COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61342 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARSHALL PRINCE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 19, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-248224 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES JOSEPH G. STAFFORD, ESQ. CUYAHOGA COUNTY PROSECUTOR 100 Courthouse Square RONALD D. JAMES, ASST. 310 Lakeside Avenue, West Justice Center - 8th Floor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DAVID T. MATIA, C.J., Defendant-appellant Marshall Prince appeals from his convictions for two counts of felonious assault, one count of robbery, one count of receiving stolen property, one count of failing to comply with the order of a police officer. Herein, defendant challenges the state's evidence supporting these convictions. For the reasons set forth below, defendant's appeal lacks merit. I. THE INDICTMENT On February 15, 1990, defendant was indicted pursuant to a six count indictment charging him with: two counts of felonious assault, both with peace officer, violence, and aggravated felony specifications; one count of robbery, with aggravated felony and peace officer specifications; two counts of receiving stolen property, with two violence specifications; and one count of failing to comply with the order of a police officer, also with two violence specifications. Defendant entered pleas of not guilty and the matter proceeded to a bench trial on December 17, 1990. II. THE FACTS The state's evidence established that on January 4, 1990, Cleveland Police observed defendant operating a stolen Buick LeSabre at East 22nd Street near Prospect. Defendant subsequently fled from the officers onto Interstate 77, going - 3 - southbound. Police from nearby suburbs were notified and Patrolmen Daniel Cengic of Independence, and the operator of a tractor trailer formed a rolling roadblock designed to stop defendant by impeding both lanes of travel. Patrolman Joseph Grzelak of Brecksville later joined the roadblock and occupied the left berm lane. As the rolling roadblock proceeded at 75 m.p.h., defendant's vehicle approached quickly from the rear. Defendant applied the brakes then swerved to the right in order to pass the trailer in the narrow right berm. He then veered sharply to the left and struck the right rear portion of Grzelak's vehicle. Defendant then forced his vehicle into a four feet gap between the cruisers, striking both of them, and forcing Grzelak into the grassy median strip. Both officers testified that defendant was at all times in control of his vehicle and struck them intentionally in order to pass them. Defendant subsequently exited the interstate, lost control of his vehicle, and crashed into the guardrail. For his case, defendant testified that he knew that the vehicle he was driving was stolen and that he entered the interstate to evade a police officer who had attempted to pull him over. Defendant stated, however, that he did not intentionally strike the cruisers, but rather, lost control as he tried to get away from their rolling roadblock. He claimed that as he swerved to the left to regain control, the cruiser to his - 4 - left hit his vehicle, causing his vehicle to strike the vehicle to his right. The court subsequently found defendant guilty of both counts of felonious assault, receiving stolen property, robbery, failing to obey the order of a police officer, and all specifications attendant to these charges. III. DEFENDANT'S FIRST ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN DETERMINING THE AUTOMOBILE THE APPELLANT WAS DRIVING CONSTITUTED A "DEADLY WEAPON" OR "DANGEROUS ORDINANCE" UNDER R.C. 2923.11. A. THE LAW Any instrument which through human control is the means of inflicting a blow may be a deadly weapon, viz., any instrument so used as likely to produce death or great bodily harm. State v. Ovlett (1975), 44 Ohio Misc. 7, 9. Thus, although not per se a deadly weapon, an automobile, when used in a manner likely to produce death or great bodily harm can be classified as a "deadly weapon" under R.C. 2923.11. Id.; See, also, State v. Foster (1975), 60 Ohio Misc. 46. B. THE ANALYSIS In this instance, defendant claims that the automobile was not used to produce death or great bodily injury because he did not intentionally ram the vehicles. The trial court could well reject defendant's testimony. See State v. DeHass (1967), 10 - 5 - Ohio St.3d 230. Further, this court in State v. Bernard (Dec. 5, 1991), Cuyahoga App. 59452, unreported, stated as follows: "Felonious assault has been established where the accused strikes a police car during a high speed chase, yet claims he was merely attempting to flee, see State v. Townsend (Feb. 22, 1990), Cuyahoga App. 56571, unreported, and has also been established where the accused accelerates toward a police officer, but claims to have done so without the requisite mental state. See State v. Buford (July 12, 1990), Cuyahoga App. 57213, unreported. "Applying the foregoing, we conclude that *** the record proceedings clearly demonstrate that defendant knowingly operated his vehicle in a manner which could cause the death of the occupants of both vehicles." Defendant's first assignment of error is overruled. IV. DEFENDANT'S SECOND ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF ROBBERY WHEN THE STATUTORY REQUIREMENTS OF OHIO REVISED CODE SECTION 2911.01 WERE NOT SATISFIED NOR PROVEN BY THE APPELLEE. A. THE LAW Here, defendant claims that he did not use force as he received the stolen automobile, so he did not commit a robbery in violation of R.C. 2911.02. In State v. Ballard (1984), 14 Ohio App.3d 59, 61, this court construed R.C. 2911.02 to require that the element of force be shown in connection with "attempting or committing a theft offense, or in fleeing thereafter." (Emphasis added). - 6 - B. ANALYSIS In this case, defendant clearly used force while fleeing from the officers following his receipt, possession and retention of the stolen vehicle. Accordingly, this assignment of error lacks merit. V. DEFENDANT'S THIRD ASSIGNMENT OF ERROR THE DECISION OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED AND A NEW TRIAL ORDERED. A. THE LAW: MANIFEST WEIGHT OF THE EVIDENCE In State v. Mattison (1985), 23 Ohio App.3d 10, 14, this court set forth the following guidelines to consider in evaluating a challenge to the manifest weight of the evidence: "'"1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible. *** "'"2. Whether evidence is uncontradicted, *** "'"3. Whether a witness was impeached, *** "'"4. Consideration of what was not proved, *** "'"5. The certainty of the evidence, *** "'"6. The reliability of the evidence, *** "'"7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** "'"8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a [logical] pattern, ***."'" - 7 - Moreover, in the trial of a case, questions of credibility are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.3d 230, 231. In this case, the state presented a credible, coherent, complete account of the events proceeding defendant's arrest. None of the state's witnesses was impeached or contradicted as to any significant fact. The defendant, however, presented testimony which was incomplete as to key details, impeached as to his relationship to "Chris," and incredible as to the cause of the collisions. Accordingly, the evidence is not contrary to the manifest weight of the evidence and we will not substitute our judgment for that of the trial court. B. JOINDER Defendant further claims, however, that he was severely prejudiced by the trial court's joinder of all of the offenses, and specifications set forth against him. Because defendant at no time requested a severance of the counts against him, and did in fact obtain a separate hearing on the specifications prior to sentencing, these claims lack merit. C. MULTIPLE CONVICTIONS FOR FELONIOUS ASSAULT Defendant further claims that there is insufficient evidence to sustain both felonious assault convictions because the act of striking both police cruisers was the result of a single act. Assuming that this claim can be credited in light of the evidence that defendant struck Grzelak's vehicle twice, we nonetheless - 8 - note that in State v. Jones (1985), 18 Ohio St.3d 116, 118, the Supreme Court held that R.C. 2903.06 authorizes a separate conviction for each person killed by a drunken driver. Similarly, in State v. Caudill (1983), 11 Ohio App.3d 252, 256, the court held that the defendant could be convicted of two counts of aggravated vehicular homicide which resulted from a single accident. Likewise in State v. Stimson (1985), 28 Ohio App.3d 69, 70, the court held that under R.C. 2903.07 separate convictions were authorized for each person killed by a negligent driver. We find the reasoning of these cases applicable here and we therefore hold that when a defendant intentionally strikes two vehicles, two separate convictions for felonious assault are authorized. Defendant's third assignment of error lacks merit. VI. DEFENDANT'S FOURTH ASSIGNMENT OF ERROR THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE APPELLANT. A. THE LAW Sentencing for the felonies at issue here is governed by R.C. 2929.12 which provides in relevant part as follows: "(B) The following do not control the court's discretion, but shall be considered in favor of imposing a longer term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: "(1) The offender is a repeat or dangerous offender; - 9 - "(2) Regardless of whether the offender knew the age of the victim, the victim of the offense was sixty-five years of age or older, permanently and totally disabled, or less than eighteen years of age at the time of the commission of the offense; "(3) The victim of the offense has suffered severe social, psychological, physical, or economic injury as a result of the offense. "(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: "(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." Under this statute, a court is vested with broad discretion. State v. Yontz (1986), 33 Ohio App.3d 342. - 10 - B. ANALYSIS We find no abuse of that discretion here, as defendant had a previous record, and the victims did not induce or provoke the offense. Defendant's fourth assignment of error lacks merit. Judgment affirmed. - 11 - 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 Court of Common Pleas 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 BLANCHE KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .