STATE OF OHIO, Plaintiff-Appellee, v. JACOB HOSKINS, Defendant-Appellant.
CASE NO. CA2013-02-013
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
8/19/2013
[Cite as State v. Hoskins, 2013-Ohio-3580.]
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 12CR28589
William F. Oswall, Jr., 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Jacob Hoskins, appeals his conviction in the Warren County Court of Common Pleas for robbery. For the reasons discussed below, we affirm appellant‘s conviction.
{¶ 2} On October 1, 2012, appellant was indicted on one count of robbery in violation of
{¶ 3} A bench trial was held in December 2012. At trial, the state presented the testimony of Barbara Arnold and Tyler Reamy, two asset protection employees for Walmart, and Officer David Creech of the Middletown Police Department. Arnold testified that she has worked as an asset protection officer for Walmart for four years and that her primary responsibility is to prevent shoplifting. Arnold explained that Walmart uses a video surveillance system called “March,” which records 24 hours a day, and that this system was in operation on July 29, 2012.
{¶ 4} Arnold stated that she had been at work on July 29, 2012 when she received a phone call from an employee at another Walmart store who warned her that two individuals had been overheard planning to steal a Sony surround sound system from the Middletown location. Arnold testified that in response to this phone call, she and her partner, Reamy, walked back to the electronics department where they found appellant looking at a Sony surround sound system. Arnold observed appellant placing the sound system in his shopping cart and then leaving the electronics department. Arnold testified that she trailed appellant, following him into the grocery department where he selected a gallon of milk and a frozen pizza. Appellant then pushed his shopping cart to the front of the store, where Arnold watched appellant take his pizza and milk to a check-out line while leaving his cart, with the sound system in it, in an empty check-out line. After appellant purchased his milk and pizza, Arnold observed appellant walk back to the cart containing the sound system, place his purchased items in the cart, and push the cart past all points of sale and into the store‘s vestibule, which is located near the store‘s entrance and exit point.
{¶ 5} Arnold testified that once appellant pushed the sound system into the vestibule,
{¶ 6} According to Arnold, appellant “start[ed] to act like he was going to cooperate” and began walking towards the office, but he then “walked back” towards his shopping cart. Appellant then cooperated again by walking towards the loss prevention office. Arnold testified that at this time, appellant “decide[d] he [did not] want to cooperate at all, so he trie[d] to take off” by going around Arnold and Reamy, but Arnold was able to “push him up against the wall [while Reamy was] still holding him down.” The “March” video surveillance footage depicted this event at 2:53:35 p.m.
{¶ 7} Arnold testified that Reamy was able to open the door to the loss prevention office, and appellant was escorted inside at 2:53:50 p.m. The shopping cart containing the sound system was left in the vestibule until another Walmart employee secured the item.
{¶ 8} Once inside the loss prevention office, Arnold instructed appellant to have a seat on a bench that was located along the right wall. Arnold stated that appellant initially sat down in a chair and was asked to move to the bench seat. Arnold testified that at 2:53:57 p.m., appellant stood up, turned quickly, and started to run towards the door but Arnold and Reamy were able to move in front of appellant and block his way. Appellant was again instructed to have a seat on the bench, and at 2:54:05 p.m., he complied with the instruction. Arnold explained she and Reamy began asking appellant questions and attempted to fill out the necessary paperwork to process appellant as a shoplifter. At this time, appellant gave
{¶ 9} Arnold testified that Reamy followed appellant and observed appellant enter a blue Chevrolet Blazer. Reamy was able to get the Blazer‘s license plate number, and Arnold contacted the Middletown Police Department. Arnold explained that the Middletown police located appellant and were able to bring him back to Walmart later that day so that she and Reamy could identify him.
{¶ 10} Following Arnold‘s testimony, Reamy took the stand and testified about the theft of the sound system. Reamy‘s testimony corroborated Arnold‘s account of events, emphasizing that appellant was “uncooperative” when confronted. According to Reamy, appellant “kept trying to dart around us, kept looking around. There were multiple times when we had to tell him that he needs to go with us and then he tried to push past me on one side * * * and we had to use physical redirection to get him in our office.”
{¶ 11} Reamy explained that once appellant was in the loss prevention office, appellant became very fidgety and “tried to go [for] the door again.” Appellant eventually sat down and was questioned, but Reamy was unable to obtain any information from appellant other than appellant‘s name because appellant “kept standing up [and] interrupting.” Reamy stated that just prior to fleeing the store, appellant “sat down and then quickly got up” and pushed past Arnold. Appellant then pushed Reamy up against the wall, causing Reamy to
{¶ 12} Officer Creech next took the stand, testifying that on July 29, 2012, he responded to the Middletown Walmart after receiving a dispatch about a shoplifter. At this time, Creech was given the video surveillance footage and was told appellant‘s name. Creech testified that appellant was later arrested and transported to the Walmart, where Arnold and Reamy identified appellant as the shoplifter.
{¶ 13} At the close of the state‘s evidence, the defense made a
{¶ 14} Appellant timely appealed his conviction, raising as his sole assignment of error the following:
{¶ 15} THE EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO UPHOLD A CONVICTION OF ROBBERY THEREBY DENYING THE APPELLANT HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶ 16} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of
{¶ 17} Appellant was convicted of robbery in violation of
{¶ 18} Appellant does not dispute that he committed a theft or that he used force in struggling to get past Reamy after committing the theft offense. Appellant does, however, challenge whether the state presented sufficient evidence demonstrating that he was “fleeing immediately” after committing a theft offense. Appellant argues there was a delay or lapse of time between his theft of the sound system and his act of fleeing. Specifically, appellant contends that the theft was completed, the property he stole was separately secured, and he was led to the loss prevention office prior to his flight from the store, which he claims demonstrates that his act of fleeing was not “immediate.” In support of his argument,
{¶ 19} In Thomas, the defendant left a grocery store with stolen merchandise, dropped it, and continued to walk away from the store by entering a nearby laundromat. Id. at ¶ 2. The defendant was then approached by a security guard from the grocery store who asked the defendant to return to the store, to which he agreed. Id. Nevertheless, as the defendant and security guard approached the grocery store, the defendant struck the security guard in the face and attempted to flee. Id. The Supreme Court, in reversing the defendant‘s robbery conviction, noted that there had been a lapse of time between the theft and the defendant‘s attempt to flee, so that the defendant‘s flight could not have been said to have immediately followed the theft. Id. at ¶ 16. However, the Supreme Court noted that under slightly different circumstances, the defendant‘s conduct could have elevated the offense from theft to robbery. Id. For example, “had [the defendant] struggled with [the security guard] in an attempt to flee immediately after [the defendant] left the store, or after he dropped the stolen goods, or after being forced by [the security guard] to return to the store, then an ensuing injury, attempt to injure, or threat to injure might justify elevation of the offense from theft to robbery.” Id.
{¶ 20} Based on our review of the record, we find the facts of this case demonstrate a scenario under which the Supreme Court noted in Thomas could justify elevating the offense from theft to robbery. See id. In this case, there was no significant lapse of time or intervening act or event that occurred between the shoplifting incident, appellant‘s attempt to leave the scene, and his struggle with Reamy. The record indicates that appellant did not leave the store prior to engaging in a physical altercation with the Walmart employees. The surveillance footage, in combination with Arnold and Reamy‘s testimony, demonstrated that from the time appellant was confronted at 2:53:24 p.m. as he tried to leave the store with the sound system, he was uncooperative and focused on his flight from the store. The video
{¶ 21} Furthermore, contrary to appellant‘s arguments, the fact that appellant no longer had the sound system with him at the time he struggled with Reamy while trying to flee was not fatal to the state‘s case as
{¶ 22} The present case is similar to State v. Johnson, in which the Tenth Appellate District upheld a defendant‘s conviction for robbery. Id. at ¶ 1. There, the defendant stole cigarettes from a Kroger store. Id. at ¶ 15. The defendant attempted to leave the store a few minutes after taking the cigarettes, but he then ran back into the store a minute later. Id. at ¶ 16. Approximately 11 minutes thereafter, the defendant got into a struggle with Kroger employees, knocking them down, before he was able to escape into the store‘s parking lot. Id. at ¶ 17 and 29. The defendant was later arrested and charged with robbery. Id. at ¶ 2. A jury convicted the defendant of robbery, and he appealed, arguing that his conviction was not supported by sufficient evidence because the state did not prove that his struggle with the
In distinguishing the present matter from Thomas, the record before us indicates that [the defendant] did not leave Kroger for any period of time prior to engaging in a physical altercation with Kroger employees. Instead, the video footage shows that at approximately 10:40 a.m., [the defendant] walked back over to the cigarette corral, took more cigarettes, attempted to leave the store and, approximately one minute later, ran back into the store after a failed attempt to flee from Kroger security. * * * Although some time elapsed between [the defendant‘s] first attempt to flee, his struggle with Kroger employees, and his ultimate escape, [the defendant] was clearly trying to find a way to immediately leave the store.
Id. at ¶ 18.
{¶ 23} Accordingly, in viewing the evidence in a light most favorable to the prosecution, we conclude that there is sufficient evidence to prove, beyond a reasonable doubt, that appellant was fleeing immediately after the theft of the sound system when he used force against Reamy in violation of
{¶ 24} Judgment affirmed.
PIPER, J., concurs.
M. POWELL, J. dissents.
M. POWELL, J., dissenting.
{¶ 25} Robbery pursuant to
{¶ 26} Here the theft offense or attempted theft offense was complete when Reamy and Arnold detained appellant in the Walmart vestibule. No force had been used by appellant in the commission or attempt to commit the offense. Therefore, to constitute robbery, the use or threat to use force must have occurred in conjunction with fleeing immediately after the commission of the offense or attempt to commit the offense. That is, the flight and the use or threatened use of force must coincide immediately after the commission or attempted commission of the theft offense.
{¶ 27} The Ohio Supreme Court in Thomas defined to “flee” as “‘[t]o run away from,’ ‘to try to escape,’ ‘[t]o hasten for safety,’ or ‘[t]o withdraw hastily.‘” Thomas, 2005-Ohio-4106 at ¶ 15. The Supreme Court further defined “immediately” as “‘[w]ith no person, thing, or distance, intervening in time, space, order, or succession,’ or ‘[w]ithout any delay or lapse of time,‘” and “immediate” as “‘[o]ccurring without delay.‘” Id.
{¶ 28} Although appellant was not cooperative and tried to walk away from Reamy and Arnold, he did not physically exert “any violence, compulsion or constraint” to flee until after he was placed in the loss prevention office. Prior to that time, Reamy and Arnold used some degree of compulsion and constraint to maintain control of appellant. But, the record indicates that the force used by the store employees was not in response to any force used by appellant. In fact, appellant repeatedly submitted to such force (i.e., when Reamy and Arnold pushed appellant into the vestibule corner while they unlocked the loss prevention office door, appellant did not struggle to get away; appellant entered the loss prevention office and sat in a chair on command; appellant re-seated himself from a chair to the bench in the loss prevention office as told; and when appellant arose from being seated on the bench, he was told to sit down and did so). Being uncooperative is not synonymous with the use of force.
{¶ 30} With regard and respect for my colleagues in the majority, I dissent.