DocketNumber: C.A. Case No. 2003 CA 14.
Citation Numbers: 2004 Ohio 1941
Judges: WOLFF, J.
Filed Date: 4/16/2004
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} Knight asserts two assignments of error on appeal.
{¶ 3} "I. Whether the trial court erred in overruling Defendant's motion for dismissal due to the unconstitutional and unreasonable length of time between indictment, arrest and trial of defendant in this matter."
{¶ 4} In his first assignment of error, Knight claims that he was brought to trial more than 270 days after his arrest, in violation of R.C.
{¶ 5} As we stated in State v. Hart, Montgomery App. No. 19556,
{¶ 6} "The right to a speedy trial is guaranteed by the
{¶ 7} "Speedy trial provisions must be asserted by a defendant in a timely fashion or they are waived. State v.Bishop, Vinton App. No. 02CA573, ¶ 16, 2003-Ohio-1385. ``Thus, in order for an accused to procure his release on the basis of a denial of his right to a speedy trial, he must show affirmative action on his part to secure a speedy trial.' Partsch v.Haskins (1963), 175 O.S. 139, 140. Additionally, R.C.
{¶ 8} R.C.
{¶ 9} We note that the Sixth Circuit has likewise held, for purposes of the federal Speedy Trial Act, 18 U.S. Code § 3161 et seq., that a trial is considered to have begun when the voir dire process begins. United States v. Warren (C.A. 6, 1992),
{¶ 10} Upon review of the foregoing authority, we are persuaded that, for purposes of Ohio's speedy trial statute, a trial commences when voir dire begins. We caution, as have many courts, that the trial court may not attempt to circumvent the spirit of the statute "by conducting voir dire within the statutory time limits and then ordering a prolonged recess with an intent to pay mere ``lip service' to the Act's requirements."Scaife,
{¶ 11} Turning to the case before us, Knight's trial began on December 4, 2002. On that date, a jury was impaneled and sworn, and both the state and Knight presented their opening statements. Knight filed his motion to dismiss on the morning of December 5, 2002, prior to the presentation of any witness testimony. Because Knight failed to file a motion for discharge prior to voir dire, his motion was untimely and his speedy trial challenge has been waived. We therefore need not reach the issue of whether the trial court properly concluded that the December 4, 2002, trial date was reasonable and that the state did not violate R.C.
{¶ 12} Knight's first assignment of error is overruled.
{¶ 13} "II. Whether the Defendant's Conviction on count two of the indictment involving the CD Connection for aggravated robbery was supported by insufficient evidence in that no testimony was produced at trial to indicate the defendant possessed a deadly weapon, threatened with or brandished a deadly weapon during the offense and no testimony was produced at trial to describe any deadly weapon which the defendant could have possessed during the offense or that any object the defendant could have possessed was a deadly weapon as a result of [its] shape, size or material of manufacture."
{¶ 14} In his second assignment of error, Knight claims that the state failed to present sufficient evidence that he possessed a deadly weapon when he allegedly committed the robbery of the CD Connection store on February 28, 2002. He contends that there was no evidence that he actually possessed a deadly weapon nor that he implied, through his actions or words, that he possessed one. Knight further points to the testimony of Tasha Edwards, who indicated that she gave Knight a BB gun on March 1, 2002, after the CD Connection robbery occurred. Bambi Kukuk likewise testified that Knight obtained a BB gun on March 1, 2002.
{¶ 15} Crim.R. 29(A) provides that the trial court shall enter a judgment of acquittal on one or more offenses charged in the indictment if the evidence is insufficient to sustain a conviction of such offense or offenses. "``[S]ufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins,
{¶ 16} The aggravated robbery statute, R.C.
{¶ 17} Whether the state has presented sufficient evidence of the actual possession of a deadly weapon is judged based on the totality of the circumstances. State v. Vondenberg (1980),
{¶ 18} As recognized by both parties, the factfinder may infer that the defendant possessed a deadly weapon based on his words and conduct. In State v. Haskins, Erie App. No. E-01-016, 2003-Ohio-70, the court of appeals upheld the conviction for the aggravated robbery of a gas station, even though no gun had been displayed or found. The court reasoned: "In this case, the attendant in the gas station robbery testified that appellant threatened ``Are you going to give me the money or do I have to pull this pistol out of my pocket?' The attendant responded immediately by putting up her hands, fearing that appellant did, in fact, have a gun. Although no weapon was actually seen or found, credible evidence was presented from which the jury could have found beyond a reasonable doubt that appellant did, in fact, have a deadly weapon on or about his person or under his control. Therefore, sufficient evidence was presented going to all the elements of the crime and the conviction was not against the manifest weight of the evidence." Id. ¶ 42; see Green, supra (state presented sufficient evidence of a deadly weapon when he made several threats to "blow the heads off" the victims, used his hand in a manner consistent with having a concealed gun, and the victims surrendered money based on their suspicions that he was armed and could carry out his threat); State v. Cook,
Franklin App. Nos. 02AP-896, and 02AP-897, 2003-Ohio-2483 (sufficient evidence of aggravated robbery where the defendant concealed his hand and indicated that he had a gun and would kill the victims); State v. Jeffers (2001),
{¶ 19} Knight argues that the state did not provide sufficient evidence of deadly weapon, because he made no verbal threat that indicated the presence and operability of a hidden gun. We disagree that a verbal threat is necessarily required in order to infer that a defendant possesses a deadly weapon. Although addressing a firearm specification, we find State v.Thompkins,
{¶ 20} The case before us presents such a circumstance, because the jury was required to infer that Knight possessed a deadly weapon without his displaying, brandishing or using a gun and without any explicit threat indicating that he had a gun. Knight argues that "the clerk testified that the Defendant had both hands in his jacket pockets upon entering the store and said only to open the register." If Kristen Wilson, the CD Connection employee, had merely testified that Knight had approached her with his hands in his pockets, we would agree that the state's evidence was insufficient. However, Wilson testified that she believed that Knight possessed a gun and that she gave him access to the cash register on the belief that he was armed with a gun:
{¶ 21} WILSON: "All he did was come up to the counter and he had his hand in his pocket."
{¶ 22} PROSECUTOR: "All right."
{¶ 23} WILSON: "And it just seemed like he had a gun in his pocket."
{¶ 24} PROSECUTOR: "Okay. Can you stand up and demonstrate or just show the Jury what you saw?"
{¶ 25} WILSON: "Yeah, he just came up to the counter and he had both hands in his pocket, and the right hand just — was just — was out and looked like he had a small gun in his pocket." * * *
{¶ 26} PROSECUTOR: "You said you saw this, what you believe to be a gun in his pocket. What did you base that conclusion upon?"
{¶ 27} WILSON: "Just the shape that it was taking like in his pocket."
{¶ 28} Wilson subsequently testified that Knight did not display a gun when he took both hands out of pockets to grab the money from the cash register, thus causing her to question whether he, in fact, had a gun. However, she further testified that she had opened the cash register drawer for him, because she had believed that he possessed a gun.
{¶ 29} Construing the evidence in the light most favorable to the prosecution, we conclude that the state's evidence was legally sufficient. Wilson testified that Knight's right hand was "out" compared to his other hand, thus suggesting a concealed gun. Notably, Wilson demonstrated to the jury how Knight held his hands. Having only a transcribed record of the trial court proceedings and considering that we must construe the evidence in favor of the prosecution, we presume that Wilson's demonstration was sufficient to support a reasonable inference that Knight possessed a deadly weapon. Moreover, Wilson testified that she had opened the register, because she believed that Knight held a gun. Thus, Knight obtained the money from Wilson based on her belief that he was armed with a gun — a belief that was based on Knight's actions. Accordingly, we conclude that Wilson's testimony, when construed in the state's favor, is legally sufficient to support the jury verdict.
{¶ 30} Our conclusion is not altered by the fact that Bambi Kukuk and Tasha Edwards both testified that on March 1, 2002, prior to the Kwik Kold robbery, Edwards retrieved Arthur (aka Patrick) Brown's BB gun for Knight and that Knight used that weapon during the robbery. Although the record indicates that Knight used the BB gun during the March 1, 2002, robbery, there is no evidence regarding Knight's preparation for the robbery of the CD Connection. The record is silent on this issue. In other words, there is no evidence to indicate that Knight did not or could not have used a deadly weapon during the CD Connection robbery. See State v. Carothers, Cuyahoga App. No. 82860, 2004-Ohio-51 (state presented sufficient evidence of a firearm for purposes of the firearm specification based on defendant's threat to victim, even though the defendant's father testified that he only had a toy gun). As stated above, based on Wilson's testimony regarding Knight's conduct during the robbery, the state has presented sufficient evidence that Knight possessed a deadly weapon when he robbed the CD Connection on February 28, 2002.
{¶ 31} Knight's second assignment of error is overruled.
{¶ 32} The judgment of the trial court will be affirmed.
Judgment affirmed.
Fain, P.J., and Young, J., concur.