COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68478 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT S. AUSTIN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 2, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-297825 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES REGIS E. McGANN, ESQ. Cuyahoga County Prosecutor 1370 Ontario Street ELEANORE HILOW, Assistant Suite 450 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Robert S. Austin appeals from his conviction following a jury verdict on three counts for aggravated robbery (R.C. 2911.01), robbery (R.C. 2911.02) and possession of criminal tools (R.C. 2923.24) with felony and violence specifications. Defendant's sole assignment of error is that the trial court abused its discretion by sentencing defendant to a maximum term without considering the factors present in R.C. 2929.12. We find no merit to this contention and affirm. The charges arose out of an incident that occurred on June 4, 1993, when the victim, Ms. Beauchesne, claimed the defendant tried to rob her as she exited her car at a supermarket on Pearl Road. She testified that as she opened her door, a man was crouching next to the car brandishing a gun. He ordered her to "move over and give me your keys." She refused to comply with defendant's demands, got out of her car, began screaming, and watched the suspect flee in the direction of Pearl Road. She later described his clothing to the police officers who came to the scene. She positively identified the defendant during the trial. A Cleveland detective testified that, based on the victim's description, he and two police officers found the defendant in a nearby restaurant and that a light colored cloth bag was located on the bottom of the restaurant's coat rack, close to where the defendant was seated. The bag contained a cap, sunglasses, gloves, a couple of stockings, some duct tape, a BB pellet pistol, an - 3 - electrical cord and some BB pellets. These items were received into evidence. The pellet pistol was confiscated in an unloaded condition. The cashier at the restaurant testified that the defendant entered the restaurant and placed the light colored cloth bag on the coat rack. Defendant was arrested and charged with the criminal offenses for which he stood trial. After the State rested its case, defendant's Crim. R. 29(A) motion for acquittal raised the "deadly weapon" element of the aggravated robbery charge, as there was no proof that the gun was loaded or capable of firing pellets that would cause death. Defense counsel also moved for acquittal due to insufficiency of evidence regarding count two and three. The motions were denied and the case proceeded with the defense calling as a witness one Michael Quill, who was a friend of defendant. He testified that he owned the BB gun in question for 15 years and that defendant borrowed it in June 1993 to shoot at birds in his mother's garden. Mr. Quill further testified that there were two safety devices on the weapon and that it was not loaded when it was loaned to defendant. The gun was capable of being loaded with one pellet at a time. The jury was instructed on all offenses charged and found defendant guilty on all counts. The court, at sentencing, merged the convictions of the two robbery counts and ordered defendant to serve from 15 to 25 years. - 4 - Defendant argues the trial court failed to consider the three factors outlined in R.C. 2929.12(B), when considering a longer term of imprisonment. Defendant contends the record contains no indication that the court considered or failed to consider the relevant factors, however, no sentencing transcript is provided in the record for our review. The Supreme Court in State v. Cyrus (1992), 63 Ohio St.3d 164, 166, stated that the standard for determining whether the trial court complied with R.C. 2929.12 is as follows: "A silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12." State v. Adams (1988), 37 Ohio St.3d 295, paragraph three of the syllabus, accord State v. O'Dell (1989), 45 Ohio St.3d 140, 147. Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria. In the case herein, defendant failed to file a transcript of the sentencing hearing, therefore we do not know whether the court stated its reasoning for the sentence it imposed. The defendant has the duty of providing a transcript for appellate review because the burden is necessarily on the defendant to show error by reference to matters in the record. State v. Roberts (1991), 66 Ohio App.3d 654, 657. In the absence of a complete record, this Court will presume regularity in the court proceedings. State v. Howard (1992), 79 Ohio App.3d 705, 709. See, also, State v. Render (1975), 43 Ohio St.2d 17, paragraph two of syllabus; State v. - 5 - Roberts, supra at 657; State v. Roberson (Jan. 19, 1995), Cuyahoga App. No. 64956, unreported at 11. However, even if the transcript is silent regarding whether the court considered the factors outlined in R.C. 2929.12 as defendant alleges, we find no error. As the court in State v. Cyrus held, the court need not state its reasoning for the sentence imposed, and the duty is upon defendant to present evidence to rebut the presumption that the court considered the factors. Defendant did not meet this burden in the case herein. Defendant's argument in mitigation of sentencing that the victim was not harmed and no property was taken from her is meritless. The defendant can not take credit for the victim's escape from this situation unharmed with her property intact. In view of the serious nature of the offenses and the defendant's prior criminal history for the same offense, the sentence imposed by the court was proper. A trial court has broad discretion in sentencing within statutory limits and this Court should not disturb the sentence of the trial court in the absence of an abuse of discretion, which we do not find here. State v. Grigsby (1992), 80 Ohio App.3d 291, 302; State v. Yontz (1986), 33 Ohio App.3d 342, 343. Defendant's assignment of error is overruled. Judgment affirmed. - 6 - 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. NAHRA, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER 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 journalization, at which .