State v. Davis

• Decision Date: 27 July 1983
• Docket Number: Nos. 82-1539,82-1592,s. 82-1539
• Citation: 6 Ohio St.3d 91,6 OBR 131,451 N.E.2d 772
• Parties: , 6 O.B.R. 131 The STATE of Ohio, Appellant and Cross-Appellee, v. DAVIS, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 91

6 Ohio St.3d 91

451 N.E.2d 772, 6 O.B.R. 131

The STATE of Ohio, Appellant and Cross-Appellee, v. DAVIS, Appellee and Cross-Appellant.

Nos. 82-1539, 82-1592.

Supreme Court of Ohio.

July 27, 1983.

Syllabus by the Court

1. The use or threat of immediate use of force element of the offense of robbery, as expressed in R.C. 2911.02(A), is satisfied if the fear of the alleged victim was of such a nature as in reason and common experience is likely to induce a person to part with property against his will and temporarily suspend his power to exercise his will by virtue of the influence of the terror impressed.

2. If the trier of fact could reasonably reject an affirmative defense and could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense, then a charge on the lesser included offense is required. (State v. Wilkins, 64 Ohio St.2d 382 , approved and followed.)

Defendant-appellee, Paul T. Davis, Jr., was indicted in the October 1980 term of the Butler County Grand Jury for the offense of robbery, in violation of R.C. 2911.02.

The evidence established that on September 10, 1980, at approximately 8:42 p.m., Davis entered the El-Bee Shoe Outlet store in the Ary-Way Plaza shopping center in Middletown, Ohio. The assistant manager, Tina F. Masterson, and a clerk, Chris Cruze, were working alone in the store at the time. Davis approached the counter and informed Masterson that he wanted to pay on some shoes in layaway. Masterson told him that the store did not have a layaway program but did have some shoes on hold, and she went to the rear of the store to check.

In the meantime Cruze had come to the counter. After Masterson left, Davis turned to Cruze and told her to open the cash register. Davis repeated his command as Masterson was returning to the counter, and Cruze complied. During this time appellee was holding his right hand under his shirt and belt, the shirt being untucked, as if he had a weapon. Davis reached into the register with his left hand, taking bills totalling $189 and stated, "I'm not gonna hurt you, this is all I want, I'm not gonna hurt you." Davis then put the money in a brown paper bag and fled the scene.

The matter was tried before a jury on December 2, 1980. Appellee offered a defense of alibi, but the jury rejected it and returned a verdict of guilty of robbery as charged in the indictment. Appellee was sentenced to a term of from five to fifteen years imprisonment at the Columbus Correctional Facility, and a motion for a new trial was overruled.

On appeal the court of appeals held that the evidence was insufficient to sustain a conviction as to robbery, but was sufficient to sustain a conviction of grand theft, a lesser included offense. The court determined, as a matter of law, that appellee's statement, "I'm not gonna hurt you * * *," did not amount to a threat to use immediate force. Therefore, the court of appeals concluded that the trial court erred in refusing to instruct the jury on the lesser included offense and entered a judgment reversing the conviction and modifying the verdict to grand theft. ¹

The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Hamilton County in State v. Bronaugh (April 1, 1981), No. C-800253, unreported, certified the record of the case, No. 82-1592, to this court for review and final determination.

The cause in case No. 82-1539 is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.

John F. Holcomb, Pros. Atty., Gerald R. Leshner and Daniel G. Eichel, Hamilton, for appellant and cross-appellee.

Loehler & Humbach and Patricia S. Oney, Hamilton, for appellee and cross-appellant.

WILLIAM B. BROWN, Justice.

The first issue for determination is whether proof of a " * * * [threat of] the immediate use of force against another," as an essential element of the offense of robbery in violation of R.C. 2911.02(A), is sustained by evidence that the offender, while demanding money from a person, uses the particular demeanor of holding one of his hands under his clothing hidden from the victim's view, as if carrying a firearm, although the offender does not verbally threaten harm. This court now holds that this element can be proven by the above-described threatening demeanor and demanding words.

Prior to 1974 the robbery statute in Ohio, R.C. 2901.12, reads as follows:

"No person, by force or violence, or by putting in fear, shall steal from the person of another anything of value. * * * "

Effective January 1, 1974, the robbery statute, R.C. 2911.02(A), was amended to read:

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

The court of appeals concluded that the elimination of the phrase "putting in fear" from the statute eliminated the psychological aspects of robbery. That court then went on to hold that appellee's statement, "I'm not gonna hurt you * * *," was clearly not a threat to use immediate force. This interpretation misconstrues the nature of the standard set forth in the robbery statute and overlooks the role of the appellee's demeanor in presenting the threat of immediate force.

The difference between the old and new robbery statutes in Ohio is the difference between a subjective and an objective standard in evaluating the nature of the threat. Prior to 1974, R.C. 2901.12 required only that the victim be put in fear by force or violence with the particular emphasis on the victim's actual state of mind. In contrast, current R.C. 2911.02(A) defines the crime of robbery as the use or threat of immediate use of force against another. This requirement is satisfied if the fear of the alleged victim was of such a nature as in reason and common experience is likely to induce a person to part with property against his will and temporarily suspend his power to exercise his will by virtue of the influence of the terror impressed.

This court concludes that, under the above standard, the evidence could support the conviction of robbery beyond a reasonable doubt. During the time appellee was demanding and then physically removing the money, he was carrying his right hand under this shirt as if holding a concealed weapon. The statement, "I'm not gonna hurt you * * *," does not necessarily belie the threat of such a gesture. In fact, that statement could be interpreted to reinforce the threat, conveying the implication that the statement remains applicable only so long as no resistance is offered. Under these circumstances it is for the jury to decide whether the actions and demeanor of appellee constituted a threat of immediate use of force against the store attendants.

Appellee maintains that this court's recent decision in State v. Merriweather (1980), 64 Ohio St.2d 57, 413 N.E.2d 790 , rejected the notion of an implied threat. There it was stated that having a deadly weapon on one's person does not necessarily embrace the threat of immediate use of force against another. Id. at 59, 413 N.E.2d 790.

This argument is without merit. State v. Merriweather held that robbery is not a lesser included offense of aggravated robbery because of a difference in the elements constituting each crime. That case did not hold that the use of force or threat of the use of force element of robbery cannot be sustained by testimony that the offender threatened the victim with a real or simulated firearm. In fact, virtually every American jurisdiction addressing the issue has held that robbery convictions can be sustained by evidence that the offender simulated a gun by putting his hand in a pocket, in a bag, or under a shirt. See, generally, Annotation (1977), 81 A.L.R.3d 1006.

The second major issue in this case is whether the trial court erred in refusing to instruct the jury on the lesser included offense of grand theft. ² The indictment against Davis was for robbery and his defense was alibi. Based on a narrow construction of State v. Nolton (1969), 19 Ohio St.2d 133, 249 N.E.2d 797 , the state argues that the defense of alibi constituted a complete defense to all substantive elements of the crime charged and consequently that the jury is precluded from consideration of a lesser included offense.

This argument overlooks this court's clarification of the rule of Nolton in State v. Wilkins (1980), 64 Ohio St.2d 382, 415 N.E.2d 303 . There it was recognized that merely because one offense can be a lesser included offense of another does not mean that a court must always instruct on both offenses where the greater offense is charged. However, such an instruction is required where " * * * the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for ...