COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71190 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES GIMENEZ : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE CR-333286 JUDGMENT: AFFIRMED IN PART, VACATED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR DANIEL M. MARGOLIS (#0067330) ASSISTANT PROSECUTING ATTORNEY The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. (#0015576) 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 SPELLACY, J.: Defendant-appellant, James Gimenez ( appellant ), appeals from his conviction in the Cuyahoga County Court of Common Pleas for felonious assault in violation of R.C. 2903.11; attempted murder in 2 violation of R.C. 2923.02/2903.02; felonious assault in violation of R.C. 2903.11; receiving stolen property in violation of R.C. 2913.51; and possession of criminal tools in violation of R.C. 2923.24. Appellant assigns the following twelve errors for our review. I. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT IMPROPERLY EXCUSED PROSPECTIVE JUROR JAKUBS FOR CAUSE AND REFUSED TO EXCUSE PROSPECTIVE JUROR HALTERMAN FOR CAUSE. II. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE WHEN THE COURT WOULD NOT ALLOW CROSS-EXAMINATION OF WITNESSES CONCERNING BIAS, PREJUDICE AND INTEREST. III. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT WOULD NOT ALLOW DEFENSE TO QUESTION THE WITNESS CONCERNING AN OMISSION IN HIS POLICE STATEMENT. IV. DEFENDANT WAS DENIED A FAIR TRIAL WHEN HE WAS IMPROPERLY QUESTIONED ABOUT A STALE CONVICTION AND IMPROPER ARGUMENTS WERE MADE BY THE PROSECUTOR CONCERNING THE CONVICTION. V. DEFENDANT WAS DENIED EQUAL PROTECTION OF THE LAW AND DUE PROCESS OF LAW WHEN HE WAS CHARGED WITH AND CONVICTED OF FELONIOUS ASSAULT IN THE OPERATION OF MOTOR VEHICLE. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SUBJECTED TO AN ADDITIONAL PENALTY BY REASON OF THE FACT THAT A PEACE OFFICER WAS INVOLVED REGARDLESS OF WHETHER IT HAD TO BE PROVEN THAT DEFENDANT KNEW IT WAS A PEACE OFFICER. VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF RECEIVING STOLEN PROPERTY WHICH CONVICTION WAS ALLOWED BY MORE PROOF THAT DEFENDANT WAS NEGLIGENT. VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY INFORMED THE JURY CONCERNING A PRESUMPTION ABOUT USE OF AN 3 ALLEGED DEADLY WEAPON. IX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT INSTRUCT ON INTOXICATION. X. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTION FOR JUDGMENT OF ACQUITTAL [WAS] OVERRULED. XI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS MULTIPLY SENTENCED BY THE COURT. XII. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW WHEN HE WAS SENTENCED TO THE SAME TERM OF IMPRISONMENT AS IF HE HAD COMPLETED THE OFFENSE BY CAUSING PHYSICAL HARM BY MEANS OF A DEADLY WEAPON. Finding appellant's appeal to have merit in part, the judgment of the trial court is affirmed, in part, and vacated in part. I. On January 31, 1996, a six-count indictment was issued against appellant. Count I charged appellant with felonious assault in violation of R.C. 2903.11 with a peace officer specification and a violence specification. Count II charged appellant with attempted murder in violation of R.C. 2923.02/2903.02 with a violence specification and a firearm specification. Count III charged appellant with felonious assault in violation of R.C. 2903.11 with a peace officer specification, violence specification and a firearm specification. Count IV charged appellant with assault in violation of R.C. 2903.13 with a peace officer specification and a violence specification. Count V charged appellant with receiving stolen property in violation of R.C. 2913.51. Count VI charged appellant with possession of criminal tools in violation of R.C. 2923.24. 4 On June 19, 1996, a jury trial was held. On June 26, 1996, appellant was found guilty on Counts I, II, III, V and VI. Appellant was found not guilty on County IV. On August 5, 1996, appellant was sentenced for ten years to twenty-five years on Count I. On Count II the court imposed a sentence of ten to twenty-five years plus three years to be served consecutive and prior to the ten to twenty-five years. The court then sentenced appellant to ten to twenty-five years plus three years on the firearm specificationon Count III. On Count V, the trial court imposed a sentence of eighteen months. On Count VI, the trial court imposed a sentence of eighteen months. The trial court ordered all counts to run consecutively. (Journal Entry, August 5, 1996). II. On January 9, 1996, Officer Mark Shepard of the Cleveland Police Department, Second District, responded to a hit-skip call at Marshall McCarron's Tavern and Eatery on John Avenue in Cleveland, Ohio. As Officer Shepard approached the bar, he was met by the bartender and informed that appellant was the individual who was involved in the hit-skip and was sitting in the grey Cadillac parked in the parking lot. Officer Shepard approached the Cadillac and asked appellant to give him his driver's license and proof of insurance. As Officer Shepard continued to approach the vehicle, he heard appellant say I don't want no problems officer . Officer Shepard then heard appellant use vulgar language. Subsequently, appellant put the vehicle into reverse and accelerated suddenly. Appellant's vehicle 5 went directly towards Officer Shepard pinning him between a snow bank and appellant's car. Officer Shepard got up and regained his balance when appellant attempted to strike him again. Officer Shepard jumped out of the way and appellant left the parking lot. Later that evening, appellant arrived at the home of his girlfriend, Elaine Molina, in Parma, Ohio. Appellant told Molina that he wanted to go out and shoot darts. Prior to leaving Molina's house, appellant asked Molina to pull his car into the garage because the back window had been broken out. Subsequently, appellant, Elaine Molina and her son left the house and went to a bar on the west side of Cleveland. Prior to arriving at the bar, appellant exited the vehicle and told Molina and her son to wait in the car. Approximately ten minutes later, appellant returned to the car and Molina told him that she wanted to return home. As they were on their way home, Molina stopped her vehicle at a red light next to a police car. Appellant slumped down in the car, leaned over and pulled the baseball cap which he was wearing down over his face. Appellant was also covering part of his face with his hands. The police, suspecting that something unusual was happening, decided to pull Elaine Molina over. Appellant told Molina not to stop her car and to continue driving. Elaine Molina, however, pulled the car over. As she was pulling her vehicle over, appellant proceeded to open the door, jump out of the car and began running. Officer George Seroka began chasing appellant and was eventually led into a driveway between a bar and local residence where appellant was hiding behind a dumpster. Officer Seroka 6 testified at trial that he saw appellant appear from behind the dumpster in a shooter's stance with a gun in his hand pointed at him. (Tr. 344). The gun went off and Officer Seroka fell to the ground. Officer Seroka, however, had not been shot. After waiting a few minutes, Officer Seroka returned to the police vehicle and proceeded to look for appellant with other officers who had arrived. The officers were able to trace appellant's steps and eventually found and apprehended appellant. Appellant, however, did not have the gun on him at the time he was arrested. The gun was later found laying on a roof top in the area where appellant had been running from the police and was determined to be the gun of Sergeant Gary Smith which had been stolen from Sergeant Smith's home in 1992. Appellant testified at trial on his own behalf. Appellant stated that on January 9, 1996, he had been drinking alcohol and that he had gone to Marshall's bar. Appellant testified that while he was at Marshall's he used the men's bathroom and stated that when he went into the bathroom another individual, Dana Curry, was snorting cocaine. Appellant further stated that Curry offered [him] a line which appellant accepted. (Tr. 511). Appellant and Curry left the bar and got into appellant's car. Appellant testified that a patrolman walked up to his car and said that he needed to speak to appellant. (Tr. 471). Appellant then saw Curry place a gun under the seat and Curry fell out of the car. The patrolman repeated his demand for appellant to get out of the vehicle. Appellant panicked, put the car in reverse and tried to 7 back out. (Tr. 472). Appellant testified that after he put the car in reverse, he pulled out of the parking lot on John Avenue and headed west. After leaving Marshall's, appellant proceeded at a high rate of speed and made his way back to Parma. Appellant pulled his car over, reached under the seat, retrieved the gun and put the gun into his trunk. Appellant then testified that he proceeded back to Elaine Molina's house and had Molina put his car in the garage before they went out. Appellant also testified that he retrieved the gun from the trunk in order to take it to a friend's house. Appellant, however, was unable to get rid of the gun before Elaine Molina was stopped by the police. After the police stopped Elaine Molina, appellant testified that he fled from the car. Appellant stated that he made his way to a driveway where there was a dumpster and his intent was to throw the gun in the dumpster and give himself up. However, appellant claims that he fell and that the gun accidentally discharged. Appellant further contends that he was not aiming at anyone or intending to shoot anyone when the gun discharged. III. In his first assignment of error, appellant contends that he was denied a fair trial when the trial court granted the State a challenge for cause and denied him a similar challenge for cause. In the present case, the trial court excused prospective juror Jakubs for cause based on inconsistent answers which prospective juror Jakubs had given to the trial court. In excusing prospective 8 juror Jakubs, the trial court specifically stated: THE COURT: The Court has been impaneling jurors for twenty years. I believe she has answered the questions and in the only way they are and she switched with every one of them when the Court asked her questions. But I believe, in fairness to the parties, as well as to the citizens, that she should be excused because I do believe tomorrow or the next day she will be telling my bailiff she can't do the job and I will excuse her. (Tr. 131). Under R.C. 2945.25(O) and Crim.R. 24(B)(14), a person called as a juror may be challenged for cause if the trial court determines that the potential juror is unsuitable to serve as a juror. Crim.R. 24(B)(14) states that: (B) A person called as a juror may be challenged for the following causes: * * * (14) That he is otherwise unsuitable for any other cause to serve as a juror. It is well settled that we will not disturb a ruling of the trial court on a challenge for cause unless it appears that the trial court abused its discretion. State v. Wilson (1972), 29 Ohio St.2d 203; State v. Gleason (1989), 65 Ohio App.3d 206. To demonstrate an abuse of discretion warranting reversal on appeal, appellant must establish the trial court committed more than an error of law or judgment and that its decision was unreasonable, arbitrary or unconscionable. See Blakemore v. Blakemore (1989), 5 Ohio St.3d 217, 219. Upon review of the record, we hold that the trial court did not abuse its discretion in sustaining the State's challenge seeking to dismiss for cause prospective juror Jakubs and overruling appellant's challenge seeking to dismiss prospective 9 Halterman. The trial court had the opportunity to observe the demeanor of the prospective jurors and evaluate firsthand the sincerity of their responses to questions. See Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. The trial court's decisions are supported in the record, and those rulings will not be disturbed. Accordingly, the first assignment of error is overruled. IV. In his second assignment of error, appellant asserts the trial court erred when it refused to allow cross-examination of witnesses concerning bias, prejudice and interest. In particular, appellant contends the trial court erred in refusing to allow cross- examination regarding any alleged episodes of police brutality which occurred after appellant was arrested. The court was correct in prohibiting appellant from cross- examining as to alleged acts of police brutality committed after his arrest. Unless appellant could have demonstrated that the police beat him into confessing, any acts of police brutality committed after appellant's arrest would be absolutely irrelevant to proof of the charges against him and for purposes of cross- examination. See State v. Johnson (April 2, 1981), Cuyahoga App. No. 42647, unreported. If appellant wished to assert any claims against the police officers for their treatment of him, this was appropriate for another, separate proceeding. Accordingly, appellant's second assignment of error is without merit. V. In his third assignment of error, appellant contends that the 10 trial court erred in denying him the opportunity to cross-examine a witness regarding an omission in his police statement. In the present case, the State introduced testimony of Paul Lowery, a security guard at Marshall McCarron's Tavern, regarding the events which occurred on the night of January 9, 1996. Upon completion of Mr. Lowery's direct examination at trial, the trial court conducted an in camera inspection of Mr. Lowery's written statement with appellant's attorney and the prosecutor to determine the existence of any inconsistencies between Mr. Lowery's testimony and his prior statement. Although the trial court determined that no inconsistencies existed, appellant's attorney pointed out that Mr. Lowery testified that the person was getting in his car, but that Mr. Lowery did not make any reference to the person approaching the car in his formal statement. The court then instructed appellant's counsel that he could not use the statement for cross-examination on an omission for purposes of impeachment. Crim.R. 16(B)(1)(g) provides in pertinent part: Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, ifany, between the testimony of such witness and the prior statement. If the court determines that inconsistencies exi st, the statement shall be given to the defenseattorney for use in cross-examination of the witness as to the inconsistencies. If the court determines that inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examine or comment thereon. 11 Appellant's counsel, in a rather ambiguous manner, notes that Mr. Lowery omitted from his police statement the existence of another individual entering appellant's vehicle at Marshall McCarron's on January 6, 1996, and thus, contends that this constituted an inconsistency within the meaning of Crim.R. 16(B)(1)(g). The ultimate determination of whether claimed inconsistencies exist within the witness' prior statement remains a determination to be made by the trial court. State v. Culver (September 21, 1989), Cuyahoga App. No. 55895, unreported. Cross-examination of the witness on such a prior statement is to be absolutely limited to those court-determined inconsistencies. Id. citing State v. Laboy(February 10, 1983), Cuyahoga App. No. 44934, unreported. In making this determination, the trial court exercises its judicial discretion. Id. citing State v. Fredericy (April 19, 1984), Cuyahoga App. No. 47273, unreported. The trial court has discretion to decide whether a specific omission in a prior statement is inconsistent with the witness' trial testimony, and whether it is material. Culver, supra citing State v. Clay (1972), 29 Ohio App.2d 206, 212. Certain details from a prior statement may naturally not be brought up on direct examination, while some details omitted from a witness' prior statement may naturally crop up for the first time at trial. Id. It is not appropriate to always consider the omission of such details to be inconsistencies. State v. Hartford (1984), 21 Ohio App.3d 29, 31. However, the more material the 12 omission may be, the more the likelihood it will be considered an inconsistency. Id. In the present case, the statement which Mr. Lowery made to the police was not made part of the record before this court. Therefore, we must presume regularity and find that the court did not abuse its discretion in determining that there were no material inconsistencies between Mr. Lowery's previous statements and his trial testimony. The trial court set forth that it evaluated the prior statement and concluded this was merely an omission, not an inconsistency. Accordingly, appellant's third assignment of error is without merit. VI. In his fourth assignment of error, appellant asserts that he was improperly questioned about a conviction which had occurred ten years prior to the present case. In particular, appellant contends that the evidence of his prior conviction was inadmissible under Evid.R. 609(B) because the conviction occurred more than ten years before trial. Evid.R. 609 governs impeachment by evidence of conviction of a crime. Evid.R. 609; State v. Cole (February 15, 1996), Cuyahoga App. No. 68665, unreported. Evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice or confusion of the issues or of misleading the jury. Evid.R. 609(A)(2); Cole, supra. Evidence of 13 the conviction is not admissible if a period of more than ten years has elapsed unless the court determines, in the interest of justice, that the probative value of the conviction outweighs its prejudicial effect. Evid.R. 609(B). At trial, the evidence regarding appellant's prior convictions was brought out by appellant's counsel on direct examination. On direct, appellant testified: Q: Do you have a prior criminal record? A: Yes, I do. Q: Could you relate to the jury how many offenses this is? A: I have two felonies from the past. * * * Q: Could you relate to the jury what the two offenses are? A: 1983, I used a friend's credit card. I used her credit card. * * * Q: Is there another conviction you have? A: In `93, my garage was burglarized. THE COURT: Sustained. Q: What's the crime? A: Fraud. I falsified the insurance claim. It was appellant's own response to the inquiry by his attorney regarding his past felonies that introduced appellant's prior convictions. Evid.R. 609 only applies when prior convictions are used to impeach a witness or an accused. Cole, supra. The testimony in 14 the instant case was brought forth during direct examination and not introduced by the prosecution for impeachment purposes. It was appellant who opened the door for the introduction of the testimony about his prior convictions. Thus, Evid.R. 609 is not applicable in this instance. Accordingly, appellant's fourth assignment of error is overruled. VII. In his fifth assignment of error, appellant asserts that the trial court erred in charging him, in Count I of the indictment, with felonious assault in violation of R.C. 2903.11 with a peace officer specification and a violence specification. Instead, appellant asserts that because he did not cause serious physical harm to Officer Shepard he should have been charged with attempt to commit aggravated vehicular assault under R.C. 2903.08(A). Crim.R. 12(B)(2) sets forth that: Prior to trial, any party may raise by motion any defense, objection,evidentiary issue, or request that is capable of determination without the trial of the general issue. The following must be raised before trial: (2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be notice d by the court at any time during the pendency of the proceeding). (Emphasis added). In the present case, we note that appellant is raising this error for the first time on appeal. In Count I of the indictment appellant was charged with felonious assault in violation of R.C. 2903.11 with a peace officer and violence specification. Appellant argues that the evidence was 15 insufficient to prove all the elements of felonious assault and that he should have, in the alternative, been charged with attempt to commit aggravated vehicular assault under R.C. 2903.08(A). An appellate court will not reverse a conviction unless reasonable minds could only reach the conclusion that the evidence failed to prove all elements of the crime beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 273. When reviewing the sufficiency of the evidence, an appellate court examines the evidence in the light most favorable to the prosecution. Id. In order to prove felonious assault in violation of R.C. 2903.11(A)(2), it was necessary for the prosecution to prove beyond a reasonable doubt that appellant (1) knowingly; (2) caused or attempted to cause physical harm to another; (3) by means of a deadly weapon, as defined in R.C. 2923.11. 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. R.C. 2901.22(B). Thus, knowingly is cast in terms of an awareness of the probability that one's conduct will cause a certain result. State v. Bernard (December 5, 1991), Cuyahoga App. No. 59452, unreported. R.C. 2923.11(A) defines deadly weapon as follows: any instrument, device, or thing capable of infl icting death, and designed or specially ada pted for use as a weapon, or possessed, carried, or used as a weapon. It is well-established that an automobile can be classified as 16 a deadly weapon under R.C. 2923.11 when used in a manner likely to produce death or great bodily harm. State v. Prince (November 19, 1992), Cuyahoga App. No. 61342, unreported. In determining whether an automobile is a deadly weapon, a court should not only consider the intent and mind of the user, but also the nature of the weapon, the manner of its use, the actions of the user, and the capability of the instrument to inflict death or serious bodily injury. State v. Upham (May 12, 1997), Butler App. No. CA96-08-157, unreported. The question of whether an automobile is used as a deadly weapon is a question of fact for the trier of fact. Id. Applying the foregoing to the present case, we conclude that the record demonstrates that appellant knowingly attempted to cause harm to Officer Shepard by means of a deadly weapon, his automobile. As Officer Shepard approached appellant to discuss the hit skip accident which had occurred, appellant put his automobile in reverse, backed into Officer Shepard and pinned Officer Shepard between his automobile and a snow bank. As Officer Shepard regained his balance, appellant attempted to hit him again. There is no evidence that appellant was not in full control of his car, nor is there any evidence that appellant attempted to slow down so that Officer Shepard could escape his predicament. Rather, after backing his car into Officer Shepard, pinning him between the vehicle and a snow bank, appellant put his vehicle into drive and attempted to run over Officer Shepard a second time. These are sufficient facts upon which the trial court could conclude that appellant was aware of or knew that the operation of his automobile 17 in such a manner would probably cause physical harm to Officer Shepard. Furthermore, reasonable minds could find beyond a reasonable doubt that appellant used his automobile as a deadly weapon in order to facilitate his escape. See State v. Townsend (February 22, 1990), Cuyahoga App. No. 56571, unreported. Accordingly, there is sufficient evidence supporting appellant's conviction for felonious assault and the trial court did not err in refusing to charge appellant with attempt to commit aggravated vehicular assault. Appellant's fifth assignment of error is overruled. VIII. In his sixth assignment of error, appellant asserts that the police officer specification contained in Counts I, III, and IV of the indictment, which enhance the sentence without requiring that appellant have actual knowledge that the victim is a police officer, make the statute unconstitutional. In the present case, appellant was not convicted on Count IV of the indictment. Therefore, we will only address this assignment of error as it pertains to Counts I and III. Counts I and III charged appellant with felonious assault in violation of R.C. 2903.11 and each contained a peace officer specification. First, we note that appellant failed to raise this assignment of error in the trial court below. Consequently, we review appellant's sixth assignment of error for plain error. State v. Braxton (1995), 102 Ohio App.3d 28, 44; Crim.R. 52(B). In the present case, the trial court instructed the jury with 18 respect to the peace officer specifications in Counts I and III as follows: Specification one: Peace officer. In specification one, you will separately determine whetherthe victim of the offense, Mark Shepard, was or was not a peace officer while in the performance of his official duties. Peace officeris defined by the Legislature under Ohio Revised Code 2935.01(B) as follows: Peace officer includes a sheriff, deputy sheriff, marshal, deputy marshal, member of the organized police department of any municipal corporation, * * * . (Tr. 641). * * * Specification one: Peace officer. You will separately determine whether the victim of the offense, George Seroka, was or was not a peace officerwhile in the performance of his official duties. Peace officer has been defined for you throughout this, and that same definition will apply herein. (Tr. 649). Appellant contends that the above instruction given by the trial court to the jury did not impose the proper mental state. In particular, appellant contends that the trial court failed to instruct the jury that appellant knew or should have known that the victims were in fact peace officers at the beginning of or during the assault. Felonious assault is defined as follows: (A) No person shall knowingly; (1) Cause physical harm to another; (2) Cause or attempt to cause physical harm to anotherby means of a deadly weapon or dangerous ordn ance, as defined in section 2923.11 of the Revised Code. R.C. 2903.11(B), which contains the peace officer 19 specification, provides the possible degrees of the offense as follows: (B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, felonious assault is an aggravated felony of the first degree. A finding by the jury that the victim was a peace officer simply enhances the degree of the offense and potential penalty. State v. Williams (June 4, 1987), Cuyahoga App. No. 52262, unreported. Proof of knowledge on appellant's part is not required under these circumstances. Id. Accordingly, appellant's sixth assignment of error is overruled. IX. In his seventh assignment of error, appellant asserts that he was denied due process of law when he was convicted of receiving stolen property which conviction was allowed by showing appellant was merely negligent. In particular, appellant contends that the trial court misinformed the jury on a critical element of the offense and on reasonable doubt. At trial, appellant failed to object to the trial court's instructions to the jury regarding Count V of the indictment, receiving stolen property. We will, therefore, review appellant's seventh assignment of error for plain error. See Braxton, supra. In order for an unobjected-to jury instruction to rise to the level of plain error, it must appear on the face of the record not only that error was committed but that, except for the error, the result of the trial clearly would have been otherwise and not to consider 20 the error would be a complete miscarriage of justice. Id. Appellant contends that the trial court's instruction, as taken from 4 Ohio Jury Instructions (1994), Section 513.51(4), improperly transformed the crime of receiving stolen property into one requiring a mere showing of negligence on the part of appellant. This court and other Ohio courts have specifically sanctioned the constitutionality, specificity and clarity of complained-of instructions relating to the element of reasonable cause to believe. Braxton, supra at 45; See also State v. Hicks (August 18, 1988), Cuyahoga App. No. 54219, unreported. Thus, we conclude the trial court did not err in giving the cited jury instruction. Accordingly, appellant's seventh assignment of error is without merit. X. Appellant, in his eighth assignment of error, contends that the trial court erred when it instructed the jury on the attempted murder charge and included as part of its instruction that the injury upon Officer Seroka was inflicted or attempted to be inflicted by means of a deadly weapon. Thus, appellant contends that he was denied due process of law. In the present case, appellant's only objection to the court's jury instructions was to the trial court's failure to instruct on the issue of voluntary intoxication. Consequently, we review appellant's eighth assignment of error for plain error. Braxton, supra at 44; Crim.R. 52(B). In order for an unobjected-to jury instruction to rise to the level of plain error, it must appear on 21 the face of the record not only that error was committed but that, except for the error, the result of the trial clearly would have been otherwise and that not to consider the error would result in a clear miscarriage of justice. Id., citing State v. Underwood (1983), 3 Ohio St.3d 12. In the case before us, the jury instruction at issue is as follows: If an injury is inflicted upon a person by the use of a deadly weapon in a manner that is calculated to destroy life or inflict great bodily harm, the purpose or intent to cause death may be inferred from the use of the weapon. You're cautioned, however, that if you find that an injury was inflicted or attempted to be inflicted upon George Seroka by means of a deadly weapon in a manner that was calculated to destroy life or inflict great bodily harm, the inference may be drawn that there was a purpose or intent to cause death by the use of the weapon. However, such inference is not conclusive and may be considered as with all other evidence in the case in the determination of whether the State of Ohio has proved their case beyond a reasonable doubt. If you find in your good judgment that such inference is warranted from the evidence, the State of Ohio still must prove guilt as to each element of the offense beyond a reasonable doubt. (Tr. 644-645). Appellant sets forth several arguments in support of this assignment of error. First, appellant contends that such an inference does not apply to an attempted crime. Second, appellant argues the instruction concerning infliction of a wound was improper and unconstitutional because it had the effect of an unconstitutional mandatory presumption. Third, the appellant contends there is no statutory basis for giving such an instruction. 22 In State v. Montgomery (1991), 61 Ohio St.3d 410, the court upheld the validity of a similar instruction. The court found that the words may be modified the word inferred to such an extent that [n]o reasonable jury would have felt compelled to presume intent on the basis of the trial judge's instruction. Id. at 415; see also State v. Stoudemire (February 27, 1997), Cuyahoga App. No. 69335, unreported. We find no plain error in this instruction. Accordingly, appellant's eighth assignment of error is overruled. XI. In his ninth assignment of error, appellant contends that he was entitled to a jury instruction of the affirmative defense of voluntary intoxication. In the present case, appellant specifically requested that the trial court provide the jury with an instruction on intoxication. (Tr. 548). The trial court did not give an instruction on intoxication.Appellant asserts that the trial court's failure to give the instruction on intoxication constitutes an abuse of discretion because the evidence presented at trial warranted such an instruction. Voluntary intoxication is not a defense to any crime; however, it may be considered in determining whether the accused was capable of forming the specific intent essential to the offense charged. State v. Fox (1981), 68 Ohio St.2d 53. Evidence was introduced concerning appellant's consumption of alcohol on the night of these offenses. Elaine Molina testified that she bought appellant a bottle of peppermint schnapps on the 23 afternoon before the offense occurred. Elaine Molina further testified that when appellant returned to her home that evening he was feeling real good, had a few drinks, acting kinda goofy, was real hyper, just intoxicated. According to appellant's own testimony at trial he was drinking the schnapps which Molina had purchased on the afternoon of January 9, 1996. Appellant's testimony further reveals that appellant consumed a few beers and a couple of shots of Jaegermeister at Don's Lighthouse where he met his father in the early evening hours of January 9, 1996. Appellant further stated that he had around one or two beers when he arrived at Marshall's bar at approximately 9:30 that evening. While this evidence is sufficient to establish that appellant consumed a large quantity of alcohol on the night of the offenses, it is not sufficient to establish that appellant was inebriated to an extent that rendered him incapable of forming the mental state required for commission of these offenses. Whether the evidence presented at trial is sufficient to require a jury instruction on intoxication is a matter within the trial court's sound discretion. State v. Wolons (1989), 44 Ohio St.3d 64. In reviewing the trial court's decision on appeal, we apply an abuse of discretion standard of review. On the particular facts and circumstances of this case, we cannot say that the trial court acted in an arbitrary or unconscionable manner in refusing to instruct the jury on intoxication. Accordingly, appellant's ninth assignment of error is overruled. XII. 24 In his tenth assignment of error, appellant contends that there was insufficient evidence to prove the various counts of the indictment which had to be proven beyond a reasonable doubt. In particular, appellant contends that the offense of felonious assault as charged in Count I of the indictment is unsupported by the evidence. The standard of review for an argument based on sufficiency of the evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Purs uant to Criminal Rule 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 mater ial element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks(1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the 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 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, 61 L.Ed.2d 560, followed). Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. 25 In the present case, the testimony, which must be viewed in a light most favorable to the prosecution, indicated that the appellant tried to run over Officer Shepard when Officer Shepard approached appellant to discuss the hit-skip which had occurred earlier that evening. The evidence further indicated that appellant used his vehicle, a deadly weapon, in trying to run down Officer Shepard. Thus, the evidence presented was sufficient to put the issues before the jury. Viewing the evidence in a light most favorable to the prosecution, we can find no error in the denial of the motion to acquit. There was sufficient evidence to support appellant's convictions. Accordingly, appellant's tenth assignment of error is overruled. XIII. In his eleventh assignment of error, appellant contends that the trial court improperly sentenced him on both his conviction for felonious assault on Count II and attempted murder on Count III. The victim named in both indictments was Officer George Seroka. Appellant failed to object to the convictions or sentencing at trial, hence, he has waived this claimed error. State v. Gilbert (September 22, 1994), Cuyahoga App. No. 66269, unreported, citing State v. Comen (1990), 50 Ohio St.3d 206, 211. Therefore, we will review appellant's assigned error under the plain error doctrine. Notice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91. 26 In the present case, appellant claims to have been improperly sentenced on the felonious assault charge as well as on his conviction for attempted murder. R.C. 2941.25 states that: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In State v. Mughni (1987), 33 Ohio St.3d 65, the Supreme Court of Ohio reviewed the proper analysis under R.C. 2941.25 and stated: In determining whether two offenses are allied under R.C. 2941.25, this court has employed a two-step analysis. The first step requires a comparison of the elements with which the defendant is charged, for the purpose of discovering whetherthe elements of both offenses correspond to such a degree that the commission of one offense will result in the commission of the other. If so, they are allied offenses of similar import. If the court so finds, it must proceed to the second step, which involves a review of the defendant's conduct to determine whether the offenses were committed separately or with a separate animus as to each. If so, the defendant may be convicted of both. Id. at 67. Under the above test, even if two offenses are of similar import under R.C. 2941.25(A), a defendant can still be sentenced separately for those offenses pursuant to R.C. 2941.25(B) if each 27 was committed separately or with separate animuses. State v. Harris (December 15, 1988), Cuyahoga App. No. 54555, unreported. A review of the facts underlying appellant's convictions is necessary to resolve this issue. Id. citing State v. Moralevitz (1980), 70 Ohio App.2d 20. A review of appellant's conduct shows that these offenses were not committed separately nor were they committed with a separate animus. Appellant fled from Elaine Molina's vehicle and hid behind a dumpster in an alley. As Officer Seroka entered the alley, appellant stepped out from behind the dumpster in a shooter's stance, pointed the gun at Officer Seroka and pulled the trigger. These acts clearly constitute one crime with a single animus. The State contends that if this court finds it necessary to reverse one of these convictions, it requests that the conviction for felonious assault be vacated and the conviction for attempted murder be affirmed. In State v. Huertas (1990), 51 Ohio St.3d 22, 28, the Supreme Court determined that when multiple sentences are imposed for allied offenses, one of the sentences must be vacated. The decision upon which offense a defendant is to be sentenced is one to be made by the prosecution. State v. Ramey (March 14, 1996), Cuyahoga App. No. 69080, unreported, citing State v. Redman (1992), 81 Ohio App.3d 821. Therefore, the State's request that appellant's conviction and sentence for attempted murder be affirmed is granted. Accordingly, appellant's eleventh assignment of error is 28 sustained. XIV. Appellant contends, in his twelfth assignment of error, that the trial court improperly sentenced him to the same term of imprisonment as if he had completed the offense by causing physical harm by means of a deadly weapon. In particular, appellant asserts that R.C. 2903.11, felonious assault, must be read in conjunction with R.C. 2923.02, the attempt statute. Thus, appellant asserts the trial court improperly sentenced him. Initially we note that appellant failed to raise this issue at trial. Thus, appellant has waived his right to assign this error. Comen, supra at 211. Therefore, we will address appellant's claimed error under the plain error standard of review. Appellant argues that R.C. 2903.11(A)(2), the felonious assault statute, denies equal protection because it provides a greater penalty for an attempt offense than a conviction under R.C. 2923.02, the attempt statute. In order to violate equal protection, the classification in this case must have no rational basis to any legitimate governmental interest. See State v. Hines (July 28, 1988), Cuyahoga App. No. 54190, unreported, citing State, ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Employment Relations Board(1986), 22 Ohio St.3d 1. The legislature indicated in its committee comments that certain offenses would not be subject to the general attempt statute, e.g., an attempt to commit any offense which in itself is defined as an attempt . . . . Id. 29 It was entirely rational and within the realm of the general assembly to include an attempt to cause physical harm to another by means of a deadly weapon within the felonious assault statute and therefore to be punished differently. Hines, supra at 9. The seriousness of using a deadly weapon even if only to attempt to cause physical harm provides a rational basis for classifying this attempt separately and subjecting it to a greater penalty. Id. Appellant has failed to demonstrate any violation of equal protection. Accordingly, this assignment of error is overruled. Affirmed in part, vacated in part. Affirmed in part; vacated in part. 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 30 directing the Common Pleas Court to carry this judgment into execution. The defendant's appeal having been affirmed in part and modified in part, 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. JAMES D. SWEENEY, C.J. and DAVID T. MATIA, J., CONCUR. LEO M. SPELLACY Judge N.B. This 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(B) 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 of decision by the .