[Cite as State v. Zackery, 2012-Ohio-3171.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 11-CA-133
SIDNEY ZACKERY, SR.

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 11 CR 00229


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         July 12, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


KENNETH W. OSWALT                              KIRK A. MCVAY
Licking County Prosecutor                      755 S. High Street
20 S. Second Street, Fourth Floor              Columbus, Ohio 43206
Newark, Ohio 43055
Licking County, Case No. 11-CA-133                                                       2

Hoffman, P.J.


       {¶1}   Defendant-appellant Sidney Zackery, Sr. appeals his conviction entered

by the Licking County Court of Common Pleas on one count of robbery.             Plaintiff-

appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 1, 2010, Appellant entered the Duke and Duchess

convenience store and gas station at 900 North 21st Street, Newark, Licking County,

Ohio. He selected a candy bar and took it to the register where he handed it to the clerk

on duty, Charles Rine. Rine opened the cash drawer of the store register, Appellant

lunged over the counter, and attempted to take the money from the cash drawer. Rine

initially attempted to close the drawer, but Appellant pushed the drawer open. Appellant

persisted in his efforts to open the drawer, and Rine stepped back. Rine used the

store’s wall telephone to call 911.

       {¶3}   On May 13, 2011, the Licking County Grand Jury indicted Appellant on

one count of robbery, in violation of R.C. 2911.02, a felony of the third degree.

Appellant waived his right to trial by jury, and consented to be tried to the court.

Appellant further stipulated to the elements of the offense, with the exception of the use

or threat of force against another.      Appellant was convicted of the charge, and

sentenced to a period of community control.

       {¶4}   Appellant now appeals, assigning as error:

       {¶5}   “I. THE TRIAL COURT ERRED, DEPRIVING DEFENDANT-APPELLANT

OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
Licking County, Case No. 11-CA-133                                                      3


CONSTITUTION WHEN FOUND DEFENDANT-APPELLANT GUILTY OF ROBBERY

WHEN THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE WOULD NOT

SUPPORT THE CONVICTION.”

       {¶6}   Appellant's sole assignment of error asserts his conviction is against the

manifest weight and sufficiency of the evidence as the evidence presented at trial does

not demonstrate he used or threatened force against another.

       {¶7}   In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in ‘reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’" State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–

Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717, (1983).

       {¶8}   An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), ¶ two of the syllabus.

       {¶9}   Appellant was convicted of one count of robbery, in violation of R.C.

2911.02, which reads:

       {¶10} "(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:
Licking County, Case No. 11-CA-133                                                             4


        {¶11} "(1) Have a deadly weapon on or about the offender's person or under the

offender's control;

        {¶12} "(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

        {¶13} "(3) Use or threaten the immediate use of force against another."

        {¶14} "Force" means any violence, compulsion, or constraint physically exerted

by any means upon or against a person or thing. R.C. 2901.01(A)(2). The test for force

or threat of force is objective, and force is to be proven by the totality of the

circumstances. State v. Habtemariam (1995), 103 Ohio App.3d 425. 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. State v. Davis (1983), 6 Ohio St.3d 91. The force need not be great

in terms of degree; rather, any force will do.

        {¶15} The parties stipulated to the facts presented to the trial court in a

"Stipulation/Agreement/Waiver", and agreed the sole issue at trial was whether the

State proved, beyond a reasonable doubt, the element of the offense of robbery

Appellant did "use or threaten the immediate use of force against another." Appellant

challenges the trial court's conclusion Appellant utilized force or the threat of force in

committing the offense.

        {¶16} At trial, Charles Rine, the store attendant involved in the altercation,

testified:
Licking County, Case No. 11-CA-133                                                       5


       {¶17} “Q. Let’s get some more details. When you say he lunged, give me an

idea of what you mean? Did he jump up and over the entire counter, for example?

       {¶18} “A. No. He basically thrust his upper torso onto the counter by reaching

over like from his waist up, reaching over with both arms, and we struggled the drawer

me closing it and him pushing it open.

       {¶19} “Q. Okay. Give me a little more description of struggling with the drawer.

In other words - -

       {¶20} “A. I had my hands - -

       {¶21} “Q. Are you pushing, are you pulling, are you moving side to side? Just - -

       {¶22} “A. I’m pushing forward on the register like I’m going to close the drawer,

and he’s on the other side of the counter and with like one hand he’s pushing the

drawer open, trying to push it open, and with the other hand, he’s like taking the money,

and I just keep pushing the drawer shut, and finally, I just gave up.

       {¶23} “I didn’t know if he may have had a weapon or whatever. I was just - - at

that point, I was kind of like I’m backing up because I don’t know what’s going to happen

at that point. I am a lot bigger than he is, and I wouldn’t take on someone larger than

me not knowing what’s going to go on.

       {¶24} “Q. So, the fact that you’re bigger than him played into your thinking in that

way?

       {¶25} “A. That, you know, he definitely wants to get the money no matter what. I

mean, it’s - - he could easily had a weapon on him or something. I wasn’t sure. I just - -

it was just the fear that I didn’t know what was going to happen after that point.
Licking County, Case No. 11-CA-133                                                            6


       {¶26} “Q. The fact that he went to initially grab the money, why did you attempt

to close the drawer at all?

       {¶27} “A. Instincts. I mean it just - - it’s there. It’s not that, you know, it’s not his

property. It’s the store property. It’s, you know, I’m there and that’s like my job to make

sure that everything is run properly and know that everything is there, and it’s totally

just, you know - -

       {¶28} “Q. Ultimately, did you relent in trying to close the drawer?

       {¶29} “A. Yes, I did.

       {¶30} “Q. Can you tell me why that was?

       {¶31} “A. I just – I figured that, you know, he was so persistent about wanting to

get the money. I was just - - didn’t know, you know, what he could be capable of doing -

-

       {¶32} “Q. Did you - -

       {¶33} “A. - - just to get the money out of the drawer.

       {¶34} “Q. So you were concerned or had fear that he might - -

       {¶35} “A. Yes. I was concerned about what he may have had on him. I mean, if

he had a weapon, if he was on drugs, something; I didn’t want it to escalate any further

and possibly me getting injured.”

       {¶36} Tr. at 16-18.

       {¶37} Based upon the above and in consideration of the facts as stipulated to by

the parties, we do not find the trial court's finding there was sufficient evidence to satisfy

the element Appellant engaged in behavior which constituted an immediate, direct or

implied threat to use force against the manifest weight or sufficiency of the evidence.
Licking County, Case No. 11-CA-133                                               7


      {¶38} Accordingly, Appellant's sole assignment of error is overruled, and the

judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
Licking County, Case No. 11-CA-133                                                 8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
SIDNEY ZACKERY, SR.                       :
                                          :
       Defendant-Appellant                :         Case No. 11-CA-133


       For the reason stated in our accompanying Opinion, the judgment of the Licking

County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
