COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59046 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DOUGLAS MANN, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 7, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-186,612 JUDGMENT : AFFIRMED IN PART AND : REVERSED AND REMANDED IN : PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Christa D. Brunst Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Nancy A. Fuerst 330 Standard Building Cleveland, Ohio 44113 -2- NAHRA, P.J.: Douglas Mann, defendant-appellant, appeals his conviction of two counts of aggravated robbery pursuant to R.C. 2911.01 with aggravated felony and firearm specifications. On October 6, 1983, Mann entered the Waterbed Factory in Cleveland, Ohio at approximately 3:00 p.m. According to Vicki Husak, a salesclerk at Waterbed, Mann inquired about various waterbeds and then left the store after remarking that he wanted to examine prices elsewhere. Mann returned to the store five minutes later and asked Husak to write up a purchase order for the bed. Mann identified himself as David Johnson, gave Husak the information she requested, and signed the order form. Husak also had Mann sign two copies of a sleep service contract. Mann then asked that the bed be put in layaway. Husak explained to him that a deposit was necessary. When Mann asked if the store accepted personal checks, Husak replied that it did but that she would need to see his driver's license. Mann left the premises again, apparently to get his license, and returned a short time later. He handed Husak a piece of paper with numbers on it. As Husak looked at it, Mann grabbed it out of her hands, pulled a gun from his pocket and pointed it about one inch from her face. Husak described the gun as a "bluing" revolver. Carol Milano, who was working in the office immediately behind the counter, similarly described the gun as short-nosed, grayish blue. -3- Husak testified that Mann put the gun to her back and ordered her into the office where Milano was working. Mann then ordered the women to get down on their hands and knees to which they complied. Mann then demanded the store's money. Carol Milano got up, gathered all of the cash in the office and placed it in a plastic bag which was held by Mann. Husak testified that she watched Mann get into a green car parked outside the store upon his exit. Husak also stated that she saw a woman on the passenger side. Husak and Milano both testified that Mann was wearing dirty clothes and had a blue-gray bandanna around his head. Both women identified Mann from photographs and from a lineup. Mann was indicted for two counts of aggravated robbery under R.C. 2911.01. Both counts included specifications for a prior aggravated felony conviction and for use of a firearm in the commission of the offense. On January 19, 1984, the first trial began. A mistrial was declared after the jury was unable to reach a unanimous verdict. On February 21, 1984, a second trial began and a jury found Mann guilty of all counts and specifications in the indictment. Thereafter, the trial court sentenced Mann to a term of fifteen to twenty-five years on each count, to be served concurrently. In addition, Mann was sentenced to a consecutive term of three years actual incarceration on each count of the firearm specification. This appeal follows. -4- I. Appellant's first assignment of error states: THAT THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT IN DENYING DEFENDANT-APPELLANT'S MOTION FOR A TRANSCRIPT OF THE PRIOR TRIAL AND FOR A HANDWRITING EXPERT AT THE STATE'S EXPENSE. Mann contends that the trial court erred when it refused his request for a transcript of his first trial. He maintains that without the transcript from the first trial he was unable to prepare for cross-examination and to determine whether there were any material inconsistencies in the witnesses' testimony in the second trial. In State v. Arrington (1975), 42 Ohio St. 2d 114, 326 N.E.2d 667, the Supreme Court of Ohio adopted the standard enunciated in Britt v. North Carolina (1971), 404 U.S. 226 in determining whether the state must provide an indigent defendant with a transcript of prior proceedings. The state must provide the defendant with a transcript of a prior proceeding when it is needed for an effective defense or appeal. State v. Arrington (1975), 42 Ohio St. 2d at paragraph one of the syllabus. Otherwise, the state has the burden of showing that the transcript is not necessary for an effective defense or appeal. Id. at paragraph two of the syllabus. Such a burden can be met if the state demonstrates that the transcript is not valuable to the defendant with respect to the trial or appeal, or that there are alternative devices available to the defendant that would -5- fulfill the same functions as a transcript. Id. at paragraph three of the syllabus. A review of the record indicates that Mann had viable alternatives available in place of the transcript. The state proposed that Mann's attorney could consult with Mann's original trial counsel or utilize Mann's own recollections of the first trial. In fact, Mann's counsel acknowledged that he had some pre-trial discussions with Mann's original attorney. Apart from the question of viable alternatives to a transcript, the state also argues that the transcript of the first trial was not valuable in connection with the second trial in view of the overwhelming evidence of Mann's guilt. Two of the state's witnesses identified Mann from photos and a lineup. Further, Mann was identified in an automobile owned by his girlfriend near the location of the robbery. We agree with the state's contention and believe that the value of the transcript to Mann would have been negligible in view of the overwhelming evidence supporting his culpability. Therefore, we do not believe the trial court erred in its denial of the transcript. Any possible error related thereto is deemed harmless. Mann also contends that the trial court erred by denying his request for a handwriting expert at the state's expense. Mann asserts that the assistance of a handwriting expert would bolster his defense of mistaken identity and prove that he did not sign the three separate documents when he attempted to purchase the waterbed. -6- In determining a request by an indigent defendant for an expert witness, a trial court should consider the value of the expert assistance to the defendant's proper representation as well as the availability of other means to satisfy that end. State v. Jenkins (1984), 15 Ohio St. 3d 164, 193, 473 N.E.2d 264. An indigent defendant has the burden of showing the reasonableness of a request for an expert. State v. Scott (1987), 41 Ohio App. 3d 313, 535 N.E.2d 379. We do not believe that the trial court abused its discretion in denying Mann's motion for a handwriting expert insofar as there were other means available to Mann which did not warrant the use of an expert witness. Prior to the first trial, the state secured a handwriting expert who was unable to conclude whether Mann signed the documents in question. Mann could have called the state's expert witness to testify at trial. Moreover, the trial court could have concluded that another expert was unnecessary. In opposing the motion, the state asserted that the handwriting expert it contacted found that the documents were signed with an "off-hand", i.e. the hand not naturally used by the writer. Therefore, Mann could not have established that he did not sign the documents even if he were afforded a handwriting expert of his own. As a result of the foregoing, we believe the trial court's denial of Mann's motion for an expert witness was proper. Appellant's first assignment of error is overruled. -7- II. Appellant's second assignment of error states: THAT THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT IN DENYING DEFENDANT-APPELLANT'S RULE 29 MOTION FOR ACQUITTAL AND IN SUSTAINING THE JURY'S CONVICTION ON TWO COUNTS OF AGGRAVATED ROBBERY. Criminal Rule 29(A) provides in part: The court on motion of a defendant or on its own motion, after the evidence is closed, shall order the entry of judgment of acquittal on one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. In reviewing a claim that the verdict is insufficient, an appellate court's duty is to review the record to determine whether there was sufficient evidence for any rational trier of fact to find defendant guilty beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, N.E.2d ; State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, paragraph four of the syllabus, cert. denied (1989), 109 S. Ct. 1177. R.C. 2911.01, which constitutes the crime of aggravated robbery, states in pertinent part: (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 such attempt or offense, shall do either of the following: (1) Have a deadly or dangerous ordnance, as defined in section 2923.11 of the Revised Code, in or about his person or under his control; (2) Inflict, or attempt to inflict serious physical harm on another. Vicki Husak testified that Mann pointed a gun in her face, one she described as the "bluing" type in which one "can see the -8- bullet" in the chamber. Both Husak and Carol Milano were forced to get down on their hands and knees by Mann who then demanded the store's money. Milano also testified that she observed Mann's hold-up of Husak at whom he pointed the "short-nosed, grayish-blue gun". Milano corroborated Husak's testimony that Mann demanded the store's money to which Milano complied by obtaining the cash and giving it to him. Our review of the record indicates that there was sufficient evidence to convict Mann under R.C. 2911.01(A)(1). As a result, the trial court did not err by overruling Mann's Crim. R. 29 motion. Mann also contests his convictions for two counts of aggravated robbery by asserting that they constitute allied offenses of similar import. In examining a defendant's conviction in two counts of aggravated robbery, a reviewing court must ascertain from the evidence the number of separate theft offenses and not the number of uses of force which took place. State v. Wilkerson (Mar. 13, 1980), Cuyahoga App. No. 40741, unreported; State v. Triplett (Oct. 13, 1983), Cuyahoga App. No. 45947, unreported. In Triplett, the defendant entered the Greyhound Bus Terminal and encountered an employee working the freight counter and another eating his dinner behind the counter. The defendant and his two accomplices each had a weapon. Both employees were ordered to lie down on the floor while the three went through -9- drawers searching for money. No such money was found and neither of the employees were forced to hand over any of their personal property. The Triplett court held that while several employees were present, there was only one theft against Greyhound, one single animus, and a conviction of one count of aggravated robbery. Similarly, when Mann took the store's money from Milano, only one theft offense transpired. Mann's confrontation with Husak in which he forced her to move did not constitute a separate aggravated robbery offense in the absence of a separate theft or attempted theft. A defendant who has a single animus, defined as purpose or immediate motive, may be convicted of only one crime. State v. Cartellone (1981), 3 Ohio App. 3d 145, 444 N.E.2d 68. Here, Mann's only palpable motive was to commit a theft offense against the Waterbed Factory. The fact that more than one employee was present at the store does not constitute sufficient evidence of a separate animus. Therefore, we find that the two aggravated robbery convictions are allied offenses of similar import pursuant to R.C. 2941.25. Accordingly, appellant's second assignment of error is overruled in part and sustained in part. III. Appellant's third assignment of error states: THAT THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT IN SUSTAINING THE JURY'S FINDING AS TO THE FIREARM SPECIFICATION AND IN IMPOSING A THREE -10- YEAR MANDATORY SENTENCE FOR USE OF A FIREARM IN THE COMMISSION OF AN OFFENSE. R.C. 2929.71 imposes a mandatory three-year sentence if a defendant commits a felony while in possession of a firearm or having a firearm under his control. In State v. Murphy (1990), 49 Ohio St. 3d 206, 551 N.E.2d 932, the Supreme Court of Ohio stated in its syllabus: The state must present evidence beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. (State v. Gaines [1989], 46 Ohio St. 3d 65, 545 N.E.2d 68, modified.) In Murphy, the defendant entered a store and instructed the clerk to give him all the money available. The defendant pulled a gun from his shirt in which it was wrapped and told the clerk that he would kill him if he refused to hand over the money. Two of the state's witnesses in Murphy described defendant's gun as a "one or two-shot silver or chrome Derringer". State v. Murphy (1990), 49 Ohio St. 3d at 207-208. The Murphy court affirmed defendant's firearm specification conviction and found that, under the totality of the circumstances, there was a sufficient indicia of operability. Here, we follow Murphy and find that under the totality of the circumstances, there was sufficient evidence beyond a reasonable doubt to establish the operability of Mann's gun pursuant to R.C. 2929.71(A) and R.C. 2923.11. Vicki Husak -11- testified that Mann pulled out a revolver-type gun with bluing on it in which one "can see the bullet" in the chamber and put it within an inch of her face. Mann instructed Husak to tell Carol Milano not to move. Holding the gun to Husak's back, Mann led her up to the office where she and Milano were ordered to lie down on the floor on their hands and knees. Husak testified that she feared Mann was going to shoot them. Milano also testified that she was quite scared. Milano described the gun as short- nosed and bluish. The threat to cause harm with the gun was implicit in this case rather than explicit as in Murphy. We find this distinction to be insignificant and thus hold the evidence sufficient as in Murphy to find the gun operable. Accordingly, appellant's assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED IN IMPOSING TWO CONSECUTIVE THREE-YEAR TERMS OF ACTUAL INCARCERATION FOR USE OF A FIREARM IN THE COMMISSION OF AN OFFENSE. Mann contends that the trial court erred by imposing two consecutive three-year terms of actual incarceration for the use of a firearm in the commission of an offense. Mann maintains that his two convictions were part of the same act or transaction under R.C. 2929.71(B)./1\ /1\ R.C. 2929.81 states in pertinent part: (A) The court shall impose a term of actual incarceration of three years in addition to *** an indefinite term of imprisonment *** if all of the -12- Where a defendant is charged and convicted of multiple counts of aggravated robbery stemming from the same act or transaction, he "may only be sentenced to one three-year term pursuant to R.C. 2929.71 in addition to the sentences for the aggravated robberies". State v. Hughley (1984), 20 Ohio App. 3d 77, 484 N.E.2d 1061, paragraph two of the syllabus; see State v. Moore (1984), 20 Ohio App. 3d 75, 484 N.E.2d 756, paragraph one of the syllabus. Mann's firearm specification convictions arose from "the same act or transaction". As a result, Mann should have been sentenced to one three-year mandatory term of actual incarceration under R.C. 2929.71(B). Such finding is in accord with our disposition above in assignments of error two and three. Appellant's fourth assignment of error is sustained. following apply: (1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code. (2) The offender also is convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. *** (B) *** If any of the felonies were committed as part of the same act or transaction, only one three- year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served consecutively with, and prior to, the life sentence or indefinite terms of imprisonment imposed pursuant to sections 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code. -13- We make note that while not raised as an assignment of error, Mann also contends that the jury's verdict is against the manifest weight of the evidence. App. R. 12(A) requires that an assignment of error be set forth in order for us to make a determination on the merits. In the absence of such an assignment of error, we need not consider it. However, the facts as previously set forth would dispose of such an assignment of error. Accordingly, the judgment is affirmed as to one count of aggravated robbery with one firearm specification, and reversed in part and remanded for proceedings consistent with this opinion. -14- This cause is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., CONCURS. ANN McMANAMON, J., DISSENTS. (See attached dissenting opinion.) JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59046 STATE OF OHIO : : : DISSENTING Plaintiff-Appellee : : OPINION : -vs- : : : DOUGLAS MANN : : Defendant-Appellant : DATE: NOVEMBER 7, 1991 ANN McMANAMON, J., DISSENTING: I respectfully dissent with the majority's disposition in the third assignment of error since it has effectively eliminated the requirement of operability under R.C. 2929.71(A). R.C. 2923.11(B) defines "firearm" as used in R.C. 2929.71. "`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 which is inoperable but which can readily be rendered operable." In State v. Gaines (1989), 46 Ohio St. 3d 65, the Supreme Court held that R.C. 2929.71 requires that, prior to the imposition of the three-year mandatory penalty enhancement, the state must prove beyond a reasonable doubt that the firearm "was operable or could readily have been rendered operable at the time of the offense." Id. at syllabus. - 2 - This position was modified somewhat in State v. Murphy (1990), 49 Ohio St. 3d 206. The Murphy court delineated the type of evidence required to prove a firearm specification beyond a reasonable doubt. I note, however, that operability remains the convicting factor for the enhancement penalty pursuant to R.C. 2929.71(A). Murphy holds: "The state must present evidence beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant can receive an enhancement penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime." Id at syllabus. In affirming the defendant's firearm specification conviction, the Murphy court found the totality of the circumstances to be sufficient indicia of operability. The Murphy circumstances included: (1) the defendant had the gun wrapped in a shirt, (2) eyewitnesses described the weapon, and (3) the defendant told the store clerk "I am not kidding, man. I will kill you. Give me all your money." Murphy, supra at 210. Additionally, two of the state's witnesses described defendant's gun as "a one or two-shot silver or chrome Derringer." Id. In the present case, Husak and Milano testified defendant had a "bluish" gun and Milano also described it as "short-nosed." The gun was not fired, the trigger was not cocked, nor was there an odor of gunpowder, all of which would have tend to establish operability. More importantly, the defendant made no verbal threat to his victims as did the defendant in Murphy. - 3 - Moreover, I find the following language from State v. Gaines, supra, on operability persuasive: "In the case at bar, the evidence adduced relative to the character of the weapon used is not sufficient to warrant conviction under the firearm specification. Admission into evidence of the firearm allegedly employed in the crime is not necessary to establish the specification. Rather, the fact may be established by circumstantial evidence (testimony as to gunshots, smell of gunpowder, bullets or bullet holes, etc.). Nevertheless, there must be some evidence relative to the gun's operability." Id. at 69. The court continued: "In the present case, there was testimony concerning the appearance of the gun and the witnesses' subjective belief that it was operable. However, these lay witnesses could have drawn the same conclusion from the appearance of a toy gun. Absent any evidence tending to establish that the gun was operable, the firearm specification was not proved beyond a reasonable doubt. The evidence adduced was as consistent with facts insufficient to establish the firearm specification (e.g., a toy gun) as it was with facts sufficient to establish the specification (a firearm). Under such circumstances, the state has failed to satisfy its burden of proof." Id. The present case resembles more closely the fact pattern in State v. Gaines than State v. Murphy. Defendant Mann, like the defendant in Gaines, made no verbal threats that might tend to establish the operability of the purported firearm. In Murphy, as previously noted, the defendant told the victim, "I am not kidding, man. I will kill you. Give me all your money." Murphy, supra at 210. Another witness testified the defendant stated, "I said this is a robbery, give me your money or I will blow you away." Id. The absence of a verbal threat factually distinguishes this case from Murphy. - 4 - Furthermore, the only evidence proffered by the state as to operability was the testimony of Vicki Husak, who stated: "It was a revolver type, you know, where you can see the bullet [sic] the revolver type, and it had bluing on it." I believe this testimony, in light of the Supreme Court's holding in Gaines and Murphy, is insufficient to prove the gun was operable. Further, the distinction between a gun and a firearm has been clearly delineated by the General Assembly. It does not appear proper for this court to blur it. .