders and pushed him into a wall. Mr. Zink then pushed him down a hall, through a 

doorway, off a landing, and out a door onto the concrete outside. When S.S. asked Mr. Zink what 

his problem was after Mr. Zink pushed S.S.’s wife, Mr. Zink responded by punching him in the 

face. 
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{¶13} Based on the testimony of S.S., although he got into a verbal confrontation with the 

disc jockey, Mr. Zink came over after it was over and initiated the physical contact between them. 

S.S. testified that Mr. Zink kept pushing him down the hallway, even though he had his arms up 

and was telling Mr. Zink that his group was leaving. S.S. also testified that Mr. Zink punched him 

while he was not even facing Mr. Zink. Upon review of the record, we conclude that the jury’s 

determination that Mr. Zink did not act in self-defense is not against the manifest weight of the 

evidence. Mr. Zink’s second assignment of error is overruled. 

ASSIGNMENT OF ERROR III

THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH 

AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO 

CONSTITUTION.

{¶14} In his third assignment of error, Mr. Zink argues that his conviction is against the 

manifest weight of the evidence. Mr. Zink argues that he was more credible than S.S., noting that 

S.S. had been heavily drinking and there was testimony that S.S. was loud and out of control. He, 

on the other hand, was working that evening and had not had any alcohol to drink, which was 

verified by one of his co-workers. 

{¶15} Mr. Zink’s co-worker testified that S.S.’s group was loud and drinking heavily, but 

he did not testify about S.S. specifically. He testified that it was customary for Mr. Zink not to 

drink while working, but he was outside part of that evening while Mr. Zink was working inside. 

He, therefore, did not see Mr. Zink during his entire shift and did not see the incident.

{¶16} S.S.’s version of the events was supported by his wife, who saw Mr. Zink push S.S. 

into a wall and down the hallway. According to S.S.’s wife, she ran up the stairs and into the bar 

after Mr. Zink pushed her aside so she did not see the punch. The wife of the other couple that 

was with S.S. that evening testified that, because she was busy getting ready to leave, she did not 
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see Mr. Zink put his hands on S.S., but she heard S.S. tell Mr. Zink to get his hands off him. A 

police officer who responded to the incident testified that he did not see any red marks on Mr. 

Zink’s face and could not remember if Mr. Zink was wearing glasses. 

{¶17} The credibility of the witnesses is primarily for the trier of the facts to determine. 

State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. “In reaching its verdict, 

the jury was in the best position to evaluate the credibility of the witnesses and it was entitled to 

believe all, part, or none of the testimony of each witness.” State v. Shank, 9th Dist. Medina No. 

12CA0104-M, 2013-Ohio-5368, ¶ 29. Upon review of the record, although S.S. had been drinking 

at the time of the incident, we cannot say that the jury lost its way when it accepted his version of 

the facts and created such a manifest miscarriage of justice that Mr. Zink’s conviction should be 

overturned. Mr. Zink’s third assignment of error is overruled.

III.

{¶18} Mr. Zink’s assignments of error are overruled. The judgment of the Lorain County 

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of 

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 
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for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL

FOR THE COURT

CARR, J.

SUTTON, J.

CONCUR.

APPEARANCES:

GIOVANNA BREMKE, Attorney at Law, for Appellant.

J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting 

Attorney, for Appellee.