COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72266 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAMONT NELSON : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 26, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE CR-341381 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR JEFFREY SAFFOLD (#0066151) ASSISTANT PROSECUTING ATTORNEY The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: THOMAS E. FRYE (#0033909) 22034 Lakeshore Blvd. Euclid, Ohio 44123 SPELLACY, P.J.: Defendant-appellant, Lamont Nelson ( appellant ), appeals the judgment of the trial court denying his Civ.R. 29 motion for -2- acquittal on his conviction for carrying a concealed weapon in violation of R.C. 2923.12. Appellant assigns the following error for our review: THE COURT COMMITTED PREJUDICIAL ERROR IN DENYING DEFENDANT'S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL ON THE COUNT OF CARRYING CONCEALED WEAPONS PURSUANT TO CRIMINAL RULE 29. Finding appellant's appeal lacks merit, the judgment of the trial court is affirmed. I. On August 6, 1996, appellant was issued a two-count indictment. Count I of the indictment charged appellant with felonious assault in violation of R.C. 2903.11 with a firearm specification and a violence specification. Count II of the indictment charged appellant with carrying a concealed weapon in violation of R.C. 2923.12. A jury trial was conducted and on February 13, 1997, appellant was found not guilty of felonious assault as charged in Count I of the indictment, but was found guilty of the lesser included offense of aggravated assault in violation of R.C. 2903.12 with a violence specification and a firearm specification under Count I. Appellant was also found guilty of carrying a concealed weapon in violation of R.C. 2923.12 as charged in Count II of the indictment. Pursuant to Crim.R. 29, appellant filed a motion for acquittal on both counts. On March 25, 1997, the trial court granted appellant's motion for acquittal as to Count I, but denied appellant's motion for acquittal on Count II, carrying a concealed -3- weapon. On that same date, appellant was sentenced for a term of one year on Count II. II. On June 13, 1996, appellant shot and injured Jarvis Boddie ( Boddie ) at Finast Supermarket located at East 72nd and 74th Streets and St. Clair, Cleveland, Ohio. Trial testimony revealed that appellant and Boddie were acquaintances who had been engaged in several altercations prior to the date of the shooting. Testimony at trial revealed that on the day of the shooting, appellant was walking with his children and Denise Williams, ( Williams ) Boddie's wife, in the vicinity of East 72nd Street, Cleveland, Ohio. At this time, Boddie, on his way to his mother's house, drove passed appellant, appellant's children and Williams. Boddie believed that appellant was having an affair with Williams. After dropping something off at his mother's house, Boddie and his brother went to find appellant and Williams. Upon spotting appellant and Williams, Boddie, who was driving the vehicle, parked the car on the corner and got out to talk to Williams. While Boddie was talking to Williams, appellant began reaching for something in an orange and blue bag. Williams pushed appellant away and Boddie and his brother jumped back into the vehicle, went down to the Eagle supermarket for some cigars, and drove around for approximately fifteen minutes. As they were driving around, Boddie spotted appellant alone in the Finast parking lot on St. Clair. Boddie and his brother pulled into the parking lot. Darrell Jenkins who was working as a -4- security officer at Finast testified at trial that he observed Boddie's car pull into and speed through Finast's parking lot. Jenkins further stated that he observed an individual, Boddie, exit from the passenger side of the vehicle and walk toward appellant who was also walking through the parking lot. As Boddie got close to appellant, Jenkins saw appellant drop a bag and raise his hand with what appeared to be a firearm. Jenkins further stated that Boddie put his hands in the air, took a step backward, turned around and began running when he heard a shot fired. Jenkins heard at least one and possibly two additional shots after Boddie had been shot. Boddie testified at trial that he was driving his vehicle and exited from the driver's side of the car to talk with appellant. As Boddie got closer, he observed appellant reach into a bag, drop the bag, turn toward him with a gun and point the gun at him. Boddie testified that he raised his hands, took a couple of steps backwards and began to run when he heard a shot and felt something in his back. Subsequently, Boddie's brother grabbed him and drove him to the hospital. Appellant testified at trial as well. Appellant's testimony revealed that prior to the time of the shooting on June 13, 1996, appellant, Williams and appellant's children had run into Boddie on the street. Although nothing occurred during this encounter, appellant testified that later that same day he ran into Boddie again and Boddie told appellant he was going to kill him and hurt him. Appellant proceeded to walk to Finast's parking lot when he -5- saw Boddie enter the parking lot. Boddie got out of the vehicle and approached appellant. Appellant stated that he dropped the bag he was carrying and then he saw Boddie reach behind his back. At this time, appellant testified that he grabbed his weapon, pulled it out and fired it. After firing the weapon, appellant walked to a friend's house where he planned on calling the police. Prior to making the call, however, the police arrived and arrested appellant. Appellant testified that he told the police where the gun was located and that he had the pistol in the bag that day because he was taking it to have it cleaned and oiled by a friend. III. In his sole assignment of error, appellant maintains the trial court erred when it denied his motion for acquittal as to Count II, carrying a concealed weapon. Crim.R. 29(A) states: The court on 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 such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of state's case. 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 proven beyond a reasonable doubt. City of -6- Rocky River v. Oakley (January 22, 1998), Cuyahoga App. No. 72065, unreported, citing State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. It is well established that 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. Oakley, supra. 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. State v. Jenks (1991), 61 Ohio St.3d 259. Consequently, a motion for acquittal will be sustained if the evidence presented is insufficient as a matter of law to permit a conviction. State v. Lebron (1994), 97 Ohio App.3d 155, 158. R.C. 2923.12(A) sets forth the elements necessary to prove an incident of carrying a concealed weapon as follows: (A) No person shall knowingly carry or have concealed on his or her person or concealed ready at hand, any deadly weapon or dangerous ordinance. R.C. 2923.12(C) provides affirmative defenses which may be asserted in order to overcome a conviction for carrying a concealed weapon. R.C. 2923.12(C)(2) provides: (C)(2) the weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon the actor or a member of the actor's family, or upon the actor's home, such as would justify a prudent person in -7- going armed. In the present case, testimony at trial revealed that on June 13, 1996, appellant was carrying an orange and blue bag containing a pistol. Testimony further revealed that appellant was walking in the vicinity of East 72nd Street and St. Clair when he was approached by Jarvis Boddie. At that time, appellant reached into a bag he was carrying, pulled out the pistol which was in the bag, pointed it at Boddie and shot Boddie in the back. Although testimony at trial revealed that appellant and Boddie had, on numerous occasions, been involved in altercations, appellant testified that on the day of the shooting, he was merely taking his gun to be cleaned and oiled. Appellant did not testify that he was carrying the gun for defensive purposes, or that he was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon himself or a member of his family. Based upon the foregoing and construing the evidence in a light most favorable to the state, the trial court did not err in denying appellant's motion for acquittal where the evidence presented at trial was such that reasonable minds could have reached different conclusions as to whether each material element of a crime had been proven beyond a reasonable doubt. We find, and the record supports the conclusion, that appellant knowingly carried, concealed and had ready at hand, a deadly weapon. Accordingly, appellant's sole assignment of error is without merit. Judgment affirmed. -8- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, J. and JAMES D. SWEENEY, J., CONCUR. LEO M. SPELLACY Presiding 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 .