COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68890 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION PETER VICEROY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 9, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-315,048 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN F. CORRIGAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: REGENIA L. MELTON Attorney at Law 558 Terminal Tower Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: Peter P. Viceroy was convicted of felonious assault with a firearm specification by a jury on March 22, 1995 in common pleas court. Defendant-appellant Viceroy appeals this conviction. For the reasons stated below, we affirm. On October 11, 1994, Peter P. Viceroy was indicted for felonious assault pursuant to R.C. 2903.11 with a firearm specifi- cation, as defined in R.C. 2923.11, and a violence specification as a result of a domestic incident which took place on August 23, 1994 in his home. Defendant Viceroy pled not guilty to the charges, and the matter was set for jury trial. Viceroy was found guilty of felonious assault with a firearm specification and was sentenced to three years actual time on the firearm specification and three to fifteen years on the felonious assault, to be served consecutively. The facts which led to the arrest and indictment of the defendant were presented at trial as follows. The state offered three witnesses to support its case. The state's first witness was Laurel Viceroy, the victim and wife of the defendant. On direct examination, Ms. Viceroy testified as to her version of the events which took place on the morning of August 23, 1994 in the home she shared with her husband and their three- - 3 - year-old daughter in Strongsville, Ohio. She stated that she was working in the kitchen when the appellant came in. He was very argumentative and threatened her that she "better not cross him, or [she] would come to great bodily harm today." She started cleaning the kitchen as the appellant had ordered her to do. The appellant hollered at her, told her that he wanted a divorce and told her that she had one hour to clear out of the house. The appellant then ordered their daughter into the bedroom and told Ms. Viceroy that she could not take the child with her. He made her give him her house keys and checkbook. Ms. Viceroy attempted to call 911, but the phone was blank with no dial tone. She packed some things in preparation for leaving and then went to the bedroom to get her daughter. She testified that the appellant said, "I told you you're not taking her." He ordered the child to sit on a chair and then "jumped out of the bed with the gun." Ms. Viceroy testified that he said, "If you don't get out, you'll be sorry. Get out now." Ms. Viceroy described the gun which the appellant pointed at her as a black .32 caliber. The gun had the magazine in it, and the trigger and hammer were back. She knew that the safety was off because she could see the red dot. The appellant's finger was on the trigger. The defendant had pointed the gun at her chest, the distance between the muzzle of the gun and her chest being about two feet. Ms. Viceroy made no further attempt to get her daughter because she "[knew] he would have killed me." She stated that she - 4 - ran out the front door and across the street to a neighbor's house, from where she called the police. After the police arrived, Ms. Viceroy went back across the street with the sergeant and identified the gun. It was lying with the loaded magazine on top of the desk by the end of the bed. On cross-examination, she testified that the police gave the gun back to her, and she hid it in the garage. Later, when the police escorted the defendant to his home to pick up his things, the police permitted defendant Viceroy to take the gun. The state called Eve Licygiewicz, daughter of defendant Viceroy and Ms. Viceroy. Ms. Licygiewicz testified that the gun which was involved in the incident was a .32 caliber which her mother-in-law had given her. She had given it to her father, and he had told her he would clean it and look it over to make sure it was in good working order. Her father invited her out to test- fire it sometime before her wedding day, August 20, 1994, but she did not go with him. Ms. Licygiewicz testified that when her father came back from test-firing the gun, he told her "*** it was a damn good aim, *** damn accurate." She testified that the gun was kept in the back left-hand corner of the desk in the master bedroom. It was her belief that the gun was kept loaded. One month after the incident, on September 30, 1994, Ms. Licygiewicz had a phone conversation with her father during which he said, "I can't believe your mother is doing this just because I pointed a gun at her." - 5 - On cross-examination, Ms. Licygiewicz testified that she knew the gun was fully loaded when she received it. She had not fired the gun nor was she present for the test-firing, so she did not know whether the gun was operable. The state called its final witness, Sergeant Mark Stepanovich. The Strongsville Police Sergeant testified that he had received a call from a woman on August 23, 1994 stating that her husband had pointed a gun at her and had ordered her out of the house. She reported that her husband was holding their infant daughter hostage and she was in fear of the life of her daughter, through homicide or potential homicide/suicide of her daughter and her husband. Six to seven police officers, including Stepanovich himself, responded. Stepanovich was first on the scene. He attempted to make phone contact to the residence, first from the dispatch area and then from his supervisor's vehicle; each time, he reached a recording. He began to leave a message on the machine, but, during the message, defendant Viceroy picked up the phone. Stepanovich identified himself to the defendant and told him to come out unarmed. Viceroy replied that it would "take a few minutes" to secure the doors or windows that were open because the baby was in the house by herself. Viceroy then walked out and was patted down and handcuffed. The police proceeded to check the house and saw the little girl sitting in the front room. Several weapons were observed in the master bedroom. On the scene, the victim, Laurel Viceroy, told - 6 - Stepanovich that the defendant had pointed the gun at her and that she was in fear of her life. Sgt. Stepanovich testified that he spoke with the victim and she described the pistol and its location. Stepanovich had seen the described pistol when he was in the house. He identified a photo of the pistol taken at the Strongsville Police Department as the gun which he seized at the scene. He testified that when he found the gun on the tall nightstand next to the bed, the magazine was loaded but separate from the pistol. He further testified that, "Aside from not fir- ing the pistol itself, I checked the action to make sure it was safe, and I also checked the hammer drop safety on it. I counted the rounds in the magazine. I checked the serial number, see if it was obliterated, or anything of that nature. The gun was in good condition. In fact, it appeared near new. It had been fired very little, probably. I would be willing to stake my reputation on it. The gun would probably fire without any problem." Stepanovich explained that if you can see a red dot on a gun, it means the gun should fire, assuming it is loaded. On cross-examination, Sgt. Stepanovich testified that he did not disassemble the pistol but determined that the gun was opera- ble based upon looking at it. He returned the gun to Ms. Viceroy because she requested it. On re-direct examination, Sgt. Stepanovich testified that he based his opinion that the gun was a working gun on several points, - 7 - that the loaded magazine was next to it and, upon examination, that it appeared to be a functioning gun. The state rested its case. The defense called two witnesses. Defendant Viceroy first testified on his own behalf. Viceroy testified that he runs his custom pistol smith business, VIC International, from his home in Strongsville. He and his wife were involved in a mutual shouting discussion on the morning of August 23, 1994. His wife said she was going to divorce him and she was going to pack up and leave, call the police and get a lawyer. He testified that they tried to sit down and work it out reasonably, but when the subject turned to visitation of the child, his wife "went ballistic." He stated that she said "she would do anything to keep me from visiting that child." While his wife was packing and getting ready to leave, he went into the bedroom where the child was and lay on the waterbed watching television. When his wife entered the room and walked toward the desk, he jumped up, reached over and picked up the firearm, just beating his wife to the desk. He stated that he held the gun down at his side and did not point it at his wife. While holding the gun down at his side, he told his wife to leave. He followed her down the hallway, and, once she walked out of the house, he closed the door and locked it. Defendant Viceroy testified that as he prepared to take a shower, he heard the phone ring but did not reach it in time. He - 8 - stated that the phones and the answering machine were working. When the police officer called back, he picked up the phone and talked to him. Viceroy agreed to go outside to talk to the police after he put on some clothes and closed the doors. He went out- side, and, after the police searched him, they all went back into the kitchen to talk. Joy, his daughter, was in the grand room watching television. After Viceroy and the police talked in the kitchen, the police took him outside, cuffed him and took him to the police station. He testified that he called his daughter, Eve, on September 30, 1994 to ask her to help him get some documents which he needed. He denied telling her that he had "pointed a gun at her mother." After the incident of August 23, 1994, the defendant did not return to his house until September 3 or 4, 1994, when he returned with a police escort to retrieve his belongings. The gun which was involved in the incident was in the glove compartment of his wife's car, and it was loaded. He asked for the gun because his daughter, Eve, had told him to keep it. The police permitted him to take the gun. All the guns which were required to be on the firearm log were left in the home. On cross-examination, defendant Viceroy testified that the gun was loaded but that it did not work. He said that he did not take the gun to the firing range to test it. He testified that he jumped between his wife and the dresser because he thought she was going for the gun and he was concerned for his child's safety. He - 9 - removed the clip from the gun between the time his wife alleged he pointed it at her and when the sergeant found it. He testified that he did not point the gun at her in front of the child. On cross-examination, Viceroy testified that on September 3, 1994, he pursued criminal charges against his wife, Laurel Viceroy, alleging child abuse of Joy. In his statement to the police, he indicated that his wife "*** would cause imminent physical harm to me, to wit: Attempted to grab a loaded pistol." On redirect examination, the defendant testified that he did not know whether or not the firearm was loaded, so he inspected the firearm and found it, in fact, to have been loaded. He then unloaded the gun. The defense presented its second witness, Cindy Berger, a friend of appellant Viceroy. The defense then rested its case. The jury returned a verdict finding Peter Viceroy guilty of felonious assault in violation of Ohio Revised Code Section 2903.11, with a firearm specification. Defendant Viceroy re- quested that the judge sentence him to the maximum sentence. Defendant-appellant raises two assignments of error for our review: I. THE TRIAL COURT ERRED AS A MATTER OF LAW THAT THE EVIDENCE ADDUCED AT TRIAL WAS LEGALLY SUFFICIENT TO CONVICT APPELLANT OF FELONIOUS ASSAULT. II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING THAT THE EVIDENCE ADDUCED AT TRIAL RELATIVE TO THE FIREARM SPECI- FICATION WAS LEGALLY SUFFICIENT TO FIND - 10 - APPELLANT GUILTY OF THE FIREARM SPECIFI- CATION. I. An appellate court's function when reviewing the sufficiency of evidence to support a criminal conviction is to examine the evidence submitted 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 whe-ther, 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. State v. Jenks (1991), 61 Ohio St.3d 273, 279. The essential elements of the offense at issue here are as follows: R.C. 2903.11 provides: (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. "Knowingly," for purposes of R.C. 2903.11, is defined in R.C. 2901.22(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 a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. - 11 - "Attempt" is defined in R.C. 2923.02(A) as: 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. R.C. 2923.11(B)(1) states: Firearm means any deadly weapon capable of expelling or propelling one or more projec- tiles by the action of an explosive or com- bustible propellant. Firearm includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable. Our inquiry, therefore, must be based on whether the evidence presented, when viewed in a light most favorable to the prosecu- tion, permitted reasonable minds to find that the appellant was guilty beyond a reasonable doubt of knowingly causing or attempt- ing 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. The standard of the evidence sufficient to convict a person of felonious assault is found in State v. Green (1991), 58 Ohio St.3d 239. The court in Green determined that the act of pointing a deadly weapon at another, coupled with a threat which indicates an intention to use such a weapon, is sufficient to convict for felonious assault. Appellant contends that the evidence presented to the jury by the state was insufficient to support the conviction for felonious assault because appellant Viceroy did not cause or attempt to cause - 12 - physical harm to Laurel Viceroy within the meaning of R.C. 2903.11. Appellant Viceroy contends further that the state failed to prove beyond a reasonable doubt that the firearm was operable or could readily have been made operable at the time of the offense and that, therefore, the firearm specification must fail. We disagree. The state presented evidence from Laurel Viceroy that the appellant, Peter Viceroy, pointed a loaded gun at her, coupled with a threat which indicated an intention to use the weapon. Her testimony was corroborated by Sgt. Stepanovich, who testified that, based upon his experience, he determined, upon examination of the gun, that the gun was operable. He testified that the victim told him that the appellant had pointed the gun at her. The appellant's daughter, Eve Licygiewicz, testified that her father told her that he had pointed the gun at her mother. Further, Ms. Licygiewicz testified that her father believed that the gun worked well. The appellant admitted to having the gun in his hand. Appellant asserted that the gun was inoperable; however, he could not explain why he would have jumped up to intercept the gun from his wife to protect himself and his child from a gun if it were, as he claimed, inoperable. Viewing the evidence adduced at appellant's trial in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of felonious assault with a firearm specification were proven beyond a reasonable doubt, that - 13 - the appellant pointed a loaded gun, which was operable, at Laurel Viceroy and that he threatened her by saying "she would be sorry." A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. Therefore, the 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 Cuyahoga County Court of Common Pleas 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. ANN DYKE, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .