[Cite as State v. Roscoe, 2013-Ohio-3617.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99113

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ANTHONY ROSCOE

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED FOR RESENTENCING

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-563953 

BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: August 22, 2013 
ATTORNEYS FOR APPELLANT

William J. Day 

9100 South Hills Boulevard 

Suite 300 

Broadview Heights, Ohio 44147 

Michael J. Manuszak 

2905 Paxton Road 

Shaker Heights, Ohio 44120 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Nicole Ellis 

Brent C. Kirvel 

Assistant Prosecuting Attorneys 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, J.: 

{¶1} Defendant-appellant Anthony Roscoe appeals his convictions for rape, 

kidnapping, aggravated robbery, and having a weapon under disability. He argues that 

his convictions are unsupported by sufficient evidence, are against the manifest weight of 

the evidence and that the trial court failed to make necessary findings before imposing 

consecutive sentences. After a thorough review of the record and the law, we vacate 

appellant’s convictions for aggravated robbery under R.C. 2911.01(A)(1), Count 5; 

aggravated robbery under R.C. 2911.01(A)(3), Count 6; having a weapon while under 

disability and all firearm specifications. We enter judgment of conviction on the lesser 

included offense of robbery as defined in R.C. 2911.02(A)(2), under Count 5 of 

aggravated robbery and remand with instructions to resentence Roscoe pursuant to R.C. 

2911.02(A)(2). 

I. Factual and Procedural History

{¶2} In the early morning hours of May 14, 2010, C.B., the victim in this case, was 

driving around Cleveland in a quest to buy drugs. She testified that she was sober for 

almost three years since moving from Columbus to Cleveland but on that night she was 

upset about a fight that she had with her fiancé and she went out drinking with a friend. 

After she left the bar, she wanted to find some crack cocaine. Not knowing where to buy 

it, she drove around looking for people to sell her drugs. She eventually arrived at a gas 

station on Cleveland’s east side and saw three men talking. She approached the men and 
asked if they knew where she could get some crack and where she could smoke it. The 

two men offered to lead her to a location where she could make her purchase. Two of 

the men got into a sedan driven by a third man. Not being familiar with the area, she 

followed in her car until they came to a stop near a house on Hilgert Drive, a short 

distance from the gas station and where they had parked on the street. 

{¶3} C.B. testified that the men with whom she talked at the gas station exited the 

car in which they had traveled and attempted to enter hers. She would not allow them 

into her vehicle but instead exited her car and followed them up a driveway to the side 

door of the house and one of the men rang the doorbell. No one answered after several 

minutes and one of the men then turned around and told her to give him her money and 

jewelry. The second man, whom she later identified as appellant, pressed something 

small, cold and hard against her neck from behind. She assumed it to be a gun and did 

not resist as the man in front of her took her money, credit cards, identification, car keys 

and jewelry. She pleaded with him to give her back her identification because she was 

afraid she would be killed and left unidentified. The man returned her driver’s license to 

her and she also pleaded for them not to take her truck. The man who had been in front 

of her told her that he would leave her keys at the end of the driveway. While that man 

walked away, the man behind her began pulling her toward the backyard of the house, 

still pressing the object to her neck. As the two entered a darkened section of the 

backyard, she heard her truck drive away. She was then raped vaginally, anally and 

orally in the muddy yard. She was afraid she would be murdered, so when appellant 
ejaculated into her mouth, she spit the fluid onto her shirt in hopes that DNA evidence 

could be used to identify her attacker. 

{¶4} Appellant left her in the yard where she lay and she ultimately rose and 

stumbled toward light, which was being shined at the driveway. 

{¶5} Officer Neil Presta testified that he received instructions to investigate a call 

of two people in a backyard of a home on Hilgert Drive. He began driving on Hilgert, 

directing the spotlight on his patrol car into the shadows along the street and saw a 

woman emerge from the darkness between 10003 and 10007 Hilgert. He said she looked 

distraught and was sobbing hysterically. He approached her and she reported to him that 

she had been raped. 

{¶6} Emergency services transported C.B. to Marymount Hospital where she was 

examined by a nurse with specialized sexual assault training. Several biological samples 

were collected and the police forwarded these samples to an independent lab, which was 

under contract with the state for DNA testing. 

{¶7} In August 2011, Detective Robert Ford of the Cleveland Police Department 

received a report of a match to the suspect DNA profile from the national DNA database, 

CODIS. The suspect DNA profile was matched to that of appellant. 

{¶8} Detective Ford arranged a photo array with a blind administrator for C.B. 

She picked appellant out of the six-photo lineup as the person who had robbed and 

sexually assaulted her on the night of May 14, 2010. 
{¶9} Appellant was indicted on June 27, 2012, on one count of kidnapping with a 

sexual motivation specification, three counts of rape, two counts of aggravated robbery 

and one count of having a weapon while under disability. These charges, except for the 

weapons under disability count, carried one- and three-year firearm specifications. A 

bench trial commenced on October 1, 2012. 

{¶10} After C.B. and several police and Bureau of Criminal Investigation 

witnesses testified, appellant testified in his own defense. He claimed he saw C.B. as he 

waited at a bus stop near a gas station at approximately 2:00 a.m. He said she looked 

distraught. According to him, she related that she had a fight with her boyfriend and that 

she wanted to get back at him by having sex with another man. He offered to oblige this 

desire. He attempted to get into her car but she refused to allow him to enter the vehicle. 

 Appellant testified that he gave her directions to a place on Hilgert, that she drove there, 

parked on the street and waited for him to arrive on foot. Once on Hilgert, he led her 

into the backyard of a random home and the two engaged in consensual oral sex. 

Appellant left when he saw lights shining into the backyard because he was afraid it was 

the police and he had an outstanding warrant for his arrest. Appellant claimed he did not 

have a gun and that the sex was consensual. 

{¶11} The trial court found appellant guilty of all charges: kidnapping with oneand three-year firearm specifications and a sexual motivation specification; three counts 

of rape with one- and three-year firearm specifications; two counts of aggravated robbery 
with one- and three-year firearm specifications and having a weapon while under 

disability. 

{¶12} At the sentencing hearing, the trial court heard statements from the state, the 

victim’s representative, appellant, his attorney and appellant’s family. After consulting 

with the state, the court merged the charges of kidnaping (Count 1), rape (Count 2) and 

aggravated robbery (Count 5) and also merged the firearm specifications for the three 

counts of rape (Counts 2, 3 and 4) and the two counts of aggravated robbery (Counts 5 

and 6). The court then sentenced Roscoe to eight years in prison for each of the three 

counts of rape to run concurrently to each other; five years in prison for each charge of 

aggravated robbery to run concurrently to each other and twelve months in prison for the 

weapons while under disability charge to run concurrent with the other counts. The court 

ordered the sentences for the firearm specifications under Counts 2, 3 and 4 to be served 

consecutively to the firearm specifications for Counts 5 and 6 and that the eight-year 

sentence for the three counts of rape was to be served consecutively to the five-year term 

of imprisonment on the charges of aggravated robbery for a total prison term of 19 years. 

The court initially neglected to properly inform appellant of postrelease control, but 

remedied the advisement in open court days later. 

{¶13} Appellant now appeals, assigning five errors for review: 

I. The trial court erred in not granting Appellant’s Rule 29 Motion for 

Acquittal and in finding Appellant guilty on all counts on the grounds that 

evidence submitted by the State is insufficient for a conviction. 

II. The trial court erred finding Appellant guilty on all counts on the 

ground that the evidence is insufficient for a conviction. 
III. The trial court erred in not granting Appellant’s Rule 29 Motion for 

Acquittal and in finding Appellant guilty on all counts on the ground said 

court’s decision is against the manifest weight of the evidence. 

IV. The trial court erred finding Appellant guilty on all counts on the 

ground that a conviction is against the manifest weight of the evidence. 

V. The trial court erred in not complying with the three-step analysis under 

O.R.C. 2929.14(C)(4) when consecutive sentences imposed were an 

integral part of Appellant’s sentence, and further, a consecutive sentence 

was not appropriate and an abuse of discretion given the facts and 

circumstances in this matter. 

II. Law and Analysis 

Sufficiency of the Evidence

{¶14} In appellant’s first two assignments of error, he argues that his convictions 

for rape, aggravated robbery and having a weapon while under disability are unsupported 

by sufficient evidence in the record. He also argues that there was insufficient evidence 

that a gun was used during the commission of these crimes and that the gun specifications 

cannot stand. 

{¶15} This court has set forth a concise statement of its role when reviewing 

whether a conviction is supported by sufficient evidence: 

An appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to 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. Boyce, 8th Dist. Cuyahoga No. 93543, 2010-Ohio-3870, ¶ 13, citing State v. 

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. 

Rape

{¶16} R.C. 2907.02(A)(2), rape, prohibits one from engaging “in sexual conduct 

with another when the offender purposely compels the other person to submit by force or 

threat of force.” Appellant’s three rape convictions are supported by sufficient evidence. 

{¶17} At trial, C.B. testified she was first raped vaginally but appellant was 

interrupted when he thought he heard someone nearby. He was about to hop over the 

fence but returned and raped her anally. Finally, appellant forced C.B. to engage in oral 

sex and he ejaculated into her mouth. C.B. not only identified appellant in a photo array 

but also made an in-court identification of him as the perpetrator. Appellant points to the 

fact that no semen was found in C.B.’s vaginal or anal cavities during her examination by 

the Marymount Hospital sexual assault nurse examiner (“SANE”), Melissa Tichy. 

However, C.B. testified that appellant used a condom for all but the oral sex. The SANE 

nurse did find semen in C.B.’s underwear, for which appellant could not be excluded as 

the donor.1

 This is sufficient evidence to support three convictions for rape. 

Aggravated Robbery and Serious Physical Harm

 1 This sample was a mixture of DNA, and the expert witness could only 

testify that appellant’s DNA sample was consistent with the sample obtained from 

the underwear. The other samples tested indicated that appellant was the DNA 

contributor to a high degree of statistical certainty. 
{¶18} Appellant was convicted of two counts of aggravated robbery, one under 

R.C. 2911.01(A)(1) and one under R.C. 2911.01(A)(3). This statute provides in part: 

No person, in attempting or committing a theft 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; 

* * * 

(3) Inflict, or attempt to inflict, serious physical harm on another. 

{¶19} In support of these charges, the state presented the testimony of C.B. She 

testified that two men led her to what she described as a condemned house. Once there, 

one man demanded her property while appellant held what she perceived to be a gun to 

the back of her neck. She parted with her property while pleading for her life and crying. 

 There is sufficient evidence that C.B. was robbed by these two men. However, there is 

no evidence that appellant inflicted or attempted to inflict serious physical harm during 

the robbery, as required for a conviction under R.C. 2911.01(A)(3) as charged in Count 6. 

{¶20} Serious physical harm is defined in the Revised Code as: 

(a) Any mental illness or condition of such gravity as would 

normally require hospitalization or prolonged psychiatric 

treatment; 

(b) Any physical harm that carries a substantial risk of death; 

(c) Any physical harm that involves some permanent incapacity, whether 

partial or total, or that involves some temporary, substantial incapacity; 

(d) Any physical harm that involves some permanent disfigurement or that 

involves some temporary, serious disfigurement; 
(e) Any physical harm that involves acute pain of such duration as to result 

in substantial suffering or that involves any degree of prolonged or 

intractable pain. 

{¶21} Appellant did inflict serious physical harm when he raped C.B., but not 

while she was being robbed. The Ninth District reached a similar conclusion when 

dealing with a rape and burglary in Akron, Ohio. State v. Butts, 9th Dist. Summit No. 

24517, 2009-Ohio-6430. In that case, a male broke into the room of a female University 

of Akron student. She awoke to find a male in her room standing by her computer. He 

sexually assaulted her and left. She discovered that he had taken $60 from her wallet 

after the police found it on her bedroom floor rather than on the dresser where it had been 

left. Butts was convicted of, among other things, aggravated robbery under R.C. 

2911.01(A)(3). His aggravated robbery conviction was reversed on appeal. Id. at ¶ 10. 

The appellate court found that while Butts did inflict serious physical harm when he held 

a pillow over the victim’s face to cease her screams for help, that did not occur during the 

robbery. He had already taken the money before she awoke. There was no evidence that 

Butts inflicted or attempted to inflict serious physical harm at the time he committed the 

theft offense. Id. at ¶ 10. 

{¶22} This contrasts with the facts in another Ninth District case where the 

robbery and rape occurred contemporaneously. State v. Malone, 15 Ohio App.3d 123, 

472 N.E.2d 1122 (9th Dist.1984). There, two young victims were taken behind a garage 

by four men. Id. at 123-124. Malone was convicted of rape and aggravated robbery 
under R.C. 2911.01(A)(3). He argued there was insufficient evidence of serious physical 

harm during the robbery. The Malone court found, 

The chronology of events indicates that Malone forcibly carried the victim 

to an area hidden from view. He first demanded money from the victim and 

then raped her twice. Malone argues that the facts should not be considered 

together, but rather separately so that the rapes stand apart from the robbery. 

Malone chose the offenses along with when and how he would commit 

them. His complaint, therefore, that he completed the robbery and then 

proceeded to commit the rapes is without moment. Malone created the 

criminal environment which so intertwined the commission of the rapes 

with the robbery that one offense did not neatly end before the second 

began. 

Id. at 125. 

{¶23} In the present case, the theft offenses were completed when the second man 

departed. The theft offenses were committed when the accomplice took C.B.’s property. 

 It was after the completion of the theft offense and the departure of the other individual 

that C.B. was led into the backyard and raped. These events are not so 

contemporaneously intertwined that they cannot be separated as in Malone. 

{¶24} Therefore, there is insufficient evidence that appellant inflicted or 

attempted to inflict serious physical harm to C.B. during the commission of the robbery. 

Appellant’s conviction under R.C. 2911.01(A)(3) must be reversed. 

Aggravated Robbery, Weapon Under Disability 

and Firearm Specifications

{¶25} Appellant’s convictions included having a weapon while under disability. 

R.C. 2923.13(A)(2) states in pertinent part: 

No person shall knowingly acquire, have, carry, or use any firearm or 

dangerous ordnance, if any of the following apply: 
* * * 

(2) The person is under indictment for or has been convicted of any felony 

offense of violence * * *. 

{¶26} Appellant was also convicted of two three-year firearm specifications under 

R.C. 2941.145, which imposes an additional three-year prison term when “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 offense.” 

{¶27} As evidence of a prior conviction necessary for R.C. 2923.13, the state 

introduced a certified journal entry of appellant’s 2005 conviction for attempted burglary 

and appellant does not claim that this is insufficient for a disability under this statute. 

The main thrust of appellant’s argument is that he did not, in fact, possess a firearm 

during the commission of these crimes. 

{¶28} Further, appellant’s aggravated robbery conviction under R.C. 

2911.01(A)(1) requires evidence that he used or possessed a deadly weapon while 

committing a theft offense. Therefore, all three of these convictions hinge on evidence 

that appellant possessed a firearm. 

{¶29} A firearm is defined as “any deadly weapon capable of expelling or 

propelling one or more projectiles by the action of an explosive or combustible 

propellant. ‘Firearm’ includes an unloaded firearm, and any firearm that is inoperable but 

that can readily be rendered operable.” R.C. 2923.11(B)(1). Further, when determining 

whether a firearm is operable “the trier of fact may rely upon circumstantial evidence, 
including, but not limited to, the representations and actions of the individual exercising 

control over the firearm.” R.C. 2923.11(B)(2). See also State v. Knight, 2d Dist. 

Greene No. 2003 CA 14, 2004-Ohio-1941, ¶ 19 (“both a weapon’s existence and its 

operability may be inferred from the facts and circumstances”). 

According to the Ohio Supreme Court, a firearm specification can be 

proven beyond a reasonable doubt by circumstantial evidence. That 

evidence may consist of the testimony of lay witnesses who were in a 

position to observe the instrument and the circumstances of the crime. 

Furthermore, in [State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 

N.E.2d 541] the Ohio Supreme Court rejected the view that the 

circumstantial proof of operability must consist of certain recognized 

indicia, such as bullets, the smell of gunpowder, bullet holes, or verbal 

threats by the user of the weapon that he or she would shoot the victim. 

 

(Citations omitted.) State v. Nicholson, 8th Dist. Cuyahoga No. 85977, 2006-Ohio-1569, 

¶ 27-28. 

{¶30} There exists a litany of Ohio cases that address the proof required to 

establish a firearm specification. To establish a firearm specification, the state is 

required to prove that the offender possessed a weapon that was capable of firing a 

projectile by means of an explosive or combustible propellant and was operable or could 

readily have been rendered operable at the time of the offense. State v. Roberts, 1st Dist. 

Hamilton No. C-940509, 1995 Ohio App. LEXIS 1778 (May 3, 1995). R.C. 2923.11 

provides, however, that in determining whether a weapon is capable of expelling a 

projectile, the trier of fact may rely upon circumstantial evidence including, but not 

limited to, the representations and actions of the individual exercising control over the 

weapon. 
{¶31} The body of cases on this issue hold that either the assailant was in 

possession of a firearm and made statements of his ability, or intent, to use it to cause 

physical harm or that the offender intimated that (s)he possessed it, without brandishing it 

and contemporaneously made statements of his/her ability to cause harm with a firearm. 

See State v. Jeffers, 143 Ohio App.3d 91, 757 N.E.2d 417 (1st Dist.2001), Jeffers 

threatened to “blow [Atkinsons’] head off” if she refused to give him money while 

indicating he possessed a firearm by the manner in which he concealed his hand in his 

pocket; Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, Thompkins 

pointed a gun at the victim and told her he was committing a “holdup” and to be “quick, 

quick”; State v. Dixon, 71 Ohio St.3d 608, 1995-Ohio-178, 646 N.E.2d 453, during the 

course of a robbery, Dixon patted an object tucked into his waistband that the victim 

described as a gun and stated “I don't want to have to use this.” In State v. Haskins, 6th 

Dist. Erie No. E-01-016, 2003-Ohio-70, a conviction was upheld where, although no gun 

was displayed or found, Haskins stated “are you going to give me the money or do I have 

to pull this pistol out of my pocket?” 

{¶32} In this case, we have a victim who never saw a firearm during the 

commission of the crimes perpetrated against her nor do we have any evidence that 

Roscoe made any statements to suggest that he was in a position to harm her with a 

handgun as required in State v. Murphy, 49 Ohio St.3d 206, 551 N.E.2d 932 (1990). In 

Murphy, although the handgun used during the commission of the crime was never 

recovered, Murphy made statements to the victim, while brandishing the weapon, that he 
would kill her. The Ohio Supreme Court held then, with respect to operability of the 

gun, “proof can be established beyond a reasonable doubt by the testimony of lay 

witnesses who were in a position to observe the instrument and the circumstances 

surrounding the crime.” Id. at 209. 

{¶33} State v. Knight, 2d Dist. Greene No. 2003-CA-14 2004-Ohio-1941, is a 

more tenuous case. The Second District upheld a conviction where the defendant, during 

a store robbery, demanded that a clerk open the cash register. Although the defendant 

did not display, brandish, use or overtly threaten the clerk, she complied with his demand 

because she thought the defendant’s right hand “looked like he had a small gun in his 

pocket.” 

{¶34} In State v. Watkins, 8th Dist. Cuyahoga No. 84288, 2004-Ohio-6908, this 

court, relying on Knight, held that a defendant’s actions and statements may create 

enough circumstantial evidence to support a firearm conviction even though the victim 

only believes the defendant has a gun. In Watkins, the defendant approached the victim 

and stuck an object in his side and said, “you know, what it is.” From these actions, the 

victim believed the defendant had a gun and put his hands in the air. The majority 

acknowledged in a footnote that the phrase “you know, what it is,” although ambiguous, 

could be understood as the defendant identifying the object at the victim's side. 

{¶35} We find the instant case easily distinguishable from the aforementioned 

cases and analogous to the facts in State v. Evans, 8th Dist. Cuyahoga No. 85396, 

2005-Ohio-3847. In Evans, the victim testified that the defendant approached her with 
his hand in his pocket and she believed he had a gun. With his hand still in his pocket, 

he grabbed her purse and said, “come with me.” Based on her belief that he had a gun, 

she followed him into the apartment building. The Evans court found the absence of any 

evidence that the defendant “threatened the victim with a gun, that the victim felt an 

object or saw a shape which could be construed as a gun, that [the defendant] had a gun in 

his possession, or that a gun was used in the commission of the crime.” The court 

concluded that the victim’s belief that the defendant had a gun in his pocket simply 

because he kept his hand in his pocket, without more, was not enough circumstantial 

evidence to support the defendant’s conviction. This court concluded that the state did 

not satisfy its burden that a gun was in existence or operable at the time of the offense. 

{¶36} In this case, we have the testimony of the victim that Roscoe placed a 

small, cold, hard object to her neck. Although the victim testified that she believed the 

object was a gun, the state provided no other evidence, as required, that this object was, in 

fact, a gun. Roscoe never threatened to shoot the victim and the victim never identified 

the object pressed against her neck as a gun. The victim’s description of the object as 

small, cold and hard could be used to describe countless objects. It is this court’s 

conclusion that this belief, without more, does not create sufficient circumstantial 

evidence to support Roscoe’s conviction. 

{¶37} We find that the state did not satisfy its burden that a gun was in existence 

or operable at the time of the offense. Therefore, we vacate Roscoe’s convictions and 

sentence for all firearm specifications as well as his conviction and sentence for having a 
weapon while under disability and aggravated robbery as defined in R.C. 2911.01(A)(1) 

and charged in Count 5 of the indictment. 

{¶38} However, this court finds sufficient evidence to convict Roscoe on the 

charge of robbery as defined in R.C. 2911.01(A)(2), a lesser included offense of 

aggravated robbery as defined in R.C. 2911.01(A)(1). 

{¶39} In State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, 

the Ohio Supreme Court held as follows: 

R.C. 2945.74 provides that a criminal defendant may be found guilty of a 

lesser included offense even though the lesser offense was not separately 

charged in the indictment. Lesser included offenses need not be separately 

charged in an indictment, because when an indictment charges a greater 

offense, it ‘necessarily and simultaneously charges the defendant with lesser 

included offenses as well.’ Thus, a conviction for a lesser included offense 

does not deprive an offender of his constitutional right to presentment or 

indictment by the grand jury, because by indicting the offender for the 

greater offense, the jury has necessarily considered each of the essential 

elements of the lesser offense. (Citations omitted). 

{¶40} In Evans, the Ohio Supreme Court determined that robbery, as defined in 

R.C. 2911.02(A)(2), is a lesser included offense of aggravated robbery, as defined in R.C. 

2911.01(A)(1). Pursuant to R.C. 2911.02(A)(2), robbery is defined as follows, “[n]o 

person, in attempting or committing a theft offense or in fleeing immediately after the 

attempt or offense, shall *** [i]nflict, attempt to inflict, or threaten to inflict physical 

harm on another * * *.” 

{¶41} In the present case, there is sufficient evidence to support a conviction on 

the charge of robbery as defined above. C.B. testified that the two men led her to a 
condemned house and once there, demanded her property while Roscoe held what C.B. 

perceived to be a gun to the back of her neck. C.B. parted with her property. 

{¶42} Further, there was evidence of physical harm that could have been inflicted 

during the robbery. There were scratches on C.B.’s neck, which she testified were 

caused by the object held to her neck. This court acknowledges that it is unclear when 

these scratches were inflicted — during the rape or the robbery and concludes that even if 

the scratches were not inflicted during the robbery, Roscoe’s act in holding an object to 

the back of C.B.’s neck in order to coerce her of her property is sufficient evidence of a 

threat to inflict physical harm. 

{¶43} Thus, there is sufficient evidence to convict Roscoe of the lesser included 

offense of robbery, R.C. 2911.02(A)(2). This court enters judgement against Roscoe for 

robbery, R.C. 2911.02(A)(2), and remands the case to the trial court with instructions to 

resentence Roscoe pursuant to R.C. 2911.02(A)(2). See App.R. 12(B); State v. Waszily, 

105 Ohio App.3d 510, 664 N.E.2d 600 (8th Dist.1995) (Nugent, J., dissenting). 

B. Manifest Weight

{¶44} In appellant’s third and fourth assignments of error, he claims his 

convictions are against the manifest weight of the evidence. Because we determined that 

Roscoe’s convictions for both counts of aggravated robbery, having a weapon while 

under disability and all firearm specifications were not supported by sufficient evidence, 

we limit this assigned error to Roscoe’s convictions for kidnapping and rape. 
{¶45} A manifest weight challenge raises a question of fact challenging “whether 

the prosecution met its burden of persuasion.” State v. Ponce, 8th Dist. Cuyahoga No. 

91329, 2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 

1356 (1982). In reviewing the entire record, the court must 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 

ordered. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. 

{¶46} Appellant’s manifest weight claims rest on his trial testimony, which 

contradicted that of C.B.’s, and her intoxication at the time of the incident. He testified 

that he and C.B. engaged in consensual oral sex. It is helpful to compare and contrast the 

two versions of events testified to at trial. 

{¶47} According to C.B., she was inebriated and decided to drive to an unfamiliar 

area to buy drugs after she left a bar at about 1:30 a.m. She testified that she drove 

around until she found a neighborhood that looked like one where she would be able to 

find someone from whom she could buy drugs. She ended up at a gas station on 

Cleveland’s southeast side but testified that she could not remember the name of the gas 

station or its precise location. She pulled in and saw a man she considered too 

off-putting to approach. She then went to a different gas station and relieved herself 

behind the building. She drove back to the first gas station and, at that time, there were 

two more men standing near the first man whom she saw earlier. She approached the 
men and asked them if they knew where she could buy some crack. One of the men, a 

shorter, light-skinned individual, did most of the talking while the other man, later 

identified as appellant, remained quiet. C.B. agreed to go with the men to a nearby house 

where she could buy and smoke crack. The two men got into a dark sedan already 

occupied by a third male who drove the car. She followed the car to a house on Hilgert 

where she was robbed and raped. 

{¶48} Appellant testified that he was seated at a bus stop around 2:00 a.m. when 

he saw a man talking to a female in a Ford Explorer. After the man walked away, 

appellant asked him about the female. He was told to see for himself, and he approached 

her car to talk. Appellant testified C.B. was upset with her boyfriend and wanted to get 

back at him by sleeping with another male. Appellant agreed to engage in sex with C.B. 

He attempted to get into C.B.’s car, but she refused him entry. He testified he gave C.B. 

directions to a place on Hilgert and she drove there while he walked to that location. He 

claimed he got there about three to four minutes later to find C.B. parked on the street. 

He took her into a nearby backyard where the two engaged in consensual oral sex. 

Appellant then left when he saw someone shining a bright light into the backyard. He 

testified he thought it was the police and then ran off. 

{¶49} Those bright lights were the police. Cleveland police officer Neil Presta 

testified that he responded to a call about people in a backyard. He arrived to find C.B. 

stumbling from a yard crying hysterically, muddy, and shaking badly. C.B. told him she 
was raped. Appellant also admitted that C.B. had a number of items of jewelry on during 

this encounter, but she had no jewelry when she was taken to Marymount Hospital. 

{¶50} The trial court found that appellant’s story — that he walked to the location 

of the rape after giving C.B. directions to an area with which she was completely 

unfamiliar — did not make any sense. The court found C.B.’s testimony both consistent 

and credible and appellant’s version of events incredible. This court reaches the same 

conclusion. 

{¶51} The trial court did not lose its way in convicting appellant of rape and 

kidnapping. 

C. Findings Necessary for Consecutive Sentences
{¶52} Finally, appellant argues the trial court failed to make the necessary findings 

justifying consecutive sentences. Our analysis of Roscoe’s first and second assignments 

of error render this final assignment of error moot. The trial court merged the charge of 

kidnapping with the first count of rape and sentenced Roscoe to eight years on each of the 

three counts of rape, to be served concurrently. However, this court, as noted above, is 

remanding this case to the trial court with instructions to resentencing Roscoe pursuant to 

R.C. 2911.02(A)(2). 

III. Conclusion

{¶53} Appellant’s convictions for aggravated robbery under both R.C. 

2911.01(A)(1) and 2911.01(A)(3), his conviction for having a weapon while under 

disability under R.C. 2923.13(A)(2) as well as his convictions for all the indicted firearm 

specifications are not supported by the record. However, this court enters judgment 

against Roscoe for robbery, R.C. 2911.02(A)(2). Appellant’s remaining convictions are 

not against the manifest weight of the evidence. Finally, our analysis above renders 

moot Roscoe’s argument concerning consecutive sentencing. This case, however, is 

remanded to the trial court with instructions to resentence Roscoe pursuant to R.C. 

2911.02(A)(2). 

{¶54} Affirmed in part and reversed in part. 

It is ordered that appellant and appellee share 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 common 

pleas court to carry this judgment into execution. The defendant’s convictions having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

EILEEN A. GALLAGHER, JUDGE 

MARY EILEEN KILBANE, J., CONCURS; 

FRANK D. CELEBREZZE, JR., P.J., CONCURRING 

IN PART AND DISSENTING IN PART WITH 

SEPARATE OPINION ATTACHED 

FRANK D. CELEBREZZE, JR., P.J., CONCURRING IN PART AND DISSENTING IN 

PART: 

{¶55} I agree with the majority’s disposition of appellant’s alleged errors regarding 

his rape convictions. I also agree with the majority’s holding that sufficient evidence of 

physical harm does not exist to sustain a conviction for aggravated robbery on Count 6. 

However, I would treat it the same as the majority does the aggravated robbery conviction 

in Count 5 and find appellant guilty of the lesser-included offense of robbery. However, 

I must dissent from the majority’s decision on Count 5 and the other convictions and 

specifications involving the use of a firearm. In my view, the state offered sufficient 

evidence that appellant possessed a firearm during the course of these crimes. 
{¶56} Here, the fact that appellant possessed a firearm can be inferred from C.B.’s 

testimony. She testified appellant pressed a small, cold, hard object to her neck 

contemporaneously with a demand by an accomplice to relinquish her property. She 

testified that appellant pressed the object to her neck, and the other man said, “give me 

[your] money.” Although appellant did not say anything to indicate he had a gun, the 

co-conspirator’s demand for C.B.’s money that occurred contemporaneously with 

appellant’s action of pressing an object to her neck demonstrate that the actions of the two 

men created the belief in the victim that appellant possessed a gun. C.B. felt the object 

against her skin, and she believed the object was a gun. The two men used the object to 

induce a fear in C.B. that she would be killed if she did not surrender her property. 

Therefore, the fact that the object was a gun can be inferred from the surrounding 

circumstances — C.B.’s belief and appellant’s use of the object. 

{¶57} In a similar case where a rape victim never actually saw a firearm used 

during the commission of the crime, the Second District determined that circumstantial 

evidence, including “a victim’s belief that the weapon is a gun, together with the intent on 

the part of the accused to create and use that belief for his own criminal purposes, is 

sufficient to prove a firearm specification.” State v. Greathouse, 2d Dist. Montgomery 

No. 21536, 2007-Ohio-2136, ¶ 19. There, a victim was car jacked and kidnapped. The 

assailant threatened to shoot and kill the victim as he drove around in her car and 

eventually raped her. The victim never saw a firearm, but the assailant was convicted of 

aggravated robbery and a firearm specification at trial, and the Second District affirmed. 
Id. The Second District relied on the same evidence of inducing a belief that the 

assailant possessed a firearm to affirm an aggravated robbery conviction under R.C. 

2911.01(A)(1). Id. at ¶ 23. 

{¶58} This court also came to the same conclusion when faced with only testimony 

as to an object’s use as a firearm. State v. Fulton, 8th Dist. Cuyahoga No. 96156, 

2011-Ohio-4259. There, this court found sufficient evidence to support a firearm 

specification where 

Gill [a victim] testified that [an accomplice] put what she believed to be a 

gun to her back; it was hard, blunt, and burned her back when he pressed it 

into her. Gill and Buck [another victim] testified that [the accomplice] said 

to Buck, “if you don’t get out of your truck right now, I’m going to shoot 

her.” Buck also testified that although he never actually saw the gun, he 

saw what looked like the tip of a gun in [the accomplice’s] hand, under his 

sleeve. 

{¶59} This case is also similar to another involving armed robbery, where this 

court upheld a firearm specification where the victim never saw the firearm used. State 

v. Watkins, 8th Dist. Cuyahoga No. 84288, 2004-Ohio-6908. There, Watkins pressed an 

object into the victim’s back while stating, “you know, what it is.” This court 

determined that the jury could reasonably determine that the phrase indicated what was 

being pressed into the victim’s back and that Watkins was attempting to rob the victim. 

“[Watkins’s] actions and statements implied that the object in the victim’s side was a gun 

and that it would be used if the victim did not cooperate.” Id. at ¶ 23. This is precisely 

the situation in the present case. 
{¶60} Here, the statement indicating that appellant possessed a firearm did not 

come from appellant, but from his co-conspirator, who stated, “give me [your] money” as 

appellant pressed an object to the victim’s neck, which she testified she believed was a 

gun. This distinction should not lead to a different result. Courts have no problem 

attributing actions of co-conspirators between the conspiring parties in other contexts, but 

the majority does not do so here. There is no logic to this distinction. Under the 

majority’s view, as long as two people commit armed robbery where one presses an 

unseen gun into the victim’s back and the other demands property, an aggravated robbery 

conviction will not result. This is not the law. In fact, it makes little sense where 

accomplices may be convicted of aggravated robbery where they do nothing. See State v. 

Minter, 12th Dist. Butler No. CA2009-06-150, 2010-Ohio-594, ¶ 15, fn. 1 (“a defendant 

may be convicted of an offense, which includes a firearm specification, where his 

codefendant or uncharged accomplice utilized a firearm in the commission of the offense 

and the defendant is found to have acted as an accomplice”). 

{¶61} Further, the case the majority feels is most similar, State v. Evans, 8th Dist. 

Cuyahoga No. 85396, 2005-Ohio-3847, specifically lists as appropriate evidence whether 

“the victim felt an object or saw a shape which could be construed as a gun * * *.” 

(Emphasis added.) Id. at ¶ 54. In that case, there was no evidence that the defendant 

possessed a firearm other than the victim’s testimony that the defendant had his hand in 

his pocket. That is hardly similar to the present case. 
{¶62} Here, the victim felt an object pressed directly against her skin. She did not 

feel it through layers of clothing, as in Watkins. She felt it, and she perceived it as a gun. 

 It brought about sobbing appeals for mercy during which she pled with appellant and his 

accomplice not to kill her. She even asked that her driver’s license be returned to her 

because she was afraid she would be killed and left unidentified. Appellant’s actions and 

those of his accomplice created the reasonable belief in C.B. that appellant possessed a 

gun. 

{¶63} This court must “evaluate the evidence of a firearm’s operability by 

examining the totality of the circumstances.” State v. McElrath, 114 Ohio App.3d 516, 

519, 683 N.E.2d 430 (9th Dist.1996), citing State v. Murphy, 49 Ohio St.3d 206, 208, 551 

N.E.2d 932 (1990). “In McElrath, this Court found that in cases where no shots are fired 

and the firearm is not recovered, circumstantial evidence, such as the representations and 

actions of the gun operator, are of crucial importance.” Fulton, 8th Dist. Cuyahoga No. 

96156, 2011-Ohio-4259, at ¶ 30. Viewing the totality of the circumstances and imputing 

the statements made by the accomplice to appellant, sufficient evidence that appellant 

possessed a firearm exists in this record. 

{¶64} Accordingly, I would affirm appellant’s aggravated robbery conviction in 

Count 5, all the gun specifications, and the conviction for having a weapon while under 

disability.