COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60735 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RANDY F. BAILEY : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-253146 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN GALLAGHER, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: LON D. STOLARSKY 736 Standard Building Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant appeals from his convictions for felonious assault with specifications. The relevant facts follow. On the evening of May 14, 1990, a group of at least six black male teenagers was sitting and drinking beer in the courtyard of the apartment buildings located at West 28th Street and Division Avenue in Cleveland, Ohio. One of the young men, Keith Corney, began talking to a young woman, later identified as Henrietta Long, near one of the buildings. Keith Corney and Ms. Long then went into one of the apartment buildings for a short time and thereafter Keith Corney rejoined his friends. A few minutes later defendant and Henrietta Long appeared on a third floor balcony of one of the apartments which overlooked the courtyard. Defendant, a thirty-one year old black male, began yelling to the teenagers below concerning Ms. Long. Keith Corney answered defendant and a short argument ensued. Defendant then went back inside the apartment. A few minutes later, defendant and Ms. Long came downstairs and walked out of the apartment building. Defendant was wearing a heavy winter jacket and his hands were in the jacket pockets. In the courtyard defendant and Keith Corney continued to exchange words. As they did so, Keith Corney, with an empty beer bottle upraised in his hand, approached defendant closely. The other teenagers were nearby. Defendant, with his right hand still in the pocket of his jacket, backed up. As he backed up, defendant - 3 - fired a weapon from his right jacket pocket. Defendant then fired the weapon at least two more times. Although the teenagers attempted to scatter after they heard the first shot, two of them were wounded during the shooting. Kenneth Adams received a bullet wound in his upper right arm and Jerry Corney was shot in the abdomen. Within minutes of the shooting, the Lakeview Terrace Security Police responded to the scene. Defendant and Ms. Long had gone into their apartment building but re-emerged as the security police arrived. Defendant and Ms. Long were then identified as the perpetrators of the incident by the teenagers remaining in the courtyard and were apprehended by the security police who held the two until the Cleveland Police arrived to take them into custody. The Cleveland Police then began an investigation of the incident; however, no weapon was found. Defendant was subsequently indicted on a three-count indict- ment with specifications. Counts one and two were for felonious assault, R.C. 2903.11. One count pertained to victim Kenneth 1 Adams and the other count to victim Jerry Corney. Count three of the indictment charged defendant with having a weapon while under disability, R.C. 2923.13, with firearm and violence 1 Counts one and two contained the following five specifications: (1) firearm; (2) previous conviction for an aggravated felony, viz., aggravated robbery; (3) violence, viz., physical harm to the victim; (4) violence, viz., threat of physical harm to the victim with a deadly weapon; and (5) violence, viz., previous conviction for an offense of violence, i.e., aggravated robbery. - 4 - specifications. Defendant waived his right to trial by jury and was tried to the court along with his co-defendant, Ms. Long. The state presented the testimony of four of the teenagers present in the courtyard at the time of the incident, including that of the two victims. The state also introduced into evidence the jacket defendant was wearing at the time of the shooting, together with the testimony of a forensic expert that the traces of lead and the tears in the fabric of the pocket were consistent with the firing of a gun at close range. Defendant testified in his own behalf and also presented the testimony of his girlfriend, Maxine Templeton, Henrietta Long, and another friend who lived in one of the complex's other apartment buildings. After hearing all the evidence, the trial court found defen- dant guilty on all counts of the indictment. Defendant was thereupon sentenced to concurrent terms of nine to fifteen years on counts one and two, a concurrent term of one and a half to five years on count three, and a consecutive term of three years on the gun specification. Defendant has filed a timely appeal from his convictions and cites one error for this court's review. Defendant's sole assignment of error follows: THE TRIAL COURT ERRED IN CONVICTING DEFENDANT, RANDY BAILEY, OF 2 COUNTS OF FELONIOUS ASSAULT AGAINST THE BYSTANDERS WHERE THERE WAS NO EVIDENCE OR TESTIMONY HE HAD PURPOSE OR MOTIVE TO HARM THE BYSTANDERS AND HE WAS NOT INDICTED FOR CRIMES AGAINST THE MOST LIKELY VICTIM, KEITH CORNEY. - 5 - This assignment of error lacks merit. Defendant argues there was no evidence presented at his trial that he had any "purpose or motive" to harm anyone other than Keith Corney, therefore, his convictions for felonious assault were improper. This argument is unpersuasive. Defendant was convicted of two violations of R.C. 2903.11, felonious assault, which states in pertinent part the following: 2903.11 Felonious assault. (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. (B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. *** The word "knowingly" is defined in R.C. 2901.22 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 circum- stances probably exist. (Emphasis added.) From the foregoing, it is obvious defendant's assignment of error is not properly stated since the mens rea of felonious assault is not "purpose or motive" but rather "knowingly." Thus, the state does not have to prove intent but merely knowledge. State v. Cartellone (1981), 3 Ohio App. 3d 145. - 6 - Defendant relies on State v. Cartellone, supra, in support of his argument, however, his reliance is misplaced. In Cartellone, the defendant shot at his intended victim as defendant was driving away in a car from the intended victim's house. Defendant was unaware that the intended victim's wife and daughter were standing nearby within range of the gunfire. Both the victim, Armand, and his wife testified the defendant, Cartellone, fired three times at Armand. Neither the wife nor the daughter was hurt. This court held that on these facts defendant could be convicted of only one count of felonious 2 assault pursuant to R.C. 2941.25(A). The court set forth its rationale as follows: Under our facts, there is no evidence that Cartellone had any purpose or motive to harm anyone beside Armand. Nor is there any evidence that he had any knowledge of the presence of Sharon and her daughter in the doorway. Since there was no consequential harm resulting to these two innocent bystanders, we cannot transfer the animus to harm Armand to Sharon and Dawn, as we would have been called upon to decide had either Sharon or Dawn been struck, in view of the well- established legal doctrine that a defendant is responsible for the natural and probable conse- quences of his acts. State v. Farmer (1951), 156 Ohio St. 214 [46 O.O. 97]. (Emphasis added.) 2 R.C. 2941.25(A) states the following: 2941.25 Multiple counts. (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. - 7 - State v. Cartellone, supra, at 149. The facts of the case sub judice are dissimilar to those of Cartellone. Kenneth Adams, one of the victims of defendant 3 herein, testified on direct examination as follows: Q. All right. Now, it's your testimony that Henrietta Long and the person you described as Mr. Bailey appeared on the third floor balcony? A. Yes. * * * Q. Okay. What did you hear Mr. Bailey say? A. He told Keith, "Why did you do this? Why did you give this to her? Q. Did you hear him say anything else? A. He said -- Q. Tell us what he said, if you heard what he said? A. He said, "I'm going to kill one of y'all motherfuckers." On cross-examination, Kenneth Adams further testified to the following: Q. You heard a shot? A. Yes, I did. Q. And then you heard another shot? A. The first shot, I rose up off the bench and that's when I got down and I started walking like this (indicating). Then I heard the second shot. That's when I ran out the courtyard. 3 All testimony quoted in this opinion is verbatim. - 8 - Q. All right. A. And then the third shot, my friend, Jerry Corney was up on the stairs and then he looked down. After about three minutes, he looked down at his self and he seen himself bleeding. Q. That was Jerry Corney? A. Yes and he seen the hole in his stomach and then my friend Burrell Hannah picked him up and carried him out of the courtyard. Q. Now, Jerry was back situated back there (indicating), correct? A. On the stairs. Q. A good 15-20 feet away? A. Yes. Q. And then Keith was standing there? A. No, Keith hit the ground then. Furthermore, Burrell Hannah, an eyewitness and friend of the two victims, gave the following testimony on direct examination: Q. Okay. When you saw him [defendant] on the balcony of the apartment, what was he doing or what was he saying? A. He was saying he was going to come out there and he was going to get us. Q. Okay. Did he say anything else? A. N'all, he just went inside the house, and about five minutes later, he came downstairs. * * * Q. Okay. You testified that the man said a few things from the porch. Was he saying it to anybody in particular? - 9 - A. He was saying it to anybody who was standing around. * * * Q. All right. When you testified he stepped back and started shooting, how did he start shooting? A. Shooting through the jacket. Q. Okay. Well, did you see him doing anything with his jacket? A. You know, moving it. * * * Q. And the jacket was going back and forth? A. It was just going everywhere. Defendant and his witnesses denied defendant had a weapon. However, defendant gave the following relevant testimony on direct examination concerning the incident: A. I asked what happened and they started telling me that some guys tried to rape Henrietta in the hallway, you know, in the hallway downstairs, coming into the building that I stay in. So, I kind of found it hard to believe. It was in broad daylight. I couldn't believe anybody would do that. * * * Q. Okay. So, you went to the porch? A. To see if I seen anybody and a lot of guys were standing down there. Q. How many were down there? A. I'd say about six, seven guys were bunched together talking. Q. Okay. - 10 - A. So, I hollered, "What's up?" And somebody said, "Aw, go back in the house." So I was kind of upset the way he talked to me. Q. So, you told Henrietta to call the police and report them? A. Yes. She said she wanted to because, but she was scared to go home. Q. You were going to have her call from her house? A. That's my reason for walking her home so she could use the phone.... * * * Q. In the back of the courtroom? A. Yes, about that far, give or take a few inches. Anyway, they were standing there when we come out the door. So it's some other steps up this way (indicating) way [sic]. This is the way me and Henrietta was attempting to go, but they converge on us. They just all come on us. At the same time, this guy Keith that's who was doing all the talking. Q. Did you know Keith's name at the time? A. No, I didn't know his or none of them at the time. * * * Q. What about the other guys, how close were they to you? A. They were kind of like they were around me. They were like scattered, not close enough for me to really see them. I really didn't bother to look at them. I was aware of their presence. (Emphasis added.) - 11 - Defendant testified he did not know who fired the weapon which caused the wounding of Kenneth Adams and Jerry Corney. However, defendant had no explanation for the high concentration of lead found by the state's forensic examiner near the tears in the fabric of his right jacket pocket. Of course, the credibility of the witnesses and the weight to be given their testimony are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. The evidence in the case sub judice showed defendant was aware of all the young males in the courtyard, therefore, his intent to harm and shoot extended to each victim subsequently wounded by the shooting. "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." R.C. 2901.22(B). When a person intends to fire a gun wildly into a group of individuals, the probability is that he will wound someone, therefore, he has knowledge of his actions. A defendant is responsible for the natural and probable consequences of his acts. State v. Farmer (1951), 156 Ohio St. 214. R.C. 2941.25(B) states as follows: (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. (Emphasis added.) - 12 - This court stated the following in State v. Harris (Dec. 15, 1988), Cuyahoga App. No. 54555, unreported: [A] defendant can still be sentenced separately for those offenses pursuant to R.C. 2941.25(B) if each was committed separately or with a separate animuses. A review of the facts underlying the defendant's convictions is necessary to resolve this issue. State v. Moralevitz (1980), 70 Ohio App. 2d 20. * * * A review of appellant's conduct shows that his offenses were committed separately and with a separate animus as to each. * * * Appellant relies on State v. Cartellone (1981), 3 Ohio App. 3d 145, in support of his position that he had only a single animus when he shot the victims. In that case *** the holding was limited to the situation where the defendant had no knowl- edge of or animus against the innocent bystanders and they were not injured. Although the appellant in the present case also shot at more than one person, the facts are distinguishable from the Cartellone facts. The charges against appellant stemmed from injuries sustained by intended victims, not innocent bystanders. Unlike the defendant in Cartellone, appellant had knowledge of the victims' presence and a separate intent to harm each. Accordingly, Cartellone has no application to this case. (Emphasis added.) Similarly, in the case sub judice, the testimony of all the eyewitnesses to the event was remarkably consistent. Each of the witnesses present gave substantially similar versions of the incident. The evidence presented leads to the inescapable con- clusion that defendant came out of the apartment building with a loaded gun in his jacket pocket to face Keith Corney and his friends. There were approximately six young males in close - 13 - proximity to defendant when he stood in the apartment's courtyard. Defendant was well aware of their presence. It is axiomatic that someone could be shot if defendant had a gun in his jacket pocket and started shooting "through the jacket," moving the jacket pocket "everywhere" in the courtyard. State v. O'Neal (Nov. 14, 1991), Cuyahoga App. No. 59335, unreported; State v. Williams (Dec. 12, 1991), Cuyahoga App. No. 59636, unreported. The testimony of the witnesses revealed the defendant directed his remarks to the group, saying he, defendant, "was going to get us" and "I'm going to kill one of y'all..." The evidence also reveals defendant intended to shoot the gun and fired three shots wildly into the group, hitting two victims. The trial court could thus properly find defendant had a separate animus for each count and, therefore, defendant was guilty of two counts of felonious assault, violations of R.C. 2903.11, since defendant knowingly caused serious physical harm to both Kenneth Adams and Jerry Corney by means of a deadly weapon. State v. O'Neal, supra; State v. Zackery (1987), 31 Ohio App. 3d 264. Accordingly, defendant's sole assignment of error is over- ruled. Judgment affirmed. - 14 - 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 JAMES D. SWEENEY, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .