COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59902 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION SAMMIE PATTERSON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 27, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-246,446 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Michael E. Murman 14701 Detroit Avenue No. 555 Lakewood, Ohio 44107 -2- NAHRA, P.J.: This case arises out of a shooting incident that occurred at Berry's Bar in the City of Cleveland on the morning of April 15, 1989. Thomas Meagher, a part-time bartender at Berry's, testified on behalf of the state that he arrived at Berry's Bar at approximately 11:00 p.m. the previous evening. There, Meagher consumed about five beers and left Berry's at 2:30 a.m. and proceeded to Clinton's Bar. Meagher stayed at Clinton's Bar until 5:30 a.m. and estimated that he drank two or three additional beers while he was there. Subsequently, Meagher left Clinton's Bar and returned to Berry's for breakfast, where he consumed an additional two or three beers. Meagher testified that he was intoxicated. At approximately 8:30 a.m., Meagher observed Sammie Patterson, defendant-appellant, enter Berry's Bar. Meagher had seen Patterson in Berry's Bar before as a customer but did not really know him. Meagher testified that Patterson appeared intoxicated when he arrived. Patterson and Becky Biddle, a waitress at Berry's, got into a loud argument at Berry's. Meagher had seen Biddle at the Clinton Bar earlier in the evening prior. Biddle was harassing Patterson by running back and forth in Berry's Bar, reigniting the argument with Patterson, slapping his face, and even bumping him off his barstool. When Patterson uttered an obscenity at her, Meagher suggested that Patterson leave the bar and go home -3- and sleep it off. Patterson left the bar and returned twenty to thirty minutes later. As Patterson walked behind Meagher, who was sitting at the bar, the barmaid stated "Tommy, he's coming round back and he's got a gun." Meagher testified that everyone at Berry's Bar was keeping their distance from Patterson because he possessed a gun. Meagher turned around to face Patterson and noticed that Patterson had a handgun pointed at Meagher's chest. Meagher attempted to jump out of the way at which time Patterson fired the gun; a bullet struck Meagher's shoulder. Meagher pushed Patterson backwards and over a table as Patterson continued to fire the gun. During the struggle, Meagher attempted to keep the gun pointed away from himself. Eventually others in the bar assisted Meagher and the gun was wrested away from Patterson. Meagher does not know what happened to the gun thereafter. Meagher was taken to the back room as others tried to stop his bleeding. When he was being led through the bar to an ambulance twenty minutes later, Meagher noticed that Patterson had left the scene. Meagher was taken to Metro Hospital where he recovered. Subsequently, Meagher viewed a photo lineup and identified Patterson as the person who had shot him. Bobby Lego, who patronizes Berry's Bar on occasion, testified that he went to Berry's between 8:00 a.m. and 8:30 a.m. for breakfast on April 15, 1989. Lego also observed Patterson and Biddle arguing and yelling at each other. Lego observed Patterson leave the bar and return fifteen minutes later. Lego -4- also observed Meagher and Patterson have a brief exchange of heated words. Shortly thereafter, Lego heard a gunshot, turned around, and saw a struggle involving Patterson and two other people. Lego then noticed the gun in Patterson's hand and that Patterson was aiming it at Biddle who was sitting on a barstool between Patterson and Lego. Lego knocked Biddle off the barstool so that she would avoid Patterson's line of fire. The gun fired and a bullet shot off the end of Lego's thumb as well as fractured his thumb bone. Lego observed the struggle continue between Patterson and two other people; as they were falling to the floor the gun fired again. Lego later saw the gun in the possession of Bill Allen, the bartender, who was wiping it off; Lego did not know what happened to the gun thereafter. Patterson was gone when the police and EMS arrived twenty minutes later. Detective Donald Hace of the Cleveland Police Department investigated the shooting at Berry's Bar. Hace was given a bullet by Becky Biddle that was retrieved from the front of the bar at Berry's; Hace discovered a hole in the front edge of the bar from which it had evidently been retrieved. Hace testified that Patterson was arrested about three weeks after the shooting. While Patterson was in jail, Hace interviewed him. Patterson related to Hace that he had been drinking all night at both Clinton's Bar and Berry's Bar. Patterson told Hace that he had been with Becky Biddle and several others at the Clinton Bar and returned to Berry's at about 6:00 a.m. Patterson ordered a beer -5- at Berry's and felt like he was going to pass out. He believed someone had drugged his beer. Patterson decided to go out to his car where he passed out. Patterson further related to Hace that he woke up and returned to the bar because it was not safe to stay in the car. Once back in the bar, Patterson claimed he was accosted by Meagher and beaten up by several other people. Patterson told Hace that he never had a gun and that he was not involved in the shooting though he was aware of it. He further stated that Biddle was his ex-girlfriend and that they had recently broken up. At trial, Patterson testified that he was at the Clinton Bar on the evening of April 14, 1989 until 2:30 a.m.. He saw Becky Biddle there but was not with her. He asserted that from 2:30 a.m. to 7:00 a.m. he was at the small store that he owns, guarding against intruders. Patterson stated that he went to Berry's Bar at 8:15 a.m. where he ordered a beer. He took a few sips of his beer and left the beer sitting on the counter when he walked to the bathroom. Patterson returned from the restroom, finished his beer, ordered another, and felt as though he was going to pass out. He walked out to his car for fifteen minutes, and then returned to the bar. Patterson asserted that upon his return Biddle began to argue with him, but he ignored her. A female cook then pushed him off his barstool and he fell to the floor. Biddle also did the same to him minutes later. Patterson stated that Biddle had told him he was a "lousy screw". Patterson further testified that he believed that he had been -6- drugged and that the three men seated next to him were going to rob him. He stated that two of them confronted him when he tried to leave the bar and began beating him. Patterson stated that he had $900 in his wallet which was to be paid to his son at 9:30 a.m. and which the men in the bar had observed when he paid for his beer. The three males, however, never actually took the money from Patterson. Patterson also asserted that he did not own a handgun, did not possess one, and did not see anyone in the bar with a gun. After the incident, Patterson left Berry's and drove to the Big Egg Restaurant located at W. 54th Street and Detroit Avenue where he slept in his car for three hours. Thereafter, Patterson drove home. Patterson did not call the police or seek any medical attention for the injuries he suffered or the drugging of his beer. Bonnie Patterson, appellant's wife, testified that her husband does not own a gun and that she has never seen him with one. Donald Queen also testified on Patterson's behalf that he entered Berry's Bar between 9:00 a.m. and 10:00 a.m. to service their vending machines. Queen stated that he noticed that Patterson was beaten up and offered him a ride to the hospital which Patterson declined. Queen did not notice anything unusual in the bar. On August 4, 1989, Patterson was indicted for three counts of felonious assault pursuant to R.C. 2903.11 all of which -7- contained gun and violence specifications. On October 26, 1989, the case was dismissed without prejudice for failure to prosecute. On November 28, 1989, Patterson was reindicted for two counts of felonious assault both of which contained gun and violence specifications. On February 26, 1990, trial commenced and a jury found Patterson guilty of both counts and all specifications. The trial court sentenced Patterson to a term of three to fifteen years on each count, concurrent with each other, and a term of three years actual incarceration on each of the gun specifications, to be served concurrently with each other and consecutively to the three to fifteen year terms. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE LESSER OFFENSE OF AGGRAVATED ASSAULT. Patterson argues that the trial court should have instructed the jury on the lesser included offense of aggravated assault since there was evidence of serious provocation that warranted the use of deadly force. He points out that Biddle harassed him while he was intoxicated and that he believed that he was going to be robbed by three people at the time of the incident. -8- R.C. 2903.11, which defines the crime of felonious assault, states in pertinent part: (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. R.C. 2903.12, which defines the crime of aggravated assault, states in pertinent part: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, 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. * * * The elements of felonious assault and aggravated assault are identical except for the mitigating element of serious provocation found in R.C. 2903.12. In a trial for felonious assault, an instruction on aggravated assault must be given where the defendant presents sufficient evidence of serious provocation. State v. Deem (1988), 40 Ohio St. 3d 205, 533 N.E.2d 294, paragraph four of the syllabus. In order for the provocation to be serious, it must be reasonably sufficient to -9- incite or to arouse the defendant into using deadly force. In making such a determination, the trial court must consider the emotional and mental state of the defendant as well as his surrounding circumstances at the time of the incident. Id. at paragraph five of the syllabus. Here, evidence indicates that Biddle harassed Patterson by arguing with him, running up to him several times and actually pushing him off his barstool once. While Biddle did provoke Patterson, the nature of her provocation was not so serious to warrant Patterson's use of deadly force. We do not believe that the jury could have found that the provocation was reasonably sufficient to have incited him into using deadly force. We also note that Patterson did not testify that he acted in response to Biddle's serious provocation or that he was under influence of sudden passion or fit of rage. As a result of the foregoing, the trial court properly denied Patterson's request for jury instruction on aggravated assault. Accordingly, appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE APPELLANT KNOWINGLY ATTEMPTED TO CAUSE PHYSICAL HARM. Criminal Rule 29(A) provides in part: -10- The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The Supreme Court of Ohio has asserted that: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, 381 N.E.2d 184, syllabus. The Supreme Court has also stated: 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. State v. Eley (1978), 56 Ohio St. 2d 169, 383 N.E.2d 132, syllabus. R.C. 2903.11 requires the state to prove that a defendant knowingly caused or attempted to cause physical harm to another. R.C. 2901.22(B) defines "knowingly" as follows: (B) 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. Patterson contends that he did not knowingly cause serious harm to Lego, Meagher, or attempt to do the same to Biddle. He asserts that there is insufficient evidence of intent to cause such harm; instead, he now maintains that the gun likely -11- discharged as a result of the struggle that ensued and not because of his knowing attempt . A review of the record indicates that there was sufficient evidence to convict Patterson of two counts of felonious assault. Under the circumstances, Patterson, while pointing a handgun at Meagher and Biddle, knew that it was probable that someone would be seriously injured as a result of firing a handgun at them. Patterson testified at trial that there was no confrontation with Meagher or Lego and that there was no shooting. Nor did he even suggest that the gun fired accidentally. However, the testimony of Lego, Meagher, and Hace contradicted Patterson's testimony and indicated that he did fire a gun. Based on a review of the record, we do not believe that Patterson forwarded a reasonable theory of innocence. Cf. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492. We find that there was sufficient evidence presented to support the convictions and that the trial court did not err by denying Patterson's motion for acquittal. Appellant's assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THREE YEARS ACTUAL TIME ON EACH GUN SPECIFICATION AS THE TWO SPECIFICATIONS SHOULD HAVE MERGED FOR SENTENCING PURPOSES. Patterson maintains that the trial court erred when it sentenced him to two three-year terms of actual incarceration on the gun specifications. He asserts that he should have been -12- sentenced to only one three-year term of actual incarceration under R.C. 2929.71(B)./1\ However, a review of the record indicates that the trial court sentenced Patterson to two three-year terms of actual incarceration to be served concurrently with each other. Such three-year term was properly ordered to preceed the three to fifteen year terms imposed for the felonious assault conviction in accord with R.C. 2929.71(A)(2) and R.C. 2929.71(B). In so ruling, the trial court effectively merged the gun specifications by imposing concurrent sentences on each count. The trial court's sentence is in accord with R.C. 2929.71(B) and proper. As a result, appellant's assignment of error is overruled. /1\ R.C. 2927.71(B) provides: (B) 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 of 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 of indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, 2929.11 of the Revised Code. (Emphasis added.) -13- IV. Appellant's fourth assignment of error states: THE JURY'S VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Patterson contends that Lego and Meagher lacked credibility because both were intoxicated during the incident in question. Patterson points out that Lego's testimony concerning the timing of the shooting was inconsistent. Initially, Lego indicated to the police that the gun was fired when Patterson was knocked to the floor. At trial, Lego asserted that Patterson fired at Biddle prior to the struggle. In turn, Patterson argues that his testimony that he foiled an attempted robbery was more credible and that the verdict was against the manifest weight of the evidence. The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. If there was sufficient evidence for the triers-of-fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St. 3d 305, 306, 528 N.E.2d 523, certiorari denied (1989), 109 S. Ct. 1177. Evidence in the record indicates that Patterson was intoxicated at the time of the incident. He even admitted that he was under the influence of a drug as a result of someone allegedly putting something in his drink. Meagher testified -14- that Patterson was drinking at the Clinton Bar between 2:30 a.m. and 5:30 a.m. on the morning in question. We find no reason to disturb the jury's evaluation of the witnesses' credibility. We do not believe that the verdict was against the manifest weight of the evidence insofar as there was sufficient evidence to convict Patterson of the aforementioned crimes. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -15- 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. SPELLACY, J., and *CORRIGAN, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge John V. Corrigan, Retired, Eighth District Court of Appeals.) JOSEPH J. NAHRA PRESIDING 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .