COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67423 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION RICHARD GLOVER : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 7, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-301768 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. BETH A. PFEIFFER, ESQ. Cuyahoga County Prosecutor 23550 Commerce Park Dr., #2 DENISE R. CAMERON, ESQ. Beachwood, Ohio 44122 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Richard Glover appeals from his conviction for felonious assault with a peace officer specification. The record demonstrates that on October 26, 1993, defendant was indicted by the Cuyahoga County Grand Jury for felonious assault in violation of R.C. 2903.11. A jury trial commenced on February 14, 1994, in front of Judge Janet R. Burnside. The prosecution presented three witnesses, Mark Seidel, Linda Taylor and Raymond Bruce. The pertinent facts of this case are uncontroverted. On September 9, 1993, President Bill Clinton and Vice President Al Gore were visiting the city of Cleveland. One of their scheduled appearances was at the Omni Hotel located on East 96th Street between Euclid Avenue and Carnegie Avenue. In anticipation of their arrival, the area around the hotel was secured through a joint effort of the Cleveland Police Department, the Cleveland Clinic Police, and the Secret Service. As part of the security measures, East 96th Street was closed from Carnegie to Euclid. While the authorities were in the process of closing off the streets, defendant drove his car into the area. Officer Seidel testified that defendant then stopped his car, exited, ran toward the bank, began swearing, and finally returned to his car. The defendant next placed his car - 3 - in reverse and drove up on the sidewalk, moving in the direction of Officer Linda Taylor, who was in her vehicle. Officer Taylor heard Officer Seidel radio to stop the car. There still being some distance between the defendant and herself, she exited her car and, by voice and arm motions, ordered defendant to stop. Ignoring her repeated orders to stop, defendant continued to drive toward Taylor at a rate of two to three miles an hour. Officer Taylor kept standing there expecting the car to stop, but it kept coming and struck her on the right knee. She then fell forward onto the front and middle of the car's hood. Once on the hood, Officer Taylor had to move sideways in order to push herself off the car and onto the ground. The defendant's car did not stop until the driver's side door was past Officer Taylor on the ground. Even after he hit Officer Taylor, the defendant still refused to cooperate with the officers, who had to struggle to handcuff him. During this entire incident the defendant repeatedly swore at the three officers attempting to subdue him. At one point, the defendant spit in the face of Officer Taylor. The record demonstrates the trial court instructed the jury on felonious assault of which the jury found him guilty as charged in the indictment. After the trial court entered judgment of conviction, on April 26, 1994, defendant was sentenced from 5 to 25 years at Lorain Correctional Institution. Defendant timely appeals, raising two assignments of error. - 4 - Defendant's first assignment of error states as follows: THE CONVICTION OF THE APPELLANT BY THE JURY WAS IMPROPER BECAUSE THE EVIDENCE SUPPORTING THE CONVICTION WAS INSUFFICIENT TO PROVE THE ELEMENTS OF THE CHARGED OFFENSE BEYOND A REASONABLE DOUBT In this assignment of error, defendant contests the sufficiency of the evidence. In reviewing a Crim.R. 29(A) motion, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury". State v. Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds could not convict, a Crim.R. 29 motion must be granted, the charges should be dismissed, and the case should not be given to the jury. Id. "Felonious Assault" is defined in R.C. 2903.11 as follows: (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. "Knowingly" is defined in R.C. 2901.22(B) as follows: 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 certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. "Deadly weapon" is defined in R.C. 2923.11(A) as follows: - 5 - Deadly weapon means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon. Ohio law has recognized that an automobile can be a "deadly weapon" pursuant to R.C. 2923.11. State v. Grimsley (1982), 3 Ohio App.3d 265. This court, moreover, has previously found sufficient evidence to sustain a conviction for felonious assault with an automobile. State v. Beard (Oct. 15, 1992), Cuyahoga App. No. 61130, unreported; State v. Linson (Oct. 19, 1989), Cuyahoga App. No. 56100, unreported. In the case sub judice, competent, credible evidence was presented to prove "beyond a reasonable doubt" that defendant was aware his car would cause physical harm to Officer Taylor and that he attempted to cause this result. That this was his intent must be inferred from the fact that despite defendant seeing her wave her arms and hearing her order him to stop, he aimed his car directly at Officer Taylor and, moreover, continued to proceed even after his car hit her and she fell onto the hood of his car and then to the ground. Viewing the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence to charge the jury on felonious assault. Defendant's second assignment of error states as follows: THE TRIAL JUDGE COMMITTED PREJUDICIAL ERROR BY REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ASSAULT. The offenses of felonious assault and assault are defined in the Revised Code as follows: R.C. 2903.11 Felonious assault. - 6 - (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. 2903.13 Assault (A) No person shall knowingly cause or attempt to cause physical harm to another. (B) No person shall recklessly cause serious physical harm to another. Assault is a lesser included offense of felonious assault. State v. Hardaway (Oct. 31, 1991), Cuyahoga App. No. 59210, unreported. A court is required to charge on the lesser included offense only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. State v. Taylor (1990), 50 Ohio St.3d 24; State v. Thomas (1988), 40 Ohio St.3d 213. The trial court must instruct the jury on the lesser included offense if it is possible under any reasonable view of the evidence for the jury to find the defendant guilty of the lesser offense. State v. Ware, supra; State v. Kidder (1987), 32 Ohio St.3d 279; State v. Davis (1983), 6 Ohio St.3d 91. The crimes of felonious assault and assault differ with regard to the mental state required and the degree of harm inflicted. The words "knowingly" and "reckless" are 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 certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. - 7 - (C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist. Revised Code 2901.01(C) and (E) define the results of "physical harm" as follows: (C) "Physical harm to persons" means any injury, illness, or other physiological impairment, regardless of its gravity or duration. In this case, the jury could reasonably find the defendant guilty of simple assault under the first definition, R.C. 2903.13(A), that is, of "knowingly" causing "physical harm." The jury could find that when his car continued to move even after it hit Officer Taylor, defendant acted "knowingly"; in other words, defendant was aware that his conduct would probably cause the 1/ result of hitting the officer. In order to reverse on this assignment of error, we would have to determine that a reasonable jury could acquit the defendant of felonious assault. While we find that the jury could have convicted defendant under simple assault, we are unable to conclude that the jury could have acquitted the defendant of felonious assault. In the case at hand, it is clear that defendant acted "knowingly." In direct disregard of orders 1/ As for the second definition of simple assault, R.C. 2903.13(B), the jury could have found that, because Officer Taylor suffered only a sore knee, the result constituted only "physical harm" as opposed to "serious physical harm." - 8 - to stop, defendant drove toward and hit a uniformed police officer standing directly in front of the car. Furthermore, we find that when defendant aimed directly at the officer and hit the officer in the knee, defendant "caused or attempted to cause physical harm to another by use of a deadly weapon." We are unable to say as a matter of law, that a reasonable jury would have ignored these facts and acquitted the defendant of this charge of felonious assault. - 9 - Judgment affirmed. 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. PATTON, C.J., and NUGENT, 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 .