COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69289 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : CARLOS BORRERO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 18, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-320602 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS A. REIN, ESQ. JOHN B. GIBBONS, ESQ. Assistant County Prosecutor 2000 Standard Building 8th Floor Justice Center 1370 Ontario Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Carlos Borrero, defendant-appellant, appeals a decision from the trial court convicting him of felonious assault with a firearm specification and having a weapon while under disability. Borrero assigns the following two errors for our review: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29(A), AS HIS CONVICTION IS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO LAW. II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On December 26, 1994, Carlos Borrero, defendant-appellant, got into an argument with his downstairs neighbor, Christopher Trecarichi. Borrero angrily confronted Trecarichi after Trecarichi lit a fire in a 55 gallon drum, which Borrero felt was too close to the two family house they shared. The following morning about 9:50 am, Trecarichi was getting into his car when Borrero approached him from behind and fired several shots. Trecarichi was shot once in the abdomen. He drove to his mother's home nearby. Shortly thereafter, an ambulance arrived to take him to the hospital. At approximately 10:00 am, Borrero went to the Second District Police Station. He told the officers he wanted to turn himself in because he had just shot somebody. When the officers notified radio dispatch, they discovered that other officers were at the -3- scene of the shooting. Borrero was taken to the scene to assist police in finding the gun used in the shooting. Borrero initially told police he tossed the gun in a vacant lot. When police were unable to find the gun after an hour-long search, Borrero told them that he had given the gun to a friend. Police retrieved the gun. Ballistics test later proved that the gun recovered was the gun used to shoot Trecarichi. At the scene and at the hospital, Trecarichi said he did not know who shot him. However, in an interview conducted at approximately 6:35 p.m. after his release from the hospital, Trecarichi told detectives that Borrero shot him. Borrero was arrested and charged with felonious assault and having a weapon while under disability. At trial, Trecarichi testified he lied in his statement to police. He said he did not know who shot him, and he only named Borrero as the shooter because he wanted to get back at Borrero for the argument they had the previous day. Police officers testified concerning the statements Borrero made to them during their investigation of the shooting. In addition, a Water Department employee who witnessed the shooting testified that Borrero looked "familiar" but could not positively identify him as the shooter. In his trial testimony, Borrero stated, on the day of the shooting, he heard gunshots outside his window and went outside to investigate. Once outside, he saw a car driving away and spotted a gun on the ground in the middle of the street. He picked up the gun and ran to his friend's house and gave him the gun, then went -4- to the police station and told police he had shot someone. Borrero denied shooting Trecarichi and stated he only confessed to police because he wanted to return to jail for a short time to "get my head together". He said he was unaware of the seriousness of the crime and would never have confessed to it if he understood the penalty involved. The trial court found Borrero guilty and sentenced him to eight to fifteen years for the felonious assault plus three years for the firearm specification. He was also sentenced to a concurrent term of one and one half to five years for having a weapon while under disability plus three years for the firearm specification. This appeal followed. In his first assignment of error, Borrero asserts the court erroneously denied his motion for acquittal and that his conviction was not supported by sufficient evidence. "A reviewing court may not reverse a judgment of conviction in a criminal case where the guilty verdict was returned by the trier of fact on sufficient evidence and no prejudicial error occurred in the trial of the case." State v. Fyffe (1990), 67 Ohio App.3d 608, 614. "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." State v. Jenks (1991), 61 Ohio St.3d 259, 273. See also State v. Phillips (1995), 74 Ohio St.3d 72, 81. -5- A similar standard exists with respect to motions for acquit- tal under Crim.R. 29. When a question is before a trial court on a defendant's motion for judgment of acquittal, the trial court is required to construe the evidence most strongly in favor of the state. Fyffe at 613. A motion for acquittal should be denied if reasonable minds could reach different conclusions about whether each element of the crime has been proved beyond a reasonable doubt. State v. Dolce (1993), 92 Ohio App.3d 687, 704. In order to prove felonious assault, the state had to prove Borrero knowingly caused or attempted to cause physical harm to Trecarichi with a deadly weapon. To prove having a weapon while under disability, the state had to prove Borrero knowingly acquired, had, carried, or used a firearm after having been convicted of any felony of violence or drug offense. The firearm specification could be proven by evidence Borrero had an operable firearm on or about his person or under his control while committing the offenses charged. The state produced evidence that Borrero fired several shots at Trecarichi from close range. One of the shots struck Trecarichi in the abdomen causing an injury which required surgery. The state also produced evidence that Borrero took the gun away from the scene and left it with a friend who lived about 100 yards away from the scene of the shooting. In his trial testimony, Borrero admitted carrying the gun away from the scene. The operability of the firearm was proven by forensic laboratory reports indicating the gun was successfully test fired. -6- Our review of the evidence reveals the state put forth enough evidence to support convictions for felonious assault, having a weapon while under disability, and the accompanying firearm specifications. Borrero's first assignment of error is overruled. In his second assignment of error, Borrero asserts his conviction was against the manifest weight of the evidence. If, after reviewing the entire record, weighing the evidence and all reasonable inferences, a court finds the factfinder clearly lost its way in resolving the conflicts in the evidence and created a manifest miscarriage of justice, the defendant's conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. Borrero was convicted after a bench trial. We find no evidence the trial court lost its way in resolving the conflicting testimony in the case. Despite Trecarichi's recantation of his pre-trial statement to police, the state presented evidence that Trecarichi named Borrero as the person who shot him. The state also presented evidence that Borrero initially confessed to the shooting and agreed to help them find the gun he used. Although Trecarichi and Borrero both recanted their pre-trial statements about the shooting, the trial court as trier of fact was respons- ible for evaluating their credibility and was free to disbelieve some or all of their in-court statements. See State v. Callahan (1992), 80 Ohio App.3d 184, 192. Ballistics tests proved the bullet recovered from Trecarichi's body came from the gun recovered by the police. In addition, the description of the shooter given -7- by a Water Department employee who witnessed the shooting closely matched Borrero's physical characteristics. We find the trial court's resolution of the conflicting testimony was reasonable in light of all the evidence presented at trial. Accordingly, we find Borrero's conviction was not against the manifest weight of the evidence. Borrero's second assignment of error is without merit. Judgment affirmed. -8- 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. O'DONNELL, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .