COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71397 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND SHAWN A. DUKES : OPINION : Defendant-Appellant : : : : DATE OF ANNOUNCEMENT : JUNE 18, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court : Case No. CR-338394 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs-Jones, Esq. Cuyahoga County Prosecutor Daniel M. Margolis, Esq. Assistant Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Larry W. Zukerman, Esq. Zukerman & Associates 2000 East Ninth Street Suite 700 Cleveland, Ohio 44115 MICHAEL J. CORRIGAN, J.: Shawn Dukes, defendant-appellant, appeals from his conviction and sentence in the Cuyahoga County Court of Common Pleas, Criminal -2- Division, Case No. CR-338394, where a jury found defendant- appellant guilty of two counts of felonious assault with firearm, violence and peace officer specifications; three counts of aggravated assault, a lesser included offense of felonious assault, with the aforesaid specifications; and one count of drug abuse. Defendant-appellant assigns six errors for this court's review. Defendant-appellant's appeal is not well taken. On March 5, 1996, at approximately 2:45 P.M., members of the Cleveland Police Department's Drug and Strike Force were conducting an undercover drug buy-bust operation in Cleveland's Fourth District near East 105th Street. Detective Carlton Darrell and Detective Ronald James were dressed in plain clothes and operating an undercover vehicle while attempting to purchase illegal drugs from street dealers. There were two back-up undercover vehicles involved in the operation. The first vehicle was operated by Officer Moses DeJesus and Detective Dave Hewitt. The second vehicle was operated by Detectives Kelvin Barrow, Terrence Kennedy and John Anderson. These vehicles were to assist in any arrest of individuals who sold drugs to Detectives Darrell and James. It was Detective Darrell's responsibility to exit the vehicle and attempt drug purchases while Detective James drove the undercover vehicle. On the day in question, the detectives were slowly driving through the East 105th Street area when they observed defendant- appellant signaling to them in a manner generally associated with the sale of illegal drugs. Detective James stopped the vehicle and Detective Darrell walked toward defendant-appellant with a ten -3- dollar bill visible in his hand. Darrell yelled let me get a ten piece , referring to a specific amount of crack cocaine. Defendant-appellant responded by yelling back What you want? Who are you? , and pulled a previously concealed handgun from his waistband. Defendant-appellant pointed the handgun at Detective Darrell who began backing towards the car with his hands in the air saying that he did not want any trouble. Darrell backed approximately fifty feet to the car during which time defendant-appellant kept his weapon pointed directly at the officer. Once inside the car, Darrell told Detective James that defendant-appellant had a weapon and they should leave. At this time, defendant-appellant pointed his weapon at them and fired. The bullet missed the officers and came to rest in a kitchen cabinet that was in the home of Elizabeth Johnson, who resides at 3581 East 104th Street. The undercover officers fled the scene. Officer DeJesus and Detective Hewitt in the first undercover back-up vehicle saw defendant-appellant fire the shot at Darrell and James and immediately requested assistance over the police radio. DeJesus and Hewitt pursued defendant-appellant for a short period of time in their vehicle and then on foot. Detectives Barrow, Kennedy and Anderson responded to the call for assistance and pursued defendant-appellant in an unmarked police vehicle. They saw defendant-appellant on Union Avenue and pulled their vehicle in front of him to cut him off. Kennedy left the vehicle with his service revolver drawn. Barrow remained in the -4- passenger seat with his weapon drawn and his badge clearly visible around his neck. Barrow identified himself twice as a policeman and ordered defendant-appellant to stop. Defendant-appellant responded by pointing his weapon directly at Barrow who then fired his weapon at defendant-appellant and missed. Defendant-appellant went down unhurt and was taken into custody. During the arrest, crack cocaine was discovered on defendant-appellant. Defendant-appellant was indicted by the Cuyahoga County Grand Jury on May 7, 1996 in a seven count indictment. Counts one through six were for felonious assault in violation of R.C. 2903.11 with firearm, violence and peace officer specifications. Each count pertained to a different police officer involved in the incident. Count seven was for drug abuse in violation of R.C. 2925.11. The fourth count of the indictment was eventually dismissed leaving six remaining counts. A jury trial began on August 19, 1996. At the conclusion of the state's case-in chief, defendant-appellant moved for judgment of acquittal pursuant to Crim.R. 29. The motion was renewed at the close of all the evidence. Defendant-appellant's motion was denied by the trial court. Defendant-appellant's case consisted of the testimony of Kim Robinson, an acquaintance, and himself. Ms. Robinson testified that defendant-appellant had been the victim of a prior robbery and an assault in the two year period before the underlying incident. Defendant-appellant testified that, on the day in question, he had just purchased some crack cocaine for his personal use when he -5- was stopped while walking along the street by two unknown individuals. Fearing for his safety, defendant-appellant pulled a handgun from his waistband and aimed it at the individual that had exited the vehicle. Defendant-appellant maintained that he only fired the weapon to scare the individuals away and intentionally aimed over the car. Defendant-appellant admitted that this was the first time in his life he had fired a gun. (T. 586-589, 614). Defendant-appellant requested a jury instruction on the offense of aggravated assault as a lesser included offense as to all five remaining counts of felonious assault. Defendant-appellant also requested a self-defense jury instruction. The trial court included the jury instruction on aggravated assault as a lesser included offense of felonious assault only as to counts three, four and five of the indictment (Detectives Kennedy, Anderson and Barrow) and refused to include the jury instruction on self- defense. The jury returned a verdict of guilty on counts one and two, felonious assault of Detectives Darrell and James, and found all three specifications as to the first two counts. The jury returned verdicts of not guilty as to the three remaining felonious assault counts (Detectives Kennedy, Anderson and Barrow) but guilty of the lesser included offenses of aggravated assault with the attendant specifications. Defendant-appellant was also found guilty of drug abuse. On August 28, 1996, the trial court sentenced defendant- appellant. On October 8, 1996, Defendant-appellant filed a timely -6- notice of appeal from his conviction and sentence in the trial court. Defendant-appellant's first assignment of error states: I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIM.R. 29(A) WITH RESPECT TO COUNTS ONE THROUGH FIVE IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE CONSTITUTION OF THE STATE OF OHIO. Defendant-appellant maintains, through his first assignment of error, that the evidence presented by the state regarding the element of attempt to cause physical harm was insufficient to sustain a conviction on the charged offenses in counts one through five of the indictment. Defendant-appellant separates the first five counts into two groups. The first group consists of counts three, four and five relating to the aggravated assault of Detectives Kennedy, Anderson and Barrow. The second group consists of counts one and two relating to the felonious assault of Detectives Darrell and James. It is defendant-appellant's position that, as to counts three, four and five, the mere pointing of a deadly weapon without additional evidence regarding the actor's intent, is insufficient to support his convictions on the underlying offenses. Defendant- appellant relies upon State v. Brooks (1989), 44 Ohio St. 3d 185 in support of his contention. Similarly, defendant-appellant argues that, as to counts one and two, there was no evidence presented to demonstrate that Detectives Darrell and James were actually in -7- danger since they were not in the line of fire when defendant- appellant fired his weapon at them. State v. Mills (1992), 62 Ohio St. 3d 357. For these reasons, defendant-appellant maintains that the trial court should have granted the Crim.R. 29 motion for judgment of acquittal as to the first five counts of the indictment. In State v. Jenks (1991),61 Ohio St. 3d 259, the Ohio Supreme Court reexamined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence: An appellate courts 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 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.) State V. Jenks, supra, paragraph two of the syllabus. Crim.R. 29(A), which establishes the parameters for granting a motion for judgment of acquittal, provides in pertinent part: *** The court on a motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of each offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. In addition, in State v. Bridgeman (1978), 55 Ohio St. 2d 216, the Supreme Court established that a trial court may not grant a Crim.R. 29(A) motion for acquittal where the evidence adduced at trial shows that reasonable minds can reach different conclusions -8- as to whether the elements of a charged offense have been proven beyond a reasonable doubt: Pursuant to Crim.R. 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 material element of a crime has been proved beyond a reasonable doubt. In this case, both direct and circumstantial evidence was presented by the state in an attempt to establish the elements of the offense of felonious assault. R.C. 2903.11 set forth the elements of the offense of felonious assault. The statute provides in pertinent part: (A) No person shall knowingly: * * * (2) Cause or attempt to cause physical harm by means of a deadly weapon or dangerous ordinance ***. (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 *** felonious assault is an aggravated felony of the first degree. R.C. 2923.02(A) defines attempt as follows: 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. Defendant-appellant maintains that the state failed to offer sufficient evidence to demonstrate the element of attempt to cause physical harm to the police officers. However, a review of the record fails to support defendant-appellant's assertion. Counts three, four and five of the indictment relating to the felonious assault of Detectives Kennedy, Anderson and Barrow were supported -9- with sufficient evidence to survive a motion for judgment of acquittal. Not only did defendant-appellant point his weapon at the officers while they were attempting to apprehend him, but defendant-appellant took this action shortly after firing the weapon at two undercover police officers and fleeing the scene. Clearly, defendant-appellant's actions, when viewed in context of the police officers' knowledge at the time, demonstrate an actual intent to cause physical harm to the officers identified in counts three, four and five of the indictment. State v. Thompson (Nov. 10,1997), Franklin App. No. 97AP04-489, unreported. Similarly, counts one and two of the indictment relating to the felonious assault of Detectives Darrell and James were also supported by sufficient evidence. Defendant-appellant maintains that he purposely fired the weapon over the heads of Detectives Darrell and James and therefore, did not attempt to cause physical harm to the officers. However, Ohio court's have held that the mere act of firing a weapon randomly at victims arguably within range of the shooter is sufficient to demonstrate actual intent to cause physical harm. State v. Phillips (1991), 75 Ohio App. 3d 785, 600 N.E. 2d 825; State v. Owens (1996), 112 Ohio App. 3d 334, 678 N.E. 2d 956; State v. Perry (May 12, 1994), Cuyahoga App. No. 65455, unreported. Given the fact that defendant-appellant admittedly fired his weapon in the direction of Detectives Darrell and James, it is apparent that sufficient evidence was presented by the state to overcome defendant-appellant's motion for judgment of acquittal on counts one and two of the indictment. -10- Defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: I. THE PROSECUTOR'S REMARKS DURING THE STATE'S REBUTTAL CLOSING ARGUMENT CONSTITUTED PREJUDICIAL MISCONDUCT AND/OR THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO SUSTAIN APPELLANT'S NUMEROUS OBJECTIONS DURING THE PROSECUTOR'S CLOSING ARGUMENT EACH OF WHICH DEPRIVED APPELLANT OF A FAIR TRIAL IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION SIXTEEN OF THE OHIO CONSTITUTION. Defendant-appellant argues that, during the state's rebuttal closing argument, the prosecuting attorney made numerous improper and prejudicial comments over defense objection that constituted prosecutorial misconduct. Specifically, defendant-appellant maintains that the state's reference to Elizabeth Johnson, the woman who lived in the home defendant-appellant fired a bullet into, as a victim was improper since she was not subject to any counts of the indictment and such comments could only be intended to inflame the passions and prejudices of the jury. Defendant- appellant argues further that the state improperly implied that defendant-appellant committed the crimes of felonious assault the instant he armed himself with a handgun. (T.678-682). It is defendant-appellant's position that these comments were inappropriate and prejudicial. Generally, conduct of a prosecuting attorney at trial shall not be grounds for reversal unless the conduct deprives the defendant of a fair trial. State v. Apponovitch (1987), 33 Ohio St. 3d 19; State v. Papp (1978), 64 Ohio App. 2d 203. An appellant -11- is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St. 3d 13. In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury would have found the appellant guilty. State v. Maurer (1984), 15 Ohio St. 239, 266; State v. Dixon (March 13, 1997), Cuyahoga App. No. 68338, unreported. The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed. 2d 78,87. Notwithstanding defendant-appellant's contentions, this court does not feel that the prosecutor's statements during rebuttal closing argument can be characterized in any way as misconduct which deprived defendant-appellant of his constitutional right to a fair trial. As a general rule, a prosecutor is entitled to a certain degree of latitude during closing argument. State v. Brown (1988), 38 Ohio St. 3d 305; State v. Liberatore (1982), 69 Ohio St. 2d 583,589. Moreover, closing arguments must be viewed in their entirety to determine whether the disputed remarks were prejudicial. State v. Mann (1993), 93 Ohio App. 3d 301, 312; State v. Burgun (1978), 56 Ohio St. 3d 354. In this case, a review of the prosecutor's closing argument in its entirety discloses no prejudice to any substantial rights of defendant-appellant. All the remarks of which defendant-appellant -12- complains were based upon direct and circumstantial evidence presented at trial. It is not error for the prosecutor to argue what he believes the evidence has shown and the reasonable inferences which can be drawn therefrom. State v. Richey (1992), 64 Ohio St 3d 353,362. In addition, after a review of the totality of the record, it is apparent that, absent the prosecutor's comments in this case, the jury would have found defendant- appellant guilty of the indicted offenses. Maurer, supra, State v. Vrona (1988), 47 Ohio App. 3d 145, 547 N.E. 2d 1189. For the foregoing reasons, this court finds that defendant- appellant was not deprived of his constitutional right to a fair trial and therefore his second assignment of error is not well taken. Defendant-appellant's third assignment of error states; THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY INSTRUCTING THE JURY THAT YOUR DUTY IS CONFINED TO THE DETERMINATION OF THE GUILT OR INNOCENCE OF THE DEFENDANT IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS TO A JURY VERDICT, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. Defendant-appellant maintains that the trial court committed plain error by instructing the jury that its duty was confined to a determination of defendant-appellant's guilt or innocence. It is defendant-appellant's position that the disputed instruction served to lessen the state's burden of proof beyond a reasonable doubt -13- through the implication that defendant-appellant had a duty to prove his innocence. In State v. Bell ( May 26, 1994), Cuyahoga App. No. 65356, unreported, this court, in dealing with the identical jury instruction, determined that the instruction does not constitute reversible error where the trial court otherwise fully and accurately instructs the jury on the presumption of innocence and the state's burden of proof. See also, State v. McKnight (Mar. 16, 1995), Franklin App. No. 94APA08-1242, unreported. A review of the trial court's jury instructions in this case clearly demonstrates that the trial court properly instructed the jury on both the state's burden of proof as well as the presumption of innocence. Therefore, the trial court did not commit reversible error by instructing the jury as defendant-appellant maintains nor does the disputed instruction rise to the level of plain error since the ultimate outcome of the trial would not have been different but for the disputed instruction. State v. Long (1978), 53 Ohio St. 2d 91, 97. Defendant-appellant's third assignment is not well taken. Defendant-appellant's fourth assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY REFUSING TO INSTRUCT THE JURY ON THE AFFIRMATIVE DEFENSE OF SELF DEFENSE IN VIOLATION OF THE APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. -14- Defendant-appellant argues, through his fourth assignment of error, that he introduced more than sufficient evidence to establish the affirmative defense of self-defense and the trial court erred in refusing to instruct the jury accordingly. Defendant-appellant raises this argument only as it relates to counts three, four and five of the indictment which involved Detectives Kennedy, Anderson and Barrow. Self-defense is considered an affirmative defense, which is a complete excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence. R.C. 2901.05(C)(2). See, also, State v. Nolton (1969), 19 Ohio St. 2d 133, 135, 249 N.E. 2d 797. It is well established in Ohio that a defendant may be required to prove self-defense by a preponderance of the evidence. Martin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed. 2d 267, affirming State v. Martin (1986), 21 Ohio St. 3d 91. A trial court is not required to instruct the jury on self- defense in every case where it is requested. The defendant must first present sufficient evidence at trial to warrant such an instruction. When such evidence is presented, the trial court must view that evidence in a light most favorable to the accused to determine whether it is adequate to raise the issue of self- defense. If the evidence set forth is legally insufficient to raise the issue, the trial court will have no duty to instruct the jury on the essential elements of self-defense, but rather, will remove the issue of self-defense from the jury's consideration. -15- State v. Robinson (1976), 47 Ohio St. 2d 103, 112-113, 351 N.E. 2d 88. In State v. Robbins (1979), 58 Ohio St. 2d 74, 388 N.E. 2d 755, the Supreme Court set forth the following elements which must be established by an accused when asserting a claim of self- defense: To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. Id. at 87. In this case, defendant-appellant maintains that he presented ample evidence to establish the elements of self-defense. Specifically, defendant-appellant maintains that he had been the victim of two prior assaults in the recent past, was approached on the day in question by a stranger who he feared was going to rob him. Defendant-appellant then fired his weapon at the stranger's automobile to scare the stranger away. Defendant-appellant fled only to be confronted by three more individuals who, once again, put defendant-appellant in fear for his life. However, defendant-appellant fails to state that at the time he was allegedly confronted by the three individuals, they had identified themselves as police officers on two separate occasions and at least two of the detectives were displaying their police badges prominently. Clearly, defendant-appellant failed to adequately demonstrate that, under the present circumstances, he was not at -16- fault in creating the situation by indiscriminately firing his weapon earlier and that he had a bona fide belief that he was in imminent danger of death or great bodily harm from which the only means of escape was the use of deadly force. Accordingly, the trial court did not err in refusing to instruct the jury on the affirmative defense of self-defense. A trial court is not required to instruct the jury where there is insufficient evidence to support the specific issue. Riley v. Cincinnati (1976), 46 Ohio St. 2d 287, 348 N.E. 2d 135. Defendant-appellant's fourth assignment of error is not well taken. Defendant-appellant's fifth assignment of error states: V. THE JUDGMENTS OF CONVICTION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. Defendant-appellant argues, through his fifth assignment of error, that his convictions of the offenses of felonious assault and aggravated assault are clearly against the manifest weight of the evidence. It is defendant-appellant's position that the evidence demonstrates that he did not attempt to cause physical harm to any of the police officers since he deliberately fired his weapon over the heads of Detectives Darrell and James and did not demonstrate an intent to injure Detectives Kennedy, Anderson and Barrow. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence -17- independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to re-litigation. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was 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 -18- such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Moreover, it is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence we must accord due deference to those determinations made by the trier of fact. As this court previously determined in its disposition of defendant-appellant's first assignment of error, the verdict in counts one and two of the indictment was supported by sufficient evidence and was not, in any way, against the manifest weight of the evidence. The mere act of firing a weapon in the general direction of individuals arguably within range of the shooter is sufficient to constitute an attempt to cause physical harm to another. State v. Gregory (1993), 90 Ohio App. 3d 124,131, 628 N.E. 2d 86, 91, State v. Cartellone (1981), 3 Ohio App. 3d 145, 148, 444 N.E. 2d 68, 72. As to counts three, four and five, defendant- appellant once again ignores the fact that he did not merely point his weapon at Detectives Kennedy, Anderson and Barrow but pointed the weapon soon after he had fired the same weapon at two other police officers. From these facts, defendant-appellant's intent to attempt to cause physical harm to the three detectives can be readily demonstrated. Brooks, supra. Defendant-appellant's fifth assignment of error is not well taken. Defendant-appellant's sixth and final assignment of error states: -19- VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY CONVICTING AND SENTENCING APPELLANT ON TWO COUNTS OF FELONIOUS ASSAULT AND THREE COUNTS OF AGGRAVATED ASSAULT WHEN SAID COUNTS CONSTITUTED ALLIED OFFENSES OF SIMILAR IMPORT IN VIOLATION OF R.C. 2941.25 AND APPELLANT'S STATE AND FEDERAL RIGHTS TO BE FREE FROM DOUBLE JEOPARDY AND TO DUE PROCESS OF LAW. Defendant-appellant maintains that he was improperly convicted and sentenced on both offenses of felonious assault and aggravated assault. Defendant-appellant contends that these offenses constituted allied offenses of similar import pursuant to R.C. 2941.25 since the state failed to establish a separate animus for each offense. In State v. Blankenship (1988), 38 Ohio St. 3d 116, 117, 526 N.E. 2d 816, 817, The Supreme Court set forth the test to determine whether two or more offenses constitute allied offenses of similar import: Under R.C. 2941.45, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. In the case sub judice, a review of the record demonstrates that defendant-appellant was properly convicted and sentenced on all five counts contained in the indictment. It is well established that where a defendant commits the same offense against different victims during the same course of conduct, a separate -20- animus exists for each offense. State v. Gregory, supra, State v. Phillips, supra. Therefore, it is apparent that defendant- appellant possessed a separate animus for each offense and could be convicted and sentenced accordingly. Defendant-appellant's sixth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -21- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. JOSEPH J. NAHRA, P.J. AND TERRENCE O'DONNELL, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .