State v. Rhodus, 2023 Ohio 3678

Middletown police conducted a controlled buy on March 30, 2022; a confidential informant bought 3.50 g of methamphetamine from Roger Rhodus at 2824 Wilbraham Road.
Officers executed a search warrant at the residence on April 1, 2022 and seized methamphetamine totaling 75.18 g (six containers: 68.27 g in the bedroom, 6.91 g under a living-room couch), drug paraphernalia, and a firearm.
Rhodus—leaseholder and the only person on the lease—was in the bedroom during the search; he admitted regular methamphetamine use, denied selling drugs or owning the seized contraband, and acknowledged the bedroom as where he ‘‘hung out’’ and kept personal items.
Indictment: two counts related to the March 30 controlled buy (Counts I–II, third-degree aggravated trafficking/possession) and two counts related to the April 1 search (Counts III–IV, second-degree aggravated trafficking/possession alleging ≥5× but <50× bulk amount), with firearm and forfeiture specs on Counts III–IV.
At trial the defense orally requested lesser-included (third-degree) instructions for Counts III–IV; the trial court denied the request. Jury convicted as indicted, found the ≥5× quantity for Counts III–IV, and the court merged allied counts and sentenced Rhodus to an aggregate 4 to 5½ years.

Issue	State's Argument	Rhodus' Argument	Held
Whether Rhodus waived his challenge to the trial court's refusal to give lesser-included instructions by failing to make a Crim.R. 30(A) written request/objection	Rhodus waived all but plain error because he did not object as required by Crim.R. 30(A)	Trial counsel repeatedly raised the request on the record and the trial court was fully apprised of the law and facts, so the issue was preserved	Preserved — the court found the record shows the trial court was fully apprised and reviewable on the merits
Whether the trial court abused its discretion in refusing to instruct the jury on third-degree (lesser-included) aggravated trafficking/possession for Counts III–IV	The evidence (appellant's exclusive lease, personal items in the bedroom, recent sale in that bedroom, admissions of use) established dominion and control over the bedroom methamphetamine; even excluding the 6.91 g under the couch, 68.27 g remained (>5× bulk), so no reasonable view of the evidence would support conviction on a lesser degree	A reasonable jury could have attributed some bedroom quantities to other persons present and could have found the quantity attributable to Rhodus was <5× bulk (<15 g), so a lesser-included instruction was warranted	No abuse of discretion — insufficient evidence to allow a jury to reasonably reject the greater offense and convict on the lesser; instruction properly denied

State v. Kilby, 50 Ohio St.2d 21 (Ohio 1977) (standard for when a lesser-included instruction must be given)
State v. Wolons, 44 Ohio St.3d 64 (Ohio 1989) (trial court fully apprised of correct law preserves objection despite Crim.R.30 defect)
State v. Evans, 122 Ohio St.3d 381 (Ohio 2009) (framework for determining whether an offense is a lesser included offense)
State v. Trimble, 122 Ohio St.3d 297 (Ohio 2009) (evidence viewed in the light most favorable to defendant must reasonably support acquittal on greater and conviction on lesser)
State v. Monroe, 105 Ohio St.3d 384 (Ohio 2005) (instruction not required absent sufficient evidence to support lesser verdict)
State v. Fanning, 1 Ohio St.3d 19 (Ohio 1982) (Crim.R.30 written-request requirement)
State v. Cornett, 82 Ohio App.3d 624 (Ohio Ct. App. 1992) (preservation where trial court was fully apprised of the law and facts)