COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66392 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION THOMAS WASKEY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-297103 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DANIEL R. DAVIES, ESQ. Cuyahoga County Prosecutor 1276 West 3rd Street Suite 419 L. CHRISTOPHER FREY, ESQ. Cleveland, Ohio 44113 Assistant County Prosecutor JOHN W. MONROE, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - - 3 - KARPINSKI, J.: Defendant-appellant Thomas Waskey appeals from his jury conviction for felonious assault with an accompanying firearm specification and having a weapon while under disability. Defendant was indicted on two counts of felonious assault in violation of R.C. 2903.11 with specifications and one count of having a weapon while under disability in violation of R.C. 2923.13. The charges arose out of an altercation on the afternoon of May 7, 1993, with Ray Miller, Jr. and Ray Miller, Sr. The matter proceeded to a jury trial in which the parties presented sharply conflicting versions of the incident. The prosecution's theory of the case, supported by the testimony of eleven witnesses, was that during the altercation defendant brandished and threatened the victims with a loaded handgun he obtained from his car. Several witnesses testified defendant was subdued by the Millers and several neighbors on the street. The defense, supported by the testimony of defendant and a friend who had been with him earlier in the day, argued that defendant, physically beaten in Ray Miller, Jr.'s residence, had tried to avoid the altercation by running to his car. Defendant denied that the Cleveland police recovered a loaded handgun from him. He maintained that Ray Miller, Jr. was carrying out a threat to "get even" with him for informing the Brunswick police - 4 - on a prior occasion that Ray Miller, Jr. illegally possessed a weapon. The jury returned a verdict finding defendant guilty of felonious assault against Ray Miller, Jr., not guilty of felonious assault of Ray Miller, Sr., and guilty of having a weapon while under disability. The trial court journalized the jury verdict on September 22, 1993, and sentenced defendant on October 7, 1993. Through newly appointed appellate counsel, defendant timely appeals raising three assignments of error. Defendant's first assignment of error follows: THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED UPON INSUFFICIENT EVIDENCE. Defendant's first assignment of error lacks merit. Defendant challenges both the sufficiency and weight of the evidence to support his convictions, but his brief addresses only the weight of the evidence. Based on our review of the record, both claims concerning the adequacy of the evidence lack merit. The court in State v. Martin (1983), 20 Ohio App.3d 172, explained the distinction between these two arguments and summarized the standards governing each claim. The Martin Court summarized the standard governing the sufficiency of the evidence as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution - 5 - of which does not allow the court to weigh the evidence. Id. at 175 (citations omitted). Defendant was convicted of the felonious assault and having a weapon while under disability. R.C. 2903.11(A)(2) defines the offense of felonious assault in pertinent part as follows: (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. R.C. 2923.13(A)(3) defines the offense of having a weapon while under disability, in pertinent part, as follows: (A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: * * * (3) Such person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse ***. The prosecution presented testimony from several witnesses that defendant brandished a loaded firearm and threatened to shoot Ray Miller, Jr. When viewed in the light most favorable to the prosecution, the evidence was sufficient for a reasonable jury to conclude that defendant committed felonious assault and had a weapon while under disability. The Ohio Supreme Court has specifically held that the act of pointing a deadly weapon at another, coupled with a threat to use the weapon, is sufficient - 6 - to constitute the offense of felonious assault. State v. Green (1991), 58 Ohio St.3d 239. The evidence was likewise sufficient to establish that defendant knowingly acquired, had, carried, or used the firearm he brandished toward Ray Miller, Jr. while under disability from his prior 1984 Medina County R.C. 2925.11 drug abuse conviction. Defendant has also failed to show that his convictions are against the manifest weight of the evidence. The Martin Court summarized the standard governing this claim as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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 175 (citations omitted). Even if the testimony of the Miller family was biased as defendant contends, three neighbors testified that they observed defendant brandish the firearm and threaten Ray Miller, Jr. during the altercation. Officer Salvatore testified that defendant admitted the firearm was his weapon. Under the circumstances, defendant has failed to show the jury clearly lost its way and created a manifest miscarriage of justice when it evaluated the evidence. - 7 - Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED WHEN IT FAILED TO ALLOW THE TESTIMONY OF DETECTIVE HENRY PAPUSHAK. Defendant argues the trial court improperly precluded him from introducing testimony from a Brunswick police officer. Defendant argues the officer would have testified that victim Ray Miller, Jr. threatened to "get even" with defendant prior to the altercation in this case. Based on our review, defendant has failed to show reversible error. The record demonstrates that prior to trial the trial court ruled on the admissibility of this proposed testimony. (Tr. 14- 16.) The trial court ruled that this testimony was hearsay and would not be admitted into evidence at trial unless the victim denied making the statement to Officer Papushak. Defendant did not argue that any specific exception to the hearsay rule applied to permit the introduction of this statement. At trial, moreover, defense counsel did not question Ray Miller, Jr. whether he ever threatened to get even with defendant. As a result, the trial court excluded the testimony of Officer Papushak. (Tr. 282-290.) Defendant argues for the first time on appeal that the statement allegedly made by the victim to Papushak was admissible under the Evid.R. 803(3) "present condition" exception to the hearsay rule. We note, however, that even if this argument were not waived and this exception applied, the record demonstrates - 8 - that excluding the statement was harmless because of the overwhelming evidence of defendant's guilt from other sources. Crim.R. 52(A). Several witnesses, in addition to the victim, testified that defendant threatened the victim with a loaded firearm. Defendant's theory that the victim sought to fabricate evidence to "get even" with him does not account for the testimony of these other witnesses. Moreover, prior to finding defendant guilty of the two charges, the jury was specifically informed of the animosity between defendant and the victim, despite the exclusion of officer Papushak's testimony. The victim openly testified he blamed defendant for his arrest on the weapon charge and admitted he struck defendant first. Defendant offered similar testimony. The alleged threat by the victim to "get even" with defendant would have added little, if anything, of substance and does not diminish the abundant independent eyewitness testimony in this case. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: COUNSEL FOR APPELLANT COMMITTED ERROR BY NOT PROVIDING EVIDENCE OF APPELLANT'S INJURIES AT TRIAL. Defendant's third assignment of error lacks merit. Defendant's third assignment of error contends that he was denied effective assistance of trial counsel when he failed to - 9 - introduce medical records of defendant's injuries from the altercation. It is well settled, however, that to establish ineffective assistance of trial counsel, defendant must show (1) trial counsel's performance was deficient and (2) trial counsel's deficient performance resulted in prejudice to defendant. State v. Martin, supra at 174. Defendant has failed to satisfy either requirement in this case. Because defendant testified that he was injured during the altercation, medical records would have merely corroborated his testimony. The failure to introduce such records did not deprive the jury of any additional information. Under the circumstances, defendant has failed to show any prejudice. Accordingly, defendant's third assignment of error lacks merit. - 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 O'DONNELL, J., CONCUR. DIANE KARPINSKI 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 .