COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67795 and 67796 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DENVER ROBERTSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 19, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case Nos. CR-298827 and CR-279820 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: EDWARD O. PATTON, ESQ. MARK D. MCGRAW, ESQ. CHRISTOPHER L. FREY, ESQ. 800 Standard Building Assistant County Prosecutors Cleveland, Ohio 44113 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, J.: In this consolidated appeal, defendant-appellant, Denver Robertson, challenges two decisions from the trial court convicting him of aggravated robbery (Case No. 67796) and felonious assault (Case No. 67795) and sentencing him accordingly. Robertson assigns 1 six errors for our review. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On October 2, 1992, Daniel Finley was walking home when he was accosted by Dante Pester, Roscoe Woodberry, and Denver Robertson, defendant-appellant. After they exchanged a few words, Dante Pester hit Finley across the neck with his forearm. Woodberry and Robertson began punching and kicking Finley until he was rendered unconscious. As Pester and Woodberry fled, both looked back and saw Robertson going through Finley's pockets. The group met up together in a nearby alley. Once there, Robertson had Finley's wallet, pager, and a marijuana cigarette. Robertson, Woodberry, and Pester smoked the marijuana cigarette. Robertson went through the wallet and removed approximately sixty dollars. After a short time, Robertson and Pester returned to where Finley lay unconscious while Woodberry called 911. The three then fled the scene. Finley was later taken to the hospital where he was found to have sustained severe closed head injuries. Shortly 1 See Appendix. -4- after the attack, the police began receiving anonymous phone calls from people asking about Finley's condition. Suspecting that the callers were involved in the attack on Finley, police officers told one of the callers that Finley was going to die. The following day, the police department received a call from Woodberry stating that he was involved in the attack and wanted to talk to police. After talking to Woodberry, the police arrested him and later arrested Dante Pester and Denver Robertson. Woodberry and Pester later pleaded guilty to felonious assault and were sentenced to prison terms of eight to fifteen years and five to fifteen years, respectively. Robertson, who was seventeen years old at the time of the attack, was charged in juvenile court with delinquency because of felonious assault. Robertson admitted the charge and was adjudicated delinquent in December 1992. Robertson was sentenced to six months probation. Due to the severity of his injuries, it was several months before Daniel Finley was able to cooperate with police. Upon his release from the hospital in March 1993, Finley provided police with information that several of his personal items were missing including his pager, his gasoline credit card, his silver dollar, and some cash. Based upon this additional information, Robertson was charged in juvenile court with delinquency because of aggravated robbery on March 16, 1993. The complaint alleged Robertson took Finley's wallet containing money, his silver dollar, pager, and other personal property. In an order journalized June -5- 7, 1993, Robertson's case was transferred to the common pleas court for criminal prosecution. Robertson was indicted on July 8, 1993 for aggravated robbery. (CR-297820) On July 28, 1993, Robertson was indicted for felonious assault with violence specifications for a March 27, 1993 incident in which he struck Woodberry in the head with a bottle. (CR-298827) Robertson's aggravated robbery trial took place in June 1993. Woodberry and Pester testified against Robertson at trial. Robertson was convicted of aggravated robbery. He subsequently pleaded guilty to the felonious assault of Roscoe Woodberry. Robertson was sentenced to seven to twenty-five years in prison for the aggravated robbery and also received a concurrent sentence of two to ten years for the assault on Roscoe Woodberry. This appeal followed. In his first assignment of error, Robertson asserts the trial court lacked jurisdiction over him once he had been adjudicated delinquent in juvenile court. The juvenile court found Robertson delinquent after he admitted to the felonious assault of Daniel Finley. Although the subsequent charge of aggravated robbery arose from the same incident, the charge was based on facts unknown to the police at the time Robertson was originally charged. The aggravated robbery was a charge separate from the felonious assault. The robbery charge was the subject of a May 25, 1993 amenability hearing before the juvenile court to determine if Robertson would be charged as an adult. Only after finding that he was not amenable to rehabilitation in the juvenile system did the -6- juvenile court waive its jurisdiction and bind Robertson over to the court of common pleas. Robertson's first assignment of error is overruled. Robertson next asserts the trial court erred in finding him not amenable to rehabilitation. After its initial finding of delinquency against Robertson, the juvenile court placed Robinson on probation. Among the terms of his probation was the requirement that he return to school and maintain a satisfactory academic performance. However, while on probation, Robertson amassed a substantial number of unexcused absences and began failing his courses. In addition, while on probation, he became drunk at a party and ended up in a fight with Roscoe Woodberry. The fight culminated with Robertson hitting Woodberry in the face with a bottle. In light of Robertson's behavior while on probation, the juvenile court did not err in finding that Robertson was not amenable to rehabilitation through the juvenile system. In his third assignment of error, Robertson asserts the trial court erred in denying his motion to dismiss. Despite Robertson's arguments to the contrary, we find that his prosecution for aggravated robbery was not barred by the collateral estoppel doctrine or by double jeopardy. Consequently, the trial court did not error in denying his motion to dismiss. The collateral estoppel doctrine precludes relitigation of an issue of ultimate fact once that issue has been determined by a valid final judgment. Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193,195. The double jeopardy doctrine -7- precludes a subsequent prosecution or punishment for any offense for which a defendant has been previously prosecuted or punished. See Wilson v. Rogers (1993), 68 Ohio St.3d 130,131. During the first delinquency hearing, Robertson was not charged with aggravated robbery. The only issue before the juvenile court was whether Robertson committed felonious assault. The issue of aggravated robbery was not addressed, and the juvenile court made no determination about whether Robertson had committed aggravated robbery. Citing State v. Thomas (1980), 61 Ohio St.2d 254, Robertson argues multiple prosecutions arising out of the same conduct are barred by the principle of double jeopardy. However, State v. Thomas recognizes an exception to this rule in situations where one course of conduct subjects the defendant to several possible charges. The state's decision to prosecute one of the possible charges does not preclude a subsequent prosecution for a second charge when the failure to include such charge in the initial prosecution is due to the state's excusable failure to discover the facts necessary to support the second charge. State v. Tolbert (1991), 60 Ohio St.3d 89, 91. Although the police were aware that items were missing from the victim, the victim was unable to verify what was taken until March 1993 when Robertson's personal belong- ings were returned to him upon his release from the hospital. In addition, the police had no witnesses who could specifically link Robertson to the theft until March 1993 when Pester told police he saw Robertson going through Finley's pockets. In June 1993, -8- Woodberry also named Robertson as the one who took Finley's property. Under the circumstances, we find the state's initial failure to charge Robertson with aggravated robbery was due to its excusable failure to discover facts in support of the charge. Consequently, there was no violation of either the double jeopardy clause or the collateral estoppel doctrine. In Robertson's fourth assignment of error, he asserts that the aggravated robbery charge was a lesser included offense of the felonious assault charge adjudicated in juvenile court. Under Blockburger v. United States (1932), 284 U.S. 299, when two offenses have identical statutory elements or one is a lesser included offense of the other, a prosecution for one of the offenses bars a subsequent prosecution for the other. Robertson argues that his prosecution for aggravated robbery after he was adjudicated delinquent for felonious assault violated the double jeopardy clause. We disagree. A felonious assault occurs when a person knowingly causes serious physical harm to another or causes or attempts to cause physical harm to another. R.C. 2903.11. An aggravated robbery occurs when a person inflicts or attempts to inflict serious physical harm on another while attempting or committing a theft offense or in fleeing immediately after such attempt or offense. R.C. 2911.01. Robertson argues that felonious assault is a lesser included offense of aggravated robbery and that the state could not prosecute Robertson for the more serious offense of aggravated -9- robbery once he had been adjudicated delinquent by reason of felonious assault. In State v. Sparano (1984), 19 Ohio App.3d 193, the court ruled that two offenses are not related as greater and lesser included offenses if each offense as statutorily defined contains an element which the other does not. Although the crimes of aggravated robbery and felonious assault both contain the element of serious physical harm, felonious assault adds the requirement that the harm be caused knowingly. State v. Bumphus (1976), 53 Ohio App.3d 171. In addition, aggravated robbery requires proof of a theft, which is not required to prove felonious assault. Consequently, felonious assault is not a lesser included offense of aggravated robbery. Robertson's fourth assignment of error is overruled. In his fifth and sixth assignments of error, Robertson asserts the trial court erred in its instructions to the jury. Robertson asserts the trial court committed reversible error in not properly explaining the elements of force and theft as part of the charge of aggravated robbery and by refusing to give the requested jury instruction on aggravated robbery. We disagree. The court gave the following instruction on aggravated robbery: Before you can find the Defendant guilty, you must find beyond a reasonable doubt that on or about October 1st to October 2nd, 1992, in Cuyahoga County, Ohio, the Defendant knowingly obtained, attempted to obtain, fled immediately after obtaining, or fled immediately after attempting to obtain property owned by another -10- without that person's consent and for the purpose of depriving that person of that property, And you must find that the Defendant inflicted or attempted to inflict serious physical harm upon the person of another. The instruction given by the court properly informed the jury that, in order to find Robertson guilty of aggravated robbery, they had to find that he inflicted or attempted to inflict serious physical harm upon the victim. However, Robertson argues the trial court failed to properly explain that in order to establish robbery, the state had to prove that the use of force was simultaneous with the theft of the victim's property. In support of his argument, he cites State v. Ballard (1984), 14 Ohio App.3d 59. In Ballard, the court reversed a robbery conviction where the defendant took his ex-girlfriend's purse in order to get her to talk to him, then took her gun from the purse before returning it to her. The court found that Ballard had no intention to deprive the victim of her purse, only to convince her to talk to him. The court also found that Ballard could not properly be convicted of robbery for taking the gun because there was no force accompanying the theft of the gun. The facts of this case are different from those in Ballard. In Ballard, the defendant was charged with robbery, not aggravated robbery as in this case. The use or threat of force is an element of robbery while the offense of aggravated robbery does not include the element of force. To prove aggravated robbery, the state must prove only that the defendant inflicted or attempted to inflict -11- serious physical harm on the victim in attempting or committing a theft offense. In this case, the victim was attacked by Robertson and was seriously injured. The evidence presented at trial included testimony that Robertson removed the victim's property immediately after beating and kicking him. The witnesses testified, as they ran away after beating the victim, they observed Robertson going through the victim's pockets. When the group met up in a nearby alley just a few seconds after the initial assault, Robertson had the victim's property. In light of the evidence presented at trial and the offense charged, we find that the trial court's instructions were proper. Robertson's fifth and sixth assignments of error are overruled. Because we find that the common pleas court properly exercised jurisdiction over Robertson for the aggravated robbery charge, we find that the court properly adjudicated the case against Robertson for the felonious assault of Woodberry. The trial court's judgment is affirmed in both Case Nos. 67795 and 67796. Judgment affirmed. -12- 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. PORTER, J., and McMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -13- APPENDIX I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENDANT'S MOTION TO DISMISS ON THE GROUND THAT THE TRIAL COURT LACKED JURISDICTION OVER THE DEFENDANT. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING DEFENDANT-APPELLANT TO BE NOT AMENABLE TO REHABILITATION AND IN TRANSFERRING THE CASE TO ADULT COURT. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENDANT'S MOTION TO DISMISS WHICH WAS BASED ON THE DOCTRINE OF COLLATERAL ESTOPPEL EMBODIED IN THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING THE DEFENDANT'S MOTION TO DISMISS ON THE GROUND THAT FELONIOUS ASSAULT IS A LESSER INCLUDED OFFENSE OF AGGRAVATED ROBBERY BASED ON THE EVIDENCE ADMITTED IN THIS CASE AND THE WORDING OF THE JUVENILE COURT COMPLAINT FOR FELONIOUS ASSAULT. V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT PROPERLY EXPLAINING THE TEMPORAL RELATIONSHIP REQUIREMENT OF THE ELEMENTS OF FORCE AND THEFT IN THE CHARGE OF AGGRAVATED ROBBERY. VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN .