Login | April 19, 2024
7th District partially remands aggravated robbery case
TRACEY BLAIR
Legal News Reporter
Published: September 17, 2021
A defendant accused of reaching for a police officer’s gun during booking appealed a Mahoning County Common Pleas Court’s decision finding him guilty of aggravated robbery, receiving stolen property and obstructing official business.
Richard Lamp argued there was insufficient evidence for the aggravated robbery and receiving stolen property convictions. He alternatively claimed the aggravated robbery and obstructing official business convictions should have merged because they were allied offenses of similar import.
The 7th District Court of Appeals found sufficient evidence for the convictions, but agreed the latter two convictions should have merged, resulting in plain error.
The case was remanded for resentencing with instructions for the state to elect on which offense it wishes to proceed to sentence.
In the early morning hours of Dec. 27, 2019, Phillip Benjamin came across Lamp walking on Beloit Snodes Road in Mahoning County. Benjamin stopped and Lamp asked him if he had gas and knew the way to Massillon. Benjamin showed him the way to Massillon using Google Maps, and then took him to a gas station.
After getting gas, they went back to the Dodge Journey the appellant had been driving. Lamp started getting a gas can out of the back of Benjamin’s vehicle. However, upon seeing a Goshen Township officer, Lamp put the gas can back in Benjamin’s vehicle and returned to the passenger seat of Benjamin’s vehicle.
Thomas had been dispatched to the area due to a report of an individual walking into the street who appeared to be intoxicated.
When the license plate of the Dodge was run, police discovered the vehicle was stolen. The owner of the vehicle reported her wallet, containing her social security card and about $800, along with prescription medicine were in the vehicle when it was stolen.
Benjamin agreed to have his vehicle searched. On the passenger side, where Lamp was sitting, the victim’s prescription pills were found, along with $781.
As Lamp was being booked at Smith Township Police Department, Lamp allegedly lunged at Sgt. Donald Davis and attempted to take his service weapon. The appellant was immediately taken to the ground and subdued. The incident was recorded.
Appellant was indicted for aggravated robbery, two counts of receiving stolen property and obstructing official business. Lamp pleaded not guilty and was found guilty on all but one count of receiving stolen property (narcotics).
Lamp was sentenced to 5 to 7 1/2 years for aggravated robbery, 18 months for receiving stolen property and one year for obstructing official business. The trial court ordered the definite terms to be served concurrently with the indefinite term.
“On appeal, Lamp argued the facts of the case indicate there was no difference in the harm committed between the two offenses,” 7th District Judge Carol Ann Robb said in her opinion. “He argues the conduct is the exact same for each offense, they occurred at the same time, and were done with a singular animus. That singular animus was appellant attempting to gain control of the officer’s keys and/or gun.
“The state counters stating appellant’s conduct shows the harm that resulted from each offense was separate and identifiable. Therefore, there is no plain error.”
The record confirms the merger issue was not raised to the trial court.
The panel stated the aggravated robbery and obstructing official business offenses should have merged.
“There has not been a case addressing the merger of aggravated robbery and obstructing official business,” Judge Carr noted. “Considering the facts of this case, the offenses were of similar import; the harm for each offense was the same. The act of reaching for the service weapon constituted both offenses and the harm was the attempt to prevent the officer from performing his duties. Furthermore, the harm that resulted from each offense is not separate. Attempting to remove the firearm was an attempt to disarm the officer and stop the officer from performing his duties. Merger was required given the facts.”
The sentences for aggravated robbery and obstructing official business were vacated and the matter was remanded for resentencing.
Appellate judges Gene Donofrio and Cheryl L. Waite concurred. The case is cited State v. Lamp, 2021-Ohio-2763.