State v. VannState v. Vann
Rendered on the 2nd day of October, 2009.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Kelly D. Madzey, Asst. Pros. Attorney, Atty. Reg. No.0079994, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Paul M. Courtney, Atty. Reg. No. 0020085, 575 S. Dixie Drive, Vandalia, OH 45377
Attorney for Defendant-Appellant
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GRADY, J.:
{¶ 1} Defendant, Manuel Vann, Jr., appeals from his conviction and sentence for aggravated robbery with a firearm specification.
{¶ 2} On September 13, 2007, Davion Gullette and Ashanti Morris went to Gebhardt’s market in Dayton, where Gullette was
{¶ 3} Dayton police officer Mark Ponichtera was dispatched to the area around Gebhardt’s market to look for the robbery suspect. Officer Ponichtera immediately spotted Defendant, who matched the description of the robber. When Defendant observed Officer Ponichtera, he ran inside the store.
{¶ 4} Officer Ponichtera followed Defendant and apprehended him, but did not find any handgun on Defendant’s person or inside the store. Officer Ponichtera released Defendant because Gullette had not yet positively identified a suspect. Gullette subsequently identified Defendant as “Allen,” the man who had robbed him, from a photographic lineup.
{¶ 5} Defendant was indicted on one count of aggravated
{¶ 6} Defendant timely appealed to this court from his conviction and sentence. He challenges only his conviction and sentence on the firearm specification.
{¶ 7} An appellant’s brief must contain “[a] statement of the case briefly describing the nature of the case, the course of proceedings, and the disposition in the court below.”
FIRST ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT COMMITTED STRUCTURAL ERROR IN CONVICTING APPELLANT OF THE FIREARM SPECIFICATION, IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF OHIO.”
{¶ 9} Defendant argues that the firearm specification contained in the indictment is defective because it fails to specify any culpable mental state, such as recklessness, and that this defect constitutes structural error that requires reversal of his conviction and sentence on the firearm specification. In support of his argument Defendant relies upon State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (Colon I), and State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732. In essence, Defendant argues that this court should extend the Ohio Supreme Court’s holding in Colon I to firearm specifications. We decline to do so because firearm specifications are not themselves separate criminal offenses that require proof of a culpable mental state.
{¶ 10} In Colon I the Ohio Supreme Court held that the failure of an indictment for robbery in violation of
{¶ 11} In Lozier, the Ohio Supreme Court found that the appropriate mens rea for the crime of trafficking in L.S.D. “in the vicinity of a school” in violation of
{¶ 12} Unlike Lozier and Colon, a firearm specification is
{¶ 13}
{¶ 14} Simply put, the holdings in Lozier and Colon do not apply to firearm specifications because they are neither
{¶ 15} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 16} “THE JUDGMENT OF THE TRIAL COURT ON THE FIREARM SPECIFICATION SHOULD BE REVERSED BECAUSE IT IS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE AT TRIAL.”
{¶ 17} A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380. The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259:
{¶ 18} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. 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 elements of the crime proven beyond a reasonable doubt.”
{¶ 20} “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 lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Accord: State v. Thompkins, supra.
{¶ 21} Defendant argues that his conviction on the firearm specification is not supported by legally sufficient evidence and is against the manifest weight of the evidence because the firearm he allegedly used during the robbery was never found and the State did not produce sufficient evidence to demonstrate that the firearm used was operable. We disagree.
{¶ 22}
{¶ 23} ” . . . that the offender had a firearm on or about the offender’s person or under the offender’s control while committing the offense and displayed the firearm, brandished
{¶ 24}
{¶ 25} “(1) ‘Firearm’ means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. ‘Firearm’ includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.
{¶ 26} “(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm.”
{¶ 27} Both a firearm’s existence and its operability may be inferred from the surrounding facts and circumstances. It is not necessary to admit the firearm used during the crime in evidence in order to establish a firearm specification. State v. Murphy (1990), 49 Ohio St.3d 206; State v. Knight, Greene App. No. 2003CA14, 2004-Ohio-1941. A victim’s belief that the weapon is a gun, together with the intent on the part of the accused to create and exploit that belief for his own criminal purposes, is sufficient to prove a firearm
{¶ 28} Actions alone, without verbal threats, may be sufficient circumstances to establish the operability of a firearm. For example, the evidence was sufficient to prove a firearm specification when masked men waived their guns and announced “this is a robbery.” State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, at fn.3. See also: State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. In State v. Melton, Montgomery App. No. 22591, 2009-Ohio-535, the defendant forced his way into the victim’s home, told her to “shush,” then pulled out a gun and proceeded to steal items of jewelry from the bedroom. Because the victim believed the gun was real, she feared for her safety and complied with the defendant’s demands. This court found the evidence was sufficient to support the firearm specification. Id. at ¶18, 36. Furthermore, because the victim in Melton was the only witness to testify on this issue, we found that the evidence was uncontroverted and the verdict was not against the manifest weight of the evidence. Id. at ¶37.
{¶ 29} The same applies in this case. Both Gullette and Morris testified that Defendant pulled out a small black handgun when he confronted Gullette outside Gebhardt’s market.
{¶ 30} Gullette and Morris both believed that the gun Defendant used during this robbery was real, and they complied with his actions because they feared being shot. The uncontested circumstantial evidence in this case is legally sufficient to prove the existence and operability of the firearm Defendant used to commit this robbery. Melton. Furthermore, because only Gullette and Morris testified on this issue, the guilty verdict on the firearm specification is not against the manifest weight of the evidence. Id.
{¶ 31} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
FROELICH, J. And FRENCH, J. concur.
Copies mailed to:
Kelly D. Madzey, Esq.
Paul M. Courtney, Esq.
Hon. Dennis J. Langer