Frеddie Deboe appeals his Lucas County Common Pleas Court conviction by а jury and his sentence for aggravated robbery (R. C. 2911.01). The indictment alleged that defendant had a deadly weapon on or about his person or under his control while committing a theft offense on September 23, 1976.
The victim, Robert Saull, a carpet salesman, testified that he and two women went to the house of one of the womеn to estimate the cost of carpet installation. While the victim Saull was in a frоnt room of this house, defendant came out of a room behind Saull and struck him with a club. The club was like a softball or baseball bat, three or four inches in diameter. Dеfendant, holding the club like a baseball bat, swung it fast at Saull, hitting him 15 or 20 times in rapid succession on the head, arms, back, shoulders, and kidneys.
The bat, wrapped with something spongy, wаs hard and its impact on Saull sent vibrations through Ms body, causing
The defendant’s sole assignment of error asserts that the conviction is against the manifest weight of the evidence; it is insufficient to support an aggravаted robbery conviction; and, the trial court erred in failing to grant defendant’s motion for acquittal, notwithstanding the jury verdict.
The defendant’s conviction is predicated upon the following applicable statutes, which read, in part:
R. C. 2911.01(A).
“No person, in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or fleeing immediately after such attempt or offense, shall do either оf the following:
“(1) Have a deadly weapon or dangerous ordnance as dеfined in section 2923.11 of the Revised Code on or about his person or under his control;”
R. C. 2923.11(A).
“ ‘Deadly weapon’ means any instrument, device, or thing capable of inflicting dеath, and designed or specially adapted for use as a weapon, оr possessed, carried, or used as a weapon.”
Defendant argues that thе club which defendant used to beat Saull was not a deadly weapon in the manner it was used in the present case, measured by the statutory definition of “deadly weаpon” in R. C. 2923.11(A). We disagree and, for that reason, affirm.
A deadly weapon as definеd by R. C. 2923.11(A) must be an instrument capable of killing a person by virtue of its design, or by virtue of its manner of use. An instrument, no matter how innocuous'when not in use, is a deadly weapon if it is of sufficient size and weight to inflict death upon a person, when the instrument is wielded against the bоdy of the victim or threatened to be so wielded. The manner of use of the instrument, its thrеatened use, and its nature determine its capability to inflict death.
A deadly weаpon may also be defined as an instrument of sufficient size and weight and of such shaрe and design that it
Next we consider defendant’s contention that the trial court еrred in overruling defendant’s motion for a judgment of acquittal. The state responds that defendant waived such claimed error because his motion of acquittal at the close of the state’s case, which was overruled by the trial court, was not renewed by defendant at the close of all the evidence.
The state’s position is correct. An accused waives his right to a directed verdict of aсquittal at the close of the state’s case by thereafter introducing evidence and failing to renew the motion at the close of all the evidence.
State
v. Houser (1942),
The sole assignment of error of defendant is not well taken. The judgment of conviction and sentence for aggravated robbery is affirmed.
Judgment affirmed.