469 N.E.2d 992 | Ohio Ct. App. | 1984
Appellant, Reginald Hicks, was indicted for and convicted of the offense of aggravated robbery, a violation of R.C.
The term "deadly weapon" is defined in R.C.
" `Deadly weapon' means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon."
It is not disputed that appellant "used" the toy gun as a weapon during the attempted robbery. The only issue in dispute is whether it was "capable of inflicting death." 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. State v. Marshall
(1978),
Nevertheless, the Hamilton County Court of Appeals, in State v.Luckey (1974), 69 O.O. 2d 111, held that an unloaded starting pistol was not a "deadly weapon," where no attempt was made to strike any of the victims of the robbery. This case was decided under the former statutory definition of "deadly weapon."
The arresting police officers testified that the toy was metal, of light or medium weight, similar to a .252 or small .38 caliber handgun, and that they had investigated crimes where such objects had been used as bludgeons.
After a careful examination of the toy gun, and consistently with the aforestated applied interpretations of the statutory definition of "deadly weapon," we overrule the assigned error and affirm the decision of the trial court.
Judgment affirmed.
PRYATEL and ANN MCMANAMON, JJ., concur.
"Appellant was convicted with evidence insufficient as a matter of law thereby denying him his due process rights guaranteed by the