[Cite as State v. Fagan, 2012-Ohio-5135.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY




STATE OF OHIO,
                                                      CASE NO. 3-11-20
   PLAINTIFF-APPELLEE,

  v.

LINDSEY R. FAGAN,
                                                      OPINION
   DEFENDANT-APPELLANT.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 11-CR-0117

                                      Judgment Affirmed

                           Date of Decision: November 5, 2012




APPEARANCES:

        Shane M. Leuthold for Appellant

        Clifford J. Murphy for Appellee
Case No. 3-11-20



SHAW, P.J.

       {¶1} Defendant-appellant Lindsey R. Fagan (“Fagan”) appeals the

November 3, 2011 judgment of the Crawford County Court of Common Pleas

sentencing her to 36 months in prison following a jury trial wherein she was found

guilty of Robbery in violation of R.C. 2911.02(A)(3), a felony of the third degree.

       {¶2} The facts relevant to this appeal are as follows. William Gasuras

(“Gasuras”) owned a restaurant called Little Athens in Bucyrus, Ohio. On January

24, 2011, shortly after 8 p.m., Gasuras was walking out to his vehicle after closing

down the restaurant with a moneybag in his hand. As Gasuras moved toward his

car a person later identified to be Joshua White (“White”) approached Gasuras

from behind and yanked the moneybag away from Gasuras. White then took off

running along with another individual.

       {¶3} Gasuras pursued the individuals, but being 70 years old, he was unable

to keep up. Gasuras stopped after roughly a block and asked two people that had

pulled up in a truck to call the police.     The individuals assisted Gasuras in

attempting to follow the two robbers but all three were ultimately unsuccessful.

       {¶4} Eventually White was caught and confessed to robbing Gasuras.

During White’s confession he implicated Fagan as the other individual involved in

the robbery.



                                         2
Case No. 3-11-20



       {¶5} On July 8, 2011, Fagan was indicted for one count of Robbery in

violation of R.C. 2911.02(A)(3), a felony of the third degree.        Although the

indictment cited the (A)(3) section of Robbery statute requiring the State to prove

the “[u]se or threat[] of the immediate use of force,” the indictment cited the

language consistent with the (A)(2) section of Robbery requiring the State to

prove “physical harm.”

       {¶6} On October 27-28, 2011, the case proceeded to a jury trial. At trial

Gasuras testified that he was certain Fagan was the other individual that robbed

him having gotten a good look at her when she stopped momentarily under a light

while he was in pursuit. White testified at trial on behalf of the State that he and

Fagan had planned the robbery roughly a month in advance and that Fagan was the

other person with him that night.      Tiffany Gray, an acquaintance of Fagan,

testified to seeing Fagan and White in her yard near the time of the robbery. The

State then rested its case.

       {¶7} After the State rested, defense counsel made a Criminal Rule 29

motion for acquittal, arguing that no physical harm had been shown during the

robbery to comport with the language cited in the indictment, and that no use or

threat of force had been shown to satisfy the statute cited in the indictment.

Further, defense counsel argued that if the State was allowed to amend its

indictment to change the language to comply with the cited section of the statute,

                                         3
Case No. 3-11-20



the defense was prejudiced by its inability to cross-examine the State’s witnesses

on the element of “force” rather than “harm.”

        {¶8} Ultimately the court overruled defense counsel’s motion, allowing an

amendment to the indictment holding that as the correct statutory section

comporting with the evidence was cited in the indictment, defense counsel could

hardly claim surprise.          Further, the court found sufficient evidence had been

presented to prove all of the elements of Robbery in violation of R.C.

2911.02(A)(3).

        {¶9} Fagan then presented her defense, beginning with the testimony of the

two people from the truck who assisted Gasuras in trying to chase the robbers.

The two people both testified that they did not think Fagan was one of the two

people they saw that night. Fagan then called her father to present an alibi.

Fagan’s father testified that Fagan was home around the time of the incident and

could not have had enough time to sneak out and commit the crime in the window

of time where he did not observe her.

        {¶10} On October 28, 2011 Fagan was found guilty of Robbery by the jury.

Sentencing was set for October 31, 2011. At the sentencing hearing, Fagan was

sentenced to 36 months in prison with credit for time served.1



1
 Fagan was also sentenced to pay $894 in restitution to Gasuras, and sentenced to pay a $250 fine. Fagan
was given credit for 102 days served.

                                                    4
Case No. 3-11-20



       {¶11} On November 3, 2011, the court filed its judgment entry

memorializing Fagan’s sentence. It is from this judgment that Fagan appeals,

asserting the following assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       APPELLANT’S CONVICTION FOR ROBBERY SHOULD BE
       REVERSED BECAUSE THE EVIDENCE ADDUCED AT
       TRIAL WAS LEGALLY INSUFFICIENT TO PROVE
       BEYOND A REASONABLE DOUBT ALL THE ELEMENTS
       OF ROBBERY.

                   ASSIGNMENT OF ERROR 2
       THE JUDGMENT AND JURY VERDICT ARE AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE.

                   ASSIGNMENT OF ERROR 3
       THE TRIAL COURT ERRED IN DENYING APPELLANT’S
       MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29.

                     ASSIGNMENT OF ERROR 4
       THE TRIAL COURT ERRED WHEN ALLOWING THE
       STATE TO AMEND THE INDICTMENT AFTER ITS CASE
       IN CHIEF, SINCE IT DID NOT ALLOW THE DEFENSE TO
       CROSS     EXAMINE     THE    STATE’S  WITNESSES
       REGARDING THE ELEMENT OF FORCE.

       {¶12} In the interest of clarity, we elect to address some of the assignments

of error together, and out of the order that they are raised.

                                Fourth Assignment of Error

       {¶13} In her fourth assignment of error, Fagan argues that the trial court

erred in allowing the State to amend its indictment after its case-in-chief since

Fagan could not cross examine the State’s witnesses regarding the element of

                                           5
Case No. 3-11-20



force. Specifically, Fagan contends that allowing the State to amend the wording

of its indictment to comport with the statute cited in the indictment was error as it

changed the element necessary to be proven to “force” rather than “harm.”

       {¶14} The pertinent portion of the indictment in this case reads as follows:

       The Grand Jurors of the County of Crawford in the name and
       by the authority of the State of Ohio, upon their oaths to find
       and present that on or about the 24th day of January, 2011, in
       Crawford County, Ohio, Lindsey R. Fagan while aiding and
       abetting Joshua D. White, did,

       Recklessly in attempting, or committing a theft offense, as
       defined in section 2913.01 of the Revised Code, or in fleeing
       immediately after the attempt or offense and did inflict or
       attempt to inflict, or threaten to inflict physical harm on the
       victim, in violation of Ohio Revised Code Section 2911.02(A)(3)
       ROBBERY, a felony of the third degree.

       In violation of the Ohio Revised Code, Title 29, Section 2911.02
       and against the peace and dignity of the State of Ohio.

(Doc. 1).

       {¶15} The statute and subsections for Robbery pertinent to this case read as

follows:

       (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:

       ***

       (2) Inflict, attempt to inflict, or threaten to inflict physical harm
       on another;


                                         6
Case No. 3-11-20



        (3) Use or threaten the immediate use of force against another.

R.C. 2911.02(A).

        {¶16} In the indictment, the State cited Fagan for a violation of R.C.

2911.02(A)(3). However, the State cited the language consistent with a violation

of R.C. 2911.02(A)(2) in the indictment. This first became an issue when defense

counsel made a Criminal Rule 29 motion for acquittal at the close of the State’s

case. Arguing in favor of the Rule 29 motion, defense counsel contended first that

the State had not shown any harm to Gasuras during the robbery to prove the

language cited in the indictment, and second that no force had been shown to

prove the statute cited in the indictment. (Tr. at 129).

        {¶17} Defense counsel then challenged the appropriateness of allowing the

State to amend the indictment. The court responded by saying, “I don’t think you

can claim surprise since the number cited and the degree of the felony is the F-3

and there can be no mistake. * * * I would see a bigger argument * * * if I was

letting them * * * try to prove the F-2, which is the language they used.” (Tr. at

134).

        {¶18} When further discussing the Rule 29 motion, the following exchange

occurred between the court and defense counsel:

        THE COURT: * * * [P]erhaps your motion would be better –
        been better served as a motion attacking the deficiency of the
        Indictment prior to trial.

                                          7
Case No. 3-11-20




       MR. LEUHOLD: I didn’t realize it, Your Honor, until – until
       lunch and I started thinking why is he asking about force? So
       then we went back over the lunch hour and did some case law
       research and some statutory research and that’s how we
       discovered it.

       THE COURT: Clearly, they’ve got the right * * * section that
       comports to the truth that’s been adduced at trial. And it
       indicates felony of the third degree. The harm, inflicted harm,
       would be a more serious felony, that would be under (A)(2), and
       that would be a felony * * * of the second degree.

       So based on the Court’s, uhm, feeling that there was no surprise
       involved here, that the State’s allowed to comport their evidence
       and, the fact that even addressing your argument on force,
       whether or not there’s sufficient evidence, the Court does find
       that there has been sufficient evidence of the crime upon which
       reasonable minds could differ. Therefore, they could easily find
       guilt. So your motion is overruled.

(Tr. at 135).

       {¶19} Based upon the record and the foregoing discussion contained in the

record, we find that the trial court did not actually “amend” the indictment to

conform to new evidence developed at trial. The trial court merely amended the

language in the indictment to conform to the statutory section already cited in the

indictment.

       {¶20} However, even viewing what the trial court did as an “amendment”

of the indictment to conform to the evidence, “[a] trial court may at any time

before, during, or after a trial amend an indictment provided no change is made in


                                        8
Case No. 3-11-20



the name or identity of the crime charged.” State v. Coleman, 3d. Dist. No. 9-03-

23, 2003-Ohio-6440 ¶ 14, citing Crim.R. 7(D). We have held previously that

when an amendment changes a charge from one part of a statute to “a subpart of

the original statute, [and] the name or identity of the crime had not been changed *

* * the amendment was proper.” Id.

      {¶21} Here any “amendment” to the indictment was done merely to

comport with the statutory subsection already cited and the evidence presented.

Allowing such an amendment is consistent with both Crim.R. 7(D) and our own

caselaw. See Coleman, supra at ¶ 14.

      {¶22} Furthermore, while Fagan argues that she was precluded from cross-

examining the State’s witnesses on the element of “force,” her counsel never

moved to recall any witnesses to cross-examine them on the element of force

during the discussion of the Rule 29 motion. In addition, during the trial, Fagan’s

counsel specifically cross-examined the victim, Gasuras, as to how the moneybag

was taken from him, if he was touched, etc., diminishing any claim of prejudice.

(Tr. at 79-89). Finally, the case went to the jury under an appropriate “force”

instruction. Based on the foregoing, we find no error in allowing the State to

comport the language in the indictment to the statute cited, or, as it is argued,

allowing the State to amend its charge to the evidence presented.

      {¶23} Accordingly, Fagan’s fourth assignment of error is overruled.

                                         9
Case No. 3-11-20



                       First and Third Assignments of Error

       {¶24} In her first and third assignments of error Fagan argues that there was

legally insufficient evidence to convict her of robbery and that the court erred by

denying her Crim.R. 29 motion for acquittal. Specifically, Fagan contends that no

“force” was proven to satisfy that particular element of robbery.

       {¶25} The Ohio Supreme Court has set forth the sufficiency of the evidence

test as follows:

       An appellate court’s function when reviewing the sufficiency of
       the evidence to support a criminal conviction is to examine the
       evidence admitted at trial and determine whether such evidence,
       if believed, would convince the average mind of the defendant’s
       guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259 (1991), at syllabus, superseded by state

constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio

St.3d 89 (1997); See also Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-

2179, ¶ 10.

       {¶26} The test for sufficiency of evidence has also been held applicable to

determining a Crim.R. 29 motion for acquittal. “Pursuant to Crim.R. 29(A), a

court shall not order an entry of judgment of acquittal if the evidence is such that

reasonable minds can reach different conclusions as to whether each material

                                        10
Case No. 3-11-20



element of a crime has been proved beyond a reasonable doubt.             State v.

Bridgeman, 55 Ohio St.2d 261, syllabus (1978). This court has previously found

that the Bridgeman standard “must be viewed in light of the sufficiency of

evidence test * * *.” State v. Kneply, 3d Dist. No. 7-11-02, 2012-Ohio-406, ¶ 23,

quoting State v. Foster, 3d Dist. No. 13-97-09, at *2 (Sept. 17, 1997).

       {¶27} In this case, Fagan was indicted for robbery in violation of R.C.

2911.02(A)(3) which reads:

       (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:

       ***
       (3) Use or threaten the immediate use of force against another.

Force is defined by R.C. 2901.01(A) as, “violence, compulsion, or constraint

physically exerted by any means upon or against a person or a thing.”

       {¶28} At trial, the State first called William Gasuras, the owner of Little

Athens and victim of the crime. Gasuras, 70 years old at the time of this incident,

testified that he followed his normal routine closing down Little Athens and then

walked out to his vehicle in the parking lot carrying a moneybag. (Tr. at 67). As

Gasuras approached his vehicle someone came up “forcefully behind [him],

yank[ed his] bag and started to run.” (Tr. at 68). Gasuras testified that he “felt

[White’s] arm go through * * * [his] arm and [his] bag disappeared.” (Tr. at 79).


                                         11
Case No. 3-11-20



Gasuras turned and saw two subjects running down the street and he chased them

down an alley, yelling for them to stop. (Tr. at 68).

        {¶29} Gasuras testified he got a good look at the robbers and that one was a

little bit taller than Gasuras (Gasuras is 5’8”) and the other was about five or six

inches shorter than he was. (Tr. at 69). Gasuras also testified that he thought one

of the robbers was a female or a younger child by the way the robber ran. (Tr. at

76).

        {¶30} While pursuing the robbers, Gasuras testified that the subjects turned

around as they crossed a street behind Fisher’s Auto Parts and faced him in a

lighted parking lot. (Tr. at 69-70). Gasuras testified he got a good look under the

lighting from 10-12 feet away of the robbers he would later identify as Josh White

and Lindsey Fagan.2 (Tr. at 70). Gasuras testified he chased the two for about a

block. (Tr. at 83). Gasuras testified that at that point White and Fagan split up

and ran in different directions. (Tr. at 72).

        {¶31} Gasuras testified he came across a pickup truck with two people in it

that was coming down the alley. Gasuras told the people in the pickup truck he

was robbed and that the pair responsible split-up. (Tr. at 76). The two in the truck

told Gasuras they would chase after them, and they did. According to Gasuras, the

2
  Gasuras testified that White and Fagan had hung around the restaurant and eaten there before. (Tr. at 84).
Although Gasuras recognized Fagan, having seen her around, he did not know her name. Gasuras testified
that he did not learn her name until the day after the robbery when his granddaughter showed him
Lindsey’s picture. (Tr. at 74).

                                                    12
Case No. 3-11-20



two in the truck went in the direction Gasuras indicated White had run. (Tr. at

77).

        {¶32} Gasuras never caught up to either assailant that night.                        At trial

Gasuras unequivocally identified Fagan as the second robber. (Tr. at 71). Gasuras

testified that he was one-hundred percent certain Fagan was the second robber

being that he got a good look at her under the light. (Tr. at 78).

        {¶33} The State called Josh White as its second witness.                         White was

serving a prison term for the robbery in this case and was offered a reduced

sentence for his cooperation.3 (Tr. at 93, 109). White testified he had known

Lindsey for several years and that they had planned the robbery together roughly a

month before it took place. (Tr. at 93-94). White testified he had been to the

Little Athens restaurant several times before as he had at one time been dating a

girl that worked there. (Tr. at 95).

        {¶34} White’s testimony mirrored Gasuras’ in that White testified when

Gasuras came out to his car carrying the moneybag, White forcefully grabbed the

moneybag and then took off running. (Tr. at 95-96, 116). White testified that at

some point he and Fagan split up when running; he could not recall why. (Tr. at




3
 According to the testimony, White was given a four-year prison sentence which would be reduced to two
years in exchange for his cooperation. (Tr. at 109).

                                                  13
Case No. 3-11-20



96). White testified that he and Fagan met up later at his brother’s house and that

he split the money in the bag evenly with Fagan.4 (Tr. at 96-97).

        {¶35} White testified that he went into hiding after the robbery because he

did not want to go to jail. (Tr. at 110). Subsequently, after hiding out for some

time, White’s friend Ashley got into a fight with Fagan at school. (Tr. at 111).

White testified that he called Fagan and yelled at her about this altercation. (Tr. at

111). At some point during the call Fagan’s dad got on the phone. (Tr. at 111).

According to White, it was a few weeks after this phone call that he was arrested.

(Tr. at 112).

        {¶36} White testified that when he was arrested, he implicated Fagan in the

crime as the other robber. (Tr. at 113). White further testified that he implicated

Fagan because he felt he “shouldn’t take all the blame for it because it wasn’t just

[him].” (Tr. at 113).

        {¶37} The State next called Dawn Gray. Dawn testified that she did not see

White or Fagan the night of the robbery, but she testified that someone had been

by her house approximately twenty minutes before the restaurant was robbed. (Tr.

at 122). Dawn testified that approximately twenty minutes after the robbery, the




4
  White’s testimony was that there was “like 400 -- $400 or something like that” in the bag. Gasuras
claimed at the sentencing hearing that there was $892 in the bag and this was the amount awarded in
restitution.

                                                14
Case No. 3-11-20



granddaughter of the owner of the restaurant came over to her house and informed

her that the restaurant had been robbed. (Tr. at 122).

       {¶38} The State next called Tiffany Gray, Dawn’s daughter. Tiffany Gray

testified that on the night of the robbery, close to the time of the incident, White

and Fagan ran beside her house. (Tr. at 125). Tiffany testified that she was 100

percent certain it was White and Fagan running through her yard. (Tr. at 127).

Tiffany testified that she thought it was after the restaurant was robbed that she

saw the two running through the yard. (Tr. at 126).

       {¶39} After Tiffany Gray testified, the State rested its case and Fagan made

a Rule 29 motion for acquittal. The Court overruled this motion finding there was

sufficient evidence to convict Fagan.

       {¶40} Despite Fagan’s claims that there was not enough evidence to find

that “force” was used in this case, the testimony establishes that Gasuras, the 70-

year-old elderly victim, had his moneybag forcefully yanked away from him. This

type of “force” has been found sufficient in other cases, especially where the

victim is elderly or young and particularly vulnerable on account of age. See State

v. Carter, 29 Ohio App.3d 148 (9th Dist.1985) (force held sufficient to sustain

robbery conviction under R.C. 2911.02(A)(3) where an elderly purse-snatching

victim was found “especially vulnerable because of her age” and given that

vulnerability, “the force applied, however minuscule, was within the

                                         15
Case No. 3-11-20



contemplation of the statute.”); See also In re Kinser, 5th Dist. No. 1997CA00130,

1998 WL 172991, *2 (where force held sufficient when 17-year-old boy took cat

from 6-year-old girl’s arms “[b]ecause of [girl’s] extremely young age, especially

in comparison to appellant's age, she had a peculiar vulnerability[.]”).

         {¶41} Moreover, White, who was in prison for committing the robbery

against Gasuras, specifically testified that he used “force” on Gasuras to acquire

the moneybag and deprive Gasuras of its contents. Based upon these facts we find

that the testimony presented by the State constitutes sufficient evidence for a jury

to find that the element of “force” to prove Robbery as indicted was presented. In

addition, we find that the evidence produced at trial was sufficient to prove the

remaining elements of robbery. Therefore, as there was sufficient evidence to

convict Fagan of the Robbery, it was not an error to deny Fagan’s Rule 29

motions. Accordingly, Fagan’s first and third assignments of error are overruled.

                                Second Assignment of Error

         {¶42} In Fagan’s second assignment of error, she argues that her conviction

for Robbery was against the manifest weight of the evidence. Specifically Fagan

contends that the State failed to prove beyond a reasonable doubt that Fagan

participated in the robbery based upon the contradictory testimony of witnesses at

trial.



                                         16
Case No. 3-11-20



       {¶43} The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively’ different. Eastley v.

Volkman, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380

(1997), paragraph two of the syllabus.

       {¶44} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. Volkman,

supra, at ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing

whether the trial court’s judgment was against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and examines the conflicting testimony.

Id. In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder “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. Andrews, 3d Dist. No. 1-05-70,

2006-Ohio-3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172, 175 (1983);

Thompkins, 78 Ohio St.3d at 387.

       {¶45} At trial, Fagan produced an alibi witness in the form of her father

who stated that Fagan was at home both shortly before and shortly after the

                                         17
Case No. 3-11-20



alleged incident. Fagan also produced two witnesses from the incident who said

Fagan was not one of the robbers. The two witnesses said the second robber was

both taller than Fagan, and male.

       {¶46} Contrary to the testimony produced by the defense, the State

presented the testimony of Gasuras who said he was certain Fagan was the second

robber having gotten a good look at her from 10-12 feet away under good lighting.

Gasuras testified he had seen Fagan around though he did not know her name. In

addition, the State presented the testimony of White who said he and Fagan had

planned and executed the robbery. Finally, the State produced the testimony of

Tiffany Gray who testified to seeing White and Fagan together in the area around

the time of the robbery, contradicting Fagan’s alibi.

       {¶47} Notably Fagan’s alibi witness was her father, who would be biased

toward his daughter, and that alibi is further brought into doubt by the testimony

of Tiffany Gray. Moreover, though Fagan produced witnesses who said she was

not the second robber Gasuras stated affirmatively he was certain it was her.

Although White’s testimony may have been suspect as he was getting a deal to

testify, Tiffany Gray’s testimony corroborates White’s testimony in that the two

were placed together around the time of the robbery. Based upon these facts, we

find that a jury could properly conclude that Fagan was the second robber.

Accordingly, Fagan’s second assignment of error is overruled.

                                         18
Case No. 3-11-20



       {¶48} For the foregoing reasons, Fagan’s assignments of error are

overruled and the judgment of the Crawford County Court of Common Pleas is

affirmed.

                                                                Judgment Affirmed


WILLAMOWSKI, J., concurs in Judgment Only.

ROGERS, J., Dissenting.

       {¶49} I respectfully dissent from the majority’s disposition of Fagan’s first

assignment of error because I would find that the State failed to present sufficient

evidence to establish the element of force beyond a reasonable doubt.

       {¶50} As the majority correctly notes, “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). The Committee Comment to R.C. 2911.02

provides, in relevant part, “that the difference between theft and robbery is an

element of actual or potential harm to persons.” In State v. Furlow, 80 Ohio

App.3d 146 (2d Dist. 1992), the court noted that “[t]he definition of ‘force’ in R.C.

2901.01(A), without more, does not serve to sufficiently distinguish the offenses

of theft and robbery, which carry very different penalties.”        Thus, the court

reasoned, “[r]equiring that the force necessary to elevate a theft to a robbery

involve actual or potential harm provides a meaningful distinction between the


                                         19
Case No. 3-11-20



two offenses.” Id.; See also State v. Weaver, 2d Dist. No. 93 CA 02 (Nov. 1,

1993); State v. Myatt, 10th Dist. No. 96APA12-1657 (June 30, 1997). I find this

reasoning persuasive.

       {¶51} In Furlow, the defendant was convicted of robbery after he stole five

one dollar bills and a wallet from the victim’s hands. The defendant asked the

victim whether he had change for a five dollar bill. In response, the victim pulled

his wallet out and removed five one dollar bills from his wallet, holding the wallet

and money in different hands. The defendant took the victim’s wallet and money

from his hands and fled. At trial, the victim described the incident as follows:

       * * * I had the billfold in my left hand, five ones in my right. And
       he came toward me and I said, well? I looked up at him and I said
       where’s your five? And just like that-I was looking at him. He
       grabbed the billfold out of one hand, five ones, turned and took off.

       ***

       The minute I saw his hand out there and nothing in it it started
       dawning on me. But it was too late. I knew right then-I put a little
       grip on it so he had to snatch hard. Furlow at 149.

At most, the court reasoned, the victim’s testimony established that the victim

“was gripping * * * his hands more tightly than he normally would have.” Id.

Based on this testimony, the court determined that the defendant’s taking of the

victim’s money and wallet did not fall within the ambit of the word violent, or

occasioned either actual or potential harm to the victim. Accordingly, the court


                                         20
Case No. 3-11-20



determined that there was insufficient evidence to establish the element of force

beyond a reasonable doubt, and remanded the matter for sentencing on the lesser

included offense of theft.

       {¶52} In Weaver, the defendant was convicted of robbery, among other

offenses, for stealing the victim’s purse from her person. While the victim waited

to enter a parked car, the defendant ran up from behind her and took her purse. At

trial, the victim described the incident as follows:

       We came out of the Douglas Inn and we were parked across the
       street by the Moose Club, and we were walking over to the car; and
       as I was waiting for him to unlock the door for me, I had my purse
       on my shoulder and my hand on my shoulder strap, and someone
       grabbed my purse from behind, had come up running and grabbed it,
       took off and went down Miami Street.

       ***

       Q. And when the purse was taken from you, were you actually
       wearing it at that time?

       A. Yes, I had it up on my shoulder with my hand on this strap
       (indicating), but not on-on the purse itself.

       ***

       Q. And was it ripped away from you?

       A. Yes. Weaver, 2d Dist. No. 93 CA 02 at *2-3.

Based on this testimony, the court determined that the evidence did not establish

that the victim “suffered actual physical harm or its potential from the Defendant’s


                                          21
Case No. 3-11-20



acts.” Id. at *3. Accordingly, the court determined that there was insufficient

evidence to establish the element of force beyond a reasonable doubt, and

remanded the matter for sentencing on the lesser included offense of theft.

      {¶53} Similarly, in Myatt, the court, considering Furlow and Weaver, found

that there was insufficient evidence to establish the element of force where the

evidence simply demonstrated that the thief “yanked” the victim’s purse from her

person. Myatt, 10th Dist. No. 96APA12-1657, at *4.

      {¶54} I find that the facts of the present case to be similar to those in

Furlow, Weaver, and Myatt. Here, Gasuras described the incident as follows:

      That particular evening, I’d done my routine and I was getting ready
      to leave. Uhm, I opened the back door and I proceeded to my car
      that was parked behind the store. Once, as I got to the car, I was
      carrying my, uhm, money bag and newspaper in my hand, my right
      hand, as I approached my car, I pushed the remote, then I switched
      my newspaper and my money bag to my left hand to open the door.
      At that particular time, I felt someone forcefully behind me, yank my
      bag and started to run. Trial Tr., p. 67-68.

Based on Gasuras’ description, I fail to see the difference between the force used

to take the moneybag from his hands and the force used to take the money in

Furlow and the purses in Weaver and Myatt. Similar to the defendants in those

cases, White simply “yank[ed]” the moneybag from Gasuras’ hands. There is no

evidence that this “yank” could be considered violent, as provided for in R.C.

2901.01(A), caused actual harm, or had the potential of causing harm to Gasuras.


                                        22
Case No. 3-11-20



       {¶55} In finding sufficient evidence of force, the majority appears to rely

on Gasuras’ age (70 years old), suggesting that it caused him to be more

vulnerable to harm. However, there is nothing in the record which suggests that

Gasuras was vulnerable simply because he was 70 years old.             If anything,

Gasuras’ action of chasing White and Fagan demonstrates that he was not as

vulnerable as the majority suggests.     Thus, I find the majority’s reliance on

Gasuras’ age and perceived vulnerability unavailing.

       {¶56} For the reasons stated above, I would find that the State failed to

present sufficient evidence to establish the element of force, and, therefore, would

sustain Fagan’s first assignment of error and find Fagan’s second and third

assignments of error moot. See App.R. 12(A)(1)(c). I concur in judgment only as

to Fagan’s fourth assignment of error.



/hlo




                                         23
