COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59269 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION DERRICK PLESS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-241049 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL P. MALONEY, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: HYMAN FRIEDMAN, Cuyahoga County Public Defender WARREN L. McCLELLAND, Assistant The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113 - 2 - KRUPANSKY, C.J.: Defendant was indicted on two counts of aggravated robbery, R.C. 2911.01, with firearm specifications, and two counts of felonious assault, R.C. 2903.11, with firearm specifications. After a jury trial defendant was found guilty on all counts. Defendant timely appeals his conviction, citing two assignments of error. The relevant facts follow: The evening of April 28, 1989, brothers Timothy and Reginald Dancy were walking home when they were approached by two men. One man, later identified as the defendant, was holding a handgun and pointing it at the brothers. The men ordered the Dancys to go behind a nearby school and they complied. Once there, defendant fired the gun toward the ground, very near Timothy Dancy, and ordered the brothers to strip. They started to do so. As Timothy was removing his coat, the defendant went closer to Reginald and swung the weapon at his head. Reginald ducked out of the way; the defendant then struck at him again. As this happened Timothy decided to run. As he ran away he heard the defendant fire several shots at him. While defendant was thusly occupied, Reginald took the opportunity to also flee. The brothers ran to their home nearby and called the police. When the officers arrived Reginald told them he was acquainted with one of the assailants; the police officers - 3 - thereupon drove the Dancys to that man's residence. When they approached the house defendant was observed standing outside, but he fled upon seeing the police car. The officers later took the Dancys back to the scene of the incident where the brothers found their clothing. Sixty dollars in cash was missing from Timothy's coat pocket. Defendant was subsequently identified by the Dancys when they learned through the other assailant's girlfriend that defendant was working at a neighborhood swimming pool. Based upon their identification of defendant as one of their assailants, defendant was arrested. After a jury trial, defendant was convicted of aggravated robbery and felonious assault with firearm specifications. Defendant appeals, citing two assignments of error. Defendant's first assignment of error follows: DERRICK PLESS WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION AND SENTENCE FOR A FIREARM SPECIFICATION WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. This assignment of error lacks merit. Defendant argues the evidence was insufficient to convict and sentence him on the firearm specification in that the state did not prove beyond a reasonable doubt that defendant had a "firearm" as defined by R.C. 2929.71 and R.C. 2923.11. R.C. 2929.71 states in relevant part: 2929.71 Additional three years of actual incarceration for offenses involving a firearm. - 4 - (A) The court shall impose a term of actual incarceration of three years in addition to imposing *** an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code, if both of the 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 is also 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. * * * (D) As used in this section: (1) "Firearm" has the same meaning as in section 2923.11 of the Revised Code; R.C. 2923.11 sets forth the definition of "firearm" as follows: (B)(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 which is inoperable but which can readily be rendered operable. (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. (Emphasis added.) This same issue was addressed by the Ohio Supreme Court in State v. Murphy (1990), 49 Ohio St. 3d 206. The court's opinion served to do the following: - 5 - *** [E]stablish exactly what type of evidence is sufficient in determining whether the state has met its burden of proof. Id. at 208. The court stated as follows: *** [T]he state can rely upon all of the sur- rounding facts and circumstances in establishing whether a firearm was used in the commission of a felony. *** We hold that before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A), the state must present evidence beyond a reasonable doubt that the firearm was operable, or could readily have been rendered operable, at the time of the offense. 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. To rule otherwise would destroy the intent of the General Assembly to impose an actual term of three years' actual imprisonment on those persons who use a firearm to carry out their criminal objectives. (Emphasis added.) Id. at 208, 209. Using the guidelines of State v. Murphy, supra, there was ample evidence in the case sub judice to sustain the firearm specification. The testimony revealed defendant possessed a "firearm" within the meaning of the statutes. Both Timothy Dancy and Reginald Dancy testified defendant approached them with a gun, held them at gunpoint for a period of several minutes, and fired the gun several times at Timothy. Further, Timothy described a flash coming from the gun as it was fired and Reginald was familiar with the type of weapon and described it as a ".38 snub nose." From the testimony of these witnesses, "who were in a position to observe the instrument and the - 6 - circumstances surrounding the crime" (Murphy, supra, at 209), the state presented sufficient evidence to prove that defendant possessed a "firearm" at the time of the offense. Cf. State v. Gaines (1989), 46 Ohio St. 3d 65; State v. Cunningham (Jan. 31, 1985), Cuyahoga App. No. 48558, unreported. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error also lacks merit. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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.*** See Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. - 7 - A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In this assignment of error, defendant focuses not on the failure of proof of the elements of the crimes, but rather, on the victims' identification of defendant. The defendant contends that the mere testimony of the Dancy brothers linking him to the crime was too weak to support his convictions for the following reasons: (1) no physical evidence linked defendant to the crime; (2) the Dancy brothers did not give a description of defendant to police; and (3) neither of the Dancys made an "independent" identification of defendant. The state presented two eyewitnesses who "linked defendant to the crimes." This evidence showed the following: (1) both eyewitnesses viewed the defendant at close range; (2) Reginald Dancy, one of the victims, knew defendant prior to this incident; (3) the incident occurred in a time span of more than just a few minutes, giving them ample time to observe defendant; (4) both testified the experience was such that they believed they would recognize defendant again; (5) defendant was seen by both witnesses at their acquaintenance's house a short time after the incident; and (6) each eyewitness recognized defendant the next time he saw defendant. This court cannot say that on the basis of this evidence the jury "clearly lost its way and created such - 8 - a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Martin, supra, at 175. Therefore, the verdicts were not against the manifest weight of the evidence. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, J., and JAMES D. SWEENEY, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .