COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72403 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION KACEY LEONARD : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-348048. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Michael A. Sullivan Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Michael T. Judy, Esq. 155 Main Street Chardon, Ohio 44024 -2- SWEENEY, JAMES D., J.: Defendant-appellant Kacey Leonard appeals from his conviction for felonious assault on a peace officer, in violation of R.C. 2903.11, and having a weapon while under disability, in violation of R.C. 2923.13, both with firearm specifications. The appellant was sentenced to a term of five to twenty-five years incarceration for felonious assault, with an additional three years for the firearm specification, to be served prior to and consecutively with the sentence. A term of one and one-half years to five years incarceration was imposed for having a weapon under disability, plus the mandatory three-year sentence required for the firearm specification. The sentences were ordered to run concurrently. On May 23, 1996, at approximately 2:00 a.m., Cleveland Heights Police Officer David Bartee received an assignment to proceed to the Sud-Z Laundromat (Sud-Z) on Noble Road to investigate a disturbance. When Officer Bartee arrived at the scene, he pulled to the curb and spoke to Freedman Mitchell, Tiffany Donner, Julian Lesure, and Richard Lesure. The witnesses indicated that the appellant, who was walking north on Noble Road, had asked them for money and/or drugs. It was also indicated that the appellant had a weapon. The appellant, intercepted by Officer Bartee, complied with he officer's request to place his hands on the police cruiser's runk. Officer Bartee began his pat-down search of the appellant, ut prior to its completion, the appellant pushed him away and fled -3- he scene. As the appellant ran down Greyton Road, Officer Bartee ursued and repeatedly called to the appellant to stop. When officer Bartee was two houses away from the appellant, a and gun was clearly visible in the appellant's right hand. The pp ellant turned, facing towards Officer Bartee, with his arm xte nded from his body. Since the appellant did not comply with ffi cer Bartee's order to drop the weapon, the officer drew his wn weapon and fired at the appellant. The shot missed and the ppella nt continued his flight. Officer Bartee testified that he oes not know whether or not the appellant discharged his weapon. fficer Bartee returned to his vehicle and called for assistance. he police were unable to locate the appellant. On cross-examination, the appellant challenged Officer artee 's credibility by questioning him regarding discrepancies etween the testimony elicited on direct and the testimony at the reliminary hearing. At trial, the officer testified that the ppellant pointed a gun at him. The jury learned that during the relim inary hearing, Officer Bartee testified that appellant did ot hold a gun on him. The officer explained to the jury that hen the appellant turned towards him he was raising the gun, but as not given a chance to proceed (T. 47 - 49, 51). At trial, Officer Bartee testified that the appellant was ever more than the distance of a house away from him. The officer as cross-examined on this point, because at the preliminary earing he stated: He was a couple houses in front of me . . . Prelimin ary Hearing T. 10). Officer Bartee was also cross- -4- xamined regarding his description of the pat-down search. On ir ect examination, Officer Bartee testified that while the ppel lant had placed his hands on the trunk of the cruiser as irected, he had not physically touched the appellant prior to the ime the appellant fled the scene. During cross-examination it was licited that at the preliminary hearing Officer Bartee testified: And as I was patting him down, I got to his stomach area. He rabbed with his right hand pushed me away and ran north on Gray as t on Grayton (sic). (Preliminary Hearing T. 9.) The entire ranscript of the preliminary hearing was admitted as evidence. Freedman Mitchell, Elise Thomas and Tiffany Donner testified n behalf of the prosecution. Mitchell testified that he was in ront of the Sud-Z with Richard Lesure, Julian Lesure, and Tiffany onner. The appellant approached them and first requested drugs r money. When he was refused, he demanded money. Mitchell bserved that the appellant had something heavy in his pants ocket, and he took it to be a gun (T. 81). During this onve rsation, Julian Lesure entered the Sud-Z and telephoned the olice. The appellant followed Lesure into the laundromat. itch ell testified that he observed the appellant push Julian. hen the two were back outside, Mitchell wanted to fight the ppellant, but was restrained by Julian who stated that the ppellant had a gun. As the police arrived, the appellant was walking away from the ud- Z. Mitchell pointed to the appellant as the source of the lter cation. Mitchell testified that he observed the pat-down -5- earc h of the appellant, the appellant's flight, the appellant aking a shot at the officer, and the officer's shot at the ppellant. Elise Thompson was babysitting in an apartment with a view verlooking Greyton and Noble Roads. She is involved with Freedman i tchell and she knows both Julian and Richard Lesure. When she e ard arguing from outside, she walked to the window. She, too, bserved the officer pat down the appellant, the appellant fleeing he scene, the ensuing chase, the appellant's shot at the officer, nd the officer's shot at the appellant. Prese nt within the group in front of the Sud-Z was Tiffany on ner. When she arrived that evening the appellant was already resent and was asking for money. Ms. Donner testified that a erbal confrontation occurred between Mitchell and the appellant nd that the appellant made verbal threats to the group that he oul d shoot them. Ms. Donner testified that the appellant ndicated that he possessed a gun. She observed a portion of the un sticking out of the appellant's pants. The appellant asserts two assignments of error. The first assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT DENIED APPELLANT'S MOTION FOR A SEPARATE TRIAL ON THE CHARGE OF POSSESSION OF A WEAPON WHILE UNDER DISABILITY. In the first assignment of error, the appellant asserts that he court's refusal to sever the charges of having a weapon under isability and felonious assault was prejudicial because the jury as informed, despite appellant's choice to exert his right against -6- elf incrimination and refrain from testifying, that he had a prior onviction. Crim.R. 8 provides that offenses of the same or similar haracter, and those based on two or more acts or transactions onnected together or constituting parts of a common scheme or lan, or those that are part of a course of criminal conduct may e joined. State v. Mills (1992), 62 Ohio St.3d 357. Joinder of ffen ses is favored because it conserves resources by avoiding uplic ation inherent in multiple trials and minimizes the ossibility of incongruous results that can occur in successive ria ls before different juries. Mills, supra, citing to State v. o tt (1990), 51 Ohio St.3d 160; State v. Hamblin (1988), 37 Ohio t.3d 153. It is the appellant's burden to demonstrate prejudice rom the joinder as required by Crim.R. 14. Id. at 158. Wher e a defendant fails to renew a motion to sever at the lose of the State's case or at the conclusion of all of the v idence, any error is waived. State v. Miller (1995), 105 Ohio pp.3d 679; State v. Cisternino (Oct. 27, 1994), Cuyahoga App. No. 6387, unreported; State v. Green (May 16, 1991), Cuyahoga App. No. 850 5, unreported. In addition, where a defendant stipulates to he underlying charge, the issue is waived. State v. Christian June 13, 1991), Cuyahoga App. No. 58660, unreported. The appellant herein failed both to renew his motion to sever he charges and at trial the appellant stipulated to the underlying onviction, thus waiving any error. -7- Even if the appellant had preserved any error, he has failed o demonstrate any actual prejudice as required under Crim.R. 14. n Lott, supra, the court outlined both the appellant's burden of howing prejudice and the two methods available to the prosecutor o negate claims of prejudicial joinder. The first method of egating prejudice is the other acts test, under which the State ay argue that the evidence could have introduced pursuant to vid.R. 404(B). The second method is the joinder test. Under his method, the State is merely required to show that evidence of ach crime joined at trial is simple and direct. See Lott at 163. ee also State v. Wiles (1991), 59 Ohio St.3d 71, 77. The joinder test requires that the evidence of the joined ffense s be simple and direct, so that a jury is capable of egregatingthe proof required for each offense. Mills, supra, at 62. The rule seeks to prevent juries from combining the evidence o convict of both crimes, instead of carefully considering proof ffered for each separate offense. Id. When considering the same charges as are present in the case efore this court, the court in State v. Johnson (Jan. 16, 1996), linton App. No. CA95-07-018, unreported, found, under the simple nd direct test, it was unlikely that the jury would have onsidered evidence of the weapons offense as corroborative of the ther charges. The evidence that appellant knowingly possessed a eapon while under a legal disability is separate and distinct from he evidence relating to the felonious assault charge. Johnson, upra. This court has held that the refusal to sever a weapons -8- harg e from the charges of aggravated robbery, kidnapping, and oss ession of a dangerous ordnance was not error, because the roof presented as to each charge was direct and uncomplicated, hereby enabling the jury to segregate the relevant proof. State . Webb (Jan. 2, 1992), Cuyahoga App. Nos. 59544, 59626, 59627, nreported. The appellant was not prejudiced by the court's refusal to ever the charges. The appellant's first assignment of error is overruled. The appellant's second assignment of error: THE EVIDENCE INTRODUCED AT TRIAL IS IN SUFFICIENT TO PROVE THE ELEMENTS OF FELONIOUS ASSAULT AND THE VERDICT RENDERED IN THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The appellant argues that because the testimony of Officer artee is incredible, conflicted, and uncertain, the record does ot support the verdict. The appellant asserts that the onside rable passage of time between the preliminary hearing and he trial renders the testimony unreliable. Pointing to the iscrepancies between Officer Bartee's testimony at the hearing and t trial; i.e., whether or not the physical search of the appellant ad begun prior to the appellant's flight, whether or not the ppella nt pointed a gun at the officer, whether or not the ppellant fired a shot, whether the handgun was clearly visible ven though it was dark outside, and the distance between the ppellant and the officer at the time Officer Bartee fired his eapon, the appellant argues that the substance of Officer Bartee's -9- estimony should not be accepted as true. The appellant also uestions the evidence given by Freedman Mitchell, Elise Thompson nd Tiffany Donner. The appellant asserts that the verdict was insufficient to uppor t a conviction for felonious assault. The appellant bases his assertion on the allegedly vague and inconsistent testimony at rial regarding the appellant's possession and use of a gun. The Ohio Supreme Court has recently clarified the distinction etween reviewing questions of manifest weight of the evidence and uestio ns of the sufficiency of the evidence. In State v. hompkins (1997), 78 Ohio St.3d 380, the court found that with espect to sufficiency of the evidence, in essence, sufficiency is test of adequacy. Whether the evidence is legally sufficient to ustain a verdict is a question of law. Id. at 386. In addition, conviction based upon legally insufficient evidence is a denial f due process. Thompkins, supra, citing to Tibbs v. Florida 1982), 457 U.S. 31, 45. As Justice Cook succinctly stated in the on currence of Thompkins, a challenge to the sufficiency of videnc e supporting a conviction requires a court to determine he ther the State has met its burden of production at trial. ourts are to assess not whether the State's evidence is to be elieve d, but whether, if believed, the evidence against a efendant would support a conviction. By contrast, the Thompkins court illuminated its test for etermining the manifest weight of the evidence by citing to lack's Law Dictionary (6 Ed.1990): -10- Weight of the evidence concerns `the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party hav ing the burden of proof will be entitled to their ver dict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustain s the issue which is to be established before them. Weight is not a question of mathematics, but dep ends on its effect in inducing belief.' (Emphasis added.) Black's, supra, at 1594. Thus, as the concurring opinion noted, when deciding whether conviction is against the manifest weight of the evidence, an ppe llate court determines whether the State has appropriately arried its burden of persuasion. The only special deference iven in a manifest weight review attaches to the conclusion eached by the trier of fact. Thompkins (Cook, J., concurring) iting to State v. DeHass (1967), 10 Ohio St.2d 230. In the case sub judice, the appellant was convicted of both elonious assault and having a weapon while under a disability. he Revised Code defines felonious assault in R.C. 2903.11: (A) No person shall knowingly: (1) Cause serious physical harm to another or to another's unborn; (2) Cause or attempt to cause physical harm to anothe r or to another's unborn by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. (B) Whoever violates this section is guilty of felonious assault, a 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 a felony of the first degree. In Ohio, no person shall knowingly acquire, have, carry, or se any firearm or dangerous ordnance under a disability. See R.C. 923.1 3. The appellant stipulated to his prior conviction at rial. -11- The record in this case unequivocally indicates that Officer artee investigated a disturbance, the witnesses indicated that the erpetrator was the appellant and that appellant was in possession f a weapon, the appellant fled in the midst of a pat-down search, he appellant was ordered to stop but did not, the appellant turned owards the officer with his arm extended from his body, and that he appellant had a weapon in his hand. Such evidence, if believed y the jury, was sufficient to prove each essential element of the rimes beyond a reasonable doubt. The State met its burden of roduction. Acknowledging that it is possible to read into the transcripts ome discrepancies between the testimony of Officer Bartee at the reliminary hearing and his testimony during trial does not require hi s court to find that the State failed to meet its burden of ersuasion. The appellant's counsel ably cross-examined each itness, and in particular, drew to the attention of the jury the ery discrepancies alleged in Officer Bartee's testimony. Since he weight to be given evidence and the credibility of witnesses re primarily for the trier of fact, it is evident that the jury hose to believe that Officer Bartee observed the appellant with a eapon drawn and preparing to shoot. The appellant's convictions re supported by the weight of the evidence. The appellant's second assignment of error is overruled. Judgment affirmed. -12- It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecting the Common Pleas Court to carry this judgment into xecuti on. The defendant's conviction having been affirmed, any ail pending appeal is terminated. Case remanded to the trial ourt for execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. IMOTHY E. McMONAGLE, P.J., and ICHAEL J. CORRIGAN, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will e journalized and will become the judgment and order of the court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for ev iew by the Supreme Court of Ohio shall begin to run upon the ournal ization of this court's announcement of decision by the .