COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67684 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM YOUNG : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 6, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-310395 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: STEPHEN L. MILES (#0040239) ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OH 44113 For Defendant-Appellant: NANCY A. FUERST (#0041122) 330 STANDARD BUILDING CLEVELAND, OHIO 44113 - 2 - 2 SPELLACY, J.: William Young appeals from his conviction for domestic violence, in violation of R.C. 2919.25(A). Young raises three assignments of error: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S RULE 29 MOTION FOR ACQUITTAL AS THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT. II. THE TRIAL COURT ERRED IN ITS FINDING OF GUILT AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR DOMESTIC VIOLENCE, R.C. 2919.25. III. THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY CLAUSE IN SENTENCING APPELLANT TO AN INDEFINITE TERM OF INCARCERATION. THE VIOLENCE SPECIFICA- TION IN THE INDICTMENT SHOULD HAVE BEEN STRICKEN BECAUSE THE PRINCIPAL OFFENSE HAD ALREADY BEEN ENHANCED BY THE SAME PRIOR MISDEMEANOR OFFENSE CONTAINED IN THE VIOLENCE SPECIFICATION. I. Young was indicted for domestic violence, in violation of R.C. 2919.25(A), with a furthermore clause indicating an April 1993 domestic violence conviction and a violence specification based on the same April 1993 domestic violence conviction. After a bench trial, the trial court found Young guilty and sentenced him to a term of two to five years. The following evidence was adduced at trial: On April 25, 1994, after Young threatened to kill her, Scherri Williams spent the night with a relative. The next morning, Young went to where Williams works and told one of her co-workers that he was going to "kill that bitch." Later in the morning, Williams - 3 - 3 returned to her house with an escort of four police officers. As Williams got out of her car, Young, who had been waiting on the front porch, ran at her with his fists "balled up." The police officers grabbed Young as he rounded the rear of Williams's car. II. In his first assignment of error, Young contends the trial court erred when it denied his motion for acquittal under Crim.R. 29. In his second assignment of error, Young contends the evidence is insufficient to support his conviction. Young argues these assignments of error together. "Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Supreme Court held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed.2d 560, followed.) - 4 - 4 R.C. 2919.25(A) provides "[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member." Young maintains the evidence fails to demonstrate that he attempted to physically harm Williams. R.C. 2923.02(A) defines "attempt" and provides: No person, purposely or knowingly, when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense. Criminal attempt requires the taking of a "substantial step in a course of conduct planned to culminate in the commission of a crime." State v. Powell (1990), 49 Ohio St.3d 255, 261; citing State v. Woods (1976), 48 Ohio St.2d 127, paragraph one of the syllabus. A substantial step must strongly corroborate the actor's criminal purpose. Id. Reviewing the evidence in a light most favorable to the state, we conclude that a reasonable factfinder could find that Young attempted to physically harm Williams. State v. Workman (1992), 84 Ohio App.3d 534, 537, held that the evidence was sufficient to support a finding of attempt to cause physical harm when a fleeing suspect, with a knife in his hand, took a step toward a police officer immediately before the police officer tackled him. This case is similar. Young's charging Williams with his fists "balled up" constitutes a substantial step. Accordingly, Young's first and second assignments of error are not well taken. - 5 - 5 III. In his third assignment of error, Young contends the inclusion of the violence specification under R.C. 2941.143 violated the Double Jeopardy Clause by enhancing his sentence. A violence specification under R.C. 2941.143, however, is not a penalty enhancement because the penalty is based on the underlying offense. State v. Witwer (1992), 64 Ohio St.3d 421, 428-429. Accordingly, Young's third assignment of error is not well taken. Judgment affirmed. - 6 - 6 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 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. JOHN T. PATTON, C.J. and JAMES D. SWEENEY, J., CONCUR. LEO M. SPELLACY 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 .