State v. Brooks
| Citation | 44 Ohio St.3d 185,542 N.E.2d 636 |
| Decision Date | 09 August 1989 |
| Docket Number | Nos. 88-353,88-484,s. 88-353 |
| Parties | The STATE of Ohio, Appellant and Cross-Appellee, v. BROOKS, Appellee and Cross-Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
The act of pointing a deadly weapon at another, without additional evidence regarding the actor's intention, is insufficient evidence to convict a defendant of the offense of "felonious assault" as defined by R.C. 2903.11(A)(2).
In 1971 Willie G. Brooks, a.k.a. "Bobie" Brooks, defendant herein, was convicted of manslaughter. In late 1986, the Summit County Grand Jury indicted Brooks on two counts of felonious assault in violation of R.C. 2903.11(A)(2), four counts of having a weapon while under disability in violation of R.C. 2923.13(A)(2), two counts of drug abuse in violation of R.C. 2925.11, one count of receiving stolen property in violation of R.C. 2913.51, and one count of assault in violation of R.C. 2903.13(A). Attached to the various counts was the firearm specification found at R.C. 2941.141, and the specification of having been convicted of a prior crime of violence in violation of R.C. 2941.143.
The events giving rise to the various counts in the indictment arose from events occurring on September 14, 1986, November 5, 1986, November 7, 1986, and November 24, 1986 in the Akron area.
Prior to the trial, Brooks moved for separate trials on the separate counts in the indictment contending the charges had been improperly joined pursuant to Crim.R. 8(A). The trial court overruled the defendant's motion finding that the charges in the indictment were related in point of time and as to subject matter and because "there may be a course of conduct being exhibited by this Defendant as Criminal Rule 8(A) prescribes * * *."
The defendant was tried by a jury. During the trial the assault charge was dismissed and the court granted the defendant's motion for a directed verdict of acquittal on the charge of receiving stolen property. The jury acquitted Brooks on one of the drug abuse charges and the charge of having a weapon under disability, with their attendant specifications, arising out of the events of November 5, 1986, and the charge of having a weapon under disability and specification, relating to the events arising from his arrest on November 24, 1986. The jury found the defendant guilty on the remaining counts and specifications and he was sentenced to terms of imprisonment.
Brooks appealed the judgment to the court of appeals which reversed and vacated his conviction for felonious assault and the attendant firearm specification relating to the events of November 7, 1986. The court of appeals also found that the two firearm specifications arising out of the events of September 14, 1986 were committed as part of the same act or transaction, and thus the trial court erred in imposing two three-year terms of actual incarceration on these specifications.
In reversing the conviction of felonious assault relating to the events of November 7, 1986, the court of appeals found that the act of pointing a firearm and threatening another did not constitute the offense of felonious assault. Finding its decision to be in conflict with the decision of State v. Sunderland (Dec. 19, 1985), Cuyahoga App. No. 49950, 1985 WL 4620, unreported, the appellate court certified the record of the case to this court for review and final determination. The cause is also before the court upon the allowance of a motion and cross-motion for leave to appeal.
Lynn C. Slaby, Pros. Atty. and Philip Bogdanoff, Akron, for appellant and cross-appellee.
John L. Wolfe, Akron, for appellee and cross-appellant.
On September 14, 1986, Danny W. Fisher, a student at Kent State University, was driving a taxicab for the City Yellow Cab Company in Akron, Ohio. He was dispatched to pick up a passenger. Shortly after the defendant and two women got into Fisher's cab, the defendant became embroiled in an argument with Fisher. After Fisher ordered the defendant out of the cab, the defendant and Fisher got out of the cab, and the defendant drew a revolver.
Fisher then got back into the cab with the two women and attempted to drive away. Brooks pursued the cab on foot, and some distance away Fisher permitted the women to exit. Brooks caught up with the cab, and according to Fisher fired his weapon at the cab while Fisher was seated behind the wheel. Brooks and the women fled the scene, and Fisher reported the incident to the police and shortly thereafter identified a photograph of the defendant as his assailant. These events form the basis of the first two counts of the indictment charging the defendant with felonious assault and having a weapon while under disability, as well as firearm specifications and specifications alleging a prior conviction of violence.
On November 5, 1986, Lieutenant Thomas Tomlinson and Detective Thomas L. Pozza of the Cuyahoga Falls Police Department went to the State Road Inn in Cuyahoga Falls to arrest Crystal Young on a bench warrant. Records at the motel indicated Young was registered at the motel. The officers went to her room with the motel manager, and when no one answered the officers' knocks at her door, the motel manager opened the motel room door and the officers entered. Tomlinson found Brooks, who had been sleeping, lying on a bed, and he asked the defendant if Young was present. After the defendant stated "she * * * [had] gone," Tomlinson discovered a loaded .32 caliber handgun on a nightstand next to the defendant's bed. Pozza also discovered a white powdery substance in two small Ziploc bags on a dresser, which substance was later determined to be cocaine. The defendant stated the bags belonged to Young. Brooks was not arrested at that time. After the police discovered that the substance was cocaine, that the firearm was stolen from a Sebron Phillips, and that defendant had a criminal history, they returned to arrest the defendant, but he was no longer there. These events comprised the fifth, sixth and seventh counts of the indictment which charged the defendant with drug abuse, having a weapon while under disability, and receiving stolen property, as well as a specification alleging a prior conviction for a crime of violence and a firearm specification.
On November 7, 1986, Geneva Barker encountered Brooks at the Hub-Lon Lounge in Akron. She testified that the defendant entered the lounge without paying a cover charge, although he did pay upon exiting. She stated they later engaged in a heated conversation when he returned, whereupon the defendant drew a handgun and pointed it at her face and stated, "Bitch, I will kill you." She stated that although she informed the defendant she was not afraid of him, she in truth was quite scared. After the manager went to call the police, the defendant left the bar. These events comprise the third and fourth counts of the indictment charging the defendant with felonious assault and having a weapon while under disability. Also included in the counts were a firearm specification and a prior-conviction-of-violence specification.
On November 24, 1986, Brooks was arrested as a result of a dispatch to the Akron police that a suspicious person had a .38 caliber revolver. Brooks was arrested in a vehicle matching the description supplied by two women. Brooks was found sitting in the vehicle's back seat. The vehicle was driven by a woman named Pamela Kidd. Brooks was searched and no weapon was found. He was arrested because a bench warrant was extant for him at that time. Police then searched the trunk of the automobile and discovered a loaded .38 caliber Rossi revolver and a piece of brown paper containing white powder later determined to be cocaine.
Brooks was then transported to the Akron Corrections Facility where he was searched again and a jail employee discovered cocaine in the defendant's pants pocket. These events comprise the eighth and tenth counts of the indictment charging the defendant with drug abuse and having a weapon while under disability, as well as two specifications of a prior conviction of a crime of violence.
The defendant stipulated his prior conviction of manslaughter and the defense presented one witness who was present at the Hub-Lon Lounge who denied seeing any disturbance between the defendant and Barker. The defense then moved for a continuance because a defense witness, Joseph Cacioppo, was unavailable. The defense counsel stated he had tried to contact Cacioppo but the witness was in New York visiting his daughter.
When defense counsel acknowledged he had not subpoenaed Cacioppo for the trial, the court denied the defendant a continuance, noting the case had previously been continued at the request of the defendant. The defendant spoke up and stated, The defendant asked the court for a continuance so he could try to find Cacioppo. The court denied the defendant's request. Defense counsel failed to proffer what testimony Cacioppo would have provided the jury in the event a continuance was granted by the court. The defense then rested its case.
The question certified to this court is whether the mere pointing of a deadly weapon, without more, is sufficient evidence of the offense of felonious assault. In reversing and vacating the defendant's conviction for feloniously assaulting Geneva Barker, the court of appeals noted:
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