State v. Tillman

2014 Ohio 829

• Court: Ohio Court of Appeals
• Decided: March 6, 2014
• Docket: 99994
• Status: Published

Opinion

[Cite as State v. Tillman, 2014-Ohio-829.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99994

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CASSANDRA TILLMAN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-572152

BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Stewart, J.

RELEASED AND JOURNALIZED: March 6, 2014 ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen 3552 Severn Road #613 Cleveland, OH 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Amy E. Venesile Assistant Prosecuting Attorneys Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, P.J.:

{¶1} Appellant Cassandra Tillman appeals her conviction, entered after a bench

trial. For the following reasons, we find no merit to Tillman’s appeal and affirm the

decision of the trial court.

{¶2} The state charged Tillman with one count of felonious assault in violation of

R.C. 2903.11(A)(2), one count of robbery in violation of R.C. 2911.02(A)(2), two counts

of robbery in violation of R.C. 2911.02(A)(3), two counts of failure to comply in

violation of R.C. 2921.331(B), one count of endangering a child in violation of R.C.

2919.22(A), and one count of criminal damaging or endangering in violation of R.C.

2909.06(A)(1).

{¶3} These charges arose from a single incident occurring at a Kmart store located

in Garfield Heights, Ohio. On the day of the incident, Tillman, with a four-year-old

child in tow, attempted to shoplift over $700 of merchandise from the store. The

assistant manager and the loss prevention employee prevented Tillman from leaving the

premises with the merchandise, initially by blocking the exit. Tillman pushed the

assistant manager several times and attempted to punch him in the face. The loss

prevention employee intercepted the punch before Tillman was able to connect.

{¶4} Tillman managed to leave while the Kmart employees secured the

merchandise. After leaving, Tillman led the police on a high speed chase, in excess of

100 m.p.h. through city streets, with the young child in the back seat. Ultimately, Tillman lost control and rammed a telephone poll hard enough to blow the engine

completely out of the car she was driving. No one was hurt by the impact.

{¶5} After a bench trial, the trial court dismissed several counts, none of which is

relevant to the current appeal. The court found Tillman guilty of one of the R.C.

2911.02(A)(3) robbery counts, the two failure to comply counts, and the endangering a

child count. Tillman was sentenced to an aggregate term of two years in prison.

Tillman timely appeals, raising one assignment of error, in which she contends the trial

court erred in finding her guilty of robbery in violation of R.C. 2911.02(A)(3) because

there was insufficient evidence that Tillman used or threatened the use of physical harm

in committing or fleeing immediately after the attempted theft offense. Tillman’s sole

assignment of error is without merit.

{¶6} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge,

“[t]he 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, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

{¶7} Tillman challenges the sufficiency of the evidence supporting her conviction

for robbery pursuant to R.C. 2911.02(A)(3). In order to substantiate the robbery charge,

the state must have demonstrated beyond a reasonable doubt that Tillman “in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, * * *

[used] or threaten[ed] 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); State v. Foster, 8th Dist.

Cuyahoga 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).

{¶8} For example, in Foster, the defendant initially snatched a coin purse that was

on the victim’s bed in an adult care center and then attempted to exit the room. The

victim attempted to impede the defendant’s egress, and a tussle ensued in which the

victim was overpowered. The defendant escaped with the purse. Id. at ¶ 21. This

court determined that the tussle was sufficient force to substantiate the R.C.

2911.02(A)(3) robbery conviction. Id.

{¶9} In this case, Tillman conceded she attempted a theft offense and challenges

the state’s evidence with regard to the force element of her robbery conviction. Tillman

attempted to exit the store with stolen merchandise when the Kmart employees impeded

her exit. A tussle ensued. Tillman forcefully pushed the assistant manager several times

while he was blocking her only exit. Tillman additionally would have punched the

assistant manager but for the quick intervention by the other Kmart employee. The state,

in addition to the assistant manager’s testimony, presented videotaped evidence of the

tussle that occurred between the Kmart employees and Tillman in her attempt to escape. Viewing this evidence in the light most favorable to the state, a rational trier of fact could

have found the essential element of force proven beyond a reasonable doubt.

Accordingly, the trial court properly found Tillman guilty of robbery in violation of R.C.

2911.02(A)(3). Tillman’s sole assignment of error is overruled.

{¶10} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR