[Cite as State v. Bitting, 2017-Ohio-2955.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.       28317

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DANIEL L. BITTING                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2016 04 1206

                                  DECISION AND JOURNAL ENTRY

Dated: May 24, 2017



        TEODOSIO, Judge.

        {¶1}     Appellant, Daniel L. Bitting, appeals from his convictions in the Summit County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     Mr. Bitting entered the Barberton Mini Mart and purchased a Black & Mild cigar.

Seconds later, Mr. Bitting’s juvenile cousin, T.J., entered the store, pointed a gun at the clerk,

demanded all of the money, and threatened to shoot her. Mr. Bitting did not leave the store

during the robbery, but stood near T.J. and paced back and forth with his hands up. Mr. Bitting

went to the front door at one point and looked outside, but he did not leave. After the robbery,

Mr. Bitting and T.J. left the store within seconds of one another and ran off in the same direction.

        {¶3}     Mr. Bitting was arrested and charged with complicity to commit aggravated

robbery. The indictment was later supplemented with a complicity to commit robbery charge

and two repeat violent offender specifications. The repeat violent offender specifications were
                                                2


bifurcated and the case proceeded to trial on the two complicity charges. After a jury trial, Mr.

Bitting was convicted of both complicity to commit aggravated robbery and complicity to

commit robbery. The trial judge then found Mr. Bitting to be a repeat violent offender. The two

complicity counts were found to be allied offenses of similar import and were merged for

sentencing. Mr. Bitting was sentenced to a mandatory term of six years in prison. No sentence

was imposed for the repeat violent offender specification.

       {¶4}    Mr. Bitting now appeals from his convictions and raises three assignments of

error for this Court’s review.

                                               II.

                                 ASSIGNMENT OF ERROR ONE

       APPELLANT’S CONVICTION WAS BASED UPON INSUFFICIENT
       EVIDENCE TO SUSTAIN CONVICTION. THE TRIAL COURT ERRED BY
       DENYING APPELLANT’S CRIM.R. 29 MOTION.

       {¶5}    In his first assignment of error, Mr. Bitting argues that there was insufficient

evidence to show that (1) he assisted in the robbery in any way, and (2) the BB gun was a deadly

weapon capable of inflicting death. We disagree with both propositions.

       {¶6}    “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. Summit No.

24769, 2010-Ohio-634, ¶ 33. “A sufficiency challenge of a criminal conviction presents a

question of law, which we review de novo.” State v. Spear, 9th Dist. Summit No. 28181, 2017-

Ohio-169, ¶ 6, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns

the burden of production and tests whether the prosecution presented adequate evidence for the

case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25,

citing Thompkins at 386. “The relevant inquiry is whether, after viewing the evidence in a light
                                                3


most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus. But, “we do not resolve evidentiary conflicts or

assess the credibility of witnesses, because these functions belong to the trier of fact.” State v.

Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.

       {¶7}    Mr. Bitting was convicted of complicity to commit aggravated robbery and

complicity to commit robbery. The aggravated robbery statute states, in part:

       No 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 * * *.

R.C. 2911.01(A)(1).     The robbery statute states, in part, “[n]o person, in attempting or

committing a theft offense or in fleeing immediately after the attempt or offense, shall * * *

[i]nflict, attempt to inflict, or threaten to inflict physical harm on another * * *.”        R.C.

2911.02(A)(2).

       {¶8}    The complicity statute states, in part, “[n]o person, acting with the kind of

culpability required for the commission of an offense, shall * * * [a]id or abet another in

committing the offense * * *.” R.C. 2923.03(A)(2). Complicity by aiding and abetting means

“the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal

in the commission of the crime” and “the defendant shared the criminal intent of the principal.”

State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “[C]riminal intent may be inferred from

presence, companionship and conduct before and after the offense is committed.” Id. at 245,

quoting State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971). “When an individual acts to aid

or abet a principal in the commission of an offense, the individual and principal are equally
                                                 4


guilty and the individual is prosecuted and punished as if he were a principal offender.” State v.

Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, ¶ 21; see also R.C. 2923.03(F).

       {¶9}    The fact that T.J. robbed the Barberton Mini Mart with a BB gun was not in

dispute at Mr. Bitting’s trial. Instead, the extent of Mr. Bitting’s involvement in the crime, if

any, was at issue. “[T]he mere presence of an accused at the scene of a crime is not sufficient to

prove, in and of itself, that the accused was an aider and abettor.” State v. Widner, 69 Ohio St.2d

267, 269 (1982). The State proceeded at trial on a theory that Mr. Bitting was complicit in the

robbery by providing the BB gun to T.J., planning the robbery with T.J., acting as a lookout

during the crime, fleeing with T.J. immediately after the crime, and dividing up the stolen money

after the crime.

       {¶10} The State presented evidence, if believed, that showed Mr. Bitting as more than

just an innocent bystander in the robbery. The clerk testified that she was working at the

Barberton Mini Mart on the night of the robbery. Mr. Bitting entered the store and purchased a

Black & Mild cigar. T.J. entered the store a few seconds later, pointed a gun at the clerk’s face

from a distance of about an arm’s length away, demanded all the money from the cash register,

and threatened to shoot her. She was scared, believed the gun was real, and thought T.J. was

going to shoot her. T.J. told the clerk that he “wasn’t playing around.” Mr. Bitting put his hands

up and said, “Come on, dude. What are you doing? Are you serious?” T.J. never said anything

to Mr. Bitting during the robbery and never pointed the gun at him. The clerk testified that Mr.

Bitting stood there watching the robbery and paying attention to how much money the clerk put

in the bag. Mr. Bitting paced back and forth and kept looking back at the door, but he did not

leave the store. He went to the front door, pushed it open, and looked outside, but then came

back inside the store. The men left the store together.
                                                  5


         {¶11} The surveillance videos confirm the clerk’s account of the robbery. T.J. enters the

store approximately fifteen seconds after Mr. Bitting. Although Mr. Bitting has his hands up

during the robbery, he stands right next to T.J. and watches the clerk put money in the bag. T.J.

appears to completely ignore Mr. Bitting’s presence throughout the entire robbery. Mr. Bitting

repeatedly glances at the front door. At one point, Mr. Bitting makes a quick movement heading

toward the door when almost all of the money is in the bag, but he stops and turns around to

watch the clerk struggle in gathering the rest of the change out of the register and putting it in the

bag. Soon thereafter, Mr. Bitting goes to the front door, cracks it open, and looks outside, but he

does not leave. Instead, he comes back into the store while the robbery is still in progress and

while the clerk is retrieving more money from below the counter. He returns to the front door a

second time, props it open and stands there, continuing to watch the robbery as T.J. orders the

clerk down on the ground. Mr. Bitting waits with the door propped open for approximately eight

seconds before finally leaving. As Mr. Bitting leaves, T.J. immediately runs out the door behind

him and both men run away from the store together in the same direction.

         {¶12} T.J. testified that Mr. Bitting is his older cousin. When T.J. told Mr. Bitting that

he wanted to rob the Barberton Mini Mart, Mr. Bitting said that he did not want T.J. to do it or

that Mr. Bitting wanted to do it himself. Mr. Bitting gave T.J. the BB gun used in the robbery a

week or two before T.J. broached the idea of robbing the store. The two men also discussed

different plans for the robbery beforehand, including what their respective roles would be in the

crime.    Their robbery plans changed multiple times.           Although T.J. testified on cross-

examination that he committed the robbery alone, he also testified on direct examination that he

decided to just go ahead and do it after discussing it with Mr. Bitting. When T.J. saw Mr. Bitting

enter the store, he entered the store as well and robbed it. He was not worried about Mr. Bitting
                                                 6


stopping him during the robbery. T.J. testified that the two men, “[Ran] out together” and once

they were outside of the store, “We ran. I ran, yeah.” (Emphasis added.). T.J. gave Mr. Bitting

some of the money from the robbery afterwards and told him he was going to Akron. Mr.

Bitting was later arrested by Detective Robert Russell at T.J.’s residence.

       {¶13} Mr. Bitting also argues that the evidence was insufficient to show that the BB gun

was a deadly weapon capable of inflicting death. A deadly weapon is “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.” R.C. 2923.11(A). A BB gun is not a firearm, but can

be a deadly weapon if the BB’s are expelled at a sufficient rate of speed. State v. Johnson, 5th

Dist. Stark No. 2014CA00189, 2015-Ohio-3113, ¶ 49. Even if the BB’s are not powerful

enough to cause death, a BB gun can be a deadly weapon if used as a bludgeon. Id. at ¶ 50. An

inscription on the label of a gun warning that it could cause serious injury or death is also

sufficient evidence that a gun is a deadly weapon. See State v. Houston, 8th Dist. Cuyahoga No.

100655, 2014-Ohio-3911, ¶ 21. However, a BB gun cannot be presumed to be capable of

inflicting death if no evidence is presented to show that it can be lethal in its use. Johnson at ¶

50.

       {¶14} “A jury is permitted to infer the deadly nature of an instrument from the facts and

circumstances of its use.” State v. Vondenberg, 61 Ohio St.2d 285, 289 (1980). Here, although

there was no evidence that T.J. used or threatened to use the gun as a bludgeon, the State entered

the BB gun itself into evidence. The gun bears a warning label that reads, “WARNING: NOT A

TOY. MISUSE OR CARELESS USE MAY CAUSE SERIOUS INJURY OR DEATH. FOR

USE BY AGES 16 AND OLDER.                   BEFORE USING READ OWNERS MANUAL.”

(Emphasis sic.). The surveillance videos show T.J. at an arm’s length away from the clerk with
                                                 7


the BB gun pointed at her face. The clerk testified that T.J. threatened to shoot her. Detective

Robert Russell later recovered the gun and found it to be intact and loaded with BB’s, with the

grip and CO2 cartridge attached. It is conceivable that a BB gun, when fired into someone’s face

from the close distance of an arm’s length away, is capable of inflicting death. See State v.

Valentin, 11th Dist. Portage No. 2009-P-0010, 2009-Ohio-6038, ¶ 40.

       {¶15} After reviewing the evidence contained in the record in a light most favorable to

the prosecution, we conclude that the State satisfied its burden of production and presented

sufficient evidence for the case to go to the jury. Furthermore, any rational trier of fact could

have found all of the essential elements of complicity to commit aggravated robbery and

complicity to commit robbery proven beyond a reasonable doubt.

       {¶16} Mr. Bitting’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶17} In his second assignment of error, Mr. Bitting argues that none of the witnesses

testified as to any actions demonstrating his complicity in the robbery and there is no evidence of

his aiding and abetting T.J. in any way in the robbery. We disagree.

       {¶18} This Court has stated:

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court 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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a
                                                  8


‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. “This discretionary

power should be exercised only in exceptional cases where the evidence presented weighs

heavily in favor of the defendant and against conviction.” State v. Hamilton, 9th Dist. Lorain

No. 15CA010830, 2017-Ohio-230, ¶ 20.

       {¶19} However, Mr. Bitting’s manifest weight argument is essentially a sufficiency of

the evidence argument. “A weight challenge tests the persuasiveness of the evidence the State

produced while a sufficiency challenge tests the very production of that evidence.” State v.

Hayes, 9th Dist. Summit No. 26388, 2013-Ohio-2429, ¶ 9. “An argument that the State failed to

prove one of the elements of a crime is one sounding in sufficiency, not weight.”                 Id.

“[S]ufficiency and manifest weight are two separate, legally distinct arguments.”            State v.

Vincente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20.

       {¶20} Mr. Bitting has not challenged any of the evidence the State set forth as

“unreliable or lacking credibility.” See State v. Smith, 9th Dist. Summit No. 27877, 2016-Ohio-

7278, ¶ 16. This Court will not develop a manifest weight argument on his behalf. See State v.

Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 32. We have already determined

above that his convictions are based on sufficient evidence. Mr. Bitting has not shown that this

is an exceptional case where the trier of fact lost its way in convicting him. See id. at ¶ 33.

       {¶21} Mr. Bitting’s second assignment of error is overruled.

                              ASSIGNMENT OF ERROR THREE

       THE COURT COMMITTED PLAIN, PREJUDICIAL ERROR BY ALLOWING
       THE PROSECUTOR TO REFER REPEATEDLY TO THE BB GUN IN THIS
       CASE AS A “FIREARM”
                                                 9


         {¶22} In his third assignment of error, Mr. Bitting argues that the prosecutor repeatedly

referred to the BB gun as a firearm, resulting in prejudicial, plain error by confusing the jury into

conflating a BB gun with a firearm, which is a deadly weapon per se. He claims that no curing

instruction was given by the trial court. We disagree.

         {¶23} Although Mr. Bitting’s trial counsel addressed the fact that a BB gun is not a

firearm during his closing arguments, he never actually objected to the prosecutor’s comments

when they were made at various points throughout the trial.           “When no objection to the

comments is made at trial, our review is limited to plain error.” State v. Brown, 9th Dist. Wayne

No. 11CA0054, 2013-Ohio-2945, ¶ 49.

         {¶24} “Plain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the court.” Crim.R. 52(B). “[The] error must be obvious

and have a substantial adverse impact on the integrity of and the public’s confidence in judicial

proceedings.” State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). “Plain error does not

exist unless it can be said that but for the error, the outcome of the trial would clearly have been

otherwise.” State v. Elkins, 9th Dist. Summit No. 19684, 2000 WL 1420285, *8 (Sept. 27,

2000).    Notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus.

         {¶25} The parties agree that the prosecutor erred by referring to the BB gun as a firearm

several times during the trial. Defense counsel never objected to the misstatements, but stated

the following during closing arguments:

         It is certainly not a firearm. [The prosecutor] said that word. And I will share
         with you that you’ve received no evidence that it was. There’s specific laws and
         words and crimes that are involving firearms, and this is not a firearm. I don’t
                                                10


       know whether you want to call it a gun or not. I call it a toy gun. I call it a BB
       gun.

       {¶26} The prosecutor also corrected the misstatements and stated, “It’s not a firearm.

We don’t have to prove it’s a firearm. We’ve got to prove it’s a deadly weapon capable of

causing death.” The trial court did not mention the word “firearm” when instructing the jury, but

consistently used the proper term of “deadly weapon.”

       {¶27} Mr. Bitting has not shown this Court how the prosecutor’s erroneous remarks

clearly changed the outcome of the trial. See Elkins at *8. The trial court’s jury instructions,

which are completely devoid of any use of the term “firearm,” coupled with the prosecutor’s and

defense counsel’s corrective comments during closing arguments were sufficient to preclude a

conclusion by this Court that a manifest miscarriage of justice occurred. See State v. Dennison,

9th Dist. Medina No. 2660-M, 1998 WL 114392, *3 (Mar. 4, 1998).

       {¶28} Mr. Bitting’s third assignment of error is overruled.

                                                III.

       {¶29} Mr. Bitting’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                11


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
