State v. Carter

• Decision Date: 06 November 1985
• Docket Number: No. 3858,3858
• Citation: 29 OBR 165,29 Ohio App.3d 148,504 N.E.2d 469
• Parties: , 29 O.B.R. 165 The STATE of Ohio, Appellee, v. CARTER, Appellant.
• Court: Ohio Court of Appeals

Page 148

29 Ohio App.3d 148

504 N.E.2d 469, 29 O.B.R. 165

The STATE of Ohio, Appellee, v. CARTER, Appellant.

No. 3858.

Court of Appeals of Ohio, Ninth District, Lorain County.

Nov. 6, 1985.

Syllabus by the Court

1. To sustain a conviction for robbery under R.C. 2911.02, the quantum of actual force contemplated by R.C. 2901.01(A) is that which posed actual or potential harm to the victim; the element of force may be present in defendant's use of force incidental to snatching a purse from the physical possession of the victim.

2. In determining whether defendant threatened the immediate use of force within the contemplation of R.C. 2901.01(A), the court may consider the size and demeanor of defendant, the likelihood of physical injury from defendant's conduct, and any peculiar vulnerability of the victim.

Gregory A. White, Pros. Atty., and Jonathan E. Rosenbaum, Elyria, for appellee.

William J. Balena, Elyria, for appellant.

GEORGE, Presiding Judge.

Defendant-appellant David L. Carter appeals his conviction for robbery pursuant to R.C. 2911.02. This court affirms that conviction.

The victim, an elderly woman, was walking from her parked car to a supermarket when she noticed Carter running toward her. The victim testified:

" * * * and I just stood and turned my head to look at the car; and when I turned around again, I saw this man coming toward me; and he was very fast, just very fast.

" * * * then, he came up to me; and he pulled my shoulder strap down.

"I had my purse here, and then pulled my right hand off of my left hand here where I had--was holding the bottom part of my purse."

Carter's testimony conflicted with that of the victim. He claimed the purse did not have any straps and that he merely grabbed it while she was looking through it. The purse was not introduced into evidence. Carter was tried to a court without a jury and convicted of robbery.

Assignment of Error

"The trial court erred in sustaining defendant's conviction for robbery absent proof of the use of force or threat of its immediate use."

The sole issue presented here is whether Carter's actions were sufficient to constitute actual or threatened force under the robbery statute. R.C. 2911.02(A) reads:

"No person, in attempting or committing a theft offense * * * or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another."

The statute clearly provides that either the actual use of force on the victim or the threat to use such force may be the basis for a robbery conviction. Carter did both.

Actual "force" is defined in R.C. 2901.01(A) as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing."

The trial court here, as the trier of fact, found that "there has been sufficient evidence from the victim to indicate that force was used, the touching of the body. * * * Actually the arm was removed from the purse." While Carter admits he touched the victim when he removed the purse from her hands, he argues that touching does not constitute force under State v. Cohen (1978), 60 Ohio App.2d 182, 396 N.E.2d 235 . Carter misconstrues Cohen.

The victim in Cohen was asleep when the defendant rolled him over to remove his wallet. The victim never woke up. The Cohen court reasoned that the defendant's actions did not constitute potential harm to the victim because he was asleep. The mere rearrangement of his unresisting body did not rise to the "violence, compulsion, or constraint" enunciated in R.C. 2901.01(A).

The Cohen court found no threat of actual or potential harm had been created in rolling the victim over because he was unaware of what was happening to him. State v. Cohen, supra, at 183, 396 N.E.2d 235. Certainly, that was not the case here. The victim saw her assailant approaching. She felt the purse being jerked from her hands. She was fully cognizant of what was happening.

The type of force envisioned by the legislature in enacting R.C. 2911.02 is that which poses actual or potential harm to a person. Committee Comment, R.C. 2911.02; State v. Ballard (1984), 14 Ohio App.3d 59, 469 N.E.2d 1334. The victim here was not actually harmed. But the potential for serious physical injury was certainly present. The woman was eighty-five years old. A fall at that age often results in a broken hip or other broken bones. She could have been seriously injured, perhaps even permanently disabled.

It has been held that the act of bumping an elderly victim in order to distract her attention while another person removed her wallet from her purse comprises force under the robbery statute. State v. Grant (Oct. 22, 1981), Cuyahoga App. No. 43027, unreported. The defendant in that case, upon appeal, also relied on Cohen, but the court rejected his argument:

"We do not find the Cohen reasoning persuasive. Bumping into an individual creates potential harm to the individual. Further, a bump is an act of violence within the meaning of R.C. 2901.01(A), even though only mildly violent, as the statute does not require a high degree of violence."

Carter contends the touching here was only incidental to the snatching and that the mere act of snatching a purse, without more, is not sufficient force for a robbery conviction. He argues that there must be a struggle or some act to overcome the resistance of the victim to constitute force under the statute. He suggests that the encounter here was so swift that there was no resistance and thus no force.

While a showing of resistance by the victim to support the requisite force element in a robbery conviction is required in a number of jurisdictions (see, e.g., People v. Patton [1978], 60 Ill.App.3d 456, 17 Ill.Dec. 770, 376 N.E.2d 1099, affirmed [1979], 76 Ill.2d 45, 27 Ill.Dec. 766, 389 N.E.2d 1174), it is unnecessary here to determine whether or not such is the law in Ohio. This court finds resistance under the facts of this case.

There are ways in which a person can resist without actually putting up a fight. In a case in another jurisdiction involving a similar fact pattern, the defendant contended the force used in ripping a shoulder strap bag off the victim's shoulder was the minimum required to obtain possession and not sufficient to elevate the...