COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71262 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JAVIER ARNOLD : : Defendant-appellant : : : October 2, 1997 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-336478 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES, ESQ. ELIZABETH A. MEERS, ESQ. Cuyahoga County Prosecutor 950 Standard Bldg. LORI WHITE LAISURE, ESQ. Cleveland, OH 44113 Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 2 PATTON, J. Defendant-appellant, Javier Arnold ( defendant ) was indicted for felonious assault in violation of R.C. 2903.11 with two specifications: (1) a firearm specification, and (2) a violence specification that defendant made an actual threat of physical harm with a deadly weapon during the commission of the offense. A bench trial was had on June 13, 1996, and at the conclusion of the trial, the trial court found defendant guilty of felonious assault and the firearm specification. The record reveals the victim, Jock Oliver, was standing in front of his apartment building with his uncle at approximately 3:45 p.m. The victim confronted some young adults who were smashing bottles in the street. During this confrontation, defendant approached the victim and stated What is the fuck up? Defendant repeated this comment a few times and then kicked the victim in the thigh area. The victim retaliated with a karate kick to the chin of the defendant which sent defendant sprawling six feet. After a minute or two, defendant picked himself up off the ground and fled into an abandoned apartment building. At this point, the victim and his girlfriend drove to the bank and to the store. Upon returning, twenty minutes later, the victim, the girlfriend, and the uncle saw defendant walking down the street carrying a sawed-off shotgun. The victim walked towards his apartment building while the uncle went to stop defendant. Defendant approached the front of the apartment building and stood next to a truck that was parked in front of the building and shot 3 the gun in the direction of the victim. The victim was stuck standing in front of the building because the gate to the back of the building was locked, so when defendant aimed the gun at him and fired the victim dove beneath some bushes. While defendant was shooting the gun the uncle was able to push the gun upwards so as to interfere with defendant's aim. The shot pierced a gutter and shattered a window where victim had previously been standing. Defendant then fled the scene. Defendant was subsequently arrested and denied being in the area where the shooting occurred, but could not account for his whereabouts on the night in question. On the night of defendant's arrest, the uncle went down to the police station and picked defendant out of a six picture array. In his first assignment of error defendant states as follows: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL UNDER CRIMINAL RULE 29 BECAUSE THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN A CONVIC- TION FOR FELONIOUS ASSAULT UNDER R.C. 2903.11. Defendant argues the state did not prove all the elements of the felonious assault, R.C. 2903.11, specifically that defendant attempted to cause physical harm to another. Defendant claims there was no direct evidence of a gun, a bullet, or a shell casing. Also, defendant argues there is no evidence that he actually fired the gun because the uncle hit his arm or the gun when the gun was pointed at the victim and thus the gun could have accidentally been discharged. 4 The state maintains the evidence was sufficient to sustain a conviction for felonious assault. In support, the state argues three witnesses testified that defendant pointed a gun at the victim and fired. Also, there was a picture submitted as evidence which showed a bullet hole in a gutter which corroborates the victim's testimony that he was standing next to the gutter seconds before defendant fired the weapon. The standard for determining whether a Crim.R. 29 motion for acquittal should be granted is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307 at 319. This reserves for the trier of fact the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Felonious assault is defined in R.C. 2903.11 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. There is no evidence that defendant accidentally fired the gun. In fact, the opposite appears to be true. The Ohio Supreme Court has held that firing a gun in a person's direction is sufficient evidence of felonious assault. See State v. Mills (1992), 62 Ohio St.3d 357, 369, and State v. Ficker (September 2, 5 1993), Cuyahoga App. No. 63493, unreported. The uncle was unsure whether he hit the gun or defendant's arm before the gun was fired, but the fact that a bullet hole was found behind where the victim was standing indicates that defendant was able to get off a clear shot at the victim without any interference. Defendant relies upon State v. Brooks (1989), 44 Ohio St.3d 185, and State v. Green (1991), 58 Ohio St.3d 239, for the proposition that the act of pointing a deadly weapon at another, without additional evidence of intent, is insufficient to convict a defendant of felonious assault. However, the present case is distinguishable from these two cases because here the gun was actually fired. The victim, his uncle, and his girlfriend, all testified that defendant pointed the gun at victim and pulled the trigger. Plus, the state submitted a picture of a gutter which had a bullet hole in it. The victim testified he was standing in front of this gutter immediately before defendant fired his gun. Based on the foregoing evidence, the trial court did not err in finding that the state proved the essential elements of felonious assault beyond a reasonable doubt. Accordingly, defendant's first assignment of error is overruled. For his second assignment of error defendant states as follows: THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF FELONIOUS ASSAULT AND FAILING TO CONSIDER THE LESSER ( INFERIOR DEGREE ) OFFENSE OF AGGRAVATED ASSAULT WHEN THERE WAS MITIGATING EVIDENCE OF SERIOUS PROVOCATION BROUGHT ON BY THE ALLEGED VICTIM. 6 Defendant complains there was sufficient evidence of serious provocation to warrant an instruction on aggravated assault if the case were tried to a jury. However, because this was a bench trial defendant argues the trial court erred by not giving due consider- ation to provocation as a mitigating element. As evidence in support of sufficient provocation, defendant states the victim could have walked away from the confrontation, the victim was boastful and trained in the martial arts, and the victim and his girlfriend returned 15 to 20 minutes after the confrontation. The state maintains there was no evidence of sufficient provocation and this was conceded by defendant's trial counsel when he was asked by the trial court [s]o is there really anything missing in the elements of felonious assault? Defense counsel responded [u]nfortunately no and thus the trial court had no reason to amend the indictment to include aggravated assault. It is a correct statement of law that if a defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to the jury. State v. Deem (1988), 40 Ohio St.3d 205, paragraph four of the syllabus. However, the instant case was tried to the bench. The record indicates the trial court heard all of the evidence, including defendant's evidence of serious provocation. There is no evidence suggesting the trial court, as factfinder, did not consider the alleged provocation and decide it was insufficient to reduce the crime from felonious assault to aggravated assault. State v. Salwan (May 30, 1996), Cuyahoga App. No. 68713, unre- 7 ported; State v. Liebold (Mar. 11, 1993), Cuyahoga App. No. 62071, unreported; and State v. Williams (June 1, 1993), Butler App. No. CA92-07-133, unreported. In fact the evidence adduced at trial reveals defendant initiated the confrontation. Defendant approached the victim and stated, [w]hat is the fuck up? After words were exchanged between defendant and the victim, defendant kicked the victim. The victim defended himself by kicking defendant in the chin. Defendant then picked himself up off the ground and ran away. Defendant's argument that he was provoked because the victim was boastful is not supported by the evidence. Defendant also could not have been provoked by the fact that the victim was trained in martial arts because at the time of the confrontation there is no evidence suggesting that defendant knew the victim was trained in martial arts. Furthermore, defendant's claim that the victim could have walked away, is not evidence of serious provocation. One who provokes a response cannot complain that the victim should have retreated. In the aggregate, there is simply no evidence that defendant was provoked in any manner. He initiated the fight and contact between himself and the victim. The evidence shows the victim was merely protecting himself. Based on the foregoing, there is simply no evidence of serious provocation and thus the trial court did not err in not convicting defendant of the lesser included offense of aggravated assault. Judgment affirmed. 8 9 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 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. BLACKMON, P.J. KARPINSKI, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .