[Cite as State v. Delawder, 2012-Ohio-1923.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

STATE OF OHIO,                                    :     Case No. 10CA3344
                                                  :
        Plaintiff-Appellee,                       :
                                                  :     DECISION AND
        v.                                        :     JUDGMENT ENTRY
                                                  :
LARRY DELAWDER                                    :
                                                  :     RELEASED 04/25/12

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Timothy Young, Ohio State Public Defender, and Kristopher A. Haines, Ohio State
Assistant Public Defender, Columbus, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     A jury found Larry Delawder guilty of various offenses stemming from an

incident in which he purportedly attempted to steal property from a parked vehicle and

ran when caught in the act. After the owner and two comrades chased him home,

Delawder allegedly stabbed and killed the owner and attempted to injure his comrades

with a metal bar. Delawder claims he opened the vehicle by mistake and acted in self-

defense and in defense of his family at various times during this incident. He now

appeals several of his convictions and sentences.

        {¶2}     Delawder contends that his convictions for aggravated felony murder,

aggravated robbery, and robbery were against the manifest weight of the evidence

because the State failed to establish that he committed or attempted to commit a theft

offense. Specifically, he argues that the jury lost its way in discrediting evidence that he
Scioto App. No. 10CA3344                                                                    2


mistakenly entered the truck. The State acknowledges it did not prove a theft actually

occurred. However, the State presented evidence that witnesses saw Delawder bent

over in the truck in a position from which he could rummage through its contents and

that he ran when caught in the act, i.e. evidence from which a jury could infer an

attempted theft occurred. We leave credibility determinations to the finder of fact. And

because the jury could reasonably return a guilty verdict based on the State’s version of

events, we cannot say that the jury clearly lost its way and created such a manifest

miscarriage of justice that we must reverse the convictions.

       {¶3}    Next, Delawder argues that the trial court committed plain error when it

failed to sua sponte instruct the jury on involuntary manslaughter as a lesser included

offense of the aggravated felony murder and felony murder charges. He also argues

that trial counsel rendered ineffective assistance by not requesting such an instruction.

However, Delawder failed to rebut the presumption that trial counsel made a strategic

decision to not request the instruction in hopes of obtaining a complete acquittal.

Likewise, a defendant may not rely on the plain error rule to evade the consequences of

his own trial strategy. Thus, we reject Delawder’s arguments.

       {¶4}    Delawder also complains that the court gave the jury erroneous

instructions on aggravated felony murder. In addition, he contends that trial counsel

rendered ineffective assistance by not objecting to these instructions. We agree some

of the complained of instructions might have confused the jury if read in isolation.

However, when read in context with the rest of the charge, the court provided the jury

with adequate instructions. And counsel had no duty to object to an appropriate

instruction.
Scioto App. No. 10CA3344                                                                    3


       {¶5}   In addition, Delawder argues that the trial court committed plain error

because it failed to merge his conviction for felony murder with his conviction for

felonious assault. He also contends that the court committed plain error because it

failed to merge his conviction for aggravated felony murder (predicated on aggravated

robbery) with his conviction for aggravated robbery. We agree with Delawder’s

contention that these pairs of offenses constitute offenses of similar import. Therefore,

we remand so the trial court can determine whether the offenses were committed

separately or with a separate animus and resentence Delawder accordingly.

       {¶6}   Finally, Delawder contends that trial counsel rendered ineffective

assistance regarding the charges for the felonious assault of the vehicle owner’s two

comrades by not objecting when the court referred to “deadly force” in its instruction on

the defense of another. Delawder claims the court should have instructed on the use of

“non-deadly force.” However, the evidence does not support an instruction on non-

deadly force. Therefore, trial counsel did not perform deficiently by failing to request

such an instruction.

                                         I. Facts

       {¶7}   A grand jury indicted Delawder on two counts of aggravated felony

murder, felony murder, aggravated robbery, robbery, and felonious assault, naming

Jotham Lee Parker as the victim for each count. The grand jury also indicted Delawder

on two counts of felonious assault, naming Kyle McCleese and Chad McGlone as

victims, and on other charges not relevant to this appeal.

       {¶8}   An abbreviated review of the evidence reveals that Delawder and two

cousins went to a bar called the Fish Bowl around 10:00 pm. Also at the bar that
Scioto App. No. 10CA3344                                                                   4


evening were regular patrons Parker (the decedent), McCleese, McGlone and Justin

Preston. Initially, a disturbance broke out involving another patron named Richard

Spencer and some of the other customers, possibly including Parker and/or his friends.

Eventually, Spencer had to be removed from the bar. Later, a bartender who had

served Delawder earlier that evening went outside to smoke and saw an individual she

identified as Delawder breaking into Parker’s vehicle. The bartender alerted Parker and

his friends, who confronted the individuals they felt were breaking into the truck. Upon

being confronted, Delawder and his companion fled the scene with Parker and his

comrades in hot pursuit. Delawder ran to the residence where he was staying with

relatives. A struggle ensued and Delawder mortally stabbed Parker with a knife while

the two men were engaged in a scuffle. Then Delawder ran into the house and his

relatives threatened to call the “cops” on Parker and his friends. Shortly after, Delawder

reappeared with a black object, later described as metal tire tool or “pipe,” and began

swinging it at his pursuers. Delawder did not hit anyone with the object but his attempts

caused the others to back off, and Delawder eventually disappeared into the house.

When the police arrived, they found Delawder hiding in a bathroom where he had

changed clothes and was attempting to shave his head.

       {¶9}   Delawder’s version of the events was that he entered Parker’s truck by

mistake, believing it to be his cousin’s truck, which he had ridden to the bar in. He

initially told police he ran because he felt the group chasing him was angry at him for

flirting with their women in the bar. However, at trial he claimed he ran because the men

chasing him had been involved in the earlier incident in the bar with Spencer. He also

claimed he acted in self- defense when he stabbed Parker, who was violently assaulting
Scioto App. No. 10CA3344                                                                      5


him in the yard of his relatives. He indicated the relatives felt threatened by Parker and

friends, so he went after them with the tire tool to protect his relatives. He testified he

“didn’t know why” he had started to shave his head.

       {¶10} More specific testimony appears where relevant in our analysis.

                                         C. Verdict

       {¶11} The jury found Delawder guilty on all nine counts of the indictment. When

the court sentenced him it merged the convictions for Count 2 (aggravated felony

murder) and Count 3 (felony murder) of the indictment with Count 1 (aggravated felony

murder). The court also merged the conviction for Count 5 (robbery) with Count 4

(aggravated robbery). This appeal followed.

                                  II. Assignments of Error

       {¶12} Delawder assigns the following errors for our review:

         I.   The trial court committed plain error when it failed to provide a jury
              instruction regarding the lesser included offense of involuntary
              manslaughter under R.C. 2903.04(A) to the charged offenses of
              aggravated murder and murder, and when the trial court failed to
              properly instruct the jury regarding its consideration of the mens rea
              and causation elements of the aggravated murder charges, in
              violation of Mr. Delawder’s Fifth, Sixth, and Fourteenth Amendment
              rights under the United States Constitution, and Section 10 and 16,
              Article I of the Ohio Constitution. (Dec. 22, 2009, Indictment; Jan.
              26, 2010, Bill of Particulars; Feb. 15, 2010, Request for Instructions
              to the Jury; State’s Exhibit 23; Tr. 275-302, 319-21, 353-65, 368-70,
              406-12, 557-83, 614-18, 1151-1242, 1249-50, 1308-36).

        II.   The trial court violated Mr. Delawder’s rights to due process and a
              fair trial when it entered judgments of conviction for robbery,
              aggravated robbery, and both counts of aggravated murder, when
              those judgments were against the manifest weight of the evidence,
              in violation of Mr. Delawder’s rights under the Fifth, Sixth, and
              Fourteenth Amendments to the United States Constitution, and
              Sections 10 and 16, Article I of the Ohio Constitution. (Dec. 22,
              2009, Indictment; Jan. 26, 2010, Bill of Particulars; Mar. 12, 2009,
              Sentencing Entry; State’s Exhibit 56; Tr. 207-74, 276-83, 308-09,
Scioto App. No. 10CA3344                                                                               6


                   312-18, 561, 565-66, 594-99, 761-68, 941-77, 987-1009, 1151-
                   1242, 1266-69).

            III.   The trial court committed reversible error when it failed to merge
                   the offense of felonious assault upon Mr. Parker under R.C.
                   2903.11(A)(2), with the offense of murder under R.C. 2903.02(B),
                   which was predicated upon the felonious assault upon Mr. Parker
                   under R.C. 2903.11(A)(2), and sentenced Mr. Delawder to multiple
                   sentences for allied offenses of similar import committed with a
                   single animus, in violation of R.C. 2941.25, and in violation of Mr.
                   Delawder’s Fifth, Sixth, and Fourteenth Amendment rights under
                   the United States Constitution, and Sections 10 and 16, Article I of
                   the Ohio Constitution. (Dec. 22, 2009, Indictment; Jan. 26, 2010,
                   Bill of Particulars; Mar. 12, 2010, Sentencing Entry; Tr. 275-302,
                   319-21, 353-65, 557-83, 1182-96, 1350-52).

           IV.     Mr. Delawder’s trial counsel rendered ineffective assistance of
                   counsel in violation of Mr. Delawder’s rights under the Fifth, Sixth,
                   and Fourteenth Amendment rights to the United States
                   Constitution, and Sections 10 and 16, Article I of the Ohio
                   Constitution. (Assignment of Error I; Feb. 15, 2010, Request for
                   Instructions to the Jury; Dec. 22, 2009, Indictment; Jan. 26, 2010,
                   Bill of Particulars; Mar. 12, 2010, Sentencing Entry; State’s Exhibit
                   1; State’s Exhibit 2; Tr. 295-301, 361-65, 388-99, 575-78, 612-14,
                   1010-1208, 1249-54, 1326-27).

            V.     The trial court committed reversible error when it failed to merge
                   the offense of aggravated robbery with the offense of aggravated
                   murder, and sentenced Mr. Delawder to multiple sentences for
                   allied offenses of similar import committed with a single animus, in
                   violation of R.C. 2941.25, and in violation of Mr. Delawder’s Fifth,
                   Sixth, and Fourteenth Amendment rights under the United States
                   Constitution, and Sections 10 and 16, Article I of the Ohio
                   Constitution. (Dec. 22, 2009, Indictment; Mar. 12, 2010,
                   Sentencing Entry; Tr. 207-302, 319-21, 353-65, 557-83, 1182-96).1

                                   III. Manifest Weight of the Evidence

          {¶13} In his second assignment of error, Delawder contends that his convictions

for robbery, aggravated robbery, and both counts of aggravated felony murder were

against the manifest weight of the evidence. “In determining whether a criminal

conviction is against the manifest weight of the evidence, an appellate court must
1
    This assignment of error was added by leave of the court after Delawder filed his initial brief.
Scioto App. No. 10CA3344                                                                     7


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.” State v. Brown, Athens App. No. 09CA3, 2009-Ohio-

5390, at ¶24, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541. A reviewing court “may not reverse a conviction when there is substantial

evidence upon which the trial court could reasonably conclude that all elements of the

offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58

Ohio St.3d 40, 42, 567 N.E .2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d 56,

526 N .E.2d 304, at paragraph two of the syllabus.

       {¶14} Even when acting as a thirteenth juror we must still remember that the

weight to be given evidence and the credibility to be afforded testimony are issues to be

determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 1995-Ohio-235,

652 N.E.2d 1000, citing State v. Grant, 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620

N.E.2d 50. The fact finder “is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. City of Cleveland (1984), 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (per curiam). Thus, we will only interfere if the fact

finder clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o

reverse a judgment of a trial court on the weight of the evidence, when the judgment

results from a trial by jury, a unanimous concurrence of all three judges on the court of

appeals panel reviewing the case is required.” Thompkins, supra, at paragraph four of

the syllabus, construing and applying Section 3(B)(3), Article IV of the Ohio Constitution.
Scioto App. No. 10CA3344                                                                    8


       {¶15} The jury found Delawder guilty of: 1.) robbery in violation of R.C.

2911.02(A)(2); 2.) aggravated robbery in violation of R.C. 2911.01(A)(1) and (A)(3); 3.)

aggravated murder in violation of R.C. 2903.01(B) predicated on the aggravated

robbery charge; and 4.) aggravated murder in violation of R.C. 2903.01(B) predicated

on the robbery charge. Before the jury could find Delawder guilty of any of these

crimes, it had to find that he committed or attempted to commit a theft offense. See

R.C. 2911.02(A)(2); R.C. 2911.01(A)(1) and (A)(3); R.C. 2903.01(B). Delawder

contends that the jury lost its way when it found that the State proved beyond a

reasonable doubt that he committed or attempted to commit a theft offense.

       {¶16} The State agrees the evidence does not support a finding that Delawder

actually committed a theft offense but argues that the evidence supports a finding of

attempted theft. A theft occurs when a person, “with purpose to deprive the owner of

property,” knowingly obtains or exerts control over the property “[w]ithout the consent of

the owner or person authorized to give consent[.]” R.C. 2913.02(A)(1). “Deprive”

means to “[w]ithhold property of another permanently * * *.” R.C. 2913.01(C)(1). R.C.

2923.02(A) outlines the requirements for a criminal “attempt”: “No person, purposely or

knowingly, and when purpose or knowledge is sufficient culpability for the commission

of an offense, shall engage in conduct that, if successful, would constitute or result in

the offense.” “A person is guilty of a criminal attempt where he or she purposely does

anything which is an act constituting a substantial step in a course of conduct planned

to culminate in the commission of the crime, with the conduct needing to be strongly

corroborative of the actor’s criminal purpose in order to constitute a substantial step.”

State v. Moore (Jan. 20, 1992), Scioto App. No. 91CA1966, 1992 WL 10117, at *2,
Scioto App. No. 10CA3344                                                                       9

citing State v. Green (1991), 58 Ohio St.3d 239, 240-241, 569 N.E.2d 1038.

       {¶17} Delawder contends that the “greater amount of the credible evidence

supported [his] assertion that he mistakenly entered Mr. Parker’s truck.” (Appellant’s Br.

24). He argues that testimony about him “rummaging” in Parker’s truck was

“speculative at best” because the witnesses who claimed to see him by the truck

admitted they could only see his legs. Delawder points out the fact that the truck was

parked near a crowded bar and that “it would make no sense for [him] to break into a

truck in the front of a crowded bar near closing time.” (Appellant’s Br. 24). He notes

that Tammy Miller, the bartender, testified he left the bar about 10-15 minutes before

her and that he “[c]ertainly * * * did not spend that amount of time breaking into a truck

that was parked near the bar’s front door.” (Appellant’s Br. 25). He points to testimony

contradicting Miller’s claim that he exited the bar through the Campbell Street door and

argues that it lends credence to his testimony that he exited the bar after Miller.

Delawder contends that “[o]bviously, it would make little sense to break into a vehicle

outside of a busy bar in the presence of the bartender.” (Appellant’s Br. 25). According

to Delawder, it makes more sense that a “drunk man who was not wearing his glasses

would mistakenly enter the wrong truck,” in light of the fact that his cousin had parked

his truck near Parker’s and Delawder’s other cousin was leaning against the truck.

(Appellant’s Br. 24, 25). And Delawder argues that “[a]mple evidence supported [his]

decision to run when the men exited the bar” (Appellant’s Br. 25) because he heard

Miller tell individuals “who had been involved in an altercation earlier that night that one

of their vehicles was being broken into.” (Appellant’s Br. 26).

       {¶18} The gist of Delawder’s argument is that his version of the events is more
Scioto App. No. 10CA3344                                                                  10

believable than the State’s. However, as we explained in State v. Murphy, Ross App.

No. 07CA2953, 2008-Ohio-1744, at ¶31:

      It is the trier of fact’s role to determine what evidence is the most credible
      and convincing. The fact finder is charged with the duty of choosing
      between two competing versions of events, both of which are plausible
      and have some factual support. Our role is simply to insure the decision is
      based upon reason and fact. We do not second guess a decision that has
      some basis in these two factors, even if we might see matters differently.

For the jury to conclude Delawder committed an attempted theft, it had to assess the

credibility of the State’s witnesses and accept their testimony. Having heard the

testimony and having observed the demeanor of the witnesses, the jury could choose to

believe all, part, or none of the testimony presented by any of the witnesses. State v.

Parish, Washington App. Nos. 05CA14 & 05CA15, 2005-Ohio-7109, at ¶15.

      {¶19} The jury chose to believe the State’s version of events, and we will not

substitute our judgment for that of the finder of fact under these circumstances. The

evidence reasonably supports the conclusion that Delawder entered Parker’s truck and

examined its contents with the purpose of taking Parker’s property, before being

interrupted. Miller testified that she saw Delawder bent over in the passenger side of

Parker’s truck and that he had a look on his face like “oh crap” when he stood up.

McCleese also testified that he saw Delawder leaning inside Parker’s truck and another

person on the driver’s side of the vehicle. McGlone testified to seeing Delawder and

another person who previously identified himself as Delawder’s cousin leaning inside

Parker’s truck. He testified that after the men acknowledged seeing him, they fled from

the truck. A number of witnesses testified that after the altercation at Delawder’s home,

he changed his clothes, hid behind a bathtub, and partially shaved his head. In

addition, members of law enforcement testified that Delawder told them the men at the
Scioto App. No. 10CA3344                                                                    11


bar chased him because of their jealousy over a woman – he did not mention the

incident with Spencer at the bar or that Miller mistakenly accused him of theft.

       {¶20} From the description the State’s witnesses gave of Delawder’s position in

the truck, his conduct upon being seen, and his inconsistent statements to law

enforcement and at trial, the jury could infer he was attempting to deprive Parker of

property in the truck. After reviewing the entire record, we cannot say that the jury lost

its way or created a manifest miscarriage of justice when it found Delawder attempted to

commit a theft offense. Because this finding could lay the foundation for his convictions

for aggravated felony murder, aggravated robbery, and robbery we overrule Delawder’s

second assignment of error.

                                    IV. Jury Instructions

       {¶21} In his first assignment of error, Delawder contends that the trial court erred

when it failed to: 1.) instruct the jury on a lesser included offense for both aggravated

felony murder and felony murder; and 2.) properly instruct the jury regarding the

aggravated felony murder charges. Generally, we use a de novo review to determine

whether the court’s jury instructions charge on all relevant questions of the law that the

evidence supports. Brown, supra, at ¶34. However, the actual wording and format are

within the trial court’s discretion. Id. Here, Delawder acknowledges that he failed to

object to these matters at the trial level and has forfeited all but plain error.

       {¶22} “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” Crim.R. 52(B). “A silent

defendant has the burden to satisfy the plain-error rule[,] and a reviewing court may

consult the whole record when considering the effect of any error on substantial rights.”
Scioto App. No. 10CA3344                                                                      12

State v. Davis, Highland App. No. 06CA21, 2007-Ohio-3944, at ¶22, citing United

States v. Vonn (2002), 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90.

       {¶23} For a reviewing court to find plain error: 1.) there must be an error, i.e. “a

deviation from a legal rule”; 2.) the error must be plain, i.e. “an ‘obvious’ defect in the

trial proceedings”; and 3.) the error must have affected “substantial rights,” i.e. it must

have affected the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27,

2002-Ohio-68, 759 N.E.2d 1240. Furthermore, the Supreme Court of Ohio has

admonished courts that notice of plain error under Crim.R. 52(B) 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 (1978), 53 Ohio St.2d 91, 372 N.E.2d

804, at paragraph three of the syllabus.

                               A. Lesser Included Offenses

       {¶24} Delawder contends that the trial court should have instructed the jury on

involuntary manslaughter as a lesser included offense of both aggravated felony murder

charges and the felony murder charge. In reviewing a trial court’s decision on whether

to give a jury instruction on a lesser included offense, we generally employ a two-tiered

analysis. See State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889.

First, we determine whether one offense is in fact a lesser included offense of the

charged offense using a three-part test. See id. at paragraph two of the syllabus, ¶26.

If we find that one offense is a lesser included offense of another, in the second tier of

the analysis we must determine whether the defendant was entitled to the instruction

based on the specific facts of the case. Id. at ¶13.

       {¶25} Even if we presume Delawder qualified for an involuntary manslaughter
Scioto App. No. 10CA3344                                                                     13


instruction under this test, we cannot find plain error in the court’s failure to instruct the

jury on this offense. “While a trial court does have a duty to include instructions on

lesser included offenses where they are appropriate, a defendant still retains the right to

waive such instructions.” Murphy, supra, at ¶35, citing State v. Clayton (1980), 62 Ohio

St.2d 45, 47, fn. 2, 402 N.E.2d 1189 (per curiam). Thus, Delawder could make the

tactical decision not to request an instruction on lesser included offenses. See id.

       {¶26} As we explained in Murphy at ¶¶36-37:

               Generally, a failure to request a jury instruction on a lesser included
       offense is presumed to be a matter of trial strategy. State v. Teets,
       Pickaway App. No. 02CA1, 2002-Ohio-6799, at ¶26; State v. Clark,
       Lawrence App. No. 03CA18, 2004-Ohio-3843, at ¶15, citing State v. Griffie
       * * *, 74 Ohio St.3d 332, 658 N.E.2d 764, 1996-Ohio-71; see, also, State
       v. Riley, Franklin App. No. 06AP-P1091, 2007-Ohio-4409, at ¶5 (holding
       that, in light of this presumption, the failure to request an instruction on a
       lesser-included offense does not by itself establish plain error or the
       ineffective assistance of counsel); and State v. Davis, Summit App. No.
       21794, 2004-Ohio-3246, at ¶18 (“Defendant in this case has offered no
       evidence showing that trial counsel’s decision not to request those
       instructions was anything other than sound trial strategy aimed at
       acquiring a complete acquittal.”).

              A defendant may not rely on the plain error rule to evade the
       consequences of his own trial strategy. State v. Claytor (1991), 61 Ohio
       St.3d 234, 240, 574 N.E.2d 472 (“What appears to have been a tactical
       decision [not to request the lesser included offense in jury instructions] in
       this case during the trial cannot now be converted into judicial error.”);
       State v. Noggle, 140 Ohio App.3d 733, [745], 2000-Ohio-1927, 749 N.E.2d
       309 (“[W]e note that plain error cannot be used to negate a deliberate,
       tactical decision by trial counsel.”). * * *

See, also, State v. Viers, Jefferson App. No. 01 JE 19, 2003-Ohio-3483, at ¶48 (“By

relying on the plain error doctrine, appellant basically contends that the trial court should

have sua sponte instructed the jury on the lesser included offense * * *. * * * “[I]f it is not

ineffective assistance of counsel, then how can it be error by the court; is a court to

advise counsel that a lesser included instruction may be a wise trial tactic?”).
Scioto App. No. 10CA3344                                                                     14


       {¶27} Delawder has not rebutted the presumption of trial strategy. See our

rejection of Delawder’s claim that trial counsel rendered ineffective assistance of

counsel by not requesting an involuntary manslaughter instruction in Section VI.A.

below. He cannot complain that the trial court committed plain error where counsel

apparently was seeking an acquittal rather than inviting conviction on a lesser offense.

Accordingly, we find no error in the trial court’s failure to instruct the jury on involuntary

manslaughter. In the absence of error, a plain error argument becomes meritless.

                            B. Aggravated Murder Instructions

       {¶28} Delawder also contends that the trial court committed plain error by

improperly instructing the jury on the aggravated felony murder charges. The court

gave the jury the following instructions:

       Purpose to cause death is an essential element to the offense of
       Aggravated Murder.

       A person acts purposely when it is his specific intention to cause a certain
       result. It must be established in this case that at the time in question there
       was present in the mind of the defendant a specific intention to cause
       death.

       When the central idea, essence, gist of the offense is a prohibition
       against or forbidding of conduct of a certain nature, a person acts
       purposely if his specific intention was to engage in conduct of that
       nature, regardless of what he may have intended to accomplish by
       his conduct.

       Purpose is a decision of the mind to do an act with a conscious objective
       of producing a specific result or engage in specific conduct. To do an act
       purposely is to do it intentionally and not accidentally. Purpose and intent
       mean the same thing. The purpose with which a person does an act is
       known only to himself, unless he expresses it to others or indicates it by
       his conduct.

       The purpose with which a person does an act or brings about a result is
       determined from the manner in which it is done, the weapon used, and all
       the facts and circumstances in evidence.
Scioto App. No. 10CA3344                                                                     15



       You may infer a purpose to cause the death of another where the natural
       or probable consequences of the defendant’s act is [sic] to produce death
       in light of all the surrounding circumstances. Such circumstances include
       the weapon used and its capability to destroy life. If you find that the
       defendant used a deadly weapon against another in a manner
       calculated to destroy life, the purpose to cause death may be, but [is]
       not required to be, inferred from the use of the weapon. Whether an
       inference is made rests entirely with you.

       The State charges that the act of the defendant caused death to Jotham
       Lee Parker. Cause is an essential element to the offense. Cause is an
       act or failure to act which in the nature and continuous sequence directly
       produces death or physical harm to a person, and without which is [sic]
       would not have occurred.

       The defendant’s responsibility is not limited to the immediate or
       most obvious result of the defendant’s act or failure to act. * * *

                                            ***

       The defendant is also responsible for the natural and foreseeable
       consequences or results that follow in the ordinary course of events
       from the act or failure to act.

(Emphasis added).

       {¶29} Delawder contends that the court erred when it gave the jury the “central

idea, essence, gist of the offense” instruction set forth above. Specifically, he argues

that by instructing the jury that a person acts purposefully “regardless of what he may

have intended to accomplish by his conduct” the court “thwarted the jury’s duty to find

that [he] specifically intended to cause death before it could return guilty verdicts for

aggravated murder.” (Appellant’s Br. 17).

       {¶30} The Supreme Court of Ohio has characterized similar language as

“confusing in a murder prosecution which requires ‘purpose.’” State v. Wilson, 74 Ohio

St.3d 381, 393, 1996-Ohio-103, 659 N.E.2d 292. However, we must remain mindful of

the fact that reviewing courts must consider jury instructions in their entirety. State v.
Scioto App. No. 10CA3344                                                                       16

Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, at paragraph four of the syllabus.

“Ordinarily, reversible error does not consist of misstatements or ambiguities in only part

of the instructions.” State v. Pettit (July 5, 2000), Vinton App. No. 99CA529, 2000 WL

897993, at *3. The Wilson Court rejected an argument that the trial court committed

plain error by using the “gist of the offense” language in an aggravated murder trial, in

part because “[i]n the context of all the instructions given the jury, the court provided

adequate instructions on the element of specific intent to kill.” See Wilson at 393.

       {¶31} Like the Wilson Court, we acknowledge that when read in isolation, the

“gist of the offense” language is confusing. However, when read in context with the rest

of the charge, it is clear the court provided the jury with adequate instructions on the

specific intent to cause death. The court specifically told the jury that “Purpose to cause

death is an essential element to the offense of Aggravated Murder.” (Emphasis added).

The court also told that jury that: “It must be established in this case that at the time in

question there was present in the mind of the defendant a specific intention to cause

death.” Thus, the “gist of offense language” instruction did not amount to plain error in

light of all the instructions given to the jury. Therefore, we reject Delawder’s argument.

       {¶32} Next, Delawder contends that the court erred when it instructed the jury

that: “If you find that the defendant used a deadly weapon against another in a manner

calculated to destroy life, the purpose to cause death may be, but [is] not required to be,

inferred from the use of the weapon. Whether an inference is made rests entirely with

you.” Delawder complains that the court should have told the jury that an inference, if

made, is not conclusive. Delawder cites State v. Stallings, 89 Ohio St.3d 280, 291,

2000-Ohio-164, 731 N.E.2d 159, which indicates such language would accurately
Scioto App. No. 10CA3344                                                                   17


reflect the law. Id. at 291. However, the court did not hold that the omission of a

specific statement that the inference is not conclusive constitutes reversible error. And

again, we cannot read the trial court’s statements in isolation. See Price, supra, at

paragraph four of the syllabus.

       {¶33} Prior to instructing the jury about the permissible inference from use of a

deadly weapon, the court specifically told the jury that: “The purpose with which a

person does an act or brings about a result is determined from the manner in which it is

done, the weapon used, and all the facts and circumstances in evidence.” (Emphasis

added). The court also instructed the jury that: “You may infer a purpose to cause the

death of another where the natural or probable consequences of the defendant’s act is

[sic] to produce death in light of all the surrounding circumstances. Such circumstances

include the weapon used and its capability to destroy life.” (Emphasis added). When

read in context, the charge sufficiently conveyed to the jury that the inference was not

conclusive but just one factor for the jury to consider along with all of the other facts and

circumstances in evidence. See State v. Davenport (Sept. 24, 1992), Richland App. No.

CA-2851, 1992 WL 274729, at *5-6. Thus, we find no error in the court’s instruction

because the instructions as a whole conveyed the appropriate law.

       {¶34} Finally, Delawder complains that the court erroneously told the jury that

“[t]he defendant’s responsibility is not limited to the immediate or most obvious result of

the defendant’s act or failure to act” and that “[t]he defendant is also responsible for the

natural and foreseeable consequences or results that follow in the ordinary course of

events from the act or failure to act.” Delawder argues that this language permitted the

jury to convict him based on a finding of less than specific intent to cause death. The
Scioto App. No. 10CA3344                                                                     18


Supreme Court of Ohio has cautioned that the usefulness of this language in murder

cases is questionable given its “potential to mislead jurors” on the issue of intent. State

v. Getsy, 84 Ohio St.3d 180, 196, 1998-Ohio-533, 702 N.E.2d 866, quoting State v.

Burchfield, 66 Ohio St.3d 261, 263, 1993-Ohio-44, 611 N.E.2d 819.

       {¶35} However, the Court has declined to find plain error based on a

foreseeability instruction when, after viewing a charge in its entirety, the Court found

other instructions limited its prejudicial effect, i.e. the error was not outcome

determinative. Getsy at 196; State v. Frazier, 73 Ohio St.3d 323, 330-331, 1995-Ohio-

235, 652 N.E.2d 1000. Here, the trial court gave explicit instructions on purpose and

specific intent prior to giving the foreseeability instruction. These instructions limited

any prejudicial effect the foreseeability instruction may have had, and we find no plain

error in the trial court’s instructions because they did not impact the outcome of the

proceeding.

       {¶36} In his appellate brief, Delawder indicates that the combined effect of the

three instructions he complains of “added substantial confusion” to the charge on

multiple occasions and “substantially lessened the jury’s duty to find that [he] purposely

caused Mr. Parker’s death before it could find [him] guilty of aggravated murder.”

(Appellant’s Br. 20). However, as already noted when the charge is read in its entirety

either no error occurred or the other instructions limited any prejudicial effect. Because

Delawder has failed to show that the court committed a plain error, we overrule the

second assignment of error.

                                         V. Merger

       {¶37} In his third and fifth assignments of error, Delawder contends that the trial
Scioto App. No. 10CA3344                                                                 19


court committed plain error when it failed to merge certain convictions at sentencing.

The Double Jeopardy Clause of the United States Constitution prohibits multiple

punishments for the same offense. Monge v. California (1998), 524 U.S. 721, 727-728,

118 S.Ct. 2246, 141 L.Ed.2d 615. See, also, Section 10, Article I of the Ohio

Constitution. To this end, the Ohio General Assembly enacted Ohio’s multiple-count

statute, which subjects “allied offenses of similar import” to the judicial concept of

“merger” at sentencing. R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus
       as to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶38} The question of whether offenses should merge under R.C. 2941.25

ordinarily presents a question of law we review de novo. State v. Love, Gallia App. No.

10CA7, 2011-Ohio-4147, at ¶34. But because Delawder failed to object under R.C.

2941.25 at the sentencing hearing, he has forfeited all but plain error. See Section IV.

for an explanation of this standard. However, the Supreme Court of Ohio has

previously held that imposition of multiple sentences in violation of R.C. 2941.25

constitutes plain error. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, at ¶31.

       {¶39} Through a series of opinions the Supreme Court of Ohio has advised and

re-advised lower courts on the difficult task of applying Ohio’s multiple-count statute to

determine which criminal convictions require merger. Recently, in the plurality decision
Scioto App. No. 10CA3344                                                                              20

of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Court

expressly overruled its then current test for merger. Under Johnson the trial court must

first determine “whether it is possible to commit one offense and commit the other with

the same conduct, not whether it is possible to commit one without committing the

other.” Id. at ¶48. If the offenses are so alike that the same conduct can subject the

accused to potential culpability for both, they are “of similar import” and the court must

proceed to the second step. The court must then determine whether the offenses in

fact were committed by the same conduct, i.e. committed as a single act with a single

animus. Id. at ¶49. If so, merger is necessary. However, if the offenses resulted from

separate acts or were performed with a separate animus, or if the commission of one

offense will never result in the commission of the other, the offenses will not merge. Id.

at ¶51.

                            A. Felony Murder and Felonious Assault

        {¶40} In Count 7 the jury found Delawder guilty of committing felonious assault

on Parker under R.C. 2903.11(A)(2) by stabbing him with a knife. The jury also found

Delawder guilty of felony murder in Count 3 under R.C. 2903.02(B), predicated on

Delawder’s commission of the felonious assault offense in Count 7.2 In his third

assignment of error, Delawder contends that the trial court should have merged these

convictions. The State concedes error.

        {¶41} It is apparent the offenses are of similar import. Because felonious

2
  The grand jury indicted Parker on three counts of felonious assault, naming a different victim in each
count. The indictment does not specifically state which of these three counts served as the predicate
offense for the murder charge. However, it is apparent that the murder charge is predicated on the
felonious assault of Parker. To find felony murder under R.C. 2903.02(B), the jury had to find that
Delawder caused the death of Parker “as a proximate result of the offender’s committing or attempting to
commit” felonious assault. The alleged felonious assault on Parker with a knife is the only charge that
would satisfy this standard. Delawder’s alleged felonious assault of McCleese and McGlone by use of a
metal bar was clearly not a proximate cause of Parker’s death.
Scioto App. No. 10CA3344                                                                 21


assault was the predicate offense for the felony murder charge it was clearly possible

for Delawder to commit both offenses with the same conduct, i.e. stabbing Parker. See

State v. Lewis, Montgomery App. No. 23850, 2011-Ohio-1411, at ¶112. Even though

felony murder and the predicate felony (felonious assault) are offenses of similar import,

Delawder could still be sentenced for both crimes if Delawder committed the crimes

“separately or with a separate animus.” See R.C. 2941.25(B). Delawder asks us to find

that the offenses were committed at the same time and with the same animus.

However, we believe this matter should first be considered by the trial court. See

generally State v. Lewis, Scioto App. No. 08CA3226, 2008-Ohio-6691, at ¶11.

      {¶42} Though Delawder’s argument does not specifically mention it, in

sentencing him the trial court already merged his conviction for felony murder (Count 3)

and aggravated felony murder (Count 2) with the other aggravated felony murder

conviction (Count 1). So, the court has already found that Counts 1, 2, and 3 are

offenses of similar import and were committed at the same time or with the same

animus. Now it appears the felonious assault conviction in Count 7 would also be an

offense of similar import in relation to Count 1. On remand, the court must consider

whether the felonious assault was committed separately or with a separate animus from

the aggravated felony murder charge in Count 1. If the offenses were committed

separately or with a separate animus, they do not merge. And the court must

separately sentence Delawder on his conviction for the felonious assault, i.e. Count 7.

However, if the court finds the felonious assault was committed at the same time and

with the same animus as Count 1, then Count 7 would merge, and the State would have

to elect whether to sentence Delawder on Count 1 or Count 7. See State v. Whitfield,
Scioto App. No. 10CA3344                                                                   22


124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at paragraph one of the syllabus

(“The state retains the right to elect which allied offense to pursue on sentencing on a

remand to the trial court after appeal.”). And as we explain below, our resolution of

Delawder’s fifth assignment of error could also impact the court’s sentencing for these

offenses.

                B. Aggravated Felony Murder and Aggravated Robbery

       {¶43} In addition, in Count 4 the jury found Delawder guilty of aggravated

robbery in violation of R.C. 2911.01(A)(1) and (3). The jury also found Delawder guilty

in Count 1of aggravated felony murder under R.C. 2903.01(B), predicated on

Delawder’s commission of the aggravated robbery offense. In his fifth assignment of

error, Delawder contends that the trial court should have merged these convictions.

Delawder sought leave to add this assignment of error after he filed his appellate brief.

We granted his request and gave the State 10 days to respond. The State has not

done so.

       {¶44} Again, it is apparent these offenses are of similar import. Because

aggravated robbery was the predicate offense for the aggravated felony murder charge

it clearly was possible for Delawder to commit both offenses with the same conduct.

See State v. Osman, Athens App. No. 09CA36, 2011-Ohio-4626, ¶32 (finding that

felony murder, predicated on aggravated robbery, and aggravated robbery were

offenses of similar import). Likewise, even though aggravated felony murder and the

predicate felony (aggravated robbery) are offenses of similar import, Delawder may still

be sentenced for both crimes. However, in order to have the trial court sentence him for

both crimes, the State must show that Delawder committed the crimes “separately or
Scioto App. No. 10CA3344                                                                 23


with a separate animus.” See R.C. 2941.25(B). Delawder urges us to decide this issue

in his favor. But as we noted above, we believe this matter should first be considered

by the trial court. See generally Lewis, supra, at ¶11.

       {¶45} In a footnote, Delawder recognizes that the trial court already merged

certain offenses for sentencing but does not address the impact that has on our

resolution of this assignment of error. In sentencing him, the trial court already merged

his conviction for robbery (Count 5) with aggravated robbery (Count 4). It is apparent

that the court has already found that Counts 4 and 5 are offenses of similar import and

were committed at the same time or with the same animus. Thus the robbery charge in

Count 5 is an offense of similar import in relation to the aggravated felony murder

charge (Count 1) that is predicated on the aggravated robbery.

       {¶46} On remand, the court must consider whether the aggravated felony

murder in Count 1 was committed separately or with a separate animus from the

aggravated robbery in Count 4. If the offenses were committed separately or with a

separate animus, they do not merge.

       {¶47}    If the court finds the aggravated felony murder was committed at the

same time as the aggravated robbery and with the same animus, Counts 1 and 4 would

merge. But depending on the outcome of our other remand order, Count 1 might also

merge with Count 7. Thus, Counts 1, 4, and possibly 7 would all merge for sentencing.

So the court would have to allow the State to re-elect which offense to pursue in

resentencing.

       {¶48} Accordingly we sustain Delawder’s third and fifth assignments of error and

remand with the instructions outlined above.
Scioto App. No. 10CA3344                                                                   24


                           VI. Ineffective Assistance of Counsel

       {¶49} In his fourth assignment of error, Delawder contends that trial counsel

rendered ineffective assistance. To prevail on a claim of ineffective assistance of

counsel, an appellant must show that: 1.) his counsel’s performance was deficient; and

2.) the deficient performance prejudiced his defense so as to deprive him of a fair trial.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, at ¶205,

citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674. To establish deficient performance, an appellant must show that trial counsel’s

performance fell below an objective level of reasonable representation. State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶95. To establish

prejudice, an appellant must show a reasonable probability exists that, but for the

alleged errors, the result of the proceeding would have been different. Id. The

appellant has the burden of proof on the issue of counsel’s ineffectiveness because a

properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d

377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶62.

                                A. Lesser Included Offenses

       {¶50} Delawder contends that trial counsel should have requested a jury

instruction or objected to the trial court’s failure to instruct the jury on involuntary

manslaughter as a lesser included offense of the aggravated felony murder and felony

murder charges. Even if we presume Delawder qualified for such an instruction, as we

already noted, a failure to request a jury instruction on a lesser included offense is

presumed to be a matter of trial strategy, and, therefore, does not establish ineffective

assistance of counsel. Murphy, supra, at ¶36, citing Teets, supra, at ¶26. See, also,
Scioto App. No. 10CA3344                                                                  25

Griffie, supra, at 333 (“The record may reveal that trial counsel did not request a certain

jury instruction, but, without more, the court of appeals would have to guess as to why

trial counsel did not make the request. Failure to request instructions on lesser-included

offenses is a matter of trial strategy and does not establish ineffective assistance of

counsel.”).

       {¶51} Delawder claims that “it cannot be said there was a strategic decision to

forego the instruction * * *.” (Appellant’s Br. 33). Delawder vaguely argues that the

“necessity of the instruction was apparent upon hearing the evidence adduced at trial * *

*.” (Appellant’s Br. 34). He also argues that a conviction for involuntary manslaughter

would have been an “appropriate outcome.” (Appellant’s Br. 34). But even if true, that

fact would not preclude the possibility of counsel making a strategic decision to use an

“all or nothing” approach (guilty or not guilty on the charged offenses) rather than giving

the jury the option of convicting on a lesser included offense.

       {¶52} Delawder also claims that “trial counsel previously indicated that Mr.

Delawder wanted the instruction to be given.” However, counsel merely mentioned the

possibility of an involuntary manslaughter instruction. The fact that counsel recognized

this possibility but ultimately did not request the instruction only bolsters the

presumption that counsel made a strategic decision to use an “all or nothing” approach.

Therefore, we reject Delawder’s argument that trial counsel was ineffective for failing to

request a jury instruction on the lesser included offense of involuntary manslaughter.

                      B. Aggravated Felony Murder Jury Instructions

       {¶53} Delawder also argues that trial counsel should have objected to the trial

court’s instructions on aggravated felony murder that he complained of in his first
Scioto App. No. 10CA3344                                                                    26


assignment of error. However, we already determined that the trial court did not commit

plain error by giving the “gist of the offense” instruction because it was not outcome

determinative. See Section IV.B.     He also makes a similar complaint about the lack of

an objection to the inference instruction. And he complains about the lack of an

objection to the foreseeability instruction. Again we found no prejudicial impact on the

outcome of the trial. Accordingly, there can be no ineffective assistance in the lack of

an objection on any of these instructions because of the lack of prejudice.

                                   C. Defense of Family

       {¶54} Delawder was charged with the felonious assault of McCleese and

McGlone. For these charges, the trial court instructed the jury on the defense of

another. However, Delawder complains that trial counsel should have objected when

the court instructed the jury on the use of deadly force, instead of non-deadly force, to

defend another.

       {¶55} “The proper standard for determining in a criminal case whether a

defendant has successfully raised an affirmative defense under R.C. 2901.05 is to

inquire whether the defendant has introduced sufficient evidence, which, if believed,

would raise a question in the minds of reasonable men concerning the existence of

such issue.” State v. Melchior (1978), 56 Ohio St.2d 15, 381 N.E.2d 195, at paragraph

one of the syllabus. We review this issue de novo. See Goldfuss v. Davidson, 79 Ohio

St.3d 116, 124, 1997-Ohio-401, 679 N.E.2d 1099, citing Murphy v. Carrollton Mfg. Co.

(1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (“In reviewing a record to ascertain

whether sufficient evidence exists to support the giving of an instruction, an appellate

court should determine whether the record contains evidence from which reasonable
Scioto App. No. 10CA3344                                                                   27


minds might reach the conclusion sought by the instruction.”) (Emphasis added). The

trial court, as matter of law, cannot give a jury instruction on an affirmative defense if the

defendant fails to meet his initial burden. State v. Powell (Sept. 29, 1997), Ross App.

No. 96CA2257, 1997 WL 602864, at *1, citing State v. Reedy (Dec. 11, 1996), Jackson

App. No. 96CA782, 1996 WL 721072.

       {¶56} Deadly force “means any force that carries a substantial risk that it will

proximately result in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk”

is “a strong possibility, as contrasted with a remote or significant possibility, that a

certain result may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).

“Defense of another is a variation of self-defense.” State v. Moss, Franklin App. No.

05AP-610, 2006-Ohio-1647, at ¶13. And in the context of self-defense, we have found

that “a deadly-force, self-defense instruction is appropriate when physical harm was

inflicted by means of a deadly weapon or dangerous ordnance.” State v. Hansen,

Athens App. No. 01CA15, 2002-Ohio-6135, at ¶29.

       {¶57} Undoubtedly the metal “pipe” that Delawder used qualifies as a “deadly

weapon or dangerous ordnance.” The jury had to make such a finding to conclude

Delawder was guilty of the felonious assault charges under R.C. 2903.11(A)(2), and

Delawder implicitly admitted that by raising an affirmative defense to the charges. See

Powell at *2, quoting State v. Roy (Mar. 27, 1996), Adams App. No. 95CA590, 1996 WL

148602 (“An affirmative defense is one in which the defendant admits the elements of

the crime but seeks to prove some additional fact or facts that absolves the defendant of

guilt.”). Moreover, Delawder acknowledged that he might have swung the pipe at the

men who chased him, i.e. McCleese and McGlone, testifying: “[I]f I swung the pipe at
Scioto App. No. 10CA3344                                                                  28


them, I swung at them.”

       {¶58} In addition, McCleese testified that after stabbing Parker, Delawder came

after him and Parker with a tire tool of some kind. McCleese testified: “[A]nd as he gets

to us, he’s getting ready to swing it and I pull [Parker] down and duck and he swings

right over our heads.” McGlone testified that when Delawder swung at Parker and

McCleese, “he was swinging about neck high[,]” and they had to duck. When McGlone

shouted to distract Delawder, he turned and came after McGlone. According to

McGlone, Delawder got close enough to swing at him once. Preston also testified that

Delawder swung a metal object at McCleese and came “within probably inches” of

hitting him. In addition, Preston saw Delawder running toward McGlone.

       {¶59} Thus, evidence shows that after stabbing Parker in the head, Delawder

attempted to swing a deadly weapon at the heads of Parker and McCleese, and then he

immediately ran and tried to swing the same object at McGlone. Clearly, if one swings

a metal bar at another person, particularly when aimed at the head, there is a strong

possibility that action will proximately result in the person’s death.

       {¶60} Delawder did not present any evidence from which reasonable jurors

would conclude his actions constituted the use of non-deadly force. Contrary to

Delawder’s argument, the fact that he missed McCleese and McGlone does not prove

he used non-deadly force – Delawder’s argument confuses the kind of force used with

the results. Delawder also argues the non-deadly force instruction was warranted

because it was “more reasonable to instruct the jury that [he] believed that his family

was in danger of bodily harm, as opposed to death or great bodily harm.” (Appellant’s

Br. 31). However, the level of the perceived threat is relevant in determining what level
Scioto App. No. 10CA3344                                                                   29


of force a defendant is justified in using to defend another – not in characterizing the

defendant’s actual use of force as deadly or non-deadly.

       {¶61} The evidence supports the defense of another instruction containing a use

of deadly force component but not an instruction on non-deadly force. Because

Delawder was not entitled to an instruction on non-deadly force, counsel was not

deficient for failing to perform the futile act of seeking such an instruction. See State v.

Blevins, Scioto App. No. 10CA3353, 2011-Ohio-3367, at ¶30. We reject Delawder’s

fourth assignment of error.

                                      VII. Conclusion

       {¶62} We reject Delawder’s first, second, and fourth assignments of error. We

sustain his third and fifth assignments of error and remand for further proceedings

consistent with this opinion.

                                                        JUDGMENT AFFIRMED IN PART,
                                                                REVERSED IN PART,
                                                             AND CAUSE REMANDED.
Scioto App. No. 10CA3344                                                                 30




Kline, J., concurring.

       {¶63} I concur in judgment and opinion with the following exception. In my view,

we should review whether the evidence at trial warrants a particular jury instruction

under an abuse of discretion standard. See State v. Fulmer, 117 Ohio St.3d 319, 2008-

Ohio-936, 883 N.E.2d 1052, ¶ 72 (“[T]he trial judge is in the best position to gauge the

evidence before the jury and is provided the discretion to determine whether the

evidence adduced at trial was sufficient to require an instruction.”); Accord State v.

Mitts, 81 Ohio St.3d 223, 228, 690 N.E.2d 522 (1998); State v. Wolons, 44 Ohio St.3d

64, 68, 541 N.E.2d 443 (1989); State v. Gary, 1st Dist. No. C-090643, 2010-Ohio-5321,

¶ 23; State v. Reese, 2d Dist. No. 22907, 2009-Ohio-5046, ¶ 34; State v. Chaney, 3d

Dist. No. 13-07-30, 2008-Ohio-3507, ¶ 38; State v. Carter, 4th Dist. No. 10CA3169,

2010-Ohio-6316, ¶ 51; State v. Cutts, 5th Dist. No. 2008CA79; 2009-Ohio-3563, ¶ 72;

State v. Jones, 6th Dist. No. S-08-034, 2010-Ohio-1780, ¶ 20; State v. Phipps, 7th Dist.

No. 04 MA 52, 2006-Ohio-3578, ¶ 10; State v. Sekic, 8th Dist. No. 95679, 2011-Ohio-

4809, ¶ 34; State v. Smith, 9th Dist. No. 23542, 2007-Ohio-5119, ¶ 9; State v. Peterson,

10th Dist. No. 09AP-34, 2009-Ohio-5088, ¶ 15; State v. Dukes, 11th Dist. No. 2010-P-

27, 2011-Ohio-6849, ¶ 45; State v. Tucker, 12 Dist. No. CA2010-10-263, 2012-Ohio-

139, ¶ 31.
Scioto App. No. 10CA3344                                                                    31




                                    JUDGMENT ENTRY

      It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART
and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion with Opinion.


                                            For the Court


                                            BY: ________________________________
                                                William H. Harsha, Judge



                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
