COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70415 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION GROVER BENTEN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-329599 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN J. RUSSO, ESQ. Cuyahoga County Prosecutor HILDEBRAND, WILLIAMS & FARRELL 21430 Lorain Road FRANCINE GOLDBERG, ESQ. Fairview Park, OH 44126-2125 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - KARPINSKI, J.: Defendant, Grover Benten, appeals from the judgment of the trial court wherein a jury found defendant guilty of one count of aggravated robbery with firearm and violence specifications and one count of having a weapon while under a disability with a firearm specification. These charges resulted from a bank robbery. On appeal, defendant argues that (1) the trial court erred in denying his motion to dismiss for lack of a speedy trial, (2) the convictions for the firearm specifications and having a weapon while under a disability were based on insufficient evidence, and (3) the trial court erred by not instructing the jury on the lesser included offense of theft. We find no merit to these assignments and affirm the judgment of the court below. The relevant facts follow. On August 19, 1995, the Charter One Bank in Parma, Ohio was robbed by two men. The state presented the testimony of the six people who were in the bank at the time of the robbery. To summarize, a commotion was heard in the rear of the bank and someone shouted, "Everyone get down." Two men entered the bank, one with a bandanna over his face and defendant, who was wearing a stocking covering his face. After the money was placed in the bag, the men ran out into the parking lot. At this point, a customer who happened to be an off-duty policeman, Andrew Ziska, chased the men. When the two men separated, Ziska chased defendant but lost him. The police set - 3 - up a perimeter in the area and defendant was found hiding in a garage. No gun was found on defendant. Ziska had a good enough look to identify him later at the trial. The jury found defendant guilty of one count of aggravated robbery with a firearm specification and one count of having a weapon while under a disability with a firearm specification. Defendant timely appealed. His first assignment states as follows: I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT- APPELLANT'S MOTION TO DISMISS FOR LACK OF A SPEEDY TRIAL. In this assignment, defendant asserts that he was denied his right to a speedy trial pursuant to R.C. 2945.71. This statute requires that a person against whom a felony charge is pending be brought to trial within 270 days after being arrested. For purposes of computing time within which an accused must be brought to trial, Revised Code 2945.71(E) specifies that each day during which the accused is held in jail in lieu of bail on the pending charges shall be counted as three days. State v. Howard (Mar. 4, 1994), Scioto App. No. 93CA2136, unreported; State v. MacDonald (1976), 48 Ohio St.2d 66. In other words, "a felony defendant in Ohio must be tried within ninety days if incarcerated on the pending charge or within two hundred seventy days if on bail." State v. Coleman (1989), 45 Ohio St.3d 298. The ninety-day period of R.C. 2945.71, however, does not apply when a defendant is being held on multiple charges pending separate trials. Coleman, supra. - 4 - In State v. Martin (1978), 56 Ohio St.2d 207, the Ohio Supreme Court held that the triple-count provision of R.C. 2945.79(D) is inapplicable when the accused is held in jail for a probation violation. In the case at bar, both sides agree that the trial court, on November 9, 1995, issued a nunc pro tunc 1 order for a capias to issue as a probable probation violator. In the case at bar, defendant was in jail from August 20, 1995 to November 9, 1995, the date he was found to be a probation violator. Even if we disregard the retroactivity of the nunc pro tunc order, defendant was held in jail only 243 days. From November 9, 1995 to November 20, 1995, defendant was held in jail pursuant to the probation violation; thus for these twelve days he was not entitled to the triple-count provision. As of November 20, 1995, defendant had spent 255 days in jail. Because defendant filed a motion on November 21, 1995 to dismiss the charges against him, no new days were added to this 255-day total from the period between November 21, 1995 and January 16, 1996. This motion was overruled by the trial court on January 16, 1996. Under R.C. 2945.72(E), a motion to dismiss filed by defendant tolls the time period for speedy trial until the motion is ruled upon. State v. Atkinson (Feb. 23, 1995), Cuyahoga App. No. 58605, unreported. This motion tolled the running of the time for speedy trial from November 21, 1995 to January 15, 1996. 1 We appreciate the timeline the prosecutor provided to assist in the analysis of the speedy trial issue. - 5 - Additionally, no time can be added to the 255-day total from November 17, 1995 until the date of trial because defendant filed numerous motions to continue the trial date. Under R.C. 2945.72(H) a continuance requested by defendant will toll the time period for speedy trial. State v. Baker (1993), 92 Ohio App.3d 516. The record reflects that trial was scheduled for November 17, 1995. On November 17, 1995, the trial court granted defendant's request for a continuance of trial until November 21, 1995. Thereafter, the trial court granted defendant's second request to continue trial, which was later set for February 5, 1996. Again, on February 5, 1996, the trial court granted yet a third request by defendant to continue trial until February 20, 1996. Trial finally commenced on February 20, 1996. Because defendant requested these continuances, no further days from November 17, 1995 were added to the count in deciding whether he received a speedy trial. Therefore, because defendant was tried within 255 days of his arrest, he was not denied his right to a speedy trial. The first assignment is overruled. II. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION FOR ACQUITTAL, AS THERE WAS INSUFFICIENT EVIDENCE TO FIND DEFENDANT-APPELLANT GUILTY OF THE FIREARM SPECIFICATION AND HAVING A WEAPON WHILE UNDER DISABILITY, SINCE THE STATE FAILED TO PROVE THAT AN OPERABLE FIREARM WAS USED IN THE COMMISSION OF THE CRIME. In this assignment, defendant claims there was insufficient evidence to support his conviction on the firearm specification. Defendant argues that there was conflicting evidence as to whether he used a gun in the commission of the crime, that - 6 - photographs taken by bank surveillance did not show any gun, and that no weapon was found along the escape route or on the defendant when he was arrested. The state presented the following testimony from the six people in the bank. Diane Dirk, a customer, stated that defendant pointed a silver metal gun at her and at the bank teller. (Tr. 78, 85, 93, 94, 100.) Ms. Lesure, a teller at the drive up window who was familiar with guns, stated defendant was waving a dark silver handgun with a long barrel. (Tr. 130-132.) Jane Rosenfeld, a bank employee seated at a desk, said defendant "pointed the gun right at [her] face." (Tr. 169.) She described the gun as six to eight inches long with a dull, dark gray round barrel. (Tr. 177-178.) Another employee, Christie Sue Williams, was behind the teller's counter and did not see a gun. She explained she was lying on the ground as commanded until an accomplice ordered her to get up and put the money in a bag. Moreover, she could not see below defendant's shoulders because she was behind a high counter. (Tr. 142-143.) Branch Manager Colleen Taylor, seated at a desk, said defendant "was holding his hands like this, and I thought if I moved he was going to shoot me," but she did not see a gun. She did state, however, that by the way he was holding his hands, she thought he had a gun. (Tr. 117, 121.) Andrew Ziska, the off-duty policeman, testified he never saw a gun and never observed defendant discard one, but during the chase Ziska lost sight of defendant for ten to fifteen minutes. (Tr. 220.) Ziska said, moreover, defendant "had one - 7 - hand like fully into his pants tugging at something." (Tr. 197- 198.) Ziska also stated, "I thought he was going to pull out a gun and, you know, at that time it was my belief that, you know, he was tugging so much, I kind of thought that maybe he lost his gun inside his pants and was trying to get it out ***." (Tr. 196.) To summarize, three witnesses clearly testified they saw a gun. Another saw enough to believe defendant had a gun and she might be shot, even though she does not remember seeing the gun. A fourth witness, first lying on the ground and then busy putting money in a bag, was focussing on the accomplice and his orders. The off-duty policeman thought defendant was going to pull out a gun by the way he was gesturing and tugging at something in his sweatpants. A series of photographs, moreover, shows defendant crouching with his right hand placed next to his knee, at times his hand hidden by his knee, at times hidden inside his clothes. This posture explains the difficulty some witnesses would have in seeing the gun that others clearly identified. The testimony is not contradictory. Finally, that the police did not locate the gun is not conclusive proof it did not exist. Such an omission is merely one factor for the jury to weigh. To meet the test for sufficiency, which is what Assignment of Error Two challenges, all that is required is that the prosecution present some evidence which, viewed in the light most favorable to the state, establishes beyond a reasonable doubt that a gun was used in the commission of the crime. State v. Bridgeman (1978), 55 Ohio - 8 - St.2d 261; State v. Viceroy (May 9, 1996), Cuyahoga App. No. 68890, unreported; State v. Nicholson (Jan. 26, 1995), Cuyahoga App. No. 66837, unreported. The testimony of three witnesses who stated they saw the gun satisfies that test. Additionally, defendant argues that to prove a firearm specification, the state must present evidence beyond a reasonable doubt that the firearm was operable at the time of the offense. State v. Murphy (1990), 49 Ohio St.3d 206. Defendant raised this issue in a Crim. Rule 29 motion for acquittal on the firearm specification. Proof of operability can be established by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. Id. Moreover, in State v. Dixon (1995), 71 Ohio St.3d 608, the Ohio Supreme Court expanded the criteria for proving 2 operability of a firearm to include implicit threats. State v. Gest (1995), 108 Ohio App.3d 248, 264. See also, State v. Nelson (Aug. 18, 1995), Montgomery App. No. 14775, unreported; State v. McElrath (Oct. 2, 1996) Summit App. No. 17645, unreported; State v. Gamble (Nov. 13, 1996), Hamilton App. No. C-960071, unreported. Finally, this court has held that the fact that a witness is familiar with guns is one factor along with non-verbal 2 In Dixon, the Ohio Supreme Court, without an opinion, reversed the judgment of the appellate court which found insufficient evidence to establish the operability of a firearm. The case was certified to the Court on the question of whether implicit threats are sufficient to establish the operability of a firearm. - 9 - threats to establish that a firearm is operable. State v. Reynolds (July 8, 1993), Cuyahoga App. No. 63025, unreported. Three witnesses testified defendant pointed or waved the gun at them or at others. Rosenfeld said defendant pointed the gun at her face; Lesure confirmed this account and added he waved the gun between Rosenfeld and Taylor. Lesure stated that she was familiar with guns. Dirk also stated unequivocally that defendant pointed the gun at her and Williams. Pointing a gun 3 right at someone's face with the command not to move is clearly an implicit threat. Moreover, Ziska heard the words "gun" and "kill." Viewing the evidence in the light most favorable to the state, we find that sufficient evidence was presented to establish beyond a reasonable doubt that defendant had a gun and implicitly threatened witnesses by pointing it at them. Thus there was sufficient evidence to support the firearm conviction. Accordingly, this assignment is overruled. III. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S REQUEST FOR AN INSTRUCTION ON A LESSER INCLUDED CHARGE OF THEFT. In this assignment, defendant argues that the trial court erred by not instructing the jury on the lesser included offense of theft. An instruction on theft as a lesser included offense of aggravated robbery is required only when the evidence reasonably permits an acquittal on aggravated robbery and a conviction on theft. State v. Thomas (1988), 40 Ohio St.3d 213. 3 Rosenfeld and Lesure heard this command, but Dirk testified only that the two men yelled something. - 10 - The difference between aggravated robbery and theft is the presence of the firearm. In the case at bar, the evidence presented to the trial court does not reasonably permit an acquittal on aggravated robbery. Of the six witnesses in the bank, five either saw the gun or perceived gestures consistent with having a gun. The sixth was not in a position to see defendant's hands and was preoccupied by commands of his accomplice. As stated under the preceding assignment, the evidence is sufficient to establish the presence of the gun and to support the trial court's decision to not give the jury a theft instruction. Accordingly, this assignment is overruled. Judgment affirmed. - 11 - 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 Cuyahoga County 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. JAMES D. SWEENEY, C.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(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 .