COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60640 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANDREW MILLER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-248704 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MARLENE N. LALLY, ESQ. CUYAHOGA COUNTY PROSECUTOR 711 Statler Office Tower BY: ROGER KRAMER, ESQ. E. 12th and Euclid ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44115 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - ANN MCMANAMON, J.: Andrew Miller timely appeals his conviction for felonious assault (R.C. 2903.11) with firearm and violence 1 specifications. Miller raises four assignments of error. Upon review of the record, we affirm. Miller's conviction arises from the shooting of Michael Anthony Jackson. The victim testified he visited his mother at her Woodland Avenue apartment at approximately 11:15 p.m. on December 30, 1989. Upon returning from a trip to the store for his mother, Jackson observed the defendant in the hallway of the apartment building with a sawed-off shotgun "robbing" another man. (Tr. 25). Jackson told the jury he then heard a "big pow" and saw the "big ball coming" from the defendant's shotgun. (Tr. 25) As Jackson turned to run, he was wounded in the back. Jackson crawled to the nearby apartment of Bernadine Church for help. Church telephoned for an ambulance. Jackson testified he recognized the defendant from previous visits to his mother's apartment. The victim stated the defendant was wearing a gray and black coat with a raccoon hat at the time of the shooting. Two weeks after the shooting, Jackson selected Miller's picture from a photo array as the man who shot him. Finally, on cross-examination, Jackson acknowledged that the defendant's robbery victim took out a gun as he dropped his money on the floor. Jackson, however, had no doubt it was the 1 See appendix. - 3 - defendant who shot him. The victim's sister, Cathy Jackson, heard the shots outside her mother's apartment door and a few minutes later she received a phone call indicating Jackson had been shot. The sister left the apartment and saw the defendant in the hallway with a gun. According to Cathy Jackson, Miller was wearing a black coat with a fur collar. A friend of the sister's also saw Miller in the hallway with a shotgun. Although the friend could not describe the defendant's outer clothing, she testified he always wore a "Daniel Boone" fur hat. Cleveland Police Officer David Morley responded to the reported shooting at approximately 1:00 a.m., December 31. Jackson told Morley "Drew" shot him and described the defendant as wearing a "Daniel Boone" hat and a coat with fur trim. Morley testified his initial police report describes the shooting as accidental but the officer did not recall whether Jackson said this. On January 1, 1990, police searched the defendant's apartment where they found him under a bed surrounded by clothing. The police seized a leather jacket with a fur collar and a "coonskin" hat. Finally, Cleveland paramedic Kenneth Rice opined that the victim was wounded with a shotgun based upon the multiple wounds which covered eight to ten inches of his back. The defense presented four alibi witnesses who all testified they saw Miller at a party given by his girlfriend on the evening - 4 - of December 30 through the early morning hours of December 31. The girlfriend told the jury Miller was with her from the evening of December 30 until 4:00 a.m., December 31. Finally, Gary Bradley testified he was walking in the King- Kennedy Estates on December 31, 1989 and heard shooting at approximately 12:00 a.m. to 12:30 a.m. Bradley did not see Jackson or Miller but he did observe an older man fire a shotgun once and throw away the weapon. Bradley also averred that a month after the shooting Jackson stated he did not know who shot him. In his first assignment of error Miller contests the manifest weight of the evidence supporting his conviction. In reviewing a challenge to the manifest weight of the evidence, this court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether "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." State v. Martin (1983), 20 Ohio App. 3d 172, 175. Only in those cases where the evidence weighs heavily against conviction should a new trial be granted. Id. Further, we are mindful that the evaluation of witness credibility primarily lies with the jury. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2903.11 defines felonious assault and provides in - 5 - relevant part: "(A) No person shall knowingly" "* * * "(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." Miller argues the state's evidence is so contradictory and incredible as to require reversal. We disagree. The defendant initially claims the victim gave inconsistent testimony concerning the time of the shooting. On direct examination, Jackson indicated the incident took place between 12:30 a.m. and 1:00 a.m., December 31, 1989. On cross- examination, the victim estimated the time to be 11:45 p.m., December 30. We find this difference to be insignificant. Miller next asserts Jackson's description of his assailant was contradictory. The record demonstrates Jackson and the other state witnesses testified the defendant wore a dark-colored coat and a raccoon hat. Miller contends that on cross-examination Jackson stated that the defendant was not wearing a coat. (Tr.38) A review of this testimony discloses Jackson was referring to Miller's robbery victim not to Miller. Miller also argues Jackson's testimony contradicts his police statement in which he allegedly told police the shooting was accidental. Cleveland police officer Morley acknowledged his police report indicates the victim described the shooting as - 6 - accidental. The officer, however, testified he could not recall the victim's statement and that he phoned in the report which someone else transcribed. The officer also described Jackson as medicated and "in and out" of consciousness at the time he spoke with police. Thus, we find the victim's purported statement in the police report not so significant as to require reversal. Finally, Miller cites the state's failure to produce the shotgun for trial. This evidence was not required for a conviction. The victim described the weapon and told the jury he saw the "big ball coming" from defendant's shotgun just before he was wounded in the back. Accordingly, the defendant's first assignment of error is overruled. In his second assignment Miller asserts the court erred by not instructing the jury on the lesser included offense of negligent assault. It is well established that negligent assault is a lesser included offense of felonious assault. State v. Hardaway (October 31, 1991), Cuyahoga App. No. 59210, unreported at 4. A court, however, is not required to charge on the lesser offense 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. Wilkens (1980), 64 Ohio St. 2d 382, 388. See, also, - 7 - State v. Davis (1983), 6 Ohio St. 3d 91. Jackson testified he observed the defendant with a shotgun attempting to rob another man. The victim then heard "a big pow" and saw "the big ball" coming from the defendant's shotgun before he was wounded. Jackson's testimony in no way indicated the shooting was accidental. The only evidence Miller can cite in support of his position is a purported statement by the victim in a police report. The officer who took the statement could not recall Jackson describing the shooting as accidental and told the jury the victim was medicated and "in and out" of consciousness at the time of the interview. Finally, Miller presented four alibi witnesses in his defense and offered no evidence to support his accident theory. Thus, we find the court reasonably refused to instruct on negligent assault This assignment of error is overruled. In his third and fourth assignments of error Miller contends the court improperly sentenced him to a maximum term of imprisonment. Miller argues the court failed to consider the mitigating factors delineated in R.C. 2929.12(B). This statute provides, in pertinent part: "(C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: - 8 - (1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so; (2) The offense was the result of circumstances unlikely to recur; (3) The victim of the offense induced or facilitated it; (4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense; (5) The offender acted under strong provocation; (6) The offender has no history of prior delinquency or criminal activity, or has led a law- abiding life for a substantial time before commission of the present offense; (7) The offender is likely to respond quickly to correctional or rehabilitative treatment." The trial court has a statutory duty to consider the factors outlined in R.C. 2929.12. State v. Flors (1987), 38 Ohio App. 3d 133; State v. Cable (1985), 24 Ohio App. 3d 88. The court, however, need not explain on the record its decision to impose a maximum sentence of imprisonment. Cable, supra; Flors, supra. Finally, "[a] silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12." State v. Adams (1988), 37 Ohio St. 3d 295, syllabus paragraph three. A review of the record demonstrates that, for the most part, the mitigating factors outlined in R.C. 2929.12(B) are not present in this case. For example, the offense resulted in serious physical harm to Jackson who neither induced nor facilitated the crime. The defense offered no substantial - 9 - grounds tending to excuse or justify the offense and there is no evidence Miller acted under strong provocation. Further, the defendant previously had been convicted of an aggravated felony. We also reject the defendant's argument that the court should have deferred sentencing until a pre-sentence report could be produced. The trial court is under no obligation to order such a report, especially when the defendant does not request one. Adams, supra, at 297. Furthermore, the record does not support Miller's claim that the court sentenced the defendant to a maximum term of imprisonment as a punishment for going to trial instead of entering a plea. Defense counsel asked the court not to consider the defendant's decision in imposing sentence and the court acknowledged it would not do so. Absent some evidence the court acted improperly, we will not disturb the court's sentence. Accordingly, the defendant's third and fourth assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 10 - 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., AND KRUPANSKY, J. CONCUR. ANN MCMANAMON JUDGE 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 11 - A P P E N D I X I. "THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." II. "MR. MILLER WAS DENIED HIS FEDERAL AND OHIO CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS, WHEN THE TRIAL COURT REFUSED TO GIVE HIS REQUESTED JURY INSTRUCTION ON NEGLIGENT ASSAULT, A LESSER INCLUDED OFFENSE TO FELONIOUS ASSAULT." III. "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING A SENTENCE OF FIFTEEN YEARS OF ACTUAL INCARCERATION AND FAILING TO CONSIDER MITIGATING FACTORS AS MANDATED BY R.C. 2929.12." IV. "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED ANDREW MILLER'S CONSTITU- TIONAL RIGHTS TO A TRIAL AND AGAINST SELF-INCRIMINATION WHEN IT SENTENCED HIM TO MAXIMUM TERMS IN THE PENITENTIARY AS PUNISHMENT FOR TAKING HIS CASE TO TRIAL INSTEAD OF PLEADING GUILTY." .