COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59335 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : BERNARD O'NEAL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 14, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-238027 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES DAVID L. DOUGHTEN Cuyahoga County Prosecutor 4403 St. Clair Avenue 8th floor, Justice Center Cleveland, Ohio 44103 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Defendant-appellant timely appeals a jury verdict that found him guilty of both Felonious Assault and the lesser included offense of Aggravated Assault. After the jury verdict, the trial court dismissed the charge of Felonious Assault. We affirm. On March 27, 1989, the victim of this shooting, Andre Smith was visiting with some friends on Hampden Avenue in Cleveland, Ohio. There were approximately seven people present at the Williams' home on Hampden. At some point in the evening, the appellant drove into a driveway directly across the street from the Williams' residence, which was where the victim was located. There were some young women, including the appellant's sister, present at the house when the appellant arrived. As the appellant drove up on a scooter, he apparently lost control of the scooter. The bystanders began to laugh at the appellant, and one of the bystanders, Darryl Wagner, and the appellant began to have words, which occurred because of the laughter. A fight ensued between Wagner and the appellant, which the appellant lost. Some of Wagner's friends tried to restrain him, but he still managed to kick the appellant in the head before the fight was ended. Who the aggressor was during the fight was not clear form the record. As a consequence of this incident, the appellant's sister threw a brick at Wagner striking him on the body. Wagner threw a piece of the brick back at Ms. O'Neal and struck her. After the altercation subsided, Wagner, the victim of the shooting, Andre -3- Smith, and their other friends went inside the Williams' residence. The appellant went into the house directly across the street. After a brief period of time elapsed, the appellant went back outside, crossed the street, and started yelling and gesturing for the young men inside the Williams' residence to come outside. Darryl Wagner left the house and approached the appellant. The other males who were inside the Williams residence followed Wagner outside and attempted to restrain him. Thereafter, two cars arrived loaded with five or ten occupants. One of the individuals had a gun that appellant took from him. The appellant pointed the gun in the face of John Williams who was standing nearby with his mother. A young man named Jajuan Rogers threw a bottle at the appellant in an effort to distract him. The majority of the people, including the victim, ran into the Williams' residence upon seeing the appellant aim the gun in the air. Andre Smith testified that he heard a shot as he was running into the house. When Andre Smith and the others got inside and closed the door, there was another shot fired. Smith testified that everyone scattered inside the house after the second shot, in order to get away from the doors and windows. According to Smith, there were no weapons on the person of anyone inside the house. Andre Smith testified that he ran into the bathroom. He came out of the bathroom after not hearing another gunshot. One -4- of the young men inside opened up the door and Darryl Wagner stood in the doorway. As Wagner was standing in the doorway, he jumped back up against the door leaving a clear view for Smith of the appellant standing at the curb. It was at this point that Smith saw the appellant with the gun pointed at the doorway. The appellant fired the gun; Andre Smith testified that he saw the fire from the gun, it startled him and he jumped back not realizing he had been shot. Smith went back in the bathroom and then realized that he had been shot. On June 19, 1989, the appellant was indicted for one count of Felonious Assault in violation of R.C. 2903.11. The indictment contained both a violence and gun specification. For his sole assignment of error, the appellant asserts: THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. The issue presented by this assignment of error is whether there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of Felonious Assault and, by definition as a lesser include offense, Aggravated Assault have been proven beyond a reasonable doubt. This is the test we must conduct under the rule of law in State v. Eley (1978), 56 Ohio St. 2d 169. In this analysis, we are obligated to give great deference to the trier of fact in its evaluation of evidence and witness credibility. State v. DeHass (1967), 10 Ohio St. 2d 230. Finally, the evidence must weigh heavily -5- against the conviction in order for a reviewing court to reverse a verdict. State v. Martin (1983), 20 Ohio App. 3d 172, 175. R.C. 2903.11, Felonious Assault is as follows: (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 ordinance, as defined in Section 2923.11 of the Revised Code. Appellant argues that he lacked the requisite mens rea to commit the crime of Felonious Assault since the mental element of "knowingly" was not proven beyond a reasonable doubt. A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. R.C. 2901.22(B). State v. Chambers (1971), 53 Ohio App. 2d 266 holds: When a person, acting individually or in concert with another, sets in motion a sequence of events, the foreseeable consequences of which where known or should have been known to him at the time, he is criminally liable for the direct, proximate and reasonably inevitable consequences of death resulting from his original act. State v. Losey (1985), 23 Ohio App. 3d 93 reiterated the proximate cause or result theory holding: A person will be criminally responsible for causing the death of another only where the consequences of his conduct are direct, normal, and reasonably inevitable, when viewed in the light of ordinary experience. On the issue of knowledge, the appellant argues that there was little evidence that he knew that Andre Smith or Darryl -6- Wagner were in the line of fire. The appellant was certainly aware of the fact that there were people in the house. He had to also know that if he fired at the house he would be endangering the human beings inside and not just the real property as he asserts. These are circumstances that the appellant was aware of. These two facts, in evidence, are sufficient for a trier of fact to determine that he acted with knowledge under the statutory definition. Under the proximate cause or result test embodied in Chambers and Losey, the appellant accurately states the test that must be employed by this court when reviewing the facts. Of this case the test is whether the consequence of the accused's actions were known or should have been known when the accused initiated the act. Although we agree with the appellant's phrasing of the issue, we must disagree with the conclusion reached by him. The question becomes where a gun is pointed at a house and the person pointing the gun knows there are people inside, should the person pointing the gun know, or should they have known, that if he or she fires the gun into the house someone might get hurt. Appellant argues that the shot was fired into the home to scare off the people who had beaten him earlier. He further argues that the manner in which the shots were fired which was being corroborated by his sister, and the unconvincing witnesses of the prosecution, should have weight in determining his guilt. The first two explanations cannot be viewed as explanations to -7- the foreseeable consequences of the appellant's conduct. The last explanation is one that requires deference to the jury as the trier of fact. We, therefore, hold that when a gun is pointed at a house and the person pointing the gun knows there are people inside, the person pointing the gun should know that if he or she fires the gun into the house someone might get hurt. Consequently, the person firing the gun is acting with the requisite knowledge sufficient to sustain a conviction for felonious assault. The appellant admitted that he took the gun from Rynell Rogers. He admitted that he shot the gun and wounded Andre Smith. He also testified that he did not intend to shoot Smith, but was shooting at the house. Andre Smith testified that he was behind Wagner who was standing in the doorway. Smith saw the appellant point the gun into the doorway. At which point, Wagner jumped out of the doorway. Smith saw the flash from the gun barrel and heard a shot. Andre Smith testified that the gun was pointed directly into the house. This evidence could establish to a reasonable mind, beyond a reasonable doubt, that the appellant either knew or should have known that someone could get shot when he fired into the house. Unquestionably, since the appellant knew there were people inside the house, the shooting of a person was a foreseeable result of the appellant shooting into the house. It is also reasonable to conclude, based on the evidence, that the actions by the appellant were done while under the -8- influence of sudden passion or in a sudden fit of rage either of which was brought on by serious provocation. Judgment affirmed. Judgment affirmed. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, J., CONCUR; KRUPANSKY, C.J., (CONCURS IN IN JUDGMENT ONLY) PATRICIA A. BLACKMON JUDGE 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .