608 N.E.2d 1112 | Ohio Ct. App. | 1992
Michael L. Furlow was indicted for robbery, in violation of R.C.
After a trial by jury, Furlow was found guilty of robbery and sentenced to eight to fifteen years imprisonment. On appeal, Furlow advances three assignments of error as follows:
"I. Appellant's conviction for robbery should be reversed because the evidence adduced at trial was legally insufficient to prove beyond a reasonable doubt all the elements of robbery. *148
"II. The judgment and jury verdict are against the manifest weight of the evidence.
"III. The trial court erred in denying appellant's motion for acquittal pursuant to Crim.R. 29."
The trial court instructed the jury on robbery and the lesser included offense of theft. A critical issue in the case was whether the state had established the element of force by evidence sufficient to sustain a robbery conviction. Furlow concedes on appeal that the evidence was sufficient to support the jury's finding him guilty of theft. He contends, however, that the state presented insufficient evidence of force. It is the additional element of force which makes a robbery out of what would otherwise be a theft. R.C.
Because all three assignments of error address the sufficiency of the evidence of force, we will address them together.
To the extent pertinent to this appeal, R.C.
In the context of robbery, at least two appellate courts have stated that the type of force envisioned by the legislature in enacting R.C.
The difference between theft and robbery can be as great as the difference between a first degree misdemeanor and an aggravated felony of the second degree. R.C.
The state's evidence was that Furlow asked Clarence Brocke for change for a five dollar bill, and that after Brocke was holding five singles in one hand and his wallet in the other, Furlow snatched the wallet and bills from Brocke's hands and fled. As it pertained to the element of force, the testimony of the victim, Brocke, was as follows:
"* * * I had the billfold in my left hand, five ones in my right. And he came toward me and I said, well? I looked up at him and I said where's your five? And just like that — I was looking at him. He grabbed the billfold out of one hand, five ones, turned and took off.
"* * *
"The minute I saw his hand out there and nothing in it it started dawning on me. But it was too late. I knew right then — I put a little grip on it so he had to snatch hard."
At most, the state established that Furlow snatched Brocke's wallet and money which, upon realizing that Furlow was up to no good, Brocke was gripping in his hands more tightly than he normally would have.
It cannot be gainsaid that Furlow's snatching the wallet and money from Brocke's firmer than usual grip was arguably within the ambit of the word "violent." R.C.
The assignments of error are sustained.
The judgment, as it memorializes the jury's finding that Furlow was guilty of robbery, and as it sentences Furlow for robbery, will be reversed. The judgment, as it memorializes the jury's necessary finding that Furlow was guilty of the lesser included offense of theft, will be affirmed.
The matter will be remanded for the purpose of the court's sentencing Furlow for theft.
Judgment accordingly.
FAIN, P.J., and GRADY, J., concur. *150