lesser included instruction in Ohio

2017State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the syllabus.”) 12 {¶45} Thus, the trial judge properly denied a lesser-included instruction of sexual imposition for the count four gross sexual imposition charge involving K.M. {¶46} Appellant’s first assignment of error is without merit. {¶47} In his second assignment of error, appellant maintains his conviction is against the manifest weight of the evidence. {¶48} As this court stated in State v. Schlee, 11th Dist.

2017State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the syllabus.”) 9 {¶33} Thus, the trial judge properly denied a lesser-included instruction of attempted rape and/or sexual battery for the count two rape charge involving S.M. {¶34} Regarding K.M., R.C. 2907.05, “Gross sexual imposition,” states: {¶35} “(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: {¶36} “(1) The of

2021Nonetheless, since the conviction is supported by the evidence with Williams acting as a principal, this issue is moot. {¶37} The third assignment of error is without merit. {¶38} In his fourth assignment of error, Williams argues that trial counsel was ineffective by failing to request a lesser included instruction for the Robbery offense given his foregoing argument that there was no testimony as to the specific nature of the threat of violence and the conduct would more properly fit the requirements for a third-degree felony. {¶39} To demonstrate ineffective assistance of counsel, a defenda

2021Nonetheless, since the conviction is supported by the evidence with Williams acting as a principal, this issue is moot. {¶37} The third assignment of error is without merit. {¶38} In his fourth assignment of error, Williams argues that trial counsel was ineffective by failing to request a lesser included instruction for the Robbery offense given his foregoing argument that there was no testimony as to the specific nature of the threat of violence and the conduct would more properly fit the requirements for a third-degree felony. {¶39} To demonstrate ineffective assistance of counsel, a defenda

2006The theft statute, R.C. 2913.02 , states, in pertinent part, that "[n]o person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: * * * (4) By threat." {¶ 8} The Ohio Supreme Court has stated that theft by threat is not restricted to physical harm and does not involve the robbery component of "the use of force or the immediate use of force." State v. Davis (1983), 6 Ohio St.3d 91 , 95-96 (possible that jury could find that accused's conduct amounted only to a "threat of disagreea

1999A court is required to provide a lesser included instruction to a jury when: the trier of fact could reasonably reject an affirmative defense and could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on remaining elements, which by themselves would sustain conviction upon a lesser included offense[.] State v. Davis (1983), 6 Ohio St.3d 91 , paragraph two of the syllabus, following State v. Wilkins (1980), 64 Ohio St.2d 382 , 384 .

2013“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.” Long at paragraph three of the syllabus. 9 {¶38} Further, regarding Whitman’s assertion that counsel was ineffective by failing to object to the lack of a lesser included instruction, we evaluate an ineffectiveness claim under the two-prong Strickland test as described above. {¶39} “[I]n determining whether an offense is a lesser included offense of another, a court shall consider whether one offense carries a greater penalty

2013“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.” Long at paragraph three of the syllabus. 9 {¶38} Further, regarding Whitman’s assertion that counsel was ineffective by failing to object to the lack of a lesser included instruction, we evaluate an ineffectiveness claim under the two-prong Strickland test as described above. {¶39} “[I]n determining whether an offense is a lesser included offense of another, a court shall consider whether one offense carries a greater penalty

1999A court is required to provide a lesser included instruction to a jury when: the trier of fact could reasonably reject an affirmative defense and could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on remaining elements, which by themselves would sustain conviction upon a lesser included offense[.] State v. Davis (1983), 6 Ohio St.3d 91 , paragraph two of the syllabus, following State v. Wilkins (1980), 64 Ohio St.2d 382 , 384 .

1988Kidder, supra, at 281 , 513 N.E. 2d at 314 ; State v. Davis (1983), 6 Ohio St. 3d 91 , 6 OBR 131, 451 N.E. 2d 772 ; State v. Wilkins (1980), 64 Ohio St. 2d 382 , 18 O.O. 3d 528, 415 N.E. 2d 303 .

2021As such, there is no reason to conclude the outcome would have been different had a lesser- included instruction been given. {¶46} The first assignment of error is without merit. {¶47} In his second assignment of error, Bankston argues that the trial court violated his due process rights by failing to allow the requested Involuntary Manslaughter instruction. {¶48} “An appellate court reviews a trial court’s refusal to give a requested jury instruction for an abuse of discretion.” State v. Petway, 2020-Ohio-3848 , 156 N.E.3d 467 , 18 ¶ 36 (11th Dist.), citing State v. Adams, 144 Ohio St.3d 429

2021As such, there is no reason to conclude the outcome would have been different had a lesser- included instruction been given. {¶46} The first assignment of error is without merit. {¶47} In his second assignment of error, Bankston argues that the trial court violated his due process rights by failing to allow the requested Involuntary Manslaughter instruction. {¶48} “An appellate court reviews a trial court’s refusal to give a requested jury instruction for an abuse of discretion.” State v. Petway, 2020-Ohio-3848 , 156 N.E.3d 467 , 18 ¶ 36 (11th Dist.), citing State v. Adams, 144 Ohio St.3d 429

2021While it is not evident from the record why counsel chose to pursue an involuntary manslaughter lesser-included instruction rather than a reckless homicide one, we are reluctant to second-guess counsel’s decisions on which lesser included instructions to seek, if any. {¶44} Nonetheless, even presuming counsel should have sought such an instruction, we do not find that prejudice resulted from the failure to request a jury instruction on reckless homicide. {¶45} An instruction on a lesser included offense must be given to the jury “‘where the evidence presented at trial would reasonably support

2021Hall, 2019-Ohio-4000, at ¶ 26 . {¶42} The fourth assignment of error is without merit. {¶43} For the foregoing reasons, Williams’ convictions for Robbery and Improperly Handling Firearms in a Motor Vehicle are affirmed.

2021Nonetheless, since the conviction is supported by the evidence with Williams acting as a principal, this issue is moot. {¶37} The third assignment of error is without merit. {¶38} In his fourth assignment of error, Williams argues that trial counsel was ineffective by failing to request a lesser included instruction for the Robbery offense given his foregoing argument that there was no testimony as to the specific nature of the threat of violence and the conduct would more properly fit the requirements for a third-degree felony. {¶39} To demonstrate ineffective assistance of counsel, a defenda

2021Nonetheless, since the conviction is supported by the evidence with Williams acting as a principal, this issue is moot. {¶37} The third assignment of error is without merit. {¶38} In his fourth assignment of error, Williams argues that trial counsel was ineffective by failing to request a lesser included instruction for the Robbery offense given his foregoing argument that there was no testimony as to the specific nature of the threat of violence and the conduct would more properly fit the requirements for a third-degree felony. {¶39} To demonstrate ineffective assistance of counsel, a defenda

2021As such, there is no reason to conclude the outcome would have been different had a lesser- included instruction been given. {¶46} The first assignment of error is without merit. {¶47} In his second assignment of error, Bankston argues that the trial court violated his due process rights by failing to allow the requested Involuntary Manslaughter instruction. {¶48} “An appellate court reviews a trial court’s refusal to give a requested jury instruction for an abuse of discretion.” State v. Petway, 2020-Ohio-3848 , 156 N.E.3d 467 , 18 ¶ 36 (11th Dist.), citing State v. Adams, 144 Ohio St.3d 429

2021As such, there is no reason to conclude the outcome would have been different had a lesser- included instruction been given. {¶46} The first assignment of error is without merit. {¶47} In his second assignment of error, Bankston argues that the trial court violated his due process rights by failing to allow the requested Involuntary Manslaughter instruction. {¶48} “An appellate court reviews a trial court’s refusal to give a requested jury instruction for an abuse of discretion.” State v. Petway, 2020-Ohio-3848 , 156 N.E.3d 467 , 18 ¶ 36 (11th Dist.), citing State v. Adams, 144 Ohio St.3d 429

2021“To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989), paragraph three of the syllabus.

2021“To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989), paragraph three of the syllabus.

2021Id.

2020Therefore, he contends, the trial court erred in not giving the instruction, and his trial counsel was ineffective in failing to request the instruction. {¶ 20} We presume a properly licensed attorney is competent, and therefore, Lanier bears the burden of showing his trial counsel made “errors so serious that counsel failed to function as the ‘counsel’ guaranteed by the Sixth Amendment.” State v. Hamblin, 37 Ohio St.3d 153, 156 , 524 N.E.2d 476 (1988), citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301 , 209 N.E.2d 164 (1965); Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.E

2020Therefore, he contends, the trial court erred in not giving the instruction, and his trial counsel was ineffective in failing to request the instruction. {¶ 20} We presume a properly licensed attorney is competent, and therefore, Lanier bears the burden of showing his trial counsel made “errors so serious that counsel failed to function as the ‘counsel’ guaranteed by the Sixth Amendment.” State v. Hamblin, 37 Ohio St.3d 153, 156 , 524 N.E.2d 476 (1988), citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301 , 209 N.E.2d 164 (1965); Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.E

2020Therefore, he contends, the trial court erred in not giving the instruction, and his trial counsel was ineffective in failing to request the instruction. {¶ 20} We presume a properly licensed attorney is competent, and therefore, Lanier bears the burden of showing his trial counsel made “errors so serious that counsel failed to function as the ‘counsel’ guaranteed by the Sixth Amendment.” State v. Hamblin, 37 Ohio St.3d 153, 156 , 524 N.E.2d 476 (1988), citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301 , 209 N.E.2d 164 (1965); Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.E

2020Therefore, he contends, the trial court erred in not giving the instruction, and his trial counsel was ineffective in failing to request the instruction. {¶ 20} We presume a properly licensed attorney is competent, and therefore, Lanier bears the burden of showing his trial counsel made “errors so serious that counsel failed to function as the ‘counsel’ guaranteed by the Sixth Amendment.” State v. Hamblin, 37 Ohio St.3d 153, 156 , 524 N.E.2d 476 (1988), citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301 , 209 N.E.2d 164 (1965); Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.E

2019Lake Nos. 2016-L-006 and 2016-L-007, 2016-Ohio-8113, ¶ 19 .

2017Landers relies on the same factors that he discussed in connection with the Second Assignment of Error. {¶ 85} “The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis.” (Citation omitted.) State v. Deanda, 136 Ohio St.3d 18 , 2013-Ohio-1722 , 989 N.E.2d 986, ¶ 6 .

2017Landers relies on the same factors that he discussed in connection with the Second Assignment of Error. {¶ 85} “The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis.” (Citation omitted.) State v. Deanda, 136 Ohio St.3d 18 , 2013-Ohio-1722 , 989 N.E.2d 986, ¶ 6 .

2016In such a case, "if due to some ambiguity in the state's version of the events involved in a case the jury could have a reasonable doubt regarding the presence of an element required to prove the greater but not the lesser offense, an instruction on the lesser included offense is ordinarily warranted." (Emphasis sic.) Wine, 2014-Ohio-3948 at ¶ 33 , quoting State v. Solomon, 66 Ohio St.2d 214, 221 (1981). {¶ 16} Despite Rodriguez's claim that he had no participation in the incident, his defense did not prevent the trial court from offering the lesser included instruction.

2016Cuyahoga No. 100115, 2014-Ohio-2055, ¶ 20 , quoting State v. Palmer, 8th Dist.

2016“To require an instruction * * * every time some evidence, however minute, is presented going to a lesser included (or inferior-degree) offense would mean that no trial judge could ever refuse to give an instruction on a lesser included (or inferior-degree) offense.” Id. at 633 . {¶34} Appellant argues that he was entitled to a lesser included instruction on attempted rape because S.N. provided conflicting accounts of whether she had been anally penetrated. {¶35} S.N. testified that her normal morning routine consisted of walking, running, and stopping at a coffee shop before going to work.

2011State v. Kaufman, 187 Ohio App.3d 50 , 2010-Ohio-1536 , 931 N.E.2d 143, at ¶103 .

2011State v. Kaufman, 187 Ohio App.3d 50 , 2010-Ohio-1536 , 931 N.E.2d 143, at ¶103 .

2007State v. Economo , 76 Ohio St.3d 56 , 1996-Ohio-426 , 666 N.E.2d 225 . {¶ 25} Here, the trial court properly determined that if a lesser included instruction of sexual imposition were given, appellant would be entitled to a directed verdict, as there was no corroboration.

2007While appellant may now conclude that it would have been better to obtain the lesser-included instruction, the fact that there may have been "another and better strategy available does not amount to a breach of an essential duty to his client." Clayton , at 49 . {¶ 6} This court applied the reasoning of Clayton in State v. Harris (1998), 129 Ohio App.3d 527 , 533 .