Can Threat to Injure Justify Elevation of the Offense from Theft to Robbery ?
In State v. Thomas, 106 Ohio St.3d 133, 2005 Ohio 4106, 832 N.E.2d 1190, the defendant left the store with stolen merchandise, dropped it and continued to walk away from the store, entering a laundromat.
He was approached by a uniformed off-duty police officer, who asked the defendant to accompany him back to the store.
As they approached the store, the defendant struck the officer and attempted to flee.
The Supreme Court noted that the defendant was no longer exerting control over the stolen merchandise, so the use of force could not be said to have occurred during the commission of the offense.
The Supreme Court also found that there was a lapse of time between the theft and the attempt to flee, so that the defendant's flight could not be said to have immediately followed the theft.
However, the court specifically stated that their "conclusion in this case is fact-specific.
Had defendant struggled with the officer in an attempt to flee immediately after defendant left the store, or after he dropped the stolen goods, or after being forced by the officer to return to the store, then an ensuing injury, attempt to injure, or threat to injure might justify elevation of the offense from theft to robbery." Id. at 135.