[Cite as State v. Rodriguez, 2016-Ohio-7436.]

                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2016-01-010

                                                  :            OPINION
    - vs -                                                     10/24/2016
                                                  :

JONATHAN ISMAEL FUENTES                           :
RODRIGUEZ,
                                                  :
        Defendant-Appellant.
                                                  :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-05-0770



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Rodriguez & Porter, Ltd., Greg D. Porter, 5103 Pleasant Avenue, Fairfield, Ohio 45014, for
defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Jonathan Rodriguez, appeals his conviction in the Butler

County Court of Common Pleas for aggravated robbery.

        {¶ 2} The Hamilton Police Department received a dispatch that a man was chasing

children with a knife. Officers responded, and made contact with the alleged victim, a boy

who was 13 years old at the time. The boy told officers that he and his friends began arguing
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with two older teens about a possible physical altercation between their respective groups of

friends. The boy told police that during the argument, the two older teens got into a car and

drove away. However, the teens then drove toward the boy, at which point, he began to run

away.

        {¶ 3} The boy indicated to police that the two teens exited the car, chased him on

foot, and eventually caught him. The boy also claimed that one teen, later identified as

Rodriguez, brandished a knife and demanded the boy's pants. The boy told police that

Rodriguez's accomplice indicated that he had a gun, and that the accomplice removed the

boy's pants and then handed them to Rodriguez. Rodriguez and his accomplice then ran

back to Rodriguez's car and drove away.

        {¶ 4} The police began to investigate the incident, and soon located Rodriguez's

vehicle. Upon questioning, Rodriguez asserted that he had nothing to do with the incident

and that he had no weapon. After Rodriguez consented to a search of his car, officers

located the boy's pants therein, but did not find a knife or any other weapon in Rodriguez's

car.

        {¶ 5} Rodriguez was indicted on one count of aggravated robbery, and the matter

proceeded to a two-day jury trial. Before the trial started, and again before the jury began

deliberations, Rodriguez requested a jury instruction on the lesser included offense of

robbery. Rodriguez asserted that he was entitled to the lesser included instruction because

the jury was presented with evidence that disputed the state's theory that Rodriguez used a

weapon during the alleged incident. The trial court, however, determined that the instruction

was not warranted because Rodriguez denied having any involvement in the incident. The

jury found Rodriguez guilty, and the trial court sentenced Rodriguez to three years in prison.

Rodriguez now appeals the trial court's decision, raising the following assignment of error.

        {¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO GIVE A
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JURY INSTRUCTION WARRANTED BY THE EVIDENCE.

       {¶ 7} Rodriguez argues in his assignment of error that the trial court erred by not

giving a jury instruction on the lesser included offense of robbery.

       {¶ 8} According to R.C. 2945.74, a jury may find a defendant guilty of a lesser

included offense, even if such was not specifically listed in the indictment. "A charge on a

lesser included offense is required when the facts warrant it and improper when the facts do

not warrant it." State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, ¶ 20. If the jury could

"reasonably find against the state and for the accused upon one or more of the elements of

the crime charged and for the state on the remaining elements, which by themselves would

sustain a conviction on a lesser-included offense, then a charge on the lesser-included

offense is required." State v. Kilby, 50 Ohio St.2d 21, 24-25 (1977).

       {¶ 9} "Even though an offense may be statutorily defined as a lesser included offense

of another, a charge on such lesser included offense is required only where the evidence

presented at trial would reasonably support both an acquittal on the crime charged and a

conviction upon the lesser included offense." State v. Thomas, 40 Ohio St.3d 213 (1988),

paragraph two of the syllabus. In determining whether lesser included offense instructions

are appropriate, "the trial court must view the evidence in the light most favorable to the

defendant." State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 37.

       {¶ 10} "A defendant's choice to pursue an all-or-nothing defense" does not limit the

applicability of jury instructions on lesser included charges "if the evidence would support a

conviction on a lesser included offense." Wine, 2014-Ohio-3948 at ¶ 32. In fact, "if under

any reasonable view of the evidence it is possible for the trier of fact to find the defendant not

guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser

included offense must be given." (Emphasis added.) Id.

       {¶ 11} Rodriguez was indicted for aggravated robbery in violation of R.C.
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2911.01(A)(1), which provides, "No person, in attempting or committing a theft offense * * *

shall do any of the following: Have a deadly weapon on or about the offender's person or

under the offender's control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it." Rodriguez requested a jury instruction specific to robbery as

set forth in R.C. 2911.02.

                (A) No person, in attempting or committing a theft offense or
                    in fleeing immediately after the attempt or offense, shall
                    do any of the following:
                (1)   Have a deadly weapon on or about the offender's person
                      or under the offender's control;
                (2)   Inflict, attempt to inflict, or threaten to inflict physical harm
                      on another;

                (3)   Use or threaten the immediate use of force against
                      another.

       {¶ 12} In order to be convicted of aggravated robbery, the state had the burden to

prove that Rodriguez possessed a deadly weapon and brandished, displayed, or indicated

that he had such a weapon. However, if the jury believed that Rodriguez possessed a

weapon, but did not brandish, display, or indicate its presence, then the conviction for

aggravated robbery would be invalid and a conviction for robbery could be possible.

       {¶ 13} While the trial court reasoned that Rodriguez was not entitled to any lesser

included jury instruction because Rodriguez claimed that he was not involved in the incident

at all, we disagree. The evidence presented at trial could have placed in the jury's mind

reasonable doubt as to whether Rodriguez possessed and or used a weapon during the

incident, thus allowing the jury to doubt the state's ability to prove all required elements of

aggravated robbery.

       {¶ 14} For example, the jury considered evidence that the victim had previously

testified under oath that Rodriguez did not have a weapon at the time of the incident. The


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jury also heard testimony from an officer that no weapon was found during the search of

Rodriguez or his car, although the victim's pants were located.1 Rodriguez also testified in

his own defense that he did not have a weapon. Based on this evidence, especially when

viewed in a light most favorable to the defendant, the jury had a basis to reasonably believe

that Rodriguez never possessed a weapon. This is true even if Rodriguez asserted that he

was not involved in the incident at all.

        {¶ 15} While the trial court indicated that Rodriguez's all-or-nothing defense

prevented him from entitlement to a lesser included charge, the Ohio Supreme Court has

held otherwise.

                 Whether or not a defendant raises a complete defense to the
                 charged crime, the state has the burden to prove beyond a
                 reasonable doubt all of the elements of the crime charged. The
                 fact that the evidence could be interpreted by the jury as
                 questionable on a single element does not mean that the
                 defendant committed no crime. Simply put, a jury can both reject
                 an all-or-nothing defense--e.g., alibi, mistaken identity, or self-
                 defense--and find that the state has failed to meet its evidentiary
                 burden on an element of the charged crime. In such a case, "if
                 due to some ambiguity in the state's version of the events
                 involved in a case the jury could have a reasonable doubt
                 regarding the presence of an element required to prove the
                 greater but not the lesser offense, an instruction on the lesser
                 included offense is ordinarily warranted."

(Emphasis sic.) Wine, 2014-Ohio-3948 at ¶ 33, quoting State v. Solomon, 66 Ohio St.2d

214, 221 (1981).

        {¶ 16} Despite Rodriguez's claim that he had no participation in the incident, his

defense did not prevent the trial court from offering the lesser included instruction. Instead,

the jury could have rejected Rodriguez's claim that he was not involved in the incident, while

at the same time, finding that the state failed to meet its evidentiary burden on the weapon



1. For this reason, the jury could have concluded that Rodriguez's accomplice did not possess a gun, so that the
state's theory of accomplice liability could have been doubted by the jury as well. We would also note that during
the boy's testimony, he stated that he did not see a gun on Rodriguez's accomplice.
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element of aggravated robbery. As such, and based upon the evidence deduced at trial, we

find that the trial court should have given instructions on the lesser included charge.

Rodriguez's single assignment of error is, therefore, sustained.

      {¶ 17} The decision of the trial court is hereby reversed, and the matter is remanded

for further proceedings consistent with this Opinion.


      M. POWELL, P.J., and HENDRICKSON, J., concur.




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