State v. Thompkins

• Decision Date: 14 May 1997
• Docket Number: No. 95-2647,95-2647
• Citation: 78 Ohio St.3d 380,678 N.E.2d 541
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. THOMPKINS, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 380

78 Ohio St.3d 380

678 N.E.2d 541

The STATE of Ohio, Appellant and Cross-Appellee, v. THOMPKINS, Appellee and Cross-Appellant.

No. 95-2647.

Supreme Court of Ohio.

Submitted Feb. 18, 1997.

Decided May 14, 1997.

SYLLABUS BY THE COURT

1. A firearm enhancement specification can be proven beyond a reasonable doubt by circumstantial evidence. In determining whether an individual was in possession of a firearm and whether the firearm was operable or capable of being readily rendered operable at the time of the offense, the trier of fact may consider all relevant facts and circumstances surrounding the crime, which include any implicit threat made by the individual in control of the firearm. (State v. Murphy [1990], 49 Ohio St.3d 206, 551 N.E.2d 932, State v. Jenks [1991], 61 Ohio St.3d 259, 574 N.E.2d 492, and State v. Dixon [1995], 71 Ohio St.3d 608, 646 N.E.2d 453, followed; R.C. 2923.11[B] and , construed and applied.)

2. The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.

3. To reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary. (Section 3[B], Article IV of the Ohio Constitution, applied; Brittain v. Indus. Comm. [1917], 95 Ohio St. 391, 115 N.E. 110, overruled.)

4. To reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required. (Section 3[B], Article IV of the Ohio Constitution, construed and applied.)

On June 4, 1993, appellee and cross-appellant Booker T. Thompkins entered the Busken Bakery located at 8442 Vine Street, Cincinnati, Ohio, and asked the attending clerk, Janice Brinkman, for an employment application. Brinkman provided an application to Thompkins. When she turned back toward Thompkins after reaching for an application form, Brinkman noticed that Thompkins had a gun and that he was pointing it directly at her. Thompkins told Brinkman that he was committing a "holdup" and to be "quick, quick." Brinkman removed approximately eight hundred dollars from the cash register. She put the money in a bag and handed it to Thompkins. Thompkins took the money and he told Brinkman not to call the police for ten minutes. Thompkins left the bakery. He then allegedly hijacked a car in the parking lot to facilitate his escape.

Subsequently, the police presented Brinkman with a photographic array containing Thompkins's picture. Brinkman picked Thompkins's picture out of the array, and she positively identified him as the person who had robbed the bakery.

On July 28, 1993, Thompkins was indicted by a Hamilton County Grand Jury for aggravated robbery (count one) and grand theft (count two). Count one also included a firearm specification and a prior-conviction specification. Count two set forth that Thompkins had previously been convicted of an aggravated robbery charge in 1980 and an aggravated burglary offense in 1976. Additionally, count two carried a specification that Thompkins had been convicted of an offense of violence (the 1980 aggravated robbery conviction).

Thompkins was tried by a jury. The jury found Thompkins guilty of the aggravated robbery charge and the firearm specification. The jury also found Thompkins guilty of the grand theft charge. The trial court sentenced Thompkins to fifteen to twenty-five years on the aggravated robbery conviction and three to fifteen years for the grand theft offense. The trial court ordered that the sentences run concurrently. Thompkins was also sentenced to three additional years of actual incarceration on the firearm specification.

Thompkins appealed to the Court of Appeals for Hamilton County, setting forth numerous assignments of error. The court of appeals, in a split decision (Gorman, J., dissenting), reversed Thompkins's firearm conviction, finding that there was "insufficient evidence in the record to prove operability of the firearm." (Emphasis added.) The court of appeals also held, among other things, that the aggravated robbery offense and grand theft charge were allied offenses of similar import. Accordingly, the court of appeals reversed the trial court's judgment in part, affirmed it in part, and remanded the cause to the trial court for purposes of resentencing.

The cause is now before this court upon the allowance of a discretionary appeal and cross-appeal.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer, Assistant Prosecuting Attorney, for appellant and cross-appellee.

H. Fred Hoefle, Cincinnati, for appellee and cross-appellant.

DOUGLAS, Justice.

The state of Ohio has filed an appeal from the judgment of the court of appeals and Thompkins has filed a cross-appeal. The parties have set forth various issues for our consideration. However, we limit our review solely to two important issues. The first issue concerns what type of evidence is sufficient to prove the operability of a firearm. The second issue involves whether the court of appeals properly reversed Thompkins's firearm conviction by a majority vote, given the language of Section 3(B)(3), Article IV of the Ohio Constitution. Additionally, the second issue requires a determination of whether the phrase "weight of the evidence" as used in Section 3(B)(3), Article IV, is equivalent to the legal concept of "sufficiency of the evidence."

I

The court of appeals, by a majority vote, concluded that the state failed to prove that the firearm used by Thompkins during the commission of the robbery was operable. The majority noted that "the alleged firearm was never recovered. Brinkman did testify that Thompkins, during the course of the robbery, had in his hand a black gun that appeared to her to be an automatic; that she was frightened; that Thompkins advised her that it was a 'holdup'; that while she was taking the money from the cash register, Thompkins said 'quick, quick'; that prior to fleeing from the scene, Thompkins instructed her not to call the police for ten minutes; and that Thompkins did not expressly threaten to shoot her. In addition, once outside, an individual matching Thompkins's physical characteristics allegedly forced two persons, who did not testify at trial, from their motor vehicle by brandishing a handgun."

Notwithstanding, the court of appeals' majority held that such evidence was insufficient to sustain a conviction because "none of the recognized indicia of firearm operability was shown to be present in this case, viz., the actual gun, bullets, the smell of gunpowder, bullet holes, or verbal threats by the robber that he would shoot the victim. Indeed, other than Brinkman's testimony that she saw a gun, little evidence was produced at trial to prove that the alleged gun was operable." We disagree.

In State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932, we modified State v. Gaines (1989), 46 Ohio St.3d 65, 545 N.E.2d 68, with respect to the type of evidence required to prove a firearm specification beyond a reasonable doubt. Specifically, in Murphy, we held: "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). 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." (Emphasis added.) Id. at syllabus.

In Murphy, we found that there was sufficient evidence to establish proof beyond a reasonable doubt that the defendant possessed a firearm and that the firearm was operable or could readily have been rendered operable at the time of the offense. The defendant in Murphy entered a United Dairy Farmers store and announced that he was robbing it. He then took a T-shirt from inside his pants, unwrapped it, pulled out a gun, and he pointed the gun at the store clerk and a customer. The defendant waived the gun back and forth while announcing that if the clerk did not give him the money, he would kill him. The clerk and the customer described the gun as a one- or two-shot silver or chrome derringer.

The situation in Murphy is very similar to what occurred in the case at bar. The only noteworthy difference between Murphy and what occurred here is that the defendant in possession of the gun in Murphy explicitly threatened that he would kill the store attendant. Here, Brinkman did not testify that Thompkins threatened to shoot her. Rather, the threats made by Thompkins to Brinkman were of an implicit nature, i.e., Thompkins's pointing the gun at Brinkman and telling her that he was committing a "holdup" and to be "quick, quick."

However, the fact that Thompkins did not explicitly threaten Brinkman does not take away from the fact that Brinkman thought her life was in danger. Even absent any explicit verbal threats on the part of Thompkins, the trier of fact in this case could have reasonably concluded, based on the totality of the circumstances, that Thompkins was in possession of a firearm at the time of the offense, that is, a deadly weapon capable of expelling projectiles by an explosive or combustible propellant.

More recently, in State v. Dixon (1995), 71 Ohio St.3d 608, 646 N.E.2d 453, we determined the issue of the relevance of explicit versus implicit threats made by an assailant in this type of case. In Dixon, a jury found the defendant guilty of aggravated robbery and a firearm specification. ¹ The defendant appealed his convictions to the Court of Appeals for Greene County. The court of appeals reversed the firearm conviction, finding that the state had failed to prove the specification beyond a reasonable doubt. The state appealed and the court...