[Cite as State v. Hammond, 2013-Ohio-2466.]


                  Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99074



                                    STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.

                                 CURTIS HAMMOND
                                              DEFENDANT-APPELLANT




                     JUDGMENT:
   CONVICTION MODIFIED; REMANDED FOR RESENTENCING


                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CR-560480

        BEFORE:         McCormack, J., Celebrezze, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: June 13, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

By: Erika B. Cunliffe
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: John F. Hirschauer
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

        {¶1} Curtis Hammond appeals from a judgment of the Cuyahoga County Court

of Common Pleas that found him guilty of aggravated robbery and disrupting public

services, and sentenced him to three and one-half years of imprisonment for his

convictions.   Having reviewed the record and applicable law, we conclude Hammond

should have been convicted of robbery rather than aggravated robbery, because the state

presented no evidence that the toy gun used in the incident is a “deadly weapon” as

statutorily defined. We affirm his conviction of disrupting public services but modify

his conviction of aggravated robbery to robbery and remand the matter for resentencing.

                       Substantive Facts and Procedural History

        {¶2}   Hammond was charged with aggravated robbery in violation of R.C.

2911.01(A)(1) and disrupting public services in violation of R.C. 2929.04(A)(1), after he

allegedly held up an acquaintance with a toy gun and ripped a telephone jack from the

wall.   After a bench trial, he was found guilty of both offenses and sentenced to three

years of imprisonment for aggravated robbery and six months for disrupting public

services, to run consecutively.

        {¶3} Johnnie S. Patrick, III, and Hammond both resided at a CMHA senior

apartment complex located on East 93rd Street in Cleveland.   Patrick has been a resident

there for several years; Hammond moved in in January 2012.            They struck up a

friendship. Hammond, who was in his early 50’s, would periodically check on Patrick,
in his 70’s. On March 3, 2012, Hammond gave Patrick a haircut and trimmed his beard.

 Afterwards, the two went to the store together. Patrick bought some Polish boys and

alcohol for the two of them, paying with cash from his billfold. The two then went back

to Patrick’s apartment.     CMHA surveillance cameras showed they exited the apartment

building at 1:36 p.m. and re-entered the building at 1:48 p.m., with Hammond carrying a

bag.   They entered the elevator at 1:49 p.m.

       {¶4} After they returned to Patrick’s apartment, they ate the Polish boys and

drank the alcohol, but Patrick and Hammond gave conflicting accounts as to what else

transpired in the apartment. Patrick alleged Hammond robbed him; Hammond denied it.

       {¶5} Patrick testified that, at one point, he went to use the toilet and, when he

came out, he sat down on his bed.           Hammond pretended to tie his shoelaces, but

unexpectedly tackled him.       While they were “tussling” and “wrestling,”        Hammond

reached for Patrick’s pocket, where he kept his billfold.       In the midst of the struggle,

Hammond pulled out a gun. Believing Hammond would have hurt him with the gun,

Patrick threw his hands up and gave up the struggle. Hammond took Patrick’s billfold

and then ripped the telephone off the wall before he ran out of the apartment.        Patrick

went downstairs to call the police at around 3:00 p.m. His billfold was later recovered

from behind his bed.      Patrick testified that he wears eyeglasses and also a patch over one

eye, but he can see out of his good eye.

       {¶6} Hammond testified that Patrick was like a father to him and he would check

on Patrick often.   He denied robbing Patrick after they returned to his apartment.        He
stated he left the apartment that day to go to a baby shower at around 3:00 p.m. or 3:15

p.m., with $10 Patrick had given him for the bus fare.

       {¶7} Hammond also testified that the toy gun retrieved from the apartment actually

belonged to Patrick, who had shown him the gun the day before, and asked him to buy a

real gun that would resemble the toy gun. Hammond told Patrick he was not going to

buy a gun for him because both of them are ex-felons.     Instead, he used the $200 Patrick

gave him to purchase the gun to buy wine, liquor, and cigarettes for the two of them. He

stated Patrick was angry with him for not purchasing a gun for him.

       {¶8} Detective Ovalle, a CMHA police officer, received a call at about 3:00 p.m.

on the day of the incident for an armed robbery at Patrick’s apartment.     Patrick, shaken

and disheveled, told the officer he was robbed by a tall, black man named “Curtis.”      His

bedroom was in disarray — the mattress was on the floor, as well as clothing and other

items, suggesting there had been some type of struggle.      Food and alcoholic beverages

were also scattered around.    Patrick told the officer that Hammond pulled out a black

pistol and demanded money from him, after he lost his eye glasses and eye patch during a

struggle.   Detective Ovalle found the eyeglasses and eye patch behind the bed, as well as

a black plastic toy pistol. After Patrick put his glasses on, he took a good look at the toy

gun and identified it as the weapon pulled by Hammond.              Detective Ovalle also

observed the phone jack broken off the wall. Patrick did not sustain visible injuries.

       {¶9} Patrick reported the incident to the apartment manager, Diane Tirado.

Tirado testified that Patrick told her he and Hammond went to Double Exposure to get
something to eat and drink. When he opened his wallet to pay, Hammond saw the large

amount of cash that Patrick had taken out of the bank earlier.           While back in Patrick’s

apartment, Hammond started pushing him around, knocking his eye patch off, and then

held him up and robbed him.         When she checked his bedroom, the mattress was off the

bed frame and the telephone jack was ripped from the wall.

         {¶10} On appeal, Hammond appeals his convictions of aggravated robbery and

disrupting public services, and also the consecutive sentences imposed by the trial court

for his convictions.

                                  Sufficiency of the Evidence

         {¶11} Under his first assignment of error, Hammond claims his conviction of

aggravated robbery is not supported by sufficient evidence.1

         {¶12} When reviewing a challenge of the sufficiency of the evidence, a reviewing

court examines the evidence admitted at trial and determines whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.       State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. “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


          Based on the witnesses’ testimony that a phone jack was ripped off the wall, Hammond was
         1


also convicted of disrupting public services in violation of R.C. 2929.04(A)(1), which prohibits a
person, by damaging or tampering with any property, from interrupting or impairing television, radio,
telephone, telegraph, or other mass communications service. Hammond does not challenge the
sufficiency of the evidence regarding his conviction of this offense.
elements of the crime proven beyond a reasonable doubt.” Id.       A sufficiency challenge

requires us to review the record to determine whether the state presented evidence on

each of the elements of the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). A reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.”         State v. Thompkins, 78 Ohio St.3d 380, 390,

1997-Ohio-52, 678 N.E.2d 541.

       {¶13} Hammond was convicted of aggravated robbery, which is defined in R.C.

2911.01(A)(1). That statute states, in pertinent part:

               (A) No person, in attempting or committing a theft offense, as
       defined in section 2913.01 of the Revised Code, or in fleeing immediately
       after the attempt or offense, shall do any of the following:
               (1) Have 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; * * *.

       {¶14} Hammond argues the evidence was insufficient to convict him of aggravated

robbery.   Specifically, he contends the state failed to present sufficient evidence showing

the gun used in the robbery incident was a “deadly weapon.”

       {¶15} R.C. 2923.11(A) defines a “deadly weapon” as “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.”

                     Whether the Toy Gun was a Deadly Weapon

       {¶16}   We begin with the recognition that “[a]n item does not have to be one that

kills in order to be a deadly weapon.    No item, no matter how small or commonplace,
can be safely disregarded for its capacity to cause death when it is wielded with the

requisite intent and force.”   In re Smith, 142 Ohio App.3d 16, 24, 753 N.E.2d 930 (8th

Dist. 2001), citing State v. Deboe, 62 Ohio App.2d 192, 193-194, 406 N.E.2d 536 (6th

Dist.1977).   However, the courts have provided guidance regarding when a device such

as a toy gun or BB gun can be considered a deadly weapon.

       {¶17} In   State v. Hicks, 14 Ohio App.3d 25, 26, 469 N.E.2d 992 (8th Dist.1984),

this court considered the issue of whether the toy gun used during an attempted robbery

was a deadly weapon.      We observed that the courts have previously found inoperable

guns, starter pistols, and inoperative BB and pellet guns “capable of inflicting death”

because of their possible use as bludgeons. In Hicks, the arresting officer testified that

the toy gun used in the incident was metal, similar to a .25 caliber handgun, and that the

police had investigated crimes where such objects had been used as bludgeons.      Based

on the testimony and our own examination of the toy gun, which had been submitted as

an exhibit, this court in Hicks concluded the conviction of aggravated robbery was

supported by sufficient evidence.

       {¶18} In State v. Brown, 101 Ohio App.3d 784, 656 N.E.2d 741 (1st Dist.1995),

the defendant used a BB gun to assault the victim, and the First District applied Hicks to

resolve the question of whether the defendant should have been convicted of felonious

assault, an issue that similarly turned on whether the BB gun used by the defendant was a

deadly weapon “capable of inflicting death.”   The First District reversed the defendant’s
conviction for felonious assault after determining the state failed to prove the BB gun

used by the defendant had been “capable of inflicting death.”

       {¶19} The First District explained that the law in Ohio was fairly well settled:   “a

BB gun may be a deadly weapon if capable of inflicting death, as a bludgeon, or perhaps

as used in some other manner (one could envision a BB gun so powerful that it could be a

deadly weapon by its very nature).”      (Emphasis sic.) Id. at 788. “This capability,

however, is a factual issue to be determined by the trier of fact.”     (Citation omitted.)

Id. The First District noted that in Hicks, this court based its conclusion that the toy gun

in that case was in fact a deadly weapon on the arresting officer’s testimony that the toy

gun was made of metal and that the police had investigated crimes where such objects

had been used as bludgeons, as well as its own examination of the toy gun.    Id.

       {¶20} The First District explained that, in contrast to Hicks, there was no evidence

that the Brown defendant ever used or threatened to use the BB gun      as a bludgeon, nor

could any inference of such use be made from the evidence. The BB gun was not

introduced in evidence, and the only description of it was that it was long and had a

pump. Although the victim in Brown was struck with BBs, there was absolutely no

evidence adduced concerning the particular BB gun’s capability of inflicting death, either

as a bludgeon or otherwise. The First District emphasized that a BB gun was not a

deadly weapon as a matter of law, concluding that, “in the absence of more evidence

about the quality and characteristics of the BB gun used in the offense, identifying it as
capable of inflicting death,” the defendant should have been convicted only of simple

assault.

       {¶21} In State v. Gray, 1st Dist. No. C-081257, 2009-Ohio-5844, the court reached

a similar conclusion that there was insufficient evidence to support the jury’s finding that

the defendant’s BB gun was a “deadly weapon” under R.C. 2923.11(A).              The court

reasoned that there was no evidence demonstrating how the defendant’s particular BB

gun was capable of inflicting death; there was also no testimony tying the particular

attributes of the gun to its potential capacity for inflicting death — for example, evidence

showing the particular BB gun was heavy enough to be used as a deadly bludgeon. The

court, in addition, remarked that the deadliness of certain types of BB guns, in general,

should not have been admitted into evidence because it was irrelevant to the issue

whether the defendant’s BB gun was a deadly weapon.

       {¶22} In State v. White, 8th Dist. No. 92972, 2010-Ohio-2342, another BB gun

case, this court reached a different result, based on the evidence presented at trial.   We

reasoned that the trier of fact   heard testimony that the gun was made of “hard” plastic;

in addition, pictures of the gun recovered on the scene showed a warning engraved on the

gun stating: “Not a toy. Misuse may cause fatal injury.” We also pointed out that the

pistol-whipping the victim received had caused bleeding and swelling on his face. If the

gun could open cuts and bruise the face, the trier of fact could rationally have concluded

that this evidence was sufficient to demonstrate the bludgeoning power of the BB gun,

thereby confirming that the BB gun could be used as a deadly weapon.
       {¶23} Based on the case law, therefore, in order to support a conviction of

aggravated robbery, the state must present evidence to show the toy gun retrieved from

the victim’s apartment, which the state alleged to be the gun used in the robbery incident,

was a deadly weapon capable of inflicting death. However, there was no evidence,

testimonial or otherwise, presented at trial to show this toy gun was heavy enough to be

used as a deadly bludgeon, or capable of inflicting death in other manners.       Our own

examination of the toy gun shows it is made of light plastic, weighs 1.5 ounces and

measures 5 inches in length and 3.5 inches in height; clearly not a device that was proven

in any manner capable of inflicting death.        Unlike in White, where evidence was

presented regarding the attributes of the BB gun demonstrating it was capable of

inflicting death, no such evidence was presented here.

                  The State’s Reliance on State v. Smith is Misplaced

       {¶24} The state claims a prior decision from this court, State v. Smith, 8th Dist.

No. 94167, 2011-Ohio-306, supports its contention that a toy gun could be a deadly

weapon if it caused such fear that a victim was induced to part with his or her property.

       {¶25} In Smith, the victim testified that appellant threatened him with a gun.

When appellant was apprehended in his vehicle moments after the robbery, a .357

Magnum revolver was found in the vehicle’s glove compartment; however, the police

also found a toy plastic gun in the trunk of the car.         In challenging the victim’s

credibility, appellant argued that the victim could not identify the gun pointed at him,

leaving the possibility that the gun used in the robbery may have been the toy gun. A
panel of this court affirmed appellant’s aggravated robbery conviction, deferring to the

trier of fact for its evaluation of the victim’s testimony about the gun. Id. at ¶ 26.

       {¶26} In its analysis, however, the panel mentioned in passing that whether a real

gun or a toy gun was used to commit the robbery was not dispositive, because whether the

real gun or the toy gun was pointed at the victim, the fear of the victim was such that the

victim was induced to part with his property. The panel cited State v. Brooks, 2d Dist.

No. 21531, 2007-Ohio-1029, for the statement.        Brooks is not pertinent authority in an

aggravated robbery case, because the Brooks defendant was charged with simple robbery

in violation of   R.C. 2911.02(A)(3), which prohibits a person to “[u]se or threaten the

immediate use of force against another.”         The court in Brooks explained that the

requirement of using or threatening the immediate use of force against another would be

satisfied if “the fear of the alleged victim was of such a nature as in reason and common

experience is likely to induce a person to part with property against his will * * *.” Id. at

¶ 24, citing State v. Davis, 6 Ohio St.3d 91, 94, 451 N.E.2d 772 (1983).       Unlike simple

robbery, a conviction of aggravated robbery requires the use of a device capable of

inflicting death. It does not depend on what the victim perceives.

       {¶27} The state’s reliance on Smith is misplaced.         In that case, the victim’s

testimony about having a gun pointed at him was corroborated by the discovery of a real

gun in the glove compartment of the defendant’s vehicle moments after the robbery.

The fact that a toy gun was also found in the trunk was tangential to the case.    The Smith
panel never stated the toy gun could be a deadly weapon supporting an aggravated

robbery conviction if it induced fear by the victim.

                            The State’s Argument on Appeal

       {¶28} On appeal, the state argues, for the first time, that the toy gun retrieved in

the victim’s apartment was not the weapon used in the offense.        The state makes this

argument even though in both its opening and closing argument, it alleged the toy gun

retrieved was the weapon used by Hammond and it submitted the gun as the state’s

exhibit No. 1.    The state now refers us to page 35 of the trial transcript, where Patrick

was asked if the toy gun recovered by the police was the weapon used in the robbery and

he answered it “[l]ook[s] like it.” Citing this testimony, the state claims Patrick did not

really identify the toy gun as the weapon used in the offense and invites us to entertain the

possibility that a different gun, presumably a real gun, could have been used in

Hammond’s commission of robbery.

       {¶29} First of all, the claim that Patrick was unable to identify the toy gun as the

weapon used in the robbery is belied by our own review of the trial transcript, which

reflects Detective Ovalle’s testimony on two occasions at trial that, during his

investigation, Patrick identified the toy gun as the one Hammond pulled during the

incident.

       {¶30} Second, the state raises this claim on appeal even though at trial it never

presented this alternative theory.       The state submitted no evidence whatsoever

regarding the possible existence of a separate “real” gun.
       {¶31} In the absence of any evidence, the state asks us to consider the possibility

that a real gun, not the toy gun retrieved from the scene, had been used in the robbery.

The state is essentially claiming that the victim’s testimony that a gun was used in the

robbery, alone, constituted sufficient evidence for the existence of a real gun, which is a

deadly weapon, to support an aggravated robbery conviction.

       {¶32} While the state presented evidence regarding the toy gun — the victim

testified he was threatened with a gun; a toy gun was retrieved from the scene and

identified by the victim to the police as the weapon used. The toy gun was submitted as

a trial exhibit.   There was no evidence introduced in this case at all regarding the use of

a real gun by Hammond during the robbery incident, other than the state’s conjecture in

its brief on appeal.

       {¶33} Based on the foregoing analysis, we conclude that there is insufficient

evidence to establish the use of a “deadly weapon,” an essential element for the offense of

aggravated robbery.

       {¶34} The state, in its closing argument, requested that the trial court consider, as

an alternative to aggravated robbery, a reduced charge of simple robbery.            Simple

robbery is defined in R.C. 2911.02(A)(2).      The simple robbery statute does not require

proof of the use of a “deadly weapon,” but only requires the proof that the defendant did

“inflict, attempt to inflict, or threaten to inflict physical harm on another.”   The state

argued the element of “threaten[ing] to inflict physical harm” was satisfied by
Hammond’s brandishing the gun and pointing it at the victim, causing the victim to give

up the struggle and to give up his property.

       {¶35} Having reviewed the evidence contained in the record, we conclude there is

sufficient evidence supporting        a conviction of robbery as defined in R.C.

2911.02(A)(2). The first assignment of error is sustained in part.

                                     Manifest Weight

       {¶36} Under the second assignment of error, Hammond claims his convictions for

aggravated robbery and disrupting public services are against the manifest weight of the

evidence.    Having concluded the evidence on the record is sufficient to support a

conviction of robbery as defined in R.C. 2911.02(A)(2), we now review the record to

determine whether a conviction of robbery is against the manifest weight of the evidence.



       {¶37} Unlike sufficiency of the evidence, manifest weight of the evidence raises a

factual issue.

       “The court, reviewing the entire record, weighs the evidence and all
       reasonable inferences, considers the credibility of witnesses and determines
       whether 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. The discretionary power to grant a new
       trial should be exercised only in the exceptional case in which the evidence
       weighs heavily against the conviction.”

Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 511, quoting            State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983)
       {¶38} “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus. When examining witness credibility, “the

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A

factfinder is free to believe all, some, or none of the testimony of each witness appearing

before it.   State v. Ellis, 8th Dist. No. 98538, 2013-Ohio-1184, ¶ 18.

       {¶39} Under this assignment of error, Hammond primarily challenges the victim’s

credibility, pointing out certain details of his testimony that were inconsistent — for

example, he was inconsistent regarding the     amount of money stolen and the time of the

robbery.

       {¶40} The weight to be given the evidence and the credibility of the witnesses is

for the trier of fact — in this case, the trial judge, who had an opportunity to view the

victim and observe his demeanor in weighing his credibility.              The trial court was

aware of the slight inconsistences in the victim’s recounting of the incident.

       {¶41} We note that the victim’s account of being robbed by Hammond — giving

up the struggle after Hammond pulled the gun because he believed Hammond may hurt

him with the gun — was largely corroborated by the investigating officer and the

apartment manager.       The officer found the victim’s bedroom in a state of disarray

indicative of a struggle. He also found the victim’s eyeglasses and a toy gun behind the
bed.   This corroborates what the victim had told the apartment manager — that

Hammond pushed him around, knocking his eyeglasses off his face, and then pulled a gun

and robbed him.       Therefore, the     weight of the evidence supports a finding that

Hammond is guilty of robbery as defined in R.C. 2911.02(A)(2), i.e., while committing

theft, he inflicted, attempted to inflict, or threatened to inflict physical harm on the victim.



       {¶42} Regarding the conviction of disrupting public services, both the

investigating officer and the apartment manager saw the telephone jack to have been

ripped off the wall, supporting the victim’s testimony that Hammond pulled the telephone

after robbing him.

       {¶43} Having reviewed the trial transcript, we cannot say this is one of the

exceptional cases where the evidence weighs heavily against the conviction, which would

warrant an exercise of our discretionary power to grant a new trial.               The second

assignment of error is overruled to the extent that manifest weight of the evidence

supports Hammond’s convictions for robbery as defined in R.C. 2911.02(A)(2) and

disrupting public services.

       {¶44} Finally, under the third assignment of error, Hammond claims the trial court

erred in imposing consecutive sentences for his offenses without making the requisite

statutory findings on the record.      The state concedes the error.      This issue is moot,

however, because the matter is remanded to the trial court for resentencing.          The trial

court is to resentence Hammond based on the reduced conviction and to determine
whether the sentences for the offense of robbery and disrupting public services are to be

served consecutively.

       {¶45} The trial court’s judgment is modified to reduce the conviction from an

aggravated robbery to robbery as defined in R.C. 2911.02(A)(2), and the matter is

remanded for sentencing consistent with the conviction as modified.

       It is ordered that appellant and appellee share the 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
