[Cite as State v. Woodson, 2012-Ohio-172.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA

 JOURNAL ENTRY AND OPINION 

 No. 96538 

STATE OF OHIO

 

PLAINTIFF-APPELLEE

vs.

LATAVIOUS WOODSON

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-539826 

BEFORE: Kilbane, P.J., Stewart, J., and E. Gallagher, J. 
RELEASED AND JOURNALIZED: January 19, 2012 

ATTORNEY FOR APPELLANT

Robert A. Gaffney 

75 Public Square 

Suite 714 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Vincent I. Pacetti 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, P.J.: 

{¶ 1} Defendant-appellant, Latavious Woodson (Woodson), appeals his 

convictions. Finding no merit to the appeal, we affirm. 

{¶ 2} In August 2010, Woodson was charged in a six-count indictment, 

with each count carrying one- and three-year firearm specifications and a 

notice of prior conviction and repeat violent offender specifications. Counts 1 

and 4 charged him with the kidnapping and aggravated robbery of Joseph 

Clark (Joseph). Counts 2 and 5 charged him with the kidnapping and 

aggravated robbery of Michael Clark (Michael). Counts 3 and 6 charged him 

with the kidnapping and aggravated robbery of Steven Collier (Collier). 

{¶ 3} Prior to the trial, the State dismissed Counts 3 and 6. The trial 

court renumbered the remaining counts as follows: Count 1 remained the 

same, Count 2 remained the same, Count 4 was renumbered to Count 3, and 

Count 5 was renumbered to Count 4. In addition, the notice of prior 

conviction and repeat violent offender specifications were bifurcated and tried 

to the court. 

{¶ 4} The following evidence was adduced at the jury trial. 

{¶ 5} On June 30, 2010, Joseph and his son Michael were working at his 

appliance and furniture store on Miles Avenue in Cleveland, Ohio. Around 

4:45 p.m., Joseph and Michael were setting up items for sale on the sidewalk 
outside of the store. Shortly thereafter, Collier approached Joseph and they 

began discussing a game system that Collier sold to Joseph the day before. 

They walked inside the store, while Joseph carried the game system. 

Michael testified that he was still outside at this point. He noticed a man, 

whom he identified as Woodson, walk past him, only to reappear seconds 

later with a mask covering part of his face. Woodson pointed a black, metal 

gun at Michael and told him that “this isn’t a joke” and to get inside the 

building. Woodson then pointed the gun at Joseph. Woodson was standing 

about seven feet away from Joseph. 

{¶ 6} Joseph testified that Woodson was dressed in all black and wore a 

skull cap as a mask across his nose and face. Joseph further testified that 

the skull cap slipped off Woodson’s nose and that Woodson was fumbling with 

it while pointing the gun at him. Joseph also identified Woodson as the 

assailant. Joseph recognized Woodson because he lives in the neighborhood 

and walks past his store almost everyday. 

{¶ 7} Woodson told Joseph to put his hands up, “[t]his is a robbery.” He 

continued to say, “I’m not joking * * * I’ll kill you.” Woodson then told 

Joseph and Michael to “get down.” Joseph, Michael, and Collier complied 

and laid down on the ground. Woodson then walked over to Joseph and put 

the gun to Joseph’s head, while he emptied Joseph’s pockets. He said, “I’m 

not playing with you. I’ll kill you.” Joseph felt the gun pressed against his 
head. Joseph testified that it felt like “cold steel.” Joseph testified that he 

is familiar with guns because he has previously owned them. He believed 

Woodson was using a real gun and identified it as an automatic 9 millimeter. 

He felt that Woodson was serious about his threats and thought that he was 

going to die. Woodson took Joseph’s wallet and cell phone. 

{¶ 8} Woodson then walked over to Michael, who was lying on the 

ground, and took Michael’s wallet and cell phone. Woodson walked over to 

Collier and swiped his hand across Collier’s pocket. He then fled the scene. 

{¶ 9} Joseph and Michael attempted to chase after Woodson, but could 

not locate him. A neighbor called the police, who arrived a few minutes 

later. The police were not able to find Woodson that day, but instructed 

Joseph to call them if he saw Woodson in the area again. Two weeks later, 

when Joseph was speaking to an officer outside his store, Joseph observed 

Woodson driving his car. Joseph then informed the police officer, who 

conducted a traffic stop and arrested Woodson. The officer returned to 

Joseph’s store with Woodson sitting in the back of his police cruiser. Joseph 

then identified Woodson as the assailant. 

{¶ 10} At the conclusion of trial, the jury found Woodson not guilty of 

Count 1 and guilty of Counts 2, 3, and 4 (kidnapping and aggravated 

robbery), including the one- and three-year firearm specifications. The trial 

court found Woodson guilty of the accompanying notice of prior conviction and 
repeat violent offender specifications on Counts 2-4. The court merged 

Count 2 with Count 4 for purposes of sentencing. The court sentenced 

Woodson to seven years in prison on each of Counts 3 and 4, to be served 

concurrently. The court also merged the one- and three-year firearm 

specifications in Counts 3 and 4 and sentenced him to three years on the 

firearm specifications to run consecutive and prior to Counts 3 and 4 for an 

aggregate of ten years in prison. 

{¶ 11} Woodson now appeals, raising the following two assignments of 

error for review. 

ASSIGNMENT OF ERROR ONE 

“The State did not present sufficient evidence to show that 

the firearm allegedly possessed by [Woodson] was actually 

operable and therefore a deadly weapon. Accordingly, 

his convictions for aggravated robbery in [Counts 3 and 4] 

and for the firearms specifications in [Counts 1-4], are 

against the sufficiency of the evidence and should be 

reversed because they violate the Fifth, Sixth and 

Fourteenth Amendments to the United States 

Constitution, and Article I, Section 10 of the [Ohio State 

Constitution.]” 

ASSIGNMENT OF ERROR TWO 

“The verdict in this case was against the manifest weight 

of the evidence and should be reversed because it violates 

the Fifth, Sixth and Fourteenth Amendments to the United 

States Constitution, and Article I, Section 10 of the [Ohio 

State Constitution.]”
{¶ 12} Within these assigned errors, Woodson argues the State failed to 

present sufficient evidence to demonstrate that the firearm possessed by 

Woodson was actually operable and considered a deadly weapon to sustain 

his convictions for aggravated robbery with the firearm specifications. For 

this same reason, he further argues that his convictions are against the 

manifest weight of the evidence. 

{¶ 13} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 

900 N.E.2d 565, ¶113, explained the standard for sufficiency of the evidence as follows: 

“Raising the question of whether the evidence is legally sufficient to support 

the jury verdict as a matter of law invokes a due process concern. State v. 

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing 

such a challenge, ‘[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph 

two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 

S.Ct. 2781, 61 L.Ed.2d 560.”

{¶ 14} With regard to a manifest weight challenge, the “reviewing court asks whose 

evidence is more persuasive — the state’s or the defendant’s? * * * ‘When a court of appeals 

reverses a judgment of a trial court on the basis that the verdict is against the weight of the 

evidence, the appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s 

resolution of the conflicting testimony.’ [Thompkins at 387], citing Tibbs v. Florida (1982), 

457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.” State v. Wilson, 113 Ohio St.3d 382, 

2007-Ohio-2202, 865 N.E.2d 1264, ¶25. 
{¶ 15} Moreover, an appellate court may not merely substitute its view for that of the 

jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its way and 

created such a manifest miscarriage of justice that the conviction must be reversed and a new 

trial ordered.’” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 485 

N.E.2d 717. Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional 

case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin. 

{¶ 16} In the instant case, Woodson was convicted of aggravated robbery under 

R.C. 2911.01(A)(1), which provides that: “[n]o person, in attempting or 

committing a theft offense, as defined in [R.C. 2913.01], 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[.]” 

{¶ 17} R.C. 2923.11 defines “deadly weapon” and “firearm” as follows: 

“(A) ‘Deadly weapon’ means 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. 

(B)(1) ‘Firearm’ means 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. 
(2) 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 evidence, including, 

but not limited to, the representations and actions of the 

individual exercising control over the firearm.” 

{¶ 18} With respect to the firearm specifications, R.C. 2941.145 provides 

in pertinent part: “(A) [i]mposition of a three-year mandatory prison term 

upon an offender * * * is precluded unless the indictment, count in the 

indictment, or information charging the offense specifies 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 offense.” 

{¶ 19} Woodson asserts that the State did not prove that an operable 

firearm was used during the commission of the robbery. In support of his 

argument, he relies on the fact that the firearm was never recovered, and 

therefore it could not be examined for its operability, and that there was no 

testimony regarding the smell of gun powder or of shots being fired. 

{¶ 20} The Ohio Supreme Court in addressing whether the firearm 

specification in R.C. 2929.71 can be proven beyond a reasonable doubt 

without actually presenting scientific or direct evidence as to the operability 

of the firearm, held that “[t]he state must present evidence beyond a 
reasonable doubt that a firearm was operable at the time of the offense before 

a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A). 

However, such 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. (State v. Gaines [1989], 46 

Ohio St.3d 65, 545 N.E.2d 68, modified.)” 

{¶ 21} State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932, at the 

syllabus. 

{¶ 22} The Ohio Supreme Court later refined the matter by which the 

State may prove a firearm specification in Thompkins, where the court found 

that “[i]n determining whether an individual was in possession of a firearm 

and whether the firearm was operable or capable of being readily rendered 

operable at the time of the offense, the trier of fact may consider all relevant 

facts and circumstances surrounding the crime, which include any implicit 

threat made by the individual in control of the firearm.” Id. at paragraph 

one of the syllabus. 

{¶ 23} Moreover, with respect to operability, in State v. Fulton, 

Cuyahoga App. No. 96156, 2011-Ohio-4259, we recently explained: 

“‘This Court “evaluate[s] the evidence of a firearm’s 

operability by examining the totality of the 

circumstances.” State v. McElrath (1996), 114 Ohio App.3d 

516, 519, 683 N.E.2d 430, citing [Murphy at 208]. 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. Id. 

Specifically, this Court found that “‘the implicit threat of 

brandishing a firearm’ supports an inference that the 

firearm was operable.” State v. Williams (Dec. 27, 2000), 

9th Dist. No. 19559, citing McElrath[, 114 Ohio App.3d] at 

519-520.’” Id. at¶34, quoting State v. Ware, Summit App. 

No. 22919, 2006-Ohio-2693. 

See, also, State v. Gooden, Cuyahoga App. No. 82621, 2004-Ohio-2699, ¶33, 

(where this court upheld defendant’s aggravated robbery with firearm 

specification convictions, finding that the “operability of the weapon may be 

inferred from the facts and circumstances. [In Gooden, the] victim testified 

[the defendant] placed the gun into his side and instructed him to go to the 

back of the building. When the victim’s friends appeared, [the defendant] 

displayed the gun and told them to leave. [The defendant] also pulled out 

the gun and instructed the victim to remove his clothing and proceeded to 

take money therefrom.”) 

{¶ 24} Based on the totality of the circumstances in the instant case, we 

find that the firearm was operable. The victims clearly testified to 

Woodson’s use of a gun. Michael testified that Woodson pointed a black, 

metal gun at him and told him that “this isn’t a joke.” Woodson also pointed 

the gun at Joseph and told him to put his hands up, “[t]his is a robbery.” 

Woodson continued to say, “I’m not joking * * * I’ll kill you.” Woodson then 

told Joseph and Michael to “get down.” Woodson put his gun to Joseph’s 
head, while he emptied Joseph’s pockets. He told Joseph that, “I’m not 

playing with you. I’ll kill you.” Joseph felt the gun pressed against his 

head. He testified that it felt like “cold steel.” He further testified that he is 

familiar with guns because he has previously owned them. He believed 

Woodson was using a real gun and identified it as an automatic 9 millimeter. 

He felt that Woodson’s threats were serious and he thought that he was going 

to die. Woodson then took Joseph’s wallet and cell phone and Michael’s 

wallet and cell phone. Thus, it was reasonable for the trier of fact to 

conclude that Woodson’s words and actions were meant to imply that his gun 

was, in fact, operable. See Gooden at ¶33. 

{¶ 25} Given the evidence, we conclude that any rational trier of fact 

could have found that Woodson possessed a firearm and that the operability 

of the firearm was proven beyond a reasonable doubt. We further find that 

this is not the extraordinary case where the “jury lost its way” and created a 

manifest miscarriage of justice. 

{¶ 26} Accordingly, the first and second assignments of error are 

overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 
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 

conviction having been affirmed, any bail pending appeal is terminated. 

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

Rule 27 of the Rules of Appellate Procedure. 

 

 

MARY EILEEN KILBANE, PRESIDING JUDGE 

MELODY J. STEWART, J., and 

EILEEN A. GALLAGHER, J., CONCUR