COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73364 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION BURK JORDAN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : NOVEMBER 25, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-352721 : JUDGMENT : MODIFIED, AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: PATRICK J. MCCARTHY, ESQ. Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 PAUL MANCINO, JR., ESQ. Suite 1016 75 Public Square Cleveland, OH 44113-2098 -2- JOHN T. PATTON, J.: A jury found defendant Burk Jordan guilty of four counts of felonious assault and one count of intimidation after finding he fired a number of shots at a car carrying the four victims and then threatened one of the victims in order to scare him out of talking to the police. Defendant raises fifteen assigned errors in this appeal. The state showed that defendant's felonious assaults arose following a verbal altercation over a stolen bike. Jay Whooper borrowed a bike from his cousin, Mike Bell. Someone stole the bike and Whooper later learned from his sister that a neighborhood man named Ron Edwards had been the culprit. Whooper went to Edwards' house and they had a conversation about the bike, but Whooper left because he did not want to disrespect Edwards' house. Whooper told Edwards he would be back the next day to discuss getting the bike back. The following day, Whooper and his friend, James Wallace, rode their bikes around the neighborhood looking for the stolen bike. They found Edwards sitting with a group of people in front of a house owned by defendant's grandmother. Whooper and Edwards had a conversation about the bike, but defendant's brother told them to move the argument to another place. They moved down the street and heated words were exchanged. Defendant's brother knocked Whooper off his bike. Whooper and Wallace, knowing they were outnumbered, decided to run. -3- Whooper and Wallace ran back to Whooper's house. There, they saw Whooper's cousin, Jerry Baker. After hearing what transpired, Baker offered to speak with Edwards' younger brother and try to retrieve the bike. Whooper and Wallace then left the house and saw a car driven by Whooper's cousin and her boyfriend. The cousin pulled the car over and Whooper and Wallace both climbed into the back seat. They turned a corner and saw Baker standing on one side of the street, and defendant and a group of people standing on the other side of the street. The occupants of the car testified that they saw defendant reach into the waistband of another person's trousers and pull out a handgun. Defendant moved to the middle of the street and fired approximately eight shots into the rear of the car as it moved away from him. One of the shots hit Whooper. Baker fully corroborated the testimony of the victims. He testified that he approached Edwards' younger brother to ask about the bike and told them there was no need for gunplay. At that point, a car pulled up and defendant exited the car, holding a nine millimeter handgun. Defendant handed the gun to Edwards' younger brother, who put the gun in the waistband of his trousers. Baker then heard someone say, there they go right there. Defendant pulled the gun out of the younger brother's trousers, walked into the street and started shooting at the car. About six months after the shooting, and just days after defendant's preliminary hearing in this case, Whooper was walking down the street when he saw defendant's car pull up beside him. -4- Defendant asked Whooper if he knew anything about defendant's case, and said that him and some other guys had whooped some other guy for testifying. Defendant presented the testimony of several witnesses, none of whom were actually present at the time of the shooting, who said they did not see defendant on the scene shortly after hearing gunshots. I The first assignment of error complains that the court erred by refusing to dismiss the indictment on speedy trial grounds. He maintains the grand jury returned an indictment on August 22, 1996, but trial did not commence until July 28, 1997, more than two hundred seventy days after indictment. He claims this established a prima facie case for discharge that the state did not rebut. R.C. 2945.71(C)(2) requires the state to bring an accused to trial within two hundred seventy days. That period may be tolled by any period of delay occasioned by the neglect or improper act of the accused. See R.C. 2945.71(D). If an accused has posted bail but fails to appear and a capias is issued, the speedy trial time is not only tolled, it starts anew. See State v. Bauer (1980), 61 Ohio St.2d 83; State v. Hogan (Oct. 9, 1997), Cuyahoga App. No. 71337, unreported; State v. Harrison (Aug. 22, 1996) Cuyahoga App. No. 69821, unreported. As will be explained more fully in our discussion of the second assignment of error, the state dismissed the initial indictment in this matter and refiled it after learning there had -5- been another victim. While under the original indictment, defendant had been released on bond. For our purposes here, it appears that the court issued a capias in that first criminal case after defendant failed to appear for a pretrial. Hence, the speedy trial time not only tolled, it started anew from the time of defendant's April 24, 1997 re-arrest on the second indictment. Defendant's right to a speedy trial was not violated. The first assignment of error is overruled. II For his second assignment of error, defendant complains that the court should have granted his motion to dismiss the felonious assault count against James Wallace, one of the occupants of the car, on speedy trial grounds. The original indictment contained only three felonious assault counts which named as victims Whooper, Whooper's cousin and her boyfriend. When the grand jury returned the second indictment, it added the fourth count relating to Wallace. Defendant argues the police knew Wallace had been a victim and should have listed his name in the first indictment. In State v. Baker (1997), 78 Ohio St.3d 108, the syllabus states: In issuing a subsequent indictment, the state is not subject to the speedy-trial timetable of the initial indictment, when additional criminal charges arise from facts different from the original charges, or the state did not know of these facts at the time of the initial indictment. The state had been told that Wallace had been a passenger in the car, but it could not locate Wallace for questioning. A -6- detective testifying at a hearing on defendant's motion to dismiss told the court he did not have accurate information concerning Wallace's address and telephone number at the time charges were brought against defendant. The detective said that the initial police report listed Wallace's address as East 84th and Wade, but did not contain a specific address. The detective went to the area and spoke with at least two other persons in an attempt to locate Wallace, but they did not know his whereabouts. Likewise, the detective called the telephone number on the police report, but received no response. A search of the telephone directory did not yield a telephone number for Wallace. Given these facts, we find the court did not err by refusing to grant the motion to dismiss the fourth count of the indictment. Because the state did not know of Wallace's whereabouts and had not spoken to him, the fourth count of the indictment necessarily contained facts that the state did not know at the time of the additional indictment. The second assignment of error is overruled. III The third assignment of error complains the court erred by permitting the state to amend the dates of the two intimidation counts. The indictment originally listed the dates of the intimidation counts as August 21-31, 1996, but the court permitted the state to amend the intimidation charges to reflect February 15- 22, 1996 as the time frame in which the intimidation allegedly occurred. Defendant claims the amendment permitted him to be -7- convicted on evidence that had not been presented to the grand jury. Crim.R. 7(D) provides in pertinent part as follows: The court may at any time before, during, or after a trial amend the indictment, * * * in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. On the first day of trial, the state told the court the dates contained in the indictment were typographical errors, and the correct dates should have been December 22-31, 1996. After discussion with Whooper, the state withdrew the December date and asked the court to amend the indictment to show the dates of the intimidation counts as February 15-22, 1996. Whooper told the state the intimidation occurred shortly after a preliminary hearing, but the state apparently had some confusion over the exact date of the intimidation because defendant did not have a preliminary hearing go forward on this case number. A preliminary hearing had been scheduled on an earlier case number, but that hearing was cancelled because the state nolled that case and refiled the matter under this case number adding the fourth count of felonious assault and the new intimidation counts. This case number was submitted it to the grand jury, so there was no preliminary hearing. Whooper, however, told the state the date of the intimidation was shortly after the preliminary hearing, because he had appeared for the preliminary hearing, even though it had been canceled; hence the confusion over the correct dates. -8- We find the court did not err by permitting the amendment because the correction of dates did not change the name or identity of the intimidation counts. State v. O'Brien (1987), 30 Ohio St.3d 122; State v. Sellards (1985), 17 Ohio St.3d 169, 171 ( Ordinarily, precise times and dates are not essential elements of offenses. Thus, the failure to provide dates and times in an indictment will not alone provide a basis for dismissal of the charges. A certain degree of inexactitude of averments, where they relate to matters other than elements of the offense, is not per se impermissible or necessarily fatal to a prosecution. ). The dates were simply listed incorrectly on the indictment, and the change of dates did not change the name or identity of intimidation counts. Defendant's citation to State v. Vitale (1994), 96 Ohio App.3d 695 is not on point. In Vitale, this court reversed a theft conviction after the trial court granted the prosecution's motion to amend the indictment at the close of the state's case because the facts of the two offenses differed and there was a grave risk in this case that defendant was convicted by the trial court of a felony on evidence that was not presented to the grand jury. Id. at 699. The state's bill of particulars stated that Vitale committed the offense on or about June 14, 1991, and bill of particulars specified that Vitale committed the offense at his business address. The trial court amended the indictment to show the theft occurred from June 14, 1991 through June 21, 1991, inclusive, even though it later found Vitale committed no crime on June 14th, instead finding him guilty of an offense committed June -9- 21st at his home address, not his business address. This court reasoned that the trial court abused its discretion by amending the indictment against Vitale because the different events, time, and place of the June 21stoffense changed the identity of the crime to the extent that it changed the identity of the offense in contravention of Crim.R. 7(D). Id. at 700-701. The concerns we expressed in Vitale are not present here. The identity of the crime did not change, nor was there any concern that the grand jury returned an indictment on facts different than those heard at trial. Moreover, the amendment did not prejudice defendant's ability to present a defense to the charge. The third assignment of error is overruled. IV The fourth assignment of error complains the court abused its discretion by refusing to grant defendant a continuance after it amended the intimidation counts of the indictment. The decision whether to grant a continuance is a discretionary matter for the court, subject to review for an abuse of that discretion. State v. Sowders (1983), 4 Ohio St.3d 143, 144. Objective factors which may be considered by the court in deciding whether to grant a motion for a continuance include the length of the delay requested, whether other continuances have been allowed, any inconvenience to the litigants, the court and witnesses, whether the requested delay is legitimate rather than dilatory, purposeful or contrived, whether movant contributed to the circumstances underlying the request, and other relevant factors -10- based on the unique aspects of each case. See State v. Unger (1981), 67 Ohio St.2d 65, 67-68. We find the court did not abuse its discretion by refusing to grant a continuance. Although the intimidation counts were not added to the indictment until shortly before trial, defense counsel knew that an amended indictment containing intimidation counts might be forthcoming. In fact, the state even explained to defense counsel why the indictment would contain a range of dates rather than specific dates. Defense counsel did not dispute this characterization, other than to say he understood the alleged intimidation occurred in August 1996, shortly after the felonious assault charges arose. The state's confusion concerning the date of the intimidation had no bearing on the substance of the charge. The fourth assignment of error is overruled. V In his fifth assignment of error, defendant complains the court erred by permitting Bertman Wherry to testify that defendant had access to a gun. The state called Wherry on the belief that he would testify that defendant had access to a nine millimeter handgun. Wherry said he saw defendant with a gun, but not a nine millimeter handgun, and that it was his brother. It wasn't him. It was his brother. Defendant complains this testimony should have been stricken under Evid.R. 404(B). In State v. Soke (1996), 105 Ohio App.3d 226, 249, we stated: Evidence of other acts is admissible if (1) there is substantial proof that the alleged other acts were committed by the defendant, and (2) the evidence tends to prove motive, -11- opportunity, intent, plan, knowledge, identity, or absence of mistake. State v. Lowe (1994), 69 Ohio St.3d 527, 530, citing State v. Broom (1988), 40 Ohio St.3d 277, 282-283. Evidence of other crimes, wrongs or bad acts independent of, and unrelated to, the offenses for which a defendant is on trial is generally inadmissible to show criminal propensity. State v. Woodard (1993), 68 Ohio St.3d 70, 73. As with all evidence, other acts evidence is subject to the relevancy and fairness requirements of Evid.R. 403, reviewable by this court for an abuse of discretion. The court should not have permitted Wherry to testify about defendant's access to a handgun because (1) Wherry's testimony left some doubt that defendant actually had access to the gun and (2) the testimony did not tend to show motive, opportunity, intent, plan, knowledge, identity, or absence of mistake. Nevertheless, we find any error harmless beyond a reasonable doubt, particularly in light of the substantial eyewitness testimony showing that defendant fired eight or nine shots at the car carrying the victims. Any evidence tending to show defendant's prior access to a weapon would not have overcome the substantial evidence showing that he actually did use a gun in committing the felonious assaults. Defendant also briefly complains that the court should have stricken the portion of Jay Whooper's testimony where he referred to the photographic lineup the police showed him as mugshots. The court sustained an objection and learned that Whooper could not make an identification from the photographs. The photographs were admitted into evidence with all traces of standard mugshot markings removed. We have held that the mere mention of the word -12- mugshot is not per se reversible error. See State v. Wills (1997), 120 Ohio App.3d 320, 326-327. Here, Whooper's very fleeting reference to the photographs as mugshots cannot be said to be prejudicial. The fifth assignment of error is overruled. VI The sixth assignment of error concerns the court's refusal to permit defendant to ask James Wallace and the victims their current addresses. The court refused to permit defendant to ask Wallace's address because he had been incarcerated pending trial on a misdemeanor drug offense. As to the victims, the state told the court it did not wish to divulge the addresses of victims given the intimidation charges pending against defendant. The court denied defendant's request for those addresses, finding defendant failed to request the addresses in a timely discovery request. Defendant now claims this violated his right to confront witnesses. This assignment lacks merit. Evidence of a misdemeanor conviction that is not a crime involving dishonesty or a false statement is not admissible to impeach the credibility of the accused. Evid.R. 609; State v. Wadsworth (1993), 86 Ohio App.3d 666, 670. Wallace did not have any past felony convictions, so defense counsel could only make the illusory argument that he could ask Wallace why he came into the courtroom with deputies. This would have the same effect of elevating Wallace's pending misdemeanor charge into a conviction something the rules simply do not allow. -13- Moreover, we find the court did not err by refusing to force the victims to divulge their addresses. Cross-examination of a witness is a matter of right, but the `extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court.' State v. Green (1993), 66 Ohio St.3d 141, 147, quoting Alford v. United States (1931), 282 U.S. 687, 691, 694. A trial judge has broad discretion to preclude repetitive and unduly harassing interrogation and to impose reasonable limits on cross-examination based on concerns about, among other things, harassment and the witness' safety. Davis v. Alaska (1974), 415 U.S. 308, 316; Delaware v. Van Arsdall (1986), 475 U.S. 673, 679. The court knew that defendant had prior cases involving intimidation, so its reluctance to force the witnesses to divulge their current addresses can be justified as a matter within the court's discretion. It appears defendant did have the victims' addresses at the time of the felonious assaults, so this should not have hampered any inquiry into the offenses themselves. The sixth assignment of error is overruled. VII The seventh and eighth assigned errors relate to the removal of a juror after the jury had been empaneled, but before trial started, because that juror had been seen smiling at defendant and both he and defendant nodded at each other. Defendant complains the court (a) should not have removed the juror without first -14- questioning the juror and (b) should not have removed the juror without first securing defendant's presence during the proceedings. A. Crim.R. 24(F) permits the court to seat an alternate juror in the event a regular juror is found unable to perform the duties of a juror. The court's decision to remove a juror and seat an alternate is reviewed for an abuse of discretion. State v. Hopkins (1985), 27 Ohio App.3d 196; State v. Pursell (May 30, 1991), Cuyahoga App. No. 58603, unreported. Defendant did not object to the court's failure to question the juror, and we find no precedent that would make the court's failure to do so per se error. The court did question a deputy who witnessed the incident. The deputy told the court the juror and defendant displayed a familiarity that made him think these guys know each other. Given defendant's past history of intimidating witnesses, the court did not abuse its discretion by removing the juror without first questioning that juror. B Defendant's second argument, that the court removed the juror without securing defendant's presence during the proceedings is frivolous because defense counsel waived his client's right to be present. The court specifically asked defense counsel if he wanted defendant present and counsel said, no, that's all right. Still later in that same discussion, defense counsel stated, I've waived his rights now, for not having him present while this is going on, anyway. The seventh and eighth assigned errors are overruled. -15- VIII The ninth assignment of error complains that the state impeded defendant's right to present an effective defense when it told Ron Edwards that he would be subjected to criminal charges if he chose to testify on defendant's behalf. The court appointed counsel for Edwards and, after discussion with counsel, Edwards decided to invoke his Fifth Amendment right against self-incrimination. Defendant asked the court to grant Edwards immunity, but the court refused. Defendant now claims the state impeded his ability to present a defense by dangling the possibility of criminal prosecution in front of Edwards as a means of preventing his testimony. We reject defendant's argument because the court has no authority to grant immunity at a defendant's request. In State v. Landrum (1990), 53 Ohio St.3d 107, 120, the Supreme Court stated: Ohio trial courts do not have authority to grant nonstatutory use immunity to a defense witness at an accused's request. State, ex rel. Leis v. Outcalt (1982), 1 Ohio St.3d 147. Other federal and state authority supports Ohio's view that courts do not have inherent authority to immunize defense witnesses. (citations omitted). Moreover, R.C. 2945.44(A), the immunity statute, was amended (in contradiction to defendant's citation to the former statute) to clearly reflect[] the intent of the General Assembly that immunity be used only as a prosecutorial tool to fulfill the government's need for testimony. State ex rel. Leis v. Outcalt (1982), 1 Ohio St.3d 147, 149. Because defendant had no right to seek immunity for his own witnesses, the court did not err. -16- Finally, the record fails to show the state coerced Edwards' invocation of his right against self-incrimination by threatening possible criminal action were he to testify. Edwards told the court the state made no threats, and did not intimidate or harass him into refusing to testify. We are satisfied the court acted properly by appointing Edwards counsel and determining whether the state knowingly interfered with defendant's presentation of the case. The ninth assignment of error is overruled. IX The tenth, eleventh and twelfth assigned errors collectively challenge defendant's sentence. The court sentenced defendant to multiple terms for the four separate felonious assault counts and the four separate firearm specifications, and then ran all sentences consecutively. A R.C. 2941.25 provides: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In State v. Blankenship (1988), 38 Ohio St.3d 116, 117, the court set forth a two part test to determine whether two crimes -17- with which a defendant is charged 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 a 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 that either the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. If multiple offenses are not of "similar import," analysis of R.C. 2941.25 stops at subsection (A), and the statute does not bar multiple convictions. When an offense is defined in terms of conduct towards another, then there is a dissimilar import for each person affected by the conduct. State v. Phillips (1991), 75 Ohio App.3d 785, 790, citing State v. Jones (1985), 18 Ohio St.3d 116, 118. This case is directly on point with State v. Gregory (1993), 90 Ohio App.3d 124. Gregory had been convicted on two counts of felonious assault after firing multiple gunshots at a police car containing two officers. The court of appeals found Gregory had been aware of the presence of two potential victims in the car at the time he fired, so the court concluded he could be properly convicted of two felonious assault counts. Id. at 129. The evidence in this case showed defendant knew there were multiple passengers in the car at the time he fired the gun at the -18- car. When the car carrying the victims passed by defendant, someone said, here they come. Moreover, by firing eight to nine shots at the occupants of the car, defendant demonstrated the intent to harm the occupants of the car. The court could find defendant attempted to cause harm to each of the victims; therefore, he could be convicted on four counts of felonious assault. B An additional term of incarceration may be imposed if an offender is convicted of a felony and an underlying firearm specification. However, the court shall not impose more than one additional prison term on an offender under this division for felonies committed as part of the same act or transaction. R.C. 2929.14(D). Transaction is defined as a series of continuous acts bound together by time, space and purpose, and directed toward a single objective. State v. Wills (1994), 69 Ohio St.3d 690, 691. The separate animus test employed to determine whether multiple counts of an indictment are allied offenses is not to be used when determining whether separate firearm enhancements should be made. See State v. White (1991), 71 Ohio App.3d 550, 554; State v. Towns (Oct. 23, 1997), Cuyahoga App. No. 71244, unreported, fn.2. Defendant's act of firing multiple gunshots into the victims' car constituted a single transaction, even though there were multiple victims. Gregory, 90 Ohio App. 3d at 129-130; State -19- v. Towns, supra; State v. McGhee (Mar. 12, 1998), Cuyahoga App. No. 72148, unreported. C Defendant maintains the court erred by sentencing him to maximum consecutive sentences. He argues that neither his past criminal record nor the nature of the offenses gave the court a basis for imposing the felonious assault counts consecutively. The overriding purposes of the felony sentencing statutes are to protect the public from future crime by the offender and others and to punish the offender. R.C. 2929.11(A). The court's sentence should be reasonably calculated to achieve these purposes, and the sentence should be commensurate with the seriousness of the offender's conduct and its impact upon the victim. R.C. 2929.11(B). Unless a mandatory prison term is required by law, the court has discretion in deciding how best to comply with the overriding purposes of the sentencing statute. See R.C. 2929.12(A). When the offense is a felony of the first or second degree, a prison term is presumed to be necessary in order to comply with the purposes of the sentencing statute (although the court may impose a community control sanction if certain criteria are present). See R.C. 2929.13(D). The court's sentencing discretion is limited, however, in deciding when to impose a maximum sentence. R.C. 2929.14(C) which states: (C) Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only -20- upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section. The only time we can review a maximum sentence permitted by law is if a defendant asks us to review the court's decision and its reasons for imposing the maximum sentence. See R.C. 2953.08(A) and (G); State v. Assad (June 11, 1998), Cuyahoga App. Nos. 72648 and 72649, unreported at 4. We review the record to determine whether the maximum sentence is affirmatively supported by the record. R.C. 2929.13(2)(b); State v. Beasley (June 11, 1998), Cuyahoga App. No. 72853, unreported. We may increase, reduce, or otherwise modify a sentence that is appealed or may vacate the sentence and remand the matter. R.C. 2953.08(G)(1). State v. Assad, supra. During sentencing, the court made the following remarks: This Court remembers the evidence, the trial, and notes that drive-by shootings are of a great concern to this community, and this case really involved almost a reverse drive-by shooting where, as the shooter was on the street as the car drove by, was fired upon multiple times striking at least one of the victims and putting all four in fear for their life. The seriousness of this type of crime will not be overlooked by this Court. The offender committed the worst form of felonious assault that can be committed, and given the lengthy criminal career of this defendant, albeit most of it juvenile, and the adult things he seems to have been dismissed from along the way. And in light of the intimidation and the facts surrounding that which this Court heard during -21- the trial and the motion phase and everything else, this Court finds that this offender poses a great likelihood of committing future offenses in the future ***. The court's remarks show it found the offense to be the worst form of felonious assault and also found defendant's past criminal history (including prior episodes of intimidation) made it likely he would commit offenses in the future. Our review of the record fails to convince us that the court abused its discretion in this regard. Defendant maintains the felonious assault was not among the worst forms of felonious assault because only one person received injuries and that person was only in the hospital for several days. We are not sure what to make of this argument does defendant maintain the type of injuries sustained in a felonious assault should govern the punishment? We think that firing a handgun at passing motorists (with the concomitant risk of injuring innocent bystanders) shows a depravity of mind and disregard of human life sufficient to justify the court's decision to impose the maximum penalty. The eleventh and twelfth assignments of error are overruled; the tenth assignment of error is sustained and three of the four firearm specifications are vacated. X The thirteenth assignment of error complains the court erred by refusing to dismiss the intimidation charge because of a material variance between the allegations of the indictment and evidence. He argues the state's witnesses could not show the precise time that the intimidation occurred and that the proof of -22- the location of the intimidation differed from that supplied in the bill of particulars. Crim.R. 33(E)(2) provides that [no] judgment of conviction [shall] be reversed in any court because of * * * [a] variance between the allegations and the proof thereof, unless the defendant is misled or prejudiced thereby. Likewise, Crim.R. 7(D) permits the court to amend the indictment with respect to any defect, imperfection,or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. * * *. Precise times, however, are not generally essential elements of offenses and, thus, may be stated in the indictment with a certain amount of inexactitude. State v. Sellards (1985), 17 Ohio St.3d 169, 171. Likewise, a correction of an address at where the crime occurred to conform with the evidence does not generally change the name or identity of the crime. See State v. Herrin (1982), 6 Ohio App.3d 68, 69. Defendant complains the variance of proof affected his ability to prepare an adequate defense. We disagree. Absent a material detriment to the preparation of a defense, the omission of specific dates and times does not prejudice an accused and cannot be a violation of the accused's right to due process. State v. Barnecut (1988), 44 Ohio App.3d 149, 152. Defendant shows no prejudice, merely arguing that the bill of particulars listed the location of the offense as East 120th Street and Oakfield Avenue, while the state's witnesses testified the intimidation occurred on East 117th Street. This minor variation made no difference to the nature of -23- the charge, and defendant fails to give any concrete basis to find the change of location caused him prejudice. The thirteenth assignment of error is overruled. XI The fourteenth and fifteenth assigned errors relate to the sufficiency of the evidence supporting the jury verdicts on the intimidation count and the felonious assault counts. A The trial court's standard for granting a motion for a judgment of acquittal is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, in which the syllabus states: 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 considering a motion for judgment of acquittal, the reviewing court shall consider the evidence in a light most favorable to the appellee. Jackson v. Virginia (1979), 443 U.S. 307; State v. Fyffe (1990), 67 Ohio App.3d 608, 613. R.C. 2921.03(A) states that [n]o person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder a * * * witness in the discharge of his duty. Jay Whooper testified that several days after a preliminary hearing involving defendant, defendant approached him and was telling me how him and some other guys whooped some other guy for testifying. Reasonable minds could -24- find this statement a threat of force used to prevent Whooper's testimony at trial. Defendant argues that intimidation did not occur because Whooper did testify. This argument is baseless. R.C. 2921.03(A) is intended to preserve the integrity of the judicial process by ensuring that witnesses give truthful and open testimony in court without the fear of retaliation from adverse parties. To that end, it encompasses attempts at intimidation, not fully completed acts of intimidation that prevented or changed a witnesses' testimony. If we accepted defendant's argument that only completed acts of intimidation were unlawful, the statute would have to be read as sanctioning any amount of intermeddling that fell short of accomplishing the ultimate goal of precluding testimony in its entirety. Such an interpretation would be completely at odds with the purpose of the statute. B Defendant complains the court should have granted a judgment of acquittal on three of the four counts of felonious assault since only one person, Jay Whooper, had been hit by the bullets. Defendant argues the evidence merely showed he caused damage to the property of another and not to the persons in the vehicle. R.C. 2903.11(A)(2) states that no person shall knowingly cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance. Firing a gun in a person's direction is sufficient evidence of felonious assault. See State v. Mills (1992), 62 Ohio St.3d 357, 369 (held firing a warning shot and -25- almost hitting victim constituted felonious assault); State v. Phillips (1991), 75 Ohio App.3d 785 (defendant could be convicted of assault against every person in the line of fire in drive-by shooting); State v. Gregory (1993), 90 Ohio App.3d 124 (defendant could be convicted of two counts of felonious assault when he was aware that two persons were in the car when he fired multiple gunshots into the car). Reasonable minds could find defendant fired multiple gunshots into a car that he knew carried multiple occupants. Accordingly, the court did not err by refusing to grant defendant's motion for judgment of acquittal on the felonious assault counts. The fourteenth and fifteenth assigned errors are overruled. Judgment modified, and affirmed as modified. -26- 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. TIMOTHY E. McMONAGLE, P.J. LEO M. SPELLACY, J., CONCUR. JUDGE JOHN T. PATTON 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 .