[Cite as State v. Ivory, 2015-Ohio-4373.]


                   Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102415



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                        STEVEN IVORY
                                                      DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   CONVICTION VACATED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-588038-A

        BEFORE:           McCormack, J., E.A. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: October 22, 2015
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Christine M. Vacha
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant, Steven Ivory, appeals from his convictions of

felonious assault and attempted felonious assault, each accompanied with one-and

three-year firearm specifications.     According to the victim, appellant verbally threatened

him regarding a dispute over a bicycle and then appeared to reach for his waist.         The

victim took off running, and two or three minutes later, the victim heard what sounded

like gunshots houses away.           The police never recovered the purported gun, nor

uncovered any physical evidence such as gunpowder, shell casings, bullets, or bullet holes

from the scene.    Although a lack of direct or physical evidence regarding the use of a

gun does not solely determine the outcome of the state’s case, the state otherwise failed to

produce sufficient evidence to prove appellant attempted to cause serious physical harm

to the victim, or attempted to cause physical harm by means of a gun.               Because

appellant’s convictions were not supported by sufficient evidence, we vacate his

convictions.

       {¶2} Ivory was indicted for felonious assault (Count 1) in violation of

R.C. 2903.11(A)(2), a second-degree felony, and attempted felonious assault (Count 2),

in violation of R.C. 2903.11(A)(1) and 2923.02 (attempt), a third-degree felony. Both

counts were accompanied with one- and three-year firearm specifications.       Ivory pleaded

not guilty, and the matter was tried to the bench.
        {¶3} The primary evidence for the two charged offenses and firearm

specifications came from the testimony of the purported victim, Luis Molina.           He

testified that he knew defendant Ivory since the 6th grade and the two did not get along

well.   A few weeks before the shooting incident, Ivory borrowed a bicycle from Molina

that Molina’s grandmother had purchased, and Ivory never returned the bicycle.    On July

8, 2013, while Molina was walking down a street in his neighborhood, he saw Ivory

coming from an alley. Ivory started yelling at him “from the other side of the field

talking about how he [Molina] was a dead man.”          According to Molina, Ivory then

“reached for his waist.”   Without actually seeing a gun, Molina took off running.   After

running for two or three minutes, he reached a corner of the street.   Just then he heard

two or three gunshots.     He did not see Ivory shoot as there were houses between them.

Molina testified that he recognized the noises he heard as gunshots because gunshots

were common occurrences in his neighborhood.          This is the extent of the victim’s

testimony regarding the shooting.

        {¶4} Molina testified that, after hearing the gunshots, he ran to a friend’s house

and used the friend’s phone to call his mother.   His mother came to pick him up and she

then called the police about the incident.   Molina and Ivory subsequently socialized in a

group setting on one occasion, but Molina did not call the police to report Ivory’s

whereabouts.

        {¶5} Molina’s mother also testified for the state. She testified that her son and

Ivory have known each other since middle school but never got along well.      On the day
of the incident, she received a phone call from her son about Ivory shooting at him.   She

picked her son up and called the police for him.

        {¶6} She testified, however, that Ivory stole a bicycle from her son after the

shooting incident, contradicting Molina’s testimony. When she saw Ivory later, she

confronted him about taking the bicycle. Ivory offered to pay 50 dollars for it but never

paid.   Afterward, she confronted him on a separate occasion about the shooting incident.

        {¶7} Officer Matthew Nycz testified that he received a radio broadcast and

responded to the shooting incident. He met with Molina and his mother and searched

the area for any shell casings or bullets, without being able to locate any.

        {¶8} Detective Stephanie Hunter testified that after she was assigned to

investigate this case, she received a phone call from Molina’s mother stating that Ivory

had “approached her son and threatened him again and took his bike.”              Detective

Hunter testified that no gun, shell casings, or bullets were recovered in this case.   She

stated, however, that in her experience investigating shootings, shell casings or bullets

were not always located, and certain types of guns would not project shell casings.

        {¶9} The defense did not present its own witnesses. The trial court found Ivory

guilty of both felonious assault (Count 1) and attempted felonious assault (Count 2), as

well as the one- and three-year firearm specifications.    The court merged the two counts

for sentencing and the state elected to proceed under Count 1.      The court imposed three

years on the merged count and also imposed a mandatory, consecutive three-year term on

the gun specifications.
      {¶10} Ivory now appeals, claiming two errors for our review.             In the first

assignment of error, he argues his convictions were not supported by sufficient evidence.

In the second assignment of error, he argues his convictions were against the manifest

weight of the evidence.

                                       Sufficiency

      {¶11} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether,

after viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a reasonable

doubt.” Id.

      {¶12} A sufficiency-of-the-evidence argument raises the issue of whether each

element of an offense has been adequately proven to allow the case to go to the jury or to

sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).    In essence, sufficiency is a test of adequacy. Id. at 386.

      {¶13} R.C. 2903.11 defines felonious assault as follows:

      A)      No person shall knowingly do either of the following:

      (1)     Cause serious physical harm to another * * *;

      (2)     Cause or attempt to cause physical harm to another * * * by means of
              a deadly weapon or dangerous ordnance.
      {¶14} Ivory was charged with two counts: felonious assault (Count 1) as defined in

R.C. 2903.11(A)(2) (knowingly caused or attempted to cause physical harm to Molina by

a handgun), and attempted felonious assault (Count 2) defined in R.C. 2903.11(A)(1)

(knowingly attempted to cause serious physical harm).

      {¶15} We recognize that the elements of an offense may be established by

circumstantial evidence and, in particular, the use of a gun can be inferred from the facts

and circumstances surrounding an incident.        See, e.g., State v. Walker, 8th Dist.

Cuyahoga No. 94490, 2011-Ohio-456, ¶ 23; State v. Knight, 2d Dist. Greene No.

2003CA14, 2004-Ohio-1941, ¶ 19.            We are mindful, however, that although

circumstantial evidence and direct evidence inherently possess the same probative value,

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus, the “proper

focus of judicial review should be quality and strength of evidence, whether direct or

circumstantial.” Id. at 271.

      {¶16} Our careful review of the evidence in this case shows that the testimony of

the victim, which was the state’s primary evidence for the offenses, is insufficient to

prove either appellant attempted to cause physical harm to the victim by a handgun

(Count 1), or attempted to cause serious physical harm to the victim (Count 2).

      {¶17} For Count 1, an essential element of the offense is the use of a gun. In this

case, we have a victim who never observed a gun in appellant’s possession, much less did

he witness appellant displaying or brandishing a gun, threatening the victim with a gun,

indicating he would use a gun, pointing the gun at the victim, or shooting a gun. Neither
did the police uncover a gun or any other physical evidence such as gun powder, shell

casings, bullets, or bullet holes, even though the police were on the scene soon after the

report of a shooting.   We recognize that the absence of direct or physical evidence

regarding the use of a gun is not necessarily determinative of the state’s case in proving

felonious assault defined in R.C. 2903.11(A)(2). State v. Smith, 8th Dist. Cuyahoga No.

94493, 2011-Ohio-90, ¶ 11.    We are also aware that a witness hearing gunshots could be

significant circumstantial evidence for the use of a gun. State v. Clayton, 8th Dist.

Cuyahoga No. 53883, 1988 Ohio App. LEXIS 2333. In the present case, however, even

according to the victim, after the defendant reached to his waist, gunshots were heard two

or three minutes later and a great distance away, in a neighborhood where gunshots were

common occurrences.

        {¶18} Regardless of whether such circumstantial evidence was sufficient to

establish the element of the use of a gun, more importantly, the state submitted

insufficient evidence to prove Ivory attempted to cause physical harm — an essential

element in both Count 1 (caused or attempted to cause physical harm by a handgun) and

Count 2 (attempted to cause serious physical harm). By the purported victim’s own

testimony, the gunshots were fired houses away after he had run for two or three minutes.

 This is insufficient — it is insufficient evidence to show an attempt to cause physical

harm.
       {¶19} “Due process requires the prosecution to prove, beyond a reasonable doubt,

every element necessary to constitute the crime with which the defendant is charged.”

State v. Rhodes, 63 Ohio St.3d 613, 626, 590 N.E.2d 261 (1992).

       {¶20} Reviewing the evidence in the record in a light most favorable to the

prosecution, we are unable to conclude that any reasonable trier of fact could have found

that all the essential elements of the offenses proven beyond a reasonable doubt.

       {¶21} Regardless of whether appellant’s conduct may have satisfied elements of

other criminal offenses, the state only indicted him for felonious assault and attempted

felonious assault.    Neither offense could be proven beyond a reasonable doubt even if

one views the evidence in the light most favorable to the prosecution.             Therefore, the

trial court should have granted appellant’s Crim.R. 29 motion to dismiss due to

insufficient evidence.

       {¶22} As to the firearm specifications,1 a firearm specification does not stand

alone because it is not a separate offense but merely a penalty enhancement contingent

upon an underlying felony conviction.               State v. Ford, 128 Ohio St.3d 398,

2011-Ohio-765, 945 N.E.2d 498, ¶ 16; State v. Gilbert, 8th Dist. Cuyahoga No. 90615,




         R.C. 2941.141 imposed an additional one-year prison term when “the offender had a firearm
       1


on or about the offender’s person or under the offender’s control while committing the offense.”
R.C. 2941.145 imposes an additional three-year prison term when “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.”
2009-Ohio-463, ¶ 16.       Therefore, when the convictions for predicate offenses are

vacated, as here, the firearm specifications are vacated as well.

       {¶23}     The first assignment of error is sustained. The second assignment of

error is moot.

       {¶24} Judgment of the common pleas court is vacated.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
