COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78085 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION JAMES MOORE : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-378997. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: WILLIAM D. MASON, Esq. Cuyahoga County Prosecutor ROBERT T. GLICKMAN, Esq. Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: DAVID L. DOUGHTEN, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- SWEENEY, JAMES D., J.: Defendant-appellant James Moore ( Moore ; d.o.b. October 23, 1943) appeals from his conviction of one count of murder, in violation of R.C. 2903.02(B)1, with a firearm specification pursuant to R.C. 2941.145. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Moore was originally indicted on July 26, 1999 for the July 16, 1999 aggravated murder of the victim, Thomas G. Coleman ( Coleman ; d.o.b. February 1, 1946). See R.C. 2903.01. The matter was tried to the bench commencing on April 10, 2000. At the trial, the evidence established that Moore was employed as a uniformed security guard and carried a revolver in his holster. On the evening of July, 16, 1999, Moore went to the home of his estranged wife, claiming that he was called there by his wife who was complaining that Coleman was there for payment of a twenty-dollar debt and would not leave without payment, which she did not have. Arriving at the home, Moore proceeded to climb the front porch steps. Coleman was seated in a chair on the porch. 1R.C. 2903.02(B) and (D) provides: (B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code. *** (D) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code. -3- According to Moore's testimony, Moore questioned Coleman as to why Coleman was on Moore's porch. Moore then claimed that words were exchanged when Coleman allegedly said to Moore, nigger you got the badge and the gun, now what are you going to do. (Tr. 591.) Moore unsnapped the strap which secured the revolver in the holster and stepped onto the top step. Moore then claimed that Coleman dropped from his chair and lunged at him. Moore argued that he accidentally shot Coleman three times in rapid succession because he was seriously provoked by Coleman's allegedly provocative language. The four eyewitnesses who testified for the prosecution did not corroborate Moore's version of the shooting, each testifying that there was no struggle or fighting between the two protagonists and no threatening behavior by Coleman. Two of these eyewitnesses, Debbie Harper and Kevin Lanier, testified that Coleman remained seated during the shooting. Following the shooting, Moore drove Coleman to the hospital in Moore's automobile. The forensic evidence indicated that the gunshots were fired from a distance of at least three-to-four feet from the victim. The medical evidence indicated that Coleman was presented at Meridia-Huron Hospital's emergency room on July 16, 1999, at approximately 10:30 p.m., displaying three gunshot wounds to his chest and abdomen. Two of the gunshots traveled through Coleman's left forearm and each bullet entered the left side of Coleman's -4- chest at slightly different points. See State's Exhibit 2, Autopsy Protocol, at 2-3. The remaining gunshot entered Coleman's left anterior abdomen. Id. at 3. All of these gunshots traveled from front to back. The gunshot identified by the coroner as2 gunshot wound #1 traveled slightly upward as it penetrated the forearm, and entered the chest at a point 49 inches above the left heel. The gunshot identified by the coroner as gunshot wound #2 traveled in a flat trajectory through the forearm (the coroner did not indicate whether the path was upward or downward as it perforated the forearm) and entered the chest at a point 48/ inches above the left outer heel. The gunshot identified by the coroner as gunshot wound #3 traveled in a flat trajectory (the coroner did not indicate whether the path was upward or downward as it perforated the abdomen) and entered the abdomen at a point 44/ inches above the lateral heel of the left foot. Despite surgical efforts to save him, Coleman was pronounced dead by the hospital's attending physician at 1:30 a.m. on July 17, 1999. The autopsy protocol identified that Coleman, who was fifty-three years of age and stood 69 inches tall and weighed 179 pounds, had a blood alcohol level of 0.05. The coroner stated the cause of death was a homicide resulting from the multiple gunshot wounds. The trial court acquitted Moore on the offense of aggravated murder due to a lack of prior calculation and design, but did 2One of these forearm/chest bullets, identified as gunshot wound #2 in the coroner's discussion in the autopsy protocol, caused massive internal damage, namely, [M]assive hemorrhage of left kidney, left adrenal gland, aorta, pancreas and colon is present. See State's Exhibit 2, Autopsy Protocol, at 2-3. -5- convict Moore of murder in violation of R.C. 2903.02(B) because Coleman died as a proximate result of Moore's committing felonious assault on him, a felony of the second degree, and Moore's conduct did not constitute violations of R.C. S2903.03 or S2903.04. 3 See Findings of Fact and Conclusions of Law, filed May 5, 2000, at 8. The trial court also found Moore guilty of the firearm specification. Id. Subsequent to the conviction, the trial court sentenced Moore to a term of 15 years to life on the main offense, plus 3 years actual for the firearm specification. On appeal, Moore presents the following lone assignment of error: THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. The standard of review for an assignment arguing manifest weight of the evidence in a criminal case was recently enunciated by this appellate court in State v. Norman (April 6, 2000), Cuyahoga App. No. 76140, unreported, 2000 WL 354743, at 8: 3R.C. 2903.11, Felonious Assault, provides in pertinent part: (A) No person shall knowingly: (1) Cause 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. (B) Whoever violates this section is guilty of felonious assault, a felony of the second degree. ***. Felonious Assault is an offense of violence. See R.C. 2901.01(A)(9)(a). -6- To determine whether a conviction is against the manifest weight of the evidence: 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. Thompkins, supra, at 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. See State v. Thompkins (1997), 78 Ohio St.3d 380. Also see State v. Jenks (1991), 61 Ohio St.3d 259. Moreover, we remain cognizant that the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 227 N.E.2d 212, paragraph one of the syllabus. In arguing this assignment of error, Moore claims that the verdict is against the manifest weight of the evidence because the trial court erred in not basing the conviction on aggravated assault (R.C. 2903.12), rather than felonious assault (R.C. 2903.11), as the underlying felony for purposes of murder pursuant to R.C. 2903.02(B). R.C. 2903.12 defines the offense of aggravated assault as follows: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the -7- victim that is reasonably sufficient to incite the person into using deadly force, 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. (B) Whoever violates this section is guilty of aggravated assault, a felony of the fourth degree. Comparing the elements of the two offenses, felonious assault and aggravated assault, it is clear that they are, except for one distinction, identical. The difference is that the offense of aggravated assault, an offense of inferior degree to felonious assault, requires the additional mitigating element of provocation. State v. Mack (1998), 82 Ohio St.3d 198, 200. The degree of provocation required is the following: *** provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time. Id., citing State v. Deem (1988), 40 Ohio St.3d 205, at paragraph five of the syllabus. Having reviewed the record on appeal, we cannot conclude that the trial court, as fact finder, clearly lost its way or created a miscarriage of justice in finding Moore guilty of the offense charged via the finding of felonious assault and not applying the -8- offense of aggravated assault. The trial court, in finding that Coleman's provocation was not reasonably sufficient to incite the use of deadly force and deny the application of aggravated assault in this case, stated the following: Although he was probably enraged by Coleman's provocative language on the porch, that provocation was not such as to cause a reasonable man to move forward and shoot. See, State v. Shane (1992), 63 Ohio St.3d 630, 590 N.E.2d 272, State v. Collins (Cuyahoga, 1994), 97 Ohio App.3d 438, 646 N.E.2d 1142. If, as Moore claims, Coleman challenged him verbally when Moore came to the house in a guard's uniform and with a gun, Moore should have stopped or retreated. Coleman was unarmed, physically disabled in part, probably intoxicated, and considerably smaller than Moore. If Moore had stood his ground or retreated, he would not have been in significant danger from Coleman. Instead, he unholstered his gun. No acceptable reason existed for Moore to continue to advance on Coleman with a drawn gun when Coleman's hostility became apparent except that Moore intended to use his superior power to remove Coleman from the porch. The evidence does not clearly establish what physical action Coleman took after his verbal assault on Moore. Perhaps Coleman did make some move toward Moore as Moore continued to approach, but even an initial lunging by Coleman would not be sufficient to incite a reasonable person to use deadly force; thus, Moore's conduct in shooting Coleman did not constitute voluntary manslaughter but constituted felonious assault which is not reduced to aggravated assault. See State v. Oviedo (6th District, 1982), 5 Ohio App.3d 168, 174-175; 450 N.E.2d 700, 707-709. Findings of Fact and Conclusions of Law, filed May 5, 2000, at 7. As recognized by the trial court, the facts of this case are analogous to State v. Collins, supra. In Collins, the two male combatants exchanged stares in an elevator shortly before the -9- stabbing. Following the stares, the defendant claimed that the victim confronted him with conversation outside the apartment building by asking defendant What's up now, punk bitch? and attempting to strike the defendant with blows, which blows were avoided by the defendant. The victim then followed Collins into the lobby of the apartment building where the victim struck the defendant with fists and an umbrella. At that point, Collins drew a knife from his pants pocket and stabbed the victim. The Collins court found that these inflammatory and confrontational words, What's up now, punk bitch? , did not constitute reasonably sufficient provocation to incite the use of deadly force by the defendant. The words allegedly uttered by Coleman in the case sub judice, nigger you got the badge and the gun, now what are you going to do, are no more inflammatory and confrontational than the heated remarks uttered by the victim in Collins. Likewise, Coleman's words are no more provocative than those in Collins. Also, see, State v. Slones (Aug. 11, 1994), Cuyahoga App. No. 66031, unreported, 1994 Ohio App. LEXIS 3486 (victim telling the defendant, You a punk ass nigger, and raising his hand to strike the defendant immediately prior to the defendant shooting the victim did not constitute provocation sufficient to incite the use of deadly force for the offense of aggravated assault). Lacking provocation reasonably sufficient to merit the use of deadly force, the trial court did not err in not basing Moore's conviction on the offense of aggravated assault. Assignment overruled. -10- Judgment affirmed. -11- 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 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. DIANE KARPINSKI, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR. ______________________________ JAMES D. SWEENEY 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .