[Cite as State v. Shaw, 2011-Ohio-4723.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :   C.A. CASE NO. 24263

vs.                                             :    T.C. CASE NO. 10CR1161

LAMARK R. SHAW                                   :   (Criminal Appeal from
                                                      Common Pleas Court)
        Defendant-Appellant                      :

                                       . . . . . . . . .

                                           O P I N I O N

                Rendered on the 16th day of September, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst.
Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton, Ohio
 45422
     Attorney for Plaintiff-Appellee

Darrell L. Heckman, Atty. Reg. No. 0002389, One Monument Square,
Suite 200, Urbana, Ohio 43078
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

VUKOVICH, J. (BY ASSIGNMENT):

        {¶ 1} Defendant-appellant                Lemark    Shaw   appeals   from   his

conviction in Montgomery County Common Pleas Court for first-degree

felony kidnapping and the attached firearm specification.                          Shaw

asserts three arguments for reversal.                      First, he contends that
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the evidence was insufficient to establish the elements of the

firearm specification, specifically that the firearm was operable.

 Second, appellant argues that the trial court erred when it failed

to instruct the jury on second-degree felony kidnapping.   The last

argument appellant asserts is that the trial court erred when it

allowed a typed copy of appellant’s written statement to be admitted

into evidence.

     {¶ 2} For the reasons expressed below, we find no merit with

appellant’s arguments. Accordingly, the judgment of the trial court

is hereby affirmed.

                    STATEMENT OF THE FACTS AND CASE

     {¶ 3} On May 11, 2010 appellant was indicted by the Montgomery

County Grand Jury for kidnapping, a violation of 2905.01(A)(1),

a first-degree felony and a firearm specification, a violation

of R.C. 2941.145.

     {¶ 4} The case proceeded to a jury trial.       At trial, the

evidence established that on April 1, 2010, a friend of appellant’s

was carjacked by a Devin Garrett, aka Nuke. Later that day, Olivia

Anderson, Nuke’s girlfriend, was kidnapped at gunpoint outside

of her residence.   Her hands and feet were tied, she was gagged,

a sheet placed over her head and she was put in the trunk of the

kidnappers’ car.    While in the trunk, the kidnappers talked to

her through the open console in the backseat and pointed the gun
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at her.     They asked her where her boyfriend was and wanted his

cellular phone number.

     {¶ 5} The victim indicated that the kidnappers took her to

a place that she believed was a house.   They continued to ask about

Garrett and even started asking about her parents.      They wanted

$50,000 to release her.    She told them that she was pregnant with

Garrett’s baby and that her parents had disowned her.      While it

was true that she was pregnant, her parents had not disowned her.

 Still she refused to give them information on Garrett or her

parent’s, because she did not want Garrett or her parents to be

put in danger.      Eventually the kidnappers became irate with

Anderson and they punched her in the stomach, the gun was put in

her mouth and cocked and she was told they were going to kill her.

     {¶ 6} After a couple hours she was placed back into the car.

 She was then taken to a secluded area called The Learning Tree,

where the kidnappers removed her from the car with the sheet still

on her head.    They told her not to remove the sheet or they would

kill her, then they drove away.

     {¶ 7} After they left, she removed the sheet and began looking

for help.    She was able to get one of the people living in the

area to call the police.     A deputy was sent to the area around

The Learning Tree, found Anderson and observed that she was

bleeding.     She was then taken to a hospital where she refused
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medical treatment. Days after the kidnapping, she was shown a

photographic lineup and she identified appellant as the kidnapper

with the gun.

     {¶ 8} During trial, it was established that appellant met with

Detective Lawson, from the City of Dayton Police Department and

provided a confession that he was one of Anderson’s abductors.

However at trial, he asserted that he lied to Detective Lawson

and that when he gave his statement to her, he was under the

influence of drugs and alcohol.          He also offered witnesses to

confirm his alleged alibi.

     {¶ 9} At the conclusion of the evidence, the jury found him

guilty of the charge and the specification.               The trial court

sentenced him to six years for the kidnapping conviction and three

years for the firearm specification.           The sentences were ordered

to be served consecutively.

                         FIRST ASSIGNMENT OF ERROR

     {¶ 10} “THE    EVIDENCE    OF   OPERABILITY     OF   A   FIREARM    WAS

INSUFFICIENT TO SUSTAIN A CONVICTION AS A MATTER OF LAW.”

     {¶ 11} The    relevant    inquiry   for    appellate     review    of   a

sufficiency of the evidence argument is whether any rational fact

finder, viewing the evidence in a light most favorable to the state,

could have found the essential elements of the crime proven beyond

a reasonable doubt.     State v. Dennis (1997), 79 Ohio St.3d 421,
                                                                    5

430, citing Jackson v. Virginia (1979), 443 U.S. 307, 319.   A guilty

verdict will not be disturbed on appeal unless “reasonable minds

could not reach the conclusion reached by the trier-of-fact.”

Id. at 430.

     {¶ 12} R.C. 2941.145 permits imposition of a mandatory three

year prison term where the indictment specifies, and the jury finds:

     {¶ 13} “* * * 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 offenses.”



     {¶ 14} R.C. 2923.11(B) defines “firearm” and provides:

     {¶ 15} “(1) ‘Firearm’ means 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.

     {¶ 16} “(2) 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

representations and actions of the individual exercising control
                                                                   6

over the firearm.”

     {¶ 17} The Ohio Supreme Court has held that:

     {¶ 18} “The state must present evidence beyond a reasonable

doubt that a firearm was operable at the time of the offense before

a defendant can receive an enhanced penalty pursuant to R.C.

2929.71(A) [prior firearm specification statute].     However, such

proof can be established beyond a reasonable doubt by the testimony

of lay witnesses who were in a position to observe the instrument

and the circumstances surrounding the crime.”       State v. Murphy

(1990), 49 Ohio St.3d 206, syllabus.

     {¶ 19} Consequently, the state is not required to admit into

evidence the firearm used during the commission of the crime in

order to establish the firearm specification; both the firearm's

existence and its operability may be inferred from the surrounding

facts and circumstances.   State v. Vann, Montgomery App. No. 22818,

2009-Ohio-5308, ¶27, citing Murphy, supra.     In Murphy, the Ohio

Supreme Court concluded that there was sufficient evidence to

establish proof beyond a reasonable doubt that the defendant

possessed a firearm and that firearm was operable when the evidence

at trial established that the defendant entered a store with a

gun described as a one or two shot derringer, the defendant

announced he was robbing the store, he pointed a gun at the store

clerk and stated he would kill the clerk if the clerk did not give
                                                                    7

him money. Murphy, supra.

       {¶ 20} Considering facts similar to Murphy, this court has

consistently found that there is sufficient evidence for the jury

to infer the operability of the firearm even when the firearm is

not admitted into evidence.      State v. Branigan, Montgomery App.

No. 23593, 2010-Ohio-5745; State v. Leftwich, Montgomery App. No.

223383, 2009-Ohio-5044; State v. Melton, Montgomery App. No. 22591,

2009-Ohio-535.    We have stated that “a victim's belief that the

weapon is a gun, together with the intent on the part of the accused

to create and exploit that belief for his own criminal purposes,

is sufficient to prove a firearm specification.”        Vann, supra,

at ¶27, citing State v. Greathouse, Montgomery App. No. 21536,

2007-Ohio-2136.    See, also, State v. Reynolds, 79 Ohio St.3d 158,

1997-Ohio-304; State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52.

       {¶ 21} In the case at hand, Ronnie Gullatte, who witnessed the

abduction, testified at trial that the abductor had a gun.       Tr.

138.    Gullatte described the gun as a big gun, a rifle or AK-47

type rifle.    Tr. 140-141.    In appellant’s handwritten statement

he stated that a gun was used by Little Johnny Boy during the

kidnapping and that it was a camouflaged sawed off shotgun.      Tr.

271, 376, 381.     Anderson also testified that a gun was used in

her abduction.    Tr. 163.    She stated that while she was in trunk

of the car the gun was pointed at her through the open console.
                                                                    8

 Tr. 166-167.     She indicated that at one point during the

kidnapping the gun was put in her mouth, it was cocked several

times, and the kidnappers told her they were going to kill her

if they did not get what they asked for.   Tr. 171-176.   Considering

these facts and all of the above cited case law from this district

and the Ohio Supreme Court, there was sufficient evidence from

which the jury could infer that the firearm was operable.

Accordingly, this assignment of error lacks merit.

                       SECOND ASSIGNMENT OF ERROR

     {¶ 22} “THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY

ON THE OFFENSE OF INFERIOR DEGREE OF SECOND DEGREE FELONY

KIDNAPPING.”

     {¶ 23} R.C. 2905.01(A)(1) states that no person by force or

threat “shall remove another from the place where the other person

is found or restrain the liberty of the person” for purposes of

holding that person for ransom.   A violation of R.C. 2905.01(A)(1)

is a first-degree felony, except when the victim is released in

a safe place unharmed.    R.C. 2905.01(C)(1).     In that instance,

the violation of (A)(1) would be a second-degree felony.         R.C.

2905.01(C)(1).

     {¶ 24} Although the safe place unharmed provision mitigates

an offender's criminal culpability, it is not an element of

kidnapping, but rather must be treated the same as an affirmative
                                                                    9

defense.    State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046,

¶233.   See, also, State v. Carroll, Cuyahoga App. No. 93938,

2010-Ohio-6013, ¶13; State v. Bankston, Franklin App. No. 08AP-668,

2009-Ohio-754, ¶16.    Thus, it is the defendant’s burden to prove.

     {¶ 25} After the state closed its case, appellant made a

statement that he might want a jury instruction on second-degree

felony kidnapping.    Tr. 295.   The trial court indicated that such

an instruction would be allowed if the evidence warranted it, but

the court stated that it would wait until the end of the presentation

of evidence before deciding whether such instruction was warranted.

 Tr. 296.   After the defense rested its case-in-chief, the state

indicated that it did not believe, considering the evidence

produced at trial, that an instruction on second-degree felony

kidnapping was warranted.    Tr. 388-398.

     {¶ 26} In response to that argument defense counsel made the

following statement:

     {¶ 27} “Just in response.     I think that is correct.      The

defense did not put forth any evidence tending to show that as

a – and the reason is the defense didn’t have any witnesses that

could testify as to what exactly happened to Ms. Anderson prior

to the kidnapping, during the kidnapping and after the kidnapping,

Your Honor.    Thank you.” Tr. 389.

     {¶ 28} The trial court, however, did not rule on whether a
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second-degree felony kidnapping instruction was warranted until

after the state’s rebuttal witness.       At that point it stated:

       {¶ 29} “Very well.   The Court, during the break, had taken

another look at the affirmative defense and would note for the

record that the Court considered the fact that the evidence can

be considered from the State’s case without any evidence regarding

that by the – produced by the Defendant.

       {¶ 30} “However, because the evidence is uncontroverted that

the victim was struck and – without going into what the injuries

might have been, either minor or otherwise, because the evidence

is uncontroverted that the victim was struck and, accordingly,

not released unharmed, the Court finds that there could be no

preponderance of the evidence argument made by the Defendant in

that regard.     And we are not including it in the charge.”       Tr.

395.

       {¶ 31} Appellant never objected to this determination.

       {¶ 32} As there was no objection, appellant waives all but plain

error. Plain error exists only where it is clear that, but for

the error, the result of the trial would have been different.

State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶52.

       {¶ 33} The Eighth Appellate District has found plain error in

the situation where an appellant did not request a jury instruction

on second-degree felony kidnapping but the evidence warranted such
                                                                       11

instruction.     Carroll, supra.      In coming to that conclusion, our

sister district indicated that while Carroll did not introduce

evidence that the victim was released in a safe place unharmed,

the state’s evidence could be used to establish such an affirmative

defense.    Id. at ¶15.      In Carroll, the witnesses that testified

at trial stated that Carroll threatened to hurt them, however,

none of the witnesses avowed that he actually inflicted any harm

upon them.     Id.     They indicated that once the events were over,

Carroll fled.    Id.     Carroll also testified that he had no intention

of hurting the victims.        Id.

       {¶ 34} Appellant insists that the case at hand is similar to

Carroll.    We disagree. Anderson testified that she was pregnant,

she was punched in the stomach by her kidnappers and she miscarried.

 Tr. 173, 179.       It is true that she did not accept medical treatment

and there is no clear medical evidence produced at trial to confirm

that the punch caused the miscarriage.          Tr. 179.   Regardless of

the outcome of the punch, it cannot logically be concluded that

a person is left unharmed when that person is punched.         Likewise,

it is also noted that she testified that she had red marks on her

wrists and feet.       Tr. 178.   The deputy who found her also stated

that he observed that she was bleeding from her right hand.          Tr.

223.    Thus, there is evidence of harm.

       {¶ 35} Furthermore, we note, just as the trial court did, that
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all of that evidence is uncontroverted.          Appellant offered no

evidence to show that Anderson was unharmed when she was released.

Accordingly,     considering   the   evidence,    the   trial   court’s

conclusion that there could be no preponderance of the evidence

argument made by appellant that the victim was released in a safe

place unharmed does not amount to plain error.          This assignment

of error lacks merit.

                        THIRD ASSIGNMENT OF ERROR

       {¶ 36} “THE TRIAL COURT ERRED IN ADMITTING OVER OBJECTION

TESTIMONY OF A CLAIMED TYPED COPY OF A WRITTEN CONFESSION.”

       {¶ 37} Appellant was interviewed by Detective Lawson and

proceeded to give her a written statement.           Detective Lawson

testified about the written statement and read it into the record.

 However, instead of reading from the original written statement,

she read from a transcribed copy.    This was allegedly done because

appellant’s handwriting is hard to decipher.      Appellant objected.

 Tr. 275-276.     The trial court overruled the objection based on

the interest of time that it would take to read the handwritten

statement.     The trial court then stated that any issue with the

transcript could be remedied by submitting both the written

statement and that transcribed copy to the jury for them to

determine whether the transcription was an accurate copy.          Tr.

276.
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     {¶ 38} When the state moved to admit its exhibits it did not

mark or move for the admission of the transcribed copy of the

statement.     Tr. 297.    Following appellant’s case-in-chief, the

state noted that the transcribed copy was not admitted into

evidence. Tr. 387.    The trial court gave appellant the option of

whether he wanted it admitted into evidence.           Tr. 387-388.

Appellant objected to the admission, which was sustained by the

trial court.    Tr. 388.

     {¶ 39} Despite the wording of the assignment of error, appellant

does not clearly argue that Detective Lawson was not permitted

to read from the transcribed copy during her testimony.      Rather,

his argument is that “the jury should have been given the actual

confession only, without the claimed transcript.”       As is shown

above, this argument fails because the factual premise it is based

on is not accurate.       The jury did not view the transcript; only

the written confession was admitted into evidence.

     {¶ 40} Regardless, it cannot be concluded that the detective

reading a transcript of appellant’s written statement amounted

to reversible error.        As the state indicates, this court has

previously approved the procedure of submitting to the jury a

transcript of an audio taped conversation to use as a listening

aid during trial, so long as the transcript is not admitted.   State

v. Rogan (1994), 94 Ohio App.3d 140, 153-155, citing State v. Waddy
                                                                        14

(1992), 63 Ohio St.3d 424, 445-446.        The transcript was used in

the case at hand as an aid in deciphering a difficult to read

handwritten statement and, as such, is similar to the use of the

transcript    in   Rogan.      Consequently,   the   Rogan   holding   is

applicable in this case.

     {¶ 41} Furthermore, the detective’s rendition of the written

statement was substantially accurate.          Appellant read his hand

written statement into the record during his testimony.                Tr.

371-373.     A comparison of his testimony to that of the detective’s

indicates that the detective’s version is an accurate reflection

of the typed statement. Tr. 277-278, 371-373.          While there are

slight variations, such as slight alterations for readability,

those variations are at the most minor and do not change the

substance of the confession.        Consequently, based on Rogan and

the accuracy of the transcript, use of the transcript did not amount

to reversible error.        This assignment of error lacks merit.

                                  CONCLUSION

     {¶ 42} All three assignments of error lack merit.       Therefore,

the judgment of the trial court is hereby affirmed.


FAIN, J. And DONOVAN, J., concur.

(Hon. Joseph J. Vukovich, Seventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
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Copies mailed to:

Kirsten A. Brandt, Esq.
Darrell L. Heckman, Esq.
Hon. Gregory F. Singer
