Ohio Appellate Reports
Unpublished
STATE v. SMITH, Unpublished Decision (12-29-2006)
2006-Ohio-6980 STATE OF OHIO, Plaintiff-Appellee, v.
DANIELLE SMITH, Defendant-Appellant. Nos. C-060077. Court
of Appeals of Ohio, First District, Hamilton County. Date
of Judgment Entry on Appeal: December 29, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal Appeal From: Hamilton County Court
of Common Pleas.
Trial No. B-0503447.
Affirmed.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and
Judith Anton Lapp, Assistant Prosecuting Attorney, for
Plaintiff-Appellee, Michaela M. Stagnaro, for
Defendant-Appellant.
OPINION
GORMAN, Presiding Judge.
{¶ 1} Following a bench trial, defendant-appellant
Danielle Smith appeals from the trial court’s judgment
convicting her of theft, in violation of R.C. 2913.02.
Because theft is a lesser-included offense of the charged
offense of robbery, and because Smith’s conviction was
amply supported by the evidence, we affirm the judgment of
the trial court.
{¶ 2} Smith was arrested after an altercation at the
Macy’s department store in Tri-County Mall. Rachel Cornet,
a loss-prevention supervisor for Macy’s, observed Smith,
Lashay Meadows, and Meadows’s young children, walking
around the store and pushing a shopping cart containing
empty shopping bags. Cornet and another Macy’s employee
observed the group enter fitting rooms with multiple items
of merchandise and leave with fewer items in their hands. A
security camera also videotaped the group’s activities and
was offered as evidence.
{¶ 3} Smith and Meadows headed for an exit with the
Meadows children pushing the shopping cart. Their
previously empty shopping bags were now filled with over
$1,674 of clothing. Smith walked about five feet behind the
cart. As they passed the last point of sale, store security
stopped Meadows. Smith turned to re-enter the department
store. Cornet and a security officer stopped her and asked
her to accompany them to the store’s office.
{¶ 4} After returning to the store with Cornet,
Smith began to resist. She pushed Cornet, struck the guard
with hangers, tipped over display tables, and ultimately
attempted to bite the security guard. When store
supervisors arrived, Smith became more cooperative. She
denied that she knew of Meadows’s intention to shoplift,
and claimed that she struggled with Cornet and the security
guard only because they had accused her of theft.
{¶ 5} The Hamilton County Grand Jury returned an
indictment charging Smith with robbery, in violation of
R.C. 2911.02(A)(3), and alleging that “in committing or
attempting to commit a theft offense, to wit: THEFT OF
RETAIL MERCHANDISE FROM MACY’S, or in fleeing immediately
thereafter, [she had] used or threatened the immediate use
of force against” Cornet and the security guard. Smith
waived a jury trial. Her defense was that she did not know
that Meadows had intended to steal from Macy’s.
{¶ 6} The trial court stated, “Having sat through
this trial, I find the testimony of the defendant with
regard to not knowing that she was involved in a theft
offense — I find that to be incredible. I viewed the
videotape; there is no question she was acting in concert
[with Meadows]. * * * So [Smith] was involved in a theft
offense.
{¶ 7} “I’m not convinced with regard to the robbery
at this point in time. And, therefore, I find her guilty of
a felony of the fifth degree theft” as a lesser-included
offense of robbery.
{¶ 8} Conceding that petty theft, punishable as a
first-degree misdemeanor, is a lesser-included offense of
robbery, Smith objected on grounds that fifth-degree felony
theft was not because the value of the stolen property was
an element of that crime — an element missing from
the charged, greater offense of robbery. The trial court
nonetheless found Smith guilty of fifth-degree theft and
imposed an 11-month prison term.
{¶ 9} In her first assignment of error, Smith
contends that fifth-degree theft is not a lesser-included
offense of robbery, and thus that the trial court was
without authority to convict her of any crime more severe
than petty theft.
{¶ 10} A trial court may enter a judgment of
conviction on an offense that is a lesser-included offense,
an offense of an inferior degree, or an attempt to commit
the greater charged offense. See R.C. 2945.74; see, e.g.,
State v. Deem (1988), 40 Ohio St. 3d 205, 533 N.E.2d 294,
paragraph one of the syllabus. “[A] criminal offense may be
a lesser included offense of another if (1) the offense
carries a lesser penalty than the other; (2) the greater
offense cannot, as statutorily defined, ever be committed
without the lesser offense, as statutorily defined, also
being committed; and (3) some element of the greater offense
is not required to prove the commission of the lesser
offense.” State v. Barnes, 94 Ohio St.3d 21, 25-26,
2002-Ohio-68, 759 N.E.2d 1240, citing State v. Deem,
paragraph three of the syllabus. The second prong of the
test requires the offenses at issue to be examined “as
statutorily defined and not with reference to specific
factual scenarios.” State v. Barnes, 94 Ohio St.3d at 26,
2002-Ohio-68, 759 N.E.2d 1240 (emphasis in the original).
{¶ 11} The test for a lesser-included offense is
“grounded primarily in the need for clarity in meeting the
constitutional requirement that an accused have notice of
the offenses charged against him. Sixth Amendment to the
United States Constitution; Section 10, Article I of the
Ohio Constitution.” State v. Deem, 40 Ohio St.3d at 210,
533 N.E.2d 294.
{¶ l2} The indictment in this case charged Smith
with robbery. R.C. 2911.02(A)(3) provides that “[n]o
person, 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.” The value of the property obtained or attempted to
be obtained in the theft offense is not an element of
robbery as statutorily defined.
{¶ l3} R.C. 2913.02(A)(4), which proscribes theft by
threat,[fn1] states that “[n]o person, with purpose to
deprive the owner of property or services, shall knowingly
obtain or exert control over either the property or
services * * * [b]y threat.”
{¶ 14} The degree of the theft offense is determined
by the value of the stolen property. Pursuant to R.C.
2913.02(B)(2), petty theft is punishable as a misdemeanor
of the first degree. But “if the value of the property or
services stolen is five hundred dollars or more and is less
than five thousand dollars * * *, a violation of this
section is theft, a felony of the fifth degree.” R.C.
2913.02(B)(2). As the value of the stolen property elevates
the degree of the offense and does not simply enhance the
penalty, the value of the property or service stolen is an
essential element of the crime of theft, but not petty
theft, and must be proved by the state. See State v.
Edmondson, 92 Ohio St.3d 393, 398, 2001-Ohio-210, 750
N.E.2d 587, citing State v. Henderson (1979), 58 Ohio St.2d
171, 173-174, 389 N.E.2d 494.
{¶ 15} The first prong of the Deem test for whether
theft is a lesser-included offense of robbery was satisfied
in this case. Robbery is punishable as a third-degree
felony. Fifth-degree theft carries a lesser penalty. The
third prong was also met. “[T]heft by threat consists
entirely of some, but not all, of the elements of robbery.
The use of force or the threatened use of immediate force
are elements of robbery which are not required to
constitute the offense of theft by threat.” State v. Davis
(1983), 6 Ohio St.3d 91, 95, 451 N.E.2d 772; see, also,
State v. Stone (Jan. 31, 1996), 1st Dist. No. C-950185.
{¶ 16} But our analysis under the second prong of
Deem is more problematic. As one can commit robbery, for
example, with a handgun by depriving the victim of property
valued at less than $500, robbery can be committed without
the lesser offense of theft, which requires proof of a loss
of $500 or more, also being committed. Therefore, theft
would appear not to be a lesser-included offense of robbery.
See State v. Deem, paragraph three of the syllabus.
{¶ 17} But as a subordinate court we are constrained
from sustaining Smith’s first assignment of error by the
Ohio Supreme Court’s decision in State v. Davis, 6 Ohio
St.3d at 95, 451 N.E.2d 772. In Davis, the supreme court
was required to determine whether grand theft by threat,
then punishable as a fourth-degree felony upon proof that
the property or services stolen were valued at $150 or
more, was a lesser-included offense of robbery. See 6 Ohio
St.3d 91, 451 N.E.2d 772, fn. 1. In its decision, which
predated State v. Deem, the supreme court applied an
earlier, lesser-included-offense test, found in State v.
Wilkins (1980), 64 Ohio St.2d 382, 415 N.E.2d 303, that
lacked the admonition that the offenses were to be examined
“as statutorily defined.” Although it recognized that value
was an element of grand theft, the supreme court did not
discuss the omission of value from the indictment.
Nonetheless, in resolving the issue posed by the second
Deem prong, the court held that “theft by threat contains no
element which is not also an element of robbery; therefore,
one cannot commit a robbery without committing theft by
threat.” 6 Ohio St.3d at 95, 451 N.E.2d 772. As Smith’s
appeal raises the identical issue resolved in State v.
Davis, we continue to adhere to the supreme court’s decision
as we have previously, see, e.g., State v. Stone; State v.
Williams (June 26, 1996), 1st Dist. No. C-950571; State v.
Pratt (Sept. 9, 1987), 1st Dist. No. C-860436, and overrule
the first assignment of error.
{¶ 18} Smith’s second assignment of error, in which
she challenges the weight and the sufficiency of the
evidence to support her conviction, is overruled. Our
review of the record fails to persuade us that the trial
court, sitting as the trier of fact, clearly lost its way
and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. See
Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211; see,
also, State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541. The trial court was entitled
to reject Smith’s defense that she had not acted in concert
with Meadows. As the weight to be given the evidence and
the credibility of the witnesses were primarily for the
trier of fact to determine, see State v. DeHass (1967), 10
Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the
syllabus, the trial court, in resolving conflicts in the
testimony, could properly have found Smith guilty of the
lesser-included offense and thus did not lose its way.
{¶ 19} There was substantial, credible evidence from
which the trial court could have reasonably concluded that
the state had proved all elements of the lesser-included
offense of theft by threat beyond a reasonable doubt. See
State v. Waddy (1991), 63 Ohio St.3d 424, 588 N.E.2d 819,
certiorari denied (1992), 506 U.S. 921, 113 S.Ct. 338.
{¶ 20} Therefore, the judgment of the trial court is
affirmed.
Judgment affirmed.
SUNDERMANN and HENDON, JJ., concur.
[fn1] The trial court did not specify which subsection of
R.C. 2913.02(A) Smith had violated. From the allegations in
the indictment and the evidence introduced at trial, we
presume that the trial court believed that Smith had
committed theft by threat under R.C. 2913.02(A)(4). There
was no evidence that would have supported convictions under
the other subsections of R.C. 2913.02. Smith’s arguments at
trial and on appeal accept this conclusion.