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State v. Hoffert11/22/2002
doubt. The conviction will not be disturbed unless we hold that reasonable minds could not reach the conclusion reached by the trier of fact.
{ } Hoffert was convicted of felonious assault under R.C. 2903.11(A)(2), which states that " o person shall knowingly * ause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance."
{ } The culpable mental state of knowingly is defined in Ohio as follows: "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."
{ } An attempt to commit an offense is made when a person purposely or knowingly engages in conduct that, if successful, would constitute or result in the offense. A person making a criminal attempt must make a substantial step in a course of conduct planned to culminate in the commission of the crime. The substantial step must be strongly corroborative of the actor's criminal purpose. Therefore, to prove the element of attempt to cause physical harm in this case, the state was required to prove that Hoffert did an overt act that was some substantial but ineffectual step directed towards accomplishing the physical harm through the use of a deadly weapon.
{ } The Ohio Supreme Court has held that the act of pointing a deadly weapon at another, without additional evidence regarding the actor's intention, is insufficient evidence to convict a defendant of the offense of felonious assault. But "there would be little doubt that a reasonable jury could convict a defendant of felonious assault if he had pointed his [weapon at the victim] and either fired or attempted to discharge his weapon in her direction."
{ } The state presented evidence that Hoffert shot the gun in the direction of the officers. Officer Fogel testified that, as soon as the officers saw a gun in the window, they drove south on Grand, turned west at the corner, turned the car around and got out. The officers were, therefore, southwest of Hoffert's window. Defense expert Larry Dehus, who examined the shotgun ammunition evidence in this case, along with visiting and measuring the scene, testified that the shotgun was aimed in a southwest direction from the window of Hoffert's house. Both officers testified that the pellets hit their police car and the roof of the house that they were taking cover behind. Therefore, the evidence indicated that Hoffert pointed his gun in the direction of the officers and fired, which was sufficient to support a finding of felonious assault.
{ } Despite this evidence, Hoffert argues that he could not have intended to physically harm the officers because he shot up into the air, and because the distance was too great for that particular gun and ammunition to reach the officers and physically harm them. These arguments are flawed.
{ } First, shooting up into the air instead of directly at the officers was consistent with an attempt to cause physical harm to the officers. Firearm expert Dehus testified that the shotgun blast out Hoffert's window was fired in an upward trajectory of 45 degrees or more. The upward trajectory allowed more distance for the shot. The officers were near a stop sign at the corner, which was just over 60 yards away from Hoffert's window. If the gun was fired directly at the stop sign, the shots would have hit the ground before reaching the sign, since the effective range for the shotgun with that ammunition was between 20 and 30 yards. Dehus testified, "You could hit something at 60 yards but y
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