[Cite as State v. Dover, 2015-Ohio-4785.]




App.R. 26(B) opinion, see 2014-Ohio-2303




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :   Appellate Case No. 2013-CA-58
       Plaintiff-Appellee                         :
                                                  :   Trial Court Case No. 2012-CR-511B
 v.                                               :
                                                  :   (Criminal Appeal from
 JEREMY DOVER                                     :    Common Pleas Court)
                                                  :
       Defendant-Appellant                        :
                                                  :

                                             ...........
                                            OPINION
                          Rendered on the 20th day of November, 2015.
                                             ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, Ohio 45419
      Attorney for Defendant-Appellant

                                            .............

FAIN, J.

        {¶ 1} Defendant-appellant Jeremy Dover was convicted of Aggravated Robbery, a
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felony of the first degree, with a firearm specification. He appealed; we affirmed. State v.

Dover, 2d Dist. Clark No. 2013-CA-58, 2014-Ohio-2303. We granted Dover’s application

to re-open this appeal on the sole issue of whether his appellate counsel was ineffective

for having failed to assign as error that his trial counsel was ineffective for having failed

to request a jury instruction on the lesser-included offense of Robbery. The State

contends that trial counsel’s decision not to request the lesser-included offense instruction

was based on reasonable trial strategy, and does not constitute ineffective assistance of

counsel.

       {¶ 2} We conclude that no prejudice occurred as a result of trial counsel’s alleged

ineffective assistance of counsel. Therefore, the sole assignment of error is overruled

and the judgment of the trial court is Affirmed.



                                 I. The Course of Proceedings

       {¶ 3}   The facts which led to Dover’s conviction are set forth in State v. Dover, 2d

Dist. Clark No. 2013-CA-58, 2014-Ohio-2303, ¶ 3-7. Dover used a gun to steal the victim’s

purse, which contained approximately $1750. The victim testified that “Dover was the

man who held the gun to her back and demanded that she give the money or he would

kill her.” Id. at ¶ 5. Upon cross-examination, Dover’s trial counsel attempted to discredit

the victim’s conclusion that Dover used a gun in the offense, because she only felt the

object in her back, and when she turned around she only saw two to three inches of a

shiny silver gun, but did not see the barrel or the handle. Transcript pg. 109. No gun was

recovered, and, therefore, no gun was introduced into evidence. In closing arguments,

Dover’s counsel stressed that “if there was no gun, there is no conviction in this case.
                                                                                         -3-



You must find Jeremy not guilty, because they have not proven beyond a reasonable

doubt each essential element of the crime and one of those is that there was a gun.”

Transcript at 238. In his closing, trial counsel continued to review the evidence, stressing

numerous times that no one saw a gun or found a gun, concluding, “The Samples, Mr.

Carter, all saw these people running immediately afterwards. Nobody saw a gun. Nobody

saw anyone ditch a gun. Nobody found a gun.” Id. at 242. The record supports a

conclusion that the strategy of trial counsel was to convince the jury that the State had

failed to prove all the elements of Aggravated Robbery, which includes the use of a deadly

weapon to commit the offense.

       {¶ 4} In the original appeal, we rejected the argument that the conviction is

against the manifest weight of the evidence, because we concluded that a jury could have

reasonably concluded that Dover had used a gun in the commission of the robbery. We

concluded that although Dover could fairly argue to the jury that there was reasonable

doubt that Dover used a gun to threaten the victim, “none of these points, taken

individually or collectively, persuade us that the jury lost its way in choosing to credit

Dixon’s testimony that Dover pointed a gun at her back and demanded that she give them

her purse, or he would kill her.” Dover at ¶ 20.

       {¶ 5} In the original appeal, we also rejected the argument that the trial court had

erred by failing to give an instruction on the lesser-included offense of Theft. The record

establishes that when trial counsel asked for an instruction on the offense of Theft, the

request was rejected but the trial court did state on the record that the facts presented a

possible conviction for the lesser-included offense of Robbery. Even though the State

acknowledged that Robbery could be charged as a lesser-included offense, neither the
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State nor defense counsel requested an instruction for Robbery, and it was not given. In

our decision to allow the appeal to be re-opened we agreed that an arguable issue could

be raised alleging that appellate counsel was ineffective for having failed to assign as

error trial counsel=s ineffectiveness by failing to request an instruction for Robbery. We

did not allow the appeal to be reopened to address an assignment of error that the trial

court abused its discretion by failing to instruct on Robbery, because that claim did not

have a substantial chance of success.



       II. Appellate Counsel Was Not Ineffective by Failing to Raise Trial Counsel’s

           Failure to Request an Instruction on the Lesser-Included Offense of

                                           Robbery

      {¶ 6} In his sole assignment of error, Dover alleges as follows:

             APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

      COUNSEL AS GUARANTEED BY THE OHIO AND UNITED STATES

      CONSTITUTION.

      {¶ 7} To establish a claim for ineffective assistance of counsel, the defendant has

the burden of demonstrating that: 1) the performance of defense counsel was seriously

flawed and deficient; and 2) there is a reasonable probability that the result of the

defendant's trial or legal proceeding would have been different had defense counsel

provided proper representation. State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-

Ohio-5803, ¶ 26, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Therefore, to reverse a conviction based on ineffective assistance

of counsel, it must be demonstrated that trial counsel's conduct fell below an objective
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standard of reasonableness, and that counsel’s deficiencies were serious enough to

create a reasonable probability that, but for the deficiencies, the result of the trial would

have been different.

       {¶ 8} In the case before us, the alleged deficiency of trial counsel was the failure

to request a jury instruction on the lesser-included offense of Robbery. Because trial

counsel raised no objection at trial to the failure to give a lesser-included offense

instruction, the issue was not preserved for appeal, unless it presents a “plain error”. “We

have found plain error when three elements are met: 1) there must be an error or deviation

from a legal rule, 2) that error must be plain, defined as ‘an obvious defect in the trial

proceedings,’ and 3) the error must have affected a ‘substantial right,’ meaning the error

must have affected the ultimate outcome, and a correction is needed to ‘prevent a

manifest miscarriage of justice.’ ” State v. LeGrant, supra at ¶ 9, citing State v. Barnes,

94 Ohio St.3d 21, 759 N.E.2d 1240 (2002).

       {¶ 9} As discussed in the first appeal, the failure to give a Robbery instruction was

obvious – it was pointed out by the trial court and acknowledged by the State on the

record. Not giving an instruction for the lesser-included offense was a deviation from the

rule of law established in State v. Wine, 140 Ohio St. 3d 409, 2014-Ohio-3948, 18 N.E.

3d 1207, which holds that a trial court has an obligation to give a lesser-included offense

instruction where the evidence warrants it, even over the objection of defense counsel.

In the present case, the facts did warrant an instruction on the lesser-included offense of

Robbery, because the defense was based on a claim that the State had failed to prove

one element of the offense of Aggravated Robbery, and sufficient testimony was elicited

through cross-examination of the victim to challenge whether Dover had committed the
                                                                                              -6-



Robbery offense with the use of a deadly weapon. If the jury found reasonable doubt that

Dover utilized a deadly weapon during the course of the offense, it could reasonably have

concluded that Dover committed the offense of Robbery, but did not commit the offense

of Aggravated Robbery. The only disputed issue is whether the failure to request the

instruction affected a substantial right to the extent that it affected the ultimate outcome

and resulted in manifest injustice.

       {¶ 10} It is well established that ineffective assistance of counsel affects a

substantial right afforded by the United States and Ohio Constitutions. Strickland v.

Washington, supra; State v. Bradley, 42 Ohio St. 3d 136, 538 N.E. 2d 373 (1989). “Trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance, and a defendant, in order to overcome the presumption

that counsel is competent, must show that counsel's decisions were ‘not trial strategies

prompted by reasonable professional judgment.’” State v. Few, 2d Dist. Montgomery No.

21561, 2012-Ohio-5407, ¶ 10, quoting Strickland at 687. “Hindsight is not permitted to

distort the assessment of what was reasonable in light of counsel's perspective at the

time, and a debatable decision concerning trial strategy cannot form the basis of a finding

of ineffective assistance of counsel.” Id. at ¶ 11, quoting State v. Nabors, 2d Dist.

Montgomery No. 24582, 2012-Ohio-4757, ¶ 17. “Even if unsuccessful, strategic decisions

will not constitute ineffective assistance of counsel.” Id., citing State v. Carter, 72 Ohio

St.3d 545, 558, 651 N.E.2d 965 (1995). Generally, the decision regarding which defense

to pursue at trial is a matter of trial strategy, and trial strategy decisions are not a basis of

a finding of ineffective assistance of counsel. State v. Moss, 2d Dist. Montgomery No.

22496, 2008-Ohio-6969, ¶ 35, citing State v. Murphy, 91 Ohio St.3d 516, 524, 747 N.E.2d
                                                                                          -7-



765 (2001); State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 52

        {¶ 11} When the issue of effective assistance is appealed, reviewing courts are

often faced with that task of scrutinizing whether an attorney’s conduct was based on

sound trial strategy, or was constitutionally defective. In those cases, we have recognized

that:

               “Judicial scrutiny of counsel's performance is to be highly deferential,

        and reviewing courts must refrain from second-guessing the strategic

        decisions of trial counsel. To justify a finding of ineffective assistance of

        counsel, the appellant must overcome a strong presumption that, under the

        circumstances, the challenged action might be considered sound trial

        strategy.” State v. Carter (1995), 72 Ohio St.3d 545, 558.

              “As a result, trial counsel is entitled to a strong presumption that all

        decisions fall within the wide range of reasonable professional assistance.”

        State v. Sallie (1998), 81 Ohio St.3d 673, 675.

State v. Wheeler, 2d Dist. Montgomery No. 24427, 2011-Ohio-5565, ¶¶ 14-15.

        {¶ 12} Whether to request a lesser-included offense instruction, or to seek an

acquittal based on an “all or nothing” approach has been considered a matter of trial

strategy. “Failure to request instructions on lesser-included offenses is a matter of trial

strategy and does not establish ineffective assistance of counsel.” State v. Lyle, 3d Dist.

Allen No. 1-14-41, 2015-Ohio-1181, ¶ 37, quoting State v. Griffie, 74 Ohio St.3d 332, 333,

658 N.E. 2d 764 (1996), citing State v. Clayton, 62 Ohio St. 2d 45, 402 N.E. 2d 1189

(1980). To find reversible error, we must conclude that the trial strategy was so deficient

that manifest injustice occurred. “Deficient performance means that claimed errors were
                                                                                             -8-



so serious that the defense attorney was not functioning as the ‘counsel’ that the Sixth

Amendment guarantees.” State v. Ulery, 2d Dist. Clark No. 2009-CA-5, 2010-Ohio-376,

¶ 10, citing State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).

       {¶ 13} The “all or nothing” trial strategy has been reviewed and considered

competent and effective when the evidence presented to a jury has a reasonable chance

of being viewed as insufficient to meet the State’s burden of proof. See, e.g., State v.

Taylor, 10th Dist. Franklin No. 12AP-870, 2013-Ohio-3699, ¶ 41; State v. Marsh, 7th Dist.

Mahoning No. 12 MA 40, 2013-Ohio-2949, ¶19; State v. Bell, 2d Dist. Montgomery No.

22448, 2009-Ohio-4783, ¶ 52. In light of the holding in State v. Wine, supra, which

suggests that a court is required to give the lesser included-offense instruction, when

warranted by the facts, it might be argued that an all-or-nothing defense may not be an

available trial strategy.   But if defense counsel does not request a lesser-included

instruction, if the trial court, despite its obligation to do so, does not give the instruction,

and if the jury finds a failure of proof on the element required for the offense charged and

acquits the defendant, then double-jeopardy will protect the defendant from conviction of

the lesser-included offense. This suggests that defense counsel’s failure to request a

lesser-included instruction may be a sound trial strategy, notwithstanding the trial court’s

duty, under Wine, to give the instruction anyway.

       {¶ 14} Subsequent to the Court’s ruling in State v. Wine, we have rendered

decisions in three appeals involving an alleged error by the trial court when an instruction

for a lesser-included offense was not given, but each is distinguishable from the case

before us. In State v. Conley, 2d Dist. Montgomery No. 26359, 2015-Ohio-2553, State v.

Pullen, 2d Dist. Montgomery No. 25829, 2015-Ohio-552, and State v. Coots, 2015-Ohio-
                                                                                           -9-



126, 27 N.E. 3d 47 (2d Dist.), we concluded that the lesser-included offense instruction

was not warranted by the facts, so that the trial court did not err when it failed to give the

instruction. In the case before us, there is a reasonable view of the evidence under which

Dover could have been convicted of Robbery, but acquitted of Aggravated Robbery, if the

jury was not persuaded by the victim’s testimony that Dover threatened her with a gun.

Therefore, counsel’s failure to seek the instruction on the lesser-included offense of

Robbery may have rendered his representation ineffective.

       {¶ 15} Nonetheless, counsel’s ineffectiveness in this regard is not reversible error

unless there exists a substantial likelihood that correction of the error would result in a

different outcome. In the case before us, we are not persuaded that the evidence was

overwhelmingly in favor of an acquittal on the charge of Aggravated Robbery. We cannot

say the jury lost its way when weighing the credibility of the victim’s testimony so as to

accept her conclusion that Dover was holding a gun to her back and threatened to kill her,

in the course of the theft of her purse. Thus, we conclude that counsel’s failure to request

the lesser-included offense, or to object to the court’s failure to give the instruction, did

not result in manifest injustice and does not constitute plain error.

       {¶ 16} Dover’s sole assignment of error is overruled.



                                          III. Conclusion

       {¶ 17} Dover’s sole assignment of error having been overruled, the judgment of

the trial court is Affirmed.



                                      .............
                                 -10-




DONOVAN and HALL, JJ., concur.


Copies mailed to:

Ryan A. Saunders
Jay A. Adams
Hon. Richard J. O’Neill
