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State v. Brown

Court of Appeals of Ohio, First District, Hamilton

August 21, 2019

STATE OF OHIO, Plaintiff-Appellee,
ROBERT BROWN, Defendant-Appellant.

          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.


          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 ...

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