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State v. Hoffert11/22/2002
ou would have to aim much higher to compensate for the fall." Therefore, Hoffert's aiming of the gun into the air was consistent with him firing at the officers and attempting to cause them physical harm.
{ } Second, Hoffert's claim that the distance precluded any finding of intent to physically harm the officers fails. It is no defense to an attempt to argue that, in retrospect, the offense could not have been committed due to a factual or legal impossibility. The fact that the officers were simply too far away for Hoffert's particular gun and ammunition to physically harm them did not exculpate Hoffert for his ineffectual attempt.
{ } The evidence supported the conclusion that Hoffert shot the gun out his window, in the direction of the officers, and up in the air so that the shot would travel the distance to the officers. We hold that the evidence presented by the state was sufficient as a matter of law to support the trial court's findings of guilt on two counts of felonious assault.
{ } Each of Hoffert's assault convictions also included a gun specification, which calls for a mandatory three-year prison term if "the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense." We also hold that there was sufficient evidence to support the trial court's finding on the gun specification for each conviction of felonious assault.
{ } Unlike a challenge to the sufficiency of the evidence, which attacks the adequacy of the evidence presented, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. When inquiring into the manifest weight of the evidence, we sit as a thirteenth juror and make an independent review of the record. We must "review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." This discretionary power should be invoked only in exceptional cases "where the evidence weighs heavily against the conviction."
{ } Upon review of the record, we cannot say that the trial court lost its way in finding Hoffert guilty of felonious assault. The trial court could have concluded that the evidence demonstrated that Hoffert intended to cause physical harm to the officers, and that Hoffert took action to carry out that intent. Therefore, we hold that the manifest weight of the evidence supported Hoffert's conviction for felonious assault with gun specifications.
{ } For the same reasons, we conclude that the trial court did not err by denying Hoffert's motions for acquittal and for a new trial. The trial court's findings of guilt were supported by sufficient evidence and were not contrary to law. Accordingly, Hoffert's first assignment of error is overruled.
{ } In his second assignment of error, Hoffert contends that the trial court erred by failing to notify him at his sentencing hearing of the possibility of post-release control and the ramifications of violating post-release supervision or post-release-control sanctions, as mandated by R.C. 2929.19(B)(3). In our recent decisions of State v. Dejanette and State v. Brown, we held that a trial court's failure to verbally notify a defendant about the possibility of post-release control at the sentencing hearing required us to vacate the sentence and remand the cas
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