COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70265 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RAZON GATES : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 27, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-331832 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEVE W. CANFIL, ESQ. ROBERT R. CLARICO, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor, Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant Razon Gates ("defendant") appeals the jury verdict finding him guilty of robbery in violation of R.C. 2911.02 including an aggravated felony specification of robbery. Defendant contends there was insufficient evidence to convict him and he was denied his right to a fair trial because irrelevant evidence was admitted at trial. On October 2, 1995 at approximately 6:30 p.m. a police officer was patrolling the E. 79th and Chester area. The officer noticed a male dressed in all black with a hooded sweatshirt standing near an intersection. The male was hiding behind some trees and shrubbery so as to remain out of sight of the people in their cars at the intersection. The officer thought this was suspicious conduct in light of the rash of car jackings reported in this area so he called for surveillance. A short time later, a detective arrived on the scene and set up the surveillance at a pay phone located about 100 feet from the intersection. The detective saw the male approach four cars from behind, each of these driven by a female, look in the cars and retreat back to his hiding place. Subsequently, a red sports car drove into the intersection and stopped at the light. The male approached this car raised his right hand and smashed the passenger's side window with the object he was holding in his hand. The sports car then sped away and the male ran. At this time, the detective notified the other officer the crime was "going down" and - 3 - chased the male on foot. The detective caught the male, read him his rights, and arrested him. A few hours later, at about 1:00 a.m., the police received a call from the woman who was driving the red sports car. She reported the car jacking attempt and then testified at trial. At trial, the woman testified she was stopped at the intersection when she heard an explosion go off in her car. She stated "[s]omething rocked the car really hard. My cellular phone fell off the cradle. It was loud. It hurt my ears." The woman said further she saw a male standing on the passenger's side of the car, she was really scared, then she sped off. After hearing the testimony of the police officer, the detective, and the victim, the jury found defendant guilty of robbery including an aggravated robbery specification. Defendant now appeals from this guilty verdict. Defendant's first assignment of error states as follows: RAZON GATES' DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN HIS CONVICTION FOR ROBBERY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Defendant argues insufficient evidence was presented to indicate defendant (1) used force against another person or (2) was attempting a theft offense. - 4 - The state maintains the evidence was clear and uncontradicted that defendant attempted a theft offense and used or threatened immediate force against another. When reviewing a challenge to the sufficiency of evidence, we must review the record to determine whether there was substantial evidence upon which the jury could reasonably conclude that all the elements of the crime charged had been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, syllabus. R.C. 2911.02(B) provides that anyone who violates R.C. 2911.02(A) of the Ohio Revised Code is guilty of robbery. R.C. 2911.02(A) prohibits the use of force during the commission of a theft offense, it states specifically "[n]o person, * * * shall use or threaten the immediate use of force against another." Defendant argues the evidence before the trial court was insufficient to support his robbery conviction because the state failed to prove that he used "force or threat of force". Defendant claims the act of smashing the car window does not amount to the use of force against a thing or person. The detective testified he saw defendant walking up to cars with an object in his right hand. When the red sports car pulled up the detective stated he saw defendant raise his right hand above his head and then swing his arm down so as to strike the passenger side window with the object in his right hand. The victim stated she was in her red sports car when she heard an explosion that - 5 - rocked her car and hurt her ears. In addition, the window on her car was damaged. In State v. Davis (1983), 6 Ohio St.3d 91, syllabus, the Ohio Supreme Court addressed the issue of force and stated: "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." When defendant stood next to the victim's car and smashed her car window, the victim was stunned and scared for a few moments before she sped off. Also, her ears hurt and her car was "rocked really hard" by what she thought was an explosion. Defendant's acts were likely to induce the victim to part with her purse against her will and to suspend her ability to retain possession of the purse by virtue of the terror she felt. Thus, defendant used force in the commission of the crime. Defendant also argues there was insufficient evidence he committed a theft offense. Defendant was convicted of robbery which is defined in R.C. 2911.02(A), in pertinent part, as: "No person in attempting or committing a theft offense,* * *" (emphasis added). Theft is defined in R.C. 2913.02(A), in pertinent part, as: - 6 - "(A) No person, with the 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;" Thus, to be convicted of robbery one must attempt or commit a theft offense with force. As discussed above, defendant used force against the victim and her car window. The only issue remaining to decide is whether defendant attempted a theft offense. Defendant asserts he did not attempt a theft offense. He argues he did not attempt to open the car door and only the introduction of evidence that there were prior robberies in the area provided an indication that this might be an attempted theft. The record reveals defendant was hiding in shrubbery near an intersection to avoid detection. Then on four separate occasions defendant left his hiding place with an object in his right hand and looked into the passenger windows of cars being driven by white females. Finally, on the fifth try defendant smashed the window of a car driven by a white female who had her purse in the passenger seat. Not being able to smash the window or open the car door, because the doors were locked, defendant fled and was caught by a detective who had been watching defendant's actions for the past two and one-half (2 1/2) hours. - 7 - Theft requires that the accused actually obtain or exert control over the property or services of another while attempted theft has no similar requirement. An attempt occurs when a person engages in conduct which, if successful, would constitute an offense. See R.C. 2923.02. Stated differently, an attempt occurs when one purposely does an act constituting a substantial step in a course of conduct planned to culminate in the commission of the crime but which falls short of completion of the crime. State v. Woods (1976), 48 Ohio St.2d 127. It is clear defendant was attempting to steal the purse from the passenger seat of the woman's red sports car but failed only because the window was not completely smashed and also because the car door was locked. After viewing all the evidence and the entire record this Court believes there was substantial evidence from which the jury could reasonably conclude that all the elements of the crime charged had been proven beyond a reasonable doubt. Defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: MR. GATES WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN IRRELEVANT EVIDENCE WAS ADMITTED IN VIOLATION OF EVID.R. 401, EVID.R. 402, AND EVID.R. 403. Defendant argues the trial court admitted irrelevant evidence consisting of prior robberies committed in the area of E. 79th and Chester. In addition, defendant claims evidence of the prior - 8 - robberies is prejudicial because it infers he committed some of these robberies. The state contends evidence of the prior robberies is relevant because it explains the why the police were conducting surveillance in the area. To be admissible, evidence must be relevant. Where evidence is irrelevant, however, its admission is precluded by Evid.R. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Evid.R. 401. Furthermore, Evid.R. 403(A) precludes the admission of evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." The detective testified his assignment was surveillance in the area because of several smash and grab robberies which occurred. The police officer stated he was patrolling this area because of the rash of smash and grab robberies which occurred. Neither the officer nor the detective referred to defendant when they were talking about the prior robberies. Their testimony simply explained the reason why the police were patrolling and conducting surveillance in the area. Also, there is no evidence this evidence unfairly prejudiced defendant, confused the issues, or mislead the jury, because the evidence related solely to the two policemen's presence at the scene and not at all to defendant. - 9 - Generally, the prosecution is entitled to elicit information concerning the context of the investigation and arrest of a criminal defendant. United States v. Williams (C.A. 8, 1992), 971 F.2d 157, 158. Thus, prosecutor's questions were not irrelevant. Furthermore, the admission of evidence is within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180. An abuse of discretion connotes more than an error of law or judgment as it implies that the court's attitude is "unreasonable, arbitrary or unconscionable." Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 22. A trial court's decision will only be deemed an abuse of discretion when it is so grossly violative of fact and logic as to demonstrate perversity of will, defiance of judgment, undue passion, or extreme bias. State v. Jenkins (1984), 15 Ohio St.3d 164, 222. The evidence of prior robberies was relevant and not prejudicial to defendant, as discussed above. Therefore, the admission of such evidence was not an abuse of discretion by the trial court. Defendant's second assignment of error is overruled. Judgment affirmed. - 10 - 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 Court of Common Pleas 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. SPELLACY, C.J. NAHRA, J., CONCUR. JUDGE JOHN T. PATTON 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 .