COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61020 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : EDWARD WALKER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 13, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-241991 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: DEBORAH NAIMAN Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN GIBBONS 2000 Standard Building Cleveland, Ohio 44113 -2- SPELLACY, J.: On October 20, 1989, defendant-appellant Edward Walker ("appellant") was indicted by the Cuyahoga County Grand Jury for one count of Aggravated Robbery, in violation of R.C. 2911.01. Appellant's indictment also carried a firearm specification and an aggravated felony specification for a prior conviction. At his arraignment on September 6, 1990, appellant pleaded not guilty. After waiving a jury trial, appellant's bench trial commenced on October 29, 1990. The first witness to testify for the State was the alleged victim, Lucky Brown. Lucky Brown testified that on July 15, 1989, at approximately 5:30 A.M., he was driving on Cedar Avenue in the City of Cleveland, Ohio. Lucky Brown realized that he needed to go to the bathroom, thus, he looked for a place to relieve himself. Lucky Brown stated that he chose not to stop at a filling station, because he observed several men hanging around and drinking. He continued to drive and eventually stopped at an open field. Lucky Brown testified that while he was relieving himself, he heard a noise and he turned around. Suddenly, he heard a man say, "Don't move," and he felt a gun on him. Initially, Lucky Brown could only see part of the man's face. At that point, Lucky Brown was forced to lay face down on the ground, while the man pointed the gun at the back of his head. The man then said, "Don't move or I will blow your brains out." -3- While Lucky Brown was on the ground, the man took his money, jewelry and his car keys. The man continued to instruct Lucky Brown not to move, but Lucky Brown claimed that he was able to glance up and get a look at his assailant. He stated that the man was standing in "half-light", but as he stepped further back, he was standing in the light. Lucky Brown also testified that he saw the gun and it looked like a dark colored thirty-eight revolver. Lucky Brown further testified that the man took his 1988 white Ford Taurus and drove off. He tried to pursue the car on foot but was not successful. Lucky Brown subsequently filled out a police report and provided the police with a description of the assailant. According to Lucky Brown, he saw his car being driven around on two occasions after the robbery. On the first occasion, he lost the car. However, on the second occasion, he was able to follow the car and observe the two occupants in it. He claimed that the man sitting in the passenger seat was the person who robbed him. Lucky Brown testified that that man was appellant. After Lucky Brown spotted his car, he followed it until it stopped in front of a 24-hour money exchange machine. At that point, Lucky Brown's wife ran to a nearby telephone and called the police. Soon after, a police car arrived in the area and Lucky Brown was able to flag it down. He then informed a police officer of the situation who then took control of things thereafter. -4- Finally, Lucky Brown testified that he was subsequently shown photographs at the police station. He claimed that from the photographs, he was able to positively identify appellant as the person who robbed him. During his cross-examination, Lucky Brown testified that he described his assailant to the police as being between the ages of 25 and 30 years old. The man was between the height of five foot four inches and five foot six inches and he had dark skin. He further described the individual as having short hair, but it was not in the same style as appellant's during the trial. Lucky Brown further testified on cross-examination that he only observed his assailant walk backwards. He was unable to tell if the man had an unusual walk because he never saw him walk forward. Lucky Brown admitted during his testimony that he was cur- rently serving time in jail for a conviction for carrying a con- cealed weapon. He also admitted that he was previously con- victed for the same offense in 1985. The next witness to testify on behalf of the State was Lucky Brown's wife, Gretchen Brown. She testified that she was with Lucky Brown when they observed his car parked in front of the 24- hour money exchange machine. She stated that once they saw the car, she immediately contacted the police on a nearby telephone. Gretchen Brown further testified that after the police arrived and began to chase the suspects, she and Lucky Brown followed from behind. She stated that they followed the chase -5- until the suspects stopped the car and fled. She observed the passenger of the car fleeing with a gun in his hand. However, she was unable to positively identify either of the men. Detective Richard Wilson, from the Cleveland Police Department's Scientific Investigation Unit, next testified that he took some fingerprints from the 1988 white Ford Taurus. He stated that he acquired three white powder latent prints and two black powder latent prints. The State next called Officer Robin Allen to testify. Officer Allen testified that on July 19, 1989, he was summoned by Lucky Brown about his stolen car. After learning from his dispatcher that Lucky Brown's car was, in fact, stolen, information about the car was broadcasted to other police patrols in the area. Officer Allen further testified that he observed a white car being chased by another police car. Eventually, the car stopped and two males jumped out and fled. Reginald Child was apprehended while the other individual escaped. Detective Norman Griffin next testified that Lucky Brown was unable to identify Reginald Child as the man who robbed him on July 15, 1989. However, Lucky Brown did identify appellant in a photo array as his assailant. Detective Griffin claimed that Lucky Brown did not hesitate in his identification of appellant. The last witness to testify for the State was Officer Edward Prinz from the Scientific Investigation Unit. Officer Prinz -6- testified that of the five latent fingerprints provided to him by Officer Wilson, three were unsuitable for comparison but two were suitable. Of the two suitable latent fingerprints, the one from the outside base of the right rear passenger window was a partial palm print of appellant's left hand. At the close of the State's case-in-chief, appellant moved for a judgment of acquittal pursuant to Crim. R. 29. The trial court overruled appellant's motion. The first witness to testify on behalf of appellant was his sister, Sharon Walker. Sharon Walker testified that on July 15, 1989, appellant was living with her at 7916 Sawinski in the northeast section of the City of Cleveland. She claimed that on that date, at 1:30 A.M., appellant was present at 7916 Sawinski with her and some other people having some drinks and playing cards. Sharon Walker further testified that she left the house at about 1:45 A.M. or 2:00 A.M., and appellant was still present. She claimed that appellant had gone to the bathroom in order to take his clothes off and go to bed. She did not see him again until 10:00 A.M. At 10:00 A.M., she observed appellant in his pajamas and drinking a cup of coffee. Appellant next testified in his own defense. He basically corroborated the testimony of his sister and denied committing any robbery on July 15, 1989. Appellant claimed that on July 15, 1989 at 1:30 A.M., he drank some beer and played cards. -7- Immediately thereafter, he went to bed. He did not wake up until 8:30 A.M. or 9:00 A.M. Appellant also testified about his medical problems concerning his leg. He claimed that he had a "drop foot" which was a result of a gunshot wound he suffered in January, 1987. The effect of his "drop foot" was that he would trip a lot when he ran and he would drag his foot when he walked. Appellant further claimed that on January 15, 1989, his hair went to his shoulders, and he had a "Jeri curl". Appellant also stated that he had a mustache on January 15, 1989. With respect to his fingerprints found on Lucky Brown's car, appellant said he did not recall ever touching it. He stated that he could have seen it somewhere or bumped up against it. Finally, appellant provided testimony regarding the condition of his right arm. He said that as a result of a gunshot wound, he was unable to fully straighten out his right arm. When he stands up, he is unable to extend it or let it drop completely. At the close of appellant's evidence, appellant renewed his Crim. R. 29 motion for judgment of acquittal. Once again, the trial court denied appellant's motion. Subsequently, the trial court found appellant guilty of 1 aggravated robbery with the firearm specification. Appellant 1 Appellant had stipulated to the aggravated felony speci- fication for his prior conviction. -8- was sentenced to a term of ten years actual to 25 years, plus a consecutive term of three years for the firearm specification. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE VERDICT OF THE TRIAL COURT IN FINDING THE DEFENDANT-APPELLANT, EDWARD WALKER, GUILTY OF THE OFFENSE OF AGGRAVATED ROBBERY, WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT-APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL, PURSUANT TO RULE 29, OHIO RULES OF CRIMINAL PROCEDURE IN THAT THE DEFENDANT- APPELLANT HAD A FIREARM ON OR ABOUT HIS PERSON OR UNDER HIS CONTROL WHILE COMMITTING A FELONY. A. THE TRIAL COURT ERRED BY IMPOSING A TERM OF THREE YEARS ACTUAL INCAR- CERATION ON THE DEFENDANT- APPELLANT, EDWARD WALKER, PURSUANT TO O.R.C. 2941.141 AND 2929.71. In his first assignment of error, appellant claims that his conviction for aggravated robbery was against the manifest weight of the evidence. When called upon to do so, this court has the duty to determine whether convictions are contrary to the manifest weight of the evidence. State, ex rel. Squire v. Cleveland (1948), 150 Ohio St. 303, paragraph eight of the syllabus. The test to be utilized when addressing the issue of manifest weight of the evidence was set forth in State v. Martin (1983), 20 Ohio App. 3d 172. The Martin court stated: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving -9- 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. Martin, supra, at 175. The weight of the evidence and the credibility of witnesses are primarily an issue for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. The trier of fact is entitled to believe or not to believe the testimonies of the State's witnesses and/or the defense's witnesses. State v. Antill (1964), 176 Ohio St. 61. Upon a careful review of the entire record, we are unable to conclude that the trial court lost its way and created such a manifest miscarriage of justice that appellant's conviction for aggravated robbery should be reversed and a new trial ordered. It is clear that the trial court chose to accept Lucky Brown's identification of appellant as his assailant. Obviously, the trial court chose to not believe appellant's contention that he was at home when Lucky Brown was robbed at gunpoint. We find that there was substantial competent credible evidence to support the trial court's verdict of guilty of aggravated robbery. Thus, we conclude that appellant's conviction for aggravated robbery was not against the manifest weight of the evidence. Appellant's first assignment of error is without merit and is overruled. -10- In his second assignment of error, appellant contends that the trial court should have granted his Crim. R. 29 motion for judgment of acquittal as to the firearm specification. Crim. R. 29(A) states as follows: (A) Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of 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. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. When ruling upon a Crim. R. 29 motion, the trial court shall not enter a judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. A motion for judgment of acquittal pursuant to Crim. R. 29 should be granted only where reasonable minds could not fail to find reasonable doubt. State v. Apanovitch (1987), 33 Ohio St. 3d 19, 33. In the instant case, appellant argues that there was insufficient evidence to establish that he used a firearm in the commission of an aggravated robbery. Appellant cites to the facts that no gun was recovered and no gunshots were fired. With regard to proving possession of a firearm or having a firearm under his control pursuant to R.C. 2929.71, the Ohio -11- Supreme Court stated in State v. Murphy (1990), 49 Ohio St. 3d 206, 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. In this case, we find that, under the totality of the circumstances, reasonable minds can reach different conclusions as to whether appellant had an operable firearm for purposes of R.C. 2929.71. Lucky Brown testified that appellant pointed a dark colored thirty-eight revolver at the back of his head. Lucky Brown further testified that appellant threatened him by saying, "Don't move or I will blow your brains out." We conclude that Lucky Brown's description of the weapon, coupled with appellant's threat to kill him, was sufficient evidence of operability to overrule appellant's Crim. R. 29 motion for judgment of acquittal of the firearm specification. Appellant's second assignment of error is not well taken and is overruled. Trial court judgment is affirmed. -12- 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 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. JOHN F. CORRIGAN, P.J., AND HARPER, J., CONCUR. LEO M. SPELLACY 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. .