State v. Coleman , 2018 Ohio 2214 ( 2018 )

[Cite as State v. Coleman, 2018-Ohio-2214.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27702
:
v. : Trial Court Case No. 2016-CR-2950
:
BENNIE COLEMAN, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 8th day of June, 2018.
...........
MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JEFFREY R. MCQUISTON, Atty. Reg. No. 0027605, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
-2-
FROELICH, J.
{¶ 1} Bennie Coleman, Jr., was found guilty after a jury trial in the Montgomery
County Court of Common Pleas of aggravated robbery with a firearm specification. He
received an aggregate 13-year prison sentence.
{¶ 2} Coleman appeals from his conviction, claiming that (1) the trial court erred in
denying his motion to suppress, (2) there was insufficient evidence that he possessed an
operable firearm during the robbery, and (3) the trial court erred in admitting a gun found
18 days after the offense. For the following reasons, the trial court’s judgment will be
affirmed.
I. Motion to Suppress
{¶ 3} In his first assignment of error, Coleman claims that the trial court erred in
failing to suppress the victim’s show-up identification as unduly suggestive.
{¶ 4} In deciding a motion to suppress, the trial court assumes the role of trier of
facts and is in the best position to resolve questions of fact and evaluate the credibility of
witnesses. State v. Pence, 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing
State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court
of appeals must accept the trial court’s findings of fact if they are supported by competent,
credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-
Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d
Dist.1994). Accepting those facts as true, the appellate court must then determine as a
matter of law, without deference to the trial court’s legal conclusion, whether the
applicable legal standard is satisfied. Id.{¶ 5} The evidence at the suppression hearing established the following facts.
-3-
{¶ 6} Sometime after 3:00 p.m. on September 22, 2016, Zachary Gold was working
at M&G Tattoo Supplies, his father’s business on North Dixie Drive in Harrison Township.
While Gold talked with a customer, a male wearing a white t-shirt, black shorts, purple
gloves, and an orange knit hat entered the store; Gold commented to the man that it was
“kind of hot to have a hat on” and asked the man to close the door, which the man did.
The man then approached Gold, and when the man was standing approximately five feet
from Gold, he pointed a gun at Gold’s face and said, “You know what this is” and “Give
me everything you got.” Gold and the man had a brief verbal exchange, during which
Gold gave the man his money and a drawstring bag. Gold testified that the robbery
lasted one to 1½ minutes, during which Gold was able to view the man’s face and some
hair that stuck out from under the hat. Gold testified that he had paid attention to how
the man looked. After the man left, Gold heard a gunshot, and he contacted the police.
{¶ 7} The dispatcher broadcast that an armed robbery was in progress at the tattoo
supply shop. The dispatch indicated the race and gender of the perpetrator and stated
that the man was wearing an orange hat, a white t-shirt, and black shorts. The dispatch
also stated that the man had just fled the scene and was heading southbound toward the
Dixie Drive-In, which is two businesses south of the tattoo supply store.
{¶ 8} Three detectives with the Montgomery County Sheriff’s Office – Bryan
Statzer, Patrick O’Connell, and a third detective – heard the broadcast from the Sheriff’s
Office located on North Dixie Drive less than a quarter mile south of the tattoo supply
store. Detective Statzer stated that the drive to the store from the Sheriff’s Office takes
less than a minute.
{¶ 9} The three detectives, all in plain clothes, went to their assigned unmarked
-4-
vehicles and drove northbound toward the tattoo supply store. As Detective Statzer
approached the intersection of Palisades Drive and North Dixie Drive (which is two or
three businesses south of the Dixie Drive-In), Statzer noticed a man, later identified as
Coleman, walking through the grass field on the northwest corner of the intersection
toward an apartment complex. Coleman matched the race and gender identified in the
dispatch and was wearing a white t-shirt and black shorts. Statzer testified that Coleman
was walking slowly and kept looking to the street (on Coleman’s left) and behind him
(toward the tattoo store). Statzer testified that approximately 1 to 1½ minutes had
elapsed between the initial dispatch and when he first noticed Coleman. The detective
asked the dispatcher to repeat the suspect’s description, and the description matched
Coleman, minus the hat.
{¶ 10} Detective Statzer turned onto Palisades Drive and drove toward the
apartment complex. When he was close to Coleman, Statzer got out of his car, drew his
weapon, identified himself as a law enforcement officer, and called to Coleman to stop
and show his hands. (Less than five minutes had elapsed since the initial dispatch.)
Coleman did not show his hands and, instead, turned and scaled a wrought-iron fence
that separated the field from the apartment complex. Detective O’Connell arrived on the
scene and began a foot pursuit. Coleman was quickly apprehended. Coleman was
handcuffed, searched incident to his arrest, and placed in a cruiser.
{¶ 11} At 3:19 p.m., Deputy Justin Bone, a uniformed officer, was dispatched to
the tattoo supply store, arriving approximately five or six minutes after the dispatch. As
Bone spoke with Gold, the deputy received a radio call that detectives had apprehended
a man matching the robbery suspect’s description. Deputy Bone told Gold that they had
-5-
a man who matched the description and asked Gold if he (Gold) would go with him (Bone)
to make an identification “or not.” Gold testified that the deputy did not say that they had
caught the perpetrator, just that they had a suspect.
{¶ 12} Deputy Bone drove Gold to the apartment complex, approximately one
minute away from the store; Gold sat behind the deputy in the cruiser. Detective Statzer
testified that Gold arrived at the apartment complex approximately 7 to 10 minutes after
the original broadcast. As Bone’s cruiser approached, Coleman was taken out of the
cruiser, in handcuffs. Gold testified that he saw Coleman through the cruiser’s
windshield and “identified him [Coleman] before we even got close. I knew it was him.
I saw him from a distance.” Gold estimated that the cruiser got 10 to 15 feet from
Coleman, and the deputy asked him to take another look. Gold testified that the deputy
asked, “Do you see the gentleman that robbed you anywhere?” Bone testified that he
asked Gold to tell him “yes or no.” Detective Statzer stated that Gold, who remained in
Bone’s cruiser, was shown “both forward and side views” of Coleman. Gold looked at
Coleman through the side window of the cruiser and again identified Coleman as the
perpetrator. Bone relayed Gold’s identification of Coleman to the detectives.
{¶ 13} Gold further testified his view was not obstructed when he looked at
Coleman from the cruiser. Gold believed that the cruiser’s windows had a slight tint, but
the deputy refuted that; the cruiser had bars over the side window. Gold testified that,
on the day of the robbery, he was 100 percent certain of the identification. Gold was
also asked to identify Coleman at the suppression hearing, which Gold did, and Gold
noted several ways in which Coleman’s appearance had changed since the day of the
robbery (e.g., shorter hair, no dreadlocks, shorter goatee, maybe a little heavier).
-6-
{¶ 14} “Due process requires suppression of pre-trial identification of a suspect
only if the identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 196-97,
93 S.Ct. 375, 34 L.Ed.2d 401 (1972). “Undoubtedly, the showing of one suspect to
witnesses is suggestive.” State v. Marshall, 2d Dist. Montgomery No. 19920, 2004-Ohio-
778, ¶ 13. However, even where the pretrial identification procedure is suggestive, the
identification is still admissible, as long as the challenged identification itself is reliable.
See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)
(“reliability is the linchpin in determining the admissibility of identification testimony”);
State v. Bates, 110 Ohio St.3d 1230, 2006-Ohio-3667, 850 N.E.2d 1208, ¶ 8.
{¶ 15} In reviewing the likelihood that the circumstances resulted in a
misidentification, courts have considered the opportunity of the witness to view the
perpetrator at the time of the offense, the witness’s degree of attention, the accuracy of
the witness’s prior description of the perpetrator, the level of certainty demonstrated by
the witness at the confrontation, and the length of time between the crime and the
confrontation.1 Neil at 199-200; Manson, 432 U.S. 98; Bates at ¶ 9.
{¶ 16} A police officer’s use of a show-up, without more, does not violate due
1
We have previously noted that some of the factors identified in Neil may bear
reconsideration in light of the significant advancement of scientific understanding of
memory. See State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633, ¶ 18, fn. 1 (2d Dist.);
State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 12, fn. 3. For
example, Neil and Manson direct courts to consider the witness’s degree of certainty in
the identification, yet studies have repeatedly shown little relationship between certainty
and accuracy. Nonetheless, as an intermediate court of appeals, this court must
continue to follow the factors articulated in Neil and Manson, as required by Ohio
Supreme Court precedent. See, e.g., Bates at ¶ 9; State v. Gross, 97 Ohio St.3d 121,
2002-Ohio-5524, 776 N.E.2d 1061, ¶ 19, ¶ 25; State v. Keith, 79 Ohio St.3d 514, 684
N.E.2d 47 (1997).
-7-
process. Marshall at ¶ 12, citing Neil at 198. “Show-ups at or near the scene of a crime,
that occur shortly after the crime, are not only permissible, but useful, since they can lead
to an identification or non-identification while the characteristics of the perpetrator are still
fresh in the witness’s memory. However, the show-up must not be unduly suggestive.
The defendant bears the burden to prove that a show-up procedure was so suggestive of
guilt that it requires suppression.” (Citations omitted.) State v. McCrary, 2d Dist.
Montgomery No. 23360, 2010-Ohio-2011, ¶ 38.
{¶ 17} In denying Coleman’s motion to suppress Gold’s show-up identification on
the day of the robbery, the trial court noted that “Gold had observed Defendant at close
range during the robbery and there is no evidence of hesitation on his part when
identifying him. He remained certain at the hearing that his identification was accurate.
Furthermore, the identification was made approximately less than twenty minutes after
the incident.” The trial court found that the show-up identification of Coleman by Gold
was reliable and that Coleman had “not shown that the show up procedure in this case
‘was unnecessarily suggestive and conducive to an irreparable mistaken identification’ of
him. Stovall [v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)].”
{¶ 18} We agree with the trial court’s conclusion. Gold saw the robber enter the
store and commented on the man’s hat before the robbery began. Gold testified that he
observed the robber’s face and portions of his hair, and the two communicated while Gold
gave the robber money and his drawstring bag. The show-up identification occurred
shortly after the robbery. The deputy who transported Gold to the show-up did not tell
Gold that officers had caught the perpetrator; rather, he told Gold that they had found
someone who matched the description and asked Gold if he would indicate “yes or no” if
-8-
he could identify the person. Although Coleman was handcuffed at the time of the show-
up, Gold stated that he recognized Coleman as they approached the location where
Coleman was being held and that he (Gold) was 100 percent confident in his identification.
The trial court did not err in concluding that the show-up identification was not unduly
suggestive or conducive to irreparable mistaken identification.
{¶ 19} Coleman’s first assignment of error is overruled.
II. Sufficiency of Evidence regarding the Operability of the Gun
{¶ 20} In his second assignment of error, Coleman claims that there was
insufficient evidence presented at trial to support a finding that he possessed an operable
firearm during the commission of the offense. Coleman argues that there was no direct
or circumstantial evidence that the gun used during the offense was operable, and he
notes that the firearm discovered 18 days after the robbery was not capable of being test-
fired.
{¶ 21} Coleman does not challenge the sufficiency of the jury’s finding that he was
the person who committed the robbery. Accordingly, in addressing Coleman’s
assignment of error, we focus only on the evidence related to the firearm and its
operability.
{¶ 22} A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to sustain the verdict as a
matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,
citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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
-9-
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶ 23} Coleman was convicted of aggravated robbery, in violation of R.C.
2911.01(A)(1), which provides: “No 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 do any of the following: (1) Have 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[.]” “Deadly weapon” is
defined as “any instrument, device, or thing capable of inflicting death, and designed or
specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”
R.C. 2923.11(A).
{¶ 24} The aggravated robbery charge was accompanied by a firearm
specification. R.C. 2941.145 permits imposition of a mandatory three-year prison term
where the indictment specifies, and the jury finds “that the offender 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 offenses.”
{¶ 25} The statutory definition of a firearm is “any deadly weapon capable of
expelling or propelling one or more projectiles by the action of an explosive or combustible
propellant,” and it includes an unloaded firearm and any firearm that is inoperable but that
can readily be rendered operable. R.C. 2923.11(B)(1). “When determining whether a
firearm is capable of expelling or propelling one or more projectiles by the action of an
explosive or combustible propellant, the trier of fact may rely upon circumstantial
-10-
evidence, including, but not limited to, the representations and actions of the individual
exercising control over the firearm.” R.C. 2923.11(B)(2).
{¶ 26} In State v. Vann, 2d Dist. Montgomery No. 22818, 2009-Ohio-5308, we
discussed what evidence is sufficient to prove both the existence of a firearm and its
operability:
Both a firearm’s existence and its operability may be inferred from
the surrounding facts and circumstances. It is not necessary to admit the
firearm used during the crime in evidence in order to establish a firearm
specification. State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932;
State v. Knight, Greene App. No. 2003CA14, 2004-Ohio-1941. A victim’s
belief that the 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. Greathouse,
Montgomery App. No. 21536, 2007-Ohio-2136.
Actions alone, without verbal threats, may be sufficient
circumstances to establish the operability of a firearm. For example, the
evidence was sufficient to prove a firearm specification when masked men
waived their guns and announced “this is a robbery.” State v. Reynolds,
79 Ohio St.3d 158, 679 N.E.2d 1131, 1997-Ohio-304, at fn. 3. See also:
State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, 1997-Ohio-52. In
State v. Melton, Montgomery App. No. 22591, 2009-Ohio-535, the
defendant forced his way into the victim’s home, told her to “shush,” then
pulled out a gun and proceeded to steal items of jewelry from the bedroom.
-11-
Because the victim believed the gun was real, she feared for her safety and
complied with the defendant’s demands. This court found the evidence
was sufficient to support the firearm specification. Id. at ¶ 18, 36.
Furthermore, because the victim in Melton was the only witness to testify
on this issue, we found that the evidence was uncontroverted and the
verdict was not against the manifest weight of the evidence. Id. at ¶ 37.
Vann at ¶ 27-28. See also State v. Lauderdale, 2d Dist. Montgomery Nos. 26454 and
26456, 2016-Ohio-3357 (testimony that victim heard gun “rack,” saw part of a gun, and
felt a pistol against the back of his head during robbery was sufficient to satisfy the
elements of aggravated robbery and the firearm specification); State v. Million, 2d Dist.
Montgomery No. 24744, 2012-Ohio-1774.
{¶ 27} At trial, Gold testified that he was helping a customer when another man,
later identified as Coleman, walked into the tattoo supply store. Gold testified that, after
he asked Coleman to shut the front door and inquired about Coleman’s hat, “I got a gun
put in my face, and [Coleman] said, ‘You know what this is, give me everything.’ ” Gold
put his hands in the air as soon as he saw the gun. Gold described the gun, stating, “It
was a small – it was subcompact looking gun. And I only [saw] the barrel in the front of
it. It was – it looked to be like nickel, or chrome, or something, and around a 9 millimeter,
.380; something like that.”
{¶ 28} Gold testified that he had money in his pocket and began to reach with his
right hand to get it out. Seeing Gold reach down, Coleman asked, “What the f*** are you
doing?” Gold testified that he put his hand back in the air and said, “I’m getting the
money, it’s in my pocket; do you want the money?” Gold then retrieved the money from
-12-
his pocket and put it on the counter. When asked what was going through his mind at
that point, Gold testified, “I hope he doesn’t shoot me.” Gold stated that he was as
“scared as I could be.”
{¶ 29} After taking the money, Coleman asked, “Where’s the rest?” and Gold
responded that his father (who owns the store) collects the money every night and that
was all he had. Coleman had Gold give him Gold’s nylon drawstring bag, which was
nearby in a small alcove off the main room, as well as Gold’s two cellphones. Gold stated
that the gun was turned on him the entire time.
{¶ 30} At that point, Gold asked Coleman what he (Coleman) wanted him (Gold)
to do now. When Coleman did not answer for a second, Gold said, “Do you want me to
get on the ground?” Coleman said, “Yeah, get on the ground.” Gold told Coleman that
it would take him a moment to get down due to his (Gold’s) broken ankle. After Gold
was lying face-down on the ground, Coleman came over, put his gun against the back of
Gold’s head, put his knee on Gold’s back, and went through Gold’s pockets. Coleman
told Gold, “If you get up or call the cops I will f***ing kill you.” Gold testified that he
thought that Coleman was going to kill him.
{¶ 31} After searching Gold, Coleman asked, “Where’s the ratchet?” which Gold
took to mean “Where’s the gun?” Gold responded that he did not have a gun. Coleman
then asked what else in the store was free. Gold replied, “You have the gun, anything
you want.” Coleman pulled on a cabinet door, but it was locked. Coleman then headed
for the front door. At this point, Coleman heard Gold’s customer say, “Please don’t kill
me, I’ve got kids.” Coleman said, “N*****, I got kids, too.” Coleman then left the store.
{¶ 32} A few seconds after Coleman left and while he was still on the ground, Gold
-13-
heard a single gunshot. Shortly after hearing the gunshot, Gold got up, opened the front
door to the store, and looked out; Coleman was far enough away from the building to
where Gold felt he could safely leave. Because Coleman had taken Gold’s cellphones,
Gold went to a nearby business to call the police.
{¶ 33} Detective Statzer located Coleman on a grassy field on the west side of
North Dixie Drive, heading toward an apartment complex. Coleman scaled the wrought
iron fence between the field and apartment complex, and he was apprehended after a
brief foot chase in the complex. A K-9 unit was called to the scene; the dog tracked a
scent from the apartment complex to a wooded area behind a business located just south
of the Dixie Drive-In, where the deputy found a blue drawstring bag, an orange knit hat,
and a pair of bluish rubber gloves. Deputies searched for a gun, but did not locate one.
{¶ 34} On October 10, 2016, Deputy Matthew Bowling was dispatched to the
apartment complex on a report that a pistol had been found. Bowling recovered a SCCY
semi-automatic handgun from the property manager. Bowling testified that he checked
the condition of the gun and noticed that there were “bugs, leaves, [and] moisture all
around it.” The magazine and takedown lever had some rust, and the gun had some
additional damage, such as a missing front sight.2 Bowling cleared the magazine and
pulled the slide back to empty the chamber; a bullet fell out.
{¶ 35} Bowling asked the property manager for the name of the employee who had
found the gun, and that employee showed the deputy where the gun was found. The
employee took Bowling to the rear of the “very last apartment to the east,” which was next
to the fence separating the apartment complex from the field.
2 The transcript reads “front side,” but this appears to be a typographical error.
-14-
{¶ 36} At trial, Gold was asked to look at the gun that was recovered. He testified
that the gun that was recovered “look[ed] to be very similar” to the gun that was used in
the robbery. Gold explained that his focus had been on the front area of the gun, but the
gun looked to be “about the right size, the right [ ] color slide, and everything” to him.
{¶ 37} Detective Brian Shiverdecker, the lead detective for the robbery, testified
that the gun recovered on October 10, 2016, was not test-fired because it was not safe
to be test-fired.
{¶ 38} Viewing the evidence in the light most favorable to the State, there was
sufficient evidence from which the jury could have reasonably concluded that an operable
gun was used during the robbery. Coleman displayed the gun and threatened Gold with
it throughout the robbery; at one point, Coleman placed the gun to the back of Gold’s
head while Gold was lying prone on the ground. Coleman threatened to kill Gold if he
(Gold) got up or called the police. Coleman’s actions with the gun indicated to Gold and
Gold’s customer that the gun was operable; both were fearful of being killed. This
circumstantial evidence was sufficient to establish both the deadly weapon element of
aggravated robbery and the firearm specification.
{¶ 39} Coleman points out that the gun found on October 10, 2016 was not test-
fired, because it was not safe to do so. There was no evidence that the gun Coleman
used was inoperable on September 22, 2016, the date of the robbery; the jury could have
reasonably concluded, based on Coleman’s threatening behavior and statements, that
the gun had been operable at the time of the robbery, and that its condition had
deteriorated due to exposure to the elements between September 22 and October 10,
2016.
-15-
{¶ 40} Coleman’s second assignment of error is overruled.
III. Admissibility of the Gun
{¶ 41} In his third assignment of error, Coleman claims that the trial court erred in
allowing the gun and ammunition found on October 10, 2016, to be admitted into
evidence. Coleman asserts that their probative value was substantially outweighed by
the danger of unfair prejudice to him. Coleman further asserts that the State presented
no evidence as to the chain of custody of the weapon.
{¶ 42} Relevant evidence is generally admissible whereas irrelevant evidence is
not. Evid.R. 402. “Relevant evidence” is defined as “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Evid.R. 401.
Relevant evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.
Evid.R. 402; Evid.R. 403(A).
{¶ 43} A trial court has broad discretion to admit or exclude evidence, and its
exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.
State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 14. “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or
arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶
34.
{¶ 44} The trial court could have reasonably concluded that the gun and
ammunition were relevant to whether Coleman had a firearm during the offense. Gold
testified that the robber used a gun, and Gold provided a general description of the
-16-
weapon, including its color, the approximate diameter of the barrel, and the fact that it
was a semi-automatic weapon. No gun was recovered on the day of the robbery, but an
employee of the apartment complex found a gun in the area where Coleman had
attempted to flee from detectives. Gold testified that the gun that was recovered looked
very similar to the gun that was used. Although the State could not definitively account
for the whereabouts of Coleman’s gun between September 22 and October 10, 2016,
there was circumstantial evidence that the gun that was recovered was used by Coleman
during the robbery, which helped corroborate Gold’s testimony that Coleman possessed
a firearm during the robbery.
{¶ 45} Moreover, Coleman has not demonstrated that he was unfairly prejudiced
by the admission of the gun. As stated above, Gold had already described how the
perpetrator threatened him with a gun during the robbery, and Gold described the gun
that was used. The gun that was recovered was not the only evidence that Coleman
used a firearm during the offense.
{¶ 46} At trial, defense counsel argued during closing argument that the gun was
not connected to the robbery. Defense counsel argued that, when Coleman fled from
Detective Statzer, the detective lost sight of Coleman for only a few seconds; the detective
did not see Coleman with a gun, and Coleman did not have a gun when he was arrested.
The officers did not locate a gun on the day of the robbery, and the police canine, which
led deputies to Gold’s drawstring bag, the orange hat, and bluish gloves, did not lead the
officers to the gun. Defense counsel noted that there was no physical evidence
connecting the gun to the robbery, and the gun was in poor condition. The jury was able
to weigh the evidence to determine whether Coleman possessed a firearm during the
-17-
robbery.
{¶ 47} In short, the trial court did not abuse its discretion in allowing the admission
of the gun and ammunition found on October 10, 2016. Coleman’s third assignment of
error is overruled.
IV. Conclusion
{¶ 48} The trial court’s judgment will be affirmed.
.............
WELBAUM, P. J. and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Alice B. Peters
Jeffrey R. McQuiston
Hon. Barbara P. Gorman