COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72060 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION CORY SHELTON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : NOVEMBER 5, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-340094 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: KIMBERLY MAHANEY, ESQ. RICHARD AGOPIAN, ESQ. Assistant County Prosecutor 800 Standard Bldg. Justice Center, 8th Floor 1370 Ontario Street 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 PATTON, J. Defendant-appellant Cory Shelton appeals the trial court's verdict finding him guilty of robbery in violation of R.C. 2911.02. -2- On appeal, defendant complains: (1) he did not use force during the commission of the theft, and (2) the trial court erred in failing to sentence him under the new robbery statute. The record reveals that at approximately 7:00 a.m. on May 24, 1996, the security guard at a Finast Supermarket noticed defendant enter the store. A few minutes later, the security guard spotted defendant leaving and noticed he had a bulge underneath his clothing. The guard saw defendant walk around the cash registers with one arm holding the other arm. The guard approached defendant and asked him what the bulge was. At trial, the guard testified defendant threw a punch at me with an open palm, and then tried to shove me out of the way, *** as he took off running for the door. He also stated defendant was struggling and fighting to the best of his ability to get away. Subsequently,defendant was escorted to a room in the back of the store where a store employee explained he was being detained for the purpose of arrest. At this point, the guard testified [defendant] struggled and fought with the three of us until we were able to handcuff him ***. Next, the guard searched defendant and found him to be in possession of three steaks. The guard found out from the cashiers that defendant had not purchased the steaks earlier in the day as he had claimed and it was at this point that defendant was arrested. At trial, defendant testified on his own behalf. He said he did not punch the guard but only shoved him as he was grabbing me from the back. I did not never throw a punch. Defendant also -3- said I pushed him when he grabbed me and I did not use my hands. On cross-examination he conceded I admit I may have pushed him, but I didn't intentionally do it. Upon further questioning, defendant denied ever striking the guard. On December 19, 1996 the trial court found defendant guilty of robbery. Defendant timely filed his notice of appeal and now presents two assignments of error for review. In his first assignment of error defendant states as follows: THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT WAS GUILTY OF USING, OR THREATENING THE IMMEDIATE USE OF FORCE AGAINST ANOTHER, DURING THE COMMISSION OF A THEFT OFFENSE. Defendant claims a conviction for robbery involves meeting a two prong test: (1) did the victim part with property against his will, and (2) was the victim so impressed with terror that his power to exercise his will was suspended. Defendant complains the state failed to prove either of these prongs. First, defendant argues neither the guard nor any agent of the Finast store was induced to part with property against his will. Second, defendant claims the victim was not placed in terror and was not forced to suspend his activities in arresting defendant. In support of these arguments, defendant cites to the following excerpts from the trial transcript where the guard stated he was [c]oncerned, but not in terror during the robbery. And regarding the suspension of activities, the guard testified during the robbery he had defendant in a choke hold and grabbed him in -4- order to stop him. My arm went around his neck, yes. Defendant claims if the guard had him in a choke, the guard's activities could not have been suspended. Consequently, defendant reasons his failure to use the requisite force necessary to substantiate a conviction for robbery indicates he should have been convicted of the lesser offense of theft. The state counter-argues that shoving and pushing while trying to run away constitutes sufficient evidence to find force beyond a reasonable doubt for the crime of robbery. The state maintains defendant was informed in the back room he was being detained for arrest and after hearing this he struggled and fought with the guard and two store employees. The state claims this is sufficient evidence that defendant exhibited the requisite force to support a conviction for robbery. R.C. 2911.02, which constitutes the crime of robbery, provides 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 of offense, shall use or threaten the immediate use of force against another. (B) Whoever violates this section is guilty of robbery, an aggravated felony of the second degree. The term force is defined in R.C. 2901.01 as follows: (A) `Force' means any violence, compulsion, or con- straint physically exerted by any means upon or against a person or thing. In State v. Ballard (1984), 14 Ohio App.3d 59, this court held in its syllabus: -5- Under R.C. 2911.02, the elements of robbery must occur simultaneously in order for the offense to occur. Therefore, the state must prove that the accused's intent to deprive the owner of the property, as well as the actual taking (elements of the offense), coincided in point of time with the force or threat of force used in committing the theft offense, or in fleeing thereafter. This exact same issue and set of facts was addressed by this court in State v. Zoya (December 16, 1993), Cuyahoga App. No. 64322, unreported. In Zoya, the defendant entered the store, went to the meat department, picked up some steaks, and placed them in a bag he was carrying. He then proceeded through the checkout area where he walked through the checkout without paying. The assistant manager stopped the defendant before he could leave and a struggle ensued. The defendant tried to force his way past the assistant manager by using his body weight, twisting around and swinging his arms. We held [t]his activity in resisting apprehension for the attempted theft offense constitutes the immediate use of force and affirmed a conviction for robbery. See also State v. Calhoun (November 14, 1991), Cuyahoga App. No. 59370, unreported (store security manager pushed by defendant in attempting to flee; State v. Smith (August 15, 1991), Cuyahoga App. No. 58986, unreported (defendant's act of resisting arrest by attempting to escape by lashing out to strike the officer, which blow missed the officer, constitutes the actual use of, or the immediate threat of force); State v. Pittman (January 19, 1989), Cuyahoga App. No. 54949, unreported (attempting to resist apprehension by store employees by struggling, pushing and thrashing his legs, constitutes force); State v. Anderson (January 31, 1985), Cuyahoga App. No. 48563, -6- unreported (store security officers shoved twice during shop- lifter's attempt to flee). Defendant admitted to taking the steaks and this established his intent to deprive Finast of their property as well as the taking of the property. Simultaneous with defendant's theft of the steaks was his scuffle with the guard. This constituted the immediate use of force. Therefore, the trial court did not err in finding ample evidence of force necessary to convict defendant of robbery and defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE TRIAL COURT ERRED IN FAILING TO SENTENCE THE DEFEN- DANT UNDER THE NEW ROBBERY STATUTE PURSUANT TO SENATE BILL II. Defendant argues he was improperly sentenced by the trial court. He claims he should have been sentenced according to the new robbery statute set forth in Senate Bill 2 ( SB 2 ). Defendant contends he should not have been sentenced for a second degree aggravated felony but rather a third degree felony as provided in the new statute. In support of this proposition, defendant cites to R.C. 1.58(B) which states if the *** punishment for any offense is reduced by a reenactment or amendment of a statute, *** the punishment, if not already imposed, shall be imposed according to the statute as amended. We note initially, that defendant failed to raise this argument in the trial court, but we will review this matter for plain error because it affects substantial rights of defendant. State v. Boyd (1996), 110 Ohio App.3d 13. -7- We overrule this assignment of error on the authority of State v. Rush (1998), 83 Ohio St.3d 53, where the Court concluded S.B. 2 applies only to those defendants who committed crimes on or after July 1, 1996, the day S.B. 2 was enacted. In the present case, defendant committed his crime before July 1, 1996, so the sentencing guidelines in S.B. 2 do not apply to defendant. As a result, the trial court properly sentenced defendant under the former sentencing guidelines. Based on the above reasoning, defendant's second assignment of error is overruled. Judgment affirmed. -8- 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. JAMES M. PORTER, P.J. JOSEPH 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 .