 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Hoffert11/22/2002
Please note: We have removed this case from the accelerated calendar.
{ } Defendant-appellant Theodore Hoffert appeals his conviction on two counts of felonious assault, with gun specifications on each count, for firing a shotgun at two Cincinnati Police Officers. We affirm the findings of guilt, but conclude that because the trial court failed to inform Hoffert of the ramifications of post-release control, the sentence must be vacated and the case remanded for proper sentencing.
{ } On June 23, 2000, at about 3:30 am, Cincinnati Police Officers Patrick Murray and Mark Fogel responded to the 900 block of Grand Avenue to investigate possible DUI and menacing offenses involving Hoffert. Officer Murray noticed movement on the second floor of 914 Grand Avenue and pulled his police car up to the curb so that his side was closest to the window of the house. Officer Murray, who was familiar with Hoffert, pointed a spotlight at the window and called out Hoffert's name, requesting him to come down and talk with the officers.
{ } Hoffert did not want to come down, but the officers spent about five minutes attempting to coax Hoffert out. Officer Murray testified that Hoffert asked him if "that bitch" sent him over to Hoffert's home, which the officer acknowledged. Hoffert then said, "Don't worry about it, I'll take care of it myself." When asked by the officers what he meant, Hoffert said, "I have a shotgun and I'll take care of it." Seconds later, both officers saw the end of a gun barrel move across the window. Officer Murray testified that he immediately "hightailed it" down the street. The officers drove south on Grand, turned west at the corner, and swung the car around, stopping and exiting quickly. They then went to the edge of the house at the corner where they could see Hoffert's window while using the home for cover. As Officer Murray approached the corner of the house, he saw a flash and heard a loud bang that sounded like a gunshot. Officer Fogel testified that he saw the blast come from Hoffert's window. Both officers heard pellets falling from the sky, hitting the roof of the police cruiser and the house roof nearby. Officer Murray radioed for assistance, and two hours later, Hoffert was arrested.
{ } Hoffert was indicted on three counts of felonious assault in violation of R.C. 2903.11(A)(2), each first-degree felonies, with each count including a firearm specification under R.C. 2941.145(A). The trial court found Hoffert guilty on two counts of felonious assault with gun specifications and acquitted Hoffert on the third count. After the findings of guilt, Hoffert filed motions for a judgment of acquittal and for a new trial. At the sentencing hearing, the trial court denied both of Hoffert's motions and sentenced Hoffert to three years for each assault conviction, as well as to three years on each gun specification, to be served concurrently.
{ } In his first assignment of error, Hoffert argues that there was insufficient evidence to support his conviction for felonious assault with gun specifications, and that his conviction was against the manifest weight of the evidence. The legal concepts of sufficiency of the evidence and weight of the evidence are distinct. Sufficiency of the evidence challenges the adequacy of the evidence, while manifest weight challenges the credibility of the evidence.
{ } Whether the evidence is legally sufficient to sustain a conviction is a question of law. In the review of a claim of insufficient evidence, the relevant inquiry is whether any rational factfinder, viewing the evidence in a light most favorable to the state, could have found the essential elements of the crime proven beyond a reasonable
Page 1 2 3 4 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|