COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70339 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RAYMIER ADAMS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-323779 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT T. GLICKMAN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: EDWARD R. LaRUE 11510 Buckeye Road Cleveland, Ohio 44104 - 2 - O'DONNELL, J.: Raymier Adams appeals from a judgment of the Common Pleas Court, entered pursuant to a jury verdict finding him guilty of two counts of felonious assault each containing a firearm specification. Around 10:00 p.m. on December 6, 1994, Richard Hearn drove to Richard's Marathon Gas Station, located at 1390 Hayden Avenue, in the city of East Cleveland, accompanied by Jason Duncan to purchase gasoline for his 1979 Buick Limited automobile. When they arrived, Ernest Hunter approached the vehicle and offered to sell them cocaine. Although Hearn and Duncan maintain that they refused the offer, Hunter testified he delivered them three rocks of crack cocaine and that they refused to pay him so he reached into their automobile and grabbed the keys from the ignition. When Duncan tried to retrieve the keys from Hunter a fight ensued. At that point, a group of males, including the appellant, attacked Hearn who stood outside the vehicle. One of them hit him on his head, knocking him down, and attempted to go through his pockets. During this encounter, Hearn tried to run for help, but Adams struck him in the head with a gun and said "I'll shoot you with the gun if you don't back up!" Ernest Hunter, who testified for the state, corroborated Hearn's statements and - 3 - identified Adams as the individual who struck and threatened Hearn with the gun. Eventually Duncan and Hunter fled across the street to Wilson's Beverage Store. According to Roberta Forster, the clerk at Wilson's, Adams entered the store carrying a pipe, went behind the counter with the cash register, took a gun from the drawer and threatened to shoot both Duncan and Hearn. At that point, Carlos, the store owner, intervened and told Adams to put the gun down and not to shoot. The record reflects that Adams then put the gun back in the drawer and left the store. A grand jury subsequently indicted Adams on two counts of felonious assault and one count of aggravated robbery. At trial, the court granted appellant's Crim.R. 29 motion for acquittal as to the aggravated robbery charge, but denied it as to the remaining counts. The defendant rested without presenting any witnesses, and the jury returned verdicts of guilty as to both counts, each containing a firearm specification. At sentencing, the court merged the two firearm specifications into one term of three years. Appellant raises one assignment of error for our review: I. APPELLANT'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND APPELLANT WAS THEREBY IMPROPERLY DENIED A CRIM.R.29 ACQUITTAL WHEN HIS CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. - 4 - However, appellant separately argues the sufficiency of the evidence as it relates to the firearm specifications and the manifest weight as it relates to the felonious assault convictions. Appellant specifically argues: A. THE FIREARM SPECIFICATIONS WERE NOT PROVEN BEYOND A REASONABLE DOUBT. Appellant contends that the state failed to present sufficient evidence as to the operability of the weapon and therefore the trial court should have granted his Crim.R. 29 motion for acquittal as to the firearm specification. The state maintains that the trial court correctly denied appellant's motion for acquittal because the state proved the element of operability using circumstantial evidence. The issue for our resolution then is whether the state provided sufficient evidence of operability to justify the trial court's denial of appellant's motion for acquittal of the firearm specification in these indictments. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court in its syllabus established the standard of review for challenges regarding the sufficiency of evidence, stating: 2. 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 - 5 - 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, followed) For the purposes of our review we must concern ourselves with the substantive law as it relates to the state's burden to prove the operability of a firearm. R.C. 2923.11(B) defines a firearm as: (1) *** any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable. (2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm. The Ohio Supreme Court focused on what type of evidence is sufficient to prove operability of a weapon in State v. Murphy (1990), 49 Ohio St.3d 206, and stated in its syllabus the following: The state must prove beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. (State v.Gaines [1989] 46 Ohio St.3d 65, modified.) Further, proving operability does not require the state to provide an empirical analysis or examination of the gun, as such - 6 - requirement would only frustrate the intent of the General Assembly of sending a message to the criminal world regarding possession of a firearm. Id. at 209. In this case, Ernest Hunter identified Raymier Adams as the assailant who wielded a weapon and told Hearn "I'll shoot you with the gun if you don't back up!" Additionally, Roberta Forster identified Adams as the individual who threatened to shoot both Duncan and Hearn. We conclude therefore that the trial court correctly denied appellant's motion for acquittal in this case because the state established operability of the firearm from the testimony of Ernest Hunter and Roberta Forster, lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. Accordingly, appellant's assignment is not well taken and it is overruled. Appellant's remaining contention concerning manifest weight of the evidence states: B. THE CONVICTIONS ON EACH COUNT OF THE INDICTMENTS MUST BE OVERTURNED AS THEY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant asserts that his two felonious assault convictions are against the manifest weight of the evidence in that the testimony presented is contradictory, conflicting and inherently unreliable. - 7 - The state urges that the convictions are not against the manifest weight of the evidence because the state proved each element of felonious assault beyond a reasonable doubt. The issue presented for our consideration is whether appellant's two convictions are against the manifest weight of the evidence. The test to be applied when reviewing such a claim is stated in State v. Martin (1983), 20 Ohio App.3d 172, 175, as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment is 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 the 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. At the time of the incident R.C. 2903.11 defined 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 or dangerous ordinance, as defined in Section 2923.11 of the Revised Code. R.C. 2923.02(A) defines attempt 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. 2901.01 defines physical harm to persons as: - 8 - (C) ...any injury, illness, or other physiological impairment, regardless of its gravity or duration. Further, R.C. 2923.11 defines a deadly weapon as: (A) ...any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possesses, carried, or used as a weapon. In this case, the state presented testimony of Ernest Hunter who identified Raymier Adams as the individual who struck Hearn in the head with a gun and threatened "I'll shoot you with the gun if you don't back up!" This testimony corroborated Hearn's version and identified Adams as Hearn's previously unidentified assailant. Furthermore, Roberta Forster also identified Adams as the man who entered Wilson's Beverage Store carrying a metal pipe and who retrieved a gun from a drawer behind the cash register which he pointed at Duncan and Hearn and threatened to shoot them. Thus, from the testimony of these witnesses, the state provided evidence from which a jury could conclude that Adams either caused physical harm to Hearn by striking him on the head with a gun, or attempted to cause physical harm to both Duncan and Hearn by means of a deadly weapon in that he threatened to shoot them at the time he held a gun on them. Therefore, after reviewing the entire record and weighing the evidence and reasonable inferences and considering the credibility of the witnesses, we have concluded that the jury in this case did not lose its way and create such a manifest - 9 - miscarriage of justice that the conviction must be reversed and a new trial ordered. Accordingly, appellant's convictions of two counts of felonious assault with a firearm specifications are not against the manifest weight of the evidence and therefore appellant's contention is overruled. Judgment affirmed. - 10 - 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. SWEENEY, C.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .