[Cite as State v. Williams, 2017-Ohio-7898.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                        :

                 Plaintiff-Appellee,                  :
                                                                       No. 16AP-725
v.                                                    :             (C.P.C. No. 15CR-3687)

Darius A. Williams,                                   :          (REGULAR CALENDAR)

                 Defendant-Appellant.                 :




                                               D E C I S I O N

                                   Rendered on September 28, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
                 Swisher, for appellee. Argued: Laura A. Swisher.

                 On brief: Jeremy A. Roth, for appellant. Argued:
                 Jeremy A. Roth.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Darius A. Williams, appeals from a judgment of
conviction entered by the Franklin County Court of Common Pleas. For the following
reasons, we affirm appellant’s convictions but remand the matter for the trial court to
properly impose post-release control.
I. Factual and Procedural Background

        {¶ 2} On July 29, 2015, a Franklin County Grand Jury indicted appellant with two
counts of aggravated robbery in violation of R.C. 2911.01, four counts of robbery in
violation of R.C. 2911.02, and two counts of having a weapon while under disability in
No. 16AP-725                                                                               2

violation of R.C. 2923.13. Each count also contained a three-year firearm specification
pursuant to R.C. 2941.145(A).             The counts arose from the armed robberies of two
convenience stores in Franklin County. Appellant entered a not guilty plea and proceeded
to a jury trial.
          {¶ 3} At that trial, one employee from each of the stores testified. Ben Stacy, who
was working at a United Dairy Farmers ("UDF") store on North High Street at 5:00 a.m.
on May 21, 2015, testified that a man brought a bag of chips up to the front counter and
gave him a $5 bill to pay for it. As Stacy gave the man his change, the man pointed a gun
at him and asked for money. Stacy gave the man money and then the man left the store.
Stacy testified that it is UDF's policy for a person being robbed to focus on the person's
face, so Stacy testified that he looked at the man's face to get a good description of him.
Stacy identified appellant as the person who robbed the UDF store.
          {¶ 4} Irfan Mehdi, the owner of YBB Market on the north side of Columbus,
testified that his store was robbed on May 20, 2015. On that day, a man came to the front
counter with some items to buy. Mehdi began putting the items in a bag when the man
pulled a gun out and told Mehdi to give him the money. (June 1, 2016 Tr. Vol. 3 at 15.)
Mehdi gave the man money and then the man left the store, without the bag of items.
Mehdi testified that he got a good look at the man’s face before he left. Id. at 17. The
police came to the store and took the items that the man brought to the front counter.
Fingerprints were recovered from some of those items that matched appellant’s
fingerprints. Mehdi identified appellant as the man who robbed the YBB Market.
          {¶ 5} Videos of both robberies were played to the jury.
          {¶ 6} The jury found appellant guilty of two counts of aggravated robbery and two
counts of robbery and the attendant firearm specification for each of those counts.
Additionally, appellant elected to have the weapons under disability counts, as well as the
firearm specifications attendant to those counts, tried to the trial court. The trial court
found him guilty of all those counts and specifications.1 As a result, the trial court
sentenced appellant to a total prison term of 24 years.
II. Appellant's Appeal

          {¶ 7} Appellant appeals and assigns the following errors:

1   Two robbery counts were dismissed by the trial court.
No. 16AP-725                                                                                3

               [1.] The trial court erred when it entered judgment against
               Appellant when there was not sufficient evidence to support
               the guilty verdicts and convictions of Appellant, in violation of
               his due process rights under the Ohio and United States
               Constitutions.

               [2.] The trial court erred when it entered judgment against
               Appellant when the guilty verdicts returned by the jury were
               against the manifest weight of the evidence in violation of his
               due process rights under the United States and Ohio
               Constitutions.

               [3.] The trial court erred when it improperly advised
               Appellant of the statutory requirements of post release control
               rendering the sentence void.

   A. First and Second Assignments of Error—The Weight and Sufficiency of
      the Evidence

       {¶ 8} In these assignments of error, appellant argues that his convictions are not
supported by sufficient evidence and are also against the manifest weight of the evidence.
We disagree.
       {¶ 9} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally adequate to support a verdict. State v. Thompkins,
78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a
verdict is a question of law. Id. In determining whether the evidence is legally sufficient
to support a conviction, " '[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. Robinson,
124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing
the evidence in the light most favorable to the prosecution, it is apparent that reasonable
minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio
St.3d 460, 484 (2001). In this inquiry, appellate courts do not assess whether the state's
evidence is to be believed, but whether, if believed, the evidence admitted at trial supports
the conviction.    State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80
(evaluation of witness credibility not proper on review for sufficiency of evidence); State
v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a sufficiency
No. 16AP-725                                                                                4

of the evidence review, an appellate court does not engage in a determination of witness
credibility; rather, it essentially assumes the state's witnesses testified truthfully and
determines if that testimony satisfies each element of the crime").
         {¶ 10} The weight of the evidence concerns the inclination of the greater amount of
credible evidence offered to support one side of the issue rather than the other.
Thompkins at 387. Although there may be sufficient evidence to support a judgment, a
court may nevertheless conclude that a judgment is against the manifest weight of the
evidence. Id. When presented with a challenge to the manifest weight of the evidence, an
appellate court may not merely substitute its view for that of the trier of fact, but must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Id. at 387. An appellate court
should reserve reversal of a conviction as being against the manifest weight of the
evidence for only the most " 'exceptional case in which the evidence weighs heavily against
the conviction.' " Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983);
State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.
         {¶ 11} In addressing a manifest weight of the evidence argument, we are able to
consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the
presumption that the jury, or the trial court in a bench trial, " 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great
deference to the trier of fact's determination of witness credibility. State v. Redman, 10th
Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-
70, 2009-Ohio-6840, ¶ 55.        See also State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus (credibility determinations are primarily for the trier of
fact).
No. 16AP-725                                                                                         5

1. The Robbery Convictions

        {¶ 12} Appellant argues that his robbery convictions are not supported by
sufficient evidence and are against the manifest weight of the evidence because neither
witness that identified appellant as the robber could recall that he had tattoos on his
hands, even though they were very close to his hands at the time of the robberies. The
witnesses also did not include the fact that the robber had tattoos on his hands in either of
their descriptions to police. At trial, both employees testified that they saw appellant had
tattoos on his hands as he stood before them in the courtroom. Appellant's argument is,
in essence, a manifest weight argument that the identifications were not reliable or
credible.2 We disagree.
        {¶ 13} " 'The reliability of properly admitted eyewitness identification, like the
credibility of the other parts of the prosecution's case is a matter for the jury.' " State v.
Rudd, 8th Dist. No. 102754, 2016-Ohio-106, ¶ 73, citing State v. Roper, 9th Dist. No.
20836, 2002-Ohio-7321, ¶ 55, quoting Foster v. California, 394 U.S. 440, 443 (1969).
Accordingly, in reviewing the manifest weight of the evidence, this court has frequently
held that eyewitness identification testimony will support a conviction so long as a
reasonable juror could find the eyewitness testimony to be credible. State v. Nickell, 10th
Dist. No. 13AP-336, 2013-Ohio-5144, ¶ 23, citing State v. Humberto, 196 Ohio App.3d
230, 2011-Ohio-3080, ¶ 12; State v. Jordan, 10th Dist. No. 04AP-827, 2005-Ohio-3790,
¶ 14.
        {¶ 14} Initially, we note that it was not even established that appellant had tattoos
on his hands at the time of these robberies. No evidence was presented to prove this fact.
Although appellant showed his hands to the witnesses at trial, the videos of each robbery
do not clearly show that appellant had tattoos on his hands at the time of the robberies.
Additionally, the prosecutor also noted that there would be no way to know when
appellant got his hand tattoos because he was not arrested until sometime after these
robberies. Regardless, both witnesses testified that they were able to get a good look at
the perpetrator during the robbery and both stated they were not focused on the
perpetrator's hands. Both victims testified that they were focused on the perpetrator's

2 Indeed, eyewitness identification testimony is sufficient to support a conviction. State v. Humberto,
196 Ohio App.3d 230, 2011-Ohio-3080, ¶ 10 (10th Dist.).
No. 16AP-725                                                                                6

face or the gun. Stacy testified that part of UDF's protocol for a robbery is to be able to
provide a good description of the perpetrator to authorities by focusing on the person's
face. (May 31, 2016 Tr. Vol. 2 at 32.) Mehdi added, when asked if he told the police about
any tattoos on the man's hands, that he was not paying attention to his hands "at that
time, I was just looking at the gun." (Tr. Vol. 3 at 31.) The witnesses' testimony was also
largely consistent with the events that were seen on the videos of the robberies, and the
jury was able to see for itself the person on the screen and could compare that person with
the person on trial for these events. Additionally, appellant's fingerprints discovered on
items that he brought to the front counter of the YBB Market lends more credibility to
Mehdi's identification of appellant as the person who robbed his store.           All of this
evidence would allow a reasonable juror to find the eyewitness testimony identifying
appellant as the person who robbed the stores credible. Accordingly, the jury did not lose
its way by finding appellant guilty of the convenience store robberies. Appellant's robbery
convictions are not against the manifest weight of the evidence.
       2. The Weapon Under Disability Count and the Firearm Specifications-
       Did Appellant have an Operable Firearm?

       {¶ 15} Appellant also argues that the state did not present sufficient evidence to
prove that he had an operable firearm during the two robberies. We disagree.
       {¶ 16} R.C. 2941.145(A), the firearm specification for which appellant was found
guilty, requires the imposition of a three-year mandatory prison term upon an offender
that "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." Similarly, having a
weapon while under disability in violation of R.C. 2923.13 prohibits certain people from
knowingly acquiring, having, carrying, or using any firearm. A firearm is defined for
purposes of both of these statutes as "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." R.C. 2923.11(B)(1). To support these convictions, the state
must prove beyond a reasonable doubt that the firearm was operable or could readily have
been rendered operable at the time of the offense. Thompkins at paragraph one of the
No. 16AP-725                                                                                 7

syllabus. Appellant argues that the state failed to present sufficient evidence that the gun
used in the robberies was operable. We disagree.
       {¶ 17} Police did not find the gun that was used during these robberies. It is not
necessary, however, for the state to produce the gun or offer direct, empirical evidence
that the gun is operable. State v. Whiteside, 10th Dist. No. 07AP-951, 2008-Ohio-3951,
¶ 17. Indeed, R.C. 2923.11(B)(2) provides that when determining whether a firearm is
operable, "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." Proof of operability may be established through the testimony of lay witnesses
who were in a position to observe the weapon and the surrounding circumstances. State
v. Williams, 10th Dist. No. 16AP-540, 2017-Ohio-5598, ¶ 21.             Where an individual
brandishes a gun and implicitly but not expressly threatens to discharge the firearm at the
time of the offense, the threat can be sufficient to satisfy the state's burden of proving that
the firearm was operable or capable of being readily rendered operable. Thompkins at
384. This court has previously held that circumstantial evidence can support a finding
that a firearm was operable, including explicit or implicit threats made by the person in
control of the firearm. State v. Dutton, 10th Dist. No. 09AP-365, 2009-Ohio-6120, ¶ 8.
Even actions alone, without verbal threats, may constitute sufficient circumstances to
establish the operability of a firearm. Id. at ¶ 9.
       {¶ 18} Here, the jury was shown the video of each robbery and could see the gun in
the videos for themselves. Additionally, both witnesses testified that appellant displayed a
gun during the robbery. Stacy described the gun appellant pointed at him during the UDF
robbery as a small caliber gun, maybe a .38. (Tr. Vol. 2 at 29.) The gun was only 2 to 3
feet away from him. Stacy thought the gun was real and that it even appeared to have
been used before. (Tr. Vol. 3 at 31-32.) Stacy testified that he was familiar with guns and
that he has hunted and attended gun shows before this incident. Id. at 31. Similarly,
Mehdi testified that the gun appellant pointed at him was only a few feet away and that it
appeared to be a real gun. Id. at 16. It did not appear to be plastic and it did not have an
orange tip on it. Id. Both witnesses testified that appellant pointed the gun at them while
demanding money.        All of this evidence is sufficient to allow a reasonable juror to
conclude that appellant's gun was operable at the time of the robberies. Id. at ¶ 9 (citing
No. 16AP-725                                                                              8

cases that found sufficient evidence of operability where defendant pointed a gun at
another while demanding money).
       3. Conclusion
       {¶ 19} Appellant's convictions are supported by sufficient evidence and are not
against the manifest weight of the evidence. Accordingly, we overrule appellant’s first and
second assignments of error.
   B. Third Assignment of Error–The Imposition of Post-Release Control

       {¶ 20} In this assignment of error, appellant argues that the trial court did not
properly impose post-release control. The trial court stated that appellant was subject to
three years of post-release control when five years of post-release control is mandatory for
these convictions. The state concedes this error and we agree. Accordingly, we sustain
appellant’s third assignment of error and remand the matter for the trial court to properly
impose post-release control.
III. Conclusion

       {¶ 21} For the following reasons, we overrule appellant's first and second
assignments of error and sustain his third assignment of error. Accordingly, we affirm
appellant’s convictions but remand the matter to the trial court for the limited purpose of
properly imposing post-release control.
                                          Judgment affirmed in part and reversed in part;
                                                       cause remanded with instructions.

                         TYACK, P.J., and HORTON, JJ., concur.
