[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Wine, Slip Opinion No. 2014-Ohio-3948.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-3948
              THE STATE OF OHIO, APPELLEE, v. WINE, APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
      it may be cited as State v. Wine, Slip Opinion No. 2014-Ohio-3948.]
Criminal Law—All-or-nothing defense—Defendant cannot prevent trial court
        from instructing jury on lesser included offenses when instructions are
        warranted by evidence presented.
(No. 2012-1611—Submitted November 6, 2013—Decided September 25, 2014.)
              APPEAL from the Court of Appeals for Auglaize County,
                            No. 2-12-01, 2012-Ohio-2837.
                               ____________________
        PFEIFER, J.
        {¶ 1} The issue we address in this case is whether a defendant who
presents an “all or nothing” defense in a criminal trial has the right to prevent a
trial court from giving lesser-included-offense jury instructions. We hold that a
criminal defendant does not have the right to prevent a trial court from giving
lesser-included-offense jury instructions; whether to include such jury instructions
lies within the discretion of the trial court and depends on whether the evidence
presented could reasonably support a jury finding of guilt on a particular charge.
                             SUPREME COURT OF OHIO




                        Factual and Procedural Background
       {¶ 2} On February 4, 2011, the grand jury in Auglaize County indicted
appellant, Douglas Wine, on one count of rape in violation of R.C. 2907.02(A)(2).
The charge was based on the allegation made by Wine’s mother-in-law that Wine
had inserted his finger into her vagina while she was sleeping with one of Wine’s
children in the child’s bed in Wine’s home.
       {¶ 3} The matter proceeded to a jury trial on October 25, 2011. The
alleged victim, Wine’s mother-in-law, testified that she had fallen asleep with one
of the children after getting in bed with him to tell him a story. She testified that
she awoke to her own yelling and saw Wine kneeling down at the side of the bed
with his face very close to hers. She realized that one of Wine’s fingers was in
her vagina while his right hand was on her chest under her pajamas. She testified
that she yelled her husband’s name twice, loud enough that she thought that her
daughter, Wine’s wife, would have heard her, but that her husband, her daughter,
and the child next to her did not hear her yelling. She stated that when she yelled,
Wine removed his finger from her vagina and his hand from her chest, but kept
his hands under the blankets. She testified that Wine asked her who was in bed
with her and that when she responded, Wine removed his hands from under the
blankets, stood up, and left the room.
       {¶ 4} The state also introduced portions of two videotaped interviews of
Wine that occurred before he was indicted. The first interview was by Brad
Kelly, a private investigator who had been retained by Wine and his wife. In that
interview, Wine stated that he remembered being in bed with his mother-in-law.
He stated, “I sort of remember having my hand down there but I don’t remember
any of the specifics that she’s talking about.” He told the interviewer that he may
have touched his mother-in-law’s vagina. He also stated, “I may have touched
her, I mean I almost think I did. But the truth is I thought it was my wife.” Wine
also told the investigator that his wife did not like him to put his fingers in her




                                         2
                               January Term, 2014




vagina and that if he had been in bed with his wife he would generally not have
done that.
       {¶ 5} The second interview was by Detective Sergeant Jerry Sawmiller
of the Auglaize County Sheriff’s Office. In that interview, Wine said that he
remembered waking up in bed with his mother-in-law.          He said that it was
possible that something had happened, but that he had no memory of it and no
memory of ever touching his mother-in-law inappropriately.
       {¶ 6} Wine testified in his own behalf at trial. He testified that he was
never in the room that the alleged victim was in on the night in question and that
he did not lay his hands on her in any way. In closing argument, Wine’s counsel
stated, “There isn’t any evidence whatsoever that Doug went into the room that
night.” The defense was thus unequivocal—Wine was never in the room on the
night in question and there could be no gradations on what might have occurred.
       {¶ 7} Prior to presenting the case to the jury, the trial court discussed
proposed jury instructions with counsel out of the jury’s presence. Wine objected
to the trial court’s proposed instructions—neither party had requested them—on
the lesser included offenses of sexual battery under R.C. 2907.03(A)(1) and gross
sexual imposition under R.C. 2907.05(A)(1). A conviction for rape under R.C.
2907.02(A)(2), a first-degree felony and the crime alleged in the indictment,
requires proof of sexual conduct compelled by force or threat of force.           A
conviction for sexual battery under R.C. 2907.03(A)(1), a third-degree felony
when the victim is age 13 or over, requires proof of sexual conduct in which “the
offender knowingly coerce[d] the other person to submit by any means that would
prevent resistance by a person of ordinary resolution.” A person commits gross
sexual imposition, a fourth-degree felony unless an exception applies, under R.C.
2907.05(A)(1) by compelling another person “to submit by force or threat of
force” to sexual contact. Rape under R.C. 2907.02(A)(2) and sexual battery under
R.C. 2907.03(A)(1) both involve “sexual conduct,” a requirement of which is



                                        3
                            SUPREME COURT OF OHIO




penetration.   R.C. 2907.01(A).    Gross sexual imposition, on the other hand,
involves “sexual contact,” which requires “touching of an erogenous zone of
another * * * for the purpose of sexually arousing or gratifying either person.”
R.C. 2907.01(B).
       {¶ 8} Wine’s counsel objected to the instructions on the lesser included
offenses because he had prepared his defense based upon the offense charged in
the original indictment, rape. He argued that the state could have included the
other offenses in the indictment but did not. He also argued that “[t]he only
testimony with respect to the incident came from the victim and she was explicit
that she believed there was penetration.” He contended that the instruction as to
gross sexual imposition, which does not involve penetration, was thus
unwarranted.
       {¶ 9} The state did not object to the instructions.         The prosecutor
commented that although the victim had testified that she had been penetrated, if
the jury did not believe that penetration occurred, deliberation on sexual contact
would be appropriate.
       {¶ 10} The trial court overruled Wine’s objections and concluded that it
would instruct the jury on both lesser included offenses. As for sexual battery, the
court explained that a jury could conclude that Wine had not purposely compelled
the sexual conduct, but could still conclude that he had coerced the victim to
engage in sexual conduct. As for gross sexual imposition, the court explained that
based on Wine’s videotaped statements to investigators, including Wine’s
statements “about his acts and his hands and what he did with [his wife] and so
forth, that [the jury] could find that he had perpetrated sexual contact without
actual sexual conduct.” Further, the alleged victim had testified that because of
the dryness of her vagina, it would have been difficult for Wine to have put his
finger inside her vagina. The court concluded that the alleged victim’s cross-
examination testimony that she didn’t know whether Wine had used lubricant was




                                         4
                                 January Term, 2014




more testimony “bringing into question whether there had, in fact, been possibly
the actual penetration.”
           {¶ 11} The jury found Wine not guilty of rape and not guilty of sexual
battery but guilty of the lesser included offense of gross sexual imposition. The
court sentenced Wine to 15 months in prison, fined him $5,000, and classified
him as a Tier I sexual offender.
           {¶ 12} Wine appealed to the Third District Court of Appeals, raising
numerous assignments of error. With regard to the issue of the jury instructions
on lesser included offenses, the appellate court concluded that the trial court did
not abuse its discretion in instructing the jury on gross sexual imposition; it did
not address the sexual-battery jury instruction since the jury found Wine not
guilty of that offense. The court held that a rational juror could have concluded,
based upon the evidence admitted at trial, “that penetration, required for a rape
conviction, did not occur but ‘sexual contact’ did occur sufficient for a gross
sexual imposition conviction.” 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837,
¶ 18.
           {¶ 13} The court rejected Wine’s contention that because he was entitled
as a matter of trial strategy to waive the jury instructions on lesser included
offenses, the trial court should not have instructed the jury on those offenses over
his objection: “That trial counsel may decide not to request lesser-included
instructions as a matter of trial strategy does not mean the trial court lacks
discretion to instruct where the evidence, in fact, merits such an instruction.” Id.
at ¶ 19.
           {¶ 14} In resolving a separate assignment of error, the court held that
there was insufficient evidence to support a conviction for gross sexual imposition
because the state had failed to prove the element of force. However, the court
found that the evidence presented was sufficient to prove the lesser included
offense of sexual imposition, and it remanded the case to the trial court “to enter a



                                          5
                              SUPREME COURT OF OHIO




finding of guilt for the lesser-included offense of sexual imposition in violation of
R.C. 2907.06(A)(1) and to sentence Wine for that offense.” Id. at ¶ 52.
       {¶ 15} Wine sought a stay of the appellate court’s judgment pending his
appeal to this court, but we denied his motion for a stay. Upon remand, the trial
court conducted a hearing, found that Wine was guilty of sexual imposition under
R.C. 2907.06(A)(1), a third-degree misdemeanor, sentenced him to time served,
fined him $500, and classified him as a Tier I sexual offender.
       {¶ 16} The cause is before this court upon the acceptance of a
discretionary appeal on the following proposition of law: “A Defendant in a
criminal trial, as a matter of trial strategy, has a right to present an ‘all or nothing
defense’ and refuse any lesser-included offenses instructions.” 134 Ohio St.3d
1448, 2013-Ohio-347, 982 N.E.2d 727.
                                  Law and Analysis
       {¶ 17} Wine argues that a defendant has the right to control whether a jury
receives instructions on lesser included offenses. We conclude that a defendant
does not have that right.
       {¶ 18} In Ohio, the law regarding lesser included offenses is the product
of statute, rule, and the common law. R.C. 2945.74—in language very similar to
Crim.R. 31(C)—provides that a jury may find a defendant guilty of a lesser
included offense:


       When the indictment or information charges an offense, including
       different degrees, or if other offenses are included within the
       offense charged, the jury may find the defendant not guilty of the
       degree charged but guilty of an inferior degree thereof or lesser
       included offense.




                                           6
                                January Term, 2014




       {¶ 19} R.C. 2945.74 and Crim.R. 31(C) have their roots in longstanding
common law: “At common law the jury was permitted to find the defendant
guilty of any lesser offense necessarily included in the offense charged.”
(Footnote omitted.) Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 65
L.Ed.2d 392 (1980).      In any given case, the rule can advantage either the
prosecution or the defense—a defendant does not have sole claim to its benefits:


       This rule originally developed as an aid to the prosecution in cases
       in which the proof failed to establish some element of the crime
       charged. See 2 C. Wright, Federal Practice and Procedure § 515,
       n. 54 (1969). But it has long been recognized that it can also be
       beneficial to the defendant because it affords the jury a less drastic
       alternative than the choice between conviction of the offense
       charged and acquittal.


Id.
       {¶ 20} Regardless of who reaps the benefit of the rule, this court has held
that a charge on a lesser included offense is required when the facts warrant it and
improper when the facts do not warrant such a charge:


               If the trier of fact 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.
               Conversely, if the jury could not reasonably find against the
       state on an element of the crime, then a charge on a lesser-included
       offense is not only not required, but is also improper.



                                         7
                               SUPREME COURT OF OHIO




(Emphasis sic; citation omitted.) State v. Kilby, 50 Ohio St.2d 21, 24-25, 361
N.E.2d 1336 (1977).
       {¶ 21} The law, the evidence presented, and the discretion of the trial
judge play a role in whether lesser-included-offense instructions are appropriate.
But the evidence is crucial:


               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, 533 N.E.2d 286 (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, 827
N.E.2d 285, ¶ 37.
       {¶ 22} This court has recognized the potential perils of pervasive lesser-
included-offense jury instructions for defendants in cases in which the facts do not
support the lesser charge:


               The mere fact that an offense can be a lesser included
       offense of another offense does not mean that a court must instruct
       on both offenses where the greater offense is charged. This court
       made it clear in State v. Nolton (1969), 19 Ohio St.2d 133, [249
       N.E.2d 797,] that juries were not to be presented with compromise
       offenses which could not possibly be sustained by the adduced




                                         8
                               January Term, 2014




       facts. Such unreasonable compromises are detrimental to both the
       state and the defendant. These compromises can allow juries to
       lessen punishment at their unlimited discretion, even when they
       find the defendant guilty of the greater offense beyond a
       reasonable doubt.    Further, they can allow juries to convict a
       defendant of a crime of which he is not guilty beyond a reasonable
       doubt with a clearer conscience than if only the greater offense
       were charged.


State v. Wilkins, 64 Ohio St.2d 382, 387, 415 N.E.2d 303 (1980). Or, as the court
bluntly stated in State v. Loudermill, 2 Ohio St.2d 79, 81, 206 N.E.2d 198 (1965),
a defendant’s “liberty should not be dickered away by a compromised verdict
upon another crime.”
       {¶ 23} Further, this court has recognized that a compromise verdict could
be more likely in cases in which the defendant presents an all-or-nothing defense.
“There is great potential for unreasonable compromises where the evidence
adduced by a defendant constitutes a complete defense to the substantive elements
of the crime charged.” State v. Solomon, 66 Ohio St.2d 214, 220, 421 N.E.2d 139
(1981). In an attempt to address that concern, this court, in State v. Nolton, 19
Ohio St.2d 133, 249 N.E.2d 797 (1969), announced a “new rule” to be employed
in cases in which the defendant offers a complete defense to the crime charged:


              If the evidence adduced on behalf of the defense is such
       that if accepted by the trier it would constitute a complete defense
       to all substantive elements of the crime charged, the trier will not
       be permitted to consider a lesser included offense for the reason
       that an unreasonable compromise would be invited on the state’s
       evidence.



                                        9
                              SUPREME COURT OF OHIO




(Emphasis sic.) Id. at 135.
       {¶ 24} But the court then stated in Nolton that if the trier of fact could
reasonably find that the state failed to prove an element of its case, but that the
state proved remaining elements that would support a conviction on a lesser
included offense, then a lesser-included-offense instruction is warranted:


       On the contrary, if the trier 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 and against the accused on the remaining
       elements, which by themselves would sustain a conviction upon a
       lesser included offense, then a charge on the lesser included
       offense is both warranted and required, not only for the benefit of
       the state but for the benefit of the accused.


(Emphasis sic.) Id.
       {¶ 25} In Wilkins, this court clarified Nolton. This court observed that
Nolton had been misinterpreted as creating a rigid rule that when a defendant
offered a complete defense, no lesser included offense should be submitted to the
trier of fact. Wilkins, 64 Ohio St.2d at 387, 415 N.E.2d 303. Instead, this court
explained in Wilkins, even when a complete defense is offered by the defendant, if
the state’s evidence could be interpreted as supporting only a lesser included
offense, a lesser-included-offense charge to the jury is appropriate:


               To clarify, we are restating the rule as follows:
               If the evidence adduced on behalf of the defense is such
       that if accepted by the trier of fact it would constitute a complete
       defense to all substantive elements of the crime charged, the trier




                                         10
                                   January Term, 2014




        of fact will not be permitted to consider a lesser included offense
        unless the trier of fact 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 and against the accused on the remaining
        elements, which, by themselves, would sustain a conviction upon a
        lesser included offense.


Id. at 388.
        {¶ 26} This court has therefore left no doubt that it is the quality of the
evidence offered, not the strategy of the defendant, that determines whether a
lesser-included-offense charge should be given to a jury. But Wine nevertheless
maintains that a defendant has the right to prevent a trial court from giving the
jury lesser-included-offense instructions, and he bases that contention on a
statement in a footnote in State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189
(1980), in which this court referred to a defendant’s right to waive a lesser-
included-offense jury instruction. The context of the court’s statement is crucial.
In Clayton, the defendant’s counsel had successfully persuaded the trial court to
not give lesser-included-offense jury instructions, so the trial court had instructed
on attempted murder only and on self-defense. The trial court had noted on the
record: “Let the record show that in a discussion with counsel in chambers as to
the charge of the court, as to crime involved in this, that at the request of the
defense the court is charging on attempted * * * murder and no lesser included
offense.” Id. at 45, fn. 1.
        {¶ 27} The issues this court faced were whether the trial court had
committed plain error in failing to include lesser-included-offense jury
instructions and whether Clayton’s counsel’s argument to the court to omit those
instructions constituted ineffective assistance of counsel. Id. at 46. Thus, Clayton
was a much different case from the case before us: in Clayton, the defendant



                                           11
                             SUPREME COURT OF OHIO




claimed that the trial court erred in not instructing the jury on lesser included
offenses, whereas here Wine argues that the court erred in giving lesser-included-
offense instructions.
        {¶ 28} Wine narrows Clayton to a statement this court made in footnote
two, which reads:


        One of appellee’s major arguments was that there should have
        been an instruction on the lesser-included offense of attempted
        voluntary manslaughter. Even if the defendant did elicit some
        evidence of mitigating circumstances (fit of anger), he still had the
        right to intentionally waive a jury instruction on the lesser-included
        offense of attempted voluntary manslaughter.         Having elicited
        some evidence in mitigation of attempted murder, the court had the
        duty to instruct on the lesser-included offense, but this in no way
        affected defendant’s concomitant right, through his counsel, to
        waive the instruction.


Id. at 47, fn. 2.
        {¶ 29} In the sentence preceded by this footnote, this court in Clayton
stated that the reasoning of State v. Wolery, 46 Ohio St.2d 316, 348 N.E.2d 351
(1976), applied to the case before it. In Wolery, defense counsel had not objected
to the introduction of certain evidence as a matter of trial strategy. On appeal, the
defendant-appellant claimed that the admission of that same evidence was plain
error. Noting that the decision not to object to the admission of the evidence was
tactical, the court wrote that “[a]ppellant cannot now claim the protection of
CrimR. 52(B) to negate the effect of this tactical decision.” Wolery at 327.
        {¶ 30} In Clayton, this court held that defendant’s counsel’s decision not
to request an instruction on lesser included offenses—seeking acquittal rather than




                                         12
                                  January Term, 2014




inviting conviction on a lesser offense—was a matter of trial strategy. Id. This
court essentially said in Clayton’s second footnote that although the trial court
erred in not including the lesser-included-offense charge, the defendant waived
that error in furtherance of his counsel’s trial strategy. Once the defendant made
his tactical gambit, like the defendant in Wolery, he could not then successfully
claim plain error upon appeal. This court thus concluded that the trial court’s
failure to instruct the jury on lesser included offenses and the defendant’s
subsequent conviction “[did] not amount to a manifest miscarriage of justice and
[was] not plain error.” Id. at 47-48. This court further concluded that although
his strategy was questionable, Clayton’s counsel did not provide ineffective
assistance. Id. at 49.
            {¶ 31} Clayton establishes the consequences that follow a defendant’s
decision to waive a jury instruction that may have inured to his benefit. But
Clayton does not say that a defendant may prevent the trial court from instructing
the jury as to a lesser included offense that is warranted by the evidence produced
at trial.
            {¶ 32} A defendant’s choice to pursue an all-or-nothing defense does not
require a trial judge to impose upon the state an all-or-nothing prosecution of the
crime charged if the evidence would support a conviction on a lesser included
offense: “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.”
Wilkins, 64 Ohio St.2d at 388, 415 N.E.2d 303.
            {¶ 33} 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



                                           13
                             SUPREME COURT OF OHIO




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.” Solomon, 66 Ohio St.2d at 221, 421
N.E.2d 139.
                                     Conclusion
       {¶ 34} The sole issue before us is whether a criminal defendant has the
right to prevent a trial court from instructing a jury on lesser included offenses.
We hold that a defendant does not have that power.             The trial court, after
reviewing the evidence, determines whether an instruction on lesser included
offenses is appropriate. The trial court must give an instruction on a lesser
included offense 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.
       {¶ 35} Since the defendant in this case did not have the right to prevent
the trial court from instructing the jury on lesser included offenses, we affirm the
judgment of the appellate court.
                                                                  Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
                              ____________________
       Edwin A. Pierce, Auglaize County Prosecuting Attorney, for appellee.
       Lorin J. Zaner, for appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, Stephen P. Carney, Deputy




                                          14
                               January Term, 2014




Solicitor, and Matthew T. Green, Assistant Attorney General, urging affirmance
for amicus curiae state of Ohio.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Barbara A.
Farnbacher, Assistant Prosecuting Attorney, urging affirmance for amicus curiae
Franklin County Prosecuting Attorney Ron O’Brien.
       Carol Hamilton O’Brien, Delaware County Prosecuting Attorney, and
Douglas N. Dumolt, Assistant Prosecuting Attorney, urging affirmance for amicus
curiae Ohio Prosecuting Attorneys Association.
                          _________________________




                                       15
