[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 : Appellate Case No. 2020-CA-20
:
v. : Trial Court Case No. CRB2000526
:
LARRY FOSTER : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of February, 2021.
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BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Prosecuting Attorney, City of
Fairborn Prosecutor’s Office, 510 West Main Street, Fairborn, Ohio 45324
Attorney for Plaintiff-Appellee
KAREN S. MILLER, Atty. Reg. No. 0071853, P.O. Box 341274, Dayton, Ohio 45343
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Larry Foster, appeals from his aggravated menacing
conviction following a bench trial in the Fairborn Municipal Court. In support of his
appeal, Foster contends that the trial court erred in overruling his Crim.R. 29 motion for
acquittal because his conviction was not supported by sufficient evidence. For the
reasons outlined below, we disagree with Foster’s claim; therefore, 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 count 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 made threats to the
employees of an Arby’s restaurant located on Colonel Glenn Highway in the city of
Fairborn, Greene County, Ohio. Foster pled not guilty to the charge and the matter
proceeded to bench trial on April 16, 2020.
{¶ 3} During trial, the State presented the testimony of Grant Gleason, 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 testified that he followed Foster
into the restaurant, went behind the counter, and asked Foster what he would like to
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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 restrictions. 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 Foster would not
leave the restaurant, he would call the police to have Foster escorted out. Gleason
testified that Foster then took a bite of a dinner roll that Foster 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 again, this time at the
restaurant’s soda machine. Foster then spit a third time in the direction of an employee
who was sitting in a nearby booth. Gleason testified that he was very concerned about
Foster’s spitting due to the COVID-19 pandemic. Gleason testified 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 started to call 9-1-
1. Gleason testified that when Foster saw him calling the police, 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 spotted the police approaching
from across the street.
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{¶ 7} The State also presented the testimony of Arby’s employee Chelsea 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 Foster that Foster would
have to leave the restaurant if he was not going to make a purchase. 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, Foster was
walking around the restaurant spitting food out of his mouth everywhere. Wise then
testified that Foster “said something ‘bout that he was going to 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 commands 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 Foster. Blocher testified
that he spoke with both Gleason and Wise about the incident. From that investigation,
Blocher determined that Foster was going to be charged with aggravated menacing.
Blocher then told Hiles about the charge, and Hiles thereafter placed Foster under arrest.
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{¶ 10} Following this testimony, the State rested its case. Foster then 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 the employees’ alleged
conduct, but denied making any threats. Foster specifically denied saying that he was
going to get a gun and “smoke their asses.” Trial Trans., p. 48.
{¶ 12} After the defense rested, the trial court found Foster guilty as charged. In
reaching its verdict, the trial court noted that it found Gleason’s testimony “quite credible.”
Trial Trans., p. 50. The trial court then proceeded immediately to sentencing and
ordered Foster to serve 180 days in jail. The trial court suspended 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 credit for time served, waived court costs, and banned Foster
from the Colonel Glenn Arby’s for two years.
{¶ 13} Foster now appeals from his conviction, raising a single assignment of error
for review.
Assignment of Error
{¶ 14} Under his sole assignment of error, Foster contends that the trial court erred
in overruling his Crim.R. 29 motion for acquittal because his conviction was not supported
by sufficient evidence. Specifically, Foster claims that the State failed to present
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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 the same
standard as the one for determining whether a verdict is supported 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 offense 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 trial 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 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.
{¶ 16} As previously noted, Foster was convicted of aggravated menacing in
violation of R.C. 2903.21(A). Pursuant to that statute: “No person shall knowingly cause
another to believe that the offender will cause serious physical harm to the person or
property of the other person[.]” R.C. 2903.21(A). “A person acts knowingly, regardless
of purpose, when the person is aware that the person’s conduct will probably cause a
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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, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration 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 presented
legally sufficient evidence to support Foster’s aggravated menacing conviction. The
State’s evidence supported a finding that Foster threatened Gleason multiple times by
saying: “I’m going to get my gun and I’m going to smoke your ass.” 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 food at Gleason and at one
of Gleason’s employees. Gleason testified that Foster’s conduct placed him in fear and
that he “had a reason to believe [Foster] had a gun and [that he] was going to pull it and
shoot [him].” Trial Trans., p. 17.
{¶ 18} This evidence was legally sufficient to establish that Foster knowingly
caused Gleason to believe that Foster would cause serious physical harm to him in
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violation of R.C. 2903.21(A). Foster’s threat that he was “going 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, viewing the evidence in a
light most favorable to the State, we believe that a rational trier 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 judgment of the trial
court is affirmed.
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TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Betsy A. Deeds
Karen S. Miller
Hon. Beth W. Cappelli
