COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59057 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANSEL HAYES : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 3, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-242215 JUDGMENT : AFFIRMED IN PART, : REVERSED IN PART DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES MICHAELE TYNER, ESQ. CUYAHOGA COUNTY PROSECUTOR 7002 Worley Avenue CRAIG T. WEINTRAUB, ASST. Cleveland, Ohio 44105 Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Appellant Ansel Hayes appeals from his convictions for felonious assault. For the reasons set forth below, we reverse in part and affirm in part. I. Appellant was indicted on August 21, 1989 for two counts of felonious assault in violation of R.C. 2903.11. Each count contained a firearm specification. Appellant pled not guilty and the matter proceeded to jury trial on September 20, 1989. The jury found appellant guilty of both counts of felonious assault and both firearm specifications. The trial judge sentenced appellant to two consecutive three year terms for the firearm specifications, and a term of six to fifteen years on each of the underlying offenses. This appeal timely follows. For its case the state presented the testimony of Willie Bowling, John Chaney, and Officer William Nolan of the Cleveland Police Department. Willie Bowling testified that on July 24, 1989, he suffered a brutal beating at the hands of appellant and appellant's friends, one of whom was renting a room from Bowling. Bowling was in his own home at the time the attack occurred. Further, Bowling testified that appellant and several other attackers were armed with pistols. Bowling was struck by appellant with his pistol, fists, and a bottle. Additionally, appellant, pistol in hand, threatened to kill Bowling. - 3 - Bowling went on to testify that John Chaney, a friend and visitor that day, was beaten in a similarly brutal fashion. Finally, Bowling testified that two weeks after the assault, appellant told him that "he was sorry he done what he done," but that the others would have killed him if he didn't participate. John Chaney testified that on July 24, 1989 he too was brutally beaten by appellant and his friends. Chaney was visiting Bowling at the time and was the first victim of the attack. Chaney further testified that appellant was carrying a .25 caliber automatic pistol throughout the affray. More specifically, Chaney testified that he observed as appellant pointed the pistol at Bowling and accused Bowling of stealing money. After this appellant turned on Chaney and stabbed him with a knife, after accusing him of stealing money. Chaney testified that he eventually escaped by jumping through the front picture window of Bowling's home. Officer Nolan testified that he was one of the first officers on the scene and observed that Bowling's house had blood stains and broken glass throughout the first floor. Nolan found Bowling in a semi-conscious state, bleeding profusely. Nolan took a statement from Bowling several days later in which Bowling declared that, "Ansel Hayes grabbed him, put a gun to his head, and threatened to blow his brains out." Appellant took the stand in his own behalf and testified that he had witnessed, but had not participated in, the beatings - 4 - of Bowling and Chaney. Appellant denied the allegations that he had a pistol with him or used one to threaten the victims. Further, appellant testified that he actually attempted to help the victims during the affray, but was unsuccessful. Finally, appellant testified that approximately two weeks after the assault he told Bowling he was sorry about what had happened. II. For his first assignment of error appellant argues that his conviction on the firearm specifications was not supported by sufficient evidence to prove guilt beyond a reasonable doubt. The test for reviewing the sufficiency of evidence has been set forth by the Ohio Supreme Court in State v. Eley (1978), 56 Ohio St. 2d 169. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. Eley, supra, syllabus. R.C. 2929.71 provides that a defendant will be sentenced to an additional three years of incarceration for offenses involving a firearm. "Firearm" is defined in R.C. 2923.11(B) as: "any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. 'Firearm' includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable." Appellant contends that there was insufficient evidence as to the nature of the pistol used, i.e. . . . whether it was capable of firing projectiles or readily rendered operable. - 5 - Proof of the operability of a firearm can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. State v. Murphy (1990), 49 Ohio St. 3d 206. In Murphy, the court found that evidence that the defendant walked into the store, announced that it was a hold up, took a t-shirt out of his pants, unwrapped it to produce a pistol, pointed the pistol at the clerk and customer, threatened to kill the clerk and customer, together with the description of the pistol by both the clerk and customer, was sufficient evidence to prove beyond a reasonable doubt that the defendant possessed a "firearm" as defined in R.C. 2923.11(B). In the case sub judice, evidence was presented by both victims that appellant possessed a firearm. Chaney testified that appellant was carrying a ".25 automatic," and used it to threaten Bowling. Bowling testified that appellant had a pistol in his hand when he threatened to kill him. Bowling was also hit in the head by appellant with the pistol. In addition, in a statement taken only a few days after the assault, Bowling stated that appellant held the pistol to his head and threatened to kill him. Based upon the foregoing testimony about the pistol, and circumstances surrounding the assaults, the evidence is sufficient to establish proof beyond a reasonable doubt that - 6 - appellant was armed with a "firearm," as defined in R.C. 2923.11(B). Appellant's first assignment of error is overruled. III. For his second assignment of error appellant argues that the trial court erred in sentencing him to two separate three-year terms of actual incarceration for the firearm specification. R.C. 2929.7(B) provides that: "If an offender is convicted of, or pleads guilty to, two or more felonies and two or more specifications charging him with having a firearm on or about his person or under his control while committing the felonies, each of the three-year terms of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code, unless any of the felonies were committed as part of the same act or transaction. If any of the felonies were committed as part of the same act or transaction, only one three-year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served consecutively with, and prior to, the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code." (Emphasis added.) An understanding of this court's interpretation of the words "same act or transaction" in R.C. 2929.71(B) can be gleaned from this court's opinion in State v. Francis (December 15, 1988), Cuyahoga App. No. 54737, unreported. In Francis this court pointed out that: - 7 - "In State v. Carpenter (Jan. 2, 1986), Cuyahoga App. No. 49951, unreported, this court stated 'the word transaction as used in R.C. 2929.71 means a series of continuous acts bound together by time, space and purpose, and directed toward a single objective.' Id. at 11 (quoting State v. Buell Nov. 15, 1984), Summit App. No. 1626, unreported at 7). The court further found the term to be sufficiently flexible to encompass 'any number of criminal offenses so long as such offenses have a logical relationship and are committed within a continuous sequence.' Id. at 10 (quoting State v. Fudge March 29, 1984), Clark App. No. 1873, unreported at 3). In State v. Patterson (Nov. 13, 1986), Cuyahoga App. No. 51231, unreported at 18, we noted that motivation is a relevant consideration." Francis, supra, at 11. In Francis the trial court sentenced the defendant to three three-year terms of incarceration for firearm specifications, but the Court of Appeals reversed one of the sentences. The Francis court held as follows: "The state presented evidence that the defendant shot Harris because of his dissatisfaction with a previous drug transaction. Nothing in the record indicates Francis was similarly motivated to shoot at Magbie and Ransom. We find the murder of Harris and the attempted murder of Magbie and Ransom to be two separate transactions within the meaning of the statute. However, the shots fired at Magbie and Ransom were part of a continuous sequence with no separate motivating factor. Cf. Id. at 17-19. Under these circumstances, we hold that only two three-year terms of actual incarceration may be imposed. "Accordingly, we sustain this assignment of error in part and vacate one of the three- year terms imposed under R.C. 2929.71." - 8 - Francis, supra, at 12. In State v. Patterson (November 13, 1986), Cuyahoga App. No. 51231, unreported, this court similarly vacated one three-year term of incarceration because the defendant's action was part of an already penalized "transaction." In Patterson, we held that: "In the case at bar it would appear that the defendant shot Bullock in the downstairs hallway because the defendant did not want to return money which Bullock claimed was his. The evidence discloses that the young women upstairs screamed, when they heard gunfire. Neither of them regularly resided in the house. One of them was a college student and the other was staying with her father because she was ill. After the women screemed, [sic] the defendant ascended the stairs, broke down the door and shot the women, presumably to eliminate potential witnesses. We find that the murder of Bullock and the subsequent attempted murder of both his daughters were two separate 'transactions' within the meaning of Fudge and Carpenter, supra. Therefore, only two three-year terms of actual incarceration may be imposed. "Accordingly, one of the three three-year terms of actual incarceration to which Patterson was sentenced must be vacated." Patterson, supra, at 18-19. In the case sub judice, the evidence presented demonstrates that appellant's motivation was the same for each of the assaults. Both victims testified that the assaults were motivated by the accusation that one of the victims stole money from one of the appellant's friends. Both victims testified that appellant accused them of stealing the money while he assaulted them. Although the assault of Chaney began before the assault of - 9 - Bowling, appellant was observed beating the two almost simultaneously. On the basis of these factors, we find that the offenses have a logical relationship to each other, were committed within a continuous sequence, and were one "transaction" under R.C. 2929.71(B). For the foregoing reasons we find that appellant's second assignment of error has merit. Accordingly one of the three-year terms of incarceration for the gun specification must be vacated. Judgment affirmed in part and reversed in part. - 10 - It is ordered that appellant and appellee equally share the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and HARPER, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .