State v. Colley

[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

had a gun?

{¶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.