COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67785 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LEVIOUS MCCLAIN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 3, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-305393. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Jeffrey Margolis, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Edward J. Nagorny, Esq. 2000 Standard Building 1370 Ontario Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Levious McClain, defendant-appellant, appeals the judgment of the Cuyahoga County Court of Common Pleas finding him guilty of four counts of felonious assault with a firearm specification and one count of improperly discharging a firearm into a habitation or school. Defendant-appellant assigns one error concerning the trial court's denial of his Crim.R. 29 motion for acquittal. This court, finding no error, affirms defendant-appellant's guilty conviction. I. STATEMENT OF FACTS At approximately 6:30 p.m. on September 4, 1993, Levious McClain, defendant-appellant, and Beller Hardaway, one of the victims, had gotten into a verbal argument. Mr. Hardaway had parked his automobile and was approaching the front door of his mother's house at 12705 Waterson Avenue, Cleveland Ohio. Defendant-appellant, who was following Mr. Hardaway on foot, threatened Mr. Hardaway. As defendant-appellant approached Mrs. Hardaway's home, Mr. Hardaway noticed defendant-appellant was carrying a gun in his hand. Bernice Hardaway, Beller's mother, was sitting in the dining room with her longtime friends and neighbors, Nettie Owens and Suzie Potts. All three heard the argument between defendant- appellant and Beller Hardaway and walked out onto the front porch. All three testified they saw defendant-appellant walking towards the house with a gun in his hand. While all four individuals were standing on or near the front porch Levious McClain, defendant- appellant, yelled at the group, pointed his gun at them and fired. -3- The first shot went through Mrs. Hardaway's side window and into a curio cabinet in the living room. Defendant-appellant then fired additional shots at the house as the victims scrambled for safety and called the police. Detective Reginald Wimbley received a call that shots were fired at the Hardaway residence. When he arrived, he testified three people came to the squad car scared and hysterical telling him they had just been shot at by defendant-appellant. Detective Wimbley observed several fresh bullet holes in the home of Mrs. Hardaway. On December 16, 1993, defendant-appellant was arrested in connection with the shootings. On February 7, 1994, defendant- appellant was indicted on four counts of felonious assault with a firearm specification and one count of improperly discharging a firearm into a habitation or school. A trial began on June 6, 1994. On June 9, 1994, defendant-appellant was found guilty on all counts. Levious McClain, defendant-appellant, timely files this appeal. II. ASSIGNMENT OF ERROR Levious McClain, defendant-appellant, states as his sole assignment of error: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29(A), OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT. -4- A. ISSUE RAISED: WHETHER EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO SUPPORT EACH ELEMENT OF FELONIOUS ASSAULT BEYOND A REASONABLE DOUBT. Defendant-appellant argues the trial court erred in denying his Crim.R. 29 motion for acquittal. Specifically, defendant- appellant argues there is no evidence establishing defendant- appellant knowingly caused or attempted to cause physical harm to Bernice Hardaway, Nettie Owens and Suzie Potts. Additionally, defendant-appellant argues the manifest weight of the evidence demonstrates defendant-appellant was under the influence of a sudden passion when he fired shots at Beller Hardaway since Mr. Hardaway pointed a gun at defendant-appellant and fired first. For these reasons, Levious McClain, defendant-appellant, argues the prosecution failed to prove each and every element of felonious assault beyond a reasonable doubt. Accordingly, the trial court erred in denying defendant-appellant's Crim.R. 29 motion for acquittal. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL Under Crim.R. 29, a trial court "shall not order an entry 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. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only -5- where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus the test an appellate court must apply in reviewing a challenge based upon a denial of a motion for acquittal is the same as a challenge based upon the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence 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. State v. Eley [(1978), 56 Ohio St.2d 169]. See, also, Jackson v. Virginia (1979), 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION FOR ACQUITTAL. In the case sub judice, defendant-appellant was indicted and 1 convicted on four counts of felonious assault. Felonious assault is defined by R.C. 2903.11, which provides in pertinent part: 1 Defendant-appellant does not appeal his conviction for improperly discharging a firearm at or into a habitation or school under R.C. 2923.161. -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. * * * After a review of the evidence submitted, we find reasonable minds could have come to the conclusion that defendant-appellant attempted to cause physical harm to all four victims by means of a deadly weapon. Testimony was presented which placed all four victims on the front porch as defendant-appellant approached the house. The victims testified defendant-appellant threatened them, pointed the gun at them and fired. We find the evidence presented at trial was sufficient to support a finding that each element of the felonious assault offense was proven beyond a reasonable doubt. See State v. Phillips (1991), 77 Ohio App.3d 663. The trial court did not err in denying defendant-appellant's Crim.R. 29 motion for acquittal. Levious McClain's, defendant-appellant's, sole assignment of error is not well taken. Judgment affirmed. -7- 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. BLACKMON, P.J. and PORTER, J., CONCUR. DAVID T. MATIA 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 .