2013 Ohio 1378
Ohio Ct. App.2013Background
- Elsberry robbed Walgreens in Middletown, August 23, 2011, implying a gun during the robbery.
- Employee Myers handed over close to $200 after Elsberry threatened her with what appeared to be a gun.
- Video evidence and a still photograph supportedElsberry’s identification; he admitted the robbery occurred.
- Elsberry claimed he used a BB gun (not a real gun) and disposed of it after the offense.
- Defendant was indicted for aggravated robbery with a firearm specification; jury convicted him of physical-harm robbery.
- Trial court instructed on physical-harm robbery (R.C. 2911.02(A)(2)) but not the lesser offense of robbery by force (A)(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in not instructing on robbery by force | Elsberry argues exclusion favored by correct lesser offense. | Elsberry contends force robbery is a lesser included offense. | No reversible error; evidence did not support force robbery. |
| Plain error from jury instructions on physical-harm robbery | State asserts proper framing of physical-harm elements was given. | Elsberry claims recklessness mens rea missing; instruction flawed. | No plain error; record shows proper instruction and admissions supported the charge. |
| Effectiveness of counsel for failing to object to jury instructions | Defense claim of improper instructions; failure to object caused prejudice. | Counsel timely objected otherwise; but errors not prejudicial. | No ineffective assistance; admitting intent to threaten supported the conviction. |
| Plain error for omission of recklessness mens rea instruction | State argues no need for recklessness element; standard was met. | Elsberry relies on Colon to require recklessness instruction. | Plain error not shown; omission did not change the outcome. |
Key Cases Cited
- State v. Evans, 122 Ohio St.3d 381 (2009) (defines lesser included offense analysis)
- State v. Deem, 40 Ohio St.3d 205 (1988) (establishes tests for lesser included offenses)
- State v. Thomas, 40 Ohio St.3d 213 (1998) (limits automatic instruction of lesser offenses)
- State v. Shane, 63 Ohio St.3d 630 (1992) (when to instruct on a lesser included offense)
- State v. Brown, 2010-Ohio-2460 (Ohio App.3d 2010) (standard for identifying lesser included offenses)
- State v. Harris, 129 Ohio App.3d 527 (1998) (evidence-based approach to lesser included offenses)
- State v. Adams, 62 Ohio St.2d 151 (1980) (necessity of jury instruction on elements; plain error standard)
- State v. Horner, 2010-Ohio-3830 (2010) (limits of structural error in absence of objection)
- State v. Colon, 118 Ohio St.3d 26 (2008) (Colon I reconsidered; later developments (Colon II))
- State v. Colon, 119 Ohio St.3d 204 (2008) (Colon II refined recklessness/intent considerations)