COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67754 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAMES J. LETT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 20, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-307378. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael B. Telep, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Francis A. Gorczyca, Esq. 1220 Standard Building 1370 Ontario Street Cleveland, OH 44113 James J. Lett, pro se Serial No. 293-260 Madison Correctional Institution P.O. Box 740 London, OH 43140 -2- DAVID T. MATIA, P.J.: James J. Lett, Jr., defendant-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas finding him guilty of robbery as defined in R.C. 2911.02. Appellant assigns one error for review concerning the sufficiency of the evidence. This court, finding no error, affirms appellant's conviction. I. STATEMENT OF FACTS On March 30, 1994, James J. Lett, Jr., defendant-appellant, was indicted for robbery as defined by R.C. 2911.02. A bench trial was had on June 28, 1994. Michele Palmer, the victim, testified that on the morning of February 10, 1994, at approximately 3:00 a.m., she was walking home from the bus station on Hampden Street, Cleveland, Ohio. As she was walking down Hampden Street, an automobile pulled up along side of her and asked her if she needed a ride. James J. Lett, Jr., defendant-appellant, was the driver of the automobile. Ms. Palmer testified the passenger again asked her if she needed a ride. Ms. Palmer again said no and crossed the street. At this point, the passenger screamed profanities at Ms. Palmer, exited the automobile, approached her and said "[g]ive me your money." He was not carrying any weapons. Ms. Palmer stopped and told him she did not have any money. As this was going on, Ms. Palmer testified that defendant- appellant was telling his friend to take her Washington Redskin's starter coat. Defendant-appellant then exited and stood beside the automobile screaming at his friend to take her coat. Ms. Palmer -3- then took thirty dollars out of her pocket and defendant- appellant's friend snatched it out of her hand. Defendant- appellant then told his friend to take her coat anyway. Ms. Palmer ran away and saw a police cruiser coming down the street. Officers Santiago and Longfellow testified that they were responding to a radio call regarding shots that were fired when they witnessed Ms. Palmer step out in the middle of the street, waving her arms and looking upset. Although Ms. Palmer told the officers that she had just been robbed, they had to proceed to investigate their original assignment. A short time later, after Ms. Palmer called 911, the officers were dispatched back to the area where Ms. Palmer was waiting. Ms. Palmer again told the police she had been robbed by the two men in defendant-appellant's automobile which was approximately half-way down the street. The officers stopped the car and arrested defendant-appellant and his friend. Ms. Palmer identified them sitting in the back of the patrol cruiser as the two men who had just robbed her. James J. Lett, Jr., defendant-appellant, testified that he and his friend were driving around the block looking for a beverage store. Defendant-appellant testified that Ms. Palmer approached them and asked if they had crack cocaine to sell. Defendant- appellant testified that as a joke, he later offered Ms. Palmer a piece of aspirin that resembled crack cocaine and received $8.00 from Ms. Palmer. After Ms. Palmer left the car, defendant- appellant and his friend drove back to their friends house and -4- later returned to the area in search of an open beverage store. It is at that point when defendant-appellant and his friend were arrested. Moreover, the officers testified they had discovered aspirin which were cut in the shapes of crack cocaine in the automobile when they arrested the two men. At the scene of the arrest, the officers questioned whether defendant-appellant had sold Ms. Palmer fake crack cocaine. Initially, defendant-appellant denied selling the counterfeit crack cocaine but later testified that he believed Ms. Palmer accused them of robbery "[b]ecause she probably went and tried to smoke it *** and couldn't." On June 28, 1994 James J. Lett, Jr., defendant-appellant, was found guilty as charged. After this court granted defendant- appellant's motion for reinstatement, the appeal is properly before this court. II. ASSIGNMENT OF ERROR James J. Lett, Jr., defendant-appellant, states as his sole assignment of error: THE APPELLANT'S CONVICTION FOR ROBBERY MUST BE REVERSED AS IT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE. A. ISSUE RAISED: WHETHER APPELLANT'S CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE. Defendant-appellant argues his conviction was not supported by legally sufficient evidence. Specifically, defendant-appellant argues merely urging his friend to take the victim's coat does not constitute force or a threat of force as required to sustain -5- the conviction under R.C. 2911.02 as it would not have induced a reasonable person to part with their property against his/her will. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: SUFFICIENCY OF EVIDENCE. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. See also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. APPELLANT'S CONVICTION IS NOT/SUPPORTED BY SUFFICIENT EVIDENCE. In the case sub judice, the sole issue presented here is whether the actions of defendant-appellant were sufficient to constitute actual or threatened force under R.C. 2911.02 which reads in pertinent part: (A) 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. -6- -7- The element of force is defined in R.C. 2901.(A) which reads: (A) "Force" means any violence compulsion, or constraint physically exerted by any means upon or against a person or thing. "The use or threat of immediate use of force element of the offense of robbery *** 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." State v. Davis (1983), 6 Ohio St.3d 91, paragraph one of syllabus. Thus 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), Ohio App.3d 59; State v. Carter (1985), 29 Ohio App.3d 148. In the present case, we find the actions of defendant- appellant sufficient to constitute threatened force as defined in R.C. 2911.02. There was testimony establishing that defendant- appellant was driving with his friend at approximately 3:00 a.m. on Hampden Street. Defendant-appellant pulled up along side of the victim and asked her if she needed a ride. After the victim refused for the second time, she became anxious and crossed the street. At this point, the passenger screamed profanities at Ms. Palmer, exited the automobile, approached her and said "[g]ive me your money." -8- -9- The victim testified as follows: THE COURT: Would you tell me when he [the passenger] when he was doing that what your state of mind was. THE WITNESS: Scared. THE COURT: Had they done anything that frightened you? THE WITNESS: No, I was scared, but I didn't really get scared until the second man [defendant-appellant] exited the car. THE COURT: And what, how did he, what did he say? How did he, how did he cause you to be scared? THE WITNESS: It was like he was in a rage or something. He was screaming, "take the coat. Take the coat." And I couldn't see what he had in his hand or anything else because he never left the side of the car. He just jumped out and stood by the car. THE COURT: Okay. So are you telling me that this is accurate what I am saying, that you feared that they would take the coat off of you? THE WITNESS: Yes. THE COURT: And you gave them the money in hopes that that would satisfy them from taking the coat? THE WITNESS: Right. THE COURT: And the behavior of the man who got out saying, "take the coat, take the coat," led you to believe that it would be forcibly taken off you? THE WITNESS: It also led me to believe that the coat might not have been all that they took. From the above statements, we believe there existed sufficient credible evidence supporting the trial court's ruling that the -10- "threat of force," as defined in R.C. 2911.02, was proven beyond a reasonable doubt. Defendant-appellant's conviction was based upon sufficient evidence. Defendant-appellant's sole assignment of error is not well taken. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Comon Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, J. and TIMOTHY E. MCMONAGLE, J., CONCUR. DAVID T. MATIA PRESIDING 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 .