COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59065 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MARK KOUNS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-232929 JUDGMENT: Reversed and Appellant Ordered Discharged. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. TIMOTHY J. HAFFEY, ESQ. Cuyahoga County Prosecutor 307 Marion Building JEFFREY MARGOLIS, ESQ. 1276 West Third Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: Defendant-appellant, Mark Kouns, was indicted for one count of robbery, R.C. 2911.02, with an aggravated felony specification in connection with an attack on Robert Shay. Appellant pled not guilty at his arraignment on July 24, 1989. Trial by jury commenced on October 26, 1989. The jury found the appellant guilty of robbery as charged in the indictment on October 27, 1989. The trial court sentenced appellant to a term of eight (8) years to fifteen (15) years. Appellant now appeals from the judgment and sentence and assigns three errors for review. A careful review of the record compels reversal of the judgment. I. Robert Shay ("Shay") testified that he resided at 16039 St. Clair Avenue, Cleveland, Ohio. On March 31, 1989, Shay returned home at approximately 8:00 p.m. He drank a couple of beers before returning home and drank a couple more after his arrival. The appellant knocked on Shay's door shortly thereafter. As Shay opened the door, the appellant said, "Bobby, give me $10." The appellant then "bangs and knocks" Shay when Shay told him that he did not have the money. Shay believed he was rendered unconscious and did not recall the number of times he was hit by appellant. He, however, recalled that he was struck by his ear, and on his nose and jaw. Shay originally testified that he met appellant two months - 2 - prior to the incident through appellant's friend, Maria, who lived in the apartment directly across from Shay. On cross- examination, Shay testified that he knew appellant since 1988. He furthermore recalled a prior $5 loan made to appellant and the reimbursement of that loan by appellant. Shay also testified to a previous incident with appellant which occurred on March 17, 1989, St. Patrick's Day. Paolucci Antonio ("Pat") testified that his father owned the building where Shay was a tenant. Pat was periodically in the building to do minor repairs. On March 31, 1989, Pat was in the building and he saw that the door to Shay's apartment was open. Pat went into the apartment when Shay did not respond to Pat's "How are you doing." Pat found Shay laying face down with blood on the floor, alongside and around him. He then picked Shay up and saw that the blood was flowing from his nose. Although Pat did not know if Shay was unconscious, he testified that Shay "came to after shaking him." Pat then placed a cold wet towel on Shay's face. Shay refused Pat's request to call an ambulance. He, however, called the police who arrived approximately one-half hour later. A patrol officer for the Cleveland Police Department, Eric Ball, testified next. The officer stated that he responded to "either an assault or robbery" call at approximately 7:30 p.m. on March 31, 1989. The officer found Shay, bleeding with one eye severely darkened. There was also fresh blood on the floor. Officer Ball testified that Shay told him a "male that used to - 3 - live in the same building complex, that came to this apartment and asked him for some money, and when he refused the male began to beat him up." Shay refused any medical assistance, saying that his friends and relatives would take care of him. The defense then presented it's first witness/1/\, Keith Wohr ("Keith") after the trial court denied appellant's motion for acquittal. Keith lived in an apartment above Shay's and knew Shay for about three to four years and appellant for about one year. Keith testified solely about an incident which occurred on March 17, 1989. At approximately 7:20 p.m., he heard "pounding at Maria's door." Maria screamed that she was going to call the police, to leave her alone, she did not want any trouble, and she did not know whey "they" were there at her door. Keith subsequently heard Maria's door being kicked in by unidentified males. Keith did not hear Shay's voice at this time. Keith left his apartment and returned at approximately 11:00 p.m. Keith heard "fighting and screaming" between Shay and the appellant at about 11:30 p.m. This argument lasted nearly fifteen to twenty minutes. Keith then heard "Shay called Mark /1/\ The witnesses for the defense testified about events which occurred prior to March 31, 1989. One inference to be drawn from defense testimony is that appellant and Shay knew one another and had in the past entered into loan arrangements thereby making the "$10" incident another loan request. Another inference to be drawn is that Shay did not receive his injuries from any fight on March 31, 1989 but had received the injuries in an earlier struggle with appellant. There was also an inference from the testimony that Pat was the instigator of the criminal action as appellant was upset with Pat's father, the landlord, because Maria's children were injured in the building. - 4 - [appellant] on for another fight" and the appellant asked, "Why did he have to come after him with a pipe." Keith then testified that the appellant returned to the building and apologized to Shay. The substance of Shay's response to the apology was that he did not want any further trouble with appellant. Keith never saw appellant in the building after March 21st; Maria moved out of the building almost immediately after the fight. Keith's mother, Diane Wohr ("Diane") testified next. Diane knew Shay and Maria but did not personally know appellant. She likewise testified solely about the March 17th fight in the building. Diane heard fighting and yelling downstairs and called the police. She assumed it was Maria and appellant who were involved in the argument. By the time the police called back, the noise had quieted down so the police cancelled the call. Diane reawakened and heard Maria yelling and crying for appellant "to stop." She once again phoned the police and did not know if they ever responded to the call. Diane learned on March 18th that Shay had been beaten when she observed his swollen eye and discolored, swollen face. Maria Sanadnik was the last witness to testify for the defense. Maria knew Shay for approximately eighteen (18) years as she went to school with his daughter. She also lived in the same apartment with him for about five (5) years. She testified - 5 - in regards to two separate arguments on two different dates between Shay and appellant. The first argument occurred after Maria discovered her phone was not working and she went to Shay's apartment to ask if he had phone service. Shay asked her to call the phone company by going to the phone booth around the corner. Appellant, upon learning of Shay's request, became angry because Maria would have to go to the booth in the dark and Shay, who had a car, would remain safely in his apartment. Appellant proceeded to Shay's apartment door which he pounded and then yelled that he should not be sending a woman out in the rain. Appellant furthermore yelled that if Shay wanted his phone fixed, he should call the company himself. The argument was soon over. Maria could not remember the date of this incident. Maria then recalled the incident of March 17, 1989. She testified that at "About 9:00 o'clock, 9:30, three guys kicked in my door, and they said they was [sic] there because of Mr. Shay." As they were pounding on the door and Maria was holding the door, one man said he wanted the appellant. If they could not "get" appellant, Maria testified that "they was [sic] going to kill me and my kids." She eventually called the police who arrived close to 10:30 p.m. By that time, the men had broken down the door. The police remained for ten (10) to fifteen (15) minutes and spoke to Shay during this time. Appellant returned to the apartment between 11:15 and 11:30 p.m. Appellant subsequently went to Shay's apartment. Shay hit - 6 - appellant with a pipe on the right hand. Appellant then hit Shay. Maria testified that Shay and appellant "kind of made up" and at some point, Shay told appellant that he was responsible for sending the three men to Maria's apartment. Maria also heard appellant and Shay discussing money, but she only heard an amount, "$10." Maria moved out of her apartment on Sunday, March 19th and never returned to it. Appellant returned to the apartment approximately two to three days later to retrieve odds and ends. Maria testified that to her knowledge, appellant never returned to the apartment thereafter. II. In his first assignment of error, appellant contends that: "THE EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO UPHOLD THE CONVICTION OF ROBBERY THEREBY DENYING APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION." Appellant was convicted of robbery in violation of R.C. 2911.02. Thus, in order for this court to affirm his conviction, the record must demonstrate that the state proved beyond a reasonable doubt that the appellant, in attempting to or committing a theft offense, or in fleeing after such attempt or offense, used or threatened the immediate use of force against Robert Shay. Appellant asserts that the state failed to meet its burden by not proving two essential elements of the offense. First, he avers that it was not proved beyond a reasonable doubt that he - 7 - intended to commit a theft offense. Second, the state failed to prove beyond a reasonable doubt that appellant's use of force was simultaneous with or in furtherance of the commission of a theft. The test for sufficiency of the evidence is "*** whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia (1979), 443 U.S. 307, 319; State v. Davis (1988), 49 Ohio App. 3d 109, 113; State v. Martin (1983), 20 Ohio App. 3d 172, 175. Furthermore, the weight to be given the evidence and the credibility of the witnesses are issues primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230. In the case sub judice, the record reveals reasonable minds could not find beyond a reasonable doubt that the appellant intended to commit a theft offense and used force in furtherance of the commission of a theft. The conviction is, therefore, not sustained by sufficient evidence. A. R.C. 2911.02 requires the state to show, as an element of robbery, that the appellant committed or attempted to commit a theft offense. Thus the jury had to find beyond a reasonable doubt that the appellant committed or attempted to commit "theft." The elements of theft are set forth in R.C. 2913.02 which provides: - 8 - "(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; "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; "(3) By deception; "(4) By threat. "***" (Emphasis added.) An accused's intent must be determined from the surrounding facts and circumstances since it is only in his mind and cannot be proven by another's testimony. State v. Huffman (1936), 131 Ohio St. 27. The record herein fails to demonstrate that appellant sought to deprive Shay of any money. Appellant appeared at Shay's door and said, "Bobby, give me $10." This request alone does not create a reasonable inference that appellant's purpose was to deprive Shay of $10. There is no indication that appellant was ever going to continue in his quest for $10 once Shay refused to comply with appellant's request. Moreover, it is unclear how appellant could continue in his quest for $10 once Shay informed him that he did not have it. Shay's testimony reinforced this conclusion when he responded "no" when asked by defense counsel if appellant tried to steal money from him. Nothing was in fact stolen from Shay even after Shay was rendered unconscious or at least semiconscious. Shay testified that he was angry with appellant - 9 - because of the beating and not because of any attempted robbery. Furthermore, in a follow-up conversation with a detective, Shay told him he wanted appellant prosecuted because of the beating. Shay did not want appellant prosecuted because of an attempted robbery. The record, therefore, fails to disclose from the surrounding facts and circumstances that appellant intended to commit a theft on March 31, 1989. A rational trier of fact could not have found this essential element of robbery beyond a reasonable doubt from the evidence and any inferences reasonably drawn therefrom. B. Assuming arguendo that appellant intended to commit a theft, the state also failed to show that appellant used or threatened the use of force against Robert Shay for purposes of R.C. 2911.02. R.C. 2901.01(A) defines force as "*** any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." The force requirement is met "*** 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." State v. Davis (1983), 6 Ohio St. 3d 91, paragraph one of the syllabus. See, e.g. State v. Bigsby (Jan. 31, 1985), Cuyahoga App. No. 48410, unreported. - 10 - In State v. Davis, supra, the Supreme Court of Ohio held that the threat of the immediate use of force against another can be established by threatening demeanor and demanding words. The offender in Davis demanded money from a person while holding one of his hands under his clothing as if he were carrying a firearm. It was irrelevant that he did not verbally threaten harm. It was the offender's threatening demeanor that established the element of force required for a robbery conviction. State v. Davis, supra, 93. Evidence of demanding words was sufficient to show the element of force or the threatened use of force in State v. Smith (Oct. 16, 1989), Butler App. No. CA 89-03-049, unreported. The victim in Smith while at home, heard knocks on her door and the sound of breaking glass. The appellant entered the home, demanded money, and threatened to kill her with a gun if he did not receive the money. The victim handed over the money. The court cited State v. Davis, supra, in its affirmance of the appellant's conviction for robbery. In State v. Sherrills (Mar. 17, 1988), Cuyahoga App. No. 53535, unreported, this court held that a victim need not specifically testify about his fear if it is possible for the jury to reasonably conclude that a defendant's statements or actions had that purpose and effect. Id., 4. In Sherrills, although the victim did not speak of "fear" per se, he thought the defendant had a gun and the defendant pressed what was thought to be the gun against the victim and said, "I have a gun, - 11 - let's have your wallet." The victim handed over his wallet. Id., 1. The appellant in the within action appeared at Shay's door and said, "Bobby, give me $10." It was only after Shay said, "I don't got it," that appellant struck him. Shay never testified that he was placed in fear by appellant's spoken words, that Shay verbally threatened him any way, or that Shay's demeanor was threatening. The situation here is, therefore, distinguishable from those in Davis, Smith and Sherrills where such evidence was presented at trial. Shay's own statement, "I don't got it" negates any inference that he was induced to part with his property against his will and had his will temporarily suspended by virtue of any terror. In addition, it is not inconceivable that appellant struck Shay out of frustration after being told that Shay would not give him the money. Shay himself reinforced this inference when he told Officer Ball that a "male *** asked him for some money, and when he refused the male began to beat him up." R.C. 2911.02 requires that the elements of robbery occur simultaneously. The state must, therefore, prove that the accused's intent to deprive the owner of the property coincides with the force or threat of force used in connection with the theft offense or flight thereafter. State v. Ballard (1984), 14 Ohio App. 3d 59. As stated supra, there was no evidence in the record that appellant acted in a threatening manner or spoke threatening words to Shay when he appeared at Shay's door. There was, - 12 - therefore, no force or immediate threat of force present before appellant actually struck Shay. The issue hence becomes whether the striking of Shay can be used to establish this essential element of robbery. This court cannot accept said assertion as requested by appellee. Nothing in the record indicates that appellant intended to deprive Shay of any property when he struck him. The appellant was already made aware that Shay did not have the money at the time of the "assault." The appellant could not have had any intent to deprive Shay of the money thereafter. The state failed to present sufficient evidence to establish the element of the use of force or the threat of immediate use of force beyond a reasonable doubt. The state, therefore, failed to establish that the appellant violated R.C. 2911.02 as this is an essential element of the offense. In conclusion, the record fails to establish that appellant intended to commit a theft offense on March 31, 1989. The record also fails to disclose that appellant used force or threatened the immediate use of force in connection with an attempted theft or flight thereafter on March 31, 1989. Accordingly, appellant's first assignment of error is sustained. III. Appellant asserts in his second assignment of error that: "THE TRIAL COURT'S FAILURE TO GIVE A JURY INSTRUCTION FOR THE LESSOR [SIC] INCLUDED OFFENSE OF ASSAULT CONSTITUTES PLAIN ERROR. - 13 - Appellant asserts that assault is a lesser included offense of robbery and that it was, therefore, error for the trial court not to instruct the jury on assault. However, a review of the record indicates that appellant's trial counsel never requested the instruction at trial nor did he object to the instructions as given to the jury. A party waives any claim of error as to the failure to give any instruction absent his objection upon the record. State v. Underwood (1983), 3 Ohio St. 3d 12, syllabus. It is appellant's contention that such omission constituted plain error pursuant to Crim. R. 52(B). Plain error will only be recognized under exceptional circumstances and only to prevent a miscarriage of justice. State v. Long (1978), 53 Ohio St. 2d 91. As appellant waived this claimed error by failing to object, and the facts do not indicate plain error, appellant's second assignment of error is overruled. IV. Appellant contends in his third assignment of error that: "MARK KOUNS [APPELLANT] WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL." Appellant follows his second assigned error with the assertion that his trial counsel was thereby ineffective for not requesting an instruction on the lesser included offense of assault. He also asserts that trial counsel was ineffective in not objecting to the court's instructions as given to the jury. The test to be applied in determining whether appellant was denied effective assistance of counsel, is whether he had, under - 14 - all the circumstances, a fair trial and whether substantial justice was done. State v. Hester (1976), 45 Ohio St. 2d 71. The Ohio Supreme Court, in State v. Lytle (1976), 48 Ohio St. 2d 291, defined the standard for determining effective assistance of counsel. First, there must be a substantial violation of any of defense counsel's essential duties to his client. Second, counsel's ineffectiveness must prejudice the defense. Furthermore, appellant has the burden of proof on the issue of counsel's effectiveness since a properly licensed attorney in Ohio is presumed competent. Lytle, supra, 391. The failure to request an instruction on a lesser included offense may be a trial tactic which is designed to avoid a compromise verdict. Such a failure, therefore, is not a breach of an essential duty and is not evidence of ineffectiveness. State v. Wilson (July 16, 1987), Cuyahoga App. Nos. 52327, 52328, unreported. Appellant's third assignment of error is overruled. In conclusion, based on this court's disposition of appellant's first assignment of error, judgment is reversed and the appellant is hereby ordered discharged. - 15 - This cause is reversed and appellant is ordered discharged. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. J.F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY; DYKE, P.J., DISSENTS (See Attached Dissenting Opinion). SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59065 STATE OF OHIO : : DISSENTING Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARK KOUNS : : Defendant-appellant : : DATE OCTOBER 31, 1991 DYKE, J., DISSENTING: I respectfully dissent from the majority's conclusion that appellant's conviction for robbery was unsupported by sufficient evidence. I would like to initially emphasize that when this court considers a claim that a conviction was not supported by sufficient evidence the test is "whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt." State v. Apanovitch (1987), 33 Ohio St. 3d 19, 23. (Emphasis added.) Unlike a manifest weight review, this court when faced with a sufficiency question determines whether the evidence "is such that reasonable minds can reach different conclusions as to whether each material - 2 - element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St. 2d 261. I believe the majority failed to review the evidence in light of the Apanovitch and Bridgeman standards. The robbery statute (R.C. 2911.02) states, in pertinent part, that no person in attempting or committing a theft offense, shall use or threaten the use of force against another. The majority states that there was no indication that defendant was going to continue in his quest for $10. once refused and thus the element of theft was not proven. The robbery statute does not mandate that a theft has to have been committed for a conviction. This statute allows for an attempt. The victim in this instance testified that the defendant demanded $10. from him and when he stated he didn't have it, defendant simultaneously with the victim's response, began to beat him. Reviewing inferences drawn from the evidence, in a light most favorable to the state, reasonable minds could have concluded that defendant disbelieved the victim's response and attempted, with the use of force, to steal what he believed the victim to possess. It is also reasonable to infer that defendant may have changed his mind after the beating and left the scene. Nonetheless, an attempt to commit a theft offense could be inferred. Although the majority's analysis presents several possible inferences from the evidence presented, they are not the only - 3 - inferences which could be drawn by a reasonable jury. The state cannot probe a defendant's mind and put forth direct evidence of the defendant's intent at the time of the alleged crime. The state in this instance put forth sufficient evidence from which a jury could find, beyond a reasonable doubt, that appellant in attempting a theft offense used force against another. I would therefore affirm the conviction for robbery. Lastly, I would like to note the majority's disposition of the second assignment of error. I find it curious that the majority concludes the robbery conviction is unsupported by the evidence and then in the second assignment of error concludes it was not plain error for the jury not to be charged on a possible lesser-included-offense. Assuming arguendo, I agreed with their conclusion that the conviction for robbery was unsupported by the evidence, I would address the argument of whether an instruction on assault should have been given. In addressing that issue I would have concluded that assault was not a lesser included offense of robbery because robbery merely requires the use of force, or threatened use of force, which may or may not involve causing or attempting to cause physical harm to another as does assault (R.C. 2903.13). See State v. Lovato (October 13, 1989), Montgomery County, App. No. 11406, unreported. .