COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67834 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES TRAMMELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-306674 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER BY: RONNI DUCOFF, ESQ. BY: ELISE HARA, ESQ. ASSISTANT COUNTY PROSECUTOR ASSISTANT PUBLIC DEFENDER The Justice Center The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - DYKE, J.: Defendant-appellant, James Trammell, appeals his conviction for two counts of aggravated robbery (R.C. 2911.01), one count of kidnapping (R.C. 2905.01) with firearm and violence specifications and one count of having a weapon while under disability (R.C. 2923.13). Appellant claims that there is insufficient evidence of a separate animus to support his conviction for kidnapping. He further claims that there is insufficient evidence of operability to support the firearm specifications and that the jury's verdict was against the manifest weight of the evidence. Upon review, we find appellant's assignments of error to be without merit. The 1 judgment of the trial court is affirmed. Appellant's convictions are predicated upon the role he played as an accessory to two armed robberies and a related kidnapping committed at the Bedford, Ohio, BP gasoline station where he worked. The September 13, 1993 Robbery BP Station Manager, Catherine Hughley Catherine Hughley testified that on September 13, 1993 she was counting cash receipts in her office between 8:30-8:45 a.m. when a black male, identified at trial as Kenyla Patrick, held a gun to her head, tied her hands and feet together with twine, dragged her to a bathroom, placed her inside and demanded that she stay there. 1 Appellant was indicted for Breaking and Entering (R.C. 2911.13(A)) and Grand Theft (R.C. 2913.02) of the station on December 24, 1993. However, he was found not guilty of these charges. - 3 - Hughley stated that Patrick knew exactly where the twine was and that he did not hesitate in tying her up. Hughley indicated that after a few minutes, she was able to remove the twine and open the bathroom door. Hughley stated that Patrick observed this and threatened to shoot her if she opened the door again. BP Cashier, Dorothy Wagner Dorothy Wagner testified that at approximately 8:30 a.m., a black male, later identified as Eugene Franklin, entered the station and engaged her in small talk while another black male (the aforementioned Kenyla Patrick) walked briskly to the rear of the station. Wagner asked Patrick where he was going and moments later rang a buzzer to alert Hughley but Hughley did not respond. Wagner testified that she thought she heard a sound coming from the office and asked Franklin whether he heard Hughley say "Ow" or "Hi." Franklin told her that he thought he heard Hughley say "Hi." Wagner stated that she was unaware of the robbery in progress; that Franklin purchased numerous lottery tickets and that he stayed considerably longer than other customers. SUBWAY Sandwich Store Manager, Ruth Schaeffer Ruth Schaeffer testified that she noticed three black men seated in a van parked in the SUBWAY lot at 7:30 a.m. She stated that she was suspicious of the men because SUBWAY did not open until 10:00 a.m. She indicated that the van remained in the lot until 8:30 a.m. when it was driven to the BP station. Several minutes later, when she returned to the store, she saw the van pull out of the - 4 - SUBWAY lot and received a call that the station had been robbed. The January 10, 1994 Robbery BP Station Manager, Earl Hradesky Earl Hradesky testified that on January 10, 1994 he drove to National City Bank at 3:30 p.m. to deposit the day's receipts. Upon his arrival, he was forced back into his truck at gunpoint by co-defendant, Kenyla Patrick who demanded money. Hradesky gave Patrick $100 attempting to avoid robbery of the BP receipts. Patrick continued to demand money and made threatening remarks to Hradesky. Hradesky stated that it was his understanding that Patrick would shoot him if he failed to give him something more. Patrick continued with his demands and began to poke Hradesky with the gun. Hradesky then unzipped his jacket and Patrick took a bank bag containing nearly $6,000. Hradesky admitted that the appellant remained employed throughout the course of the incidents; that he was a good worker and that he did not suspect the appellant. Arresting Officer, Timothy Oleksiak Detective Oleksiak testified that he investigated the robberies and theft which occurred at the station during appellant's employment. Oleksiak stated that he arrested Kenyla Patrick based upon fingerprint identification and that he arrested Eugene Franklin based upon Patrick's confession. Oleksiak stated that Franklin also confessed to the crimes and that the men were consistent in their implication of the appellant as the mastermind of the crimes. Oleksiak testified that when he arrested the - 5 - appellant, the appellant had a gun dealer's business card in his wallet; that the dealer's firearms transaction record indicated that a gun was purchased on January 10, 1993 and that the appellant utilized a false name and address in purchasing the gun. Gun Dealer, Kenneth Goslin Kenneth Goslin testified that he knew the appellant from the Bedford BP station; that he sold him a .32 calibre revolver on January 10, 1994 and that he sold guns that "worked." (Tr. 166) Co-Defendants, Kenyla Patrick and Eugene Franklin Kenyla Patrick testified that the appellant approached him about robbing the station; that the appellant rehearsed the robbery, directing Franklin to distract Wagner while Patrick robbed Hughley and that he, Franklin and the appellant drove to the station in a van on the morning of the robbery. Patrick further testified that the appellant informed him that Hughley routinely removed cash from the safe at 8:30 a.m. and that the door to her office would remain unlocked. Patrick confirmed the fact that he tied Hughley's hands and feet with twine placed in her office by the appellant; that he carried her from her office to the bathroom; that he demanded that she stay there and that he divided the stolen $3000 with the appellant. Patrick testified that on January 10, 1994 he and Franklin drove the appellant to purchase the gun they used to rob Earl Hradesky; that the appellant told them to rob Hradesky at gunpoint and to divide the $6,000. Franklin corroborated Patrick's testimony and - 6 - stated that the appellant directed him to drive the getaway car. Both admitted that they would receive favorable sentences if they testified against the appellant. Kenneth Newton, Appellant's Sole Defense Witness Appellant's brother, Kenneth Newton, denied participating in the breaking and entering and theft of the station on Christmas Eve and stated that Patrick and Franklin were lying. The court denied appellant's motions for acquittal and mistrial and the jury found him guilty of the robberies and kidnapping. This appeal followed. I MR. TRAMMELL'S CONVICTION FOR AGGRAVATED ROBBERY AND KIDNAPPING, IS IN VIOLATION OF R.C. 2941.25 (ALLIED OFFENSES) AND A DENIAL OF HIS RIGHTS TO PROTECTION FROM DOUBLE JEOPARDY GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. Appellant's first assignment of error is without merit. In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each 2 R.C. 2941.25 states as follows: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. - 7 - pursuant to R.C. 2941.25(B), this court adopts the following guidelines: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions. State v. Owens (March 26, 1992) Cuyahoga App. No. 60370, unreported quoting State v. Logan (1979), 60 Ohio St.2d 126, syllabus. The record demonstrates that Patrick did not merely rob Hughley. He forced her to the floor at gunpoint so he could tie her hands and feet together with twine supplied by the appellant. He then dragged her face down or carried her from her office to the bathroom, closed the door and demanded that she stay there, which she did for several minutes. Patrick then threatened to shoot her if she did not remain there, again forcing her confinement for several more minutes. Thus, the record demonstrates that Hughley's restraint was prolonged; that her confinement was secretive and that Patrick's movement of Hughley from her office to the bathroom was substantial enough to demonstrate a significance independent of the robbery offense. Thus, we find sufficient evidence of a separate animus to support appellant's conviction for kidnapping. His first assignment of error is overruled. II MR. TRAMMELL WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION AND SENTENCE FOR FIREARM - 8 - SPECIFICATIONS WHICH WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE OF OPERABILITY TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. Appellant's second assignment of error is without merit. In State v. Murphy (1990), 49 Ohio St.2d 206, the Supreme Court held that the testimony of lay witnesses who observed the weapon and the circumstances surrounding the crime could be used to establish that the firearm was operable at the time of the offense. In Murphy, the defendant entered a convenience store, pointed a gun at the clerk and a customer and threatened to kill the clerk if he did not give him the money. The clerk and customer described the gun and the Court found their testimony to be sufficient to establish operability of the weapon. In the instant case, Hughley and Hradesky testified that Patrick held a gun to their persons and threatened to shoot them. Hughley described the gun used in the September robbery as being black with a long barrel. Hradesky described the gun used in the January robbery as having a brown handle and black barrel. Ken Goslin corroborated Hradesky's description and testified that he sold guns that "worked." We find the foregoing testimony to be sufficient to prove operability to support the specifications. Appellant's second assignment of error is overruled. III THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH THE TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. - 9 - Appellant's second assignment of error is without merit. In determining whether the verdict is against the manifest weight of the evidence 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. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. The credibility of the witnesses is a matter for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 231. The state presented the compelling and essentially uncontro- verted testimony of the victims in this case. The state also presented the corroborative testimony of appellant's co-defendants who fully established the role he played in initiating, planning and executing the crimes at his place of employment. Hence, the record demonstrates substantial, competent and credible evidence to support appellant's convictions beyond a reasonable doubt. His third assignment of error is overruled and the judgment of the trial court is 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 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. SPELLACY, P.J., AND PORTER, J., CONCUR. ANN DYKE JUDGE 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 journalization, .