COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69978 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RAYMOND SCOTT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 15, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-326765 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. James A. Draper, Esq. Cuyahoga County Prosecutor Public Defender By: Sean C. Gallagher, Esq. By: Valerie R. Arbie, Esq. Assistant Prosecuting Atty. Assistant Public Defender The Justice Center 1200 West Third Street N.W. 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 -2- JAMES D. SWEENEY, C.J.: On August 10, 1995, a Cuyahoga County Grand Jury issued a four-count indictment against defendant-appellant, Raymond Scott (CR-326765). Two counts charged appellant with the separate aggravated robberies of Jean Rodriguez and James Findlay, and the remaining two counts charged him with having weapon while under disability. All counts of the indictment carried firearm specifications and the having weapon while under disability counts also carried violence specifications. Prior to trial, the State requested dismissal without prejudice of the two counts listing James Findlay as the victim. The trial court dismissed these charges and designated the remaining two counts which listed Rodriguez as the victim as counts one and two. The trial court furthermore denied the defense's pre- trial motion for suppression of eyewitness identification testimony. Trial by jury commenced on November 14, 1995. The jury returned guilty verdicts on both counts of the indictment, including the firearm specifications. The defense previously stipulated to appellant's November 1991 conviction for carrying a concealed weapon in CR-257915. The trial court sentenced appellant to concurrent terms of three to five years on count one and eight to twenty-five years on count two. Upon merging the firearm specifications, the trial court also ordered a three-year term of actual incarceration. Finally, the court ordered that appellant's -3- sentence in CR-326765 be served consecutively to that imposed in CR-325285 (1995 conviction for carrying a concealed weapon). I. On April 23, 1995, Jean Rodriguez left her home on West 31st Place, Cleveland, Ohio and rode a bus to Parmatown Mall. After completing her errands at approximately 5:00 p.m., she caught a bus and arrived at a bus stop located on Lorain Road between 5:35 and 5:40 p.m. Rodriguez walked through the campus of St. Ignatius High School on her way home. When she reached the middle of the campus, she spotted a tall, light-skinned black male crossing the street at Ridge and West 30th Street. The male wore light blue jeans and a lighter weight jacket. Rodriguez' subsequent attempts to avoid the male were unsuccessful as he directly approached her, took out a gun and showed her the "nozzle." (R. 106.) The male also stated, "Don't do anything." (R. 106.) Rodriguez yelled for help as she turned and ran toward Lorain Avenue. Her yells were not heard because no one was in the vicinity. The male caught up to Rodriguez and grabbed her shoulder. He then placed the gun to her back and asked for money. Rodriguez tried to give him $20. Stating he had a drug problem, the male demanded more. The male then stated, "You don't want to die for that little bit of money." Rodriguez thus gave the male all the money she had in her possession, $170. The male started to walk away, cautioning Rodriguez not to go anywhere. She nonetheless picked up her bags and started to walk -4- away. The male responded by pulling out the gun and saying, "I have sixteen rounds in here and I'm a good shot." Rodriguez eventually made it home at which time she telephoned the police. She provided a description of the events and of the offender to the responding officers. Rodriguez testified that she attempted to avoid any contact with the male as he approached her on St. Ignatius' campus, but she looked at him squarely in the face when she realized he was coming toward her. After the male pursued her when she tried to run away, she did not see his face as he held the gun to her back. However, Rodriguez estimated that she observed the male's face for a period of five minutes during the incident. Detective Thomas Kilbane from the Cleveland Police Department received an assignment to work on the Rodriguez investigation on April 24, 1995. He had in his possession Rodriguez' preliminary description of the male who confronted her. Raymond Francel, an officer with the Cuyahoga Metropolitan Housing Authority Police Department, arrested appellant on April 27, 1995 for activity unrelated to that which occurred four days earlier. The arrest took place on West 25th Street, "reasonably close" to the West Side Market. Francel recovered State Exhibit No. 3 ("Exhibit No. 3"), a .380 semi-automatic pistol, at the time of the arrest. Francel explained that he saw appellant, the only person in the area, drop the weapon from a distance of twenty to thirty yards during a foot pursuit. -5- Upon becoming aware of appellant's arrest and the recovery of the weapon, Det. Kilbane determined that the description provided in Rodriguez' case matched that of appellant. Kilbane, therefore, compiled a photographic array which consisted of appellant's photograph and four other photographs of individuals matching appellant's physical characteristics. The four additional photographs were taken from the police department's files. Det. Kilbane first showed the array to Rodriguez at her home on May 24, 1995. The array was shown to Rodriguez a second time in July 1995 when she appeared at the police station to provide a written statement. According to Det. Kilbane, Rodriguez on both occasions chose, without hesitation, appellant's photograph as depicting that of the male who took her money at gunpoint in April 1995. Regarding Exhibit No. 3, Rodriguez admitted that she had no personal knowledge regarding guns, but described the gun carried by appellant as "small, silver, chrome or something." She moreover could not positively identify Exhibit No. 3 as the particular gun held by appellant on April 23, 1995, but was sure that the small, chrome-colored device which was displayed to her was a gun. (R. 107.) Det. Kilbane attempted to test-fire the weapon in the police department's Scientific Investigation Unit after its recovery. When the weapon would not fire, Detective Lucey examined it and discovered the absence of a mechanism. -6- After the trial court denied appellant's motion for acquittal, appellant admitted the existence of ten prior felony convictions. However, he denied any involvement in the April 23, 1995 incident as well as any knowledge of Exhibit No. 3. Specifically, appellant stated that the first time he saw Exhibit No. 3 was after his arrest on April 27, 1995. He also maintained that he was at his sister's house on West 6th Street at the time of the incident, playing dominos and drinking beer, an every day occurrence. Larry Anderson, a four-year friend of appellant's, also admitted to a prior felony conviction. He corroborated appellant's daily activity of playing dominos and drinking, and otherwise stated that appellant never mentioned any incident which occurred on April 23, 1995. II. Appellant assigns the following errors for this court's review: ASSIGNMENT OF ERROR I: RAYMOND SCOTT'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. A. THE FIREARM SPECIFICATIONS WERE NOT PROVEN BEYOND A REASONABLE DOUBT B. THE CHARGE OF HAVING WEAPON WHILE UNDER DISABILITY WAS NOT PROVEN BEYOND A REASONABLE DOUBT -7- ASSIGNMENT OF ERROR II: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED THE WITNESS TO PROVIDE AN IN-COURT IDENTIFICATION WHICH WAS BASED ON A PREVIOUS OUT- OF-COURT IDENTIFICATION THAT WAS OBTAINED IN A SUGGESTIVE MANNER IN VIOLATION OF RAYMOND SCOTT'S RIGHTS AS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A. Appellant, in the first assignment of error, challenges the trial court's denial of his motion for acquittal following the presentation of the State's case. Appellant first proposes that he was entitled to acquittal on the firearm specification and the charge of having weapon under disability as a result of the State's failure to prove beyond a reasonable doubt that he possessed a "firearm," as defined by R.C. 2923.11(B), on April 23, 1995 when he confronted Rodriguez. Appellant alternatively submits that an acquittal was warranted on the charge of having weapon under disability because the State failed to prove beyond a reasonable doubt that Exhibit No. 3 was a dangerous ordnance under R.C. 2923.11(K). The standard for determining whether a trial court properly denied a Crim.R. 29 motion for acquittal was set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261. A trial court, in considering such a motion, must view the evidence in a light most favorable to the State to determine if reasonable minds could differ as to whether each material element of the crime has been proved beyond a reasonable doubt. Id., syllabus. See State v. Evans (1992), 63 Ohio St.3d 231. -8- R.C. 2929.71(A)(2) requires a court to impose a three-year term of actual incarceration when an offender is convicted of a felony and is also convicted of having a firearm "on or about his person or under his control while committing the felony." R.C. 2923.11(B), in turn, defines "firearm" as "any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant [including] an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable." R.C. 2923.11(B)(2) furthermore enables a trier of fact, in determining a firearm's capacity to expel projectiles, to "rely upon circumstantial evidence, including, but not limited to, the representation and actions of the individual exercising control over the firearm." Finally, R.C. 2923.11(K)(1) defines a "dangerous ordnance" as including a "firearm." The principal Ohio Supreme Court cases that address the State's burden of proof in firearm specification cases are State v. Gaines (1989), 46 Ohio St.3d 65 and State v. Murphy (1990), 49 Ohio St.3d 206. Pursuant to Gaines, the State must prove beyond a reasonable doubt that the firearm in question was operable at the time of the offense in order for a defendant to be found guilty of the felony gun specification. Gaines, syllabus. "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." Murphy, syllabus (codified in R.C. 2923.11[B][2]). -9- Appellant focuses on the test-firing of the weapon recovered on April 27, 1995 to support his argument that the State failed to prove operability. Dets. Kilbane and Lucey's test-firing failed because the gun was missing a necessary mechanism. There is one fatal flaw in appellant's focus--not only did appellant deny that the weapon recovered on April 27, 1995 belonged to him, he denied ever seeing it until after his arrest on that date. The flaw is similar to one presented in a case where an accused denied involvement in an offense, but then claimed on appeal that the trial court should have instructed the jury on a lesser included offense. Even assuming that the weapon was not the one allegedly used by appellant, Exhibit No. 3's operability is essentially irrelevant to the State's case since the State could prove operability of the weapon actually possessed by appellant on April 23, 1995 not from the weapon itself, but from Rodriguez' testimony. See Murphy; State v. Mann (1993), 93 Ohio App.3d 301; and State v. Perkins (Nov. 2, 1995), Cuyahoga App. No. 68580, unreported (direct scientific evidence of operability is not essential to a conviction upon a specification). It is pointed out that the defendant "took out a gun and 1 showed her the nozzle" and "placed the gun to her back and asked 1 The use of the term "nozzle" is somewhat perplexing to this writer in the context of a debate over a firearm. Firearms do not have nozzles. We presume that the witness, who is admittedly not very familiar with firearms, meant to use the term "muzzle," a detail which every firearm possesses. -10- for money," then stated "You don't want to die for that little bit of money," before again displaying the firearm at the time of leaving the scene and stating "I have sixteen rounds in here and I'm a good shot." These actions and their accompanying language, under the totality of the circumstances test enunciated in Murphy, supra, reasonably infer that the firearm was operable at the time of the offense and that the defendant would use it to kill or injure the victim if she did not comply with his demands and instructions. See State v. Gest (December 19, 1995), Cuyahoga App. Nos. 68369 and 68370, unreported, at 24-25. Accordingly, the trial court did not abuse its discretion in denying the motion for acquittal relative to the firearm specification. With regard to the offense of having a weapon while under a disability, defendant-appellant was charged and convicted under R.C. 2923.12(A)(2), which provides: (A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: * * * (2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony; * * * Appellant admits in his brief that the parties stipulated to the existence of a disability pursuant to R.C. 2923.12(A)(2), but argues that the motion for acquittal should have been granted - 11 - because the State did not demonstrate that defendant was in possession of a "firearm" pursuant to R.C. 2923.12(A). As previously discussed in the analysis of the motion for acquittal relative to the firearm specification, it has been determined that defendant possessed a firearm which, through inferential proof stemming from the words and actions of the defendant, was operational at the time of the offense. Accordingly, the trial court did not err in denying the motion for acquittal for the offense of having a weapon while under a disability. Appellant's first assignment of error is overruled. B. Appellant, in the second assignment of error, asserts that the trial court committed prejudicial error by permitting Rodriguez to identify appellant at trial following a flawed pre-trial identification, i.e., a suggestive photographic array. Appellant specifically submits that the array was suggestive in that out of the five photographs, only two of the photographs, including one of himself, were of light-skinned black males. He otherwise suggests that Rodriguez' identification was not reliable. Due process requires suppression of an identification if a pre-trial confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all of the circumstances. Manson v. Brathwaite (1977), 432 U.S. 98, 113- 114, 97 S.Ct. 2243, 2252-2253, 53 L.Ed.2d 140; Neil v. Biggers - 12 - (1972), 409 U.S. 188, 198, 93 S.Ct. 375, 381-382, 34 L.Ed.2d 401; State v. Waddy (1992), 63 Ohio St.3d 424, 438. The Neil court set forth a two-prong test to determine this issue. The first prong to be addressed herein is whether the pre- trial identification procedure was unduly suggestive. Rodriguez testified that she looked appellant squarely in the face during the incident for an estimated period of five minutes. She provided a description of appellant to the police that day. Det. Kilbane realized after appellant's arrest several days later that appellant fit the description. He, therefore, compiled a photographic array with appellant's photograph and four other photographs with subjects matching appellant's physical characteristics. All of the photographs depicted males of the same race who had short hair and facial growth. Although it appears that three photographs depict darker-skinned black males, the photographs' dissimilar backgrounds may have contributed to this distinction. The males otherwise appear to be physically compatible. This court thus finds that the photographs are not unduly suggestive. Assuming to the contrary, the next prong under Neil requires a determination as to whether, under all the circumstances, Rodriguez' identification was reliable, i.e., whether suggestive procedures creates "a very substantial likelihood of irreparable misidentification." Neil, 409 U.S. at 198, 93 S.Ct. at 381, quoting Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. See Waddy. Key factors in this - 13 - analysis are the witness' opportunity to view the defendant, her degree of attention, the accuracy of the witness' previous descriptions, her certainty, and the time elapsed between the incident and the identification. Neil, 409 U.S. at 199-200, 93 S.Ct. at 382. In the present case, as stated supra, Rodriguez estimated that she looked straight at appellant between the early evening hours of 5:30 and 6:00 p.m. for about five minutes. The description provided by her to the police that day prompted Det. Kilbane's subsequent connection of appellant to the April 23, 1995 incident. The detective testified that when he first showed the array to Rodriguez a month later, she selected appellant's photograph without hesitation. Rodriguez selected the same photograph without hesitation on a later date. Finally, Rodriguez testified at trial that she had no doubt that appellant was the individual who pulled a gun on her on April 23, 1995. The foregoing evidence convinces this court that no "very substantial" likelihood of misidentification exists in this case. Neil, 409 U.S. at 198, 93 S.Ct. at 381. Rodriguez' identification of appellant at trial was, therefore, admissible. Appellant's second assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover from the 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 Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, J., CONCURS; KENNETH A. ROCCO, J. DISSENTS IN PART AND CONCURS IN PART. SEE CONCURRING AND DISSENTING OPINION ATTACHED. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69978 STATE OF OHIO : : CONCURRING : AND Plaintiff-appellee : DISSENTING : OPINION -vs- : : RAYMOND SCOTT : : Defendant-appellant : : DATE: MAY 15, 1997 ROCCO, J., DISSENTING IN PART; CONCURRING IN PART: I concur with the majority on appellant's second assignment of error. However, I respectfully dissent from the majority's application of State v. Murphy (1990), 49 Ohio St.3d 206 to appellant's first assignment of error. The majority asserts that "Exhibit No. 3's operability is essentially irrelevant", reasoning that the State could prove operability of the gun "not from the weapon itself, but from Rodriguez' testimony." However, where, as here, the gun is actually recovered, there is no need to apply Murphy. In State v. Gaines (1989), 46 Ohio St.3d 65, the court held that the state is required to prove beyond a reasonable doubt, that the firearm in question was operable at the time of the offense in order to find the defendant guilty of the felony gun specification. Justice Alice Robie Resnick's well-written dissent noted that it is -3- illogical to require a higher degree of proof to establish a gun specification than is required to establish the elements of aggravated robbery; as the state need not prove that the gun was operable in an aggravated robbery case. State v. Gaines, supra at 72, citing State v. Vondenberg (1980), 61 Ohio St.3d 285, 15 O.O. 3d 329, 401 N.E.2d 437, syllabus. Requiring that the state prove the gun's operability "rewards the sophisticated criminal who disposes of the gun before being apprehended, so as to avoid the firearm specification." State v. Gaines, supra at 73. Justice Resnick further indicated that "[t]he realities of law enforcement simply do not afford the fortuitous act of catching a felon 'red handed'". Id. The perpetrator is apprehended after the crime has occurred, and the gun is seldom recovered. Id. Subsequently, Justice Resnick wrote for the majority in Murphy. The court in Murphy permitted proof regarding the operability of the gun by "the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime." Murphy, supra, at syllabus. In Murphy, as in Gaines, the gun was not admitted into evidence. However, in the action, sub judice, the gun was recovered, and was admitted into evidence by the State. Thus, a different analysis is required. The majority states that the testimony of Rodriguez, a lay witness, is sufficient to prove the gun's operability. As the gun was recovered and admitted into evidence, the analysis should stop there, without proceeding to an -4- examination of the totality of the circumstances. There is no need to examine the factors cited in Murphy to demonstrate the 2 operability of the gun. 2 Moreover, R.C. 2151.26, effecting the mandatory bindover of a juvenile, also uses the definition of "firearm" as it is .