# State v. Reed

> Ohio Supreme Court · March 31, 1981 · 65 Ohio St. 2d 117

URL: https://www.frixlaw.com/law-library/cases/6757144

## Case

- **Full name:** The State of Ohio, and v. Reed, and Cross-Appellee
- **Court:** Ohio Supreme Court
- **Decided:** March 31, 1981
- **Citations:** 65 Ohio St. 2d 117; 19 Ohio Op. 3d 311; 418 N.E.2d 1359; 1981 Ohio LEXIS 457
- **Precedential status:** Published
- **Opinion:** Concurring in part by Holmes
- **Judges:** Brown, Celebrezze, Holmes, Locher, Sweeney
- **Cited by:** 81 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6757144

## How later opinions describe it (automated extraction)

- holding that when the only evidence of intent in a murder resulting from an alleged robbery is the shooting itself, and a prior statement by the defendant that “if a cop got in his way [during the robbery] he would blow him away,” the evidence is insufficient to establish prio…

## Opinion text

Holmes, J.,
concurring in part and dissenting in part.
I concur with the majority regarding two of the three counts of which the defendant was charged and found guilty. I agree that, here, there was an absence of a showing of “prior calculation and design” in the commission of the crime of murder. The killing was, as stated by the majority, at most one of instantaneous deliberation.
I also agree that there was no arrest here, in that control of the person of the defendant by the officers did not take place. There being no arrest, there of course could be no escape upon which to base the charge and conviction of causing a death while escaping.
My disagreement with the majority lies in the charge and conviction of causing the death of Officer Burdsall while fleeing immediately after attempting to commit an aggravated robbery. In my view, the facts of this case reasonably show beyond a reasonable doubt that defendant, prior to speeding away from the King Kwik store with his companion, had been engaged in an attempted aggravated robbery. The facts brought out at trial are that David Hamler, an off-duty policeman, observed a car in the side parking lot of the King Kwik store with a man sitting in the driver’s seat. Hamler then noticed another man standing at a phone booth in front of the King Kwik pretending to talk into the phone, but Hamler noticed that this man, instead of talking, was looking into the store and watching the clerk, who at the time had a considerable amount of money on the counter.
Hamler, being a trained police officer, felt that, at the time of his arrival at the store, a robbery was about to take place, and proceeded to have the clerk call the police. As the first police car arrived, the defendant hurriedly left the phone booth and headed back to the auto that had been observed in the parking lot. The auto immediately sped away. Upon the officers giving chase and stopping the auto containing the defen *127 dant and his companion, Officer Burdsall was shot as he approached the stopped vehicle.
The elements forming and supporting the charge of aggravated robbery in the instant matter have been suggested by the prosecutor in his brief as follows:
“The defendant:
“1) Secured an accomplice to aid him in the crime.
“2) Procured a loaded, operable gun to use in the crime.
“3) Drove to the intended hold-up site with the gun.
“4) Parked his car in such a way as to facilitate a quick getaway.
“5) Entered a phone booth positioned to observe the clerk and cash register so that he could enter and rob at the appropriate time.
“6) Defendant fled when police arrived.”
All elements being considered, a judgment finding that the defendant had, beyond a reasonable doubt, attempted aggravated robbery, and committed murder thereafter in the process of fleeing, should be affirmed.
Locher and C. Brown, JJ., concur in the foregoing concurring and dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6757144. Public record. Not legal advice.