State v. Murphy

• Decision Date: 07 March 1990
• Docket Number: No. 88-734,88-734
• Citation: 551 N.E.2d 932,49 Ohio St.3d 206
• Parties: The STATE of Ohio, Appellee, v. MURPHY, Appellant.
• Court: Ohio Supreme Court

Page 206

49 Ohio St.3d 206

551 N.E.2d 932

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

No. 88-734.

Supreme Court of Ohio.

Submitted Dec. 12, 1989.

Decided March 7, 1990.

Syllabus by the Court

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. (State v. Gaines [1989], 46 Ohio St.3d 65, 545 N.E.2d 68, modified.)

On July 18, 1986, the United Dairy Farmers Store at the corner of Livingston and Barnett in Columbus, Ohio, was held up by a lone male at about 4:50 a.m.

A clerk and one customer were present in the store at the time of the holdup. The clerk testified that at approximately 4:50 a.m. a man entered the store and told him to give him all the money. The clerk, having seen this man in the store on other occasions, thought that he was joking. The clerk further testified that the man pulled a gun and T-shirt from his waist. The clerk described the gun as a little one-shot silver derringer. The man then told the clerk he was not kidding and to give him the money or he would kill him.

The customer testified that he was on his way to work and stopped at the United Dairy Farmers store to buy a newspaper. When he pulled up to the store he saw a suspicious man looking around the corner of the building. He waited a moment and then decided to enter the store. As he was about to tell the clerk of the suspicious man outside, the man entered the store and announced that it was a holdup. The customer further testified that the holdup man told the clerk to give him all the money. He reached down the front of his pants and took out a shirt, and after unwrapping the shirt he brandished a one- or two-shot chrome derringer, waving it back and forth toward the clerk and the customer.

The clerk surrendered the money, and the gunman left the store. The police were called and, from police photographs, both the clerk and customer postively identified the appellant, Karlos Aaron Murphy, as the gunman.

Appellant was apprehended and indicted for aggravated robbery with a gun specification and two prior conviction specifications. The case proceeded to trial by jury on November 5, 1986 on the indictment for aggravated robbery and the gun specification. The two prior conviction specifications were reserved for findings by the trial judge.

The jury returned a verdict of guilty of aggravated robbery and the gun specification. On November 10, 1986, the appellant appeared before the trial judge for sentencing and at that time the court found appellant guilty of the two remaining prior conviction specifications. Appellant was sentenced to fifteen to twenty-five years, with fifteen years' actual incarceration on the aggravated robbery charge. Appellant was also sentenced to three additional years of actual incarceration on the gun specification, to be served consecutively with the sentence on the aggravated robbery.

The Franklin County Court of Appeals affirmed appellant's conviction and sentence. Finding its judgment to be in conflict with that of the Court of Appeals for Cuyahoga County in State v. Cunningham (Jan. 31, 1985), No. 48558, unreported, the court of appeals certified the record of the case to this court for review and final determination.

Michael Miller, Pros. Atty., Patrick E. Sheeran and Alan C. Travis, Columbus, for appellee.

James Kura, County Public Defender, and Paul Skendelas, for appellant.

Randall M. Dana, Public Defender, Gregory L. Ayers and Barbara A. Farnbacher, Columbus, urging reversal for amicus curiae, the Ohio Public Defender Com'n.

ALICE ROBIE RESNICK, Justice.

The issue before this court is whether the firearm specification in R.C. 2929.71 can be proven beyond a reasonable doubt without actually presenting scientific or direct evidence as to the operability of the firearm. This court recently held in State v. Gaines (1989), 46 Ohio St.3d 65, 545 N.E.2d 68, at the syllabus, that "R.C. 2923.11(B) and 2929.71(A) require that, prior to imposition of an additional term of three years' actual incarceration for possession of a firearm during the commission of a felony, the state must prove beyond a reasonable doubt that the firearm was operable or could readily have been rendered operable at the time of the offense." We reaffirm that holding but will modify it as to the type of evidence which is required to prove this specification beyond a reasonable doubt.

The focus of this opinion, therefore, will be to establish exactly what type of evidence is sufficient in determining whether the state has met its burden of proof. "Firearm" is defined in R.C. 2923.11(B) as " * * * 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 which is inoperable but which can readily be rendered operable." R.C. 2929.71 provides, in pertinent part:

"(A) The court shall impose a term of actual incarceration of three years * * * if both of the following apply:

"(1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code;

"(2) The offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment."

In enacting this statute the legislature wanted to send a message to the criminal world: "If you use a firearm you will get an extra three years of incarceration." That is why it chose the word "firearm," instead of simply "deadly weapon," which can include all types of lethal instruments. The foregoing definition includes loaded as well as unloaded guns. It also includes operable guns, as well as inoperable guns that can readily be rendered operable. Hence, it is only reasonable that the state can rely upon all of the surrounding facts and circumstances in establishing whether a firearm was used in the commission of a felony.

In considering the facts of the case before us, we find that the appellant entered the United Dairy Farmers store and announced that it was a holdup. He then took out a T-shirt from inside the front of his pants. As he unwrapped the shirt, a small gun appeared. He pointed the gun at both the clerk and the customer, waving it back and forth while announcing that if the clerk did not give him the money he would kill him. In addition, both the clerk and the customer described the gun as a one- or two-shot silver or chrome derringer.

From the totality of the circumstances (i.e., the gun being wrapped in a shirt, a description of the instrument from eyewitnesses, and the statement by appellant that he would kill the clerk if he did not give him the money), the evidence is sufficient to establish proof beyond a reasonable doubt that the appellant in this case possessed a "firearm" as defined in R.C. 2923.11(B). We hold that before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A), the stat must present evidence beyond a reasonable doubt that the firearm was operable, or could readily have been rendered operable, at the time of the offense. 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. To rule otherwise would destroy the intent of the General Assembly to impose an additional term of three years' actual imprisonment on those persons who use a firearm to carry out their criminal objectives.

This holding is consistent with decisions from other jurisdictions whose legislatures have attempted to control the use of firearms. See State v. Millett (Me.1978), 392 A.2d 521, 527-528; Benson v. State (Wyo.1982), 640 P.2d 83, 86, certiorari denied (1982), 456 U.S. 1006, 102 S.Ct. 2297, 73 L.Ed.2d 1301; People v. Brooks (1984), 135 Mich.App. 193, 196-198, 353 N.W.2d 118, 120-121; People v. Taylor (1984), 151 Cal.App.3d 432, 436-437, 199 Cal.Rptr. 6, 9-10; State v. Gantt (1986), 101 N.J. 573, 503 A.2d 849; State v. Hillis (Mo.App.1988), 748 S.W.2d 694.

We recognize that these cases are from other jurisdictions, and interpret statutes that differ from R.C. 2929.71. However, they do aid in our determination of the present case because they all share a related issue: the existence or non-existence of a firearm during the commission of a crime. Likewise, they necessarily interpret a legislative definition of "firearm." For example, in Millett, supra, the defendant was convicted of possession of a concealed firearm by a felon. In rejecting the defendant's argument that the evidence was insufficient to prove that he possessed a firearm under the applicable definition of a "firearm," the court stated as follows: "From the whole evidence the jury was warranted to find beyond a reasonable doubt that * * * Millett actually had in his possession a real gun. It is not essential to the validity of such a finding that the firearm itself be admitted in evidence as an exhibit." Id. at 527. In Millett, the evidence concerning the firearm was supplied primarily from witnesses who testified they saw the handle and hammer of a handgun protruding from the defendant's belt. This was the evidence that the court found to support the existence of a firearm.

Similarly, in Gantt, supra, the New Jersey Supreme Court stated that " * * * we limited our grant of certification to the single issue of whether a firearm must be proven operable before * * *...