State v. Williams ( 2024 )

[Cite as State v. Williams, 2024-Ohio-401.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0021
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
OMAR S. WILLIAMS,
Trial Court No. 2022 CR 00427
Defendant-Appellant.
OPINION
Decided: February 5, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Robert T. McDowall, Jr., Robert T. McDowall Co, LLC, 415 Wyndclift Place,
Youngstown, OH 44515 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Omar S. Williams, appeals from his conviction for
Aggravated Robbery in the Trumbull County Court of Common Pleas. For the following
reasons, we affirm the judgment of the lower court.
{¶2} On June 28, 2022, Williams was indicted by the Trumbull County Grand
Jury for Aggravated Robbery, a felony of the second degree, in violation of R.C.
2911.01(A)(3); Felonious Assault, a felony of the second degree, in violation of R.C.
2903.11(A)(1); Abduction, a felony of the third degree, in violation of R.C. 2905.02(A)(2);
Disrupting Public Services, a felony of the fourth degree, in violation of R.C.
2909.04(A)(1); and Domestic Violence, a misdemeanor of the first degree, in violation of
R.C. 2919.25(A). The first two counts included repeat violent offender specifications
under R.C. 2941.149.
{¶3} A jury trial was held on February 21 and 22, 2023. The following pertinent
testimony and evidence were presented:
{¶4} Michelle Weimer testified that on May 17, 2022, Williams, her boyfriend,
was living with her. On the morning of May 17, as she was leaving to take her children
to school, Williams made a comment about her not saying goodbye and began choking
her. He then told her to give him a ride and she planned to drop him off at his uncle’s
house. As she began driving there, Williams told her to take the children to school first,
stating “you’re going to wish you dropped these kids off.”
{¶5} Weimer testified that she returned the children to her house and began
driving to the uncle’s residence. During that time, Williams took her cell phone from her
and started looking through it, noticing that her daughter was texting her. He told Weimer
to tell her daughter she was ok and stated: “if I don’t, he is going to pick her up and tie
her up and she’s going to watch him kill me.” She spoke to her daughter and Williams
then again took her phone away from her. While she continued to drive toward Warren
from Austintown, he saw a specific message on her phone and then hit her.
{¶6} According to Weimer, when she neared his uncle’s residence in Warren, he
stated that they were not going there, and said: “You’re not going home, * * * your kids
are going to be orphans.” She drove him to his workplace to run an errand. She then
took him to an ATM. He exited the vehicle, taking her keys and phone, and attempted to
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use the ATM, which was out of order. She then drove him to the Cortland Walmart to use
an ATM inside. When they arrived at the Walmart, he told her to go inside with him. He
demanded she give him her keys “’cause you’re not leaving me.” She handed him the
keys, they walked in together, and he told her “not to do nothing dumb.” Weimer testified
that while Williams was using the ATM, she located a Walmart employee, Heather
Talkington. Weimer told Talkington her boyfriend had been beating her and asked her to
call 911. Talkington attempted to hide her from Williams. Williams then saw Weimer and
Weimer began to run. Talkington yelled for help and told Williams to leave Weimer alone.
Weimer heard Talkington hit something and scream. Another Walmart worker told
Williams to leave and pushed him. Weimer told him not to take her vehicle but he left,
taking her car.
{¶7} Heather Talkington testified that, while she was working at Walmart,
Weimer approached her and looked terrified. According to Talkington, Weimer told her
that her boyfriend had been beating her in the parking lot. She told Weimer to lock herself
in the bathroom and yelled for help. Talkington stated that Williams came up behind her
but she did not remember what happened after that point. Surveillance video shows
Williams running across the store toward Weimer and Talkington and Talkington noted
that the video showed she hit a skid. As a result of the incident, Talkington’s suffered
injuries to her head, neck, and liver, and was hospitalized for two weeks. She has not
been able to work since that time.
{¶8} Sergeant Jake Abbott of the Bazetta Police Department responded to the
scene and was advised by Weimer that it involved “a domestic situation that has been
occurring since the early morning.” She had scratch marks and a “red print” on her neck,
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as well as blood around her lip and bleeding near her fingernails.
{¶9} The jury found Williams guilty of the offenses as charged in the indictment
and the court found him to be a repeat violent offender. The court sentenced Williams to
an aggregate prison sentence of 33 to 38 and one-half years.
{¶10} Williams timely appeals and raises the following assignment of error:
{¶11} “The State of Ohio failed to present sufficient evidence [that] defendant-
appellant, Omar Williams[’], infliction of serious physical harm to the victim occurred while
he was committing a theft offense or was fleeing immediately after the commission of the
theft offense.”
{¶12} Williams argues that his conviction for Aggravated Robbery was not
supported by sufficient evidence since the injuries inflicted on Talkington did not occur
while Williams was committing a theft offense.
{¶13} A challenge to the sufficiency of the evidence raises the issue of “whether
the evidence is legally sufficient to support the jury verdict as a matter of law.” State v.
Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 165; Crim.R. 29(A) (“[t]he
court * * * shall order the entry of a judgment of acquittal * * * if the evidence is insufficient
to sustain a conviction”). In reviewing the sufficiency of the evidence, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “Whether there is legally sufficient evidence to sustain a
conviction is a question of law that this court reviews de novo.” State v. Smith, 167 Ohio
St.3d 220, 2022-Ohio-269, 191 N.E.3d 418, ¶ 5.
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{¶14} Williams was convicted of Aggravated Robbery under R.C. 2911.01(A)(3),
which provides: “No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall do any of the following: * * * Inflict, or attempt to inflict, serious physical
harm on another.” A theft offense is defined under R.C. 2913.01(K) as a violation of
various sections of the Revised Code or municipal ordinances. A theft offense occurs
under R.C. 2913.02(A)(1) when a person, “with purpose to deprive the owner of property
* * *, [does] knowingly obtain or exert control over * * * property * * * [w]ithout the consent
of the owner” or by threat or intimidation.
{¶15} Williams does not challenge the sufficiency of the evidence as to his other
convictions but argues that the Aggravated Robbery conviction must be reversed. He
contends that the offense of Aggravated Robbery requires that harm be inflicted while
“committing” a theft offense and that this “contemplates an act of theft done
contemporaneously with the inflicting of serious injuries.”
{¶16} As noted above, to commit an Aggravated Robbery under the pertinent
section, the defendant must, “in attempting or committing a theft offense,” or while in
fleeing immediately thereafter, inflict or attempt to inflict serious physical harm on another.
In determining the meaning of the phrase “in attempting or committing a theft offense,” it
has been held that the use of force in robbery or aggravated robbery offenses must be
“contemporaneous to that theft offense.” State v. Calhoun, 8th Dist. Cuyahoga No.
59369, 1991 WL 251673, *2 (Nov. 27, 1991); State v. Tyus, 8th Dist. Cuyahoga No.
108270, 2020-Ohio-103, ¶ 10. Here, there are two acts of theft that the State alleged
occurred in conjunction with the assault of Talkington: the theft of Weimer’s phone prior
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to the assault and the theft of Weimer’s vehicle. We will first address the theft of the
phone.
{¶17} In State v. Madera, 8th Dist. Cuyahoga No. 93764, 2010-Ohio-4884, two
men were arguing and the defendant then took money that the victim threw on the ground.
After this act, the men sat on the couch for a short period of time, began arguing again,
and a physical brawl ensued. The court determined that “the lapse in time between the
theft and the use of force * * * is sufficient to justify reversal of Madera’s convictions for
aggravated robbery,” as there was “enough delay between the two actions that they could
not be considered contemporaneous.” Id. at ¶ 23. See also State v. Griggs, 8th Dist.
Cuyahoga No. 97284, 2012-Ohio-1837, ¶ 13 (where the defendant used force against the
victim, an ex-girlfriend, by grabbing her and then subsequently took her phone, the court
concluded that a robbery offense did not occur because “the force needed to hold [the
victim] did not coincide with the taking of the cell phone”). Similarly, in the present matter,
there is no question that Williams took Weimer’s phone from her possession, there was
a lapse in time during which they drove to multiple locations (the length of which is not
entirely clear from the record), and Talkington was later injured after the pair entered
Walmart and when Williams was chasing Weimer and Talkington. The theft of the phone
had been completed at a separate time and location than the incident where Talkington
was injured and the injury did not occur in relation to the theft.
{¶18} However, we find that the theft of the vehicle constituted a theft act which
supported Williams’ conviction for Aggravated Robbery, as the assault occurred while he
was carrying out that theft offense and was part of a continuing course of conduct
involving the vehicle theft.
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{¶19} The State argues that “a review of the record * * * demonstrates Appellant’s
actions causing [Talkington’s] serious physical injuries were an accumulation of
Appellant’s ‘one continuous occurrence,’ or continuing course of conduct.” In support, it
cites authority on this issue which has been applied in the context of felony murder cases.
In State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, the Ohio
Supreme Court addressed the question of whether a defendant committed a Rape and
Aggravated Robbery “while committing” aggravated murder under the felony murder
statute. Id. at ¶ 54. It found that the term “while” does not indicate that the killing must
occur “at the same instant” as the predicate felony or that the killing must have been
caused by the felony. Id. at ¶ 55. It concluded that “the killing must be directly associated
with the [felony] as part of one continuous occurrence” and that the death may occur
leading up to, during, or immediately subsequent to the felony. (Citation omitted.) Id. at
¶ 56. Similarly, in State v. Biros, 78 Ohio St.3d 426, 678 N.E.2d 891 (1997), the Supreme
Court concluded that the theft of a ring was associated with the killing as part of one
continuous occurrence where a defendant killed the victim, dragged her corpse into the
woods, and stole the ring from her finger while moving the body. Id. at 450. It concluded
that appellant could not “escape the effect of the felony-murder rule by claiming that the
aggravated robbery was simply an afterthought,” observed that a “victim of a robbery,
killed just prior to the robber’s carrying off her property, is nonetheless the victim of an
aggravated robbery,” and noted that “[t]he victim need not be alive at the time of
asportation.” Id. at 451, citing State v. Smith, 61 Ohio St.3d 284, 290, 574 N.E.2d 510(1991). See also State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168,
¶ 129 (“[w]e repeatedly have rejected the argument that there is no aggravated robbery
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when the victim’s property is taken after he is murdered”).
{¶20} While the foregoing cases relate to felony murder, courts in Ohio have
applied this “continuous occurrence” analysis to Aggravated Robbery charges unrelated
to felony murder. In determining whether an aggravated robbery was supported by the
weight of the evidence, the Second District considered the foregoing authority and
observed that whether the act of pointing a gun and committing a theft of speakers
“amounted to ‘one continuous occurrence’” was a question for the jury. It found there was
sufficient evidence that pointing the gun at the victim provided the defendant the
opportunity to steal the speakers and the act of pointing the gun was not removed in time
from the theft. State v. Engle, 2d Dist. Montgomery No. 22934, 2009-Ohio-4787, ¶ 21.
See State v. Dunning, 8th Dist. Cuyahoga No. 75869, 2000 WL 301007, *3 (Mar. 23,
2000) (considering whether a struggle outside of a store after a theft was part of a “single
continuous transaction” for the purposes of the offense of aggravated robbery).
{¶21} Here, Williams’ theft of the vehicle began at the time he ordered Weimer to
provide him the keys to her vehicle, which occurred while he was still engaged in the act
of abducting her. Immediately after taking possession of the keys, the two entered
Walmart. Within a matter of minutes, Williams chased after Talkington and Weimer, which
resulted in the serious injuries Talkington suffered. Shortly thereafter, following a
confrontation with another Walmart employee, Williams exited the store and drove away
in Weimer’s vehicle, despite her requests that he not do so. The assault occurred while
the theft was ongoing, which constituted inflicting serious physical harm “in * * *
committing a theft offense,” as required by the statute. R.C. 2911.01(A)(3). Even if the
assault did not occur immediately at the moment the keys were taken or when the vehicle
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was driven away, the acts committed were one continuous occurrence, with the assault
occurring while Williams was still engaged in the act of taking the vehicle. Committing an
assault during an ongoing theft has been found sufficient to support a conviction for
aggravated robbery. See State v. Claytor, 8th Dist. Cuyahoga No. 110837, 2022-Ohio-
1938, ¶ 63-64 (holding there was sufficient evidence for a jury to find the essential
elements of aggravated robbery when attempted theft of money from the state for an
unemployment claim was “ongoing” and an assault occurred over attempted theft of a
share of the fraudulent unemployment claim). As has been indicated in evaluating similar
circumstances, the jury is in the best position to determine whether specific acts
amounted to “one continuous occurrence.” Engle at ¶ 21. We do not find that there was
insufficient evidence to submit this issue to the jury for a determination of whether
Williams committed Aggravated Robbery.
{¶22} We briefly note Williams’ arguments that the State failed to demonstrate that
the injuries were inflicted in fleeing immediately after a theft or attempted theft. Typically,
findings that a defendant inflicted harm while “immediately fleeing” from a theft act occur
in scenarios where there is a close temporal connection between the theft and the
infliction of injury. Commonly, such a conclusion is reached where a defendant assaults
employees or security personnel who intervene in a shoplifting incident, either when the
theft has just occurred or during the pursuit of the defendant upon detecting the theft.
See In re Mills, 11th Dist. Ashtabula No. 2001-A-0028, 2002-Ohio-3125, ¶ 22, rev’d on
other grounds 97 Ohio St.3d 432, 2002-Ohio-6670, 780 N.E.2d 281 (“where a defendant
struggles with store security guards outside a store immediately after a theft in an effort
to escape apprehension, such conduct * * * is sufficient to establish the force element of
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robbery”) (citation omitted); State v. Brown, 11th Dist. Lake No. 2013-L-120, 2014-Ohio-
5702, ¶ 5-6, 18. In such matters, it has been determined that the defendant was
immediately fleeing the theft act. In the present matter, the assault occurred while the
theft was ongoing. Regardless, it is unnecessary to make such a determination since it
is only necessary to decide whether harm was inflicted “in attempting or committing a
theft offense * * * or while in fleeing immediately after the attempt or offense,” not that
both elements were satisfied. (Emphasis added.) R.C. 2911.01(A)(3).
{¶23} The sole assignment of error is without merit.
{¶24} For the foregoing reasons, Williams’ conviction for Aggravated Robbery in
the Trumbull County Court of Common Pleas is affirmed. Costs to be taxed against
appellant.
EUGENE A. LUCCI, P.J.,
ROBERT J. PATTON, J.,
concur.
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