[Cite as State v. Moore, 2016-Ohio-3506.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                         Court of Appeals No. L-15-1211

        Appellee                                      Trial Court No. CR0201501750

v.

Sammy Moore                                           DECISION AND JUDGMENT

        Appellant                                     Decided: June 17, 2016

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Dexter L. Phillips, Assistant Prosecuting Attorney, for appellee.

        Patricia Horner, for appellant.

                                               *****

        YARBROUGH, J.

                                            I. Introduction

        {¶ 1} Appellant, Sammy Moore, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to eight years in prison after the court found him guilty

of one count of aggravated robbery. We affirm.
                          A. Facts and Procedural Background

       {¶ 2} On May 15, 2015, appellant was indicted on one count of aggravated

robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree. The indictment

related to a robbery that occurred at a Family Dollar store on April 26, 2015.

       {¶ 3} At arraignment, appellant entered a plea of not guilty, and a bench trial was

eventually conducted. At trial, the state called several witnesses. Relevant here, the state

called a Family Dollar employee, Br.J., to testify.

       {¶ 4} Br.J., testified that she was patrolling the aisles in the store on the morning

of April 26, 2015, when she witnessed appellant place a can of body spray inside his

shirt. Initially, Br.J. asked appellant to give her back what he put inside his shirt, but

appellant insisted that he did not steal anything. Br.J. then instructed appellant to leave

the store. Appellant refused to leave, insisting that he was entitled to remain in the store.

This continued until Br.J. threatened to call the police if appellant did not leave the store.

At that point, appellant began walking toward the exit. Once appellant reached the front

of the store, he passed through the first exit door, beyond all points of purchase, and

stopped in the vestibule. While standing in the vestibule, appellant removed the can of

body spray from inside his shirt and gave it to Br.J. Br.J. then demanded that appellant

vacate the premises, at which point she turned around and walked back into the store.

Ignoring Br.J.’s instruction, appellant followed Br.J. back into the store. When Br.J.

accused appellant of possessing other stolen items, appellant pulled a box cutter from his

pocket and said, “Bitch, I’ll be waiting for you when you get off work.” According to




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Br.J.’s testimony, appellant’s behavior was threatening, causing her to become so scared

that she was forced to transfer to a different store. Br.J. responded by dialing 911.

       {¶ 5} After calling another Family Dollar employee and several police officers, the

state rested. Defense counsel then made a motion for acquittal under Crim.R. 29, which

was denied by the trial court. Thereafter, appellant was found guilty of aggravated

robbery after failing to call any witnesses of his own. The trial court immediately

proceeded to sentencing, and ordered appellant to serve eight years in prison. Thereafter,

appellant filed a timely notice of appeal.

                                 B. Assignment of Error

       {¶ 6} On appeal, appellant presents the following assignment of error:

              The state presented insufficient evidence to convict appellant of

       robbery, in violation of R.C. 2911.02(A)(1).

                                        II. Analysis

       {¶ 7} In his sole assignment of error, appellant argues that there was insufficient

evidence presented at trial to support his conviction for aggravated robbery under R.C.

2911.02(A)(1).

       {¶ 8} Sufficiency of the evidence is a determination of adequacy and a court must

consider whether the evidence was sufficient to support the conviction as a matter of law.

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The proper analysis

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




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reasonable doubt.’” State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996),

quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

       {¶ 9} R.C. 2911.02(A)(1) provides:

              (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:

              (1) Have a deadly weapon on or about the offender’s person or

       under the offender’s control.

       {¶ 10} Here, appellant argues that the state failed to offer sufficient evidence to

establish that he (1) committed a theft offense, (2) possessed a deadly weapon, or (3)

brandished a weapon within the meaning of R.C. 2911.02. In response, the state

contends that sufficient evidence was offered on every element of the offense of

aggravated robbery. Because they are interrelated, we will address appellant’s second

and third arguments simultaneously.

       {¶ 11} Relating to appellant’s first contention that there was insufficient evidence

to establish a theft offense, R.C. 2913.02(A)(1) states:

              (A) No person, with purpose to deprive the owner of property or

       services, shall knowingly obtain or exert control over either the property or

       services in any of the following ways:




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              (1) Without the consent of the owner or person authorized to give

       consent.

       {¶ 12} Under R.C. 2911.02(A)(1), the state was required to introduce evidence to

demonstrate that appellant committed or attempted to commit a theft offense. The

standard for criminal attempt is set forth in R.C. 2923.02(A), as follows: “(A) No person,

purposely or knowingly, and when purpose or knowledge is sufficient culpability for the

commission of an offense, shall engage in conduct that, if successful, would constitute or

result in the offense.” Criminal attempt is “an act or omission which constitutes a

substantial step in a course of conduct planned to culminate in the party’s commission of

the crime.” State v. Clyde, 6th Dist. Erie No. E-14-006, 2015-Ohio-1859, ¶ 24, citing

State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), paragraph one of the

syllabus. A substantial step consists of conduct which is “strongly corroborative of the

actor’s criminal purpose.” Woods at paragraph one of the syllabus.

       {¶ 13} In support of his first argument under his sole assignment of error,

appellant argues that he abandoned any attempt at committing a theft offense when he

returned the body spray upon request.

       {¶ 14} Abandonment is an affirmative defense to a charge of attempted theft under

R.C. 2923.02(D), which states: “It is an affirmative defense to a charge under this

section that the actor abandoned the actor’s effort to commit the offense or otherwise

prevented its commission, under circumstances manifesting a complete and voluntary

renunciation of the actor’s criminal purpose.” However, the defense of abandonment




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does not apply once criminal intent is formed and “such intent has been coupled with an

overt act toward the commission of the contemplated offense.” State v. Cooper, 52 Ohio

St.2d 163, 178, 370 N.E.2d 725 (1977), vacated in part on other grounds, 438 U.S. 911,

98 S.Ct. 3137, 57 L.Ed.2d 1157 (1978).

       {¶ 15} We previously addressed a similar argument in a case involving attempted

theft of store merchandise in State v. McGhee, 6th Dist. Lucas No. L-06-1210, 2007-

Ohio-6527. There, we held that the defendant’s act of leaving a bag of merchandise on

the floor after realizing he was being observed by the store manager did not absolve him

from liability for an attempted theft offense. Id. at ¶ 23. Concerning the defense of

abandonment, we concluded that the act of leaving the bag of merchandise on the floor

“was not a complete and voluntary renunciation” because the defendant only relinquished

control of the bag under threat of immediate apprehension by the store manager. To that

end, we stated that “[a]bandonment is involuntary where it is motivated by circumstances

not present at the inception of the defendant’s conduct which increased the likelihood of

detection or apprehension.” Id.

       {¶ 16} Similarly here, we find that the evidence presented at trial demonstrates

that appellant’s return of the body spray was not a complete and voluntary renunciation

of his criminal purpose to commit a theft offense. At trial, Br.J. testified that she

witnessed appellant place a can of body spray inside his shirt, demanded that he return

the item to her, and followed him as he walked out of the front door and past all points of




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purchase. Appellant did not return the body spray until Br.J. threatened to call the police

on him while the two were arguing in the vestibule.

       {¶ 17} Moreover, the defense of abandonment is not applicable here since

appellant committed the attempted theft before he returned the body spray. As noted

above, the defense of abandonment does not apply once criminal intent is formed and

“such intent has been coupled with an overt act toward the commission of the

contemplated offense.” Cooper at 178. The evidence submitted at trial supports a

finding that appellant took a substantial step towards the commission of a theft offense

before returning the body spray, namely the placement of the body spray inside his shirt

for purposes of evading detection by store employees and exiting through the front door

of the store beyond all points of purchase. Therefore, we find that the state presented

sufficient evidence to discredit appellant’s abandonment argument and establish

appellant’s attempt to commit a theft offense.

       {¶ 18} Next, appellant argues that the state presented insufficient evidence to

demonstrate that he possessed a deadly weapon or brandished a weapon within the

meaning of R.C. 2911.02. “Deadly weapon” is defined as “any instrument, device, or

thing capable of inflicting death, and designed or specially adapted for use as a weapon,

or possessed, carried, or used as a weapon.” R.C. 2923.11(A). The Legislative Service

Commission comment to R.C. 2923.11(A) identifies a knife as an example of a deadly

weapon.




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      {¶ 19} In his brief, appellant acknowledges the similarities between a knife and a

box cutter. Further, a box cutter has been specifically held to be a deadly weapon under

R.C. 2923.11. State v. Freeman, 11th Dist. Trumbull No. 2011-T-0059, 2012-Ohio-

2244, ¶ 13. Nonetheless, appellant contends that he did not possess, carry, or use the box

cutter as a weapon in this case. We disagree.

      {¶ 20} At trial, Br.J. testified that appellant pulled the box cutter from his pocket,

waved it at her, and said, “Bitch, I’ll be waiting for you when you get off work.” Based

on this unrefuted testimony, we conclude that a factfinder could have found that appellant

possessed, carried, or used the box cutter as a deadly weapon beyond a reasonable doubt.

      {¶ 21} In light of our review of the record, including the transcript of the

proceedings and the video footage of the incident captured by Family Dollar surveillance

cameras, we find that appellant’s aggravated robbery conviction was supported by

sufficient evidence. Accordingly, appellant’s sole assignment of error is not well-taken.

                                     III. Conclusion

      {¶ 22} In light of the foregoing, we affirm the judgment of the Lucas County

Court of Common Pleas. Costs are hereby assessed to appellant in accordance with

App.R. 24.

                                                                       Judgment affirmed.




8.
                                                                      L-15-1211
                                                                      State v. Moore


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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