State v. Bitting, 2017 Ohio 2955

On the night of the offense appellant Daniel L. Bitting entered a convenience store and purchased a cigar; seconds later his juvenile cousin T.J. entered, pointed a BB gun at the clerk, threatened to shoot her, and robbed the register.
Bitting remained inside during the robbery standing near T.J., paced and repeatedly looked toward the front door, briefly cracked and propped the door open but did not leave until immediately before T.J. fled; surveillance video corroborated these facts.
T.J. testified that Bitting had given him the BB gun one to two weeks earlier, that they discussed and changed plans for the robbery, and that they ran away together and T.J. later gave Bitting some of the stolen money.
Bitting was indicted for complicity to commit aggravated robbery and complicity to commit robbery; the jury convicted him on both counts.
The trial court found Bitting to be a repeat violent offender (the specification was bifurcated), merged allied counts for sentencing, and imposed a mandatory six-year prison term.
On appeal Bitting argued (1) insufficient evidence to support complicity and that the BB gun was not a deadly weapon, (2) verdict against the manifest weight of the evidence, and (3) plain/prejudicial error because the prosecutor repeatedly called the BB gun a "firearm."

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bitting)	Held
Sufficiency: complicity to commit aggravated robbery and robbery	Evidence showed aiding/abetting: prior provision of BB gun, planning, presence and conduct during robbery, flight together, division of proceeds	Bitting was only a bystander; no evidence he assisted or shared criminal intent	Affirmed: evidence sufficient; jury could infer aiding/abetting from presence, conduct, planning, and post-offense behavior
Sufficiency: BB gun as deadly weapon	BB gun bore a warning label, was loaded and intact, was pointed at clerk at arm's length — jury could infer capacity to cause death	BB gun is not a firearm and cannot be presumed lethal absent evidence of lethality	Affirmed: jury could infer deadly-weapon status from labeling, proximity, and circumstances
Prosecutor mischaracterized BB gun as a "firearm" (plain error)	N/A (prosecutor acknowledged error and corrected)	Misstatements prejudiced jury by equating BB gun with firearm; no curative instruction	No plain error: defense counsel corrected in closing, prosecutor corrected, jury instructions used correct term "deadly weapon," no showing outcome would clearly differ

State v. Thompkins, 78 Ohio St.3d 380 (defines standard for sufficiency review)
State v. Jenks, 61 Ohio St.3d 259 (standard for reviewing sufficiency of the evidence)
State v. Johnson, 93 Ohio St.3d 240 (aiding and abetting; intent may be inferred from presence and conduct)
State v. Widner, 69 Ohio St.2d 267 (mere presence at scene is not enough to prove aiding and abetting)
State v. Vondenberg, 61 Ohio St.2d 285 (jury may infer deadly nature of instrument from facts and circumstances)
State v. Shabazz, 146 Ohio St.3d 404 (aider/abetter punished as principal)
State v. Long, 53 Ohio St.2d 91 (plain-error doctrine applied narrowly)
State v. Otten, 33 Ohio App.3d 339 (standard for manifest-weight review)