COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59860 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD LEWIS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : FEBRUARY 6, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-235548 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor Suite 1016 Justice Center 75 Public Square 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J., On March 9, 1989, the Cuyahoga County Grand Jury indicted defendant-appellant, Donald Lewis, "appellant", in a three count indictment. The first count charged the appellant with aggravated robbery in violation of R.C. 2911.01. The second count charged the appellant with felonious assault in violation of R.C. 2903.11. The third count alleged possession of criminal tools in violation of R.C. 2923.24. The appellant entered a plea of not guilty and the case proceeded to a bench trial on April 20, 1990. The appellant was found guilty as charged and the court merged the offenses of aggravated robbery and felonious assault. Appellant was sentenced to seven to twenty-five years on the merged offenses and one year for the possession of criminal tools offense to run concurrently. The evidence adduced at trial was as follows: On January 13, 1989, Larry Blanch, the victim, entered the Double Exposure Bar. While at the bar, Blanch was introduced to a woman named Carrie. Blanch agreed to give Carrie a ride home as it was on his way. Rather than taking Carrie home Blanch, at Carrie's request, drove her to a friend's home. Initially Blanch remained in his car while Carrie entered the home. After a short period Carrie returned to the car and persuaded Blanch to enter the home to meet her friends. Inside the house Blanch was introduced to three men. The appellant herein was one of those individuals. One of the other - 3 - individuals was introduced as Antonio. Blanch could not recall the name of the third man. Blanch was offered a beer which he accepted. At approximately 10:00 p.m. Blanch drove Carrie, Antonio and the unnamed individual to a local store to purchase beer and wine. After completing the purchase they returned to the house. During the course of the evening Blanch learned that he was the holder of a winning lottery ticket with a value of approximately $4l.50. He told the individuals at the house of his good fortune and showed them the winning ticket. At approximately 1:00 a.m. Blanch drove the appellant and the unnamed individual to the store to purchase more beer and wine. The appellant sat in the front passenger seat and the unnamed individual sat in the back seat. The store where they had previously purchased the beer and wine was closed. While enroute to another store the unnamed individual hit Blanch in the head with a tire iron that had been in the back of the car. After being hit on the head Blanch heard someone yell, "its a robbery." At that point the appellant exited the car, walked around to the driver's side door, opened the door, and dragged Blanch out of the car. Blanch was on his knees next to the car when the unnamed individual again hit him on the head with the tire iron. Additionally, Blanch was kicked in the ribs by the appellant. The unnamed individual then ordered Blanch to give him the winning lottery ticket. Blanch complied, after which the appellant instructed the unnamed - 4 - individual to strike Blanch once again with the tire iron. Rather than striking Blanch a third time the unnamed individual suggested that they flee. The two fled in Blanch's car. Blanch was able to walk to a nearby gas station where he called "911". Officer McClain and Smith responded to the call. Blanch gave the officers a description of his two assailants and his car. Approximately two hours later Officer's McClain and Smith spotted a car with two occupants that matched the descriptions given to them by Blanch. The officers then ran a computer check on the license plate and confirmed that the car was in fact registered to Blanch. The car was pulled over and the occupants were searched. While searching the appellant Officer McClain found the winning lottery ticket in appellant's right pants pocket. Appellant's first assignment of error provides: I. THE COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING THE MOTION TO SUPPRESS EVIDENCE. Appellant argues that the court should granted the motion to suppress because the arresting officer lacked probable cause to stop and search the appellant. Appellant's argument lacks merit. Probable cause to arrest exists where an officer has "sufficient information, derived from a reasonably trustworthy source, to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused." State v. Farndon (1984), 22 Ohio App. 3d 31, 34, citing State v. Timson (1974), 38 Ohio St. 2d 122. - 5 - In the instant case the officers had probable cause to stop, search and arrest the appellant. The arresting officers were informed by Blanch that he had been robbed, assaulted and that his car had been stolen. Further, he provided the officers with a description of the car and his assailants. Approximately two hours after responding to Blanch's call, the officers spotted a car which fit the description given by Blanch. The car was being driven by two males who also fit the earlier description. After observing the car and its two occupants the officers ran a computer check on the license plate which confirmed that the car belonged to Blanch. The car was then pulled over and the occupants were searched and placed in the back of the patrol car. In light of the above we find that the arresting officers had sufficient information, derived from the victim of the crime, to warrant a prudent man in believing that a felony had been committed and that it had been committed by the accused. For these reasons the arrest was constitutionally valid and the trial court properly denied appellant's motion to suppress. Appellant's first assignment of error is overruled. Appellant's second assignment of error provides: II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONVICTED THE DEFENDANT OF AGGRAVATED ROBBERY IN THE FIRST COUNT OF THE INDICTMENT. Appellant argues that the state failed to present evidence that the victim sustained serious physical harm and therefore - 6 - there was insufficient evidence to convict him of aggravated robbery. Appellant's argument lacks merit. R.C. 2911.01 provides in relevant 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 weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict, or attempt to inflict, serious physical harm on another. (B) Whoever violates this section is guilty of aggravated robbery, an aggravated felony of the first degree. Contrary to appellant's assertion, R.C. 2911.01 does not require the state to prove that the victim sustained serious physical harm. A defendant may be convicted of aggravated robbery if during the commission of the underlying theft offense the defendant had a deadly weapon or dangerous ordnance, or either inflicted serious physical harm or attempted to cause serious physical harm on another. In the instant case the evidence presented at trial was sufficient to establish that a deadly weapon was used during the commission of a theft offense and that an attempt was made to cause the victim serious physical harm. - 7 - R.C. 2923.11(A) defines deadly weapon as follows: (A) "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. In State v. Ash (May 11, 1979), Cuyahoga App. No. 38808, unreported, this court held that a tire iron could constitute a deadly weapon within the meaning of R.C. 2923.11(A) depending upon the manner and circumstances of its use. In the instant case the tire iron was used to strike the victim twice over the head. Upon consideration of the circumstances of the tire iron's use, we find that it constituted a deadly weapon within the meaning of R.C. 2923.11(A). Furthermore, we find that the tire iron was used in an attempt to cause serious physical harm to the victim. Thus, the state produced sufficient evidence to convict the appellant of aggravated robbery as defined in R.C. 2911.01. Accordingly, appellant's second assignment of error is overruled. Appellant's third assignment of error provides: III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL AS THERE IS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE DEFENDANT HAD A PRIOR PLAN WITH RESPECT TO THE THEFT OFFENSE SO AS TO SUPPORT A CONVICTION OF AGGRAVATED ROBBERY AND POSSESSION OF CRIMINAL TOOLS BASED UPON AN AIDING ND ABETTING THEORY. Appellant argues there is insufficient evidence to support his conviction as an aider and abettor. Specifically, appellant - 8 - maintains the state must establish that the appellant and his accomplice had a "prior plan" to commit the offenses. Appellant's argument lacks merit. The complicity statute, R.C. 2923.03, provides in relevant part: (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: * * * (2) Aid or abet another in committing the offense. * * * Although appellant was not indicted under this provision, a charge of complicity may be stated either under R.C. 2923.03 or in terms of the principal offense. R.C. 2923.03(F). Further an accomplice is prosecuted and punished as if the were the principal offender. Id. To establish appellant's guilt as an aider or abettor the state was required to show that he assisted, incited or encouraged his accomplice to commit the offense. State v. Sims (1983), 10 Ohio App. 3d 56, 58-59. In the instant case the state showed that the appellant assisted and encouraged his accomplice in the commission of a theft offense. The victim testified that the appellant dragged him out of the car after he had been hit over the head with the tire iron. After being dragged out of the car, the appellant kicked the victim in the ribs. Further, after the victim - 9 - relinquished possession of the lottery ticket, the appellant instructed his accomplice to strike the victim with the tire iron a third time. Given the actions of the appellant we find that his conduct was sufficient to find that he aided his accomplice in the commission of the aggravated robbery. Thus, he was properly convicted of aggravated robbery. Accordingly, appellant's third assignment of error is overruled. Judgment affirmed. - 10 - 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 Court of Common Pleas 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. DYKE, P.J. JOHN F. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON 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. .