361 N.E.2d 1083 | Ohio Ct. App. | 1976
After the overruling of a motion to suppress, appellant entered a plea of no contest to aggravated robbery and was sentenced.
The appellant was observed by a Rike's security employee as appellant placed articles of clothing in a shopping bag. He was detained and when he was patted down a .38 caliber revolver was removed from his pocket.
We may commence with the "plain view" doctrine. Appellant and the articles were seen when he placed them in the shopping bag. There was no search for discovery in the constitutional sense, but a simple, reasonable and lawful repossession by the owner of property openly taken within sight of its employees. Once stolen property is seen no necessity exists for a search. A person cannot throw his cloak over sighted objects and then invoke the constitutional privilege. Nor can he openly put such articles out of sight in a shopping bag and then claim an unlawful seizure while the crime is being committed and reasonable efforts are made to repossess them.
R. C.
The first paragraph of the statute provides that the merchant or his employee may recover stolen articles without *65
a search. While we find there was no search but rather a simple removal of clothing out of an open shopping bag, it is argued that this violates the constitutional limitation upon public enforcement officers. However, in State v. Bolan (1971),
The trial court expressly found that the security employees were engaged in activities within their private employment within the meaning of R. C.
As indicated, there is no merit to this assignment.
For this assignment, appellant claims that his conduct does not constitute a sufficient degree of anti-social behavior to warrant the severe sanctions of aggravated robbery and that appellant did not have the required mental state required, both in violation of the constitution.
As to the severity of the sanction or penalty, this is a legislative not a judicial question. The assignment boils down to what are the essential requirements for aggravated robbery and, as argued, what is the mental state, if any, required in addition to the intent to commit a theft offense. Must there be a use or intent to use the gun?
Briefly stated, R. C.
"No person * * * committing a theft offense * * * shall * * * (1) have a deadly weapon * * * on or about his person or under his control * * *."
The section as originally proposed contained the language: "(1) The offender has, or causes another to believe he has a deadly weapon [emphasis added] * * *." The emphasized portion, requiring the defendant to act so as to make the victimthink the defendant has a weapon, was rejected by the legislature. (Proposed Ohio Criminal Code, March 1971, line 1820.)
On this subject, the Ohio Legal Center's Reference Manual, p. 11-3, concludes:
"In the enacted form, it is the fact of having a deadly weapon or dangerous ordnance which is critical. This is in accord with the basic philosophy that the severity of crimes is established by the potential for harm." (Emphasis added.)
The thrust and philosophy of H. B. 511 is to remove *67 the potential for harm that exists while one is committing a theft offense. The anti-social act is the theft offense, committed while armed with a weapon. Merely having the weapon is the potentially dangerous factual condition warranting the more severe penalty. As to the weapon, no mental condition or actual use is necessary or required under the statute.
Appellant cites committee comments to H. B. 511 and says these must be followed. This is not correct, as the committee points out in its introduction, citing Cleveland Trust Co. v.Eaton (1970),
"Thus, aggravated robbery includes not only robbery whilearmed, but also robbery in which the offender inflicts or attempts serious personal harm, whether he is armed or not, since in both cases there is a high degree of actual orpotential harm to persons." (Id. at 11-2.)
R. C. Chapter 2911 "expands the concept and coverage of former robbery statutes." It expressly includes the commission of a theft offense by one who has a deadly weapon on or about his person or under his control. The legislature could not have expressed its intention in clearer or more simple language. There is no merit to the second assignment.
Judgment affirmed.
KERNS, P. J., and SHERER, J., concur. *68