The distinction between Robbery and the lesser included offense of Theft by Force involves the threatened use of immediate force. In order to prove robbery, it is necessary to show that the use or threat of force occurred during or immediately after the theft offense.
“The force necessary to raise a theft offense to robbery is defined as any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.” State v. Goodson, 9th Dist. No.2537-M (September 4, 1996).
In State v. Sills, Sills approached a bank teller and stated that he was robbing the bank and had a gun. The 9th District upheld his conviction for robbery stating that his threats were unambiguous in that he was threatening to use the gun on the teller if they did not comply with his demands. State v. Sills, 9th Dist. No. 95CA0004 (July 5, 1995).
In State v. Davis, Davis was holding his hand beneath his shirt as if he had a gun ordering the store clerk to open the cash register. Davis never mentioned he had a gun and stated that he was not going to hurt anyone. The Ohio Supreme Court held it was possible for the jury to conclude that Davis had not threatened the immediate use of force but rather theft by threat. State v. Davis, 6 Ohio St.3d. 91, 451 N.E.2d 772 (1983).
R.C. 2913.02 entitled “Theft” provides in pertinent part,
(A)(4) “No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services…by threat.”
R.C. 2911.02 entitled “Robbery” provides in pertinent part,
(A)(3) “No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall…use or threaten the immediate use of force against another.”
R.C. 2901.01 entitled “General Provisions” provides in pertinent part,
(A)(1) “Force means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.”
The distinguishing element between robbery and theft by force is the threatened use of immediate force. Specifically, in order to prove the commission of robbery under R.C. 2911.02(A)(3), the prosecution must show: (1) the use or threatened use of force (2) during the commission, attempt to commit, or fleeing after the commission or attempt to commit the underlying theft offense.
The potential consequences for a robbery and theft conviction drastically differ. A conviction for robbery under R.C. 2911.02(A)(3) is a third degree felony (F-3) which carries the potential incarceration of thirty-six (36) months and a then thousand dollar ($10,000.00) fine.
A conviction for theft under R.C. 2913.02(A)(4) where the value of the property or services stolen is under one thousand dollars ($1,000.00) is a first degree misdemeanor (M-1) which carries the potential incarceration of six (6) months and a one thousand dollar ($1,000.00) fine.
If you or someone you care about has questions regarding robbery and/or theft offenses, please contact attorney Michael C. Hennenberg to schedule a consultation.