        [Cite as State v. Brown, 2019-Ohio-3349.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NOS. C-180180
                                                                    C-180181
        Plaintiff-Appellee,                         :   TRIAL NOS. B-1701417
                                                                   B-1703061
  vs.                                               :
                                                          O P I N I O N.
ROBERT BROWN,                                       :

    Defendant-Appellant.                            :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are:               Reversed and Cause Remanded in C-180181;
                                           Appeal Dismissed in C-180180

Date of Judgment Entry on Appeal: August 21, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




B ERGERON , Judge.

        {¶1}    Pretending that your finger is a gun for purposes of committing a

robbery will not excuse you of criminal liability for the robbery, but it does prevent a

conviction for offenses dependent on actually having a firearm. Defendant Robert

Brown entered a video game store with his hand shrouded in a bag, gesturing as if he

held a gun underneath. The store’s video footage, however, reveals that he did not

possess an actual firearm because he eventually pulled his hand out from the bag

without any weapon, held the bag open wide with both hands, and one of the

witnesses peered into the bag (and never claimed to have seen a weapon). For that

reason,    we   reverse   Mr.   Brown’s    aggravated-robbery     conviction    with   the

accompanying firearm specification, and we remand the cause for the trial court to

enter a judgment of conviction for robbery under R.C. 2911.02(A)(2).

        {¶2}    Before we commence the firearm-related analysis, however, we note

that Mr. Brown pled guilty to felonious assault under R.C. 2903.11(A)(1), which he

appealed in the case numbered C-180180. But Mr. Brown offered no assignments of

error related to that felonious-assault conviction, and accordingly we dismiss that

appeal as abandoned. See State v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 42-44

(1st Dist.).

        {¶3}    Turning to the case numbered C-180181, Mr. Brown challenges his

conviction for aggravated robbery under R.C. 2911.01(A)(1) with an accompanying

firearm specification following a jury trial,1 raising two assignments of error: weight

and sufficiency of the evidence, and the admissibility of certain evidence. The former

merits our attention and proves dispositive.


1 The jury also found him guilty of robbery under R.C. 2911.02(A)(2) (which merged with the
aggravated-robbery conviction).


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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}     The record reflects that on the evening of Halloween in 2016, at nearly

8:00, a man clad in all black entered a GameStop store on Colerain Avenue. Two

employees, Jason Testa and manager Caitlyn Shuttleworth, and two customers, Carl

Jones and DeMarco Green, were present in the store at the time. They initially

presumed that the individual was attired for Halloween, but he quickly disabused

them of that notion, announcing his intentions to rob the store and the individuals.

       {¶5}     The man’s face was covered, and he had a black bag over his left hand.

The robber entered the store with his left arm extended like he was holding a

weapon, and told everyone to get down on the ground. All four witnesses hit the

deck, based on their belief that the robber possessed a weapon underneath the bag.

The robber then told them, “I’m not trying to harm anybody, but if you do anything,

then I will.”

       {¶6}     The robber ordered Ms. Shuttleworth to get up, open the cash

registers, and put all of the money in the bag—the same bag that was purportedly

hiding the weapon. After she did so, the robber ordered her to accompany him to the

back room. Before going in the back room, he stated that “if anybody do anything or

anything, I will hurt them * * * .” In the back room, the robber collected some video

games and placed them in the same bag.           He eventually absconded with Ms.

Shuttleworth’s cell phone, over $1,000 in cash, and six video games. None of the

witnesses ever saw a gun, and fortunately no one was harmed in the encounter.

       {¶7}     While the robber and Ms. Shuttleworth rummaged around in the back

room, Messrs. Green and Jones sprinted out of the store and called 911. They

watched as the robber left the store, ran around the corner toward the back of the

store, and hopped over a fence, with Mr. Jones relaying the play-by-play information

to the 911 operator.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}   Colerain Township police officers responded immediately to the scene.

A canine unit was dispatched, and the dog led police down an alley east of the store

toward a barbed-wire fence that belonged to a storage facility. There, they found a

black cloth bag and a black glove impaled on the fence and currency scattered on the

ground, some of which was blood-splattered. Ms. Shuttleworth’s cell phone and

additional money were found inside the bag. The police ultimately set their sights on

Mr. Brown after DNA testing matched his DNA with the DNA recovered from the

blood stains, and he was ultimately charged for the robbery.

       {¶9}   The video surveillance footage from GameStop security cameras that

captured the robbery emerged as one of the central pieces of evidence at trial, along

with some still footage from the robbery. And since none of the witnesses could

identify Mr. Brown as the robber (because of the head covering), the DNA evidence

played a key role as well. The jury eventually found Mr. Brown guilty of aggravated

robbery and one firearm specification, as well as robbery.

       {¶10} As his lead argument on appeal, Mr. Brown attacks the sufficiency of

the evidence, maintaining that the state failed to prove that he possessed a deadly

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

a theft offense * * * 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.” Former R.C. 2923.11(A), in effect on October 31, 2016, the

date of the offense, defined 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.” This argument also implicates the firearm

specification. Under R.C. 2941.145(A), a court must impose a mandatory three-year



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                     OHIO FIRST DISTRICT COURT OF APPEALS



prison term when the jury determines 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.” Former R.C. 2923.11(B)(1)

defined a firearm as “any deadly weapon capable of expelling or propelling one or

more projectiles by the action of an explosive or combustible propellant.” It also

provided that the term “firearm” includes “an unloaded firearm, and any firearm that

is inoperable but that can readily be rendered operable.”

       {¶11} We review challenges to the sufficiency of the evidence to assess

whether, construing the evidence in a light most favorable to the state, “any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.”    State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶12} We have previously explained that to establish both the firearm

specification and the deadly-weapon element of aggravated robbery, the state must

prove beyond a reasonable doubt that the offender possessed an operable firearm.

See State v. Obsaint, 1st Dist. Hamilton No. C-060629, 2007-Ohio-2661, ¶ 18. Of

course, sometimes the firearm is not recovered, and thus the state may prove that

element using circumstantial evidence.      See former R.C. 2923.11(B)(2); State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph one of the syllabus

(“A firearm enhancement specification can be proven beyond a reasonable doubt by

circumstantial evidence.”); State v. Jeffers, 143 Ohio App.3d 91, 95, 757 N.E.2d 417

(1st Dist.2001) (verbal threat to use firearm sufficed to sustain the conviction despite

the fact that no witness saw the firearm). Nevertheless, the state always bears the

burden to prove the elements of the offense and the firearm specification beyond a



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                     OHIO FIRST DISTRICT COURT OF APPEALS



reasonable doubt. See Thompkins at 383; Obsaint at ¶ 13; State v. Kovacic, 11th

Dist. Ashtabula No. 2002-A-0032, 2003-Ohio-5219, ¶ 20.

       {¶13} In this case, no witness actually saw Mr. Brown with a firearm. Nor

did he convey that he had a firearm. To be sure, he did threaten to “harm” the

victims in the store if they did not comply with his demands, but he did not state that

he had or might use a gun. Typically, evidence supporting a conviction consists of a

witness seeing the firearm or an explicit threat related to a firearm. Jeffers at 95

(testimony that defendant threatened to “blow [victim’s] head off”). Nevertheless,

his actions certainly convinced the victims that he possessed a gun. If our record

were confined to this, it would be a close case whether the state proved beyond a

reasonable doubt that he possessed an operable firearm.

       {¶14} But the direct evidence in the videotape negates the inferences that

might otherwise be drawn from the circumstantial evidence, and confirms that the

state did not meet its burden. The video shows Mr. Brown entering the store with his

left arm extended and covered with a bag as if he had a gun, and the witnesses

dropped to the ground.       He then removed his left hand (without any gun),

transferring the bag to his right hand while pointing with his left hand over the

counter, giving instructions to the victims. On command, Ms. Shuttleworth stood up

and Mr. Brown came around behind the counter (where she was). As she emptied

two registers, he twice held the bag open wide with both hands (much like a trick or

treater) for Ms. Shuttleworth to put the money in the bag, and he did not have a gun

in either hand. The only place the gun (if it existed) could have disappeared to was in

the bag, but Ms. Shuttleworth was looking directly in the bag and presumably would

have testified that she saw the weapon if it were there.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} Before he walked back around the counter, Mr. Brown reached down

and patted Mr. Testa, who was still lying on the ground, with his left hand, while he

continued to hold the bag with his right. Again, he had no gun in either hand, and

the videotape did not show that he had it anywhere else on his person. Thus, the

video footage confirms that Mr. Brown did not possess a gun during the robbery.

       {¶16} Consequently, we cannot hold that a rational trier of fact could have

found that the state proved beyond a reasonable doubt the deadly-weapon element of

aggravated robbery or the firearm specification. Therefore, the evidence was not

sufficient to support the conviction. See Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at

paragraph two of the syllabus; State v. Ojile, 1st Dist. Hamilton Nos. C-110677 and C-

116078, 2012-Ohio-6015, ¶ 48.

       {¶17} We accordingly sustain Mr. Brown’s first assignment of error on

sufficiency grounds with respect to the aggravated robbery and firearm specification

(which moots the manifest weight aspect to the assignment).          We reverse his

conviction for aggravated robbery with the accompanying firearm specification.

While the evidence was insufficient to prove aggravated robbery, it sufficed to prove

robbery under R.C. 2911.02(A)(2). See State v. Hammond, 8th Dist. Cuyahoga No.

99074, 2013-Ohio-2466, ¶ 34-35. Consequently, we remand the cause to the trial

court to vacate the aggravated-robbery conviction with the firearm specification and

to enter a conviction for robbery.

       {¶18} In his second assignment of error, Mr. Brown contends that the trial

court erred in admitting photographs in violation of Evid.R. 403(A). He argues that

the trial court abused its discretion in admitting still photographs taken from the

video surveillance footage. But since Mr. Brown’s arguments under this assignment




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                     OHIO FIRST DISTRICT COURT OF APPEALS



of error only relate to the question of whether he possessed a firearm, we find this

assignment of error to be moot, and we decline to address it. See App.R. 12(A)(1)(c).

       {¶19} In sum, we dismiss the appeal numbered C-180180 as abandoned. In

the appeal numbered C-180181, we reverse Mr. Brown’s conviction for aggravated

robbery with the accompanying firearm specification, and we remand the cause for

the trial court to enter a judgment of conviction for robbery under R.C. 2911.02(A)(2)

and to resentence accordingly.

                                                              Judgment accordingly.




Z AYAS , P.J., and C ROUSE , J., concur.


Please note:
       The court has recorded its own entry this date.




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