[Cite as State v. Fulton, 2011-Ohio-4259.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 96156



                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    ROMEO FULTON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-537192

        BEFORE:              Boyle, P.J., S. Gallagher, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                          August 25, 2011
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ATTORNEY FOR APPELLANT

Michael V. Heffernan
75 Public Square
Suite 700
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} Defendant-appellant, Romeo Fulton, appeals his convictions and sentence.     He

raises four assignments of error for our review:

       {¶ 2} “[1.] Mr. Fulton’s conviction was against the manifest weight of the evidence.

       {¶ 3} “[2.] Mr. Fulton’s conviction is against the sufficiency of the evidence.

       {¶ 4} “[3.] The trial court erred in instructing the jury regarding Mr. Fulton’s

possession of a firearm or deadly weapon.
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         {¶ 5} “[4.] The trial court committed reversible error in sentencing Mr. Fulton to a

mandatory three years of incarceration on the underlying firearm specifications.”

         {¶ 6} Finding no merit to his appeal, we affirm.

                                Procedural History and Factual Background

         {¶ 7} The grand jury indicted Fulton on six counts: two counts of aggravated robbery,

in violation of R.C. 2911.01(A)(1), with one- and three-year firearm specifications; two counts

of robbery, in violation of R.C. 2911.02(A)(3); and two counts of kidnapping, in violation of

R.C. 2905.01(A)(2), with one- and three-year firearm specifications.        The following facts

were presented to a jury.

         {¶ 8} Earl Buck and Dolores Gill testified that on August 22, 2009, they were

working at Bob Adam’s Sunoco (“Sunoco”) in Bedford, Ohio.            They closed the store at

10:00 p.m.     The door had been locked since 8:00 p.m., however, because business was

conducted through a window after that time.       Fulton, who lived across the street from the

Sunoco, was a regular customer at the store.    Buck and Gill remembered that Fulton came to

the window after they had closed the store and asked them if they would give him a cigarette.

They told him no and he left.     They then saw him walk toward the Colony Club 2 condos.

         {¶ 9} After closing, Buck and Gill walked out the front of the store and Buck set the

alarm.    As Gill was walking to her car, she noticed that a light-skinned black male was

walking toward her; he had a gray scarf covering his mouth.         The man came from the
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location of the Colony Club 2 condos.       The man was wearing white gloves and a green

“hoodie.”    Gill recognized the man as one of the store’s regular customers, whose name she

thought was “Carlton Banks.”      The man grabbed Gill by the arm and “shoved what [she]

believed to be a gun in [her] back” and told Buck “if you don’t get out of your truck right

now, I’m going to shoot her.”     Gill testified that she believed the object to be a gun because

it was hard and blunt and “was pressed into [her] back to where [she] felt [her] back actually

burning.”   Buck explained that he never actually saw a gun, but saw that the man’s “sleeve

was pulled over his hand, and it looked like the tip of a gun.”

       {¶ 10} Buck got out of his truck and opened the door to the gas station.        The man

forced them to get onto the floor with their faces down.     The man kept demanding the keys to

the safe.   They kept telling the man that they did not have the keys.       Approximately one

minute later, the automatic alarm went off because Buck had opened the front door without

entering the security code and the man ran out of the gas station.      The man ran toward the

Colony Club 2 condos.     The whole incident lasted approximately two minutes.

       {¶ 11} Buck explained that he used to date Kelly Justice.       It lasted about one and a

half to two months.   He said that he ended the relationship just days before the robbery.    He

stated that Justice was “highly upset.”

       {¶ 12} Justice testified that she pleaded guilty to a lesser charge of robbery in exchange

for testifying against her codefendants, including Fulton.     Justice explained that she used to
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work at the Sunoco up until just before the robbery took place.           She stated that she was

fighting with Buck on the night of the robbery.

       {¶ 13} Justice admitted that she took part in the robbery.        She provided Fulton with

information about the store, including what she believed to be the best time to rob it, which

was 8:00 p.m., right before they locked the doors.       She also told Fulton “how much money

was in there.”    Justice stated that it was Fulton’s idea to rob the store and he told her that he

would “set everything up.”

       {¶ 14} On the night of the robbery, Justice testified that she was watching the store

with her two daughters waiting for Buck to get off work.           She saw Fulton and asked him

what he was doing.      He told her “it was about ready to go down.”          She asked him if he

meant the robbery and he replied, “yes.”     She left and went to her mom’s.      But she said that

Fulton called her and told her about the robbery while it was happening and that he was

laughing about it.

       {¶ 15} Justice agreed to wear a wire to get Fulton to talk about the robbery.           The

recording was played for the jury and reflected that when Fulton got into Justice’s car, she told

him she wanted to talk to him about something.        He asked her, “what?”      She said that she

wanted to talk to him about getting something done in Columbus.            He said, “what do you

want done?”      She said “like that lick at the Sunoco.”     Fulton replied, “is there one of them

down there?”     Justice said, “oh hell yea there is.”      Fulton’s voice got louder at that point
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and he asked Justice, “why do you got to talk about business?”     At that point, Fulton acted

like he never heard of the Sunoco robbery.      Fulton stated, “don’t bring that up *** you

should have just said ‘I need something done.’”      A couple of minutes later, Fulton asks

Justice, “when do you want me to take care of that?”    Justice replied, “can you get a couple

of people like before?”   Fulton responded, “yea.”   Justice said, “not the same fucking ones.”

 Fulton replied, “*** I know.”      Soon after that, Fulton says, “it was sloppy, I know.”

Justice then asks Fulton “are you going to be able to get a gun and stuff like you did before?”

The state asserts that Fulton replied “yeah,” but upon our independent review of it, Fulton’s

response is muffled on the recording and this court cannot decipher what his reply was.

        {¶ 16} Justice’s daughters, Charlee Seiber and Shayla Maynard, testified as to what

occurred on the night of the robbery.     They corroborated Justice’s testimony for the most

part.   They stated that Fulton was with “Moe,” whose real name was Maurice Baker.        There

was another person with Fulton, who they thought was “Carlton,” but they were not sure, and

Maynard thought there might have been a fourth person with them, but she did not know who

he was.    Fulton told them that they were about to rob the Sunoco.     Maynard and a friend

went to “watch” the robbery take place.     Maynard testified that she actually overheard her

mother and Fulton talking about the robbery earlier in the day before the robbery occurred.

Maynard also testified that her mother was supposed to receive money from the robbery.
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        {¶ 17} Jamie Kubinski testified that she met Fulton at her friend’s, Shawn Sigan’s,

house a couple of days before the robbery.      Fulton was with Maurice Baker, also known as

“Moe.”       Kubinski did not know Fulton but Fulton told her that he was going to “hit a lick”

(which she explained meant stealing from someone), and asked her if she knew where he

could get a gun.      Kubinski told him no.   Sigan also testified and corroborated Kubinski’s

testimony.

        {¶ 18} Carlton Bankston testified that he was taken into custody in connection with the

Sunoco robbery, but he was eventually released.      He stated that he was at the Sunoco around

8:30 p.m. with his friends “Bryant” and “Terrence” when Fulton came up to their car window

and told them that something was “about to go down” and they need to get out of there, so

they left.

        {¶ 19} Detective Buck Kidd testified that Gill chose Carlton Bankston in a photo array

as the person who robbed the store.     Detective Kidd obtained a search warrant for Bankston’s

home and searched it but did not find anything.      After talking to Bankston, Detective Kidd

confirmed Bankston’s alibi, and released him from custody.      Detective Kidd learned through

his investigation that Maurice Baker and Dion Kelly were also involved in the robbery, and

that Kelly was the actual gunman.

        {¶ 20} Detective Kidd arrested Kelly.    Detective Kidd took Kelly to the scene of the

robbery to locate an “object” that Kelly said he used in the robbery and had thrown when he
                                                  8

ran from the store, but he could not locate it.    On cross-examination, Detective Kidd admitted

that Kelly denied having a gun.    Kelly told Detective Kidd that he used a hammer, not a gun.

       {¶ 21} Kelly testified for Fulton.   He admitted to robbing the Sunoco station, claiming

that he did it by himself because Justice told him about the store and suggested that he rob it.

He testified that Fulton had nothing to do with the robbery.     He stated that he did not have a

gun or any weapon, not even a hammer.       He testified that he used his hand in the robbery.

       {¶ 22} Kelly agreed on cross-examination that he implicated Fulton in the robbery to

police and that he told police that he had never had a conversation with Justice.      He agreed

that he told police that Fulton approached him “about eight times” regarding the Sunoco

robbery but said that he lied to police when he told them that Fulton was involved.         Kelly

also agreed that he told police that Fulton had told him that they could get a couple thousand

dollars from the Sunoco safe.

       {¶ 23} The jury found Fulton guilty of both aggravated robbery counts with the

three-year firearm specifications, but found him not guilty of the one-year firearm

specifications; guilty of both counts of robbery; and guilty of two counts of a lesser included

offense of kidnapping under R.C. 2905.01(A)(2), with the three-year firearm specifications,

but not guilty of the one-year firearm specifications, and further found that both victims were

released in a safe place unharmed.
                                              9

       {¶ 24} The trial court sentenced Fulton to an aggregate term of six years in prison:

three years for the firearm specifications, to be served prior to and consecutive to the three

years he received for the base crimes (three years on Count 1, three years on Count 2, two

years on Count 3, two years on Count 4, two years on Count 5, and two years on Count 6, all

to be served concurrent to one another).   The trial court also advised Fulton that he would be

subject to a mandatory period of five years of postrelease control upon his release from prison.

                          Sufficiency and Manifest Weight of the Evidence

       {¶ 25} In his first and second assignments of error, Fulton argues that his convictions

were not supported by sufficient evidence and were against the manifest weight of the

evidence.   Fulton raises the same arguments for both and thus, this court will address them

together.   Further, in these arguments, he only challenges the evidence dealing with the

firearm specifications.

       {¶ 26} When an appellate court reviews a record upon a sufficiency

challenge, “‘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.
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       {¶ 27} In reviewing a claim challenging the manifest weight of the

evidence, “[t]he question to be answered is whether there is substantial

evidence upon which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt. In conducting this review, we

must examine the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether

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.”                         (Internal

quotes and citations omitted.) Leonard at ¶81.

       {¶ 28} Fulton argues that the state cannot rely on circumstantial evidence to prove that

a firearm was used in the robbery because “the state knew full well no firearm was used in

these offenses, in light of Dion Kelly’s prior plea.”     As part of Kelly’s plea deal, the state

deleted the firearm specifications.   Fulton argues that because of this, the state admitted that a

firearm was not used.     We disagree the state admitted anything by deleting the firearm

specifications in the codefendant’s plea negotitions.        The state could have deleted the

specifications for any number of reasons of which this court will not speculate.          Further,

Kelly’s plea deal and resulting convictions are irrelevant to Fulton’s guilt or innocence.

       {¶ 29} R.C. 2941.145 requires proof beyond a reasonable doubt that “the offender had

a firearm on or about the offender’s person or under the offender’s control while committing
                                                11

the offense and displayed the firearm, brandished the firearm, indicated that the offender

possessed the firearm, or used it to facilitate the offense.”

       {¶ 30} A “firearm” is: “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.   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 representation and actions

of the individual exercising control over the firearm.”    R.C. 2923.11(B)(1) and (2).

       {¶ 31} In Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph

one of the syllabus, the Ohio Supreme Court elaborated on the requisite proof to sustain a

firearm specification:

       {¶ 32} “A firearm enhancement specification can be proven beyond a reasonable doubt

by circumstantial evidence.     In 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.”   (Internal citations omitted.)

       {¶ 33} With respect to operability, the Ninth Appellate District has explained:
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       {¶ 34} “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 State v. Murphy (1990), 49 Ohio St.3d 206, 208, 551 N.E.2d 932.               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 at 519-520.”          State v. Ware,

9th Dist. No. 22919, 2006-Ohio-2693, ¶13.

       {¶ 35} In State v. Robinson, 8th Dist. No. 80718, 2003-Ohio-156, the defendant argued

that the state failed to prove he used a firearm.      This court disagreed, reasoning: “the person

holding the rifle pushed it into the victim’s back when he did not respond to the other

gunman’s orders.    Clearly the jury could construe the shove of the barrel of the rifle into the

victim’s back as a threat that he would be shot by that rifle if he did not comply.     This action

and the logical inference which could be deduced from it provide sufficient evidence, if

believed, to support the conclusion that the rifle fit the statutory definition of a qualifying

firearm.”   Id. at ¶14.

       {¶ 36} Here, Gill testified that Dion put what she believed to be a gun to her back; it

was hard, blunt, and burned her back when he pressed it into her.       Gill and Buck testified that
                                              13

Dion said to Buck, “if you don’t get out of your truck right now, I’m going to shoot her.”

Buck also testified that although he never actually saw the gun, he saw what looked like the tip

of a gun in Dion’s hand, under his sleeve.

       {¶ 37} Although Dion testified that he did not use any weapon to commit the robbery,

the jury apparently believed Gill and Buck over Dion.      It is well settled that matters as to the

credibility of evidence are for the jury to decide. State v. Walker (1978), 55 Ohio St.2d 208,

212, 378 N.E.2d 1049, certiorari denied (1979), 441 U.S. 924, 99 S.Ct. 2033, 60 L.Ed.2d 397.

       {¶ 38} Reviewing the evidence in a light most favorable to the state, this court

concludes that any rational trier of fact could have found that Dion indicated to Gill and Buck

that he possessed a firearm and that the operability of the firearm was proved beyond a

reasonable doubt.     See Jenks at paragraph two of the syllabus.      We further conclude that

case is not the “exceptional case in which the evidence weighs heavily against the conviction.”

 Thompkins, 78 Ohio St.3d at 387.

       {¶ 39} Fulton’s first and second assignments of error are overruled.

                                             Jury Instructions

       {¶ 40} In his third assignment of error, Fulton argues that the trial court erred in

instructing the jury on possession of a firearm or deadly weapon because he was not the

principal offender.   We disagree.
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       {¶ 41} Fulton failed to object to the trial court’s jury instructions and thus, we review

for plain error.   Crim.R. 52(B) provides that: “Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”        The

appellate court, however, must find that the alleged error denied the defendant a fair trial.

State v. Wade (1978), 53 Ohio St.2d 182, 373 N.E.2d 1244, paragraph one of the syllabus,

certiorari granted and judgment vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3138,

57 L.Ed.2d 1157.

       {¶ 42} Here, the trial court instructed the jury on possession of a deadly weapon.

Fulton contends that he could not have “possessed” the weapon because Dion was the

principal offender.   An accomplice to a crime, however, is subject to the same prosecution

and punishment, including sentencing enhancements, as the principal offender.      See State v.

Chapman (1986), 21 Ohio St.3d 41, 487 N.E.2d 566, syllabus; State v. Moore (1985), 16 Ohio

St.3d 30, 33, 476 N.E.2d 355 (holding that unarmed accomplice to aggravated robbery is

subject to a mandatory three-year term of actual incarceration on a firearm specification).

The trial court here also instructed the jury on complicity.

       {¶ 43} Accordingly, we find no error on the part of the trial court.      Fulton’s third

assignment of error is overruled.

                                               Sentencing
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       {¶ 44} In his fourth assignment of error, Fulton argues that the trial court erred in

sentencing him on the firearm specification because it did not prove that the firearm was

operable.   We already determined that the state proved beyond a reasonable doubt that the

firearm was operable.    Accordingly, Fulton’s fourth assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of 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.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
