COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67771 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ANDRE BROWN : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 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 Cuyahoga County Prosecutor Michael B. Telep Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Robert A. Dixon, Esq. 1280 West 3rd Street, #100 Cleveland, Ohio 44113 SWEENEY, JAMES D., J.: Defendant-appellant Andre Brown ("Brown") appeals from his bench trial conviction of one count of Robbery in violation of R.C. 2911.02 as charged in the indictment. For the reasons adduced below, we affirm. The record on appeal indicates that three witnesses testified on behalf of the State. The first witness was Cleveland Police Patrolman Edwin Santiago who testified in pertinent part as follows (R. 18-73): (1) on February 10, 1994, at approximately 3:30 a.m., he and his partner, who were responding in their zone car to a dispatch of gunshots having been fired about one-half mile away, were flagged down in the vicinity of East 105th Street and Superior Avenue by a visibly upset female (Michelle Palmer) who stated that she had been robbed of $30; (2) the robbery victim described her assailants as four men who were riding in a dark-colored car which had a red ribbon tied to the radio antenna; (3) the officers responded to the alleged gunshots in the vicinity of East 55th Street, meeting a man who described four males as his assailants who were in a dark grey car; (4) the officers returned about fifteen minutes later to the area where Ms. Palmer had flagged them down earlier; (5) at this point, they again saw Ms. Palmer who saw the officers and pointed toward a moving dark-colored car with a red ribbon on the antenna; (6) the officers followed the car, observed one man exit the car at the corner of East 105th Street and Hampden Road, pulled the car over, and removed two males from - 3 - the dark-colored car; (7) Ms. Palmer came over and immediately identified without hesitation the two men as the men who had robbed her; (8) those two males were Brown and his co-defendant James Lett; (9) Mr. Lett was the driver of the car; (10) Brown told the police that he was returning from East Cleveland; (11) a crack pipe was found in Mr. Lett's possession, while over $100 in currency in small denominations was in the possession of Brown; (12) Ms. Palmer claimed that she was robbed of one twenty-dollar bill and ten single-dollar bills; (13) aspirins which had been cut up to resemble rocks of crack cocaine were observed by the witness inside the dark-colored car. The second witness for the State was Michelle Palmer, who corroborated the testimony of Officer Santiago, adding in pertinent part the following (R. 74-130): (1) on the date of the robbery, she lived on Hampden Road near East 105th Street, which is considered a high drug activity area; (2) she received threats concerning her willingness to testify in this case which resulted in some fights, so she moved shortly after the offense; (3) she saw two men in the dark-colored, four-door car with the red ribbon on the antenna at the time of the robbery; (4) the passenger, who was identified in court as defendant Brown, got out and demanded the money; (5) Mr. Lett was driving the car; (6) at the time of the robbery, she ran away after surrendering the money because Mr. Lett instructed Brown to also take her Washington Redskins starter jacket; (7) after being asked for money, she pulled some bills from - 4 - her pocket and extended her hand, whereupon Brown snatched the money from her hand, at which time she felt scared, particularly so when Mr. Lett, seemingly in a state of rage, demanded the coat off her back (R. 126-127); (8) she is five-feet two-inches tall and weighs 150 pounds. The third witness for the State was Cleveland Police Patrolman Timothy Longfellow, who corroborated the testimony of his partner, Officer Santiago, and the victim. (R. 131-136.) At this point the State rested. Counsel for Brown made a motion for acquittal pursuant to Crim.R. 29. This motion was denied. Defendant-Lett then testified on his own behalf, stating the following in pertinent part (R. 140-186): (1) he is thirty-eight years old and resides in Bedford Heights with his wife; (2) he has a prior felony drug abuse conviction (selling marijuana); (3) on the date of the offense, he was playing video games at a nineteen- year old friend's (named "Marcus") house in East Cleveland, when he was asked to go to the store to get some cigars; (4) he had arrived at the friend's house at 2:30 a.m.; (5) Mr. brown was already at Marcus's house when the witness arrived; (6) he left Marcus's house to get the cigars sometime between 3:00 and 3:45 a.m.; (7) he and "Andre" drove around to kill time, waiting for 4:30 a.m. to arrive to buy some beer, when Ms. Palmer approached the car at East 110th Street and Superior Avenue wanting to buy some crack cocaine; (8) he told her no to the drug request; (9) he later saw Ms. Palmer on - 5 - East 105th Street, at which time he sold her the aspirin for $8 as a joke; (10) he then went back to Marcus's house for a short time before leaving to drop the owner of the aspirin off at East 105th Street and Hampden Road; (11) it was after dropping off this friend that the police pulled the car over; (12) he denied robbing the victim; (13) he thought the outside temperature was 32 degrees; (14) the police report reflected that it was 0 degrees at rush hour that morning; (15) he is about twenty years older than defendant Brown; (16) he doesn't use crack, and the crack pipe which was found in the witness's underwear belonged to the man who got out on Hampden Road; the witness was saving it for his friend who had dropped it in the car; (17) he does not recall the victim wearing a Redskins starter jacket; (18) his car has four doors, is dark 1 colored, and has a red ribbon on the antenna ; (19) no cold stand identification ever took place. At this point defendant Lett rested his case. Defendant Brown, generally corroborating defendant Lett's testimony concerning the activities leading up to and including the offense, testified as follows in his own behalf (R. 187-216): (1) he is twenty-years old and dropped out of school in the eleventh grade; (2) he has been consistently employed in a variety of jobs since he was fifteen-years old, with certain small periods of intermittent unemployment; (3) he is acquainted with Mr. Lett, but 1 The red ribbon is for support for Mothers Against Drunk Driving. - 6 - does not consider him a close friend; (4) he had been paid his general assistance check the day before; (5) when the friend exited the car at the corner, the witness also exited the car's back seat door and got into the front passenger door; (6) he denies robbing the victim; (7) he never saw a crack pipe in the car; (8) the victim has wearing a red jacket underneath a brown suede jacket when they first saw her; (9) he is five-feet nine-inches tall and weighs 190 pounds. At this point the appellant rested. The parties then made a closing argument to the court, which although not formally motioned for by the defendants pursuant to Crim. R. 29, consisted of arguing for acquittal based on the elements of the offense not having been demonstrated. The court found both defendants guilty of the charged offense based on the force used to take the money from the victim's hand against her will and the intimidation involved. (R. 228.) At a later sentencing hearing, Brown was sentenced to a term of three to fifteen years. This appeal followed, presenting the sole assignment of error: THE APPELLANT'S CONVICTION FOR ROBBERY MUST BE REVERSED AS IT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE. The test for reviewing the sufficiency of the evidence in a criminal case requires determining, as a matter of law, when the evidence is construed most favorably for the prosecution, whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks - 7 - (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. In analyzing this assignment we are guided by State v. Furlow (Montgomery, 1992), 80 Ohio App.3d 147, 148 (where the act of the defendant in snatching a wallet and money out of the victim's firmer than usual grip did not constitute the type of force necessary to sustain a conviction for robbery), which provides as follows: To the extent pertinent to this appeal, R.C. 2911.02(A) defines and prohibits the offense of robbery as follows: "No person, in *** committing a theft offense *** shall use or threaten the immediate use of force against another." "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 Committee Comment to R.C. 2911.02 states in part that "*** this section provides that the difference between theft and robbery is an element of actual or potential harm to persons." ***. In the context of robbery, at least two appellate courts have stated that 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." State v. Carter (1985), 29 Ohio App.3d 148 at 149, 29 OBR 165 at 166, 504 N.E.2d 469 at 470. State v. Ballard (1984), 14 Ohio App.3d 59 at 60, 14 OBR 64 at 65, 469 N.E.2d 1334 at 1335. In our judgment, these courts, guided by the Committee Comment to R.C. 2911.02, have properly determined that the difference between theft and robbery is an element of actual or potential harm to persons. In the present case, the victim testified at trial as follows: Q. What happened? - 8 - A. I was getting off the bus and I came to the light on East 105th and Hampden, where at that time I went to cross the street. There was a car sitting at the light, but I paid it no attention. When I was walking down Hampden, the car made a left turn on Hampden behind me and it pulled up to me, whereas the driver of the car [defendant Lett] asked me if I needed a ride. And I told him naw, and as I kept walking, he said, "Are you sure you don't need a ride?" And I said no and I crossed the street. At this point, the passenger in the car [defendant Brown] screamed out, "Aw bitch, you know you need a ride." As I turned to go back towards 105th, the passenger then opened up the car door. He exited the car and he said, he said, "Give me your money," and I said, "I don't have no money." He said, "Yes, you do. You got some money." The driver of the car was there and he was stating, "Take the coat. Take her coat man." (R. 83-84)(Emphasis added)[Explanation added]. *** When he [defendant Lett] got out of the car is when I stuck my hand into my pocket, removed my money from my pocket and said, "You can take the money, just don't take my coat." At this time, Mr. Brown snatches the money from my hands and the other guy says, "Take her coat anyway," and that's when I broke and ran. (R. 90-91)[Explanation added]. A fair reading of the testimony above discloses a lack of a use of immediate force toward the victim. The victim was not touched in any way. Instead, the trial court used as the basis for its conviction the intimidation and/or fear factor present in the - 9 - situation. This intimidation or fear factor, which relies on the time of the offense, the size difference between the actors, the demeanor of the perpetrator, and the likelihood of physical injury from the defendant's conduct, is analogous to the threat of the immediate use of force. See State v. Carter (1985), 29 Ohio App.3d 148, syllabus; also, State v. Davis (1983), 6 Ohio St.3d 91, 451 N.E.2d 772. As stated in the first paragraph of the Davis syllabus: 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. In State v. Willis (December 15, 1994), Franklin App. No. 94APA04-554, unreported, the court, in affirming the application of Davis, supra, to a bank robbery where a bank teller gave a robber some currency when presented with a hold-up note saying, "this is a hold up, give me two stacks of fifties," stated the following: The court further noted that the threat involved in robbery is the threat of the immediate use of force and that it does not intend a threat of disagreeable consequences that do not involve the immediate use of force. An objective standard is used to evaluate a threat. Davis, supra. In Willis, the court affirmed the robbery conviction finding that the teller's fear of harm was reasonable because a weapon, while not displayed, could be reasonably inferred in a bank robbery - 10 - and this formed the basis for the threat of the immediate use of force. In the present case, we conclude that the victim's will was so undermined by the intimidation and fear under the circumstances as to temporarily suspend her power to exercise that will. This intimidation satisfies the threat of immediate use of force element of the offense of robbery. Assignment overruled. 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 Common 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. LEO M. SPELLACY, P.J., and ANN McMANAMON*, J., CONCUR. (*)Sitting by Assignment, Ann McManamon, Retired Judge of the Eighth District Court of Appeals. JAMES D. SWEENEY 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 .