2007 Ohio 2294 | Ohio Ct. App. | 2007
{¶ 2} In March 2005, a Clermont County grand jury indicted appellant for two counts of aggravated robbery in violation of R.C.
{¶ 3} The common pleas court sentenced appellant to six years in prison for each of the two aggravated robbery convictions, to be served concurrently. The court imposed three years in prison for each of the two gun specifications, to be served concurrently to each other, but consecutively to the sentences for the aggravated robbery convictions, for a total of nine years in prison.
{¶ 4} Appellant now appeals his convictions, raising one assignment of error as follows:
{¶ 5} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S REQUEST FOR A JURY INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF ROBBERY."
{¶ 6} In this assignment of error, appellant argues that the common pleas court erred in finding robbery not to be a lesser-included offense of aggravated robbery. Appellant argues that because robbery is a lesser-included offense of aggravated robbery, and because the evidence reasonably supported acquitting appellant of the aggravated robbery counts and convicting him of robbery, the court should have given a robbery instruction to the jury.
{¶ 7} As this court has recently stated, "[a]n offense may be a lesser-included offense of another if: (1 ) the offense carries a lesser penalty than the other; (2) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and, (3) some element of the greater offense is not required to prove the commission of the lesser offense."State v. Accord, Fayette App. No. CA2005- 05-019,
{¶ 8} R.C.
{¶ 9} "(A) No person, in attempting or committing a theft offense, as defined in R.C.
{¶ 10} "(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]"
{¶ 11} R.C.
{¶ 12} "(A) No person, in attempting or committing a theft offense2 or in fleeing immediately after the attempt or offense, shall do any of the following:
{¶ 13} "(1) Have a deadly weapon on or about the offender's person or under the offender's control[.]"
{¶ 14} We find that, under the three prongs of the Deem test cited by this court in Accord, robbery as defined in R.C.
{¶ 15} Our above conclusion is consistent with the conclusions of other Ohio appellate courts that have considered this issue since 1996, when the General Assembly redefined the conduct constituting robbery and aggravated robbery. See, e.g., State v. Smith, Trumbull App. No. 2005-T-0080,
{¶ 16} Though R.C.
{¶ 17} Appellant argues that because the state did not produce at trial the gun used by appellant during the commission of the offenses, he was entitled to a lesser-included offense instruction for R.C.
{¶ 18} Despite the state's failure to produce a gun at trial, there was substantial, un-contradicted evidence in the record indicating that appellant displayed and brandished a gun during the commission of a theft offense. The two victims each testified that appellant pointed a gun directly at them. One victim, Sheila Vega, testified that appellant pointed the gun "right on [her] heart" and "on [her] head." She described the gun as silver and automatic. Ms. Vega testified that while appellant pointed the gun at her, appellant took her purse from a closet. The other victim, Tyrita Henley, testified that appellant "put [the gun] in [her] face," and "pressed [it] to [her] forehead." She described the gun as silver and "a little scratched up." After appellant struck her lightly in the jaw and knee with the gun, Ms. Henley testified that she gave him $ 100.
{¶ 19} A third individual, Victor Watts, who was present at the scene, testified that appellant displayed a silver pistol earlier in the evening. Mr. Watts also testified that appellant informed him of his plans to rob the two women. While Mr. Watts did not testify *6 that he observed appellant point the gun at the victims, he did testify that appellant had the gun with him when he went into the bedroom where Ms. Henley was present, shortly before obtaining her money. Mr. Watts also testified that appellant had the gun with him when he left the bedroom. Mr. Watts testified that he did not see appellant point the gun at Ms. Henley because he went to another room. Mr. Watts did not deny that appellant pointed the gun at the victims, but simply indicated that he did not observe it occur.
{¶ 20} After reviewing the record, including the above testimony, we find that the evidence in this case did not reasonably support an acquittal for the R.C.
{¶ 21} We do not find merit in appellant's argument that the state's failure to produce the gun at trial reasonably supported acquitting him of aggravated robbery and convicting him of robbery. As previously stated, an essential element of R.C.
{¶ 22} Accordingly, while the common pleas court erroneously concluded that *7
R.C.
YOUNG and BRESSLER, JJ., concur.
{¶ b} "(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:
{¶ c} "(1) Without the consent of the owner or person authorized to give consent;
{¶ d} "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
{¶ e} "(3) By deception;
{¶ f} "(4) By threat;
{¶ g} "(5) By intimidation."
