COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73643 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : KISMA CAMPBELL : OPINION : Defendant-Appellant : Date of Announcement of Decision: NOVEMBER 25, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-351984 Judgment: Reversed and Vacated. Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor WILLIAM R. CAINE, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA J. SMITH, ESQ. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- JAMES M. PORTER, P.J.: Defendant-appellant KismaCampbell appeals from her conviction for simple assault (R.C. 2903.13) following a bench trial. Defendant claims the trial court erred in ordering restitution of an item involved in the original robbery charge when she was only found guilty of assault. Defendant also contends her conviction was against the manifest weight of the evidence. However, we find, sua sponte, that the defendant was convicted of a crime for which she was not indicted, and her conviction should be vacated as discussed below. This case arose from a confrontation on April 12, 1997 between defendant and her friends with the victim, Tiffany McBride, in the parking lot outside a Finast supermarket where Ms. McBride worked. Ms. McBride testified that she left her work as a check out clerk at approximately 9:45 p.m. to pick up her daughter at her boyfriend's. Her daughter and defendant's son were fathered by the boyfriend. She claimed to have a coat with her that she had just purchased at Burlington Coat Factory for $159.00. According to Ms. McBride, as she walked to her car, a vehicle approached containing defendant and three other girls. She and defendant had been feuding. She claimed defendant had been harassing her at work so she knew that defendant wanted to fight her. She threw her coat in her car and defendant's friend approached her, stating: We going to whoop your ass. -3- Ms. McBride claimed that defendant struck the first blow, slapping her face and then her companion maced her with pepper spray in the face. McBride did not fight back but went into the store for about 15 minutes to wash out her eyes. The store security guard called the police. Defendant and her friends were gone when Ms. McBride came out but the coat was missing from her car. She did not see anyone take the coat. She called defendant at her grandmother's house and asked her to return the coat. She claimed that the defendant told her Yeh bitch, I got it, you ain't getting it back. Ms. McBride claimed that defendant has always been the aggressor. She admitted that she has been prosecuted by defendant for a fight they had in a video store. Audrey Black, a co-worker of McBride's, testified: that she saw McBride walk out of the door that evening; that a car drove up; two girls got out of the car; and they all had words and then maced McBride. She could not see who maced McBride. Defendant's friends testified that they were in the car that night; that McBride came over to their parked car and started to bang on the window; that McBride kicked the car door and banged on the window trying to get the defendant to fight; that defendant stated that she did not want to fight; and that McBride reached into her pocket and she thought she was going to pull something out so she was maced. Defendant testified that she has had problems with McBride since she was six months pregnant. McBride has harassed her about -4- the mutual father of their children. McBride would call and ask her if she was still seeing him. On one occasion, McBride came to defendant's house and started a physical fight with her. She did not recall McBride having a coat. The case was tried to the court on one count of robbery. The trial court found that the defendant was guilty of simple assault on the grounds it was a lesser included offense of robbery. The trial court suspended a sentence of six months and placed the defendant on one year probation or community controlled sanctions, ordering restitution in the amount of $145.00 for the stolen coat. A timely notice of appeal was filed. Defendant's two assignments of error state as follows: I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED THE APPELLANT TO PAY RESTITUTION FOR A COAT OF THE VICTIM'S AFTER IT FOUND THE APPELLANT GUILTY OF SIMPLE ASSAULT AND NOT A THEFT OFFENSE. II. THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT GUILTY OF ASSAULT WHICH WAS AGAINST THE WEIGHT OF THE EVIDENCE. We do not find it necessary to address these assignments of error because plain error intervened below which materially affected defendant's substantial rights. Crim.R. 52(B). As discussed below, the trial court erred in finding the defendant guilty of assault, which is not a lesser included offense of the crime charged, robbery. We take notice, sua sponte, that defendant was indicted for robbery under R.C. 2911.02(A)(3), which states: -5- No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall *** [u]se or threaten the immediate use of force against another. However, defendant was only convicted of assault under R.C. 2903.13(A), which provides: No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn. In its journal entry, the trial court stated that it finds the defendant, Kisma Campbell, guilty of simple assault R.C. 2903.13 M- 1 a lesser and included offense under the charge of the indictment. It is, of course, true that a defendant may be found guilty of a lesser included offense of the crime charged. R.C. 2945.74; Crim.R. 31(C). The test for determining whether an offense is a lesser included offense of another is three-pronged: (1) the offense must carry a lesser penalty than the other; (2) the greater offense, cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; (3) some element of the greater offense is not required to prove the commission of the lesser offense. State v. Deem (1988), 40 Ohio St.3d 205, 209. Based on the elements of robbery and assault listed above, assault under R.C. 2903.13(A) is not a lesser included offense of robbery under R.C. 2911.02(A)(3). Under the second prong of the Deemtest, in order for an offense to be a lesser included offense -6- of another, the greater offense cannot ever be committed without committing the lesser offense. However, robbery, under which defendant was indicted, R.C. 2911.02(A)(3), can be committed without committing an assault. Specifically, a robbery can be committed with the mere threat of force. However, a mere threat cannot constitute an assault. In order to be guilty of assault, the offender must at least cause or attempt to cause physical harm to another. Therefore, simple assault under R.C. 2903.13(A) is not a lesser included offense of robbery under R.C. 2911.02(A)(3). Defendant was convicted of a crime for which she was not indicted. Furthermore, the State failed to prove that defendant stole the victim's coat in the course of slapping the victim. The elements of robbery did not occur simultaneously as required by R.C. 2911.02. As held by this court in State v. Ballard (1984), 14 Ohio App.3d 59, syllabus: 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 theft offense), coincided in point of time with the force or threat of force used in committing the theft offense, or in fleeing thereafter. Given the foregoing discussion, defendant's conviction is reversed, the judgment is vacated, and defendant is discharged. -7- It is ordered that appellee shall pay the 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, 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. KARPINSKI, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING 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 .