State v. Trice , 2013 Ohio 2004 ( 2013 )

[Cite as State v. Trice, 2013-Ohio-2004.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 12-CA-42
ROBERT TRICE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common
Pleas Court, Case No. 2012-CR-0168
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX AARON CONRAD
Prosecuting Attorney Conrad Law Office LLC
120 ½ E. Main Street
By: JOCELYN S. KELLY Lancaster, Ohio 43130
Assistant Prosecuting Attorney
239 W. Main Street, St. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 12-CA-42 2
Hoffman, J.
{¶1} Defendant-appellant Robert Trice appeals his conviction entered by the
Fairfield County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 3, 2012, Appellant entered the Circle K store in Pickerington,
Ohio. He engaged in a brief conversation with the store clerk, while fidgeting with his
hands. He approached the entrance to the counter/register area, and quickly picked up
his pace. He hurriedly entered the area behind the counter and near the cash register,
where the clerk was standing. The clerk immediately jumped over the counter.
Appellant jumped the counter following the store clerk. The store clerk left the store.
Appellant then returned to the area behind the counter, where he proceeded to take
approximately $1200 worth of cigarettes.
{¶3} The Fairfield County Grand Jury indicted Appellant on one count of
robbery, in violation of R.C. 2911.02(A)(3); one count of burglary, in violation of R.C.
2911.12(A)(1); and one count of theft, in violation of R.C. 2913.02. Following a trial to a
jury, Appellant was found guilty of the robbery and theft charges, but not guilty of the
burglary charge. On June 27, 2012, the trial court sentenced Appellant to a total of
thirty six months in prison.
{¶4} Appellant now appeals, assigning as error:
{¶5} “I. THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S
CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL, AS THE
PROSECUTION FAILED TO PROVE ALL THE ELEMENTS OF THE CHARGE OF
ROBBERY.
Fairfield County, Case No. 12-CA-42 3
{¶6} “II. THE JURY VERDICT FOR THE CHARGE OF ROBBERY WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶7} “III. THE COURT ERRED IN NOT INSTRUCTING THE JURY ON THE
LESSER INCLUDED OFFENSE OF THEFT BY FORCE.”
I. and II.
{¶8} Appellant's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶9} Appellant maintains the trial court erred in overruling his Criminal Rule 29
motion for judgment of acquittal and the jury verdict for the charge of robbery was
against the manifest weight of the evidence as the state failed to prove the element of
force or threat of force.
{¶10} Under Criminal Rule 29(A) of the Ohio Rules of Criminal Procedure, a
defendant is entitled to a judgment of acquittal on a charge against him “if the evidence
is insufficient to sustain a conviction....” Whether a conviction is supported by sufficient
evidence is a question of law this Court reviews de novo. State v. Thompkins, 78 Ohio
St.3d 380, 386 (1997); State v. West, 9th Dist. No. 04CA008554, 2005–Ohio–990, ¶ 33.
We must determine whether, viewing the evidence in a light most favorable to the
prosecution, it could have convinced the average finder of fact of Appellant's guilt
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, paragraph two of the
syllabus (1991).
{¶11} Appellant also argues his conviction for robbery is against the manifest
weight of the evidence. If a defendant argues his conviction is against the manifest
weight of the evidence, we “must review the entire record, weigh the evidence and all
Fairfield County, Case No. 12-CA-42 4
reasonable inferences, consider the credibility of witnesses and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice the conviction must be reversed and a new trial ordered.”
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶12} Appellant was convicted of robbery, in violation of R.C. 2911.02(A)(3),
which reads:
{¶13} "(A) No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall do any of the following:
{¶14} "***
{¶15} "(3) Use or threaten the immediate use of force against another."
{¶16} The use of force element 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." State v. Davis (1983), 6 Ohio St.3d
91. The test for force is objective and relies on the totality of the circumstances. State
v. Habtemariam (1995), 103 Ohio App.3d 425. A victim's fear of harm must be
objectively reasonable under the circumstances. State v. Bush (1997), 119 Ohio
App.3d 146.
{¶17} A review of the record and the videotape evidence of the store
surveillance demonstrate Appellant entered the store, engaged in a brief conversation
with the store clerk while dressed in dark apparel and making furtive movements. He
rapidly approached the entrance to the area behind the counter, where the store clerk
stood next to the cash register. Appellant almost ran towards the store clerk
Fairfield County, Case No. 12-CA-42 5
approaching at a hurried speed. The clerk then jumped the counter as Appellant
approached, at which point Appellant jumped the counter and followed the clerk. When
the store clerk left the store, Appellant returned to the area behind the counter and
proceeded to take a large quantity of cigarettes.
{¶18} Based upon our review of the record and the evidence presented at trial,
we find the trial court did not err in overruling the Criminal Rule 29 motion for acquittal
and Appellant's conviction for robbery is not against the manifest weight of the
evidence. There is sufficient, credible evidence demonstrating Appellant engaged in a
theft offense and the store clerk's fear of the threat of force was objectively reasonable
under the totality of the circumstances.
{¶19} The first and second assignments of error are overruled.
III.
{¶20} In the third assigned error, Appellant argues the trial court erred in failing
to instruct the jury on the lesser included offense of theft by force.
{¶21} Ohio Criminal Rule 30(A) provides,
{¶22} "(A) Instructions; error; record
{¶23} "At the close of the evidence or at such earlier time during the trial as the
court reasonably directs, any party may file written requests that the court instruct the
jury on the law as set forth in the requests. Copies shall be furnished to all other parties
at the time of making the requests. The court shall inform counsel of its proposed action
on the requests prior to counsel's arguments to the jury and shall give the jury complete
instructions after the arguments are completed. The court also may give some or all of
its instructions to the jury prior to counsel's arguments. The court shall reduce its final
Fairfield County, Case No. 12-CA-42 6
instructions to writing or make an audio, electronic, or other recording of those
instructions, provide at least one written copy or recording of those instructions to the
jury for use during deliberations, and preserve those instructions for the record.
{¶24} "On appeal, a party may not assign as error the giving or the failure to give
any instructions unless the party objects before the jury retires to consider its verdict,
stating specifically the matter objected to and the grounds of the objection. Opportunity
shall be given to make the objection out of the hearing of the jury."
{¶25} Because Appellant did not object to the jury instructions given by the trial
court, he has waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12.
Plain error is established when it is shown, but for the error, the outcome clearly would
have been otherwise. Id.{¶26} As set forth in our analysis and disposition of the first and second
assignments of error, there was sufficient, competent evidence for the jury to convict
Appellant on the count of robbery. Accordingly, Appellant has not demonstrated plain
error in the trial court's failure to instruct the jury on the lesser included offense of theft
by force.
{¶27} The third assignment of error is overruled.
Fairfield County, Case No. 12-CA-42 7
{¶28} Appellant's conviction in the Fairfield County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Fairfield County, Case No. 12-CA-42 8
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ROBERT TRICE :
:
Defendant-Appellant : Case No. 12-CA-42
For the reasons stated in our accompanying Opinion, Appellant's conviction in
the Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER