Background

• Cooper and an accomplice planned to lure a victim into a car under the pretense of a drug deal to rob him; the victim's friend followed at a distance.
• A security camera captured the sequence; Cooper reached into the car and demanded money, triggering a struggle in which Cooper was beaten and fled to a gas station.
• Cooper gave a signed statement to police admitting the robbery attempt, but denying that he owned a gun later recovered from a trash can near the gas station—except for the gun, all events were corroborated by the video.
• The victim did not testify; a police officer testified that the victim told him Cooper had used a gun, raising Confrontation Clause concerns as hearsay.
• The court admitted the hearsay statement as non-testimonial under evolving confrontation jurisprudence, then ruled the error harmless.
• The court instructed on robbery as a lesser included offense of aggravated robbery, denied an instruction on attempted theft, and ultimately held theft is a lesser included offense of aggravated robbery; conviction affirmed.

Issues

Key Cases Cited

• Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial statements trigger confrontation rights if elicited outside of ongoing emergency)
• Davis v. Washington, 547 U.S. 813 (U.S. 2006) (non-testimonial when primary purpose is to address ongoing emergency)
• Hammon v. Indiana, 547 U.S. 813 (U.S. 2006) (inherently testimonial when emergency no longer exists)
• Michigan v. Bryant, 131 S. Ct. 1143 (U.S. 2011) (clarifies primary purpose test by considering both declarant and interrogator actions)
• State v. Smith, 117 Ohio St.3d 447 (2008-Ohio-1260) (holds theft is a lesser included offense of robbery)
• State v. Evans, 122 Ohio St.3d 381 (2009-Ohio-2974) (redefines Deem test for lesser included offenses)
• State v. Carter, 89 Ohio St.3d 593 (2000-Ohio-172) (applies Deem test to determine lesser included offenses)
• State v. Deem, 40 Ohio St.3d 205 (1988-Ohio-) (Deem test for lesser included offenses (clarified in Evans))