[Cite as State v. Woodson, 2012-Ohio-172.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96538




                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                LATAVIOUS WOODSON

                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-539826

        BEFORE: Kilbane, P.J., Stewart, J., and E. Gallagher, J.
    RELEASED AND JOURNALIZED: January 19, 2012
ATTORNEY FOR APPELLANT

Robert A. Gaffney
75 Public Square
Suite 714
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Vincent I. Pacetti
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

      {¶ 1} Defendant-appellant, Latavious Woodson (Woodson), appeals his

convictions. Finding no merit to the appeal, we affirm.

      {¶ 2} In August 2010, Woodson was charged in a six-count indictment,

with each count carrying one- and three-year firearm specifications and a

notice of prior conviction and repeat violent offender specifications. Counts 1

and 4 charged him with the kidnapping and aggravated robbery of Joseph

Clark (Joseph).   Counts 2 and 5 charged him with the kidnapping and

aggravated robbery of Michael Clark (Michael). Counts 3 and 6 charged him

with the kidnapping and aggravated robbery of Steven Collier (Collier).

      {¶ 3} Prior to the trial, the State dismissed Counts 3 and 6.   The trial

court renumbered the remaining counts as follows: Count 1 remained the

same, Count 2 remained the same, Count 4 was renumbered to Count 3, and

Count 5 was renumbered to Count 4.           In addition, the notice of prior

conviction and repeat violent offender specifications were bifurcated and tried

to the court.

      {¶ 4} The following evidence was adduced at the jury trial.

      {¶ 5} On June 30, 2010, Joseph and his son Michael were working at his

appliance and furniture store on Miles Avenue in Cleveland, Ohio. Around

4:45 p.m., Joseph and Michael were setting up items for sale on the sidewalk
outside of the store. Shortly thereafter, Collier approached Joseph and they

began discussing a game system that Collier sold to Joseph the day before.

They walked inside the store, while Joseph carried the game system.

Michael testified that he was still outside at this point. He noticed a man,

whom he identified as Woodson, walk past him, only to reappear seconds

later with a mask covering part of his face. Woodson pointed a black, metal

gun at Michael and told him that “this isn’t a joke” and to get inside the

building. Woodson then pointed the gun at Joseph. Woodson was standing

about seven feet away from Joseph.

     {¶ 6} Joseph testified that Woodson was dressed in all black and wore a

skull cap as a mask across his nose and face. Joseph further testified that

the skull cap slipped off Woodson’s nose and that Woodson was fumbling with

it while pointing the gun at him.    Joseph also identified Woodson as the

assailant. Joseph recognized Woodson because he lives in the neighborhood

and walks past his store almost everyday.

     {¶ 7} Woodson told Joseph to put his hands up, “[t]his is a robbery.”   He

continued to say, “I’m not joking * * * I’ll kill you.”   Woodson then told

Joseph and Michael to “get down.” Joseph, Michael, and Collier complied

and laid down on the ground. Woodson then walked over to Joseph and put

the gun to Joseph’s head, while he emptied Joseph’s pockets. He said, “I’m

not playing with you. I’ll kill you.” Joseph felt the gun pressed against his
head. Joseph testified that it felt like “cold steel.” Joseph testified that he

is familiar with guns because he has previously owned them. He believed

Woodson was using a real gun and identified it as an automatic 9 millimeter.

He felt that Woodson was serious about his threats and thought that he was

going to die. Woodson took Joseph’s wallet and cell phone.

         {¶ 8} Woodson then walked over to Michael, who was lying on the

ground, and took Michael’s wallet and cell phone. Woodson walked over to

Collier and swiped his hand across Collier’s pocket. He then fled the scene.

         {¶ 9} Joseph and Michael attempted to chase after Woodson, but could

not locate him.     A neighbor called the police, who arrived a few minutes

later.    The police were not able to find Woodson that day, but instructed

Joseph to call them if he saw Woodson in the area again. Two weeks later,

when Joseph was speaking to an officer outside his store, Joseph observed

Woodson driving his car.        Joseph then informed the police officer, who

conducted a traffic stop and arrested Woodson.         The officer returned to

Joseph’s store with Woodson sitting in the back of his police cruiser. Joseph

then identified Woodson as the assailant.

         {¶ 10} At the conclusion of trial, the jury found Woodson not guilty of

Count 1 and guilty of Counts 2, 3, and 4 (kidnapping and aggravated

robbery), including the one- and three-year firearm specifications. The trial

court found Woodson guilty of the accompanying notice of prior conviction and
repeat violent offender specifications on Counts 2-4.     The court merged

Count 2 with Count 4 for purposes of sentencing.        The court sentenced

Woodson to seven years in prison on each of Counts 3 and 4, to be served

concurrently.       The court also merged the one- and three-year firearm

specifications in Counts 3 and 4 and sentenced him to three years on the

firearm specifications to run consecutive and prior to Counts 3 and 4 for an

aggregate of ten years in prison.

      {¶ 11} Woodson now appeals, raising the following two assignments of

error for review.

      ASSIGNMENT OF ERROR ONE

      “The State did not present sufficient evidence to show that
      the firearm allegedly possessed by [Woodson] was actually
      operable and therefore a deadly weapon. Accordingly,
      his convictions for aggravated robbery in [Counts 3 and 4]
      and for the firearms specifications in [Counts 1-4], are
      against the sufficiency of the evidence and should be
      reversed because they violate the Fifth, Sixth and
      Fourteenth     Amendments      to    the   United    States
      Constitution, and Article I, Section 10 of the [Ohio State
      Constitution.]”

      ASSIGNMENT OF ERROR TWO

      “The verdict in this case was against the manifest weight
      of the evidence and should be reversed because it violates
      the Fifth, Sixth and Fourteenth Amendments to the United
      States Constitution, and Article I, Section 10 of the [Ohio
      State Constitution.]”
       {¶ 12} Within these assigned errors, Woodson argues the State failed to

present sufficient evidence to demonstrate that the firearm possessed by

Woodson was actually operable and considered a deadly weapon to sustain

his convictions for aggravated robbery with the firearm specifications. For

this same reason, he further argues that his convictions are against the

manifest weight of the evidence.

       {¶ 13} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,

900 N.E.2d 565, ¶113, explained the standard for sufficiency of the evidence as follows:

       “Raising the question of whether the evidence is legally sufficient to support
       the jury verdict as a matter of law invokes a due process concern. State v.
       Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing
       such a challenge, ‘[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph
       two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99
       S.Ct. 2781, 61 L.Ed.2d 560.”

       {¶ 14} With regard to a manifest weight challenge, the “reviewing court asks whose

evidence is more persuasive — the state’s or the defendant’s?   * * * ‘When a court of appeals

reverses a judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s

resolution of the conflicting testimony.’   [Thompkins at 387], citing Tibbs v. Florida (1982),

457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.” State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶25.
         {¶ 15} Moreover, an appellate court may not merely substitute its view for that of the

jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 485

N.E.2d 717. Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional

case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin.

         {¶ 16} In the instant case, Woodson was convicted of aggravated robbery under

R.C. 2911.01(A)(1), which provides that:                 “[n]o person, in attempting or

committing a theft offense, as defined in [R.C. 2913.01], or in fleeing

immediately after the attempt or offense, shall * * * [h]ave a deadly weapon

on or about the offender’s person or under the offender’s control and either

display the weapon, brandish it, indicate that the offender possesses it, or use

it[.]”

         {¶ 17} R.C. 2923.11 defines “deadly weapon” and “firearm” as follows:

         “(A) ‘Deadly weapon’ means any instrument, device, or
         thing capable of inflicting death, and designed or specially
         adapted for use as a weapon, or possessed, carried, or used
         as a weapon.

         (B)(1) ‘Firearm’ means any deadly weapon capable of
         expelling or propelling one or more projectiles by the
         action of an explosive or combustible propellant. ‘Firearm’
         includes an unloaded firearm, and any firearm that is
         inoperable but that can readily be rendered operable.
      (2) When determining whether a firearm is capable of
      expelling or propelling one or more projectiles by the
      action of an explosive or combustible propellant, the trier
      of fact may rely upon circumstantial evidence, including,
      but not limited to, the representations and actions of the
      individual exercising control over the firearm.”

      {¶ 18} With respect to the firearm specifications, R.C. 2941.145 provides

in pertinent part: “(A) [i]mposition of a three-year mandatory prison term

upon an offender * * * is precluded unless the indictment, count in the

indictment, or information charging the offense specifies that the offender

had a firearm on or about the offender’s person or under the offender’s control

while committing the offense and displayed the firearm, brandished the

firearm, indicated that the offender possessed the firearm, or used it to

facilitate the offense.”

      {¶ 19} Woodson asserts that the State did not prove that an operable

firearm was used during the commission of the robbery. In support of his

argument, he relies on the fact that the firearm was never recovered, and

therefore it could not be examined for its operability, and that there was no

testimony regarding the smell of gun powder or of shots being fired.

      {¶ 20} The Ohio Supreme Court in addressing whether the firearm

specification in R.C. 2929.71 can be proven beyond a reasonable doubt

without actually presenting scientific or direct evidence as to the operability

of the firearm, held that “[t]he state must present evidence beyond a
reasonable doubt that a firearm was operable at the time of the offense before

a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A).

However, 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. (State v. Gaines [1989], 46

Ohio St.3d 65, 545 N.E.2d 68, modified.)”

      {¶ 21} State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932, at the

syllabus.

      {¶ 22} The Ohio Supreme Court later refined the matter by which the

State may prove a firearm specification in Thompkins, where the court found

that “[i]n determining whether an individual was in possession of a firearm

and whether the firearm was operable or capable of being readily rendered

operable at the time of the offense, the trier of fact may consider all relevant

facts and circumstances surrounding the crime, which include any implicit

threat made by the individual in control of the firearm.” Id. at paragraph

one of the syllabus.

      {¶ 23} Moreover, with respect to operability, in State v. Fulton,

Cuyahoga App. No. 96156, 2011-Ohio-4259, we recently explained:

      “‘This Court “evaluate[s] the evidence of a firearm’s
      operability   by   examining    the    totality  of   the
      circumstances.” State v. McElrath (1996), 114 Ohio App.3d
      516, 519, 683 N.E.2d 430, citing [Murphy at 208]. In
      McElrath, this Court found that in cases where no shots
     are fired and the firearm is not recovered, circumstantial
     evidence, such as the representations and actions of the
     gun operator, are of crucial importance.                 Id.
     Specifically, this Court found that “‘the implicit threat of
     brandishing a firearm’ supports an inference that the
     firearm was operable.” State v. Williams (Dec. 27, 2000),
     9th Dist. No. 19559, citing McElrath[, 114 Ohio App.3d] at
     519-520.’” Id. at¶34, quoting State v. Ware, Summit App.
     No. 22919, 2006-Ohio-2693.

See, also, State v. Gooden, Cuyahoga App. No. 82621, 2004-Ohio-2699, ¶33,

(where this court upheld defendant’s aggravated robbery with firearm

specification convictions, finding that the “operability of the weapon may be

inferred from the facts and circumstances. [In Gooden, the] victim testified

[the defendant] placed the gun into his side and instructed him to go to the

back of the building. When the victim’s friends appeared, [the defendant]

displayed the gun and told them to leave. [The defendant] also pulled out

the gun and instructed the victim to remove his clothing and proceeded to

take money therefrom.”)

     {¶ 24} Based on the totality of the circumstances in the instant case, we

find that the firearm was operable.        The victims clearly testified to

Woodson’s use of a gun.    Michael testified that Woodson pointed a black,

metal gun at him and told him that “this isn’t a joke.” Woodson also pointed

the gun at Joseph and told him to put his hands up, “[t]his is a robbery.”

Woodson continued to say, “I’m not joking * * * I’ll kill you.” Woodson then

told Joseph and Michael to “get down.” Woodson put his gun to Joseph’s
head, while he emptied Joseph’s pockets.        He told Joseph that, “I’m not

playing with you.    I’ll kill you.”   Joseph felt the gun pressed against his

head. He testified that it felt like “cold steel.” He further testified that he is

familiar with guns because he has previously owned them.             He believed

Woodson was using a real gun and identified it as an automatic 9 millimeter.

He felt that Woodson’s threats were serious and he thought that he was going

to die.   Woodson then took Joseph’s wallet and cell phone and Michael’s

wallet and cell phone.     Thus, it was reasonable for the trier of fact to

conclude that Woodson’s words and actions were meant to imply that his gun

was, in fact, operable. See Gooden at ¶33.

      {¶ 25} Given the evidence, we conclude that any rational trier of fact

could have found that Woodson possessed a firearm and that the operability

of the firearm was proven beyond a reasonable doubt. We further find that

this is not the extraordinary case where the “jury lost its way” and created a

manifest miscarriage of justice.

      {¶ 26} Accordingly, the first and second assignments of error are

overruled.

                                                             Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.
     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.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., and
EILEEN A. GALLAGHER, J., CONCUR
