State v. Simonis, 2014 Ohio 5091

Defendant James E. Simonis was indicted for second-degree felony robbery under R.C. 2911.02(A)(2) for taking two 12-packs of beer from Kroger on August 21, 2013, and allegedly inflicting or attempting to inflict physical harm on an employee (Shawn Craig) while fleeing.
Surveillance video and testimony showed Simonis leaving the store with the beer, Craig chased him, attempted to grab the beer at a vehicle, and Simonis put an arm around Craig’s neck and took him to the ground; Craig sustained a split/abrasion to his lip.
Simonis was identified and arrested; police found the beer in the vehicle.
Prior to trial, Simonis sought Kroger’s employee policy on confronting suspected shoplifters via motion and subpoena. Kroger moved to quash; the trial court reviewed the policy in camera and granted the motion to quash as the court found the policy irrelevant.
At trial the court denied requests for lesser-included instructions (assault and theft); the jury convicted Simonis of robbery. Simonis was sentenced to four years and appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Simonis)	Held
Whether the trial court abused its discretion by quashing the subpoena for Kroger’s employee policy	Policy irrelevant to elements of robbery; State not required to produce non-party policy	Policy was relevant and favorable; not otherwise procurable and should have been discoverable	Trial court did not abuse discretion; in-camera review showed policy irrelevant to defendant’s culpability; quash affirmed
Whether the court erred by refusing a lesser-included instruction on theft	Evidence showed physical harm/attempt occurred during or immediately after theft, so robbery instruction appropriate; no reasonable basis to acquit on robbery but convict on theft	Jury could reasonably find theft but not the required physical-harm element; theft instruction required	No abuse of discretion; evidence supported robbery element of inflicting/attempting to inflict physical harm; theft instruction not warranted
Whether the robbery verdict was against the manifest weight of the evidence	Evidence (video, eyewitness testimony, officer testimony, injury) supports conviction	Argues he was not aggressor, victim punched him, injury not shown by photos — conviction against weight	Conviction not against manifest weight; jury did not lose its way; appellate reversal not warranted

State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for manifest-weight review)
State v. Smith, 117 Ohio St.3d 447 (2008) (theft is a lesser included offense of robbery)
State v. Trimble, 122 Ohio St.3d 297 (2009) (lesser-included instruction requires sufficient evidence to allow jury to reasonably reject greater offense and convict on lesser)
State v. Wolons, 44 Ohio St.3d 64 (1989) (abuse-of-discretion standard for refusal to give requested jury instruction)
State v. Shane, 63 Ohio St.3d 630 (1992) (requirement that more than "some evidence" is needed to warrant lesser-included instruction)
State v. Wilkins, 64 Ohio St.2d 382 (1980) (trial court not required to instruct on lesser offense solely because it is included in the greater)