[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

negligently.

       {¶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

merit.

         {¶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.




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