STATE OF OHIO v. CURTIS HAMMOND
No. 99074
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 13, 2013
[Cite as State v. Hammond, 2013-Ohio-2466.]
BEFORE: McCormack, J., Celebrezze, P.J., and Blackmon, J.
JUDGMENT: CONVICTION MODIFIED; REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560480
RELEASED AND JOURNALIZED: June 13, 2013
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John F. Hirschauer
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Curtis Hammond appeals from a judgment of the Cuyahoga County Court of Common Pleas that found him guilty of aggravated robbery and disrupting public services, and sentenced him to three and one-half years of imprisonment for his convictions. Having reviewed the record and applicable law, we conclude Hammond should have been convicted of robbery rather than аggravated robbery, because the state presented no evidence that the toy gun used in the incident is a “deadly weapon” as statutorily defined. We affirm his conviction of disrupting public services but modify his conviction of aggravated robbery to robbery and remand the matter for resentencing.
Substantive Facts and Procedural History
{¶2} Hammond was charged with aggravated robbery in violation of
{¶3} Johnnie S. Patrick, III, and Hammond both resided at a CMHA senior apartment complex located on East 93rd Street in Cleveland. Patrick has been a resident there for several years; Hammond moved in in January 2012. They struck up a friendship. Hammond, who was in his early 50‘s, would periodically check on Patrick,
{¶4} After they returned to Patrick‘s apartment, they ate the Polish boys and drank the alcohol, but Patrick and Hammond gave conflicting accounts as to what else transpired in the apartment. Patrick alleged Hammond robbed him; Hammond denied it.
{¶5} Patrick testified that, at one point, he went to use the toilet and, when he came out, he sat down on his bed. Hammond pretended to tie his shoelaces, but unexpectedly tackled him. While they were “tussling” and “wrestling,” Hammond reached for Patrick‘s pocket, where he kept his billfold. In the midst of the struggle, Hammоnd pulled out a gun. Believing Hammond would have hurt him with the gun, Patrick threw his hands up and gave up the struggle. Hammond took Patrick‘s billfold and then ripped the telephone off the wall before he ran out of the apartment. Patrick went downstairs to call the police at around 3:00 p.m. His billfold was later recovered from behind his bed. Patrick testified that he wears eyeglasses and also a patch over one eye, but he can see out of his good eye.
{¶6} Hammond testified that Pаtrick was like a father to him and he would check on Patrick often. He denied robbing Patrick after they returned to his apartment. He
{¶7} Hammond also testified that the toy gun retrieved from the apartment actually belonged to Patrick, who had shown him the gun the day before, and asked him to buy a real gun that would resemble the toy gun. Hammond told Patrick he was not going to buy a gun for him because both of them are ex-felons. Instead, he used the $200 Patrick gave him to purchase the gun to buy wine, liquor, and cigarettes for the two of them. He stated Patrick was angry with him for not purchasing a gun for him.
{¶8} Detective Ovalle, a CMHA police officer, received a call at about 3:00 p.m. on the day of the incident for an armed robbery at Patrick‘s apartment. Patrick, shaken and disheveled, told the officer he was robbed by a tall, black man named “Curtis.” His bedroom was in disarray — the mattress was on the floor, as well as clothing and other items, suggesting there had been some type of struggle. Food and alcoholic beverages were also scattered around. Patrick told the officer that Hammond pulled out a black pistol and demanded money from him, after he lost his eye glasses and eye patch during a struggle. Detective Ovalle found the eyeglasses and eye patch behind the bed, as well as a black plastic tоy pistol. After Patrick put his glasses on, he took a good look at the toy gun and identified it as the weapon pulled by Hammond. Detective Ovalle also observed the phone jack broken off the wall. Patrick did not sustain visible injuries.
{¶9} Patrick reported the incident to the apartment manager, Diane Tirado. Tirado testified that Patrick told her he and Hammond went to Double Exposure to get
{¶10} On appeal, Hammond appeals his convictions of aggravated robbery and disrupting public services, and also the consecutive sentences imposed by the trial court for his convictions.
Sufficiency of the Evidence
{¶11} Under his first assignment of error, Hammond claims his conviction of aggravated robbery is not supported by sufficient evidence.1
{¶12} When reviewing a challenge of the sufficiency of the evidence, a reviewing court examines the evidence admitted at trial and determines 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 syllаbus. “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
{¶13} Hammond was convicted of aggravated robbery, which is defined in
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender рossesses it, or use it; * * *.
{¶14} Hammond argues the evidence was insufficient to convict him of aggravated robbery. Specifically, he contends the state failed to present sufficient evidence showing the gun used in the robbery incident was a “deadly weapon.”
{¶15}
Whether the Toy Gun was a Deadly Weapon
{¶16} We begin with the recognition that “[a]n item does not have to be one that kills in order to be a deadly weapon. No item, no matter how small or commonplace,
{¶17} In State v. Hicks, 14 Ohio App.3d 25, 26, 469 N.E.2d 992 (8th Dist.1984), this court considеred the issue of whether the toy gun used during an attempted robbery was a deadly weapon. We observed that the courts have previously found inoperable guns, starter pistols, and inoperative BB and pellet guns “capable of inflicting death” because of their possible use as bludgeons. In Hicks, the arresting officer testified that the toy gun used in the incident was metal, similar to a .25 caliber handgun, and that the police had investigated crimes where such objects had been used as bludgeons. Based on the testimony and our own examination of the toy gun, which had been submitted as an exhibit, this court in Hicks concluded the conviction of aggravated robbery was supported by sufficient evidence.
{¶18} In State v. Brown, 101 Ohio App.3d 784, 656 N.E.2d 741 (1st Dist.1995), the defendant used a BB gun to assault the victim, and the First District applied Hicks to resolve the question of whether the defendant should have been convicted of felonious assault, an issue that similarly turned on whether the BB gun used by the defendant was a deadly weapon “capable of inflicting death.” The First District reversed the defendant‘s
{¶19} The First District explained that the law in Ohio was fairly well settled: “a BB gun may be a deadly weapon if capable of inflicting death, as a bludgeon, or perhaps as used in some other manner (one could envision a BB gun so powerful that it could be a deadly wеapon by its very nature).” (Emphasis sic.) Id. at 788. “This capability, however, is a factual issue to be determined by the trier of fact.” (Citation omitted.) Id. The First District noted that in Hicks, this court based its conclusion that the toy gun in that case was in fact a deadly weapon on the arresting officer‘s testimony that the toy gun was made of metal and that the police had investigated crimes where such objects had been used as bludgeons, as well as its own examination of the toy gun. Id.
{¶20} The First District explained that, in contrast to Hicks, there was no evidence that the Brown defendant ever used or threatened to use the BB gun as a bludgeon, nor could any inference of such use be made from the evidence. The BB gun was not introduced in evidence, and the only description of it was that it was long and had a pump. Although the victim in Brown was struck with BBs, there was absolutely no evidence adduced concerning the particular BB gun‘s capability of inflicting death, either as a bludgeon or otherwise. The First District emphasized that a BB gun was not a deadly weapon as a matter of law, concluding that, “in the absence of more evidence about the quality and characteristics of the BB gun used in the offense, identifying it as
{¶21} In State v. Gray, 1st Dist. No. C-081257, 2009-Ohio-5844, the court reached a similar conclusion that there was insufficient evidence to support the jury‘s finding that the defendant‘s BB gun was a “deadly weapon” under
{¶22} In State v. White, 8th Dist. No. 92972, 2010-Ohio-2342, another BB gun case, this court reached a different result, based on the evidence presented at trial. We reasoned that the trier of fact heard testimony that the gun was made of “hard” plastic; in addition, pictures of the gun recovered on the scene showed a warning engraved on the gun stating: “Not a toy. Misuse may cause fatal injury.” We also pointed out that the pistol-whipping the victim received had caused bleeding and swelling on his fаce. If the gun could open cuts and bruise the face, the trier of fact could rationally have concluded that this evidence was sufficient to demonstrate the bludgeoning power of the BB gun, thereby confirming that the BB gun could be used as a deadly weapon.
The State‘s Reliance on State v. Smith is Misplaced
{¶24} The state claims a prior decision from this court, State v. Smith, 8th Dist. No. 94167, 2011-Ohio-306, supports its contention that a toy gun could be a deadly weapon if it caused such fear that a victim was induced to part with his or her property.
{¶25} In Smith, the victim testified that appellant threatened him with a gun. When appellant was apprehendеd in his vehicle moments after the robbery, a .357 Magnum revolver was found in the vehicle‘s glove compartment; however, the police also found a toy plastic gun in the trunk of the car. In challenging the victim‘s credibility, appellant argued that the victim could not identify the gun pointed at him, leaving the possibility that the gun used in the robbery may have been the toy gun. A
{¶26} In its analysis, however, the panel mentioned in passing that whether a real gun or a toy gun was used to commit the robbery was not dispositive, because whether the real gun or the toy gun was pointed at the victim, the fear of the victim was such that the victim was induced to part with his property. The panel cited State v. Brooks, 2d Dist. No. 21531, 2007-Ohio-1029, for the statement. Brooks is not pertinent authority in an aggravated robbery case, because the Brooks defendant was charged with simple robbery in violation of
{¶27} The state‘s reliance on Smith is misplaced. In that case, the victim‘s testimony about having a gun pointed at him was corroborated by the discovery of a real gun in the glove compartment of the defendant‘s vehicle moments after the robbery. The fact that a toy gun was also found in the trunk was tangential to the case. The Smith
The State‘s Argument on Appeal
{¶28} On appeal, the state argues, for the first time, that the toy gun retrieved in the victim‘s apartment was not the weapon used in the offense. The state makes this argument even though in both its opening and closing argument, it alleged the toy gun retrieved was the weapon used by Hammond and it submitted the gun as the state‘s exhibit No. 1. The state now refers us to page 35 of the trial transcript, where Patrick was asked if the toy gun recovered by the police was the weapon used in the robbery and he answered it “[l]ook[s] like it.” Citing this testimony, the state claims Patrick did not really identify the toy gun as the weapon used in the offense and invites us to entertain the possibility that a different gun, presumably a real gun, could have been used in Hammond‘s commission of robbery.
{¶29} First of all, the claim that Patrick was unable to identify the toy gun as the weapon used in the robbery is belied by our own review of the trial transcript, which reflects Detective Ovalle‘s testimony on twо occasions at trial that, during his investigation, Patrick identified the toy gun as the one Hammond pulled during the incident.
{¶30} Second, the state raises this claim on appeal even though at trial it never presented this alternative theory. The state submitted no evidence whatsoever regarding the possible existence of a separate “real” gun.
{¶32} While the state presented evidence regarding the toy gun — the victim testified he was threatened with a gun; a toy gun was retrieved from the scene and identified by the victim to the police as the wеapon used. The toy gun was submitted as a trial exhibit. There was no evidence introduced in this case at all regarding the use of a real gun by Hammond during the robbery incident, other than the state‘s conjecture in its brief on appeal.
{¶33} Based on the foregoing analysis, we conclude that there is insufficient evidence to establish the use of a “deadly weapon,” an essential element for the offense of aggravated robbery.
{¶34} The state, in its closing argument, requested that the trial court consider, as an alternative to aggravated robbery, a reduced charge of simple robbery. Simple robbery is defined in
{¶35} Having reviewed the evidence contained in the record, we conclude there is sufficient evidence supporting a conviction of robbery as defined in
Manifest Weight
{¶36} Under the second assignment of error, Hammond claims his convictions for aggravated robbery and disrupting public services are against the manifest weight of the evidence. Having concluded the evidence on the record is sufficient to support a conviction of robbery as defined in
{¶37} Unlike sufficiency of the evidence, manifest weight of the evidence raises a factual issue.
“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”
Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 511, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983)
{¶39} Under this assignment of error, Hammond primarily challenges the victim‘s credibility, pointing out certain details of his testimony that were inconsistent — for example, he wаs inconsistent regarding the amount of money stolen and the time of the robbery.
{¶40} The weight to be given the evidence and the credibility of the witnesses is for the trier of fact — in this case, the trial judge, who had an opportunity to view the victim and observe his demeanor in weighing his credibility. The trial court was aware of the slight inconsistences in the victim‘s recounting of the incident.
{¶41} We note that the victim‘s account of being robbed by Hammond — giving up the struggle after Hammond pulled the gun because hе believed Hammond may hurt him with the gun — was largely corroborated by the investigating officer and the apartment manager. The officer found the victim‘s bedroom in a state of disarray indicative of a struggle. He also found the victim‘s eyeglasses and a toy gun behind the
{¶42} Regarding the conviction of disrupting public services, both the investigating officer and the apartment manager saw the telephone jack to have been ripped off the wall, supporting the victim‘s testimony that Hammond pulled the telephone after robbing him.
{¶43} Having reviewed the trial transcript, we cannot say this is one of the exceptional cases where the evidence weighs heavily against the conviction, which would warrant an exercise of our discretionary power to grant a new trial. The second assignment of error is overruled to the extent that manifest weight of the evidence supports Hammond‘s convictions for robbery as defined in
{¶44} Finally, under the third assignment of error, Hammond claims the trial court erred in imposing consecutive sentences for his offenses without making thе requisite statutory findings on the record. The state concedes the error. This issue is moot, however, because the matter is remanded to the trial court for resentencing. The trial court is to resentence Hammond based on the reduced conviction and to determine
{¶45} The trial court‘s judgment is modified to reduce the conviction from an aggravated robbery to robbery as defined in
It is ordered that appellant and appellee share the 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 mаndate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR