State v. James, Unpublished Decision (12-29-2005)
State v. James, Unpublished Decision (12-29-2005)
Opinion of the Court
{¶ 3} On September 28, 2004, appellant was indicted for one count of attempted murder in violation of R.C.
{¶ 5} Crim.R. 29(A) states that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." When reviewing sufficiency of the evidence, an appellate court must determine "[w]hether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks
(1991),
{¶ 6} Felonious assault is defined in R.C.
"[T]he factors to be considered in evaluating the likelihoodof misidentification include the opportunity of the witness toview the criminal at the time of the crime, the witness' degreeof attention, the accuracy of the witness' prior description ofthe criminal, the level of certainty demonstrated by the witnessat the confrontation, and the length of time between the crimeand the confrontation."
{¶ 7} In the instant case, appellant argues that it was dark at the time of the offense, and the victim was intoxicated and unsure who else was at the scene. The victim was the only witness to identify appellant as the shooter. Additionally, appellant argues that medical records dated September 3, 2004 indicate that the victim reported an unknown African-American male shot him. Other medical records also dated September 3, 2004 reflect that the victim reported a self-inflicted gunshot wound. Finally, medical records dated September 7, 2004 reveal that the victim reported the assailant's street name was "Nook." Appellant argues these inconsistent reports by the victim amount to an insufficient identification as a matter of law.
{¶ 8} The state, on the other hand, argues that the victim had seen appellant on at least one prior occasion, namely, the bar fight in August 2004. The victim testified that he saw appellant walking toward him, opening his coat and reaching inside, then he heard a gun fire and realized he had been shot. Seven days after being shot, the victim identified appellant in a photo array. Additionally, the state argues that the victim knew appellant only by his street name, "Nook"; therefore, his description of being shot by an African-American male is plausible. The state also argues that the isolated medical record stating that appellant's wound was self-inflicted must be an error. All other medical documents refer to appellant being shot by another individual. Furthermore, the trajectory of the bullet, which entered the victim's upper left back and traveled downward toward his liver, is inconsistent with a self-inflicted wound.
{¶ 9} Accordingly, the state put forth sufficient evidence to prove the essential elements of felonious assault, including identification of appellant as the assailant. Appellant's first assignment of error is overruled.
{¶ 11} The proper test for an appellate court reviewing a manifest weight of the evidence claim is as follows:
"The appellate court sits as the `thirteenth juror' and,reviewing the entire record, weighs all the reasonableinferences, considers the credibility of witnesses and determineswhether, in resolving conflicts in evidence, the jury clearlylost its way and created such a manifest miscarriage of justicethat the conviction must be reversed and a new trial ordered."
State v. Thompkins (1997),
{¶ 12} Under this assignment of error, appellant makes the same arguments as in his first assignment of error, stating that the victim's testimony was not credible. However, issues of witness credibility are within the province of the jury. See, e.g., State v. Hill (1996),
{¶ 13} In reviewing the entire record of the case at hand, we cannot say that the jury lost its way in believing the victim's testimony and finding appellant guilty of felonious assault with firearm specifications. Appellant's second assignment of error is without merit.
Judgment affirmed.
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 Cuyahoga County 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.
Cooney, P.J., and Kilbane, J., concur.
Reference
- Full Case Name
- State of Ohio v. Lamar James
- Cited By
- 2 cases
- Status
- Unpublished