State of Ohio v. Sammy Moore
Court of Appeals No. L-15-1211
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: June 17, 2016
[Cite as State v. Moore, 2016-Ohio-3506.]
Trial Court No. CR0201501750
Patricia Horner, for appellant.
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Sammy Moore, appeals the judgment of the Lucas County Court of Common Pleas, sentencing him to eight years in prison after the court found him guilty of one count of aggravated robbery. We affirm.
{¶ 2} On May 15, 2015, appellant was indicted on one count of aggravated robbery in violation of
{¶ 3} At arraignment, appellant entered a plea of not guilty, and a bench trial was eventually conducted. At trial, the state called several witnesses. Relevant here, the state called a Family Dollar employee, Br.J., to testify.
{¶ 4} Br.J., testified that she was patrolling the aisles in the store on the morning of April 26, 2015, when she witnessed appellant рlace a can of body spray inside his shirt. Initially, Br.J. asked appellant to give her back what he put inside his shirt, but appellant insisted that he did not steal anything. Br.J. then instructed appellant to leave the store. Appеllant refused to leave, insisting that he was entitled to remain in the store. This continued until Br.J. threatened to call the police if appellant did not leave the store. At that point, appellant began walking towаrd the exit. Once appellant reached the front of the store, he passed through the first exit door, beyond all points of purchase, and stopped in the vestibule. While standing in the vestibule, appellant removed the can of body spray from inside his shirt and gave it to Br.J. Br.J. then demanded that appellant vacate the premises, at which point she turned around and walked back into the store. Ignoring Br.J.‘s instruction, appellant followed Br.J. back into the store. When Br.J. accused appellant of possessing other stolen items, appellant pulled a box cutter from his pocket and said, “Bitch, I‘ll be waiting for you when you get off work.” According to
{¶ 5} After calling another Family Dollar emрloyee and several police officers, the state rested. Defense counsel then made a motion for acquittal under Crim.R. 29, which was denied by the trial court. Thereafter, appellant was found guilty of aggravated robbery after failing to call any witnesses of his own. The trial court immediately proceeded to sentencing, and ordered appellant to serve eight years in prison. Thereafter, appellаnt filed a timely notice of appeal.
B. Assignment of Error
{¶ 6} On appeal, appellant presents the following assignment of error:
The state presented insufficient evidence to convict appellant of robbеry, in violation of
R.C. 2911.02(A)(1) .
II. Analysis
{¶ 7} In his sole assignment of error, appellant argues that there was insufficient evidence presented at trial to support his conviction for aggravated robbery under
{¶ 8} Sufficiency of the evidenсe is a determination of adequacy and a court must consider whether the evidence was sufficient to support the conviction as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The proper analysis is “‘whether, after viewing the evidеnce in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a
{¶ 9}
(A) No person, in attempting or committing a theft оffense or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control.
{¶ 10} Here, aрpellant argues that the state failed to offer sufficient evidence to establish that he (1) committed a theft offense, (2) possessed a deadly weapon, or (3) brandished a weapon within the meaning of
{¶ 11} Relating to appellant‘s first contention that there was insufficient evidence to establish a theft offense,
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent.
{¶ 12} Under
{¶ 13} In support of his first argument under his sole assignment of error, appellant argues that he abandoned any attempt at committing a theft offense when he returned the body spray uрon request.
{¶ 14} Abandonment is an affirmative defense to a charge of attempted theft under
{¶ 15} We previously addressеd a similar argument in a case involving attempted theft of store merchandise in State v. McGhee, 6th Dist. Lucas No. L-06-1210, 2007-Ohio-6527. There, we held that the defendant‘s act of leaving a bag of merchandise on the floor after realizing he was being observed by the stоre manager did not absolve him from liability for an attempted theft offense. Id. at ¶ 23. Concerning the defense of abandonment, we concluded that the act of leaving the bag of merchandise on the floor “was not а complete and voluntary renunciation” because the defendant only relinquished control of the bag under threat of immediate apprehension by the store manager. To that end, we stated that “[a]bandоnment is involuntary where it is motivated by circumstances not present at the inception of the defendant‘s conduct which increased the likelihood of detection or apprehension.” Id.
{¶ 16} Similarly here, we find that the evidence presented at trial demonstrates that appellant‘s return of the body spray was not a complete and voluntary renunciation of his criminal purpose to commit a theft offense. At trial, Br.J. testified that she witnessed appellant place a can of body spray inside his shirt, demanded that he return the item to her, and followed him as he walked out of the front door and past all points of
{¶ 17} Moreover, the defense of abandonment is not applicable here since apрellant committed the attempted theft before he returned the body spray. As noted above, the defense of abandonment does not apply once criminal intent is formed and “such intent has been coupled with an overt act toward the commission of the contemplated offense.” Cooper at 178. The evidence submitted at trial supports a finding that appellant took a substantial step towards the commission of a theft оffense before returning the body spray, namely the placement of the body spray inside his shirt for purposes of evading detection by store employees and exiting through the front door of the store beyond all points of purchase. Therefore, we find that the state presented sufficient evidence to discredit appellant‘s abandonment argument and establish appellant‘s attempt to commit a theft offense.
{¶ 18} Next, appellant argues that the state presented insufficient evidence to demonstrate that he possessed a deadly weapon or brandished a weapon within the meaning of
{¶ 20} At trial, Br.J. testified that appellant pulled the box cutter from his pocket, waved it at her, and said, “Bitch, I‘ll be waiting for you when you get off work.” Based on this unrefuted testimony, we conclude that a factfinder could have found that appellant possessed, carried, or used the box cutter as a deadly weapon beyond a reasоnable doubt.
{¶ 21} In light of our review of the record, including the transcript of the proceedings and the video footage of the incident captured by Family Dollar surveillance cameras, we find that appellаnt‘s aggravated robbery conviction was supported by sufficient evidence. Accordingly, appellant‘s sole assignment of error is not well-taken.
III. Conclusion
{¶ 22} In light of the foregoing, we affirm the judgment of the Lucas County Court of Commоn Pleas. Costs are hereby assessed to appellant in accordance with App.R. 24.
Judgment affirmed.
Mark L. Pietrykowski, J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
James D. Jensen, P.J. CONCUR.
JUDGE
This decision is subjеct to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.