[Cite as State v. Griggs, 2012-Ohio-1837.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97284


                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    RAYALEN GRIGGS
                                                    DEFENDANT-APPELLANT



                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-547820

        BEFORE: S. Gallagher, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 26, 2012
ATTORNEY FOR APPELLANT

Michael J. Manuszak
2905 Paxton Road
Shaker Heights, OH 44120


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Erica Barnhill
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant Rayalen Griggs appeals his conviction in Cuyahoga County

Common Pleas Court Case No. CR-547820 for one count of robbery in violation of R.C.

2911.02(A)(3).    For the following reasons, we reverse his conviction and remand for

further proceedings.

       {¶2} On February 27, 2011, the victim, Jamille Jones, was at a downtown

Cleveland bar with friends. While she was waiting in line inside the bar to order some

food, Griggs approached Jones.        Griggs and Jones were involved in a romantic

relationship, but disputed whether Jones had broken off the relationship the week before.

Jones was standing with a friend. Griggs walked up to Jones and put his arms around

her, pulled her into an embrace, and, according to Jones, rubbed her backside.       Jones

claims she “forcibly” removed his hands and told Griggs to leave her alone.         Griggs

grabbed her again, “started rubbing up on” her, and held her tight enough that she was

unable to back away.

       {¶3} Griggs claimed that he did not understand why Jones was acting aloof,

which stems from the dispute about whether the romantic relationship was ongoing. At

this point, according to Griggs, Jones took out her cell phone and stepped out of the loud

bar to place a call.   Jones claims that the rest of the incident occurred inside the noisy

bar.   Either way, Jones called 911 to report Griggs’s advances as harassment.   While on
the phone with the emergency responders, Jones told Griggs that she was calling to have

him arrested.    Both parties agree that at this point, Griggs “snatched” the phone from

Jones’s hand and walked away.         Jones claims that as he walked away, Griggs said she

would have to buy a new phone. It is also undisputed that Griggs immediately left the

bar and returned the cell phone to Jones’s front porch sometime during the middle of the

night. After all this, Griggs was pulled over while driving near Jones’s residence and

arrested.

       {¶4} The state charged Griggs with gross sexual imposition (“GSI”) in violation of

R.C. 2907.05(A)(1), a fourth-degree felony, and one count of robbery in violation of R.C.

2911.02(A)(3), a third-degree felony.        The trial court denied Griggs’s Crim.R. 29

motions for acquittal made at the close of the state’s and the defense’s cases.    After a

bench trial, Griggs was acquitted of the GSI but found guilty of robbery, a third-degree

felony.     The trial court sentenced Griggs to time served and one year of community

control sanctions.   Griggs appealed, raising one assignment of error that challenged the

sufficiency and manifest weight of the evidence for the robbery conviction.       Griggs’s

sole assignment of error has merit.

       {¶5} When an appellate court reviews a claim of insufficient evidence,

       “the relevant inquiry is 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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77,
       quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
       paragraph two of the syllabus.
The weight to be given the evidence and the credibility of the witnesses are primarily for

the trier of fact.   State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386,

¶ 37.

          {¶6} Griggs challenges his conviction for robbery pursuant to R.C. 2911.02(A)(3).

 In order to substantiate the robbery claim, the state must demonstrate beyond a

reasonable doubt that Griggs “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.”       R.C. 2911.02(A)(3).     Force is defined as “any violence,

compulsion, or constraint physically exerted by any means upon or against a person or

thing.”     R.C. 2901.01(A)(1).   The force element can be 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, 6

Ohio St.3d 91, 451 N.E.2d 772 (1983), paragraph one of the syllabus.

          {¶7} The parties agreed to the foregoing standard.    The parties disagree as to the

application of that standard to the facts of this case.   In this case, the state argues that the

force necessary to remove the phone from Jones’s hand or the force used in holding Jones

before she dialed 911 was sufficient to satisfy the force element of robbery.                We

disagree with the state’s argument. Jones never testified to being in fear of Griggs

during their brief five-minute encounter at the bar.              The state was limited to
demonstrating the force element of robbery through actual force.          At trial, the state

primarily relied on so-called purse-snatching cases to establish the force element.

       {¶8} In the purse-snatching context, in determining whether the force element was

satisfied, trial courts can consider the size and demeanor of the offender, the likelihood of

physical injury from the offender’s conduct, and the vulnerability of the victim.         In re

Bobby Joe Lee, 5th Dist. No. 98-CA-0250, 1999 WL 174860, (Mar. 1, 1999). In Lee,

the offender accosted a 75-year-old woman in a parking lot and forcibly pulled the

victim’s purse away, causing injury to the victim’s shoulder and finger.     Id. at *1.    The

offender was 15 years old, 6 feet 1 inch tall, and weighed 142 pounds.            Id.     Most

important, the victim testified that had she not let go of the purse, she would have fallen

to the ground. Id.    With these facts, the force element of robbery was satisfied.

       {¶9} This district, following the above rationale, has limited force to situations

involving actual or potential harm to the victim. State v. Eskridge, 8th Dist. No. 82619,

2003-Ohio-6869, ¶ 23; see also Staff Notes to R.C. 2911.02 (explaining that the

difference between theft and robbery is an element of actual or potential harm to persons).

 In Eskridge, the defendant ordered coffee from a family restaurant and when the clerk

opened the register, the defendant reached in and grabbed $50.       The clerk testified that

the defendant pushed her back and attempted to grab more money. Eskridge at ¶ 5-6.

On cross-examination, the clerk stated that the defendant pushed her back one-half inch.

Id. at ¶ 7.   This court concluded that such conduct was insufficient to satisfy the force

element because the force posed no danger of physically harming the victim. Id. at ¶ 28;
contra State v. Foster, 8th Dist. No. 90109, 2008-Ohio-2933 (holding that the physical

tussle between the victim and the defendant, which occurred after the theft was

completed, satisfied the force element for robbery); State v. Davis, 8th Dist. No. 91943,

2009-Ohio-3894, ¶ 44 (holding that pushing a store employee, from the storefront curb,

backward into a busy parking lot satisfied the force element).

        {¶10} In this case, Jones never testified to fearing Griggs during their brief

encounter nor to being in any physical danger when Griggs took the cell phone from her

hand.    The fact that Jones was holding the cell phone in her hand when Griggs acted

does not constitute the type of force that elevates a theft to robbery. Eskridge at ¶ 28;

State v. Furlow, 80 Ohio App.3d 146, 608 N.E.2d 1112 (2d Dist.1992) (holding the force

needed to remove a wallet from the victim’s hand was insufficient to satisfy the force

element of robbery).

        {¶11} The state additionally argues that the force element can be satisfied by

Griggs’s conduct prior to the taking of the cell phone; however, there is no evidence that

Griggs sought to steal Jones’s phone when he first approached her.     The force needed to

take the phone and that done to allegedly commit the GSI were separate.      This court has

consistently maintained that

              “[u]nder 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.”       State v. Martin, 8th Dist. No. 89792,

       2008-Ohio-1827, ¶ 21, quoting State v. Ballard, 14 Ohio App.3d 59, 60-61,

       469 N.E.2d 1334 (8th Dist.1984).

       {¶12} In Ballard, the defendant approached his ex-girlfriend outside her home to

talk. Ballard at 59.     The ex-girlfriend demurred and turned to walk inside the house.

Id.   The defendant grabbed her purse from her shoulder in an effort to keep her outside.

Id. When the ex-girlfriend further refused to speak, the defendant returned the purse,

but not before noticing a firearm inside. Id. The defendant relieved her of the gun and

returned the purse. Id. The defendant was charged with robbery. Id. This court held

that not only is it doubtful that the grabbing of the purse constituted the sufficient force to

satisfy the robbery statute, but also, any such force was applied prior to the taking of the

firearm. Id. at 61.    Therefore, the force used to take the purse did not coincide with the

theft and the robbery conviction was against the sufficiency of the evidence. Id.

       {¶13} The current appeal raises a similar issue, and we must adhere to the Ballard

precedent.   The force used in grabbing and holding Jones occurred prior to the theft

being committed.      The state’s reliance on such evidence is insufficient to satisfy the

force element of robbery; the force needed to hold Jones did not coincide with the taking

of the cell phone.    The evidence presented at trial, therefore, was insufficient to satisfy

all elements of the robbery count beyond a reasonable doubt, based on a thorough review

of the record.
       {¶14} Griggs’s sole assignment of error is sustained.

       {¶15} Judgment reversed, and this cause is remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., DISSENTS
