State v. Robinson, 2016 Ohio 808

Defendant Adam Robinson was charged with second-degree burglary (R.C. 2911.12(A)(2)), intimidation, two theft counts, and possession of criminal tools after the victim returned from a short vacation to find her apartment ransacked, a crowbar and screwdriver newly in a tote, a threatening note reading “SNITCH AND DIE,” and other items missing.
Westlake police recovered a screwdriver, crowbar, and a liquor bottle; BCI analysis matched DNA on the screwdriver and crowbar to Robinson.
Jury convicted Robinson of second-degree felony burglary, theft, and possession of criminal tools; non-burglary counts merged for sentencing and Robinson received three years’ imprisonment.
On appeal Robinson argued (1) the trial court erred by not instructing the jury on the lesser included offense of third-degree burglary (R.C. 2911.12(A)(3)) and (2) trial counsel was ineffective for failing to request that instruction.
The crux of the dispute: whether evidence reasonably supported an acquittal on the charged second-degree offense (which requires that another person be “present or likely to be present”) and a conviction on the lesser third-degree offense (which lacks the “likely to be present” element).

Issue	Plaintiff's Argument (State)	Defendant's Argument (Robinson)	Held
Whether trial court committed plain error by not instructing jury on lesser included third-degree burglary	No error — evidence supported the aggravated element (someone was present or likely to be present) so lesser instruction not warranted	Court should have instructed on third-degree burglary because victim was on vacation and no one was regularly checking the apartment, so presence/likelihood element was not supported	Court held no plain error: evidence (victim’s mother had key, visited three times and was at the apartment within ~24 hours of burglary) supported finding that someone was “present or likely to be present,” so lesser instruction not required
Whether trial counsel was ineffective for failing to request lesser-included instruction	Counsel was not ineffective because an instruction on the lesser offense would have been improper given the evidence; no prejudice	Counsel failed to protect Robinson’s rights by not requesting the instruction	Court held no ineffective assistance: counsel’s performance was not deficient and Robinson suffered no prejudice

State v. Harrison, 122 Ohio St.3d 512 (Ohio 2009) (plain-error standard and requirement that outcome would differ but for the error)
State v. Long, 53 Ohio St.2d 91 (Ohio 1978) (plain-error doctrine cautions)
State v. Deem, 40 Ohio St.3d 205 (Ohio 1988) (definition of lesser included offense by degree)
State v. Thomas, 40 Ohio St.3d 213 (Ohio 1988) (lesser-included instruction required only when evidence supports acquittal on charged offense and conviction on lesser)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective assistance standard: deficiency and prejudice)
State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (applying Strickland in Ohio)
State v. Kilby, 50 Ohio St.2d 21 (Ohio 1977) (occupants temporarily absent but regularly inhabiting a dwelling can satisfy “likely to be present” element)