COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72329 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : EUGENE JOHNSON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 26, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-341728 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Peter Gauthier Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Patrick M. Farrell HILDEBRAND, WILLIAMS & FARRELL 21430 Lorain Road Fairview Park, Ohio 44126 -2- NAHRA, J.: Appellant, Eugene Johnson, appeals his conviction of robbery in a bench trial. Before sentencing, appellant pled to a separate grand theft case. The court sentenced appellant to two years for the grand theft charge and three to fifteen years on the charge of robbery to run concurrently. We affirm. Kenneth Allen, III, the security supervisor of Kohls department store, testified that at approximately 12:00 p.m., he and officer Kelly Malec were walking through the store when he noticed two suspicious males wearing long coats. As they watched the males' activities, they noticed them pick up numerous pairs of pants and place them into the coat of one of the males. Shortly thereafter, the men proceeded to leave the store. Allen identified the appellant as one of the individuals who selected the Docker's pants and placed them in his friend's coat. As the two attempted to leave the store, Allen yelled to them to stop, causing the unidentified male to drop the clothes and both men to flee the scene. Allen pursued the unidentified suspect first, but was alluded by him. He then turned his attention to the appellant, who at this point was across the parking lot. Allen pursued him on foot, eventually apprehending him. During the apprehension, appellant resisted, and as a result of this struggle, Allen suffered contusions to his neck, sides and ribs. The appellant was then cuffed and taken back to the department store. Patrolmen Michael Wickes of the police department of Fairview Park testified that at approximately 12:00 p.m. he received an all -3- cars call that Kohls' security was struggling with someone in the parking lot. When he arrived at the department store, Kohls' security already had the appellant inside the store and in custody. When he approached the appellant, appellant identified himself as Willie Brown, and supplied Wickes with birth date, social security number, address and phone number. Wickes ran a check on all information and received the same response to all; not on file. Appellant was then read his rights and placed under arrest. After he was booked and processed, Wickes discovered a Medicaid card and form in appellant's possession which contained the name Eugene Johnson and his date of birth. Wickes checked this information and found several matches. When appellant was confronted with this information, he still insisted that he was Willie Brown, and that Johnson was his brother-in-law. At this point, appellant became dizzy and complained of being ill. Appellant was examined by the EMS squad and transferred to Fairview Hospital as a precaution. When Wickes went to check on appellant, he was informed that appellant had checked in under the name of Johnson and, upon confrontation, appellant admitted to being Eugene Johnson. Upon further questioning, appellant identified his accomplices as only Rick and Debbie. George M. Borato, a greeter for Kohls department store, testified that he was working at the main entrance to Kohls on the afternoon in question and that he witnessed the entire event. Borato stated that as he greeted the shoppers, he was interrupted when Allen ran through the entrance apparently chasing two -4- individuals. He then saw Allen chase the unidentified male through the parking lot, while a car was zig-zagging in the same area with its door wide open. The first man Allen was chasing managed to jump in the car and speed away. As the car sped away it narrowly missed hitting Allen. Allen then diverted his attention to the second man, who was 150 yards across the parking lot, and ran in pursuit of him. As Allen ran in pursuit, he was screaming for appellant to stop and yelling to appellant that he was under arrest. Once Allen caught up to appellant, there was a lot of tussling going on between them until Allen was able to cuff appellant and get him under control. When Borato arrived on the scene he helped Allen subdue appellant by speaking reasonably and diplomatically with him. He and Allen then took appellant back to the department store and waited for the police to arrive. Borato remembers that as a result of the fight, Allen had cuts on his face and neck, and was very red about the neck area. He, however, does not remember seeing any injuries on appellant. Appellant argues that based upon the totality of the evidence no reasonable jury could have found him guilty of robbery. The appellant's sole assignment of error states: THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHERE IT WAS NOT PROVEN BEYOND A REASONABLE DOUBT THAT APPELLANT USED OR THREATENED THE IMMEDIATE USE OF FORCE The central issue is whether the court could reasonably find that defendant used or threatened the use of force while committing or attempting to commit a theft offense. R.C. 2911.02 specifically provides that in connection with a theft or attempted theft -5- offense, the use or threatened use of force in the theft or attempt or in fleeing immediately after constitutes robbery. After a careful review of the record, assessing the credibility of all of the testimony, and considering all reasonable inferences therefrom, we cannot conclude that the court created a manifest miscarriage of justice in convicting Johnson of robbery. There was substantial evidence from which the court could conclude that appellant, while fleeing an attempted theft offense, engaged in the immediate use of force against Allen. As a result, this assignment of error is overruled. Judgment affirmed. -6- 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. BLACKMON, A.J., and ______________________________ JOSEPH J. NAHRA ROCCO, J., CONCUR. 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 .