COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68202 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ROBERT L. WALLACE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-309396. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Scott G. Salisbury, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Edwin J. Vargas, Esq. Hennenberg & Brown 30100 Chagrin Boulevard Suite 301 Cleveland, OH 44124-5704 -2- DAVID T. MATIA, P.J.: Robert Wallace, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas for the offense of attempted felonious assault in violation of R.C. 2903.02 and R.C. 2903.11. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS Robert Wallace, defendant-appellant, was employed as a security guard for Garrison Security. On March 29, 1994 defendant-appellant reported for work at East 92nd Street and Hough Avenue in Cleveland, Ohio. March 29, 1994 was defendant-appellant's first day on the job at this location. While at work, defendant- appellant met Joseph Belton, a fellow security guard, for the first time. Robert Wallace, defendant-appellant, was scheduled to work from 6:00 p.m. until 2:00 a.m. the first night. During this shift, defendant-appellant began to tell Belton about domestic unrest between himself and his wife, Lawanna Wallace. Defendant- appellant stated that he and his wife had recently separated and she had put him out of the house in which they both had been living. Sometime during the conversation, defendant-appellant inquired as to whether Belton knew of anyone who would be interested in shooting defendant-appellant's wife for him. At this point, Belton decided to secretly tape the remainder of the conversation with a tape recorder located in the security guard -3- house. In the tape recording, defendant-appellant made specific references to having his wife shot and crippled so that she would not force him to leave the house. During the tape recording, defendant-appellant also stated a specific amount of money that he would be willing to pay in order to have his wife shot in both knee caps. After completion of the shift, Belton took the tape to the Cleveland Police Department and spoke with Sergeant Mark Hastings at the Fifth District. Sergeant Hastings made arrangements for Belton to wear a KEL Tech monitoring device in order to monitor and record Belton's next conversation with defendant-appellant. On March 30, 1994 Robert Wallace, defendant-appellant, and Joseph Belton worked together again at East 92nd Street and Hough Avenue. Belton, who was now wearing a monitoring device provided to him by the police, initiated the conversation regarding the shooting of defendant-appellant's wife. Belton told defendant- appellant that he would be willing to shoot defendant-appellant's wife because he needed money in order to purchase an automobile. Defendant-appellant agreed to pay Belton $500.00 stating, "I can give you $500.00. I don't want her to die, I just want her knees shot out." (State's Exhibit 2A, p. 34.) Later on during the taped conversation defendant-appellant explained his motivation for wanting Lawanna Wallace shot stating, "I don't want her dead. I want her legs broken. I just want her shot to where she's injured and she's more or less in a handicap state and I would have to come back to her, and have her for the rest of my life." (State's -4- Exhibit 2A, p. 40.) The remainder of the conversation centered around Lawanna Wallace's schedule and the location of her home. As defendant-appellant and Belton stepped outside of the guard shack so that defendant-appellant could show Belton his wife's home, defendant-appellant was arrested by the Cleveland Police Department. On April 12, 1994 the Cuyahoga County Grand Jury returned a one count indictment against Robert Wallace, defendant-appellant, for the attempted aggravated murder of his estranged wife, Lawanna Wallace. On April 19, 1994 defendant-appellant was arraigned whereupon a plea of not guilty was entered to the charge contained in the indictment. On August 25, 1994 a bench trial began in the Cuyahoga County Court of Common Pleas. At the close of the State's case-in-chief, defendant-appellant moved for a judgment of acquittal pursuant to Crim.R. 29. The trial court granted defendant-appellant's motion in part dismissing the charge of attempted aggravated murder. However, the trial court held that there was sufficient evidence presented by the State to proceed on the lesser included offense of attempted felonious assault. Defendant-appellant testified that he really did not wish to injure his wife but was merely talking out of frustration with the current domestic problems he was experiencing. Defendant- appellant maintained that he purposely misinformed Belton as to certain necessary details regarding Lawanna Wallace's schedule and the location of her home. It is undisputed that defendant- -5- appellant did not give money to Belton nor did defendant-appellant and Belton ever agree on a date on which the shooting was to take place. At the close of all the evidence, defendant-appellant renewed the Crim.R. 29 motion for judgment of acquittal. The trial court denied defendant-appellant's motion. On September 1, 1994 the trial court returned a verdict of guilty as to the lesser included offense of attempted felonious assault, an aggravated felony of the third degree. On November 3, 1994 the trial court sentenced defendant- appellant to a term of two to ten years at the Lorain Correctional Institution. The trial court suspended imposition of the sentence and placed defendant-appellant on two years probation. On November 28, 1994 defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Robert Wallace's, defendant-appellant's first assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE AND AGAIN AT THE CLOSE OF THE DEFENDANT'S CASE AND THEREIN ENTERING A JUDGMENT OF GUILTY TO ATTEMPTED FELONIOUS ASSAULT WHERE THERE WAS A LACK OF SUFFICIENT EVIDENCE. A. THE ISSUE RAISED: SUFFICIENCY OF THE EVIDENCE Defendant-appellant contends that the trial court erred in denying the Crim.R. 29 motions for acquittal since the State failed to prove every element of attempted felonious assault -6- beyond a reasonable doubt. Specifically, defendant-appellant argues that the State failed to present sufficient evidence to prove the element of "knowingly." Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St.3d 259, reexamined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence and 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 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, 6l L.Ed.2d 560, followed.) State v. Jenks, supra, paragraph two of the syllabus. C. STANDARD OF REVIEW FOR ACQUITTAL Crim.R. 29(A), which establishes the parameters for the granting of a motion for acquittal, provides that: *** The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not -7- reserve ruling on a motion for judgment of acquittal made at the close of the state's case. In addition, the Supreme Court of Ohio, in State v. Bridgeman (1978), 55 Ohio St.2d 216, established that a trial court may not grant a Crim.R. 29(A) motion for acquittal where the evidence adduced at trial shows that reasonable minds can reach different conclusions as to whether the elements of a charged offense have been proved beyond a reasonable doubt. 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. D. EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT CONVICTION. In the case sub judice, both direct and circumstantial evidence was presented by the State in an attempt to establish the elements of the crime of attempted felonious assault. Revised Code 2923.02(A) defines "attempt" as follows: No person, purposely or knowingly, and 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. Revised Code 2903.11 defines felonious assault 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 -8- or dangerous ordnance, as defined in section 2923.11 of the Revised Code. Defendant-appellant maintains that the State failed to present evidence to establish the element of "knowingly." A review of the record fails to support defendant-appellant's assertion. Revised Code 2901.22(B) defines "knowingly" as: 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 a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. In the present case, the testimony in the record supports the trial court's conclusion that defendant-appellant acted knowingly in attempting to carry out the threat to seriously harm his estranged wife. Both of defendant-appellant's taped conversations make repeated references to defendant-appellant's intent to seriously injure and cripple his wife so that she would then need defendant-appellant and allow defendant-appellant to remain living at the house. Both tapes clearly contain an offer of a specific sum of money to Joseph Belton to carry out the proposed shooting. Defendant-appellant was arrested while en route to showing Belton the location of his wife's home. Applying the standard of review for sufficiency of the evidence as set forth in State v. Jenks, supra, this court finds, after viewing the evidence in a light most favorable to the prosecution,that any rational trier of fact could have found the -9- essential elements of the crime of attempted felonious assault, including "knowingly," proved beyond a reasonable doubt. While it is true that some of the information that defendant- appellant provided to Joseph Belton was inaccurate, this fact does not negate the "knowingly" element of attempted felonious assault given defendant-appellant's stated intention to cause serious physical harm to his wife coupled with repeated offers of payment in order to carry out the offense. Accordingly, the trial court properly overruled defendant-appellant's motion for judgment of acquittal pursuant to Crim.R. 29. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Robert Wallace's, defendant-appellant's, second assignment of error states: THE VERDICT FINDING THE APPELLANT GUILTY OF ATTEMPTED FELONIOUS ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: MANIFEST WEIGHT OF THE EVIDENCE Defendant-appellant argues, through his second assignment of error, that the trial court's verdict was against the manifest weight of the evidence. Specifically, defendant-appellant maintains that no reasonable trier of fact could have found that defendant-appellant did knowingly attempt to cause physical harm to Lawanna Wallace. Defendant-appellant's second assignment of error is not well taken. -10- -11- B. STANDARD OF REVIEW FOR MANIFEST WEIGHT In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: 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 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: -12- 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. THE TRIAL COURT'S VERDICT WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Here, the evidence was presented by way of eyewitness testimony and exhibits in an attempt to establish the elements of the offense of attempted felonious assault. Admittedly, defendant-appellant repeatedly spoke of shooting his wife and offered Joseph Belton money if he would carry out the plan. This disputed issue is whether defendant-appellant acted knowingly. A review of the entire record from the trial court demonstrates that sufficient evidence was submitted which enabled the trial court to determine defendant-appellant's guilt beyond a -13- reasonable doubt. Clearly, the trial court, upon hearing defendant-appellant's version of events, chose to believe that defendant-appellant was serious in his attempt to cause serious physical harm to his wife. Considering that the weight to be given the evidence and the credibility of the witnesses are primarily matters for the trier of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the trier of fact, State v. Grant (1993), 67 Ohio St.3d 465; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the trial court's verdict in this case was against the manifest weight of the evidence. Accordingly, a review of the entire record demonstrates that the trier of fact did not lose its way and create a manifest miscarriage of justice by convicting defendant-appellant of attempted felonious assault. Defendant-appellant's conviction was supported by substantial credible evidence upon which the trial court could reasonably conclude that defendant-appellant was guilty of the lesser included offense of attempted felonious assault. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -14- 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. PORTER, J. and KARPINSKI, J., CONCUR. DAVID T. MATIA PRESIDING 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 .