COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70217 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ELLSWORTH MATTHEWS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-327251. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John F. Corrigan, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Scott Roger Hurley, Esq. Assistant Public Defender 100 Lakeside Place 1200 W. Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Ellsworth Matthews, defendant-appellant, appeals his conviction of robbery in violation of R.C. 2911.02. Defendant-appellant raises three assignments of error. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS On May 13, 1995, the Star Bank located on East 185th Street in Cleveland, Ohio, was open for business as usual and occupied by several bank employees and patrons. At approximately 10:00 a.m., a man approached bank teller Janice Miller and handed her a note reading: "My gun is in the bag, five seconds to hand me big bills." Ms. Miller complied with the note and activated cameras which would photograph the bank robber leaving the building. As he was exiting the building, the bank robber ran into a former classmate, Ralph McLin, who was entering the building. Mr. McLin recognized the man and called out "Frank." The bank robber continued walking. Mr. McLin walked into the bank and learned it had just been robbed. Mr. McLin told the bank manager, Pete Rekstis of the F.B.I., and Detective Melvin Mervine of the Cleveland Police Department that he knew the bank robber from Margaret Spellacy Junior High School and his name was "Frank." A few days later, Mr. McLin called Detective Mervine and told him the bank robber's full name was "Frank Matthews." Using this information, Detective Mervine found defendant- appellant's criminal file and obtained an old booking photograph. Thereafter both the bank manager and Janice Miller picked -3- defendant-appellant from a photo spread. Moreover, other witnesses were questioned, the security camera film was developed and fingerprints were taken. On June 25, 1995, defendant- appellant was arrested. On August 21, 1995, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a one-count indictment which alleged that on May 13, 1995 he did commit robbery as defined by R.C. 2911.02. This charge included an aggravated felony specification. On January 12, 1996, a preliminary hearing was had concerning certain issues. Specifically, defendant-appellant's counsel had previously moved for voir dire of identification witnesses and for an order disclosing evidence used in the identification procedure. The state also reiterated its understanding that as a condition for proceeding to trial, they would be permitted to introduce evidence to the fact that defendant-appellant refused to submit a handwriting exemplar. Defense counsel objected to this "understanding" and reserved any further comments at that time. Trial commenced on January 16, 1996. The state presented eight witnesses including Janice Miller and Mr. McLin. The state also introduced the photograph from the bank surveillance camera and defendant-appellant's arrest photograph. Defendant-appellant took the stand on his own behalf. Among other things, defendant- appellant testified that he attended Margaret Spellacy Junior High School and that people called him "Frank" although his -4- actual name is Ellsworth Matthews Ferguson. On January 19, 1996, the jury returned a verdict of guilty. Defendant-appellant was sentenced to twelve to fifteen years at Lorain Correctional Institution. This appeal now follows. II. FIRST ASSIGNMENT OF ERROR Ellsworth Matthews, defendant-appellant, states as his first assignment of error: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING TESTIMONY THAT APPELLANT FAILED TO SUBMIT TO A COURT ORDERED HANDWRITING EXEMPLAR AND, CONSEQUENTLY, COMMITTED REVERSIBLE ERROR BY IMPROPERLY INSTRUCTING THE JURY THEREON, WHICH MISLED THE JURY AND DENIED THE APPELLANT A FAIR TRIAL, IN VIOLATION OF DUE PROCESS, GUARANTEED BY THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. A: ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN PERMITTING TESTIMONY CONCERNING DEFENDANT-APPELLANT'S FAILURE TO SUBMIT TO A HANDWRITING EXEMPLAR OR IN ITS SUBSEQUENT INSTRUCTION TO THE JURY REGARDING THE SAME. Defendant-appellant argues the trial court committed reversible error when it permitted testimony concerning his "supposed" failure to follow a court order to submit to a handwriting exemplar. Defendant-appellant argues he agreed to comply with the order and was available to submit to the sample but neither the state nor the police department made the attempt to obtain the exemplar. Defendant-appellant also argues the trial court committed prejudicial error in issuing a special jury instruction that the jury could consider defendant-appellant's perceived non- -5- compliance with the court ordered handwriting exemplar when determining defendant-appellant's credibility. Defendant-appellant's first assignment of error is not well taken. B. HANDWRITING EXEMPLAR. It is well established that a handwriting exemplar, issued solely for identification purposes, is a mere identifying physical characteristic and, as such, is outside the scope of Fifth Amendment privilege against self-incrimination, even if the mere words written are identical to the words contained in a writing directly linked to a crime; and there is no requirement that Miranda warnings be given prior to the giving of such handwriting exemplar. State v. Ostrowski (1972), 30 Ohio St.2d 34, paragraph one of syllabus. Accordingly, a defendant has no right to have his/her attorney present or to refuse to give a handwriting exemplar. See State v. Flinn (1982), 7 Ohio App.3d 294. C. THE TRIAL COURT DID NOT ERR IN PERMITTING TESTIMONY CONCERNING DEFENDANT-APPELLANT'S FAILURE TO SUBMIT TO A HANDWRITING EXEMPLAR OR IN ITS SUBSEQUENT INSTRUCTION TO THE JURY REGARDING THE SAME. In this case, a review of the record establishes a motion for handwriting exemplar was filed on November 29, 1995 and granted on December 11, 1995. On January 12, 1996, the trial court addressed certain pretrial motions before empaneling the jury when the following discussion ensued: MR. CORRIGAN [The State]: Another matter which would cause potential delay in this -6- trial, but we are ready to proceed to trial, is that, and, of course, Mr. Butler objects, but my understanding is that the State is only proceeding to trial in this case because it's my understanding that Detective Mervine will be allowed to testify to the fact the defendant refused to submit a handwriting sample for purposes of analysis and that is key to the State. THE COURT: Correct. MR. CORRIGAN: Going to trial at this point in time without a handwriting-- THE COURT: Right. Mr. Butler, do you understand that the Court ordered your client to submit a handwriting analysis and that they have not, to date, been able to get one from Mr. Matthews. So, Mr. Matthews, I'm ordering you again to submit a handwriting sample to the other side. It's their right under discovery rules, and however, if you refuse, I'm going to allow them to testify that they attempted to get a sample and you refused to do it, so that the jury is aware that you have not given the sample that you should have. So, do you understand my position, Mr. Butler and Mr. Matthews? MR. BUTLER: Yes, Judge. I understand your position and obviously I would object for the record, but I would like to reserve any further comments at this particular time. I just want a chance to look up something before I make any further statement. THE COURT: That is fine. I mean that is the only thing I would say, though. You know, two days later it's not going to solve the problem right when we're in the middle of trial. They're not going to have time to analyze it. MR. BUTLER: Right. THE COURT: So the fact of the matter is, you know, I think we all understand the -7- position. I can't force you, Mr. Matthews, to give a handwriting sample. If you don't, I can't just make them take it from you. It doesn't work that way. If you choose to continue to refuse, then I will allow them to tell the jury that you refused. Okay. (Tr. 11-13.) Thereafter the state called its first witness. On January 19th, before the state called its final witness, the following discussion was had: THE COURT: Before we bring the jury in, my understanding is that we need to discuss a couple issues. The first issue is the last witness, the detective, and Friday we had discussion concerning a handwriting exemplar, and my understanding is that the handwriting exemplar was not given to Mr. Corrigan. Why don't you state for the record what your intention is? MR. CORRIGAN: Your honor, pursuant--well, first of all, let me--it's obvious, but we have a demand note involved in the case. I filed and duly served a motion with the Court asking for a handwriting sample from the defendant. Through pretrial discussions with defense counsel Don Butler he indicated to me that he told his client that that was coming. And I think the defendant has the date for me. On January 3rd, 1996, Detective Mervine went to get that handwriting sample from the defendant. The defendant refused, and, in fact, his response, if not exact was, I told my attorney --I told my attorney that I wasn't going to give one. So Mr. Butler had done his job as his attorney, and told, obviously told him it was coming. Detective Mervine was refused and then in open court, and I'm satisfied at that -8- point, but then in open court you gave him-- THE COURT: I ordered him to do it. MR. CORRIGAN: That was Friday, I believe. THE COURT: Right. MR. CORRIGAN: That was January the 12th you ordered him to do it and we didn't get it. THE COURT: Correct. MR. CORRIGAN: Based on the authority of State versus Antonio Dawson, Cuyahoga County case unreported 63122, which also cites a reported case, it follows just the logical progression of the law. Since handwriting samples are non-testimonial and they can can (sic) be ordered, therefore the defendant has no right to refuse them. Therefore, by the prosecutor commenting, if you will, on the refusal, it's not a comment on his 5th Amendment rights, because he has no 5th Amendment rights with respect to handwriting samples because they're non- testimonial in nature. THE COURT: Therefore, you want to question and you want me to charge? MR. CORRIGAN: This Antonio Dawson, my reading of the record of the case indicates that the Court specifically told the jury that he had ordered it and it was refused, and when we discussed this with Mr. Butler and you in chambers we went over that that (sic) is going to be done. I'm just bringing that up on the record again. THE COURT: Right. MR. CORRIGAN: I'm going to ask Detective Mervine, did there come a time when you went to attempt to obtain handwriting exemplars from the defendant. THE COURT: Right. -9- MR. CORRIGAN: The detective will answer --I'll say what happened. The detective will say what happened. The detective will say he refused. THE COURT: Right. That is fine. MR. CORRIGAN: Okay. THE COURT: Mr. Butler, my understanding is that you want to address this? MR. BUTLER: Yes, Judge. And, Judge, I would object to this Detective Mervine being questioned along the lines of this handwriting exemplar for these reasons: We were in court on this past Friday which was January 12th, and at that time the Court was informed by the State that my client had not complied with a motion that had been filed by the State for a handwriting exemplar. I know the motion was filed. I made my client aware that the motion was filed. I don't know if the Court granted that motion or when the Court actually granted the motion, but on January 12th in court on the record the Court indicated to my client that it was ordering him to comply with the handwriting sample. I discussed that with my client. My client indicated that he would comply. He was ready to comply, and neither Detective Mervine nor Assistant Prosecutor Corrigan or anyone else from the police department, the prosecutor's office made any attempt, from the time the Court ordered my client to apply with that order, to extract a handwriting exemplar from my client. And I would ask the Court to deny the State's request to use or to allow Detective Mervine to testify about a prior refusal when the State cannot show there was a prior refusal by my client after January 12, 1996 when the Court had, in open court, ordered my client to comply with the State's request for the handwriting sample. -10- I don't think it is my duty or it's not my obligation to submit to my client what handwriting exemplar the State wants to take from him. The only thing I can do is make my client available. And I would only ask that the Court deny that request, and that if the Court is not of a mind to deny such request, I would ask the Court, and I would make this in a motion for mistrial, that the Court then grant a mistrial in this matter if that testimony is elicited. THE COURT: Okay. MR. CORRIGAN: Your Honor, if I could? THE COURT: We are belaboring it. Just let me rule. I mean, the fact of the matter is I asked Mr. Matthews to do it in open court. He indicated to me he wasn't going to do it. That is where we left it. So it's not your job to present an exemplar, but I believe it's your job as an officer of the Court to say, Mr. Corrigan, my client changed his mind. We talked about, if not formally, informally, a number of times. Mr. Matthews is well aware he's under an order. So I understand your objection and it turns out badly. You want to appeal, that's fine. Let the appeals court decide. The fact of the matter is you can't sit on your hands when everybody has gone to great lengths. So I'm going to deny the motion and deny the motion for mistrial. I am going to instruct on it and I'm going to allow that line of questioning, although I want it limited. I don't think we need to go into any details. I believe it was a conscious choice by Mr. Matthews. I told him what the consequences would be and that is what they will be. I have prepared jury instructions. Everybody had a chance to look through the jury instructions. The only portion of it that you haven't actually seen is my wording -11- of this cautionary instruction about the handwriting exemplar, and you can see that in between--sometime later this morning, and each of you can put your objection, if any, on the record about that. Other than that, I think we are prepared to go forward[.] (Tr. 468-474.) In the case sub judice, the trial court granted the state's motion for a handwriting exemplar on December 11, 1995. The fact that defendant-appellant initially refused to submit to the handwriting exemplar on January 3rd is not in dispute. Therefore, in accordance with defendant's continuing duty to disclose under Crim.R. 16(D), we agree with the trial court in that once a defendant has refused to submit to a handwriting exemplar, it is his duty and/or defense counsel's duty to notify the court or the state of the defendant's subsequent decision to submit to said 1 exemplar. After a review of the record, there is no doubt defendant- appellant and/or his counsel failed to inform the court or the state of defendant's intention to finally submit to the handwriting exemplar. Accordingly, defendant-appellant cannot now argue that "no efforts were made by the state to obtain the exemplar." To do so would permit the defendant-appellant and/or defense counsel to impermissibly shift its burden of continuing disclosure to the state. 1 The fact the trial court reiterated its discovery order on January 12th is of no consequence to this determination. -12- Finally, at the close of trial, the court stated the following in its instructions to the jury: Now, testimony also has been presented that the defendant did not submit a handwriting sample for analysis. You're further advised that the Court, that is me, ordered the defendant to submit a handwriting sample called a handwriting exemplar. He refused despite the court order. You are instructed that you can consider this fact in judging the credibility and the believability of the defendant. Since the handwriting exemplar is "non-testimonial" in nature, the propriety of using appellant's refusal to submit one as evidence against him violates neither his right against self- incrimination nor his right to due process. See, e.g., State v. Gray (1993), 85 Ohio App.3d 165. Accordingly, defendant- appellant was not deprived of his constitutional rights nor does he demonstrate actual prejudice from the testimony and/or jury instruction regarding his refusal to submit to a handwriting exemplar. See State v. Dawson (Nov. 18, 1993), Cuyahoga App. No. 63122, unreported. Defendant-appellant's first assignment of error is not well taken. III. SECOND AND THIRD ASSIGNMENTS OF ERROR As Ellsworth Matthews', defendant-appellant's, second and third assignments of error contain similar issues of law and fact, we will consider them concurrently. II. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF "ROBBERY," R.C. 2911.02, SINCE THE STATE FAILED TO PRESENT EVIDENCE -13- WHICH EXCEED THE ELEMENTS OF THE LESSER INCLUDED OFFENSE OF "THEFT BY THREAT," R.C. 2913.02. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF "THEFT BY THREAT," R.C. 2913.02, IN VIOLATION OF DUE PROCESS, GUARANTEED BY THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. A. ISSUE RAISED: WHETHER DEFENDANT-APPELLANT'S CONVICTION IS BASED UPON SUFFICIENT EVIDENCE. Defendant-appellant argues the verdict was based upon insufficient evidence. Specifically, defendant-appellant argues the state presented no evidence that a gun was used in the commission of the offense. Moreover, defendant-appellant argues the content of the note is devoid of specific language indicating consequences of immediate use of force. As such, defendant- appellant argues the state failed to present evidence that he used or threatened the immediate use of force as required by R.C. 2911.02. Additionally, defendant-appellant argues based upon the evidence, the trial court committed prejudicial error when it failed to instruct the jury on the lesser included offense of "theft by threat." Defendant-appellant's second and third assignments of error are 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 -14- 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 SUPPORTED BY SUFFICIENT EVIDENCE. Defendant-appellant was convicted of robbery in violation of R.C. 2911.02 which reads in pertinent part: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. Again, defendant-appellant argues the state presented no evidence in excess of a mere threat throughout the commission of the crime. Therefore, defendant-appellant argues he should have been charged with "theft by threat" instead of "robbery." We disagree. In State v. Davis (1983), 6 Ohio St.3d 91, the Ohio State Supreme Court stated in paragraph one of its 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 -15- 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. The evidence contained in the record establishes that defendant-appellant entered the Star Bank building on May 13, 1995, at approximately 10:00 a.m. Defendant-appellant approached Janice Miller, the bank teller, and handed her a note which read "[m]y gun is in the bag, five seconds to hand me big bills." We find a person of reason and common experience would likely be induced to hand over the money by virtue of the terror impressed by defendant-appellant's communication. Accordingly we find there exists sufficient credible evidence upon which a rational trier of fact could conclude, beyond a reasonable doubt, that defendant-appellant committed every element of the robbery pursuant to R.C. 2911.02. For this reason, the verdict was based upon sufficient evidence. See, also, State v. Habtemariam (1995), 103 Ohio App.3d 425. Regarding the jury instruction on the lesser included offense of "theft by threat," the Ohio Supreme Court stated in State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus: Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense." In this case, since there exists sufficient credible evidence supporting defendant-appellant's conviction for robbery pursuant to R.C. 2911.02, the trial court was not required to include a -16- jury instruction on the lesser included offense of "theft by threat." See, also, State v. Kidder (1987), 32 Ohio St.3d 279; State v. McCornell (1993), 91 Ohio App.3d 141. Defendant-appellant's second and third assignments of error are not well taken. Judgment affirmed. -17- 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, C.J., CONCURS; TIMOTHY E. MCMONAGLE, J., CONCURS WITH CONCURRING OPINION. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct. Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70217 STATE OF OHIO : : Plaintiff-appellee : : vs. : CONCURRING OPINION : ELLSWORTH MATTHEWS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 19, 1996 TIMOTHY E. McMONAGLE, J., CONCURRING: Although I concur with the majority's conclusion, I write separately to address the issue presented in assignments of error two and three. The majority's evaluation of these errors glosses over a problematic issue; namely, which acts distinguish 'threatened use of immediate force' constituting robbery from a 'threat of disagreeable consequences' constituting theft by threat. Defendant-appellant, Ellsworth Matthews ("appellant"), argues that the trial court erred by not instructing the jury on the crime of theft by threat as a lesser included offense of robbery. In determining whether an instruction on a lesser included offense is warranted under Crim.R. 31(C) and R.C. 2945.74, "the - 2 - trial court's task is two-fold: first it must determine what constitutes a lesser included offense of the charged crime; second, it must examine the facts and ascertain whether the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater." State v. Adams (1991), 74 Ohio App.3d 140, 142-143, citing State v. Kidder (1987), 32 Ohio St.3d 279. It is well-settled that theft by threat is a lesser included offense of robbery. State v. Davis (1983), 6 Ohio St.3d 91, 95. The inquiry, then, is whether the jury could reasonably conclude that appellant committed theft by threat but not robbery. R.C. 2911.02(A) defines robbery: No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. Theft by threat, on the other hand, is defined by R.C. 2913.02 as: 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: *** (4) By threat. The element that distinguishes robbery from theft by threat is the threatened use of immediate force. Davis, supra, at 95. The Ohio Supreme Court in Davis explained the distinction: "Force," as defined by R.C. 2901.01(A), means violence, compulsion or constraint physically - 3 - exerted by any means against a person. In contrast, the threat involved in theft by threat is of a lesser nature and *** not restricted to the threat of personal harm. Id. at 96. Appellant argues that Davis requires that the jury be instructed on the lesser included offense of theft by threat. Specifically, appellant relies on the following language in Davis: The persuasiveness of the evidence regarding the lesser included offense is irrelevant. If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to defendant. (Emphasis added.) Id. at 95 citing State v. Wilkins (1980), 64 Ohio St.2d 382. The facts of Davis, however, are distinguishable in several significant ways from the matter sub judice. In Davis, the defendant, while holding his hand beneath his shirt gesturing as if he had a gun, ordered a store clerk to open the cash register. The defendant never mentioned having a gun and stated that he was not going to hurt anyone, all he wanted was the cash. The appellate court held that the evidence was insufficient to sustain a conviction for robbery because the defendant's statement, "I'm not going to hurt you," did not amount to a threat of immediate force. The Supreme Court disagreed, holding that such a statement, combined with the gesture of holding a concealed weapon, could imply that the defendant would not hurt anyone as long as the clerk complied with the defendant's - 4 - demands. Accordingly, it was for the "jury to decide whether the actions and demeanor of the defendant constituted a threat of immediate use of force against the store attendants." Id. at 94. The court further noted, however, that since the evidence supported that the defendant did not actually have a gun, an instruction on the lesser included offense of theft by threat was warranted because it was possible for a jury to conclude that the defendant had not threatened the immediate use of force but, rather, threatened disagreeable consequences. Id. at 96. In this case, when appellant approached the bank teller, he handed her a note which read, "my gun is in the bag." Unlike the comments and gestures made by the defendant in Davis, appellant's statement is unambiguous. It is difficult to fashion a logical interpretation of "my gun is in the bag," other than that appellant was threatening to use the gun if the teller did not comply with his demand for "big bills." See State v. Sills (July 5, 1995), Wayne App. No. 95CA0004, unreported (defendant stated that he was robbing the bank and had a gun; it was therefore logical to assume that he would have used the gun if the teller did not obey his command); State v. Ramsey (Feb. 27, 1992), Cuyahoga App. No. 59549, unreported (failure to give instruction on theft by threat was not plain error where defendant stated, "This is a stick-up" and gestured towards his pocket inferring the possession of a gun). Appellant correctly argues that pursuant to Davis, the threat of harm with a real or simulated firearm does not automatically equate with the threat of immediate use of force - 5 - necessary to sustain a robbery conviction. By not only claiming to have a gun, but also by giving the clerk a five-second ultimatum, the facts of this case are clearly distinguishable from Davis. The pivotal distinction between theft by threat and robbery is that robbery requires a threat of immediate force, while theft by threat only requires a threat of future harm. State v. Hartemariam (1995), 103 Ohio App.3d 425, 529 citing Davis, supra. Appellant clearly threatens immediate harm and not future harm by giving the cashier a mere five seconds to comply with his demands. There is no reasonable view of the evidence here for the finder of fact to find the appellant not guilty of the greater offense of robbery but guilty of the lesser offense of theft by threat. The trial court, therefore, did not err when it did not .