State v. Thompkins

, followed; R.C.
        2923.11[B][1] and [2], construed and applied.)
2.      The legal concepts of sufficiency of the evidence and weight of the evidence
        are both quantitatively and qualitatively different.
3.      To reverse a judgment of a trial court on the basis that the judgment is not
        sustained by sufficient evidence, only a concurring majority of a panel of a
        court of appeals reviewing the judgment is necessary. (Section 3[B][3],
        Article IV of the Ohio Constitution, applied; Brittain v. Indus. Comm.
        [1917],

, overruled.)
                              SUPREME COURT OF OHIO




4.        To reverse a judgment of a trial court on the weight of the evidence, when
          the judgment results from a trial by jury, a unanimous concurrence of all
          three judges on the court of appeals panel reviewing the case is required.
          (Section 3[B][3], Article IV of the Ohio Constitution, construed and
          applied.)
     (No. 95-2647—Submitted February 18, 1997—Decided May 14, 1997.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Hamilton County, No.
                                      C-940513.
                                __________________
          {¶ 1} On June 4, 1993, appellee and cross-appellant Booker T. Thompkins
entered the Busken Bakery located at 8442 Vine Street, Cincinnati, Ohio, and asked
the attending clerk, Janice Brinkman, for an employment application. Brinkman
provided an application to Thompkins. When she turned back toward Thompkins
after reaching for an application form, Brinkman noticed that Thompkins had a gun
and that he was pointing it directly at her. Thompkins told Brinkman that he was
committing a “holdup” and to be “quick, quick.”                  Brinkman removed
approximately eight hundred dollars from the cash register. She put the money in
a bag and handed it to Thompkins. Thompkins took the money and he told
Brinkman not to call the police for ten minutes. Thompkins left the bakery. He
then allegedly hijacked a car in the parking lot to facilitate his escape.
          {¶ 2} Subsequently, the police presented Brinkman with a photographic
array containing Thompkins’s picture. Brinkman picked Thompkins’s picture out
of the array, and she positively identified him as the person who had robbed the
bakery.
          {¶ 3} On July 28, 1993, Thompkins was indicted by a Hamilton County
Grand Jury for aggravated robbery (count one) and grand theft (count two). Count
one also included a firearm specification and a prior-conviction specification.
Count two set forth that Thompkins had previously been convicted of an aggravated




                                           2
                                January Term, 1997




robbery charge in 1980 and an aggravated burglary offense in 1976. Additionally,
count two carried a specification that Thompkins had been convicted of an offense
of violence (the 1980 aggravated robbery conviction).
       {¶ 4} Thompkins was tried by a jury. The jury found Thompkins guilty of
the aggravated robbery charge and the firearm specification. The jury also found
Thompkins guilty of the grand theft charge. The trial court sentenced Thompkins
to fifteen to twenty-five years on the aggravated robbery conviction and three to
fifteen years for the grand theft offense. The trial court ordered that the sentences
run concurrently. Thompkins was also sentenced to three additional years of actual
incarceration on the firearm specification.
       {¶ 5} Thompkins appealed to the Court of Appeals for Hamilton County,
setting forth numerous assignments of error. The court of appeals, in a split
decision (Gorman J., dissenting), reversed Thompkins’s firearm conviction, finding
that there was “insufficient evidence in the record to prove operability of the
firearm.” (Emphasis added.) The court of appeals also held, among other things,
that the aggravated robbery offense and grand theft charge were allied offenses of
similar import.   Accordingly, the court of appeals reversed the trial court’s
judgment in part, affirmed it in part, and remanded the cause to the trial court for
purposes of resentencing.
       {¶ 6} The cause is now before this court upon the allowance of a
discretionary appeal and cross-appeal.
                              __________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellant and cross-appellee.
       H. Fred Hoefle, for appellee and cross-appellant.
                              __________________




                                         3
                             SUPREME COURT OF OHIO




       DOUGLAS, J.
       {¶ 7} The state of Ohio has filed an appeal from the judgment of the court
of appeals and Thompkins has filed a cross-appeal. The parties have set forth
various issues for our consideration. However, we limit our review solely to two
important issues. The first issue concerns what type of evidence is sufficient to
prove the operability of a firearm. The second issue involves whether the court of
appeals properly reversed Thompkins’s firearm conviction by a majority vote,
given the language of Section 3(B)(3), Article IV of the Ohio Constitution.
Additionally, the second issue requires a determination of whether the phrase
“weight of the evidence” as used in Section 3(B)(3), Article IV, is equivalent to the
legal concept of “sufficiency of the evidence.”
                                          I
       {¶ 8} The court of appeals, by a majority vote, concluded that the state
failed to prove that the firearm used by Thompkins during the commission of the
robbery was operable. The majority noted that “the alleged firearm was never
recovered. Brinkman did testify that Thompkins, during the course of the robbery,
had in his hand a black gun that appeared to her to be an automatic; that she was
frightened; that Thompkins advised her that it was a ‘holdup’; that while she was
taking the money from the cash register, Thompkins said ‘quick, quick’; that prior
to fleeing from the scene, Thompkins instructed her not to call the police for ten
minutes; and that Thompkins did not expressly threaten to shoot her. In addition,
once outside, an individual matching Thompkins’s physical characteristics
allegedly forced two persons, who did not testify at trial, from their motor vehicle
by brandishing a handgun.”
       {¶ 9} Notwithstanding, the court of appeals’ majority held that such
evidence was insufficient to sustain a conviction because “none of the recognized
indicia of firearm operability was shown to be present in this case, viz., the actual
gun, bullets, the smell of gunpowder, bullet holes, or verbal threats by the robber




                                         4
                               January Term, 1997




that he would shoot the victim. Indeed, other than Brinkman’s testimony that she
saw a gun, little evidence was produced at trial to prove that the alleged gun was
operable.” We disagree.
       {¶ 10} In State v. Murphy (1990),

49 Ohio St.3d 206

551 N.E.2d 932

, we
modified State v. Gaines (1989),

46 Ohio St.3d 65

545 N.E.2d 68

, with respect to
the type of evidence required to prove a firearm specification beyond a reasonable
doubt. Specifically, in Murphy, we held: “The 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.” (Emphasis added.)

 at syllabus.
       {¶ 11} In Murphy, we found that there was sufficient evidence to establish
proof beyond a reasonable doubt that the defendant possessed a firearm and that the
firearm was operable or could readily have been rendered operable at the time of
the offense. The defendant in Murphy entered a United Dairy Farmers store and
announced that he was robbing it. He then took a T-shirt from inside his pants,
unwrapped it, pulled out a gun, and he pointed the gun at the store clerk and a
customer. The defendant waived the gun back and forth while announcing that if
the clerk did not give him the money, he would kill him. The clerk and the customer
described the gun as a one- or two-shot silver or chrome derringer.
       {¶ 12} The situation in Murphy is very similar to what occurred in the case
at bar. The only noteworthy difference between Murphy and what occurred here is
that the defendant in possession of the gun in Murphy explicitly threatened that he
would kill the store attendant. Here, Brinkman did not testify that Thompkins
threatened to shoot her. Rather, the threats made by Thompkins to Brinkman were
of an implicit nature, i.e., Thompkins’s pointing the gun at Brinkman and telling
her that he was committing a “holdup” and to be “quick, quick.”




                                        5
                                  SUPREME COURT OF OHIO




         {¶ 13} However, the fact that Thompkins did not explicitly threaten
Brinkman does not take away from the fact that Brinkman thought her life was in
danger. Even absent any explicit verbal threats on the part of Thompkins, the trier
of fact in this case could have reasonably concluded, based on the totality of the
circumstances, that Thompkins was in possession of a firearm at the time of the
offense, that is, a deadly weapon capable of expelling projectiles by an explosive
or combustible propellant.
         {¶ 14} More recently, in State v. Dixon (1995),

71 Ohio St.3d 608

, we determined the issue of the relevance of explicit versus implicit
threats made by an assailant in this type of case. In Dixon, a jury found the
defendant guilty of aggravated robbery and a firearm specification.1 The defendant
appealed his convictions to the Court of Appeals for Greene County. The court of
appeals reversed the firearm conviction, finding that the state had failed to prove
the specification beyond a reasonable doubt. The state appealed and the court of
appeals certified the following question to this court for our determination: “Where
a defendant brandishes a gun and implicitly but not expressly threatens to use the
gun as a gun, are those implicit threats sufficient to establish the operability of the
gun so that the defendant can be found guilty of a firearm specification?”
(Emphasis added.) We, in effect, answered the question in the affirmative. We



1. The facts in State v. Dixon (1995),

71 Ohio St.3d 608

, as summarized by the
Court of Appeals for Greene County, are as follows:
         “Deborah Tucker was working by herself as a clerk at the Circle K store in Xenia, Ohio, at
about 11:30 p.m. on November 20, 1992. She had begun cleaning up the store in preparation for
closing when a man [the defendant] walked in and asked for a carton of cigarettes. After she rang
up the sale, the man said ‘[y]ou know what I want, open up the drawer, give me everything including
the food stamps.’ The man then hit Tucker on the head with what she described as a gun. She was
subsequently diagnosed as having sustained a concussion from the blow.
         “Tucker opened the drawer and gave the man everything in it. During the course of the
robbery, the man patted the object that Tucker described as a gun, which was tucked in his
waistband, and said ‘I don’t want to have to use this.’ The man then took the money, cigarettes, and
a stuffed gorilla and left the store.” State v. Dixon (Nov. 1, 1993), Greene App. No. 93-CA-18,
unreported.




                                                 6
                                January Term, 1997




reversed the judgment of the court of appeals as to the certified issue only, and
reinstated the judgment of the trial court on the authority of

Murphy, supra.

 Dixon,

71 Ohio St.3d at 609

. Hence, given our holdings in Dixon and

Murphy, supra,

 it should be abundantly clear that where an individual brandishes a
gun and implicitly but not expressly threatens to discharge the firearm at the time
of the offense, the threat can be sufficient to satisfy the state’s burden of proving
that the firearm was operable or capable of being readily rendered operable.
       {¶ 15} Further, firearm is defined in R.C. 2923.11(B)(1) 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 which is inoperable but which can readily be rendered operable.”
R.C. 2923.11(B)(2) provides that “[w]hen 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.” (Emphasis added.)
       {¶ 16} Notably, the General Assembly in R.C. 2923.11(B)(2) set forth that
the trier of fact may rely upon circumstantial evidence in determining whether the
firearm was operable. Moreover, the General Assembly in that subsection did not
qualify the type of “representations” or “actions” that may be considered by the fact
finder. Thus, it is apparent that the General Assembly intended that the state “can
rely upon all of the surrounding facts and circumstances in establishing whether a
firearm was used in the commission of a felony.” Murphy,

49 Ohio St.3d at 208

551 N.E.2d at 934

. In this regard, we agree with the observations of Judge Gorman
in his dissenting opinion in the court of appeals, wherein he cogently noted that,
based upon our decisions in Murphy and

Dixon, supra,

 and State v. Jenks (1991),




                                         7
                                  SUPREME COURT OF OHIO

61 Ohio St.3d 259

574 N.E.2d 492

,2 proof of the operability of a firearm can be
established by circumstantial evidence, which can consist of the brandishing of a
firearm by the defendant and the implicit threat to shoot it. We agree with Judge
Gorman that the evidence in this case “was clearly sufficient for the jury to find
Thompkins guilty of the firearm specification.”
         {¶ 17} Furthermore, if we were to accept the findings of the court of
appeals’ majority in this case, an individual who commits a holdup with a real gun
could possibly avoid a firearm specification conviction simply by not saying
anything and by not discharging the firearm at the time of the offense. In our
judgment, such a result would eviscerate the underlying purposes of the penalty-enhancement provisions of R.C. 2923.11(B)(1) and (2). In Murphy, we noted that
in enacting (former) R.C. 2929.71,3 the General Assembly intended to send a
message to the criminal world: “‘If you use a firearm you will get an extra three
years of incarceration.’”

49 Ohio St.3d at 208

551 N.E.2d at 934

.
         {¶ 18} Therefore, we hold that a firearm penalty-enhancement specification
can be proven beyond a reasonable doubt by circumstantial evidence.                               In
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.



2. In State v. Jenks (1991),

61 Ohio St.3d 259

574 N.E.2d 492

, we held: “Circumstantial evidence
and direct evidence inherently possess the same probative value and therefore should be subjected
to the same standard of proof. When the state relies on circumstantial evidence to prove an essential
element of the offense charged, there is no need for such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction. …”

Id.,

 paragraph one of the
syllabus.

3. R.C. 2929.71 has been repealed, effective July 1, 1996. The firearm enhancement provisions are
now contained in R.C. 2929.14.




                                                 8
                                 January Term, 1997




                                           II
        {¶ 19} Section 3(B)(3), Article IV of the Ohio Constitution provides:
        “A majority of the judges hearing the cause shall be necessary to render a
judgment. Judgments of the courts of appeals are final except as provided in section
2(B)(2) of this article. No judgment resulting from a trial by jury shall be reversed
on the weight of the evidence except by the concurrence of all three judges hearing
the cause.” (Emphasis added.)
        {¶ 20} The state contends that, in reversing Thompkins’s firearm
conviction, the court of appeals’ majority weighed the evidence, and, in doing so,
ignored Section 3(B)(3), Article IV, which prohibits reversal on the weight of the
evidence of judgments resulting from a trial by jury, except by concurrence of all
three appellate judges hearing the case. The state further asserts, relying on Brittain
v. Indus. Comm. (1917),

, that the phrase “weight of
the evidence” as contained in Section 3(B)(3), Article IV, is equivalent to the legal
concept of “sufficiency of the evidence.” Therefore, according to the state,
“whether the claim is styled ‘sufficiency of evidence’ or ‘weight of the evidence,’
Article IV, Section 3 requires a unanimous court of appeals to reverse a jury
verdict.” We disagree.
{¶ 21} To begin, we note that the decision of the majority of the court of
appeals in the case at bar did not rest upon a finding that Thompkins’s firearm
conviction was against the weight of the evidence. Rather, the decision of the
majority was based specifically on a question of law; that is, whether the evidence
was legally insufficient to support the verdict. In fact, the court of appeals’ majority
explicitly held that there “was insufficient evidence in the record to prove
operability of the firearm.” (Emphasis added.) The decision of the majority was
based largely on the fact that during the robbery Thompkins did not verbally
threaten to shoot or kill Brinkman.

9
SUPREME COURT OF OHIO

{¶ 22} The state asserts that sufficiency of the evidence and weight of the
evidence are synonymous legal concepts. They are not. The legal concepts of
sufficiency of the evidence and weight of the evidence are both quantitatively and
qualitatively different.
{¶ 23} With respect to sufficiency of the evidence, “‘sufficiency’ is a term
of art meaning that legal standard which is applied to determine whether the case
may go to the jury or whether the evidence is legally sufficient to support the jury
verdict as a matter of law.” Black’s Law Dictionary (6 Ed.1990) 1433. See, also,
Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court
if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a
test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is
a question of law. State v. Robinson (1955),

162 Ohio St. 486

55 O.O. 388

124 N.E.2d 148

. In addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida (1982),

457 U.S. 31, 45

102 S.Ct. 2211, 2220

72 L.Ed.2d 652, 663

, citing Jackson v. Virginia (1979),

443 U.S. 307

99 S.Ct. 2781

61 L.Ed.2d 560

.
        {¶ 24} Although a court of appeals may determine that a judgment of a trial
court is sustained by sufficient evidence, that court may nevertheless conclude that
the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St.
at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight 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. It indicates clearly to the jury
that the party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in inducing belief.” (Emphasis
added.) Black’s, supra, at 1594.




                                         10
                                January Term, 1997




       {¶ 25} 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. Tibbs,

457 U.S. at 42

102 S.Ct. at 2218

72 L.Ed.2d at 661

.
See, also, State v. Martin (1983),

20 Ohio App.3d 172, 175

, 20 OBR 215, 219,

485 N.E.2d 717, 720-721

 (“The court, reviewing the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether 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. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.”).
       {¶ 26} Specifically, in

Tibbs, supra,

 the United States Supreme Court set
forth a notable distinction between the effect of a reversal based upon insufficient
evidence and one resting upon the weight of the evidence. In Tibbs, the court held
that the Double Jeopardy Clause does not preclude retrial of a defendant if the
reversal was grounded upon a finding that the conviction was against the weight of
the evidence. However, retrial is barred if the reversal was based upon a finding
that the evidence was legally insufficient to support the conviction.

Id.,

457 U.S. at 47

102 S.Ct. at 2221

72 L.Ed.2d at 664-665

. In reaching this conclusion, the
court observed:
       “A verdict of not guilty, whether rendered by the jury or directed by the trial
judge, absolutely shields the defendant from retrial. A reversal based on the
insufficiency of the evidence has the same effect because it means that no rational
factfinder could have voted to convict the defendant.
       “…
       “As we suggested just last Term, these policies do not have the same force
when a judge disagrees with a jury’s resolution of conflicting evidence and




                                         11
                             SUPREME COURT OF OHIO




concludes that a guilty verdict is against the weight of the evidence. … A
reversal on this ground, unlike a reversal based on insufficient evidence, does not
mean that acquittal was the only proper verdict. Instead, the appellate court sits as
a ‘thirteenth juror’ and disagrees with the jury’s resolution of the conflicting
testimony. This difference of opinion no more signifies acquittal than does a
disagreement among the jurors themselves. A deadlocked jury, we consistently
have recognized, does not result in an acquittal barring retrial under the Double
Jeopardy Clause. Similarly, an appellate court’s disagreement with the jurors’
weighing of the evidence does not require the special deference accorded verdicts
of acquittal.
        “A reversal based on the weight of the evidence, moreover, can occur only
after the State both has presented sufficient evidence to support conviction and has
persuaded the jury to convict. The reversal simply affords the defendant a second
opportunity to seek a favorable judgment. An appellate court’s decision to give the
defendant this second chance does not create ‘an unacceptably high risk that the
Government, with its superior resources, [will] wear down [the] defendant’ and
obtain conviction solely through its persistence.” (Emphasis added; citations and
footnotes omitted.)

Id.,

457 U.S. at 41-43

102 S.Ct. at 2218-2219

72 L.Ed.2d at 661-662

.
        {¶ 27} This court has also recognized differences between a reversal
grounded on the weight of the evidence and one based on legally insufficient
evidence. See, e.g., Robinson, supra; In re Disbarment of Lieberman (1955),

163 Ohio St. 35

56 O.O. 23

125 N.E.2d 328

; Brown & Sons v. Honabarger (1960),

171 Ohio St. 247

12 O.O.2d 375

168 N.E.2d 880

; State v. Gilkerson (1965),

1 Ohio St.2d 103

30 O.O.2d 385

205 N.E.2d 13

; and Baxter v. Baxter (1971),

27 Ohio St.2d 168

56 O.O.2d 104

271 N.E.2d 873

.
        {¶ 28} However, our findings today are at odds with the conclusions
reached in Brittain v. Indus. Comm. (1917),

, wherein




                                         12
                                     January Term, 1997




the court construed portions of former Section 6, Article IV of the Ohio
Constitution, which were similar to the current version of Section 3(B)(3), Article
IV.4 The court of appeals in Brittain, in a split decision, had reversed the judgment
of the trial court, finding that the jury verdict was not sustained by sufficient
evidence. On further appeal to this court, the court relied on former Section 6,
Article IV of the Ohio Constitution and reversed the judgment of the court of
appeals. We held that “[a] court of appeals is without authority to reverse a
judgment of an inferior court on the ground that such judgment is not sustained by
sufficient evidence, unless the judgment of reversal is concurred in by all the judges
of the court.” (Emphasis added.)

 at syllabus.
         {¶ 29} Specifically, in Brittain, we said:
         “In view of the fact that the two phrases ‘against the weight of the evidence’
and ‘not sufficient evidence’ have so long been given the same meaning in our
procedure, the framers of the amendment to [former] Section 6, Article IV of the
Constitution, will be presumed to have had that fact in mind and to have intended
that a court of appeals should not have the authority to reverse a judgment of an
inferior court on the ground that it is ‘against the weight of the evidence,’ or that it
is not sustained by ‘sufficient evidence,’ unless the judgment of reversal is
concurred in by all the judges of the court.”

 95 Ohio St. at 398, 115 N.E. at 112.
         {¶ 30} However, we now believe that the court’s holding in Brittain was in
error. As we have repeatedly emphasized in our opinion today, weight of the
evidence and sufficiency of the evidence are clearly different legal concepts.
Further, by its clear and unambiguous terms, former Section 6, Article IV, required


4. Most of the provisions of Section 3, Article IV, were originally contained in former Section 6,
Article IV, and have been transferred to Section 3, Article IV, by the Modern Courts Amendment
in 1968. Former Section 6, Article IV, in effect from January 1, 1913 to January 1, 1945, and at the
time of the court’s decision in Brittain v. Indus. Comm. (1917),