COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60370 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION WILLIS OWENS : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 26, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 251971 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones John B. Gibbons Cuyahoga County Prosecutor 2000 Standard Building By: Michael J. O'Shea 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Willis Owens timely appeals his conviction for felonious assault with a firearm specification. Owens raises four assignments of error which challenge the weight, sufficiency and admissibility of the 1 evidence. Since none of his arguments are meritorious, we affirm. Joseph Smith testified that he encountered the defendant while walking to the store on the afternoon of August 14, 1990. The two men renewed an argument they had the previous evening. Smith told the court that, as he walked away from Owens, the defendant punched him. Smith then became embroiled in a physical altercation with friends of Owens. According to Smith, the defendant twice hit him in the head with a gun and pointed the gun at him stating, "*** If you hurt my buddy, I will kill you." (Tr. 15). When Smith fell to the ground, Owens kicked him. Smith subsequently escaped and ran home, where his sister telephoned the police. EMS personnel took Smith to the hospital. Cleveland police officer Clarence Saunders responded to Smith's call. The officer testified Smith's head was swollen and bleeding. 1 See Appendix. - 2 - The defendant admitted talking to Smith on August 14 about their earlier argument. Owens testified that, the night before, Smith had called him a chump and pushed him. Owens denied having a weapon on August 14 and averred Smith swung at him. In response, Owens grabbed Smith who fell to the ground. Owens acknowledged Smith was bleeding after the altercation. In his first and second assignments of error, Owens challenges the sufficiency of the evidence supporting his convictions. In his third assignment he disputes the manifest weight of the evidence. Since the defendant's arguments are similar, we will address them concurrently. A challenge to the sufficiency of the evidence requires us to view the record in a light most favorable to the prosecution and determine whether rational minds could have found each material element of an offense was proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259; Jackson v. Virginia (1979), 433 U.S. 307. Our review of a challenge to the manifest weight of the evidence is broader. State v. Martin (1983), 20 Ohio App. 3d 172. As the Martin court stated: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. at 75. (Citations omitted). - 3 - We are mindful that evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2903.11 defines felonious assault and provides: "(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. 2929.71(A(2) imposes a three-year term of actual incarceration for offenses involving a firearm. A 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." Owens initially argues the state failed to prove he had an operable firearm for purposes of R.C. 2929.71(A)(2). We disagree. In State v. Murphy (1990), 49 Ohio St. 3d 206, the Supreme Court held that the testimony of lay witnesses who observed the weapon and the circumstances surrounding the crime can be used to establish that a firearm was operable at the time of the offense. In Murphy, the defendant entered a convenience store and pointed a gun at the store clerk and a customer. The defendant then threatened to kill the clerk if he did not give him money. The clerk and customer described the gun as a one or two-shot silver or chrome Derringer. The Supreme Court found this testimony to be sufficient evidence of the firearm's operability. - 4 - In the instant case, Smith testified that Owens pointed the gun at him and threatened "*** if you hurt my buddy, I will kill you." (Tr. 15). Smith described the weapon as a black revolver, and told the court he was sure it was a gun because "I seen guns before." (Tr. 28). We find that Smith's description of the weapon coupled with Owens's threat to kill are sufficient evidence of operability under the law as enunciated in Murphy, supra. We further find that Smith's testimony is not so incredible as to render the conviction against the manifest weight of the evidence. The court was free to disbelieve Owens's denials of carrying a firearm that evening. DeHass, supra. Owens also argues that, since the state charged him with felonious assault under R.C. 2903.11(A)(2) and the indictment specifies that the "deadly weapon" was a firearm, the evidence is insufficient and against the manifest weight of the evidence. The defendant again urges that the state failed to prove the firearm's operability. For the reasons previously discussed, we must reject his argument. We further note that, to prove felonious assault, the state was not required to establish the defendant fired the firearm. Evidence Owens struck Smith in the head with the gun, causing bruises and swelling is sufficient for a conviction under R.C. 2903.11(A)(2). See State v. Hall (May 23, 1991), Cuyahoga App. No. 58582, unreported at 7-11; State v. Clark (June 20, 1991), Cuyahoga App. No. 58866, unreported at 4- 6. - 5 - Accordingly, the defendant's first, second, and third assignments of error are overruled. In his fourth assignment of error, Owens asserts the court improperly admitted the medical records of Joseph Smith. At the outset, we note that the defendant has not provided this court with the medical records he disputes. "It is the appellant's responsibility to include such evidence in the appellate record so that the claimed error is demonstrated to the reviewing court." Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App. 2d 223, 229. See, also, App. R. 9. Without the records, this court must presume regularity. Knapp v. Laboratories (1980), 61 Ohio St. 2d 197. Furthermore, the defendant argues that the state failed to produce the medical records custodian. The record demonstrates the defendant did not voice any objection to the introduction of the evidence on this ground and, thus, he waived this argument on appeal. State v. Williams (1977), 51 Ohio St. 2d 112. The fourth assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 6 - 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. DAVID T. MATIA, C. J., PARRINO, J., CONCUR. JUDGE ANN McMANAMON (Sitting by Assignment: Judge Thomas J. Parrino, retired from the Eighth District Court of Appeals). 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. - 7 - APPENDIX Appellant's assignments of error are: I "The trial court erred in failing to grant defendant- appellant's motion for judgment of acquittal pursuant to Rule 29, Ohio Rules of Criminal Procedure in that the evidence was insufficient as a matter of law to prove that the defendant- appellant, Willis Owens, committed the offense of felonious assault, a violation of section 2903.11 Ohio Revised Code." II "The trial court erred in failing to grant defendant- appellant's motion for judgment of acquittal, pursuant to Rule 29, Ohio Rules of Criminal Procedure in that there was insufficient evidence, as a matter of law that the defendant- appellant, Willis Owens, had a firearm on or about his person or under his control while committing a felony." III "The verdict of the trial court in finding the defendant- appellant, Willis Owens guilty of the offense of felonious assault, together with a firearm specification, pursuant to O.R.C. 2941.141 was contrary to the manifest weight of the evidence." IV "The trial court erred and denied the defendant-appellant, Willis Owens, his right to due process of law, as guaranteed by the United States Constitution, by admitting the medical records of Joseph Smith." .