[Cite as State v. Quinonez, 2011-Ohio-3064.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95783




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 FRANK QUINONEZ
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-469210

        BEFORE:           S. Gallagher, J., Blackmon, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEY FOR APPELLANT

Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Luke Mahoney
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant Frank Quinonez (“Quinonez”) appeals his conviction

following a bench trial in Cuyahoga County Common Pleas Court Case No.

CR-469210 on one count each of aggravated robbery, assault, grand theft of a

motor vehicle, and passing a bad check. The trial court sentenced Quinonez

to an aggregate nine-year term of incarceration. For the following reasons,

we affirm the decision of the trial court.
      {¶ 2} On June 23, 2005, Quinonez test-drove a new 2006 Mercedes

Benz, CLS 500, valued at more than $70,000.         After returning from the

test-drive, Quinonez offered to purchase the car for the sticker price and

wrote a check for the full amount. The salesmen attempted to confirm the

authenticity of the check and found it was drawn on a closed account. The

manager, now informed of the situation, asked Quinonez for another form of

payment.    Quinonez still had the key to the car and would not return it

despite the manager’s request. Quinonez returned to the car under the guise

of retrieving something left during the test-drive. The manager and three

other salespersons accompanied Quinonez.       Quinonez jumped in the car,

locked the doors, started it, and quickly reversed the car from the parking

spot. The manager moved in front of the car with his hands on the hood in

an attempt to keep Quinonez from driving off the premises.           With the

manager still standing in front of the car, Quinonez revved the engine by

pressing the accelerator pedal all or almost all the way down and then put the

car into “drive.” He quickly exited the parking lot and in the process ran into

the manager, who was attempting to get out of the way. The manager was

hit by the car.

      {¶ 3} After hearing the testimony at a bench trial, the trial court found

Quinonez guilty of aggravated robbery in violation of R.C. 2911.01, the lesser

included offense of assault in violation of R.C. 2903.13 against a separate
victim, grand theft motor vehicle in violation of R.C. 2913.02,1 and passing

bad checks in violation of R.C. 2913.11.                     It is from that decision that

Quinonez timely appeals, asserting as his sole assignment of error that

“[a]ppellant’s conviction of aggravated robbery is not supported by sufficient

evidence.” This assignment of error is not well taken.

       {¶ 4} In reviewing a claim of insufficient evidence, “‘the relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks (1991),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.                                The

weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of fact.                State v. Tenace, 109 Ohio St.3d 255,

2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.




       1
            We acknowledge that pursuant to State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,
922 N.E.2d 923, trial courts must undergo the allied offense analysis prior to sentencing and the
failure to do so is plain error. To constitute plain error pursuant to Crim.R. 52(B), there must be an
error or deviation from a legal rule that is plain or obvious, and that affected the defendant’s
substantial rights by affecting the outcome of the trial. State v. Barnes (2002), 94 Ohio St.3d 21, 27,
739 N.E.2d 1240. Even if an error satisfies these prongs, appellate courts are not required to correct
the error; we retain discretion whether to correct plain errors. Id. In this case, Quinonez does not
challenge his sentences for aggravated robbery and grand theft motor vehicle on the basis of being
allied offenses subject to merger. Quinonez’s sentences were imposed concurrently, and we
therefore decline to address this issue sua sponte.
      {¶ 5} At oral argument, Quinonez argued that the central question of

his case was whether the object of the underlying theft offense, the motor

vehicle, can simultaneously satisfy the element of being a deadly weapon for a

conviction for aggravated robbery. Under these facts and pursuant to the

precedent of this district, we answer that question in the affirmative. See

State v. Patton (Mar. 19, 1992), Cuyahoga App. No. 60032.         The facts of

Patton are similar to the current case. The defendant attempted to steal a

car from a rental company’s parking lot.      A security guard attempted to

intervene, and the defendant ran into the guard with the car while

effectuating his escape. The Patton court specifically rejected the notion that

the object of the theft cannot also satisfy the deadly weapon requirement of

aggravated robbery. Id. The court reasoned that the defendant could have

stolen the car without using it as a weapon, distinguishing the aggravated

robbery from the theft offense.     We agree, and absent authority to the

contrary, we find no merit to Quinonez’s argument.

      {¶ 6} Quinonez also challenges his conviction of aggravated robbery in

violation of R.C. 2911.01(A)(1) on the basis that the state failed to introduce

sufficient evidence establishing his intent to use the stolen car as a weapon.

R.C. 2911.01(A)(1) states in pertinent part that “[n]o person, in attempting or

committing [grand theft of a motor vehicle in violation of R.C. 2913.02], or in

fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly
weapon * * * and either display the weapon, brandish it, indicate that the

offender possesses it, or use it.”    “[A]n automobile can be classified as a

deadly weapon when used in a manner likely to produce death or great bodily

 harm.”   State v. Kilton, Cuyahoga App. No. 80837, 2003-Ohio-423, ¶ 25.

“[A] court should not only consider the intent and mind of the user, but also

the nature of the weapon, the manner of its use, the actions of the user, and

the capability of the instrument to inflict death or serious bodily injury. The

question of whether an automobile is used as a deadly weapon is a question of

fact for the trier of fact.” (Internal citations omitted.) Id.

      {¶ 7} In Kilton, the defendant pulled behind the victim while both were

driving separate vehicles on a roadway. The defendant repeatedly bumped

the victim’s car, causing the victim to lose control of her car at one point.

This court held that the “intentional acts were knowing and done in an

attempt to cause physical harm to the victim. The fact that the appellant

repeatedly hit and bumped the victim’s vehicle as traffic approached, while

crossing over a bridge, and thereafter forced her vehicle from the road clearly

manifests the intent of the appellant to cause her physical harm.” Id. at ¶

26. The court also found that the fact that the defendant used his vehicle to

further his aggression reflected the vehicle being used as a deadly weapon.

Id.
      {¶ 8} Quinonez focuses on his subjective intent to use the car as a

weapon. He argues that he never intended to use it in such a way, and that

if he had, he would have swerved into the manager rather than driving

straight out of the lot. His intent, however, is not the only consideration.

We must also look at the nature of the weapon, the manner of its use, the

actions of the user, and the capability to inflict serious harm.     Id.   The

testimony established during the bench trial reflects that the manager

attempted to prevent Quinonez from leaving the premises by standing

directly in front of the car. The manager had his hands on the hood of the

vehicle. Quinonez then quickly drove forward by pressing the accelerator all

or close to all the way down before putting the car into “drive.” The manager

remembers that the car just “shot out” before he could get out of the way.

Quinonez actually made contact with the manager, hitting him on the left

side of his body, from knee to elbow.

      {¶ 9} Regardless of Quinonez’s subjective intent, there is sufficient

evidence establishing that Quinonez used the car as a deadly weapon. The

manager was directly in front of the car and was clearly visible. Quinonez

had already seized exclusive control of the vehicle by locking himself inside

and had no reason to drive the car into the victim in that manner. Putting

the car into drive while the engine is revving and with the victim standing

directly in front of the car is inherently dangerous and involves a substantial
likelihood of serious bodily injury. Such actions did not allow the manager

any time to move to a safer location.                  Those facts establish sufficient

evidence of Quinonez’s intent to use the car as a deadly weapon. Based on

the foregoing evidence, the essential elements of the crime were proven

beyond a reasonable doubt and support the conviction of aggravated robbery.

Quinonez’s sole assignment of error is overruled.

       {¶ 10} The decision of the trial court is affirmed.

       It is ordered that appellee recover from appellant 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.




SEAN C. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, P.J., and
KENNETH A. ROCCO, J., CONCUR
