COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72014 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : DUANE JACKSON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR.-342866 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. NICHOLAS K. THOMAS, ESQ. CUYAHOGA COUNTY PROSECUTOR 21801 Lake Shore Blvd. BY: DENISE R. CAMERON, ESQ. Euclid, Ohio 44123 ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, J.: Appellant, Dwayne Jackson, is appealing his conviction for felonious assault, R.C. 2903.11, with police officer and violence specifications. Appellant contends the conviction was not supported by sufficient evidence. For the following reasons, we affirm. According to the testimony of Cleveland police officers Kevin Freeman and Maurice Brown, the officers were in their patrol car when they received a radio call for shots fired at 140th and Idarose. The officers drove to that location, where a male witness flagged them down. The witness stated that a man in a green jogging suit and another man in jeans and a white T-shirt were arguing with a third man at 140th and Castalia. The witness further stated that the man in the green jogging suit had a gun, and shot at the third male. The officers proceeded to 140th and Castalia. There, they saw appellant wearing a green jogging suit and carrying a gun. Officer Freeman told appellant to halt, but appellant ran. The officers pursued appellant, and eventually found him on top of a garage. Officer Brown had his gun drawn. Brown ordered appellant to get off the roof, but appellant would not comply. Appellant said, I don't have a gun. Then, appellant took off his jacket and threw it at Officer Brown's head. Officer Brown testified that after he knocked the jacket away from him, he saw appellant coming up from the bag with a gun in appellant's hand. Appellant held the gun about waist high. Brown -3- fired a shot because he feared for his life. Appellant jumped off the roof and ran away. Officer Freeman testified that appellant was pointing the gun at Officer Brown, and looking at Officer Brown. The trial court denied appellant's Crim. R. 29 motions as to the charge of felonious assault upon Officer Brown. The jury found appellant guilty of felonious assault upon a police officer. Appellant's sole assignment of error states: THE APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS UNDER THE FIFTH, SIXTH, SEVENTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. Appellant states that the issue for consideration is: WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CON- VICTION OF FELONIOUS ASSAULT? When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if 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 520, State v. Jenks (1991), 61 Ohio St.3d 259. The elements of felonious assault are set out in R.C. 2903.11: (A) No person shall knowingly: . . . (2) Cause or attempt to cause physical harm to another ... by means of a deadly weapon or dangerous ordnance . . . Appellant contends there was not sufficient evidence to demonstrate that appellant knowingly attempted to cause physical harm to -4- another. Criminal attempt occurs when a person performs an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of a crime. State v. Brooks (1989), 44 Ohio St.3d 185. To constitute a substantial step, the defendant's conduct must be strongly corroborative of his criminal purpose. Id. The act of pointing a gun at another, without additional evidence regarding the actor's intention, is not sufficient to prove that the actor intended to shoot the gun or cause physical harm. Id., State v. Kline (1983), 11 Ohio App.3d 208. The defendant's intent to cause serious physical harm can be determined from the defendant's actions under the circumstances. See State v. Seiber (1990), 56 Ohio St.3d 4. If the defendant shot someone before the police arrived, threatened to shoot everyone in the bar and then pointed the gun at the police when they arrived, the evidence was sufficient to show the defendant attempted to cause serious physical harm to the police. Id., see also State v. Mills (1992), 62 Ohio St.3d 357. In the case hand, there was no evidence appellant made verbal threats, cocked the gun or shot at anyone.1 However, appellant's actions under the circumstances demonstrate that he intended to cause serious physical harm to Officer Brown. Officer Brown had his gun pointed at appellant. Appellant threw his jacket at the 1 The officer's statement that the witness stated appellant fired at another man was inadmissable hearsay. -5- officer's head, to distract the officer while appellant reached for a gun. Appellant held the gun waist high and pointed it at Brown. Appellant was looking in Brown's direction. Brown fired first, preventing appellant from firing. Based on these facts, a reasonable trier of fact could find that appellant intended to escape from the armed police officers by firing the gun at Brown. Appellant took substantial steps towards causing physical harm to Brown by throwing the jacket, producing the gun, pointing it at Brown and looking in Brown's direction. See State v. Workman (1992), 84 Ohio App.3d 534. This case is distinguishable from State v. Clark (June 27, 1991), Cuyahoga App. No. 58270, unreported and State v. Houser (Aug. 2, 1990), Cuyahoga App. No. 57224, unreported. In those cases, the defendant pointed a gun at police officers who were attempting to arrest the defendant. Both these cases held that there was insufficient evidence that the defendant intended to shoot the officers. In those cases, there was no evidence the defendant threw an object at the police so he could produce a weapon. There was no evidence that the defendant was looking at the officers while pointing the gun. There was sufficient evidence in this case to show that appellant attempted to cause serious physical harm to appellant. The evidence was sufficient to support the conviction of felonious assault. Accordingly, appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -6- 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 ANN DYKE JUDGE 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 of decision by the .