COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59210 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION ANDREW HARDAWAY : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 31, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 238292 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Jerome Silver Cuyahoga County Prosecutor 3421 Prospect Avenue By: John Gallagher Cleveland, Ohio 4411 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Andrew Hardaway timely appeals his conviction for felonious assault with gun and violence specifications. He raises five assignments of error./1\ Upon review of the record, we affirm. Hardaway is convicted of shooting his stepson, Lorenzo White, on April 4, 1989. White testified that, while visiting with his mother that evening, he asked his stepfather to accompany him to the store. En route, White suggested his mother and Hardaway move from their house to a smaller residence. White also expressed concern about the safety of their present neighborhood. According to White, the defendant became "real angry" and left White's auto when they arrived at the store. White eventually drove back to his mother's house alone. While White was talking to his mother in her bedroom, Hardaway entered the house and, as he walked to his bedroom, stated "*** and when you go take your mother with you." White responded: "Well, Andrew, I'm finish [sic] with it. I said what I had to say, you said what you had to say, I do not have anything else to say about it." White averred Hardaway then threatened, "I'll get my gun and shoot you ***." Although White knew there was a gun in defendant's bedroom, he followed Hardaway. White stopped in the doorway when he saw the defendant with the gun. As White's mother entered the room, White heard a shot and realized he had /1\ See Appendix. - 2 - been wounded in the neck. Hardaway allegedly stated, "I should have killed both of y'all [sic]. I should have shot you in the head. *** I'll get my other gun out of the trash and finish you off." White's mother called police and EMS personnel took her son to the hospital. White testified the shot entered the right front side of his neck and that the exit wound was in the back of his neck. He was hospitalized overnight. Mattie Hardaway, the defendant's wife, corroborated her son's testimony. Cleveland Police Officer Steven McGraw arrived at the Hardaway house to find defendant and his wife on the porch. McGraw detained the defendant until other officers arrived, and then, with the permission of Mattie Hardaway, he went into the house and retrieved the gun the defendant used to shoot his stepson. McGraw turned the gun over to Officer Mitchell who took the weapon and the defendant to the police station. According to Mitchell, Hardaway stated "If I wanted to kill him I could have." The defendant also told the officer that White should not interfere in his marriage. Cleveland Police Detective Peter Mahovolich interviewed the defendant at the station house where Hardaway stated, "If I intended to kill him, I would have shot him between the eyes." Police officers subsequently found a bullet in the ceiling of the bedroom. Andrew Hardaway testified that he argued with his stepson about White's suggestion of moving. The defendant admitted telling White to leave and take his mother with him. Hardaway, however, averred he was sitting on his bed when White "raged at - 3 - me." This action, the defendant claimed, prompted him to get the gun in order to scare White. Hardaway explained he did not know the gun was loaded. The defendant further denied pointing the gun at White and swore the gun just "went off." Later, White testified he did not remember when the gun was discharged. In his first assignment of error, Hardaway asserts the trial judge should have charged the jury on the defense of "accident." It is well-established that a defendant waives an alleged error when he fails to raise it in the trial court in a timely fashion. State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus; State v. Fanning (1982), 1 Ohio St. 3d 19. The record demonstrates Hardaway failed to request a jury instruction on "accident" before the court charged the panel. The defendant, however, argues he raised this issue in his new trial motion and, thus, waiver is inapplicable. We disagree. Hardaway should have requested the instruction before the court charged the jury, when error, if any, could have been avoided or corrected. Williams, supra. This assignment of error is overruled. Hardaway's second assignment of error asserts the court improperly denied his request for jury instructions on assault - 4 - and negligent assault as lesser included offenses of felonious assault. R.C. 2903.11 defines felonious assault as: "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code." Assault is set forth in R.C. 2903.13 which provides: "(A) No person shall knowingly cause or attempt to cause physical harm to another. "(B) No person shall recklessly cause serious physical harm to another." R.C. 2903.14 proscribes negligent assault and states: "(A) No person shall negligently, by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code, cause physical harm to another." Assault and negligent assault are lesser included offenses of felonious assault. State v. Ware (October 11, 1990), Cuyahoga App. No. 57546, unreported; State v. Jarrett (March 24, 1988), Cuyahoga App. Nos. 53123 and 53830, unreported; State v. Preston (June 13, 1985), Cuyahoga App. No. 47503, unreported; State v. Hines (July 28, 1988), Cuyahoga App. No. 54190, unreported. A court, however, is not required to charge on assault and negligent assault unless "*** under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense ***." State v. Wilkins (1980), 64 Ohio St. 2d 382, 388. See, also, State v. Davis (1983), 6 Ohio St. 3d 91. - 5 - It is undisputed Hardaway used a gun to wound his stepson. The record further demonstrates that White suffered "serious physical harm." R.C. 2901.01 (E) provides, in relevant part: "(E) 'Serious physical harm to persons' means any of the following: "*** "(3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; "(4) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement; "(5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain." White was "dazed" after being shot in the neck. The bullet produced both an entrance and exit wound, and it caused scarring and a "little knot in the back [of the neck]." Finally, White was hospitalized overnight. Since Hardaway used a gun to cause White serious physical harm, the jury reasonably could not have found the defendant not guilty of felonious assault and guilty of the lesser charges. Cf. Jarrett, supra; Ware, supra; Preston, supra; Hines, supra. This assignment of error is overruled. The defendant's third assignment of error challenges the admission of hearsay. - 6 - Without citing to specific testimony as required by App. R. 12(A), the defendant generally argues "the police" impermissibly repeated statements he made at the time of his arrest. Presumably Hardaway is referring to Officer Mitchell's testimony that the defendant stated, "If I wanted to kill him I could have." and that his stepson should not have interfered in the Hardaway marriage. Detective Mahovolich also told the jury that the defendant claimed "If I intended to kill him, I would have shot him between the eyes." The trial court properly allowed the two statements relating to the shooting as admissions under Evid. R. 801(D)(2). See State v. McGee (1987), 37 Ohio App. 3d 54. The third statement concerning White's alleged interference in the marriage was not offered to prove the truth of the matter asserted and, therefore, is not hearsay. See State v. Maurer (1984), 15 Ohio St. 3d 239, 261-263. This statement properly was introduced to show Hardaway's state of mind and to explain his actions. Id. at 262. The defendant also appears to argue the statements were inadmissible because the officers reviewed police reports to refresh their memories before trial. Neither officer drafted the reports, which were not preserved for appeal, and there is no indication the officers' recollection of defendant's statements came from the reports. Finally, we reject Hardaway's argument that the court erred by not allowing the court to review these reports. Since the officers did not use the reports while testifying, notwithstanding the fact they reviewed the reports - 7 - to refresh their memories before trial, the defendant was not entitled to use the reports. See State v. Wilson (1985), 23 Ohio App. 3d 111, 114; State v. Cummings (1985), 23 Ohio App. 3d 40, 45. This assignment of error is overruled. In the fourth assignment, Hardaway asserts the court erred by not dismissing the violence and gun specifications. R.C. 2929.71 imposes a mandatory three-year sentence if a defendant is in possession of or has a firearm under his control while committing a felony. In State v. Gaines (1989), 46 Ohio St. 3d 65, the Supreme Court held that R.C. 2929.71 requires that the "state must prove beyond a reasonable doubt that the firearm was operable or could have been rendered operable at the time of the offense." Id. at 69. In State v. Murphy (1990), 49 Ohio St. 3d 206, the court further stated such proof may be provided through the testimony of lay witnesses who were in a position to observe the firearm and the circumstances surrounding the crime. In the instant case, Hardaway admitted the gun discharged and wounded White. Thus, the defendant's argument wholly is without merit. Finally, we note the state also offered evidence that police successfully test-fired the weapon. Hardaway next argues the state failed to prove "serious" physical harm and, thus, the court should have dismissed the violence specification. R.C. 2929.11(D) requires only proof of physical harm, not "serious" injuries as claimed by defendant. - 8 - We reject Hardaway's contention the state was required to introduce expert testimony as to the harm. The law requires no such evidence. Further, the record contains ample evidence that White suffered "serious" physical harm. Finally, Hardaway contends the court erred by not separately instructing the jury "on the burden of proof as to each predicate element of each ***" specification. The defendant voiced no objection to the court's instruction and, thus, waived this argument on appeal. Williams, supra; Fanning, supra. Furthermore, a review of the jury charge reveals the trial judge gave separate instructions on the violence and gun specifications. This assignment of error is overruled. In his fifth assignment of error, Hardaway challenges the admission of the gun and the statements he made at the time of his arrest. At the outset, we note the defendant unsuccessfully raised these issues at a motion to suppress hearing. Hardaway, initially, claims Officer McGraw illegally seized the gun from inside the house. The Fourth Amendment proscribes all unreasonable searches and seizures, and, subject to well- delineated exceptions, warrantless searches are per se unreasonable. Arizona v. Mincey (1978), 437 U.S. 385, 390. Voluntary consent forms the basis for one such exception. It is - 9 - well-established that a wife may consent to the search of a marital residence as long as the search is limited to areas of common control. State v. McCarthy (1971), 26 Ohio St. 2d 87; United States v. Matlock (1974), 415 U.S. 164. The record in this case demonstrates Mattie Hardaway gave Officer McGraw permission to retrieve the gun from Hardaways' living room. The defendant next argues the court erred by admitting statements he made at the time of arrest. To comply with due process requirements under the United States and Ohio Constitutions, the state must demonstrate the accused voluntarily and knowingly waived his or her Miranda rights. Miranda v. Arizona (1960), 384 U.S. 436; State v. Jenkins (1984), 15 Ohio St. 3d 164. Further, only statements produced during a custodial interrogation are subject to suppression absent a valid waiver of Miranda rights. Miranda, supra. Hardaway's initial statement to Officer Mitchell was spontaneous and not the result of any questioning by the officer. The record contains ample evidence that Hardaway made the remaining statements only after police informed him of his Miranda rights and he voluntarily waived these rights. Hardaway also appears to raise the hearsay concerns he previously claimed as error. We fully disposed of this argument in the second assignment of error. Finally, Hardaway claims the state failed to establish the chain of custody of the gun. He did not raise this issue in the trial court and, therefore, waives it on appeal. Williams, supra. Further, we find the state proved to a reasonable certainty that - 10 - "substitutions, alteration or tampering did not occur." State v. Moore (1973), 47 Ohio App. 2d 181, 183. This assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, 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. NAHRA, P. J. CONCURS; BLACKMON, J., CONCURS IN JUDGMENT ONLY. JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 12 - APPENDIX Appellant's assignments of error are: I "The trial court erred in failing to give instructions probative on the issue of accident, and in refusing to grant a new trial or mitigate to remedy such failure." II "The trial judge displaced the role of the jury against defendants' rights in withholding a choice in the determination of state of mind." III "The trial court erred in allowing testimony memorized from a written statement into evidence, and refusing to require production of the statement." IV "The trial court erred in its failure to dismiss gun and violence specifications, to instruction [sic] the jury on the separate burden required for such specifications and in failure [sic] to strike the three year penalty as sought under Criminal Rule 32." V "The trial court erred in admitting the specification instrumentality and alleged confessions over the objections of counsel and in partially denying defendant's motion to suppress." .