State v. Jordan, C-860195

• Decision Date: 21 January 1987
• Docket Number: No. C-860195,C-860195
• Citation: 31 OBR 353,509 N.E.2d 1278,31 Ohio App.3d 187
• Parties: , 31 O.B.R. 353 The STATE of Ohio, Appellee, v. JORDAN, Appellant.
• Court: Ohio Court of Appeals

Page 187

31 Ohio App.3d 187

509 N.E.2d 1278, 31 O.B.R. 353

The STATE of Ohio, Appellee, v. JORDAN, Appellant.

No. C-860195.

Court of Appeals of Ohio, First District, Hamilton County.

Jan. 21, 1987.

Syllabus by the Court

In a prosecution for aggravated robbery with a firearm specification, if the record contains credible evidence that an instrument variously described as a "toy, starter pistol, or blank gun" was used and the instrument is not available for testing, it is not necessary for the state to prove the instrument (handgun) could actually fire a projectile in order to convict; inferences of the deadly nature of the instrument are permissible from the facts and circumstances of its use.

Arthur M. Ney, Jr., Pros. Atty., R. Daniel Reif and Judith A. Mullen, Cincinnati, for appellee.

Robert A. Perez, Cincinnati, for appellant.

PER CURIAM.

This cause came on to be heard upon the appeal from the Court of Common Pleas of Hamilton County.

Appellant was convicted and sentenced in a bench trial on the charge of aggravated robbery with a firearm specification, in violation of R.C. 2911.01 and 2929.71. The instant timely appeal asserts a single assignment of error:

"The trial court erred to the prejudice of the defendant-appellant by overruling the defendant's Rule 29 Motion when the evidence at trial did not indicate beyond a reasonable doubt that a deadly weapon was used in the robbery for which the defendant was being tried."

We disagree.

The record reveals that appellant and three co-defendants robbed a pony-keg store at gun point. The gun was described by the clerk who was robbed, as to color and barrel size. The getaway vehicle suffered fuel starvation a short distance from the scene, and appellant and two of the co-defendants were located by police near the disabled vehicle, hiding in a grassy area off the roadway. The other co-defendant was apprehended along the road. When questioned by police at the scene, one of the co-defendants stated that he had thrown "the gun" out of the window of the vehicle. All co-defendants claimed in their subsequent statements that the firearm was a toy, starter pistol, or blank gun. The gun was never found.

Appellant argues under his assignment of error that the record does not, beyond a reasonable doubt, support the necessary element that a deadly weapon was used in the robbery. We hold that the evidence was sufficient to permit reasonable minds to conclude beyond a reasonable doubt that the handgun was operable within the requirement of R.C. 2923.11(B), using inferences permitted by State v. Vondenberg (1980), 61 Ohio St.2d 285, 15 O.O.3d 349, 401 N.E.2d 437, and recently applied by this court in State v. Gibson (Dec. 24, 1986), Hamilton App. No. C-860160, unreported. In Vondenberg, the Ohio Supreme Court proclaimed:

"Where there is credible...