[Cite as State v. Colley, 2010-Ohio-4834.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
State of Ohio, : : Plaintiff-Appellee, : : Case No. 09CA3323 v. : : DECISION AND Joseph Colley, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 9-30-10 ________________________________________________________________
APPEARANCES:
Luke Brazinski, Luke Brazinski Law Office, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Danielle M. Parker, Scioto County Assistant Prosecutor, Portsmouth, Ohio, for Appellee. ________________________________________________________________
Kline, J.:
{¶1} Joseph Colley (hereinafter “Colley”) appeals the judgment of the Scioto
County Court of Common Pleas. After a jury trial, Colley was convicted of
robbery, theft, felonious assault, and aggravated robbery with a firearm
specification. On appeal, Colley initially contends that the trial court erred in
denying his motion for a continuance. We disagree. Because a majority of the
relevant factors weigh against Colley’s request for a continuance, we cannot find
that the trial court abused its discretion. Next, Colley contends that insufficient
evidence supports his conviction for aggravated robbery. Specifically, Colley
argues that there is no evidence he actually possessed a firearm. We disagree.
After viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have reasonably inferred that Colley possessed a gun Scioto App. No. 09CA3323 2
while attempting or committing a theft offense. Finally, Colley contends that his
convictions are against the manifest weight of the evidence because (1) there is
no evidence that he actually possessed a firearm and (2) a victim’s identification
of Colley fell short of the beyond-a-reasonable-doubt standard. We disagree.
First, we find substantial evidence upon which the jury could have reasonably
concluded that Colley possessed a gun. And second, we cannot say that the jury
lost its way and created a manifest miscarriage of justice by relying on the
victim’s identification of Colley. Therefore, the jury could have reasonably
concluded that all the essential elements of the four offenses were proven
beyond a reasonable doubt. For these reasons, we overrule Colley’s three
assignments of error and affirm the judgment of the trial court.
I.
{¶2} Sometime between 3:00 a.m. and 3:15 a.m. on April 28, 2009, Colley
entered a Speedway gas station in Portsmouth, Ohio. After approaching the
cashier on duty (hereinafter the “Speedway Cashier”), Colley stuck his hand in
his pocket. Then, Colley pulled his hand out of his pocket, tucked that same
hand underneath his shirt, and said, “Give me all your money or I’ll shoot you.”
Trial Transcript at 60. The Speedway Cashier did not actually see a gun on
Colley’s person. Nevertheless, she backed away from the cash register, hit the
store’s panic button, and ran outside into the parking lot. After that, Colley fled
from the store, and the Speedway Cashier called 9-1-1 from someone else’s cell
phone. Scioto App. No. 09CA3323 3
{¶3} Speedway’s video surveillance system recorded Colley’s time inside
the store. In the surveillance video, Colley can be seen at the store’s counter
with his hand tucked into his shirt. But the surveillance video does not show
whether Colley had an actual gun on his person.
{¶4} Shortly after 3:30 a.m. that same morning, a woman (hereinafter the
“Hospital Victim”) was walking on the grounds of the Southern Ohio Medical
Center (hereinafter the “Medical Center”). While she was looking for the
emergency room, the Hospital Victim noticed that someone was following her.
That someone turned out to be Colley, who confronted the Hospital Victim and
demanded her purse. The Hospital Victim described their encounter in the
following way: “This man [Colley] gets in front of me and tells me to give my
purse to him. And I’m like ‘no,’ because I thought it was some kind of joke. Then
he starts just struggling, taking it from me. And as he’s yanking and yanking and
pulling, and I feel myself hit the ground, then I feel – he’s taking my head and
bashing it on the pavement. And then – (Witness crying)[.]” Trial Transcript at
84. Colley eventually took control of the Hospital Victim’s purse, which contained
approximately $300 and several pieces of jewelry. (The Hospital Victim cannot
remember what happened next, but Colley apparently fled the scene after
obtaining her purse.)
{¶5} The Hospital Victim eventually “came to” and sought help by pounding
on a door to the Medical Center. At 3:52 a.m., the Medical Center admitted the
Hospital Victim as a patient. After she received treatment for her attack-related
injuries, the Hospital Victim left the Medical Center at approximately 9:00 a.m. Scioto App. No. 09CA3323 4
{¶6} Later that morning, a Portsmouth Police Detective visited the Hospital
Victim’s home and showed her a photo lineup that included a picture of Colley.
The Hospital Victim initialed Colley’s photograph, but she also indicated that she
was “unsure” about the identification. At trial, the Hospital Victim attributed her
initial uncertainty to nervousness and the effects of pain medication. The
Hospital Victim later positively identified Colley as her attacker.
{¶7} On May 19, 2009, a Scioto County Grand Jury returned a four-count
indictment against Colley. For attacking the Hospital Victim, Colley was indicted
for robbery, theft, and felonious assault. And for the Speedway incident, Colley
was indicted for aggravated robbery with a firearm specification.
{¶8} On June 3, 2009, the state responded to Colley’s request for
discovery. In their response, the state indicated that it possessed a surveillance
video from the Medical Center. This video shows the Hospital Victim (1) walking
in the parking lot before the attack and (2) pounding on the door after the attack.
The attack itself, however, happened outside of the surveillance system’s camera
range. Apparently, Colley’s trial counsel first viewed the Medical Center
surveillance video in early August 2009.
{¶9} On June 4, 2009, the trial court set Colley’s trial date for September
14, 2009.
{¶10} On September 9, 2009, Colley filed a motion in limine seeking to
suppress the Medical Center surveillance video. The trial court addressed the
motion in limine at a September 11, 2009 hearing. At the start of the hearing,
Colley orally requested a continuance so that he could obtain an expert. The Scioto App. No. 09CA3323 5
surveillance video contains two different time stamps, and Colley wanted an
expert to review the video and determine the correct time stamp. For example,
one of the time stamps says approximately 3:32 a.m., which supports the state’s
theory that Colley attacked the Hospital Victim after the Speedway robbery. But
the other time stamp says approximately 2:30 a.m., which does not comport with
the state’s version of events. (For ease of analysis, we have referred to the time
stamps as the “3:32 a.m.” time stamp and the “2:30 a.m.” time stamp. Obviously,
the time stamps changed chronologically during the video.)
{¶11} At the September 11, 2009 hearing, the Medical Center’s security
manager testified that the 3:32 a.m. time stamp establishes the correct time in
the surveillance video. As he explained, the 3:32 a.m. time stamp “comes from
our computer, comes from our I.S.P.; it comes from the computer system
throughout the whole house. This is the only time I use. This is the real time.”
September 11, 2009 transcript at 11. The state also argued that the Hospital
Victim’s time of admission to the Medical Center (3:52 a.m.) supports the
accuracy of the 3:32 a.m. time stamp. Apparently, default factory settings in the
surveillance equipment created the 2:30 a.m. time stamp.
{¶12} The trial court denied Colley’s request for a continuance. As the trial
court judge explained, “I believe [the security manager] has given this Court
satisfactory explanation as to difference in the stamp files. I understand a little bit
about computers; if it goes through a server that’s the time that the server is
providing. I’ve never had a problem with my clock on my computer. It’s always Scioto App. No. 09CA3323 6
more accurate than anything else. So I don’t see any basis for a continuance at
this time[.]” September 11, 2009 Transcript at 29.
{¶13} After a jury trial, Colley was convicted of all four counts and sentenced
accordingly.
{¶14} Colley appeals from his judgment of conviction and asserts the
following three assignments of error: I. “The Trial Court [e]rred when it denied
Appellant’s request for a continuance, so that Appellant would have the
opportunity to procure an expert to review legitimate questions about a significant
piece of evidence.” II. “The Trial Court committed plain error in sentencing the
Appellant on the aggravated robbery charge when the evidence presented at trial
was not sufficient to establish that Appellant was armed in any manner.” And, III.
“The trial court erred when it entered judgment against the Appellant when the
evidence presented to establish Appellant’s conviction was of insufficient weight
for a reasonable jury to convict Appellant of the charges in question.”
II.
{¶15} In his first assignment of error, Colley contends that the trial court erred
in denying his motion for a continuance. Colley notes that the Medical Center
surveillance video contains two different time stamps. For that reason, Colley
argues that the trial court should have granted a continuance so that Colley could
obtain an expert to determine the video’s correct time.
{¶16} “We review the denial of a motion for a continuance for abuse of
discretion.” State ex rel. Athens Cty. Dept. of Job & Family Servs. v. Martin,
Athens App. No. 07CA11, 2008-Ohio-1849, at ¶22. See, also, State v. Carnes, Scioto App. No. 09CA3323 7
Licking App. No. 2009 CA 56, 2010-Ohio-1693, at ¶8; Gussler v. Morris, Ross
App. No. 06CA2884, 2006-Ohio-6627, at ¶8. An abuse of discretion connotes
more than a mere error of judgment; it implies that the court’s attitude is arbitrary,
unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,
157. “The trial court has broad discretion in ruling on requests for continuances.
* * * However, that discretion is not unlimited.” State v. Miller (Apr. 20, 1987),
Tuscarawas App. No. 86AP060038 (internal citation omitted); Rice v. Lewis,
Scioto App. No. 09CA3307, 2010-Ohio-1077, at ¶37.
{¶17} “While no ‘mechanical formula’ exists for determining whether a trial
court has abused its discretion in denying a motion for a continuance, the Ohio
Supreme Court has utilized a ‘balancing test which takes cognizance of all the
competing considerations’ present in a particular case.” Carnes at ¶9, quoting
State v. Unger (1981), 67 Ohio St.2d 65, 67. See, also, Rice at ¶38.
{¶18} “In evaluating a motion for a continuance, a court should note, inter
alia: the length of the delay requested; whether other continuances have been
requested and received; the inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is for legitimate reasons or
whether it is dilatory, purposeful, or contrived; whether the defendant contributed
to the circumstance which gives rise to the request for a continuance; and other
relevant factors, depending on the unique facts of each case.” Unger at 67-68.
{¶19} We find that the trial court did not abuse its discretion by denying
Colley’s request for a continuance. Here, the trial court found that the requested
delay was not for legitimate reasons. According to the trial court, there was no Scioto App. No. 09CA3323 8
“basis for a continuance” because the Medical Center’s security manager “ha[d]
given [the] Court [a] satisfactory explanation as to difference in the stamp files.”
September 11, 2009 Transcript at 29. Thus, the trial court believed that obtaining
an expert was unnecessary. After reviewing the record, we cannot say that this
finding is arbitrary, unreasonable, or unconscionable.
{¶20} Furthermore, other Unger factors weigh in favor of the trial court’s
decision. The trial court addressed only whether the requested delay was for
legitimate reasons, but a “trial court is not required to explicitly outline the Unger
factors on the record.” State v. Dickens, Scioto App. No. 09CA3272, 2009-Ohio-
4541, at ¶13. And absent evidence to the contrary, we “must presume that the
trial court applied the law [in this case, the Unger factors] correctly.” State v.
Lieser, Stark App. No. 2008CA00202, 2009-Ohio-2502, at ¶23, citing State v.
Coombs (1985), 18 Ohio St.3d 123, 125. Here, the record demonstrates that
granting the continuance would have created an inconvenience. Colley
requested a continuance on Friday, September 11, 2009 – just one business day
before his Monday, September 14, 2009 trial date. Thus, granting the
continuance would have inconvenienced the court, the state, and the various
witnesses. Additionally, Colley contributed to the circumstances that gave rise to
his request for a continuance. Colley had access to the surveillance video for
nearly two-and-a-half months before he filed his motion. If Colley had acted in a
timelier fashion, he could have either (1) had an expert review the surveillance
video before trial or (2) requested a continuance in a more convenient manner. Scioto App. No. 09CA3323 9
{¶21} We can find just one Unger factor in Colley’s favor. That is, he did not
request a continuance before the September 11, 2009 motion. But in light of the
factors weighing against Colley’s request for a continuance, we cannot find that
the trial court abused its discretion.
{¶22} Accordingly, we overrule Colley’s first assignment of error.
III.
{¶23} Because Colley did not file a Crim.R. 29 motion for acquittal at the trial
court level, he uses the term “plain error” in his second assignment of error. But
Colley actually contends that insufficient evidence supports his conviction for
aggravated robbery. And as Colley notes, we will review his sufficiency-of-the-
evidence challenge even though he did not make a Crim.R. 29 motion. See,
e.g., State v. Cooper (2007), 170 Ohio App.3d 418, 2007-Ohio-1186, at ¶13 (“[A]
defendant preserves his right to object to the alleged insufficiency of the
evidence when he enters his ‘not guilty’ plea.”); State v. Norman, Ross App. Nos.
Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, at ¶92.
{¶24} When reviewing a case to determine if the record contains sufficient
evidence to support a criminal conviction, we must “examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince
the average mind of the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt.” State v. Smith, Pickaway App.
No. 06CA7, 2007-Ohio-502, at ¶33, quoting State v. Jenks (1991), 61 Ohio St.3d Scioto App. No. 09CA3323 10
259, at paragraph two of the syllabus. See, also, Jackson v. Virginia (1979), 443
U.S. 307, 319.
{¶25} The sufficiency-of-the-evidence test “raises a question of law and does
not allow us to weigh the evidence.” Smith at ¶34, citing State v. Martin (1983),
20 Ohio App.3d 172, 175. Instead, the sufficiency-of-the-evidence test “‘gives full
play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.’” Smith at ¶34, quoting Jackson at 319. This court will
“reserve the issues of the weight given to the evidence and the credibility of
witnesses for the trier of fact.” Smith at ¶34, citing State v. Thomas (1982), 70
Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio St.2d 230, at paragraph
one of the syllabus.
{¶26} Under the aggravated-robbery statute, “[n]o person, in attempting or
committing a theft offense, as defined in section 2913.01 of the Revised Code, or
in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly
weapon on or about the offender’s person or under the offender’s control and
either display the weapon, brandish it, indicate that the offender possesses it, or
use it[.]” R.C. 2911.01(A)(1). In the proceedings below, the jury found that (1)
Colley had a firearm on or about his person or under his control and (2) Colley
indicated that he possessed the firearm. Colley argues that there was no
evidence he actually possessed a firearm because, as Colley states, “no witness
observed any firearm nor was any [firearm] recovered.” Brief of Appellant
Joseph Colley at 16. Nevertheless, we find no merit in Colley’s argument. Scioto App. No. 09CA3323 11
{¶27} “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), 61 Ohio St.2d 285[;] State v. Green
(1996), 117 Ohio App.3d 644[.] As stated by the Supreme Court of Ohio, ‘[f]or
purposes of establishing the crime of aggravated robbery, a jury is entitled to
draw all reasonable inferences from the evidence presented that the robbery was
committed with the use of a gun * * *.’ Vondenberg, syllabus. It is not necessary
that the defendant had actually displayed the weapon in order to establish that he
had possessed one.” State v. Knight, Greene App. No. 2003 CA 14, 2004-Ohio-
1941, at ¶17 (alterations sic).
{¶28} Under circumstances similar to the present case, the Sixth District
Court of Appeals upheld an aggravated-robbery conviction in State v. Haskins,
Erie App. No. E-01-016, 2003-Ohio-70. In that case, “the attendant in [a] 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[.]” Id. at ¶42.
{¶29} And in Knight, the Second District Court of Appeals held that “the
factfinder may infer that the defendant possessed a deadly weapon based on his Scioto App. No. 09CA3323 12
words and conduct.” Knight at ¶18. As a result, the court upheld an aggravated
robbery conviction where “the jury was required to infer that [the defendant]
possessed a deadly weapon without his displaying, brandishing or using a gun
and without any explicit threat indicating that he had a gun.” Id. at ¶20. The
conviction was upheld because the defendant “obtained the money from [the
store clerk] based on [the clerk’s] belief that [the defendant] was armed with a
gun – a belief that was based on [the defendant’s] actions.” Id. at ¶29.
{¶30} For similar reasons, we find that sufficient evidence supports Colley’s
aggravated-robbery conviction. Here, the jury could have reasonably inferred
that Colley had a gun based on the circumstances of the robbery. The
Speedway cashier testified to the following: “I was standing outside smoking a
cigarette, and he [Colley] went in and I followed him in. There was [sic] no other
customers in the store. And he walked around the counter. I started into my
counter area and he acted like he pulled something out of his pocket and had his
hand under his shirt and told me if I didn’t give him all the money he was going to
shoot me.” Trial Transcript at 41. The surveillance video supports the Speedway
Cashier’s account because the video shows Colley at the counter with his hand
tucked into his shirt.
{¶31} Finally, the Speedway Cashier’s 9-1-1 call contained the following
exchange:
{¶32} “DISPATCHER: * * * You said you did not see a gun. Did he say he
had a gun?
{¶33} “CALLER: Yes. Scioto App. No. 09CA3323 13
{¶34} “DISPATCHER: He said he had a gun, but you did not see it.
{¶35} “CALLER: No, I didn’t.
{¶36} “DISPATCHER: But he did tell you he had one.
{¶37} “CALLER: He told me he would shoot me.” Trial Transcript at 50.
{¶38} Finally, on redirect examination, the Speedway cashier elaborated on
Colley’s behavior during the robbery.
{¶39} “Q. What about the Defendant’s actions in the store during the robbery
made you believe that he had a gun? What did he do that made you believe he
{¶40} “A. He put his hand in his pocket and pulled it out and stuck it under his
shirt and he kind of lunged forward and said ‘Give me all your money or I’m going
to shoot you.’ I just assumed he had a gun.
{¶41} “Q. Was this a casual conversation during the time that he was
demanding the money?
{¶42} “A. No. He – he yelled at me.
{¶43} “Q. What was his demeanor?
{¶44} “A. Like he would hurt me.
{¶45} “Q. Through those actions did you believe he had a gun?
{¶46} “A. Yes, I did.” Trial Transcript at 59.
{¶47} After viewing the foregoing evidence in a light most favorable to the
prosecution, we believe that any rational trier of fact could have found the
essential elements of aggravated robbery proven beyond a reasonable doubt.
The jury was entitled to draw all reasonable inferences about the Speedway Scioto App. No. 09CA3323 14
robbery. And under the totality of the circumstances, the jury could have
reasonably inferred that Colley had a firearm based on (1) Colley’s actions while
in the store and (2) the Speedway Cashier’s belief that Colley actually had a gun.
{¶48} Accordingly, for the foregoing reasons, we overrule Colley’s second
assignment of error.
IV.
{¶49} In his third assignment of error, Colley contends that the following
convictions are against the manifest weight of the evidence: (1) aggravated
robbery, (2) the firearm specification, and (3) the crimes related to the Hospital
Victim.
{¶50} “The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” State v. Thompkins
(1997), 78 Ohio St.3d 380, at paragraph two of the syllabus. Sufficiency is a test
of the adequacy of the evidence, but “[w]eight of the evidence concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other[.]’” State v. Sudderth, Lawrence App.
No. 07CA38, 2008-Ohio-5115, at ¶27, quoting Thompkins at 387.
{¶51} “Even when sufficient evidence supports a verdict, we may conclude
that the verdict is against the manifest weight of the evidence, because the test
under the manifest weight standard is much broader than that for sufficiency of
the evidence.” Smith at ¶41. When determining whether a criminal conviction is
against the manifest weight of the evidence, we “will not reverse a conviction
where there is substantial evidence upon which the [trier of fact] could Scioto App. No. 09CA3323 15
reasonably conclude that all the elements of an offense have been proven
beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, at
paragraph two of the syllabus. See, also, Smith at ¶41. We “must review the
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
granted.” Smith at ¶41, citing State v. Garrow (1995), 103 Ohio App.3d 368,
370-371; Martin, 20 Ohio App.3d at 175. But “[o]n the trial of a case, * * * the
weight to be given the evidence and the credibility of the witnesses are primarily
for the trier of the facts.” DeHass, at paragraph one of the syllabus.
A. Aggravated Robbery & Firearm Specification
{¶52} Colley contends that both the aggravated-robbery conviction and the
firearm specification are against the manifest weight of the evidence. Essentially,
Colley repeats the firearm-related arguments that he made under his second
assignment of error. Colley contends that, even if “the evidence is found to be
sufficient, the evidence is nevertheless far too tenuous” to survive a manifest-
weight challenge. Brief of Appellant Joseph Colley at 17.
{¶53} Here, we have reviewed the same evidence that we reviewed in
deciding Colley’s sufficiency-of-the-evidence challenge. And based on that
evidence, we believe that any rational trier of fact could have found the essential
elements of aggravated robbery proven beyond a reasonable doubt. That is,
Colley’s own words and conduct provide substantial evidence upon which the Scioto App. No. 09CA3323 16
jury could have reasonably inferred that he had a firearm. The Supreme Court of
Ohio has stated that “[t]he state should not be required to produce the weapon in
order to secure a conviction for aggravated robbery. To do so would emasculate
R.C. 2911.01, and reward those armed robbers who have the fortune to escape
the scene of the crime, and the foresight to destroy or conceal the weapons
before they are apprehended.” Vondenberg at 289. Thus, an armed-robbery
conviction is not against the manifest weight of the evidence where “the fact-
finder may infer the defendant had possessed a deadly weapon based on his
words and conduct.” State v. Yopp, Ashtabula App. No. 2005-A-0001, 2006-
Ohio-1682, at ¶26 (rejecting a manifest-weight challenge); see, also, Haskins at
¶42; Green at 651-52.
{¶54} For example, in Green, the Second District Court of Appeals concluded
“that, under the facts of this case, where appellant made several threats to ‘blow
the heads off’ the victims, with his hand or hands either concealed or used in a
manner consistent with having a concealed gun, and where appellant was able to
compel the surrender of the money based upon his actions and the victims’
suspicions that he was armed and could carry out his threat, the state sufficiently
proved” the offense of aggravated robbery. Id. at 651.
{¶55} In the present case, the Speedway cashier testified that Colley
concealed his hand and threatened to shoot her. Moreover, the Speedway
cashier testified that she was scared because she believed that Colley did indeed
have a gun. After reviewing the record, and based on the totality of the
circumstances, we have found no evidence to rebut the reasonable inference Scioto App. No. 09CA3323 17
that Colley possessed a firearm during the Speedway robbery. As such, we
cannot say that the jury lost its way, and we find substantial evidence upon which
the jury could have reasonably concluded that all the elements of aggravated
robbery had been proven beyond a reasonable doubt.
{¶56} We also find that Colley’s firearm specification is not against the
manifest weight of the evidence. For a firearm specification to apply, an offender
must have “had a firearm on or about the offender’s person or under the
offender’s control while committing the offense and displayed the firearm,
brandished the firearm, indicated that the offender possessed the firearm, or
used it to facilitate the offense.” R.C. 2941.145(A). Other courts have found that
“[a] victim’s belief that [a] weapon is a gun, together with the intent on the part of
the accused to create and exploit that belief for his own criminal purposes, is
sufficient to prove a firearm specification.” State v. Poulson, Franklin App. No.
09AP-778, 2010-Ohio-3574, at ¶37, quoting State v. Dutton, Franklin App. No.
09AP-365, 2009-Ohio-6120, at ¶8. See, also, State v. Greathouse, Montgomery
App. No. 21536, 2007-Ohio-2136, at ¶19.
{¶57} Here, the Speedway cashier testified that Colley pulled his hand out of
his pocket and tucked it under his shirt. The Speedway cashier clearly believed
that Colley had a gun, and Colley exploited that fear during the robbery. Again,
based on the totality of the circumstances, we have found no evidence rebutting
the reasonable inference that Colley possessed a firearm. As such, we cannot
say that the jury lost its way, and we find substantial evidence upon which the Scioto App. No. 09CA3323 18
jury could have reasonably concluded that the firearm specification had been
proven beyond a reasonable doubt.
B. The Hospital Victim
{¶58} Colley briefly argues that the Hospital Victim’s identification of Colley
“falls short of the beyond a reasonable doubt standard that should have been
followed by the jury.” Brief of Appellant Joseph Colley at 18. For that reason,
Colley contends that the convictions related to the Hospital Victim are against the
manifest weight of the evidence. We disagree. During her testimony, the
Hospital Victim identified Colley as her attacker.
{¶59} “Q. Were you able to see the individual who attacked you that
evening?
{¶60} “A. Yes. He was in front of me.
{¶61} “Q. Okay. Were you fairly close to each other?
{¶62} “A. Yes, real close.
{¶63} “Q. And is the individual who attac[k]ed you that night present in the
courtroom today?
{¶64} “A. Yes.
{¶65} “Q. Could you show the jurors where he is?
{¶66} “A. Right there. (Witness pointing to the Defendant)
{¶67} “THE COURT: The record will reflect the witness has pointed to and
identified the defendant, Joseph Colley.” Trial Transcript at 95.
{¶68} We recognize that the Hospital Victim was initially “unsure” after seeing
Colley’s picture in the photo lineup. As a result, the defense attacked the Scioto App. No. 09CA3323 19
Hospital Victim’s identification of Colley. Nevertheless, “the cautious exercise of
the discretionary power of a court of appeals to find that a judgment is against
the manifest weight of the evidence requires that substantial deference be
extended to the factfinder’s determinations of credibility. The decision whether,
and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness. * * *
Accordingly, [t]his court will not substitute its judgment for that of the trier of facts
on the issue of witness credibility unless it is patently apparent that the trier of
facts lost its way in arriving at its verdict.” State v. Rhines, Montgomery App. No.
23486, 2010-Ohio-3117, at ¶39 (internal citations omitted) (alteration sic). And
here, we will defer to the jury, which found the Hospital Victim’s identification of
Colley to be credible.
{¶69} Furthermore, the Hospital Victim saw the picture of Colley shortly after
being released from the hospital. And based on the Hospital Victim’s own
testimony, the jury could have reasonably attributed any initial uncertainty to
nervousness and the effects of pain medication. At trial, the Hospital Victim was
“100 percent” certain that Colley was her attacker. Trial Transcript at 100.
Therefore, we cannot say that the jury lost its way and created a manifest
miscarriage of justice.
C.
{¶70} For the foregoing reasons, we find that the jury did not lose its way and
create such a manifest miscarriage of justice that Colley’s convictions must be
reversed and a new trial be granted. We find substantial evidence upon which Scioto App. No. 09CA3323 20
the jury could have reasonably concluded that all the elements of the following
crimes were proven beyond a reasonable doubt: (1) aggravated robbery, (2) the
firearm specification, and (3) the crimes related to the Hospital Victim.
{¶71} Accordingly, we overrule Colley’s third assignment of error. Having
overruled all his assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Scioto App. No. 09CA3323 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment Only.
For the Court
BY: Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.