[Cite as State v. Timmons, 2014-Ohio-3520.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                       :
                                                                    No. 13AP-1038
                 Plaintiff-Appellee,                 :            (C.P.C. No. 11CR-5059)
                                                                          and
v.                                                   :              No. 13AP-1039
                                                                  (C.P.C. No. 11CR-5557)
Robert A. Timmons,                                   :
                                                                (REGULAR CALENDAR)
                 Defendant-Appellant.                :


                                              D E C I S I O N

                                    Rendered on August 14, 2014


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Thomas F. Charlesworth, for appellant.

                 APPEALS from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1}    Defendant-appellant, Robert A. Timmons, appeals from two judgment
entries of the Franklin County Court of Common Pleas finding him guilty, pursuant to
jury verdict, of two counts of felonious assault, two counts of domestic violence, one count
of attempted murder, one count of kidnapping, one count of rape, one count of tampering
with evidence, one count of aggravated robbery, and one count of aggravated burglary.
Because sufficient evidence and the manifest weight of the evidence support appellant's
convictions and the trial court did not err in not instructing on the lesser included offense
of theft, we affirm.
I. Facts and Procedural History
        {¶ 2} By indictment filed September 22, 2011, the state charged appellant with
two counts of felonious assault, in violation of R.C. 2903.11, both felonies of the second
degree; two counts of domestic violence, in violation of R.C. 2919.25, both felonies of the
Nos. 13AP-1038 and 13AP-1039                                                                2


third degree; one count of attempted murder, in violation of R.C. 2923.02 and 2903.02, a
felony of the first degree; one count of kidnapping, in violation of R.C. 2905.01, a felony of
the first degree; one count of rape, in violation of R.C. 2907.02, a felony of the first
degree; and one count of tampering with evidence, in violation of R.C. 2921.12, a felony of
the third degree. All charges related to the events of September 14, 2011 and involved the
same victim, J.T. On October 24, 2011, the state filed a second indictment related to the
same incident, charging appellant with one count of aggravated robbery, in violation of
R.C. 2911.01, a felony of the first degree, and one count of aggravated burglary, in
violation of R.C. 2911.11, a felony of the first degree. Appellant entered a plea of not guilty
to all charges and the parties proceeded to a single trial for all charges in both
indictments.
       {¶ 3} According to the state's evidence at trial, appellant and J.T. married in 2007
and divorced shortly thereafter.      During the time they were married, appellant was
arrested on domestic violence charges for hitting J.T.'s son.         After the divorce, J.T.
obtained a civil protection order against appellant. J.T. attempted to cut off contact with
appellant, would ignore his phone calls, and moved three times without telling appellant
her new address in an effort to avoid him. In 2010, J.T. started receiving mail at her new
apartment addressed to appellant even though she had not provided him with her new
address. Although she feared appellant, J.T. eventually started accepting appellant's
phone calls again because she "was afraid that the violence would escalate, because when
he is ignored, he becomes violent." (Tr. Vol. II, 21.) In August 2011, J.T. saw appellant in
her neighborhood, and "that's when [she] started getting afraid." (Tr. Vol. II, 24.) The
next day, she inquired to see if she could move out of her apartment, but she was unable
to get out of her lease. J.T. testified she did not call police after these interactions because
she was afraid of appellant.
       {¶ 4} On September 14, 2011, J.T. was in her apartment in the late morning or
early afternoon when someone knocked on her door. Expecting it to be the maintenance
man from the apartment complex, J.T. opened the door without first looking through the
peep hole. When she opened the door and saw that it was appellant, J.T. attempted to
shut the door but appellant pushed through the door and came inside her apartment.
Appellant asked for a glass of water and, while J.T. was retrieving it for him, appellant
Nos. 13AP-1038 and 13AP-1039                                                             3


broke both of J.T.'s cell phones. When she handed him the glass of water, appellant took
the glass and smashed it in J.T.'s face, causing her to bleed profusely. She testified she
went into the kitchen to get a towel, but appellant came up behind her and then she
blacked out. When she came to, she was wet everywhere and realized she had defecated
on herself. The next thing she remembers is appellant pushing her and telling her to get
upstairs. Once they were upstairs, J.T. testified appellant pushed her into her bedroom,
forced her to lie on the bed, and then forced his penis inside her. J.T. testified that
although his penis did not stay erect, appellant was ejaculating and told her "I'm not even
hard and I'm getting off." (Tr. Vol. II, 36.)
       {¶ 5} J.T. stated she pled with appellant to let her use the bathroom, and while
she was seated on the toilet, appellant came in and stabbed her in the neck. She did not
see what he used to stab her. Appellant then left the bathroom for a few minutes, and
when he returned, he stabbed J.T. in the chin. J.T. then fell to the floor, and she said
appellant proceeded to tie her legs together. Appellant then walked downstairs, and J.T.
heard the sound of her door. Not wanting her son to come home from school and see her
in that state, J.T. attempted to use the curtains from the second-story bedroom to slide
down the exterior of the house. The last thing she remembers before she blacked out
again is grabbing ahold of the curtains. Her next memory is waking up in the hospital.
       {¶ 6} J.T.'s injuries were extensive. She required a tracheotomy to assist her
breathing, a feeding tube, and a catheter. She was hospitalized for 30 days, part of which
time she spent in a medically-induced coma. After treating her immediate injuries, J.T.
required a later surgery on her shoulder, as she could not use her left arm. She had to
relearn how to eat and swallow, and she suffered permanent damage to her voice box.
She also had an additional surgery to remedy frequent infections in her throat. J.T. still
suffers from frequent pain and headaches, and she has permanent scarring.
       {¶ 7} While J.T. was hospitalized, Nurse Hayley Baker, a sexual assault nurse
examiner, performed a rape kit on J.T. Because of the need to treat her immediate
injuries, the rape kit was not performed until September 15, 2011. J.T. told Nurse Baker
she had been raped, and Nurse Baker specifically clarified that the assailant put his penis
in her vagina. Nurse Baker testified she did not observe any serious injuries to J.T.'s
vaginal area but that "it's very common to have a patient that states they were sexually
Nos. 13AP-1038 and 13AP-1039                                                                4


assaulted and have no injury." (Tr. Vol. II, 129.) Despite not finding any serious injuries,
Nurse Baker testified she did observe redness on J.T.'s cervix. Nurse Baker opined that
the cleaning of J.T.'s vaginal area and insertion of the Foley catheter prior to the rape kit
could have had an impact on whether swabbing performed during the rape kit would yield
any bodily fluids from the attacker. There was no semen found on or inside J.T.'s body.
       {¶ 8} When J.T. eventually returned home from her hospital stay, she noticed her
camera, her GPS device, and some money were missing. She also noticed that the suit
that appellant wore at their wedding, which J.T. had paid for, was missing.
       {¶ 9} The state also presented the testimony of Elijah Lykins, who testified he
knew appellant because they were both living in the Hilltop area. In September 2011,
both appellant and Lykins were staying at the same homeless shelter. Lykins testified that
on September 14, 2011, he was driving around with appellant when appellant asked him if
he wanted to accompany him to run some errands. Appellant drove to J.T.'s house and
told Lykins he had to go to her house to give her money for her electric bill. Lykins waited
in the car for between 45 minutes to one hour for appellant to return. When appellant
emerged from J.T.'s apartment, Lykins stated he was running, "there was blood on his
shoes, socks, shorts," and he "was holding a knife" and a bag. (Tr. Vol. III, 141.) When
appellant got back in the car, he told Lykins he "just killed his ex-wife." (Tr. Vol. III, 143.)
Appellant then drove to a hotel room where he washed off the blood. Lykins testified he
stayed with appellant because appellant threatened to kill him.
       {¶ 10} Lykins further testified that after appellant showered, the two men went to
two different stores to buy new clothes and new shoes for appellant. After changing his
clothes, appellant instructed Lykins that they needed to dispose of his bloody clothing and
the items he had carried out of J.T.'s home. Appellant drove around to various locations
and disposed of the bloody garments, the knife, the camera, and the suit. Lykins testified
that while the two men were driving, appellant told him he hit his ex-wife with a glass, slit
her neck, stabbed her a couple of times, dragged her up the stairs, put her on the toilet
and left. Once appellant and Lykins returned to the homeless shelter, Lykins testified he
waited for appellant to fall asleep and then he ran to police headquarters to tell them what
had just transpired. Lykins then went with police to show them the hotel room where
appellant had cleaned up and tried to help police recover the various items around town,
Nos. 13AP-1038 and 13AP-1039                                                               5


though the only location he could remember for sure was the dumpster where appellant
disposed of the suit. By the time Lykins returned to the shelter, the police were already
there arresting appellant.
       {¶ 11} Appellant testified in his own defense. Though he did not deny going to
J.T.'s apartment on September 14, 2011, he told a different version of the events that
transpired once he knocked on her door. On direct examination, appellant testified he
had remained in constant contact with his ex-wife since their divorce and that he went to
J.T.'s on September 14, 2011 to drop off $150 for payment of an electrical bill. Once he
was inside her apartment, appellant testified he did not try to have sex with J.T. but that
J.T. tried to have sex with him. Appellant said he told J.T. he had to use the bathroom
and she went upstairs so he followed. When he finished, he stated they both went back
downstairs and sat on the sofa together, and that he stayed at her apartment for 40 or 45
minutes.
       {¶ 12} Appellant admitted to seeing J.T.'s injuries but testified he did not call for
help because J.T. told him not to due to his history of domestic violence convictions.
Appellant stated it was J.T., not himself, that broke both of J.T.'s cell phones. Appellant
testified he could not call for help from his cell phone because he had left it charging in his
car with Lykins.
       {¶ 13} Although appellant admitted to taking the suit, he testified the suit belonged
to him and was paid for with his money that he had deposited into J.T.'s bank account.
He stated he needed the suit to audition for a televised singing competition in the next few
days and that J.T. knew he planned to pick up the suit. Appellant also admitted to taking
the camera but again stated the camera was rightfully his. Appellant denied taking the
GPS device or going through J.T.'s purse.
       {¶ 14} Appellant testified he never told Lykins that he killed his ex-wife; rather, he
said he told Lykins that J.T. was dead because that is how she appeared when appellant
left her apartment.
       {¶ 15} On cross-examination, appellant admitted J.T. had obtained a protection
order against him in June 2010. He said he went to J.T.'s house twice on September 14,
2011; the first time, she did not answer the door, so he left a note on her door. He said
after he left, J.T. called him, so he returned. He said he never knocked on the door
Nos. 13AP-1038 and 13AP-1039                                                            6


because she was already there taking the note off, so she opened the door for him and he
went inside. Appellant stated they were being affectionate on the couch and that, because
of his diabetes, he suffers from erectile dysfunction so they were unable to have sex.
According to appellant, he did not ejaculate.      Appellant then stated he went to the
bathroom a second time, something he did not testify to on direct examination, and that
when he came back downstairs the second time, he found J.T. looking through his cell
phone and was angry with him after discovering text messages from other women. When
asked why he stated on direct examination that he had left his cell phone in his car,
appellant answered that he had two cell phones even though he was currently living at a
homeless shelter. Appellant admitted he did not tell any of these details to detectives;
instead, he told detectives that when he went to J.T.'s house the second time, the door was
unlocked and he went inside and found her already injured.
       {¶ 16} Appellant further stated on cross-examination that J.T. stabbed herself
because she wanted to be able to collect money from the Victims of Crime fund. He stated
J.T. threw the water glass at him but he blocked it with his hand, and the glass bounced
off his hand and hit J.T. in the face. Appellant testified that J.T. used a knife appellant
had previously given to her to slit her own throat more than once, and that while she was
doing that, she defecated on herself, so appellant removed her pants to help her. He said
he took the knife from her hands and dropped it on the kitchen floor and that the knife
was still in J.T.'s apartment when he left. Appellant stated the only injury he caused to
J.T. was a bruise he inflicted when he attempted to stop her from cutting herself. He
testified that as he was leaving J.T.'s house, she called out to him to make sure he grabbed
his possessions, meaning the suit and the camera, and she said that "when she was sitting
on the toilet, dying." (Tr. Vol. III, 248-49.)
       {¶ 17} Appellant stated that after all J.T.'s injuries had occurred, he attempted to
call 911 from his cell phone that he had inside her apartment but that his battery died, and
he did not attempt to call 911 once he went back to his car.
       {¶ 18} At the close of evidence, appellant made a Crim.R. 29 motion for acquittal
which the trial court overruled. Following deliberations, the jury returned guilty verdicts
as to all charges against appellant. At a November 14, 2013 sentencing hearing, the trial
court imposed a sentence of 31 years imprisonment for the September 22, 2011
Nos. 13AP-1038 and 13AP-1039                                                              7


indictment to run consecutive to 16 years imprisonment for the October 24, 2011
indictment, for a total sentence of 47 years in prison.         The court journalized the
convictions and sentences in two judgment entries, one for each indictment, dated
November 20, 2013. Appellant timely appeals.
II. Assignments of Error
       {¶ 19} Appellant assigns the following two errors for our review:
              [1.] Appellant's rape and aggravated burglary convictions were
              not supported by sufficient evidence and were against the
              manifest weight of the evidence.

              [2.] The court erred when it did not instruct the jury of the
              lesser included offense of theft to aggravated robbery.

III. First Assignment of Error
       {¶ 20} In his first assignment of error, appellant argues his convictions for rape
and aggravated burglary were not supported by sufficient evidence and were against the
manifest weight of the evidence. Appellant makes no allegations regarding sufficiency
and weight of the evidence as to all other convictions.
       A. Sufficiency of the Evidence
       {¶ 21} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of
adequacy.   Id.   The relevant inquiry for an appellate court is whether the evidence
presented, when viewed in a light most favorable to prosecution, would allow any rational
trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37.
       {¶ 22} To convict a defendant of rape, the state is required to prove the defendant
engaged in sexual conduct with the victim, purposely compelling her to submit by force or
threat of force. State v. Henderson, 10th Dist. No. 10AP-1029, 2011-Ohio-4761, ¶ 16,
citing R.C. 2907.02(A)(2). Pursuant to R.C. 2907.01(A), sexual conduct means "vaginal
intercourse between a male and female; * * * and, without privilege to do so, the insertion,
however slight, of any part of the body or any instrument, apparatus, or other object into
the vaginal or anal opening of another."       Further, "[p]enetration, however slight, is
Nos. 13AP-1038 and 13AP-1039                                                             8


sufficient to complete vaginal or anal intercourse." R.C. 2901.01(A)(1) defines force as
"any violence, compulsion, or constraint physically exerted by any means upon or against
a person or thing."
       {¶ 23} Here, J.T. testified appellant forced her to lie on the bed and then forced his
penis inside of her vagina. This testimony is sufficient evidence to support sexual conduct
by vaginal intercourse. Henderson at ¶ 17. Although appellant argues the evidence is
insufficient because there was no physical evidence to support J.T.'s testimony, such
physical or forensic evidence is not required to prove the rape offense. Id., citing State v.
Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 53 (noting "[c]orroboration of victim
testimony in rape cases is not required"). Additionally, the state presented sufficient
evidence that appellant used force to compel J.T. to submit. J.T. testified that appellant
had already smashed a glass in her face, and she further testified that appellant physically
forced her upstairs and physically forced her to lie down on the bed. See id. at ¶ 18.
Accordingly, the state presented sufficient evidence of the offense of rape.
       {¶ 24} Appellant also asserts there was insufficient evidence to support his
conviction of aggravated burglary. R.C. 2911.11(A)(1) defines aggravated burglary as a
burglary in which the offender "inflicts, or attempts or threatens to inflict physical harm
on another." In defining burglary, R.C. 2911.12(A)(1) provides that "[n]o person, by force,
stealth, or deception, shall * * * [t]respass in an occupied structure * * * when another
person other than an accomplice of the offender is present, with purpose to commit in the
structure * * * any criminal offense." A person criminally trespasses when he "knowingly
enter[s] or remain[s] on the land or premises of another * * * without privilege to do so."
R.C. 2911.21(A)(1). Privilege is defined as "an immunity, license, or right conferred by
law, bestowed by express or implied grant, arising out of * * * [a] relationship."
R.C. 2901.01(A)(12).
       {¶ 25} J.T. testified at length about the injuries she sustained from appellant's
attack on her, from the glass smashed in her face to the various stab wounds. This is
sufficient evidence to prove appellant inflicted physical harm on J.T. Additionally, J.T.
testified that when she attempted to close the door on appellant, he forced the door open
and entered her apartment without permission. Appellant's act of pushing the door open
when J.T. attempted to close the door meets the statutory definition of force in
Nos. 13AP-1038 and 13AP-1039                                                              9


R.C. 2901.01(A)(1). See, e.g., State v. Stringer, 9th Dist. No. 04CA0032-M, 2004-Ohio-
6543, ¶ 35 (finding state presented sufficient evidence of the entering by force element of
aggravated burglary when it presented testimony that the defendant "put her foot in the
doorway prohibiting [the victim] from closing the door").          Both appellant and J.T.
testified that appellant had never been in J.T.'s apartment before September 14, 2011, and
J.T. testified she went to great lengths to conceal her address from him. Thus, the state
presented sufficient evidence that appellant entered and remained in J.T.'s apartment
without privilege to do so. Finally, though appellant testified it was not his intent to
commit any crimes when he entered J.T.'s apartment, the totality of the rest of the
evidence suggests otherwise, including the couple's history of domestic violence and J.T.'s
testimony as to appellant's behavior leading up to, and during, the time he entered her
apartment on September 14, 2011. The jury is free to infer intent from the entire set of
circumstances surrounding the commission of the offenses. State v. Loughman, 10th
Dist. No. 10AP-636, 2011-Ohio-1893, ¶ 47, citing State v. Grant, 67 Ohio St.3d 465, 478
(1993), citing Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329 (1955), paragraph
three of the syllabus. Accordingly, when viewing the evidence in the light most favorable
to the state, we conclude the state presented sufficient evidence for appellant's aggravated
burglary conviction.
       {¶ 26} Because we conclude there was sufficient evidence to sustain both
appellant's rape and aggravated burglary convictions, we must next determine whether
those convictions are nonetheless against the manifest weight of the evidence.
       B. Manifest Weight of the Evidence
       {¶ 27} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a ' "thirteenth juror" ' and disagrees with the factfinder's
resolution of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457
U.S. 31, 42 (1982).     Determinations of credibility and weight of the testimony are
primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one
Nos. 13AP-1038 and 13AP-1039                                                              10


of the syllabus. Thus, the jury may take note of the inconsistencies and resolve them
accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver, 10th
Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
       {¶ 28} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-
2501, ¶ 22, citing Thompkins at 387. Appellate courts should reverse a conviction as
being against the manifest weight of the evidence in only the most " 'exceptional case in
which the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 29} Appellant restates much of his argument regarding sufficiency of the
evidence for purposes of his manifest weight argument.             For the rape conviction,
appellant asserts the jury clearly lost its way in concluding appellant raped J.T. because
there was conflicting testimony as to whether they engaged in sexual intercourse at all,
there was no physical evidence of rape, and despite the fact that J.T. testified that
appellant ejaculated, there was no semen detected at the crime scene or during the rape
kit examination. For the aggravated burglary conviction, appellant asserts the jury lost its
way in concluding he trespassed into J.T.'s home by force. Again, appellant relies on the
conflicting testimony of J.T. and appellant, and appellant asserts it was a manifest
miscarriage of justice for the jury not to believe his testimony that J.T. invited appellant
into her home.
       {¶ 30} In light of the evidence discussed above, as well as the record in its entirety,
we do not find the jury clearly lost its way in concluding appellant committed the offenses
of rape and aggravated burglary when he forced his way into J.T.'s home, smashed a glass
in her face, forced her to lie down and forcibly penetrated her vagina with his penis, then
stabbed her repeatedly, robbed her, and left her there to die. J.T. was consistent in her
version of events from the time police first interviewed her until the time she testified at
trial. The only evidence to the contrary was appellant's own self-serving testimony which
Nos. 13AP-1038 and 13AP-1039                                                              11


was markedly different from the version of events he told police and was riddled with
inconsistencies throughout, and we agree with the jury's decision to discount that
testimony in favor of ample other evidence at trial. Thus, we do not find that appellant's
convictions for rape and aggravated burglary are against the manifest weight of the
evidence.
       {¶ 31} Having concluded that both the sufficiency and manifest weight of the
evidence support appellant's convictions of rape and aggravated burglary, we overrule
appellant's first assignment of error.
IV. Second Assignment of Error
       {¶ 32} In his second assignment of error, appellant argues the trial court erred
when it failed to instruct the jury on the lesser included offense of theft to the aggravated
robbery charge. Because appellant did not object to the jury instructions, we review the
alleged impropriety under the "plain error" standard of review. State v. Jackson, 92 Ohio
St.3d 436, 444 (2001), citing State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus;
Crim.R. 52(B). An appellate court recognizes plain error with the utmost caution, under
exceptional circumstances, and only to prevent a miscarriage of justice. State v. Pilgrim,
184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, ¶ 139.
       {¶ 33} For an error to be a "plain error" under Crim.R. 52(B), it must satisfy three
prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error
must be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the error
must have affected "substantial rights," meaning the error must have affected the
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
       {¶ 34} An offense is a lesser included offense of another where: (1) the lesser
offense carries a lesser penalty, (2) the greater offense, as statutorily defined, cannot ever
be committed without the lesser offense, as statutorily defined, being committed, and
(3) some element of the greater offense is not required to prove commission of the lesser
offense. State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 37, citing State v.
Deem, 40 Ohio St.3d 205, 209 (1988).        Where the evidence introduced at trial would
reasonably support both an acquittal on the crime charged in the indictment and a
conviction upon a lesser included offense, the trial court must instruct the jury on the
Nos. 13AP-1038 and 13AP-1039                                                             12


lesser included offense. Pilgrim at ¶ 68, citing State v. Thomas, 40 Ohio St.3d 213 (1988),
paragraph two of the syllabus.
       {¶ 35} The offense of aggravated robbery provides that "[n]o person, in attempting
or committing a theft offense * * * or in fleeing immediately after the attempt or offense,
shall * * * [h]ave 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; [h]ave a dangerous ordnance on or about the offender's person or
under the offender's control; [or] [i]nflict, or attempt to inflict, serious physical harm to
another." R.C. 2911.01(A)(1)-(3).
       {¶ 36} "Theft, as defined in R.C. 2913.02, is a lesser included offense of robbery, as
defined in R.C. 2911.02" because it would be impossible to ever commit a robbery by theft
without also committing a theft. State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260,
paragraph two of the syllabus. By the same logic, theft is also a lesser included offense of
aggravated robbery, as defined in R.C. 2911.01.
       {¶ 37} However, the mere fact that an offense is a lesser included offense of the
charged offense does not mean that the trial court must instruct on both offenses. State v.
Keith, 10th Dist. No. 08AP-28, 2008-Ohio-6122, ¶ 35, citing State v. Wilkins, 64 Ohio
St.2d 382, 387 (1980), and State v. Easley, 10th Dist. No. 07AP-578, 2008-Ohio-468,
¶ 59. The trial court is required to instruct on the lesser included offense only where the
evidence at trial would reasonably support both an acquittal on the crime charged and a
conviction upon the lesser included offense. Id., citing State v. Robb, 88 Ohio St.3d 59, 74
(2000), and State v. Shane, 63 Ohio St.3d 630, 632-33 (1992). In determining whether
the lesser included offense instruction is warranted, "[t]he court must view the evidence
in the light most favorable to the defendant." State v. Campbell, 69 Ohio St.3d 38, 47-48
(1994), citing Wilkins at 388.
       {¶ 38} When determining whether the evidence reasonably supports the lesser
included offense instruction, " '[t]he persuasiveness of the evidence regarding the lesser
included offense is irrelevant.' " Keith at ¶ 36, quoting Wilkins at 388. The trial court
must give the lesser included offense instruction " '[i]f 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.' " Id., quoting Wilkins at 388. The trial court must
Nos. 13AP-1038 and 13AP-1039                                                             13


consider the evidence in the light most favorable to the defendant. Id., citing Wilkins at
388. However, the trial court need not instruct on the lesser included offense every time
"some evidence" is presented on a lesser included offense; rather, the key inquiry is
whether a jury could reasonably reject the greater offense and find the defendant guilty of
the lesser included offense. Id., citing Shane at 632-33 (reasoning that "[t]he jury would
be unduly confused if it had to consider the option of guilty on a lesser included (or
inferior-degree) offense when it could not reasonably return such a verdict").
       {¶ 39} In this case, an instruction on theft should have been given only if the jury
could have reasonably concluded all of the following: (1) appellant did not have a deadly
weapon on or about his person and that he did not display, brandish, indicate he
possessed, or use it; (2) appellant did not have a dangerous ordnance on or about his
person or under his control; and (3) appellant did not inflict, or attempt to inflict serious
physical harm to the victim.
       {¶ 40} The evidence presented at trial indicated that appellant forced his way into
J.T.'s home, shattered a glass in her face, and stabbed her multiple times. Lykins testified
he saw appellant leave the home with a knife. It is undisputed that J.T. suffered serious
physical injury and was hospitalized for over 30 days following the attack. The only
evidence to the contrary was appellant's own self-serving testimony which contained
numerous inconsistencies and deviated greatly from his statements to police immediately
following his arrest. Given the overwhelming evidence at trial, the jury could not have
reasonably found appellant not guilty of the greater offense of aggravated robbery but
guilty of the lesser offense of theft.
       {¶ 41} Notably, appellant does not challenge his attempted murder or felonious
assault convictions, all of which include serious physical harm as a proven element.
Appellant asks us to find plain error in the lack of lesser included offense instruction on
the unsubstantiated theory that the theft was an entirely separate incident to all the other
offenses committed while appellant was in the J.T.'s home that day. The evidence at trial
would not allow any reasonable jury to conclude that the theft was separate from and
unrelated to all the other crimes, and, thus, it was not error, much less plain error, for the
trial court not to give the lesser included offense instruction of theft as to the charge of
aggravated robbery. Thus, we overrule appellant's second assignment of error.
Nos. 13AP-1038 and 13AP-1039                                                           14


V. Disposition
       {¶ 42} Based on the foregoing reasons, the sufficiency of the evidence and the
manifest weight of the evidence support appellant's convictions, and the trial court did not
err in failing to give the lesser included offense instruction of theft for the offense of
aggravated robbery. Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                            KLATT and CONNOR, JJ., concur.
