Enhanced Penalty Pursuant to R.C. 2929.71(A)
In State v. Murphy (1990), 49 Ohio St.3d 206, 209, 551 N.E.2d 932, the brandishing of a gun and an express threat to shoot and kill the victim if he did not give the defendant all the money was deemed sufficient to permit the jury to infer that the object used in the robbery was an operable firearm, since the offender had represented, by virtue of the threat, that the object used was an operable firearm, capable of expelling a projectile with lethal consequences. Id. at 207.
In Murphy, the defendant was charged with holding up the clerk at a United Dairy Farmers' store.
The clerk and a customer testified the defendant brandished a one- or two-shot silver or chrome Derringer and told the clerk to give him the money or he would kill him.
Justice Resnick wrote as follows in upholding Murphy's conviction:
"From the totality of the circumstances (i.e., the gun being wrapped in a shirt, a description of the instrument from eyewitnesses, and the statement by appellant that he would kill the clerk if he did not give him the money), the evidence is sufficient to establish proof beyond a reasonable doubt that the appellant in this case possessed a 'firearm' as defined in R.C. 2923.11(B).
The Court held that before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A), the state must present evidence beyond a reasonable doubt that the firearm was operable, or could readily have been rendered operable, at the time of the offense.
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.
To rule otherwise would destroy the intent of the General Assembly to impose an additional term of three years' actual imprisonment on those persons who use a firearm to carry out their criminal objective." Id. at 208-09.