of appellant, velimir lucic memorandum in support of ... lucic, was parking a vehicle on west sixth...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
STATE OF OHIO
Plaintiff-Appellee
-vs-
VELIMIR LUCIC
Defendant-Appellant
On Appeal from theCuyahoga County Courtof Appeals, EighthAppellate District
Court of AppealsCase No. CA 08 091069
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT, VELIMIR LUCIC
TERRY H. GILBERT (0021948)1370 Ontario Street, Suite 600Cleveland, OH 44113-1752(216) 241-1430
Attomey for Defendant-Appellant
WILLIAM D. MASON (0037540)Cuyahoga County ProsecutorJustice Center1200 Ontario StreetCleveland, OH 44113(216) 443-7747
Attorney for Plaintiff-Appellee
TABLE OF CONTENTSPage
EXPLANATION OF WHY THIS CASE IS A CASE OFGREAT GENERAL AND PUBLIC INTEREST AND INVOLVESA SUBSTANTIAL CONSTITUTIONAL QUESTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW . . . . . . . . . . . . . . . . . . . . . 6
PROPOSITION OF LAW
THE APPELLATE COURT ERRED IN AFFIRMING THE CONVICTION BYIMPERMISSIBLY INFERRING THE ELEMENT OF KNOWLEDGE OF THEWEAPON BY FINDING THAT APPELLANT'S ARROGANT DEMEANOR"LEADS TO A NATURAL INFERENCE THAT HE WAS AWARE OF THEGUN'S PRESENCE." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CONCLUSION ...................................................... 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX
Journal Entry and Opinion, State of Ohio v. Velimir Lucic . . . . . . . . . . . . . . . A-1
Journal Entry, State of Ohio v. Velimir Lucic, Denialof Motion for Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-9
EXPLANATION OF WHY THIS CASE IS A CASE OF GREAT GENERAL AND PUBLICINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
The culpable mental state "knowingly" as defined in R.C. 2901.22 (B), while simple
in its language, is difficult to apply regarding a host of criminal offenses where knowledge
is a critical element. How this element is applied to the common offense of Carrying a
Concealed Weapon (R.C. 2923.12) - within a vehicle - is more problematic particularly
when the weapon is contained in an enclosed compartment.
In the context of this weapons offense, the trier of fact is faced with an unworkable
"knowingly" definition which speaks of the concept of being aware that certain conduct "is
likely to cause a certain result." When one is stopped in a vehicle, and a gun is found in
a glove compartment or center console, the idea of causing a result is not involved. While
in the same definition (second sentence), the evidence of knowledge is achieved with the
awareness that "such circumstances probably exist," this seems to suggest that evidence
less than beyond a reasonable doubt is sufficient to prove this necessary element. Such
ambiguity should be addressed by this Court.
As set forth in this Memorandum, there exists a dearth of appellate decisions which
clearly lay out what constitutes "knowingly" when a gun is found in an enclosed
compartment of a vehicle without an admission from the alleged offender, or other
evidence linking the gun to the offender. Can it be, as in the instant case, that one merely
operating a vehicle (with no evidence of ownership), and no evidence of connection to the
gun, be found to be knowingly concealing the gun? That appears to be the conclusion of
the Court of Appeals.
I
Because so many citizens own guns which are easily moved around, there is a
patent danger that innocent drivers - operating a vehicle in which others use or have
access to - may be stopped by law enforcement for a traffic offense, or have their vehicle
towed, and a gun is found. Practically speaking, the burden is on them to prove that they
had no knowledge that it was there because the assumption will be that if they are driving
the vehicle, they must have probably been aware of the gun's presence. In this case, the
Appellate Court rested their conclusion of sufficiency merely on the attitude and demeanor
of the Appellant when confronted about the manner in which he parked a vehicle.
From a constitutional standpoint, the legislative definition of "knowingly,"
incorporated into standard jury instructions, raises serious due process concerns. Under
the facts of this case, and in view of Jackson v. Virginia, 443 U.S. 307 (1979), the
Appellant and perhaps others could have been wrongly convicted by juries who are hard
pressed to reconcile the general concept of "beyond a reasonable doubt" and the concept
of being aware the circumstances "probably exist."
As noted, CCW is a common and frequent subject of prosecutions. There is a great
public and general interest to insure that the courts of Ohio fairly and justly apply this law
with clear and proper application of definitions for triers of fact. Moreover, the ambiguity
in the definition, especially when it refers to probability (similar to a preponderance of the
evidence standard), may have the effect of diminishing the state's long required and
sacrosanct burden of proof in criminal cases. Such concern poses a substantial
constitutional question.
2
STATEMENT OF THE CASE
Defendant-Appellant, Velimir Lucic, was indicted in a one count indictment for
Carrying a Concealed Weapon in violation of Ohio Revised Code 2923.12, a felony of the
fourth degree.
The case proceeded to jurytrial before Judge Eileen T. Gallagher on November 20,
2007. At the close of the State's case, the Trial Court denied Defendant's Motion for
Judgment of Acquittal, pursuant to Rule 29 of the Ohio Rules of Criminal Procedure. On
November 21, 2007, the Trial Court denied the Defendant's renewed Motion for Judgment
of Acquittal. On November 21, 2007, a jury found Velimir Lucic guilty as charged of the
one-count of Carrying a Concealed Weapon.
The judgment was appealed to the Court of Appeals, Eighth Judicial District, on
February 21, 2008. That Court heard oral argument on January 13, 2009 and announced
its opinion on February 12, 2009 affirming the conviction. After a Motion for
Reconsideration was denied, the final appealable order was issued on March 12, 2009.
3
STATEMENT OF FACTS
The facts in this case are not in dispute. The Appellant, for purposes of this
Memorandum in Support of Jurisdiction, is willing to stipulate to the recitation of the
evidence as presented by the prosecution at trial and adopted by the Court of Appeals in
its decision. (see Journal Entry and Opinion, pp. 1-3.)
The salient facts are fairly straightforward. On April 19, 2007, Appellant, Velimir
Lucic, was parking a vehicle on West Sixth Street in Downtown Cleveland. A police
officer, Perkins, working off-duty security for a bar, observed Lucic make two u-turns and
then back into a parking spot while his right tire went up on the curb.
Perkins attempted to inform Lucic concerning the manner in which the vehicle was
parked and Lucic ignored the gesture and got back into the car "put it in drive and started
moving toward Perkins."
Perkins decided to issue a parking ticket and ordered Lucic to stop. Rather than
issuing a parking ticket, Perkins asked for a driver's license, to which Lucic responded that
"he didn't have one with him." At that point, he was placed under arrest for driving without
a license.
Another off-duty officer working security, Officer Loomis, came over to the scene
and conducted an inventory search incident to the arrest. He opened the center console
and found a loaded gun, at which point Lucic seemed surprised.
There was no evidence who owned the vehicle. There were no fingerprints
indicating Lucic's connection to the gun. There was no check on the ownership of the
weapon. There were no papers in the vehicle or console indicating an association with the
vehicle.
4
However, the Court found sufficient circumstantial evidence of knowledge of the
existence of the weapon based on the "evidence" that Lucic acted in an uncooperative
manner when first approached by Officer Perkins in connection with the parking issue. It
is this finding which Appellant urges the Court to accept this case for review as it
constitutes mere speculation that his demeanor points to the requisite knowledge from
which a jury could find knowledge beyond a reasonable doubt.
5
ARGUMENT IN SUPPORT OF JURISDICTION
PROPOSITION OF LAW:
THE APPELLATE COURT ERRED IN AFFIRMING THE CONVICTION BYIMPERMISSIBLY INFERRING THE ELEMENT OF KNOWLEDGE OF THEWEAPON BY FINDING THAT APPELLANT'S ARROGANT DEMEANOR"LEADS TO A NATURAL INFERENCE THAT HE WAS AWARE OF THEGUN'S PRESENCE."
The decision in this case is deeply flawed and must be reviewed by this Court in the
interest of justice. Essentially, the Court of Appeals found that Appellant had knowledge
of the existence of this weapon simply because he was alone driving the vehicle, and that
he acted arrogantly toward an off-duty police officer over a possible parking ticket. Such
logic goes against historic notions of what constitutes reliable circumstantial evidence and
further constitutes a marked break in precedent, particularly in the Eighth District, as to
what evidence is sufficient to prove knowledge.
The Court states: "Lucic's demeanor leads to the natural inference that he was
aware of the gun's presence." (Decision at p. 5.) The Court goes on to make a dramatic
leap in suggesting a multiple piling on of inferences: that questioning authority over his
parking is a display of arrogance; that his arrogance infers he is invulnerable; and that his
sense of invulnerability is somehow related to his possession of a powerful weapon. This
circular and bizarre logic requires review. How does the fact that someone questioning the
authority of an off-duty police officer over a parking situation lead to a "natural inference"
sufficient to permit a jury to find evidence beyond a reasonable doubt that he knew there
was a gun in the console - without more?
Even with the standard requirement that the evidence be viewed in a light most
favorable to the State, the inferences from such evidence must withstand the scrutiny of
6
logic and common sense. The Appellate Court acknowledged the requirement that the
circumstantial evidence must make a fact more probable than any other. But the Court
places more weight on the circumstance of the Appellant's demeanor over the earlier
parking "confrontation" than with respect to his demeanor at the moment the gun was
found. Why was so much emphasis placed on the earlier interaction with Perkins than the
later reaction with Loomis when Lucic "seemed surprised" at the moment the gun was
produced - a circumstance which leads to more temporal and immediate connection to the
issue of knowledge?
Circumstantial evidence requires a reasonable inference to prove an element. As
stated in the syllabus of State v. Jenks (1991) 61 Ohio St.3d 259:
An appellate court's function when reviewing the sufficiency of the evidenceto support a criminal conviction is to examine the evidence admitted at trialto determine whether such evidence, if believed, would convince the averagemind of the defendant's guilt beyond a reasonable doubt. The relevantinquiry is whether, after viewing the evidence in a light most favorable to theprosecution, any rational trier of fact could have found the essential elementsof the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979],443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)
With all due respect, it is hard to fathom that Appellant's attitude about an off-duty
officer's request to move his car from a legitimate parking place leads an "average mind"
to find the essential element of knowledge beyond a reasonable doubt that he knew there
was a gun in the vehicle he was driving. Even the fact that he was driving the vehicle
shortly before the search, or that he was the only one in the vehicle, doesn't change the
equation. The State never produced evidence as to the ownership of the vehicle or the
gun, or other evidence of knowledge. Yet, the Appellate Court simply made an assumption
based on speculation, and found that "reasonable minds could reach different
7
conclusions." State v. Dennis (1997) 79 Ohio St.3d 421. When the case law speaks of
circumstantial evidence as being no different than direct evidence in order to prove an
essential fact, the law never contemplated the availability of any and all possible inferences
within humankind's mental arsenal, but only reasonable ornatural inferences. There is a
limit as to how far the circumstances can go before the evidence is simply a reach. And
the Jenks decision does not prevent a reviewing court - in examining the record - to say the
evidence is fundamentally insufficient to support a conviction. It actually requires such an
analysis.
The key issue here is the culpable mental state "knowingly" as defined in Ohio
Revised Code 2901.22(B):
"A person acts knowingly, regardless of his purpose, when he is aware thathis conduct is likely to cause a certain result or is likely to be of a certainnature. A person has knowledge of circumstances when he is aware thatsuch circumstances probably exist."
Itwould seem that the second sentence in the definition would be more appropriate
to the instant case to the extent that the State is able to prove that Lucic was aware that
the gun probably existed. Yet, the State only proved that he was the sole occupant driving
a car (of unknown ownership) with a weapon concealed in a console (of unknown origin),
and that he was uncooperative in connection with a parking issue, and that when the gun
was found, he acted surprised. The best inference that could be made under these
circumstances is that he might have known the gun was there. However, might have
known is quite different that probably aware. There are so many more likely scenarios: he
borrowed the vehicle momentarily to stop on West Sixth Street; someone else uses the
8
vehicle who put the gun in there; other people use the vehicle and forgot to tell him about
the gun; or someone set him up by planting the gun.
The danger here isthat.the evidence of knowledge as defined in Ohio Revised Code
2901.22(B) is so weak that the Appellate Court may be endorsing the conviction of a totally
innocent man.
The Court of Appeals opinion, as well as the Appellant, cited State v. Harris,
Cuyahoga App. No. 88765, 2007-Ohio-3916 as a guiding precedent. The Court suggests
that Harris is distinguishable because of Lucic's demeanor. But Harris makes a point of
raising circumstances not present which point to lack of knowledge. For example, Harris
"made no attempt to flee where guilty knowledge may be inferred, nor did he act nervous."
Id.
There was no evidence he "exercised dominion or control over the gun, and there
were no fingerprints or scientific evidence conducted that would have demonstrated
beyond a reasonable doubt that he knowingly carried the gun." Id. The Court of Appeals
decision attempts to distinguish Harris by calling attention to Lucic's arrogance earlier on,
but not the later surprised reaction when the gun was found. The gun in Harris was much
closer and accessible ( leaning on its side against the passenger seat adjustment bar) than
in a console between the driver and passenger seats. And yet another panel of the Eighth
Districtfound insufficient evidence and discharged the Appellant in a similar case. In State
v. Duganitz, 601 N.E. 2d 642 (Ohio App. 8th Dist., 1991) the Court refused to make an
inference that Duganitz knew the gun was in the seat because he was out looking for crack
cocaine. But here, the Court made the adverse inference because Lucic was
uncooperative over a parking issue.
9
CONCLUSION
This case presents an opportunity for the Court to consider the application of the
mental state of "knowingly" as defined in the Ohio Revised Code, and particularly in the
context of the frequent encounters police have with operators and occupants of vehicles
which contain a concealed weapon. The tendency of some courts to find the evidence
sufficient simply because the gun may be in reach and the defendant is driving the vehicle
can result in wrongful convictions. Standards forthe application of the "knowingly" definition
need to be clarified by this Court. For the foregoing reasons, Appellant asks this Court to
accept jurisdiction in this matter.
Respectfully submitted,
FRIEDMAN & GILBERT
TERRY H. GILBERT (0021948)1370 Ontario Street, Suite 600Cleveland, OH 44113-1752(216) 241-1430
Attorney for Defendant-Appellant
10
CERTIFICATE OF SERVICE
A copy of the foregoing Memorandum in Support of Jurisdiction of Appellant Velimir
Lucic has been sent by regular U.S. Mail, postage prepaid, this 24" day of April, 2009, to
William D. Mason, Esq., Cuyahoga County Prosecutor, at his office, Justice Center, 1200
Ontario Street, Cleveland, Ohio 44113.
Attorney for Defendant-Appellant
11
APPENDIX
MAR 12 2009
C i1ltC# Af AppEE[la IIf C04iQ
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINIONNo. 91069
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VELIMIR LUCIC
DEFENDANT-APPELLANT
JUDGMENT:AFFIRMED
Criminal Appeal from theCuyahoga County Court of Common Pleas
Case No. CR-495692
BEFORE: Rocco, P.J., Boyle, J., and Celebrezze, J.
RELEASED: February 12, 2009
JOURNALIZED: MAR 1 2 2009 CA08091069 56473691
11I^^^^ ^^^^^ ^^^^^ ^^^^^ ^^^^^ ^^^^^ ^^^^^ ^^^^^ ^^^^ 111N
v00677 300615A-1
ATTORNEY FOR APPELLANT
Terry H. GilbertFriedman & Gilbert1370 Ontario Street, Suite 600Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. MasonCuyahoga County Prosecutor
BY: Kevin R. FiliatrautAssistant Prosecuting AttorneyThe Justice Center1200 Ontario StreetCleveland, Ohio 44113
FII.EID AND JOURNALIZEDPER APP. B. 22(E)
MAR 12 2009GERALD E. FUE ST
BYERK OF 1^ Q T. - APPEALSa_s` 1^7^°_,_,(_' DEP.
ANNOUNCEMENT OF DECISTONPSR APP. P. 22I<s, 22i3l nAND 261A1
Rxi+..e:.Y i'iL
F1t3 'I 2 zuUy
Gc.yAI.D E. fy ERSTCLERK CIrT E GAUAIT Cf APPEALSBY ^^r^C DEP.
CA08091069 55954705
1111111111111111111111111111111111111 INII11111111N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
V6W 6 7 1 'PGO 6 15 A-2
-1-
KENNETH A. ROCCO, P.J.:
Defendant-appellant Velimir Lucic appeals from his conviction after a jury
found him guilty of carrying a concealed weapon.
Lucic presents one assignment of error. He argues his conviction is not
supported by sufficient evidence, on the basis that the state failed to prove the
element of knowledge.
Viewing the evidence presented in a light most favorable to the
prosecution, this court must disagree. Consequently, his conviction is affirmed.
The state presented the testimony of three Cleveland police officers at
Lucic's trial. Officer Carl Perkins stated that on the night of April 19, 2007, he
was working as security for a bar on West 6th Street.
As Perkins stood outside the entrance, he "observed a black Mercedes Benz
traveling northbound. The operator made a U-turn and attempted to park his
vehicle on the opposite side of the street, and he was unable to negotiate into the
parking space. He then made another U-turn, came around to [Perkins'S] side
of the street. There was a parking space right in front of where [Perkins] was
standing. However, there was another car that was preparing to park there. He
pulled in front of that car, and then he backed up and sped in real quick to get
into the parking spot. And in doing so, his***right rear tire went up on the curb
and ended up on the sidewalk."
yota 6 7 !0 6 17 A-3
-2-
The driver, appellant Lucic, exited his vehicle to walk across the street.
Perkiris indicated that, although U-turns were not permitted, he nevertheless
approached Lucic, identified himself as a Cleveland police officer, and merely
asked Lucic to move his vehicle off of the sidewalk. Lucic refused, asserting that
he was not required to comply because Perkins was "off duty."
Perkins repeated his request, and this time Lucic demanded to know why
he needed to move his car. Perkins moved toward the front of Lucic's vehicle,
offering to show him how far onto the sidewalk his tire encroached. Rather than
cooperating with Perkins's gesture, however, Lucic reentered his car, started it,
"put it in drive, and started moving toward [Perkins]."
Perkins had decided by then to issue a parking ticket to Lucic, thus, he
ordered Lucic to stop what he was doing and to produce his driver's license.
Lucic stated that he "didn't have one" with him. Perkins told Lucic to exit the
vehicle, and informed Lucic he was "under arrest for driving without a license."
Once again, Lucic refused to comply, stating Perkins was "off duty."
The situation taking place between Perkins and Lucic had attracted the
attention of Perkins's colleague, Det. Stephen Loomis, who also was working as
security for the bar that night. Loomis joined Perkins and added his order to
exit the vehicle; this time, Lucic did so.
As Perkins escorted Lucic to the other side of the vehicle to show him why
vM9 6 7 7 'Po 0 618 A-4
-3-
he was being cited for the initial parking violation as well as for driving without
a license, Loomis began "to inventory the vehicle in connection with the tow
incident to [Lucic's] arrest." When Loomis opened the center console, he found
a handgun.
Alarmed by the discovery, Loomis immediately rushed over to Lucic and
placed him in handcuffs. Loomis testified that, as he informed Perkins of the
find, in Loomis's opinion, Lucic "seemed surprised that it was in the car."
The gun, a Taurus nine millimeter semiautomatic, carried a full magazine
of seventeen hollow-point bullets. A police ballistics expert tested the weapon
and found it was fully operable.
Lucic subsequently was indicted on one count of carrying a concealed
weapon in violation of R.C. 2923.12. His case proceeded to a jury trial. After the
state presented the testimony of the police officers, the trial court denied Lucic's
motion for acquittal. Lucic elected to present no evidence and renewed his
motion for acquittal, which again was denied. The jury ultimately found Lucic
guilty of the offense.
Lucic appeals from his conviction with the following assignment of error.
"I. The trial court erred in denying appellant's motion for
judgment of acquittal for carrying a concealed weapon in violation of
R.C. 2923.12."
voLJ6 77 Po 0 6 I9 A-5
-4-
Lucic argues that since the state presented no proof either that he owned
the vehicle or that his fingerprints were on the gun, it failed to prove an
essential element of the offense, i.e., that he "knowingly" possessed a weapon;
therefore, the trial court should have granted his motions for acquittal. As
authority for his argument, he cites State v. Duganitz (1991), 76 Ohio App.3d
363. This court cannot agree.
A defendant's motion for acquittal should be denied if the evidence is such
that reasonable minds could reach different conclusions as to whether each
material element of the crimes has been proven beyond a reasonable doubt.
State v. Dennis, 79 Ohio St.3d 421, 1997-Ohio- 372; State v. Jenks (1991), 61 Ohio
St.3d 259; State v. Bridgeman (1978), 55 Ohio St.2d 261. The trial court is
required to view the evidence in a light most favorable to the state. State v.
Martin (1983), 20 Ohio App.3d 172.
Thus, circumstantial evidence alone may be used to support a conviction.
Jenks, supra. Circumstantial evidence is the proof of certain facts from which
a jury may infer other connected facts that usually and reasonably follow
according to the common experience of mankind. Duganitz, supra at 367. "[T]he
circumstances, to have the effect of establishing an allegation of fact, must be
such as to make the fact alleged appear more probable than anyother; the fact
in issue must be the most natural inference from the facts proved." Id.
veLO677 R00620 A-6
-5-
Lucic was charged with violating R.C. 2923.12(A)(2), which states in
pertinent part that, "No person shall knowingly carry or have***concealed ready
at hand***a handgun***." This court has held that the state can establish this
offense by presenting evidence of constructive possession. State v. Tisdel,
Cuyahoga App. No. 87516, 2006-Ohio-6763, ¶26. Moreover, pursuant to R.C.
2901.22(B), a person acts "knowingly" when he is aware that his conduct will
probably be of a certain nature. In re: D.S., Cuyahoga App. No. 88709, 2007-
Ohio-3911, 114.
The state's evidence demonstrated that Lucic was alone in the vehicle,
thus, no one else had access to it. State v. Herring (May 14, 1992), Cuyahoga
App. No. 60460; cf, State v. Harris, Cuyahoga App. No. 88765, 2007-Ohio-3916.
Furthermore, according to Perkins, from the time he first observed Lucic, Lucic
conducted himself with an arrogant attitude. Lucic's comments indicated not
only that he considered an "off-duty" police officer as impotent, but that he
considered himself invulnerable.
Unlike the defendant in Harris, Lucic's demeanor leads to the natural
inference that he was aware of the gun's presence. Rather than conducting
himself in a cooperative manner, his knowledge that he had a powerful weapon
nearby allowed him to act arrogantly toward an "off-duty" police officer. This,
together with the fact that the gun was found to be within his easy reach as he
1'&O 677 P:On6Z 1 A-7
-6-
was driving, alone in the car, distinguishes this case from the facts presented in
both Harris and Duganitz.
When the. evidence is viewed in a light most favorable to the prosecution,
this court cannot find that the trial court erred in denying Lucic's motions for
acquittal. Accordingly, his assignment of error is overruled.
Lucic's conviction is affirmed.
It is ordered that appellee recover from appellant 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. The defendant's
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCC"Ch, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;MARY JANE BOYLE, J., CONCURS INJUDGMENT ONLY
VRLG 6 7 7 PaO 6 2 2 A 8
(fnurf nf Appettls af @4tu, +.EYq4fi4 :45tstrtctCounty of Cuyahoga
Gerald E. Fuerst, Clerk of Courts
STATE OF OHIO
Appellee COA NO. LOWER COURT NO.91069 CP CR-495692
COMMON PLEAS COURT-vs-
VELIMIR LUCIC
Appellant MOTION NO. 418834
Date 03/12/2009
Journal Entry
APPELLANT'S MOTION FOR RECONSIDERATION IS DENIED. APPELLANT HAS FAILED TO EITHER
POINT OUT AN OBVIOUS ERROR IN THIS COURT'S DECISION OR RAISE AN ISSUE NOT FULLY
CONSIDERED BY THIS COURT. REASONABLE AND NATURAL INFERENCES FROM THE
CIRCUMSTANTIAL EVIDENCE PRESENTED IN THE CASE WERE SUFFICIENT TO PROVE
APPELLANT'S GUILT BEYOND A REASONABLE DOUBT.
RECEIVED FOR FILING
MAR 122009GERALD E. FUERST
CLERK OF OURT OF APPEALSBYm®°_ j^^-.m,._._.® D E P.
Judge MARY J. BOYLE, Concurs
Judge FRANK D. CELEBREZZE JR., ConcursPresiding Judge KEI4NETH A. ROCCO