COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66741 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : THOMAS PONDEXTER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 2, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-297183 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. RODGER A. PELAGALLI, ESQ. Cuyahoga County Prosecutor Law Offices of R.A. Pelagalli EDWARD O. PATTON, ESQ. 6400 Pearl Road Assistant County Prosecutor Parma Heights, Ohio 44130 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J: Thomas Pondexter, defendant-appellant, appeals his conviction for aggravated robbery and felonious assault with firearm specifications. Pondexter assigns the following errors for our review: I. THE COURT COMMITTED PLAIN, PREJUDICIAL AND REVERSIBLE ERROR BY NOT PROVIDING THE JURY WITH AN INSTRUCTION DEFINING AGGRAVATED MENACING. II. THE JURY VERDICT OF GUILTY AS TO THE FIREARM SPECIFICATION ON BOTH COUNTS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT ALL THE ESSENTIAL ELEMENTS OF THE SPECIFICATION AND THUS AS A MATTER OF LAW IS PREJUDICIAL AND REVERSIBLE ERROR. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On May 6, 1993, Mahmoud Muntaser and David Campbell were working in the Cousin's Superette Store at 9621 Mt. Auburn Avenue in the City of Cleveland. They were restocking items in the store because it had recently reopened after a fire. Muntaser managed the store for his uncle, Ahmed Muntaser, who owned the store. On that day, he had a lot of cash on hand to pay vendors making deliveries to the store. At approximately 1:15 p.m., Isaac Howell and Dwayne Travis entered the store, began to browse, and waited for the other customers to leave. Once the other customers left the store, Pondexter walked into the store and pulled out a gun. Howell and Travis also pulled out guns, and the three of them pointed their -3- guns at Muntaser. Each of them commanded "put your hands up, give me your money, or I'll shoot you." All three of them searched his pockets, took $2,000 out of his pocket, and $200 from his wallet. During the course of the robbery, Campbell was hiding behind the meat counter. Travis hit Muntaser in the head and Muntaser fell to the floor. While he was down on the floor, Travis began kicking him, demanding to know where the rest of the money was, and threatening to blow his head off. Muntaser told them there was a bag of money on a nearby counter. The bag contained about $3,000 and a handgun. Pondexter took the bag of money and Travis took the gun. They also took the money in the cash register. As Pondexter, Travis, and Isaac were leaving the store, Isaac fired a shot at Muntaser. After the three co-defendants left, Muntaser pulled the burglar alarm, and the police arrived a few minutes later. The total amount of money taken that day was between $5,000 to $6,000. During the course of the investigation, police discovered the bullet hole in the floor from the shot fired by Isaac. Muntaser indicated that the bullet hole was just a few inches from his leg. In his first assignment of error, Pondexter argues the trial court committed plain error by not providing the jury with an instruction defining aggravated menacing. He reasons the facts in this case are not consistent with felonious assault. We disagree. The failure to object to improprieties in jury instructions is a waiver of the issue on appeal, absent plain error. E.g. State v. Underwood (1983), 3 Ohio St.3d 12, 13. Plain error does not occur -4- unless there is an error, and but for that error, the outcome of the trial clearly would have been otherwise. Id. at 14. It is not error to fail to give an instruction for aggravated menacing where a defendant is on trial for felonious assault. Aggravated menacing is not a lesser included offense of felonious assault, and consequently, the failure to give an instruction on aggravated menacing is not required. State v. Gray (1984), 20 Ohio App.3d 318, 319. See, also, State v. Beaty (1975), 45 Ohio App.2d 127. In the case sub judice, Pondexter was convicted of aggravated robbery and felonious assault. The record from the trial court does not indicate any one requested an instruction on aggravated menacing, nor was one given. Because a charge of felonious assault does not warrant an instruction on aggravated menacing, there was no error. Accordingly, we find no plain error in the trial court's instructions to the jury. In his second assignment of error, Pondexter argues the verdict finding him guilty of firearm specifications is against the manifest weight of the evidence. The standard for reviewing the manifest weight of the evidence is as follows: "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." State v. Martin (1983), 20 Ohio App.3d 172, 175. -5- In the case sub judice, Pondexter reasons there is insufficient proof the firearm in Pondexter's possession was operable. Proof of operability of the gun in Pondexter's possession, however, was not necessary where he acted in complicity with others. R.C. 2923.03 provides: "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense ***." The Committee Comment to H 511 further provides: "Accomplices are liable to prosecution and punishment as principal offenders. For example, an accomplice to aggravated murder is liable to the death penalty the same as the actual murderer." See R.C. 2923.03 (legislative comment). Thus, a defendant who is in complicity with the overall criminal scheme may be found guilty for the acts perpetrated by the co-conspirators. See State v. Lundgren (Sept. 1, 1993), Lake App. Nos. 90-L-15-140, 91-L-036, unreported. "R.C. 2923.11(B) and 2929.71(A) require that, prior to imposition of an additional term of three years' actual incarcera- tion for possession of a firearm during the commission of a felony, 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." State v. Gaines (1989), 46 Ohio St.3d 65 at the syllabus. An operable firearm is "*** any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant." R.C. 2923.11. Proof a -6- firearm is operable can be established beyond a reasonable doubt by the testimony of a lay witness who was in a position to observe the instrument and the circumstances surrounding the crime. State v. Murphy (1990), 49 Ohio St.3d 206, 209. In the case sub judice, Isaac fired a gun at the floor during the robbery in which Pondexter was his accomplice. The firing of a handgun during the commission of an offense is sufficient proof that the gun is operable for purposes of a firearm specification. As a co-conspirator, Pondexter was in complicity with Isaac and Travis for every offense they committed as a part of the overall robbery, including Isaac firing a handgun at the floor of the store. Accordingly, there was proof beyond a reasonable doubt to support Pondexter's convictions for the firearm specifications. Judgment affirmed. -7- 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. DYKE, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .