{¶ 1} Defendant-appellant, Charles Wesley Jones, appeals his conviction and sentence in the Butler County Court of Common Pleas for robbery in violation of R.C. 2911.02(A)(2). The charges arose from allegations that appellant stole $10 from Darren Davis during the early morning hours of November 4, 2009.
{¶ 2} On March 10 and 11, 2010, appellant was tried by a jury. Darren Davis, the state’s key witness, testified that while he was taking trash into an alley behind his home, a man approached Davis from behind, placed his forearm around Davis’s neck, and pulled him close. Davis testified that he then felt a “pointy object” in his lower back and that the man stated, “Don’t move or else I’ll shoot you.” While restraining Davis, the man reached into Davis’s pocket and removed a $10 bill. At that time, the man told Davis not to look back, or else he would be shot. As a result of this encounter, Davis called the Middletown Police Department to report an armed robbery.
{¶ 4} During trial, appellant testified on his own behalf and denied having a gun or robbing Davis. Instead, appellant explained that he was walking in the neighborhood when Davis approached appellant in his vehicle. Appellant testified that he had entered Davis’s vehicle, at which time Davis inquired where he could obtain crack cocaine in the area. After telling Davis that he could obtain the drugs, Davis gave appellant $10 and stated that if the “dope was good, * * * he’d spend more money.” Upon exiting Davis’s vehicle, appellant proceeded to a nearby house to purchase the drugs. Appellant testified that when he exited the house 15 to 25 minutes later, he was apprehended by police for reasons unknown to him at the time.
{¶ 5} At the close of all evidence, the trial court instructed the jury regarding the elements of robbery. However, while appellant was indicted for robbery under R.C. 2911.02(A)(2), the trial court instructed the jury regarding the elements of robbery under R.C. 2911.02(A)(3), a third-degree felony not listed in the indictment. Following deliberations, the jury returned a verdict form stating: “We, the jury, being duly impaneled, find the defendant * * * guilty of robbery, a felony of the second degree, as charged in count one of the indictment.” (Emphasis added.) As a result, appellant was sentenced to serve five years in prison and three years of mandatory postrelease control.
{¶ 6} Appellant now appeals his conviction and sentence, raising three assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} “The trial court committed plain error under Criminal Rule 52(B) in providing an improper jury instruction for a lesser felony level than defendant/appellant had been indicted.”
{¶ 9} In his first assignment of error, appellant argues that the trial court erred in instructing the jury on the elements of robbery under R.C. 2911.02(A)(3), a third-degree felony, when appellant was indicted for robbery under R.C.
{¶ 10} The record indicates that upon reviewing the evidence, the trial court found insufficient evidence to support a conviction under R.C. 2911.02(A)(2), but sufficient evidence of the lesser included charge under R.C. 2911.02(A)(3) to submit the case to the jury on the lesser included offense. Accordingly, the trial court properly instructed the jury to reflect a change in appellant’s charge from R.C. 2911.02(A)(2) to the lesser included offense under subsection (A)(3).
{¶ 11} Moreover, the record reveals that the parties understood the trial court’s decision to proceed under R.C. 2911.02(A)(3) rather than subsection (A)(2). This understanding was first implicitly reflected when the parties accepted, without objection, the court’s proposed jury instructions that included only the elements of R.C. 2911.02(A)(3). This understanding was further reflected during closing arguments, when, without objection from the defense, the state argued the elements of R.C. 2911.02(A)(3) as follows:
{¶ 12} “[THE STATE]: the evidence also shows that while committing the offense of theft or attempting to commit the offense of theft, the defendant used and threatened the immediate use of force against [Davis.] The defendant used force when he grabbed [Davis] and held him. The defendant used force while he reached into [Davis’s] pocket and took his money. The defendant threatened the immediate use of force while doing this. Give me your money or I will shoot you. [Davis] told us he believed it. [Davis] told us there was something stuck in my back, accompanied by these words. I’ll shoot you. It doesn’t matter if a gun wasn’t found. What matters is Mr. Davis believed that threat that [the defendant] gave to him.”
{¶ 13} Under these circumstances, the trial court properly instructed the jury regarding the elements of R.C. 2911.02(A)(3), as follows: “Before you can find the Defendant guilty, you must find beyond a reasonable doubt that * * * while committing or attempting to commit a theft offense, or in fleeing immediately after the attempt or offense, did use or threaten the immediate use of force against Darren Davis. * * * Force means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.” (Emphasis added.)
{¶ 14} If any doubt remained as to the specific charges appellant faced, it was eliminated during a bench conference following the jury instructions, when the
{¶ 15} “THE COURT: Well * * * the State of Ohio’s position is this is a threat by immediate use of force.
{¶ 16} “[THE STATE]: Correct.
{¶ 17} “THE COURT: Is that [the State’s] position?
{¶ 18} “[THE STATE]: Yes.” (Emphasis added.)
{¶ 19} In sum, the record reveals a collective understanding of the trial court’s decision to acquit appellant of second-degree robbery under R.C. 2911.02(A)(2) and to proceed under subsection (A)(3) as a lesser included offense. Because we find that robbery through the use or threatened use of immediate force under R.C. 2911.02(A)(3) is a lesser included offense of robbery under R.C. 2911.02(A)(2), we are in no position to interfere with the court’s decision on these grounds. See State v. Watson,
{¶ 20} “An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.” State v. Deem (1988)
{¶ 21} As previously discussed, a violation of R.C. 2911.02(A)(2) is a second-degree felony, carrying with it a greater penalty than a violation of R.C. 2911.02(A)(3), a third-degree felony. See Watson,
{¶ 22} Despite the updated charge and resulting jury instructions, the trial court filed an entry the following week that sentenced appellant for “a violation of Revised Code Section 2911.02(A)(2) a second degree felony.” However, when the trial court submitted to the jury the lesser included offense under R.C. 2911.02(A)(3), a third-degree felony, and the jury rendered its verdict based upon the instructions it received, it is clear that the court mistakenly sentenced
{¶ 23} Accordingly, appellant’s first assignment of error is sustained to the extent indicated.
{¶ 24} Assignment of Error No. 2:
{¶ 25} “The trial court erred in refusing defendant’s request for a jury instruction for the lesser-included offense of theft.”
{¶ 26} In his second assignment of error, appellant argues that the trial court erroneously denied his motion to instruct the jury on the lesser included offense of petty theft by threat.
{¶ 27} “Even though an offense may be a lesser included offense, a charge on the lesser offense is required ‘only where the evidence presented at trial would reasonably support both an acquittal of the crime charged and a conviction upon the lesser included offense.’ ” State v. Trimble,
{¶ 28} R.C. 2913.02(A)(4), which proscribes theft by threat, states: “No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [b]y threat.” As previously discussed, appellant was indicted for robbery in violation of R.C. 2911.02(A)(2), but the jury was instructed on elements relating to robbery under R.C. 2911.02(A)(3).
{¶ 29} The state does not contest that theft by threat is a lesser included offense of robbery. See State v. Davis (1983),
{¶ 31} Accordingly, appellant’s second assignment of error is overruled.
{¶ 32} Assignment of Error No. 3:
{¶ 33} “Appellant was denied effective assistance of counsel in violtion [sic] of Article I, Section 10 of the Ohio Constitution and the Sixth Amendment of the United States Constitution.”
{¶ 34} In his third assignment of error, appellant argues that he was denied the effective assistance of counsel during various stages of the proceedings.
{¶ 35} To establish ineffective assistance of counsel, appellant must show that his trial attorney’s performance was both deficient and prejudicial. State v. Bradley (1989),
{¶ 36} For the reasons previously given in finding error in appellant’s sentence, we are also compelled to find error under the more lenient standard applicable to determining whether appellant received effective assistance of trial counsel. Clearly, counsel’s failure to object to appellant’s sentence pursuant to R.C. 2911.02(A)(2), rather than subsection (A)(3), was not the result of any defensible tactical choice. As a result, counsel failed to perform at the level necessary to afford effective assistance during all critical stages of the proceedings. Gardner v. Florida (1977),
{¶ 37} Having reviewed the record, we find no prejudice to appellant in his remaining claims of ineffective assistance of counsel.
{¶ 39} Judgment affirmed in part, reversed in part, and remanded to the trial court for resentencing.
Judgment affirmed in part and reversed in part, and cause remanded.