Violent Thefts: Robbery, Extortion and Burglary

What about violent thefts? Ohio law classifies these in three discrete categories: robbery, extortion, and burglary. Robbery, under ORC § 2911.02, requires someone to commit, flee after committing, or attempt to commit a theft while (1) having a deadly weapon, (2) through inflicting, attempting or threatening physical harm to someone, or (3) while threatening or using immediate force against that person. That’s a convoluted statute, let’s walk through each of those elements one by one. burglary

Having a Deadly Weapon

First, a “deadly weapon” has the same meaning as it did in our chapter on assault—it can inflict death if used for that purpose. Did you know that a court doesn’t presume that a knife counts as a deadly weapon? Yep. The state has to prove that, at least according to an Ohio court, who found that the state successfully proved that a Swiss army knife counted as a deadly weapon. It goes to show you that you should be careful about what you carry with you because if you ever have to use it, it might be a “deadly weapon” even if you just used it like you would any other tool.

Inflicting Physical Harm

To rob, you need to threaten or inflict “physical harm,” which is, again, any kind of injury or “physiological impairment” (under ORC § 2901.01(a)(3)) to someone. Courts get real iffy on what counts as “physical harm” because the standard can be pretty low. But one court found that just a slight bruise that lasted for a few days was enough to constitute “physical harm” in State v. Reese, where the robber struck a security guard in the arm after he tried to stop the robber from making off with stolen guards from a department store. This shows just how minimal the standard can be.

Using Immediate Force 

What about the threat or use of “immediate force?” Let’s begin with “force.” ORC § 2901.01 defines that as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.” Pretty broad, right? The courts have limited this a little bit in the context of robbery. Specifically, it needs to “pose[] actual or immediate harm” to someone and that force has to happen at the same time as the defendant is committing, attempting to commit, or fleeing from the theft they just carried out. It can be as simple as snatching a purse from an old lady’s hand, as she tried to hold onto it. If the robber just threatens the use of force, then it needs to be the kind of threat that a reasonable person would fear. For example, when a man raised his fists at another man outside of a bar, demanded his wallet, and reached into his shirt in a manner that made the victim think the robber had a weapon, the court in State v. Bentley found that a reasonable threat.

Mens Rea for Robbery 

Wait a minute—what about intent? Does a purse snatcher intend to use force or a threat of force when he grabs a purse and runs off? While, a prosecutor may choose not to pursue robbery in the case of a purse snatcher, if she does choose to prosecute, she does not have to prove that the defendant intended to use force. The mens rea, or intent, for robbery need only be proved with respect to the theft itself. In State v. Tolliver, the Ohio Supreme court clarified that when a statute specifies a level of culpability, or mens rea, for one element within the offense, but not others, the State only needs to prove the culpability for that element. In effect, the other elements of the offense require no mens rea. Although the decision in Tolliver has been questioned in light of subsequent legislation, as it stands now, in the case of robbery, the State is only required to prove that the defendant purposely or knowingly stole the property, but not that the defendant intended to use force or threat of force.

Aggravated Robbery and Extortion

“Aggravated robbery” is the older, scarier brother of “robbery.” ORC § 2901.11 defines it as, while committing, fleeing from commission, or attempting to commit a theft, (1) having a deadly weapon and showing or saying that you have one, (2) having a dangerous ordnance on you, which is pretty much a military-grade weapon, and (3) inflicting or attempting serious physical harm on someone. You don’t even need to show the deadly weapon, as Ohio courts have found that a threat that you’ll “blow the heads off” of someone is enough if combined with other acts, like putting your hand in your pocket. Serious physical harm varies wildly, but is still the type of “very bad” violence we talked about in the chapter on assault. And just like robbery, you don’t have to have any kind of intent with regard to the serious physical harm or threat thereof.

Extortion under ORC § 2905.11 means that you, while intending to get something valuable to you or convincing someone to do something unlawful: (1) “threatened to commit a felony,” (2) threatened a violent crime, (3) menaced or attempted to menace, (4) said or threatened a “calumny against any person,” or (5) threatened to or exposed someone to “hatred, ridicule or contempt” or harmed their credit or personal or business reputation. It’s quite a mouthful. The first two are obvious; you threatened a violent crime or felony, such as saying you will kill someone’s mom unless they rob a convenience store for you.

But what about something “valuable” to you? This runs the gambit. It can be intangible, like in State v. Lutz, where a man threatened a judge with an involuntary bankruptcy proceeding if he didn’t release him from jail. This case also works as an example for number five because he threatened to harm the judge’s credit.

What the heck is a “calumny?” A calumny is a false statement made to injure one's reputation or character. In State v. Cunningham, a caller posing as a schoolteacher’s fiancé stated he needed her to pay someone $1,000 or the person would report the fiancé for a drunk driving accident. The schoolteacher was suspicious and called her fiancé at his number and learned that he was fine and had not been involved in an accident. She then called the police and the offender was caught. The result was an extortion conviction using “calumny” for attempting do damage the fiancé with a false accusation of drunk driving.

But don’t think you can extort someone for something valuable so long as you are being truthful in damaging the target’s reputation. The next element is the classic protection against extortion, that protects a victim from being extorted with a threat to expose something that will cause them personal or business damage.

Burglary, Force, Stealth & Deception

Now, onto burglary. Basically, burglary is a type of trespassing onto someone’s home with the intent to commit a crime. Specifically, ORC § 2911.12 defines it in a few discrete ways. First, you can be charged with burglary if you have an intent to commit any crime and use stealth, force, or deception to trespass to enter into an occupied structure or a separately secured portion of that structure for a criminal purpose if someone is there or, in the case of a person’s home, someone is likely to be there. An “occupied structure” is basically anything that someone uses as a permanent or temporary “habitation,” under ORC § 2901.01(C), even if it’s not occupied at the time you break into it. This could be someone’s tent that they’re camping out in for the night or their car if they were kicked out of their house and have nowhere else to sleep. And you also can’t break into someone’s “permanent or temporary habitation” with that criminal intent when it’s occupied or likely to be occupied by someone. A “trespass” means that you enter someone’s private property without their permission.

Here’s the bottom line—its worse to break into somewhere with someone present because the burglary charge is a higher category of felony if you break into either an “occupied structure” when someone is present or a “habitation.” If you just break into an “occupied structure” and no one is there but you have the intent to commit a crime when you get into the structure, then it’s also a lesser category of burglary. Finally, if you just trespass onto someone’s home while they’re present or likely to be present but you had no intent to commit a crime, it’s considered a lesser trespass offense and not as stringent of a punishment as burglary.

Let’s talk about the “force, stealth or deception” requirement. “Force,” much like in robbery, requires a certain level of physical exertion. For example, just opening an unlocked door by turning the door knob requires some level of physical exertion. Thus, it counts as “force” under the definition of burglary. “Stealth” is much what it sounds like—trying to avoid getting caught while entering or remaining on the property. A personal aide to a disabled man was found to have used stealth to enter into the man’s home when she retained a key card allowing her access to the man’s home after she was terminated as an employee in State v. PistilloFinally, there is “deception.” Broadly speaking, it’s causing another person to believe something false or misleading, through an overt action or just something as simple as withholding information. In State v. Massey, the court found that a well-dressed man who entered a building among a group of employees and swiped a laptop from a desk had deceived the owners because he used a clandestine method of entry to appear like he actually worked in the building just to take the laptop.

Aggravated Burlary and Trespassing 

Here are some more good tips about burglary. You can have the purpose to commit a crime at any time during your trespass, so you don’t have to form it before or after you actually enter the building or structure. Next, a person is “present” in a structure if they were in there when the defendant starts breaking in, even if they quickly run out of the structure upon realizing the defendant was breaking in. Whether someone is “likely to be present” is trickier. Basically, it depends on the facts and circumstances. The Lake County Court of Appeals found that despite the fact that the homeowner of a burgled house was in Texas at the time of the burglary, because his parents frequently went to the house to check on the owner’s dog, persons were “likely to be present.” However, this element is an important element for litigation. The State bears the burden for proving that a person was likely to be present. On a different set of facts, in State v. Rogers, “where the occupants of a house [were] almost always absent as part of their fixed work schedule, they [were] not likely to be present during their regular working hours.” This demonstrates the importance of a good lawyer who is ready, willing, and able to dispute every element of the offense.

How about “aggravated burglary?” It features some key differences from burglary. First, there needs to be someone actually present on the property at the time of entering. Next, the burglar must either inflict, attempt or threaten physical harm to someone or have a deadly weapon or dangerous ordnance in their control under ORC § 2911.11. Just like robbery, the definitions of “physical harm,” “deadly weapon,” and “dangerous ordnance” all remain the same.

Are you or someone you know facing theft or burglary charges? 

If you are facing theft charges, you need to speak with an experienced criminal defense attorney as soon as possible. The Law Offices of Steven R. Adams is recognized by Super Lawyers, Best Lawyers, The Best Lawyers in America, National Trial Lawyers Top 100, and is one of U.S. News' Best Law Firms.  Please contact us online or call our Cincinnati office directly at 513-929-9333 to schedule your free consultation. 

Alex Deardorff
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Criminal defense attorney Alex Deardorff is dedicated to serving her clients throughout the Cincinnati area