Portage County Legal News

9th District reduces robbery conviction to theft

ANNIE YAMSON
Special to the Legal News
Published: April 15, 2014

The judgment of the Summit County Court of Common Pleas was recently reversed when the 9th District Court of Appeals ruled that the lower court failed to properly instruct a jury on the lesser included offense of theft in a case involving a stolen video game system.

Marcus Coker appealed his conviction for one count of robbery, arguing that he did not use force to steal a Nintendo Wii game system.

The trial court had sentenced him to seven years in prison on that count, along with concurrent six month sentences for two counts of assault.

During trial, the state presented evidence that Coker forcefully entered the residence of Shawna Bailey and had a physical altercation with Bailey and Devin Hubbard, who was staying at her apartment.

According to case summary, Coker knocked on the door of the apartment at approximately 7 a.m. on Nov. 4, 2012.

Bailey opened the door and Coker asked if he could come in, charge his phone and roll a marijuana cigarette.

Before Bailey was able to respond, Coker punched her in the face and entered the apartment where he continued to hit her and put her in a headlock.

Hubbard, who was asleep on the couch at the time, awoke to Bailey’s screams. When he saw Hubbard, Coker let Bailey go and punched Hubbard in the face.

Bailey ran to her room but could not find her phone to call police.

When she came back out, both Bailey and Hubbard were gone along with the gaming system.

Hubbard testified that when he woke up, he was punched by Coker and sat dazed on the couch as he watched Coker take the gaming system and run away.

When he came to his senses, Hubbard ran out after Coker and jogged the neighborhood in search of him.

In his defense, Coker claimed that he was invited into the residence after he knocked on the door and asked to charge his cell phone because he was having car troubles.

He said that he had been there the previous summer as a guest at a party.

Because he had smoked marijuana in the apartment before, Coker said he thought it would be okay to sit down at the table and roll a blunt.

He intended to smoke it with some cocaine sprinkled on top.

He told the court that when he pulled out a bag of cocaine, Bailey bumped him and spilled it on the carpet so he grabbed her by the shoulders and demanded that she repay him.

At this point, Coker said he was startled by Hubbard coming at him with his hands up in a fighting position.

A tussle ensued and then Hubbard ran outside.

Coker was alone in the living room at this moment and decided to take the Nintendo Wii as payment for the spilled cocaine and leave.

Upon appeal, he argued that, since he did not take the gaming system by force, the jury should have been instructed on the lesser included offense of theft.

The 9th District’s three-judge appellate panel agreed.

“Under the facts here, a reasonable jury could conclude that the evidence presented supports a conviction of theft,” wrote Presiding Judge Donna Carr on behalf of the court of appeals.

Judge Carr noted that Coker did not decide to take the Wii until he was alone in the living room after the physical altercation already took place.

In order to sustain a conviction for robbery, the offender must threaten or inflict physical harm in the course of the theft.

“If no one else was present in the living room, there could be no infliction, attempted infliction or threat of physical harm on another in furtherance of the theft,” wrote Judge Carr. “Therefore, this element of robbery would fail, allowing a reasonable jury to acquit on the charge of robbery.”

Holding that the theft was committed without the use of force, the appellate panel reversed the judgment of the Summit County court and remanded the case for further proceedings.

Judges Beth Whitmore and Jennifer Hensal concurred.

The case is cited State v. Coker, 2014-Ohio-1210.

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