[Cite as State v. Takacs,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102543

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RONALD TAKACS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-588601-A

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: November 5, 2015 ATTORNEY FOR APPELLANT

Susan J. Moran 55 Public Square Suite 1616 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Carl Mazzone Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant Ronald Takacs appeals his conviction for felonious

assault. Finding no merit to his appeal, we affirm.

Procedural History and Substantive Facts

{¶2} Takacs’s conviction arose from an incident that occurred on August 14,

2014, during which he allegedly aimed his vehicle at Christine Peters and accelerated

toward her in the parking lot of a Home Depot store. Takacs was indicted on one count

of felonious assault in violation of R.C. 2903.11(A)(2). The indictment alleged that

Takacs “did knowingly cause or attempt to cause physical harm * * * by means of a

deadly weapon or dangerous ordnance, to wit: motor vehicle.”

{¶3} The case proceeded to a jury trial. At trial, the state presented the

following witnesses: Christine Peters, Lee Cozad, and Lieutenant Christopher Britton.

The state also provided a videotape of Home Depot’s surveillance camera footage as

state’s exhibit No. 2. The following facts were adduced at trial.

{¶4} Christine Peters drove her silver Volkswagen to the Home Depot store

located at Severance Town Center in Cleveland Heights on August 14, 2014. From the

main entry lane, she made a right turn into a parking lane. While stopped to turn left

into a parking space, she saw a man pushing a cart near that space and waited until the

gentleman had cleared the parking space. While waiting, she noticed another vehicle

she described as a “bluish-green minivan type of car” approach and begin to pass her from her left side. The driver of this van was later identified as Ronald Takacs. She

testified that the van continued to travel past her on the left side and, as it passed, the

driver “leaned over, yelled at me, and flicked me off [with his middle finger] through the

passenger side window.” She could not hear what he said, but she could hear yelling.

Peters stated that she was surprised to see this vehicle, in a parking lane, approach and

pass from the left. She honked her horn at him. Peters stated that after the van passed

her, it sped down the lane and turned left at the end of the parking area.

{¶5} Peters then parked her car and proceeded on foot in the direction of the

store. As she was walking across the main entrance area, heading toward the store, she

observed the same vehicle that had passed her earlier now turn left onto the entry lane she

was crossing. The moving van was now facing her. She testified that she saw the van

heading at her and it appeared to be accelerating. She testified that the driver was

aiming his car at her and “going faster and faster and faster, to the point where I had to

run and jump out of the way to avoid being hit by his car.” Peters stated that the van

was approximately ten feet away from her when she realized that the driver was not

slowing down and if she did not move, she would be hit. She stated that the driver

appeared to be angry. He was yelling something at her through the window while

passing her.

{¶6} Immediately after the incident, Peters was able to get the van’s license plate

number and she spoke with a fellow customer, a gentleman who witnessed the incident.

She stated that she was in shock and did not know what to do and she was very shaken and upset. Shortly thereafter, she entered the store and, with a store employee’s

assistance, phoned the police.

{¶7} Lee Cozad testified that on the afternoon of August 14, 2014, he went to

Home Depot in order to pick up some items he had ordered. He parked his vehicle at the

end of the parking lot and proceeded to walk toward the store’s front entrance. As he

approached the canopy covering the contractor’s entrance, he observed a woman in a

silver Volkswagen attempt to pull into a parking space and he observed a blue van

approach the woman’s car from behind. Cozad testified that the driver of the van

appeared to be very angry “by how long the lady was taking to get a parking spot”

because he had yelled “something derogatory” at the woman from his open window.

Cozad stated that the van then cut past her vehicle and sped down toward the end of the

parking lot.

{¶8} Cozad continued to walk toward the front doors of the store. He testified

that when he was approximately 20 feet from the front doors, he heard the van approach

from behind him. As the van approached, he heard the engine accelerate, “almost like

the driver took the accelerator pedal and just shoved it right down on the floor.” The

woman from the silver car was in the same area in which he was walking. He observed

the van “careen toward [the lady from the silver car]” and he heard the driver of the van

yell something “nasty” out of the window. Cozad testified that if the woman had not

moved out of the way, she would have been hit. {¶9} Cozad was able to get the van’s license plate number before it sped away,

and when the police arrived, he provided a written statement of his observations of the

incident to the police. Cozad stated that the woman from the silver car was visibly

shaken and “very ashen.” He testified that shortly after the incident, the woman began

to cry and she “had a complete breakdown.”

{¶10} Lieutenant Christopher Britton, who was working security detail for

Severance Town Center on the day in question, responded to the scene. He testified that

he took statements from Cozad and Peters, who was visibly shaken and crying. He

obtained a license plate number of the fleeing vehicle from both Cozad and Peters.

During the course of the investigation, Lt. Britton was able to confirm that the license

plate matched a vehicle that was registered to Takacs. Peters identified the photograph

of Takacs obtained from the vehicle registration as the man who almost hit her. During

the investigation, Lt. Britton also secured the surveillance video of the incident.

{¶11} Following Lt. Britton’s testimony, the state rested. At the close of the

state’s case, Takacs moved for acquittal under Crim.R. 29, which the court denied. No

witnesses testified on behalf of the defense.

{¶12} The jury found Takacs guilty of felonious assault as charged. The trial

court sentenced Takacs to 28 days local incarceration and 18 months community control

sanctions. {¶13} Takacs now appeals his conviction, raising two assignments of error: (1)

the state failed to present sufficient evidence of felonious assault; and (2) his conviction is

against the manifest weight of the evidence.

Sufficiency and Manifest Weight of the Evidence

{¶14} Takacs claims that the state failed to provide sufficient evidence to support

his conviction for felonious assault. He also argues that his conviction is against the

manifest weight of the evidence.

{¶15} When assessing a challenge of sufficiency of the evidence, a reviewing

court examines the evidence admitted at trial and determines whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt. State v. Jenks,

,

(1991), paragraph two of the

syllabus. “The relevant inquiry is whether, 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.”

A reviewing court is not

to assess “whether the state’s evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.” State v. Thompkins,

,

(1997).

{¶16} While the test for sufficiency of the evidence requires a determination

whether the state has met its burden of production at trial, a manifest weight challenge

questions whether the state has met its burden of persuasion.

. Also unlike a challenge to the sufficiency of the evidence, a manifest weight challenge raises a

factual issue.

“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.”

, quoting State v. Martin,

,

(1st

Dist. 1983). A finding that a conviction was supported by the manifest weight of the

evidence, however, necessarily includes a finding of sufficiency. State v. Howard, 8th

Dist. Cuyahoga No. 97695,

, citing Thompkins at 388.

{¶17} “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass,

,

(1967), paragraph one of the syllabus. When examining witness credibility, “the

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.” State v. Awan,

,

(1986). A

factfinder is free to believe all, some, or none of the testimony of each witness appearing

before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538,

. {¶18} Takacs was convicted of felonious assault in violation of R.C.

2903.11(A)(2), which provides that “[n]o person shall knowingly * * * [c]ause or attempt

to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” A person acts knowingly, regardless of his or her 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 the person is aware that such

circumstances probably exist.” R.C. 2901.22(B).

{¶19} A “deadly weapon” is “any instrument, device, or thing capable of inflicting

death, and designed or specifically adapted for use as a weapon, or possessed, carried, or

used as a weapon.” R.C. 2923.11(A). It is well settled that a motor vehicle can be

classified as a “deadly weapon” under R.C. 2923.11 when it is “used in a manner likely to

produce death or great bodily harm.” State v. Andre, 8th Dist. Cuyahoga No. 101023,

; State v. Fredericy, 8th Dist. Cuyahoga No. 95677,

; State v. Tate, 8th Dist. Cuyahoga No. 87008,

, citing State v. Troyer, 8th Dist. Cuyahoga No. 61983,

(Apr. 1, 1993). This court has found that aiming a vehicle in the direction of an

individual in a parking lot while accelerating that vehicle toward that individual is an

action that “is likely to result in someone being seriously injured or killed.” Andre at ¶

37.

{¶20} Takacs contends that the state failed to present sufficient evidence

supporting his conviction. Specifically, he claims that the surveillance video does not support the conclusion that he “used his car with the requisite mens rea” for felonious

assault or that he used his car to cause physical harm. In support of his contention,

Takacs argues that the video demonstrates that he applied his brakes “throughout his

interaction” with Peters, he exercised complete control over his vehicle during the alleged

incident, and he did not direct his vehicle toward Peters, and therefore, there was

insufficient evidence of felonious assault. We disagree.

{¶21} When considering a challenge to the sufficiency of the evidence, we review

the evidence admitted at trial to determine “whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt.” Jenks,

,

, at paragraph two of the syllabus.

{¶22} Notwithstanding the surveillance video, the testimony of both Peters and

Cozad was sufficient evidence, if believed, that Takacs knowingly caused or attempted to

cause physical harm to Peters with his vehicle. Peters testified that when she first

encountered Takacs in the parking lot, he passed her on the left, yelled at her, “flicked

[her] off” with his middle finger, and sped away. She observed Takacs continue to turn

his vehicle to face where she was crossing the main entry lane. She testified that Takacs

aimed his car at her, accelerated, “going faster and faster and faster,” and angrily yelled

something out the window at her. She further testified that he was very close to her and

had she not jumped out of the way, she would have been hit.

{¶23} Cozad likewise testified that Takacs initially appeared angry with Peters

when Peters was attempting to park her car and he yelled “something derogatory” at her as he sped away from her. Cozad also testified that as he and Peters were crossing the

lane, heading toward the front doors of the store, he heard the van approach, with the

engine accelerating “almost like the driver took the accelerator pedal and just shoved it

right down on the floor.” Finally, Cozad testified that he saw the van “careen toward

[Peters]” while the driver yelled something “nasty” at her. He stated that had Peters not

jumped out of the way, Takacs would have hit her with his van.

{¶24} The testimony of Peters and Cozad, in and of itself, is sufficient evidence

for the trier of fact to find that Takacs knowingly attempted to cause physical harm.

Takacs appeared angry and directed that anger toward Peters. Both Cozad and Peters

testified that Takacs aimed his car at Peters and accelerated. Peters would likely have

been hit had she not jumped out of the way of Takacs’s fast-moving van.

{¶25} Accordingly, we find that any rational trier of fact could have found the

essential elements of felonious assault proven beyond a reasonable doubt. Takacs’s first

assignment of error is overruled.

{¶26} In his second assignment of error, Takacs contends that his conviction for

felonious assault was against the manifest weight of the evidence. In support of his

argument, Takacs presents the same arguments as he presented in his challenge to the

sufficiency of the evidence. Takacs essentially claims that the evidence failed to show

that he acted knowingly on August 14. Specifically, he argues that the “simple fact” that

he applied his brakes during the altercation with Peters, as demonstrated in the surveillance video, belies the conclusion that he “knowingly intended to attempt to cause

harm through the use of his van.” We disagree.

{¶27} In determining whether a verdict is against the manifest weight of the

evidence, we must review the entire record, weigh the evidence and all reasonable

inferences and determine whether, in resolving any conflicts in the record, the jury clearly

lost its way. Thompkins,

,

(1997). “Weight of the

evidence concerns the inclination of the greater amount of credible evidence * * * to

support one side of the issue rather than the other.”

{¶28} Takacs claims that the surveillance video precludes a finding that he

knowingly caused or attempted to cause Peters physical harm. A person acts

“knowingly” when he is aware that his conduct will probably cause a certain result or will

probably be of a certain nature. R.C. 2901.22(B). The statute does not require a

specific intent or purpose. State v. Ferrell, 8th Dist. Cuyahoga No. 93003,

, ¶ 45. Knowledge is a state of mind that must be proven from the

surrounding facts and circumstances. In re F.D., 8th Dist. Cuyahoga No. 102135,

, ¶ 16, citing State v. Anderson, 10th Dist. Franklin No. 06AP-174,

. “The mental element of knowledge does not require an inquiry

into the purpose for an act, but [it] involves the question of whether an individual is aware

that his or her conduct will probably cause a certain result or will probably be of a certain

nature.” In re F.D., citing Anderson at ¶ 43. {¶29} Here, Peters testified that Takacs demonstrated anger. He aimed his car at

her, accelerated, “going faster and faster and faster,” and he yelled something out the

window at her as he sped past her. She also testified that had she not jumped out of the

way, she would have been hit. She was visibly shaken and upset immediately following

the incident. Cozad, an individual who was walking in the same direction and area as

Peters, also testified that he saw Takacs’s van “careen toward [Peters]” while the driver

yelled something “nasty” at her. He stated, in fact, that he heard the vehicle’s

acceleration moments before Takacs sped toward Peters that sounded as if “the driver

took the accelerator pedal and just shoved it right down on the floor.” Cozad also

testified that had Peters not jumped out of the way, Takacs would have hit her with his

van.

{¶30} We find that the video does not contradict the above testimony. Rather, it

supports it. The video shows both Peters and Cozad simultaneously turn their heads into

the direction of the oncoming vehicle as they cross the main driveway near the front

entrance to the store, which suggests both individuals heard the vehicle accelerate. The

video then shows Takacs heading directly into Peters’s path at an apparent high rate of

speed, making no effort to avoid Peters. In fact, it appears from the video that the front

end of the van veers slightly toward Peters just as the van reaches her. Although the

video does reveal the illumination of brake lights for a brief moment, the brake lights are

not illuminated at the very moment the front end of Takacs’s van veers toward Peters and

nearly hits her. Just at that moment, as the van reaches Peters, the video shows Peters running and jumping to get out of the immediate path of the oncoming vehicle. In fact,

it appears from the video that had Peters not jumped out of the vehicle’s path, she would

have likely been hit. The video does not show Takacs slowing or stopping at any point.

{¶31} Based on our review of the entire record in this case, weighing the evidence

and all reasonable inferences therefrom, we find there was competent, credible evidence

as to the requisite mens rea element of felonious assault — i.e., that Takacs knowingly

caused or attempted to cause physical harm to Peters, regardless of his actual intention or

purpose. The fact that Takacs briefly applied his brakes moments before reaching Peters

as she crossed the street does not negate Takacs’s knowledge. This is not one of the

exceptional cases in which the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed.

{¶32} Takacs’s second assignment of error is overruled.

{¶33} Judgment affirmed.

It is ordered that appellee recover of appellant 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. ______________________________________________ TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR