COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73183 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : HARRY BRISCOE : OPINION : Defendant-Appellant : Date of Announcement of Decision: SEPTEMBER 3, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-350212 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JAMES VALENTINE, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender DANIEL SCULLY, Assistant Public Defender 100 Lakeside Place 1200 West Third St., N.W. Cleveland, Ohio 44113-1569 -2- JAMES M. PORTER, P.J.: Defendant-appellant HarryBriscoe appeals from his convictions following a jury trial for felonious assault (R.C. 2903.11) and unlawful possession of a dangerous ordinance, to wit, a sawed-off shotgun (R.C. 2923.13). Defendant contends his convictions were against the manifest weight of the evidence. We find no error and affirm. Warrensville Heights Police Officer Sean Patsolic testified at trial that on March 7, 1997 at 2:05 a.m., he initiated a traffic stop of a Monte Carlo that was being operated without a front license plate. The car eventually pulled over on Caroline Drive, an entrance street into the Banbury Village Apartments. The car contained three occupants. Officer Patsolic noticed that the front seat passenger appeared to be fumbling around as the car was coming to a stop. When the car stopped, the front passenger exited at the same time as Officer Patsolic exited his car. Patsolic immediately recognized the emerging passenger as defendant Harry Briscoe. Patsolic said, Hey, Harry stop. However, instead of stopping, defendant began walking away from the vehicle and then began jogging slowly. As he jogged, defendant reached into the front of his waistband and kept looking back over his shoulder at the officer. When he reached the corner of the apartment building, approximately 257 feet from the officer, defendant turned around, -3- producing a shiny object in his right hand. According to the officer, defendant leveled the weapon, aimed it at Patsolic and began firing. Defendant fired three or four shots as Patsolic ducked behind his police cruiser. He then ran around the corner of the building out of the officer's sight. Patsolic called for assistance while keeping an eye on the other two individuals in the Monte Carlo. He subsequently heard one or two more shots fired from behind the apartment building. Officer Patsolic testified that, at the time of this incident, the parking lot that defendant trotted through was well lit by two light poles. All of the parked cars were on one side of the lot, and there was nothing to obstruct the officer's view of defendant as he aimed the gun at him. Det. Donald Spera testified to his follow-up investigation of the shooting episode. The morning after, he took photographs of the scene and searched unsuccessfully for shell casings. He arrested defendant on April 16, 1997 at his girlfriend's apartment in Bedford Heights. Spera and other officers located defendant in a back bedroom of the girlfriend's apartment. A loaded sawed-off shotgun was found mostly under the mattress of the bed next to which defendant was standing. When defendant saw that the officers had found the sawed-off shotgun, he said, Oh, that doesn't work. Defendant also had clothing in the bedroom where the gun was found. Lt. Dale Pitra testified that on April 17, 1997, defendant gave written and oral statements to him and Det. Spero. After being Mirandized, defendant stated that he had been the person who -4- had fired the gunshots in question, and that he did so with the intention of making a reputation for himself. Defendant stated that the gun he had possessed was a small shiny wheel gun, street slang for a revolver, which he said had been subsequently stolen. Defendant became concerned during the traffic stop because he had the gun on his person. Defendant claimed that he left the area of the car and that when he reached the far corner of the apartment building he turned and fired three shots in the air. Defendant wrote out a brief statement about these events. Lt. Pitra also testified that he witnessed the test firing of the sawed-off shotgun recovered at the time of defendant's arrest and that it was operable. He also testified that the length of the sawed-off barrel was measured at fourteen and one half inches. Lekendrick Robinson testified for the defense. He was the driver of the Monte Carlo that was stopped by Patsolic. He stated that at the time of the stop he was on his way to drop off Toriano Bobbitt, the back seat passenger of the car who had passed out drunk. Robinson testified that when he stopped the car, defendant got out of the passenger seat and walked away. Robinson said that he did not hear any shots. Toriano Bobbitt also testified for the defense. He testified that on the night of March 7, 1997, he had been at a tavern with defendant and Robinson. When the three left the tavern in Robinson's car, defendant rode in the front passenger seat while Bobbitt slept in the back seat. Bobbitt testified that he had no knowledge of the events surrounding the traffic stop because he was -5- asleep at the time of the initial stop and was awakened by the police officer's order to Put your hands up. He testified that defendant had already left the car when he woke up. Appellant's sole assignment of error states as follows: I. THE APPELLANT'S CONVICTION FOR FELONIOUS ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS, HE HAS BEEN DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF OHIO. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: 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 having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 -6- OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). Moreover, the weight of the evidence and the credibility of witnesses are matters primarily for the trier of fact; a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the State has proved the offense beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; State v. Eley (1978), 56 Ohio St.2d 169; see, also, State v. Jenks (1991), 61 Ohio St.3d 259. If there is substantial evidence in the record that, if believed, would convince the average mind of defendant's guilt beyond a reasonable doubt, a court of appeals may not reverse a conviction as against the manifest weight of the evidence. State v. Walker (1978), 55 Ohio St.2d 208, 213. Under R.C. 2903.11, the elements of felonious assault are: (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 another or to another's unborn by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. A deadly weapon is defined in R.C. 2923.11(A) as: -7- [A]ny instrument, device, or thing capable of inflicting death, and designed or specifically adapted for use as a weapon, or possessed, carried, or used as a weapon. Defendant asserts that even if defendant shot in Patsolic's direction, he intentionally aimed away from him and therefore did not attempt to cause any physical harm to the officer as required for felonious assault. Defendant claims that Officer Patsolic's testimony about the events in question are incredible. He claims that it was impossible for the officer to perceive, from a distance of 257 feet and at night, that defendant was aiming and firing the gun directly at him rather than over his head. We note that the jury in this case had the opportunity to view photographs and diagrams of the scene of the shooting. These exhibits showed that defendant was facing Patsolic at the time of the shooting with the lights from the parking lot shining on the front of his body. Furthermore, Patsolic testified that I believe [the shots] were aimed at me ; the weapon was leveled and aimed at him; and the muzzle flashes were in my direction. The defendant, on the other hand, stated that the shots were fired in the air, not at the officer. The jury was entitled to judge the credibility of the officer as well as that of the defendant. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. DeHass, supra. Based on this evidence, the jury concluded that defendant attempted to cause physical harm to Officer Patsolic by means of a -8- firearm. There was sufficient evidence to sustain the convictions for the crimes charged and we cannot say on this record they were against the manifest weight of the evidence. The evidence was substantial enough to convince the average mind of defendant's guilt beyond a reasonable doubt. The jury did not clearly lose its way and there was no manifest miscarriage of justice. Defendant's sole assignment of error is overruled. Judgment affirmed. -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. O'DONNELL, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING 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 .