[Cite as State v. Elsberry, 2013-Ohio-1378.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2011-12-221

                                                     :          OPINION
    - vs -                                                       4/8/2013
                                                     :

DWAYNE ELSBERRY,                                     :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2011-09-1453



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

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Dwayne Elsberry, appeals his conviction in the Butler

County Common Pleas Court for physical-harm robbery in violation of R.C. 2911.01(A)(2), a

second-degree felony. Elsberry argues the trial court erred by, among other things, refusing

to instruct the jury on the lesser included offense of robbery by force in violation of R.C.

2911.01(A)(3), a third-degree felony. For the reasons that follow, we affirm Elsberry's

conviction for physical-harm robbery.
                                                                     Butler CA2011-12-221

      {¶ 2} In the early morning hours of August 23, 2011, Elsberry went into a Walgreens

drug store in Middletown, Ohio, picked up two candles from the store's shelf, and walked up

to the checkout counter, ostensibly, to purchase them. When Walgreens employee, Kelli

Myers, went to the store's cash register to ring up Elsberry's purchase, he put what appeared

to be the barrel of a gun on the counter and demanded money from her. As Myers began

retrieving money from the register, Elsberry tapped the gun on the counter and told her

several times to "hurry up." Myers gave him close to $200, and Elsberry fled.

      {¶ 3} The police were called to the scene. Upon reviewing the video from the store's

security camera, Middletown Police Detective Steve Winters immediately recognized the

perpetrator as Elsberry.   Detective Winters and his fellow officers obtained and then

executed a search warrant for Elsberry's residence. The officer found Elsberry mowing the

grass in his back yard. Elsberry admitted to the officers that he was the one who had robbed

the Walgreens. However, he insisted he had not used an actual gun, but instead, had merely

used his finger tucked underneath his shirt to make the store clerk believe he had a gun.

      {¶ 4} Elsberry was indicted for aggravated robbery in violation of R.C. 2911.01(A)(1),

a first-degree felony, accompanied by a firearm specification. At trial, Myers identified

Elsberry as the perpetrator, and said she gave him the money because she felt there would

be "consequences" if she did not. She testified that the gun Elsberry used was "black" and

"dull" and "sounded heavy" when he laid it on the counter because it "sounded like metal."

She also testified that the gun had a barrel that was probably about five or six inches long

and that she had "no doubt" she was "looking at the barrel of a gun" during the robbery. The

state also presented, as State's Exhibit B, a still photograph taken from the video of the

robbery recorded by the store's security camera. The photograph shows Elsberry sticking

what appears to be the barrel of a gun at Myers.

      {¶ 5} Elsberry testified on his own behalf, and admitted he had robbed the Walgreens
                                             -2-
                                                                         Butler CA2011-12-221

on the night in question to obtain money because he was addicted to crack cocaine. He

acknowledged he had lied to police when he told them he had used his finger underneath his

shirt, and did so because he believed that if he had told them he used a BB gun during the

incident, he would have gotten into the same trouble in which he would have been had he

used an actual firearm. He also acknowledged his attorney had explained to him that if he

used a BB gun rather than an actual firearm, his penalty would be less severe. Elsberry also

admitted that if the state had not produced the photograph showing the barrel of a gun being

pointed at Myers, he would have continued to insist he had merely used his finger under his

shirt.

         {¶ 6} At the close of evidence and outside the jury's presence, Elsberry's defense

counsel requested that the jury be instructed on the lesser included offense of theft. The

state responded that if any lesser included instruction was to be provided to the jury, it should

be for the lesser included offense of physical-harm robbery in violation of R.C. 2911.02(A)(2),

a second-degree felony.

         {¶ 7} The trial court initially expressed its belief that the appropriate lesser included

offense instruction to give to the jury was for robbery by force in violation of R.C.

2911.02(A)(3), a third-degree felony. The trial court later suggested that the jury be given an

instruction containing the elements of both physical-harm robbery and robbery by force, and

still later, suggested that the jury be given separate instructions on both physical-harm

robbery and robbery by force. However, the trial court eventually chose to instruct the jury on

the lesser included offense of physical-harm robbery but not robbery by force.

         {¶ 8} The jury returned a verdict finding Elsberry guilty of physical-harm robbery in

violation of R.C. 2911.02(A)(2), and the trial court sentenced him to serve eight years in

prison.

         {¶ 9} Elsberry now appeals, assigning the following as error:
                                                -3-
                                                                          Butler CA2011-12-221

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND

ABUSED ITS DISCRETION IN DECLINING TO INSTRUCT THE JURY ON THE LESSER

INCLUDED OFFENSE OF ROBBERY, IN VIOLATION OF R.C. 2911.02(A)(3).

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT PROVIDED JURY

INSTRUCTIONS AT TRIAL THAT INCLUDED INCORRECT STATEMENTS OF LAW.

       {¶ 14} Assignment of Error No. 3:

       {¶ 15} APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL,

IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION,

WHICH DENIAL RESULTED IN PREJUDICE.

       {¶ 16} Assignment of Error No. 4:

       {¶ 17} THE TRIAL COURT COMMITTED PLAIN ERROR IN THE LESSER

INCLUDED OFFENSE INSTRUCTION WHERE IT OMITTED AN INSTRUCTION ON THE

MENS REA ELEMENT OF RECKLESSNESS.

       {¶ 18} We shall discuss Elsberry's assignments of error in a slightly different order

from the one in which he has presented them, in order to facilitate our analysis of the issues

raised therein.

       {¶ 19} In his first assignment of error, Elsberry argues the trial court "erred" and

"abused [its] discretion" in declining to instruct the jury on robbery by force in violation of R.C.

2911.02(A)(3), a third-degree felony. We disagree.

       {¶ 20} R.C. 2911.02, which defines the offense of robbery, provides:

               (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:
                                                -4-
                                                                          Butler CA2011-12-221


             (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.

             (B) Whoever violates this section is guilty of robbery. A violation
             of division (A)(1) or (2) of this section is a felony of the second
             degree. A violation of division (A)(3) of this section is a felony of
             the third degree.

             (C) As used in this section:

             (1) "Deadly weapon" has the same meaning as in section
             2923.11 of the Revised Code.

             (2) "Theft offense" has the same meaning as in section 2913.01
             of the Revised Code.

      {¶ 21} "'Physical harm to persons' means any injury, illness, or other physiological

impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3) "'Force' means any

violence, compulsion, or constraint physically exerted by any means upon or against a

person or thing." R.C. 2901(A)(1). A charge of robbery in violation of R.C. 2901.02(A)(2), a

second-degree felony, is commonly referred to as "physical-harm" robbery, while a charge of

robbery in violation of R.C. 2901.02(A)(3) is commonly referred to as a "force" robbery or a

robbery "by force."

      {¶ 22} In determining whether one offense is a lesser included offense of another, a

court must "consider whether one offense carries a greater penalty than the other, whether

some element of the greater offense is not required to prove commission of the lesser

offense, and whether the greater offense as statutorily defined cannot be committed without

the lesser offense as statutorily defined also being committed." State v. Evans, 122 Ohio

St.3d 381, 2009-Ohio-2974, ¶ 26 ("clarifying" State v. Deem, 40 Ohio St.3d 205 [1988]).

However, simply because an offense is a lesser included offense of the crime with which a
                                               -5-
                                                                        Butler CA2011-12-221

defendant has been charged does not mean that the trial court is automatically required to

provide the jury with an instruction on the lesser included offense. State v. Rice, 4th Dist. No.

03CA2717, 2003-Ohio-6515, ¶ 13, citing State v. Thomas, 40 Ohio St.3d 213, 216 (1998).

       {¶ 23} A jury instruction on a lesser included offense is required only when 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. Shane, 63 Ohio St.3d 630, 632

(1992); and State v. Brown, 8th Dist. No. 93007, 2010-Ohio-2460, ¶ 54, quoting State v.

Harris, 129 Ohio App.3d 527, 535 (10th Dist.1998).

       {¶ 24} Elsberry argues the trial court erred and abused its discretion in refusing to

provide the jury with an instruction on the lesser included offense of robbery by force in

violation of R.C. 2911.02(A)(3). While we agree that robbery by force is a lesser included

offense of the crime originally charged in this case, i.e., aggravated robbery in violation of

R.C. 2911.01(A)(1), we conclude that the evidence did not reasonably warrant giving the jury

a lesser included instruction on robbery by force.

       {¶ 25} Defense counsel questioned Elsberry on direct examination about the video of

the robbery which the state had played for the jury. Elsberry testified that the object he is

seen holding in the video was "a fake BB gun." Elsberry acknowledged that the video of the

robbery shows that he attempted to hide the BB gun, and stated that he did so because he

did not want the store's clerk to know the gun was a fake. Elsberry also testified that the BB

gun was approximately "five, ten pounds." When Elsberry was asked by his defense counsel

"what is a grown man doing with a BB gun in the first place," Elsberry answered that he had

taken it from his son. Elsberry also testified that the BB gun was not "capable of killing

anyone[.]" Defense counsel then questioned Elsberry as follows:

              Q. Were [you] using [the BB gun] as a weapon?

              A. No, I wasn't.
                                               -6-
                                                                      Butler CA2011-12-221


              Q. W[ere you] posing it or carrying it as a weapon?

              A. No.

              Q. Were you trying to make others think that it was a weapon?

              A. No.

              Q. Were you trying to make the Walgreens employee think you
              had a weapon?

              A. Yes, yes.

       {¶ 26} Elsberry also testified that after he left Walgreens following the robbery, he

threw the BB gun in a storm drain next to his residence. Elsberry testified that he had asked

an investigator for the public defender's office to look for the BB gun about two weeks before

trial, but the investigator was not able to find it. When defense counsel asked Elsberry,

"[w]hy wouldn't [the investigator] have found [the BB gun]," Elsberry answered, "[d]ue to

heavy, precipitation, washed the gun away most likely."

       {¶ 27} The prosecutor cross-examined Elsberry as follows:

              Q. [Defense counsel] asked you a series of very specific
              questions, okay. And asked you, Did you carry that BB gun as if
              it was a weapon? And you said, no?

              A. Correct.

              Q. Right. Did you display it or brandish it like it was a weapon?
              And you said, no. Right?

              A. Correct.

              Q. What were you doing with it then?

              A. What was I doing with it?

              Q. Yeah. What was your purpose in having it there?

              A. Making the cashier seem though it was a weapon. [Sic.]

              Q. You heard Ms. Myers' testimony, right?
                                             -7-
                                                                  Butler CA2011-12-221


      A. Yes.

      Q. And you come in and she sees a gun and figures, I better
      give him the money or I'm going to face some consequences,
      right?

      A. Yes.

      Q. That's what you wanted her to think, right?

      A. Yes.

      Q. That's the whole point of pointing it at her?

      A. Well, I wouldn't say I was pointing it at her. It come up under
      my shirt at that time.

      Q. Look at that picture [referring to State's Exhibit 2, the still
      photograph showing Elsberry pointing what appears to be the
      barrel of a gun at Myers].

      A. Yeah, I see it.

      Q. It's pointed right at her, isn't it?

      A. Yeah, but it come from up under my shirt because I meant to
      conceal it, because I didn't want her to see it. Because as she
      stated, she didn't know if it was a real gun in the beginning, she
      stated. But I didn't want to reveal it so she could see it – actually
      see the gun and actually see that it was a fake gun. It was a BB
      gun.

      Q. Isn't it true, that as you saw in the video, you're trying to cover
      it up with your shirt?

      A. Correct.

      Q. Isn't it true, the reason you're trying to cover that up, is so that
      the gun itself won't show up on the video so that in the future, if
      you got caught, you could sit in front of 12 people and say, Folks,
      I didn't have a gun at all. That was just my finger under my shirt?
      Isn't that the reason why you had it under your shirt?

      A. No, that wasn't the reason I had it under my shirt.

{¶ 28} What the foregoing portions of Elsberry's testimony on direct and cross-
                                        -8-
                                                                         Butler CA2011-12-221

examination shows is that (1) Elsberry denied that the gun he was carrying was an actual

firearm, and insisted, instead, it was a "fake BB gun," (2) Elsberry denied that he intentionally

pointed the BB gun at Myers, but acknowledged that he had inadvertently done so, (3)

Elsberry admitted that he wanted to make Myers believe he had an actual weapon, but did

not want her to see the weapon because she might then see it was a fake gun, and (4)

Elsberry wanted Myers to believe that she had to give him the money, and that she would

face consequences if she did not.

       {¶ 29} The admissions Elsberry made during his testimony proves that he committed

physical-harm robbery and not simply robbery by force because his admissions show that he

"threatened to inflict physical harm on another" in committing a theft offense. Given

Elsberry's admissions, the jury could not have reasonably found that he merely intended to

use force on Myers. Therefore, the jury could not have reasonably acquitted Elsberry of

physical-harm robbery and convicted him, instead, of robbery by force.

       {¶ 30} We also reject Elsberry's assertion that since "no express threat was uttered by

[him]" to Myers, "a legitimate question exist[s]" as to whether he committed a robbery by

force, since it is well settled that a threat does not have to be express, but instead, may be

implied. See e.g., State v. Ellis, 10th Dist. No. 05AP-800, 2006-Ohio-421, ¶ 7 (appellant

made implied threat of physical harm to victim when he told her he had a gun, was on drugs

and needed the money which permits a reasonable inference of a threat of physical harm

sufficient for R.C. 2911.02[A][2]). We also note, once again, that Elsberry essentially

admitted at trial that he threatened Myers with physical harm, in order to get her to give him

the money, and therefore the jury could not have reasonably found that Elsberry merely had

used force against Myers to rob her.

       {¶ 31} Consequently, the trial court did not err in refusing to instruct the jury on robbery

by force.
                                               -9-
                                                                         Butler CA2011-12-221

       {¶ 32} In light of the foregoing, Elsberry's first assignment of error is overruled.

       {¶ 33} In his second and fourth assignments of error, Elsberry challenges the jury

instructions the trial court gave as to the lesser included offense of physical-harm robbery in

violation of R.C. 2911.02(A)(2). As to this offense, the trial court provided the following

instructions:

                Before you can find the defendant guilty of Robbery you must
                find beyond a reasonable doubt that on or about the [sic] August
                23, 2011, in Butler County, Ohio, the defendant in committing,
                attempting to commit or fleeing after committing or attempting to
                commit a theft offense, used or threatened physical harm against
                Kelli Myers.

                ***

                "Physical harm" to persons means any injury, illness, or other
                physiological impairment, regardless of its gravity or duration.

                While the State is not required to present proof of fear or
                apprehension on the part of the victim, evidence has been
                admitted to prove that Kelli Myers was put in fear. This evidence
                was offered by the State to prove that the defendant used or
                threatened physical harm. If you find that Kelli Myers was placed
                in fear and that her fear was reasonable under the circumstances
                and that it would cause a reasonable person to give up his or her
                property against his or her will, then you may find that the State
                has proved the element of threat of physical harm.

                The threat of violence, compulsion or constraint need not be
                explicit; rather, it can be implied from the perpetrator's demeanor
                and tone of voice.

       {¶ 34} In his fourth assignment of error, Elsberry argues the trial court committed plain

error by failing to instruct the jury on the proper mens rea for the physical-harm element of

robbery in violation of R.C. 2911.02(A)(2), which he asserts is "recklessness" by operation of

R.C. 2901.21(B). Elsberry, relying on State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624

(Colon I), reconsidered and limited in State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749

(Colon II) and State v. Ripperger, 12th Dist. No. CA2007-11-304, 2009-Ohio-925, contends

that he was prejudiced by the omission of a recklessness instruction because without it, the
                                               - 10 -
                                                                                         Butler CA2011-12-221

jury may have improperly treated the charge of physical-harm robbery as a strict liability

offense.1 We find Elsberry's argument unpersuasive.

         {¶ 35} Generally, "a defendant is entitled to have the jury instructed on all elements

that must be proved to establish the crime with which he is charged, and, where specific

intent or culpability is an essential element of the offense, a trial court's failure to instruct on

that mental element is error." State v. Adams, 62 Ohio St.2d 151, 153 (1980). However,

where a defendant fails to object to an allegedly improper jury instruction, the defendant

waives all but plain error with respect to the issuance of said instruction. Adams, 62 Ohio

St.2d at 153. "An alleged error is plain error only if the error is 'obvious,' and 'but for the

error, the outcome of the trial clearly would have been otherwise.'" State v. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, ¶ 108. "Notice of plain error 'is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.'" Id., quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

         {¶ 36} In the present case, Elsberry did not object to the court's failure to include an
                                                                           2
instruction on the appropriate mens rea as to the element of physical harm. Accordingly, we

review the issuance of this instruction for plain error. After a review of the record, we

conclude that even if the trial court was required to instruct the jury on the mens rea of

recklessness with respect to the physical harm element of robbery in violation of R.C.

2911.02(A)(2) and erred by not doing so, as Elsberry contends, the alleged error would not



1. We note that although Elsberry relies upon Colon and its progeny, he is not challenging the sufficiency of his
indictment. Rather, his challenge relates to the jury instructions as to the physical-harm robbery offense. The
failure to object to the jury instructions given by the trial court is reviewed for plain error. State v. Adams, 62 Ohio
St.2d 151, 153 (1980). Moreover, the decision in State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, made it
clear that structural-error analysis no longer applies where a defendant fails to object to a defective indictment
because "by failing to timely object to a defect in an indictment, a defendant waives all but plain error on appeal."
 Id. at ¶ 55. Accordingly, a plain error analysis is appropriate for this case.

2. Elsberry objected to including an instruction on R.C. 2911.02(A)(2) as a whole because he did not believe it
met the test in State v. Deem, 40 Ohio St.3d 205 (1988), for a lesser included offense. However, he did not
thereafter make any of the objections to the instruction that he now relies upon on appeal.
                                                         - 11 -
                                                                         Butler CA2011-12-221

have amounted to plain error. Elsberry admitted at trial that he wanted Myers to believe that

he had an actual firearm so that she would give him the money and that there would be

consequences if she did not, and thus essentially admitted his guilt on that offense.

       {¶ 37} Given the foregoing, Elsberry's fourth assignment of error is overruled.

       {¶ 38} In his second assignment of error, Elsberry also argues the trial court

committed plain error when providing these instructions as to a physical-harm robbery. He

contends that the instructions given improperly used the language and elements of robbery

by force in violation of R.C. 2911.02(A)(3), except that it substituted the term "physical harm"

for the term "force." As a result, Elsberry asserts that the trial court failed to properly define

an offense under R.C. 2911.02(A)(2) because its instruction on that offense failed to provide

all elements of physical-harm robbery and "add[ed] a broadly-worded element" not present in

that section, namely, "use of physical harm." He argues this "confusion of the elements" of

R.C. 2911.02(A)(2) and 2911.02(A)(3) created a possibility that he was convicted of physical-

harm robbery even though the jury did not find that the state had proven all of the elements

of that offense. Finally, he contends that the trial court erred by including a "fear and

apprehension" instruction in its physical-harm robbery instruction. We find these arguments

unpersuasive.

       {¶ 39} Elsberry has failed to convince us that any mistake the trial court made in

instructing the jury on the lesser included offense of physical-harm robbery clearly changed

the outcome of his trial. Id. The trial court's instruction on physical-harm robbery did not, as

Elsberry asserts, add "a broadly-worded element" not present in that subsection. The trial

court did not instruct the jury that "use of physical harm" was an element of the offense of

physical harm, but rather, that before they could find Elsberry guilty of physical-harm robbery,

they had to find that he "used or threatened physical harm" against Myers. This instruction

substantially follows the language of R.C. 2911.02(A)(2).
                                              - 12 -
                                                                         Butler CA2011-12-221

       {¶ 40} As to Elsberry's claim that the trial court committed plain error by including a

"fear and apprehension" instruction in its instructions to the jury, we note that while such an

instruction is a standard jury instruction with regard to a charge of force robbery in violation of

R.C. 2911.03(A)(3), it is not a standard instruction to a charge of physical-harm robbery in

violation of R.C. 2911.02(A)(2). However, the instruction given to the jury was relevant to the

fear Myers experienced during the robbery and why she believed that there would be

consequences if she did not comply with Elsberry's demand for money. It was also relevant

to the "theft" element of the charge of physical-harm robbery since the state was required to

establish that Myers gave Elsberry the money against her will. Additionally, even though part

of the jury instruction was taken from the definition of "force," the word "force" itself was not

included in the final instructions given to the jury and the instruction was relevant to the facts

of this case. In light of all the foregoing, Elsberry has failed to convince us that the

aforementioned portions of the trial court's jury instructions amounted to plain error.

       {¶ 41} As a result, Elsberry's second assignment of error is also overruled.

       {¶ 42} In his third assignment of error, Elsberry argues he was denied the effective

assistance of counsel because his trial counsel failed to object to the improper jury

instructions, as set forth in his second and fourth assignments of error. This argument lacks

merit. To establish a claim of ineffective assistance of counsel, a criminal defendant must

show that his defense counsel's performance fell below an objective standard of

reasonableness and that there is a reasonable probability that the outcome of his trial would

have been different but for his counsel's errors. Strickland v. Washington, 466 U.S. 668,

687-688, 694, 104 S.Ct. 2052 (1984). A "reasonable probability" exists when counsel's

errors are sufficient to undermine an appellate court's confidence in the verdict reached. Id.

at 694. Here, Elsberry cannot meet the prejudice prong of the Strickland standard, because

he admitted at trial that he intended to make Myers believe he had an actual firearm in his
                                               - 13 -
                                                                      Butler CA2011-12-221

possession at the time he robbed her and that he did so in order to get her to give him the

money, and therefore essentially admitted his guilt to the offense of physical-harm robbery in

violation of R.C. 2911.02(A)(2).

       {¶ 43} Accordingly, Elsberry's third assignment of error is overruled.

       {¶ 44} Judgment affirmed.


       RINGLAND and M. POWELL, JJ., concur.




                                            - 14 -
