¶1concurring. I concur in the syllabus and judgment but write separately to suggest that it is not necessary to modify State v. Gaines (1989), 46 Ohio St. 3d 65, 545 N.E. 2d 68, because the controlling facts in Gaineswhich produced the majority-opinion are clearly distinguishable from the controlling facts in this case.
¶2In Gaines, the testimony of three nonparty witnesses indicated they saw the defendant use a shiny silver or silver-plated gun. In this case, the victim of the robbery stated that the object held by the defendant when he committed the robbery “looked like a little silver derringer, a little one shot.” A witness to the robbery stated: “To me it looked like a one- or two-shot derringer.”
¶3Furthermore, in Gaines, the defendant apparently uttered no words that could be related to the operability of the purported firearm. In this case, the victim testified that defendant told him to hand over all the money. When the victim hesitated, the defendant said, “I am not kidding, man, I will kill you. Give me all your money.” A customer in the store at the time of the robbery saw defendant point a gun at the clerk and say, “I said this is a robbery, give me your money or I will blow you away.”
¶4The description of the gun used by this defendant is more specific than it was in Gaines. Even more importantly, the statements uttered by defendant while committing the robbery tend to prove what was not proven in Gaines, that the object held by the defendant was indeed capable of “expelling or propelling one or more projectiles” that could harm the victim. The statements by defendant constitute credible evidence relative to the gun’s operability.
¶5When a person, holding what appears to be a gun, makes statements from which it can be reasonably concluded that the gun is operable and therefore a firearm, such evidence is admissible to satisfy the requirements of R.C. 2923.11(B) and 2929.71(A). To the argument that a person holding a toy gun may also make such a threatening statement, I would answer that a person pointing a gun at someone to cause that person to perform an act and uttering words that indicate that the gun can cause harm is not entitled to a conclusion as a matter of law that his words mean nothing. The implication of such words is that the gun is operable and a finder of fact may reasonably conclude that such words tend to prove the gun is indeed operable.
¶6For the foregoing reasons, I would distinguish this case from Gainesand affirm the judgment of the court of appeals.