State v. Paul Williams

• Decision Date: 10 March 1989
• Docket Number: 89-LW-1146,L-88-043
• Parties: STATE of Ohio, Appellee, v. Paul WILLIAMS, Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Appellee, v. Paul WILLIAMS, Appellant.

No. L-88-043.

89-LW-1146 (6th)

Court of Appeals of Ohio, Sixth District Lucas

March 10, 1989

Appeal from Lucas County Common Pleas Court, No. CR 88-5152.

DECISION AND JOURNAL ENTRY

This is an appeal of a conviction for the offense of aggravated assault as defined in R.C. 2903.12.

On November 19, 1987, appellant, Paul Williams, was indicted by the Lucas County Grand Jury of felonious assault in violation of R.C. 2903.11(A)(2); the indictment carried both a firearm specification and a specification of physical harm. A new indictment was filed on January 29, 1988, charging appellant with the same offense and specifications, but adding a further specification of a prior crime of violence. However this latter charge was not presented to the jury.

After a trial to jury, appellant was found not guilty of felonious assault; the jury did find Williams guilty of the lesser included offense of aggravated assault and both specifications. Appellant was sentenced in the Lucas County Court of Common Pleas on February 5, 1988. From that judgment appellant filed a timely notice of appeal. He asserts two assignments of error:

"I.The verdict of the jury finding the defendant guilty of aggravated assault and the firearm specification is against the manifest weight of the evidence and must be reversed.

"II.The defendant was not provided with effective assistance of counsel at trial in violation of the Sixth Amendment."

Appellant initially contends that the decision of the jury finding Williams guilty of aggravated assault and the firearm specification was against the manifest weight of the evidence offered at trial. We disagree.

If a defendant challenges the weight of the evidence offered at trial, a reviewing court will not disturb the findings of the trier of fact "where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St.2d 169, syllabus. Further, an appellate court, in determining sufficiency of the evidence must view that evidence, and all reasonable inferences that can be drawn therefrom, in a light most favorable to the prosecution. State v. Wallen (1969), 21 Ohio App.2d 27, 35, affirmed (1971), 25 Ohio St.2d 45.

Appellant was convicted of aggravated assault in violation of R.C. 2903.12, which reads, in relevant part:

"] 2903.12Aggravated assault.

"(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 victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:

"(1) Cause serious physical harm to another;

"(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code."

R.C. 2929.71 governs firearms offenses and provides, in material part, that:

"(A) The court shall impose a term of actual incarceration of three years in addition to imposing a life sentence pursuant to section 2907.02, 2907.12, or 2929.02 of the Revised Code or an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code, if both of the following apply:

"(1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code;

"(2) The offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment.

" * * *

"(1) "Firearm' has the same meaning as in section 2923.11 of the Revised Code."

R.C. 2923.11 defines "Firearm" as:

" * * * any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm' includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable."

Appellant essentially argues that the prosecution failed to produce any direct evidence that appellant fired the gun that caused the gunshot wound to the leg of the victim in the instant case. Nonetheless, eyewitness testimony at trial established that Williams was seen on the night of the charged offense carrying a gun. The victim, Willie McMillan, testified that he felt a burning sensation in his right calf and that when he turned, appellant was pointing a gun at him. According to McMillan, appellant then fired the gun again, apparently missing McMillan and injuring another person present at the scene. Medical reports confirmed the fact that McMillan received a gunshot wound to his right leg. Other witnesses testified that they also observed a man who they identified as appellant or one resembling appellant with a gun and/or that they heard gunfire. Appellant points out that some of this testimony is conflicting. However, inconsistencies in testimony merely places the credibility of the witnesses in issue. State v. Mattison (1985), 23 Ohio App.3d 10, 15. The weight and credibility to be accorded witness testimony is within the sole province of the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Furthermore, where reasonable minds can reach different conclusions upon conflicting evidence, the determination as to what actually occurred is a question of fact for the trier of fact. State v. Kehn (1977), 50 Ohio St.2d 11, 20, certiorari denied, 434 U.S. 858. The jury in the case sub judice observed the demeanor of and heard the voice inflections of each witness as they testified at trial. Appellant had the opportunity to cross-examine each of these witnesses, reveal their motivation for testifying as they did, and to impeach their credibility. The jury chose to believe these witnesses and was able to reasonably infer from the evidence offered that appellant, while under the influence of sudden passion or rage, provoked by the victim, knowingly used deadly force by means of a firearm (deadly weapon) to cause physical harm to...