Summary
In State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O. 3d 340, 383 N.E.2d 32, syllabus, we stated: "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt."
Summary of this case from In re WatsonOpinion
No. 78-311
Decided December 6, 1978.
Criminal law — Appeal — Evidence — Review — Jury verdict not reversed, when — Charge to jury.
A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.
APPEAL from the Court of Appeals for Mahoning County.
On October 9, 1975, Morris Levy, manager of the Twentieth Century Restaurant in Youngstown, was on his way to the north side branch of the Dollar Savings and Trust Company to make a deposit of money from the restaurant. After he reached the bank he realized that he had left some of the envelopes containing money in the safe at the restaurant and he proceeded to return to get them. When he left the bank at approximately 4:00 p.m. he was carrying almost $2,000 in a paper bag.
As Levy was preparing to cross the street an unidentified individual grabbed him by the collar and ripped the buttons off his shirt. Levy turned around and ran back towards the bank. Approximately two steps from the bank door he was tackled by the same assailant and both men went down onto the cement sidewalk. A struggle ensued between Levy and his attacker.
While the men were wrestling on the ground, the defendant, Henry Eley, entered the affray, snatched the bag of money and fled. As soon as the defendant grabbed the bag the unidentified aggressor also fled the scene.
Levy pursued the defendant who eventually was apprehended with the help of a bank security guard. The bag of money was recovered a short distance from where the defendant was captured. The unidentified assailant was never found.
The defendant was arrested and charged with aggravated robbery in violation of R.C. 2911.01(A)(2). He was subsequently indicted on the same charge by the Mahoning County grand jury on December 16, 1975. He was tried by a jury which returned a guilty verdict on December 15, 1976. The defendant was sentenced to a term of from 4 to 25 years in the Ohio penitentiary, and the Court of Appeals affirmed the judgment.
This cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Vincent E. Gilmartin, prosecuting attorney, and Mr. John A. Kicz, for appellee.
Mr. Eugene B. Fox, for appellant.
I.
The appellant raises two propositions of law in the instant cause. In his first proposition of law, appellant contends that a defendant cannot be properly convicted of a crime where the elements necessary to establish the offense are provided in part by the conduct of the defendant and in part by another, unless there is a showing of a common criminal design or conspiracy. This issue was neither raised in the trial court nor was it assigned as error in the Court of Appeals. The Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals. State v. Walker (1978), 55 Ohio St.2d 208, 217; State v. Williams (1977), 51 Ohio St.2d 112. Furthermore, the record reflects that the jury was adequately instructed on the elements of complicity pursuant to R.C. 2923.03 and no specific objection was raised concerning the trial court's explanation of the law. See Crim. R. 30. Appellant's first proposition of law is, therefore, overruled.
II.
In the appellant's second proposition of law, he contends that a conviction for aggravated robbery based on an "attempt to inflict serious physical harm to another" is against the manifest weight of the evidence and contrary to law when the victim sustains no injury and is merely wrestled to the ground.
The appellant was indicted for the crime of aggravated robbery in violation of R.C. 2911.01(A)(2). The elements of that crime are set out in the statute as follows:
"(A) No person, in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
"(1) Have a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code on or about his person or under his control;
"(2) Inflict, or attempt to inflict serious physical harm on another.
"(B) Whoever violates this section is guilty of aggravated robbery, a felony of the first degree." (Emphasis added.)
What constitutes "serious physical harm" is further defined by R.C. 2901.01(E). The statute reads, in pertinent part:
"(E) `Serious physical harm to persons' means any of the following:
"(1) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
"(2) Any physical harm which carries a substantial risk of death;
"(3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity.
"(4) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement;
"(5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain." (Emphasis added.)
The record reveals that the end result of the struggle between Levy and his attacker was not "serious physical harm." However, to establish this aggravating element of the crime the facts need only demonstrate an attemp to inflict any one of the results described in R.C. 2901.01(E)(1)-(5).
Furthermore, in considering an assignment of error in a criminal case which attacks the sufficiency of evidence, a certain perspective is required. This court's examination of the record at trial is limited to a determination of whether there was evidence presented, "which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." Atkins v. State (1926), 115 Ohio St. 542, 546; State v. Sorgee (1978), 54 Ohio St.2d 464, 465. Our review is thus confined to a determination of whether there was substantial evidence. State v. Walker, supra, at page 210; State v. Stewart (1964), 176 Ohio St. 156, 160; State v. Sheppard (1956), 165 Ohio St. 293, paragraph five of the syllabus.
The evidence shows that the assailant grabbed at the victim's shirt collar and ripped off his buttons. The victim was tackled on a cement sidewalk and received an injury to both his head and hip. There was also testimony that the attacker weighed more than Levy and that the victim was turned on his back during the struggle.
From that evidence a jury could reasonably conclude, beyond a reasonable doubt, that the assailant attempted to inflict whatever harm was necessary to incapacitate Levy. Furthermore, a jury could reasonably find that the attacker would not have stopped short of serious physical harm had the victim failed to let go of the money bag. Accordingly, we find no merit in the appellant's second proposition of law.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
LEACH, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.