[Cite as State v. Zackery, 2012-Ohio-3171.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11-CA-133 SIDNEY ZACKERY, SR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 11 CR 00229
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT KIRK A. MCVAY Licking County Prosecutor 755 S. High Street 20 S. Second Street, Fourth Floor Columbus, Ohio 43206 Newark, Ohio 43055 Licking County, Case No. 11-CA-133 2
Hoffman, P.J.
{¶1} Defendant-appellant Sidney Zackery, Sr. appeals his conviction entered
by the Licking County Court of Common Pleas on one count of robbery. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 1, 2010, Appellant entered the Duke and Duchess
convenience store and gas station at 900 North 21st Street, Newark, Licking County,
Ohio. He selected a candy bar and took it to the register where he handed it to the clerk
on duty, Charles Rine. Rine opened the cash drawer of the store register, Appellant
lunged over the counter, and attempted to take the money from the cash drawer. Rine
initially attempted to close the drawer, but Appellant pushed the drawer open. Appellant
persisted in his efforts to open the drawer, and Rine stepped back. Rine used the
store’s wall telephone to call 911.
{¶3} On May 13, 2011, the Licking County Grand Jury indicted Appellant on
one count of robbery, in violation of R.C. 2911.02, a felony of the third degree.
Appellant waived his right to trial by jury, and consented to be tried to the court.
Appellant further stipulated to the elements of the offense, with the exception of the use
or threat of force against another. Appellant was convicted of the charge, and
sentenced to a period of community control.
{¶4} Appellant now appeals, assigning as error:
{¶5} “I. THE TRIAL COURT ERRED, DEPRIVING DEFENDANT-APPELLANT
OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO Licking County, Case No. 11-CA-133 3
CONSTITUTION WHEN FOUND DEFENDANT-APPELLANT GUILTY OF ROBBERY
WHEN THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE WOULD NOT
SUPPORT THE CONVICTION.”
{¶6} Appellant's sole assignment of error asserts his conviction is against the
manifest weight and sufficiency of the evidence as the evidence presented at trial does
not demonstrate he used or threatened force against another.
{¶7} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in ‘reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury 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. Thompkins, 78 Ohio St.3d 380, 387, 1997–
Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717, (1983).
{¶8} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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), ¶ two of the syllabus.
{¶9} Appellant was convicted of one count of robbery, in violation of R.C.
2911.02, which reads:
{¶10} "(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: Licking County, Case No. 11-CA-133 4
{¶11} "(1) Have a deadly weapon on or about the offender's person or under the
offender's control;
{¶12} "(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
{¶13} "(3) Use or threaten the immediate use of force against another."
{¶14} "Force" means any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing. R.C. 2901.01(A)(2). The test for force
or threat of force is objective, and force is to be proven by the totality of the
circumstances. State v. Habtemariam (1995), 103 Ohio App.3d 425. The use or threat
of immediate use of force element of the offense of robbery, as expressed in R.C.
2911.02(A), is 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 (1983), 6 Ohio St.3d 91. The force need not be great
in terms of degree; rather, any force will do.
{¶15} The parties stipulated to the facts presented to the trial court in a
"Stipulation/Agreement/Waiver", and agreed the sole issue at trial was whether the
State proved, beyond a reasonable doubt, the element of the offense of robbery
Appellant did "use or threaten the immediate use of force against another." Appellant
challenges the trial court's conclusion Appellant utilized force or the threat of force in
committing the offense.
{¶16} At trial, Charles Rine, the store attendant involved in the altercation,
testified: Licking County, Case No. 11-CA-133 5
{¶17} “Q. Let’s get some more details. When you say he lunged, give me an
idea of what you mean? Did he jump up and over the entire counter, for example?
{¶18} “A. No. He basically thrust his upper torso onto the counter by reaching
over like from his waist up, reaching over with both arms, and we struggled the drawer
me closing it and him pushing it open.
{¶19} “Q. Okay. Give me a little more description of struggling with the drawer.
In other words - -
{¶20} “A. I had my hands - -
{¶21} “Q. Are you pushing, are you pulling, are you moving side to side? Just - -
{¶22} “A. I’m pushing forward on the register like I’m going to close the drawer,
and he’s on the other side of the counter and with like one hand he’s pushing the
drawer open, trying to push it open, and with the other hand, he’s like taking the money,
and I just keep pushing the drawer shut, and finally, I just gave up.
{¶23} “I didn’t know if he may have had a weapon or whatever. I was just - - at
that point, I was kind of like I’m backing up because I don’t know what’s going to happen
at that point. I am a lot bigger than he is, and I wouldn’t take on someone larger than
me not knowing what’s going to go on.
{¶24} “Q. So, the fact that you’re bigger than him played into your thinking in that
way?
{¶25} “A. That, you know, he definitely wants to get the money no matter what. I
mean, it’s - - he could easily had a weapon on him or something. I wasn’t sure. I just - -
it was just the fear that I didn’t know what was going to happen after that point. Licking County, Case No. 11-CA-133 6
{¶26} “Q.
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[Cite as State v. Zackery, 2012-Ohio-3171.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11-CA-133 SIDNEY ZACKERY, SR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 11 CR 00229
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT KIRK A. MCVAY Licking County Prosecutor 755 S. High Street 20 S. Second Street, Fourth Floor Columbus, Ohio 43206 Newark, Ohio 43055 Licking County, Case No. 11-CA-133 2
Hoffman, P.J.
{¶1} Defendant-appellant Sidney Zackery, Sr. appeals his conviction entered
by the Licking County Court of Common Pleas on one count of robbery. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 1, 2010, Appellant entered the Duke and Duchess
convenience store and gas station at 900 North 21st Street, Newark, Licking County,
Ohio. He selected a candy bar and took it to the register where he handed it to the clerk
on duty, Charles Rine. Rine opened the cash drawer of the store register, Appellant
lunged over the counter, and attempted to take the money from the cash drawer. Rine
initially attempted to close the drawer, but Appellant pushed the drawer open. Appellant
persisted in his efforts to open the drawer, and Rine stepped back. Rine used the
store’s wall telephone to call 911.
{¶3} On May 13, 2011, the Licking County Grand Jury indicted Appellant on
one count of robbery, in violation of R.C. 2911.02, a felony of the third degree.
Appellant waived his right to trial by jury, and consented to be tried to the court.
Appellant further stipulated to the elements of the offense, with the exception of the use
or threat of force against another. Appellant was convicted of the charge, and
sentenced to a period of community control.
{¶4} Appellant now appeals, assigning as error:
{¶5} “I. THE TRIAL COURT ERRED, DEPRIVING DEFENDANT-APPELLANT
OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO Licking County, Case No. 11-CA-133 3
CONSTITUTION WHEN FOUND DEFENDANT-APPELLANT GUILTY OF ROBBERY
WHEN THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE WOULD NOT
SUPPORT THE CONVICTION.”
{¶6} Appellant's sole assignment of error asserts his conviction is against the
manifest weight and sufficiency of the evidence as the evidence presented at trial does
not demonstrate he used or threatened force against another.
{¶7} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in ‘reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury 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. Thompkins, 78 Ohio St.3d 380, 387, 1997–
Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717, (1983).
{¶8} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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), ¶ two of the syllabus.
{¶9} Appellant was convicted of one count of robbery, in violation of R.C.
2911.02, which reads:
{¶10} "(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: Licking County, Case No. 11-CA-133 4
{¶11} "(1) Have a deadly weapon on or about the offender's person or under the
offender's control;
{¶12} "(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
{¶13} "(3) Use or threaten the immediate use of force against another."
{¶14} "Force" means any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing. R.C. 2901.01(A)(2). The test for force
or threat of force is objective, and force is to be proven by the totality of the
circumstances. State v. Habtemariam (1995), 103 Ohio App.3d 425. The use or threat
of immediate use of force element of the offense of robbery, as expressed in R.C.
2911.02(A), is 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 (1983), 6 Ohio St.3d 91. The force need not be great
in terms of degree; rather, any force will do.
{¶15} The parties stipulated to the facts presented to the trial court in a
"Stipulation/Agreement/Waiver", and agreed the sole issue at trial was whether the
State proved, beyond a reasonable doubt, the element of the offense of robbery
Appellant did "use or threaten the immediate use of force against another." Appellant
challenges the trial court's conclusion Appellant utilized force or the threat of force in
committing the offense.
{¶16} At trial, Charles Rine, the store attendant involved in the altercation,
testified: Licking County, Case No. 11-CA-133 5
{¶17} “Q. Let’s get some more details. When you say he lunged, give me an
idea of what you mean? Did he jump up and over the entire counter, for example?
{¶18} “A. No. He basically thrust his upper torso onto the counter by reaching
over like from his waist up, reaching over with both arms, and we struggled the drawer
me closing it and him pushing it open.
{¶19} “Q. Okay. Give me a little more description of struggling with the drawer.
In other words - -
{¶20} “A. I had my hands - -
{¶21} “Q. Are you pushing, are you pulling, are you moving side to side? Just - -
{¶22} “A. I’m pushing forward on the register like I’m going to close the drawer,
and he’s on the other side of the counter and with like one hand he’s pushing the
drawer open, trying to push it open, and with the other hand, he’s like taking the money,
and I just keep pushing the drawer shut, and finally, I just gave up.
{¶23} “I didn’t know if he may have had a weapon or whatever. I was just - - at
that point, I was kind of like I’m backing up because I don’t know what’s going to happen
at that point. I am a lot bigger than he is, and I wouldn’t take on someone larger than
me not knowing what’s going to go on.
{¶24} “Q. So, the fact that you’re bigger than him played into your thinking in that
way?
{¶25} “A. That, you know, he definitely wants to get the money no matter what. I
mean, it’s - - he could easily had a weapon on him or something. I wasn’t sure. I just - -
it was just the fear that I didn’t know what was going to happen after that point. Licking County, Case No. 11-CA-133 6
{¶26} “Q. The fact that he went to initially grab the money, why did you attempt
to close the drawer at all?
{¶27} “A. Instincts. I mean it just - - it’s there. It’s not that, you know, it’s not his
property. It’s the store property. It’s, you know, I’m there and that’s like my job to make
sure that everything is run properly and know that everything is there, and it’s totally
just, you know - -
{¶28} “Q. Ultimately, did you relent in trying to close the drawer?
{¶29} “A. Yes, I did.
{¶30} “Q. Can you tell me why that was?
{¶31} “A. I just – I figured that, you know, he was so persistent about wanting to
get the money. I was just - - didn’t know, you know, what he could be capable of doing -
-
{¶32} “Q. Did you - -
{¶33} “A. - - just to get the money out of the drawer.
{¶34} “Q. So you were concerned or had fear that he might - -
{¶35} “A. Yes. I was concerned about what he may have had on him. I mean, if
he had a weapon, if he was on drugs, something; I didn’t want it to escalate any further
and possibly me getting injured.”
{¶36} Tr. at 16-18.
{¶37} Based upon the above and in consideration of the facts as stipulated to by
the parties, we do not find the trial court's finding there was sufficient evidence to satisfy
the element Appellant engaged in behavior which constituted an immediate, direct or
implied threat to use force against the manifest weight or sufficiency of the evidence. Licking County, Case No. 11-CA-133 7
{¶38} Accordingly, Appellant's sole assignment of error is overruled, and the
judgment of the Licking County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER
s/ John W. Wise _____________________ HON. JOHN W. WISE Licking County, Case No. 11-CA-133 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : SIDNEY ZACKERY, SR. : : Defendant-Appellant : Case No. 11-CA-133
For the reason stated in our accompanying Opinion, the judgment of the Licking
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________ HON. JOHN W. WISE