[Cite as State v. Nolan, 2013-Ohio-2829.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2012-P-0047 - vs - :
BOBBY D. NOLAN, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 0727.
Judgment: Affirmed in part; reversed in part and remanded.
Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Patricia J. Smith, 9442 State Route 43, Streetsboro, OH 44241 (For Defendant- Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the final judgment in a criminal proceeding before the
Potage County Court of Common Pleas. After a jury trial, appellant, Bobby D. Nolan,
was found guilty of attempted felony murder, felonious assault, and possessing a
firearm while under a disability. He maintains that his conviction must be reversed
because he was denied proper discovery and the jury verdict was against the weight of
the evidence. {¶2} The subject matter of this case concerns an altercation between appellant
and the victim, Travis McPeak. The altercation happened in the yard of an apartment
complex in Kent, Ohio, during the early morning hours of November 15, 2011. Prior to
the incident, appellant and McPeak had met on only one occasion, approximately two
years earlier when both men were incarcerated at the Portage County Jail.
{¶3} Tiffany Burns was a resident of the apartment complex where the incident
occurred. Prior to November 15, 2011, Tiffany had shared her apartment with Nicole
David, who was appellant’s girlfriend. Recently, Nicole had moved from the apartment
and started to live with appellant. At that time, appellant was living with another friend,
Joshua Tipton, in Stow, Ohio.
{¶4} A few hours before the altercation, McPeak met Tiffany at a restaurant in
Ravenna, Ohio. McPeak drove his own truck to the restaurant; however, at some point
in the evening, he decided to “loan” his vehicle to Herschel Hill in exchange for illegal
drugs.
{¶5} After their initial rendezvous at the restaurant, McPeak and Tiffany went to
the home of a female friend in Ravenna, where they used illegal drugs. Eventually, they
decided to go to Tiffany’s apartment in Kent. The female friend agreed to drive McPeak
and Tiffany to Kent, and they arrived at the apartment at approximately 12:00 a.m.
{¶6} Over the next two hours, McPeak and Tiffany watched a movie together.
During this period, they had been alone in her apartment. At some point after the end of
the movie, though, appellant came to the apartment. He was accompanied by Joshua
Tipton and two other men. Prior to going to Tiffany’s apartment, the four men had been
at a local bar, where appellant had also engaged in illegal drug use.
2 {¶7} Almost instantly after entering the apartment, appellant began to verbally
harass McPeak, claiming that McPeak was a racist. At one point during the “harassing”
stage of the altercation, appellant ordered McPeak to totally disrobe so that his clothes
could be checked. Upon putting his garments back on, McPeak decided to leave and
went out the sole outside door to Tiffany’s apartment. He then proceeded to go toward
the sidewalk that was located near the adjacent roadway. At that juncture, Tipton was
seated in the vehicle he had used to drive appellant to the apartment. Tipton’s vehicle
was not parked directly in front of Tiffany’s door, but instead was located a few yards
down the roadway.
{¶8} As McPeak got to the sidewalk and began to turn right, he saw a shadow
coming toward him from behind. As McPeak turned to look, appellant attempted to hit
him. However, McPeak was able to duck and avoid the intended blow. He then pushed
appellant to the ground.
{¶9} As appellant was standing up, he removed a firearm from the front pocket
of his sweatshirt and immediately fired it in the general direction of McPeak. The bullet
entered the outside edge of McPeak’s left thigh, went across the entire width of the left
thigh, and exited the inside edge of the thigh. The bullet did not hit the femur bone in
the left thigh; nor did it hit the main artery for McPeak’s left leg.
{¶10} According to McPeak, he never saw appellant point the firearm at him, but
only saw a flash of light. According to Joshua Tipton, who saw the altercation through
the rearview mirror of his vehicle, appellant pointed the firearm downward, rather than at
McPeak’s torso or head. Pursuant to appellant’s version of the events, he pointed the
firearm downward because he was only attempting to intimidate McPeak.
3 {¶11} Upon being shot, McPeak ran away from the apartment complex. While
appellant yelled at McPeak as he was running, appellant did not fire the gun again and
did not chase after him. Over the next thirty minutes, McPeak hid in two different
locations and tried to contact Tiffany and his brother on his cell phone. When he was
convinced that he was not being followed, McPeak walked into a local convenient store
and asked to use the store phone. While he again tried to contact his brother, the store
clerk called the police on her cell phone. After the police arrived and noticed McPeak’s
injury, he was transported to a local hospital.
{¶12} When the Kent police tried to question McPeak about the shooting, he
was initially evasive. In fact, at one point, he told an officer that he thought his truck had
been stolen that night. However, after he was treated at the hospital, he explained the
entire incident to the police and executed a written statement. In addition, McPeak was
able to pick appellant out in a photo array.
{¶13} The Kent police were never able to recover the firearm that appellant used
in the shooting. In testifying for the state at trial, Joshua Tipton indicated that appellant
threw the firearm into a local lake.
{¶14} Within one week of the incident, the Portage County Grand jury returned a
three-count indictment, charging appellant with two counts of attempted murder and one
count of felonious assault. Each of the three counts had a firearm specification. While
these charges were pending, the grand jury returned a supplemental indictment, under
which appellant was charged with having a firearm while under a disability.
{¶15} Pursuant to the first count of attempted murder, appellant was charged
under R.C. 2923.02 and 2903.02(A), and essentially asserted that appellant purposely
4 attempted to cause McPeak’s death. The second attempted murder count was brought
under R.C. 2923.02 and 2903.02(B), and asserted that appellant knowingly engaged in
behavior that, if successful, would have caused McPeak’s death as a proximate cause
of his commission of the underlying offense of felonious assault.
{¶16} After appellant entered a plea of not guilty to all four charges, the parties
went forward with discovery. In response to appellant’s request for all medical records
stemming from McPeak’s hospital visit, the state only provided a three-page report.
{¶17} A three-day jury was held in February 2012. As part of its case-in-chief,
the state called Dr. Amy Swegan, a surgeon who treated McPeak at the hospital on the
morning of the incident. In anticipation of the doctor’s testimony, on the first day of the
trial, the state and the defense received from the hospital a packet of records regarding
McPeak which was substantially larger than the three-page report. These new records
contained some discussion concerning where the bullet had entered McPeak’s thigh
and where it had exited.
{¶18} At the outset of the second day of the trial, appellant’s trial counsel moved
the trial court to exclude the packet of hospital records from evidence on the basis that
the defense had been denied timely discovery. The trial court granted this motion in
part, specifically holding that the state would not be allowed to introduce the packet of
hospital records into evidence. However, the court also held that Dr. Swegan would be
permitted to review the packet for purposes of her testimony.
{¶19} In addition to Dr. Swegan, the state relied primarily upon the testimony of
McPeak and Joshua Tipton. In response, appellant testified on his own behalf. As part
of his testimony, appellant stated that he did not point the gun directly at McPeak, and
5 that he was only trying to scare McPeak by firing the gun at the ground.
{¶20} At the conclusion of the trial, the jury found appellant not guilty on the first
count of attempted murder. However, the jury returned a guilty verdict on the remaining
three counts. At the subsequent sentencing hearing, the trial court held that the second
attempted murder count and the felonious assault count would be merged because they
were allied offenses of similar import. Based upon this, the state elected to sentence
appellant solely on the second attempted murder count.
{¶21} In relation to the attempted murder count and the accompanying firearm
specification, the trial court imposed consecutive terms of seven years and three years.
As to the separate count of having a weapon while under a disability, the court ordered
a three-year term, to run concurrently with the ten-year term.
{¶22} In appealing his conviction, appellant has asserted three assignments of
error for review:
{¶23} “[1.] The trial court erred when it failed to preclude the state from using
medical records and testimonial evidence that were provided to defense counsel on the
day of trial in violation of Criminal Rule 16. In the alternative the trial court erred when it
failed to grant a continuance of the trial for the appellant to review the surprise
evidence. The appellant was denied the right to a fair and impartial trial and due
process of law.
{¶24} “[2.] Trial counsel was ineffective for failing to move for a continuance
when presented with Criminal Rule 16 materials on the day of trial that were detrimental
to and material to the appellant’s defense.
{¶25} “[3.] The jury verdict was against the manifest weight of the evidence
6 where the evidence did not support a finding that the appellant acted with purposeful
intent to commit murder when the evidence was apparent by all witness accounts that
the appellant fired the weapon downward negligently and recklessly.”
{¶26} Under his first assignment, appellant challenges the trial court’s ruling on
his motion to exclude the packet of medical records which were not provided to his trial
counsel until the first day of the trial. While acknowledging that the state was denied the
ability to introduce the packet into evidence, appellant still contends that the trial court
erred in allowing Dr. Swegan to review the entire packet before she testified. According
to appellant, by permitting the doctor to base her testimony on those records, the court
indirectly allowed the jury to hear the substance of the “new” records.
{¶27} The focus of defense counsel’s objection to the packet of records was the
presence of materials that discussed the nature of the wounds on McPeak’s left thigh.
Specifically, the packet contained two documents indicating that hospital employees
had made a determination concerning where the bullet had entered McPeak’s thigh and
exited the thigh. That is, the documents stated that the bullet entered through the outer
edge of the thigh and exited via the inside edge.
{¶28} The foregoing analysis of the wounds appears to have directly conflicted
with defense counsel’s theory of the case. Appellant asserted that his counsel intended
to show that the bullet had actually entered through the interior of the thigh. In light of
this, his counsel would then argued that the evidence supported the factual finding that
appellant did not act purposefully in firing the gun toward McPeak, but only recklessly or
negligently.
{¶29} When the failure to disclose relevant information is discovered during the
7 course of a criminal trial, it is governed by Crim.R. 16. State v. Summers, 11th Dist. No.
2011-A-0040, 2012-Ohio-4457, ¶28. Pursuant to Crim.R. 16(B)(3), the state is required
to provide to the defense copies of all hospital records that are reasonably available. If
the state fails to abide by the foregoing rule, a three-part test is employed to determine
the effect of a violation:
{¶30} “‘Prosecutorial violations of Crim.R. 16 are reversible only when there is a
showing that (1) the prosecution’s failure to disclose was a willful violation of the rule,
(2) foreknowledge of the information would have benefitted the accused in the
preparation of his defense, and (3) the accused suffered some prejudicial effect.’”
Summers, at ¶28, quoting State v. Joseph, 73 Ohio St.3d 450, 458 (1995).
{¶31} As to the first prong of the foregoing test, there is nothing in the record of
this case to indicate that the state intentionally withheld the packet of hospital records
from the defense in order to obtain a tactical advantage. Rather, the record supports
the conclusion that the state had not been aware of those particular records until they
were disclosed by the hospital on the first day of the trial.
{¶32} Regarding the second and third prong, this court would reiterate that the
primary aim of the defense case was to establish that appellant did not act purposefully
during the altercation. Of the four charges against appellant, only one, the first count of
attempted murder, alleged that he had acted purposefully. As noted above, appellant
was specifically found not guilty of that charge. Thus, since the defense was able to
prevail on the “purposeful” question, the trial record does not support the conclusion that
the defense was harmed in its preparation of the case, or that appellant was otherwise
denied a fair trial.
8 {¶33} While the record does show that Dr. Swegan was permitted to testify in a
manner that was consistent with the disputed materials in the packet of records, it also
establishes that appellant was not prejudiced by the violation of Crim.R. 16. Therefore,
appellant’s first assignment is without merit.
{¶34} Under his second assignment, appellant submits that, once the trial court
indicated that Dr. Swegan would be permitted to review the records packet, his counsel
should have moved for a continuance. Appellant claims his trial counsel should have
requested more time in which to obtain a medical expert who could have contradicted
the doctor’s testimony as to where the bullet had entered McPeak’s thigh. Based upon
this, appellant argues that he was denied effective assistance of trial counsel.
{¶35} In relation to this argument, this court would again note that, pursuant to
trial counsel’s theory of the underlying case, the question of where the bullet entered
McPeak’s thigh was only pertinent to the issue of whether appellant purposefully fired
the gun at him. That is, trial counsel never tried to tie the “entry” question to the issue of
whether appellant acted “knowingly” in firing the gun, as is required for felony murder
under R.C. 2903.02(B) and felonious assault under R.C. 2903.11(A)(2). Hence, given
that the jury never found that appellant acted intentionally, the granting of a continuance
would not have had any effect upon the outcome of appellant’s trial.
{¶36} To demonstrate a claim of ineffective assistance, the criminal defendant
must show, inter alia, that the result of his trial would have been different in the absence
of the alleged inadequate representation. State v. Kovacic, 11th Dist. No. 2010-L-065,
2012-Ohio-219, ¶45. In this case, appellant cannot carry this burden because the trial
record does not support the conclusion that the lack of a continuance deprived appellant
9 of a fair trial. For this reason, his second assignment is without merit.
{¶37} Under his final assignment, appellant maintains his conviction should be
reversed as being against the manifest weight of the evidence. As with his previous two
assignments, appellant’s argument focuses upon whether the facts of this case justified
a finding that he acted purposefully when he fired the gun toward McPeak. According to
him, the evidence could only be interpreted to demonstrate that he acted recklessly or
{¶38} In relation to the infliction of the wound to McPeak’s thigh, appellant was
only found guilty of attempted felony murder and felonious assault. Prior to discussing
the substance of appellant’s evidentiary challenge, this court is compelled to address a
separate question pertaining solely to the validity of his conviction for attempted felony
murder. After oral arguments, we ordered the parties to submit supplemental briefing
on the legal issue of whether attempted felony murder is a viable criminal offense under
Ohio law. Specifically, the parties were instructed to consider our prior analysis on the
issue in State v. Hendrix, 11th Dist. No. 2011-L-043, 2012-Ohio-2832. In conjunction
with his new submission, appellant has asserted a supplemental assignment of error for
review:
{¶39} “Whether as a matter of law, the appellant can be convicted of attempted
felony murder when there was no resultant death,”
{¶40} Appellant now contends that his conviction for attempted felony murder
must be declared void because, since the death of another person is a required element
for felony murder, the offense has no application in situations where the victim survives
the incident. In response, the state argues that attempted felony murder is a recognized
10 criminal offense because the Supreme Court of Ohio has expressly upheld convictions
for this crime.
{¶41} The basic offense of felony murder is defined in R.C. 2903.02(B):
{¶42} “(B) No person shall cause the death of another as a proximate result of
the offender’s committing or attempting to commit an offense of violence that is a felony
of the first or second degree * * *.”
{¶43} Under the plain and unambiguous elements for felony murder, the state is
not required to prove that the perpetrator acted with a specific mens rea in regard to
causing the death of another person. Instead, the state is only obligated to show that
the perpetrator had the necessary mens rea to commit the underlying violent offense.
In contrast, Ohio’s “attempt” statute, R.C. 2923.02(A), contains an express mens rea
requirement: “No person, purposely or knowingly, * * *shall engage in conduct that, if
successful, would constitute or result in the offense.”
{¶44} In light of the respective elements under R.C. 2903.02(B) and 2923.02(A),
a charge of “attempted felony murder” creates a purported offense that has conflicting
elements. Although an accused must act purposely or knowingly in order to be found
guilty of an “attempted” offense, such a state of mind is not needed in causing the death
of another under felony murder. The import of this obvious conflict was addressed by
this court in Hendrix, 2012-Ohio-2832, at ¶70-71:
{¶45} “An ‘attempt’ is typically referred to as an inchoate crime. See e.g. In re
Phillips, 5th Dist. No. CT2001-0051, 2002-Ohio-1581, 2002 Ohio App. LEXIS 1624, *7
citing Black’s Law Dictionary (6th ed. 1991) 761. In other words, the crime of ‘attempt’
is committed prior to and in preparation for an additional offense. An attempt requires
11 the specific intent to bring about a criminal result as well as a significant overt act in
furtherance of that intent. See State v. Williams, 8th Dist. No. 72659, 1999 Ohio App.
LEXIS 1446, *19 (Apr.1, 1999). Although an attempt is a complete offense in itself, it
presumes the underlying crime for which the offender has prepared has not been
completed.
{¶46} “Felony murder, alternatively, involves an inadvertent homicide resulting
from the commission of a felony of violence. See e.g. State v. Mays, 2d Dist. No.
24168, 2012-Ohio-838, ¶6. By definition, therefore, a felony murder charge requires
both a felony of violence and an unintended death. The victim, in this case, however,
survived. Not only is it impossible to attempt to cause an unintended result, one cannot
specifically intend to commit a crime that statutorily requires a homicide where no death
occurs. We therefore hold the trial court should have dismissed the counts of attempted
felony murder and complicity to attempted felony murder as both counts charge crimes
which are logically impossible.” (Emphasis sic.)
{¶47} In responding to appellant’s supplemental assignment in this case, the
state has not tried to directly refute this court’s legal analysis in Hendrix. Instead, the
state argues that Hendrix conflicts with the Ohio Supreme Court’s decision in State v.
Williams, 124 Ohio St.3d 381, 2010-Ohio-147. According to the state, Williams stands
for the proposition that a criminal defendant can be charged and convicted of attempted
felony murder in Ohio.
{¶48} In Williams, the defendant fired two gunshots in the general vicinity of the
victim. Although one of the bullets struck the victim’s spine and paralyzed him, he did
not die from his injuries. The Williams defendant was then indicted on two counts of
12 felonious assault and two counts of attempted murder, including one count of attempted
felony murder under R.C. 2903.02(B). After the jury found the defendant guilty on all
four counts, the trial court imposed a separate sentence for each offense. Id. at ¶6. On
appeal, the Eighth Appellate District held that the two counts of felonious assault should
have been merged into the two counts of attempted murder, and that the two attempted
murders should have then been merged for a single conviction and sentence. Id. at
¶10.
{¶49} In accepting the state’s appeal in Williams, the Ohio Supreme Court only
reviewed two issues: (1) are attempted felony murder and felonious assault under R.C.
2903.11(A)(1) allied offenses of similar import; and (2) are attempted “purposeful”
murder and felonious assault under R.C. 2903.11(A)(2) allied offenses of similar import?
Id. at ¶2. In resolving the first issue, the Supreme Court never addressed the question
of whether attempted felony murder is a viable criminal offense in Ohio. In fact, there is
no indication in the Williams opinion that the legal propriety of the attempted felony
murder charge was ever challenged by the defendant. Hence, even though the
Supreme Court implicitly assumed for the purposes of its limited discussion that the
conviction for attempted felony murder was proper, the Williams decision is not
dispositive of whether attempted felony murder constitutes a valid crime for which a
defendant can be tried and convicted.
{¶50} To the foregoing extent, the state has failed to demonstrate that our
Hendrix holding is inconsistent with any prior Ohio Supreme Court decision. In addition,
the state has not cited any other Ohio appellate opinion reaching a different conclusion
on the issue. Cf., State v. Holley, 2d Dist. Nos. CA 8195 and CA 8224, 1983 Ohio App.
13 LEXIS 12089 (Nov. 28, 1983). Moreover, our review of various decisions in other states
establishes that Hendrix is consistent with the majority view. This point was recently
discussed by an Arizona state appellate court in State v. Moore, 218 Ariz. 534, 189 P.3d
1107, 1110 (App.Div.1, 2008):
{¶51} “Finally, the overwhelming majority of state courts that have addressed
whether attempted felony murder is a cognizable crime have reached the same
conclusion. See [People v.] Patterson, 257 Cal. Rptr. at 409; State v. Gray, 654 So. 2d
552 (Fla. 1995); State v. Pratt, 125 Idaho 546, 873 P.2d 800, 812 (Idaho 1993)
(‘Attempted felony murder is not a crime in Idaho. Instead, there is either the crime of
murder, or the crime of attempt to commit a crime, in which case the state bears the
burden of proving that the defendant intended to commit the crime.’); People v. Viser,
62 Ill. 2d 568, 343 N.E.2d 903, 910 (Ill. 1975) (‘(T)he offense of attempt requires an
“intent to commit a specific offense”, while the distinct characteristic of felony murder is
that it does not involve an intention to kill. There is no such criminal offense as an
attempt to achieve an unintended result.’) (citations omitted); Head [v. State], 443
N.E.2d at 50 [(Ind. 1982)]; [State v.] Robinson, 883 P.2d at 767 [(Kan. 1994)]; Bruce v.
State, 317 Md. 642, 566 A.2d 103, 105 (Md. 1989) (‘Because a conviction for felony
murder requires no specific intent to kill, it follows that because a criminal attempt is a
specific intent crime, attempted felony murder is not a crime in Maryland.’) State v.
Dahlstrom, 276 Minn. 301, 150 N.W.2d 53 (Minn. 1967); State v. Darby, 200 N.J.
Super. 327, 491 A.2d 733, 736 (N.J. Super. Ct. App. Div. 1984) (‘“Attempted felony
murder” is a self-contradiction, for one does not “attempt” an unintended result.’); State
v. Price, 104 N.M. 703, 726 P.2d 857, 860 (N.M. Ct. App. 1986) (‘Thus, the result-
14 oriented nature of the doctrine and the unpopularity of felony murder are among the
concerns which persuade us not to recognize the crime of attempted felony murder.’);
State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996); Goodson v. Virginia, 467 S.E.2d
848, 853-56, 22 Va. App. 61 (Va. Ct. App. 1996) (‘We join the majority of states and
hold that, in order for a felony murder analysis to be applicable, a homicide must
occur.’); In re Richey, 175 P.3d 585, 587, 162 Wn.2d 865 (Wash. 2008). But see White
v. State, 266 Ark. 499, 585 S.W.2d 952 (Ark. 1979) (finding that attempted felony
murder is a cognizable offense in Arkansas).”
{¶52} Given the lack of any conflicting authority in Ohio and the nature of the
analysis followed by the vast majority of courts in other states, this court concludes that
the Hendrix holding shall continue to be binding authority in this jurisdiction. That is,
attempted felony murder is not a viable criminal offense. When the victim of a violent
felony offense does not die as a result of his injuries, the defendant can be charged with
attempted murder only if he purposely intended to cause the victim’s death. If such a
mens rea cannot be proven, the defendant can only be indicted on whatever underlying
“assault” offense is applicable under the facts of the case.
{¶53} In this case, McPeak was able to survive the injury to his thigh. As a
result, the jury should have only been allowed to consider the “purposeful” attempted
murder count under R.C. 2903.02(A). Because attempted felony murder constitutes a
logical impossibility which cannot be charged as a criminal offense, it was plain error for
the trial court to permit the state to go forward on that count. As the count of attempted
felony murder should have been dismissed, appellant’s supplemental assignment has
merit.
15 {¶54} In light of the foregoing, it is only necessary to consider appellant’s
“manifest weight” argument in regard to his conviction for felonious assault. As to that
offense, appellant was charged under R.C. 2903.11(A)(2):
{¶55} “(A) No person shall knowingly do either of the following:
{¶56} “* * *
{¶57} “(2) Cause or attempt to cause physical harm to another * * * by means of
a deadly weapon or dangerous ordinance.”
{¶58} The mens rea for felonious assault is “knowingly.” Therefore, the state
was required to demonstrate that appellant acted knowingly in firing the gun. There was
no burden to show that appellant committed an intentional act.
{¶59} The term “knowingly” is defined in R.C. 2901.22(B):
{¶60} “(B) 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.”
{¶61} There is no dispute that when appellant grabbed the firearm from his
sweatshirt pocket and pointed it at McPeak, they were only standing a few feet apart.
Furthermore, although appellant and Joshua Tipton both testified that appellant pointed
the gun in a downward fashion, there was also no dispute that the gun was pointed
toward McPeak. Thus, this was not a situation in which appellant fired the gun into the
air or in the opposite direction. Even though appellant did not shoot at McPeak’s head
or torso, he did fire in the general direction of McPeak’s legs.
{¶62} Based upon these facts, the jury could readily find that appellant had been
aware that, by firing the gun in this manner, it was probable that the bullet would hit
16 McPeak and impose physical harm to him. Therefore, the “mens rea” element for
felonious assault was satisfied.
{¶63} As a general proposition, a conviction will not be reversed as against the
manifest weight of the evidence unless the record shows that the jury lost its way in its
consideration of the evidence. Kovacic, 2012-Ohio-219, at ¶37. In this case, there was
substantial evidence upon which the jury could logically find that, even though appellant
did not act intentionally, he did act knowingly. Accordingly, since the conviction for
felonious assault was supported by the evidence, appellant’s third assignment is without
{¶64} Consistent with the foregoing analysis, appellant’s supplemental
assignment of error is well-taken. Therefore, the judgment of the Portage County Court
of Common Pleas is reversed in part, and the case is hereby remanded for further
proceedings, in which the trial court shall dismiss the count of attempted felony murder
and re-sentence appellant on the two remaining counts and firearm specification. In all
other respects, the judgment of the trial court is affirmed.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.