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holding that the "act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon is sufficient evidence to convict a defendant of the offense of 'felonious assault' as defined by R.C. 2903.11"
Summary of this case from State v. DantzlerOpinion
No. 90-121
Submitted January 8, 1991 —
Decided April 3, 1991.
Criminal law — Felonious assault — R.C. 2903.11(A)(2) — Act of pointing a deadly weapon at another, coupled with a threat to use the weapon, is sufficient evidence for conviction.
O.Jur 3d Criminal Law § 1733.
The act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon, is sufficient evidence to convict a defendant of the offense of "felonious assault" as defined by R.C. 2903.11(A)(2). ( State v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636, syllabus, explained and followed.)
APPEAL from the Court of Appeals for Fayette County, No. CA89-04-006.
At or around 11:30 p.m. on September 2, 1988, Patrolman Larry Mongold of the city of Washington Court House, Ohio police was summoned to investigate a complaint concerning a possible domestic disturbance at 417 East Elm Street. Upon arriving at the scene of the alleged disturbance, defendant-appellee, Thurman Green, invited Mongold into his residence in order to allow Mongold to conduct an investigation. Mongold observed broken glass on the floor, tables turned upside down and lamps broken when he entered the home. Next, Green's wife came into the house and initiated an argument and Mongold separated the parties. Green's wife complained that defendant had choked her son and "had torn up the house." After hearing Mrs. Green's complaints, Mongold followed defendant outside to the rear of the house in order to discuss the incident. Then, Mongold took Mrs. Green outside to the front of the house to hear her side of the story.
Mongold took a criminal complaint and written statement from Mrs. Green while they were outside the house. The complaint was for domestic violence concerning defendant's actions toward ten-year-old Jason Perry. At this point, Sergeant Michael Taylor of the Washington Court House police approached the front of the house, and Mongold proceeded to go back inside the home in order to inform defendant that his wife was going to sign a criminal complaint against him for domestic violence. Mongold re-entered the house while Taylor followed behind him. The officers entered the house through the front door and proceeded to the living room. Since they did not encounter defendant, they went further into the house. As they approached a hallway opening, they heard defendant say, "If you don't have a warrant get the fuck out of my house." Then defendant met the officers while holding a 30-30 rifle. The rifle was pointed directly at Mongold so that he could see right down its barrel. The rifle was later determined to be functional and loaded with rounds in two magazines. Also, there was one round found on the floor, one round in the chamber and the hammer was cocked. The officers were able to wrestle the rifle away from defendant and put him on the floor in order to handcuff him.
On September 29, 1988, defendant was indicted for felonious assault, with a firearm specification that defendant had a firearm on or about his person or under his control at the time of the commission of the felonious assault. A jury trial commenced on March 13, 1989, and concluded by finding defendant guilty of felonious assault with a firearm specification, as set forth in the indictment. During the course of the trial, the court overruled defendant's repeated motions for acquittal, pursuant to Crim. R. 29. Defendant was sentenced to three years' actual incarceration on the gun specification, and a consecutive sentence of not less than five years nor more than twenty-five years was imposed for the felonious assault conviction.
A divided court of appeals reversed defendant's conviction, holding that pursuant to Crim. R. 29, his conviction was legally insufficient and contrary to law, although noting it was not against the manifest weight of the evidence.
The cause is before this court upon an allowance of a motion for leave to appeal.
John H. Roszmann, prosecuting attorney, for appellant.
Jerry Weiner Legal Services Co., L.P.A., Jerry Weiner and Donald R. Shartzer, for appellee.
The single issue presented for our review is the propriety of indicting and convicting defendant Thurman Green for felonious assault on the facts alleged in the indictment and proven at trial.
In the state's sole proposition of law, it alleges that the act of pointing a cocked, loaded and functional firearm at another coupled with a verbal threat expressed at the same instant, is sufficient evidence to establish the elements of "felonious assault" as defined by R.C. 2903.11(A)(2). Under the facts of this case, we agree.
The elements of felonious assault are set forth in R.C. 2903.11, which provides in pertinent part:
"(A) No person shall knowingly:
"* * *
"(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.
"(B) * * * If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, felonious assault is an aggravated felony of the first degree."
"Knowingly," for purposes of R.C. 2903.11, is defined in R.C. 2901.22(B) as:
"A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist."
And, "attempt" for purposes of R.C. 2903.11 is defined in R.C. 2923.02(A) as follows:
"No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense."
In State v. Woods (1976), 48 Ohio St.2d 127, 2 O.O. 3d 289, 357 N.E.2d 1059, paragraph one of the syllabus, this court explained that a person is guilty of criminal attempt where he or she "* * * purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose. (R.C. 2923.02[A] construed.)"
Comment 6(a) to Section 5.01 of the Model Penal Code explains the requirements of "substantial step" and corroboration of the actor's criminal purpose:
"(a) * * * Whether a particular act is a substantial step is obviously a matter of degree. To this extent, the Code retains the element of imprecision found in most of the other approaches to the preparation-attempt problem. There are, however, several differences to be noted:
"' First, this formulation shifts the emphasis from what remains to be done, the chief concern of the proximity tests, to what the actor has already done. That further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial. It is expected, in the normal case, that this approach will broaden the scope of attempt liability.
"Second, although it is intended that the requirement of a substantial step will result in the imposition of attempt liability only in those instances in which some firmness of criminal purpose is shown, no finding is required as to whether the actor would probably have desisted prior to completing the crime. Potentially the probable desistance test could reach very early steps toward crime, depending on how one assesses the probabilities of desistance; but since in practice this test follows closely the proximity approaches, rejection of a test of probable desistance will not narrow the scope of attempt liability.
"Finally, the requirement of proving a substantial step generally will prove less of a hurdle for the prosecution than the res ipsa loquitur approach, which requires that the actor's conduct itself have manifested the criminal purpose. The basic rationale of the requirement that the actor's conduct shall strongly corroborate his purpose to commit a crime is, of course, the same as that underlying the res ipsa loquitur view. But framed in terms of corroboration, the present formulation does not so narrowly circumscribe the scope of attempt liability. Rigorously applied, the res ipsa loquitur doctrine would provide immunity in many instances in which the actor had gone far toward the commission of an offense and had strongly indicated a criminal purpose. * * *" (Emphasis added.) A.L.I. Model Penal Code and Commentaries, Part I (1985) 329-330.
In State v. Brooks (1989), 44 Ohio St.3d 185, 542 N.E.2d 636, we were confronted with a case similar to the one at bar concerning the propriety of a felonious assault charge. In Brooks, the defendant was involved in a "heated conversation" with a barmaid which resulted in the defendant pointing a handgun at the woman's face and stating, "Bitch, I will kill you." Id. at 187, 542 N.E.2d at 638. We upheld Brooks' felonious assault conviction based upon the totality of the circumstances; however, we went on to say that, "[t]he act of pointing a deadly weapon at another, without additional evidence regarding the actor's intention, is insufficient to convict a defendant of the offense of 'felonious assault' * * *." Id. at syllabus.
It can be readily gleaned from our holding in Brooks, supra, that the additional evidence needed to uphold a felonious assault charge could include verbal threats as perceived by a reasonable person under the circumstances. Thus, the act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon, is sufficient evidence to convict a defendant of the offense of "felonious assault" as defined by R.C. 2903.11(A)(2).
In the case sub judice, defendant held a rifle aimed at Mongold's head. The rifle was loaded, the hammer was cocked, and the weapon was subsequently determined to be a fully functional firearm. Moreover, at the instant defendant positioned his weapon in the direction of the officers, he shouted, "If you don't have a warrant get the fuck out of my house." Clearly, under these circumstances a reasonable jury, properly instructed, could have concluded that defendant's actions were strongly corroborative of his intent to cause physical harm to the officers by means of his deadly weapon. See State v. Brooks, supra, at 192, 542 N.E.2d at 643. Therefore, we determine the court of appeals erred in finding that the evidence was legally insufficient to support the conviction of defendant for the offense of felonious assault with a firearm specification.
Defendant suggests that the only conviction that the evidence could support in this case is aggravated menacing, in violation of R.C. 2903.21(A), which reads as follows:
"No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of such other person or member of his immediate family."
We disagree, because the defendant, in making his threat along with his actions, took a substantial step in a course of conduct apparently planned to culminate in the commission of a crime.
Accordingly, for the foregoing reasons, the court of appeals' decision is reversed and defendant's conviction is reinstated, with the cause remanded to the trial court for imposition of sentence.
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, WRIGHT and RESNICK, JJ., concur.
SWEENEY and H. BROWN, JJ., dissent.