Criminal Appeals From: Hamilton County Court of Common Pleas
Trial Nos. B-1701417 B-1703061
Judgments
Appealed From Are: Reversed and Cause Remanded in C-180181;
Appeal Dismissed in C-180180
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.
OPINION
Bergeron, 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.
{¶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.
{¶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 ...