Timothy C. Tipton v. Arnold R. Jago, Richard R. Farr v. Eric Musekamp

818 F.2d 1264

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 1, 1987
• Docket: 86-3657
• Status: Published

Opinions

BOGGS, Circuit Judge.

In a consolidated case, two habeas corpus petitions were dismissed by the United States District Court for the Southern District of Ohio. The petitioners appeal, asserting that their convictions for robbery were invalid because of insufficient evidence, reasonable mistake of fact, and other reasons.

We hold that there was no evidence to support an essential element of the offenses charged. We reverse the district court and remand with instructions that the writ issue.

I

In April 1983, a former client telephoned Richard R. Farr, a practicing lawyer in Cincinnati, to ask him to represent Ralph Tuccinardi, then incarcerated in the Cincinnati City Jail. Farr visited Tuccinardi the next day, advised him to plead “no contest” to the theft charges, and agreed to represent him at arraignment. Farr asked for no retainer, but later testified at the trial that he set a fee of $200 for representation at the arraignment.¹ At arraignment the following day, the judge accepted the no contest plea and found Tuccinardi guilty, but sentenced him to “time served,” and freed him.

After Tuccinardi was released, Farr approached him more than once at his residence and also telephoned him in attempts to collect his fee. Tuccinardi changed addresses and failed to notify Farr. Later, Tuccinardi resurfaced at the Forest Pony Keg in Cincinnati, where he worked, and lived in the apartment over the store. The Pony Keg did not have a telephone, so Farr visited Tuccinardi there to demand payment, when he learned of Tuccinardi’s whereabouts. Tuccinardi told Farr to return another day when he would be able to pay Farr out of his paycheck.

At this point in the testimony at trial, Farr’s version of the facts and Tuccinardi’s version diverge. Farr testified that the appointed day for his return to the Pony Keg was the next Sunday; Tuccinardi testified that it was Monday. Tuccinardi testified at trial that he was in fact paid on every Friday, but he also testified with respect to the appointed date for payment to Farr that there was no reason that he would have been willing or able to pay on another day.

On Sunday, July 3, 1983, Farr was in the company of his friends Michael Dulay, Doris Nock and Timothy Tipton, at the Coney Island public swimming pool. After leaving the swimming pool in Farr’s automobile, Farr announced that he was going to visit the Pony Keg to collect a legal fee from a client. At the Pony Keg, Farr parked the automobile and went inside, followed by Dulay and Tipton. The latter individuals merely intended to buy beer. Miss Nock waited in the automobile.

Once inside the Pony Keg, the three individuals approached Tuccinardi, who was standing behind the counter. Farr asked Tuccinardi for the $200 and was rebuffed. Tuccinardi replied that he did not have the money, but told Farr that he would pay him the next Monday. Farr replied, somewhat heatedly, that he needed the money immediately. Tipton, who was across the counter from Tuccinardi but within striking distance, threatened to “tear up the store” and to take Tuccinardi forcibly into the parking lot and “whoop him.” Tipton then initiated a nonconsensual physical contact with Tuccinardi, which was described variously in the testimony. Tipton called it a “touching” of the chin; Tuccinardi and Farr both described it as a “grabbing” of the chin. In any event, it lasted for only about a second. The witnesses also disagreed whether Dulay or Tuccinardi pushed Tipton’s hand away from Tuccinardi.

Tuccinardi then took $50 out of the cash register and handed it to Farr, who had done nothing to help or hinder Tipton’s actions toward Tuccinardi. Farr wrote out a receipt, which Tuccinardi signed and gave back to Farr. At the trial, Tuccinardi testified that the copy of the receipt that was admitted into evidence was not the same one that he had signed. Furthermore, Tuccinardi testified that he signed the receipt under duress; and that he would not have given Farr the money except for the threats and force that Tipton used. Farr testified that he neither asked Tipton to use force and threats nor sought his assistance in collecting the debt.

After this incident at the Pony Keg, the four friends departed for Farr’s apartment in the automobile. Tuccinardi asked a clerk at the Pony Keg to summon the police. Officers Lemker and Hood were dispatched to the Pony Keg, and later apprehended Tipton at Farr’s apartment. Farr and Tipton explained their actions to the officers at that time. After the officers transported Tipton to the police station for booking, Farr went there to represent Tipton. Officers Wells and Stratton interviewed Farr at the station, after he waived his rights, and arrested him at that time.

The grand jury indicted Tipton and Farr separately and the cases were consolidated for a bench trial. At the trial, the State produced as witnesses the police officers and Tuccinardi, who was the State’s only witness to the actual offense. Tipton and Farr were found guilty of robbery, and sentenced to three to fifteen years in prison and four to fifteen years in prison and a $500 fine, respectively.

Farr received two years probation in lieu of his sentence. Tipton could not make bail until April 19, 1984, and was imprisoned after the trial until that time. The Ohio Court of Appeals affirmed the trial court in a per curiam opinion. Both appellants sought review in the Supreme Court of Ohio on the grounds that Farr’s motive to collect his legal fee negated the intent to rob. The Supreme Court of Ohio denied review.

Tipton moved for reduction of his sentence in the Common Pleas Court. The court denied this motion. Farr moved for reconsideration before the Supreme Court of Ohio, which was denied. The Board of Commissioners on Grievance and Discipline of the Ohio State Bar Association reviewed the trial record and found “no evidence to support the conviction” in a “[review] of the entire transcript of the criminal proceedings against [Farr],” but the Board felt constrained by the Rules for the Government of the Bar to recommend Farr’s indefinite suspension. Pursuant to the Board’s recommendation, the Supreme Court of Ohio suspended Farr from the practice of law on January 15, 1986.

On January 3, 1986, twenty-one days before the termination of his probation period, Farr filed a pro se petition for habeas corpus in the United States District Court for the Southern District of Ohio. Through counsel, Tipton filed a similar petition on January 10, 1986. The cases were referred to a United States magistrate, who filed a report of his findings of fact with the court. The magistrate’s report stated that the only issue was the possibility that a rational trier of fact could have found each element of the robbery beyond a reasonable doubt. The magistrate rejected appellants’ argument that State v. Snowden, 7 Ohio App.3d 358, 455 N.E.2d 1058 (1982), held that they could not have had the specific intent to rob if their motive was to collect a debt.

Appellants objected to the magistrate’s report on the grounds that the magistrate misapplied the intent requirement of the crime, and the complicity requirement. After de novo review of the objections, the district court dismissed the petitions. The court held that Snowden meant only that the presence of a legally owed debt could negate the mens rea element of robbery, but that it need not. The court below assumed that the trial court had concluded that appellants did not act with intent to collect a debt.

II

Appellants were charged with violation of Ohio Revised Code § 2911.02 (Page 1982) defining robbery to include “committing a theft offense” while “use[ing] or threatenpng] the immediate use of force against another.” While the evidence of Tipton’s threats and use of force are quite weak, we cannot say that no rational trier of fact could have found the element of force.

As defined in Ohio Revised Code § 2913.-02, theft involves the following elements: (1) “purpose to deprive the owner of property”; and (2) “without the consent” or “beyond the scope of the express or implied consent” of “the owner or person authorized to give consent.”

The offense here was charged in the language of the statute; that is, appellants were “committing or attempting to commit a theft offense, to wit: theft of United States currency.” The State in its opening argument specifically stated: “The money belonged to the Forest Pony Keg, not to Mr. Tuccinardi.” Thus, the relevant elements that must be assessed do not involve depriving Tuccinardi of money. They involve depriving the owner of the Pony Keg, even though he never made any complaint.

Thus, there must have been a specific intent not merely to get money from Tuccinardi (whether or not justified in doing so), but to take money from the Pony Keg.² There was no evidence whatsoever that Tuccinardi ever said he was giving them the owner’s money, or that by any act or statement the defendants indicated a desire or intent to take the owner’s money.

The State argues that the mere fact that Tuccinardi took the money from the cash register is evidence from which the judge could have inferred both a knowledge of the ultímate source of the money and the intent to take money, knowing it to be the owner’s. We disagree, believing that this piles inference upon inference to the breaking point. As indicated in Ohio Revised Code §§ 2913.02 and 2901.22(A), the intent that matters here is the specific intent to deprive the owner of the Pony Keg of his money. There is simply no evidence for that proposition. All of the evidence is that the defendants intended to collect the legal fee from Tuccinardi. There is not the slightest indication that they were bent on obtaining money, regardless of the source. It is true that Tuccinardi pleaded poverty; however, the intermingled nature of cashier and store owner, especially in this small establishment, with the cashier living over the store, are such that it is simply not reasonable to permit stretching the inference to the point that Tuccinardi’s making the payment from the cash register can be used to supply the crucial element of intent to rob the owner.

This argument is further supported by a careful examination of the definition of purpose, the key element under consideration. Ohio Revised Code § 2901.22(A) (Page 1982) states:

A person acts purposely when it is his intention to cause a certain result, or when the gist of the offense is a prohibition against conduct of a certain nature regardless of what the offender intended to accomplish thereby, it is his specific intention to engage in conduct of that nature.

The provisions of the Criminal Code are penal in nature, and must be “strictly construed against the State and liberally construed in favor of the accused.” Ohio Revised Code § 2901.04(A). In the light of this rule of statutory construction, Farr’s visit to the Pony Keg was not “purposely” or “with purpose” to rob the Pony Keg, because it was not his intention to cause the result of depriving the owner of his money. See Ohio Revised Code § 2913.02.

The convictions are REVERSED, because no rational trier of fact could have found Farr and Tipton guilty of each essential element of the crime of robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Scott v. Perini, 662 F.2d 428, cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1981).

1 . Tuccinardi denied the existence of a set fee at trial, but he did not deny acknowledging in his later contacts with Farr that the fee was $200.

2 . If the charge is considered as directed at depriving Tuccinardi of his own property, the Snowden case would become extremely relevant. In Snowden and similar cases (see, e.g., Annotation, Robbery, Attempted Robbery, or Assault to Commit Robbery as Affected by Intent to Collect or Secure Debt or Claim, 88 ALR 3d 1309 (1978)), overbearing debt collection has generally been held not to provide a defense whenever there are indicia that more is involved than simple debt collection, such as taking more than the amount due, taking without acknowledgement, or taking in the face of explicit resistance. Certainly, the existence of a legitimate debt does not justify a breach of the peace in debt collection. Cf. Ohio Revised Code § 1309.46 (Page 1979). On the other hand, debt collection has been adjudicated a complete defense to robbery where the cry of theft is raised only after the fact, where the consensual nature of the delivery of money is not in dispute, and in general where the circumstances surrounding the debt collection are such as to negate the intent element of the crime.

Here, even were it assumed that the taking of Tuccinardi’s money was involved, the doctrine of Snowden might provide a defense. There the court held that an accused does not act with purpose to deprive an owner of property if he reasonably believes that he has a right to the property in question. 455 N.E.2d at 1065. Here, the evidence is strongly to the effect that Farr wanted only the money owed him. Indeed, he departed with only 25% of that amount, even though there was more in the drawer. Further, persons taking money with the purpose of depriving another of his property normally do not give signed receipts. We do not believe, however, that it is the intent with regard to Tuccinardi’s money that is relevant here. The State did not contend that Tuccinardi’s money was involved, or that appellants’ intent with regard to money of Tuccinardi supported the crime.